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Judgment
A.P. Sen, J.—The defendants have filed this appeal under Order XLIII, rule 1(r) of the Code of Civil Procedure, against the order of the Additional District Judge, Ambikapur, dated 10th March 1969, making absolute the ad Interim temporary injunction granted ex parte by him on 22d February 1969 under order XXXIX, rule 1 of the Code.
Shortly stated, the facts are that the workers of the North Chirimiri Colliery, owned by the plaintiff-company, went on strike in order to support their demand for wages as per the Coal Wage Board Award. The Madhya Pradesh Colliery Workers'' Federation, which is a registered trade union under the Trade Unions Act, 1926, through its North Chirimiri Colliery branch, which is the recognised union of workers and the office bearers thereof, have been espousing the cause of the workers by organising meetings before the union office and elsewhere taking out processions on the public roads and the residential colony of the colliery and holding demonstrations in connection therewith. The plaintiff company, in the meanwhile, instituted the present suit for grant of a perpetual injunction. The defendants 1 to 18 are the trade union, its branch and the office bearers of the union. The plaintiff alleges that the entire working in the mines has been paralysed by the violent demonstrations held by the union, the threatening of the workers and members of the staff and by acts of criminal trespass, intimidation and violence on the part of the union officials, both at the colliery office and at the Chirimiri railway siding and also within the residential area. It is alleged that 200/300 persons from outside the colliery area have been marching and parading the roads and the residential colony armed with lathis raising slogans and threats against the management with a view to terrorise it and the workers. The plaintiff accordingly filed the suit for protection of its legal rights by the grant of a perpetual injunction and pendente lite applied for a temporary injunction under Order XXXIX, rule 1 of the C.P.C. for the prevention of such criminal activities on the part of the union and its office bearers. Some of the office bearers, i.e., defendants 4,6,7, 8,11,12,14 and 15 are either not employed in the mines or are dismissed employees.
The injunction granted by the learned Judge is in the following terms :--
The grant of a temporary injunction under the powers conferred by Order XXXIX, rule 1, C.P.C., is a matter of discretion of the Judge trying the suit. If the Court, which grants the injunction, rightly appreciates the facts and applies to those facts the true principles, then that is a sound exercise of judicial discretion, and a Court hearing an appeal from such an order would not ordinarily interfere [See, Durga Das Das Vs. Nalin Chandra Nandan and Others, ].
The Learned Counsel, however, urges that the learned Judge has acted on wrong principles and, therefore, an interference is called for. He urges that the learned Judge has neither applied his mind to the requirements of Order XXXIX, rule 1, nor has he cared to determine the limits of his own jurisdiction, in regard to a matter involving normal trade union activities. Alternatively, he urges that the nature of injunction granted was wholly un-warranted, by the terms of Order XXXIX, rule 1, and the order must, therefore, be struck down, He has advanced the following three grounds in support of the appeal :--
(i) The suit as framed was not maintainable and therefore the plaintiff had no prima facie case. Apart from this, it would suffer no irreparable injury if no injunction was granted.
(ii) No such application could be entertained against the Madhya Pradesh Colliery Workers'' Federation, or its North Chirimiri Colliery Branch and its office bearers, having regard to section 18 of the Act and Articles 19(1)(a),(b) and (c) of the Constitution of India.
(iii) The injunction cannot be supported in so far as it trenches upon those rights and must be suitably altered so as to allow for normal, trade union activities within the mines area.
The first ground urged, namely, that the plaintiff has no locus standi to file a suit of this nature and its managing agents, Messrs Karamchand Thapar and Brothers, Ltd., should have filed this suit, cannot be accepted. The perpetual injunction is sought by the plaintiff for the preservation of its right of enjoyment of the property owned by it and for preventing any invasion of their right to carry on business. The Learned Counsel, however, urges that management of the business being in the hands of Messrs Karamchand Thapar and Brothers, Ltd,, they also are owners of the mines, having regard to the definition of the term "owner" in section 2(1) of the Mines Act, 1952, which includes a managing agent within that definition. It is worth noticing that the definition of an "owner" in section 2(1) of the Act is an inclusive one. The managing agents are brought within the ambit of the Act, for the due observance of the regulations framed thereunder. That does not imply that the plaintiff is thereby divested of its rights of ownerships or enjoyment of its property or the right to carry on its business without any let or hindrance. It would appear from section 2(1), that an ''owner'' in relation to a mine, means the owner of the mine in question; Interpreting section 2(1), in the context of section 73 of the Act, their Lordships have negatived a similar contention in The Chief Inspector of Mines and Another Vs. Lala Karam Chand Thapar etc., . Their Lordships have stated that "owner" as defined in section 2(1), does not connote a managing agency in possession of a mine on behalf of the owner. In Messrs Shaw Wallace and Company Ltd. v. The Central Government Industrial Tribunal cum-Labour Court and others Miscellaneous Petition No. 433 of 1968; Dated 21-4-1969, I had stated :--
"Amongst the other contentions raised before the Tribunal, the management had both questioned the competence of the reference itself and also the jurisdiction of the Tribunal to entertain or deal with it, in these words:
"1. That in the said order of Reference of the Government of India, M/s. Shaw Wallace and Company Ltd., have been made parly to the dispute. As M/s. Shaw Wallace and Company Ltd., are not the employers of workman concerned, the said Reference of the Government of India is bad in law.
* * * *
The Learned Counsel appearing for the petitioners has, however, completely abandoned this stand before us, and proceeded on the basis that M/s. Shaw Wallace & Company Ltd., being the Managing Agents of the Pench Valley Coal Company Ltd., would be the employer in relation to the workman in question, although he was in fact, employed by the managed company, i.e., The Pench Valley Coal Co Ltd., which owned the Chandametta Colliery together with its Incline No. 6 where he was employed. The Learned Counsel states that in view of the definition of the word ''''employer" as contained in section 2(g) of the Act, which includes an "agent" the Managing Agents would come within the purview of that term. In view of that concession, we would refrain from expressing any view on this question. Suffice to say that the question is not free from doubt. At any rate, the definition of the term "employer" nowhere includes an agent, much less the Managing Agents."
For these reasons, I am clearly of the view that the employers of a mine are the owners of the colliery in question i.e., the plaintiff company. There is no substance in the contention that the plaintiff is indirectly affected by the stoppage of working and, therefore, irreparable lost would not be caused to it. The Learned Counsel urges that the management of business having been entrusted to Messrs Karamchand Thapar and Brothers, Ltd., they alone are directly affected by the strike. I am unable to agree. The managing agents are only interested in their commission out of the profits, whereas the plaintiff would be put to irreparable loss by the closure of the mine and, therefore, directly affected. The managing agents are only indirectly affected in so far as with the loss of profits, there would be a diminution in the amount of their commission.
The next point canvassed before me in this appeal is that workmen and their union are immune u/s 18(1) of the Trade Unions Act, 1926, from any civil liability and in consequence, the suit being not maintainable, no temporary injunction could be granted to restrain the normal trade union activities. The fact that strike is illegal, is immaterial in this connection. In order to judge the validity of this argument, it is necessary to set out the provisions of section 18(1). It reads :--
"No suit or other legal proceeding shall be maintainable in any Civil Court against any registered Trade Union or any officer or member thereof in respect of any act done in contemplation or furtnerance of a trade dispute to which a member of the Trade Union is a party on the ground only that such act induces some other person to break a contract of employment, or that it is in interference with the trade, business or employment of some other person or with the right of some other person to dispose of his capital or of his labour as he wills."
The section is based on section 3(1) of the English Trade Disputes Act, 1906 (6 Edw. 7, c. 47).
The law on the subject is clear. There is a long catena of English authorities stating that, the immunity can be had only if one or more persons acting on their own behalf or on behalf of a trade union, or a branch of a trade union, in contemplation or furtherance of a trade dispute, attend at or near a place where a person resides or works or carries on business, or happens to be, if they so attend merely for the purpose of "peacefully" obtaining or, communicating information, or of "peacefully persuading" any person to abstain from working. Thus, no wrong, civil or criminal is committed by stationing pickets who cause no violence, obstruction, or nuisance or is holding orderly and peaceful meetings and or demonstrations in furtherance of a trade dispute In other words, if an act is done by a person or persons in contemplation or furtherance of a trade dispute, otherwise than in contemplation or furtherance of a strike or lock-out declared illegal by the Industrial Disputes Act, 1947, it is not actionable u/s 18 of the Trade Unions Act, 1926, on the ground "only" that it induces some other person to break a contract of employment, or that it is an interference with the trade, business or employment of some other person, or with the right of some other person to dispose of his capital or of his labour as he wills.
It is settled both on principle and authority, that if there be threats or violence, this section, which is in pari materia with section 3(1) of the English Act, gives no protection, for there is then some other grounds of action besides the ground that "it induces some other person to break a contract" and so forth. Thus, where inducement is accompanied by illegal means, such as violence, intimidation, coercion, obstruction, molestation, etc., neither the registered trade union nor its branch or its officials, can plead section 3(1) of the English Act and a fortiori section 18(1) of the Trade Unions Act, 1926 as barring the jurisdiction of a civil Court from entertaining an action in damages for or an action to prevent the commission of such actionable wrongs.
11 By "illegal means" are meant acts in the nature of civil or criminal wrongs regardless of motive. (Allen v. Flood 1898,AC 1, per Lord Watson at p. 96. The intimidation or coercion may be physical or moral. Thus, workmen may be deterred by threats of physical injury and of annoyance, or they may be frightened by creation of violent disturbances. The expressions, "intimidation" and "coercion" have never been satisfactorily defined but it appears that their effect must be such as to deny the person influenced any freedom of choice of action. (For a fuller discussion, see, 37 Halsbury''s laws of England, IIIrd Ed. pp. 113-116, 126 and pp. 128-129 ). (See also, Mogul Steamship Company v. Mc. Gregor, Gow & Company (1889) 23 QBD 598 CA; Lyons (J) & Sons v. Wilkins (1896) 1 Ch. 811 CA; Quiup v. Leathem (1901) AC 495; Conway v. Wade (1909) AC 506; Hodges v. Webb (1920) 2 Ch 70; Davies v. Thomas (1920) 2 Ch 189; Ware & De Freville v. Motor Trade Association (1921)3 KB 40 CA; and Sorrell v. Smith (1925) AC 700; per Lord Buckmaster, at p. 747).
In Rookes v. Barnard (1964) 1 All ER 3 7 (HL), the House of Lords has recently interpreted section 3(1) of the English Act, as conferring no immunity where there were threats of violence. All the learned law lords accepted the view of Lord Loreburn. L.C, in Conway v. Wade (supra) that no protection could be given by this section where the wrong or intimidation done to an employer or his employees had the effect of inducing a breach of a service contract.
Likewise, the Indian Courts have so interpreted section 18 of the Trade Unions Act, 1926, in the same sense. The matter was tersely stated by Grille, J.C, in R.S Ruikar v. Emperor 20 MPLC 204 : 31 NLR 318 in these words :--
"Trade Unions have the right to declare strikes and to do certain acts in furtherance of trade disputes. They are not liable civilly for such acts or criminally for conspiracy for such acts as the Trade Unions Act permits, but there is nothing in that Act which, apart from immunity from criminal conspiracy, allows immunity from any Criminal offences."
So also, the Sind Judicial Commissioner''s Court stated in Dalmia Cement Ltd. v. Naraindas AIR 1939 Sind 256 that section 18 does not afford immunity to a trade union or to an officer thereof for an act of deliberate trespass. In recent years, the great industrial unrest in the major industrial undertakings of the State of West Bengal, threatened to paralyse the entire national economy. The Calcutta High Court in a Special Bench of five Judges had occasion to deal with the problem of gheraos. In that connection, their Lordships have accepted the decision of the House of Lords in Rookes v. Barnard (supra) for determining the nature of immunity conferred on a registered trade union. The Court was of the view that if there be threats of violence this section has no application, adopting the dictum of Grille J.C, in R.S Ruikar v. Emperor (supra) as laying down the correct law. The decision in Rohtas Industries Staff Union and Others Vs. State of Bihar and Others, relied upon, turned on its own facts. There, in an industrial adjudication u/s 10-A of the Industrial Disputes Act, the arbitrators awarded compensation to the employers against the workmen participating in the strike for the losses occasioned thereby, without appreciating that a claim for such compensation was not an "industrial dispute" within section 2(k) and without determining whether the workmen had the predominant object of causing loss to their employers or for the betterment of their conditions of service. It appears that the reason for the strike was the non-implementation of Jee Jee Bhoy''s award with regard to the wages of casual workmen and also non-implementation of a settlement between the union and the employer for better wage conditions. In that context, the Patna High Court observed that the question whether the strike was legal or illegal u/s 24(1) of the Industrial Disputes Act had no bearing on the question of immunity furnished by section 18 of the Trade Unions Act.
That brings me to the next argument based on Art. 19(1)(a),(b) and (c) of the Constitution. Now, so far as the defendants 17 and 18 are concerned, they not being citizens, have no fandamental rights. The State Trading Corporation of India Ltd. and Others Vs. The Commercial Tax Officer, Visakhapatnam and Others, and Tata Engineering and Locomotive Co. Ltd. Vs. State of Bihar and Others, .The other defendants, however, stand on a different footing and are entitled to take advantage of the protection of the fundamental lights, if any, under Art. 19(1)(a)to(c) of the Constitution. Normally, strike in a public utility service without giving to the employer a notice of the strike as required by section 21(1)(a) or during the pendency of a conciliation proceeding in contravention of section 22(1)(d), amounts to an "illegal strike." Similarly, when the Government makes a reference u/s 10(1) of the Industrial Disputes Act, for settlement or adjudication, of any strike or lockout in connection with such dispute which is going on, the Government may by an order u/s 10(3) prohibit the continuance of such strike or lockout after the date of reference. The Central Government have by their order dated 26th March 1969, prohibited the continuance of the strike in question inasmuch as the Industrial dispute that has arisen between the employers in relation to the management of the North Chirimiri colliery and their workmen has been referred to the Industrial Tribunal, Jabalpur for adjudication. Strike is a legitimate or sometimes un-avoidable weapon in the hands of labour and may be resorted to for securing demands of workmen to improve their conditions. But the justifiability of the strike has to be viewed from the stand point of fairness and reasonableness of the demands made by the workmen and not merely from the stand point of their exhausting all other legitimate means open to them for getting the demands fulfilled. Strike may be both legal and justified. But a strike which is illegal cannot be justified.
We are not here concerned with the question whether the strike in this particular case was justified or not. All that the plaintiff company wants is the prevention by a temporary injunction acts of violence, intimidation and coercion by the trade union officials, which has not only paralysed the normal working of its mines but has created terror, alarm and unrest among the workers and the members of its staff. From this point of view, the Court undoubtedly has the power to grant a temporary injunction restraining the commission of such acts. Injunction may be issued by a Court against uttering words which have the effect of force and incite acts of violence. [Staub v. City of Baxtey (1957) 355 US 313] and Near v. Minnesota (1930) 283 US 697.
Even otherwise, fundamental rights have their own limitations. The liberty of an individual to do as he pleases, is not absolute. It must yield to the common good, Absolute or unrestricted individual rights do not, and cannot, exist in any modern state. There is no protection of the rights themselves, unless there is a measure of control and regulation of the rights of each individual in the interests of all. Whenever such a conflict comes before a Court, it is its duty to harmonise the exercise of competing rights. The share-holders and the plaintiff-company have their right to possess the colliery and to enjoy all the benefits which are ordinarily attached to the owner-ship of property under Art. 19(1)(f). They also have the fundamental rights under Art. 19(1)(g) to carry on their trade or business without any let or hindrance. As against this, the workmen have their fundamental rights under Art. 19(1)(a),(b) and (c). The workmen cannot in exercise of the said rights, have any such thing as absolute or uncontrolled liberty to commit acts of vandalism or of physical violence or intimidation which would hamper the rights of the owners of the colliery. Freedom of expression means the right to express one''s convictions and opinion freely i.e., the liberty to express or propogate one''s own views or the views of others through any medium. But the law does not allow any person to call another person by any offensive or derisive name or to threaten, annoy or offend that person while he is lawfully engaged in his avocation. Similarly, no one has a fundamental right to hold meetings of any kind on private property or to trespass upon such property.
In The Railway Board v. Niranjan Singh 1969 FLR 300 (SC), their Lordships, in dealing with rights of workmen to hold meetings in connection with a strike, stated :--
"There is no fundamental right for anyone to hold meetings in government premises. The fact that those who work in a public office can go there does not confer on them the right of holding a meeting at that office even if it be the most convenient place to do so.
No doubt the freedoms guaranteed under our Constitution are very valuable freedoms and the Supreme Court would resist abridging the ambit of those freedoms except to the extent permitted by the Constitution. The fact that the citizens of this country have freedom of speech, freedom to assemble peaceably and freedom to form associations or unions does not mean that they can exercise those freedoms in whatever place they please. The exercise of those freedoms will come to an end as soon as the right of someone else to hold his property intervenes. Such a limitation is inherent in the exercise of those rights. The validity of that limitation is not to be judged by the tests prescribed by sub-articles (2) and (3) of Art. 19 "
The principles enunciated therein would equally apply to a property of a private individual who happens to be the employer of an industrial undertaking. So far as the defendants 4,6,7,8,11,12,14, and 15 are concerned, they are either persons who are not in employment or are dismissed employees and have, therefore, no right to remain in the mines area except and in connection with their normal trade union activities. As regards the rest, they being workmen have not only a right to remain in the labour colony but also to move about from the residential quarters to their respective places of work and elsewhere in course of their normal life and other activities. But for reasons already stated, they, along with the other defendants, must be prevented by an injunction from committing any acts of violence within the mines area. The dicision of their Lordships in Niranjan Singh''s case is sufficient to dispose of the argument based on Art. 19(1)(a)to(c) of the Constitution and nothing further need be stated.
Lastly, the Learned Counsel for the appellants complains that the nature of injunction granted was wholly un-warranted by the terms of Order 39, Rule 1 of the C.P.C., and the order must, therefore, be struck down. In his reply, Learned Counsel for the respondent, while contending that in the circumstances in which the plaintiff was faced, it was clearly entitled to a temporary injunction has with his usual fairness, frankly conceded that the order granting injunction is somewhat too wide and needs to be suitably modified. According to him the plaintiff never wanted any restraint to be placed on the normal trade union activities or on the right of the workmen to reside in the mines area. He urges that all that the plaintiff wanted was the prevention of criminal acts of trespass, rowdism, intimidation or violence on the part of the trade union officials. I must confess, the learned Judge has not cared to read the application under Order 39, Rule 1; otherwise, he would not have granted an injunction outside the terms prayed for. He has apparently translated the "prayer clause" from the application in Hindi and adopted it as his order granting injunction, without appreciating that the prayer clause has necessarily to be read in the context of the averments made in the application itself So read, the prayer was only for the prevention of unlawful activities on the part of the defendants such as already indicated. I, accordingly, direct that the learned Judge will now modify the terms of his order, with advertance to the observations made by me.
Subject to the above observations, the appeal fails and is dismissed with costs. Counsel''s fee Rs. 150, if certified.