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2019 DIGILAW 202 (CAL)

Gloster Limited v. State of West Bengal

2019-02-07

ASHIS KUMAR CHAKRABORTY

body2019
JUDGMENT : Ashis Kumar Chakraborty, J. 1. The subject-matter of challenge in this writ petition at the instance of the employer is the order dated November 15, 2017 passed by the learned Second Industrial Tribunal, West Bengal in Case No. 07/2013 under Section 2A(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act of 1947"). 2. By the impugned order, the learned Tribunal has allowed the application filed by the applicant in the dispute case, the respondent no. 3 herein to amend his application under Section 2A of the Act of 1947. It is contended by the writ petitioner that by virtue of the provisions contained in Section 11(3) of the Act, 1947 the provisions of the Code of Civil Procedure (in short, "the Code") are applicable to the proceeding before an Industrial Tribunal. However, in the present case, the learned Tribunal committed an error of law by allowing the application filed by the workman, the private respondent no. 3 herein to amend his written statement, after commencement of the trial of the proceeding. It was further argued before the Tribunal that in the present case an application filed by the applicant, the private respondent herein, under Section 15(2)(b) of the Act of 1947 of the West Bengal Amendment was rejected on the ground that the applicant was unable to prove the nature of duty performed by him in the company. 3. It was only after rejection of the said application under Section 15(2)(b) of the Act of 1947 of the West Bengal Amendment, the petitioner/employer filed written statement denying the applicant before the Tribunal to be a workman within the meaning of Section 2(s) of the Act of 1947. Based on the pleadings filed by the respective parties the Tribunal also framed an issue, inter alia, as to whether the applicant in the proceeding under Section 2A (2) of the Act of 1947, the respondent is a workman of the employer. After framing of all the issues the applicant, the respondent no. 3 herein also started to adduce his evidence and at that stage he filed the application for amendment of his statement of case to incorporate averments as to the nature of job/duties assigned to and performed by him at the factory of the petitioner company. After framing of all the issues the applicant, the respondent no. 3 herein also started to adduce his evidence and at that stage he filed the application for amendment of his statement of case to incorporate averments as to the nature of job/duties assigned to and performed by him at the factory of the petitioner company. In these facts, it was strenuously contended by the petitioner that when the trial of the dispute case had already commenced before the learned Tribunal, in view of the Proviso of Order VI Rule 17 of the Code of Civil Procedure (in short, "the Code") as amended with effect from July 01, 2002 the applicant before the Tribunal could not maintain the application for amendment of his statement of case. Consequently, the learned Tribunal committed a patent illegality by allowing such amendment application. Learned counsel appearing for the petitioner relied upon an unreported decision of the learned Single Judge of this Court dated July 17, 2013 passed in W.P. 17834 (W) of 2013 (M/s. Amrutanjan Health Care Limited vs. State of West Bengal & Ors). On the strength of the said decision was urged by the petitioner that the provisions of order VI Rule 17 of the Code, as amended with effect from July 01, 2002 is squarely applicable in the proceedings before the Labour Tribunal under the Act of 1947. The petitioner also cited a reported decision of a learned Single Judge of the Delhi High Court in the case of Thankur Singh Rawat & Ors. Vs. Jagjit Industries Ltd., reported in (2006) ILLJ 775 Del. It was contended that in the facts of the present case, the impugned order passed by the learned Tribunal be set aside. 4. None appears to represent the respondent no. 3, the applicant before the learned Tribunal. However, Mr. Susanta Pal, learned Advocate appearing for the State-respondents strenuously contended that the impugned order passed by the learned Tribunal is not vitiated by any error of law calling for any interference by this Court in writ jurisdiction. 4. None appears to represent the respondent no. 3, the applicant before the learned Tribunal. However, Mr. Susanta Pal, learned Advocate appearing for the State-respondents strenuously contended that the impugned order passed by the learned Tribunal is not vitiated by any error of law calling for any interference by this Court in writ jurisdiction. He further submitted that from a reading of the provisions of Section 11(3) of the Act of 1947 and the sub-sections thereunder, it is clear beyond any doubt that the Labour Court, Tribunal or National Tribunal while discharging any adjudicatory function under the Act of 1947 are vested with the powers that of the Civil Court under the Code for the purpose of enforcing the attendance of any person and examining him on oath or compelling the production of documents and material objects and issuing commissions for the examination of witnesses or in respect of such other matters as may be prescribed. According to Mr. Pal, in the Act of 1947 or the Rules framed thereunder, there is no provision, which can be construed that the power of the Labour Court to allow any prayer for amendment of the pleadings of any party is circumscribed by any provision of the Code. He further submitted that it is trite law that the decision of a Court should not be read as a statute and the ratio in a decision is to be read in the background of the facts of that case. According to him, the decisions cited by the petitioner in the cases of M/s. Amrutanjan Health Care Limited (Supra) and in the case of Thankur Singh Rawat (Supra) have no application in the present case. 5. I have considered the materials-on-record as well as the arguments advanced by the learned counsel appearing for the petitioner and the State-respondents respectively. It is settled law that while dealing with an application for amendment of any pleading of a party any Court or Tribunal, as the case may be does not decide the correctness of the averments sought to be incorporated by way of amendment. The discretion of a Court and that of a Tribunal to allow a prayer of a party to amend his pleading in the case is wide. 6. The discretion of a Court and that of a Tribunal to allow a prayer of a party to amend his pleading in the case is wide. 6. In the present case, except Section 11(2) the petitioner could not draw the attention of this Court to any other provision of the Act of 1947 incorporating any provision of the Code to be applicable in any proceeding before the Labour Tribunal or the Labour Court under the Act of 1947. 7. Section 11(C) of the Act of 1947 provides the Labour Court, Tribunal or National Tribunal while discharging any adjudicatory function are vested with the powers that of the Civil Court under the Code for the purpose of enforcing the attendance of any person and examining him on oath or compelling the production of documents. There is nothing in the Act of 1947 or the Rules or the Regulations framed thereunder incorporating the entire code or the provisions of Order VI thereof applicable in any proceeding before any Labour Court or Labour Tribunal. However, even when the provisions of the Code are not applicable to a proceeding before any Tribunal or any Court, the power to allow amendment of the pleading of any party inheres in the Tribunal or the Court to do complete justice between the parties and to avoid multiplicity of judicial proceeding. 8. When the Order VI Rule 17 of the Code in its term does not apply to any proceeding, before the Labour Court or Labour Tribunal, under the Act of 1947, I am unable to comprehend as to how the Proviso to Rule 17 of Order VI of the Code can be made to be applicable in any proceeding under the Act of 1947. The Single Bench decision of this Court in the case of M/s. Amrutanjan Health Care (Supra) did not consider this aspect of the matter, as argued by the State respondent in this case. Thus, I find substance and accept the contention raised by the State respondents that the decisions of the learned single Judge of this Court in the case of Amrutanjan Health Care Ltd. (Supra) has no application in this case. Thus, I find substance and accept the contention raised by the State respondents that the decisions of the learned single Judge of this Court in the case of Amrutanjan Health Care Ltd. (Supra) has no application in this case. Further, the decision of the learned single Judge of the Delhi High Court in the case of Thankur Singh Rawat (Supra) is an authority for deciding an issue as to when the Labour Court or Tribunal can pass an award for re-instatement of an workman with back wages. Accordingly, the said decision has no application in the present case. 9. Considering the application filed by the applicant respondent no. 3 herein the Tribunal has found the amendment application to be bona fide and the present petitioner shall not suffer any prejudice if the amendment application is allowed. 10. After going through the amendment application filed by the applicant/private respondent before the Tribunal and considering the averments made therein, I am unable to convince myself that the discretion exercised by the Labour Tribunal to allow the said application to be vitiated by any perversity or illegality. 11. For the reasons as aforesaid, I do not find any merit in the writ application and the same stands rejected. 12. There shall, however, be no order as to costs. 13. Certified website copy of the judgment, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.