G S DHARA SINGH Vs. E K THOMAS

JUDGEMENT

(1.) The question involved in this petition is whether a member of a trade union is entitled to ask for an account and to claim refund of the sums received by the trade union from the management for and on his behalf on his ceasing to be a member of the said, trade union.

(2.) Respondents 1 and 2, E. K. Thomas and K. K. Surendran respectively, were employees of a certain management which was the member of the Cochin Railway Forwarding Agents Association whose President is impleaded as Respondent No. 4 in this petition. The management concerned was doing the business of a clearing agent in the Cochin Harbour Terminus Railways Goods Shed. The respondents 1 and 2 were working as head load workers. Some of the employees working under the management concerned were members of a trade union called Cochin Port Thozhilali Union (hereafter referred to as 'the trade union') whose General Secretary is impleaded as Respondent No. 3 in this petition. The petitioner, G. S. Dhara Singh was the President of the trade union. The terms and conditions of service including the rates of wages and other allied matters relating to the head load workers were decided and settled through mutual negotiations between the trade union and Respondent No. 4. Under an agreement entered into in October, 1973 an amount equivalent to 10 paise out of every rupee earned by the workers was deducted by the management towards the gratuity fund and transferred to the trade union for and on behalf of the workers. Under another agreement a sum equivalent to 10 paise per rupee in the wages of the workers was paid by the management to the trade union towards accident benefit fund of which the workers were the beneficiaries. The amount so collected were entrusted to the petitioner, who was also the treasurer and custodian of the funds of the trade union. It is alleged that the petitioner deposited the amounts so received by him in his personal name in this bank account. No account of the amounts so received by him was rendered and the members of the trade union found that it was not possible to keep control over the funds so received by the petitioner. The petitioner who was the President of the trade union did not call any general body meeting and thus the members of the trade union could not ventilate their grievance regarding the mismanagement of the funds received by the petitioner by democratic means. In view of the above difficulty faced by them 85 workers including Respondents I and 2 and three others, namely, K. T. Raghavan, A. N. Joseph and K. J. Anthappan, resigned from the trade union on 13-1-1976 and formed a separate union of their own, which was registered under the Trade Unions Act. Thereafter Respondents Nos. 1 and 2, K. T. Raghavan, A. N. Joseph and K. J. Anthappan instituted five suits being Original Suits Nos. 49 to 52 and 54 of 1977 on the file of the Munsiff, Cochin against the petitioner and Respondent No. 3 praying for a decree directing the petitioner and Respondent No. 3 to render an account of the amounts collected on their behalf from December, 1969 towards the accident benefit fund and from October, 1973 towards the gratuity at the rate of 10 paise per rupee under each head and to pay the amounts due to them. Each of the plaintiffs in the said suits estimated the amount payable to him at Rs. 3000/-. They also claimed future interest at 6 per cent per annum on the amounts found to be due to them till the date of payment.

(3.) The petitioner, who was the President and Treasurer of the trade union took up various pleas denying his liability to render account and to refund the amount. One of the pleas raised by the petitioner was that since the plaintiffs had resigned and ceased to be the members of the trade union they had no right to claim the refund of the sums due to them from out of the funds of the trade union and that if they re-joined the trade union they would be entitled for payment of gratuity and accident benefit when occasion arose for payment of the same. He also pleaded that the suits were not maintainable in civil courts in view of the provisions of the Payment of Gratuity Act, 1972 and the Workmen's Compensation Act, 1923. On the basis of the pleas raised by the parties, the Trial Court framed two issues, in each of the suits namely, (i) whether the plaintiff could ask the petitioner and Respondent No. 3 to render an account of the amounts received by them and (ii) whether he was entitled to claim the refund of any amount. All the five suits were tried together and they were disposed of by a common judgment dated 31-5-1979 by the learned Munsiff. By his judgment the Munsiff passed a preliminary decree against the petitioner and Respondent No. 3 directing them to render an account of the amounts received by them towards the accident benefit fund from December 1969 to 16-11-1975 and towards gratuity from October, 1973 to 16-11-1975. The learned Munsiff further directed that each of the plaintiffs was entitled to get proportionate share of the amount due to him from out of the total amount received by the petitioner and Respondent No. 3. He further directed the plaintiffs to apply for a final decree for ascertaining the actual amount due to them in accordance with the preliminary decree passed by him along with future interest at 6 per cent per annum from the date of suit till date of realization. Aggrieved by the judgment and decrees passed by the learned Munsiff the petitioner filed two appeals in A. S. 122 of 1979 and A.S. 124 of 1979 on the file of the Additional Sub-Judge, Cochin against the decrees passed by the Munsiff in favour of Respondents Nos. 1 and 2 respectively. After hearing the parties the learned Sub-judge found that the petitioner and Respondent No. 3 had received from the management amounts on behalf of the workmen concerned towards gratuity and accident benefit fund but the plaintiffs were entitled to the decree at the hands of the Civil Court since the suits were not maintainable in view of the provisions of the Payment of Gratuity Act, 1972 and the Workmen's Compensation Act, 1923 which provided for separate remedies. He accordingly set aside the decrees passed in favour of Respondents Nos. 1 and 2 in the suits filed by them. Aggrieved by the common judgment dated 21-8-1980 of the learned Additional Sub-Judge Respondents Nos. 1 and 2 filed Second Appeal No. 527 of 1981-F and Second Appeal No. 536 of 1981-G respectively on the file of the High Court of Kerala. The two second appeals were heard together and the High Court by its common judgment dated 22-10-1987 set aside the judgment and decrees passed by the First Appellate Court and restored the judgment and decrees passed by the Trial Court. This Special Leave Petition is filed by the petitioner against the said common judgment of the High Court under Article 136 of the Constitution of India.