R. BANUMATHI, J.

While the dispute between the parties revolving around the precarious position of 59 workmen whose discontinuance from employment, resulted in the conciliation proceedings, which is pending before the fourth respondent, the applicant/plaintiff, alleging that the workmen disrupted normal functioning and running of a retail outlet of Bharat Petroleum Corporation Limited (BPCL for short) has filed the suit for declaration and permanent Injunction.

2. The applicant/plaintiff has also sought for Interim injunction restraining the first respondent/Union from obstructing the applicant and the third respondent from carrying on the business of sale of petroleum products and running of the retail outlet of BPCL at Mogappair.

3. Factual background in a nutshell are as follows:

a. The applicant/plaintiff-BPCL is engaging in the business of refining, storage and distribution of petroleum products and retailing of the products is being done through dealers operating retail outlets. In the year 1994, the BPCL has set up a retail outlet at 32 A, T.S. Krishna Nagar, Mogappair, Chennai-40. As the number of workmen employed under BPCL as contract labour exceeded 20, the BPCL got Itself registered as principal employer under Contract Labour (Regulation and Abolition) Act and it is holding a certificate of registration. One K. Sridhar of Uma Service Station was a service contractor from 1999 to 2004. In the year 2004, Labour contract was awarded to the second respondent and he was said to have obtained a licence for employing workmen not exceeding 120 as contract labours.. The Second respondent was maintaining a muster roll and wages register in respect of the workmen employed by him as contract labours. As the period of contract awarded to the second respondent expired on 31.7.2007, the third respondent was awarded contract for a further period from 1.8.2007.

4. The case of the applicant/BPCL is that the first respondent-Union purporting to act on behalf of the 59 contract workmen of the second respondent raised an Industrial dispute seeking permanency for them under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981. The first respondent/Union made a representation to the fourth respondent-Assistant Commissioner of Labour, seeking his intervention as a conciliation officer. Even when the said representation was pending, in March 2007, the first respondent/Union filed W.P. No. 11362 of 2007 seeking for a direction forbearing the BPCL from terminating the services of 59 workmen of the second respondent and also filed an application in M.P. No. 1 of 2007 for an order of interim injunction, which was granted by the High Court, by order dated 28.3.2007, while admitting the writ petition. However, on 1.7.2007, the first respondent withdrew the said writ petition, thereby, the interim order, dated 28.3.2007 got dissolved.

a. According to the applicant, on 1.8.2007, when the third respondent went to take over the possession and operation of the retail outlet at Mogappair, the members of the first respondent/Union obstructed him from entering the premises, thereby, they prevented him from taking over the operation of the retail outlet. Thereafter, the third respondent gave a complaint to the S.I. of Police, D3, JJ. Nagar Police Station, Chennai-37 complaining that the members of the first respondent/Union obstructed him from taking over the possession of the retail outlet at Mogappair. The applicant-BPCL has alleged that the employment of the members of the first respondent/Union had come to an end on 31.7.2007 and they have no right to interfere with the running of the retail outlet of the BPCL at Mogappair by the third respondent. Hence, the applicant has sought for an Interim injunction restraining the members of the first respondent/Union in any manner from Interfering with the affairs of the applicant and the third respondent in running the retail outlet at Mogappair and the same was granted, by order dated 7.8.2007. Ex parteinterim injunction was also granted.

b. The first respondent/Union has filed an application in A. No. 6052 of 2007 seeking to vacate the order of Interim injunction, dated 7.8.2007. According to the first respondent-Union, whether the strike is legal or illegal could be decided only by the appropriate forums provided under the Industrial Disputes Act (I.D. Act for short) and that the action of the first respondent cannot be questioned by way of a civil suit.

c. The first respondent/Union raised an Industrial Dispute on 1.8.2007 before the fourth respondent under Section 2(k) of the I.D. Act requesting to initiate conciliation proceedings. The fourth respondent advised the applicant lo not to alter the service conditions of the 59 workmen. However, on 3.8.2007, the BPCL closed the petrol bunk with a board displaying that the Petrol Bunk is under renovation and that the workmen were under the fond hope that they would be permitted to work as soon as the renovation work was over. On the other hand, the BPCL sent a letter dated 3.8.2007 to the fourth respondent stating that the work was suspended because of the unauthorised prevention of the workmen concerned with the dispute. The first respondent-Union has further alleged that its members are casual employees of the BPCL right from the year 1999. Even when the conciliation proceedings are pending, the management of the applicant had obtained an interim order from the Court and under the guise of interim injunction, thereby the applicant chased out the workmen concerned with the dispute with the help of police and opened the retail outlet by engaging new workmen and that the BPCL indulged in an unfair labour practice and abused the process of law and therefore, the BPCL is not entitled to equitable relief of interim injunction.

5. Laying emphasis upon Clauses 13, 18 and 26 of the Labour Contract Agreement, Mr. V. Karthik, learned counsel for the applicant has submitted that once the period of contract of the second respondent was over, the employment of members of the first respondent Union, who worked under the second respondent, had come to an end and therefore, they cannot claim any right of employment under BPCL.

6. Drawing the attention of the Court to the order passed in W.P. No. 29570 of 2007, the learned counsel has further submitted that when the Writ Petition filed by the first respondent Union was dismissed on the ground that they have to raise only a regular Industrial dispute under the I.D. Act, 1947, the members of the first respondent-Union have no any manner of right to disrupt the running of the retail outlet of BPCL. It was further argued that the third respondent has taken over the possession of the said retail outlet and to run the same without any interference from the members of the first respondent Union, interim injunction already granted on 7.8.2007 has to be made absolute till the disposal of the suit.

7. The learned counsel for the third respondent has submitted that the 59 workmen, who have been employed by the second respondent, are unknown and unreliable to the third respondent and that when the turnover in the retail outlet fetches in lakhs, the third respondent has to engage his own workmen well known to him and therefore, the members of the first respondent have no any manner of right to claim employment under the third respondent.

8. Contending that the members of the first respondent Union are direct employees of the BPCL, Mr. T.V. Ramanujam, learned senior counsel for the first respondent-Union has submitted that when the fourth respondent conciliation officer has seized up the matter, there cannot be any intervention by the civil Court. It was further submitted that only on the strength of the interim order, the workmen have been prevented from entering into the premises and the third respondent was put in possession of the retail outlet. The learned senior counsel further argued that after the conciliation officer has passed an order on 1.8.2007 advising the applicant and the second respondent to desist from altering any service condition of the members of the first respondent Union during the pendency of conciliation proceedings, the BPCL has obtained interim injunction and in violation of the directions given by the fourth respondent taken advantage of the interim order retrenched the members of the first respondent Union.

9. In the light of the rival contentions, the main points falling for consideration are:

(a) Whether the BPCL has made out a prima faciecase for granting temporary injunction and

(b) When conciliation proceedings are pending, whether the BPCL is justified in approaching the civil Court.

10. The grant of refusal of a temporary injunction is subject to the following principles:

(i) Prima faciecase of plaintiffs legal right

(ii) balance of convenience in his favour;

(iii) whether he would suffer irreparable injury if injunction is not granted.

11. These conditions have to be satisfied and proof of any of them is not by itself sufficient to obtain a temporary injunction. Prima faciecase means that there exists a strong case probability that the petitioner has an ultimate chance of success in the suit. Balance of convenience is the principle by which the Court weighs and considers the mischief or inconvenience to either side.

12. Simply because there is a fair question for trial it does not follow that an injunction should be issued. In considering whether the plaintiff has a prima faciecase, the Court is not expected to pre-judge the case on its merits. It has only to see whether there are any apparent defects which would cause the claim to fail.

13. While considering the question of prima faciecase what the Court is required to see is whether there is a fair question involved in the suit for decision and it will suffice if it is found that the plaintiff has a strong probability of ultimate success. All that the plaintiff is required to show is that he has a fair and serious question to be tried.

14. When the discontinuance of the members of the first respondent Union is under challenge before the conciliation officer by raising an industrial dispute and the conciliation proceedings are pending, it has to be seen whether the BPCL has shown a prima faciecase to grant temporary injunction.

15. The second respondent has entered into a Labour Contract Agreement with the BPCL on 1.8.2004 for running BPCL retail outlet at Mogappair. The agreement delineates the general framework of the method of operating the BPCL retail outlet.

16. Laying emphasis upon Clause 18 of the agreement, the learned counsel for the applicant/plaintiff has submitted that in respect of the staff employed by the second respondent, they will have no claim whatsoever for employment under the BPCL.

Clause 18 reads as follows:

18. Upon the termination of this agreement the staff employed by the LABOUR CONTRACTOR will have no claim whatsoever for employment temporary or permanent of the company. All dues payable to the staff/employed by the LABOUR CONTRACTOR /will be settled by the himself and no claim of such staff shall be entertained by the company.

17. It was submitted that the workmen employed by the second respondent/labour contractor could have no claim or semblance of right to claim employment or permanency under the BPCL and that they have no right to interfere with the functioning of the BPCL retail outlet. It was further submitted that when the BPCL has been registered as a principal employer, the workmen employed by the contractor cannot be the workmen of the BPCL. Reliance was placed upon Workman of the Food Corporation of India v. Food Corporation of India 1985-II-LLJ-4.

18. On behalf of the first respondent Union, Mr. T.V. Ramanujam, learned senior counsel has submitted that the workmen concerned are casual employees of the BPCL and that some of the workmen concerned with the dispute have been working since 1995. It was further argued that as the workmen concerned fall within the meaning of Section 2(s) of the I.D. Act and when the conciliation proceedings are pending before the conciliation officer, the said 59 workmen concerned with the dispute are entitled for protection under Section 33 of the I.D. Act and the same cannot be watered down by approaching the civil Court.

19. In support of his contention, the learned senior counsel placed reliance upon the documents, which are available in the typed set, namely, (a) Cash Collection Register, Attendance Register and Shift Schedule (page 34 of the typed set); (b) Bonus statement for the years 2004-2005 and 2005-2006 (pages 1 and 5 of the additional typed set); (c) List of employees (page 7 of the additional typed set).

20. Having regard to the nature of dispute and the pendency of the matter before the fourth respondent-conciliation officer, I do not propose to go into the question of status of the workmen, who were discontinued from employment. Suffice it to note that the fourth respondent-Assistant Commissioner of Labour has seized up the matter. As noted earlier, the first respondent Union has raised the Industrial dispute in respect of the employment of 59 workmen working under COCO Manager, Mogappair, seeking a direction to the management of BPCL not to terminate the service of the 59 workmen from 1.8.2007 onwards pending conciliation proceedings. The fourth respondent has also advised the BPCL not to alter any service condition of the workmen during the pendency of the conciliation proceedings before the fourth respondent. The order, dated 1.8.2007 reads as under:

In this connection, I am to draw your attention under Section 33 as enunciated under I.D. Act, 1947. As in the case of the union. Section 33 casts upon the employer not to alter any service condition during the pendency of conciliation proceedings before the Assistant Labour Commissioner (C), Chennai. You are therefore, advised to desist from taking any such action till the matter is pending before the Conciliation Officer. Further, in the interest of industry, I am to reiterate to you not to precipitate the issue during the pendency of conciliation proceedings.

21. Section 33 of the Industrial Dispute Act imposes certain obligations on the employer during the pendency of the conciliation proceedings that not to alter the service conditions of workmen or to discharge or to dismiss from service as against the contractual provisions of law governing such service.

22. When the conciliation officer has advised the BPCL to desist from altering service conditions of the workmen, the only way of getting out of the ban for the employer is to approach the authority before whom the dispute is pending seeking his permission for the proposed alteration. The first respondent-Union has raised the dispute that 59 workmen are casual employees of BPCL. Whether they are casual employees or not could be determined only by the appropriate forum under the I.D. Act, When the matter was so pending before the fourth respondent conciliation officer, the BPCL could not have altered the service conditions of members of the first respondent Union. In other words, in view of the pendency of the conciliation proceedings before the fourth respondent, the BPCL should not have prevented the members of the first respondent Union from entering into the premises or staging demonstration. But it appears that on the strength of the interim order of injunction, the third respondent was put in possession and the members of the first respondent-Union were restrained from entering into the premises. In other words, what could not be achieved directly, seem to have been achieved indirectly on the strength of the interim order. That apart, by the grant of the interim injunction, the members of the first respondent Union would also be subjected to serious prejudice as they are prevented from putting forth their claim before the appropriate forum under the I.D. Act.

23. The learned counsel for the BPCL has submitted that the members of the first respondent-Union were employed under the second respondent and their employment came to an end when the labour contract agreement of the second respondent expired and that the 59 workmen have no claim for employment and therefore, the BPCL is justified in filing the suit to restrain them from interfering with the functioning of the retail outlet. By a perusal of the bonus statement, it is seen that some of the workmen have been working in the retail outlet, even from the year 1996. For example, one Jambulingam joined duty on 1.7.1996 as Manager. One D. Kumaraswamy joined as DSM on 6.6.1999. Several of the workmen joined duty between 2001-2004 much prior to the labour contract agreement between the BPCL and the second respondent. When most of the employees were employed under the BPCL even from the year 1999, there is a serious question regarding their status to be resolved in the forums of the I.D. Act. In my considered view, the applicant/plaintiff ought to have worked out its remedy before the appropriate forums under the I.D. Act and that the applicant/plaintiff is not justified in filing the civil suit so hurriedly before this Court.

24. The applicant has sought for interim injunction on the basis of the allegation that the members of the first respondent Union have obstructed the applicant and the third respondent from carrying on their legitimate business. Such serious allegation is not supported by any materials except the receipt issued by D3, J.J. Nagar Police Station for receiving the complaint. No other materials have been produced to show that the first respondent-Union was indulging in demonstrations in a violent manner.

25. Contending that when the dispute amounts to industrial dispute, adjudication of the same can only be done by the forums under the I.D. Act, and therefore, the filing of the suit seeking for permanent injunction and for any other relief is not maintainable. The learned senior counsel Mr. T.V. Ramanujam has placed his reliance upon Bharat Petroleum Corporation Ltd. v. Petroleum Employees Union, Mumbai and Another Bharat Petroleum Corporation Ltd. v. Petroleum Employees Union, Mumbai and Another Bharat Petroleum Corporation Ltd. v. Petroleum Employees Union, Mumbai and Another 2001 (2) LLN 253, wherein the Apex Court discussed the decisions in Dhulabai v. State of Madhya Pradesh AIR 1969 SC 78 [LQ/SC/1968/102] , Premier Automobiles Ltd v. Kamlakar Shantaram Wadke AIR 1975 SC 2238 [LQ/SC/1975/305] : 1975-II-LLJ-445 : 1976 (1) LLN 1 [LQ/SC/1975/305] ; and Rajasthan State Road Transport Corporation v. Krishna Kant AIR 1995 SC 1715 [LQ/SC/1995/618] : (1995) 5 SCC 75 [LQ/SC/1995/618] : 1995-II-LLJ-728 : 1995 (2) LLN 271. [LQ/SC/1995/618] In Rajasthan State Road Transport Corporation v. Krishna Kant ( supra), the Supreme Court considered the previous judgments, particularly its judgment in Premier Automobiles Ltd v. Kamlakar Shantaram Wadke ( supra) and finally laid down the law in the form of propositions. Following such propositions, in Bharat Petroleum Corporation Ltd. v. Petroleum Employees Union, Mumbai and Another Bharat Petroleum Corporation Ltd. v. Petroleum Employees Union, Mumbai and Another Bharat Petroleum Corporation Ltd. v. Petroleum Employees Union, Mumbai and Another ( supra) the Apex Court has held as follows:

23..In proposition (2) ( vide supra), the Supreme Court clearly ruled out resort to a civil suit in such a case, and pointed that where the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the said Act. We will assume that these are practical difficulties in obtaining preventive injunction from the Tribunal. Nonetheless, as pointed out both in ( supra), and in ( supra), if the obligation or right is one not available in common law, or under the general law of contract, but created under a specific statute then the forum under the statute ought to be approached, however inconvenient, impracticable or cumbersome the procedure prescribed under the statute is. in other words, recourse to litigation before a civil Court is firmly barred.

26. With the emergence of the organised labour particularly in public undertakings and public utility service the old balance of economic power between the management and the workmen has undergone a qualitative change. Strike is a legitimate and unavoidable weapon in the hands of the labour. When strike/demonstration is wrongful or illegal keeping in view the provisions of the I.D. Act. it may invite consequences under the provisions of the I.D. Act or other Acts. But the same does not provide basis for civil action so as to restrain the workmen from proceeding on strike. It may be that the status of the members of the first respondent Union is in dispute. When such dispute is pending before the conciliation officer, it cannot be concluded that the BPCL was justified in approaching the civil Court.

27. The matter may be viewed from yet another angle. The competent authority under the I.D. Act or the Court is to determine the status of the workmen. When the fourth respondent-Assistant Commissioner of Labour advised the BPCL to desist from altering any service condition and the competent authority was about to conciliate the dispute, the BPCL is not justified in hurriedly filing the civil suit. It was stated that only after the interim order granted on 7.8.2007, the third respondent was put in possession of the retail outlet. The first respondent-Union has also alleged that the petrol bunk was closed and the board in the premises displayed that the petrol bunk is under renovation and therefore, the workmen were waiting with the hope that they would be permitted as soon as the renovation work is over. In the meantime, after obtaining the interim order, it appears that the third respondent had taken over the possession of the retail outlet. When the dispute relating to the status of 59 workmen and their discontinuance from employment has been seized up by the authorities concerned, I find no basis for civil action. Considering the balance of convenience, which is in favour of the first respondent-Union, in my considered view, the grant of injunction would seriously affect the rights of the members of the first respondent-Union in putting forth their case before the competent authority and also the continuance of interim injunction might foreclose the right of the first respondent-Union in pursuing the matter before the fourth respondent. On the other hand, the grant of temporary injunction, would enable the BPCL to resist any industrial dispute of the workmen under the guise of temporary injunction. The facts and circumstances of the case do not justify the continuance of the interim injunction already granted and the same is liable to be vacated.

For the foregoing reasons, while the application in O.A. No. 931 of 2007 is dismissed vacating the interim injunction, the application No. 6052 of 2007 is allowed. Both parties are at liberty to work out their remedies before the appropriate forum under the I.D. Act. It is made clear that the reasonings/findings in this order may not be construed as an expression of opinion on the merits of the case or the industrial dispute between the parties.