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FIS Payment Solutions & Services India Pvt. Ltd. v/s All Bengal Contract Security Workmens Union & Others

    I.A. No. GA 3 of 2021 In C.S. No. 250 of 2019

    Decided On, 11 February 2021

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE DEBANGSU BASAK

    For the Appellant: Sakya Sen, Anju Singh, Shounak Mitra, J.B. Panda, Rishav Dutt, Zulfiqar Ali Alquaderi, Advocates. For the Respondents: Sarosij Dasgupta, Soumyajit Mishra, Advocates.



Judgment Text

1. By this application, the Defendant Nos.4 & 17 seek revocation of leave granted under Clause 12 of the Letters Patent, 1965 and under Order 2, Rule 2 of the Code of Civil Procedure, 1908 in the Suit. Such Defendants also seek the dismissal of the Suit and the Plaint.

2. Learned Advocate appearing for the Defendant Nos.4 & 17 submits that, the Defendant No.4 is a Trade Union, registered under the provision of the Trade Unions Act, 1926. The Defendant No.17 is an office-bearer of the Defendant No.4. He submits that, some of the natural persons who are the party Defendants in the Suit are Employees of the Bank. They were engaged by the Banks for the purpose of maintaining Automated Teller Machine (ATM) in the city of Kolkata. The Banks terminated the services of such Employees. On the termination of such services, industrial disputes within the meaning of Industrial Disputes Act, 1947 arose. There are proceedings pending before the appropriate forum under the Act of 1947 so far as the Industrial Disputes are concerned.

3. Learned Advocate appearing for the Defendant Nos.4 & 17 refers to Section 37 of the Act of 1947 and submits that, by reasons thereof, the claim made in the instant Suit is barred. He submits that no Suit lies against the Defendant Nos.14 & 17 in view of the provision of Section 37 of the Act of 1947. He refers to Section 26 onwards of the Act of 1947 and submits that, in the instances, where an Employee can be proceeded against under the Act of 1947 are provided. The suit is, therefore, not maintainable. In support of his contention that, the Suit is not maintainable, learned Advocate appearing for the Defendant Nos.4 & 17 relies upon R.S.R.T.C. and others v. Deen Dayal Sharma, 2010 (6) SCC 697.

4. Learned Advocate appearing for the Defendant Nos.4 & 17 submits that without prejudice to the previous contention, the Suit is not maintainable under the provision of Section 18 of the Trade Unions Act, 1926. The Defendant No.4 is a Trade Union registered under the provision of Trade Union Act, 1926.

5. Learned Advocate appearing for the Plaintiff submits that, the Plaintiff is claiming damages for the tort committed by the Defendants. He refers to the pleadings of the Plaint. He submits that, the Banks engaged a person for the purpose of maintaining the ATMs. Such person, entered into sub-vendor agreements with deferent persons for maintenance of the ATMs. None of the Defendants can claim themselves to be Employees of the Banks or of the Plaintiff.

6. Learned Advocate appearing for the Plaintiff submits that, from one of the Orders passed by the Interlocutory Court and an Appeal was preferred the Appeal Court when it was clarified that the Employees can approach the Industrial Tribunal, in accordance with law. He submits that, the Plaint of the instant Suit cannot be rejected.

7. The Plaintiff in the instant Suit claim damages from several persons. The Defendants in the Suit are both legal entities as well as natural persons. The Defendant No.4 apparently is a Trade Union registered under the Trade Unions Act, 1926. The Defendant No.14 claims himself to be an Office-bearer of the Defendant No.4.

8. A Plaint can be rejected under the provisions of Order 7, Rule 11 of the Code of Civil Procedure, 1908. In the facts of the present case, the Defendant Nos.4 & 17 cite Section 37 of the Act of 1947 and Section 18 of the Act of 1926 as complete bar to the present Suit.

9. Section 37 of the Act of 1947 is as follows:

"37.Protection of action taken under the Act.-No Suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder."

10. Section 37 of the Act of 1947 protects all bona fide actions taken by any person exercising powers under the Act of 1947 for the purpose of resolution of Industrial Disputes, from any Suit prosecution or legal proceedings. Section 37 of the Act of 1947 cannot be construed to mean that the jurisdiction of the Civil Courts to try suits between an Employer and an Employee, in relation to disputes which are not industrial disputes within the meaning of the Act of 1947 or the disputes are not in relation to any right created under the Act of 1947.

11. Deen Dayal Sharma (Supra) considers the issue as to whether the jurisdiction of the Civil Court to order reinstatement of the Employee and grant financial benefits of service. It considers various authorities on the subject and is of the view that the Civil Court does not have the jurisdiction to do so. On the issue of ouster of Civil Courts jurisdiction, it is of the view that, nature of right sought to be enforced is decisive in determining whether the jurisdiction of Civil Court is excluded or not. It is of the following view so far as ouster of jurisdiction of the Civil Courts are concerned:

"8. In the case of Rajasthan State Road Transport Corporation and another v. Krishna Kant and others, this Court was concerned with the question, where the dispute between the Employer and the Workmen involves the recognition, application or enforcement of the certified Standing Orders, whether jurisdiction of Civil Court to entertain a suit with respect to such dispute is barred. A three Judge Bench extensively considered the nature of the Standing Orders; the scope of 'Industrial Dispute' and a long line of cases of this Court, including Premier Automobiles, and summarized the legal position as follows:

"(1) Where the dispute arises from general law of Contract, i.e., where reliefs are claimed on the basis of the general law of contract, a Suit filed in Civil Court cannot be said to be not maintainable, even though such a dispute may also constitute an "Industrial Dispute" within the meaning of Section 2(k) or Section 2-A of the Industrial Disputes Act, 1947.

(2) Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the said Act.

(3) Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial Employment (Standing Orders) Act, 1946-which can be called "sister enactments" to Industrial Disputes Act-and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute Industrial Disputes within the meaning of Section 2(k) and Section 2-A of Industrial Disputes Act or where such enactment says that such dispute shall be either treated as an Industrial Dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to Civil Court is open.

(4) It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate Government. The power to make a reference conferred upon the Government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie. The power conferred is the power to refer and not the power to decide, though it may be that the Government is entitled to examine whether the dispute is ex facie frivolous, not meriting an adjudication.

(5) Consistent with the policy of law aforesaid, we commend to Parliament and the State Legislatures to make a provision enabling a Workman to approach the Labour Court/Industrial Tribunal directly-i.e., without the Requirement of a reference by the Government-in case of Industrial Disputes covered by Section 2-A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act.

(6) The certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Orders) Act, 1946 are statutorily imposed conditions of service and are binding both upon the Employers and Employees, though they do not amount to "statutory provisions". Any violation of these Standing Orders entitles an Employee to appropriate relief either before the forums created by the Industrial Disputes Act or the Civil Court where recourse to Civil Court is open according to the principles indicated herein.

(7) The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute-resolution mechanism to the Workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and Appeals upon Appeals and revisions applicable to Civil Courts. Indeed, the powers of the Courts and Tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an Industrial Dispute."

12. When the Civil Court in seisin of the Suit is faced with the issue as to whether the Suit is barred under the provisions of the Act of 1947 or not, is required to consider the rights that the Plaintiff is seeking to enforce. The Court applies the legal position as noted in Deen Dayal Sharma (Supra) to decide on such issue. In the facts of the present case, the Plaintiff claims to be engaged in the business in providing caretaker services, supply of ATMs to Banks and Financial Institutions. The Plaintiff claims that the Defendant Nos.7 & 8 who are Bankers, entered into two separate service agreements with the Plaintiff for providing ATM and other Security services including Caretaker services. The Plaintiff installed ATMs and provided services to the Defendant Nos.7 & 8 at diverse locations throughout Kolkata. The Plaintiff engaged the Defendant Nos.9 to 11 as caretaker Vendors. The Plaintiff entered into Master Service Agreements with the Defendant Nos.9, 10 & 11 for such purposes. According to the Plaintiff, the standard of security solution required to maintain and operate the ATM underwent drastic changes with technological advancement in committing crimes relating to ATMs. Consequently, the Plaintiff terminated the Master Service Agreements with the Defendant Nos.9, 10 & 11. The Defendant Nos.9, 10 & 11 accepted such termination. However, the Defendant Nos.1 to 6 and their Officer bearers and persons claiming to owe allegiance to such Defendants' indulged in disruptive activities crippling public services. So far as the ATMs are concerned, the Plaintiff lodged Complaints with the appropriate parties. The Plaintiff thereafter filed the instant Suit for damages against the Defendant Nos.1 to 6 & 12 to 17.

13. The Plaintiff is not claiming that any contract of employment exists between the Plaintiff and the Defendant Nos.1 to 6 & 12 to 17. The Plaintiff is not claiming that the Defendant Nos.12 to 17 or any member of the Defendant Nos.1 to 6 is an Employee of the Plaintiff. The Plaintiff is not seeking to enforce any obligation as against the Defendant Nos.1 to 6 & 12 to 17 arising out of a contract for employment. The claim against such Defendants is based on tort. The claims of the Plaintiff therefore cannot said to be barred under the provisions of the Act of 1947.

14. The contention of the Defendant Nos.4 & 17 that the Suit is barred under the provisions of Section 18 of the Act of 1926 requires consideration. Section 18 of the Act of 1926 is as follows:

€œ18. Immunity from Civil Suit in certain cases.-(1) No Suit or other legal proceeding shall be maintainable in any Civil Court against any registered Trade Union or any 1 [Office-bearer] or member thereof in respect of any act done in contemplation or furtherance of a trade dispute to which a member of the Trade Union is a party on the ground only that such act induces some other person to break a contract of employment, or that it is in interference with the trade, business or employment of some other person or with the right of some other person to dispose of his capital or of his Labour as he wills.

(2) A registered Trade Union shall not be liable in any suit or other legal proceeding in any Civil Court in respect of any tortious act done in contemplation or furtherance of a trade dispute by an agent of the Trade Union if it is proved that such person acted without the knowledge of, o

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r contrary to express instructions given by, the executive of the Trade Union.€ 15. Section 18 bars a suit against a Trade Union registered under the Act of 1926 or any Office-bearer or member thereof in respect of any act done in contemplation or furtherance of a trade dispute. It provides immunity to a registered Trade Union in respect of tortious act done in contemplation or furtherance of a trade dispute by an agent of a Trade Union if it is proved that such person acted without the knowledge, or contrary to express instruction given by the executive of the Trade Union. 16. In the facts of the present case, at best, sub-section 2 of Section 18 of the Act of 1926 is attracted. However, at the interim stage, it is not possible to invoke the provisions of Section 18(2) of the Act of 1926 and say that instant Suit is barred as against Defendant Nos.4 & 17. The issue as to whether, any person or the Defendant No.17 acted with the knowledge, or contrary to express instruction given by the executive of the Defendant No.4 is an issue of fact which ought to be decided after affording the parties opportunity to lead evidence on such aspect. 17. In view of the discussions above, it cannot be said that the instant Suit is barred by law. Therefore, I find no merit in the present Application. I.A. No.GA 3 of 2021 in C.S. No.250 of 2019, is dismissed without any order as to Costs.
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