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Indian Bank Vs. Federation of Indian Bank Employees Union and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Case NumberApplication No. 82 of 1981 in C.S. No. 13 of 1981
Reported in(1982)ILLJ123Mad
ActsIndustrial Disputes Act - Sections 2; Indian Trade Unions Act, 1926 - Sections 17 and 18; Industrial Law; Indian Criminal Law (Amendment) Act; Police Act; ;Code of Criminal Procedure (CrPC) , 1973; Banking Regulations Act, 1949 - Sections 36(A), 36(B) and 36(D); Indian Penal Code (IPC), 1860 - Sections 120A, 339, 340 and 341; Constitution of India - Article 19, 19(1), 19(2); Code of Civil Procedure (CPC), 1908 - Order 39, Rules 1, 2 and 2-A
AppellantIndian Bank
RespondentFederation of Indian Bank Employees Union and anr.
Cases ReferredIn Kameshar Prasad v. The State Of Bihar
labour and industrial - cause of action - section 2 of industrial disputes act, sections 17 and 18 of indian trade unions act, 1926 and sections 36 (a), 36 (b) and 36 (d) of banking regulations act, 1949 - unless it be shown that suit has been filed in court without jurisdiction or no cause of action survives for consideration or that dispute is not one of civil nature at instance of defendant suit may be dismissed - in case inspite of objections raised in application if plaintiff proceeds in maintaining suit and ultimately court holds that relief claimed in suit cannot be granted it would stand dismissed with employ costs. - - , by affixing them on the walls or in any other place in the buildings except in places which have been specifically allotted to the first defendant, and.....1. the plaintiff-indian bank, madras is the applicant herein and respondents 1 and 2 are the federation of the indian bank employees unions and the indian bank employees union. the reliefs claimed in this application are for passing an order of interim injunction restraining the respondents from holding any meeting or staging any demonstration or resorting to any other similar form of direct action within the premises of the plaintiff bank's central office or any of its offices and branches in tamil nadu, and within a radius 50 meters of these places and obstructing directly or other wise officers, employees, members of the public, etc., from entering such places and preventing the officers, employees, etc., from attending to their normal duties and putting up hand-bills, placards, flags.....

1. The plaintiff-Indian Bank, Madras is the applicant herein and respondents 1 and 2 are the Federation of the Indian Bank Employees Unions and the Indian Bank Employees Union. The reliefs claimed in this application are for passing an order of interim injunction restraining the respondents from holding any meeting or staging any demonstration or resorting to any other similar form of direct action within the premises of the plaintiff Bank's Central office or any of its offices and branches in Tamil Nadu, and within a radius 50 meters of these places and obstructing directly or other wise officers, employees, members of the public, etc., from entering such places and preventing the officers, employees, etc., from attending to their normal duties and putting up hand-bills, placards, flags etc., by affixing them on the walls or in any other place in the buildings except in places which have been specifically allotted to the first defendant, and affixing posters, hand-bills and the like on card-boards or other packings and placing them inside or out side the premises and for passing such other orders.

2. In the plaint it is stated that the employees are governed by a Code of Discipline and other regulations and the plaintiff management imposes a wage cut of day's salary on one or its sub-staff employed in Central Office for his deliberate failure to do the work allotted to him. Which resulted in both the defendants starting an agitation to annual the action taken by the Bank. On 20-12-1980 closing time, nearly 70 to 80 persons belonging to the union of defendants entered the room of the Deputy General Manager (Personal) and indulged in violent, unlawful and disorderly acts and during the entire period of there, he was humiliated, abused and intimidated and it is only after the arrival of the police after nearly 3 1/2 hours, they dispersed. However, as attempts to effects proper settlement failed the plaintiff-Bank took measures to safeguard its interests by suspension of 11 employees, among the persons who carried out the gherao pending disciplinary action, and 16 employees were transferred. Thereafter, defendants 1 and 2 called for a course of agitation like relay hunger strike, dharna as well as demonstrations in front of the Central Office and playcards containing abusive expressions and slogans and they were placed all over the premises belonging to the plaintiff. Paper posters with caricatures were pasted on the walls of the building belonging to the plaintiff. They have also indulged in preventing ingress and egress of members of staff, visitors, customers as well as the tenants of the plaintiff-Bank premises, On 2-1-1981 they organised an illegal strike. In spite of advice tendered by Regional Labour Commissioner (Central), Madras the agitation by the defendants is still going on. The Indian Bank Officers Association has objected to the manner in which the defendants are Conducting themselves and a trade union called Indian Bank Staff Union, having a substantial following has denounced all the acts being committed by the defendants. The plaintiff bank after having exhausted all available sources of making the defendants to see reasons; has no other alternative except to approach this court for protection under law, in order to carry on its normal activities in public interest and as enjoined by the statutes. It is a for this purpose, the suit is laid for a permanents injunction restraining defendants from committing the various acts which are mentioned in paragraph 17 of the plaint, and which are in the interlocutory application.

3. In the affidavit filed in support of the application, reference is also made to earlier orders passed by this Court in Application No. 4858 of the 1979 in C.S. No. 496 of 1979 as well as Application Nos., No, 4901 of 1979 and 38 of the 1980 in C.S. No. 655 of 1979 in respect of matters which pertain to banking institutions.

4. In the counter-affidavit, it is averred that the applicant has come to court with unclean hands and hence is not entitled to equitable relief because it has suppressed the main reason for the present agitation, it being that, it has failed to implement a solemn agreement arrived at on 16-12-1978 under S. 2(p) of the Industrial Disputes Act providing for promotion policy in the establishment. In spite of the settlement being binding between the parties, the management had deliberately avoided to implement the settlement, which according to he defendants, is the first time in India such a solemn agreement had been violated; and when not only for 1979 the plaintiff had wanted to recruit another 175 persons violating terms of the settlement, but even in 1980 adopting a vindictive attitude, they have not promoted any body from the clerical staff For preventing this high-handed action of the plaintiff - management. W.P. No. 5852 of 1980 was filed by a senior award staff, and this court had granted interim orders on 25-10-1980 and it was only on 6-1-1981 the orders was vacated partly. Therefore, it is claimed that it was the plaintiff-management which has been responsible for the agitational atmosphere in the Bank premises, and having thus created such a helpless situation, it has to thank, itself, and it cannot plead that the permissible and normal trade union activities carried on by defendants 1 and 2 should be curbed by an order of injunction by this Court. Reference is made to what was done by sub-staff employee is made to what was done by sub-staff employee G. Mani, who is working as a peon in the Personnel Department in the Central Office, and it is not the main cause for the prevailing agitational atmosphere in the Bank. On 14-8-1980 he was ordered by the Chief Officer (Personnel Department) to shift a table, but he politely and rightly pointed out that, that is a work that has to be done by the staff employee of the Care-Taker's Department and there was nothing wrong on what he has done. It is represented that wages cut was effected from the salary of the said Mani by an order displayed on the notice board, on the evening of 19-12-1980, which resulted in a mass deputation being taken to the Deputy General Manager (Personnel) on 20-12-1980 at 2.30 p.m. after Banking was closed, and he was asked to annual the illegal wage cut, and the demonstration was held without any violence, unlawful or indecent acts, and it went to on till 4-00 p.m. Police arrived and they were informed of what was taking place, and, therefore, they did not interfere. At about 4-30 p.m. the award staff left the office premises. The defendants have been always willing for a reasonable compromise, but the management was obstinate and proceeded to suspend 11 employees, and 15 others were transferred. The claim that the Deputy General Manager (Personnel) was abused or there was a gherao, is wholly false. The defendants had no other go, other than to hold relay hunger strike from 26-12-1980 'in accordance with the well-known political action in this country in this regard' and it is only after the advice of Regional Labour Commissioner, it was discontinued from 9-1-1981. Only 12 slogans were used in play-cards and they were never a fixed to walls, no any other disfiguration was carried out by defendants. What were pasted was done with self-adhesive types on glass-panels which have also been removed, but they never contained any abusive or derogatory words, as claimed by the plaintiff. They never prevented anybody coming out or entering the Central Office and it is never their intention to do such things Mr. Mani, the peon, filed W.P. No. 7009 of 1980 and secured an order of injunction in this Court on 23-12-1980 which has been made absolute on 13-1-1981. There was strike held on 2-1-1981 for one day. The members belonging to the union of defendants 1 and 2 have thus been agitating over the failure to implement the promotion policy and which had also deprived several members of the Award Staff of getting promotion, which would result in their getting three hundred rupees more per month by each of such promottees, and, therefore, the plaintiff coming forward with a claim as if it is because of the action taken against Mr. Mani, the defendant unions, are committing illegal acts, is baseless. They being established unions with a large following, are fully aware of the extent to which they have the right to agitate, and these activities which they are allowed to under Industrial enactments cannot be curbed by seeking for an order of injunction from this Court. As regards the agitation, with reference to suspension order and transfer orders, it has since been stopped, because of the concilliation proceedings pending before Regional Labour Commissioner (Central). But 'with reference to the failure of the management to implement the promotion policy the agitation is going on because, the lack of junior Management Cadre Officers is causing greater burden of work to be done on the award staff, besides which they are also aggrieved that they are not getting higher emoluments of Rs. 300 per mensem which they were to get if they were promoted as Junior Management Cadre Officers. 'Regarding holding of peaceful demonstration near the premises, they have secured the permission of the police authority on 25-12-1978. Hence the plaintiff is not entitled to the relief of injunction as prayed for'.

5. Mr. Govind Swaminathan, counsel for the plaintiff, contends, that the if it be established that what is being done by defendants 1 and 2 does not pertain to trade union activities, but constitute illegal acts or criminal acts, they cannot claim protection under Trade Union Act or rely upon any Industrial Law and in this case the various acts being committed by defendants 1 and 2, have no connection whatsoever with trade union activities, and hence the suit is maintainable and consequently, the application is also entertainable. For the disobedience committed by peon Mani, he deserves to be punished and the cut of day's salary in his case cannot be treated as an industrial dispute. Even, so remedies are to be sought for under Industrial Law and it would not enable defendants 1 and 2 to stage demonstration inside the premises of the plaintiff-Bank and disturb banking activities. He would stress on what has happened on 20th December 1980 which is nothing but a gherao, and if such disorderly and indecent acts are to be carried out, it would only result in encouraging illegal activities being carried out with immunity and bring disrepute to banking institutions.

6. To substantiate his contention that gherao and other illegal or violent activities would not and cannot be treated as part of trade union activities, he refers to the decision in Jay Engineering Works v. State of West Bengal, A.I.R. Cal. 407, wherein the special Bench has held that the word 'Gheroa' is a physical blockade of a target, either by encirclement intended to blockade the egress and ingress from and to a particular office, workshop, factory or even residence or forcible occupation and that the blockade may be complete or partial and is invariably accompanied by wrongful restraint, and or wrongful confinement and occasionally accompanied by assault, criminal tresspass, mischief to person and property, unlawful assembly and various other criminal offences. Some of the offences are cruel and inhuman like confinement in a small space without lights or fans and for long periods without food or communication with the outside world. The persons confined are beaten, humiliated by abuses and not allowed even in answer, call of nature and subjected to various other forms of torture, and are completely at he mercy of the beseigers. The object is to compel those who control industry to submit to the demands of the workers without recourse to the machinery provided for by law and in wanton disregard of it. In short to achieve their object, not by peaceful means but by violence. Such a gherao invariably involves the commission of offences.

7. Mr. Govind swaminathan refers extensively to several passages in this judgment to contend that when such violent acts are committed by workers, it would be out side trade union activities, and, therefore, protection cannot be claimed under Trade Union act 10 of 1926. The other passages to stress this point and which are relied upon by him are the following :

'That collective action may be by union of workers or by group of employees who are not a registered trade union. It may be a strike so defined, in the labour laws of it may not be so. Even when it is a strike so defined, it may be a lawful and peaceful strike or it may be unlawful and violent, involving criminal offence. Surrounding or encircling or besetting and thereby putting the subject of that act under restraint, may or may not be by committing an act of tresspass on property, but inevitably it results in wrongful restraint and even wrongful confinement, which are offences defined and punishable by Indian Penal Code.' ...... 'It may involve violation of the laws of the land and commission of cognizable offences under the Indian Penal Code and also other statutes.'

'Section 17 and 18 of Indian Trade Unions Act grant certain exemption to members of a trade union. But there is no exemption against either an agreement to commit an offence or intimidation, molestation or violence, where they amount to an offence. Members of a trade union may resort to a peaceful strike, that is to say, cessation of work with the common object of enforcing their claims. A concerted movement by workmen by gathering together either outside the industrial establishment or inside within the working hours is permissible, when it is peaceful and does not violate the provisions of law. But when such a gathering is unlawful or commits an offence, then the exemption is lost. Thus, where it resorts to unlawful confinement of persons criminal tresspasses or where it becomes violent and indulges in criminal force or criminal assault or mischief to person to property or molestation or intimidation, the exemption can no longer be claimed.'

'But there is a no provision in law which exempts a workman taking part in a strike from the Criminal laws of the land. Neither S. 17 nor 18 of the Trade Union Act. Exempts a workman, if he commits an offence, which means an offence under the Criminal laws of the country, save and except the limited ground upon which he is exempted from being charged with criminal conspiracy under S. 17. An agreement to commit an offence being purview of Section 17 ........'

8. After referring to Trads Unions Act in England and Indian Criminal Law Amendment Act, it was held therein that

'It will be seen, however, from a perusal of all these statutes that both in the English as well as the Indian law, regulating trade unionism, violence, molestation, intimidation, or the commission of offences against the criminal Laws of the land, are inhibited' ..... 'The net result of the decision set out above is that Ss. 17 and 18 of the Indian Trade Unions Act grant certain exemption to members of a trade union, but there is no exemption against either an agreement to commit an offence or intimidation, molestation or violence where they amount to an offence. Members of a trade union may resort to a peaceful strike, that is to say cessation of work with the common object of enforcing their claims. Such strikes must be peaceful and not violent and there is no exemption where an offence is committed. Therefore, a concerted movement by workmen by gathering together either outside the industrial establishment or inside within the working hours is permissible, when it is peaceful and does not violate the provisions of law. But when such a gathering is unlawful or commits an offence then the exemption is lost. Thus, where it resorts to unlawful confinement of persons, criminal tresspass or where it becomes violent and indulges in criminal force or criminal assault or mischief to person or property or molestation or intimidation, the exemption can no longer be claimed.'

'There are no express provisions in the Trade Unions Act regulating strikes or picketing but these are recognised weapons in the armory of labour. The word 'strike' in its board significance has reference to a disputes between employer and his workers, in the course of which there is concerted suspension of employment. In a strike, employment relations continue but there is a state of belligerent suspension.

There are many varieties of strikes, e.g., stay-in-strike, tool-down strike, pen-down strikes, etc., But there is no provision in law which exempts a workman taking part in a strike, from the criminal laws of the land, excepting S. 17 of the trade Union Act and no exemption from civil liability except S. 18 of the said Act .....

'Neither S. 17 nor 18 of the Trade Unions Act, exempts a workman, if he commits an 'offence' which means, an offence under the criminal laws of the country, save and except the limited ground upon which he is exempted from being charged with criminal conspiracy under section 17.'

'All workmen, guilty of wrongfully restraining any person belonging to the management or wrongfully confining him during a gherao are guilty under S. 339 or 340 of the Indian Penal Code and have committed cognizable offences, for which they are liable to be arrested without warrant and punishable with the simple imprisonment for a term which may extend to one month or with fine which may extend to five hundred rupees or with both for wrongful restraint and for imprisonment of either description for a term which may extend to one year or with fine which may extend to one thousand rupees or both; for wrongful confinement, where the confinement extends to three or more days, the punishment is imprisonment of either description for a term which may extend to two years or with fine or with both. Where the confinement is for ten or more days the punishment is imprisonment of either description for a term which may extend to three years. There is a further liability to fine. Where there is a concerted intention to commit an offence, it amounts to criminal conspiracy under S. 120A of the Indian Penal Code and is not saved by S. 17 of the Trade Unions Act, 1926.'

Where other offences are committed they are punishable with various terms of imprisonment and fine or both ...

'The police have the duty under the law to prevent the commission of crime, to apprehend those as are guilty of its commission and to preserve law and order as provided in the Criminal Procedure Code and the various Police Acts which are applicable in a given case ...'

The magistracy has functions is relation to the preservation of law and order and the apprehension of criminals and dealing out punishments as are contained in the Criminal Procedure Code or other laws.

'Inaction on the part of the police who are the guardians of law an order is reprehensible. Even where a discretion is given, it must be exercised reasonably and with due regard to the fact that complaints of the commission of a criminal offence is a compulsive matter, and it is not open to the police to act or not to act according to their sweet will and arbitrarily. It would be the end of all constitutional Government if the police were called upon to consider the political affiliation of either the complainant or the accused in a criminal case. They should not be so pusilanimous as to bow down to every unlawful order passed by the executive authority. If they act contrary to law or refrain from acting in accordance therewith they do so at their peril and will be answerable to the Courts. The duty of the police is not only to promptly answer to a complaint alleging the commission of an offence but it is their duty to prevent the commission of crimes. Where they fail to do so, they may render themselves liable to certain penal provisions contained in the code.'

2. But gherao accompanied by violence and diverse forms of crimes resulting in wrongful confinement or wrongful restraint of the encircled person or persons is a criminal activity not because it is encirclement but it is encirclement is encirclement with more. The form of gherao that I have to consider is encirclement with more which is criminal and punishable under the law.'

'In the areas where that special law has been made applicable, and violence in a strike, is an offence. Right to strike which our law recognises does not give any right to indulge in acts of violence or commission of any criminal offence whether by individual worker or by a trade union collectively. For those reasons, discussed above, I have reached he conclusion that gherao is a coercive method, in which minimum appendage that distinguishes gherao from strike is a criminal offence of wrongful restraint punishable under S. 341 I.P.C. and such gherao is not a legitimate trade union activity and therefore, does not enjoy immunity from legal act on either under S. 17 or S. 18 of Trade Union Act, 1926 and as such it is clearly unlawful.'

'As starting point of such enquiry it has to be remembered that though minimum offence involved in gherao is wrongful restraint, which itself is cognizable offence, as defined in the code, offences both non-cognizable and cognizable of criminal procedure not an often other of very serious nature may and do occur in course of a gherao. In fact in the case before us allegations has been made that very serious offences of various nature, all cognizable offences has been committed in each of the gheraos complained of. So it is necessary first to deal with the arguments advanced on both sides about the law applying to police and the duties that law imposes.'

9. He then referred to the decision in Rohtas Industries v. staff Union : (1976)ILLJ274SC , to contend that anything of tortuous act would be outside the scope of the Industries Disputes Act and, therefore, an award or compensation cannot be passed, under the provisions of the Industrial Disputes Act. The next decision relied upon by him is Railway Board v. Niranjan Singh (As which dealt with the holding of demonstration inside the premises of Northern Railway and it was held therein :

'It was not disputed that the Northern Railway is the owner or the premises in question. The fact that the Indian Railways are state undertakings does not affect their right to enjoy their properties in the same manner as any private individual may do subject only to such restrictions as the law or the usage may place on them. Hence unless it is shown that either under law or because of some use of the Railway servants have a right to hold their meeting in Railway premises, we see no basis for objecting to the direction given by the General Manager. There is no fundamental right for anyone to hold meetings in Government premises. If it is otherwise there is bound to be chaos in our offices. 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.'

'The fact that the citizen of this country have freedom of speech, freedom to assemble peaceably and freedom to form associations or unions does not mean that they can exercises those freedoms in whatever place they please. The exercise of these 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-arts. (2) and (3) of Art. 19. In other words, the contents of the freedom guaranteed under cls. (a), (b) and (c) the only freedom with which we are concerned in this appeal, do not include the right to exercise them in the properties belonging to others. If Mr. Garg is right in his contentions, then a citizen of this country in the exercise of his right under cls. (d) and (e) of the Art. 19(1) could move about freely in a public office or even reside there unless there exists some law imposing reasonable restrictions on the exercise of those rights.'

9-A. Relying on these decisions, Mr. Govind Swaminathan contends that if the activities of members belonging to defendants unions are confined to what are connected with their union activities, the relief of injunction, as prayed for, would not be available but when the plaintiff-Bank is able to show that the acts indulged in by members of the two defendant's unions are unlawful and endangering public life and paralyses normal functions of bank's operations resulting in criminal intimidation or wrongful confinement then the defendants cannot under the guide of Trade Union Act or other related Industrial Acts, persist in indulging in such activities. He would state that even when such unlawful activities are constitutes criminal tresspass, criminal intimidation, wrongful confinement and the like, and for which relief can be secured by approaching Courts of law. Even though police have been informed, the plaintiff-Bank being unable to prevent such unlawful activities being committed, it has to necessarily institute the present suit.

10. Relief of injunction, to be granted under Order 39, Rule I Civil Procedure Code is a discretionary remedy which courts would grant, only if the requirements con-templated therein are made out Rule I, of Order 39 Civil Procedure Code envisages granting of temporary injunction, if it is proved by affidavit or otherwise, that the property in dispute is in danger of being wasted or alienated by any party to the suit, or wrongly sold in executions of a decree, or that the defendant threatens or intends to remove or dispose of the property with a view to defraud creditors, and or that the defendant threatens to dispossess the plaintiff or otherwise causes injury to the plaintiff in relation to any property in dispute in the suit.

11. What is now pleaded by the plaintiff is that, pending disposal of the suit, defendants should be injuncted from (i) holding any meeting or staging any demonstration or resorting to any other similar form of irregular action within the premises of the plaintiff-Bank : (2) holding any meeting or staging any demonstration or resorting to any other similar form of irregular action within a radius of 50 meters of the premises : (3) to prevent defendants from obstructing any member of public or customers or tenants of the bank from entering the premises : (4) to injunct the defendants from preventing officers, employees and servants of the Bank from attending to their normal duties : (5) to prevent defendants from putting up posters, handbills, etc., on the walls, entrances etc., (6) to prevent affixing of posters, hand bills and the like on cardboards and from placing them inside or outside the premises of the Bank. What are now asked pending disposal of the suit are similar to reliefs claimed in the suit itself and the defendants are to be prevented from doing any of the aforesaid acts. It should be noted that the reliefs asked for in the suit would be virtually achieved if at this stage such an order of temporary injunction is to be issued as matter of course, without proper analysis of the nature of the reliefs (asked for and to what extent the Court can be called upon to grant interim injunction in respect of these aspects).

12. Order 39 Rule 1 of the Civil Procedure Code lays down the circumstances under which temporary injunction can be granted and unless those circumstances, exist, a Court has no jurisdiction to grant interim injunction. Even if some of those circumstances exist, it has been repeatedly held by Courts that they would not compel the Court to grant relief in all cases inasmuch as the Rules say that only in the circumstances mentioned therein, the Court may grant interim injunction. Therefore, the granting of an interim injunction pending disposal of the suit is purely within the discretion of the Court, and this discretion has to be exercised in accordance with reason and on sound judicial principles. Equally, it has been held that grant of an injunction is a serious matter and Courts should always take great care before grant of an injunction and confine it to cases where such an injuction is essential. If the affected party can otherwise secure relief or if the nature of relief asked for, is one which could be decided only after the trial of the suit, the Court should be circumspect before-ever granting temporary injunction. No doubt grant of injunction is an equitable relief, but the Court has to comprehend to what extent by grant of an order of injunction as prayed for by a plaintiff, it would lead to uncertainty in enforcing the order of injunction or may prove to be an order in the form the but not in substance. The order of injunction does not come to an end by mere granting of it, but it should be of such a nature that the so called acts likely to be perpetrated, could be granted by enforcement of an order secured in a civil Court.

13. For breach of an order of injunction, under Rule 2(a) of order 39 Civil Procedure Code, the person guilty of disobedience is to be detained in civil prison for a term not exceeding three month, apart from any other proceedings that may be taken under the contempt of Courts Act. The plaintiff will have to make out, that the various reliefs above listed, would come within the scope of Rule I of Order 39 civil procedure Code. This is not a case where allegations of property being alienated or wasted is made, or defendant threatens to remove or dispose of the property for defrauding creditors or for dispossessing the plaintiff.

14. The only other two categories mentioned and which may alone be relied upon by plaintiff, are causing damage to property or otherwise causing injury to plaintiff in relation to any property in dispute in the suit. There is no property involved in the dispute before us, because the plaint does not contain any schedule or property in relation to which relief is asked for. If it is to be taken that the defendants are causing damage to property, by conducting meetings or by holding demonstrations inside the building or within a radius of 50 meters or by putting up posters handbills and planks and pasting them on pillars and walls, it has to be seen whether these could be prevented by the plaintiff by recourse to compulsive steps which it can take and ought to take or only by grant of an order of interim injunction by a civil Court, they could be contained. Hence, before securing an order of interim injunction, the plaintiff has to convince the Court that, but for the grant of injunction, it would not be possible for the plaintiff to prevent the recurrence of alleged acts in relation to which relief is asked for.

15. Does the plaintiff-bank have any other recourse available for securing effective and expeditious relief It has a code of discipline and a set of rules to enforce orderly conduct. It is having necessary personnel, who are expected to discharge their duties in enforcing discipline within its premises. If they are incapable of maintaining discipline in the institution and claim that discipline among Bank staff can be achieved only by a civil Court's order of an interim injunction, it is a misfortune to public, whose money was invested when Banks were nationalised, in that its administrative managerial personnel are not able to enforce internal discipline, and when not obeyed, they do not take stern measures to punish the derelicts.

16. If it is claimed that by affixing posters or carrying playcards, the property is damaged, on the face of it, it appears that these acts cannot have any impact of such dimensions for an interim order to be passed to the extent prayed for. It is well open to the plaintiff herein to establish at the time of trial of suit, that such acts result in such a damages that the property deserves to be protected by grant of injunction and not otherwise.

17. The next aspect is : Has the Plaintiff come to Court with clean hands

18. Mr. Govind Swaminathan stressed on the aspect that any demonstration or any activity which does not come within the scope of Trade Union Act, if carried on inside the Bank's premises, it is unlawful, and hence the plaintiff-Bank cannot have recourse to forums under the Industrial laws, but only to a civil Court. What was done on 20-12-1980 was beyond the pale of Industrial disputes, and constitutes, clear acts of violence, criminal intimidation and criminal misconduct, and therefore the plaintiff is entitled to interim injunction, as prayed for.

19. The defendants contend that the remedy being a discretionary one, the obligation on the part of the plaintiff is to come to Court with clean hands; and in this case, the plaintiff-Bank had want only kept back from the Court the cause for the agitational atmosphere prevailing in the institution. What is now obtaining is due to their failure to enforce a solemn agreement which has entered into with the first defendant under S. 2(p) of the Industrial Disputes Act, as early as 16-12-1978, and, therefore, whatever be the merits of the claim made, the application deserves to be dismissed.

20. In the plaint, the one and the only aspect spelt out is about the imposition of wage cut made in the salary of Mani. A peon, and which resulted in a demonstration being held on 20-12-1980, and it is this sort of violent demonstration that had resulted in relay hunger strike and dharna followed by an illegal strike on 2-1-1981 and, therefore, the plaintiff-Bank is entitled to the reliefs prayed for in the plaint.

21. After the filing of the counter-affidavit, it is quite clear that do doubt the peon suffered a wage cut of a day's salary and it resulted in a demonstration being held by 70 or 80 persons in the room of Deputy General Manger (Personnel).

22. In the counter-affidavit it is stated that no doubt at 2-30 p.m. after the Bank closed at 2 p.m. there was a mass deputation to the Deputy General Manager (Personnel) consisting of about 80 members and a request was made to him to annul the illegal wage cut. It was stated that the demonstration was conducted in a manner in which such demonstrations were held in past as part of union activities. To characterise it is as a gherao is not correct. To characterise it as a gherao is not correct. There was no violent or disorderly or indecent acts committed by the persons who belonged to these unions, and who know to what extent, they can hold the demonstrations.

23. It is not in dispute that the police arrived at the scene at about 4-30 p.m. and later on they left, perhaps being satisfied that what was going on was nothing different from what obtains in any industrial undertakings or institutions, where trade union activities are permitted. If violent acts had been committed, in the manner in which it is stated in letter dated 26-12-1980, addressed by the Bank to the Regional Labour Commissioner (Central), certainly the police authorities would have taken action or at least in their reports reference would have been made to the several acts of violence committed during the relevant period and of what they had witnessed. There is no material placed before Court of what had been assessed by the police authorities as to what had happened during that demonstration. If what is claimed to have happened on 20-12-80 was only confined to holding of demonstrations, in the manner and style in which over the the years they have been evolved as permissible forms of collective agitation and that it was not a gherao as claimed by the Bank then on that solitary incident, the plaintiff-Bank cannot ask for injunction with so many ramifications which would make inroads into valuable trade union rights. To refer to one of the reliefs asked for Bank wants an injunction to prevent both the unions from holding any meeting or staging any demonstration or resorting to any other similar forms of direct action within the premises and within a radius of 50 meters of the Bank's premises. If such an order is to be given, is would virtually prevent statutory rights conferred on unions to hold demonstrations and meetings within the scope of Trade Union Act 1926. Demonstrations like, pendown strike refusal to work, though inside factory or office, wearing badges, etc., have beer held to be permissible acts and found acceptance in Supreme Court. Therefore, no order of injunction can be secured to prevent such rights when exercised in the process of collective bargaining for enforcing the rights of workman, and an application to secure an omnibus order to prevent any meeting whatsoever or any demonstration in the premises or within a radius of 50 meters of the premises of the factory of institution, cannot be entertained.

24. The workmen are conferred with statutory rights to have freedom of expression in making known to others their feelings and to convey to the public and to the management as to how they are affected. In Kameshar Prasad v. The State Of Bihar 1962 I L.L.J. 294, while, dealing with the expression, 'demonstration', it was held.

'Without going very much into the niceties of language it might be broadly stated that a demonstration is advisable manifestation of the feelings or sometime 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 form of speech. It has, however, to be a 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 no other forms of demonstration of which do not fall with the content of the Art, 19(i)(a) or 19(1)(b). A demonstration might takes 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 form of demonstration which would fall within the freedoms guaranteed by Arts. 19(i)(a) and 19(i)(B) It is needless to add that from the very nature of things a demonstration may take various forms; it may be noisy and disordely, 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(i)(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.'

'In the first place, we are not here concerned with any rule for ensuring discipline among the police, which is the arm of the law primarily charged with the maintenance of public order. The threat to public order should, therefore arise from the nature of the demonstration prohibited. No doubt, if the rule was so framed as to single out those types of demonstration which was likely to lead to a disturbance of public tranquillity or which would fall under the order limiting criteria specified in Art. 19(2) the validity of the rule could have been sustained. The vice of the rule, in our opinion, consists in this that it lays a ban on every type of demonstration be the same however innocent and however, incapable of causing a breach of public tranquillity and does not confine itself to those forms of demonstrations which might lead to that result.'

Hence holding of a demonstration or meeting within the ambit of trade union activities, if carried out peacefully, it would then be improper to restrain such activities by an order of injunction, but it has to be left to be decided only under the special enactments made for securing relief.

25. Thought Mr. Govind Swaminathan contended that there was a gherao on 20-12-1980, the claim is refuted by filing a counter-affidavit. No supporting affidavits have been filed from anyone. The person who is claimed to be the victim, has not filed a affidavit, and none of the tenants of the premises swear in support of any of the allegations. No independent person files an supporting affidavit. No police report is filed about violent committed. It would be unfair to presume that any demonstration would be violent. Defendant's unions have know how and in what manner agitations can be held. It was only after the business hours of the Bank, it has taken place which itself shows that they had known when to make a representation and in what manner to do that. Even assuming such an incident had taken place it is a past event, and it cannot form the basis for a permanent injunction to be issued as prayed for, preventing holding of any meeting of demonstration for eternity. For what was happened, the plaintiff-Bank was not left without any remedies. It would take disciplinary action or file a complaint to police for any acts of violence or bodily injuries, if any, caused to anybody in the Bank. If, as claimed by the plaintiff-Bank, any violence or criminal intimidation or wrongful confinement had taken place, police authorities would have taken action. It is not pleaded that any formal complaint had been laid with the police or before a Magistrate alleging the nature of violent activities indulged by Bank's personnel. If they are established, undoubtedly the persons responsible for the same would be punished by the Criminal Court. As pointed out by the special Bench of Calcutta High Court, the police are bound to act when a complaint is lodged for commission of cognizable offences, or by inititating action, under its rules it can curb such activities provided they are illegal and not part of trade union activities. As rightly pointed out by Mr. Ramachandran, the agitational atmosphere prevailing in Bank's premises, which was existing much earlier, started not because of what happened on 20-12-1980, but because of the avoidance of the plaintiff-Bank to implement a solemn agreement regarding Award Staff. It is a not by the plaintiff-Bank that there was no such agreement in force or that it had complied with the terms of agreement entered into.

26. Defendants go to the extent of claiming that 'this is the first time in India when the solemn settlement that has been arrived under S. 2(p) of the Industrial Disputes Act, has been violated by the plaintiff, and it is not open to this plaintiff to seek equitable relief at the hands of this Hon'ble Court, They state that the plaintiff-Bank has taken a vindictive attitude and no promotions have been made from clerical staff in the year 1980, and it is adopting an adamant and ununderstandable attitude by refusing to promote any member of award-Staff under the settlement, and that due to lack of junior management cadre of officers, the workload is more on award staff, and, therefore, the holding of placards or the fixation of posters had to be carried out, to secure the rights under the settlement. Because of delay in its implementation, every member is being deprived of nearly Rs. 300 per month, and, therefore, the carrying of placard with the slogans which are listed in paragraph 8 of the counter-affidavit, cannot be termed as any injury being caused to the property of plaintiff-Bank, because such forms of demonstrations have been going on for more than 25 years. None of the slogans contain any abusive or derogatory or defamadtory or untrue statements.

27. This contention of Mr. Ramachandran is quite convincing because, if a settlement before Deputy General Manager (Personnel) cannot be taken advantage of by plaintiff-Bank, which not only avoided a settlement and created an atmosphere of pleasure inside the institution. Mr. Ramachandran would even go to the extent of pleading that the plaintiff-Bank had deliberately and knowingly called upon a person i.e., a member of the staff to do a particular work, which was not expected to be done by him and thus brought about a wage cut in his salary, so that the existing agitational atmosphere inside the institution may trigger out into a demonstration; so that they may go to Court and secure an order of this nature to prevent lawful trade union activities being practised by two defendants for all time to come.

28. When it has been made out, from the affidavits filed in Court that the wage cut imposed on Mani is not the only incident which has resulted in demonstrations being held, but was consequent upon failure of the plaintiff Bank to honour the solemn agreement dated 16-12-1978 which had resulted in simmering discontent amount the staff members, the Bank cannot secure the equitable relief of injunction, when it has been responsible for compelling the member of the two unions to hold meetings and demonstration in the manner in which they are held generally for securing their rights. Therefore, plaintiff-Bank has come before Court without disclosing all the relevant facts, but making it appear as if it was only due to wage cut imposed on Mani, the two defendant unions are resorting to violent activities, and hence the claim made by defendants in the counter-affidavit that Bank come to Court with unclean hands and, therefore, they are not entitled to equable relief, as prayed for has to be accepted.

29. Assuming that they have not come to Court with unclean hands as claimed, to find out whether they can secure any of the reliefs claimed, each one of the reliefs prayed for are considered hereunder : The first two reliefs asked for, cannot be granted in the manner in which they have been prayed for, because of the omnibus and vague nature in which they are claimed and which would encompass within its fold any meeting or demonstration which lawfully the union can do, to enforce the right of Bank's employees. Unless the relief asked for is of such a nature, which would not in any manner transgress at any time and under any contingencies, in all times to come the rights of workers to agitate in permissible forms under the industrial law, a civil Court by exercising powers under Order 39, Rule 1 of the Code of Civil Procedure, would not abridge and deprive the workers of their valuable rights. Hence, the first two reliefs asked for, cannot be granted to he extent to which the plaintiff-Bank prayed for.

30. The third relief asked for as to prevent defendants from in any manner obstructing the officers, employees and members of the public and visitors and tenants from entering into plaintiff's bank. It is strange that for enforcing this discipline inside the Banks premises, it could ask the Court to be a sentry at every door step and prevent such things. If any, ever happens, it is not dispute that this Nationalised Bank has a Code of Discipline which it can enforce among the members employed by it, high or low. Even in its letter dated 26-12-80, addressed to Regional Labour Commissioner it has referred to provisions of S. 36(A) and (D) to the Banking Regulations Act 1949 and the Criminal Law Amendment Act which are also available to it, for enforcing discipline among its staff members. Irrespective of the unions to which the persons may belong, whether they be of officers' grade or any other staff member grade, if any of them indulge, in causing such obstructions which are referred to in clause (c) of Judge's summons, the remedy is to take firm disciplinary action or to hand them over to police authorities, for committing acts or violence, if any. Merely because the persons in managerial posts appointed for the purpose of enforcing discipline in the plaintiff-Bank, find that they are not capable of enforcing inbuilt and interal discipline and orderliness in the movements of their staff members, the plaintiff-Bank cannot have the remedy to move the civil Court for injunction. In the manner prayed for. The fourth relief asked for is to injunct the member of the two different unions from preventing officers, employees and servants of the plaintiff from attending to their normal duties. If they so wish. These words by themselves demonstrate that these categories of persons attend to duties only if they so wish, and as if they cannot be compelled to do their work if officers, employees and servants of the Bank are prevented from doing their duties inside Bank's premises, because of any acts committed by a co-officer or co-employee or a co-servant the concerned affected person, would certainly lodge a complaint, on which suitable actions have to be taken against the wrong-doers which may result even in dismissal or removal of the concerned person depending upon the nature of misconduct. To help officers, or employees to do their work without interference from a co-officer, or co-employee, if a civil Court is to step in and assist, then there would be no need to have any managerial personnel in such a Bank. The affected person would assist the Bank in disciplinary proceedings, and if he is in any manner bodily injured, he can lodge a complaint with the police, which would ultimately result in the case being tried by a Criminal Court, resulting in the offender being punished Instead of taking any such steps, the Bank is only anxious to take an order of injunction from this Court, as if it is only remedy available to it, and in its absence, it cannot function.

31. The 4th and 5th Prayers are for preventing posters and placards being stuck to the walls-etc. Once against state, even if these things cannot be prevented and if provision is made in Rules to prevent them, then the Bank has to take steps for amending the Rules to constitute such acts as misdeeds. If as per the Rules, doing such things, would constitute a misconduct either major or minor, Back on its own should take actions and hence injunction by Court would not be available.

32. The next aspect is, if what is pleaded by the plaintiff as happened on 20-12-1980, is gherao, what is the course open to the plaintiff-Bank, and whether recurrence of it can be contained only by grant of an injunction in a civil Court or otherwise In : AIR1968Cal407 , the learned Judges, have clearly stated that gherao results in assault criminal intimidation, and wrongful confinement, and they are all cognizable offences punishable under the Indian Penal Code. In the entire judgment, their Lordships have clearly stated that if gherao is done, it results in cognizable offence for which the police have a duty under the law to present the commission of crimes and to punish who are guilty, and to preserve peace as provided in the Criminal Procedure Code and under the various Police Act which are applicable. If gherao takes place in future, by summoning police, the offenders can be removed swiftly. Injunction cannot prevent a gherao from ever taking place in future but can only result in violators being punished later on. When severe punishments are available, there is no need to supplement the available reliefs.

33. What sort of situation would be faced if reliefs, as prayed for are granted If it is to be taken that inspite of whatever relief that may be available either under criminal laws or under special enactments or under the Regulatory Rules, even then when a civil remedy is available, a party cannot be precluded from seeking that relief also; then it has to be assessed whether by granting the reliefs in the manner in which they are asked for even in a truncated form, what likely consequence would develop, and whether it would result in any effective enforcement, also deserves to be considered. As already pointed out, the emphasis is laid on recurrence of gheraos and if so, when it constitutes commission of several offences under Indian Penal Code, and in spite of it, if injunction is granted by a civil Court against holding of gheraos or violent demonstrations or holding of a meeting or affixures of posters in the entrance of Bank premises, etc., and in spite of such an order, if any one of them commit such acts, it would result in the Bank filing innumerable applications into this court for punishing each one of them under Order 39 Rule 2-A of the Code of Civil Procedure. To illustrate; if for instance a lightning demonstration taken through its corridors or some one shouts slogan by holding a union flag, but immediately if they subside within a few minutes, the Bank would then be filing application into Court to punish them. The civil Court would be guided only by the affidavits being filed by the innumerable persons, who would be impleaded in the said applications, resulting in evidence being recorded in the application to identify persons who had participated. There would be no outside agency which would be available to civil Court, to find out what had actually happened. But, if in the event if any such acts as apprehended, are committed by personnel of the Bank and if the Code of Criminal Procedure is invoked, then a police officer would swiftly move to the place of occurrence and not only apprehend the offenders, but later on the concerned police officer would get himself examined in Court with the reports prepared at the spot and thereby assist the Court of what was witnessed to determine precisely as to who are all the offenders. When such an on the spot assessment cannot be summoned to the scene of occurrence, by a civil Court within few minutes, the proceedings belatedly taken at the instance of Bank on violation of the orders of injunction, would be cumbersome and would result in the Bank being more involved in Court proceedings than in its banking business. If the Bank is to move this Court whenever it apprehends demonstration, on issue of any threateneds demonstration, on issue of any threatened notice of direct action, it would then result in a batch of Advocate-Commissioners being stationed in the Bank premises to assess what actually transpires. If demonstrations of various forms take place more often, in spite of the order of injunction, perhaps the Bank may ask for permanent stationing of batches of Advocate-Commissioners in the various branches of the Bank and also in its Head Office for indefinite periods. If such steps are to be taken, in spite of the other available remedies which are efficacious and properly this Court considers that when such consequences are likely to develop a civil Court, should be circumspect, before-even an order of temporary injunction is passed.

34. To add further, if after action is taken against them, some more demonstrations are to take place, it would only lead to more indefiniteness in enforcing the orders of a civil Court. It is not a question of a civil Court. It is not a question of a civil Court having powers or not. Its powers are very wide but when injunction is asked, it will be wise on its part to take note of other injunction. There is yet another situation of likely indefiniteness to set in.

35. The present relief is asked for against two unions though there are other unions. If a union is to be formed in the place of the existing union, any order that is passed in this application would not be binding on the new union, even though some of the members of these unions may join it. After injunction is secured, if a member resigns from this union and joins the other unions or without joining any union, holds flags or affixes posters at the entrance, the Court will have to enquiry whether he is a person who is bound by the previous directions of the Court or not. Equally when membership is questioned, then a preliminary enquiry is to be held on the status of the indicated person, should these be done merely because plaintiff-Bank has instituted the suit Therefore, while ordering injunction, precision with which the order can be enforced, has to be looked into. Merely because the parties asked for relief in a particular manner, it does not mean that the relief can be granted even if it involves a dispute of civil nature.

36. It is not as if this would be the only institution with which Courts will concern themselves. If civil Courts are to grant injunction in matters of this nature, the day would not be far off, when every industrial undertaking (Public & Private) shops, etc., in this country by filing suits and securing a preservative order of this nature for being used against its workmen and employees for endless years, would move the Courts as soon as a violation takes place. If ten thousand or fifteen thousand workmen employed in a group of Mills in an area, or workers in public sector undertakings or the workmen in Railways, etc., are to demonstrate at different places in contravention of the orders of injunction, is it to be understood that when such demonstrations takes place by the show of order of injunction secured from a civil Court to the crowd, all those workmen would march to their places of work and carry out their duties It is to face such situations, Parliament, in its wisdom has enacted several enactments by providing remedies and other enactments. That was why, in the Civil Procedure Code, it is provided under Order 39 Rule I that, the Court may be ordered to grant a temporary injunction ... leaving it to the discretion of the civil Court either to grant or refuse, even if the circumstances contemplated in the said order are made out. A civil Court cannot be compelled to grant an order of injunction merely because unlawful actions are taking place. A civil Court has to function exercising its discretion judically and judiciously, and if situations like what has been contemplated above, are to be faced by grant of injunction, a civil Court will have to direct parties to seek relief in appropriate forums.

37. Is the plaintiff-bank, a helpless institution The plaintiff-Bank is a Nationalised Bank, wholly owned by Government of India. It has to take effective steps to enforce discipline inside the institution, which factor has been stressed more than once in the foregoing paragraphs of this order. It should dispel the impression entertained by it that, it is only on securing an order of injunction from this Court, it can achieve discipline within its Court, it can achieve discipline within its portals, If a Nationalised Bank, wholly owned by Government of India, is not able to secure the assistance from police authorities or other law enforcing agencies, when violence erupts in the form of gheraos and the like, it should then be the beginning of chaos in this country. If the police authorities or law enforcing authorities in this country do not perform their duties, then the responsibility for the consequences is that of the Government which is constituted for protection of life and liberty of citizens. Such a chaos if sets in, cannot be stopped by orders of injunction obtained from civil Courts.

38. Like the Railway Protection Force and the like, for the various public undertakings, an authority may be constituted taking swift action to maintain uninterrupted service to the public, who are compelled to go to such places. There should be a security force for preventing many of the listed or enumerated acts which, it apprehends, may take place in future. As soon as a poster is found pasted at the entrance of the bank or a placard or a flag held inside its precincts, the top executives of the Bank, instead of summoning the security guards to remove the posters and other things, should not think of rushing to this court to secure an order of interim injunction. If it is thought that by moving the Court, the Advocate Commissioner as Court officer, would go and tear away the posters and restore cleanliness of the walls, and this is the manner in which the thinking is prevalent among the top executives of the Bank, then the mildest manner in which this can be commented upon, is to state that the persons in charge of the Bank do not know how to manage its internal affairs.

39. It was also stated that this Court in Application No. 38 of 1980 in C.S. No. 655 of 1979 has granted an injunction under similar circumstances, when rival factions in State Bank of India were indulging in displaying play-cards and the like inside its premises. The learned Judge has stated that he did not propose to decide whether the complaint of the Bank would mean an offence within the meaning of S. 36(AD) of the Banking Regulation Act, and has also held that reasonable apprehension of injury will suffice, to grant interim order. When the occurrence which is relied upon in this plaint, and which is characterised as a gherao in the light of the decision of the Special Bench reported in : AIR1968Cal407 , holding that gherao constitutes cognizable offences, the order passed in the said application can have no relevance, in a matter of this nature, if really a gherao had taken place, but what happened relates only to holding of meetings or demonstrations and affixing of posters, etc., certainly these activities squarely fall within the ambit of S. 36(A) and (B) of the Banking Regulation Act and for which the Executives of the Bank ought to have prosecuted the concerned persons. Therefore, the order passed in the said application can be of no assistance to the applicant herein.

40. Reliance is also placed on Application No. 4858 of 1979 in C.S. No. 496 of 1976 wherein the scope of Ss. 17 and 18 of Trade Unions Act had come up for consideration, and an order of interim injunction was granted. As for the protection that can be claimed under Ss. 17 and 18 of Traden Unions Act, in the light of elaborate discussion on this aspect found in : AIR1968Cal407 and : (1962)ILLJ294SC , it is unnecessary to deal with this aspect at length, except to hold, following the said decisions that if any act is committed, resulting in unlawful activities, and which would constitute cognizable offences under Indian Penal Code, or other special enactments like Banking Regulations Act, etc., the immunity available under Trade Union Act, would not be available.

41. When the plaint is confined only to the occurrences on 20-12-80 and proceeds on the basis that it is only because of the said agreements the two defendants are indulging in hunger strike and other activities, the need has arisen for seeking relief from this Court. What is claimed in the plaint is to be established during the course of the trial of the suit. No satisfactory material is placed by the Bank to grant interim injunction pending disposal of the suit and particularly when the defendants have refuted allegation of gherao as having taken place. No supporting evidence is also placed before Court by the plaintiff to show as to what had actually happened at that time. Except the self-serving claim of the plaintiff, there is no evidence to grant interim injunction

42. It would not be proper to infer that the Trade Unions always indulge only in violate activities and that they do not hold peaceful demonstrations. As pointed out by the Supreme Court and the Calcutta High Court in the above cited decisions, trade union activities can be effected peacefully in an organised manner. Some limited forms of peaceful demonstration even inside the premises of a factory or institution are permissible. Therefore, this Court considers that, for all the reasons above stated, the plaintiff-Bank would not be entitled to ask for an interim injunction pending disposal of the suit.

43. After arguments were heard and order was served, Mr. Ramachandran appearing for defendants, mentioned in Court that he is filing an application to dismiss the suit, since an agreement has been arrived at between the parties. Hence, time was granted for filing of the application. Application No. 4680 of 1981 is field to dismiss the suit by relying upon an agreement entered into on 24-1-1981. Plaintiff-Bank on 9-2-1981 asked for ten days time for filing of counter-affidavit. Therefore, the passing of an order in this application was deferred.

44. In this application, it is stated that discussions were held on 24-1-1981 in the presence of Labour Commissioner (C) and an agreement was signed. This agreement has brought about industrial peace and the posters, placards, etc., have been removed. When such an atmosphere has come to set in, there is no need for passing any orders in the injunction application, and further-more the suit itself is not maintainable. Mr. Ramachandran contends that this filing of the suit is an abuse of process of Court and this Court cannot be called upon to perform the duties of maintaining law and order inside the Bank's premises. According to him, on the sole incident mentioned in plaint, the suit cannot be tried, and the Management can raise only an industrial dispute over the said incident, under the Industrial Disputes Act, as held in 1976 II L.L.J. 260.

45. The plaintiff-Bank counters this by stating that execution of the agreement will not make any difference, since according to them, the law does not give the persons sponsoring an industrial dispute to violate the law, and that no reference to the suit was made in the said agreement and it has nothing to do whatsoever with the reliefs claimed in the suit. The claim that placards and posters are removed is not accepted, and normalcy is still not prevailing in several branches. What is involved in the suit would not come within the ambit of Industrial Disputes Act, and even so it would not prevent its right to move the civil Court, for enforcement and protection of their rights.

46. Mr. Ramachandran in turn contends that the statements in paragraph 7 of the counter-affidavit are vague and nothing prevents the Bank from stating where exactly the posters and placards are still found. He states that, when both the management and trade unions have resorted to proceedings under the Industrial Disputes Act and the cause of action mentioned in the plaint does not surive, and, therefore, the suit has to be dismissed.

47. Mr. Govind Swaminathan submits that apart from the arguments already advanced, in so far as the application for dismissal of the suit is concerned, it is entirely for plaintiff to withdraw the suit or to face the consequences in the suit after trial. It is not for the defendants to seek for dismissal. The agreement entered into does not cover the dispute raised in the plaint, hence this application deserves to be dismissed.

48. Unless it be shown that the suit has been filed in a Court without jurisdiction or no cause of action survives for consideration or that the dispute is not one of civil nature, at the instance of a defendant, a suit may be dismissed. If in spite of the objections raised in this application, the plaintiff proceeds in maintaining the suit, and ultimately if the Court holds that the relief claimed in the suit cannot be granted, it would stand dismissed with employ costs.

49. Therefore, at the instance of the applicant, at this stage, the suit cannot be dismissed. Hence application No. 468 of 1981 is dismissed.

50. For the reasons above stated, application No. 82 of 1981 is dismissed with costs.

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