2000 Supreme(Bom) 870
IN THE HIGH COURT OF BOMBAY
F.I. Rebello, J.
Bharat Petroleum Corporation Limited.... Plaintiffs.
Versus
Petroleum Employees’ Union.... Defendants.
Notice of Motion No. 3148 of 2000 in Suit No. 4498 of 2000, decided on 15-11-2000.
Advocates appeared :
J.P. Cama i/by Crawford Bayley Co., for the plaintiffs.
S.S. Pakale, for defendant Nos. 1 and 2.
Headnote:Sections 22 and 23-Specific Relief Act, 1963, Sections 36 and 38Civil Procedure Code, 1908, Section 9, Order XXXIX, Rules 1 and 2-Constitution of India, 1950, Article 19(1), (b), (c)-Interim injunction against threatened strike-Conciliation proceeding pending-Observing that strike and lockout are essential element-Collective bargaining power of both sides-There can not be any equality between bargaining power of management and workers-The workers are stronger due to their larger and collective bargaining power.-A complete denial or severe restriction of the freedom to strike in any country would indicate that the pretence of freedom of organisation exists only on paper. Under the Indian Constitution, Article 19(1)(c) confers a right to form associations or Unions. This right to form associations or unions is subject to reasonable restrictions that may be imposed by law. Our Constitution guarantees the right to form association. Our Constitution guarantees the right to from associations, not for gregarious pleasure, but to flight effectively for the redresses of grievances. It is no doubt true that the strike is bound to affect either production or supply of petroleum products. In the instant case, the plaintiffs have come forward by this suit to ventilate their own grievances as the owner of the establishment wherein the members of the defendants are employed. If there is an obstruction to supply of essential supplies that cannot be a ground to restrain the defendants, from asking its members to strike work as the dispute of the defendants is not against the public at large but against the plaintiffs as already set out earlier which is purely a commercial undertaking interested in its profits. The Notice of Motion in so far as the grant of injunction as set out in prayer Clauses (a)(l) would not be maintainable and would therefore require to be dismissed on the ground that there is no cause of action in the plaintiffs to maintain a suit on that count.
Sections 22, 23 and 26-Trade Unions Act, 1926, Sections 8 and 18Constitution of India Act, 1950, Articles la(1)(b), (c)-Right to strike-Threat for illegal strike-Management seeking injunction-Conciliation already pending-Held-Strike is not a fundamental right-A peaceful demonstration is well within provisions of Article 19(1)(b) of constitution-Strike is a legitimate weapon-No relief under specific Relief can be granted-Only compensation can .be allowed against damage.-The suit filed by the plaintiffs for reinstatement would not be maintainable in a Civil Court as the main relief prayed for if granted would amount to specific performance of a contract of service. The contract could not be performed and answer would be by way of damages. It is, therefore, clear that the Civil Court would not specifically enforce a contract of employment.
JUDGMENT - F.I. REBELLO, J.:---Does the working class of this country have the right to strike in furtherance of their demands when matters are in conciliation before a conciliation Officer under the Industrial Disputes Act, 1947 ? Does such a strike which prima facie is deemed to be illegal by virtue of section 22 or section 23 of the Industrial Disputes Act confer a right on an employer to move a Civil Court for an injunction in exercise of its jurisdiction under section 9 of the Code of Civil Procedure, to restrain either the Union or its members from going on strike ? The Plaintiffs, a company under the control of Government of India says 'YES'. If no injunction is granted, it is contended apart from production losses it will be the public who will have to suffer. Not long ago another Government at another point of time had pleaded before the Apex Court that emergency was declared in public interest and in view of that the fundamental rights of citizen as enshrined in Part III of the Constitution of India stood suspended. That argument had then found favour with the Apex Court. The written Constitution the fountain head of liberty is once again being asked to make way, for what the plaintiffs contend is in the larger public interest. It is said that liberty lies in the hearts and minds of men. If it dies there, no Constitution, no Court, no Law can save it. No Constitution , no law, no Court can even do much to help it. If that argument of the plaintiffs Company is accepted. It will not be difficult for the company to further argue that even the right to a peaceful demonstration can be negated in larger public interest. Courts are the upholders of constitutional rights and defendants of constitutional values. Will a Court in such circumstances grant an injunction merely because there are aberrations on occasions. Will the cherished right of liberty and democracy be curtailed merely because of these occasional aberrations. And if the arguments of the plaintiffs are accepted and the injunction is granted, how will the Court enforce such an injunction which will require continuous supervision. Can a workman who is unwilling to work be forced to work ? How is the Court to enforce such an injunction ? The only possible answer available can be to exercise the contempt jurisdiction and send the recalcitrant workman to jail. Are the plaintiffs calling on the Court to adopt such a course ?
The employer a Company under the control of the Government of India has filed this suit in a Civil Court to restrain the defendants Trade Unions, representing the workers working with the plaintiffs from going on strike and for other reliefs as sought for in the plaint. It is the case of the plaintiff that they are incorporated under the Companies Act, 1956 and are carrying on business of refining and marketing petroleum products. The plaintiffs besides being a Government Company are also a public utility enterprises. The plaintiffs have their registered office at Mumbai at the address shown in the plaint in the cause title and have other offices and establishments all over India including several places in Maharashtra. Defendant Nos. 1 and 2 are registered trade unions having as members large number of workers employed with the plaintiffs. Plaintiffs from time to time have entered into long term settlement with their workmen. The last such settlement which was entered into on 1st June, 1993 expired on 31st May, 1998. On the earlier long term settlement coming to an end and first charter of demands being presented the unions having as members, workmen, employed by the plaintiffs were invited for negotiations for entering into the next long terms settlement. In order, however, to have effective dialogue and practicable and meaningful negotiations in the All India Meeting for the Long Term Settlement, the plaintiffs issued notices to the unions having a minimum of 15% membership of the marketing locations/establishments taken together on all
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