Municipal Corporation Of Delhi vs The Workmen, Workers Working In ...
2011 Latest Caselaw 3457 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

                   Judgment delivered on: 21.07.2011



           +W.P. (C) No. 3976/2010 & CM No. 7928/2010


Municipal Corporation of Delhi        ......Petitioner
               Through: Mr. Gaurang Kanth, Advocate.

                                  Vs.

The Workmen, Workers Working in Electrical
Department of MCD                       ......Respondent

                   Through: Mr. V.N. Shrama, Advocate.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may         Yes
    be allowed to see the judgment?
2. To be referred to Reporter or not?              Yes


3. Whether the judgment should be reported           Yes
    in the Digest?


KAILASH GAMBHIR, J.Oral:
*

1. By this petition filed under Article 226 of the

Constitution of India, the petitioner seeks to challenge the

order dated 14.5.2010 passed by the learned Trial Court

thereby dismissing the application of amendment of pleadings

moved by the petitioner under Order VI Rule 17 of the Code

of Civil Procedure, 1908.

2. Brief facts of the case relevant for deciding the

present petition are that the members of the respondent

union were working in the petitioner‟s electrical department

(General Wing) of the petitioner MCD. That the respondent

union raised an industrial dispute claiming parity in the pay

scale with the employees of Delhi Electric Supply

Undertaking (DESU) and vide order dated 10.10.1996, the

Labour Court decided the reference in favour of the

respondent union and the petitioner challenged the said

award before this Hon'ble High Court which vide order dated

21.11.2006, set aside the award. That the respondent union

being aggrieved by the said order, challenged the same

before the Hon‟ble Division Bench of this Court which vide

order dated 2.2.2009 set aside the award dated 10.10.1996

and the order of the learned Single Judge dated 21.11.2006

and remanded the matter back to the Labour Court for

deciding the matter afresh. Consequently, the parties

appeared before the Ld. Labour Court on 25.2.2009 which

directed the parties to reconstruct the file, during which

process, the petitioner realized that the written statement

filed by him in the earlier round did not contain relevant facts

to finally and conclusively decide the disputes due to which in

order to avoid further complexity, the petitioner on

23.10.2009 moved an application under Order VI Rule 17 CPC

for amending the earlier written statement which vide order

dated 14.5.2010 was dismissed by the Labour Court. Feeling

aggrieved by the same, the petitioner has preferred the

present petition.

3. Mr. Gaurang, learned counsel appearing for the

petitioner submits that vide award dated 10.10.1995, the

learned Labour Court has decided the reference in favour of

the respondent workmen Union and the said award was

challenged by the petitioner by filing

W.P.(C) No. 2650/1996. Inviting the attention of this Court

to the observations made by the learned Single Judge in the

order dated 21.11.2006, counsel points out that in the said

order the learned Single Judge has clearly observed that for

deciding the issue of "equal pay for equal work" evidence is

required to determine the nature of work being done by

persons working at different posts in MCD and different

posts in DESU; the qualifications for these posts in both the

said organizations; the mode of recruitment and the

responsibility put on such employees. Counsel further

submits that since the said issues were not considered by the

learned Labour Court in deciding the reference, therefore, the

learned Single Judge allowed the writ petition filed by the

petitioner. Counsel further submits that the said order of the

learned Single Judge was challenged by the respondents

before the Hon'ble Division Bench in LPA No. 7/2007 and

even the Hon‟ble Division Bench in the LPA clearly observed

that in the order passed by the Industrial Tribunal there is

hardly any discussion on the qualification, nature of duties

being performed by the workman in Electrical Department

(General Wing) and the employees of erstwhile DESU.

Counsel further submits that the Court also observed that the

reasoning and grounds given in the award to apply the

doctrine of "equal pay for equal work" is cryptic and keeping

in view the principles expounded by the Supreme Court, the

same cannot be accepted. The counsel also submits that in the

said LPA, the appellant also brought to the notice of the

Court that the detailed evidence earlier recorded before the

Industrial Tribunal was destroyed and in the pleadings filed

by the appellant MCD the only objection taken was that the

DESU is a commercial wing while the general wing of the

MCD is not a commercial wing and taking into consideration

the said facts brought forth before the Court by both the

parties, the Hon‟ble Division Bench remanded the matter

back to the Labour Court to decide the reference afresh.

Counsel further submits that the Hon‟ble Division Bench in

the said order also observed that while doing so the parties

will be given opportunity to lead evidence and while deciding

the reference the learned Presiding Officer was directed to

consider the judgments of the Supreme Court including the

judgment in the case of State of Haryana vs. Charan Jeet,

2006 1 LLJ 43.

4. The learned counsel for the respondent on the

other hand, opposing the present petition, submits that the

petitioner cannot under the garb of reconstructing the record

be allowed to amend the written statement, especially when

the Hon‟ble Division Bench had only directed the parties to

lead the evidence afresh.

5. I have heard learned counsel for the parties.

6. By order dated 2.2.2009, the Hon‟ble Division

Bench of this Court directed the Labour Court to decide the

reference again. It would be apt to reproduce para 3 and 4 of

the said judgment of the Division Bench in LPA as under:-

"3. The award dated 10.10.1995 passed by the learned Presiding Officer Industrial Tribunal does not deal with these aspects. There is hardly any discussion on the qualification, nature of duties

etc. being performed by workman in Electrical Department (General Wing) and the employees of erstwhile DESU. The reasoning and grounds given in the Award to apply the doctrine of "equal pay for equal work" is cryptic and keeping in view the principles expounded by the Supreme Court, cannot be accepted. Learned counsel for the Appellant at this stage, however, submits that detailed evidence was recorded before the Industrial Tribunal but the said record has been destroyed. It is also submitted that the Respondent MCD had raised only one objection stating, interalia, that the DESU is a commercial wing, whereas general wing of MCD is not a commercial wing and no other objection was raised. Therefore, even on the basis of the pleading and evidence the doctrine of "equal pay for equal work" applies. This is disputed by the counsel for the MCD.

4. In the absence of material and records/evidence before us, we cannot examine merits and demerits of the case of the either side. Statement of witnesses are not available and have been destroyed in a fire. In view of the facts and circumstances of the case and specially the fact that the Appellants had succeeded before the Industrial Tribunal and records are not available, we remand the matter back to the Industrial Tribunal to decide the reference afresh. While doing so, parties will be given opportunity to lead evidence as it has been stated that the original records are not available. While deciding the reference the Presiding Officer, Labour Court will consider the judgments of the Supreme Court including judgment in the case of State of Haryana v. Charan Jeet (supra). Parties will appear before the Labour Court on 25.2.2009 when fresh dates will be fixed. Reference will be decided expeditiously and preferably within a period of six months from the said date. In view of the above observations the impugned order dated 21.11.2006 and the award dated 10.10.1995 are set aside. It is also clarified that the

Industrial Tribunal will decide the matter afresh without being influenced by any observation in the award dated 10.10.1995 and the impugned judgment dated 21.11.2006".

7. Pursuant to the said directions given by the Hon'ble

Division Bench, the matter was sent back for fresh trial. Since

there was no evidence available, therefore, directions were

given by the Court to the parties to lead evidence.

Accordingly respondent union had filed examination-in-chief

by way of affidavit and the matter was posted by the learned

Court for cross-examination of the respondent. It is at that

stage that the petitioner had moved an application under

Order VI Rule 17 read with Section 151 CPC to seek

amendment in the written statement. The said application of

the petitioner was dismissed by the learned Labour Court

vide order dated 14.5.2010 and feeling aggrieved by the said

order the petitioner has preferred the present writ petition.

8. Order VI rule 17 was deleted from the statute book

with a view to avoid delay and for speedy disposal of cases

on the recommendation of the Justice Malimath Committee by

the Amendment Act of 1999, but was followed by much public

hue and cry because of which it was again introduced, but

with a proviso. Order VI Rule 17 was thus amended vide

Civil Procedure Code (Amendment) Act, 2002 and after the

amendment a proviso to the said section was appended. For

better appreciation, the said Order VI Rule 17 along with

proviso is reproduced as under: -

"17. Amendment of pleadings.-

The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

9. From a bare perusal of Order VI Rule 17 of the

Code of Civil Procedure, it is clear that the court is conferred

with wide discretion to allow alteration and amendments of

the pleadings, at any stage of the proceedings, if it is of the

view that such amendment would be necessary for

determining the real question in controversy between the

parties. The proviso to Order VI Rule 17 of the Code,

however, provides that no application for amendment shall be

allowed after the trial has commenced unless the court comes

to a conclusion that in spite of due diligence, the party could

not have raised the matter before the commencement of trial.

Undoubtedly the said proviso is mandatory and the

amendment can be allowed only when the conditions

envisaged in the said proviso are satisfied by the party

seeking amendment. Undeniably prior to the said amendment

of 2002, the Courts were liberal in permitting the parties to

seek amendment in the pleadings even at the advance stage

of the proceedings but now with the embargo placed in the

proviso, the amendment after the commencement of a trial

can only be allowed if the Court comes to conclusion that

such amendment could not have been sought by the party

before the commencement of the trial despite exercise of due

diligence. Therefore, it is pertinent to note that the proviso

does not in absolute terms bar seeking of an amendment even

after the commencement of trial, if the court is satisfied and

comes to the conclusion that the in spite of due diligence the

parties could not have raised the matter before the

commencement of the trial. Hence, the proviso which was

introduced aiming to curtail the delay that occurred because

of the applications that were filed under this rule, has also

struck a balance as on one hand it does limit the scope of

amendment of pleadings and on the other it still vests the

courts with enough judicial discretion to deal with cases with

unanticipated situations whenever they arise. Now whether

the parties have acted with due diligence or not is a matter to

be determined by the court from the facts and circumstances

of each case. Here it would be useful to refer to the judgment

of the Apex Court in the case Chander Kanta Bansal vs.

Rajinder Singh Anand (2008)5SCC117 where the court

explained the concept of due diligence in the said proviso and

held that:

"The words "due diligence" have not been defined in the Code. According to Oxford Dictionary (Edn. 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means

careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (18th Edn.), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edn. 13-A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs."

Hence, what is required by due diligence would be everything

reasonable, and reading it into the proviso would mean that

even if the parties were careful, they could not have raised

the matter before commencement of the trial. In the facts of

the case at hand, the petitioner sought the amendment of the

written statement on the basis of the observations made by

the learned Single Judge and the Hon‟ble Division Bench of

this court, without which the whole object as to why the

matter was in the first place sent for deciding reference

afresh would be rendered futile.

10. However, with the over emphasis on the proviso,

the real spirit behind rule 17 should not be pretermitted. It

has also been time and again held that the general principle is

that the courts at any stage of the proceedings may allow

either party to alter or amend the pleadings in such a manner

and on such terms as may be just and all those amendments

must be allowed which are imperative for determining the

real question in controversy between the parties. The basic

principles for grant or refusal of amendment articulated

almost 125 years ago are still considered to be correct

statement of law and our courts have been following the basic

principles laid down in those cases. It would be relevant here

to refer to the judgment of the Apex Court in the case of

Revajeetu Builders & Developers vs. Narayanswamy &

Sons.(2009)10SCC84 where the court has not only traced

the history of the provision but has also after examining the

English and Indian precedents laid down the following

guiding principles when dealing with the application under

Order VI rule 17:

"FACTORS TO BE TAKEN INTO CONSIDERATION WHILE DEALING WITH APPLICATIONS FOR AMENDMENTS:

67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?

(2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and

(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

68. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.

69. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner.

70. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."

Admittedly in the present case, the entire previous evidence

recorded was destroyed, which means that no evidence at all

on record exists and parties were permitted to lead fresh

evidence and even the Hon'ble Division Bench in its order has

observed that the learned court shall decide the reference

afresh. Hence, it would necessarily mean that the parties

would have to lead fresh evidence but certainly based on

previous pleadings. The petitioner herein felt the necessity to

seek amendment in the written statement because the

Hon'ble Single Judge as well as the Hon'ble Division Bench in

their respective orders clearly observed that in the absence of

necessary material on record with regard to the qualification,

nature of duties and responsibilities of both set of employees

working in the Electrical Department (General Wing) and the

employees of erstwhile DESU the issue of „equal pay for equal

work‟ cannot be properly adjudicated by the Labour Court to

answer the said reference. Hence, applying the aforesaid

parameters to the facts of the case at hand, it can be

unequivocally stated that the amendment is essential for the

proper adjudication of the case as otherwise the sole purpose

of deciding the matter afresh would be rendered nugatory.

The amendment would not cause any prejudice to the other

party which cannot be balanced by imposing costs on the

petitioner if there is any delay or more number of

appearances for deciding the reference afresh by allowing the

amendment.

11. However, as the issue involved here is the

amendment of the written statement, it would also be

imperative to refer to the decision of the Apex Court in the

case of Baldev Singh & Ors. vs. Manohar Singh & Anr.

(2006)6SCC498 where it was held that the amendment

sought in the plaint and the written statement stand on

different footings. The relevant para of the same is as under:

"That apart, it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case."

This was reiterated by the Apex Court in the case of Usha

Balasaheb Swami vs. Kiran Appaso

Swami(2007)5SCC602 with the following observations:

"Such being the settled law, we must hold that in the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case.

17. As we have already noted herein earlier that in allowing the amendment of the written statement a liberal approach is a general view when admittedly in the event of allowing the amendment the other party can be compensated in money. Technicality of law should not be permitted to hamper the Courts in the administration of justice between the parties. In the case of L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. : [1957]1SCR438 , this Court observed "that the Courts are more generous in allowing amendment of the written statement as the question of prejudice is less likely to operate in that event". In that case this Court also held "that the defendant has right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to serious injustice."

Hence, an amendment in the written statement and the plaint

should not be treated similarly. Technicality should not come

in the way of granting relief to the party. Here it would be

relevant to reproduce the oft quoted para as in Jai Jai Ram

Manohar Lal vs. National Building Material

Supply(1969)1SCC869 wherein it was held that:

"Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even

infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party Applying, was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side."

This view has been consistent has been the torch bearer in

deciding application under order VI rule 17. It would also be

relevant to refer to the judgment of the Apex Court in the

case of B.K. Narayan Pillai vs. Parameswaran Pillai

(2000)1SCC712 wherein it was observed as under:

"The-purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in, the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation."

Hence adopting a hyper technical approach in the present

case also would thus defeat the purpose of recording the

evidence afresh.

12. It is also evident that the learned Labour Court has

heavily relied on the judgment of the Supreme Court in the

case of Vidyabai & Ors. vs. Padmalatha & Anr. (2009) 2

SCC 409 to dismiss the said application of the petitioner.

Referring to the ratio of the said judgment, the learned Court

held that in the said judgment the Supreme Court took a view

that the Court has no jurisdiction to allow the amendment

after filing of an affidavit in evidence. This interpretation

taken by the learned Trial Court is misconceived. The Apex

Court in the said judgment has held that the proviso of Order

VI Rule 17 is couched in mandatory form and the Courts

jurisdiction to allow an amendment is taken away unless

conditions precedent are satisfied viz. it must come to the

conclusion that in spite of due diligence, the party could not

have introduced the facts before the commencement of the

trial. It would be thus seen that it is not that there is a

complete bar on seeking an amendment after the

commencement of the trial. The party seeking amendment

after commencement of trial has to satisfy the Court that

despite the exercise of due diligence it could not have raised

the facts before the commencement of the trial. In any event

of the matter, the fact situation of the present case is entirely

different as here the learned Single Bench of this Court and

also Hon‟ble Division Bench of this Court clearly took a view

that without leading the evidence the matter in reference

cannot be decided afresh. It would be thus quite apparent

that unless the amendment sought by the petitioner is allowed

the trial court would not be able to determine the controversy

between the parties in an effectual manner.

13. Hence, in the light of the above discussion and

considering the peculiar facts of the case and the fact that the

previous records already stand destroyed and also taking in

view the observation made by the Hon‟ble Division Bench and

the learned Single Bench, this Court is of the view that the

amendment sought by the petitioner deserves to be allowed.

However, a cost of Rs. 10,000/- is imposed upon the

petitioner for seeking the said amendment at such a belated

stage which shall be paid by the petitioner to the respondent

through counsel within a period of four weeks from the date

of this order.

14. With the above directions, the matter is remanded

back to the learned Labour Court. The parties are directed to

appear before the Labour Court on 9th August, 2011.

KAILASH GAMBHIR, J JULY 21, 2011