Delhi High Court

Food Corporation Of India ... vs The Chairman Cum Managing ... on 22 March, 2018

       IN THE HIGH COURT OF DELHI AT NEW DELHI


                                    Judgment Reserved on: 06.03.2018
                                  Judgment Pronounced on:22.03.2018


LPA 77/2018 & C.M. No. 7728/2018

FOOD CORPORATION OF INDIA HANDLING WORKER UNION
                                           ..... Appellant



                     Through:      Mr. R.M. Sinha, Advocate along with
                                   Mr. P.M. Sinha, Advocate.



                                versus



THE  CHAIRMAN     CUM           MANAGING        DIRECTOR       FOOD
CORPORATION OF INDIA                                 ..... Respondent



                     Through:      Shri. Om Prakash, Advocate along
                                   with Mr. Pradeep Kumar Tripathi and
                                   Mr. Anil Kapoor, Advocates.




CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MS. JUSTICE DEEPA SHARMA




LPA 77/2018                                                  Page 1 of 12
                                JUDGMENT

SIDDHARTH MRIDUL, J.

1. The present Letter Patents Appeal under clause 10 of the Letter

Patents Act assails an interim order dated 06.02.2018, rendered by a learned

Single Judge of this Court in C.M. No.3868/2018 in Writ Petition (C)

No.9260/2016 titled as "Food Corporation of India Handling Worker Union

v. The Chairman-cum-Managing Director Food Corporation of India"

(hereinafter referred to as the 'subject writ petition').

2. By way of the impugned order, the learned Single Judge considered it

appropriate to allow the prayer made on behalf of the appellant in the said

application, limited to the extent that the Food Corporation of India

(hereinafter referred to as 'FCI') was restrained from making recoveries of

incentives from their workmen in the Delhi region pursuant to their circular

Nos.8/2016 and 01/2017 dated 17.08.2016 and 17.01.2017, respectively

(hereinafter collectively referred to as the 'subject circulars').

3. The appellant's grievance before us is limited to the extent that the

learned Single Judge whilst staying the recovery of incentives by the FCI,

did not extend the operation of the said injunction to its members throughout

the entire country.

4. In this behalf, it would firstly be relevant to note that in relation to the

subject dispute before us, a Division Bench of the Hon'ble High Court of

Judicature at Bombay, Nagpur Bench, by way of its judgment dated

20.11.2015 in P.I.L. No.84/2014 titled as 'Court on its own motion v. Union

of India and ors.', issued the following direction:

"(iv) We also clarify that the respondent/Corporation would be at liberty to implement its policy of change in the Scheme of incentives."

5. The said judgment dated 20.11.2015 was challenged before the

Hon'ble Supreme Court in Special Leave Petition (C) No.19218/2016 titled

as "Food Corporation of India Workers Union Regd. No.8219 through its

organizing Secretary v. Union of India through its Secretary", and the same

came to be dismissed vide an order dated 31.07.2017, whilst observing as

follows:

"1. We do not see any merit in these special leave petitions, which are hereby dismissed. We make it clear that this order shall not prevent the petitioners - Food Corporation of India Workers Union/Food Corporation of India Shramik Union/FCI Handling Workers Union, to challenge any order, passed in furtherance of the directions issued in the impugned order (dated 20.11.2015), in

appropriate proceedings before an appropriate Court.

2. In case, such a challenge is raised by the petitioner(s), in continuation of the liberty granted to the petitioner(s), the claim raised by the petitioner(s) shall be considered in accordance with law, uninfluenced by any observations made by the High Court in the impugned order (dated 20.11.2015)."

6. It would further be relevant to note that as recorded in the order of this

Court dated 13.12.2017 passed in C.M. No.44791/2017 in W.P. (C)

No.8495/2016 titled as 'Food Corporation of India Workers Union v. Food

Corporation of India & Anr.', it was submitted by counsel appearing on

behalf of the workers union before the learned Single Judge that the

operation of the said earlier circular dated 17.08.2016 has been stayed by the

Hon'ble High Courts of Gujarat, Rajasthan, Calcutta and Gauhati. Further, a

submission was made on behalf of the FCI, to the effect, that recoveries are

being made not in the terms of the said earlier circular dated 17.08.2016 but

in terms of the modified circular dated 17.01.2017. It was further submitted

on behalf of the FCI that the modified circular dated 17.01.2017 was issued

pursuant to the recommendations of a Committee, the report of which is also

pending consideration.

7. In the pleadings before us, further reference has been made to an order

dated 11.01.2018 of the High Court of Allahabad, and it has been stated that

the modified circular dated 17.01.2017 has been stayed by the said High

Court.

8. In order to effectively adjudicate the subject dispute before us,

reference may be made to the principles of comity of courts. The Hon'ble

Supreme Court in Narendra Kumar Maheshwari v. Union of India (UOI)

and Ors. reported as AIR 1989 SC 2138, observed in relation to the aspect of

comity of courts and how the courts in different parts of the country should

grant injunction or entertain applications affecting an all-India issue or

having ramifications all over the country, as follows:

"106. Before we conclude, we must note that good deal of argument was adduced that these applications in different High Courts in civil suits were not genuine and properly motivated, but were mala fide. Even though these might not have been to feed fat an innocent object, it was apparent that it was to feed fat a grudge in respect of a competitive project by a competitor. Anyway, in the view we have taken, it is not necessary to decide the bona fides or mala fides of the applicants. Shri Nariman, when he moved the application initially, had suggested that we should lay down certain norms as to how the courts in different parts of the country should grant injunction or entertain applications affecting an all-India issue or having ramifications all over the country. Except that before the courts grant any injunction, they should have regard to the principles of comity of courts in a federal structure and have regard to self-restraint and circumspection, we do not at this stage lay down any more definite norms. We may also perhaps add that it

may be impossible to lay down hard and fast rules of general application because of the diverse situations which give rise to problems of this nature. Each case has its own special facts and complications and it will be a disadvantage, rather than an advantage, to attempt and apply any stereotyped formula to all cases. Perhaps in this sphere, the High Courts themselves might be able to introduce a certain amount of discipline having regard to the principles of comity of courts administering the same general laws applicable all over the country in respect of granting interim orders which will have repercussion or effect beyond the jurisdiction of the particular courts. Such an exercise will be useful contribution in evolving good conventions in the federal judicial system."

(Emphasis supplied)

9. It is evident from a simple reading of the above-extracted decision that

no definite norms were laid down by the Hon'ble Supreme Court. However,

it was observed that the courts before granting injunction or entertaining

applications affecting an all-India issue or having ramifications throughout

the country, should have regard to the principles of comity of courts in a

federal structure, as well as, self-restraint and circumspection. No further

definite forms were laid down, since it was observed that each case has its

own facts and circumstances and diverse situations can give rise to problems

of this nature. The Hon'ble Supreme Court left it to the High Courts to

introduce a certain amount of discipline, having regard to the principles of

comity of courts administering the same general laws applicable all over the

country, whilst granting interim orders which will have repercussion or

effect beyond the jurisdiction of the particular courts.

10. A learned Single Judge of this Court in its order dated 31.05.2007,

passed in CM No.7602/2007 in W.P. (C) No.4037/2007 titled as "CFA

Institute and anr. v. All India Institute of Technical Education", referred to

certain decisions of the United States Supreme Court relating to principles of

comity of courts. The relevant paragraphs of the said decision in this behalf

are reproduced hereinbelow:

"... In Hartford Fire Ins. Co. v. Cal. 509 U.S. 764, it was observed that the comity of courts refers to a situation where judges decline to exercise jurisdiction over matters more appropriately adjudged elsewhere.

In Parsi v. Davidson 405 U.S. 34, it was observed that under accepted principles of comity, a court should stay its hand only if the relief the petitioner seeks would also be available to him with reasonable promptness and certainty through the alternative machinery..."

11. At the outset, it must be observed that arguments in the subject writ

petition have been concluded and the judgment has been reserved by the

learned Single Judge on 23.05.2017. The relief granted by the learned Single

Judge is effective only till the date of pronouncement of the judgment in the

subject writ petition.

12. The order sought herein before us by the appellant against the subject

circulars is going to have ramifications across India.

13. Before us, the Appellant has not filed a copy of the subject writ

petition. Even copies of the orders passed by the Hon'ble High Courts of

Gujarat, Rajasthan, Calcutta and Gauhati, in relation to the said earlier

circular dated 17.08.2016, have not been placed on record; let alone a copy

of the pleadings resulting in passing of those orders. Furthermore, copies of

the order of the High Court of Allahabad in relation to the modified circular

dated 17.01.2017, as well as, that of the pleadings resulting in passing

thereof; have not been placed on record. Copy of the said judgment dated

20.11.2015 of the High Court of Judicature at Bombay, Nagpur Bench, as

well as, that of the said order dated 31.07.2017 of the Hon'ble Supreme

Court, were handed over in Court and not filed on record.

14. In view of the direction sought before us, it is presumed that the

Hon'ble High Courts of Gujarat, Rajasthan, Calcutta and Gauhati have

stayed the operation of the said earlier circular dated 17.08.2016 within their

respective territorial jurisdiction only, and the Hon'ble High Court of

Allahabad of the said modified circular dated 17.01.2017 within its

jurisdiction; and that the operation of their orders does not extend to the

entire country.

15. Further, as per the case of the appellant itself, the Hon'ble High Courts

of Gujarat, Rajasthan, Calcutta and Gauhati have not stayed the operation of

the modified circular dated 17.01.2017, and the Hon'ble High Court of

Allahabad of the said earlier circular dated 17.08.2016.

16. In view of the facts and circumstances of the present case and in light

of the principles of comity of courts, we are of the considered view that, it

would not be prudent for us to extend the application of the impugned order

across India and restrain the FCI from making recoveries pursuant to the said

earlier circular dated 17.08.2016, as well as, modified circular dated

17.01.2017, since:

a) The nature and scope of the proceedings before the Hon'ble

High Courts of Gujarat, Rajasthan, Calcutta and Gauhati or

Hon'ble High Court of Allahabad, leading to passing of said

orders against the subject circulars, purportedly similar to the

order impugned herein; have not been brought to our notice.

Even the complete scope and reasoning of the orders passed by

the Hon'ble High Courts of Gujarat, Rajasthan, Calcutta,

Gauhati and Allahabad against the subject circulars, is unknown

to us.

b) Since a copy of the subject writ petition has not been filed on

record along with the present appeal, the scope thereof is also

not known, preventing us from fully appreciating the prayer

sought herein.

c) The Hon'ble High Courts of Gujarat, Rajasthan, Calcutta and

Gauhati, have restrained the FCI from making recoveries only

in pursuance to said earlier circular dated 17.08.2016, and not

the modified circular dated 17.01.2017. Conversely, the

Hon'ble High Court of Allahabad has restrained the FCI from

making recoveries only in pursuance to modified circular dated

17.01.2017, and not the said earlier circular dated 17.08.2016. If

this High Court were to extend the stay against both the subject

circulars across India, when the Hon'ble High Courts of

Gujarat, Rajasthan, Calcutta and Gauhati have not stayed the

operation of the subsequent modified circular dated 17.01.2017,

and the Hon'ble High Court of Allahabad has not stayed the

operation of the said earlier circular dated 17.08.2016; it would

be subsuming jurisdiction of the said High Courts, which may

lead to conflicting orders on the same subject matter.

d) Even otherwise, in our view, discretion has not been exercised

by the learned Single Judge arbitrarily, or capriciously or

perversely or in ignorance with the settled principles of law

regulating grant or refusal of interlocutory injunctions.

Therefore, we do not think that we must interfere with the

exercise of discretion of the court of first instance and substitute

it with our own discretion. [Ref: Wander Ltd. and Anr. vs.

Antox India P. Ltd., reported as 1990 (Supp) SCC 727]

17. It would also be relevant to note that comity albeit a tool for co-

operation can also be a tool for exclusion. It is trite that forum non

conveniens (Latin for "inconvenient forum" or "inappropriate forum") is a

discretionary power of common law courts to refuse to hear a case that has

been brought before it. The Courts may refuse to take jurisdiction over

matters where there is a more appropriate forum available to the parties.

[Ref: Max India Limited v. General Binding Corporation reported as 2009

(3) ArbLR 162 (Delhi)]

18. Therefore, for the foregoing reasons and since the relief prayed for by

the appellant would, in our view, be more appropriately adjudged elsewhere

and, that too, with certainty, as well as, reasonable promptness, we shall

exercise self-restraint in the instant case.