Delhi District Court
Vide This Order vs Yellappa on 14 May, 2010
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IN THE COURT OF SH BABU LAL: POIT,
KARKARDOOMA COURTS, DELHI
I.D No 155/84
The Workmen
Workers working in electrical Department of Municipal
Corporation of Delhi represented by Nigam Vidyut
Workers Sangathan, 1/7728, East Gorakh Park, Babarpur
Road, Shahdara, Delhi 32.
Vs.
M/s Municipal Corporation of Delhi,
Town Hall, Delhi.
ORDER ON APPLICATION OF AMENDMENT OF WS
1. Vide this order, I shall dispose of an application
filed by the Management U/O 6 Rule 17 CPC seeking
amendment to WS. In the application, it is alleged that by
way of present application, Management wands to add
that reference has been made mechanically without
application of mind and that no dispute exists in view of
notified rules and regulations of the Management,
claimants can not be given equal pay for equal work at
parity with employees of DESU inasmuch that was a
separate organization having separate set of rules and
regulations, work of DESU was highly skilled as compared
to workmen involved in the present case. It is alleged that
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amendment is necessary for just decision of the case.
2. Reply to this application has been filed in which it
is alleged that present application has been moved just to
prolong the adjudication of the dispute, amendment
sought will change nature of entire dispute, application is
highly belated and since the trial has already been
completed and evidence has been recorded, therefore,
application is not maintainable and is liable to be
dismissed.
3. It has been argued on behalf of the applicant/
Management that case pertains to year 1984. It is argued
that in this case an award was passed in the year 1995
against which Management had moved Hon'ble High
Court and Hon'ble High Court has remanded the case for
decision of this case afresh. It is submitted that
Management wants to add 5 preliminary objections in the
WS for which amendment is necessary. It is argued that
Management wants to add certain facts regarding DESU
and MCD pay structure which are necessary for just
decision of the case, therefore, amendment may be
allowed.
4. On the other hand, AR for the respondent/
workmen has argued that case pertains to year to 1984. this case was decided by this Tribunal vide award dated 10.10.95 passed by Sh. P.K. Jain, the then Presiding 3 Officer, Industrial Tribunal. It is argued that Management had moved Hon'ble High Court against that award and vide order dated 2.2.2009, it was held that MCD had raised objection that DESU was a commercial wing whereas Electrical wing of the MCD is not a commercial wing therefore, on the basis of pleadings and evidence doctrine of equal pay for equal work applied. It was also held that in the absence of material and records/ evidence, merits of the objections can not be decided. It was also observed that parties will be allowed to ''lead evidence'' as original record has been destroyed. It is, therefore, clear that case pertains to year 1984 which had been decided in the year 1995, record of the case including evidence has already been destroyed, therefore, it can not be said that this case is at the initial stage. It is submitted that according to proviso to Rule 17 Order 6 CPC, application is not maintainable.
5. AR for the management has relied upon authorities reported as Pankaja and another vs Yellappa AIR 2004 SC 4102, Saif Ul Islam Company vs Roshan Lal Arora 102(2003) DLT 692, Sampath Kumar vs Ayyakannu and another AIR 2002 SC 3369, Hakim and others vs The District Judge, Deoria and others AIR 2005 NOC 24 ( All.), Daya Ram vs Puran Chand and another AIR 1974 Punjab 4 and Haryana 194, Bikram Singh and others vs G.D. Jhingan, Secretary, Delhi East Punjab Circle ILR 1969 1, Ganeshi Lal vs Nand Lal and others 60 ( 1995) DLT 622, Syndicate Bank vs I.K. Malik 60 ( 1995) DLT 376. In all these authorities, it has been held that court may at any stage of the proceedings allow either party to alter or amend his pleadings for the purpose of determining the real questions in controversy between the parties. In some of these authorities, it has also been held that amendment of pleadings if sought after substantial delay can be also allowed in appropriate cases if that subserve the cause of justice and avoids further litigation.
6. In Vidyabai & Others vs Padmalatha & another 2009 (1) R.C.R.( Civil) S.C. 763, it has been held by Hon'ble Supreme Court that court can allow the amendment before ''commencement of trial'' and not after that. It was also held that filing of affidavit by a witness in lieu of examination-in-chief would amount to commencement of trial. It was also held that after filing of affidavit, court has no jurisdiction to allow amendment. Proviso to Order 6 Rule 17 CPC provides that amendment application can be moved only before trial has commenced. Question arose before Hon'ble Supreme Court as to when trial of the suit commences. In aforesaid authority relying upon Kailash vs Nanhku ( 2005) 4 SCC 480, their lordships held 5 that once issues are framed and case is posted for evidence, trial starts. In this case even the case has been decided on merits and case has been remanded back to this Tribunal for decision on certain points, therefore, it can not be said that trial in this case has not begun.
7. The present case, case pertains to year 1984, Parties had completed their pleadings in the year 1989 and case was finally decided on 10.10.95. It is after 21 years that Management is coming before this Tribunal with prayer to amend its pleadings. No reasons have been given by the Management that despite due deligence, the Management could not take up the issue raised by the Management now. In the absence of such explanation, I am of the view that Management can not be allowed to carry out amendment because if Management is allowed, that would tantamount to allowing it to abuse the process of law and case would never come to an end.
8. It has also been argued by AR for the management that trial is yet to begin in this case, therefore, Management should be allowed to carry out amendment in the WS. However, I find AR for the management is under a misconception of fact and law both. In this case, trial of the case had been completed by my ld Predecessor who had passed an award on 10.10.95. If Hon'ble High Court has directed recording of evidence 6 on certain points, it does not amount to beginning of the trial. If at all evidence is to be recorded, it will be in the nature of ''reconstruction of record'' destroyed and not a fresh trial of the case. Trial in this case had already been completed, therefore, at this stage, amendment can not be allowed. Application is, therefore, dismissed.
9. In view of reasons given above and particularly in view of above authority Vidyabai & Others ( supra), application of the Management is not maintainable. Same is, therefore, dismissed.
Announced in open court
on 14.05.2010 (BABU LAL)
Presiding Officer, Industrial Tribunal
Karkardooma Courts, Delhi.