Bombay High Court
The Hitvada Press, Nagpur Through ... vs The Presiding Officer, ... 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.5902 OF 2014
PETITIONER: The Hitavada Press, Wardha Road,
Nagpur, Through it's General
Manager.
-VERSUS-
RESPONDENTS: 1. The Presiding Officer, Industrial
Court, Nagpur.
2. The Hitavada Shramik Sangh,
Through its General Secretary, C/o
Shri K. G. Matole, 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. As this writ petition has been clubbed alongwith Writ
Petition No.1026/2015, the same is being decided alongwith said
writ petition.
2. The challenge in the present writ petition is to the
order passed by the Industrial Court below Exhibit-25 thereby
allowing the application moved by the respondent no.2 for
production of documents. A dispute with regard to grant of bonus
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@ 20% to the members of the respondent no.2 Union for the year
2008-09 has been referred to for adjudication to the Industrial
Court. According to the respondent no.2, this claim of bonus is
claimed by relying upon the aspect of customary benefits.
According to the respondent no.2, the members of its Union were
entitled to annual bonus at a rate higher than 8.33% per annum
considering the profits earned by the petitioner. On that basis a
claim for bonus for the year 2008-2009 @ 20% was made. In the
written statement filed by the petitioner, a stand has been taken
that 20% percent bonus had already been paid and hence, the
reference was liable to be rejected. In these proceedings, the
respondent no.2 moved an application below Exhibit-25 seeking
production of salary registers containing the entry of bonus from
the financial year 1990-1991 till 2008-2009. Other documents
sought were audited balance- sheets and profit and loss accounts
from the year 1997-1998 till 2007-2008. In reply, the petitioner
took the stand that 20% bonus had already been paid in the year
2008-2009 and therefore, production of the documents as sought
was not necessary. According to the petitioner, the documents in
question had no relevance with the dispute that had been referred
for adjudication. A further stand was taken that as 20% bonus was
paid, the reference itself ought to be rejected. The learned Member
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of the Industrial Court by the impugned order allowed the
application by observing that the documents in question were
necessary for proper adjudication of the reference. The salary
registers from 2005-2006 till 2008-2009 alongwith audited
balance-sheet and profit and loss accounts from 1997-1998 to
2008-2009 were directed to be produced. Being aggrieved, the
petitioner has approached this Court.
3. Shri M. G. Bhangde, the learned Senior Counsel for the
petitioner submitted that the Industrial Court was not justified in
directing production of the documents in question. He submitted
that the specific stand taken by the petitioner in its reply to the
claim statement as well as in the reply to the application in
question had not been considered. According to him, when it was
the specific stand of the petitioner that the members opf the
respondent no.2 Union had been paid the amount of bonus
exceeding 20%, the demand for paying 20% bonus had been duly
satisfied and the reference itself did not survive. He referred to the
averments made in para 8 of the statement of claim as well as in
para 9 of the written notes that were filed on behalf of the
petitioner. According to him, maximum amount of bonus had
been paid to the employees and the same was more than 20% and
therefore, when this specific stand was raised, the same was
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required to be adjudicated before directing production of the said
documents. He then referred to the provisions of Order XI of the
Code of Civil Procedure, 1908 (for short, the Code) and submitted
that the procedure as prescribed was required to be followed in
view of provisions of Rule 28 of the Industrial Disputes (Bombay)
Rules 1957. Without first making a prayer for discovery of the
documents in question, their production could not be sought.
Reference was also made to a contradictory order passed on a
similar application in another reference between the same parties.
He, therefore, submitted that the impugned order was liable to be
set aside.
4. Shri N. U. Lokhande, the learned Counsel for the
respondent no.2 supported the impugned order. According to him,
there was a serious dispute with regard to the quantum of bonus
and hence, the reference had been made. He submitted that it was
the specific case of the respondent no.2 that a maximum amount
of Rs.15,000/- had been shown to be paid as bonus and the same
did not amount to 20% bonus. He submitted that the claim of the
petitioner that 20% bonus had been paid was in dispute and this
aspect was required to be finally adjudicated. He then submitted
that in the application for production of documents necessary
details had been furnished and as the basis for seeking relief was
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related to grant of customary bonus, the production of relevant
documents for the previous years were necessary. According to
him, it was not necessary to enter into the merits of the stand
taken by the petitioner that 20% bonus had already been paid.
This was the dispute for reference which had to be decided after
considering the evidence on record. In support of his submissions,
the learned Counsel placed reliance on the judgment of learned
Single Judge in U.B.S. Publishers and Distributors Ltd. and
Industrial Workers Union and another 1997 (76) FLR 639 and the
decision in India Foils Ltd. v. The 5th Industrial Tribunal W.B. and
others AIR 1972 Calcutta 308. According to him, the Industrial
Court having exercised its discretion by directing production of the
documents in question, the same did not call for any interference
in writ jurisdiction.
5. I have given due consideration to the respective
submissions and I have gone through the documents filed on
record.
6. The dispute for reference is with regard to payment of
bonus ex gratia at 20% for the year 2008-2009. In the statement
of claim the basis of entitlement to 20% bonus has been made. A
reference has been also made with regard to the bonus paid in the
earlier years. The stand of the petitioner is that as 20% bonus was
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already paid, the reference did not survive. The Industrial Court
while allowing the application in question observed that as the
basis for claim to bonus also involved customary bonus, with a
view to observe the practice followed, the salary registers of the
three previous years were required to be produced. Though in the
application for permission to produce the document, it was prayed
that the salary registers from the year 1990-1991 should be
directed to be produced, the Industrial Court restricted said prayer
with regard to the three previous years from 2005-2006 onwards.
It has then observed that existence of such document or its custody
had not been denied by the petitioner. It has also noted the stand
of the petitioner that 20% bonus had already been paid to the
members of the respondent no.2 - Union.
7. The statement made on behalf of the petitioner that its
specific stand that 20% bonus was already paid was not taken into
consideration by the Industrial Court cannot be accepted. At the
stage of considering the prayer for production of document what is
required to be taken into account is the relevancy of such
documents for the purposes of adjudication of the reference. After
perusal of the application for production of documents and after
considering the relevancy thereof, if it is found that the Court has
ordered production of such documents which it finds relevant for
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adjudicating the dispute, this exercise of discretion cannot be
termed as unwarranted. While it is the case of the respondent
no.2 that the bonus has been paid @8.33 % with maximum
amount of Rs.15,000/- which does not amount to 20% bonus, it is
the specific stand of the petitioner that 20% bonus has already
been paid. This precise dispute between the parties is required to
be adjudicated while deciding the reference and in the present
facts I do not find that the Industrial Court committed any error in
refusing to enter into that aspect of the matter in detail at this
stage. It has been noted in the impugned order that it was the
stand of the petitioner that 20% bouns had already been paid.
If ultimately on consideration of the evidence on record, it is so
found that the petitioner has proved its defence, the consequence
of rejection of the reference would follow. However, at the stage
of considering the application for production of documents, in the
present facts, I do not find that the Industrial Court erred in not
recording any specific finding on said aspect.
Moreover, the custody of the documents in question
has not been denied by he petitioner. In this backdrop, I do not
find that the Industrial Court committed any breach of the
provisions of Order XI of the Code while passing the impugned
order. As observed by learned Senior Judge in U.B.S. Publishers
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and Distributors Ltd. (supra), if the Industrial Court has applied its
mind to the dispute before it and has found production of such
documents necessary, it would be an exercise within its
jurisdiction.
8. In so far as the submission that two contradictory
orders had been passed in the matter of production of documents,
the same by itself cannot be the basis for setting aside the
impugned order. Though in a reference between the same parties
the application for production of documents may have been
rejected in another reference, that by itself cannot lead to the
conclusion that in the present facts also the Industrial Court ought
to have rejected the present application.
9. In view of aforesaid, I do not find any case for
interference has been made out. The writ petition is therefore
dismissed with no order as to costs.
JUDGE
//MULEY//
