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2005 DIGILAW 884 (MAD)

Indicarb Employees Union v. Indicarb Limited

2005-06-18

R.BANUMATHI

body2005
Judgment :- This Civil Revision Petition is directed against the order dated 29.04.2005 passed by District Munsif, Hosur in I.A.No.196 of 2005 in O.S.No.189 of 2004, ordering Police Protection and also appointing Advocate Commissioner to co-ordinate with the jurisdiction police to implement the order in I.A.No.283 of 2002 in O.S.No.166 of 2002 on the file of Sub-Court, Hosur. The Defendant – Indicarb Employees Union is the Revision Petitioner. 2. The Industrial dispute between the Management – Indicarb Limited and the employees has led to litigations both by the Management and by the Employees Union. For convenience, the parties may be referred in the order in their rank in O.S.No.166 of 2002 on the file of Sub-Court, Hosur – a suit filed by Management Indicarb Limited. 3. The Plaintiff is a private limited Company engaged in the manufacture of Tungsten Carbide Products at its factory from the year 1988. The Plaintiff has been supplying the products to Government of India undertaking like Indian Railways, Bharath Heavy Electricals, Steel Authority of India etc., as well as to many private sector companies. The Plaintiff has employed 70 permanent workmen apart from Supervisory and Management staff and security personnel. For about one year prior to the Suit, there was rapid decline of the Plaintiff's products and the Plaintiff was not able to face the competition from the imported products. Since the demand for finished products was on the decline, the Plaintiff Company was obliged to dispose of even the raw materials. The Plaintiff has issued a Notice under Section 25-FFA of the Industrial Disputes Act, proposing to close the Unit by 30.06.2002. All the legal dues have been paid to the employees. 4. At that stage, the Management and the Employees' Union have filed two suits. 5. O.S.No.166 of 2002:-} The Management has filed (Sub-Court,Hosur) } this Suit alleging that the raw-materials and products finished are to be sold and disposed of otherwise, the Plaintiff would not be in a position to meet the liabilities of various charges, including the Wages and other dues. The finished products raw-materials are lying in the factory. The finished products have to be delivered to the Customs. The raw-materials and finished products are to be sold and unless they are sold, the Plaintiff Company will not be in a position to meet the liability for various charges including the wages and other dues. The finished products raw-materials are lying in the factory. The finished products have to be delivered to the Customs. The raw-materials and finished products are to be sold and unless they are sold, the Plaintiff Company will not be in a position to meet the liability for various charges including the wages and other dues. On such averments, the Plaintiff Company filed the suit inter-alia for the following relief:- "....for a perpetual injunction to restrain the defendants, its members, associates, agents and persons acting at their behest from preventing or obstructing the movement of vehicles with or without finished, semi-finished products, raw materials and other things from entering into the factory and leaving the factory...." 6. O.S.No.87 of 2002:- } Employees Union has Vacation Court, Krishnagiri } filed the Suit. Alleging transferred to D.M.C, Hosur } that without any and re-numbered as } intimation, all of O.S.No.189 of 2004 } sudden, the Management has declared lock out, the Union Has filed this Suit. The Employees Union has reserved their right to challenge the illegal lock out before Labour Forum. Alleging that the Management is trying to sell and shift the machineries, the Employees Union filed the Suit seeking for : "....(i) a permanent injunction against the Defendants restraining them from shifting any machineries, raw materials finished, semi finished or un finished goods, mentioned in the suit schedule from the suit schedule premises to any other place till the salary and other claims of the Plaintiffs to be settled by the defendants. (ii)granting permanent injunction against the Defendants restraining them from alienating any bid of the Schedule Property to any other industry or the third party or any banking, financing industries, till the salary and other claims of the Plaintiffs employees is to be settled by the defendants...." 7. In both the suits, the Injunction Applications were filed. In I.A.No.283 of 2002 in O.S.No.166 of 2002, the parties have filed a Joint Compromise Memo and the same was recorded. Recording the Joint Memo, the Sub-Court passed the following order:- "....To carryout amendment. APC filed. Compromise Memo filed and recorded. Petition is allowed as per the terms of compromise petition. No costs...." 8. In I.A.No.283 of 2002 in O.S.No.166 of 2002, the parties have filed a Joint Compromise Memo and the same was recorded. Recording the Joint Memo, the Sub-Court passed the following order:- "....To carryout amendment. APC filed. Compromise Memo filed and recorded. Petition is allowed as per the terms of compromise petition. No costs...." 8. I.A.No.196 of 2005 in O.S.No.189 of 2004 :- Nearly two years after the recording of Compromise, the Management has filed this Application alleging that despite the order from the Court, they could not remove the raw-materials, finished goods and unfinished goods and other materials from the factory. Hence, the application was filed seeking for Police Protection, directing the SIPCOT Police to afford police protection in implementing the orders in I.A.No.283 of 2002 in O.S.No.166 of 2002 to remove the raw-materials, finished goods and semi finished goods from the factory premises. 9. Resisting the application, the Defendants have filed the Counter Statement alleging that the Plaintiff Company is not at all functioning for the three years and more and as such there is no movement of raw-materials inside the factory and no manufacturing work. Industrial Dispute and incidental proceedings are pending before the High Court. In the meanwhile, the Plaintiff has been trying to remove the files containing the Statement of Accounts of the Turn Over and the Balance Sheet of the Company and other important documents on the strength of the order passed in I.A.No.283 of 2002. The Defendant Union expressed no objection in providing police aid to implement the Injunction Order in the event the Plaintiff Company giving an undertaking that the Company would not remove any files from the Factory premises. 10. Upon consideration of the contentions of both the parties, learned District Munsif has ordered the Petition for police protection and Advocate Commissioner was also appointed to co-operate with the jurisdiction police to give adequate protection to implement the order in I.A.No.283 of 2002. The District Munsif has passed the following Order:- "To safeguard the interest of the Respondent, this Court under its inherent power appoint Mr.M.Shivanna as the Advocate Commissioner to co-ordinate with the jurisdiction police to give adequate protection to implement the order in I.A.No.283 of 2002 in Sub Court, Hosur O.S.No.166 of 2002, for ingress and egress to men and vehicle, to remove raw materials finished, semi-finished, stock materials, scraps from the petition premises, without removing machinery and its accessories. .......The learned Commissioner has to monitor the same while the orders is implemented by the Inspector of Police, SIPCOT P.S. Hosur....." 90 days time was given for implementation of the order. The Advocate Commissioner was directed to file the Report. 11. Aggrieved over the said order, this Revision Petition is filed under Article 227 of the Constitution of India. 12. Learned counsel for the Revision Petitioners mainly urged that on the strength of the order, the Management is making every attempt to remove and sell the scrap from the Respondent Factory premises. Learned counsel has submitted that earlier the parties have agreed and petition was filed only for removal of the raw-materials, finished, semi-finished and stock materials. While so, learned District Munsif erred in passing the order for removal of scrap also, which is not in accordance with the Joint Memo and on that ground seeks intervention of the order of the Court below. It is further submitted that due to the illegal lock out of the Plaintiff Unit, the Members of the Union are struggling for survival and that the interest of the workmen are to be taken note of. Learned counsel has further urged to direct the Management to render accounts for the removed materials, so as to benefit the workmen. 13. Contending that the power under Article 227 is to be sparingly exercised, learned Senior Counsel for the Management has submitted that the order was passed in I.A.No.196 of 2005 only pursuant to the Joint Memo and for implementing the order in I.A.No.283 of 2002. It is contended that having consented for the Joint Memo, it is not open to the employees to object to the removal of the materials from the factory premises. Learned counsel has further submitted that the Police protection was given and an Advocate Commissioner was appointed to implement the order and that only the order of the Court has been implemented and that there is no reason warranting interference in the Impugned order. 14. Even at the outset, it is to be pointed out that the order was passed in I.A.No.196 of 2005 seeking Police Protection to implement the order in I.A.No.283 of 2002, which was allowed on the basis of the Joint Compromise Memo. 14. Even at the outset, it is to be pointed out that the order was passed in I.A.No.196 of 2005 seeking Police Protection to implement the order in I.A.No.283 of 2002, which was allowed on the basis of the Joint Compromise Memo. For better appreciation of the contentious points, it is necessary to refer to the Joint Compromise Memo, which reads thus:- “...JOINT MEMO FILED BY BOTH PARTIES:- In the above case, this Honourable Court may be pleased to allow the above I.A.No.283 of 2002 without costs, with a direction to the Petitioner not to remove the machinery, machinery accessories and permanent fixtures from the suit premises and with a direction to the respondent Union to hold peaceful demonstrations, raise slogans, and dharna 50 meters away from the main gate of the suit premises and a corner of compound wall of the factory on the outside until disposal of the suit....” That Joint Memo was recorded in I.A.No.283 of 2002, which was allowed on 16.09.2003 as noted earlier. 15. I.A.No.196 of 2005 was filed to execute the order seeking Police Protection. In the said application, it was prayed for implementing the orders of Hon’ble Court in I.A.No.283 of 2002 in O.S.No.166 of 2002, free ingress and egress of men and vehicles to remove the raw materials finished unfinished and semifinished goods from the Plaintiffs factory. The scrap materials have not been included in the prayer. In his order, learned District Munsif has ordered Police Protection not only for removal of materials stated in the Petition, but also for removal of scraps. Hence, the impugned order is assailed on the ground that it has included the scraps. 16. The matter came up for hearing on 15.06.2005. It was informed that the order being implemented on that day and the following items have been removed: “(a) All types of finished products lying in FPS (b) Graded Powder IW 13 – 1950 Kgs (c) Sludge powder – 2000 Kgs (d) TIWC (50:50) Powder – 150 Kgs” The same was recorded by this Court. In the Counter Statement filed by the Management, it is stated that the above materials have been removed in the presence of Advocate Commissioner and the Police and the Office Bearers of the Defendant Union. It is stated that the materials have been removed under the supervision of the Advocate Commissioner. In the Counter Statement filed by the Management, it is stated that the above materials have been removed in the presence of Advocate Commissioner and the Police and the Office Bearers of the Defendant Union. It is stated that the materials have been removed under the supervision of the Advocate Commissioner. This Court finds no irregularity either in the order or in the removal of the materials implementing the order passed in I.A.No.283 of 2002. 17. In the Counter Statement, the Management has clearly averred that no scrap had been removed. The Management has further stated that no scrap of the machinery is available in the premises and the removal of scrap does not arise. In the light of such definite averments in the Counter Statement, the Defendant Union is not able to pinpoint as to what is the scrap removed. In any event, as per the Joint Compromise Memo, the only interdict is “...not to remove the Machinery Accessories and Permanent fixtures from the suit premises....”. When that being so, no objection could be raised by the Union for the removal of the above four items. Whether the above removed articles are finished or semi-finished or raw-materials is a matter of evidence to be determined at the time of the Trial. 18. It is relevant to note that in their Counter Statement in I.A.No.196 of 2005, the Employees Union had only expressed the apprehension that the Management is trying to remove the files containing the Statement of turn over and the balance sheet of the company and other important documents on the strength of the order passed in I.A.No.283 of 2002. When the order was implemented under the supervision of the Advocate Commissioner, the apprehension expressed by the Union is not well founded. The order directing police protection and appointment of Advocate Commissioner was passed only to implement the order in I.A.No.283 of 2002 pursuant to the Joint Memo. The Revision Petitioner / Defendant cannot have any valid objection for the implementation of the order. 19. Learned counsel for the Revision Petitioners/ Workmen has submitted that the interest of the Workmen is to be protected and that the Management is to be directed to render the accounts for the goods removed and the sale proceeds. Admittedly, industrial dispute has been raised and the same is pending before the Labour Forums and the High Court. 19. Learned counsel for the Revision Petitioners/ Workmen has submitted that the interest of the Workmen is to be protected and that the Management is to be directed to render the accounts for the goods removed and the sale proceeds. Admittedly, industrial dispute has been raised and the same is pending before the Labour Forums and the High Court. When that being so, by exercising power under Article 227 of the Constitution of India no direction could be given. While exercising the power of superintendence under Article 227 of the Constitution of India, the High Court does not function as an Appellate Authority. Hence, such direction cannot be ordered. 20. For the foregoing reasons, this Civil Revision Petition is dismissed. In the circumstances of the case, there is no order as to costs. Consequently, the connected C.M.P.No. 8942 of 2005 is closed.