Judgment:
R. Gururajan, J.
1. Appellant/plaintiff is a trade union representing the workmen of Lokashikshana Trust (hereinafter referred to as 'the Trust'). They have filed a suit in O.S. No. 2802 of 1999 questioning the continuation of one Sri K. Shama Rao in service even after superannuation. They have also questioned the mismanagement and unfair practices adopted by the respondents 1 and 2. Plaintiff/appellant states that this Court in its order dated 21-1-1999 passed in W.P. No. 7188 of 1998 and its order dated 30-10-1998 passed in R.F.A. No. 331 of 1999 granted permission to the plaintiff to institute the present suit. The Lokashikshana Trust is a public charitable institution and the second defendant is its managing editor. Defendants 4 to 8 are its present trustees. The Trust is running newspaper called Samyukta Karnataka, weekly magazine called Kar-maveera, and monthly journal called Kasturi. The employees of the Trust are covered under Industrial Employment Standing Orders Act. The age of retirement of the employees is 58 years, The second respondent is continuing in service even after superannuation and is mismanaging the Trust. W.P. No. 7188 of 1998 was filed before this Court. This Court directed the plaintiff/appellant to move other alternative forum. The appellant moved an application before the Charity Commissioner and the said application came to be dismissed. Against this order plaintiff sought a declaratory decree. I.A. No. II is an application filed by the plaintiff/appellant seeking an order of temporary injunction against the second defendant from functioning as Secretary and from operating the Bank accounts of the first defendant. I.A. No. III is an interim application restraining the respondent 2 from furnishing Bank accounts and income and expenditure statement of moveable and immoveable assets of the first respondent-Trust.
2. Respondents/defendants filed the statement of objections and they have questioned the right of the plaintiff in maintaining the suit and also in maintaining the application. The High Court had dismissed the writ petition on an earlier occasion. It is further contended that a scheme has been framed in terms of the orders of the High Court for appointment of a Secretary in R.F.A. No. 331 of 1984 and there is no agerestrictions for the Secretary. It is also the contention of the respondents/defendants that the suit is not a remedy and the remedy if at all is under the Public Trust Act.
3. The learned Trial Judge after considering the material on record and the arguments advanced on either side, rejected the two applications filed by the plaintiff/appellant. It is this order that is challenged before me in these appeals.
4. I have heard the learned Counsel for the appellant and have gone through the material on record. Appellant/plaintiff is admittedly a registered trade union. It has sought for certain reliefs against the second defendant. The Trial Judge, after noticing Section 50 of the Bombay Trust Act, is of the opinion that a suit in the present form is not maintainable. It is an admitted fact that the present Trust is covered by the provisions of the Bombay Trust Act. Sections 50 and 51 of the Act provides for a suit by or against relating to public Trusts or trustees or others. It further provides for a consent from the Charity Commissioner for maintaining a suit by or against relating to public Trusts or trustees or others. The provision reads as under:
(a) an order for the recovery of the possession of such property or proceeds thereof;
(b) the removal of any trustee or manager;
(c) the appointment of a new trustee or manager;
(cc) vesting any property in a trustee;
(d) a direction for taking accounts and making certain enquiries;
(e) a declaration as to what proportion of the Trust property or of the interest therein shall be allocated to any particular object of the Trust;
(f) a direction authorising the whole or any part of the Trust property to be let, sold, mortgaged or exchanged;
(g) the settlement of a scheme or variations or alterations in a scheme already settled; or
(h) granting such further or other relief as the nature of the case may require.
In the case on hand admittedly the plaintiff/appellant wants an injunction retraining the second defendant-Secretary to be removed and for other reliefs. A reading of the plaint averments and the reliefs prima facie give an impression that a consent is necessary in terms of Sections 60 and 51 of the Public Trust Act. Admittedly, though the plaintiff approached the Charity Commissioner for a consent, the said consent has not been given by the Commissioner to the plaintiff. In the circumstances, it cannot be said that the Trial Judge has committed any error as sought to be made out before me in these appeals in the absence of any consent to file a suit against the defendants. The judgment relied on by the learned Counsel for the appellant in Kar Vidyavardhak Sangha and Others v Gopal Ramachandra Pandit andAnother may not apply to the facts of this case. In that case the dispute involved was with regard to a General Body of the Trust. That was not a case like the present one where the plaintiff is seeking for removal of the Secretary who is continuing in service even after superannuation as per Standing Orders. I am of the opinion that a prima facie case is not made out in the absence of no consent.
Appellant relies on an order passed by this Court in W.P. No. 7188 of 1998.1 have gone through the order of this Court. In fact the same relief was sought for in this Court in the writ petition and this Court rejected the petition with an observation to have recourse to any remedy under the Bombay Public Trust Act or Rules thereunder, if available. The Court has also stated that the appellant can make an application to the Charity Commissioner, if such application is maintainable. The High Court, in my opinion, as rightly held by the Trial Judge, cannot be said to have granted a blanket permission to the appellant to file the present suit as sought to me made out before me. Therefore this contention is also not available to the appellant on the facts of this case.
5. Insofar as the locus and maintainability of the suit is concerned learned Trial Judge has noticed that the two functionaries of the Trust are none other than the dismissed employees of the Trust and their case is pending before the Labour Court. In addition, the Trial Judge has noticed the scheme of the Act particularly with regard to the creation of a post of the Secretary. After noticing these aspects of the matter Trial Judge has ruled that prima facie on the facts of this case and in the light of Clause 9 of the scheme in the matter of appointment of a Secretary it cannot be said that the Industrial Employees Standing Orders Act is applicable to the post of a Secretary. When the very issue on which a remedy is sought for is doubtful, no injunction can be granted by way of interim measure. When there is a serious doubt with regard to the maintainability of the suit the Courts cannot grant injunction. Therefore the learned Judge is right in holding that no prima facie case is made out in the case on hand.
Moreover, I am also of the view that a continuation of a Manager/Secretary or any managerial personnel is as per the service conditions of that official. A trade union while questioning the continuation of any such managerial personnel has to show to the Court that such continuation is opposed to any provision of law or for any other substantial reason. Since the same is not shown to be so in this case, the appellant cannot have any injunction whatsoever particularly at the instance of two dismissed employees claiming to be the representatives of the union.
6. Appeal stands rejected without being admitted. It is made clear that any observations made during the course of this order is only for the purpose of consideration of interim applications.