RALLIS INDIA LIMITED Vs. F.H. LALA

JUDGEMENT

(1.) THIS petition was admitted by me and Rule issued in terms -of prayers (a) and (b) thereof which has been made returnable on September 8, 1969. An application is now made before me for leave under Order I Rule 8 being granted as far as respondents Nos. B and 4 are concerned so that they can represent themselves and all other workers who were discharged by Rallifan Ltd. between August 1, 3963 and December 31, 1963. The only facts which need be set out at this stage are that, by a notification dated May 11, 1964, a Court of Inquiry under Section 6 of the Industrial Disputes Act, 1947, was constituted by the State Government to inquire into certain matters of dispute between Rallifan Ltd. and their workmen, including the question as to whether the discharge of some of the workmen was justified. It may be stated that Rallifan Ltd. was amalgamated with the petitioner company on October 13, 1966. The Court of Inquiry submitted its Report to the Government on June 23/1966. On February 15, 1967, the State Government made a Reference to the Industrial Tribunal, Bombay, in respect of the question as to whether the workmen who were discharged or whose services were terminated by the Company during the period from August 1, to December 31, 1963 should be reinstated in service with all back wages and continuity in service. It is that Order of Reference which is sought to be impugned in the present petition on certain grounds into which it is unnecessary to enter for the purpose of the present application. The Union of workmen which represented them in the Reference has been made respondent No. 2 to the present petition, and the State of Maharashtra has been made respondent No. 5. None of the workmen appeared individually at the hearing - of the Reference. The petitioners, however, seek to join in this petition respondents Nos. 3 and 4, who are two of the workmen discharged during the relevant period from August 1 to December 31, 1963 as representing themselves and other workmen who have been similarly discharged, and the question before me is whether leave under Order I Rule 8 can be granted in a writ petition. As the question is of frequent occurrence and of some importance, after the argument before me was concluded, I had reserved orders in the case.

(2.) THE first question is whether respondent No. 2 Union sufficiently represents the workmen discharged during the relevant period in the present proceedings, with the result that no leave under Order I Rule 8 would be necessary. As far as that question is concerned, the Award of the Industrial Tribunal is not only binding on the members of the Union which has appeared before it, but also on non -members. This is clear from the provisions of Sub -section (3) of Section 18 of the Industrial Disputes Act, 1947. The Union concerned may represent its members in proceedings before the Industrial Tribunal and the award of the Tribunal may be binding even on persons who are not members of such Union, as already stated above, but in my opinion, a union does not represent the workmen in writ proceedings in this Court, nor would orders passed in writ proceedings by this Court be binding upon the workmen if they are not parties to it. As held by this Court in the case of Ahmedalli Abdulhusein v. Lalkaka (1953) 55 Bom. L.R. 578, and by the Allahabad High Court in the case of K.B. Sharma v. Transport Commr., U.P., Luck : (1969)IILLJ594All persons directly affected by the relief prayed for in a petition under Article 226 must be impleaded. I am, therefore, of the view that it is necessary to make the workmen concerned parties to the present petition.

(3.) IF an application for leave under Order I Rule 8 were to be made in respect of the petitioners to a writ petition, it would, in my opinion, have to be rejected on the ground that the procedure under Order 1 Rule 8 is inappropriate and inapplicable. The existence of a right and the infringement thereof are the foundation of the exercise of the jurisdiction of the Court under Article 226 of the Constitution, and the right that can be enforced under that Article must ordinarily be 'the personal or individual right of the applicant' (State of Punjab v. Suraj Parkash : [1962]2SCR711 ). It must ordinarily be 'the personal or individual right of the petitioner himself' who complains of the infraction of such right and approaches the Court for relief (Cal. Gas Co. (Prop.) Ltd. v. State of W.B. : AIR1962SC1044 ). In a writ petition, there, fore, each petitioner is ventilating his own personal grievance and vindicating his own individual right. Moreover, the granting of relief to the petitioner in a writ petition is discretionary and depends on several factors which the Court has to take into account, such as, the exhausting of an alternative remedy by the petitioner before the Court, the conduct of a particular petitioner being such as not to disentitle him to relief (Halsbury 3rd Bdn. Vol. 11 pp. 140 -141 para. 265), the violation of rules of natural justice with regard to one or other of the petitioners, as well as the question of delay. Such considerations apply even when the petitioner complains of the violation of a fundamental right under the Constitution and, indeed, the Supreme Court has so held in regard to the question of delay in two very recent unreported decisions (Tilokchand Motichand v. H.B. Munshi (1968) Writ petition No. 53 of 1968 decided on November 22, 1968 (Supreme Court) and Durga Prashad v. Chief Controller of Imports and Exports (1968) Civil Appeal No. 116 of 1965 decided on November 22, 1968 (Supreme Court), following the view of Gajendragadkar C.J. in the unreported Supreme Court decision in Smt. Narayami Devi Khaitan v. State of Bihar (1964) Civil Appeal No. 140 of 1964 decided on September 22, 1964(Supreme Court)). The Court has also to consider the question whether to grant relief to a particular petitioner would work injustice in a broad sense, as was done by two Division Benches of this Court in the cases of State of Bombay v. Morarji (1958) 61 Bom. L.R. 318 and Paygonda Surgonda v. Jingonda (1967) 69 Bom. L.R. 579. To grant leave under Order I Rule 8 to petitioners to apply for relief under Article 226 on behalf of themselves and all others in the same interest would amount to permitting persons who may be disentitled to relief in their own right on one or other of the above grounds to get relief by the process of being 'lumped together' with others who are entitled to it. The granting of such leave in respect of the petitioners to a writ petition is therefore inappropriate. My attention was drawn to certain observations of a Division Bench of this Court in the case of United Motors (India) Ltd. v. The State of Bombay (1952) 4 S.T.C. 10 : 55 Bom. L.R. 246 in which this very point was raised in regard to the petitioners in that case. Though the learned Chief Justice who delivered the judgment of the Bench distinguished the observations in an old English case which was cited before him which indicated that leave under Order I Rule 8 could not be granted to a petitioner in a writ petition, he did not proceed to decide that point at all, but what he said, after a brief discussion, was, -.even assuming that the Advocate -General was right, at the highest, the joining of more than one petitioner would be a surplusage and that surplusage could be cured by six of the petitioners being struck off the record. The petition could easily be maintained by one out of the seven petitioners. The learned Chief Justice then passed on to other points in the case. I do not read the judgment of the Bench delivered by Chagla C.J. in the United Motors' case as being a decision on the point which I am now considering. In Muhammad Ibrahim v. Dy. C.T. Officer, Pudukottai : (1956)2MLJ23 the matter was put up before Rajagopala Ayyangar J. on an office objection relating to the joinder of eleven petitioners in a petition under Article 226 of the Constitution in which the vires of a State Act was impugned. The learned Judge in upholding the office objection observed as follows (p. 25) :.Where a petitioner desires to question the validity or legality of an order, he is entitled to apply for an appropriate writ but this right of his flows from the order affecting him. The fact that similar orders are passed in the case of other individuals also, be it by the same officer or authority, does not mean that the injury caused is a common or class injury so as to justify a single petition with all the individuals similarly affected joining in it as petitioners. The provision in Order I, Rule 8, Civil Procedure Code, seeks to obviate the inconveniences arising out of a multiplicity of partiesbut neither, the rule nor its principle can be extended to Writ Petitions. Again the fact that the relief prayed for by the several petitioners each of whose individual right is alleged to have been invaded improperly by the impugned order is grounded on a common objection, the invalidity of the legislation or the rule or some order interpreting or enforcing the statute or the rule does not also afford any basis for a joint Writ Petition by several petitioners aggrieved by similar orders, Each of them has to the independent petitions, paying separate Court -fee on each, with separate vakalat, etc. 4. The learned judge, therefore, directed that the petition be amended so as to retain only one petitioner on the record, and admitted the petition as so amended. The view expressed by Rajagopala Ayyangar J. in the passage quoted above was clearly an obiter dictum for, as the report of the case in which the Office Note has been reproduced in the footnote shows, no question of leave under Order I Rule 8 arose before the learned judge in that case. For the reasons stated above, I am, however, in agreement with the view expressed by Rajagopala Ayyangar J. that neither Order I Rule 8, nor its principle, can be extended to petitioners in a writ petition. This decision of Rajagopala Ayyangar J. Was referred to by Subba Rao C.J. in a Division Bench decision in the case of A. Adinarayana v. State of Andh. Pra. : AIR1958AP16 where, in discussing the same, Subba Rao C.J. observed (para, 7 at p. 18) : This judgment is authority for the position that the provisions of Order I Rule 8 C.P.C. cannot be applied to a writ petition. It is not necessary to express our opinion in this case but the conclusion may be justified on the ground that the said procedure is inappropriate to writ petitions. The statement of Subba Rao C.J. that the judgment in Muhammad Ibrahim's case is authority for the proposition that the provisions of Order I Rule 8 cannot be applied to writ petitions is, with respect, erroneous, in so far as the same is an obiter dictum, as already stated above. Subba Rao C.J. then proceeded to bold (paras. 5 and 10) that the position in regard to the other provisions of Order I, and in regard to 0, II of the Code of Civil Procedure is different and the same are applicable to petitions under Article 226 of the Constitution by reason of Section 141 of the Code of Civil Procedure. Though Subba Rao C.J. was also not concerned in the said case with the provisions of Order I Rule 8 of the Code of Civil Procedure, he has indicated in the passage from his judgment quoted above that the view taken by Rajagopala Ayyangar J. in Md. Ibrahim's case might well be justified on the ground that the procedure under Order I Rule 8 was inappropriate in regard to writ petitions. The decision of the Calcutta High Court in the case of Jay Engineering Works v. State : AIR1968Cal407 , S.B., paras 35A, 36 and 271 was also referred to by Mr. Kaka in the course of his arguments, but the same refers to the applicability of Order I Rule 1 and Order II Rules 1 and 3 of the Code of Civil Procedure and has no bearing on the question as to whether Order I Rule 8 of the Code of Civil procedure is applicable to a petition under Article 226 of the Constitution. Another decision of the Calcutta High Court viz. that in the case of Bimal Behari v. State of West Bengal (1962) C.W.N. 912 has been referred to in the judgment of Sinha C.J. (para. 86) in the Jay Engineering Works' case as lying down that Order I Rule 8 of the Code of Civil Procedure applies to a writ petition by reason of Section 141 of that Code, but on a careful perusal of the judgment of Banerjee J. in the said case, I am not prepared to regard it as an express decision to that point. In any event, if Bimal Behari's case can be construed as laying down that proposition by implication, I do not agree with the same. In my opinion, none of the cases discussed by me above can be said to be a direct authority on the point which I am now considering, For the reasons -stated above, I however approve of the view expressed by Rajagopala Ayyangar J. in his obiter dictum in Muhammad Ibrahim's case cited above and hold that if an application for leave under Order I Rule 8 were to be made in respect of the petitioners in a petition under Article 226 of the Constitution, it would be appropriate to apply the provisions of Order I Rule 8 to the same. In that view of the matter, the words 'as far as it can be made applicable' in Section 141 of the Code of Civil Procedure would make the provisions of Order I Rule 8 inapplicable in such cases.