The Management Of vs Trishul Engineers Employees ...
2022 Latest Caselaw 1124 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 25TH DAY OF JANUARY, 2022

                       BEFORE

        THE HON'BLE MS. JUSTICE JYOTI MULIMANI

     WRIT PETITION NO.23886 OF 2021 (L-RES)

BETWEEN:

THE MANAGEMENT OF
M/S TRISHUL WINDING SOLUTIONS PVT. LTD.,
PLOT NO.303 B, KIADB INDUSTRIAL AREA,
PHASE II, HAROHALLI, KANAKAPURA TALUK,
RAMANGARA DISTRICT.
REPRESENTED BY ITS
DIRECTOR
MR. CHIKKAPUTTAIAH                    ... PETITIONER

(BY SRI K.R.ANAND, ADVOCATE)

AND:

1.     TRISHUL ENGINEERS EMPLOYEES' UNION
       NO.138, 4TH MAIN, 9TH CROSS,
       CHAMARAJAPETE, BENGALURU - 560 018.
       REPRESENTED BY ITS PRESIDENT

2.     TRISHUL ENGINEERS
       NO.376, KONANAKUNTE CROSS,
       NEXT TO RMS INTERNATIONAL SCHOOL,
       KANAKAPURA MAIN ROAD,
       BENGALURU - 560 062         ... RESPONDENTS


(BY SRI T.S.ANANTHARAM, ADVOCATE FOR C/R1;
    SRI R.A.BADAGANDI, ADVOCATE FOR R2)
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     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING
CERTAIN RELIEFS.


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

                         ORDER

Sri.K.R.Anand, learned counsel for petitioner,

Sri.T.S.Anantharam, learned counsel for caveator

respondent-1 and Sri.R.A.Badagandi, learned counsel for

respondent-2, have appeared through video conferencing.

2. The brief facts are stated as under:-

It is stated that M/s.Trishul Winding Solutions Pvt.

Ltd., - petitioner is a Company registered under the

provisions of the Companies Act and was incorporated in

the year 2013. It started its factory in the year 2017 and

employed 8 employees in the said unit. There are four

Directors namely, 1.Mr.Basavaraju G.E. 2. Mr.Madhu G.B.,

3. Mr.Chikkaputtaiah and 4. Ms.Veena Bindu Rao.

It is stated that M/s. Trishul Engineers -the second

party in I.D.No.63/2017 is a Proprietorship firm owned by

one Mr.Basavaraju G.E and it is only to this extent there is

a commonality between M/s.Trishul Winding Solutions Pvt

Ltd., and M/s. Trishul Engineers as otherwise, they are

functionally not integral, they are not interdependent in

any manner whatsoever. There is no commonality in the

customers, products manufactured etc., between

M/s.Trishul Winding Solutions Pvt., Ltd., on one hand and

M/s.Trishul Engineers, on the other hand against whom a

dispute is raised and the same is pending in

I.D.No.63/2017.

It is averred that M/s.Trishul Engineers - the second

party in I.D.No.63/2017 is being effectively represented

before the Industrial Tribunal. The first party- the Union

filed an application on 10.07.2019 in I.A.No.4 to implead

M/s.Trishul Winding Solutions Pvt Ltd., as party to the

proceedings. Notice was issued on the application and

M/s.Trishul Winding solutions Pvt Ltd., and the second

party filed objections. One Mr.Rajkumar, the General

Secretary of the Union examined himself by filing an

affidavit in support of the application. He was cross

examined on behalf of M/s.Trishul Engineers - the second

party. It is said that no opportunity was given to

M/s.Trishul Winding Solutions Pvt Ltd., to cross-examine

the witness (Mr.Rajkumar). The Tribunal allowed the

impleading application. Aggrieved by the said order, the

petitioner has filed this writ petition under Articles 226 &

227 of the Constitution of India.

3. Sri.K.R.Anand, learned counsel for petitioner

submits that the Tribunal has erred in allowing the

application for impleading. The order is perverse and is

contradiction to the judgment of the Apex Court.

Next, he submitted that the M/s.Trishul Winding

Solutions Pvt. Ltd., is not a necessary and proper party. It

is submitted that the proposed second party is not at all

concerned and connected with the affairs of M/s.Trishul

Engineers. It is contended that Mr. Basavarju G.E. who is

the proprietor of M/s.Trishul Engineers is one of the

Director of M/s.Trishul Winding Solutions Pvt Ltd., and

both are different entities in all respects as such there is

no legal or administrative integrity between these two

Industries.

A further submission was made that the acts/

omissions of M/s.Trishul Engineers - the second party

(in I.D.No.63/2017) are not binding on M/s.Trishul Winding

Solutions Pvt Ltd. It is contended that the M/s.Trishul

Winding Solutions Pvt Ltd., - the proposed second party is

neither necessary nor proper party. However, the Tribunal

has erroneously proceeded to allow the application.

Counsel strenuously urged that the Tribunal ought to

have given an opportunity for M/s.Trishul Winding

Solutions Pvt Ltd., - the proposed second party to lead

evidence on the impleading application and also accorded

opportunity to cross examine Mr.Rajkumar before passing

the order.

Lastly, he submitted that viewed from any angle, the

order for impleading is unjust and hence, he submitted

that the matter requires a remand.

Learned counsel relied upon the following decisions:

     1.HOCHTIEF      GAMMON       VS       INDUSTRIAL
     TRIBUNAL,    BHUBANESWAR,         ORISSA     AND
     OTHERS - AIR 1964 S C 1746.

2.WORKMEN OF C.R.O.CANTEEN (of Imperial Chemical Industries (India) (Private), Ltd.,) VS FOURTH INDUSTRIAL TRIBUNAL AND OTHERS

- 1964 I LLJ HIGH COURT OF JUDICATURE AT CALCUTTA.

3.PSI DATA SYSTEMS LTD., VS PRESIDING OFFICER, LABOUR COURT - 1992 LLR KARNATAKA HIGH COURT 929.

4. PRAXAIR INDIA LTD., AND ANOTHER VS STATE OF WEST BENGAL AND OTHERS LAWS (CAL)-2001-9-66 HIGH COURT OF CALCUTTA

5. SRI. G.V. SATISH REDDY AND ANOTHER VS M/S.SHIVA DISTILLIRIES LTD., REP BY ITS VICE PRESIDENT - ILR 2010 KARNATAKA 4249.

4. Sri.T.S.Anantharam, learned counsel for the

first respondent justified the order of the Tribunal.

Next, he submitted that M/s.Trishul Engineers is

carrying on its manufacturing activities and business in the

name of M/s.Trishul Winding Solutions Pvt. Ltd., both at

Harohalli and Konanakunte cross even after the

retrenchment of 16 Workmen as named in the claim

statement.

A further submission was made that one

Mr.Basavaraju.E is the owner of both the units i.e.,

M/s.Trishul Engineers as well as M/s.Trishul Winding

Solution Pvt. Ltd.

Counsel vehemently contended that M/s.Trishul

Engineers is carrying on its business in different forms in

order to deceive retrenched Workmen, hence it was just

and proper to implead the proposed second party i.e.,

M/s.Trishul Winding Solution Pvt. Ltd. Accordingly, an

application was made under Order 1 Rule 10 (2) of CPC

r/w. Section 10 & 11 of I.D. Act. The Tribunal in extenso

referred to the material on record and allowed the

application.

Lastly, he submitted that the petitioner has not

made out any good grounds to exercise the powers under

Articles 226 & 227 of the Constitution of India accordingly

he prayed for the dismissal for the writ petition.

5. Sri.R.A.Badagandi, learned counsel for the

second respondent submitted that appropriate order may

be passed.

6. Heard the contentions urged on behalf of

parties and perused the writ papers with care.

7. The short point which requires consideration is

whether the order of the Tribunal requires consideration by

this Court?

The facts have been sufficiently stated. It is noted

that the Trishul Engineers Employees' Union has raised a

dispute against M/s. Trishul Engineers before the Industrial

Tribunal Bangalore in I.D.No.63/2017.

During the pendency of the dispute, the first party

the Union moved an application on 10.07.2019 under

Order 1 Rule 10 (2) of CPC to implead "Trishul Winding

Solution Pvt., Ltd., as a necessary party. The application is

at Annexure-B. The application is accompanied by an

affidavit. One Sri.Rajkumar, the General Secretary of the

Union has sworn to an affidavit.

I have perused the same with care. It is stated that

M/s.Trishul Engineers is carrying on its manufacturing

activities and business in the name of Trishul Winding

Solution Pvt. Ltd both at Harohalli and Konanakunte cross

even after the retrenchment of 16 Workmen as named in

the claim statement.

It is also stated that both M/s.Trishul Engineers and

M/s.Trishul Winding Solutions Pvt. Ltd., are one and the

same. M/s.Trishul Engineers is carrying on business in

different forms in order to deceive retrenched Workmen,

hence, it was just and proper to implead the proposed

second party i.e., M/s.Trishul Winding Solution Pvt. Ltd. He

has also stated that one Mr. Basavaraju G.E. is the owner

of both the units.

The proposed impleading applicant - M/s.Trishul

Winding Solutions Pvt. Ltd., filed objections. The same is

at Annexure-C. One Sri.Chikkaputtaiah, the Director of

M/s.Trishul Winding Solutions Pvt. Ltd., has sworn to an

affidavit and he has stated that M/s.Trishul Engineers and

M/s.Trishul Winding Solutions Pvt. Ltd., are two different

entities in all respects. It is also stated that the Workmen

in I.D.No.63/2017 are not the employees of M/s.Trishul

Winding Solutions Pvt. Ltd., and there is no relationship of

whatsoever between the Workmen and M/s.Trishul

Winding Solutions Pvt. Ltd. Likewise, the second party also

filed a detailed objection.

The issue relates to impleading application. Order 1

Rule 10 (2) deals with adding or striking of parties. Under

this Rule, a person may be added as a party to a suit

proceeding in the following cases-

1. When he ought to have been joined as plaintiff or defendant, and is not joined so: or

2. When, without his presence, the questions in the suit cannot be completely decided. There is no jurisdiction to add a party in any other case.

Reverting to the facts of the case, M/s.Trishul

Winding Solutions Pvt. Ltd., the proposed second party

specifically contended that the two Companies / Industries

are different. To be precise, the M/s.Trishul Winding

Solutions Pvt. Ltd., is into assembling of Coil Winding

Machines when the parts are manufactured by various

other manufactures. The Coil Winding Machines assembled

in the petitioner's Industry are mainly used in Power

Distribution Transformers. For assembling Coil Winding

Machines only Engineers with the background of Electronic

and Mechanical, and Diploma Holders in Electrical and

Mechanical Engineering are engaged. There is absolutely

no similarity in the products manufactured. Hence, it is

sought to urge that it is not a necessary party to the

dispute. However, the Union has urged that it is necessary

party.

It is significant to note that when the proposed

second party i.e., M/s.Trishul Winding Solutions Pvt. Ltd.,

has specifically denied its relationship with M/s.Trishul

Engineers- the second party, it was incumbent on the part

of the Tribunal to consider all the circumstances of the

case. No doubt, the provisions contained in Order 1 Rule

10 (2) is discretionary and addition of parties is a matter of

discretion of the Court. But, while considering whether an

order should be passed under Rule 10 (2 ) of Order 1, the

Court must consider all the circumstances of the case in

particular, the contentions urged by the proposed second

party.

While addressing argument, learned counsel

Sri.K.R.Anand, urged that the Tribunal is not justified in

according an opportunity to the proposed second party to

adduce evidence before allowing the application for

impleading. Learned counsel also submitted that the

Tribunal ought to have given reasonable opportunity for

the proposed second party to lead evidence on the

impleading application and also cross examine the Union

witness.

In reply, Sri.T.S.Anantharam, learned counsel

submitted that the Tribunal has given sufficient

opportunity.

The submission made on behalf of the Union and the

proposed second party are noted with utmost care.

I have also verified the order sheet of the Tribunal.

The same is at Annexure-'F'. It is necessary to note certain

dates from the order sheet.

A cursory look of the order sheet of the Tribunal

would disclose that the application for impleading is filed

on 10.07.2019 and notice was issued on the very same

day. The case was adjourned to 02.08.2019. The order

sheet dated 02.08.2019 depicts that 'the proposed second

party acknowledgement returned and served to proposed

party II'. The matter was adjourned to 29.08.2019 for

objections. The objections were filed by the second party

and the proposed second party on 29.08.2019. The same

has been noted in the order sheet. However, there is no

reference about the presence or absence of the proposed

second party from 29.08.2019 onwards. The order sheet

does not depict the same. Finally, the Tribunal passed the

order on 07.09.2021 and allowed the application.

As already noted above, in the present case, the

proposed second party - M/s.Trishul Winding Solutions Pvt.

Ltd., has categorically stated that it has nothing to do with

the second party-M/s.Trishul Engineers and the retrenched

Workmen are not its employees. The Tribunal ought to

have given an opportunity for the proposed impleading

applicant to adduce evidence on the Impleading application

so as to come to a proper conclusion that whether M/s.

Trishul Winding Solutions Pvt. Ltd., is ought to have been

joined as party to the dispute and in particular, to give a

finding that without its presence, the question in the

dispute cannot be completely decided.

Hence, in my considered opinion, the order of the

Tribunal in allowing the impleading application without

affording an opportunity to the proposed second party is

not sustainable.

The Tribunal has failed to have regard to relevant

considerations and disregarded relevant matters. In my

considered opinion, the order passed by the Tribunal is

unsustainable in law.

8. In the result, the writ petition is allowed. The

order dated:07.09.2021 passed by the Industrial Tribunal,

Bangalore on I.A.No.IV under Sections 10 and 11 of

Industrial Disputes Act r/w. Section 151 of CPC r/w Order

1 Rule 10(2) of CPC in I.D.No.63/2017 is set-aside.

The Tribunal to accord an opportunity for the

proposed second party - impleading applicant to lead

evidence on the impleading application. The Industrial

Tribunal to record evidence within two months from the

date of passing of this order, and pass appropriate orders

thereon.

Sd/-

JUDGE

VMB