Union Bank of India Employees Federation (Kerala) and Others v. Union Bank of India, Regional Office, Ernakulam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE 1ST DAY OF JUNE 2018 / 11TH JYAISHTA, 1940 SA.No. 685 of 2002(F) AGAINST THE DECREE AND JUDGMENT DATED 10.04.2002 IN AS NO.199/2000 of II ADDITIONAL DISTRICT AND SESSIONS COURT,ERNAKULAM AGAINST THE DECREE AND JUDGMENT DATED 30.10.1999 IN OS NO.911/1998 of I ADDITIONAL MUNSIFF'S COURT,ERNAKULAM ## APPELLANTS/APPELLANTS IN A.S.NO.199 OF 2000/DEFENDANTS IN O.S. NO.911 OF 1998: 1 UNION BANK OF INDIA EMPLOYEES FEDERATION (KERALA), A TRADE UNION REGISTERED, UNDER TRADE UNIONS ACT, 1926 AND IS REPRESENTED IN THIS PROCEEDINGS BY ITS GENERAL SECRETARY M.I. THOMAS, UNION BANK OF INDIA, KOTTAYAM BRANCH, KOTTAYAM. 2 M.S. SREEDHARAN, CHAIRMAN, UNION BANK OF INDIA EMPLOYEES FEDERATION (KERALA), UNION BANK OF INDIA, JEW TOWN, COCHIN - 2. 3 NANDAKUMAR, ASSISTANT SECRETARY, UNION BANK OF INDIA EMPLOYEES FEDERATION (KERALA), WORKING AT UNION BANK OF INDIA, M.G. ROAD, ERNAKULAM BRANCH, ERNAKULAM. BY ADV.SRI.DINESH MATHEW J.MURICKEN ## RESPONDENT/RESPONDENT IN A.S. NO.199 OF 2000/PLAINTIFF IN O.S.NO.911 OF 1998: UNION BANK OF INDIA, REGIONAL OFFICE, ERNAKULAM, REPRESENTED BY M.P. VARGHESE, MANAGER, PLANNING & DEVELOPMENT, REGIONAL OFFICE, M.G. ROAD, ERNAKULAM. BY ADV. SRI.A.S.P.KURUP, STANDING COUNSEL, UBI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J. -------------------------------------S.A. No.685 of 2002 -------------------------------------Dated this the 1[st] day of June, 2018** ## **JUDGMENT** This appeal is at the instance of the defendants in a suit for declaration and consequential prohibitory injunction. The suit is filed by the Union Bank of India against the employees' federation and its office bearers. 2. The relevant pleadings raised by the contesting parties are as follows: Plaintiff is a nationalised bank. According to the plaint averments, the 1[st] defendant union is a minority union, both at all India and State levels. Defendants 2 and 3 are the Chairman and Assistant Secretary of the 1[st] defendant union. Ext.A1 notice was issued by the union dated 20.04.1998 proposing to start a direct action including demonstration at all branches/offices of the plaintiff bank on 22.04.1998 and a dharna (sit-in) by the executive committee members starting at 9.30 a.m. on 29.04.1998 in front of the regional office of the bank at Ernakulam. Regional office of the plaintiff bank is housed in a three storied building. Besides the regional office, the bank has other branches in and around Ernakulam. The bank has a currency chest in one of its branches and it holds an average of `25 crores. The proposed agitation by the defendants, including a dharna, is 2 SA No.685 of 2002 illegal and against the provisions of Section 36AD of the Banking Regulation Act, 1949 (in short, “the Act”). The defendants have no right to cause obstruction to the ingress and egress of the employees, officers and customers to the regional office and branches of the plaintiff bank. Hence the suit for declaration that the proposed demonstration and sit-in are illegal and for a consequential permanent prohibitory injunction. 3. 3[rd] defendant filed a written statement for and on behalf of other defendants refuting the allegations in the plaint. According to the defendants, 1[st] defendant union is the majority union in Kerala. They further contended that Ext.A1 notice is valid under the Industrial Disputes Act. The agitations are symbolic way for expressing the resentment of the employees and the same is protected by the provisions under Article 19 of the Constitution of India. The dharna conducted on 29.04.1998 was peaceful and there was no incident as apprehended by the plaintiff bank. The employees have a right to demonstrate peacefully. Their protest is against an unfriendly attitude of the management. The suit is misconceived and liable to be dismissed. 4. Before the trial court, notice issued by the 1[st] defendant union was marked as Ext.A1. No oral evidence was adduced on both sides. After considering the arguments, trial court decreed the suit as prayed for. 5. Aggrieved by the judgment and decree of the trial court, the 3 SA No.685 of 2002 defendants preferred an appeal before the District Court, Ernakulam. After reconsidering the rival contentions, the learned District Judge confirmed the judgment and decree and dismissed the appeal. Hence the defendants are in this appeal. 6. Heard the learned counsel for the appellants and the respondent bank. 7. Learned counsel for the appellants contended that the courts below thoroughly mistook the legal contentions raised by the defendants. The declaration granted to the effect that the appellants have no right to demonstrate peacefully and conduct dharna is legally incorrect. According to them, the constitutional principles enunciated in various binding precedents were not considered by the courts below. 8. Per contra, learned standing counsel appearing for the respondent bank would contend that the employees have no right to agitate. This has been reiterated by a Division Bench of this Court in the judgment in **M.E.S. Ponnani College v. Debashish Kumar Behra and others (2017 (5) KHC 13)** . The facts borne out from the decision would show that the Division Bench pronounced in the following terms in connection with an issue relating to strike in educational institutions. The law laid down in paragraph 6 of the judgment reads thus: _“The very fact that people resort to Dharna/hunger strike shows that they themselves are aware that their_ 4 SA No.685 of 2002 _demands are not legal or legitimate and they use these coercive methods to achieve what they could not have achieved legally, for if it was otherwise they ought to have peacefully come to Court or move the statutory forums for redressal of their grievances.”_ It is to be remembered that these observations cannot be mechanically applied to the facts and circumstances in this case, especially in the light of the binding precedents cited by the learned counsel for the appellants. 9. Relying on a Constitution Bench decision of the Supreme Court reported in **Kameshwar Prasad and others v. State of Bihar and another (AIR 1962 SC 1166)** , the learned counsel for the appellants contended that peaceful demonstration is a right protected under Article 19 of the Constitution of India. In paragraph 13 of the judgment, following propositions are laid down: _“13. The first question that falls to be considered is whether the right to make a "demonstration" is covered by either or both of the two freedoms guaranteed by Art.19(1)(a) and 19(1)(b). A "demonstration" is defined in the Concise Oxford Dictionary as "an outward exhibition of feeling, as an exhibition of opinion on political or other question especially a public meeting or procession". In Webster it is defined as "a public exhibition by a party, sect or society ................ as by a parade or massmeeting'. Without going very much into the niceties of language it might be broadly stated that a demonstration_ 5 SA No.685 of 2002 _is a visible manifestation of the feelings or sentiments of an individual or a group. It is thus a communication of one's ideas to others to whom it is intended to be conveyed. It is in effect therefore a form of speech or of expression, because speech need not be vocal since signs made by a dumb person would also be a form of speech. It has however to be recognized that the argument before us is confined to the rule prohibiting demonstration which is a form of speech and expression or of a mere assembly and speeches therein and not other forms of demonstration which do not fall within the content of Art. 19(1)(a) or 19(1)(b). A demonstration might take the form of an assembly and even then the intention is to convey to the person or authority to whom the communication is intended the feelings of the group which assembles. It necessarily follows that there are forms of demonstration which would fall within the freedoms guaranteed by Art.19(1)(a) and 19(1)(b). It is needless to add that from the very nature of things a demonstration may take various forms; it may be noisy and disorderly, for instance stone-throwing by a crowd may be cited as an example of a violent and disorderly demonstration and this would not obviously be within Art.19(1)(a) or (b). If can equally be peaceful and orderly such as happens when the members of the group merely wear some badge drawing attention to their grievances."_ 10. The decision in **Anita Thakur and others v. Govt. of J and K and others (AIR 2016 SC 3803)** is also relied on by the learned counsel 6 SA No.685 of 2002 for the appellants to contend that holding peaceful demonstration in order to air the grievances of an employee cannot be said to be an illegal act as contended by the respondent. Paragraph 8 of the decision is quoted for profit: _“8.We can appreciate that holding peaceful demonstration in order to air their grievances and to see that their voice is heard in the relevant quarters is the right of the people. Such a right can be traced to the fundamental freedom that is guaranteed under Articles 19(1)(a), 19(1)(b) and 19(1)(c) of the Constitution. Article 19(1)(a) confers freedom of speech to the citizens of this country and, thus, this provision ensures that the petitioners could raise slogan, albeit in a peaceful and orderly manner, without using offensive language. Article 19(1)(b) confers the right to assemble and, thus, guarantees that all citizens have the right to assemble peacefully and without arms. Right to move freely given under Article 19(1)(d), again, ensures that the petitioners could take out peaceful march. The 'right to assemble' is beautifully captured in an eloquent statement that "an unarmed, peaceful protest procession in the land of 'salt satyagraha', fast-unto-death and 'do or die' is no jural anathema". It hardly needs elaboration that a distinguishing feature of any democracy is the space offered for legitimate dissent. One cherished and valuable aspect of political life in India is a tradition to express grievances through direct action or peaceful protest._ 7 SA No.685 of 2002 _Organised, non-violent protest marches were a key weapon in the struggle for independence, and the right to peaceful protest is now recognized as a fundamental right in the Constitution."_ 11. These principles will have to be considered in the light of the provisions in Section 36AD of the Act, which reads as follows: ## _“_ _**36AD. Punishments for certain activities in relation to banking companies** .-(1) No person shall-_ _(a) obstruct any person from lawfully entering or leaving any office or place of business of a banking company or from carrying on any business there, or_ _(b) hold, within the office or place of business of any banking company, any demonstration which is violent or which prevents, or is calculated to prevent, the transaction of normal business by the banking company, or_ _(c) act in any manner calculated to undermine the confidence of the depositors in the banking company. (2) Whoever contravenes any provision of sub-section (1) without any reasonable excuse shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both._ _(3) For the purposes of this section “banking company” includes the Reserve Bank, the Exim Bank, the Reconstruction Bank the National Housing Bank the National Bank, the Small Industries Bank, the State Bank of India, a corresponding new bank, a regional rural bank_ 8 SA No.685 of 2002 _and a subsidiary bank.”_ 12. On a reading of the above provision, it will be clear that certain acts prescribed therein are made offences punishable. It can be further seen that an offence is made out only if a person obstructed any person from lawfully entering or leaving any office or place of business of a banking company or from carrying on any business there. Secondly, an offence will be made out only when a person within the office or place of business of any banking company held any demonstration which is violent or which is calculated to prevent the transaction of normal business by the banking company. Further, the act in any manner calculated to undermine the confidence of the depositors in the banking company can be considered to be an offence. It is to be noted that all and any demonstration is not a punishable offence. It is qualified by the expression that the demonstration must be a violent one. There must be a calculated attempt on the part of a person to prevent the transaction of normal business by the banking company. Going by Ext.A1 notice it is not seen that they had any intention to interfere with the normal functioning of the bank and/or to hold any violent demonstration. Courts below placed undue reliance on Section 36AD of the Act to grant a decree for injunction. In fact, the pronouncements on the point by the Supreme Court were not considered by the courts below. There is no material on record to find that the appellants had committed any breach of peace or violence as 9 SA No.685 of 2002 apprehended by the respondent bank. Still, a prohibitory injunction decree was unnecessarily granted by the courts below. At the same time, it has to be clarified that the respondent bank has a right to conduct business in a peaceful manner catering to the needs of the customers. There must be a balance between rights of the employees to hold dharna or demonstration and the bank's right to conduct their business as provided under the provisions of the Act. Having regard to the facts and circumstances, the appeal is partly allowed in the following terms: It is hereby declared that the appellants' right to hold dharna or demonstration is subject to the parameters provided under Section 36AD of the Act. The appellants have no right to hold dharna or demonstration against the guidelines in Section 36AD of the Act. Rest of the reliefs granted by the courts below are hereby vacated. All pending interlocutory applications will stand closed. ## **A. HARIPRASAD, JUDGE.** **cks** SA No.685 of 2002 10 **A.HARIPRASAD, J.** **S.A.No.685 of 2002** **JUDGMENT** **1[st] June, 2018.**