Rane Brake Linings Employees Union (Regn. No. MDS/461) v. State of Tamil Nadu

W.P. No. 30300 of 2007 filed under Article 226 of the Constitution ofIndia for the issuance of writ of Declaration declaring that theMemorandum of Settlement dated 18.5.2007 entered into between therespondents 3 and 7 to 14 and converted into a settlement under Section 12(3) of the Industrial Disputes Act, 1947 through the second respondent, asvoid and unconstitutional.For Petitioner: Mr. R. Yashod Varadhan, SC for Mr. M. RamamoorthyFor RR1 & 2: Mrs. Bhavani Subbaroyan, AGPFor RR3 to 6: Mr. A.L. Somayaji, SC M/s Gupta & RaviFor R7: Mr. V. Prakash (Party in person)For RR8 to 14: Mr. K. SudalaikannuC.R.P. Nos. 1859 and 1860 of 2007:Rane Brake Linings Employees Union(Regn. No. MDS/461)Rep. By its Vice President P. VeeraraghavanNo. 30, II Main Road, Industrial EstateAmbattur, Chennai – 58.. Petitioner in both C.R.Ps./Appellant inCMA. 20 & 21 of 2006/ Petitioner Vs.1.G. Jayapalan2.The Management of M/s Rane Brake Linings Limitedrep. By its Chairman and Managing DirectorNo. 132 Cathedral RoadChennai3. The PresidentRane Brake Linings Employees UnionNo. 30, II Main Road,Industrial EstateAmbattur,Chennai – 58.. Respondents in both C.R.Ps./Respondents in CMA.20 & 21 of 2006/Respondents https://hcservices.ecourts.gov.in/hcservices/ Petitions filed under Article 227 of the Constitution of Indiaseeking to set aside the Decree and Judgement dated 20.02.2007 in C.M.A.Nos. 20 and 21 of 2006 on the file of the Subordinate Judge, Poonamallee.For Petitioner : Mr. S.S. VasudevanFor R1 : Mr. R. Yashod Varadhan, SC for Mr. M. RamamoorthyFor RR2 and 3 : Mr. A.L. Somaiyaji, SC for M/s Gupta & RaviC O M M O N O R D E RHeard the learned counsel appearing for the parties and have perusedthe records.2.The writ petition and the Civil Revision Petitions were directedto be posted before this Court on the orders of the Honourable ChiefJustice and in view of the inter-connectivity between the cases, thematters were heard together.3.The writ petition has filed by a registered trade unionrepresented by its General Secretary by name, one G. Jayapalan. Theprayer in the writ petition is for the issuance of a writ of declarationdeclaring the memorandum of settlement dated 18.5.2007 entered intobetween the respondents 3 on the one side and respondents 7 to 14 on theother side under Section 12(3) of the Industrial Disputes Act, 1947 [forshort, 'I.D. Act'] before the second respondent as void andunconstitutional.4.It is claimed in the writ petition that the petitioner tradeunion is functioning in the third respondent factory at Ambattur. Inthat factory, out of 1318 workmen only for 918 workmen, Provident Fundcontributions have been deducted and only 266 of them are permanentworkmen. The rest of the workers were designated as Temporary OperatorTrainees and some of them are also retained as contract workers. Thesaid Jayapalan, who has sworn to the affidavit filed in support of thewrit petition, claims that he was elected as the Union's General Secretaryin the year 1991. He also stated that he was dismissed from service on14.10.2006 without any enquiry as he was resisting the unfair tradepractice indulged by the third respondent and he had also complained toauthorities about the violations of various labour laws by the Management.He had also claimed that since the settlement dated 04.12.2002 relating tothe service conditions of the workmen came to a close, during December2005, the Union placed a fresh charter of demands dated 01.12.2005.Since the third respondent was not willing to consider their demands, an https://hcservices.ecourts.gov.in/hcservices/ industrial dispute was raised on 07.9.2006 before the ConciliationOfficer. He also claims that by a no-confidence motion, he was removedfrom the post of General Secretary. 5.A suit also was filed before the Civil Court in O.S. No. 614 of2005 against the petitioner and in I.A. No. 2405 of 2005, it was sought torestrain the third respondent Management in dealing with the saidJayapalan posing as its General Secretary. He also claimed that theseventh respondent (Mr. V. Prakash), who is appearing as a party-in-person, cannot claim to be the President of the Trade Union as he isneither a member nor an Honorary member of the Trade Union so as to holdthe post of the President. Injunction sought for by the Unionrepresented by its Vice President owing allegiance to the seventhrespondent was dismissed by the Civil Court on 28.02.2006. As againstthe same, appeals were filed being C.M.A. Nos. 20 and 21 of 2006 beforethe Sub-Court, Poonamallee, and those appeals were also dismissed videjudgment dated 20.7.2007.6.In the meanwhile, in order to prevent the said Jayapalan fromfunctioning as the General Secretary, the eighth respondent filed a writpetition being W.P. No. 13342 of 2007 and the said writ petition was alsodismissed by this Court on 16.4.2007 holding that the subject matter ofthe writ petition was an internal dispute of a Trade Union and, therefore,the Court cannot entertain a writ petition between two groups which areclaiming to control the affairs of the petitioner Trade Union. 7.However, as against the said order, a writ appeal was filed beingW.A. No. 741 of 2007 and in that Writ Appeal, interim applications beingM.P. Nos. 1 and 2 of 2007 were taken out seeking for restraining the JointCommissioner of Labour, Chennai, from rejecting any settlement oragreement reached between the Union led by the seventh respondent and thethird respondent Management and for a further prayer that the secondrespondent should not entertain any application from the said Jayapalanpending disposal of the writ appeal. A Division Bench of this Court,by an order dated 09.5.2007, granted an interim injunction. Subsequently,the writ appeal itself came to be finally disposed of by a Division Benchvide judgment dated 13.6.2007. 8.The Division Bench confirmed the earlier order of this Court andpassed a final order, which reads as follows:"Having heard the parties, while we are not inclined tointerfere with the order passed by the learned single Judge,we allow the appellant to take appropriate step if afavourable order is passed in the Civil Revision Petition.The writ appeal stands disposed of with the above liberty.Consequently, connected M.Ps. Are closed. There will be noorder as to costs." https://hcservices.ecourts.gov.in/hcservices/

9.However, it is seen that during the pendency of that interimorder, a Failure Report dated 21.02.2007 was sent by the AssistantCommissioner of Labour to the first respondent State Government and thesame is pending consideration by the Government for an appropriatereference. 10.The learned counsel appearing for the petitioner submitted thatduring the pendency of the writ appeal (W.A. No. 741 of 2007), takingadvantage of the interim order, a Settlement under Section 12(3) of theI.D. Act came to be signed between the group led by the seventh respondentand the third respondent Management before the second respondentConciliation Officer on 18.5.2007 thereby foreclosing the dispute raisedby the Union on behalf of the petitioner Union. It is this Settlementdated 18.5.2007, which is sought to be impugned in the writ petition.11.Mr. R. Yashod Varadhan, learned Senior Counsel appearing for thepetitioner Union submitted that inasmuch as the group led by the seventhrespondent could not get any interim order in the Civil Court restrainingthe said Jayapalan from functioning as the General Secretary and also thewrit appeal was disposed on 13.6.2007 by a Division Bench relegating theparties to wait for the outcome of the decision of the Civil Court, thesettlement signed during the interregnum is wholly illegal and mala fideand cannot stand in the eye of law. Learned Senior Counsel also pointedout that the failure report by the second respondent was made on thedispute raised by the petitioner Union and the group led by the seventhrespondent cannot frustrate their efforts by entering into a settlementwhich is also against the interest of the workmen.12.Learned Senior Counsel also relied upon the judgment of theSupreme Court reported in 2005 (8) SCC 51 [Jaihind Roadways v.Maharashtra Rajya Mathadi Transport and General Kamgar Union and others]and submitted that if the settlement is tainted and unfair, that can bechallenged. He also sought to argue that the group led by Jayapalanrepresents the majority of the workmen and, therefore, the Settlementimpugned in the writ petition is a fraud on the provisions of the I.D. Actand it should not stand to continue even for a minute. He alsoquestioned the method adopted by the second respondent in arriving at thesettlement with the group led by the seventh respondent. 13.On behalf of the respondents 3 and 4, a counter affidavit dated18.10.2007 was filed refuting the allegations made against the Management.It was stated on behalf of the Management that after several rounds ofdiscussion, the settlement was signed between the workmen and theManagement on 18.5.2007 and this was largely due to the activeencouragement made by the second respondent Conciliation Officer. Thesaid Conciliation Officer had also verified the genuineness of the partiesrepresenting the workmen. In the absence of any Court order in favour of https://hcservices.ecourts.gov.in/hcservices/ the said Jayapalan, there was nothing wrong in the Management enteringinto a settlement with the group representing the majority of the workmen.The terms of the settlement had come into force with effect from 01.6.2007and out of 266 permanent workmen on whom the settlement was binding, 222workmen had received the benefits under the settlement and they have alsostarted giving production with the new norms prescribed. The otherallegation of unfair labour practice allegedly indulged by the thirdrespondent was also denied. 14.It was also seriously contended that with reference to thetermination of the said Jayapalan, a dispute has been raised and the sameis pending. It was stated that excepting for 35 workers, who refused toundertake to give the new production, all others are co-operating andimplementing the terms of the settlement. It was only those 35 workersowing allegiance to the said Jayapalan, are indulging in "Go-Slow"tactics. The terms of Settlement had provided substantial wage increaseand even in terms of wage arrears, all the workmen have received heftyamounts and, therefore, there was nothing wrong in the said settlement andthe writ petition is liable to be dismissed.15.Mr. A.L. Somayaji, learned Senior Counsel appearing for therespondents 3 to 6 submitted that even the judgment of the Supreme Courtin Jaihind Roadways case (cited supra) far from helping the case of thepetitioner goes against their contentions. He also submitted thatfirst of all, that a settlement not being bona fide will have to beestablished only before an appropriate labour forum and there must bestrong material to show that it lacked in bona fide or it was tainted orunfair. The petitioners have not made out any case for impugning thesettlement and the writ petition is a direct outcome of the inter-Unionrivalries between the said Jayapalan and the Union led by the seventhrespondent. 16.Mr. V. Prakash, the President of the Trade Union appearing inperson, submitted that he represents the majority of the workmen and thesettlement has been signed in the interest of the workmen. The saidJayapalan has no locus standi to file a writ petition and, much more, usethe name of the registered Trade Union as he ceased to be a member of theTrade Union after a no-confidence motion was passed by the majority of theworkmen. He had not challenged the no-confidence motion and hissubsequent removal from membership in any known forum. Further, he hadlost the following of the workmen and the present attempt made by him isthat of an agent provocateur and the writ petition is not in the interestof the workmen. The settlement had substantially advanced the interestof the workmen and any further litigation will only frustrate the workmenwho have been eagerly awaiting for a wage revision. https://hcservices.ecourts.gov.in/hcservices/

17.Mr. K. Sudalaikannu, learned counsel appearing for therespondents 8 to 14, who are all office bearers of the petitioner union(though impleaded only in their individual capacity) submitted thatworkmen were happy with the settlement and excepting for a handful ofpersons, the said Jayapalan does not represent any other interest. Healso submitted that to be a President of the Trade Union, it is not a pre-condition that the said person has to be a member or Honorary member atthe first instance. In fact, when the seventh respondent was elected asthe President of the trade union, he ipso facto becomes a honorary memberand this has been the practice in all the Trade Unions across the country.Any other contrary construction will lead to an upset situation and defeatthe very purpose of having an outsider to guide any trade union.18.Mrs. Bhavani Subbaroyan, learned Additional Government Pleader,on instructions, submitted that there was no illegality committed by theConciliation Officer and she had taken into account all the relevantfactors before appending her signature to the impugned Settlement dated18.5.2007. The general body meeting of the Union had authorised itsoffice bearers to sign the settlement. 19.Since much reliance was placed upon the interim orders passed bythe Civil Court and the said interim orders have become the subject matterof two Civil Revision Petitions before this Court being C.R.P. Nos. 1859and 1860 of 2007, with the consent of the parties and on the orders of theHonourable Chief Justice, they were also tagged along with the writpetition.20.The suit in O.S. No.614 of 2005 was filed before the Court ofDistrict Munsif, Ambattur, by Rane Brake Linings Employees' Unionrepresented by its Vide President Mr. P. Veeraraghavan (12th respondent inthe writ petition) for a prayer that G. Jayapalan (deponent to theaffidavit in the writ petition) be restrained from holding himself as theGeneral Secretary of the petitioner Union and also for a prayer that theManagement (respondents 3 and 4 in the writ petition) from in any mannerdealing with the said Jayapalan. Pending the suit, two interimapplications being I.A. Nos. 2404 and 2405 of 2005 were filed by the TradeUnion. While in the first application, an interim injunction was soughtfor restraining the said Jayapalan from holding himself as the GeneralSecretary of the Rane Brake Lining Employees' Union (Regd. No. MDS/461)pending the suit. In the second application, an injunction was soughtagainst the Management (Rane Brake Lining Company) and its President fromdealing with in any manner with the said Jayapalan. https://hcservices.ecourts.gov.in/hcservices/

21.The learned District Munsif, Ambattur, after hearing the parties,by an order dated 28.02.2006, held that there was no procedure for no-confidence motion contemplated in the bye-laws and, therefore, no motionwill have any effect and that the issue whether the said Jayapalan can berestrained from functioning can be decided only in a trial. Curiously, the learned District Munsif also held that the prayer in theinterim applications and in the main suit were the same and, therefore,the issues can be decided only in the trial. With reference to I.A.No. 2405 of 2005, on the basis of the undertaking given by the Managementthat all the privileges given to the office bearers would be extended toall, the application was closed.22.As against these two orders, two appeals being C.M.A. Nos. 20 and21 of 2006 were preferred before the Sub-Judge, Poonamallee. The firstappellate Court held that since no documents were produced by both sidesand hence, no issue can be decided and the issues would be decided afterexamination of all witnesses and on a perusal of the documents in the mainsuit. In terms of the balance of convenience, it held that any ordergranted will cause hardship to the Management and so saying, the appealswere dismissed by the orders dated 20.02.2007. It is as against thesetwo orders, the two Civil Revision Petitions have been filed.23.Mr. S. S. Vasudevan, learned counsel appearing for thepetitioners submitted that both the trial Court and the lower AppellateCourt have failed to take note of relevant circumstances of the caseincluding a prima facie opinion as well as the balance of convenience andhave miserably erred in not granting the injunction as prayed for. Thefinding of the trial Court that since the relief in the I.A. as well asthe suit are the same, there was no necessity to grant any interim order,cannot be accepted as that would amount to negating the power of the trialCourt from granting any interim orders in any suit pending trial. 24.With reference to the order passed by the lower Appellate Court,it went at a tangent by stating that there was no material placed forarriving at any conclusion. Such a finding failed to take note of thedocuments filed along with the Plaint. The petitioners have filed asmany as ten documents including the minutes of the meetings of the generalbody as well as bye-laws of the trade union. The specific averment wasthat 152 members of the trade union gave a requisition proposing a no-confidence motion against the first defendant and a general body meetingwas accordingly convened by the President on 27.11.2005 thereby givingmore than 15 days notice. It was also stated that in the meeting on27.11.2005 that out of 292 members, 152 members were present and havesigned the minutes even though the quoram was only 98 members. Thoughthe resolution could have been passed by show of hands, a secret ballotwas conducted in which 159 members voted in favour of the seventhrespondent and the decision to expel the first respondent was communicatedto him on 30.11.2005. Even the Registrar of Trade Unions was also https://hcservices.ecourts.gov.in/hcservices/ informed of the same. Till date, the first defendant never took anysteps to challenge the said action. This itself will show that therewas a prima facie case to hold against the first defendant and since theearlier settlement had expired as early as 2005 and the talks wereprolonged for more than one year, the workers have become restless astheir wages were not revised over a long time. 25.Therefore, both the trial Court as well as the lower AppellateCourt ought to have seen that enough materials were available to show thatthere were both prima facie case as well as balance of convenience ingranting injunction pending the suit. In fact, the finding of the trialCourt that if the prayer is similar both in the suit as well as in theinterim application and hence, no relief can be granted, is not valid.The lower Appellate Court was wrong in stating that there was no documentsfiled before the trial Court. On the contrary, while deciding theapplication under Order XXXIX Rule 1 CPC, the plaint documents have alwaysbeen taken note of for deciding the limited question of prima faciefinding. Therefore, it is a fit case where the orders of both theCourts have to be set aside and pending the suit, the Revision petitioners(plaintiff) are entitled for an order of injunction.26.Per contra, Mr. R. Yashod Varadan, learned Senior Counselrepresenting the first defendant (first respondent in the CRP) stated thatthough the office bearers of the trade union may not have anyconstitutional right or common law right, but yet the registered bodyfunctioning under its bye-laws approved by the authorities under therelevant Act, must confirm to its bye-laws and in the absence of anyprovision for no-confidence motion, the attempt by the petitioner indislodging the first defendant is illegal and the lower Court hadcorrectly refused the declaratory relief of injunction. 27.Mr. Manohar Gupta of M/s Gupta and Ravi, representing therespondents 2 and 3, submitted that it was purely an inter-union rivalryand, therefore, the factory management need not be dragged into in thecivil dispute. 28.In the absence of the first defendant challenging his removal bya meeting convened by a majority of members and the decision having beencommunicated to him, the trial Court ought to have granted the interimorder as prayed for by the petitioner. In fact, the finding that theprayer in the I.A. as well as in the suit is same and, therefore, no https://hcservices.ecourts.gov.in/hcservices/ relief can be granted, is contrary to the provisions of the SpecificRelief Act as well as Order XXXIX Rule 1 CPC. The trial Court did notapply its mind in deciding the question of grant of any interim order andmerely ipsi dixi stated that no relief can be granted in view of thesimilarity of the prayer in I.A. and the suit. 29.The lower appellate Court did not even look into the plaintdocuments to see whether any materials were available for grant of aninterim order and held that there was no documents filed. Theapproach of the lower Appellate Court is contrary to the records and ithad ignored the practice adopted in Courts that while arguing an interimapplication, reliance can be made upon the plaint documents. Though ina regular trial, a formal proof may be required, but in rendering adecision on an interim application, documents filed by both sides can belooked into to have a prima facie view and, therefore, the lower appellateCourt was wrong in rejecting the appeals filed by the petitioner.30.In this case, the general body Minutes were very much availableand was also filed as Document No. 6 along with the plaint. Once it isheld that the first defendant can be restrained from holding himself asGeneral Secretary pending the suit, the other application was onlyconsequential because the Management cannot be allowed to deal withstrangers posing as office bearers of a registered Trade Union. 31.In the light of the above, the order and decree dated 28.02.2006passed by the trial Court in I.A. Nos. 2405 and 2406 of 2006 as well asthe judgment and decree dated 20.02.2007 passed by the lower AppellateCourt in C.M.A. Nos. 20 and 21 of 2006 will stand set aside. An order ofinjunction in favour of the petitioner / plaintiff as prayed for in I.A.Nos. 2404 and 2405 of 2006 will stand issued pending disposal of the suitin O.S. No. 614 of 2005.32.Since the order in the C.R.P. Nos. 1859 and 1860 of 2007 has beengranted in favour of the petitioner, in the light of the judgment dated13.6.2007 passed by the Division Bench in W.A. No. 741 of 2007, there willbe no difficulty for the Rane Brake Lining Employees' Union (Regd. No.MDS/461) represented by its General Secretary R. Sundar from takingappropriate steps in furtherance of the order of the Civil Court. https://hcservices.ecourts.gov.in/hcservices/

33.With reference to the prayer in W.P. No. 30300 of 2007, thisCourt is unable to go into the validity of the settlement as thepetitioners have failed to prove any illegality or mala fide in arrivingat the settlement as indicated in the judgment of the Supreme Court inJaihind Roadways case (cited supra). The only forum open to them is toquestion the settlement before the appropriate forum. However, thegrievance of the petitioner is that on the failure report dated 21.02.2007sent by the second respondent Conciliation Officer, the first respondentGovernment had not taken any decision and only when the matter is referredfor adjudication, the question relating to fairness of the settlement canbe gone into before the adjudicating machinery. 34.However, Mr. A.L. Somayaji, learned Senior Counsel representingthe Management as well as Mr. V. Prakash appearing in person, submittedthat the failure report had become infructuous in the light of thesettlement dated 18.5.2007 entered into between the Trade Union and thethird respondent Management before the office of the second respondentConciliation Officer. Therefore, no reference can be made through anyadjudicating forum. This is a matter which the first respondent Statewill have to decide after applying its mind on the basis of relevantrecords. As long as there is a failure report sent to the Government,the first respondent State will have to take a decision in terms ofSection 10(1) of the I.D. Act. It is needless to state that whiledeciding the said issue, the first respondent State can also take intoaccount the subsequent developments including the arriving of thesettlement dated 18.5.2007 between the workers and the Management.Therefore, a direction is issued to the first respondent State to passappropriate orders in terms of the failure report dated 21.02.2007 sent bythe second respondent Conciliation Officer in reference No. Na. Ka.A/1555/06 within a period of four weeks from the date of receipt of acopy of this order in accordance with law. Depending upon the outcome ofthe order passed by the first respondent, it is open to the petitioner topursue appropriate action as it may deem fit in the circumstances of thecase.35.At the close of the arguments, Mr. M. Ramamoorthy, learnedcounsel appearing for the petitioner in the writ petition submitted thatonly a few workers have not been paid the revised wages as per thesettlement dated 18.5.2007 and there is a discrimination between the setof workers owing allegiance to the said G. Jayapalan and the other workersled by the seventh respondent. Therefore, he prayed this Court shouldissue appropriate directions to the third respondent Management to grantbenefits as provided in the settlement. However, such an issue does notarise for consideration in the present writ petition. https://hcservices.ecourts.gov.in/hcservices/

36.Mr. A.L. Somayaji, learned Senior Counsel appearing for the thirdrespondent Management submitted that the revision of wages in thesettlement dated 18.5.2007 is also linked with the revised work-norms andunless the workmen give undertakings that they will also observe the samework norms as per the settlement, the question of extending the benefitsof the revised wages will not arise in respect of them and, therefore,this Court need not grant any direction as sought for by the learnedcounsel for the petitioner. In view of the above, it is open to thoseworkmen, who have not got the revision of wages, to give appropriateundertakings and then get the terms of the settlement implementedregarding revision of wages.37.In the light of the above, W.P. No. 30300 of 2007 will standdismissed except for the direction to the first respondent State to passappropriate orders on the Failure Report dated 21.02.2007 sent by thesecond respondent within a period of four weeks. Civil Revision PetitionNos. 1859 and 1860 of 2007 will stand allowed and there shall be an orderof injunction as prayed for in I.A. Nos. 2404 and 2405 of 2005 in O.S. No.614 of 2005 filed by the petitioner / plaintiff. However, the partiesare allowed to bear their own costs. Connected Miscellaneous Petitionsstand closed.griSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1.SecretaryGovernment of Tamil NaduLabour and Employment DepartmentFort St. GeorgeChennai – 92.The Assistant Commissioner of Labour IIDepartment of Labour and Employment III Floor Kuralagam, Prakasam SalaiChennai – 108 https://hcservices.ecourts.gov.in/hcservices/

3. The Subordinate Judge, Poonamallee.4. The District Munsif cum Judicial magistrate, Ambattur.+1 cc to Mr.S.S.Vasudevan, Advocate Sr.No.4529.+1 cc to M/s.Gupta & Ravi, Advocate Sr.No.4674.+1 cc to Mr.K.Sudalaikannau, Advocate Sr.No.4528.+3 ccs to Mr.M.Ramamurthy, Advocate Sr.No.4818.+1 cc to The Government Pleader Sr.No.4786.ASM(CO)DCP/4.2W.P. Nos. 30300 of 2007 and C.R.P. Nos. 1859 and 1860 of 2007