Suhas Ganpat Kalzunkar vs Bayer (India) Ltd. And Anr.
2003 Latest Caselaw 973 Bom

JUDGMENT

D.Y. chandrachud, J.

1. Rule, returnable forthwith. Learned counsel appearing on behalf of the First Respondent waives service.

2. The petitioner has instituted a complaint under Items 5, 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 ("the Act"). The complaint has been instituted by the petitioner on behalf of himself and 29 other employees. A grievance is made in paragraph 4 of the Complaint in respect of a Scheme for Voluntary Retirement floated by the First Respondent in the year 1995. In paragraph 4, it has been averred that an atmosphere was created so as to lead to fear and apprehension in the minds of the workmen regarding closure of the Department. The Petitioner has averred that on March 27, 1995, he had submitted an application for voluntary retirement by filling up the prescribed form, but that he changed his mind on March 28, 1995. The contention of the petitioner is that: the General Manager of the employer stated that he would be informed subsequently, but that eventually no forms were allowed to be withdrawn. In paragraph 7(i) the grievance is that the Department where the petitioner and other workmen were working has not been closed at all and is still being run. The grievance of the petitioner is also that all the dues of the workmen have not been paid. Among the reliefs in the complaint is a declaration that the First Respondent had engaged in an unfair labour practice under Items 5, 9 and 10 of Schedule IV and for a direction to the First Respondent to allow the complainant and other workmen to work in their original place until they attain the age of retirement. In the alternative, there is a prayer that the Petitioner be given pecuniary benefits as mentioned in the complaint.

3. The complaint was instituted on October 28, 1999. Undoubtedly, one of the main defences of the First Respondent is that the complaint itself is barred by limitation and that it has not been instituted within the period of limitation prescribed by Section 28(i) of the Act. An application for amendment of the complaint was filed before the Industrial Court which has been dismissed by the Industrial Court Holding that if the Petitioner desires to challenge the legality and validity of the Voluntary Retirement Scheme, 1994-95, he would be at liberty to file a separate complaint but, that no such prayer can be granted by way of an amendment.

4. Having perused the complaint filed before the Industrial Court, a gist of which is already extracted, it would be clear that the grievance of the petitioner is in respect of the Scheme of voluntary retirement. As already noted, in paragraph 7(i) of the Complaint, it has been contended that the action of the First Respondent is illegal and mala fide inter alia on the ground that the Department where the Petitioner was working has not been closed. Counsel appearing on behalf of the First Respondent contests the correctness of the allegation made by the Petitioner. Counsel submits that the Scheme has been duly approved by the Income Tax Department and under the terms of the approval the First Respondent had to close down the department where the workmen were working. This again is a matter which goes to the merits of the defence. The First Respondent would be entitled to urge all the defences which it has to the maintainability of the complaint and the correctness of the allegations made in the complaint. At this stage, requiring the Petitioner to file a separate complaint would only lead to a multiplicity of the proceedings. In a recent judgment in Sampat Kumar v. Ayyakannu, , the Supreme Court has reiterated that pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after the conclusion thereof. In the former case generally it can be assumed that the defendant is not prejudiced because he will have a full opportunity of meeting the case of the plaintiff as amended. The question of delay in moving an application for amendment, ruled the Supreme Court, should be decided not by calculating the period from the date of the institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. The Supreme Court held that in an appropriate case, the Court may direct that the amendment shall not relate back to the date of the institution of the original proceedings, but shall be deemed to have been brought before the Court on the date on which the application seeking the amendment was filed.

5. In the present case, particularly in paragraph 9(L) of the proposed amendment, it has been averred that it was in February 1999 that the Complainant came to know that the posts have not been abolished. In paragraphs 9(M), (N) and (O) legal submissions are sought to be placed on record. Prior thereto, in paragraph 9(A) to 9(K) certain factual averments are sought to be incorporated. Having regard to the well-settled position in law, there is no reason why the amendment should not be allowed. The trial is still to take place and the First Respondent would not be prejudiced by an order merely allowing the amendment. Allowing of the amendment by the Court cannot be construed as amounting to an acceptance of the correctness of any of the allegations. It would be open to the Respondent to controvert all the allegations made in the complaint even as amended.

6. In the prayers which are proposed to be added in the complaint, the Voluntary Retirement Scheme of 1994-95 is sought to be challenged. In my opinion, it would be necessary to restrict the ambit of the prayers sought and brought in by way of amendment only to the Petitioner and the other workmen on whose behalf the complaint is filed before the Industrial Court. There is merit in the contention of counsel for the First Respondent that the Scheme for voluntary retirement which is stated to have been accepted by 450 workmen should not be allowed to be reopened in general at this stage. Consequently, while allowing the amendment in the terms as prayed, it would be necessary to subject this to two clarificatory conditions:

(i) The question of limitation and of the maintainability of the complaint is expressly kept open. The proposed amendment shall in the present case not relate back to the institution of the original complaint, but only to the date on which the application for amendment was instituted before the Industrial Court.

(ii) The prayer in so far as the scheme for voluntary retirement is concerned, shall relate not to the legality and validity of the Scheme in general, but shall only be confined to the Petitioner and the other workmen on whose behalf the Complaint is filed.

7. Subject to the aforesaid clarification the application for the amendment of the complaint shall stand allowed. All the rights and contentions of parties including the defences of the Respondent to the maintainability of the complaint are kept open. The writ Petition is disposed of.

8. Parties be given copies of this order duly authenticated by the Sheristedar/Personal Secretary of this Court.