:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE APPEAL FROM ORDER NO.62 OF 2007 APPEAL FROM ORDER NO.62 OF 2007 APPEAL FROM ORDER NO.62 OF 2007 WITH WITH WITH CIVIL APPLICATION NO.97 OF 2007 CIVIL APPLICATION NO.97 OF 2007 CIVIL APPLICATION NO.97 OF 2007 WITH WITH WITH CIVIL APPLICATION NO.126 OF 2007 CIVIL APPLICATION NO.126 OF 2007 CIVIL APPLICATION NO.126 OF 2007 The New India Assurance Co. Ltd. A Government of India Undertaking having Its registered Head Office at 87, Mahatma Gandhi Road, Fort, Mumbai-400 001. ...Appellant. v. 1. Bhartiya Vima Karmachari Sena represented by Mr.Shrikanth Khanvalkar and Mr.Sharad Jadhav 2. The New Indian Assurance Officers Assn" represented by Dr.P.M.Ugaonkar Gen. Sec. 3. National Federation of General Insurance Employees-represented by Mr.R.V.Shetty 4. Bhartiya Vima Karmachari Union represented by Mr.I.D.Hankare 5. All India Confederation of General Insurance Employees Association represented by Mr.Suvarna 6. General Insurance All India Employees Association represented by Mr.Agate 7. All India General Insurance SC/ST Welfare Association represented by Mr.Anil Sonawane 8. Gen. Insurance Development Officers Association represented by Mr.Ajit Gupta President All having their office at 87, M.G.Road, Fort, Mumbai- 400 001. ..Respondents. Mr.M.Shukla i/by M/s. Desai & Diwanji , adv. for the Appellant. :2: Mr.A.D.Shetty , adv. for the Respondent Nos.1,2 and 6. Mr.G.N.Salunkhe, adv. for the Respondent No.7. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 6th May, 2008. DATE: 6th May, 2008. DATE: 6th May, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Heard the learned counsel for the Parties. 2. The appellant the New India Insurance Company Limited filed a Short Cause Suit No.2584 of 2005 before the City Civil Court, Bombay seeking following reliefs: a) that this Hon’ble Court be pleased to passed a permanent order and injunction restraining the defendants no.1 to 8 by themselves, their members, affiliates, activists and office bearers, from: (i) causing obstruction/interference in the regular business, management and administration work in the premises of the Plaintiff as per Exhibit ’A’ hereto at any time whatsoever- (ii) Obstructing/interfering with inter alia the ingress or egress of the loyal workers/staff, visitors, investors and all persons having business dealings with the Plaintiff, visiting the offices of the Plaintiff as per Exhibit ’A’ hereto; (iii) Pasting, sticking or in any manner exhibiting any banner, placards or posters or such other material anywhere within the Plaintiff’s Office premises as per Exhibit ’A’ hereto or on any vehicle of the Plaintiff; (iv) Gathering in number, holding any demonstrations, shouting slogans or dharanas within the office premises of the Plaintiff as per Exhibit ’A’ hereto; (v) Gathering in number, holding any :3: demonstration, shouting slogans or dharnas within a radius of 500 mtrs. of the Plaintiff’s office premises as per Exhibit "A" hereto; (vi) Preventing the Plaintiff from removing various posters, placards, banners which are already stuck at various places within the office premises of the plaintiff as per Exhibit ’A’ hereto or on any of the vehicles of the Plaintiff, with direction to the Commissioner of Police, Bombay, to provide necessary Police protection for this purpose; (vii) Falsely and mischievously distorting the picture of their alleged grievance through the media; b) For interim and ad-interim reliefs in terms of prayer (a) above; c) For cost of this suit; and d) For such other and further reliefs, as this Hon’ble Court deems fit and proper. 3. It was contended that the plaintiff had transferred two staff members namely Mrs. Abha Dhopeshwarkar , Mrs.Jayanti Shukla by order dated 1-6-2005. Defendants/respondent nos.1 to 8, who are trade unions or association of employees of the Plaintiff/appellant were trying to utilise the transfer of the said two officers to disrupt business and operations of the plaintiff and intimidated the other employees of the Plaintiff. It was contended that defendant nos.1 to 8 had been resorting to certain agitational activities and started obstructing officers, executives and employees of the Plaintiff from entering into the said premises, Chairman and the Managing Director were man-handled and the loyal employees were :4: obstructed from entering the said premises and carrying on their normal day to day activities. Policy holders, customers and other intermediaries were also obstructed and were threatened with physical injuries. It was contended that all the activities are ex-facie illegal and, therefore, the suit was filed claiming the above referred reliefs. Notice of motion was also taken out for interim reliefs of the same nature. The defendants, however, while denying all the allegations contended that so called agitational activities undertaken by the employees, who happen to be members of the defendant unions and associations were only in the nature of trade unions activities and, therefore, under Section 18 of the Trade Unions Act, 1926, no suit or other legal proceeding is maintainable in any civil Court against the defendants, who are the registered trade unions or their office bearers or their members in respect of any act done in contemplation or furtherance of a trade dispute. 4. After hearing the parties on the preliminary issue about the maintainability of the suit, the learned Judge, City Civil Court passed the impugned order dated 23rd June, 2006 holding that Section 18 of the Trade Unions Act, 1926 gives an immunity to the registered Trade Unions from civil suit, etc. in respect of any demonstration, agitation, etc. as long as they are peaceful. The City Civil Court also held that the suit :5: was not maintainable and the Civil Court had no jurisdiction to entertain the suit. With these observations, the learned Judge, City Civil Court directed that the plaint be returned to the plaintiff to be filed before the appropriate Court. Being aggrieved by this order, the plaintiff has preferred the present appeal. 5. The learned counsel for the plaintiff/appellant vehemently contended that all the defendants and their members had indulged in agitation,demonstrations and particularly in creating obstruction to the officers, executives, employees of the plaintiff from entering into the premises, preventing the customers and policy holders from entering into the premises and threatening them and act of man-handling and threatening Chairman and Managing Director. These acts cannot be treated as any act done in contemplation or any furtherance of a trade dispute. It is contended that this amounted to violent acts on the part of defendants and their members and it is now well settled that if there is violent act, it is not protected and immunity is not available under Section 18 of the Trade Unions Act, 1926. On the other hand, the learned counsel for the respondents tried to demonstrate from the documents filed alongwith the appeal that there was no violent act and the suit has been filed just to pressurise the defendants and their members for restraining them from making any :6: demonstrations and carrying out agitations in furtherance of their legitimate rights in respect of a trade dispute and, therefore, the suit is not tenable. The learned counsel for the defendants contended that there was no material in the form of any document, etc. alongwith the plaint to support the contention of violence and if the prayer clauses 1,3,4,5,6 and 7 as quoted above are carefully read, it would indicate that the management was bent upon crushing trade unions’ activities and their legitimate agitation by filing the suit and obtaining Court order against the defendants and their members. 6. Section 18 of the Trade Unions Act, 1926 reads as follows: 18. Immunity from civil suit in certain cases Immunity from civil suit in certain cases 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 [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 proceedings in any Civil Court in respect of any tortuous 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, or contrary to express :7: instructions given by the executive of the Trade Union. Sub-section (1) is particularly relevant for the present matter. From language of sub-section (1), it is clear that no suit or other legal proceeding shall be maintainable in any civil Court against any Registered Trade Unions or any 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 its interference with the trade, business or employment of some other persons. It is well settled that as long as the agitation, demonstration or activities of the Registered Trade Unions or their members are peaceful and non violent and if such activities are done in contemplation or furtherance of a trade dispute, immunity is provided to the Trade Unions or its office bearers or members against any suit or other legal proceeding by Section 18(1). Immunity under Section 18 has been subject matter of consideration before several High Courts and Supreme Court from time to time. In Rohtas Industries Staff Union v. State of Bihar (A.I.R. Rohtas Industries Staff Union v. State of Bihar (A.I.R. Rohtas Industries Staff Union v. State of Bihar (A.I.R. 1976 Supreme Court 425) 1976 Supreme Court 425) 1976 Supreme Court 425), the Supreme Court observed as follows: "21. ..........................The inevitable :8: by-product of combination for cessation of work may be loss to the management but the obvious intendment of such a collective bargaining strategy is to force the employer to accept the demand of the workers for betterment of their lot or redressal of injustice, not to inflict damage on the boss. In short, it is far too recondite for an employer to urge that a strike, albeit illegal, was motivated by destruction of the industry. A scorched earth policy may, in critical times of a war, be reluctantly adopted by a people, but such an imputed motive is largely imaginary in strike situations. However, we are clear in our minds that if some individuals destroy the plant or damage the machinery wilfully to cause loss to the employer, such individuals will be liable for the injury so caused. Sabotage is no weapon in workers’ legal armoury." Relying on above authority of Supreme Court, in Sri Rama Sri Rama Sri Rama Vilas Service Ltd. and another v. Simpson and Group Vilas Service Ltd. and another v. Simpson and Group Vilas Service Ltd. and another v. Simpson and Group Companies Workers’ Union and another II L.L.J. 1979, Companies Workers’ Union and another II L.L.J. 1979, Companies Workers’ Union and another II L.L.J. 1979, the learned Single Judge of Madras High Court, observed as follows in paragraph 6: "6. The principle that emerges from the decisions referred to above is that it is not within the purview of this Court to prevent or interfere with the legitimate rights of the labour to pursue their agitation by means of a strike, so long as it does not indulge in acts unlawful and tortuous......................." In Ahmedabad Textile Research Association and ATIRA Ahmedabad Textile Research Association and ATIRA Ahmedabad Textile Research Association and ATIRA Employees Union and another 1995 - I L.L.N. 348. Employees Union and another 1995 - I L.L.N. 348. Employees Union and another 1995 - I L.L.N. 348. Division Bench of Gujarat High Court while interpreting provisions of Section 18(1) observed as follows in paragraph 5 and 6: "5. ........................................... ................................................ . As to the scope of Section 18 of the Act :9: and further as to what type of legal proceedings will be barred when the implications of the said provision are looked into and analysed have been subject-matter of scrutiny in pronouncements of various High Courts. We do not propose to refer to the discussion aspect in each of the pronouncements and it would suffice the purpose if the sum and substance of the principles taken note of in the pronouncements is set down as follows: 6. It is not within the purview of the Civil Court to prevent or interfere with the legitimate rights of the workmen to pursue their demands by means of strikes or agitations or other lawful activities so long as they do not indulge in acts unlawful, tortuous and violent. For the sake of reference we enumerate below the decisions which have gone on the above line of thinking: 1. AIR 1993 Patna 170. 2. AIR 1968 Calcutta 407. 3. 1975-I-LLJ-33 (Kerala) 4. 1981 Labour & Industrial Cases 1220. (Bombay). 5. 1988 Labour & Industrial Cases 1067. (Delhi). 6. 1990 (61 FLR) Page 708 (Karnataka). 7. Any agitation by the workmen must be peaceful and not violent. Any concerted movement by workmen to achieve their objectives is certainly permissible even inside the industrial establishment within the working hours, so long it does not prove to be unlawful, tortuous or violent. Demonstrations and dharnas peaceful when they are, have now come to be accepted as falling within the permissible sphere of agitations by labour. Demonstrations and dharnas may cause inconvenience to the management. But they are weapons, as strike is, in the armoury of the labour to pressurise the management to accede to their demands. Such demonstrations and dharnas, when they do not turn unlawful, violent and tortuous, cannot be curbed by order of Civil Court and would come within the purview of Section 18 of the Act............." :10: The learned counsel for the plaintiff relied upon Simpson & Group Companies Workers & Staff Union And Amco Simpson & Group Companies Workers & Staff Union And Amco Simpson & Group Companies Workers & Staff Union And Amco Batteries Ltd. 1992 I L.L.J. 268 Batteries Ltd. 1992 I L.L.J. 268 Batteries Ltd. 1992 I L.L.J. 268 wherein it was held that physical interference or duress with the free movement of executives, contractors, staff, suppliers and other public or physically obstructing the free movement of cars, vehicles and lorries carrying raw materials, intermediaries, end-products into and out of the factory premises could not be justified as Trade Union right or fundamental right under Article 19 of the Constitution of India. If the above referred authorities are taken into consideration, it becomes clear that as long as agitation is peaceful and nonviolent and is in contemplation of a trade dispute, though such activities including demonstrations, Dharna, etc. may cause inconvenience tothe management and may alsoaffect the business, they are permissible and cannot be curbed or suppressed by the management. Section 18(1) provides protection or immunity from any civil suit or proceeding as long as agitation or demonstration or activities of the trade unions are peaceful and nonviolent. Once such activities becomes violent , the protection provided under Section 18(1) is taken away and they may be liable for civil suit or other proceeding in the Civil Court. 7. Now coming to the facts of this case, it is :11: material to note that suit was filed on 7-6-2005. It was pleaded that on 1-6-2005, the above referred two staff members were transferred and the defendants were seeking utilisation of transfers of concerned officers to disrupt the business and operation and intimidated the other employees. There is no allegation in the plaint that those officers were concerned with Trade Unions. There is no dispute that the defendants are the Registered Trade Unions or Association of Workers and employees of the plaintiff. As pointed out earlier, if prayer clauses 1,3,4,5,6 and 7 are carefully read, by those prayers, plaintiff actually wanted to completely take away the rights of the Trade Unions and association of workers of making any agitations, from pasting, sticking or in any manner exhibiting any banner, placards or posters, gathering in number, holding any demonstration, shouting slogans or dharnas or gathering within a radius of 500 mtrs. of the Plaintiff’s office premises. It is difficult to understand if trade unions or their workers are to make any demonstration against the management how that can be done, if they are prevented from being carrying activities within a radius of 500 mtrs. from the office of the employer. In fact, by these prayers, the plaintiff sough to take away all the legitimate rights of the trade unions to pressurise the management to accede their demands. 8. It is true that in paragraph 4 of the :12: plaint,there are vague allegations that the defendants were resorting to agitational activities and it is alleged that some of the members of had gheraoed in the office and executives, employees and some customers were prevented from entering into the premises and Chairman and Managing Director were man-handled and threatened. In the plaint nowhere the name of the any particular worker or any leader of the trade union is mentioned, who had actually indulged in any violent act like manhandling the Chairman. It is also material that no date of such agitation or activities is given in the plaint. In support of the plaint, plaintiff has produced only three documents, Exhibit A gave only the list of offices of the plaintiff within city of Mumbai. The Documents Exhibit B1 and B2 are the copies of the transfer orders dated 1.6.2005 in respect of two officers and document Exhibit C is a letter dated 6th June, 2005 addressed to Senior Police Inspector, Ramabai Police Station. This letter only indicates that the management of the plaintiff apprehended that some group may act in a manner, which would disturb the entire functioning of the office and the public peace. This letter appears to have received at the police station in the afternoon of 6th June, 2005 and as pointed out earlier, the plaint appears to have been filed in the morning of 7th June, 2005. It shows that on 6th June, 2005, management was only apprehending that some group may act in a manner which would disturb the entire :13: functioning of the office. In the letter to the police, no allegations were made about any violent4 act nor there was any mention that the executives, officers, employees or customers were prevented from entering into the said premises nor there was any mention that the Chairman and Managing Director of the plaintiff was man-handled. It appears that such vague statement was made in the plaint only to take away immunity provided to the trade unions, their officers and members under Section 18(1). There is no doubt that no trade union or its office bearers or the members can indulge in any violent activity, which would prevent ingress or egress of the officers, employees or the customers physically or by any other violent method or by intimidating them in any other manner nor they can manhandle any officer or staff of the employer. Agitations and demonstrations shall have to be peaceful and nonviolent and they can not stop the loyal workers from performing duties nor they can stop customers from performing their transactions and dealing with the employer in usual manner by threatening or intimidating. 9. Taking into consideration all the facts and the legal position, I am convinced that the suit was filed by the plaintiff/management only to suppress the demonstrations or the agitations, which could be undertaken by the Trade Unions in support of their trade disputes with the management. In view of the legal :14: provisions, it must be held that the suit is not tenable under Section 18(1) of the Trade Unions Act, 1926, therefore, I do not see any reason to interfere in the impugned order passed by the City Civil Court. 10. In the result, appeal stands dismissed. As the appeal itself is disposed off, Civil Application Nos.126 of 2007 and 97 of 2007 do not survive and stand disposed off accordingly. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)