D. Paranthaman vs David Business Services Pvt Ltd
2021 Latest Caselaw 688 Kant

      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 12th DAY OF JANUARY, 2021

                             BEFORE

           THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

              WRIT PETITION No.50550/2015 (L-RES)


BETWEEN

D. PARANTHAMAN
S/O Lt. K. DORAISWAMY
AGED ABOUT 57 YEARS
RESDING AT 88, 2ND MAIN
SUBBANNA GARDEN
VIJAYANAGAR
BANGALORE-560 040
                                                       ...PETITIONER
(BY SRI K.S. SUBRAHMANYA, ADVOCATE)

AND

1.    DAVID BUSINESS SERVICES PVT., LTD.,
      NO.3, G.NO. 15TH STREET
      ULSOOR
      BANGALORE - 08
      REPRESENTED BY ITS MANAGING DIRECTOR
      MR. DAVID SAMUEL

2.    MANAGEMENT OF TITAN INDUSTRIES LIMITED
      CORPORATE OFFICE
      GOLDEN ENCLAVE
      TOWER A, AIRPORT ROAD
      BANGALORE-17
      REPRESENTED BY ITS MANAGING DIRECTOR
      MR BHASKAR BHAT
                                                    ...RESPONDENTS
(BY SRI K. MOHAN KUMAR, ADVOCATE for
KASTURI ASSOCIATES, ADVS., FOR R.1,2)
                                   2


      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
09.10.2015 PASSED ON I.A.NO.6 in I.D. No.2/2009 (ANNEXURE-A)
PASSED BY THE PRESIDING OFFICER, 2ND ADDITIONAL LABOUR COURT,
BANGALORE.

      THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

                               ORDER

The petitioner in this writ petition has called in question the

order passed by the Labour Court in I.D. No.2/2019 on an

interlocutory application in I.A.No.6 seeking amendment of the

claim statement in terms of Section 11(1) and (3) of the Industrial

Disputes Act, 1947 (hereinafter referred to as 'I.D. Act' for the sake

of brevity).

2. The petitioner claims to have been appointed to work in Titan

Industries, Bengaluru, through one David Business Services Private

Limited, as a Plumber and claims to have worked for several years

and was illegally terminated on 02.12.2008. On such termination,

a claim petition was filed before the Labour Court on 09.01.2009

and the Labour Court proceeded on the basis of the claim

statement. At the stage when cross-examination of the claimant

was to take place, the petitioner-claimant filed an application under

Section 11(1) and (3) of the I.D. Act seeking amendment of claim

petition by inserting paragraphs 9 to 16. The Labour Court, by an

order dated 09.10.2015, rejected the application seeking

amendment of the claim statement on the ground that the

pleadings were complete and the Management had been cross-

examined to a larger extent and at that stage, the claimant wanted

to deviate from his own evidence given before the Court.

3. Learned counsel appearing for the petitioner would submit

that he would only want to assert that the petitioner was employed

by the second respondent to work with the first respondent. That

fact had been omitted in the claim statement when it was filed

originally and in the cross-examination, when the second

respondent denied that the petitioner was ever employed by him.

He has now raised the claim in terms of the amendment against the

second respondent also.

4. Learned counsel appearing for the respondents would submit

at this stage of the proceedings that, if the amendment is

permitted, it would materially alter the claim itself and would seek

dismissal of the writ petition.

5. The claim petition was filed on 09.01.2009; the respondents

filed their counter statement on 30.04.2009; an affidavit was filed

before the Trial Court on 08.02.2013 and the petitioner-claimant

was cross-examined at great length by the second respondent. It is

after this cross-examination, the petitioner wanted to amend the

claim petition seeking claim against the second respondent as well.

It is not that the second respondent was not a party before the

Labour Court. The claim now made is to make the first and second

respondent jointly and severally liable to the relief that is claimed

before the Industrial Tribunal. Section 11(1) and (3) of the I.D.

Act reads as follows;

"PROCEDURE, POWERS AND DUTIES OF AUTHORITIES.

11. Procedure and power of conciliation officers, Boards, Courts and Tribunals. - (1) Subject to any rules that may be made in this behalf, an arbitrator, a Board, Court, Labour Court, Tribunal or National Tribunal shall follow such procedure as the arbitrator or other authority concerned may think fit.

      (2)   xxx    xxx


      (3)   Every Board, Court, Labour Court,         Tribunal and

National Tribunal shall have the same power as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of

1908), when trying a suit, in respect of the following matters, namely:-

a) enforcing the attendance of any person and examining him on oath;

b) compelling the production of document and material objects;

c) issuing commissions for the examination of witnesses;

d) in respect of such other matters as may be prescribed, and every inquiry or investigation by a Board, Court, Labour Court, Tribunal or National Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860)."

It is apposite to refer to the judgment of the Apex Court where the

Apex Court has laid down principles of amendment of pleadings in

the case of Chakreshwari Construction (P) Ltd. v. Manohar Lal,

(2017) 5 SCC 212;

" 12. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals and while setting aside the impugned orders, allow the aforementioned applications of the appellant.

13. The principle applicable for deciding the application made for amendment in the pleadings remains no more res

integra and is laid down in several cases. In Revajeetu Builders and Developers v. Narayanaswamy & Sons [Revajeetu Builders and Developers v. Narayanaswamy & Sons, (2009) 10 SCC 84 : (2009) 4 SCC (Civ) 37] , this Court, after examining the entire previous case law on the subject, culled out the following principle in para 63 of the judgment which reads as under: (SCC p. 102)

"63. On critically analysing 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.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.

14. Applying the aforesaid principle of law to the facts of the case at hand, we are of the considered opinion that the amendment proposed by the appellant so also the permission sought for filing additional documents deserved to be allowed."

6. The reason assigned by the Labour Court for rejecting the

application is erroneous and is required to be set aside. Therefore,

in the light of the law laid down by the Apex Court (supra), the

following order;

      i)     Writ petition is allowed.

      ii)    The order dated 09.10.2015 passed on I.A.No.6 in I.D.

             No.2/2009 is quashed.

      iii)   The   Labour      Court    is    directed     to    reconsider    the

             application    i.e.    I.A.      No.6   without       standing    on

             technicalities.




                                                       Sd/-
                                                      JUDGE


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