IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO Nos. 40 of 2008 and 112 of 2008 Date of decision: 21.5.2008 CMPMO No. 40 of 2008 BCS School workers and others Petitioners. Versus Bishop Cotton School and others Respondents. CMPMO No. 112 of 2008 Bishop Cotton School and others Petitioners. Versus BCS School workers and others Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioners: Mr. Sanjeev Bhushan, Advocate. BCS School workers For the respondents Mr. R.S.Ahuja, Advocate and Bishop Cotton School Mr. C. N.Singh, Advocate. Per Deepak Gupta, J. (oral) This order shall dispose of two petitions since they arise out of the same suit and the same interim order. Briefly stated the facts of the case are that the Bishop Cotton School through its Board of Governors and Headmaster (here-in-after referred to as the plaintiffs) 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes, 2 filed a suit being Civil Suit No. 83/1 of 2007 against B.C.S.School Workers, Shimla and 10 other persons who are the employees of the school. The basic grievance of the plaintiffs is that the workers are being well looked after and are being paid high wages but the workers for unjustifiable reasons are threatening to agitate and the plaintiffs prayed for the grant of the following relief :- “Decree for permanent prohibitory injunction restraining defendants, their members, associates, supporters or anyone claiming for or under them form interfering or obstructing the ingress and egress of the children, parents, visitors, guests, staff, other workers/employees and any other person or persons intending to enter the premises of Bishop Cotton School, Shimla and further restraining the defendants and any other person or persons claiming themselves to be associated with the defendants either directly or indirectly from interfering or causing any hindrance in the smooth functioning of the school or its ancillary activities and also restraining the defendants and any other person or person claiming themselves to be associated with the defendants either directly or indirectly from entering the school premises or its compounds against the wishes of the plaintiffs and further restraining them from holding or staging any demonstration, dharna, hurling abuses, shouting slogans, making provocative speeches and intimidating the staff and any other person or persons connected with the School affairs of the plaintiffs, meeting or picketing, indulging in any act of violence, assault, gherao, intimidation and coercion causing bodily injury, abusing any member of the staff, students or residents of Bishop Cotton School Campus within 1000 meters from the campus/boundaries, Main Gates of the Bishop 3 Cotton School Estate and further restraining them from damaging the School property, reputation and obstructing the day to day functioning of the school. “ Alongwith the suit an application for grant of interim relief was also filed. In the application for grant of interim relief virtually the same relief was sought. This suit was contested by the defendants. The learned trial Court initially passed an interim order, which reads as follows:- “Present : - Sh. R.S.Ahuja and Sh. Surinder Thakur, Ld. counsel for the applicant. Sh. Niranjan Verma, Ld. counsel for the respondents. This CMA be registered separately, Reply not filed. Time prayed that instruction could not be gathered. Time allowed. Let reply be filed on 20.7.2007. Till then, respondents are directed to not to cause any obstruction to ingress and egress of the children, parents visitors, guest, staff and other workers of the school and in the smooth functioning of the School. They are further restrained from holding or staging any demonstration in any manner in the School campus. SD/- Civil Judge, Senior Division, Shimla.” Thereafter after hearing the arguments, a final order was passed whereby the order dated 10.8.2007 was confirmed and the workmen by way of ad interim injunction were restrained from causing any obstruction to ingress and egress of the children, parents, visitors, 4 guests, staff and other workers of the school, causing any hindrance in the school affairs or its ancillary activities, holding demonstrations, dharnas, hurling, abuses, shouting slogans etc to the staff or the school management in the school campus till disposal of the main suit. The workers did not challenge this order. However, the school management filed an appeal before the learned District Judge, Shimla, claiming that the workers be not permitted to agitate within a radius of 1000 meters of the school campus. The appeal was partly allowed and the learned Appellate Court restrained the workers from agitating within 300 meters of the school. This order is under challenge in these present petitions. The workers want that the order of the learned trial Court be restored and the School Management prays that the distance be extended upto 1000 meters. Normally, this Court is very reluctant to exercise its extraordinary supervisory jurisdiction to interfere with interim orders. However, applying the same principles the appellate Courts should also not normally interfere in the discretion exercised by the trial Courts. The main grievance of the petitioners is that given the topographical situation as it exists in Shimla fixing of distance of 300 mts. would virtually amount to 5 debarring the workmen from agitating in any manner whatsoever. On the other hand, Shri R.S. Ahuja, learned counsel for the school has urged that keeping in view the fact that small children are studying in the school who may be adversely affected by abusive language used by the workmen and also may be emotionally scarred by seeing acts of violence, etc, not only should the order of the learned District Judge be upheld but the distance should be increased from 300 mtrs. to 1000 mtrs. Mr. R.S. Ahuja, learned counsel for the school has placed reliance on a judgment of the Delhi High Court rendered in Delhi Public School and another vs. The Delhi State School Karamchari Union (Regs.) and others, AIR 2002 Delhi 36, wherein it was held as follows:- “In the present case, one has also to keep in mind that plaintiff is an educational institution. It is not undertaking any commercial or industrial activity in the popular sense of the term. Such educational institutions which are temples of learning are extended to even better treatment than the industrial undertakings when the question of allowing their employees in undertaking the union activities is to be examined. School employees and their Unions are expected to exercise more restraint. They should be conscious of the surroundings in which they are functioning. They are supposed to act in a more matured and responsible manner than the trade unions of industrial undertakings inasmuch as their activities are going to be noticed by hundreds and thousands of students of tender and impressionable age. Any 6 violence, rowdyism, unnecessary shouting of slogans, particularly with abusive language may have adverse impact on the minds of such students. Therefore, it would be appropriate to fix the distance within which the defendants are not allowed to hold any such demonstration, etc. This is what is done by interim order dated 15th February, 2000. It may be mentioned that if defendants have legitimate grievances, they can adopt legal means for redressal of the same including by approaching the Directorate of Education and/or Court of law.” It would be pertinent to mention that in the case before the Delhi High Court the final order does not mention the distance fixed but a bare perusal of para 2 of the judgement clearly shows that by the interim order the employees were restrained from holding any demonstration within a radius of 200 meters from the main entrance gates of the Delhi Public School, Mathura Road, New Delhi. In the present case, the District Judge has fixed the distance at 300 mts. without giving any reason. In fact keeping in view the topographical situation of Shimla and the size of the school campus in the present case, fixing of distance 300 mts. was not at all justified. Even according to the plaintiffs, the school is situate in a large campus of 35 acres, which approximately works out to 165 bighas. If the demonstrators are forced to demonstrate more than one kilometer away then their right to demonstrate become illusory. No doubt, a person who agitates is not permitted to use any force or in any manner indirectly or 7 directly stop any other person from doing his work. However, this does not mean that the employee or the person agitating should not be permitted to agitate. The right to agitate peacefully is an inherent part of constitutional democracy. However, the caveat is that the agitation must be peaceful and it must not in any manner affects the rights of other who want to work. In the present case, as noted above, the school is spread over a vast campus. It appears from the pleadings that there is one main gate and one gate leading to the junior school from the road which is commonly known as the bye-pass road. Obviously, an employee of the school who want to agitate would agitate either in the school premises or just out-side the gate. Keeping in view the fact that small children are studying in the school and their studies should not be adversely affected by the agitators, I am of the considered view that a prima facie case was made out by the school that the agitators should not in any manner interfere in the normal functioning of the school. The main function of an educational institution is to impart education to the students. Therefore, if slogans are raised loudly that too during the school hours that could adversely affect the studies of students. 8 The learned trial Court vide its order dated 27th September, 2007 had directed the respondents not to cause any obstruction to ingress and egress of the children, parents, visitors, guests, staff and other workers of the school, causing any hindrance in the school affairs or its ancillary activities, holding demonstrations, dharnas, hurling abuses, shouting slogans etc. to the staff or the school management in the school campus. This order was a correct order. In fact, no workmen has any right to hurl abuses or use foul language or use violence at any time whether inside or outside the school campus. On the other hand the workers must have a right to agitate peacefully and this right must be a real right in real terms and not an illusory right. In a place like Shimla, situated in the hills, fixing of a distance of 300 mts. would mean that the agitators would be forced to the other side of the hill where the slogans would be heard by persons who are not connected with the agitation and not by the persons against whom they are agitating. Therefore, I am of the considered opinion that keeping in view all the entire facts and circumstances, the orders of both the Courts below require to be modified to the extent that the workmen shall not be permitted to agitate within 50 mts. of the main school gate, as well as junior school gate. It is further made clear that the 9 workmen shall not raise any slogans from 9 a.m to 3 p.m or after 9 p.m and before 6 a.m. They shall not at any time prevent any person, be he a student, teacher, employee, visitor etc. the right to enter or leave the school premises at any time. The agitators will not at any time use any mechanical aid, such as loudspeakers, etc. to increase the volume of the sound. Shri R.S. Ahuja, learned counsel for the school has vehemently urged that in a subsequent suit being Civil Suit No.100/1/07 also filed by the school against the present petitioner and some other co-workers the learned trial Court on 16th November, 2007 passed an order restraining the workmen from agitating within 300 mtrs. of the school. He submits that the said order has not been challenged and the same will operate as res- judicata in the present case. In support of his submissions, he has cited AIR 1979 Supreme Court 551, Ishwardas vs. The State of M.P. and others, AIR 2005 Supreme Court 446, U.P.State Road Transport Corporation vs. State of U.P. and another, AIR 2007 Supreme Court 3067, Saroja vs. Chinnusamy (Dead) by L.Rs and another. Having considered these judgements as well as the provisions of Section 11 of the Code of Civil Procedure, I am of the considered view that the principle 10 of resjudicata will not apply to the present case. The order so passed by the learned Civil Judge, Senior Division on 16th November, 2007 after the impugned order in this case was passed by the learned District Judge on 1st November, 2007. The said order obviously has been passed in the light of the order passed by the learned District Judge in the present case. The petitioners had a right to challenge the order of the learned District Judge in the present case and they did so by filing the CMPMO No. 40 of 2008. This right cannot be taken away by holding that subsequent order passed by the learned trial Court in a subsequent suit on the basis of an order passed in the present suit which was under challenge would operate as res-judicata. However, I would hasten to clarify that till the subsequent order passed in civil suit No. 100/1/07 is modified or set aside in appeal the parties in the subsequent suit shall obviously remain bound by the said order. Both the petitions are disposed of in the aforesaid terms. In view of the observation made here- in-above the CMPMO No.40 of 2008 filed by workers is partly allowed. CMPMO No. 112 of 2008 filed by the School is dismissed with costs assessed at Rs.5,000/-. 21st May, 2008 (Deepak Gupta), J. ™ 11