M/s R.R. Techno Mechanicals (P) Ltd. and others vs Democration Labour Union

Defendant in O.S. No. 430 of 1995 on the file of District Munsif, Poonamalle, aggrieved by the order in I.A. NO. 1956 of 1995 granting

interim injunction, has filed C.R.P. No. 2005 of 1995 before this Court under Article 227 of the Constitution of India. Likewise, defendant in O.S.

No. 127 of 1995 on the file of District Munsif, Poonamallee, aggrieved by the order of extension of interim injunction, granted in I.A. No. 623 of

1995, has filed C.R.P. No. 2025 of 1995 under Article 227 of the Constitution of India before this court.

I shall take the first C.R.P., namely, C.R.P. No. 2005 of 1995. The respondent herein/plaintiff, namely, Democration Labour Union represented

by its Secretary filed the said suit for permanent injunction restraining the defendant'' management, its men, servants and agents from removing ''B''

schedule properties from the ''A'' schedule factory premises during the pendency of the conciliation proceedings. In order to understand the case of

the plaintiff, it is useful to refer some of the averments made in the plaint. It is averred that workers numbering 38 employed in the defendant

company are the members of the plaintiff union. The plaintiff has raised an industrial dispute with defendant on April 18, 1995 seeking increasing

the wages for the workers. The present wage structure is below the minimum wage fixed by the State of Tamil Nadu. The defendant with a view to

coerce the workers to give up a claim for improvement in their service condition had announced closure notice dated June 12, 1995. The decision

of the management is illegal. The procedure contemplated under the Industrial Disputes Act was not complied with by the management. The

plaintiff Union had started conciliation by filing an application before the conciliation officer-cum-Assistant Commissioner of Labour - No. 2,

Kuralagam, Madras. Now the industrial dispute is pending before the forum created under the Industrial Acts. Further it is alleged that the

threatened action is in violation of the valuable statutory rights of the workers u/s 33 of the Industrial Dispute Act, for Security of tenure of service.

The plaintiff has alleged that he had filed an application before the Assistant Commissioner of Labour - No. 2, Madras-108, seeking conciliation of

the Industrial Dispute. In the Light of the above pleadings, they also filed an application I. A. No. 1956 of 1995 in O.S.No. 430 of 1995 under

order 39 Rule 1 and 2 C.P.C., for an order of interim injunction restraining the defendants from removing ''B'' schedule properties from ''A''

schedule factory premises till the disposal of the suit. The impugned order dated June 28, 1995 reads as follows :-

Heard. Perused the Records.

He has a prima facie case. Ad interim injunction relating only to machineries not relating to other aspects till July 28, 1995, excluding those

machineries which are serviceable to get revised vent the composing contingency within the period of injunction granted in favour and Notice by

them.

Against the said order granting ex parte injunction, the defend ant has filed the present revision before this court under Article 227 of the

Constitution of India.

Mrs. Rita Chandrasekaran, learned counsel appearing for the petitioner, raises the following submissions :-

(1) On the basis of the various averments made in the plaint, the court below has no jurisdiction to entertain the suit. If so it has equally no

jurisdiction to grant interim order. In other words, she submits that where a dispute relates to enforcement of rights or obligation created under the

Industrial Disputes Act, then the only remedy is under the Act to get adjudicated and the Civil Court is barred from going into such proceedings.

(2) The order of the Court below is contrary to the mandatory provisions of order 39 Rule 3 C.P.C. For the above said proposition, she relied

upon the following decisions reported in :-

(a) The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, .

(b) Rajasthan State Road Transport Corporation and Another Vs. Krishna Kant and Others, .

(c) Sri Suryanarayana Papers and Boards Pvt Ltd., and 5 others v. Padmakumar and 2 others. 1995 II CTC 323.

Even though notice has been served on the respondent Labour Union, none appeared. In those circumstances, I have carefully considered the

submissions made by the learned counsel for the petitioner.

Before going into the decisions cited by the learned counsel for the petitioner, it is useful to ascertain the nature of the suit and the relief sought

for. Since I have already extracted some of the averments made in the said plaint in the earlier paragraphs, I am not repeating the same once again.

A reading of the above said plaint shows that in order to solve the dispute between the plaintiff-workers and the defendant-man-agement, even

according to the plaintiff, the union had filed an application before the conciliation Officer, viz., Assistant Commissioner of Labour. The Industrial

dispute is pending before the forum created under the Act. In other words, even according to the plaintiff, it had rightly approached the authority

constituted under the Industrial Disputes Act for appropriate relief in accordance with law. This has been amply proved from the various averments

made in the plaint filed in support of the said suit. Now I shall consider the first decision, namely, The Premier Automobiles Ltd. Vs. Kamlekar

Shantaram Wadke of Bombay and Others, . In the said decision, their Lordships of the Supreme Court have formulated the principles applicable

to the jurisdiction of the Civil Court in relation to an industrial dispute, which are extracted hereunder :-

Held, the principles applicable to the jurisdiction of the civil could in relation to an industrial dispute may be stated thus :

(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act, the remedy lies only in the civil

court.

(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of

the Civil Court is alternative, leaving it to the election of the suit or concerned to choose his remedy for the relief which is competent to be granted

in a particular remedy.

(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor

is to get an adjudication under the Act.

(4) If the right which is sought to be enforced is a right created under the Act, such as chapter VA, then the remedy for its enforcement is either

Section 33C or the raising of an industrial dispute as the case may be.

As per principle No.3 mentioned in the Apex Court''s judgment, if the industrial dispute relates to the enforcement of a right or an obligation

created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act. As stated earlier in this the plaintiff has

already approached the right forum under the Act.

In the other decision, namely, Rajasthan State Road Transport Corporation and Another Vs. Krishna Kant and Others, after reiterating the

principles as regards jurisdiction of the civil Court in relation to dispute between employer and employee the Apex Court has held thus at page

741.

Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial

Employment (Standing Orders) Act, 1946 which can he called ''sister enactments'' to Industrial Disputes Act - and which do not provide a forum

for resolution of such disputes, the only remedy shall be to approach the forum created by the Industrial Disputes Act provided they constitute

industrial disputes within the meaning of Section 2(k) and Section 2A of. Industrial Disputes Act or where such enactment says that such dispute

shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act.

Otherwise, recourse to civil court is open.

In the recent decision of this Court reported in 1995 II CTC 323 cited supra, Srinivansan J., (as he then was), almost in an identical

circumstance after referring to the mandatory provisions of order 39 Rule 3 C.P.C., has observed thus :-

Order XXXIX Rule 3 of the CPC contains a specific provision that after it is proposed by the Court to grant an injunction without giving notice

of the application to the opposite party, the court shall record the reasons for its opinion that the object of granting the injunction would be

defeated by delay. The Court is also enjoined to do certain other things, which is not necessary to mention them here. Referring to the said

provision of the Code, I held in Rajapalayan Industrial and Commercial Syndicate Ltd. and Another Vs. K.A. Vairaprakasam and Another, that if

an order of injunction is made without recording the reasons, the injunction would be in violation of the procedure under order XXXIX Rule 3 of

C.P.C. and I had deprecated the practice of granting such orders of injunction. The said principle is also laid down by the Supreme Court in

Morgan Stanley Mutual Fund Vs. Kartick Das, . Referring to an earlier judgment is Shiv Kumar Chadha and Others Vs. Municipal Corporation of

Delhi and Others, the Supreme Court extracted the following passage from the said judgment :

...... the court shall ''record the reasons'' why an ex parte order of injunction was being passed in the facts and circumstances of a particular case.

In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. The

requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise

either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed

under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restrain against a party, without

affording an opportunity to him, of being heard, must satisfy the Court about the gravity of the situation and Court has to consider briefly these

factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court of

authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are

required to be complied with but non-compliance therewith will not vitiate the order passed. But same cannot be said in respect of the proviso to

Rule 3 of order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side

under exceptional circumstances. Such ex parte orders have far reaching effect, as such a condition has been imposed that court must record

reasons before passing such order. If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then the introduction of

the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be surplusage for all practical purposes. Proviso to Rule 3 of

Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or

not at all. This principle was approved and accepted in well known cases of Taylor v. Taylor 1875 l Ch D 426 and AIR 1936 253 (Privy Council)

. This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the

case of Ramchandra Keshav Adke v. Govind Joti Chavare 1975 1 SCC 915. The Court then observed -

As such whenever a court considers it necessary in the facts and Circumstances of a particular case to pass an order of injunction without notice

to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors,

including as to how the object of granting injunction itself shall be defeated if an ex panic order is not passed.

In the above referred case, the learned Judge has set aside the order of interim injunction granted by the court below as unsustainable in view of

non compliance of order 39 Rule 3 of Code of Civil Procedure. Here also, the Court below failed to follow the mandatory provisions, namely,

Order 39 Rule 3. Mere stating that the plaintiff has a prima facie case is not sufficient compliance of Rule 3. If the Court wants to grant interim

order without giving notice to the opposite party, the Court shall record the reasons for its opinion that the object of granting injunction would be

defeated by the delay. If an order of injunction without recording the reasons, the injunction would be in violation of the procedure under Order 39

Rule 3 C.P.C. As a matter of fact, this Court had deprecated the practice of granting such orders in many cases. In view of the points raised by the

learned counsel for the petitioner with regard to the jurisdiction of the Civil Court as well as non-compliance of Order 39 Rule 3, C.P.C., the

impugned order is liable to be set aside. Accordingly, the Civil Revision Petition No. 2005 of 1995 is allowed. However, there will be no order as

to costs.

Now with regard to C.R.P. No. 2024 of 1995, here also the defendant is the petitioners and aggrieved by the order passed in I.A. No. 623 of

1995 in O.S. No. 127 of 1995 extending the injunction granted earlier, he has approached this court under Article 227 of the Constitution of India

. As in the previous case, here also the plaint averments clearly show that plaintiff itself has taken necessary steps for conciliation proceedings

before the appropriate authority under the Industrial Disputes Act. Almost similar averments have been made in the present suit also. Pending suit,

the respondent, plaintiff filed I.A. 623 of 1995 for an order of injunction till disposal of the suit. In this case, the petitioner herein has filed a counter

affidavit opposing grant of injunction and prayed for vacation of the interim order. Inspite of the fact that the petitioner/defendant has filed a counter

affidavit in the injunction application requesting the court to vacate the injunction order, the court below instead of conducting enquiry and

disposing the injunction application one way or other on the facts available, simply extended the injunction from time to time. This is being

questioned in the present revision. As stated earlier, even for granting interim injunction without notice to the opposite party as per Order 39 Rule 1

to 32, the Court below has to adduce sufficient reasons for granting interim order. In this case expect stating that ""prima facie case made out."" The

court below has not assigned any reason in granting interim injunction. Added to it, after filing vakalath and counter by the contesting respondent,

instead of disposing the said application, adjourned the hearing on five occasions and ultimately on July 21, 1995 adjourned the enquiry to

September 1, 1995 and extended the injunction. The Apex Court as well as this court on many occasions deprecated the practice of granting such

orders of injunction without recording reasons and that too when the opposite party comes forward with a counter affidavit seeking for vacation of

the interim order. When such safeguards are provided under the Code even for granting exparte injunctions, I am unable to sustain the impugned

order extending the injunction on more than five occasions even after filing counter affidavit without giving any reason. Hence the impugned order

cannot be sustained and accordingly set aside. C.R.P. No. 2024 of 1995 is also allowed. No costs.

Inasmuch as in both the above mentioned cases the question of jurisdiction has been raised by the defendant, the Court below is directed to

consider the maintainability of the suits before passing any order in the above said suits. Net result, both the revisions are allowed as mentioned

above. No costs. C.M.Ps. No. 11119, 11120, 11247 and 11248 of 1995 are dismissed.