JUDGMENT : HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY 1. Heard the parties. 2. This Writ Petition has been filed under Articles 226 of the Constitution of India with the prayer for issue of writ (s)/order (s)/direction(s) to quash and set aside the order dated 08.05.2023 passed by the Presiding Officer, Labour Court, Jamshedpur in I.D. Case No. 02 of 2018 whereby and where under, the Labour Court, Jamshedpur allowed the petition dated 30.06.2022 filed by the respondent no.3- workman under Order VI Rule 17 of Code of Civil Procedure, 1908 on erroneous findings that the petitioner-management has not examined any witness. 3. The brief facts of the case is that the respondent no.3-workman filed an industrial dispute under Section 2 (A) (2) of the Industrial Dispute Act, 1947 as amended by the Industrial Dispute (Amendment) Act, 2010 with a prayer to set aside the order of his illegal termination from the services by the Management-Writ petitioner along with reinstatement with full back wages and continuity of services with all benefits. 4. In the said I.D. Case No. 2 of 2018 one witness of the applicant-workman in the Labour Court, Jamshedpur has been examined, cross-examined and discharged and from the side of the Management, one witness has been examined and cross-examination of him has been done in part. During his examination-in-chief, witness has proved certain documents. 5. When the matter stood thus; on 07.07.2020, the respondent no. 3 filed a petition to amend his pleading by incorporating the following amendment “That the Workman due to the stigma attached to his profile arising due to the illegal order of termination by the Management which is under challenge and non-issuance of proper relieving letter by the Management, has not been under gainful employment starting from June 2015 to July 2015 and then from April 2015 till February 2022 and is therefore entitled for back wages for that period from the Management” 6. The Labour Court, Jamshedpur allowed the said prayer by amending of the pleadings but it appears that inadvertently, it has been mentioned in the order dated 08.05.2023 that the management has not examined any witness hence, the question of prejudice to the management by way of amendment of the pleadings does not arise. 7. The Labour Court, Jamshedpur allowed the said prayer by amending of the pleadings but it appears that inadvertently, it has been mentioned in the order dated 08.05.2023 that the management has not examined any witness hence, the question of prejudice to the management by way of amendment of the pleadings does not arise. 7. It is submitted by the learned counsel for the petitioner that the Labour Court, Jamshedpur has committed gross illegality by observing that no witness has been examined though in fact, the examination in chief of one of the witness of the management has been completed and certain documents was proved by the sole management witness examined in the case so far and even the sole witness of the management examined so far has been cross-examined in part but because of delaying tactics adopted by the respondent no.3 of this writ petition, no cross-examination of the sole management witness examined so far, before the labour court has yet been completed. Relying upon the judgment of Hon’ble Supreme Court of India in the case of Vibyabai & Ors. vs. Padmalatha & Anr. reported in (2009) 2 SCC 409 , paragraph no.10 and 11 of which reads as under:- “10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 Rule 17 of the Code, which reads as under: “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.” It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. 11. From the order passed by the learned trial Judge, it is evident that the respondents had not been able to fulfil the said precondition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. From the order passed by the learned trial Judge, it is evident that the respondents had not been able to fulfil the said precondition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination-in-chief of the witness, in our opinion, would amount to “commencement of proceeding”.” 8. It is submitted by the learned counsel for the petitioner that in the absence of the condition precedent as mentioned in Order VI Rule 17 of Code of Civil Procedure, the jurisdiction of the court to allow such an application for amendment has been taken away. 9. It is next submitted by the learned counsel for the petitioner that there is no material in the record to suggest that the respondent no.3-workman could not have pleaded the amendment being sought to be incorporated by way of amendment in-spite of due diligence and in the absence of the same, the Labour Court, Jamshedpur has committed a grave illegality by allowing the amendment. 10. It is next submitted by the learned counsel for the petitioner that since the examination-in-chief of the sole witness of the management has already been made therefore the management will be prejudiced by the said amendment of the pleadings of the respondent no.3-workman at this belated stage of the case before the Labour Court, Jamshedpur as by way of such amendment, the respondent no.3-workman intend to set up the claim and fresh cause of action against the petitioner. It is then submitted by the learned counsel for the petitioner that because of this reason also, the impugned order suffers from gross illegality. It is therefore, prayed that the prayer as made in the writ petition be allowed. 11. Learned counsel for the respondent no.3 on the other hand opposes the prayer to quash the order dated 08.05.2023 passed by the Presiding Officer, Labour Court, Jamshedpur in I.D. Case No. 02 of 2018. It is therefore, prayed that the prayer as made in the writ petition be allowed. 11. Learned counsel for the respondent no.3 on the other hand opposes the prayer to quash the order dated 08.05.2023 passed by the Presiding Officer, Labour Court, Jamshedpur in I.D. Case No. 02 of 2018. It is submitted by the learned counsel for the respondent no.3 that since the impugned order is a judicial order passed by a court, the same can only be challenged invoking the jurisdiction of this Court under Article 227 of the Constitution of India but not in exercise of the jurisdiction under Article 226 of the Constitution of India. It is next submitted by the learned counsel for the respondent no.3 that the prayer of back wages was made in the said application under Section 2 (A) (2) of the Industrial Dispute Act filed vide I.D. Case No. 2 of 2018 hence, the scope of the litigation has not been enhanced in any manner by way of amendment of the pleading of the respondent no.3- Workman who is the applicant before the Labour Court, Jamshedpur in the said I.D. Case No. 2 of 2018. It is next submitted by the learned counsel for the respondent no.3 that the labour court committed an error by mentioning that no witness of the management has been examined but the same can be rectified by the labour court but inadvertent mistake of a labour court is not a sufficient ground in itself to set aside the entire order when the order is otherwise sustainable in law. Relying upon the judgment of Hon’ble Supreme Court of India in the case of South Konkan Distilleries & Anr. vs. Prabhakar Gajanan Naik & Ors. reported in 2008 (6) Supreme 714 , paragraph no. 8 of which reads as under:- “8. Before we deal with the Orders of the courts below, as to whether the application for amendment of the written statement and the counter claim was rightly rejected or not, let us consider the laws on the question of allowing or rejecting a prayer for amendment of the pleadings when the plea of limitation was taken by one of the parties in the suit. It is well settled that the court must be extremely liberal in granting the prayer for amendment, if the court is of the view that if such amendment is not allowed, a party, who has prayed for such an amendment, shall suffer irreparable loss and injury. It is also equally well settled that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. It is always open to the court to allow an amendment if it is of the view that allowing of an amendment shall really sub-serve the ultimate cause of justice and avoid further litigation. In L.J.Leach & Co. Ltd. & Anr. Vs. M-s. Jardine Skinner & Co., [ AIR 1957 SC 357 ], this Court at paragraph 16 of the said decision observed as follows :- “It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be Ordered, and does not affect the power of the court to Order it, if that is required in the interest of justice.” 12. It is submitted by the learned counsel for the respondent no.3 that it is well settled that the court must be extremely liberal in granting the prayer for amendment, if the court is of the view that if such amendment is not allowed, a party, who has prayed for such an amendment shall suffer irreparable loss and injury. It is also equally well settled that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. It is always open to the court to allow an amendment if it is of the view that allowing of an amendment shall really sub-serve the ultimate cause of justice and avoid further litigation. 13. Learned counsel for the respondent no.3 next relied upon the judgment of Hon’ble Supreme Court of India in the case of Rajesh Kumar Aggarwal & Ors. vs. K.K. Modi & Ors. 13. Learned counsel for the respondent no.3 next relied upon the judgment of Hon’ble Supreme Court of India in the case of Rajesh Kumar Aggarwal & Ors. vs. K.K. Modi & Ors. reported in 2006 (3) Supreme 507 and submits that it is the primary duty of the court to decide whether the amendment sought is necessary to decide the real dispute between the parties and if the answer is affirmative then the amendment has to be allowed otherwise it is to be refused. It is then submitted by the learned counsel for the respondent no.3 that as undisputedly the respondent no.3 of this writ petition was applicant before the Labour Court, Jamshedpur and has prayed back wages, so the amendment of the pleadings of the respondent no.3 before the Labour Court, Jamshedpur which has been allowed is absolutely necessary to decide the real dispute between the parties and to quantify the back wages. Hence, it is submitted that this writ petition being without any merit be dismissed. 14. Having heard the rival submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law that wrong mentioning of a provision of law will not deprive of a party of the relief sought for if otherwise the party is entitled to such relief, more so, as in the facts of this case, when this Court in exercise their jurisdiction under both the Article 226 or 227 of the Constitution of India. So merely mentioning Article 226 of the Constitution of India in the writ petition is not a ground to throw the writ petitioner out when this Court undisputedly, has the power under Article 227 of the Constitution of India to adjudicate the lis agitated in this writ petition. 15. Now coming to the facts of the case, it is a settled principle of law that the provision of Code of Civil Procedure is not strictly applicable to the proceeding before the labour court. It is needless to mention that the Industrial Dispute Act is a beneficial piece of legislation. It incorporates provision which envisages that the workman can straightway approach the Labour Court- Tribunal without taking the assistance of any Advocate. 16. It is needless to mention that the Industrial Dispute Act is a beneficial piece of legislation. It incorporates provision which envisages that the workman can straightway approach the Labour Court- Tribunal without taking the assistance of any Advocate. 16. Coming to the facts of the case, undisputedly, the respondent no.3 before the Labour Court, Jamshedpur has prayed for back wages in the original application. For quantifying back wages and in case the prayer of the respondent no. 3 workman is allowed certainly, the amendment which has been allowed by the Labour Court, Jamshedpur will be necessary. 17. Under such circumstances, this Court do not find any justification to interfere with the order dated 08.05.2023 passed by the Presiding Officer, Labour Court, Jamshedpur in I.D. Case No. 02 of 2018 by which the Labour Court, Jamshedpur has allowed the prayer for amendment of the pleadings of the respondent no.3-applicant before it. 18. It is made clear that as the labour court has committed an error by mentioning that no witness of the management has been examined though in fact, the examination-in-chief of the sole witness of the management so far examined is already complete. 19. In view of the amendment being allowed, the Labour Court, Jamshedpur is directed to permit the writ petitioner to recall its sole witness examined in the case for further examination-in-chief in addition to an opportunity be given by the Labour Court, to the writ petitioner-management to file an additional written statement or to amend its pleading. 20. This writ petition is disposed of accordingly.