The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 1370 OF 2022 Gobardhan Patra Petitioner Mr. Tusar Kumar Mishra, Advocate …. Suvendu Kumar Das Mangaraj & Ors. …. Opp. Parties -versus- Mr. Sougat Dash, Advocate (For Opp. Party Nos.1 to 11) Mr. Narendra Kishore Mishra, Senior Advocate being assisted by Mr. Ajay Kumar Roy, Advocate (For Opp. Party No.13) CORAM: JUSTICE K.R. MOHAPATRA Order No. ORDER 22.03.2023 6. 1. 2. This matter is taken up through hybrid mode. Judgment dated 28th November, 2022 (Annexure-5) passed in FAO No. 56 of 2022 is under challenge in this CMP, whereby learned District Judge, Balasore allowing the appeal set aside the order dated 5th August, 2022 (Annexure-4) passed by learned 1st Additional Senior Civil Judge, Balasore in I.A. No.
Legal Reasoning
657 of 2021 (arising out of C.S. No.1936 of 2021) allowing an application filed by the Plaintiff-Petitioner under Order XXXIX Rules 1 and 2 C.P.C. on contest. 3. Mr. Mishra, learned counsel submits that the Plaintiff- Petitioner filed C.S. No.1936 of 2021 with a prayer to pass a decree declaring Defendant Nos.1 to 11, who claimed to have been elected in the general body meeting held on 14th October, 2021 to be invalid, unjust and illegal. He further prayed for a decree to restrain the Defendant No.13-Management not to Page 1 of 9 // 2 // recognize Defendant Nos.1 to 11 as office bearer of Charminar Asbestos Shramik Sangha (for brevity ‘the Union’). He also prayed for a decree of permanent injunction to restrain the Defendants from making any unholy claim in any manner. Along with the plaint, the Plaintiff filed a petition under Order XXXIX Rules 1 and 2 C.P.C. (I.A. No. 657 of 2021) praying inter alia to restrain the Defendant No.13-Management to recognize or interact with the Defendant Nos.1 to 11, who claimed to be the office bearers of the Union in any manner till disposal of the suit and also prayed to restrain the Opposite Party Nos.1 to 11 not to represent themselves as office bearers of the Union in any public platform or before any public authority to avail any benefit till disposal of the suit. . 4.
Legal Reasoning
It is submitted by Mr. Mishra, learned counsel that the Petitioner is one of the Vice-Presidents of the Union from the date of its inception. Without conducting any election as per by- law, the Opposite Party Nos.1 to 11 declared themselves to be the office bearers of the Union. As per Rule 5(b) of the by-law, an election of the office bearers of the Union shall only be held in every two years through secret ballot. Admittedly, no election has been made through secret ballot. There is no other mode provided in the by-law to hold the election of the office bearers. As such, the Opposite Party Nos.1 to 11 cannot be recognized as the office bearers of the Union. He further submits that membership of the Petitioner is stated to have been removed on the allegation that he has not paid the subscription fee for more than one year. No notice whatsoever was issued to the Petitioner Page 2 of 9 // 3 // before alleged striking off his name from the membership of the Union. The so-called order of removal was also not communicated to the Petitioner at any point of time. He also made a lengthy argument with regard to irregularities of holding the election. Learned trial Court considering the matter in its proper prospective allowed the application under Order XXXIX Rules 1 and 2 C.P.C. in toto vide order dated 5th August, 2021 (Annexure-4). The Opposite Party Nos.1 to 11 being aggrieved by the said order filed FAO No. 56 of 2022. Although learned Appellate Court held that the Petitioner has a prima facie case but held that other two of the ingredients for grant of an order of temporary injunction are not satisfied in favour of the Petitioner. Accordingly, learned Appellate Court set aside the order dated 5th August, 2022 passed by trial Court under learned Anenxure-4. He further submits that learned Appellate Court while adjudicating the matter has admitted that the election was not held as per rule provided under by-law but held that had there been an election, the same should have been done through secret ballot. Observing that in the instant case, there was no election of office bearers and the office bearers were selected unanimously in the general body meeting held on 14th October, 2021, wherein it is held that the Petitioner is not entitled to any relief of injunction. It is further held that balance of convenience leans in favour of Opposite Party Nos.1 to 11 holding that if there will be no elected body to represent the members of the Union, there will be a chaos. It is further held that if injunction is granted, it will be an irreparable loss of the elected body of the Page 3 of 9 // 4 // Union. As such, the impugned order under Annexure-5 has been passed. He, therefore, prays for setting aside the order under Annexure-5 and to restore the order passed by learned trial Court under Annexure-4. 5. Mr. Dash, learned counsel for Opposite Party Nos. 1 to 11 vehemently objected to the same. Referring to the objection filed by Defendants-Opposite Party Nos.1 to 11, he submits that the situation under which the Opposite Parties were elected as office bearers has been clearly discussed in para-5 of the objection. It is his submission that the Petitioner did not pay the subscription fee for more than one year consecutively without any reason. Thus, the Petitioner is automatically ceased to be a member of the Union as per Rule 4(f) of the by-laws. However, in the executive body meeting held on 8th September, 2021, it was decided to place the matter before General Body with regard to continuance of membership of the Petitioner. The General Body Meeting held on 3rd October, 2021 took a decision to cease his membership as he has not paid the subscription fee for more than one year continuously. The President of the Union, namely, Sri Ullasha Swain had tendered his resignation on 1st September, 2021, which was accepted in the General Body Meeting held on 3rd October, 2021. On the said date, Sri Bijaya Kumar Patra and Sisir Kumar Giri, who were Vice-President and Working President respectively, tendered their resignation. Thus, all the senior members present in the general body meeting suggested that if rest of the office bearers of the Executive Committee resign voluntarily, then there can be a fresh election. Page 4 of 9 // 5 // Accordingly, rest of the office bearers resigned voluntarily and it was unanimously resolved in the said General Body meeting to hold an election of the Union on 14th October, 2021. Since there was no contest, the Opposite Party Nos.1 to 11 along with 24 other members of the Executive Committee were elected uncontested. Thus, there is no illegality in the election process itself. However, the contention raised in the suit with regard to the validity of election can only be adjudicated in the suit itself by receiving evidence from both sides. If the elected body is restrained from performing their statutory duties, the workers in general and the elected body in particular will suffer irreparable loss. Thus, the balance of convenience also leans in favour of Opposite Party Nos.1 to 11 as they are elected body of the Union. Hence, he submits that learned Appellate Court has committed no error in allowing the appeal and reversing the order passed by learned trial Court under Annexure-4. 6. Mr. Mishra, learned Senior Advocate appearing for Opposite Party No.13 submits that since it is an inter se dispute between the Petitioner and Opposite Party Nos. 1 to 11, he has nothing to submit on merit of the case. But, in order to assist the Court for proper adjudication of the suit, he submits that Rules 4(c) and 5(c) of the by-law are quite clear with regard to removal/cessation of membership of the Union, which provide that before removal of membership, a member should be given an opportunity of hearing and the Executive Committee is only empowered to remove any erring member. In the instant case, the General Body is stated to have taken such decision on 3rd Page 5 of 9 // 6 // October, 2021. He further submits that Rule 5(b) of the by-law clearly provides that the election of a Union can only be held through secret ballot by giving one week notice. In the instant case, materials on record do not reveal that there was any notice of election. Further, admittedly no election has been made through secret ballot. He, however, submits that the same is a matter of consideration in the suit itself. He also relied upon the decision in the case of Babu Verghese and others –v- Bar Council of Kerala and others, reported (1999) 3 SCC 422 in which it is held that a statutory authority has to perform his duties in accordance with the statute itself and not otherwise. Thus, it is for the Court to consider as to whether the election of General Body of the Union has been made in accordance with the by-law or not. It is his submission that due to inter se dispute between the Petitioner and Opposite Party Nos.1 to 11, the Management-Opposite Party No.13 is the worst sufferer. It is not in a position to negotiate and take any decision for the
Decision
welfare of the workers. In view of the above, he submits that the matter may be considered in accordance with law. 7. Considering the rival contentions of the parties, this Court finds that there was no election through secret ballot as provided under Rule 5(b) of the by-law. The Opposite Party Nos.1 to 11 in their show cause to the petition under Order XXXIX Rules 1 and 2 C.P.C. have stated the circumstances under which the election was held. It reveals from the objection that Sri Ullas Swain, the erstwhile President of the Union tendered his resignation on 1st September, 2021, which was Page 6 of 9 // 7 // accepted in the General Body meeting held on 3rd October, 2021. On that day, Shri Bijaya Kumar Patra and Sisir Kumar Giri, who were Vice-President and Working President respectively, also tendered their resignation. Thus, all the senior members of the Union present in the meeting suggested that if all the office bearers tender their resignation voluntarily, there may be a fresh election of the office bearers. Accordingly, all the office bearers tendered their resignation and it was decided that the election of office bearers of the Union will be held on 14th October, 2021. As there was no contest, the Opposite Party Nos. 1 to 11 were declared elected uncontested. Prima facie it appears that there was no secret ballot as required under by-law. But, it appears that when there is contest to different posts of the office bearers of the Executive Committee of the Union, Rule 5(b) of the by- law shall be applicable. It may not be applicable when there is no contest to any post of the Executive Committee of the Union. Neither there is any provision nor any prohibition in the by-law to declare an office bearer uncontested. It further appears that membership of the Petitioner was ceased due to the alleged non- payment of subscription fee for about one year. There is no material on record to show that any notice whatsoever was served on the Petitioner before removal of his membership. 8. Mr. Dash, learned counsel for Opposite Party Nos.1 to 12 submits that if a member does not pay any subscription fee for a consecutive period of three months without any valid reason, his membership will be ceased automatically. But, in the instant case, it is alleged that the Petitioner had not paid the Page 7 of 9 // 8 // subscription fee for more than one year. Rules 4(c) and 5(c) of the By-law provide procedure for removal of membership. But, said provisions may not applicable to the case at hand as those relate to removal of membership on the ground of any misconduct. However, it is a matter to be considered in the suit itself. However, the matter of removal of membership of the Petitioner was placed before the Executive Committee on 3rd September, 2021, where it was decided to place the matter before the General Body. On 3rd September, 2021, the General Body meeting was held and it was resolved therein to remove the membership of the Petitioner. It is alleged by Mr. Mishra, learned counsel for the Petitioner that no notice whatsoever for removal of his membership has ever been served on him. The same is also a matter of consideration in the suit itself. But, fact remains that the membership of the Petitioner has been ceased. It further appears that the Opposite Party Nos.1 to 11 were elected uncontested on 14th October, 2021. The legality and validity of such election can only be gone into in the suit itself. The Opposite Party Nos.1 to 11 being the elected body should not be restrained to perform their duties and responsibilities as provided under by-law without any justifiable reason. The Opposite Party Nos.1 to 11 being elected uncontested are representing the members of the said Union. Thus, the balance of convenience leans in favour of Opposite Party Nos.1 to 11. Further, none else except the Petitioner has raised objection to the election as yet. It also appears from the objection of Opposite Party Nos.1 to 11 that they have also made an endeavour to Page 8 of 9 // 9 // negotiate with the management-Opposite Party No.13 on demand of the Union. Thus, at this stage, if the Opposite Party Nos.1 to 11 are restrained from functioning as office bearers of the Union, the workers at large and Opposite Party Nos.1 to 11 in particular will suffer irreparable loss. Although both the Courts found prima facie case in favour of the Petitioner, but learned Appellate Court has rightly held that balance of convenience leans in favour of Opposite Party Nos.1 to 11 and they will suffer irreparable loss, if any order of restraint is passed against them. 9. In view of the discussion made herein above, this Court finds that learned Appellate Court is justified in reversing the order of injunction under Annexure-4. Accordingly, the CMP being devoid of any merit stands dismissed. 10. Taking into consideration the nature of dispute involved in the suit, learned trial court should make an endeavour for early disposal of the same in accordance with law. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Page 9 of 9