PREMIER AUTOMOBILES LIMITED Vs. KAMLAKAR SHANTARAM WADKE

JUDGEMENT

(1.) This is an appeal under clause 15 of the Letters Patent by the original defendant No. 1 against a decree of injunction passed by the City Civil Court and confirmed in appeal by the learned single Judge of this Court. Only two points of law are raised before us, but, in order to appreciate them, a few facts may be noted.

(2.) The dispute in the suit relates to the Motor Production Department in the Kurla Factory of defendant No. 1-Company known as "Premier Automobiles Limited". Originally, there were 425 workers in this department to which were added by about September, 1970, twenty-seven more workers who were learners. Long before this event, there was an incentive scheme in operation introduced by defendant No. 1 under an agreement dated August 5, 1964 with the Engineering Mazdoor Sabha of which plaintiffs Nos. 1 and 2 are members. A certain scale of payment was contemplated under this agreement and this was an agreement under S. 18(1) of the Industrial Disputes Act, 1947. The incentive scheme was modified twice and the final scheme which was in operation at the time when the dispute arose was under an agreement dated December 31, 1966. Plaintiffs, who have filed this suit under O.I.R. 8 of the Civil Procedure Code, complain that some new agreement has been arrived at between defendant No. 1-company and defendant No. 2 which is an association of engineering workers and which is also a trade union registered under the Trade Unions Act. This new scheme was given retrospective effect from September 1, 1970, but it became known to the plaintiffs only when the notice dated March 15, 1971 was displayed upon the notice board of the company. To the surprise of the plaintiffs, they found that this was a scheme to which they were not party, and the union of which they were members which, according to the plaintiffs, has a much larger membership, was also not a party to the new scheme. This new scheme was sought to be unilaterally enforced upon the plaintiffs whose right to receive incentive bonus payments under the incentive scheme was being adversely affected. Initially, the plaintiffs made two prayers. One was to declare that the settlement dated January 9, 1971 arrived at between defendant No. 1-company and defendant No. 2 union is not binding on the plaintiffs and other concerned daily rated and monthly rated workmen of the Motor Production Department of defendant No. 1 company who are not members of defendant No. 2 union and the second prayer was for an induction restraining defendant No. 1-company, its servants and agents permanently from enforcing or implementing the terms of the said private settlement dated January 9, 1971. An interim order was passed by consent of parties and the hearing of the suit was expedited. Plaintiffs' main contention on merits was that the new scheme so called is mala fide and injurious to the rights of plaintiffs and as such defendant No. 1-company, its servants and agents be permanently restrained by an order and injunction of the Court from enforcing and/or implementing the terms of the agreement dated January 9, 1971. This suit is resisted by defendant No. 1-company mainly in two grounds. According to defendant No. 1, the settlement dated January 9, 1971 arrived at with defendant No. 2 is undoubtedly one under S. 18(1) of the Industrial Disputes Act, 1947, but it is a settlement which has been in operation since September, 1970 and in which the plaintiffs and other workers in the position of plaintiffs have acquiesced. It is pointed out that the dispute, which is sought to be raised in the suit, is, in the real sense of the term, an industrial dispute covered by the provisions of the Industrial Disputes Act, 1947 and as such, the Civil Court could not entertain the suit. It was also urged that a perpetual injunction as claimed for by the plaintiffs could not be granted and also should not be granted in view of the circumstances obtaining in this litigation. Firstly, it was urged that a permanent injunction should not be granted, because the contract of service and the terms of payment are in the very nature of things variable from time to time and there is a provision under the settlement for revising these terms, and if an permanent injunction is granted is would be difficult to revise the terms of the settlement. It was further urged that the new incentive scheme came into operation from September 1, 1970 and the plaintiffs, with the knowledge of the scheme, received payments under it and thereby acquiesced in it. This disentitles them from claiming any injunction which is a discretionary relief granted by the Court.

(3.) On these pleadings, the learned trial Judge, after taking into account both oral and documentary evidence, found as a matter of fact that the new scheme was mala fide and injurious to the plaintiffs and the new scheme being a settlement under S. 18(1) of the Industrial Disputes Act, 1947, could being only parties to it and not others. In other words, the members of defendant No. 2 union could alone be bound by this new scheme and not the plaintiffs and others who are not consenting parties to the new scheme and not the plaintiffs and others who are not consenting parties to the new scheme. The learned trial Judge came to the conclusion, after discussing the nature of the litigation, the relief claimed therein and the scheme of the Industrial Disputes Act, that the jurisdiction of the Civil Court does not seem to have been ousted and he could entertain a suit of the present nature. The Learned Judge, however, found that the declaration as claimed in prayer clause (a) of para 16 of the plaint could not be granted. But on the findings arrived at, the learned trial Judge thought that he could give a limited injunction which he gave. The decree for injunction ultimately granted by the learned trial Judge restrains defendant No. 1 from enforcing and/or implementing the terms of the agreement dated January 9, 1971 against the workmen of its Motor Production Department who are not members of defendant No. 2 union. The operation of this injunction was further explained by pointing out that it will not operate in regard to any workman who is not a member of defendant No. 2 union but it will operate against the workman if he in writing agrees to accept the terms of the agreement dated January 9, 1971 from the moment he so agrees. It was further clarified that this injunction will cease to operate if defendant No. 1 takes steps in accordance with law to get and succeeds in getting the agreement dated January 9, 1971 made binding on its workmen of the Motor Production Department who are not members of defendant No. 2 union, from the moment the agreement becomes binding on them. The injunction is further qualified by saying that if defendant No. 1-company gives any notice under S. 9A of the Industrial Disputes Act, 1947, the injunction shall cease to be operative at the expiry of three months after the expiry of twenty-one days from the date of that notice.