042-SLLR-SLLR-1994-V2-RAJAN-AND-TWO-OTHERS-V.-SELASAMY.pdf
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Rajan and Two Others v. Sellasamy
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RAJAN AND TWO OTHERS
v.
SELLASAMY
COURT OF APPEAL.
S. N. SILVA, J. (PRESIDENT C/A) ANDDR. R. B. RANARAJA, J.
CALA 17/94 WITH CA 64/94.
D.C. COLOMBO 3918/SPL.
MARCH 18. 25 & 29, MAY 12. JUNE 13 AND 15, 1994.
Injunction – Requisites for an interim injunction – Judicature Act. section 54 -Rules 15(H) and 15(1) of the Constitution of the Ceylon Workers' Congress (CWC)- Meeting of the National Council and Executive Council – Legality.
The plaintiff M. S. Sellasamy who was the General Secretary of the CeylonWorkers’ Congress (CWC), sued for a declaration that the meetings of theNational Council and Executive Council of the CWC held on 02.01.1994 wereconvened contrary to the Constitution of the CWC and that all decisions taken atthese meetings were null and void. He also sought interim and permanentinjunctions restraining the 1st defendant who was the Vice-President(Administration) and the 2nd defendant who was the President of the CWC fromimplementing any of the said decisions. An enjoining order in terms of the prayerwas entered on 03.1.1994 and after the parties were heard, an interim injunction.
The meeting of the National Council of the CWC was convened for 10 a m. on02.1.1994 by notice issued by the 1st defendant dated 22.12.1993 setting out anagenda of two items: (i) Disciplinary action against members of the CentralProvince Provincial Council who acted in breach of the promise given by theCWC and (ii) The exchange of letters by the President of the CWC and GeneralSecretary regarding representation by the CWC at the annual convention of theU.N.f. held on 18.12.1993.
The Executive Council meeting was convened by notice dated 24.12.1993 for8.30; a.m. on 02.01.1994 also issued by 1st defendant. Items 2 and 3 ol theagenda of this meeting were related to the conduct of the members of ihe CWCwho acted against the promise given by the CWC with regard to the matter in theCentral Province Provincial Council and to summon the National Council to arriveat a final decision with regard to this matter.
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The plaintiff admittedly received both notices. He did not protest against thedecision to convene the meetings nor did he attend either of the meetings thoughentitled to do so.
The Minutes of the Executive Council record that the Council endorsed thedecision of the President to convene a meeting of the National Council for thatday and a resolution summoning an immediate meeting of the National Councilwas unanimously passed. The minutes also record that action should be takenagainst the plaintiff being the General Secretary and the eight members of theCentral Province Provincial Council who acted against the CWC at that Council.
At the National Council meeting a resolution was adopted that the plaintiff besuspended from the office of General Secretary with immediate effect and that hebe called upon to resign from that office within a period of M days. It mandatedthe President to take appropriate steps for the removal of the plaintiff from theoffice of General Secretary in the event of his failure or refusal to submit hisresignation. A copy of the resolution was sent to the residence of the plaintiff at8.30 p.m. but the messenger was not permitted to enter the premises nor was thetetter accepted.
It has to be taken as established that the members of the Executive Council andthe National Council received notices of the meetings and 165 out of the 197members of the National Council did in fact attend the meeting. Rule 15(H) of theCWC Constitution give the National Council power to take disciplinary measuresagainst the members of the Congress and Rule 15(1) stipulated a 2/3 majority forremoval of an office bearer. The steps taken were not to expel the plaintiff frommembership of the CWC but to remove him from the post of General Secretary.
Held:
The provisions of section 54( 1) of the Judicature Act postulate –
(i) The test of a prima facie case whereunder a serious question to be triedas to the impugned act of the defendant the commission of which issought to be restrained and the probability that the plaintiff is entitled topermanent relief in restraining the defendant from committing theimpugned act.
The whole of the case must be considered.
(n) that the matters looked at thereafter are the balance of convenience andthe conduct of the respective parties.
The legal right claimed by (he plaintiff in respect of which an interim injunctionis sought relates to the post of General Secretary of the CWC.
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The plaintiff has failed to satisfy the test of a prima facte case. He has failed toset out any act of the defendants the commission of which would produce injuryto himself. No interim injunction has been sought or obtained in respect of theresolution of the National Council which took effect after the case was filed. Onthe grounds relied upon by the plaintiff relating to the convening of the twomeetings', the plaintiff has failed to establish a prima facie case that he is entitledto a judgment for permanent relief against the defendants.
As regards the balance of convenience, the injunction has brought the CWC toa position where it is without a General Secretary who is competent to functionbut is unable to take further steps to remove the General Secretary. The 1st and2nd defendants, who have been restrained have no power or authority to expelthe plaintiff from the post of General Secretary. It is the National Council whichhas the plenary power to take disciplinary measures against the plaintiff asGeneral Secretary. The plaintiff has every right to appear before the NationalCouncil and place his defence if he is so minded. In the circumstances the test ofthe balance of convenience favours the defendants and not the plaintiff.
Lastly, the conduct of the plaintiff in not attending the meetings although hehad due notice of them, and instead seeking immediate relief in the District Courton the basis of an alleged procedural error in convening the meeting militatesagainst the grant of an interim injunction.
Cases referred to:
Preston v. Luck (1884) 27 Ch. Div. 497.
Jinadasa v, Weerasinghe (1929) 31 N.L.R. 33,34.
Hubbard v. Vbsper[1972] 2Q.B. 84,96.
Bandaranayake v. State Film Corporation (1981] 2 Sri L.R. 287.
Richard Perera v. Albert Perera (1963) 67 N.L.R. 443,448.
Carnage v. The Minister of Agriculture and Lands (1973) 76 NLR 25.
■ Yakkaduwe Sri Pragnarama Thero v. Minister of Education (1969) 71 NLR 506.
Ceylon Hotels Corporation v. Jayatunga (1969) 74 NLR 443.
; Duchess of Argyll v. Duke ofArgyil( 1967) 1 Ch. 302.
Monsoon v. Tussauds Ltd,, (1894] 1 Q.B. 671.
11: Labouchers y EariofWharncliffel1879] Ch. D 346.
Fishery. Keane[1878} Ch. D. 353.
Parrv. Lancashire & Cheshire Miners'Federation [1913] Ch. D. 366.
Luby v. Warwickshire Miners'Association [1912] Ch. D. 371.
Harington y Sendall [1903] Ch. D. 921.
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APPLICATION for leave to Appeal from and Revision of the Order of the DistrictCourt of Colombo.
Romesh de Silva, P.C. with Britto Muthunayagam and Palitha Kumarasinghe forpetitioners.
P. A. D. Samarasekera, P.C. with J. Jeyakrishnan for respondent.
Cur. adv. vult.
September 02.1994.
S. N. SILVA, J.
The Defendant-Petitioners have filed an application for leave toappeal and for revision from the order dated 20.01.1994. Leave toappeal was granted on 23.02 1994 and it was agreed that bothmatters be heard and decided together.
The 1st and 2nd Defendants are Vice-President (Administration)and President respectively, of the 3rd Defendant (C.W.C.) being aregistered trade union. At the time material to this appeal, the Plaintiffwas the General Secretary of the C.W.C. The Plaintiff filed actionseeking a declaration that the meetings of the National Council andthe Executive Council of the C.W.C., held on 02.1.1994 wereconvened contrary to the constitution of the C.W.C. and illegally andthat all decisions taken at the meetings are null and void, of no forceand unenforceable. He also sought interim and permanentinjunctions restraining the 1st and 2nd defendants from implementingany of the said decisions. The impugned meetings were held atHatton on Sunday the 2nd and the action was filed in the DistrictCourt of Colombo on Monday the 3rd upon which an enjoining orderwas issued on the same day. The defendants filed objectionstogether with an affidavit of the 1st defendant supported bydocuments. Written submissions were filed by both parties and theLearned District Judge by his order challenged in these proceedingsgranted the interim injunction as prayed for,
The meeting of the National Council of the C.W.C. was convenedfor 10 a.m. on 02.01.1994, by notice dated 22.12.1993 (document Afiled in this application; P2 in the District Court) by the 1st defendant
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[Vice-President (Administration)]. There are two items on the agendaas stated in the notice. They are :
Disciplinary action against members of the Central ProvinceProvincial Council who acted in breach of the promise givenby the C.W.C.;
The exchange of letters by the President of the C.W.C. and theGeneral Secretary regarding the representation by the C.W.C.at the annual convention of the U.N.P. held on 18.12.1993.
The Executive Council meeting was convened by notice dated24.12.1993 for 8.30 a m. on 02.01.1994 (A5: P3), also issued by the1st defendant. Items 2 and 3 of the agenda of this meeting wererelated to the conduct of the members of the C.W.C. who actedagainst the promise given by the C.W.C. with regard to the matter inthe Central Province Provincial Council and to summon the NationalCouncil to arrive at a final decision with regard to this matter. The 1stdefendant has stated in his affidavit that he issued the noticesconvening the meetings at the request of the 2nd defendant beingthe President of the C.W.C.
The Plaintiff admittedly received both notices. He has notprotested against the decision to convene the meetings to any one inthe C.W.C. prior to the institution of the action. He did not attendeither of the meetings although he was entitled to do so by virtue ofthe office held by him.
Minutes of the meeting of the Executive Council have beenproduced by the defendants (B7: D4). It records that the Councilendorsed the decision of the President to convene a meeting of theNational Council for that day and that the meeting of the NationalCouncil should be held at 10 a.m. at the same venue since allmembers of the National Council have already been issued noticesinforming them of the meeting. It is recorded that the resolutionsummoning an immediate meeting of the National Council wasunanimously passed. The minutes also record that action should betaken against the plaintiff being the General Secretary and the eightmembers of the Central Province Provincial Council who actedagainst the C.W.C. at that Council.
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The resolution adopted by the National Council at its meeting havebeen produced by the defendants (B9). The resolution is that theplaintiff be suspended from the office of General Secretary withimmediate effect and that he is called upon to resign from that officewithin a period of 14 days. It mandates the President to takeappropriate steps for the removal of the Plaintiff from the office ofGeneral Secretary in the event of his failure or refusal to submit hisresignation. A copy of the resolution had been sent to the residenceof the Plaintiff at 8.30 p.m. that night but according to the affidavit ofKandasamy Dharmalingam (B13) he was not permitted to enter theresidence and the security personnel at the gate refused to acceptany letter from the C.W.C. The plaintiff has not filed a copy of theresolution in respect of which he has sought interim relief.
The only ground on which the plaintiff has sought to challenge theresolution is that the meeting of the Executive Council and of theNational Council have not been convened according to theConstitution of the C.W.C. (P1: A3). It is submitted by the plaintiff thatthese meetings could be convened only by him as General Secretary.In any event it is submitted that Rule 16 (E) provides for the ExecutiveCouncil to meet, except at its regular meetings, only upon a jointwritten requisition made by not less than 1/3rd of the members. Asregards the National Council it is submitted that Rule 15 (D) providesfor the National Council to meet only as required by the ExecutiveCouncil or on a written requisition addressed to the GeneralSecretary by not less than 50 or 1/5th of the membership of theCouncil, whichever is less. Admittedly, there have been no writtenrequisitions as stated in these rules.
The defendants contend that from the inception, it has been thepractice to convene meetings at the request of the President and thatno meetings have ever been convened upon written requisition asprovided for in the Rules referred above. In any event it is submittedthat the ground relied on by the plaintiff relates to the manner ofconvening the meetings and is procedural in nature. It is submittedthat the plaintiff and every member of the two bodies receivednotices of the meetings and that the decisions were takenunanimously at properly constituted meetings of the ExecutiveCouncil and of the National Council.
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As noted above, the plaintiff as General Secretary of the C.W.C.received notices (P2 and P3) of the two meetings that were convenedfor 02.01.1994. He did not protest at any stage prior to thesemeetings that the meetings have been convened in a manner that iscontrary to the Rules of the Constitution. The defendants haveproduced a list of the persons who were present at the meetings.(B8). This list gives the name of each person, his designation in theC.W.C, or station and the signature. According to the affidavit of the1st defendant 165 out of the 197 members attended the meeting ofthe National Council. It was argued by the plaintiff that there are lesssignatures in the attendance sheets of the meeting of the NationalCouncil. However, in reply, it has been shown that the members of theExecutive Council who are also members of the National Councilsigned the attendance sheets only when they attended the meetingof the Executive Council. In the course of the hearing, a specificquestion was raised by Court as to whether the plaintiff is disputingany signature as appearing in the attendance sheets (B8). It wascategorically stated that the plaintiff is not making any suchsuggestion. Therefore, it has to be taken as an established fact thatthe members of the Executive Council and the National Councilreceived! notices of the meetings and that 165 out of 197 members ofthe National Council did in fact attend the meeting.
Rule 15 (H) of the Constitution provides as follows:
“The National Council shall have the power to take disciplinarymeasures on members of the Congress, delegates, members ofthe National and Executive Councils, office bearers and ex-Presidents for misconduct, wilful neglect of duty, default or anyother cause”.
Rule 15(1) provides that no office bearer shall be removed from officeexcept on a resolution passed by a majority at a National Councilmeeting at which at least 2/3rd of the members are present.
It is clear from the documents produced by the defendants that farmore than the quorum of 2/3rd of the members of the NationalCouncil were present at its meeting which is challenged in theseproceejdings. The resolution suspending the plaintiff and requiringhim to resign and upon failure authorising the President to take steps
i
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for his removal has been carried unanimously. Since the plaintiff is notchallenging the status of the members of the Council who werepresent at the meeting and the fact that the resolution wasunanimously carried, the only matter to be decided in theseproceedings is whether he is entitled to relief by way of an interiminjunction only on the ground that the meetings have notbeen convened as provided in the Rules of the Constitution referredabove.
Having thus stated the established facts and the question at issue,I shall pass to a consideration of the legal provisions as to thegranting of an interim injunction in so far as they relate to the disputebefore Court. The substantive law as to interim injunctions iscontained in section 54 of the Judicature Act No. 2 of 1978 asamended. This section is subject to certain variations identical withsection 42 of the Administration of Justice Law No. 44 of 1973 whichin turn was derived from sections 86 and 87 of the Courts OrdinanceNo. 1 of 1889. The applicable procedure in this regard is contained inChapter 48 of the Civil Procedure Code, (Sections 662 to 667) asamended.
Section 54 of the Judicature Act vests jurisdiction in the DistrictCourt to grant an interim injunction in three situations as specified insub-paragraphs (a), (b) and (c) of sub-section (1). Sub-paragraph (a)provides for an injunction to be prayed for in the plaint. That is, at theinception of the action itself, whereas, sub-paragraphs (b) and (c)provide for the grant of an injunction whilst an action is pending. Inthis case the injunction was sought in the plaint and the relevantprovisions of section 54(1) (a) of the Judicature Act are as follows:
“Where in any action instituted in a … District Court … itappears-
(a) from the plaint that the Plaintiff demands and is entitled toa judgment against the defendant restraining the commissionor continuance of an act or nuisance, the commission orcontinuance of which would produce injury to the plaintiff;
the court may, on its appearing by the affidavit of the plaintiff
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or any other person that sufficient grounds exist therefor,grant an injunction restraining any such defendant from-
(1) committing or continuing any such act or nuisance …”
The words “it appears … from the plaint that the plaintiff demandsand is entitled to a judgment” and further from, the words, “on itsappearing by the affidavit of the plaintiff or any other person thatsufficient grounds exist therefor”, demonstrate that the burden is onthe plaintiff to satisfy the Court prima facie that he is entitled tojudgment restraining the defendants from committing the act which isalleged to produce injury to the plaintiff and that there are sufficientgrounds that warrant the granting of an injunction. This requirement isderived from the principles of English Common Law as stated in thecase of Preston v. Luck 0>. where Cotton, L.J. defined the requirementas follows:
“Of course, in order to entitle the plaintiffs to an interlocutoryinjunction, though the court is not called upon to decide finallyon the rights of the parties, it is necessary that the court shouldbe satisfied that there is a serious question to be tried at thehearing, and on the facts before it there is a probability that theplaintiffs are entitled to relief." (Ps. 505 & 506).
In the case of Jinadasa v. Weerasinghe (2) Dalton, J. adopted thedictum of Cotton, L.J. when he stated the requirements for an interiminjunction as follows:
“The court must be satisfied that there is a serious question tobe tried at the hearing and that on the facts before it there is aprobability that the plaintiff is entitled to relief.” (p.34).
The provisions of section 54(1) of the Judicature Act considered inthe light1 of judicial dicta based upon antecedent legislativeprovisions postulate that there are two matters on which the plaintiffhas to satisfy court to entitle him to interim relief by way of aninjunction. They are: (i)
(i) that, there is a serious question to be tried as to the impugnedact of the defendant the commission of which is sought to berestrained;
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(ii) that on the facts as disclosed in the material before court, it isprobable that the plaintiff is entitled to permanent relief inrestraining the defendant from committing the impugned act.
These two requirements have a basic underpinning that the court willissue an interim injunction only to support a legal right of the plaintiffa breach of which is imminent due to the impugned conduct of thedefendant.
In considering these matters, the proper approach is for the Judgeto look at the whole of the case. Lord Denning M. R. stated thisapproach in his dictum in the case of Hubbard v. Vosper™ as follows:
"In considering whether to grant an interlocutory injunction, theright course for a Judge is to look at the whole case. He musthave regard not only to the strength of the claim but also to thestrength of the defence and then decide what is best to bedone. Sometimes, it is best to grant an injunction so as tomaintain the status quo until the trial. At other times it is best notto impose a restraint upon the defendant but leave him free togo ahead.* (page 96).
These matters that the plaintiff has to establish to entitle him to aninterim injunction are put under the rubric of a "prima facie case". Thetest of a “prima facie case” embracing the elements stated above, isthe foremost consideration applied in deciding the question ofgranting an interim injunction. The matters looked at thereafter are thebalance of convenience and the conduct of the respective parties.
Soza, J. in the case of Bandaranayake v. State Him Corporation wafter an extensive survey of the decisions of our Courts and of theCourts in England, India and the treaties on the subject summarisedthe approach of a Court at an inquiry in an application for an interiminjunction as follows:
In Sri Lanka we start off with a prima facie case that is, theapplicant for an interim injunction must show that there is aserious matter in relation to his legal rights, to be tried at thehearing and that he has a good chance of winning. It is not
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necessary that the plaintiff should be certain to win. It issufficient if the probabilities are he will win. Where however theplaintiff has established a strong prima facie case that he hastitle to the legal right claimed by him but only an arguable casethat the defendant has infringed it or is about to infringe it, theinjunction should not be granted (Hubbard v. Vospet). If theprobability is that no right of the plaintiff will be violated or thathe will suffer no wrong such as the law recognises, then theinjunction will not issue – See for instance the case of RichardPerera v. Albert Perera (S> and Gamage v. The Minister ofAgriculture and Lands <*). The case as a whole should be takeninto account and the relative strength of the cases of the plaintiffand the defendant assessed (Hubbard v. Vosper).
If a prima facie case has been made out, we go on andconsider where the balance of convenience lies – YakkaduweSri Pragnarama Thero v. Minister of Education(T|. This is testedout by weighing the injury which the defendant will suffer if theinjunction is granted and he should ultimately turn out to be thevictor, against the injury which the plaintiff will sustain if theinjunction were refused and he should ultimately turn out to bethe victor. The main factor here is the extent of theuncompensatable disadvantage or irreparable damage to eitherparty. As the object of issuing an interim injunction is topreserve the property in dispute in status quo the injunctionshould not be refused if it will result in the plaintiff being cheatedof his lawful rights or practically decide the case in thedefendant’s favour and thus make the plaintiff’s eventualsuccess in the suit if he achieves it, a barren and worthlessvictory – See Bannerjee.
Lastly, as the injunction is an equitable relief granted in thediscretion of the Court, the conduct and dealings of the parties(Ceylon Hotels Corporation v. Jayatunga)m and thecircumstances of the case are relevant. Has the applicant comeinto court with clean hands? – See Duchess of Argyll v. Duke ofArgyll w. Has his conduct been such as to constituteacquiescence in the violation of infringement of his rights as the
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Court of Appeal in England found in Monsoon v. TussaudsLtd.or waiver of his rights to the injunction?
In the background of the law as stated above I wish to revert to thesalient matters in the case. The legal right claimed by the plaintiff inrespect of which an interim injunction is sought relates to the post ofGeneral Secretary of the C.W.C. It is to be noted, at first, that theplaintiff has no absolute rights in respect of this office. His status isthat of an elected office bearer, the rights of the plaintiff in respect ofthat office has to be determined in terms of the Constitution of theC.W.C. It is seen that Rule 15 quoted above specifically empowersthe National Council to take disciplinary measures against officebearers for misconduct, wilful neglect of duty, default or any othercause. Hence the plaintiff's rights in respect of that office arenecessarily subject to the power of the National Council to takedisciplinary measures against him. The resolution adopted by theNational Council at its meeting held on 02.01.1994 (B9) is that theplaintiff be suspended from the office of General Secretary withimmediate effect. The resolution also calls upon him to resign fromthat office within a period of 14 days. No interim injunction has beensought or obtained against the National Council or its members. Theresolution has therefore taken effect and would remain valid unlessthe Court in the final judgment grants the plaintiff the declarationsought in the prayer to the plaint. No amount of restraint placed onthe 1st and 2nd defendants by way of an interim injunction couldremove the effect of this resolution of the National Council. Therefore,it is seen that the plaintiff's rights in respect of the office of GeneralSecretary are impaired to a point where he is suspended fromholding that office and required to resign.
The other resolution of the National Council is that in the event ofthe plaintiff failing to resign the 2nd defendant as President isauthorised to take appropriate steps for the removal of the plaintiff. Itis not alleged that the 2nd defendant has taken any such steps. Inany event the plaintiff has been given a period of 14 days to considerwhether he should tender his resignation. This period had not lapsedat the time the plaintiff rushed into the District Court on the very nextday after the National Council adopted the resolution. In thecircumstances, it has to be noted that the plaintiff has not set out any
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"act" on the part of the defendant “the commission of which wouldproduce injury to the plaintiff". This is a basic requirement to besatisfied in terms of section 54(1) (a) of the Judicature Act for theplaintiff to be entitled to the grant of interim injunction.
Considering the provisions of Rule 15H the only action the 2nddefendant could possibly take is to refer the matter of removal backto the National Council being the body vested with the power to takedisciplinary measures against the plaintiff in his capacity as GeneralSecretary. There would be nothing wrongful in such conduct in viewof the resolution of the National Council. On the other hand, theplaintiff cannot indirectly stultify the resolution of the National Councilin respect of which an interim injunction has neither been sought norobtained by placing a restraint on the 1st and 2nd defendants fromimplementing the decisions of the Executive Council and the NationalCouncil as prayed for in prayer (b) of the plaint.
The complaint of the plaintiff relates to the manner in which themeetings of the Executive Council and of the National Council wereconvened. The claim of the plaintiff that only he as the GeneralSecretary could issue a notice convening a meeting, is not supportedby any Rule of the Constitution. Rule 19 (E) which provides for theoffice of General Secretary does not vest in that office the power toissue notice convening meetings. The General Secretary isdesignated the “Chief Executive Officer but to claim that theoffice carries with it an exclusive power to issue notices conveningmeeting is to overstate power of the office beyond its limits. TheGeneral Secretary could then hold the entire organisation to ransomby not issuing notices. The issuing of a notice is a purelyadministrative act. The only requirement should be that it is issued tothe persons who are entitled to attend the meeting and containsparticulars such as the time and venue of the meeting and itsagenda. There is no complaint as regards any of these matters. In theabsence of any specific provision in the Constitution as to who maysend such a notice, a notice as in this case, issued by the VicePresident (Administration) at the instance of the President, appears tome, to be proper. Any objection as to the notice convening themeeting should appropriately be taken at the meeting itself and themjembers could then have discussed the matter and decided upon
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such objection. This should specially be so considering that Rule 25provides that on any question of interpretation of the Constitution oron any matter not provided for therein the decision of the ExecutiveCouncil shall be final subject to review by the National Council.
The right if any. of the plaintiff was to have objected to the mannerin which the meeting was convened before the proper forum namely,at the meeting of the Executive Council. He has denied to himselfthat right by not attending the meeting although he was notified of themeeting in time. None of the defendants have denied to the plaintiffthe right to take such objection before the meeting of the Council.
The other limb of the plaintiff's complaint is that meeting of theExecutive Council, not being one of the regular meetings could onlyhave been convened upon a requisition as provided in Rule 16 (E).The first part of Rule 16(E) cuts across this argument. It provides thatthe “Executive Council shall meet once in six months or more often ifdeemed necessary; or on a joint written requisition made by not lessthan one third of its members The provision for the Council tomeet if deemed necessary leaves the matter of convening meetingsflexible, as it necessarily should be, in a functional body as theExecutive Council. Hence it would be open for the highest officebearer of the organisation, its President, to consider it necessary toconvene a meeting of the Council. The argument places a restrictionon the meeting of the Council which is not warranted by theConstitution. As observed in relation to the previous limb of theplaintiff’s complaint, this too is an objection which the plaintiff shouldhave raised before the Council at the meeting and sought a ruling.
The complaint of the plaintiff with regard to the meeting of theNational Council is made on a similar basis, as stated above. Interms of Rule 14 (A), the “Congress shall be under the managementand direction of the National Council … ". It is the highest executiveorgan of the C.W.C. The complaint of the Plaintiff is that except in thecase of regular meetings, it could meet only upon a requisition madeby the specified number of members as provided in rule 14(D). In thisinstance too the first part of the Rule cuts across the argument of theplaintiff. It provides that the “National Council shall meet as often asrequired by the Executive Council It is seen from the facts as
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stated above that the Executive Council that met early on the 2ndratified the decision of the President to convene the National Counciland decided that the Council shall meet immediately since noticeshad been sent to all its members. Hence, there is no irregularity as tothe convening of the meeting. In any event, the observation made inthe preceding paragraph that the objection, if any, should properlyhave been taken at the meeting, applies in this instance too.
Learned District Judge has observed that the convening of themeeting by the 1st defendant without a requisition, as provided, isprima facie contrary to the Constitution, without a specificexamination of the provisions of the Constitution. He has also opinedthat if the basic rights of a member are removed by any illegaldecision, the Court has a duty to grant him relief. He has failed toappreciate the distinction between the rights of a member and that ofan office bearer. In this instance what is at issue are the rights of theplaintiff as an office bearer. Learned District Judge has failed to takenote of the plenary power vested in the National Council by Rule 15
to take disciplinary measures against any office bearer. Asregards the failure of the plaintiff to raise the objection at therespective meetings of the Councils, learned Judge has observedthat if the plaintiff went to the “trade union" to notify his objection, thedecision against him would have taken effect and he would havebeen deprived of his right to obtain an injunction from Court. I have tonote that this approach is not correct. The objection of the plaintiffrelates to a matter of procedure relating to the convening of themeetings. The appropriate forum and time to raise these objectionsare the meetings of the respective Councils. He has failed to take intoaccount: the provisions of Rule 25 regarding the interpretation of theConstitution. Learned Judge has also failed to consider that theplaintiff ;by wilfully absenting himself from the meetings denied tohimself the right, if any, to object to the manner in which the meetingswere convened and that prima facie there is no cause of action thatcan be pleaded against the 1st and 2nd defendants. Learned Judgehas also refused to accept the position of the defendants that 165 outof the total number of 197 members of the National Council attendedthe meeting of the National Council and that the resolution againstthe plaintiff was carried unanimously. He has failed to note that the
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only material as regards the meeting, the attendance by membersand resolutions passed, came from the defendants. The plaintiff didnot attend the meetings and did not adduce any evidence as to theproceedings at the meetings. The Learned Judge has refused toaccept the averments of the 1st defendant’s affidavit in this regardwithout any evidence to the contrary from the plaintiff. As notedabove, at the hearing before us learned President’s Counsel for thePlaintiff specifically conceded that the plaintiff is not disputing anysignature on the attendance sheets B8. There is no complaint that themembers of the respective Councils did not receive notices of themeetings. Similarly, there is no complaint that persons other thanthose entitled to, attended these meetings. The plaintiff has notadduced by way of evidence any affidavit or document from anymember of either of the Councils, supportive of his complaint as tothe manner of convening the meetings. This supports the position ofthe defendants that the decision against the plaintiff was takenunanimously. For the reasons stated above I hold that the findings ofthe learned District Judge regarding the matters stated above, beingcrucial to a right decision in the case, have been made without anybasis.
Learned President’s Counsel for the plaintiff submitted severaljudgments of the Chancery Division in England in support of hissubmission that a member of a trade union or such other body isentitled to obtain relief by way of an injunction in respect ofdisciplinary action taken against him by the trade union or such otherbody. The cases of Labouchers v. Ear/ of Whamcliffe"" and Fisher v.Keane (U| deal with situations where the Court found that thedecisions of expulsion have been made without proper inquiry andcontrary to the ordinary principles of justice. In the first case the rulewhich permitted expulsion required that such expulsion should bepreceded by an inquiry. In the second case the decision has beenmade without due notice to the person, of the intention to proceedagainst him. These two cases have no bearing on the facts of thecase before us. Firstly it is to be noted that there has been noexpulsion from membership in the present case. Secondly there is nocomplaint of a lack of a proper inquiry. In any event it is doubtfulwhether the relevant rule dealing with disciplinary measures is basedon the premise that there should be a proper inquiry. Observations
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made by Their Lordships as to proper conduct on the part of a “bodyof English gentlemen" are not appropriate to the facts of this case.The cases of Parr v. Lancashire & Cheshire Miners’ Federation<w> andLuby v. Warwickshire Miners’ Association 1,41 deal with situationswhere the expulsion from membership was held to be ultra vires.There is no question here of the resolution which is impleaded in thiscase being considered as ultra vires. The plaintiff has not made anycomplaint on that ground. Finally, the case of Harington v. Sendall,,5)deals with a situation of an expulsion of a member of a club since hedissented in a resolution to raise the amount of the subscriptionpayable by the members. It was held that the resolution to increasethe subscription could not have been validly passed. It is thus seenthat'the authorities relied upon by the plaintiff have no bearing on thefacts of this case. The complaint of the plaintiff here is as regards themanner in which the respective meetings were convened. From thepreceding analysis it is seen that there is no merit in this complaint.
It has to be observed that the plaintiff was aware that his conductas the General Secretary of the C.W.C. will be discussed at themeetings. In paragraph 21 of the plaintiff's affidavit he has stated thatthe letters P4 and P5 indicate that certain important decisions wouldbe-taken at the meetings of the two Councils that had beenconvened. If so, the proper course on his part would have been toattend the meetings and place his version of the events forconsideration by the members at the respective meetings. Instead,he avoided attending the meetings and got ready to instituteproceedings in the District Court even prior to the meetings beingheld. This seems obvious considering the fact that the action wasfiled on the very next day in the District Court. I
I For the reasons stated above I hold that the plaintiff fails in hisapplication upon a consideration of the criteria or tests as statedabove, that pertain to the grant of an injunction. Rrstly, the plaintiffhas failed to satisfy the test of a "prima facie case". He has failed toset out any act of the defendants the commission of which wouldproduce injury to himself. No interim injunction has been sought orobtained in respect of the resolution of the National Council whichhas now taken effect. It is also seen that on the grounds relied upon
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by the plaintiff relating to the convening of the two meetings, theplaintiff has failed to establish a prima facie case that he is entitled toa judgment for permanent relief against the defendants.
As regards the balance of convenience, it is seen that by theinjunction granted the C.W.C. has been brought to a position where itis without a General Secretary who is competent to function but isunable to take further steps to remove the General Secretary. Thisamounts to a serious fetter on the conduct of a large trade union. It isto be noted that the 1st and 2nd defendants, who have beenrestrained have no power or authority to expel the plaintiff from thepost of General Secretary. It is the National Council which has theplenary power to take disciplinary measures against the plaintiff asGeneral Secretary. The Plaintiff has every right to appear before theNational Council and place his defence if he is so minded. In thecircumstances, the test of the balance of convenience favours thedefendants and not the plaintiff.
Lastly, the conduct of the plaintiff in not attending the meetingsalthough he had due notice of them, and instead seeking immediaterelief in the District Court on the basis of an alleged procedural errorin convening the meetings militates against the grant of an interiminjunction. For these reasons I allow this appeal and set aside theorder of the learned District Judge dated 20.01.1994. The applicationof the plaintiff for an interim injunction as prayed for in paragraph B(1)of the prayer to the plaint is refused. The defendants will be entitledto the costs of the inquiry before the District Court and to a sum ofRs. 5000/- as costs of this appeal and application in revision.
DR. R. B. RANARAJA, J. – I agree.Appeal allowed.
Application for interim injunction refused.