Sadananda Swamy, J.:— This appeal is filed by the plaintiffs against the judgment and decree of the Principal Civil Judge, Mangalore, dismissing the suit O.S No. 38 of 1968. Appellant-1 is the Partnership firm dealing in wholesale and retail cloth business. Appellants 2 and 3 are the partners of the firm. Respondents 1 to 5 are respectively defendants 1 to 5. The 5th defendant is the Vanijya Shramika Sangha, a registered Trade Union. The 1st defendant is the President, the second defendant is the Vice-President, the third defendant is the District General Secretary and the 4th defendant is the Secretary of the said Sangha. The defendants are alleged to have conducted an unlawful demonstration and agitation between 6 p.m and 9 p.m every day from 1st November, 1967 to 31st January, 1968 in front of the Plaintiffs' retail shop at Hampanakatta in Mangalore City, and thereby caused loss of profit to the plaintiffs in the sum of Rs. 24,460-20. The defendants are further alleged to be liable to pay Rs. 5,000 as compensation for mental agony, torture and loss of reputation caused to the plaintiffs on account of the publication of defamatory statements. The suit is filed for the recovery of Rs. 34,996-39 including the expenses incurred by the plaintiff as a result of the agitation carried on by the defendants, the expenses incurred for taking photographs and the maintenance of watch and ward. The trial court held that the agitation carried on by the Sangha was protected under Section 18 of the Indian Trade Unions Act, 1926. It also held that no defamatory statements had been published by the defendants. It accordingly dismissed the suit.
2. The first question to be decided is whether the agitation carried on by the Sangha was in contemplation or furtherance of a trade dispute and threfore protected under Section 18 of the Trade Unions Act. The events which led to the agitation have been set out in the plaint. The Sangha presented a charter of demands contained in their letter dated 27th March, 1967 to the Assistant Labour Commissioner, Mangalore, which was subsequently transferred to the Labour Officer, Mangalore, for his consideration. The Labour Officer commenced conciliation proceedings on 20th July, 1967 and concluded the same on 10th October, 1967 as it ended in a failure. The conciliation having failed, the matter was pending before the Government for consideration and the Government, of Mysore, according to their letter dated 30th November, 1967 reported the receipt of the failure report from the Conciliation Officer. The Government, thereafter, according to its order dated 15th March, 1968, has referred certain of the demands contained in the charter of demands to the Industrial Tribunal, Bangalore. While the conciliation was pending before the Labour Officer, the Sangha gave a notice on 10th November, 1967 to the plaintiffs expressing its intention to go on strike if their demands were not conceded. The Plaintiffs approached the Labour Officer, Mangalore, who declared the proposed strike as illegal, as per his letter dated 23rd November, 1967. Thereafter, the defendants started an agtation to compel the plaintiffs to submit to their demands and to withdraw the writ petition which had been filed by the plaintiffs. Earlier, an industrial dispute had been raised regarding the question of increments and the dismissal of an employee, Miss Pauline Tauro. Against the award of the Industrial Tribunal a writ petition No. 377/67 had been filed in this court and it was pending on the date of suit. It is also alleged in the plaint that there was an agreement arrived at in 1963 between the Management and the employees regarding the pay scale and that it was still in force.
2. (a) In the written statement of the 3rd defendant it was pleaded that even from the averments in the plaint it is clear that the demonstrations carried on by the 5th defendant were in furtherance of the admitted trade dispute between the plaintiffs and their employees and that the suit is barred under Section 18 of the Indian Trade Unions Act, 1926. In the written statement of the 5th defendant it was alleged that the workers were constrained to raise a dispute as the Management wrongfully dismissed an employee and wrongfully witheld the increments to the staff, that the Industrial Tribunal, Bangalore, in I.D 1/66 after enquiry passed an award on 22nd December, 1966 directing the reinstatement of the dismissed employee Miss Paulin Tauro with back wages, etc. and also directed payment of increments to the staff wrongfully withheld. The plaintiffs filed a writ petition and got a portion of the award stayed in W.P 377/67 and the plaintiffs failed to implement even that portion of the award which was not stayed by the High Court, namely, payment of increments. It was further pleaded by the Sangha that, its peaceful demonstration in front of the Plaintiffs' shop was with a view to focus the public attention to the harassment practised by the plaintiffs against their employees since the plaintiffs refused to implement the portion of the award which had not been stayed. They further pleaded that the demonstrations were carried on in the normal course of trade union activities when all other methods failed in contemplation and furtherance of trade disputes, and that they were a necessary consequence to the plaintiffs' intransigent attitude and disrespect for the rights and privileges of their employees.
3. The history of the dispute has now to be stated. On 23rd October, 1963, the plaintiffs framed a re-organisation scheme prescribing new scales of pay and qualifications for the various posts held by the employees. But they also prescribed a test to be passed by the employees and it was provided that if any employee fails in the same, he could be reverted to such other lower post for which he was found fit. The Sangha addressed a letter on 27th March, 1967 to the plaintiffs setting out the resolution passed at a meeting of the employees of the plaintiffs' firm held on 26th March, 1967. Some of the resolutions were to request the plaintiffs to pay annual increment to the employees, which had been witheld in spite of the directions of the Industrial Tribunal, Bangalore, and also to give the benefit of back wages to Miss Pauline Tauro according to the award of the Industrial Tribunal. It also set out the resolutions regarding the other condititons of service like Dearness Allowance, Bonus, Gratuity, House Rent Allowance, retirement age and the unfair labour practise resorted to by the plaintiffs. The award of the Industrial Tribunal, Ext. D-27, was published in the Gazette on 19th January, 1967. Two disputes were referred to the Tribunal one with regard to the dismissal of Miss Pauline Tauro and the other was with regard to the increments witheld on the ground that the employees' should pass a test. The Industrial Tribunal set aside the order of dismissal of Miss Pauline Tauro, and directed the Management to reinstate her with full back wages. With regard to the second point of dispute it held that the plaintiffs were not justified in with-holding the increments on the ground that the employees had to pass a test. It directed the Management to pay the necessary increments to the persons listed from the date they had been witheld. It is against this award that the plaintiffs filed W.P 377/67. In the writ petition, the reinstatement of Miss Pauline Tauro was stayed subject to certain conditions but there was no stay granted in respect of the direction to pay the increments. The order of stay is dated 6th October, 1967.
4. The report of the Labour Officer, Ex. D-28, shows that the conciliation proceedings commenced on 20th July, 1967 and concluded on 10th October, 1967. It shows that on 20th July, 1967 a tentative agreement had been arrived at under which the Management agreed to grant four increments to some of the workers, to pay additional bonus for the year 1965–1966, and to negotiate about the demand of pay scales and Dearness Allowance within one year from the date of signing of the agreement. But at a later stage, the Management insisted on a waiting period of three years as a result of which the tentative agreement had to be withdrawn. The report of failure of conciliation proceedings was received by the Government on 16th November, 1967. In their letter dated 18th November, 1967, the plaintiffs informed the Labour Officer that they were not agreeable to the suggestion of the Labour Officer to refer the charter of demands by the workmen to arbitration. Exhibit P-98 is a notice issued by the Sangha to the plaintiffs on 10th November, 1967 containing the resolutions passed at the meeting of the workers held on 6th November, 1967. The first resolution demands the implementation of the award of the Industrial Tribunal with regard to the increments witheld from the employees and the arrears of salary payable to Miss Pauline Tauro. The second resolution demands the immediate settlement of the other demands of the workers, namely, Pay scales, Dearness allowance, Bonuses, Gratuity, House Rent Allowance and also regarding the complaints in respect of the anti-labour attitudes of the management. The third resolution states that two weeks' time will be allowed to the Management to meet the above demands and, on their failure to do so, it authorises the Office-bearers of the Vanijya Shramika Sangha to take necessary steps including striking work in order to get their grievances redressed. This notice was received by the plaintiffs on 13th November, 1967. On 23rd November, 1967, the Labour Officer wrote to the Sangha stating that the notice to go on strike would be illegal since Conciliation proceedings are deemed to be pending at the time the report was received by the Government and that a report of the same had been submitted to Government through the Commissioner of Labour in Mysore, Bangalore. On 16th November, 1967, the plaintiffs addressed a letter to the Sangha in reply to the notice dated 10th November, 1967 in which it was stated that the award of the Industrial Tribunal with regard to the increments in question is in appeal before the High Court and that it cannot be implemented on account of the inherent mistakes therein. With regard to the back wages payable to Miss Pauline Tauro, it was stated that the High Court had directed her to give a guarantee to the satisfaction of the Commissioner of Labour, Bangalore, and that it had not yet been done. Regarding the second resolution mentioned in the Sangha's letter dated 10th November, 1967, it was stated that the identical questions were taken for conciliation by the Labour Officer and that the plaintiffs are awaiting the result of the conciliation proceedings from the Government. In para 8 of the counter-affidavit filed on behalf of the Sangha in W.P 2707/67 on 8th December, 1967, it has been stated that the demands of the workers included not only enforcement of the award in respect of increments but also fixation of wage scales, Dearness Allowance, Gratuity, Bonus etc. In W.P 2707/67, the plaintiffs approached this court for the issue of a Writ of Mandamus to the State and the Superintendent of Police, South Kanara, Mangalore, to take appropriate steps for the prevention of commission of offences by the members of the Vanijya Shramika Sangha, to take action under law against those who have committed offences and for taking all such action necessary under law to maintain law and order. The Sangha got itself impleaded as third respondent on 24th November, 1967. By the time an interime order was passed, the Sangha had not yet filed any counter affidevit but it was not disputed on behalf of the Sangha that the members of the Sangha were standing in front of the business premises of the plaintiffs holding placards and shouting slogans. According to the allegations made by the plaintiffs, the activities of the members of the Sangha were unlawful and were in the nature of what is called ‘Gheroas’. It was observed by this court in the course of its order dated 6th December, 1967 that the acts of violence and obstruction to the business carried on by an employer are not normal trade union activities permissible under law. Accordingly, an interim mandamus was issued to the Superintendent of Police, South Kanara, to take action necessary to maintain law and order and to enable the plaintiffs to carry on their lawful business. According to the plaintiffs the Sangha carried on demonstrations and unlawful activities in spite of this order but according to the Sangha, it only carried on peaceful agitation and did not indulge in objectionable or unlawful activities and the acts carried on by it were permissible as part of trade union activities. On 13th November, 1967, the plaintiffs complained to the Superintendent of Police, South Kanara, alleging that the demonstrators blocked the entry to the shop premises preventing the customers from entering the shop and were also dissuading them from coming to the shop, that they were preventing the staff members and customers from going in and coming out of the shop premises and that these acts amount to ‘Gheroa’ which is illegal. The plaintiffs have stated in their complaint that the award passed by the Industrial Tribunal has not been implemented by the Management since it does not mention as to whom the increments are to be given, for what period and at what rate and that in the absence of these relevant points the award under is bad in law and inoperative. The plaintiffs sent another complaint on 16th November, 1967 to the Superintendent of Police, South Kanara, complaining that on that evening the demonstrators have commenced resorting to force and violence and extremely intimidatory tactics. They have further stated that what is meant by the above allegations is that 3 or 4 of the demonstrators have been continuously using Megaphones and shouting violent and wild slogans and vile abuses at the Management and their loyal workers. They have further stated that the acts of gathering in large numbers and blocking the entrance of their shop and rendering the footpath unusable by the public is nothing but a ‘Gheroa’ which has been declared illegal by all the High Courts.
5. On 26th September, 1967, the Commissioner of Labour wrote to the plaintiffs requesting them to implement the award of the Industrial Tribunal with regard to the payment of back wages to Miss Paulin Tauro and to pay increments to other workmen pointing out that the enforcement of the entire award had not been stayed by the High Court and also threatening to take necessary action under Section 29 of the Industrial Disputes Act, 1947 on their failure to do so. Exhibit D-25 is another letter dated 20th December, 1967 from the Commissioner of Labour to the Plaintiffs requesting them to pay the entire amount of back wages to Miss Pauline Tauro on her furnishing a Bank guarantee and also requesting them to pay increments immediately to other members of the staff according to the terms of the award which were withheld. On 23rd April, 1968, the plaintiffs wrote a letter, Ext. P-144, to the Commissioner of Labour stating that a part from the pendency of W.P 377/67 they were unable to implement the award with respect to payment of increments to the workmen in the absence of the essential ingredients, namely, the names of workmen to whom the increments are to be paid, the rates at which the increments are to be paid and the years to which the increments relate.
6. It is the contention of Mr. Sundaraswamy that the disputes relating to the reinstatement of Miss Pauline Tauro as well as the increment payable to the workmen had already been decided by the award of the Industrial Tribunal and that it cannot be said that any dispute was pending relating to those questions on the date the Sangha started agitation and that, therefore, the Sangha cannot claim protection under Section 18 of the Trade Unions Act. In British India Corporation Ltd. v. Industrial Tribunal, Punjab(1) it has been held that reference of industrial disputes covered by a prior award in force between the same parties must be held to be bad in law, following the decision of the Supreme Court in Burn & Co., Calcutta v. Their Employees(2). In Grahams Trading Company v. Second Industrial Tribunal, West Bengal(3) it has been—held that the non-implementation of an award does not fall within the definition of an industrial dispute and that the matter decided by the award should not have been referred again to the Industrial Tribunal for adjudication. In Bangalore W.C and S. Mills Co. v. Their Workmen(4) the Supreme Court held that when there is a subsisting award binding on the parties, the Tribunal will have no jurisdiction to consider the same points in a subsequent reference. The contention of Mr. Sundaraswamy that there was no industrial dispute pending with respect to the points covered by the award has to be upheld.
7. It is the contention of Mr. Sundaraswamy that the defendants pleaded that the demonstration carried on by them was in order to get the implementation of the award of the Industrial Tribunal by the plaintiffs and since the award was in force, the only remedy open to the Sangha was to get it implemented as provided under Section 29 or Section 33-C of the Industrial Disputes Act. Since the dispute had resulted in an award it cannot be said that the dispute relating to the points settled by the award was any longer pending subsequent to the date of the award. It is therefore his contention that during the period of the demonstration any acts committed by the defendants cannot be said to be in contemplation or in furtherance of a trade dispute under Section 18 of the Trade Unions Act. It is his further contention that what the defendants pleaded was that the demonstrations were carried on to compel the plaintiffs to implement the terms of the award and that they cannot rely upon the evidence adduced in the case to justify their acts on the ground that there were other points of dispute pending between the Management and the workers and claim protection under Section 18. Mr. Sundaraswamy relied on the decisions in A.I.R 1954 Supreme Court 758 and A.I.R 1964 Supreme Court 24 In Sheodhari Rai v. Suraj Prasad Singh(5) it has been held that where the defendant in his written statement sets up title to the disputed lands as the nearest reversioner the Court cannot, on failure of the defendant to prove his case, make out a new case for him which is not only not made in the written statement but which is wholly inconsistent with the title set up by the defendant. In S.N Ranade v. The Union of India(6) an Inamdar of a village claimed compensation for diversion of water from the river on the ground of his title to the flowing water. There was no allegation about his rights as riparian owner to the water in the plaint. It was held that he could not make out an alternative case on the ground of his right as riparian owner. In Rudrawwa v. Balawwa(7) it has been held that the scope of a suit is determined by the pleadings in the case and that if the case is not pleaded, the same cannot be permitted and any amount of evidence cannot fill up the lacuna in the pleadings. In Nagubai v. B. Shama Rao(8) relied on by Mr. Holla, it was contended that the question of lis pendens was not raised in the pleadings and could not be relied upon by the plaintiff. Neither in the plaint nor in the reply statement did the plaintiff allege that the sale is affected by the rule of lis pendens. There was also no issue specifically directed to that question, but the question of lis pendens was raised by the plaintiff at the very commencement of the trial when he entered the witness box and pointed out in his examination in chief the documents which support the plea of lis pendens. No objection was raised by the defendants. The defendants cross-examined the plaintiff on the collusive character of the proceedings relied on by the plaintiff in support of his case of lis pendens and filed documents in proof of the same. In the trial court the defendants did not object to the plea of lis pendens being permitted to be raised but argued the question on its merits and sought a decision on the evidence that the earlier proceedings were collusive in character with a view to avoid the operation of Section 52 of the Transfer of Property Act. It was observed by their Lordships, rejecting the contention:
“We are satisfied that the defendants went to trial with full knowledge that the question of lis pendens was in issue, had ample opportunity to adduce their evidence thereon, and fully availed themselves of the same, and that, in the circumstances, the absence of a specific pleading on the question was a mere irregularity, which resulted in no prejudice to them.”
The rule laid down in Siddik Mahomed Shah v. Mt. Saran(9) that no amount of evidence can be looked into upon a plea which was never put forward was considered and it was observed as follows:—
“The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducng evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto.”
The decision of the Rani Chandra Kunwar v. Narpat Singh(10) was followed. In that case the defendants put forward at the time of trial the contention that the plaintiff was given away in adoption and inconsequence not entitled to inherit. No such plea was taken in the written statement; nor was any issue framed thereon. It was held by Lord Atkinson that as both the parties had gone to trial on the question of adoption, and as the plaintiff had not been taken by suprprise, the plea as to adoption was open to the defendants. In (1969) 1 SCC 320 : A.I.R 1969 Supreme Court 630 Union of India v. M.P Sugar Mills(11) the observations in A.I.R 1956 Supreme Court 593 referred to above were cited with approval. The same principle was applied since it caused no prejudice to the opposite party. In Bhagawati v. Chandramaul(12) the earlier decisions of the Supreme Court were explained as follows:—
“In support of this argument Mr. Setalvad has referred us to the decision of this Court in Messrs. Trojan & Company v. Rm. N.N Nagappa Chettiar. (1953 SCR 789) (A.I.R 1953 SC 235). In that case, this court has observed that it is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. It is necessary to remember that these observations were made in regard to a claim made by the plaintiff for a certain sum of money on the ground that the defendant had sold certain shares belonging to him without his instructions, but he had ailed to prove that the sale had not been authorised by him. The question which the Court had to consider in the case of Trojan & Co., 1953 SCR 739; (AIR 1953 SC 235) (supra) was that in view of the plaintiffs failure to prove his case that the mpugned sale was unauthorised, was it open to him to make a claim for the same amount on the ground of failure of consideration? And this court held that such a claim which was new and inconsistent with the original case could not be upheld.
There can be no doubt that “if a party asks for a relief on a clear and specific ground, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. The same principle was laid down by this Court in Sheodhari Rai v. Suraj Prasad Singh, AIR 1954 SC 758. In that case, it was held that where the defendant in his written statement sets up a title to the disputed lands as the nearest reversioner, the Court cannot, on his failure to prove the said case, permit him to make out a new case which is not only not made in the written statement, but which is wholly inconsistent with the title set up by the defendant in the written statement. The new plea on which the defendant sought to rely in that case was that he was holding the suit property under a shikmi settlement from the nearest reversioner. It would be noticed that this new plea was in fact not made in the written statement, had not been included in any issue and, therefore, no evidence was or could have been led about it. In such a case clearly a party cannot be permitted to justify its claim on a ground which is entirely new and which is inconsistent with the ground made by it in its pleadings.
But in considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that considerations of form cannot over-ride the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the court has to consider in dealing with such an objection is; did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another.”
8. In the present case, apart from the issues relating to the existence of a trade dispute and whether the action of the defendants was in furthrance of a trade dispute, there is also an issue whether the defendants could interfere with the business of the plaintiffs by resorting to demonstration and agitation “as alleged in the plaint”. As stated above, the plaint itself refers to the charter of demands made by the workmen. It is only subsequent to the end of the agitation that some of those demands were referred for adjudication by the Industrial Tribunal. Those demands had been advanced by the workmen long prior to the date of the commencement of the agitation by the defendant Sangha. In the written statement of the third defendant it was pleaded that on the allegations in the plaint itself the agitation carried on by the Sangha was protected under Section 18 of the Trade Unions Act. Exhibits P-1 to P-5 are the earliest exhibits marked in evidence on behalf of the plaintiffs. They are the pamphlets issued by the Sangha. In those pamphlets the demands of the workmen other than those covered by the award of the Industrial Tribunal, namely, pay scales, Dearness allowance, bonus, house rent allowance, retirement benefit have been mentioned apart from the demand to implement the terms of the award. DW-1 has also been cross-examined with regard to the demands of the workmen mentioned in Ext. 93 which are not covered by the award of the Industrial Tribunal. Under these circumstances, it cannot be said that the plaintiffs were taken by surprise or that they were prejudiced. Hence, the contention of Mr. Sundaraswamy has to be rejected.
9. Exhibit P-82 is the order of reference made by the Government on 27th February, 1968 for adjudication of the industrial dispute between the workmen and Management of the plaintiffs' firm. The issues refered relate to the revision of pay scales, payment of Dearness allowance and bonus. With regard to the gratuity and the increment of the year 1967–1968 the Government expressed its opinion that they do not merit reference for adjudication. With regard to the increments, the Government refused to make a reference since it was of the opinion that the issue comes under the award passed by the Industrial Tribunal already. This order of reference is made as a consequence of the report of the failure of the conciliation proceedings received from the Labour Officer. D.W 1 is the second defendant. He has stated in the course of his evidence that the object of the demonstration was to make the plaintiffs implement the part of the award of the Industrial Tribunal which had not been stayed by the High Court and to enlighten the public about the failure of the plaintiffs to do so and to get the sympathy of the public. But he further stated that the object of starting demonstrations was also in support of the other demands which are referred to in the charter of demands, Ext. P-93. Therefore, there were points of dispute between the plaintiffs and their workmen, other than those covered by the award, which were pending during the period of the demonstration.
10. In Exhibit P-127, the letter written by the plaintiffs to the Manager of the Syndicate Bank on 23rd January, 1968, it is stated that the dispute raised by the Sangha for D.A, H.R.A, and gratuity are pending before the Government and once these issues are referred to the Industrial Tribunal, the demonstration has to stop once for all in view of the reference. The plaintiffs have stated in that letter that if the plaintiffs were to yield to the demands for D.A, H.R.A and gratuity scheme, the same demands will be imposed on like businesses of the district and they also will have to accept the same. Relying upon this statement of the plaintiffs, it is urged by Mr. T.S Pai that the plaintiffs deliberately, kept the disputes alive. It is his contention that inspite of the award of the Industrial Tribunal, its terms were not implemented by the plaintiffs deliberately for the reasons stated by them in the above said letter. It is urged by him that a trade dispute as defined under Section 2(g) of the Indian Trade Unions Act is of wider import then an industrial dispute as defined under Section 2(k) of the Industrial Disputes Act and that even subsequent to the passing of the award, the agitation carried on by the Sangha is protected under Section 18 even with respect to those parts of the dispute covered by the award. But in this case it is not necessary to decide that question since we are of the opinion that the agitation was in furtherance of or in contemplation of a trade dispute under Section 18 in relation to the other dispute pending during the period of agitation as stated above.
11. It is now to be considered whether the agitation carried on by the Sangha is protected under Section 18 of the Trade Unions Act. Section 18 of the Indian Trade Unions Act, 1926 reads as follows:—
“18(1). No suit or other legal proceeding shall be maintainable in any Civil Court against any registered Trade Union or any officer or member thereof in respect of any act done in contemplation or furtherance of a trade dispute to which a member of the Trade Union is a party on the ground only that such act induces some other person to break a contract of employment, or that it is in interference with the right of some other person to dispose of his capital or of his labour as he wills.
(2) A registered Trade Union shall not be liable in any suit or other legal proceeding in any Civil Court in respect of any tortious act done in contemplation or furtherance of a trade dispute by an agent of the Trade Union if it is proved that such person acted without the knowledge of, or contrary to express instructions given by, the executive of the Trade Union.”
Since any tortious act done by an agent of the trade union under the circumstances stated in clause (2) of that section is rendered not liable, if is urged by Mr. Sundaraswamy that any tortious act done by any registered trade union or any officer or member thereof under the circumstances stated in clause (1) of that section will not attract the immunity from liability in a suit or other legal proceeding in any Civil court. [But what is contemplated under Section 18(1) is the protection of any act done in contemplation or furtherance of a trade dispute. The term “any act” is wide enough to include any tortious act. Hence a tortious act is not excluded from protection under clause (1) of the above Section]. Under Section (2) clause (g) of the above Act, the term ‘trade dispute’ is defined as follows:—
“trade dispute” means any idspute between employers and workmen of between workmen and workmen, or between employers and employers which is connected with the employment or non-employment, or the terms of employment or the conditions of labour, of any person, and “workmen” means all persons employed in trade or industry “whether or not in the employment of the employer with whom the trade dispute arises.”
The agitations carried on by the Sangha was in contemplation or furtherance of a trade dispute. We will now consider the English decisions relied on by Mr. Sundaraswamy under Section 3 of the Trade Disputes Act, 1906. Section 3 of that Act reads as follows:—
“An act done by a person in contemplation of furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment of that it is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labour as he wills.”
[Under the Indian Act also, an act done in contemplation or furtherance of a trade dispute has been rendered not actionable on the ground only that it is an interference with trade, business or employment of some other person.
12. In Conway v. Wade,(13) the law as it stood before the Trade Disputes Act, 1906 relating to the circumstances under which a person can be used for inducing some one not to employ or not to serve another was stated as follows:—
“If the inducement was accompanied by violence or threats (always remembering that a warning is one thing and a threat is another) there was a good ground of action. I next sdppose that there was no violence and no threat, and yet the inducement involved a breach of contract; then also it was established after a long controversy commencing with Lumley v. GYE, 1853 2 E. & B. 216), in 1853 that an action could be maintained, unless at all events some sufficient justification could be made good. But suppose that one person simply induced someone not to employ another or not to serve another, without violence or threat or breach of contract, would an action lie, and in what circumstances, in such a case? I believe that there has not been either a conclusive or an exhaustive answer to that question……..”
The change in the pre-existing law affected by Section 3 of the Trade Disputes Act was stated as follows:—
“It is clear that, if there be threats of violence, this section gives no protection in any case, for then there is some other ground of action besides the ground that ‘it induces some other person to break a contract’, and so forth. So far there is no change. If the inducement be to break a contract without threat or violence, then this is no longer actionable, provided always that it was done “in contemplation or furtherance of a trade dispute.” What is the meaning of these words I will consider presently. In this respect there is a change. If there be no threat or violence and no breach of contract, and yet there is “an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labour as he wills,” there again there is perhaps a change. It is not to be actionable, provided that it was done “in contemplation or furtherance of a trade dispute.” “So there is no longer any question in such cases whether there was “sufficient justification” or not. The condition contained in these words as to a trade dispute is made sufficient. I come now to the meaning of the words “an act done in contemplation or, furtherance of a trade dispute.” These words are not new in the Act of Parliament; they appear in the Conspiracy and Protection of Property Act, 1875. I think that they mean that either a dispute is imminent and the act is done in expection and with a view to it, or that the dispute is already existing and the act is done in support of one side to it. In either case the act must be genuinely done as described and the dispute must be a real thing imminent or existing.”
In Halabury's Law of England, Volume 37, at page 126 has been stated as follows:—
“Although therefore, it is not an actionable wrong for an individual merely to induce a person not to serve or not to employ another when no breach of contract is thereby caused, yet, if the inducement is accompanied by illegal means, such as violence, intimidation, coercion, obstruction, molestation, fraud, or misrepresentation, and damage results to a person intended to be harmed there is an actionable wrong at his suit. Threats to break a contract come within the category of unlawful acts in relation to intimidation.”
13. In Clerk and Lindsell on Torts, 12th Edition, the principles stated by Lord Cave L.C in Sorell v. Smith(14), with regard to conspiracy have been set out, namely (1) a combination of two or more persons wilfully to injure a man in his trade is unlawful and if it results in damage to him is actionable, (2) if the real purpose of the combination is not to injure another but to forward or defend the trade of those who enter into it, then no wrong is committed and no action will lie although damage to another ensues. At para 644 (page 337) it is stated:
“It is plain that a combination may have more than one object or purpose. If so, liability must depend on ascertaining the predominant purpose. If that predominant purpose is to damage another person and damage result that is tortious conspiracy. If the predominant purpose is the lawful protection or promotion of any lawful interests of the combiners (no illegal means being employed) it is not a tortious conspiracy even though it causes damage to another person. In ascertaining that predominant purpose the court can have regard to both the short and the long term objects of the combiners.”
At para 646 it has been stated that damage is an essential element of the tort of conspiracy. In Halabury's Laws of England 3rd Edition, Volume 38, at page 66 it is stated as follows:—
“Immunity from civil conspiracy:
Acts done in pursuance of an agreement by two or more persons, in contemplation or furtherance of a trade dispute, are not actionable unless the acts, if done without any such agreement or combination, would be actionable.”
Again at page 367 it has been stated as follows:—
“Liability in tort:
No action lies against a trade union or any branch of a union, whether of workmen or masters, or against any members or officials thereof on behalf of themselves and all other, members of the union or branch, in respect of any tortious act alleged to have been committed by or on behalf of the union or branch, and the liability of the trustees to be sued does not extend to an action in respect of any tortious act committed by or on behalf of a union in contemplation or furtherance of a trade dispute.”
14. As to when a threat constitutes a tort has been stated in Salmond on Torts, Fifteenth Edition, at page 482 as follows:—
“A threat is not per se unlawful. The distinction between unlawful threats is drawn according to the nature of the act threatened and not according to the nature of the threat. One might give proper notice of termination of a contract in the most violent language: conversely, an announcement of an intention to call out all the workers in a vital industry may be, and nowadays often is, couched in subdued tones. The conclusion is that if one may do something, one may threaten to do it. Conversely, if one is not entitled to do something, one may not threaten to do it.”
In Crofter Harris tweed Co. v. Veitch(15), a case which did not fall under the Trade Disputes Act, 1906, Viscount Simon, L.C referred: to the two propositions of law which were stated by Lord Cave in Sorrel v. Smith, stated above, and further observed as follows:—
“First, then, apart from the effects of combination, it is clear that, first, if A is damaged by the action of B, a Nevertheless has no remedy against B if B's act is lawful in itself and is carried out without employing unlawful meangs. In such a case, A has to endure DAMNUM ABSQUE INJURIA. Secondly, it makes no difference to the above proposition that B in so acting had the purpose damaging A.A bad motive does not per se turn an indivdual's otherwise lawful act into an unlawful one.”
15. As to what constitutes intimidation it has been stated in Salmond on Torts at page 488 as follows:—
“The wrong of intimidation includes all those cases in which harm is inflicted by the use of unlawful threats whereby the lawful liberty of others to do as they please is interfered with. This wrong is of two distinct kinds, for the liberty of action so interfered with may be either that of the plaintiff himself, or that of other persons with resulting damage to the plaintiff. In other words, the defendant may either intimidate himself, and so compel him to act to his own hurt, or he may intimidate other persons, and so compel them to act to the hurt of the plaintiff……..”.
Again at page 490 it is stated as follows:—
“Intimidation of other persons to the injury of the plaintiff:
In certain cases it is an actionable wrong to intimidate other persons with the intent and effect of compelling them to act in a manner or to do acts which they themselves have a legal right to do which cause loss to the plaintiff: for example, the intimidation of the plaintiff's customers whereby they are compelled to withdraw their custom from him, …………….
Intimidation of this sort is actionable, as we have said, in certain classes of cases; for it does not follow that, a because a plaintiffs customers have a right to cease to deal with him if they please, other persons have a right as against the plaintiff to compel his customers to do so. There are at least two cases in which such intimidation may constitute a cause of action:
(i) When the intimidation consists in a threat to do or procure an illegal act;
(ii) When the intimidation is the act, not of a single person, but of two or more persons acting together, in pursuance of a common intention.”
Again at page 492 it is stated as follows:—
“If the party intimidated does not respond to the threat then the plaintiff cannot sue, for the plain reason that he has not been damaged. The damage to the plaintiff must be linked to the coercion of the threatened party. This meets the case where the threat is whimsical for example, the office boy who threatens to leave unless the chairman of the company is removed, or the case where the person threatened is brave enough to stand up to the threat, as was Mr. Stratford in Stratford and Son, Ltd. v. Lindley, (1965) A.C 269. But if seventy members of a union thereaten to leave even a great public corporation like B.O.A.C may surrender.”
16. In Kameshwar Prasad v. State of Bihar(16) Rule 4A of the Bihar Government Servant's Conduct Rules, 1956 which prohibited any form of demonstration for the redress of the grievances of Government servants was struck down as being violative of the fundamental rights guaranteed to them under Article 19(1)(a) and (b) of the Constitution of India, since under the rule every type of demonstration, be the same however incapable of causing a breach of public tranquility, was banned but did not single out those types of demonstration which were likely to lead to a disturbance of public tranquility or which would fall under the other limiting criteria specified in Art. 19(2). While considering the nature of demonstrations in General it was observed as follows:—
“‘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 mass meeting. Without going very much into the niceties of language it might be broadly stated that a demonstration 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 recognised that the argument before us is confined to the rule prohibiting the 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 Article 19(1)(a) or (b). A demonstration may 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 Article 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 violent and disorderly demonstration and this would not obviously, be within Art. 19(1)(a) or (b). It can equally be peaceful and orderly such as happens when the members of the group wear some badge drawing attention to their grievances.”
In Dalmia Cement Co., Ltd. v. Naraindas(17) is was held that Section 18 of the Trade Unions Act, 1926 does not afford immunity trade union or to an officer thereof for an act of deliberate trespass.
17. In Jay Engineering Works v. State(18) a special Bench, after considering the law in England and the scope of Sections 17 and 18 of the Trade Unions Act, 1926, observed as follows:
“It will be noticed however that both Sections 17 and 18 of the Trade Unions Act, 1926 fall far short of the rights conferred by the English Acts. The common characteristic however is that both inhibit violence, intimidation and molestation.
“The net result of the decision set out above is that sections 17 and 18 of the Indian Trade Unions Act grant certain exemption to members of a trade union, but there is no exemption against either an agreement to commit an offence or intimidation, molestation or violence, where they amount to an offence. Members of a trade union may resort to a peaceful strike, that is to say, cessation of work with the common object of enforcing their claims. Such strikes must be peaceful and not violent and there is no exemption where an offence is committed. Therefore, a concerted movement by workmen by gathering together either outside the industrial establishment or inside, within the working hours is permissible, when it is peaceful and does not violate the provisions of law.”
The relationship between labour and management in India and other countries was considered and it was held that both the trade union laws of the West and the law in India draw a line at violence, intimidation and the violation of law relating to crimes. It was further held that though there are no express provisions in the Trade Union Acts regulating strikes or picketing, yet, these are weapons in the armoury of labour; that neither section 17 nor Section 18 of the Trade Unions Act exempts a workman who commits an offence i.e, an offence under the criminal laws of the country, save and except the limited ground upon which he is exempted from being charged with criminal conspiracy under Section 17, that any act of violence which amount's to the commissions of an offence is never excused, and that an agreement to commit an offence is expressly excluded-from the purview of Section 17. In that case, the meaning of ‘Gherao’ and its validity was considered and it was observed by Benerjee, J. as follows:—
“Etymologically, “Gherao” means encirclement. Encirclement by a crowd may be due to various reasons, say for example, there may be encirclement of a popular leader by an admiring crowd, the leader himself enjoying this form of demonstration. Encirclement may also be made by a hostile crowd, say of workmen, who elect wrongfully to confine the management, so as to coerce them to concede to their, demands. “Gherao” as such, that is to say simple encirclement, is no offence under the Criminal Law of this country. But a “Gherao” accompanied by violence and drivers forms of crimes resulting in wrongful confinement or wrongful restraint of the encircled person or persons, is a criminal activity, not because it is encirclement but it encirclement “with more”.
After a persual of the statutes both in England and India regulating trade unionism it was observed by him that malice, molestation, intimidation or commission of offences against criminal laws of the land are inhibited, that the weapons of strike, boycotting and picketing are permissible within the limitation put on the trade union activities under the Trade Unions Act. In Reserve Bank of India v. A.K Sen(19), it was held that in respect of a trade dispute as defined under Section 2(g) of the Trade Unions Act, acts in contemplation or in furtherance of a trade dispute which induces breach of contracts of other employees or causes interference with the trade, business or employment of some other person or with the right of some person to dispose of his capital or labour as he wills would not be actionable. But such inducement or procurement or interference must be by lawful means and not by means which would be illegal or wrongful by other laws. An injunction was granted restraining the employees of the Reserve Bank of India from committing any unlawful acts or watching, besetting or shouting abuses or slogans, holding meetings or unlawful assemblies inside or outside the buildings and the places of business of the Bank or within 30 yards of the said place in such a manner as to create nuisance or to interfere with the normal work of the Bank. The Bank was held not entitled to an order of injunction restraining the employees from displaying posters within or outside the place of business of the Bank. The Court did not grant an injunction restraining the employees from intimidating any customer or constituents or caller of the Bank during office hours as there was no averment or evidence that any customer was intimated during office hours. In Rohtas Industries Staff Union v. State of Bihar(20), it was held that the workers were entitled to the protection of Section 18 of the Trade Unions Act even if the strike was illegal under Section 24(1) of the Industrial Disputes Act.
17. (a In Damodar Ganesh v. State(21), picketing has been described as “the marching to and fro before the premises of an establishment involved in a dispute, generally accompanied by the carrying and display of a sign, placard or banner bearing statements in connection with the dispute. Such marching to and fro may sometimes be accompanied by a polite request asking persons in the employ of an establishment not to assist in the running of that establishment, or customers not to patronize that establishment.” Such act would constitute peaceful picketing and are protected under Section 18. In Halsbury's Laws of England, Third Edition, Volume 38, at page 361, it is stated as follows:—
“Peaceful picketing:
“One or more persons acting on their own behalf or on behalf of a trade union, or a branch of a trade union, or of an individual employer or firm, may, in contemplation or furtherance of a trade dispute, attend at or near a house or place where a person resides or works or carries, on business, happens to be, if they so attend merely for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or abstain from working.”
In Kannan v. Superintendent of Police, Cannanore(22), during the pendency of a strike in a factory, the management obtained an order from the High Court affording Police protection. Pursuant to this, the police prevented workers from offering Satyagraha within 200 yards of the factory gate. This action of the police was challenged by the trade union on the ground that the workers have a right to perform Satyagraha, they are not allowed to do so and are effectively obstructed by asking them to remain 200 yards away from the gate and not to go anywhere near the premises of the factories for performing Satyagraha or holding demonstrations, upholding their contention it was observed as follows:
“It is no doubt true that any demonstration and any Satyagraha would cause inconvenience to the management. It may very often cause considerable embarrassment too. It is impossible to conceive of any demonstration or strike which is not intended to bring pressure upon the management to concede to the workmen's demands. But it is not the role of this Court to interfere with the right of the workmen to carry on their agitation, so long as it is peaceful, so long as it does not turn violent. If as complained of by the petitioner here, workmen are asked to be 200 yards away from the factory premises any Satyagraha would have no meaning. A lawful demonstration on satyagraha would lose all significance if the workmen are asked to choose a place far away from the business premises for their operation. The management “can of course claim that the ingress and agrees to their business premises should be protected from obstruction and if there is imminent danger or peril to life or property police should afford that much protection as is necessary to avert such harm.”
In Hunt v. Broome(23) the scope of protection for picketing under Section 134 of the Industrial Relations Act, 1971 was considered and the following passage from Citrine's Trade Union Law was cited:
“Similarly, if the manner of the picketing ceases to be peaceful or becomes an obstruction of a nuisance, or endangers the public peace, the picketing will cease to be lawful. Thus, if a picket commits a private nuisance, as by violently and continually banging on the door, shouting, obstructing ingress or egress, or otherwise seriously interfering with the enjoyment of the house, or if he commits a public nuisance such as behaving in a manner calculated to cause a breach of the peace, or unreasonably obstracting the highway, his common law right to picket and his right to “attend” under the section will cease and neither will protest him from civil or criminal liability for any of these acts, or for any “watching or besetting” “with a view to compel” which he may also have committed. So also if the picketing is carried out in such numbers or otherwise in such a manner as to be likely to intimidate those subject to it, or to obstruct or molest them against their will, it will be unlawful. Any show or threat of violence, or any other unlawful threat likely to create fear in the mind of a reasonable man, will render picketing unlawful, and may make it criminal, rickets are therefore not entitled, in order to compel people to listen them, to obstruct them by deliberately standing in their way or catching hold of their arms. Nor are they entitled to obstruct the passage of vehicles by lying down in the highway in front of them, or otherwise blocking the highway. Neither may they continue to pester, i.e, “molest”, those persons who do not wish to listen and who have requested them to desist. It will thus be seen that the right to picket is a very intangible one which is closely limited by the equal right of others to go about their lawful affairs free from obstruction, molestation or intimidation.”
It was held that the methods of persuasion are limited to what counsel for the appellant called oral or visual methods, that is to say the use of the voice and the exhibition of placards, and the section does not authorise pickets to do acts such as the physical obstruction of a vehicle or a person which would be illegal apart from Section 134. In N.D Basu's Law of Injunctions, 3rd Edition at page 822 it has been stated as follows with regard to the circumstances under which an injunction against picketing may be issued by the Courts:
“While it is often a matter of considerable difficulty to draw the line between what is lawful in this respect and what is unlawful, and while each case must depend very largely upon its own attending facts and circumstances as to whether or not the particular acts complained of are upon one side of the line or the other, it may be stated as a general rule that, while the maintenance of an organised system of picketing when conducted in an orderly and peaceful manner, is perfectly lawful and therefore affords no ground for relief by injunction. Yet where strikers or their sympathisers or other persons acting in concert with them, are combining and conspiring together, by means of force, threats, intimidation or violence, on other means calculated to intimidation to coerce plaintiff's employees or those who wish to become employees from remaining in or entering his employ, or to prevent plaintiff's customers, or, others who wish to have dealings with him from so doing, all resulting in serious injury to plaintiff's business or in its ultimate ruin, a proper case is presented for the interference of equity and in such cases injunctions should be freely granted and writ should be framed in such form as best to meet the exigencies and requirements of the particular occasion.”
18. The principles which are relevant for the purposes of the present case as can be gathered from the above may be now summarised. A demonstration by the employees is protected under Article 19 of the Constitution of India provided it is peaceful and orderly. Such a demonstration is therefore protected even apart from Section 18 of the Trdade Unions Act, 1926. Section 18 does not afford immunity for an act of deliberate trespass. The members of a trade union may resort to a peaceful agitation by gathering together either out side the industrial establishment or inside within the working hours provided it is peaceful and no violence, intimidation or molestation is involved and there is no violation of the provisions of law. An act in contemplation or in furtherance of a trade dispute which induces breach of contract on other employees or causes interference with trade, business or employment of some other person or with the right of some other person to dispose of his capital or labour as he wills would not be actionable, but such inducement or interference must be by lawful means and not by means which would be illegal or wrongful. The display of posters within or outside the place of business is permissible. The workers are entitled to the protection of Section 18 of the Trade Unions Act even if the strike is illegal under Section 24(1) of the Industrial Disputes Act.
19. The workers may resort to peaceful picketing i.e, the marching to and fro before the premises of an establishment. They may be accompanied by the carrying and display of sign boards, placards or banners bearing statements in connection with the dispute. They may also request politely the employees not to assist in the running of the business and ask the customers not to patronise that establishment. Such acts would constitute peaceful picketing and are protected under Section 18. The demonstration may cause inconvenience and embarassment to the employer. It may be intended to bring pressure on the management to concede to the workers' demands. But such demonstration is protected so long as it is peaceful and does not turn violent. The employer can claim that the ingress and egress to their business premisess should be protected from obstruction. He is also entitled to protection if there is imminent danger to life or property. If the picketing ceased to be peaceful or becomes a nuisance or endangers public peace, it ceases to be lawful. If the picketing is carried out in such principles or in such a manner as is likely to intimidate or to obstruct or molest the employees or customers against their will, it would be unlawful. Any show or threat of violence or any other unlawful threat likely to create fear in the mind of a reasonable man will render picketing unlawful. Pickets are not entitled to compel people to listen to them or to obstruct by deliberately standing in their way or catching hold of their arms, they are also not entitled to obstruct passage of vehicles by lying down in the highway in front of them or otherwise blocking the highway. They are not entitled to pester those persons who do not wish to listen to them, and who have requested them to desist. Right to picket is a very intangible one which is closely limited by the equal right of others to go about their lawful affairs free from objection, molestation or intimidation. The methods of persuasion are limited to oral and visual methods i.e, the use of the voice and the exhibition of placards and should not be extended to physical obstruction of a vehicle or a person which would be illegal. Each case must depend very largely upon its attending facts and circumstances as to whether or not particular acts complained of are protected under section 18 or not. When persons are combining and conspiring together and adopt means calculated to intimidate or to coerce the employees or those who wish to become employees from remaining in or entering his employ, or to prevent employer's customers or others who wish to have dealings with him, from so doing, by means of force, threats, intimidation or violence resulting in serious injuries to plaintiff's business then such acts would not be protected.
19(a). In Reserve Bank of India v. A.K Sen, the learned single Judge held that a prima facie case of nuisance had been established and issued an interim order of injunction to be operative during the pendency of the suit filed by the Reserve Bank of India against its employees restraining them from holding any unlawful meeting or organising any unlawful assembly inside the buildings or within 30 yards of the said business, in such a manner as to create a nuisance or to interfere with the normal work of the plaintiff's Bank and its place of business. The employer asserted that the employees are doing certain acts which are wrongful but the employees contended that these acts are the legitimate weapons in the armory of labour. It was observed that the interim order should be such as to accommodate the conflicting views until the matter is tried in the suit having regard to the balance of convenience of the parties. Hence the decision has no application to the present case. It is to be noticed that the Special Bench of the same Court in Jay Engineering Works v. State, did not lay down that the employees are not entitled to hold the demonstrations near the place of business. On the other hand, in Kannan v. Superintendent of Police, Cannanore, it was held that a lawful demonstration or satyagraha, would lose all significance of the workmen are asked to choose a place far away from the place of business for their operation, though the management is entitled to be protected with regard to the ingress and egress to their business premises from obstruction. Hence, the workers are entitled to hold peaceful demonstrations in front of the business premises of the employer provided there is no obstruction caused to the entry into and exit from the business premises of the employer.
20. We will now proceed to consider whether the acts committed in this case in the course of the agitation carried on by the Sangha are protected under Section 18. According to the plaintiffs, the Sangha organised the demonstration in front of the plaintiffs' shop. The demonstrators used to shout abusive slogans. The demonstration was carried on between 6 p.m and 9 p.m daily during the period of agitation. The demonstrators used to offer threats and indulge in intimidation of the customers as well as the members of the staff. The customers were prevented from entering the plaintiff's shop and those who were inside the shop were prevented from going out of the shop, thereby the plaintiffs have suffered loss due to fall in the sales turn over during the period of agitation. The defendants admitted that the agitation was carried on at the instance of the Sangha and that they organised the demonstrations. According to them 20 or 25 persons used to be engaged in the demonstration. Some of the photographs support their version. It is also their case that the demonstrators used to appeal to the customers with folded hands not to do business with the plaintiffs and were not causing any obstruction to the customers or the members of the staff from getting in or getting out of the shop. According to them, the demonstrators used to stand on either side of the entrance of the shop holding placards and shouting slogans mentioned in the pamphlets, Exhibits P-1 to P-5.
21. P.W 1 is one of the Photographers engaged by the plaintiffs who was going every day to the retail shop of the plaintiffs from 11th November, 1967 to 30th January, 1968 for taking photographs and used to be in the shop from 6 p.m to 9 p.m From his evidence it is clear that some customers were going into the shop inspite of the obstructions caused by the persons who were shouting slogans. But according to his evidence, when the customers entered the shop those slogan shouters were also entering the shop with a view to see that the customers come out. Whenever the witness requested the policemen who used to be present near the shop, they used to give him assistance. While he was taking photograph's he used to take photographs by standing inside the shop as well as outside the shop. P.W 2 is another professional photographer who was engaged by the plaintiffs to take photographs from 13th November, 1967 till 30th January, 68 in the retail shop of the plaintiffs. He had been asked to take photographs of the demonstrations and picketing. According to his evidence even if some customers used to enter the shop they as well as the managers and Assistant Managers and partners of the plaintiffs' shop were obstructed by the demonstrators from coming out of the shop. He also used to take photographs both inside and outside the shop. He had been specifically asked to take photographs of the demonstrators prohibiting or obstructing customers but he admitted that none of the photographs taken by him show the demonstrators causing obstructing to him or to the persons coming into and going out of the shop. He also admitted that he has not taken any photograph of the customers having been obstructed by the demonstrators, and that he had also not taken photographs of the demonstrators having come inside the shop and obstructing customers inside the shop, though he stated that he used to be in the shop when the demonstrators were obstructing the customers inside the shop. He further admitted that he has not taken any photograph of the demonstrators obstructing managers and members of the establishment from going out of the shop or from coming into the shop or the policemen making a way for them. It is in his evidence that he had been specifically asked to take photographs of the demonstrators causing obstruction to the customers, the managers and the staff.
22. Exhibit 130 is the circular issued by the plaintiffs on 9th November, 1967 to its staff members. It state's that if any of the staff members are molested physically or prevented from carrying out their duties, they must promptly report in writing to the management giving all possible details of offences whereever possible. But no report of any staff member complaining to the management of any obstruction caused to him has been placed before court. P.W 9 is the Sub-Inspector of Police who was visting the place from 6 p.m to 9 p.m almost every day during the period of demonstration. He has stated that the demonstrators were standing in front of the shop holding placards and shouting slogans at times. On 18th November, 1967 the demonstrators intended to prevent the customers from entering the shop and were shouting slogans. He arrested 15 persons to prevent commission of a cognizable offence and another 14 persons later the same evening. He released all of them at about 9 p.m after the shop was closed. Police constables had been posted near the shop of the plaintiff during the period of demonstration to maintain law and order and to prevent commission of cognizable offences. According to his evidence he had been advising the demonstrators not to cause obstruction to customers from entering the shop. It is in his evidence that to his knowledge or information there was no actual prevention of any customers from entry into the plaintiff's shop, that no customer or anybody else complained to him of any actual prevention of entry or obstruction and even an attempt of any such obstruction was not reported to him. He has stated that he only apprehended that the demonstrators might prevent or obstruct the customers, that the persons arrested by him wanted to prevent customers in general, that in his presence no customer was obstructed on that day, that he went there at about 7 p.m, that from the talk of the demonstrators he apprehended that they were intending to obstruct the customers till 8-30 p.m and that there was no instance of actual obstruction to any customer which was brought to his notice. He stated that not even an attempt to obstruct any customer was brought to his notice. Exhibit P-71 is the report submitted by this witness to his superior officer on 18th November, 1967. It state's that some members of the Sangha assembled in front of the retail shop of the plaintiffs to gain the sympathy of the public and the management and that the workers of the said firm used to join them after the close of the shop at about 8-30 p.m The slogans being shouted by the demonstrators are also set out. They show that the slogans related to the refusal of the plaintiffs to implement the order of the court and that the demonstration would continue till their demands were implemented. It shows that he arrested the demonstrators since the intention of the agitators was to restrain the public from entering the shop which would amount to a cognizable offence and since they did not heed to his advice, he arrested them to prevent the commission of a cognizable offence. Ext. P-105 is a complaint made by the plaintiffs to the Superintendent of Police, South Kanara, Mangalore on 13th December, 1967. It refers to the attempt made by the demonstrators to prevent two customers from entering the plaintiffs' shop. One is Mr. Mukunda Rao, Circle Inspector of Police, who was in Civil dress. It is stated that while entering the shop he was requested by the demonstrators not to enter the shop for shopping. Mr. Mukundarao asked the agitators to shut their mouth and did enter the shop. The other customer was Mrs. Octivia Albuquerque, Vice-Chairman of Mangalore Municipal Council. While she was entering the shop at about 7 p.m with her children and when they tried to prevent her from entering the shop, she said that the agitators may have their quarrel with the plaintiffs but that she had none and then entered the plaintiffs' shop for shopping. This shows that two customers who wanted to enter the shop to do business did enter the plaintiffs' shop ignoring the appeals of the demonstrators and that there was no physical obstruction to the customers. P.W 4 stated in his evidence that the demonstration was not a peaceful one looking at the facial expressions; shouting etc., but there was no bodily violence. According to the Sangha, the demonstrators were only appealing to the customers with folded hands not to enter the shop, but were not causing any physical obstruction to them. According to P.W 1 the demonstrators were stretching their hands wide and thereby were preventing customers from entering the shop.
23. In spite of the definite instructions given to the photographers by the plaintiffs to take photographs of obstruction caused by the demonstrators to the intending customers none of the photographs produced before the court show the demonstrators causing obstruction to any of the intending customers or any member of the staff. It is stated that as many as 400 photographs were taken by the two photographers and 47 of them have been produced into court. The contents of Ext. P-105 show that the demonstrators were only persuading the customers not to enter the shop and were appealing to them not to do so. It is in the evidence of PWs. that even during the demonstrations in the evenings some customer's did enter the plaintiffs' shop. It shows that the customers who were particular about entering the plaintiffs' shop or wanted to ignore the persuasions of the demonstrators did in fact enter the plaintiffs' shop. The evidence of P.W 9, the Sub-Inspector, also shows that there was no physical obstruction caused to the intending customers. Three or four constables used to be present at the spot during the period of demonstration. If there had been any such obstruction, P.W 9 would have received reports about the same from the policemen on duty at the plaintiffs' shop. If really there had been physical obstruction offered by the demonstrator's to the ingress and egress from the plaintiffs' shop whether to customers or to the members of the staff, it is very strange that not a single photographs of the same has been taken by either of the two professional photographers who were there ready with their cameras with flash equipment to take photographs of such incidents. The oral evidence of the P.Ws 3, 4 and 5 must be considered in the light of these circumstances namely, that there is no photograph of any such incident of obstruction. Hence, when these witnesses speak of having witnessed the obstruction caused to the customers by the demonstrators and when they say that the demonstration was not peaceful, we must understand them as giving expression to the opinion they formed in their minds when they saw the demonstrators not being silent but shouting slogans and making a lot of noise. They might have given an impression to the witnesses that the demonstration was not peaceful. It may be that they witnessed the demonstrators approaching the intending customers near the entrance to the shop for the purpose of appealing to them not to enter the shop. These witnesses must have construed such attempts on the part of the demonstrators to persuade the intending customers not to enter the shop as obstructions. The evidence of P.W 6, a tenant of the plaintiffs, is that the demonstrators used to stand in a line and used to form a human wall to obstruct the customers from getting into or coming out of the said shop. In the absence of any photograph to record the same, this evidence must be held to be not reliable. The trial court was, therefore, justified in coming to the conclusion that there was no obstruction, intimidation or threat resorted to by the demonstrators. There is no evidence of any incident of wrongful restraint or wrongful confinement of any of the members of the staff or the partners or of any customer.
24. The attempted assault by one of the employees, Padmanabha Bhandari, against a member of the staff, Mohan Pal, is alleged to have taken place within the shop premises in the evening. But Mohan Pal has not been examined as a witness on behalf of the plaintiffs though, admittedly, he continues to be the employee of the plaintiffs. The photograph, Ext. P-22, does not show Mohan Pal. The attempted assault by Padmanabha Bhandari was at 7 p.m inside the plaintiffs' shop when he was on duty. P.W 8, the plaintiffs' Manager, was unable to give the reason for the alleged assault. In the complaint, Ext. P-72, of Mohan Pal to the police, four other persons were also implicated. The demonstrations were outside the shop. It is in evidence that it is only after the duty hours, i.e, after 8-30 p.m, that the employees of the plaintiffs, shop used to join the demonstrators. The incident appears to be one of personal quarrel between Padmanabha Bhandari and Mohan Pal. The attack on Subba Rao, the friend of P.W 2 the photographer, appears to have taken place near Shetty's Ice-cream parlour which is far away from the site of demonstrations. The person assaulted namely, Subba Rao who was in the company of the photographer P.W 2, has not been examined. The threat alleged to have been offered by Shivaram cannot also be stated to be connected with the agitation carried on by the Sangha. These incidents cannot be said to form part of or be connected with the agitation carried on by the Sangha. There is no evidence to show that any of the defendants 1 to 4 bore illwill against the partners of the plaintiffs' firm.
25. In Salmond on Torts at page 531, the conditions of liability for injurious falsehood have been stated as follows:—
“To support such an action it is necessary for the plaintiffs to prove (1) that the statements complained of were untrue; (2) that they were made maliciously i.e, without just cause or excuse; (3) that the plaintiffs have suffered special damage thereby.”
In Halsbury's Laws of England, Volume 37, at page 127, it is stated as follows:—
“It is an actionable wrong maliciously to make a false, though not defamatory, statement respecting a person with the result that other persons thereby deceived are induced to act in a manner which causes loss to him. Maliciously means with some indirect or dishonest motive, and malice in this sense must be proved. Such a statement will not support an action if it was made in the belief, even though careless, that it was true, and without any indirect motive of hostility towards the person referred to.”
26. Exhibits P-1 to P-5 are the pamphlets issued by the Sangha. They relate to the demands made by the workers and appeal made to the public to give support to their struggle. There is also a call to the public to boycott the plaintiffs' shop and an appeal to bring pressure on the plaintiffs to accede to the demands of the workers. Exhibit P-5 is a pamphlet dated 1st February, 1968 stating that the Sangha has decided to suspend the peaceful demonstration and picketing as part of the agitation. It also condemns the hooliganism and looting of the plaintiffs' shop by the miscreants. It is issued one day after the looting of the plaintiffs' shop which took place on account of the Anti-Hindi agitation. There is no evidence to connect the Sangha or its members with the incident of 31st January, 1968. In fact, the plaintiffs' shop was closed on that day and there was no demonstration by the Sangha on that day. The pamphlet's do not contain any false or defamatory statement. According to the oral evidence adduced by the plaintiffs, the demonstrators were also shouting slogans to the effect that the plaintiffs are corrupt persons and blackmarketeers. But the reports submitted by P.W 9 does not refer to any slogan containing any such defamatory statements. The contents of the alleged defamatory slogans referred to in the plaint are to be found in only Ext. P-156 which is a notice issued to defendants 1 to 4 on behalf of the plaintiffs on 15th March, 1968, the several complaints made by the plaintiffs to the police do not allege the wording of the slogans to be defamatory. Ext. P-136 is the notice issued on behalf of the plaintiffs to the secretary of the Sangha on 29th November, 1967. In that notice also there is no reference to any defamatory slogans shouted by the demonstrators. In the report of the Sub-Inspector of Police, Ext. 71, also no defamatory slogans are referred to. The defamatory statements alleged to be contained in the slogans are also not referred to in Ext. P-152, the letter sent by the plaintiffs to the Home Minister, on 18th March, 1968, though it states that slogans were being shouted at the time of the demonstration. There is therefore no evidence to show that any injurious falsehoods or defamatory statements were contained in the slogans adopted by the demonstrators at the instance of the Sangha. With regard to injurious falsehood, there is no evidence to show that any customer acted on any false statement alleged to have been contained in the slogans. There is no plea or evidence with regard to actual damage having resulted to the plaintiffs by the alleged false statements in the slogans. Hence, no case of liability for injurious falsehood can be said to have been made out.
27. Exhibit P-2 is one of the pamphlets issued by the Sangha. It has appealed to the-plaintiffs, the Government and the public to see that justice is done to the workers before the workers adopted the weapon of ‘Horata’ and other ‘Ugrakramagalu’. D.W 1 in his evidence stated that the term ‘Ugrakramagalu’ did not include peaceful demonstration. By that term, he stated, that he meant hunger strikes and Buhdhs and that he did not have in mind violent activities. The term ‘Horata’ refers to a struggle and the evidence of D.W 1 does not show that the Sangha threatened to resort to any unlawful activities. It cannot therefore be said that there were acts either of threat or intimidation on the part of the Sangha. Though the plaint alleged that the demonstrators entered the shop premises there is no photograph to show the same and there is no evidence to support the same. Hence, there is no physical trespass committed by the demonstrators into the property of the plaintiffs. The employees continued to work in the shop premises during the period of demonstration. There is no plea of intimidation caused to the customers. There is no evidence of any threat of violence held out by the demonstrators. The two photographers continued to take photographs every evening during the period of demonstration. The staff continued to work in the shop premises. Hence, it cannot be said that there was any intimidation offered by the demonstrators.
28. It is the contention of Mr. Sundaraswamy that this court was satisfied while passing the order dated 6th December, 1967 in W.P 2707/67 that the Sangha was guilty of acts of violence, was causing obstruction to the business of the plaintiffs and was carrying on activities which are not normally trade union activities permissible under the law. It is his contention that the observations in the course of that order show that the activities carried on by the Sangha are not protected under Section 18 of the Trade Unions Act. It is to be noticed that the order of this court is an interim order based on the allegations in the plaintiffs' affidavit. It appears to have been alleged by the plaintiffs that the activities of the members of the Sangha are unlawful and are in the nature of ‘Gheraos’. No counter-affidavit had been filed on behalf of the Sangha by that time. The learned counsel who appeared for the Sangha did not dispute that the members of the Sangha were standing in front of the business premises of the plaintiffs between 6 p.m and 9 p.m holding placards and shouting slogans. It is under these circumstances that it was observed by this court that the activities of obstruction carried on by the employees are not normal trade union activities and an interim mandamus was issued to the Superintendent of Police to take such action as is necessary under law to maintain law and order and to enable the plaintiffs to carry, on their lawful business. The counter-affidavit of the Sangha was filed a few days subsequent to the date of that order. The Sangha carried on the agitation even subsequent to the date of that order but it is to be noticed that the plaintiffs did not file any application to this court alleging any acts of violence or obstruction to the business carried on by the plaintiffs subsequent to the date of the above order. It is also stated that the Sangha had not been impleaded as respondent in the above writ petition but that it got itself impleaded as respondent-3. This circumstance shows the anxiety of the Sangha to justify its activities as those protected under Section 18 of the Trade Unions Act. The counter-affidavit subsequently filed in the above writ petition on behalf of the Sangha shows that the Sangha took up the same stand which it has now taken, namely, that its activities are only those protected under Section 18 of the Trade Unions Act. The prima facie conclusion reached by this court for the purpose of issuing an interim order as stated above cannot be deemed to be the conclusion which this court would have reached if the evidence adduced in the present suit had been placed before it at that time. Hence, it cannot be said that there is a finding of this court that the activities of the Sangha as disclosed by the evidence in the present suit are not protected under Section 18.
29. Exhibit P-57 is the statement showing the comparative monthly turn over in the plaintiffs shop from 1st November, 1967 upto 31st December, 1968. It shows that when compared to the year 1966–1967, in the year 1967–1968 in the corresponding month's of November and December 1967 and January 1968, there has been a fall in sales of Rs. 1,63,067-90. It also contains a comparative statement of the day to day sales of the retail department of the plaintiffs for the months of November 1967 and December 1967 as compared with the sales of the corresponding months of the year 1966. It also contains the comparative statement of the day to day sales of the month of January 1967 when compared to that of January 1968. Exhibit P-58 is the comparative statement of sales for the months of September and October in the retail department for the years 1966–1967 and 1967–1968. Ext. P-59 is the consolidated statement of trade results and net income return for the last four years of the plaintiffs' business as submitted and accepted by the Income-fax Department. It relates to the years 1966–1967, 1967–1968, 1968–1969 and 1969–1970. It also shows the average gross profit in respect of those years. For the year 1967–1968, during which the demonstration was held, the rate of profit in the retail department is higher than the previous years. P.W 7 is the certified auditor who has prepared these statements. He has stated in his cross-examination that he had taken the figures from the previous audit statement for preparing Exts. P-57 and P-58 and that he prepared Ext. P-59 on the basis of the statements prepared in the course of the regular audit of the respective accounting years and that the figures have been taken and incorporated and consolidated in Ext. P-59 but that he has not referred to the account books etc. He further stated that he had personally verified the correctness of the figures in the statements prepared by him with the original statements prepared by him at the time of audit of the original account books of the plaintiff's firm. But the statements prepared by the witness on the basis of which Exhibits P. 57, P. 58 and P. 59 were prepared has not been produced into court. P.W 10 is a partner of the plaintiffs' firm. He stated in his evidence that according to the partnership deeds, every year the profit and loss accounts and balance sheets have been prepared. But they have not been produced into court. He admitted in his evidence that out of the stock books produced into court, only Ext. P. 106 bears the auditor's certificate regarding the correctness of the entries, but that the books Exhibits P. 107 to P. 109 do not possess such certificates. The entries in the account books which P.W 7 relied on for preparing Exhibits P. 57, 58 and 59, have not been proved. According to Exhibit P. 59 the fall in the sales in the retail department in the year 1967–1968 is about Rs. Four lakhs when compared to the previous year 1966–1967. There is also a fall in the sales in the wholesale department in the year 1967–1968 to an extent of about two lakhs when compared to the year 1966–1967. Admittedly, therefore, there was a fall in the sales both in the wholesale and retail department of the plaintiffs' business in the year 1967–1968 when compared to the year 1966–1967. P.W 10 has admitted that there was no demonstration or picketing in front of the wholesale department between 11th November, 1967 and 31st January, 1968 and that the demonstrations at the reail shop did not affect the sales of the wholesale department. The fall in sales in the wholesale department therefore must be due to other causes which have nothing to do with the demonstrations or the agitation carried on by the Sangha. Hence, the possibility of a fall in the retail sales being attributable to other causes cannot be ruled out. Hence, even if it is to be assumed that Exhibits P. 57, P. 58 and P. 59 reflect the correct position with regard to the sales, it cannot be said that the plaintiffs have established that they have suffered loss due to the activities of the Sangha during the relevant period of the demonstrations. The other claims of the plaintiffs have also to be rejected since the acts of the defendants have been held to be protected under Section 18 of the Trade Unions Act.
30. Hence, this appeal is dismissed with costs.