Research › Search › Judgment

Calcutta High Court · body

2001 DIGILAW 148 (CAL)

JITENDRA MOHAN BISWAS v. N. K. BHATTACHARJEE

2001-03-15

SUBHRO KAMAL MUKHERJEE

body2001
SUBHRO KAMAL MUKHERJEE,J. ( 1 ) THIS is a revisional application by the defendant No. 1 under section 115 of the Code of Civil Procedure challenging Order No. 51 dated December 12,2000 whereby the learned trial judge allowed an application under Order 1 rule 10 of the Code of Civil Procedure filed by the plaintif If/opposite party No. 1 and directed addition of the opposite parties Nos. 5,6,7 and 8 of this revisional application as defendants in the said suit. ( 2 ) TITLE Suit No. 105 of 1998 was instituted in the court of the learned Civil Judge (Senior Division), Sixth Court at Alipore, District: 24 Parganas (South) by the plaintiff and opposite party No. 1 against the petitioner and the opposite party Nos. 2,3 and 4 herein, inter alia, for declaration and permanent injunction on the allegations that the plaintiff/opposite party No. 1 was elected as the General Secretary of the South Eastern Railway Men's Union a registered trade union, in the general meeting held at Waltair on November 5, 1997; a list of office bearers, who were elected at the said meeting was circulated by the Chief Personnel Officer, South Eastern Railway, to all concern; in the said meeting defendant No. 1/petitioner was elected as the President; on or about December 9,1998 the defendant No. 1/petitioner, as the President of the said trade union, has issued a letter to the General manager, South Eastern Railway and to the chief Manager, State Bank of India, Garden reach Branch intimating them that a resolution has been adopted in the executive committee meeting held on November 30,1998 that plaintiff/opposite party No. 1 has been suspended by the executive committee. In the aforesaid background, the plaintiff opposite party No. 1 prayed for a decree for declaration that the meeting of the executive committee held on November 30, 1998 is not legal, valid and proper. A decree for permanent injunction was prayed for as and by way of consequential relief. ( 3 ) IN the said suit plaintiff/opposite party no. 1 filed an application under Order 1, Rule 10 of the Code of Civil Procedure for addition of the opposite party Nos. A decree for permanent injunction was prayed for as and by way of consequential relief. ( 3 ) IN the said suit plaintiff/opposite party no. 1 filed an application under Order 1, Rule 10 of the Code of Civil Procedure for addition of the opposite party Nos. 5, 6, 7 and 8 in the said suit as defendants contending in the said application that since the South Eastern Railway Men's Union is a registered trade union under the Trade Union Act, 1926 and as the dispute relates to the activities of the said union, the said trade union is required to be added as a party defendant in the suit. It is, also, contended that the defendant No. 1/petitioner, acting as the President of the said union and ignoring the pendency of the suit and the application for the injunction, appointed J. Bandhopadhyay, opposite party No. 5 herein, who was one of the Additional General Secretaries, as the General Secretary of the union instead of and in place of the plaintiff opposite party No. 1 through N. C. Roychdudhury, the opposite party No. 6 herein, the Working President of the union acting as the agent of the defendant No. 1/ petitioner in a meeting of the executive committee held on January 28,1999. It was contended that the said subsequent developments are required to be taken note of and said two persons, namely, opposite parties nos. 5 and 6 in this revisional application are required to be added in the suit for effective and complete adjudication of the dispute. In the said application there has been a prayer for addition of Union of India, represented by the General Manager, South Eastern Railway, the opposite party No. 8, as the proforma defendant in the said suit. ( 4 ) AT the hearing of the said application the contesting defendant did not object to the addition of South Eastern Railway Men's Union as a defendant in the suit, but raised serious objections with regard to the addition of the said J. Bandhopadhyay, N. C. Roychoudhury and Union of India. ( 5 ) BY the order impugned the application for addition of parties has been allowed and opposite party Nos. 5,6, 7 and 8 have been added in the said suit. The opposite party nos. ( 5 ) BY the order impugned the application for addition of parties has been allowed and opposite party Nos. 5,6, 7 and 8 have been added in the said suit. The opposite party nos. 5, 6 and 7 have been added as defendants and the opposite party No. 8, Union of india, represented by the General Manager, south Eastern Railway, has been added as a proforma defendant. ( 6 ) SHRI Mukul Prakash Banerjee, learned senior Advocate, appearing for the defendant no. I/petitioner, argued that the learned trial judge, in the facts and circumstances of the case, ought not to have added the said J. Bandhopadhyay," N. C. Roychoudhury and union of India as defendants in the said suit. Shri Banerjee argued that the appointment of j. Bandhopadhyay as the General Secretary of the Union is a separate cause of action and the plaintiff/ opposite party No. 1 is not entitled to ventilate his grievance against such appointment of J. Bandhopadhyay in this suit. Accordingly, Shri Banerjee submitted, the order allowing addition of J. Bandhopadhyay and n. C. Roychoudhury should be set-aside. Shri banerjee strenuously argued that in the absence of any allegation in the application for addition of party in support of the prayer for addition of Union of India as the proforma defendant, the learned trial Judge mechanically added the Union of India in the suit holding that for the purpose of proper adjudication of the case the presence of Union of India is necessary. Shri Banerjee 'draws my attention to the application for addition of party and submitted that since it has been admitted by the petitioner in the said application that the entire dispute relates to the activities of the said trade union, the employer is not a necessary or proper party Shri Banerjee draws my attention that no relief has been prayed for against the employer in the present suit. The premises on which the order has been passed by the learned trial Judge is, according to Shri banerjee, is wrong as the learned Judge proceeded on the basis that the registered trade union is a part and parcel of the railway. Shri banerjee, finally, argued that since the registered trade union has been made a party in this suit, any decision made in the suit will bind everybody. Shri banerjee, finally, argued that since the registered trade union has been made a party in this suit, any decision made in the suit will bind everybody. No argument was, however, advanced by Shri Banerjee regarding addition of the trade union as a defendant in this suit. ( 7 ) SHRI Sudhis Dasgupta, learned Senior advocate, appearing for the plaintiff opposite party No. 1, on the other hand, supported the order passed by the learned trial Judge and argued that the subsequent events of appoint' ment of J. Bandhopadhyay by the Working president, N. C. Roychoudhury, at the instance of the defendant/petitioner, J. M. Biswas, are required to be taken note of and the presence of those persons are necessary for complete and effective adjudication of the disputes involved in the suit. Shri Dasgupta drew my attention to the paragraphs 1,2,6 and 8 of the plaint and argued that sufficient ingredients are already, on the record requiring addition of union of India Railway Administration. It was pointed out that the registered trade union is recognised by the Railway Administration and a specific railway building has been allotted to the said union by the Railway Administration. The list of office bearers elected at the general meeting was circulated by the Chief Personnel officer of the Railway Administration to all concern and the decision of suspension of the plaintiff/opposite party No. 1 was, also, forwarded by the defendant/petitioner to the general Manager of the Railway Administration. Shri Dasgupta argued that since the Railway administration is the employer, the presence of the Railway Administration is necessary for effective and complete adjudication of the dispute for passing an effective decree in the suit. Shri Dasgupta has drawn my attention to the rules for the Recognition of Service Association of Railway Servants and on the basis thereof argued that it is proper to add the Railway Administration in this suit. Finally, shri Dasgupta argued that the petitioner is not entitled to invoke the revisional jurisdiction under section 115 of the' Code of Civil Procedure inasmuch as the order impugned, if allowed to stand, would not occasion a failure of justice and cause irreparable injury to the petitioner. ( 8 ) SHRI Banerjee in support of his contentions that union of India is neither a necessary nor a proper party in the suit cited the case of Dr. S. C. Law v. Dr. ( 8 ) SHRI Banerjee in support of his contentions that union of India is neither a necessary nor a proper party in the suit cited the case of Dr. S. C. Law v. Dr. K. S. Roy and Ors. . In the said reported decision question arose as to whether the Government is, in a suit to determine whether general meeting of a Government aided medical society-hospital was held on a certain date, a necessary party. A learned single Judge of this court held that when the suit is solely for determining whether a general meeting of the members of a medical society running a hospital with Government aid was hold on a particular date, the Government cannot have any say in that question even if it is vitally interested in it. It is, therefore, neither a necessary nor a proper party. The said case, in my view, is clearly distinguishable and cannot be relied upon as an authority for the purpose that in a litigation between two rival groups to establish their rights to control the trade union, the employer is not a necessary or proper party. More so, in the aforesaid decision the learned Judge was persuaded by the concession of the learned Government pleader appearing for the State that the State of West Bengal has nothing to do in order to dispose of the issue whether the meeting was held on April 8, 1970 or not. Shri Banerjee, also, cited the case of Firm of Mahadeva Rice and Oil Mills and Ors. v. Chennimalal goundar, in support of his contention that the court has no authority to add a party unless it is a necessary or a proper party. In the said reported decision the petitioners were the co-owner of the Rice Mill along with one palaniappa. The said Palaniappa sold his moiety of his share to the opposite party. The opposite party filed O. S. No. 164 of 1963 in the court of the learned Subordinate Judge, erode for partition and separate possession alleging that he is a co-sharer. While the said suit was pending, the petitioners filed O. S. No. 520 of 1963 in the court of the learned District Munsif, Erode against the opposite party and prayed for an injunction restraining him from trespassing into the Rice Mill premises and interfering with the business of the petitioners. While the said suit was pending, the petitioners filed O. S. No. 520 of 1963 in the court of the learned District Munsif, Erode against the opposite party and prayed for an injunction restraining him from trespassing into the Rice Mill premises and interfering with the business of the petitioners. The said suit has been transferred to the court of the learned Subordinate Judge and was re-numbered as O. S. No. 151 of 1964. After the pleadings, in both the suits, were completed, the opposite party filed applications in both the suits for impleading his vendor, palaniappa, as a party to both the suits. The learned single Judge of the Madras High Court, on the facts of that case, held that the proposed party was not a proper party and held that the court had no jurisdiction to add him as a party to the suit. Therefore, the said decision has no application in the facts and circumstances of this case. ( 9 ) IN my view, the learned trial Judge has not acted illegally and with , material irregularity in allowing the prayers for addition of the opposite parties 5,6 and 7 in the revisional application as defendants in the said suit. So far as the additions of J. Bandhopadhyay and n. C. Roychoudhury are concerned, in my view, the learned trial Judge was right to add those persons as defendants in the suit in view of the subsequent events alleged in the application for addition of party. This is a suit filed by the plaintiff/opposite party No. 1 to assert his right as the General Secretary of the Union and as the opposite party No. 5 has been appointed as the General Secretary instead and in place of the plaintiff/opposite party No. 1 during the pendency of the suit, the said opposite party No. 5 and, the person who has appointed him, namely, the opposite party no. 6, N. C. Roychoudhury, are necessary parties in the suit as in their absence no effective decree could be passed in the suit. It is conceded that the addition of the opposite party no. 7 in the said suit is not illegal. ( 10 ) IT is, of course true that there is no allegation in the application for addition of parties about the requirement to add the Railway Administration. But, Shri Dasgupta, learned Senior Advocate, for the opposite party no. It is conceded that the addition of the opposite party no. 7 in the said suit is not illegal. ( 10 ) IT is, of course true that there is no allegation in the application for addition of parties about the requirement to add the Railway Administration. But, Shri Dasgupta, learned Senior Advocate, for the opposite party no. 1, is right in his contentions that there are already sufficient averments in the plaint requiring the addition of Railway Administration in the suit. I am constrained to observe that the petitioner ought to have made necessary averments in the application for addition of party, also, explaining the necessity to add the railway Administration as the proforma defendant in the suit. ( 11 ) NEVERTHELESS, I do not want to interfere with the order impugned as the concept behind the idea to include the employer in a suit between two rival groups trying to establish their rival claims over the control of the trade union is that no decree should be passed by a court which would be rendered infractuous or would become, ultimately, incapable of being executed. When there are more than one groups, the question as to with whom the employer should negotiate or enter into bargaining assumes importance. The Supreme court of India in the case of Food Corporation of India Staff union v. Food Corporation of India and Ors. , held "collective bargaining is the principal reason d'etre of the trade unions. " The employer is, thus, a proper party as without the employer no effective decree can be made as the question is who will be the bargaining agent on behalf of the employees against the employer. The question involved in the suit is who is entitled to act as the bargaining agent. Ultimately, it is the employer, who will accept or deny the status and as such employer's presence would be necessary for adjudicating those questions. ( 12 ) IN my view, learned trial Judge was right in adding the employer, the opposite party no. 8, as proforma defendant in the suit as the employer is a proper party in the suit and the presence of the employer is necessary for complete and effective adjudication of the disputes involved in the suit. ( 13 ) ACCORDINGLY, the revisional application is devoid of any substance and is, therefore, rejected. There will be no order as to costs. ( 13 ) ACCORDINGLY, the revisional application is devoid of any substance and is, therefore, rejected. There will be no order as to costs. Let xerox certified copy of this order, if applied for, be supplied to the parties expeditiously. Revision dismissed.