Madras High Court
Mahalakshmi vs Deputy Commissioner Of Labour on 25 February, 2010
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 25.02.2010
Coram
The Honourable Mr. Justice K.CHANDRU
Writ Petition No.3905 of 2010
and M.P.No.1 of 2010
---
Mahalakshmi .. PETITIONER
Vs
1.Deputy Commissioner of Labour
Coimbatore-641 018
2.R.Raju
3.Rangaraj .. RESPONDENTS
------
Prayer
Prayer:-Writ Petition under Article 226 of the Constitution of India, praying for the issuance of a writ of Certiorari to call for records ending with the order of 1st respondent and made in I.A.No.45 /2009 in W.C.No.51/2008 dated 15.12.2009 pending on the file of 1st respondent and to quash the same.
For petitioner : Mr.N.Ishtiaq Ahmed
For respondents :
for R1 : Ms.Anitha, Govt.Advocate
O R D E R
Heard Both sides
2. The second respondent is a construction worker. It was his claim that he was employed by the third respondent to do a construction work in the house of one Maheswari W/o. Paramasivam situated in Aalamarathu Bus Stop at Perur. While, the second respondent was working on the staircase of the house, it gave away. The second respondent and one Selvam fell down from 20 ft height and the second respondent suffered injuries. A First Information Report was filed in F.I.R.No.139/2007 dated 12.08.2007 before the Perur Police Station at Perur. Subsequently, the petitioner filed a Workmen's compensation claim before the Deputy Commissioner of Labour in W.C.No.51 of 2008. In that Workmen's compensation case, the second respondent made the third respondent as first opposite party and the petitioner as the second opposite party. The second opposite party was described as Maheswari W/o. Paramasivam and the address was also given in the W.C.,case as if that person residing near Aalamarathu Bus stop, Siruvani Main Road, Coimbatore.
3. The writ petitioner, who was issued with summons had come forward with counter statement dated Nil April 2009 that her name is Mahalakshmi and not Maheswari. However, she is the wife of Paramasivam and she had been wrongly issued with summons. Thereafter, proof affidavit was filed by the second respondent and the writ petitioner also filed a proof affidavit. In that , onceagain, she asserted that her name is Mahalakshmi W/o.Paramasivam and she had also produced property tax receipts and Voter Identity Card. She also stated that she was no where responsible for the injury suffered by the second respondent and she never entrusted any building construction work to the third respondent. Since, that was only a defence of the petitioner in the W.C.,case, this court need not go into the claim and counter claim in the case, as the issue is pending in W.C.No.51 of 2008.
4. Subsequent to the petitioner's proof affidavit, the second respondent filed I.A.No.45 of 2009 purported under Order 6 Rule 17 of C.P.C., seeking for amending his original petition. The petitioner filed a counter statement opposing the allowing of the amendment. Onceagain, she asserted that she was always known as Mahalakshmi and not Maheswari. However, the first respondent, Deputy Commissioner of Labour passed an order that in so far as the amendment of the name is concerned, it can be ordered on the basis of the endorsement made by the second respondent. The other amendments were not pressed.
5. In the order, which is impugned dated 15.12.2009, it is also recorded that the amendment has been allowed on the basis of the consent given by the representative of the opposite party. It is this amendment in changing the name of the petitioner from Maheswari to Mahalakshmi, the petitioner has come forward to file the present writ petition.
6. Mr.N.Istizq Ahmed, learned counsel for the petitioner submitted that her client had not given any consent for the amendment and no opportunity was given in effecting the amendment.
7. It is always the case of the petitioner that she is Mahalakshmi and not Maheswari and she is not responsible for making compensation to the second respondent. That issue will have to be tried before the Deputy Commissioner of Labour. Therefore, her defence need not be taken into account at this stage.
8. It is suffice to state that the second respondent in a mistaken identity stated Mahalakshmi as Maheswari, but her husband's name was correctly given and the location of the building was also given even in the original application. Hence, the amendment is only of a clerical nature and therefore, the grant of prayer in the exercise of power under Article 226 of the Constitution of India cannot be countenanced. It would no way prejudice the petitioner's defence regarding the liability. Her defence survives even after the amendment. The same has to be tried by leading proper evidence and pleading materials before the Deputy Commissioner of Labour.
9. In the light of the above, this court is not inclined to interfere with the order dated 15.12.2009. If the petitioner is of the opinion that the amendment has brought a sea change in her case, it is open for her to file additional written statement for which ample provisions are provided under the Civil Procedure Code and that the trial had also not commenced. Accordingly, the writ petition stands dismissed. No costs. Consequently, connected M.P.No.1 of 2010 is closed.
nvsri To
1.Deputy Commissioner of Labour Coimbatore 641 018