Bombay High Court
The Hitavada Press, Nagpur ... vs The Presiding Officer, Member ... on 30 June, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.1026 OF 2015
PETITIONER: The Hitavada Press, Wardha Road,
Nagpur, Through it's General
Manager.
-VERSUS-
RESPONDENTS: 1. The Presiding Officer, Member
Industrial Court, Nagpur.
2. The Hitavada Shramik Sangh,
Through its General Secretary, C/o
Shri K. G. Matale, 582, Nandaji
ig Nagar, Near Chitnispura Police
Chowki, Nagpur.
Shri M. G. Bhangde, Senior Advocate with Shri S. N. Tapadia, Advocate
for the petitioner.
Shri K. L. Dharmadhikari, Asstt. Government Pleader for respondent
No.1.
Shri N. U. Lokhande, Advocate for respondent No.2.
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CORAM: A.S. CHANDURKAR, J.
DATED: 30
th JUNE, 2016.
ORAL JUDGMENT :
1. Rule. Heard finally with the consent of the learned
Counsel for the parties.
2. The petitioner is aggrieved by the order passed below
Exhibit-20 by the learned Member, Industrial Court, Nagpur
thereby partly allowing the application for review and granting
permission to the respondent no.2 to inspect documents of which
production was disallowed. The petitioner has also challenged the
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subsequent order dated 7-1-2015 by which the application for
review/modification has been rejected.
3. Reference proceedings before the Industrial Court
were commenced to decide the claim made on behalf of the
respondent no.2 in the matter of demand for payment of bonus.
In these proceedings, the respondent no.2 filed an application
seeking directions to be issued to the petitioner for producing
certain documents on record. By order dated 3-4-2012 the learned
Member, Industrial Court, Nagpur rejected the said application.
The respondent no.2 thereafter moved an application below
Exhibit-20 seeking review of the aforesaid order. In the
application for review, an alternate prayer seeking grant of
permission to inspect the said documents by giving fifteen days
advance notice was made. While the prayer for review was
rejected, the alternate prayer came to be granted. Being aggrieved,
the petitioner moved an application for speaking to minutes and
the said application came to be rejected on 7-1-2015. Hence, this
writ petition.
4. Shri M. G. Bhangde, the learned Senior Counsel for the
petitioner submitted that the Industrial Court committed an error
in granting the application for inspection of the documents in
question. It was submitted that though an alternate prayer was
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made in the review application, once the Industrial Court found
that it had no jurisdiction to review its order there was no question
of granting the alternate prayer. It was submitted that under the
provisions of Rules 27 and 28 of the Industrial Disputes (Bombay)
Rules 1957, the procedure has been prescribed which was required
to be followed in the matter of discovery and inspection of
documents. He submitted that the procedure as laid down in the
Code of Civil Procedure, 1908 in that regard was required to be
followed However, without doing so, the Industrial Court granted
the alternate prayer for inspection of documents which was not in
accordance with law. He therefore submitted that the impugned
order was liable to be set aside.
5. Shri N. U. Lokhande, the learned Counsel for the
respondent no.2 supported the impugned order. According to him,
the Industrial Court was justified in the present facts in granting
inspection of the documents in question. According to him, this
direction was issued in exercise of powers under Rules 27 and 28
of the Bombay Rules. He submitted that the alternate prayer was
not objected to in the reply that was filed on behalf of the
petitioner. According to him, the impugned order did not cause
any prejudice to the petitioner nor were any of its rights violated.
He placed reliance upon the judgment of the Hon'ble Supreme
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Court in Workmen of Joint Steamer Companies v. Joint Steamer
Companies and another AIR 1963 SC 1710 as well as judgment of
the Delhi High Court in FAO/206/09 (Mr. M Sivasamy Vs. M/s
Vestergaard Frandsen A/S & Ors.). It was then submitted that there
was no procedure prescribed for moving an application for
speaking to minutes. According to him, the present writ petition
was filed on 19-1-2015 and thereafter the application below
Exhibit-41 for speaking to minutes came to be moved before the
Industrial Court. He submitted that such course was not
permissible. He, therefore, submitted that there was no case
made out to interfere in the writ petition.
6. I have heard the respective Counsel for the parties at
length and I have given due consideration to their respective
submissions.
7. It is not in dispute that initially the respondent no.2
had moved an application below Exhibit-12 seeking directions
against the petitioner to produce certain documents. This
application came to be rejected on 3-4-2012 by observing that the
documents in question were not relevant for adjudication of the
dispute. This order was sought to be reviewed by filing a separate
application. It is in this review application that an alternate prayer
for permission to inspect the said documents came to be made. It
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is necessary to note that the prayer for inspection does not find
place in the application which was moved below Exhibit-12. The
only prayer made in the application below Exhibit-12 was in the
matter of production of certain documents. The review application,
therefore, could not contain a prayer which was not made in the
initial application on which the order passed was sought to be
reviewed. The only prayer that could have been made in the
review application was in the context that the order of which the
review was sought. The effect of entertaining a fresh prayer made
in the review application which was not made in the initial
application would be that the Court would be required to exercise
jurisdiction which was distinct from review jurisdiction. The
learned Member of the Industrial Court while passing the order
below Exhibit-20 having held that the review application was not
maintainable was not justified in further proceeding to grant the
alternate prayer.
8. It is necessary to note that the prayer with regard to
inspection of documents can be sought by relying upon Rules 27
and 28 of the Bombay Rules. If such prayer was intended to be
made, the same could have been made by following the prescribed
procedure. Such relief could not have been sought as an alternate
prayer in the review application especially when such prayer was
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absent in the initial application moved by the respondent no.2.
There cannot be any dispute with the law laid down by the Hon'ble
Supreme Court in Workmen of Joint Steamer Company (supra) or
for that matter the law laid down by the Delhi High Court. In the
present case, the question is about the jurisdiction of the Industrial
Court to grant an alternate prayer in the review application. Once
the review application was found to be not tenable, the Industrial
Court ought to have rejected the application in question. The
submission that there was no power with the Industrial Court to
entertain a note for speaking to minutes deserves to be accepted
on the ground that no such power has been pointed out in that
regard. In any event, the order dated 7-11-2014 cannot be
sustained for the reason that it travels beyond the prayer for
review of the order dated 3-4-2012.
9. In view of aforesaid, the following order is passed:
(1) The order below Exhibit-20 dated 7-11-2014 as well as
the subsequent order passed below Exhibit-38 dated 7-1-2015 is
set aside. The present order, however, would not preclude the
respondent no.2 from applying for inspection of the documents in
question in accordance with law. If such application is
independently moved, the same shall be considered in accordance
with law.
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(2) Rule is made absolute in aforesaid terms with no order
as to costs.
JUDGE
//MULEY//
