Calcutta High Court
Anup Kumar Mukherjee vs The State Of West Bengal & Ors on 18 November, 2009
Author: Aniruddha Bose
Bench: Aniruddha Bose
WP No. 1103 of 2009
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ/Civil Appellate/Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
ANUP KUMAR MUKHERJEE Plaintiff/Petitioner/Applicant
Versus
THE STATE OF WEST BENGAL & ORS Defendant/Respondent
For Plaintiff/Petitioner :Mr. Saibal Mukherjee, Advocate For Defendant/Respondent :Mr. Dipak Das, Advocate for respondent No.1 Mr. D. K. Ghosh and Mr. R. Dey for respondent No.3 1 BEFORE:
2 3The Hon'ble JUSTICE ANIRUDDHA BOSE Date : 18th November, 2009.
The Court :- In this writ petition, the petitioner who claims to be a workman of the respondent no.3,
assails an order of the learned Judge, Second Industrial Tribunal passed on 30th October, 2009. In this order the Tribunal has rejected the petitioner's objection against filing of an additional written statement by the employer, being the respondent no.3.
This proceeding arises out of reference made before the Tribunal of a dispute involving allegation of termination of the petitioner's service. Both the parties i.e. the writ petitioner and the respondent no.3 had initially filed their respective written statements. Thereafter the petitioner sought to amend his written statement and the present proceeding arises out of the additional written statement filed by the employer in response to the amended written statement of the petitioner.
The main ground on which the writ petitioner objects to allowing the filing of the additional written statement by the Tribunal is that the additional written statement is not confined to the amended part of the written statement filed by the petitioner, but the additional written statement seeks to introduce various other factual issues which were not brought on record earlier. The submission of the petitioner is that if introduction of such additional factual issues were at all to be allowed, then the same should have been done by way of filing an amendment application of the employer's written statement.
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The learned Tribunal came to a finding that in the additional written statement, the employer did not travel beyond or made departure from its pleading in the original written statement. Learned Tribunal further observed that mere allowing certain statements to be incorporated in the additional statement would not constitute acceptance of such statements, and those facts would have to be independently established by the employer through evidence.
Mr. Mukherjee appearing for the petitioner relied on a decision of the Hon'ble High Court of Orissa in the case of Gannon Dunkerley & Co Ltd v. Steel Authority of India Ltd. Roukela reported in AIR 1993 Orissa 141 in support of his submission that inconsistent pleas cannot be allowed to be taken by filing additional written statement.
On this aspect, however, the Writ Court has limited jurisdiction to test an order of the Tribunal. The Tribunal has come to a finding that the employer has not made departure from its original pleadings taken in the written statement. I do not find any ex-facie error in the finding of the Tribunal on this count. Thus the ratio of this decision does not apply to the facts of the present proceedings.
In view of this finding I do not find any reason to interfere with the decision of the Tribunal. I also do not think the writ petitioner will be prejudiced in any way in the proceeding before the Tribunal if the filing of the additional written statement is allowed, since as observed by the Tribunal in the order impugned, mere making of the statement in the additional written statement 5 would not establish veracity of such statements and the employer would have to prove their pleading by adducing evidence.
It is also not the case of the petitioner that new facts could not at all be brought into in course of the proceeding at this stage. The case of the petitioner is that for such purpose, an amendment application would have to be filed and the original written statement would have to be amended. This is an argument based on form rather than on content or substance. In a proceeding before the Tribunal, I do not think a hypertechnical approach ought to be taken as regards the manner in which the pleadings are to be filed. In any event, as I have observed earlier and it has also been observed by the Tribunal that the additional facts, if at all, introduced by the additional written statement would have to be established by evidence and the petitioner will have sufficient opportunity before the Tribunal to rebut such factual issues at the stage of evidence. In the event the petitioner considers any allegations on factual issues have been brought on record for the first time, then it shall be open to the petitioner to apply before the Tribunal itself for opportunity for traversing those allegations by which the petitioner may feel prejudiced so that those pleading do not go unrebutted. If such an application is filed, the same shall be disposed of in accordance with law.
The writ petition stands disposed of in the above terms. Since this writ petition is being disposed of without calling for any affidavit, to which arrangement learned counsel appearing 6 for the employer and the State have agreed to, the allegations made in the writ petition shall be deemed to have not been admitted.
There shall, however, be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(ANIRUDDHA BOSE, J.) dg/ 7