Asianet Satellite Communications Ltd. v. Asianet Employees Federation (AEF-AITUC)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 5TH DAY OF OCTOBER 2017/13TH ASWINA, 1939** **OP(C).No. 2915 of 2017 (O) ---------------------------** **OS 1306/2017 ON THE FILE OF 1ST ADDL.M.C.,TRIVANDRUM** **PETITIONER(S)/DEFENDANT:** **-----------------------** **ASIANET SATELLITE COMMUNICATIONS LTD. REGISTERED AND CORPORATE OFFICE AT 2A, 2ND FLOOR, LEELA INFOPARK,TECHNOPARK COMPLEX, KAZHAKKOOTTAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS EXECUTIVE LEGAL MR. ALEX JOSE PAIKADA.** **BY ADV. SRI.SAJI VARGHESE** **RESPONDENT(S)/PLAINTIFF:** **------------------------** **ASIANET EMPLOYEES FEDERATION (AEF-AITUC)** **REPRESENTED BY ITS GENERAL SECRETARY SANTHOSHKUMAR P S, HAVING REGD. OFFICE AT PS SMARAKAM, VRINDAVAN GARDEN, PATTOM PALACE P.O, PATTOM, THIRUVANANTHAPURAM - 695 005.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05-102017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C).No. 2915 of 2017 (O) ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **----------------------EXHIBIT P1 COPY OF THE CERTIFIED STANDING ORDERS OF THE PETITIONER COMPANY.** **EXHIBIT P2 COPY OF THE PLAINT FILED BY THE RESPONDENT BEFORE THE MUNSIFF'S COURT TRIVANDRUM IN OS 1306 OF 2017.** **EXHIBIT P3 COPY OF THE INJUNCTION PETITION IA NO 5355 OF 2017 WITH THE SUPPORTING AFFIDAVIT.** **EXHIBIT P4 COPY OF THE INTERIM ORDER DATED 22.9.17 PASSED BY THE MUNSIFF COURT TRIVANDRUM IN IA NO. 5355 OF 2017 IN OS NO 1306 OF 2017.** **EXHIBIT P5 COPY OF THE CONCILIATION SETTLEMENT DATED 25.9.2017 ENTERED INTO BETWEEN THE EMPLOYEES OF THE COMPANY REPRESENTED BY THE ABOVE 3 UNIONS AND THE PETITIONER COMPANY.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** ## **NIL** **//TRUE COPY//** **PA TO JUDGE.** jg-10/10 ## **ANIL K.NARENDRAN, J.** **.................................................................... OP(C) No.2915 of 2017** **.................................................................... Dated this the 5[th] day of October, 2017.** ## **J U D G M E N T** The petitioner, who is the defendant in O.S.No.1306 of 2017 on the file of First Additional Munsiff's Court, Thiruvananthapuram, is before this Court in this original petition filed under Article 227 of the Constitution of India seeking the following reliefs; (i) declare that the court below has no jurisdiction to entertain Ext.P2 plaint; (ii) dismiss O.S.No.1306 of 2017 filed by the respondent and pending before the First Additional Munsiff's Court, Thiruvananthapuram as not maintainable; (iii) quash and set aside Ext.P4 interim order dated 22.9.2017 passed in I.A.No.5355 of 2017 in O.S.No.1306 of 2017 by the First Additional Munsiff's Court, Thiruvananthapuram. 2. Heard the learned counsel for the petitioner/ defendant. 3. The petitioner is the defendant in O.S.No.1306 of 2017 on the file of the First Additional Munsiff's Court, Thiruvananthapuram. The said suit is one filed by the respondent/plaintiff seeking a decree of permanent prohibitory OP(C) No.2915/2017 -2- injunction restraining the petitioner/defendant from compelling to change or transferring or absorbing the employees, without complying with the procedures prescribed under the Industrial Disputes Act, 1947 to new company and work for the new company as its employees and restraining the petitioner/ defendant from transferring or terminating the employees. In the said suit, the court below passed Ext.P4 order of ad interim injunction dated 22.9.2017 under Order XXXIX, Rule 1 and 2 of the Code of Civil Procedure, 1908 restraining the petitioner/defendant from compelling to change or transferring or absorbing the employees, without complying the procedures prescribed under the Industrial Disputes Act, to new company and work for the new company as its employees and restraining the petitioner/defendant from transferring or terminating the employees and directing the petitioner/defendant to disburse the salary due to the employees including arrears without default, till 11.10.2017. The court below posted I.A.No.5355 of 2017 to 11.10.2017 for objection and hearing. 4. In **Jai Singh v. Municipal Corporation of Delhi** OP(C) No.2915/2017 -3- **[(2010) 9 SCC 385]** , while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognised constraints. It can not be exercised like a 'bull in a china shop', to correct all errors of the judgment of a OP(C) No.2915/2017 -4- court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 5. In **Venkatasubbiah Naidu v. S.Chellappan and Others [(2000) 7 SCC 695]** , the Apex Court held that the power to pass interim ex parte orders of injunction does not emanate from Order XXXIX, Rule 1 of the Code, and any order passed in exercise of the powers in Order XXXIX, Rule 1 would be appealable as indicated in Order XLIII, Rule 1 of the Code. The choice is for the party affected by the order either to move the appellate court or to approach the same court which passed the ex parte order for any relief. In the said decision, the Apex Court held further that though no hurdle can be put against the exercise of the constitutional powers of this Court under Article 227 of the Constitution of India, it is a well recognised principle which gained judicial recognition that this Court should direct the party to avail himself for such remedies, one or the other, before he resorts to a constitutional remedy. OP(C) No.2915/2017 -5- 6. In the instant case, Ext.P4 order of ad interim injunction is an applealable order under Order XLIII, Rule 1(r) of the Code. The choice is for the petitioner/defendant either to move the appellate court or to approach the court below which passed Ext.P4 order for any relief. Therefore, the challenge made against Ext.P4 order, in this original petition filed under Article 227 of the Constitution, can only be repelled as not maintainable. 7. The other relief sought for in this original petition is a declaration that the court below has no jurisdiction to entertain Ext.P2 plaint and to dismiss O.S.No.1306 of 2017 as not maintainable. 8. In **Jacky v. Tiny @ Antony [(2014) 6 SCC 508]** the Apex Court held that the High Court under Article 227 of the Constitution of India has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them within the bounds of their authority. If a suit is not maintainable it was well within the jurisdiction of the High Court to decide the same in appropriate proceedings but in no case power under OP(C) No.2915/2017 -6- Article 226 and 227 of the Constitution of India can be exercised to question a plaint. 9. Therefore, the declaratory relief sought for in this original petition as to maintainability of O.S.No.1306 of 2017 and the consequential relief sought for to dismiss the said suit as not maintainable can only be repelled as not maintainable under Article 227 of the Constitution of India. It is for the petitioner/defendant to raise all such contentions before the court below. In the result, this original petition stands dismissed as not maintainable, without prejudice to the aforesaid rights of the petitioner/defendant. No order as to costs. ## **(ANIL K.NARENDRAN, JUDGE)** jg