Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Miscellaneous Appeal No. 33 of 1953, decided on 9th November 1953.
S. 80‑"Relief" means all reliefs asked for‑Notice specifying "relief by injunction only against the Tribunal under the Industrial Disputes Act (XI V of 1947), but suit as instituted also claiming relief by injunction against the Federation of Pakistan as well as the Labour Commissioner not to implement the Tribunal's award Suit, held, bad against Federation of Pakistan and Labour Commissioner.
The notice given under section 80 C. P. C. mentioned among the reliefs an injunction against the Industrial Tribunal under the Industrial Disputes Act, 1947 not to proceed with the hearing of the alleged disputes and to take no further action in purported exercise of the power conferred by the two Government notifica tions, whereas the plaint in addition sought an injunction against the Federation of Pakistan and the Labour Commissioner not to take any action in pursuance of the interim award against the plaintiff.
Held, that the suit was bad as against The Federation of Pakistan and the Labour Commissioner, both of whom were entitled to the benefit of a notice such as section 80 C. P. C. prescribes.
The word relief' in section 80 C. P. C. means all reliefs which the plaintiff claims.
Government of the Province of Bombay v. Pestonju Ardeshir Wadia and others, A I R (1949) P C 143 ref.
S. 2 (k)‑‑Re instatement of workman‑Included in "industrial dispute".
Having regard to the meaning of the word '. non‑employment" in section 2 (k), Industrial Disputes Act 1947 it seems obvious that a claim by a workman to reinstatement in his employment is an industrial dispute within the meaning of this definition. If then the Government may refer a workman's claim to reinstate ment to an Industrial Tribunal and the Tribunal finds it right that the workman should be reinstated by his employer, it would be defeating the purpose of the Act to hold that the Tribunal does not have the power to award the workman's reinstatement.
An industrial Tribunal appointed under the Industrial Disputes Act 1947 has the power to award reinstatement of the workman.
Western India Automobile Association v. The Industrial Tribunal Bombay and others A I R (1949) F C 3 ref.
S. 12 (4) (6)‑ No time limit after receipt of report of conciliation officer within which Government must refer dispute to Tribunal.
------
---‑Temporary‑Discretion of Court Exami nation of merits‑Principles governing grant or refusal.
For proper exercise of the discretion to grant an injunction it is necessary to examine into the case in the light of the allegations made, the affidavits and documents filed, the nature and extent of evidence indicated or which may be expected to be led at the trial and the contentions of law raised, before a Court can decide whether it is right that the status quo should be maintained and the defendant restrained in the manner prayed. It is on such an examination that the Court can ascertain whether the plaintiff has a prima facie case. An injunction is never granted as of course or on the consideration that it will do the defendant no harm, or on the ground merely that withholding the injunction would render the suit infructuous and without going into the merits. It is all the more necessary under the Code of Civil Procedure 1908, to examine into the merits with some care, because once a temporary injunction is granted, it may take the suit a very long time to come up for hearing and be decided.
The person who seeks the aid of the Court in that behalf must, as a rule, be able to satisfy the Court on three points: (1) that there is a serious question to be tried at the nearing, and there is a probability that he will be entitled to the relief sought by him, or in other words, that he has a prima facie case to go to trial, (2) that the Court's interference is necessary to protect him from that species of injury which the Court calls irreparable before his legal right can be established on trial, and (3) that the comparative mischief or the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting it.
Wahiduddin Ahmad and Tufail Ali, for Appellant.
Sharifuddin, for Respondents 1, 2 and 3.
Ahsanullah, for Respondents 4‑55.
.‑This is an appeal against an order of Bachal, J. dismissing the plaintiff's application for a temporary injunction and discharging the interim injunction issued by Muhammad Bakhsh, J. on the ground that the plaintiff has made out no prima facie case. With the appeal, the appellant filed an application for a temporary injunction at the hearing, of which, in order to save hearing the same matter twice over, we set down the appeal itself for hearing.
The plaintiff's suit is for a declaration that the two notifica tions respectively dated 28th March, 1952 and 22nd May, 1952 of the Ministry of Labour, Government of Pakistan, referring to Mr. Mansur Alam as Industrial Tribunal under subsection (5) of section 12 of the Industrial Disputes Act (XIV of 1947) the disputes therein mentioned, and the Tribunal's interim award awarding reinstatement of respondents 5 ‑to 55 in the service of the appellant are ultra vires, and for a permanent injunction restraining Mansur Alam, respondent 2, from proceeding with the hearing of the disputes and the remaining respondents from taking ‑any action against the appellant in pursuance of the interim award.
It is said for respondents 1, 2 and 3 that under section 37 of the Industrial Disputes Act. 1947, no suit, prosecution or other legal proceeding lies against any person for anything which is in good faith done or intended to be done in pursuance of the Act or any rules made there-under, and that the section applies to this case and no suit lies.
This is however a protection clause dependent upon the existence of good faith which when set up in defence may be assailed by allegations of bad faith in subsequent pleading.
In G‑Scammel and Nephew Ltd. v. Hurley and others ((1929) 1 K N 419, 429.) Scrutton, L. J. dealing with ‑the protection clause in the Public Authorities Protection Act 1893 said :‑
" In my opinion, when a defendant appears to be acting as a member of a, public body under statutory authority and pleads the Public Authorities Protection Act, the Plaintiff can defeat that claim by proving on sufficient evidence that the defendant was not really intending to act in pursuance of the statutory authority, but was using his pretended authority for some. improper motive, such as spite or for a purpose entirely outside statutory justification."
In this case no written statement Was filed in the suit when the appeal was heard, and it is not known whether the protection of section 37 has been claimed in the written statement or whether good faith has been assailed in subsequent pleading. It is therefore not possible to say at this stage that the suit is defeated by section 37 of the Industrial Disputes Act. There is however no prima facie case for an injunction, because bona fides is to be presumed, and there is no allegation of mala fides in the appellant's plaint or affidavits.
It has been said that the notice given under section 80 C. P. C. mentions among the reliefs an injunction against Mr. Mansur Alam not to proceed with the hearing of the alleged disputes and to take no further action in purported exercise of the power conferred by the two notifications, whereas the plaint in addition seeks an injunction against the remaining respondents not to take any action in pursuance of the interim award against the plaintiff, and that therefore the suit is bad as against respon dents 1 and 3, The Federation of Pakistan and the Labour Commissioner, both of whom are entitled to the benefit of a notice such as section 80 C. P. C. prescribes.
In the Government of the Province of Bombay v. Pestonju Ardeshir Wadia and others (A I R (1949) P C 143) notice was served on the Government on behalf of plaintiff 1 but not on behalf of plaintiffs 2 and 3, and Sir Madhavan, Nair considering the provisions of section 80 C. P. C. which requires the notice to state the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims, observes that the Word plaintiff is in the singular which includes the plural, so that it is necessary for all the plaintiff's to give the notice which section 80 contemplates, and that the suit is incompetent for want of notice by the plaintiffs 2 and 3.
That reasoning applies to the present case.
The word 'relief' in section 80 C. P. C. means all reliefs which C the plaintiff claims, and these not having been mentioned, they suit is bad against respondents I and 3. As Sir Madhavan Nair observes at p. 146, the provisions of section 80 of the Code are imperative' and should be strictly complied with before it can be said that a notice valid in law has been served. No question of severability arises. The notice prescribed by section 80 C. P. C. has not been given and the suit is bad against the Federation of Pakistan and the Labour Commissioner, respondents 1 and 3.
The appellant's claim for an injunction against the remaining respondents now falls for consideration.
The principal grounds on which the notifications referring the disputes to the Industrial Tribunal are said to be ultra wires the Government, are, that the dispute as to reinstatement is not an industrial dispute as defined in clause (k) of section 2 of the Industrial Disputes Act 1947, that no report has been made by a Conciliation Officer within the fourteen days prescribed in subsection (6) or in conformity with subsection (4) of section 12 of the Act, that the Tribunal has no power under the Act to award reinstatement, that the Union respondent 4 is not repre sentative of the workmen respondents 4 to 55 whose reinstatement has been awarded by the Tribunal, and that the workmen have relinquished their rights by signing the document annexure C.
R. V. National Arbitration Tribunal, ex parte Horatio Crowther & Co. Ltd., is the principal case relied upon on behalf of the appellant where Lord Goddard, C. J. and Humphreys, J. considering the Conditions of Employment and the National Arbitration Order 1940, made under Regulation 55‑AA of the Defence (General) Regulation 1939, hold (Croom‑Johnson dissenting), that the direction to reinstate the workmen is ultra wires the Tribunal. Article 1 of that order provides for the constitution of the Tribunal and Article 2 sub‑paras (2) and (3) enables the Minister to refer the disputes to the Tribunal. Sub article (5) provides that the decision or award is to be an implied term of the contract between the employers and the workers to whom it relates. No sanction appears to have been provided for ‑a breach of the terms of the decision or award of the
In dealing with this aspect of the matter, Lord Goddard, C. J. at p. 696 observes :‑
"There are no express words either in the regulation or in the order which in terms give the tribunal any power to reinstate, but it is said that as they have power to deal with
(1) (1947) 2 All England Law Reports, 693.
any question relating to employment or non‑employment it follows that they must have the power to make an award of reinstatement. It seems to me a strong thing to say, looking at this regulation which alone gives force to the Order, that a power is thereby impliedly given to the tribunal to grant a remedy which. no Court of law or equity has ever considered they had power to grant."
The learned Lord Chief Justice then refers to the considera tion that the contract of employment between the employer and the workman was put an end to or could be put an end to by the employer and the order contains no provision for keeping the contract alive or in force.
The learned Lord Chief justice at p. 697 then compares this order with the Essential Work (General Provisions) (No. 2) Order, 1942, made under Regulation 58‑A which deals with employment in.‑ undertakings essential for the war under which an employer can discharge a workman and a workman can leave his employment only with the consent of a national service officer, so that the contract of service between them remains in existence, and the regulation provides heavy penalties on an employer who fails to reinstate a workman or to pay him the wages for the period between a dismissal without consent and a reinstatement directed by the National Service Officer. As there is no such provision in the National Arbitration Order 1940 or Regulation 55AA of the Defence ‑(General) Regulations 1939, and there is no means of enforcing the award for reinstatement, that appears to the learned Lord Chief Justice a cogent if not a compelling reason for saying that the Tribunal has no power' to award it.
The reasoning of that case does not apply to the case before us. Under section 29 of the Industrial Disputes Act 1947, a person who commits a breach of any term of an award which is binding on him under the Act ‑is liable to punishment on first conviction to a fine of Rs. 200, and on second or subsequent conviction to a fine of Rs. 500.
Clause (k) of section 2 of the Industrial Disputes Act 1.947 defines 'industrial dispute' as follows :‑
" Industrial dispute' means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non‑employment or the terms of employment or with the conditions of labour, of any person."
Having regard to the meaning of the word "non‑employment" it seems obvious that a claim by a workman to reinstatement in his employment is an industrial dispute within the meaning of this definition. If then the Government may refer a workman's claim to reinstatement to an Industrial Tribunal and the Tribunal finds it right that the workman should be reinstated by his employer, it would be defeating the purpose of the Act to hold that the Tribunal does not have the power to award the workman's reinstatement. There is no section or provision in the Act which seeks to lay down or define what remedy the Tribunal may or may not award, and since sanction is provided 5n section 29 of the Act for a breach of any term of the award, considerations relating to the remedies open to the workman to enforce the award no longer have any force.
The contention that when the contract of service has been terminated before the reference to the Tribunal a workman's claim to reinstatement is not an industrial dispute has been negatived in the English case above‑mentioned.
The case in Western India Automobile Association v. The Industrial Tribunal Bombay and others (A I R (1949) F C 111) has considered this English case at length and reached the conclusion that an industrial Tribunal appointed under the Industrial Disputes Act 1947 has the power to award re‑instatement of the workman.
It is said that the provisions of section 12 of the Industrial Dispute Act 1947 have not been complied with, in that the report of the Conciliation Officer has not been made within 14 days of the commencement of the conciliation proceedings as sub section (6) requires or in due conformity with subsection (4) of section 12 of the Act. The claim of privilege by respondent 1 appears to have given rise to these contentions. The report of the Conciliation Officer Mr. Puri, as also that of the Central Labour Commissioner Mr. Mahmood, have not been shown to us on behalf of respondent 1, and those portions whose disclosure has been considered detrimental to public interest have been pointed out, and upon our direction, true copies of them deleting there-from such portions, have been filed.
It is apparent from the report of Mr. Puri that he commenced conciliation proceedings on 10th December 1951, investigated the matter and tried to bring about the settlement, and having failed, made on 11th December 1951, a full report of the circum stances relating to the dispute as subsection (4) of section 12 of the Act requires. The Government were clearly entitled to act on this report and to refer the disputes to a Tribunal under subsection (5) as they did by orders notified on 28th March 1952, and 22nd May 1952. which are claimed to be ultra vires. The Act provides no time limit after receipt of the report within which the Government must refer the disputes to a Tribunal.
It is said that respondents 5 to 55 signed a letter annexure C, making an application for fresh employment with the plaintiff on the understanding that they had 'forfeited' all previous service claims, and that this has brought about an end to their claim for reinstatement. This has apparently taken place, if at all, before the disputes were referred to the Tribunal but after the report of the Conciliation Officer, and we do not see that any forfeiture or relinquishment of any rights has thereby occurred. In terms the letter speaks of no relinquishment. In effect, this is a repitition of the contention that because the contract of service has been terminated, no right to reinstatement can exist and therefore there is no industrial dispute which can be referred, which contention has been negatived.
It is said that the Union does not represent defendants 5 to 55 and that the disputes referred to the Tribunal are said to be disputes between the plaintiff and the Union. The Union is a compendious name for those members who are concerned in the disputes. The interim award of the Tribunal refers to the fact that nego tiations were carried on between the plaintiff and the office bearers of the Union, and that no attempt was made to question their representative character before the Tribunal.
It is said for the appellant that it does not have to show a prima facie case such as will probably succeed at the trial, that it has raised a substantial question to be tried, and that therefore a temporary injunction must issue to maintain the status‑quo. Reliance is placed on Walker v. Jones ((1886) 14 Times Law Reports 686.).
The discretion to grant or refuse a temporary injunction is, indeed a very difficult jurisdiction to exercise as Du Parck, L. J. observes in Thompson v. Park ((1944) All England Reports, 477, 480.). It is not possible at the interlocutory stage to reach or give any final opinion upon the matters which arise for consideration in the suit, and yet the consideration of them is necessary to some extent at least involved in the question whether there should be a temporary injunction. The matters raised then need to be examined into at the interlocutory stage to the extent the record of the case then existing permits, and that is what was done by the Privy Council in Walker v. Jones and by the Court of Appeal in Thompson v. Park.
By way of example, reference may be made to the way in which the Court of Appeal in England has dealt with 5 cases between the years 1878 and 1884 in Day v. Brownrigg ((1878) 10 Ch. D. 294.) the name 'Ashford Lodge' had been used by the plaintiff for 60 years and the adjoining house had been called 'Ashford Villa' for 40 years, but the latter name was changed to 'Ashford Lodge' thus causing inconvenience and annoyance to the plaintiff. The plaintiff filed a suit upon which there was a demurrer on the ground that the plaintiff had no legal right to the use of the name 'Ashford Lodge'. That right was examined by the Court of. Appeal at that stage and negatived.
In Aslatt v. Corporation of Southampton (L R (1880) 16 Ch. D 143.), the plaintiff, an alderman of a borough, had mad 'P a composition with his creditors but executed no composition deed; nor were any composition proceedings taken under' the Debtors Act though he had executed a bill of sale which was duly registered in favour of a person not a creditor to secure a sum of money advanced by him to meet the amount of the composition. A meeting of the corporation of the borough was summoned for the purpose of declaring the office held by the plaintiff vacant. Jessel, M. R. went into the relevant provisions of the Act and finding no prima facie case for declaring the plaintiff's office vacant, granted an interlocutory injunction.
In Quarts Hill Consolidated. Gold Mining Company v. Beall (( 1881) 20 Ch. D 501.), a solicitor acting for some share‑holders circulated among share holders a circular containing strong reflections on the mode in which the Company had been brought out and on the conduct of the promotors and directors, and proposing a meeting of the share‑holders to take steps to protect their interests. company commenced an action to restrain further publication of the circular and sought by an interlocutory application to restrain the publication of the‑libel. The rights of the parties were carefully considered by the Court of Appeal, due weight was given to the privileged nature of the publication, among the share holders and the injunction granted by the Court below was dis charged.
In Preston v Luck ((1884) 27 Ch. D 497), the Court of Appeal found a prima facie right to have matters kept in status quo to the extent covered by the defendant's admission, Cotton, L J observing "it was necessary that the Court should be satisfied that there is a serious question to be tried at the hearing and that on the facts before it there is a probability that the plaintiffs are entitled to relief."
In Baker v. White ((1884) Times Law Reports 64.) Bowen, L. J. found that the Court below (Kay, J) could not help seeing that a prima facie case of substantial annoyance was made out which, if it should be established at the trial. would win the plaintiff's case, and Fry, L. J. is reported to have said that, of course, the judge ought not to grant an injunction unless a Prima facie case was shown by the plaintiff. But here there was a body of evidence of the existence of a nuisance, and the learned judge came to the conclusion that this evidence was trust worthy.
For proper exercise of the discretion to grant an injunction it is necessary to examine into the case in the light of the allega tions made, the affidavits and documents filed, the nature and extent of evidence indicated or which may be expected to be led at the trial and the contentions of law raised, before a Court can decide whether it is right that the status quo should be maintained and the defendant restrained in the manner prayed. It is on such an examination that the Court can ascertain whether the plaintiff has a prima facie case. An injunction is never granted as of course or on the consideration that it will do the defendant no harm, or as in North Western Railway Administration v. N. W. Rly Union (A I R (1933) Lah. 203.) on the ground merely that withholding the injunction would render the suit infructuous and without going into the merits. It is all the more necessary under the Code of Civil Procedure 1908, to examine into the merits with some care, because once a temporary injunction is granted, it may take the suit a very long time to come up for hearing and be decided. The Code contains no provision corresponding to Order 50 Rule 1‑A of the Supreme Court of England under which when an application is made before trial for an injuction, the Court may make an order for early trial and give the necessary directions. It would indeed be poor exercise of the discretion to grant the extra ordinary remedy of a temporary injunction if it were to issue upon a structure of allegations as to facts and contentions as to law which cannot stand a preliminary scrutiny, such as the record of the case permits of at the interlocutory stage.
It appears from footnote (d) on p. 27 of Volume 18 of Halsbury's Laws of England, Hailsham Edition (to the con tribution of which Eve, J. of Chancery Division is a party), that " in the Chancery Division the modern tendency is to avoid trying the same question on two occasions and in ordinary cases only to grant interlocutory injunctions where the right to relief is clear." Of course there may be and are exceptional cases raising complex questions of fact or law in which such a preliminary inquiry may not bring to light a Prima facie case and yet a court may think that it is necessary to maintain the status quo by granting an injunction with or without imposing terms as to dura tion, keeping an account, giving security or otherwise as the necessities of the case may require. But such cases are exceptional, and their existence is no reason to dispensing with the examina tion of the case to see whether a prima facie case exists.
The principles on which a temporary injunction will issue have been treated as well settled and enumerated in The Daily Gazette Press Ltd v The Karachi Municipality, (25 S L R 142, 148 A I R (1930) Sind, 287, 288) as follows.‑
" The person who seeks the aid of the Court in that behalf must, as a rule be able to satisfy the court on three points : (1) that there is a serious question to be tried at the hearing, and there is a probability that he will be entitled to the relief sought by him, or in other words, that he has a prima facie case to go to trial, (2) that the Court's interference is necessary to protect him from that species of injury which the Court calls irreparable before his legal right can be established on trial, and (3) that the com parative mischief or the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting it."
This statement of the principles has been accepted in Mahesh war Dayal v. Yuvraj Dutta Singh, (A I R (1946) Oudh 44.)
The plaintiff himself is not able to specify what action he apprehends and has couched his relief as to injunction in very wide terms, to restrain the defendant not to take any action in pursuance of the award and notification against the plaintiff. It has not been suggested what such action might be. Under section 29 of the Act the plaintiff would be liable to punishment for breach of any term of the award which is binding upon him under the Act, and pre sumably the same would be the position in any other legal proceed ing based upon the award. The matters raised in this suit would therefore be open to the plaintiff in the event of a prosecution or other proceedings. The plaintiff has not shown what irreparable injury he will suffer if the temporary injunction is withheld, and for this reason also the application for a temporary injunction fails.
It is not necessary to consider the question of balance of in convenience.
We have reached the conclusion that the temporary injunc tion was rightly withheld, and dismiss the appeal with costs both of the appeal and the application. Respondents 4 to 55 will bear their own costs.
A. H. Appeal and application for
injunction dismissed
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer