Pramod Kumar Nayak & Another vs Niranjan Das
2011 Latest Caselaw 963 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%           Judgment Pronounced on: February 18, 2011

+           CS(OS) No. 1288/2008

Pramod Kumar Nayak & Anr.                      .....Plaintiffs

                           - versus -

Niranjan Das                                   .....Defendant

Advocates who appeared in this case:
For the Plaintiff: Mr. Rajiv Talwar and Mr. Karan Chawla.
For the Defendant: None.

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may                    No.
   be allowed to see the judgment?

2. To be referred to the Reporter or not?                    No.

3. Whether the judgment should be reported                   No.
   in Digest?

V.K. JAIN, J (ORAL)

1.          This is a suit for permanent injunction.     Plaintiff

No.2 is a trade union registered under the Trade Union Act,

1926 whereas plaintiff No.1 is its Organizing Secretary. It is

alleged that the defendant, who was elected president of

plaintiff No.2 union in the elections held on 10 th-11th April,

1998 took retirement from FCI and then resigned from the

post of President on health grounds sometime in the year


CS(OS)No.1288/2008                                     Page 1 of 15
 2001.

2.          CS(OS) No.681/1999 was filed by plaintiff No.2

against one H.P. Singh, which was decreed vide judgment

dated 30th March, 2006 directing holding of election under

the supervision of a Court Commissioner. An appeal filed

against the judgment dated 30th March, 2006 being RFA(OS)

No.33/2006 was dismissed by a Division Bench of this

Court on 15th December, 2006. The elections were directed

to be held under the supervision of Hon'ble Ms. Justice

Usha Mehra, a former Judge of this Court.        An affidavit

dated 28th April, 2008 was filed by the defendant before

Hon'ble Ms. Justice Usha Mehra admitting therein that he

had retired as an employee of the FCI and had also resigned

from the post of the President. He further claimed that his

signatures had been forged on the membership cards since

he ceased to be the President of the Union in the year 2001.

3.          However, the defendant wrote letters dated 17th

June, 2008 to Mr. Rajiv Talwar & Co. (Advocates) and Mr.

Bharat Sangal (Advocates) claiming to be the President of

plaintiff No.2 union. The letter is alleged to have written on

the stolen letterhead of the Union. The defendant also wrote

a letter dated 17th June, 2008 to FCI claiming to be the

CS(OS)No.1288/2008                                  Page 2 of 15
 President of plaintiff No.2 union. That letter was forwarded

by FCI to the plaintiff on 27th June, 2008.

4.          The case of the plaintiffs is that having retired from

FCI and having resigned from the post of President, the

defendant cannot claim to be even a member of plaintiff

No.2 Union and certainly cannot claim to be its President.

The    plaintiffs    have   accordingly    sought   an   injunction

restraining the defendant from acting and/or representing

himself as President of plaintiff No.2 and from holding

and/or convening any meeting of plaintiff No.2 Union and

collecting funds in its name.             They have also sought

injunction against interference in the peaceful possession

and control of the assets of the plaintiff No.2 by the

defendant.

5.          Vide an interim order dated 15th July, 2008, this

Court restrained the defendant from collecting subscription

money and issuing receipts and acting as the President of

the plaintiff No.2 Union.

6.          The defendant was proceeded ex parte vide order

dated 25th September, 2008.

7.          The plaintiffs have filed the affidavit of plaintiff

No.1 Mr. Pramod Kumar Nayak by way of ex parte evidence.

CS(OS)No.1288/2008                                        Page 3 of 15
 In his affidavit Mr. Nayak has stated that he is a worker of

FCI and was elected Organizing Secretary of plaintiff No.2 in

the election held on 11th April, 1998. He has further stated

that the defendant was an employee of FCI and was elected

President of the plaintiff Union in the election of the office

bearer held on 10/11.04.1998.       He has stated that the

defendant, on the supposedly medical ground and ill health,

resigned from the FCI sometime in the year 2001. He has

also stated that only the workers employed by FCI or

employed as contract worker, as stated in the constitution

of the Union, are entitled to be ordinary members of the

plaintiff Union and only ordinary member has a right to be

elected as an office bearer of the Union. He has also stated

that the defendant has retired from FCI and resigned from

the plaintiff Union and has not been an ordinary member of

the plaintiff Union inasmuch as the defendant has not paid

the subscription to the plaintiff Union since the year 2011.

He has further stated that after passing of the orders in

CS(OS) No.422/2005 filed by one set of workers, the

defendant insisted that since he was elected in      the last

election held for the post of President in the year 1998, he

should be deemed to be continuing as the President of the

CS(OS)No.1288/2008                                  Page 4 of 15
 Union.       The plaintiffs permitted him to attend various

meetings of the office bearers under fear of being in

disobedience of the orders passed by this Court.          He has

claimed that the acts of the plaintiff Union in allowing the

defendant to attend meetings, seeking his advice on Labour

Welfare Scheme and paying his visiting charges etc. do not

entitle the defendant to claim the post of President of the

plaintiff-Union. He has further stated that the defendant is

collecting funds from the workers in the name of the Union.

8.          A perusal of Ex.PW-1/3 which is the copy of the

decision of this Court in CS(OS) 681/1999 and CS(OS)

2349/2000 shows that the Court directed Hon'ble Mr.

Justice J.K. Mehra, former Judge of this Court, who had

earlier been appointed as Court Commissioner vide order

dated 20th October 2000, to hold elections of the plaintiff

union in accordance with constitution of the union. It was

further directed that all the members who had not paid

their subscriptions shall be allowed to pay their arrears of

subscriptions within two months of the date of notice and

those who clear the arrears of subscriptions shall be entitled

to contest the election as well as cast their votes.

9.          RFA(OS)   33/2006   filed   against   the   aforesaid

CS(OS)No.1288/2008                                      Page 5 of 15
 decision of this Court was dismissed by a Division Bench of

this Court vide its decision dated December 15, 2006. Since

Hon'ble Mr. Justice J.K. Mehra had in the meanwhile

expressed his unwillingness to continue, Hon'ble Mr.

Justice     V.S.     Aggarwal      was   appointed   as   the   Court

Commissioner.

            Hon'ble     Ms.    Justice    Usha    Mehra   was     then

appointed as the Court Commissioner in place of Hon'ble

Mr. Justice V.S. Aggarwal to hold elections of the plaintiff

company.

10.         A perusal of the affidavit dated 28th April 2008

(Ex.PW-1/6) filed by the defendant before the Court

Commissioner would show that in para 2 of the affidavit, he

expressly stated that he was elected as the President of the

respondent union in the elections held on 11th April 1998

and thereafter due to his health reasons he not only

resigned from the post of President but also retired as an

employee of FCI. He further stated that the respondent

union had been fraudulently and without his authority

issuing membership cards under his signature and the

office bearers were guilty of forging his signature on the

membership cards as he had ceased to be a

member/President of the union since 2001. He thus took

the stand that he, on account of his having retired from FCI

and having resigned from the post of President, was no

more the President of plaintiff No.2 union. However, vide

letter dated 17th June 2008 (Ex.PW-1/9) written to Bharat

Shangal & Associates, the defendant, representing himself

as the President of the plaintiff union, removed the above

firm from the penal of advocates to represent the union

before any legal fora. A copy of this letter was endorsed to

the Court Commissioner as well to the Registrar of this

Court.

11. The affidavit of the defendant coupled with the

admission made by the defendant in his affidavit dated 28 th

April 2008 submitted to the Court Commissioner clearly

shows that not only had he retired from the services of FCI,

he had also resigned as the President of the plaintiff union.

This is also not the case of the defendant that he had

withdrawn his resignation at any point of time. The

resignation therefore became effective from the date it was

submitted. Having resigned from the post of the President

of the union, the defendant has no right to hold himself out

as its President unless he is reelected as President of the

union. However, there is no evidence of the defendant

having been reelected as President of the plaintiff union. In

fact, a perusal of Ex.PW-1/13, which is the declaration of

final result of the elections conducted by the Court

Commissioner Hon'ble Ms. Justice Usha Mehra would show

that one Sh. Maheswar Yadav was elected as President of

the plaintiff union on 12 th August 2009. A perusal of

Clause 1 of the Constitution of the plaintiff union shows

that this union is a combination of workers employed by FCI

directly or through its agents or contractors. Clause 9 of

the Constitution provides that no member of the union shall

enjoy the rights of a member and be entitled to any benefits

thereof under the rules of the union unless he has been a

member for 12 months and has paid all his dues to the

union. It is logical to say that since the plaintiff union is

supposed to be consisting only of serving employee of FCI,

the moment a person retires from the services of FCI or

resigns from the post held by him in FCI, he also ceased to

be an ordinary member of the union, though he can be

admitted as an honorary member in the general meeting of

the union in terms of Clause 10 of the Constitution. Since

the defendant took the retirement from FCI, he also ceases

to be a member of the plaintiff union, on his demitting the

office held by him with FCI.

12. Clause 7 of the Constitution of the union provides

that no member shall remain a member of the union if he is

in arrears of subscriptions for three months and does not

clear the dues by the end of three months. He however is

eligible for readmission in case he clears all the dues within

30 days of the date on which he ceases to be a member.

The affidavit of plaintiff No.1 shows that the defendant was

in arrears of subscription since the year 2001.

Consequently he ceases to be an ordinary member of the

union under Clause 7 of the Constitution of the union. As a

consequence, he ceased to be President of the union, the

moment he ceased to be its member.

13. Thus, the defendant has ceased to be the President

of the plaintiff union for three months. Firstly because he

resigned from the post of the President as admitted in the

affidavit dated 29th April 2008 submitted by him to the

Court Commissioner, secondly, because he took retirement

from FCI and thirdly because he was in arrears of

subscription for more than three months. In any case,

since a new person has been elected and declared as a

President of the union, the defendant has no right to claim

that he continues to be the President of the plaintiff union.

14. During the course of arguments, I asked the

learned counsel for the plaintiffs to satisfy me that plaintiff

No.1 has the authority to file this suit on behalf of plaintiff

No.2 union. Relying on the provisions contained under

Order XXIX Rule 1 of the Code of Civil Procedure, it was

contended by the learned counsel for the plaintiffs that

since plaintiff No.1 was elected as the Organizing Secretary

of plaintiff No.2 union and even otherwise being the

Organized Secretary, he is a Principal Officer of the union,

he is competent to sign and verify pleadings as well as

institute the suit on behalf of plaintiff No.2 union. The

learned counsel for the plaintiffs has relied upon the

decision of the Supreme Court in Daman Singh & Ors. vs.

State of Punjab & Ors. (1985) 2 SCC 670 where, it was held

that a cooperative society was requested under Punjab

Cooperative Societies Act a 'cooperation' within the meaning

of Article 31-A(1)(c) of the Constitution. The provisions of

Section 30 of Punjab Cooperative Societies Act, 1961 are

similar to the provisions contained in Section 13 of Trade

Unions Act, 1926. Section 30 of Punjab Cooperative

Societies Act provides that the registration of a cooperative

society shall render it a body corporate by the name under

which it is registered having perpetual succession and a

common seal, and with power to hold property, enter into

contract, institute and defend suits and other legal

proceedings and to do all things necessary for the purposes

for which it is constituted. Section 13 of Trade Union Act

provides that every registered Trade Union shall be a body

corporate by the name under which it is registered, and

shall have perpetual succession and a common seal with

power to acquire and hold both movable and immovable

property and to contract, and shall by the said name sue

and be sued. It was observed by Rajasthan High Court in

Nagar Vikas Pradhikaran Kamgar Sangh vs. Jaipur Vikas

Padhikaran (1991) II LLJ 538 Raj that a for the purpose of

Order XXIX, a corporation may be stated to be a body

authorized by law to act as one individual and constituted

either by prescription, by Letters Patent or by Act of

Legislature. The term 'corporation' has not been defined in

the Code of Civil Procedure and, therefore, I see no reason

for not applying the interpretation given by Supreme Court

to a cooperative society registered under Punjab Cooperative

Societies Act, 1961, to a trade union to which the provisions

of Section 13 of Trade Unions Act, 1926 apply.

Consequently, plaintiff No.2 would be a corporation within

the meaning of Order XXIX Rule 1 of the Code of Civil

Procedure.

15. Coming to the contention of the learned counsel for

the plaintiffs that being Organizing Secretary plaintiff No.1

is its Secretary and therefore he is competent to sign and

verify pleadings on behalf of the society. One of the possible

interpretation of the expression Secretary, in the context of

plaintiff No.2 union, when examined in the light of its

Constitution, can be that since the society also has a

General Secretary, it is only the General Secretary, who can

be said to be its Secretary within the meaning of Order XXIX

Rule 1 of the Code of Civil Procedure but, another equally

plausible interpretation can be that there can be more than

one Secretary of corporation which in this case is a union

and, therefore, not only the General Secretary but, also the

Organizing Secretary would be a Secretary within the

meaning of Order XXIX Rule 1 of the Code of Civil

Procedure.

16. The expression 'Principal Officer' has not been

defined in the Code of Civil Procedure. The contention of

the learned counsel for the plaintiffs is that all the office

bearers of a union would be its Principal Officers within the

meaning of Order XXIX Rule 1 of the Code of Civil Procedure

and, therefore, plaintiff No.1 would also be one of the

Principal Officers of plaintiff No.2 union. He has further

contended that the Secretary or a Principal Secretary of

cooperation is competent to sign and verify pleadings even

without an authorization from its Board of

Directors/Executive Committee, as the case may be. In this

regard, he has placed reliance on the decision of the

Supreme Court in United Bank of India vs. Naresh Kumar

& Ors. (1996) 6 SCC 660. In the above referred case

Supreme Court, reading the provisions of Order VI Rule 14

of the Code of Civil Procedure together with Order XXIX

Rule 1 thereof was of the view that even in the absence of

any formal letter of authority or power of attorney having

been executed a person referred to in Rule 1 of Order 29

can, by virtue of the office which he holds, sign and verify

the pleadings on behalf of the corporation. It was further

held that in addition thereto and dehors Order XXIX Rule 1

of the Code of Civil Procedure, as a company is a juristic

entity, it can duly authorize any person to sign the plaint or

the written statement on its behalf and this would be

regarded as sufficient compliance with the provisions of

Order VI Rule 14 of the Code of Civil Procedure. I, however,

need not delve further into this issue for the simple reason

that even if it is presumed that plaintiff No1. has no locus

standi to file the suit on behalf of plaintiff No.2 union, he

being an office bearer of the union can institute a suit in his

individual capacity to restrain an outsider from holding

himself out as the President of the union of which he is the

Organizing Secretary. I, therefore, hold that the suit filed by

plaintiff No.1 is maintainable.

ORDER

For the reasons given in the preceding paragraphs,

the defendant is hereby restrained from representing,

claiming or holding himself out as the President of plaintiff

No.2 union. He is also restrained from convening any

meeting of plaintiff No.2 and collecting any subscription,

etc. claiming to be its President. In the facts and

circumstances of the case, there shall be no order as to

cost.

Decree sheet be prepared accordingly.

(V.K. JAIN) JUDGE FEBRUARY 18, 2011 vkm/'sn'/Ag