IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.01.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.12624 and 18182 of 2009, M.P.Nos.1,1,2,2 and 3 of 2009 All India Trade Union Congress Rep. By General Secretary, Cuddalore District. M.Sekar ..Petitioner in both WPs. Vs 1.M/s.Neyveli Lignite Corporation Ltd., Represented by its Chairman and Managing Director, Neyveli Town, Cuddalore District. 2.The Eviction Authority cum Estate Officer, Assistant Township Administrator, Township Administrative Office, Neyveli. 3.N.L.C.United Workers Union, Rep. By its General Secretary, P.Kuppusamy, D-13,Mahatma Gandhi Salai, Block 24-Neyveli. 4.Neyveli Lignite Corporation Ltd., United Workers Union (AITUC) Repd. By its General Secretary, M.Edward Raj ..Respondents in W.P.No.18182 of 2009 (Respondents 3 and 4 impleaded vide order of this Court dated 26.10.2009 made in M.P.Nos.3 and 4/2009 in W.P.No.18182/2009 by KCJ) https://hcservices.ecourts.gov.in/hcservices/ 1.The District Collector, Cuddalore Ditrict, Cuddalore. 2.The Revenue Divisional Officer cum Sub Divisional Magistrate, Cuddalore District, Cuddalore. 3.The Chairman and Managing Director, Neyveli Lignite Corporation Ltd., Neyveli Town, Cuddalore District. ..Respondents in W.P.No.12624 of 2009 PRAYER:-Petitions filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, calling for the records relating to the proceedings of the second respondent dated 29.08.2009 and 13.06.2009 made in Na.Ka.A2/2303/2009 and quash the same. For Petitioner in both Wps : Mr.M.Devaraj For Respondents : in W.P.No.18182 of 2009 : Mr.N.A.K.Sharma for R1 and R2 Mr.Balan Haridas for R3 Mr.A.Palaniappan for R4 in W.P.No.12624 of 2009 : Mr.R.Neelakantan,G.A. For R1 and R2 Mr.N.A.K.Sharma for R3 C O M M O N O R D E R Both the writ petitions are filed by All India Trade Union Congress (for short AITUC) represented by its General Secretary M.Sekar. 2. In W.P.No.12624 of 2009, the petitioner Trade Union sought to quash the order of the second respondent -Revenue Divisional Officer- cum-Sub Divisional Magistrate, Cuddalore dated 13.06.2009. By the said order, the second respondent, who is also the Sub-Divisional Magistrate put a seal in the office premises of the petitioner Trade Union situated at No.D/13, Block No.24, Mahatma Gandhi Salai, Neyveli Town. It is the stand of the second respondent that the said premises was given to be used as a Trade Union office of United Workers Union https://hcservices.ecourts.gov.in/hcservices/ by the third respondent and had given control over the said building. Subsequently, difference of opinion have been cropped up between two factions, i.e. one led by P.Kuppusamy and the other led by M.Sekar (the petitioner herein). The said officer called the parties for a discussion on 13.06.2009 and no compromise was arrived at during the talks. Therefore, the officer felt that there is scope for clashes between two groups, which may likely to create problem and public peace may be hindered. In order to maintain law and in view of the urgency of the situation, he exercised power under Section 144 of Code of Criminal Procedure and directed the Tahsildar, Panruti to put a seal to the building with effect from 13.06.2009. A further direction was also given to the Deputy Superintendent of Police, Neyveli Township to give protection to the said building. 3. It is the case of the petitioner that it is a registered All India Federation of Trade Unions and having units in various districts and states. The premises in which the seal was affixed was given to the Union to be used as Union office since the year 1960 and from then onwards, the petitioner's Union has been functioning. It is claimed that NLC United Workers Union and NLC Jeeva Contract Workers Union have got themselves affiliated to the petitioner Federation. The Union representing the contract workmen claimed certain benefits arising out of the Memorandum of Understanding between that Union and the third respondent NLC on 16.06.2008 before the Chief Labour Commissioner, New Delhi. Since the terms of MOU was not given effect to, the Jeeva Contract Workers Union gave a strike notice and conciliation talks were in progress. During that time, the NLC United Workers Union took disciplinary action against certain office bearers and expelled them from Union. The fact of such expulsion was also intimated to the third respondent NLC. However, the third respondent Management manipulated the situation and gave false complaint to the police and other authorities and got unauthorised letter in the name of United Workers Union to the second respondent and it is at their instigation, the impugned order came to be passed. 4. It was also stated that when the petitioner's are occupying the premises, the question of affixing the seal under Section 144 Cr.P.C. will not arise. The action of the respondents in preventing the activities of the petitioner Union is violative of Article 19(1) (a) of the Constitution. It was further submitted that any order passed under Section 144 Cr.P.C. will be valid only for a period of two years and it has no validity beyond that date. Therefore, the petitioner gave a representation dated 13.06.2009 and requested them to take further action to revoke the order passed under Section 144 Cr.P.C. It was also stated that without any justification, the third respondent had disconnected the power and water supply to the premises pursuant to the sealing of the premises. It was further stated that the third respondent was attempting to demolish the temporary structure put up in the sealed premises, which was https://hcservices.ecourts.gov.in/hcservices/ initially allotted to the petitioner Union. Such structures have also been put up by other Trade Unions who were given allotment for running their Union and the petitioner cannot be singled out for having put up the temporary structures. Their Union since the year 1960 had grown from strength to strength. There was necessity to have an expanded office space and therefore, such structures were put up. It was also stated that the Union records which are vitally required by the Union have been kept inside the locked and sealed premises which will in effect bring the union activities to face many difficulties. 5. Notice of motion was ordered on 09.07.2009. Notice was taken on behalf of the third respondent. In the mean while, the petitioner moved this Court under the criminal jurisdiction with Crl.R.C.No.577 of 2009, challenging the order passed by the second respondent under Section 397 and 401 of Cr.P.C. It must be noted that the faction allegedly led by P.Kuppusamy never took any steps to challenge the order of sealing the premises. Perhaps, they were happy with such a situation. The criminal revision petition filed by the petitioner came to be disposed of by a final order dated 20.08.2009. In paragraphs 7 and 8, it was observed as follows:- "7. This Court considered the submissions of all the parties and perused the order passed by the Revenue Divisional Officer and also the counter filed by the respondents. It appears that there is some dispute among the members of the union. The Revenue Divisional Officer has also taken steps to convene the meeting and called both the parties. As no compromise was arrived between the parties, the Revenue Divisional Officer has invoked the provisions under Section 144 of the Code of Criminal Procedure and passed the order. Now at this stage, this Court does not want to go into the merits of the order passed by the learned Revenue Divisional Officer cum Sub Divisional Magistrate, since any order passed under Section 144 of the Code of Criminal Procedure shall not remain in force for more than two months and Section 144 (4) of the Code of Criminal Procedure reads as follows: "No order under this Section shall remain in force for more than two months from the making thereof." 8. The impugned order is dated 13.06.2009 and period of two months had already expired. As per Section 144 (4) of the Code of Criminal Procedure, it is to be construed that the order passed by the learned Revenue Divisional Officer cum Sub Divisional Magistrate, does not remain in force as on date. In the said circumstances, it is for the parties to work out the remedies as provided under law. " https://hcservices.ecourts.gov.in/hcservices/ 6. Therefore, in the light of Section 144(4) and the order of the second respondent RDO having come to an end by virtue of the orders passed by this Court in Crl.R.C.No.577 of 2009 dated 20.08.2009, the seal affixed in the premises of the petitioner Union should have been removed and the possession should have to be handed over to the petitioner Union. Pursuant to the order passed by this Court, the second respondent RDO by an order dated 25.08.2009 after referring to the provisions of Code of Criminal Procedure directed the Tahsildar, Panruti to re-open the premises. 7. But however in order to forestall the order passed by the second respondent, the respondent – (Neyveli Lignite Corporation Ltd.) issued an order dated 29.08.2009 taking the possession of the premises and issued a public notification dated 29.08.2009. The order signed by the Estate Officer (who is also the Assistant Township Executive Officer, Neyveli Township) warned anyone from trespassing into the property. It is this order which came to be challenged by the same union in W.P.No.18182 of 2009. When the matter came up on 08.09.2009, the learned counsel for NLC took notice and this Court directed the present writ petition to be heard along with the earlier writ petition W.P.No.12624 of 2009. Accordingly, both the writ petitions came to be clubbed together. 8. On behalf of the faction led by P.Kuppusamy, an impleading application was filed in M.P.No.3 of 2009 and the same was also ordered by this Court. In the meanwhile, the NLC United Workers Union affiliated to AITUC represented by its General Secretary M.Edward Raj also filed an application to implead them as respondent in M.P.No.4 of 2009 and that was also ordered on the same day. 9. On behalf of the Estate Officer of the NLC, a counter affidavit dated 16.09.2009 was also filed. The impleaded third respondent Union had filed a typed set of papers. 10. Heard the arguments of Mr.M.Devaraj, learned counsel for the petitioner in both the writ petitions, Mr.N.A.K.Sharma, learned counsel for the Neyveli Lignite Corporation, Mr.R.Neelakantan, learned Government Advocate for the revenue authorities, Mr.Balan Haridas,learned counsel for the union led by Mr.P.Kuppusamy and Mr.A.Palaniappan,learned counsel for NLC United Workers Union and perused the records. 11. In so far as W.P.No.12624 of 2009 is concerned, the subject matter of the writ petition has become infructuous, in view of the order passed by the RDO, Cuddalore dated 25.08.2009. Therefore, the legality or otherwise of the proceedings initiated under Section 144 Cr.P.C. is not gone into. 12. The second writ petition W.P.No.18182 of 2009 largely revolved around the action taken by the NLC Limited in taking https://hcservices.ecourts.gov.in/hcservices/ possession of the premises of the petitioner union and the legality of the order passed by the Estate Officer. In normal circumstances, when an order under Section 144 Cr.P.C is revoked, the premises will have to be handed over to the person who were in custody immediately preceding the issuance of notice. Anticipating such a legal consequence, the NLC limited has come forward to claim possession of the said premises by the impugned notice dated 29.08.2009 even before the Tahsildar, Panruti could remove the seal and hand over the premises who were entitled to get lawful possession. Therefore, the prima facie action of the Estate Officer in possessing the property by putting their own lock and their taking possession cannot be authorised under law. Their attempt to put their own lock would amount to overreaching the jurisdiction of this Court especially when they had taken notice in the earlier writ petition on 09.07.2009 and the matter was pending further orders. It would also amount to nullify to the order passed by the Sub-Divisional Executive Magistrate dated 25.08.2009 which only authorised the Tahsildar, Panruti to remove the seal. 13. In the counter affidavit filed by the respondent NLC, they have taken a stand that the writ petition is not maintainable in view of the fact that NLC United Workers Union had not challenged the impugned proceedings dated 29.08.2009 to which Union alone the premises was allotted. A further stand was also taken that under Section 9 of the Public Premises (Eviction of Unauthorised occupants) Act, 1971, (for short Act) an appeal is provided. Therefore, the impugned notice cannot be challenged. It is further stated that the petitioner Union is not a registered body as per the provisions of the Trade Union Act and it is not a legal entity to file and prosecute such writ petition. It was further stated that the premises in No.D/13, Block No.24, Mahatma Gandhi Salai, Neyveli Town was allotted to United Workers Union presently, re-named as NLC United Workers Union (impleaded 4th respondent) on 11.12.1975. The said union was admittedly affiliated to AITUC. The allotment of the premises was for conducting the Union activities in accordance with law. It was also stated that though the petitioner Union was dealt with by NLC in some of its correspondences, they cannot claim to be in lawful possession of the premises which was in effect allotted to one of its unit of the petitioner Federation. It was also stated that during the inspection of the building by the Building Inspectors, it was found that a shed in front of the building was put up with hollow block wall and also an open shed with AC Sheets. A separate thatched shed was also put in the rear side which has been used as a Watchman's residence without permission. Since the constructions noted were done without any permission or authorisation, a notice dated 06.03.2009 was issued to the allottee. The said notice was received by P.Kuppusamy, claiming to be the General Secretary of the NLC United Workers Union. https://hcservices.ecourts.gov.in/hcservices/ 14. It is claimed by the NLC that the address in the notice was erroneously described as the General Secretary/AITUC. Despite notice, the person in possession have not rectified the illegal constructions. Therefore, notice in Form AB under Section 5-B(1) of the Act was issued to the NLC United Workers Union who was the allottee/licencee. But once again, it was addressed to the General Secretary/AITUC namely, the petitioner Union. The said notice was served on 18.06.2009 and since there was no reply, the Estate Officer being the Statutory authority decided to seal the premises and accordingly, issued the impugned proceedings. It is further stated that the inter union rivalry between the petitioner Union and the other group created law and order problem, which was also another reason to seal the premises. It was further stated that there was a dispute between the members of the petitioner Union and the faction led by the present petitioner were forcibly attempting to occupy the subject quarter from the allottee namely, the NLC United Workers Union and complaints and counter complaints are pending with the Inspector of Police, Neyveli Township Police Station. He had also received a letter from the faction led by P.Kuppusamy dated 16.06.2009 requesting the premises to be sealed and electricity as well as water connection to be disconnected. 15. In their anxiety to buttress their illegal stand, in Paragraph 12 of the counter affidavit, the Estate Officer had made a startling statement that an order under Section 144 Cr.P.C cannot be challenged in the revisional jurisdiction of this Court on the criminal side and such order can be challenged only in a petition under Article 226 of the Constitution. It is also stated that the NLC was not made as a party in the criminal revision. It was further claimed that by virtue of order under Section 144 Cr.P.C., electricity as well as water supply to the premises was disconnected on 01.07.2009. It was further stated that the functioning of the petitioner Union with its two units is obstructing the traffic and creating nuisance. There were also complaints from the residents regarding the functioning of the Union. 16. It is brought to the notice of this Court that the faction led by P.Kuppusamy has filed a suit in the name of NLC United Workers Union before the District Munsif Court at Neyveli in C.S.No.107 of 2009 and an injunction against the other group was also sought for. But no interim orders were granted. It is further claimed that the second respondent Estate Officer is a competent authority and only after notice, the premises was sealed. With reference to the MOU relating to the Contract Labourers issues, the matter is pending before the Supreme Court. 17. On behalf of the Union led by P.Kuppusamy, the third respondent, it was claimed that the NLC United Workers Union is a registered union with Registration No. SAT/40 and the petitioner has no locus standi to move this Court. If at all, it can only by NLC https://hcservices.ecourts.gov.in/hcservices/ United Workers Union of which P.Kuppusamy was the General Secretary and he has about 110 members in his Union. The general body of the Union was held on 15.02.2009 and the said P.Kuppusamy and the officer bearers were unanimously elected on the same day. He is also the honorary Secretary of the Contract Workers Union. He had also field a suit in O.S.No.107 of 2009 seeking for a declaration that the notice published regarding his expulsion was illegal and also sought for consequential injunction restraining him from interfering with his duties. But however no interim orders have been passed in the suit. 18. In the said affidavit sworn by P.Kuppusamy on behalf of NLC United Workers Union (R3) there is no reference to his having received any notice dated 06.03.2008 asking the Union to remove/demolish the unauthorised construction as well as the show cause notice issued under Section 5-B(1)of the Act dated 18.06.2009 and also the fact of his having sent any letter dated 16.06.2009 asking the NLC Management to disconnect the electricity and water supply. The further stand of the R3 Union was that the premises was opened on 29.08.2009 after the order of the RDO and immediately, the Estate Officer had locked the premises. It is surprising that the respondent NLC itself never stated anywhere in its counter affidavit that the premises was opened on 29.08.2009 by any authorities of the revenue department and thereafter without handing over the premises who were in last possession, the premises was once again locked by NLC. Therefore, a reading of the counter affidavit filed by R2 dated 16.09.2009 and R3 dated 11.09.2009 shrouds in mystery and exposes hollowness of the stand of both the parties. It is clear from the pleadings that the faction led by P.Kuppusamy (3rd respondent) is not interested in retaining the premises to continue its trade union activities. But on the contrary, he gave a hand to the management to create more problem for the petitioner Federation and its affiliating Unit. Therefore, this Court has no hesitation to reject the stand of the 3rd respondent that they are the real Union to which alone the premises were allotted. 19. On the contrary, the affidavit filed by R4 in M.P.No.4 of 2009 clearly shows that M.Edward Raj was the General Secretary of NLC United Workers Union which was affiliated to AITUC and they have been prosecuting the dispute on behalf of the workmen i.e., both permanent as well as the contract workers. It is also seen that on 31.05.2009, the persons who were working against the interest of the petitioner's Union were expelled in accordance with the by-laws and such an expulsion was not under challenge before any Court. What is under challenge before the Civil Court was the publication which was made in the newspaper not to deal with the faction led by P.Kuppusamy. It is also stated in the affidavit that the petitioner Union had gave a criminal complaint against the said P.Kuppusamy which is also pending investigation. The 4th respondent by making themselves as parties is supporting the stand of the petitioner. Therefore, the jurisdictional https://hcservices.ecourts.gov.in/hcservices/ objection raised by the NLC Management cannot be countenanced by this Court 20. The objection that the petitioner AITUC is not a registered body and therefore, the writ petition is not maintainable is without substance, the Supreme Court in Mumbai Kamgar Sabha v. Abdulbhai Faizullabhai, (1976) 3 SCC 832 dealt with the case of an unregistered trade union took all the cause of workers. In paragraphs 7 and 9, it had observed as follows: "7. ...Procedural prescriptions are hand-maids, not mistresses, of justice and failure of fair play is the spirit in which courts must view processual deviances. Our adjectival branch of jurisprudence, by and large, deals not with sophisticated litigants but the rural poor, the urban lay and the weaker societal segments for whom law will be an added terror if technical misdescriptions and deficiencies in drafting pleadings and setting out the cause title create a secret weapon to non-suit a party. Where foul play is absent, and fairness is not faulted, latitude is a grace of processual justice. Test litigations, representative actions, pro bono publico and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to bypass the real issues on the merits by suspect reliance on peripheral, procedural shortcomings. Even Article 226, viewed in wider perspective, may be amenable to ventilation of collective or common grievances, as distinguished from assertion of individual rights, although the traditional view, backed by precedents, has opted for the narrower alternative. Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latitudinarianism permits taking liberties with individualisation of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker. Less litigation, consistent with fair process, is the aim of adjectival law. 9. ....It is enough, on the facts of this case, for us to take the union as an abbreviation for the totality of workmen involved in the dispute, a convenient label which, for reasons of expediency, converts a lengthy party array into a short and meaningful one, group representation through unions being familiar in collective bargaining and later litigation. We do not expect the rigid insistence on each workman having to be a party eo nomine. The whole body of workers, without their names being set out, is, in https://hcservices.ecourts.gov.in/hcservices/ any case, sufficient, according to the Counsel for the respondents, although strictly speaking, even there an amount of vagueness exists. For these reasons, we decline to frustrate this appeal by acceptance of a subversive technicality. We regard this appeal as one by the workmen compendiously projected and impleaded through the union." 21. Secondly, NLC United Workers union for which allotment was made itself had come on record as R4 and are supporting the stand of the petitioner Federation. Therefore, proper parties are before this Court. Even otherwise, it is the admission of the respondent NLC that in all the notices sent by the Estate Officer, it had described the Union only as the General Secretary- AITUC. Having given a notice to the petitioner Union they cannot wriggle out of the said description by citing that the premises was allotted only to R4 and not to the Federation. It is also immaterial that so long as the Union is affiliated to AITUC they can also come and file the present writ petition. The petitioner Union has also shown by documentary proof in the additional typed set the receipts issued by NLC for the amounts received from the petitioner towards rent of the said premises. It is also the admission of the parties that notices issued for all discussions either by the NLC Management or by the authorities of the Labour Department only to the Federation and not to individual unions. Therefore, the preliminary objection raised by the respondent NLC has to be overruled. 22. In the present case, though the order has been passed by the RDO under Section 144 Cr.P.C., however by sealing the premises, the RDO had only exercised power under Section 144 r/w Section