Rashtrasant Tukdoji Maharaj ... vs Chandan Bapurao Karwade And ...
2022 Latest Caselaw 4777 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   NAGPUR BENCH, NAGPUR.

                 WRIT PETITION NO. 6582 OF 2019

PETITIONERS :-         1. Rashtrasant Tukdoji Maharaj Technical and
                          Educational Society, Nagpur, Through its
                          President.

                       2. Adult Physically Handicapped Technical
                          Residential Shelter Workshop, Kumbhalkar
                          Bhavan, Nagpur
                          (Petitioners are on R.A.)

                           ...VERSUS...

RESPONDENTS :-         1. Mr.Chandan Bapurao Karwade, Aged :
                          Major, R/o Thaware Nagar, Kamgar Kalyan
                          Kendra, Jaripatka, Nagpur.

                       2. Mr. Rajesh Bharatlal Pande (Dead)
                          through his legal heirs.

                      2-A] Kiran Wd/o Rajesh Yadav, aged about 47
                           years,

                      2-B] Lavya S/o Rajesh Yadav, aged about 15
                           years,

                      2-C] Lakshya S/o Rajesh Yadav, Aged about 11
                           years,

                          Nos.2-B & 2-C minor through their legal
                          guardian mother i.e. respondent No.2-A.

                          All R/o. Qtr. No.7/8, V.H.B. Colony, Ring
                          Road, Near Tukdoji Putala Square,
                          Adiwasi Colony, Vishwakarma NAGAR, Ajni,
                          Nagpur-440003.




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                                    3. The District Social Welfare Officer, Zilla
                                       Parishad, Civil Lines, Nagpur.
                                       (All the respondents are on R.A.)

------------------------------------------------------------------------------------------------------
                      Mr. S. S. Ghate, counsel for the petitioners.
            Ms Kalpana Pathak, counsel for respondent Nos.1 and 2.
                       Mr.H.D.Dubey, AGP for respondent No.3.
------------------------------------------------------------------------------------------------------


                                         CORAM : MANISH PITALE, J.

DATE OF RESERVING THE JUDGMENT:                                    27.04.2022.
DATE OF PRONOUNCING THE JUDGMENT:                                  05.05.2022.



JUDGMENT

Heard.

2. Rule. Rule made returnable forthwith. Heard the writ petition

finally with the consent of the learned counsel appearing for the rival

parties.

3. By this writ petition, the petitioners have challenged order

dated 16/09/2019, passed by the Industrial Court at Nagpur, whereby an

application at Exhibit-30, seeking amendment of the memo of revision

petition has been rejected, on the ground that the Industrial Court while

exercising revisional jurisdiction under section 44 of the Maharashtra

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Recognition of Trade Unions & Prevention of Unfair Labour Practices Act,

1971 (hereinafter referred to as "MRTU & PULP Act") does not have the

power to permit amendment of the memo of revision petition.

4. The respondent Nos.1 and 2 filed complaint under the

provisions of the MRTU & PULP Act before the Labour Court contending

that their services were wrongly terminated by the petitioners, as there

was violation of sections 25F and 25G of the Industrial Disputes Act,

1947. The reliefs sought by respondent Nos.1 and 2 were opposed by the

petitioners, but by judgment and order dated 19/12/2007, the Labour

Court allowed the complaint and directed respondent Nos.1 and 2 to be

reinstated in service with full back wages and continuity of service.

Aggrieved by the judgment and order of the Labour Court, the petitioners

filed revision petition before the Industrial Court, wherein interim stay of

the order of the Labour Court was granted. Subsequently, by judgment

and order dated 02/05/2009, the Industrial Court allowed the revision

petition and set aside the order of the Labour Court. The respondent

Nos.1 and 2 challenged the said order of the Industrial Court by filing

Writ Petition No.4903 of 2009.

5. The said writ petition came up for final hearing before this

Court and by judgment and order dated 04/04/2019, the petition was

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partly allowed and the judgment and order dated 02/05/2009 of the

Industrial Court was set aside. The proceedings in the revision petition

were restored before the Industrial Court and the parties were directed to

appear before the Industrial Court on 02/05/2019. All contentions of the

parties on merits other than the jurisdictional aspect were kept open. This

was for the reason that the Industrial Court in the first instance had

allowed the revision petition of the petitioners on the ground that the

Labour Court had no jurisdiction to entertain the complaint filed by

respondent Nos.1 and 2.

6. After the said revision petition stood restored before the

Industrial Court, the petitioners filed the aforesaid application at Exhibit-

30, seeking amendment of the revision memo and permission to file

certain documents. By this application, the petitioners sought to bring on

record subsequent developments in the matter, in order to plead that with

passage of time and the events that had occurred during the pendency of

the proceedings before the Industrial Court and this Court, no posts were

available, wherein respondent Nos.1 and 2 could be accommodated, even

if the order of the Labour Court was to be upheld. The said application

was opposed on behalf of respondent Nos.1 and 2. It was contended on

behalf of respondent Nos.1 and 2 that there was no power available with

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the Industrial Court to allow such an amendment and further that the

petitioners could have placed the said subsequent events before this Court

during the pendency of the aforesaid Writ Petition No.4903 of 2009.

7. As noted above, by the impugned order dated 16/09/2019, the

Industrial Court dismissed the application, holding that there was no

power available with the Industrial Court, while considering the revision

petition, to grant amendment of the memo of revision petition, so as to

allow the amendment as sought by the petitioners.

8. Mr. S.S.Ghate, learned counsel appearing for the petitioners,

submitted that the Industrial Court erred in holding that there was no

power available under the provisions of the MRTU & PULP Act with the

Industrial Court while considering the revision petition, to grant

amendment of the memo of revision. It was submitted that under the

provisions of the MRTU & PULP Act and the Regulations framed

thereunder, reference to the Code of Civil Procedure was made and

therefore, power to grant such amendment could be read into the

revisional jurisdiction being exercised by the Industrial Court under the

provisions of the MRTU & PULP Act. The learned counsel for the

petitioners relied upon section 9 read with Order VI Rule 17 of the Code

of Civil Procedure, to contend that the application for amendment could

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have been granted by the Industrial Court. The learned counsel then

relied upon judgments of the Hon'ble Supreme Court in the case of

Hasmat Rai and Another v. Raghunath Prasad, reported in (1981) 3 SCC

103, Sheshambal (Dead) Through LRs v. Chelur Corporation Chelur

Building and Others, reported in (2010) 3 SCC 470, Pratap Rai Tanwani

and Another v. Uttam Chand and Another, reported in (2004) 8 SCC 490,

wherein the Hon'ble Supreme Court had categorically laid down that

subsequent events could certainly be taken into account by the Court in

the interest of justice. The learned counsel also relied upon judgment of

this Court in the case of Prakash Kashiram Sawant and others v.

Motherson Advanced Tooling Solutions Ltd., Aurangabad, reported in

2020 (1) Mh.L.J. 561, to claim that the application for amendment could

be allowed. Reliance was also placed on the judgment of Calcutta High

Court in the case of Shahadat Khan v Mohammad Hossain, reported in

AIR 1954 Cal. 347, to contend that where the local law was silent, the

provisions of the Code of Civil Procedure could certainly apply.

9. On the other hand, Ms Kalpana Pathak, learned counsel

appearing for respondent Nos.1 and 2, submitted that the order of the

Labour Court directing reinstatement with back wages and continuity of

service was passed in favour of respondent Nos.1 and 2, as far back as on

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19/01/2007. Yet, the relief could not be enjoyed by the said respondents

because of pendency of the litigation. It was submitted that a proper

reading of the provisions of the MRTU & PULP Act, particularly section 44

thereof, shows that the Industrial Court has limited power of

superintending jurisdiction and that the correctness or otherwise of the

order of the Labour Court, has to be decided by the Industrial Court on

the basis of the material that was available before the Labour Court.

According to the learned counsel for respondent Nos.1 and 2, there is no

provision in the MRTU & PULP Act permitting amendment of the memo of

revision petition. It was submitted that provisions of the MRTU & PULP

Act, read with the relevant Regulations framed thereunder, would show

that the applicability of the Code of Civil Procedure was provided only for

specific contingencies and it could not be said that the Statute was silent

as regards the limited areas in which the Code of Civil Procedure would

apply. On this basis, it was submitted that in the absence of specific

power, the Industrial Court was justified in rejecting the application at

Exhibit-30.

10. Learned Assistant Government Pleader Shri Dubey appeared on

behalf of respondent No.3.

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11. In order to examine the rival contentions placed before this

Court, it will have to be examined as to whether the Industrial Court

under the provisions of the MRTU & PULP Act could exercise specific

power to permit amendment of the memo of revision petition. Section 44

of the MRTU & PULP Act, gives power to the Industrial Court of

superintending jurisdiction so as to examine the correctness or otherwise,

of orders passed by the Labour Court. The nature of power is limited. The

provisions of the MRTU & PULP Act do not specifically provide for a

power in the Industrial Court to permit amendment of the revision

petition. It is for this reason that the learned counsel appearing for the

petitioners submitted that the Court to take recourse to section 9 read

with Order VI Rule 17 of the Code of Civil Procedure. Section 9 of the

Code of Civil Procedure pertains to the jurisdiction of Civil Courts to try

suits of a civil nature, except those that are expressly or impliedly barred

and Order VI Rule 17 of the Code of Civil Procedure provides for

amendment of pleadings. The aforesaid contention raised on behalf of the

petitioners can be examined if it is concluded that the Code of Civil

Procedure would be applicable to the proceedings before the Industrial

Court while exercising revisional jurisdiction under the provisions of the

MRTU & PULP Act.

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12. The petitioners have claimed that where the Statute is silent

about the applicability of the Code of Civil Procedure, recourse to the

Code of Civil Procedure can be undertaken. In the present case, it was

brought to the notice of this Court that under Regulations 149 and 150 of

the Industrial Court Regulations, 1975, framed under the MRTU & PULP

Act, it has been specified in what contingencies specific provisions of the

Code of Civil Procedure would be applicable. Regulations 149 and 150 of

the Industrial Court Regulations, 1975, read as follows:

"149. Wherever the provisions under the MRTU and PULP Act, 1971 and the Industrial Court Regulations, 1975 are silent, the provisions of the Code of Civil Procedure under Sections 27 to 32 read with Order XI, XII, XIII, XIV, XVI, XVI-A, XVIII and XIX, shall be applicable to the proceedings under the MRTU and PULP Act, 1971.

150. Any clerical or arithmetical mistake or error or accidental slip arising therefrom, in the judgment or order, may be corrected by the court either of it's own motion or on an application by any of the parties, akin to

Section 152 of the Code of Civil Procedure, 1908."

13. Under the MRTU & PULP Act, as also the Regulations framed

thereunder, it cannot be said that the statutory scheme is silent about the

applicability of the Code of Civil Procedure. On the contrary, it is

specified as to the only contingencies in which the Code of Civil

Procedure is applicable. None of the said contingencies cover the specific

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prayer made on behalf of the petitioners in the said application at Exhibit-

30, seeking amendment of the memo of revision petition.

14. The learned counsel for respondent Nos.1 and 2 is justified in

contending that the petitioners could make out a case only for

amendment of the original pleadings, but there was no question of

permitting the petitioners to amend the memo of revision petition in the

absence of any power available with the Industrial Court. The subsequent

events that the petitioners wish to place on record, could have been

brought to the notice of this Court also in the aforesaid Writ Petition

No.4903 of 2019, but the petitioners chose not to do so. The nature of

subsequent events sought to be brought on record are assertions on facts

sought to be made by the petitioners concerning alleged subsequent

events, which according to the petitioners, make it impossible to grant

relief to respondent Nos.1 and 2, in terms of the order passed by the

Labour Court in their favour. There is substance in the contention raised

on behalf of respondent Nos.1 and 2 that the Industrial Court in revisional

jurisdiction under section 44 of the MRTU & PULP Act cannot for the first

time look at such claims made on facts by the petitioners, in the absence

of any pleadings or evidence to support the same. The memo of revision

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petition cannot be permitted to be amended so as to add the proposed

amendments in the pending revision petition.

15. There can be no quarrel with the proposition that subsequent

events can be considered by the Superior Court, which may have an

impact on the reliefs that can be granted to the party concerned. The

judgments on which the learned counsel for the petitioners has placed

reliance pertained to disputes between landlord and tenant, wherein the

subsequent events had an impact on the very basis of granting relief to

the tenant or the landlord as the case may be. The manner in which the

Superior Court could take note of such subsequent events would also

depend upon the provisions of the concerned Statute and therefore, the

said judgments (cited supra) cannot be of any assistance to the petitioners

in the present case. There was nothing placed on record before this Court

to indicate that there was indeed power in the Industrial Court under the

statutory scheme contemplated as per the MRTU & PULP Act, to permit

amendment of the memo of revision petition. Thus, it cannot be said that

the Industrial Court committed any error in rejecting the application at

Exhibit-30.

16. At the most, the petitioners could have placed on record an

affidavit before the Industrial Court in the revision petition, along with

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relevant documents to place on record the subsequent events, to make

submissions as regards the impact of such subsequent events. It would be

for the Industrial Court while exercising revisional jurisdiction to take an

appropriate view in the matter upon perusal of such affidavit and

documents. This is because the memo of the revision petition can only

raise grounds to demonstrate the error committed by the Labour Court in

the order impugned, on the basis of the pleadings, evidence and material

that was placed on record before the Labour Court by the rival parties.

The correctness or otherwise of the order of the Labour Court, cannot be

judged by the Industrial Court while exercising revisional jurisdiction

under section 44 of the MRTU & PULP Act, on the basis of pleadings and

material that were not even placed before the Labour Court. Therefore,

no case for interference under Article 227 of the Constitution of India is

made out by the petitioners while challenging the impugned order passed

by the Industrial Court, rejecting the application at Exhibit-30.

17. In view of the above, the writ petition is dismissed.

18. Needless to say, as observed herein above, the petitioners could

place on record a proper affidavit along with relevant documents before

the Industrial Court to place on record the subsequent events. The

respondent Nos.1 and 2 could respond to such an affidavit. The Industrial

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Court would then be able to take into account the material on record to

pass appropriate orders, in the interest of justice.

19. Rule is discharged. No costs.

JUDGE

Signed By:GHANSHYAM S KHUNTE

Signing Date:05.05.2022 14:50

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