BEFORE THE HON’BLE CITY COURT OF BOMBAY

In the matter of,

Federation Of Western India Cine

(PETITIONER)

V.S

Filmalaya Pvt. Ltd. on 20 March, 1981

(RESPONDENT)

ON SUBMISSION TO

MEMORANDUM FOR THE

RESPONDENT
Submitted by:

Neelam Thakur

Section- C

Roll No. 88, Semester- V

Date of submission: 04/04/2016

 TABLE OF CONTENTS

List of Abbreviations…………………………………………………………………..iii

Index of authorities…………………………………………………………………….iv

I. Statement of facts…………………………………………………………………….v

II. Issue raised………………………………………………………………………….vi

III. Summary of arguments……………..……………………………………….…….vii

IV. Written submission………….………………………………………………………1

V. Prayer………………………………………………………………………………...7
 ABBREVIATIONS

 & And

 AIR All India Report

 SC Supreme Court

 V. Versus

 Sec. Section

 Gov. Government

 C.P.C Civil Procedure Code

 INDEX OF AUTHORITIES

LIST OF CASES

Kameshwar Prasad v. State of Bihar

Himat Lal K. Shah v. Commissioner of Police, Ahmedabad and another

LEGISLATIONS OF CONCERN

 Industrial Dispute act 1947

 Trade union Act

BOOKS REFERRED

LABOUR AND INDUSTRIAL LAWS

 Statement of Facts

  The plaintiffs, the Filmalaya Pvt. Ltd. which is a private limited company, filed a suit
against the defendants mainly for an injunction restraining defendants, their agents and
members from acting upon the directions issued by the defendants, No. 1 the Federation
and incorporated in the letter dated May 3, 1980.

 According to the plaintiffs the first defendants, which is a Federation and the second
defendant which is a trade union are registered under the Trade Union Act, 1926. In the
course of the plaintiffs' business the Filmalaya studio was hired to various producers of
the films and the plaintiffs used to give facilities such as sound recording, cameras,
setting and lighting and for that purpose the plaintiffs had employed several workmen

 By a letter dated December 11, 1979 the union made various demands on behalf of 19
workers alleging that these workers were in the employment of the plaintiffs and by
practising unfair labour practice they were being shown as temporary employees of other
sister concerns

 It was the case of the plaintiffs that these 19 workmen were not their employees at all. It
was also their case that right from January 8, 1980 the department concerned was closed
and as a consequence of this closure the services of the permanent employees including
defendant No. 3 were terminated either by paying or by offering to them their legal dues.

 The defendant-Federation vide its letter dated May 3, 1980 addressed to the various
bodies and associations of cine artists, technicians and workers required them to issue a
 direction directing their members not to report for shooting work at the studio of the
plaintiffs. In pursuance of this letter of Federation, respective bodies or associations
issued further directions in their respective members, as a result of which the business of
the plaintiffs has come to a standstill.

 For the purpose of deciding this appeal it is not necessary to make a detailed reference to
any other averments made in the plaintiff. The plaintiffs then took a Notice of Motion
seeking injunction against the defendants, their agents and members from acting
according to the directives incorporated in the letter dated May 3, 1980.

 The defendants contested the said Notice of Motion. A contention was raised by the
defendants that the present suit in barred in view of the provisions of S. 18 of the Indian
Trade Unions Act, 1926. It was further contended that on two earlier occasions in the
proceedings filed at their instance the plaintiffs, failed to get necessary injunction either
from the City Court or from the Industrial Court and now the plaintiffs are trying to get
the same reliefs in an oblique manner by filing the present suit.

Issue Raised
 1. Whether an injunction could be issued restraining the defendants, its members or
agents from acting upon the directions incorporated in the letter dated May 3,
1980 ?
2. whether the right 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) ?

Summary of Pleadings

1. No, an injunction could be issued restraining the defendants, its members or agents from
acting upon the directions incorporated in the letter dated May 3, 1980.
2. Yes,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
 WRITTEN SUBMISSION

1. Whether an injunction could be issued restraining the defendants, its members

or agents from acting upon the directions incorporated in the letter dated May
3, 1980 ?

2. No, an injunction could be issued restraining the defendants, its members or agents
from acting upon the directions incorporated in the letter dated May 3, 1980.

"trade dispute" is defined in S. 2(g) of the Indian Trade Unions Act. 1925 which reads as
under :

"Trade dispute" means any dispute between employers and workmen or between employers 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 on December 27, 1979 a letter was written by the union reiterating the demands relating
to 19 workmen and their status.

Thereafter on January 10, 1980 the union raised a dispute about the wrongful termination of the
service of defendant No. 3 Abdul and on the same day by another letter it raised a dispute about
the intimidatory tactics played by the employer and in that letter also they reiterated their
demand about the 19 employees.
It further appears from this correspondence that a lightening strike took place on the December
28, 1979. It then appears that in the meantime sometime in March 1980 other departments of the
plaintiffs were closed which resulted in termination of the services of 12 permanent employees.
So far as the department in which the defendant No. 3 was working is concerned, it came to be
closed on January 14, 1980 the plaintiffs denied the allegations made by the union. They also
denied the allegation of the union that any worker was forced to sign any document.

We have also on record the alleged undated letter at Ext. "B" purported to have been signed by
the three employees. At least at this stage it is an admitted position that at least two of the
employees had not signed the letter, Prima facie it also appears that also incident took place on
December 27, 1979, as a result of which a lightening strike took place on December 28, 1979. It
is contended by the defendants that in all 27 employees were forced to sign certain documents.
as the letter dated May 3, 1980 is concerned, the plaintiffs were not entitled to get any injunction
in the present proceedings on one more ground.

Similar application was made by the plaintiffs itself to get injunction on earlier occasion. Apart
from the fact that Shri Deb Mukherji who was the plaintiffs in the earlier proceedings is closely
related to the person incharge of the Filmalaya Studio, from the averments made by Shri Ram
Mukherji in para. 19 of his affidavit itself it is quite clear that to some extent they were working
hand in hand.

If this is so then the fact that in Suit No. 1391 of 1980 such an injunction was refused by the
City Civil Court, Bombay as well as the fact that such a relief is not granted by the Industrial
Court is wholly relevant for deciding the question of granting temporary injunction in this case
also. Apart from the fact that the plaintiffs must make out a strong prima facie case for getting
injunction, the plaintiffs should also approach the Court with clean hands.

The relief which has been denied already on two occasions qua the letter dated May 3, 1980,
cannot be indirectly granted over again. It is well-settled principle of law that a thing which
cannot be done directly cannot be permitted to be done indirectly and this is what the plaintiffs
have secured in the present suit.
  whether the right 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).

Kameshwar Prasad v. State of Bihar

[1962-I L.L.J. 294] and while considering the ambit of the said right the Supreme Court has
observed as under :

"The first question that falls to be considered is whether the right 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 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 from 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 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 of 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) & 19(1)(b). It is needless to add that from the very nature of things a
demonstration 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)& 19(a) or (b). It can equally be peaceful and orderly such as happens when the
members of the group merely wear some badge drawing attention to their grievance."

Himat Lal K. Shah v. Commissioner of Police, Ahmedabad and another

In India a citizen had, even before the Constitution, a right to hold meetings, etc., obviously
subject to the rules and regulations as well as consideration of public order. A right to peacefully
assemble is cognate to those of free speech and free press which is equally fundamental. A
demonstration by the employees is also protected under Art. 19 of the Constitution of India of
course if it is peaceful and incapable of causing breach of public peace. 

Therefore depending upon the facts and circumstances of each case such a conduct or an act will
also be protected by S. 18 of the Indian Trade Unions Act.Further the Act in contemplation or in
furtherance of trade dispute, which induces breach of contract of other employees or causes
interference with the trade, business or employment of some other person, is also within the
ambit and scope of S. 18 of the said Act. However, for seeking this protective umbrella the
inducement or interference must be by lawful means. Obviously it should not be accompanied by
illegal means such as violence, etc. Section 18 does not afford exemption to the trade union from
the acts of violence 

This is not to say that the trade union is also protected from its violent activities. Activities which
are normally termed as violent cannot be recognised as legitimate trade union activities of an
union. Therefore, in my opinion Miss Indira Jaysing was quite justified in conceding that the
learned Judge of the City Civil Court, Bombay was wholly justified in granting injunction so far
as the prayer in sub-clauses (ii), (iii) and (iv) of prayer cl. (a) are concerned. She has also
conceded that so far as the prayer clause (v) is concerned the injunctoin could also be granted so
far as the activities inside the Filmalaya Studio are concerned.

PRAYER

Therefore, in the light of issues raised, arguments advanced and authorities cited, the Hon’ble
court may be pleased to declare and adjudge that:

A. The suit filed by the appellant shall be dismissed .

Or to pass any other order, which this court may deem fit in the interest of Justice, Equity and
Good Conscience.

All of which is most humbly prayed.

Place: India Neelam Thakur

Counsel for the Respondent