Mr. Prodyot Kumar Banerjee, J. - (1.) This rule is directed against an order passed by the learned Judge, City Civil Court, Calcutta, holding that the suit filed by the opposite party is maintainable.
(2.) Mr. Roy Mukherjee on behalf of the petitioner contended, inter - alia, that the suit is not maintainable as the prayer is for the enforcement of a contract of personal service by the plaintiffs. The opposite parties, a trade union and a workman filed the suit in the City Civil Court, Calcutta alleging inter alia, that the petitioner company's work, administration and business were divided into 3 divisions, namely, Soap's division, Toilets preparation divisions and Foods division. In 1966 the management of the defendant company on the plea of reorganisation wrongfully and without complying with the mandatory provisions of law decided to introduce a system of two divisional working instead of the then prevailing three - divisional working. The proposed two divisions were the main lines divisions and speciality lines division. The said proposed changes by introduction of the two divisional systems adversely affected the conditions of service of the employees of the defendant company. Against the said two divisional system an industrial dispute cropped up on the issue whether the said changes introduced by the management in the name of reorganisation were justified and the matter was referred to the 3rd Industrial Tribunal by the Government of West Bengal. In the said Reference, it is alleged, seven applications were filed by seven workmen under section 33A of the Industrial Disputes Act which were disposed of by the Third Industrial Tribunal, West Bengal by an Award dated 23rd March, 1967. Thereafter the company appealed before the Supreme Court of India against the said Award given by the Third Industrial Tribunal, West Bengal on 23rd March, 1967 and those appeals are still pending. In the said appeals pending before the Supreme Court, the company gave the following undertakings:- a) The number of employees in any category affected by the Reorganisation has not been and will not be reduced during the pendency of the appeals before the Honourable Supreme Court of India ; b) Each workmen will be gainfully employed and the terms and conditions for each workmen will remain the same as on the pre-organisation basis ; c) The management of the defendant company will not contend before any Court or Tribunal that the Union is stopped from challenging the merits of the Reorganisation on the ground of commencement of work by non - working employees or Reorganised basis". It is stated that in view of the undertaking given by the company, the company must follow the undertaking given before the Supreme Court and as such they cannot change the conditions of the service of the employees to their detriment. On 5th January, 1971 the management of the defendant company put into circulation a cyclostyled manual of instructions along with various cyclostyled and/or printed forms, and called upon the workers and employees to act according to the said instructions and forms on and from 12th March, 1971. In the said manual of instructions, the management of the defendant company has given the following reasons for introduction of the instructions and forms in the working of various departments of the company:- a) To introduce standard procedure between all dispatch points, factories, depots and C. & F. S. ; b) To fall in line in the company's Information Reporting Practises which are now by private centres ; c) To improve control over inventory and damaged stocks". It is alleged that the introduction of these forms will change the condition of service of the employees to their detriment and increase the workload of each employee of the Departments and/ or Centres affected by the proposed scheme. It is alleged that this change was introduced with the ulterior object of increasing the work load of the employees and ultimately with the illegal and ulterior object of dispensing with human agency by substituting the same with Electronic Computers by reducing, if not totally eliminating, the employment potentiality of and in the defendant company. On the basis of these allegations, the plaintiffs claimed relief in the following terms:- "a) Perpetual injunction restraining the defendant company, is servants and agents from giving effect to or acting upon the new manual of instructions and/ or directions in respect of the proposed changes as mentioned in the (Packed Stock and accounting, new forms) and the Manual of Instructions and/ or the new printed Forms issued by and/ or under the authority of the defendant company on the 22nd January, 1971 ; b) Perpetual injunction restraining the defendant company its servants and agents from, in any manner, interfering with the service conditions prevailing at the time when the solemn undertaking pleaded in paragraph 3 of the plaint was given on behalf of the defendant company before the Honourable Supreme Court of India ; c) Further injunction in such other terms and to such other effect as may be deemed necessary in the facts and circumstances of this case ; d) Costs." Affidavit has been filed by the opposite parties, inter alia, stating that since the filing of the suit the said appeals were disposed of by the Supreme Court. After the determination of the appeals by the Supreme Court, the plaintiffs prayed for an amendment of the plaint which was allowed and by which paragraphs 3A, 3B, 3C and 5 were added. It is pleaded in the added paragraphs that even before the said undertakings to the Supreme Court, the company gave an assurance to the Union not to reduce the number of employees in any category or of any branch and further not to alter the terms and conditions of service of the workmen to their detriment. After the amendment, the facts remain that the opposite party's case was based on the assurance given before the Supreme Court as also the assurance given by the Company to the employees' Union that they will not alter the terms and conditions of the service of the workmen to their detriment.
(3.) On this pleading the petitioner contended that the suit is not maintainable as the suit is for the enforcement of the personal service. The opposite party however contended that this is not a case of enforcement of the personal service and the suit is maintainable. The learned Judge, City Civil Court, having held against the defendant, the petitioner Challenges the finding about the maintainability in the present proceeding.;