Madhya Pradesh High Court
Army Public School vs Ramdhan Sharma on 23 July, 2014
W.P.4753/2012 1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Writ Petition No. 4753/2012
Army Public School through its Principal
Vs.
Ramdhan Sharma
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Shri Chetan Kanungo, Advocate for the petitioner.
Shri Vivek Jain, Advocate for the respondent.
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ORDER
(23 / 07 /2014) This petition filed under Article 227 of the Constitution challenges the order dated 31.5.2012 whereby application for amendment preferred by the petitioner/employer is rejected by the Labour Court.
2. The services of the respondent were terminated by the petitioner Army Public School. The respondent raised an industrial dispute which, in turn, was referred to the Labour Court by the State Government. The respondent filed its statement of claim before the Labour Court. In turn, the employer filed his written statement. Thereafter, when matter was at the stage of evidence, the employer filed an application under Order 6 Rule 17 CPC (Annexure P-8) on 25.12.2011. It was opposed by workman by filing reply. By impugned order, the said application is rejected.
3. The Labour Court rejected the application by holding that the amendment is filed after commencement of trial and, therefore, it cannot be allowed. It is further held that if averments of amendment application are accepted, it will change the nature of the case. The present dispute is sent by M.P. Government and if amendment is accepted, the appropriate Government will be Central Government. Thus, acceptance of amendment will result W.P.4753/2012 2 into automatic cancellation of reference. Thus, in the opinion of Labour Court, it amounts to change of nature of the case which cannot be allowed.
4. Criticizing this order, Shri Chetan Kanungo, learned counsel for the petitioner submits that the strict principles of CPC are not applicable in industrial adjudication. Certain provisions of CPC are borrowed under Section 11(3) of Industrial Disputes Act, 1947 (ID Act). He relied on an unreported judgment of Karnataka High Court in W.P.No. 19333/2012 (M/s Automobile Service Centre Vs. S.Selvaraj) to submit that amendment needs to be dealt with leniently.
5. The stand of Shri Vivek Jain, learned counsel for the workman is that belated amendment is malicious. In written statement, the employer had taken a stand that it is governed under Society Registration Act. The employer is not getting any financial aid from Central Government, nor it is a public body. The contract between workman and employer is a service contract. The employer school is a private school. By way of amendment, a 'U' turn is taken by stating that the land, building etc. are provided by Central Government. The land and building provided is through Cantonment Board and the appropriate Government is Central Government. Shri Jain submits that complete somersault is not permissible. He relied on AIR 1998 SC 617 (M.C.Mehta Vs. Union of India and others) in this regard. In addition, it is submitted that as per Section 2 (a), for petitioner Central Government is not the appropriate Government. By placing reliance on Section 10(4) of ID Act, it is urged that the Labour Court cannot travel beyond the reference and, therefore, it cannot adjudicate whether the State Government is the appropriate Government. He submits that Labour Court assumed jurisdiction because of the reference. Thus, it cannot decide whether the State Government is the 'appropriate Government'. If amendment is allowed, Labour Court would be required to decide whether W.P.4753/2012 3 State Government is appropriate Government which will be beyond the scope of jurisdiction of Labour Court. On these grounds, he supported the Labour Court's order.
6. No other point is pressed by the learned counsel for the parties.
7. I have heard the learned counsel for the parties and perused the record.
8. In the written statement filed by the employer it was stated that the employer is not getting any financial aid from the Central Government and it does not fall within the public body. However, as per Section 2 (a) of the Act, the Central Government may be an 'appropriate Government' if the industry is carried on by or under the authority of Central Government. By way of amendment application, the employer intended to add that for the employer, 'appropriate Government' is Central Government. To determine this aspect, the Labour Court may be required to record evidence. This question will be a mixed question of fact and law. This aspect will be dealt with in the later portion of this order. However, the amendment shows that employer intended to strengthen his pleadings and clarify the aspect of 'appropriate Government'. This is settled in law that at the time of deciding amendment application, the Court below is not required to examine the merits of the said application. The Karnataka High Court in M/s. Automobile Service Centre (supra) opined that the amendment in the plaint and amendment in written statement are to be dealt with by applying different parameters. Reliance is placed on AIR 2007 SC 1663 (Usha Bala Saheb Swami Vs. Kiran Appaso Swami). After taking stock of various judgments, the High Court opined that it is open to the party to explain their stand by filing an application for amendment in the written statement. Such amendment will not cause any prejudice to the other side. Lastly, it was held that the Industrial Tribunal has not committed any error in allowing the amendment application whereby maintainability of W.P.4753/2012 4 the matter was disputed/raised. At the cost of repetition, in my opinion, the strict principle flowing from CPC cannot be made applicable in industrial adjudication. The employer intended to strengthen its pleadings by way of amendment. In written statement there was no admission by the employer that state government is the 'appropriate government'. Hence question of withdrawal from any admission does not arise. The judgment of M.C. Mehta (supra) is not applicable in the facts of this case.
9. Section 11(3) of I.D.Act, 1947 makes it clear that the Labour Court is equipped with the power of Civil Court under the CPC for the purpose of,
(a) enforcing the attendance of any person and examining him on oath;
(b) compelling the production of documents and material;
(c) issuing commissions for the examination of witnesses;
(d) in respect of such other matters as may be prescribed,
10. Section 11(3) of the Act makes it clear that provisions of CPC are borrowed to a limited extent. Thus, proviso to Order 6 Rule 17 CPC cannot be made applicable in industrial adjudication. The amendment needs to be considered as per broad principles. It is to be seen whether amendment is necessary for lawful adjudication of the matter and whether it will cause any prejudice to the other side. In the present case, in my opinion, by applying those principles, the amendment is necessary and if it is allowed, it will not cause any prejudice to the other side. Another basic objection of the workman is that the Labour Court cannot travel beyond the scope of reference and it has to confine to the points involved in the reference made to it. Section 10 (4) of the I.D.Act reads as under:-
"(4) Where in an order referring an industrial dispute to (a Labour Court, Tribunal or national Tribunal) under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, (the Labour Court or the W.P.4753/2012 5 Tribunal or the national Tribunal, as the case may be,) shall confine its adjudication to those points and matters incidental thereto." (Emphasis supplied)
11. In view of this stand and on account of the finding of Labour Court that effect of allowing amendment would be automatic rejection of reference, it is necessary to deal with this aspect. Section 10(4) employs the word matters 'incidental thereto'. The question is whether the question regarding which Govt. is appropriate government can be treated as 'incidental question'?
12. In AIR 1963 SC 569 (Management of Express Newspapers (Private) Ltd., Madras Vs. The Workers and others), the Apex Court considered the scope of Section 10(4). It opined as under:-
"In several cases where industrial disputes are referred for industrial adjudication in respect of certain persons named as workmen, the employers raise the contention that the specified persons are not their workmen and merely because the said persons are described as workmen in the reference, the employer is not precluded from disputing their status and the Tribunal has jurisdiction to try such an incidental dispute."
13. The meaning of word 'incidental' was considered by five Judges bench of Supreme Court in AIR 1961 SC 284 (State of Orissa and another Vs. M/s. Chakobhai Ghelabhai and Co.). The Apex Court opined that we are unable to agree with the High Court that the word 'incidental' has reference to a matter of casual nature only.
14. In 1989 Supp (1) SCC 347 (M/s. Shroff and Co. Vs. Municipal Corpn. of Greater Bombay and another), the Apex Court followed the judgment in State of Orissa (supra) and opined that the expression "incidental" means necessary in certain contexts which does not mean a matter of casual nature only. According to Websters New World Dictionary, the word"incidental" means happening or likely to happen as a result of or in connection with something more important, being an incident, casual, hence secondary or minor, but usually associated". In the W.P.4753/2012 6 words of Mitter, J., "something incidental to a dispute must, therefore, means something happening as a result of or in connection with the dispute or associated with dispute. In various industrial disputes, question arose whether the employee is 'workmen' as defined under Section 2(s) of the I.D. Act. The argument of workman/employee before the Labour Court was that this aspect cannot be gone into by the Labour Court. If Labour Court comes to the conclusion that employee is not 'workman' under the I.D.Act, the dispute no more survives before Labour Court. In many cases, the question arose whether the employer falls within the ambit of 'industry' as defined under Section 2(j) of the I.D.Act. Similar argument is advanced by the workman that if it is held that the employer is not an "industry" within the meaning of I.D.Act, the reference will fail and this aspect cannot be gone into by the Labour Court. In Management of Express Newspapers (supra), the Apex Court made it clear that the employer is not precluded from disputing the status of employee as 'workman' and Industrial Tribunal has jurisdiction to try such industrial dispute being an incidental question/matter.
A Division Bench of this Court in 1991 (Volume 63) Indian Factories and Labour Reports page 222 (Rajya Gramin Vikash Sansthan Adharta and State of M.P. and others) opined that in an industrial dispute referred to Labour Court, the question may arise whether Labour Court has jurisdiction to determine on the facts placed before it and whether an industrial dispute has really arisen within the meaning of Section 2(k) of the Act or the concerned person is 'workman' as defined under Section 2(s) or a particular establishment/undertaking is an "industry" within the meaning of Section 2 (j) of the Act. Such question, therefore, can validly be examined and adjudicated in order of the reference itself as matters incidental to the points in dispute specified in the order of reference. This Court opined that such industrial matters as aforesaid have to be determined necessarily as collateral or W.P.4753/2012 7 jurisdictional issues, because the jurisdiction of Labour Court depends upon such determination which go to the root of the case.
15. In the opinion of this Court, the Labour Court can also examine as to which Government is the 'appropriate Government' in relation to a particular employer. This may be a mixed question of fact and law. To determine this, the Labour Court may be required to examine the factual aspects like element of financial or administrative control of a particular Government on the employer, nature, constitution and activity of the organization, source of its creation (depending on statue etc.). In addition, Labour Court may be required to examine whether such 'industry' is carried on by or under the authority of Central Government. The Labour Court is well equipped to record the evidence and decide these aspects on merits. In the opinion of this Court, when Labour Court decides that employee is not a 'workman' or establishment is not an 'industry' under the I.D.Act, the dispute is not decided on merits.As discussed above, in Management of Express Newspapers (supra), the Apex Court held that whether or not the employee is a workman is an incidental matter which can be decided by the Labour Court. I do not see any reason why Labour Court cannot decide as to which Government is appropriate Government. In my view whether or not a particular Government is appropriate Government is also an incidental matter which can be decided by the Labour Court. I find support in my view from the book the Law of Industrial Disputes (5th edition volume 1) by Shri O.P. Malhotra. The author opined that ''if the Government making the reference is not the appropriate Government within the meaning of S.2(a) of the Act, the reference will not be a valid reference. But in cases where certain disputed questions of fact are involved, the proper course would be to raise a preliminary objection before the Tribunal."
16. The Delhi High Court in Taj Services Limited Vs. Delhi W.P.4753/2012 8 Administration and others speaking through B.N.Kripal, J (as his Lordship then was) directed that if an objection is raised by the employer before the Tribunal that the reference has not been made by the appropriate Government, then the respondent will not contend, and nor can it in law contend, that the Industrial Tribunal cannot decide that question. The said question, namely, whether the reference has been made by the appropriate government or not can and will be decided by the Industrial Tribunal. (1989 (volume 58) Indian Factories & Labour Reports page 911). Apart from this, this is settled in law that making of reference is purely an administrative act. See five judges judgment reported in AIR 1953 SC 53 (State of Madras Vs. C.P.Sarathy and another). Thus, whether or not objection is raised by the employer during the conciliation proceedings before the appropriate Government, will not make much difference. On the basis of above analysis, in my view, the rejection of amendment application on the ground that the aspect regarding which Government is appropriate government cannot be gone into is incorrect and liable to be interferred with.
17. In nutshell, I am unable to hold that the amendment application was either malicious or untenable. If amendment would have been allowed, there would have been no violation of Section 10(4) of the Act. No prejudice will be caused to workman if amendment is allowed. Amendment is necessary because the objection raised in the said application goes to the root of the matter. In this view of the matter, the Labour Court has erred in rejecting the application by applying strict principles flowing from provisions to Order 6 Rule 17 CPC. The Court below has failed to appreciate the scope of Section 10(4) of the Act.
18. Resultantly, the impugned order dated 31.5.2012 is set aside. The amendment application (Annexure P-8) is allowed. The Court below shall proceed afresh from the said stage in accordance with law.
19. Petition is allowed. No cost.
(Sujoy Paul) Judge vv