M/S Indag Rubber Ltd. vs Presiding Officer, Labour Court ...
2009 Latest Caselaw 1556 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                    Writ Petition (Civil) No.3124/2006

                                             Reserved on : 12.3.2009
                                         Date of Decision : 21.4.2009

M/S INDAG RUBBER LTD.                                  ......Petitioner
                                        Through : Mr.Piyush Sharma,
                                        Advocate.

                                  Versus

PRESIDING OFFICER, LABOUR COURT NO.IV & ORS.
                                      ...... Respondents
                          Through : Mr.Rajkumar Mann,
                          Advocate.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether Reporters of local papers may be
      allowed to see the judgment?                        YES
2.    To be referred to the Reporter or not ?             NO
3.    Whether the judgment should be reported
      in the Digest ?                                     NO

V.K. SHALI, J.

1. The petitioner in the present writ petition has challenged

the orders dated 24.4.2003 and 17.2.2005 passed by the learned

Labour Court-IV in ID No.64/1995 titled as Mr.Jackson Mathews

Vs. M/s Indag Rubber Ltd. rejecting the application of the

petitioner for amendment of their written statement to

incorporate certain additional points by way of defence.

2. The second order dated 17th February, 2005 was passed on

the review application of the earlier order dated 24.4.2003

rejecting the prayer for review.

3. Briefly stated the facts of the case are that an issue which

was referred to the learned Labour Court by the appropriate

Government on 14th April, 1975, reads as under:-

"Whether termination of services of Shri Jaskson Mathew is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"

4. The respondent/workman in pursuance to the aforesaid

reference filed a statement of claim claiming that he was

employed by the petitioner/Management and his services were

illegally and unjustifiably terminated on 9th May, 1994 without

complying with the provisions of Industrial Disputes Act, 1947

(hereinafter referred to as Act) pertaining to the retrenchment

compensation.

5. The petitioner /Management filed its written statement and

took a plea that the respondent /workman was highly

indisciplined, guilty of negligent performance of his duties,

habitual late comer apart from being absent and therefore, his

services were terminated as warnings had failed to bring any

desired result. The notable fact is that the statement of claim

was filed on 17th January, 1996 and the written statement was

filed on 18th May, 1996. After expiry of almost six years, the

petitioner/Management filed an application seeking amendment

of their written statement raising the plea of preliminary

objection regarding the jurisdiction of the learned Labour Court

to adjudicate the dispute and the maintainability thereof. It was

also stated that the petitioner/Management may be permitted to

prove the misconduct of the respondent /workman before the

learned Labour Court.

6. The learned Labour Court after obtaining the reply to the

amendment application passed the impugned order on 24.4.2003

rejecting the application for seeking amendment to the written

statement as it was observed that merely on account of change of

the counsel by the petitioner/ Management would not enable

them to raise an additional ground in the written statement. It

was also observed by the learned Labour Court that the case has

been dragged for a number of years and the rights of the

respondent/workman were being affected. The petitioner

thereafter, filed an application for recalling of this order on

15.5.2003. As there was no error apparent on the face of the

record which would warrant the recalling/review of the order

dated 24.4.2003, accordingly, the review application was

dismissed with a cost of Rs.1,500/-.

7. I have heard the learned counsel for the parties and

perused the record. The learned counsel for the petitioner has

contended that the law regarding amendment has to be

construed liberally and a party should not be made to suffer on

account of inadvertent mistake of the previous counsel. In order

to buttress his contention, the learned counsel has cited a

judgment titled Baldev Singh & Ors. Vs. Manohar Singh &

Anr. (2006 ) 6 SCC 498, wherein Supreme Court has deal with

the scope, power and discretion of the Court in allowing the

amendment. It has been observed that the Court has very wide

and unfettered discretion to permit the amendment in a given

case on such terms as it appears to the Court just and proper.

Similar is the observation passed by the Apex Court in Andhra

Bank Vs. ABN Amro Bank N.V. Ors. (2007) 6 SCC 167,

wherein it has been observed by the Apex Court that the written

statement may be permitted to be amended to introduce an

additional ground of defence in the facts of the said case.

8. The learned counsel for the petitioner has contended that

merely on account of the fact that no enquiry or defective enquiry

was held against the workman/respondent would not render his

dismissal to be illegal because the employer has to be given the

right to adduce the evidence justifying its action for the first time

under Section 11A of the Act which cannot be taken away by any

person.

9. Per contra, the counsel for the respondent has contended

that the amendment which is sought by the petitioner is

actuated by malafides as the industrial dispute is pending

adjudication since 1995, the written statement is filed in 1996.

The parties have adduced their evidence also and the

amendment application is filed belatedly on 03.3.2002 only to

prolong the disposal of the matter so that the respondent

/workman is financially squeezed so as to succumb to the prayer

of the petitioner. It was also urged that the letter of termination

dated 9th May, 1994 Annexure P-3 filed along with the paper

book. It is not the case of the petitioner /Management that the

services of the respondent /workman were terminated on

account of any alleged misconduct and therefore, there was no

question of adducing any evidence before the learned Labour

Court.

10. I have carefully gone through the record and considered the

submission of the counsel for the parties. So far as the

submission of the counsel for the petitioner with regard to the

law regarding amendment of the pleadings is concerned, there is

no dispute that the same has been considered by the Apex Court

not only in the judgments relied upon by the petitioner but also

in number of other judgments very liberally. However, it has

been held that primarily it is the discretion of the trial Court and

it must observe it as to whether the amendment is just and

proper. In the instant case, the learned Labour Court below has

not exercised the discretion in favour of the

petitioner/Management as it has considered that the amendment

is not just and proper. On the contrary, the learned Labour

Court in its order dated 24.4.2003 has specifically observed that

merely on account of the change of the counsel, a party cannot

be permitted to raise an additional point be that it pertaining the

jurisdiction or otherwise.

11. I do not find any infirmity in the impugned orders dated

24.4.2003 and 17.2.2005. On the contrary, I find that not only

the entire effort of the petitioner is to indulge in dilatory tactics to

exhaust the patience of the respondent/workman and prolong

the disposal of the industrial dispute pending before the learned

Labour Court. This is evident from the fact that amendment was

sought after six years. When the amendment is rejected instead

of preferring any appeal against the rejection of such

amendment, the petitioner filed an application for review,

knowing fully well that the scope of review is very limited and yet

he continues to try his luck therefore in which ultimately he fails

by rejection of his review application on 24.4.2003. Still not

satisfied, the petitioner filed the present writ petition in the year

2006 and prolonged this matter for almost three years by keeping

the proceedings of the Labour Court under suspended

animation. So the entire sequence of events in the opinion of

this Court clearly shows that the management only on account of

its resources and legal experts is trying to wear out the patience

and money of the respondent /workman by prolonging his agony.

To that extent, the amendment which is sought is neither just

nor proper. On the contrary, it prima facie shows that it is

actuated and is not bonafide.

12. So far as the plea of the counsel for the petitioner is that he

may be permitted to adduced evidence before the Learned Labour

Court regarding the misconduct of the respondent /workman is

concerned, this cannot be permitted to be done on account of the

fact that the letter of termination dated 9th May, 1994 does not

show that the services of the respondent /workman were

terminated on account of any alleged misconduct. Therefore, the

plea which is taken now by the petitioner /Management also

does not find any support from the letter of termination.

13. For the reasons mentioned above, I am of the considered

opinion that there is no infirmity, illegality or perversity in the

impugned orders dated 24.4.2003 and 17.2.2005, and

accordingly the writ petition is dismissed with cost of

Rs.10,000/-.

14. The stay which is granted by this Court on 7th March, 2006

in CM No.2639/2006 shall stand vacated.

15. Parties are directed to appear before the learned Labour

Court on 1st May, 2009. The learned Labour Court is requested

to decide the dispute as expeditiously as possible.

V.K. SHALI, J.

APRIL 21, 2009 RN