MINING AND ALLIED MACHINERY CORPORATION, LTD. (BY ITS LAW OFFICER AND CONSTITUTED ATTORNEY, N.K. MANDAL Vs. SUPERINTENDENT OF POLICE, ST. THOMAS MOUNT, MADRAS

JUDGEMENT

(1.) A question which often entreats the Court, partly because the Court is weighed down by the responsibility and partly because of the unhelpful attitude adopted by parties, has come up for decision in this writ petition The brief facts are as follows. The petitioner is a company wholly owned by the Government of India. it carries on the business of manufacturing machinery and equipment for mining of coal, such as coal cutters, leaders, conveyors, haulages, locomotives, winders, main axial fans, booster fans, pumps, ball mills, sand pumps, automatic cage keeps, etc. including spare parts thereof, whether for open cast or underground working and other allied items including coal handling and coal washing plants as well as general engineering machinery and structurals and rough steel castings, ferrous and non-ferrous castings and forgings and stampings. As part of its main business, the petitioner manufactures and supplies mining machinery and equipments such as cutters, conveyors, locomotives and other allied items. The petitioner supplies machinery and equipments manufactured by it both to domestic and international customers. A contract was awarded on 19 March 1981 by M/s. Vuesejusueje Objedinenije "Matellurginport," Moscow, U.S.S.R., for the supply of winches, belt conveyors, idlers, crushers and ancillary items. Clause 15 of the contract provided for sanctions in the event of delay in the delivery of the equipments and spare parts and the technical documentation. In the event of delay in delivery exceeding six months, the buyer had the option to cancel the non-performed portion of the contract without prejudice to penalty. In view of the aforesaid provisions of the contract and taking into account the prestigious nature of the work and the foreign exchange that was involved in the transaction the petitioner was of the desire that the contract should be performed in time. With a view to ensure the due and timely performance of the contract, the petitioner sub-contracted a portion of the contract awarded to it to the second respondent, viz., M/s. Binny Ltd., Madras. In pursuance of the offer received from the second respondent, the petitioner placed orders on the second respondent for the supply of part of the equipments which were to be supplied to the Russian buyer in pursuance of the order placed by it on the petitioner. The value of the orders placed by the petitioner on the second respondent was to the tune of Rs. 53,60,000 while yet another order was of the value of Rs. 34,21,856. Pursuant to the above contracts, the second respondent supplied seven sets of winches under the first contract and one set under the second contract. The remaining one set under the first contract and seven sets under the second contract were not supplied in accordance with I the terms of the contract. The second respondent informed the petitioner that it was not in position to supply the remaining items under the aforesaid three contracts on account of labour unrest in its factory and the consequent lockout. However, one set of winches was in the process of manufacture in the second respondent's factory. Having regard to this situation, the unperformed I part of the contract was cancelled. The I petitioner agreed to take delivery of one set of winches manufactured by the second respondent in its factory, subject to the second respondent being able to deliver the same to the petitioner within a reasonable time. Concerning this, the petitioner was informed by the second respondent that the same was completed and ready in all respects except for the test run. When the petitioner approached the second respondent for delivery of the same, the second respondent pleaded its inability on the ground that there was lockout. Further, there was an order of Court injuncting the second respondent from removing any semi-finished goods or raw material from the factory, though there was no such injunction in respect of the finished goods. The petitioner states that by reason of the delay on the part of the second respondent in delivering one set of winches, which have been manufactured and kept ready, the petitioner's obligation for the performance of its contract to the Russian buyer was being unduly delayed. Therefore, the petitioner, apprehending that should the petitioner seek to take delivery of the goods, there was likely to be breach of peace and consequently neither the petitioner, which is a Government company, nor the third respondent, which is a public limited company, could clear the goods which were lying idle after they were manufactured and got ready for delivery causing avoidable loss and embarrassment to the petitioner, a request was made of the first respondent, viz., Superintendent of Police, St. Thomas Mount, Madras 16, by letter, dated 21 May 1987, to afford necessary police protection for the removal of the goods. The first respondent has not so afforded and has expressed his helplessness to interfere in that matter unless there is a directive from an appropriate Court in view of the situation prevailing in the factory of the second respondent. It is in these circumstances, the present writ petition has been preferred contending that no jeopardy would be caused to the interest of any person, including the workers of the second respondent, the thud respondent or the workers' union. On the contrary, if the goods manufactured for the petitioner are allowed to lie in the factory of the second respondent without being delivered to the petitioner, it would cause unnecessary loss to the petitioner as well as to the second respondent. These goods being tailor-made to suit the specific needs of the petitioner, cannot be used by any other person nor can they be sold in open market by the second respondent. The clearance of the above goods from the second respondent's factory is wholly in accordance with law since the goods have been specifically manufactured by the second respondent for the petitioner and the petitioner is, in terms of the contract, entitled to take delivery of the same. The petitioner is not in any manner involved with any of the demands or is concerned with any of the claim of the workers of the second respondent, nor do the workers of the second respondent have any claim against the petitioner. The unnecessary detention of the goods does not in any manner help to solve or settle the claims or the problems of the workers, but would only cause delay and damage to the petitioner. Thus, the prayer is made for the issue of a writ of mandamus, direction or order directing the first respondent, viz., the Superintendent of Police, St. Thomas Mount, Madras 16, to provide necessary police protection -to the petitioner and the second respondent to enable the petitioner to take delivery from the second respondent of one set of 18 ton winches manufactured by the second respondent for the petitioner, and restrain the third respondent, his agents or servants or any member of the workers' union of Binny, Ltd., or any persons on their behalf from interfering with or preventing such delivery.

(2.) A counter-affidavit has been filed on behalf of the second respondent, wherein it is stated that it has no objection for delivery to the petitioner of one set of winches manufactured by it, subject to the following conditions :

(3.) A counter-affidavit has been filed by the fourth respondent, Binny Beach Engineering Workers' Union, by its general secretary, which has been impleaded as a party, firstly stating that the lockout itself is illegal and tracing prior proceedings in Original Suit No. 2247 of 1985 on the file of the District Munsif of Poonamallee, Writ Petition No. 369 of 1986 and Writ Appeal No. 39 of 1986 on the file of this Court and Special Leave Petition No. 1321 of 1986 on the file of the Supreme Court. Pursuant to the order of the Supreme Court an application filed for conciliation had failed because the management had adopted all possible unfair means This necessitated the workers to seek justice from all quarters. They represented to the Government of Tamil Nadu that the lockout was illegal and it was only a measure to circumvent the Labour Commissioner's order, refusing to grant permission to close down. Meanwhile, the management had taken a vindictive attitude and the lockout itself is mala fide in nature. The State Government had issued an order under S. 10B of the Industrial Disputes Act as an interim arrangement, pending final adjudication by the Tribunal. The management did not implement the order either with reference to the lifting of the lockout or for the disbursal of arrears of wages. This necessitated the fourth respondent union to prefer Writ Petition No. 1162 of 1986 in the Supreme Court of India, which is pending. The fourth respondent would state that the petitioner is not entitled to any relief since the interim injunction granted by the District Munsif, Poonamallee, is still in force in regard to semi-finished goods and raw material. The product required by the petitioner is not in a finished condition. The following works, among other things, remain to be done still, work of assembly, testing, painting and packing. All the aforesaid jobs are of big nature since the product is a huge winch and assembly, testing, painting and packing are major items of work on such a product. Hence, the product, as ordered in the contract is not yet ready for delivery and is still in a semi-finished condition. Therefore, if such semi-finished goods are allowed to be removed, that will be in violation of the order of the Supreme Court in Special Leave Petition No. 1321 of 1986. A similar prayer made by a third party in Writ Petition No. 9727 of 1986 has been refused by this Court by judgment, dated 3 Nov. 1986. The Court has taken the view that the dispute is of a civil nature and the parties should approach the civil Court for relief.