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2020 DIGILAW 498 (GUJ)

Mill Mazdoor Sabha Throu Secretary, Ashokbhai S/o Dahyabhai Khatsuriya v. Industrial Tribunal, Rajkot

2020-05-29

VIPUL M.PANCHOLI

body2020
JUDGMENT : 1. This petition is filed under Articles 226 and 227 of the Constitution of India in which the petitioner has challenged the order dated 4.12.2018 passed by the Industrial Tribunal, Rajkot below Exh.291 in Reference (IT) No.46 of 2002. 2. Looking to the issue involved in the present petition, learned advocates appearing for the parties jointly requested that this petition be disposed off finally at admission stage. 3. Hence, Rule. Learned advocate Mr.Yogi Gadhia waives service of notice of rule for respondent no.2. 4. Learned advocate Mr.K.R.Koshti appearing for the petitioner submitted that the petitioner is a Union registered under the Trade Unions Act, 1926 whereas respondent no.2 and its sister concern namely SRS Bearing Industries and SRS Engineering effected closure of all activities illegally and without obtaining prior permission of the competent authority. The petitioner has, therefore, challenged the said action by raising the industrial dispute which was referred to Industrial Tribunal, Rajkot for its adjudication and the same is registered as Reference (IT) No.46 of 2002. Learned advocate for the petitioner referred to the averments made in the petition and pointed out the previous litigation. 5. Learned advocate for the petitioner thereafter submitted that the order of winding up of respondent no.2 company was passed by Bombay High Court and Official Liquidator was appointed as Liquidator of the said company. The petitioner, therefore, filed application Exh.83 and requested the Tribunal to join the Official Liquidator as party in the pending reference. The said application was given on 18.3.2010 and the Official Liquidator was joined as party in the reference. It is further submitted that the Official Liquidator neither remained present before the Tribunal nor produced any evidence. Therefore the petitioner submitted an application vide Exh.185 and requested the Tribunal to close the evidence of the respondent no.2. The Tribunal, therefore, passed the order on 7.9.2013 below Exh.185 and the right of the respondent no.2 to produce evidence was closed. It is further submitted that thereafter the Bombay High Court passed an order in winding up petition on 5.2.2018 and thereby earlier order passed for appointment of Official Liquidator was recalled. Thereafter, the Chairman and Managing Director of the respondent no.2 namely Rushabh Precision Bearings Ltd. submitted the evidence in the form of affidavit vide Exh.289 before the Tribunal. It is further submitted that thereafter the Bombay High Court passed an order in winding up petition on 5.2.2018 and thereby earlier order passed for appointment of Official Liquidator was recalled. Thereafter, the Chairman and Managing Director of the respondent no.2 namely Rushabh Precision Bearings Ltd. submitted the evidence in the form of affidavit vide Exh.289 before the Tribunal. Learned advocate for the petitioner has referred to the said affidavit which is placed on record at page 21. When the petitioner came to know about the said affidavit filed by the respondent no.2, the petitioner submitted an application below Exh.290 wherein the petitioner has pointed out that the right of the respondent no.2 to produce the evidence is already closed on 7.9.2013 and therefore it is not open for the respondent no.2 to file such affidavit before the Tribunal. It was, therefore, requested that the said affidavit be discarded. At this stage, it is further submitted that the Tribunal passed the order below Exh.290 on 30.10.2018 wherein it is specifically stated that right of the respondent no.2 to produce the evidence was already closed on 7.9.2013 and the said stage is not reopened and therefore the affidavit filed by the respondent no.2 cannot be taken on record. The matter was, thereafter, kept for arguments. 6. Learned advocate Mr.Koshti would further submit that now the respondent no.2 filed application Exh.291 before the Tribunal for reopening of the stage of production of evidence of respondent no.2. The said application was given on 13.11.2018. It was also requested that after the stage is reopened, the affidavit of the respondent no.2 be taken on record. It is submitted that by way of impugned order dated 4.12.2018, the application Exh.291 filed by the respondent no.2 has been allowed on condition that respondent no.2 shall pay Rs.5000/- to the Union. The petitioner has, therefore, filed the present petition challenging the said order. 7. Learned advocate Mr.Koshti for the petitioner has assailed the impugned order on the ground that the Tribunal has no power to review its own order. It is submitted that when the Tribunal has discarded the affidavit filed by the respondent no.2 while passing the order dated 30.10.2018 passed below Exh.290 filed by the present petitioner, it was not open for the Tribunal to pass an order below application Exh.291 by granting permission to reopen the stage of producing the evidence before the Tribunal. It is submitted that when the Tribunal has discarded the affidavit filed by the respondent no.2 while passing the order dated 30.10.2018 passed below Exh.290 filed by the present petitioner, it was not open for the Tribunal to pass an order below application Exh.291 by granting permission to reopen the stage of producing the evidence before the Tribunal. It is, therefore, contended that once the affidavit is filed by the respondent no.2 is discarded, now indirectly the same affidavit is permitted to be produced on record by reopening the stage of production of evidence. It is, therefore, urged that the impugned order be set aside. It is further submitted that respondent no.2 may not be permitted to fill in the lacuna by filing the affidavit of the respondent no.2 and if it is permitted, right of the petitioner will be prejudiced. It is also contended that the order passed by the Tribunal below application Exh.290 by which the affidavit of the respondent no.2 is discarded has not been challenged by respondent no.2 before higher forum and therefore it is not open for the Tribunal to pass fresh order permitting respondent no.2 to produce such evidence on record. Learned advocate Mr.Koshti has placed reliance upon the following decisions: 8….. 9. 1. Santhirakani V/s Vijaya @ Viji, passed in CRP (PD) (MD) Nos.2557 of 2014 decided on 30.3.2015 by the Madras High Court; 10. 2. M/s Bagai Construction Tr.Prop V.s M/s Gupta Building Material Store passed in Civil Appeal No.1787 of 2013 decided on 22.2.2013; 11. 3. Vadiraj Naggappa Vernekar(D) Th... V/s Sharad Chand Prabhakar Gogate passed in Civil Appeal No.1172 of 2009 decided on 24.2.2009. 12….. 13. After referring to the aforesaid decisions, it is contended that the Hon'ble Supreme Court has considered the provisions of Code of Civil Procedure and thereafter observed that the said provisions are not intended to be used to fill up the omissions in the evidence of witness who has already been examined and power under the provision of Order 18 Rule 17 of C.P.C. is to be sparingly exercised and in appropriate cases. It is submitted that provisions of CPC would be applicable to the Industrial Disputes Act, 1947 also. It is, therefore, urged that the impugned order passed by the Tribunal be quashed and set aside. 14. It is submitted that provisions of CPC would be applicable to the Industrial Disputes Act, 1947 also. It is, therefore, urged that the impugned order passed by the Tribunal be quashed and set aside. 14. On the other hand, learned advocate Mr.Yogi Gadhia appearing for the respondent no.2 submitted that the respondent no.2 company was ordered to be wound up by the Bombay High Court and the Official Liquidator was appointed. The petitioner, therefore, filed application Exh.83 before the Tribunal and requested to join the Official Liquidator as party respondent in the pending proceedings before the Tribunal. The Tribunal allowed the said application on 18.3.2010. It is submitted that the Official Liquidator did not appear before the Tribunal and therefore the Tribunal passed an order below Exh.185 filed by the petitioner by which the stage of the respondent no.2 to produce the evidence was closed. The Managing Director of respondent no.2 was not in a position to appear on behalf of respondent no.2 company as the Official Liquidator was appointed. It is further submitted that now the Bombay High Court has passed an order dated 5.2.2018 by which the order dated 30.3.2010 passed in Company Petition No.18 of 1998 was recalled and the Official Liquidator High Court of Bombay appointed pursuant to the order dated 30.3.2010 is discharged. It is, therefore, submitted that now the Managing Director of the respondent no.2 company can defend the case before the Tribunal. 15. It is also contended that when the Managing Director of respondent no.2 filed affidavit before the Tribunal, initially the said affidavit was accepted. However, when the petitioner filed an application pointing out that the stage of production of evidence was already closed in the year 2013, the Tribunal discarded the said affidavit, at that stage, on the ground that the stage of production of evidence of respondent no.2 is already closed and therefore till it is reopened, such type of affidavit cannot be accepted. Now the respondent no.2 has filed the application with a request to reopen the stage of evidence of respondent no.2 and therefore the said request is accepted. Thus, it cannot be said that the Tribunal has reviewed its own order. It is further submitted that the affidavit of respondent no.2 is not filed with a view to fill in the lacuna as alleged by the petitioner. Thus, it cannot be said that the Tribunal has reviewed its own order. It is further submitted that the affidavit of respondent no.2 is not filed with a view to fill in the lacuna as alleged by the petitioner. Learned advocate, therefore, urged that the Tribunal has not committed any error while passing the impugned order and therefore this petition be dismissed. 16. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it has emerged that during the pendency of the reference before the Tribunal, the respondent company was ordered to be wound up by the Bombay High Court vide order dated 30.3.2010 and the Official Liquidator was appointed as Liquidator of the respondent no.2 company. The petitioner, when came to know about the same, filed an application Exh.83 before the Tribunal and requested the Tribunal to join Official Liquidator as party in the pending reference. The said application was allowed and the Official Liquidator was ordered to be joined as party in the pending reference. It has reflected from the record that Official Liquidator neither remained present before the Tribunal nor filed any evidence on behalf of the respondent no.2-company and therefore the petitioner filed application Exh.185 with a request that the stage of production of evidence of respondent no.2 be closed. The said application was allowed by the Tribunal in September, 2013. 17. At this stage, it is pertinent to note that the Chairman and Managing Director of the respondent no.2 could not appear before the Tribunal as the order of winding up was passed and the Official Liquidator was appointed, however, on 5.2.2018, the Bombay High Court has recalled the order of appointment of Official Liquidator and the Official Liquidator is discharged. Thus, now the respondent no.2 company is not under liquidation and therefore the Chairman and Managing Director of the respondent no.2 appeared before the Tribunal and filed an affidavit. The Tribunal accepted the said affidavit ignoring the fact that the stage of production of evidence of respondent no.2 was already closed in the year 2013. The petitioner, therefore, pointed out to the Tribunal by filing application Exh.290 that such type of evidence cannot be accepted as the stage of production of evidence was already closed. The Tribunal accepted the said affidavit ignoring the fact that the stage of production of evidence of respondent no.2 was already closed in the year 2013. The petitioner, therefore, pointed out to the Tribunal by filing application Exh.290 that such type of evidence cannot be accepted as the stage of production of evidence was already closed. The Tribunal, therefore, allowed the application filed by the petitioner Exh.290 and discarded the affidavit filed by the respondent no.2 only on the ground that such type of affidavit cannot be accepted at that stage as the stage of production of evidence of respondent no.2 is already closed and till the same is reopened, the affidavit cannot be accepted. 18. Now the Chairman and Managing Director of respondent no.2 vide Exh.291 requested to reopen the stage of production of evidence on the grounds stated in the said application and request was also made to accept the affidavit after the stage is reopened. The Tribunal, after recording the detailed reasoning, allowed the said application and stage of production of evidence of respondent no.2 is reopened. 19. From the aforesaid facts and circumstances of the present case, it cannot be said that the Tribunal has reviewed its own order. It is required to be recalled at this stage that the affidavit of the Chairman and Managing Director of respondent no.2 was discarded by the Tribunal as the stage for production of evidence was already closed. However, it is always open for the Tribunal to reopen the said stage if the convincing material is placed before it. In the present case, respondent no.2 has placed on record sufficient material for reopening the stage of production of evidence and therefore the Tribunal, after recording the reasons, allowed the said application. 20. In the facts and circumstances of the present case, as discussed hereinabove, it cannot be said that the affidavit is filed by the respondent no.2 to fill in the lacuna. It is always open for the petitioner to cross-examine the concerned person who has filed the affidavit before the Tribunal and therefore it cannot be said that right of the petitioner is prejudiced. This Court has also gone through the decisions upon which the reliance is placed by learned advocate for the petitioner. However, in the facts of the present case, the said decisions would not render any assistance to the petitioner. 21. This Court has also gone through the decisions upon which the reliance is placed by learned advocate for the petitioner. However, in the facts of the present case, the said decisions would not render any assistance to the petitioner. 21. In view of the aforesaid discussion, when the Tribunal has not committed any error while passing the impugned order, this Court is not inclined to interfere with the same. Accordingly, this petition is dismissed. 22. Registry to communicate this order to the concerned person/authority by fax or email.