IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL NO.1601 OF 2019(CPC) BETWEEN 1. Hindustan Aeronautics Employees Association, A Trade Union registered under the Indian Trade Unions Act, 1926 Having its registered office at HAL Vimanapura Post, Bengaluru-560017. Represented by its Present General Secretary, Sri. Suryadevara Chandrasekhar 2. Mr. D.Vijaya Kumar, S/o. Doddaiah, Aged about 44 years, Senior Vice President, Hindustan Aeronautics Employees Association, Vimanapura Post, Bengaluru-560017.
3. Mr. S.Renuka, S/o. Sri. Sanjivappa, Aged about 47 years, General Secretary, Hindustan Aeronautics Employees Association, Vimanapura Post, Bengaluru-560017.
4. Mr. Kadammanavar Sateesh, S/o. Late Siddappa, Aged about 42 years, First Vice President, Hindustan Aeronautics Employees Association, Vimanapura Post, Bengaluru-560017.
5. Sri. T.K.Thimmaiah, S/o. Late Kari Honnaiah, Aged about 48 years, Organizing Secretary, Hindustan Aeronautics Employees Association, Vimanapura Post, Bengaluru-560017.
6. Sri. A.Mugundan, S/o. P.Arumugam, Aged about 44 years, Assistant Secretary, Hindustan Aeronautics Employees Association, Vimanapura Post, Bengaluru-560017.
7. Sri. C.Krishnappa, S/o. Chowde Gowda, Aged about 48 years, Treasurer, Hindustan Aeronautics Employees Association, Vimanapura Post, Bengaluru-560017.
…Appellants (By Sri. K.Subba Rao, Senior Advocate, for Sri K.N.Sateesh, Advocate) AND Hindustan Aeronautics Limited, A Company incorporated under The companies Act, 1956 having its registered office at No.15/1, Cubbon Road, Bengaluru-560001 and Bengaluru Complex at Vimanapura, Bengaluru-560017. Represented by its Deputy General Manager (HR)-BC, Sri. M.G.Balasubramanya …Respondent (By Sri.S.S.Ramdas, Senior Advocate, for Sri Pradeep S Sawkar, Advocate) This MFA is filed under Order 43 Rule 1(r) of CPC, 1908, against the order dated 29.11.2018 passed on I.A.No.3 and 7 in O.S.No.3405/2017 on the file of the 24th Additional City Civil and Sessions Judge, Bengaluru (CCH-6), allowing the I.A.No.3 filed under order 39 Rule 1 & 2 read with Section 151 of CPC & dismissing the I.A.No.7 filed under Order 39 Rule 4 read with Section 151 of CPC.
This MFA having been heard and reserved on 10.07.2019, coming on for pronouncement this day, the court pronounced the following :
JUDGMENT The first appellant is a Trade Union, and the appellants 2 to 7 are its office bearers. The respondent i.e., Hindustan Aeronautics Limited has sued the appellants seeking the reliefs of permanent injunction, of various types, the main relief being to restrain the appellants from picketing, demonstrating, holding dharnas, gheroing officers and others and shouting slogans within a radius of 500 meters from the main gate of its several establishments described in the schedule to the plaint. Along with the plaint, the respondent made an application for temporary injunction on lines with the first relief of permanent injunction claimed in the plaint. The trial court granted an ex-parte order of temporary injunction. The appellant sought that order to be vacated by filing an application under Order 39 Rule 4 of Civil Procedure Code. Since, the trial court, by its order dated 29.11.2018, made the ex-parte order of temporary injunction absolute till disposal of suit and dismissed the appellants’ application filed under Order 39 Rule 4 of the CPC, this appeal is preferred.
2. It is better to refer to the parties with respect to the position they hold in the suit for the purpose of clarity and convenience. The plaintiff’s case in brief is that it is a Government company. It is a Defence Establishment, declared as a Public Utility Service defined under Section 2 (n) of the Industrial Disputes Act. Its Management has no role to play in formulating the policy for running a public sector undertaking. It is entirely within the domain of the Government of India. The defendants served a notice dated 10.5.2017 on the plaintiff to convey its intention to go on one day strike on 30.5.2017 protesting the disinvestment and privatization of public sector units. This was a policy decision taken by the Central Government. The plaintiff requested the defendants to reconsider their decision to hold strike and the plaintiff also addressed a letter to Assistant Labour Commissioner to call for a conciliation meeting to prevail upon the defendants not to go on strike. But nothing concrete came out. The plaintiff has stated that the defendants, in the guise of carrying on trade union activities, have no right to hold demonstration, and prevent workmen and officers from working and having ingress and egress to the factory. Hence, the suit.
3. The defendants admit to have issued a notice to go on strike, but they have contended that the public sector undertakings in the defence sector cannot be privatized; the move to privatize is against the Preamble to the Constitution. Their notice to hold strike is legal in tune with Article 19 (1) of the Constitution of India. Their right cannot be curbed. The plaintiff is not entitled to any of the reliefs claimed in the plaint. It is the fundamental right of a Trade Union to assemble peacefully. There is no cause of action for the suit. Temporary injunction cannot also be granted.
4. The trial court while deciding the applications I.A.3 and I.A.7 has held that the plaintiff has been able to make out a case for grant of temporary injunction, as all the three essential requirements for grant of temporary injunction are present. It is held by the trial court that if the defendants go on strike, the plaintiff would be unable to deliver aircrafts and spare parts on time and thereby the reputation of the company would be harmed. The defendants contend that their right to hold strike is guaranteed under the Constitution of India, but they have to bear in mind that no person can invade on rights of other persons while enforcing rights. Defendants cannot be permitted to interfere with right of plaintiff company to carry on its business which is also guaranteed by the Constitution. With these main observations, the trial court made the order absolute.
5. I have heard the arguments of learned counsel for appellants as also respondent. Both sides advocates have placed reliance on horde of decided cases, I do not think that all the decisions require reference here for, some of them relate to basic principles governing the grant of temporary injunction. The gist of argument of learned counsel for appellants/defendants is that the workmen cannot be prevented by an order of injunction from holding strike for the legitimate cause. The right to strike, show protest and hold demonstration find source in Article 19 (1) of the Constitution of India. It is a right given to the workmen under Industrial Disputes Act. For creation of a Socialistic form society, as enshrined in the Preamble to the Constitution, which is the basic structure, protecting the interest of workmen is of utmost importance. Privatization only encourages capitalist, achieving socialist pattern of society will be a myth. An injunctive order cannot be issued to curtail the rights of workforce and Trade Union activities. In fact there is no cause of action for the suit as the appellants withdrew the notice of strike issued by them. The learned counsel urged another point that in case strike is to be held, it should be within the precincts of the factory only, there cannot be a direction to the workmen not to hold strike or dharna or demonstration within a specified distance from the factory premises; such direction futile the very purpose of strike. It is his argument that the order of the trial court is very cryptic, it does not discuss the basic principles. The impugned order can be modified, by giving a direction not to resort to violence while holding strike or dharna or demonstration.
6. On the other hand, the learned counsel for respondent argues that it is not the fundamental right of workmen to go on strike. It is only a legal right given to them under the Industrial Disputes Act. The appellants cannot disturb or cause obstruction to other workmen who want to refrain from strike and this is the reason why the respondent/plaintiff has sought for an injunctive order preventing the appellant from holding strike within 500 meters from the respondent’s various establishments. Though the appellants withdrew the notice dated 10.5.2017, it was not absolute withdrawal. At any time they may go on strike disturbing the industrial activities of the respondent. The HAL is a notified public utility service; its workers cannot hold strike. Disinvestment and privatization is a policy decision of the Central Government and the management of the respondent has no role in it. Therefore the trial court has rightly come to conclusion to grant injunction.
7. Learned counsel for the appellants while arguing referred to the judgment of the Supreme Court in the case of Kameshwar Prasad and Others vs State of Bihar and Another [AIR 1962 SC 1166]. In this decision what is held is thus :-
“13. The first question that falls to be considered is whether the right to make a "demonstration" is covered by either or both of the two freedoms guaranteed by Art. 19(1)(a) and 19(1)(b). A "'demonstration" is defined in the Concise Oxford Dictionary as "an outward exhibition of feeling, as an exhibition of opinion on political or other question especially a public meeting or procession". In Webster it is defined as "a public exhibition by a party, sect or society as by a parade or mass-meeting". Without going very much into the niceties of language it might be broadly stated that a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is thus a communication of one's ideas to others to whom it is intended to be conveyed. It is in effect therefore a form of speech or of expression, because speech need not be vocal since signs made by a dumb person would also be a form of speech. It has however to be recognised that the argument before us is confined to the rule prohibiting demonstration which is a form of speech and expression or of a mere assembly and speeches therein and not other forms of demonstration which do not fall within the content of Art. 19(1)(a) or 19(1)(b). A demonstration might take the form of an assembly and even then the intention is to convey to the person or authority to whom the communication is intended the feelings of the group which assembles. It necessarily follows that there are forms of demonstration which would fall within the freedoms guaranteed by Art. 19(1)(a) and 19(1) (b). It is needless to add that from the very nature of things a demonstration may take various forms; It may be noisy and disorderly, for instance stone- throwing by a crowd may be cited as an example of a violent and disorderly demonstration and this would not obviously be within Art. 19(1)(a) or (b). It can equally be peaceful and orderly such as happens when the members of the group merely wear some badge drawing attention to their grievances”.
8. In the case of Ahmedabad Textile Research Association vs Atira Employees Union and Another [1994 II LLJ 912] it is observed as below :-
“9. ……..There is no specific allegation of any unlawful or tortuous or violent act committed by the members of the first defendant. All the allegations are in the sphere of speculation. Even these allegations do not take the case outside the sphere of permissible agitational activities. Further these activities happened during lunch recess. It is not possible to disassociate the holding of demonstrations or shouting of slogans, displaying of placards or holding of dharnas from the legitimate and permissible activities of the labour, so long they do not turn unlawful, tortuous or violent ”
9. A Division Bench of this court in the case of Chandrana Brothers and Others vs Venkata Rao and Others [1976 (1) KLJ 245], after referring to judgment of the Supreme Court and other decision, took the view as below :-
“17. ………After a perusal of the statutes both in England and India regulating trade unionism it was observed by him that malice, molestation, intimidation or commission of offences against criminal laws of the land are inhibited, that the weapons of strike, boycotting and picketing are permissible within the limitation put on the trade union activities under the Trade Union Act…….”
10. In Premier Automobiles Limited vs Kamlakar Shantaram Wadke and Others [AIR 1975 SC 2238] what is found is discussion on jurisdiction of Civil Court in the matters relating to industrial disputes.
11. Of the several decisions cited by the learned counsel for respondent, if a reference is made to a few of them, in BALCO Employees’ Union (Regd.) vs Union of India and Others [(2002) 2 SCC 333], what is held is that courts cannot interfere in policy decision. The specific observation are as follows : -
“45. In Narmada Bachao Andolan vs. Union of India and Others, (2000) 10 SCC 664, there was a challenge to the validity of the establishment of a large dam. It was held by the majority at page 762 as follows :-
"229. It is now well settled that the Courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy- making process and the Courts are ill-equipped to adjudicate on a policy decision so undertaken. The Court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution."
46. It is evident from the above that it is neither within the domain of the Courts nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are our Courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical”.
12. Same is the view of this court in the case of Karnataka ITDC Hotels Officers Association and Others vs Indian Tourism Development Corporation Limited and Others [(2002) II LLJ 193.
13. On the point that right to strike is not a fundamental right, the learned counsel for respondent has referred to several decisions, starting from All India Bank Employees’ Association vs The National Industrial Tribunal (Bank Disputes) Bombay, and Others [AIR 1962 SC 171] to T.K.Rangarajan vs Government of Tamilnadu and Others [AIR 2003 SC 3032].
14. On consideration of the facts leading to institution of suit, it can be said that the trial court might not have discussed whether the defendants get a right to hold strike, but it has held that they cannot disturb the functioning of the plaintiff company and cause financial loss. Its observation that no person can invade on rights of others needs to be upheld. Undoubtedly, the workmen or the employees have a right to hold strike, but it is not a fundamental right; it is only a legal right made available under Industrial Disputes Act. Strikes can be held only for legitimate cause or purpose; any demonstration or dharna or raising slogan must be peaceful and without resorting to violence. Particularly in relation to policy decisions taken by the Government where the management has little role to play, though it cannot be said that none can protest, it may be resorted to peacefully without affecting others. Those who want to refrain from strike should not be disturbed. Socialistic pattern of society is realized when every citizen realizes his duty before urging for his right. Duty first should be the mindset. Duty means not necessarily fundamental duties found in the Constitution of our country, but every kind of duty being a citizen. I find it useful to extract an observation of the Supreme Court in the case of T.K.Rangarajan (supra).
“ Government servant has no right to go on strike. Neither fundamental nor statutory nor moral. Law on this subject is well settled and it has been repeatedly held by Supreme Court that the employees have no fundamental right to resort to strike. There is no statutory provision empowering the employees to go on strike. Further, there is prohibition to go on strike under Rule 22 of Tamil Nadu Government Servants Conduct Rules, 1973. Apart from statutory rights, Government employees cannot claim that they can take the society at ransom by going on strike. Even if there is injustice to some extent, as presumed by such employees, in a democratic welfare State, they have to resort to the machinery provided under different statutory provisions for redressal of their grievances. Strike as a weapon is mostly misused which results in chaos and total maladministration. Strike affects the society as a whole in a society where there is a large scale unemployment and number of qualified persons are eagerly waiting for employment in Government Departments or in public sector undertakings, strikes cannot be justified on any equitable ground. For redressing their grievances, instead of going on strike, if employees do some more work honestly, diligently and efficiently, such gesture would not only be appreciated by the authority but also by people at large. The reason being, in a democracy, even though they are Government employees, they are part and parcel of governing body and owe duty to the Society.”
(emphasis supplied) 15. The said observation is very much applicable to industrial workers.
16. As regards the distance where strike is to be held, I find that prescribing a periphery has a meaning, if strikes are allowed to be held within precincts of factory establishment, it may cause disturbance to the production activity and others who do not want to participate. Therefore normally a distance limit is prescribed in the background of circumstances, there cannot be a definite yardstick in this regard.
17. In the instant case, though the defendants have contended that they withdrew the strike notice, according to plaintiff, the defendants may go on strike at any time. Apprehension still remains. In this view, the plaintiff becomes entitled to order of temporary injunction, as all the three ingredients for grant of injunction exist, but with a modification. Hence the following order : -
Appeal is partly allowed. The impugned order is modified by permitting the defendants to hold strike outside the plaintiffs’ establishment at various places peacefully and without resorting to violence or causing disturbance to others who do not want to participate in the strike and to the functioning of the plaintiff company in any manner.
SD/- JUDGE ckl