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2010 DIGILAW 4402 (MAD)

First v. Second

2010-10-01

S.RAJESWARAN

body2010
Judgment : S. RAJESWARAN,J 1. Application No.1005 of 2010 has been filed by the applicant/plaintiff to grant interim injunction restraining the first respondent from functioning, claiming or acting as the General Secretary of the Applicant Union or interfering with the working or activities of the Applicant Union. 2. Application No.1006 of 2010 has been filed by the applicant/plaintiff to grant interim injunction restraining the first defendant from contesting in any of the election of the plaintiff union. 3. Application No.1007 of 2010 has been filed by the applicant/plaintiff to grant interim injunction restraining the second defendant from recognizing or permitting the first defendant to represent the employees of the second defendant as the General Secretary of the plaintiff union. 4. These three applications have been filed by the plaintiff in C.S.No.807 of 2010. 5. For the sake of convenience, the parties are referred to as per their rankings in the suit. 6. C.S.No.807 of 2010 has been filed by the plaintiff for the following reliefs: (a) To grant a permanent injunction restraining the first defendant from functioning, claiming or acting as the General Secretary of the plaintiff union or interfering with the working or activities of the plaintiff union. (b) To grant permanent injunction restraining the second defendant from recognizing or permitting the first defendant to represent the employees of the second defendant as the General Secretary of the plaintiff union or in any manner and render justice. (c) To grant an interim injunction restraining the first defendant from contesting in any of the election of the plaintiff union. 7. The case of the plaintiff is that the plaintiff is a Trade Union registered under the provisions of Trade Unions Act, 1926. It represents the employees of the 2nd respondent bank, who are working in different branches all over the country. The affairs of the plaintiff union is managed by the executive committee consisting of nine office bearers and the committee members are elected in accoundance with clause 10 of the Bye-laws. The office bearers shall be elected by the general body at their annual meeting among the members present in the General Body Meeting. The General body of the union shall consist of the members present in the general body of the meeting. The office bearers shall be elected by the general body at their annual meeting among the members present in the General Body Meeting. The General body of the union shall consist of the members present in the general body of the meeting. In the last general body of the union for the year ending 31.12.2009 held on 14.10.2007, the first respondent was elected as the General Secretary of the union and A.L.Kalayappan, who represent the plaintiff herein, as the Secretary. 8. The first defendant in the year 2001 became a partner in finance and real estate business along with Shri.Gopinath Ramadass and Gopinath Ramesh and no partnership deed was entered into. The first defendant borrowed a sum of Rs.10 Lakhs each during 2002 from Gopinath Ramadass, Gopinath Ramesh and Raja, who are all brothers, for getting them an immovable property at Selaiyur. Though the first respondent/first defendant purchased the property in Selaiyur, he failed to convey the same to the aforesaid three persons. He did not even repay the sum of Rs.30,000/-borrowed from them. Further, the first respondent issued three cheques in favour of the aforesaid persons and when the cheques were presented for repayment, the same has been dishonoured with an endorsement "No funds". Hence the aforesaid three persons initiated proceedings under Section 138 of Negotiable Instrument Act before the Judicial Magistrate, Alandur. The same was taken on file in C.C.No.10 of 2009 and by an order dated 18.03.2010, the Judicial Magistrate, Alandur found that the first defendant who is an employee of the second defendant and who knows the provisions of law and in particular the Negotiable Instrument Act, had issued cheques without maintaining sufficient balance in the bank and thereby committed an offence punishable under Negotiable Instrument Act. Accordingly, the first defendant was convicted under Section 138 of Negotiable Instrument Act and was sentenced to under go imprisonment for a period of 6 months with a fine of Rs.5,000/-with a provision to extend the imprisonment by another 6 weeks in the event of failure to pay the fine separately in three cases (convictions in all the three cases run concurrently). 9. The case of the plaintiff is that by virtue of the conviction order passed, the first defendant has suffered the disqualification of continuing as a General Secretary of the plaintiff union under Section 21(A) of the Trade Unions Act. 9. The case of the plaintiff is that by virtue of the conviction order passed, the first defendant has suffered the disqualification of continuing as a General Secretary of the plaintiff union under Section 21(A) of the Trade Unions Act. The plaintiff adds that Section 21(A) of the Trade Unions Act, 1926 deals with disqualification of the office bearers of the union and as per that provision, if an office bearer of the union is convicted by a Court in India for an offence involving moral turpitude and sentenced to imprisonment, unless a period of five years has elapsed since his release, then he or she shall be disqualified for being an office bearer. 10. Thus, by virtue of Section 21(A) of the Trade Unions Act, the first defendant has suffered a disqualification to continue as a Generla Secretary of the Union. It is an automatic disqualification and it is not open to the first defendant to continue as a General Secretary of the plaintiff union. Further the plaintiff came to know of this conviction only when the second defendant removed the first defendant from the services of the bank. 11. It is the further case of the plaintiff that after conviction order passed by the criminal court the first defendant has withdrawn cash from the savings bank account of the union from July 2010 to the tune of Rs.1,92,177/-and also closed fixed deposits pertaining to the union worth Rs.23 Lakhs on 30.08.2010. The end use of the funds drawn was not known to any members of the union. Therefore the above suit has been filed for the aforesaid prayer. Along with the suit, the above three applications have been filed. 12. On 21.09.2010, on hearing Mr.Vijaya Narayanan, the learned senior counsel appearing for the plaintiff, this Court passed an order of injunction in O.A.No.1005 of 2010 alone, restraining the first defendant from functioning, claiming or acting as the General Secretrary of the plaintiff union or interfering with the working or activities of the plaintiff union. In respect of other two applications viz., O.A.Nos.1006 and 1007 of 2010, notice was ordered. 13. The first defendant has entered appearance and filed separate counter affidavits for all the three applications. In all the counter affidavits, the first defedant has raised the same averments. 14. In respect of other two applications viz., O.A.Nos.1006 and 1007 of 2010, notice was ordered. 13. The first defendant has entered appearance and filed separate counter affidavits for all the three applications. In all the counter affidavits, the first defedant has raised the same averments. 14. The case of the first defendant is as follows: As against the order of conviction passed in C.C.No.10 of 2009, C.C.No.11 of 2009 and C.C.No.12 of 2009 under Section 138 of the Negotiable Instrument Act, an appeal was filed by the defendant and the sentence awarded has been suspended on 24.02.2010 and the matter is pending in appeal and the first defendant is on bail. Since the second defendant bank who does not appreciate trade unions, have engineered the plaintiff to institute this suit. Thus the above suit is a proxy suit filed by the second defendant bank through the plaintiff. The injunction application has been filed on the ground that the first defendant cannot be an office bearer in terms of Section 21(A) of the Trade Unions Act and he was terminated from service on 03.09.2010 and further he has misappropriated the monies of the union. However, according to first defendant, Section 21(A) of the Act would not apply to his case and therefore he continues to be the General Secretary of the plaintiff union till the next election is held in the Annual General Body Meeting. 15. In the criminal case pending before the Judicial Magistrate Court, the debt involved therein was settled but the cheque was not returned because he was belived to be a friend and the same was not insisted upon and the cheque was subsequently abused at the instance of the second defendant bank to foist a case through an empolyee of the bank. He contends that he has got merits in the appeal and he is confident that his appeal would be decided in his favour. 16. Therefore on merits also the conviction by the trial Court is not sustainable. Further the offence under Section 138 of the Negotiable Instrument Act is not an offence involving moral turpitude. Therefore the provisions of Section 21(A) do not get attracted to this conviction suffered by the first defendant. 17. 16. Therefore on merits also the conviction by the trial Court is not sustainable. Further the offence under Section 138 of the Negotiable Instrument Act is not an offence involving moral turpitude. Therefore the provisions of Section 21(A) do not get attracted to this conviction suffered by the first defendant. 17. The first defendant became a member of the plaintiff union when he was an employee in the Bank of Madura as also A.L.Kalayappan and the union was then called "Bank of Madura Employees Union". Since Bank of Madura got merged with ICICI Bank, the bye-laws were amended appropriately. Therefore his membership of the union at the time of entry was valid and he continues to be a member by paying subscription regularly and has also been elected as office bearers of the union for successive terms. The removal of membership is governed by bye-laws 8 and 9 and the first defendant has not been removed so far. Therefore the first defendant continues to be a member and General Secretary of the plaintiff Union in accordance with the bye-laws. 18. On 11.09.2010 the Executive committee meeting passed a resolution signed by the plaintiff union and particularly signed by Mr.A.L.Kalayappan, as president of the union. Two of the resolution passed on 11.09.2010 is to take up the first defendants matter with the second defendant and to extend fullest cooperation in the legal proceedings of the first defendant termination. 19. The first defendant has also denied the allegation misappropriation and he closed the fixed deposits and offered a pay order in favour of the union for deposit in a second defendant bank. All other amounts spent by him is for the purpose of the union and he would submit proper accounts for approval. Thus the first respondent prayed for dismissal of all these applications. 20. I have heard Mr.Vijaya Narayanan, the learned Senior Counsel appearing for the plaintiff, Mr.V.Prakash, the learned Senior Counsel appearing for the first defendant and Mr.A.L.Somayajee, the learned Senior Counsel appearing for the second defendant bank. I have also gone through the documents available on record including the counter affidavits filed by the first defendant in all these applications. 21. 20. I have heard Mr.Vijaya Narayanan, the learned Senior Counsel appearing for the plaintiff, Mr.V.Prakash, the learned Senior Counsel appearing for the first defendant and Mr.A.L.Somayajee, the learned Senior Counsel appearing for the second defendant bank. I have also gone through the documents available on record including the counter affidavits filed by the first defendant in all these applications. 21. The learned Senior Counsel Mr.Vijaya Narayanan would refer to the order of convition passed by the Judicial Magistrate, Alandur in C.C.No.10 of 2009 on 18.03.2010 convicting the first defendant and sentencing him to undergo imprisonment for six months with Rs.5,000/- fine and failure to pay the fine amount would result in six more weeks of imprisonment. By virtue of this conviction passed by the Judicial Magistrate against the first defendant, the first defendant was terminated by the second defendant on 03.09.2010. Consequently, the first defendant loses his membership in the union as per clause 3(A) of the bye-laws. According to the Senior Counsel, only if a person is an employee by the bank he/she would be eligible to become a member of the union. According to him, by virtue of this conviction suffered in the criminal court on 18.03.2010 and the order of termination passed by the second defendant, he is not only disqualified to hold the post of the office bearer but also to be a member of the union. He also refer to Section 21(A) of Trade Unions Act, 1926 with regard to the disqualification of office bearers of the trade union. Therefore according to him once he ceases to be an employee of the banking company and thereby losing his membership in the union and consequently not being office bearer ought not to have drawn the money from the union bank account. It is the further contention of the learned Senior Counsel that what is being held tomorrow i.e., 02.10.2010 is an Extra General Body Meeting and he being not an employee is not entitled to participate therein and there is no agenda to consider this subject. Therefore he submits that the material produced before this Court would prima facie show that the first defendant has suffered a disqualification, being a member of the trade union and consequently he is not competent to continue as a General Secretary of the plaintiff union also. Therefore he submits that the material produced before this Court would prima facie show that the first defendant has suffered a disqualification, being a member of the trade union and consequently he is not competent to continue as a General Secretary of the plaintiff union also. Hence he prays for an order of injunction passed by this Court on 21.09.2010 to be made absolute and also to pass an order of injunction in other two applications viz., O.A.Nos.1006 and 1007 of 2010 as well. 22. Per contra, Mr.V.Prakash the learned Senior Counsel appearing for the first respondent/first defendant while reiterating the averments in the common counter affidavits filed would submit that against the order of conviction by the criminal Court, an appeal was filed and the Appellate Court suspended the sentence till the disposal of the appeal. In so far as Section 21(A) of the Trade Union Act, 1926 is concerned, he submits that Section 21(A) will not apply to the facts of the present case and even assuming it would apply, still the disqualification contemplated under Section 21(A) of the Act will not apply as the offence involved in Section 138 of the Negotiable Instruments Act is not an offence involving moral turpitude. To explain what is moral turpitude, he relies on a decision of the Bombay High Court reported in 1980 (I) LLJ 117 (Jaysing Rangarao Raut vs. Maharashtra State Electricity Board and another). He also place his reliance on the resolution passed by the plaintiff union on 11.09.2010 to submit that this suit filed by the Secretary of the Union without a resolution by the Union is not maintainable. Therefore he prayed for dismissal of all the three applications filed by the plaintiff union. 23. Mr.A.L.Somayajee, the learned Senior Counsel appearing for the second defendant bank, while submitting his arguments toed the line of the plaintiff union and prayed for injunction in all the three applications. 24. I have considered the rival submissions carefully. 25. In the light of the above pleadings and the arguments advanced by the learned Senior Counsel for the parties, the only question that arises for consideration is whether the plaintiff is entitled to sustain the order of interim injunction already granted in A.No.1005 of 2010 on 21.09.2010 and also entitled to an order of interim injunction in O.A.Nos.1006 and 1007 of 2010. 26. The following facts are not in dispute: 1. 26. The following facts are not in dispute: 1. Cheque bouncing cases were initiated against the first defendant in C.C.No.10 of 2009, C.C.No.11 of 2009 and C.C.No.12 of 2009 before the learned Judicial Magistrate, Alandur. 2. The first defendant was convicted in all the three cases and a sentence of six months imprisonment along with a fine of Rs.5,000/-was imposed against him in all the three cases. 3. The first defendant filed an appeal in C.A.Nos.23 to 25 of 2010 before the learned Principal Sessions Judge, Chengalpattu and only the sentence of imprisonment along was suspended till the disposal of the appeals. 4. Admittedly the fine amount imposed on the first defendant was paid in all the three cases. 5. The first defendant was also enlarged on bail on executing a bond for a sum of Rs.10,000/- with two sureties each for the like sum to the satisfaction of the Judicial Magistrate, Alandur. 6. The first defendant was terminated from the service of the second defendant bank on 03.09.2010. 7. Bye-law 3(a) of the plaintiff union stipulates that any employee of the second defendant bank, who is above 18 years of age shall be eligible to become the member of the union. 8. Under Section 21(A) of the Trade Union Act, 1926, a person shall be disqualified for being a member of the executive or any other office bearer of a registered trade union if he has been convicted by a Court in India for any offence involving moral turpitude and sentenced to imprisonment, unless a period of five years has elapsed since his release. 27. In the light of the above undisputed facts, a prima facie case has been made out by the plaintiff to contend that as the first defendant is disqualified to be a member as well as an office bearer of the union, he has to be injuncted from acting as a General Secretary, from contesting any election and from representing the employees of the second defendant union as General Secretary. 28. Once a persons membership itself is under cloud, in the interest of justice it is not desirable to permit him to represent the plaintiff as General Secretary. 29. 28. Once a persons membership itself is under cloud, in the interest of justice it is not desirable to permit him to represent the plaintiff as General Secretary. 29. Though the learned Senior Counsel for the first defendant contends that an offence committed under Section 138 of the Negotiable Instrument Act does not involve moral turpitude by citing a Bombay High Court judgment reported in 1980 (I) LLJ 117 (cited supra), the same cannot be decided at the interlocutory stage. 30. In the above judgment, the Bombay High Court held as follows: "Can it be said that this action of the petitioner for which he has been convicted constitutes an offence involving moral turpitude? The term "moral turpitude" by its very nature is somewhat nebulous because it involves an examination of an action in the light of the prevailing moral norms. Unlike legal norms, moral norms are somewhat nebulous. Hence it is quite possible that and action which may be violative or moral norms in one society may appear acceptable in another society. Hence one can only judge the action in any given case in the light of what one considers to be the prevailing moral norms of the society in which such in action has taken place. Secondly, the action should not merely be contrary to moral norms but it should involve a violation of the moral code in such a manner that it indicates baseness or depravity of character. The term "moral turpitude" has been discussed in a number of cases. Thus, in Durga Singh vs. The State of Punjab, AIR 1957 Punjab 97 at p.98, while discussing the conduct of a police constable, the Court has held that "the term (moral turpitude) has generally been taken to mean to be a conduct contrary to justice, honesty, modesty or good morals and contrary to what a man owes to a fellow-man or to society in general." A similar test ahs been propounded in Baleshwar Singh vs. District Magistrate and Collector, Banaras, AIR 1959 ALL. 71 , where the Court has once again reiterated that "moral turpitude means anything done contrary to justice, honest, modesty or good morals. It implies, depravity and wickedness of character or disposition of the person charged with the particular conduct. 71 , where the Court has once again reiterated that "moral turpitude means anything done contrary to justice, honest, modesty or good morals. It implies, depravity and wickedness of character or disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so if it discloses vileness or deprivity in the doing of any private and social duty which a person owes to his fellow-men or to the society in general." The above tests are couched in a language which is capable of embracing acts which one would not normally consider as acts of moral turpitude; e.g., every breach f duty which a man owes to his fellow-men or to the society may not necessarily involve moral turpitude. A man may commit a breach of his civic duties and harm his fellow-men. His action may be in violation of the duty which he owes to the society. Nevertheless the act may not involve any lmoral turpitude. A standard example is a breach of the traffic rules. It is quite possible that by committing a breach of the traffic rules is nor normally considered as an action involving moral turpitude. Basically all laws, rules and regulations are framed for an orderly conduct of transactions in a complex society. It is quite possible that every breach of such laws, rules and regulations would involve a violation of duty to others. But every such violation does not involve moral turpitude. Hence a more precise test for determining whether a particular offence involves moral turpitude or not, is required. Srivastava, J., expressed such a view in Mangali vs. Chakki Lal ( AIR 1963 All. 527 ). In his judgment he has laid down the following tests which could be applied for judging whether a certain offence does or does not involve moral turpitude. These are : (1) Whether the act leading to a conviction was such as could shock the moral-conscience of society in general, (2) Whether the motive which led to the act was a base one and (3) Whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society. The Full Bench of Allahabad High Court in AIR 1965 All. The Full Bench of Allahabad High Court in AIR 1965 All. 382 , has referred to these observations of Srivastave, J. The tests prescribed in the above judgment by Srivastava, J., have also been cited with approval in the case of Risal Singh vs. Chandgi Ram, AIR 1966 Punjab 393. The Supreme Court, however, in its judgment reported in AIRT 1963 SC 1313 In re P an advocate, while discussing the conduct of an advocate, has observed that the term "moral turpitude" should be interpreted in the widest possible manner in considering the behaviour of an advocate. That observation cannot be of much assistance which considering whether the petitioner has committed an offence involving moral turpitude. From the discussion in the above cases it becomes clear that in order that an offence may be considered as involving moral turpitude it is necessary that there should be on the part of the petitioner, a transgression of the moral code coupled with baseness or depravity of character." 31. In my considered view issuing a cheque and not honouring the same inspite of a notice of demand is definitely an offence involving moral turpitude and I hasten to add that this is only a prima facie opinion expressed by me for the purpose of disposing of the above applications and it is open to the first defendant to agitate this issue at the time of trial on merits and in accordance with law. 32. I also find from Section 21(A) of the Trade Union Act that the disqualification contemplated would apply not only for the persons who are going to be chosen for a post, but also for the persons who are already functioning as office bearers. This disqualification contemplated under Section 21(A) of the Act coupled with the termination order already passed by the second defendant bank would prima facie satisfy that the first defendant is to be injuncted from representing the plaintiff union as General Secretary and also from contesting the ensuing election. 33. This disqualification contemplated under Section 21(A) of the Act coupled with the termination order already passed by the second defendant bank would prima facie satisfy that the first defendant is to be injuncted from representing the plaintiff union as General Secretary and also from contesting the ensuing election. 33. Though the learned Senior Counsel for the first defendant very much relied on the resolution passed by the plaintiff on 11.09.2010, wherein the plaintiff union resolve to take up the matter of first defendants termination with the second defendant, I am of the considered view that alone would not be sufficient to enable the first defendant to function as General Secretary in the light of the facts narrated above. 34. The issue with regard to maintainability of the suit and the competency of the Secretary to file the suit without necessary resolution could not be gone into at this stage and the same should also be decided along with the issue of an offence involving moral turpitude at the time of trial. 35. Hence I find a prima facie case in favour of the plaintiff and the balance of convenience is also in their favour. If a person who is terminated from the service and who also appears to be disqualified by a statute, irreparable injury would be caused if such a person is allowed to function as General Secretary representing all the members of the plaintiff union. Therefore I am inclined to grant an order of injunction in OA.Nos.1006 and 1007 of 2010 as prayed for, while making the order of injunction absolute in OA.No.1005 of 2010. 36. In the result, all the above applications are allowed as prayed for. No costs.