Karnataka High Court
Sri Sheikh Zameer vs The Chief Traffic Manager on 25 June, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
DATED THIS THE 25th DAY OF JUNE, 2012
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION NO. 19835/2012 (L-KSRTC)
BETWEEN:
SRI. SHEIKH ZAMEER,
AGED ABOUT 52 YEARS,
NO. 37, A.M.S. LAYOUT, 2ND CROSS,
2ND STAGE,
VIDYARANYAPURA,
BANGALORE-560 097 ...PETITIONER
(BY SRI.S.B. MUKKANNAPPA, ADVOCATE)
AND:
THE CHIEF TRAFFIC MANAGER,
BANGALORE METROPOLITAN
TRANSPORT CORPORATION,
CENTRAL OFFICES,
K.H. ROAD,
SHANTHI NAGAR,
BANGALORE-560 027 ...RESPONDENT
(BY SRI. K.S. BHARATH KUMAR, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF
INDIA PRAYING TO QUASH THE IMPUGNED ORDER
DATED. 5.4.2012 PASSED ON IA NO. REF. NO. 6/08
BY THE 3RD ADDL. LABOUR COURT, BANGALORE,
VIDE ANNEXURE-G AND CONSEQUENTLY ALLOW
THE APPLICATION FILED BY THE PETITIONER IN
THE DISPUTE VIDE ANNEXURE-E TO THE WP.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT
PASSED THE FOLLOWING:
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ORDER
Heard Sri S.B.Mukkannappa, learned counsel appearing for the petitioner and Sri K.S.Bharat Kumar, learned counsel appearing for the respondent. Perused the records.
2. Short point involved in this writ petition is whether the labour Court was justified in dismissing I.A.NO.1 filed by the petitioner under Order 6 Rule 17 read with Section 11 of the Industrial Disputes Act, 1947, whereunder the petitioner had sought for permission to amend the claim statement by incorporating an additional paragraph as detailly mentioned in the said application, which is at Annexure-E namely to contend that order of dismissal is non-est for want of approval granted by Industrial Tribunal in I.D.No.148/2005 & as such there is violation of Section 33(2)(b) of the Act. Before labour Court, respondent-Management filed objections to the said application and after considering the rival contention, the labour Court by its order dated -3- 5.4.2012, dismissed the application, which is impugned in the present writ petition. The reason assigned by the labour Court for dismissal of the writ petition is that originally an award came to be passed by the labour Court in favour of the workman, which was questioned by the Management Corporation before this Court in W.P.No.2941/2011 and the said writ petition came to be allowed by order dated 23.11.2011, Annexure-D, whereunder this Court had interfered with the award of the labour Court on the ground that interference made by the labour Court with the quantum of punishment came to be quashed and matter was remanded for consideration of the exercise of discretion exercised by the labour Court under Section 11A of the Act and award came to be affirmed in all other respects and as such it need not go into other aspects except to the extent of considering the issue remanded to it.
3. It is the contention of Sri S.B.Mukkannappa, learned counsel appearing for the petitioner that an application for amendment can be allowed at any stage including stage of appellate proceedings and labour -4- Court committed a serious error in rejecting the said application without considering the fact that in the proposed amendment a plea with regard to non- compliance of mandatory provision of Section 33(2)(b) was raised and this aspect had a direct bearing and impact on the order of the dismissal passed by the Corporation against the petitioner and the burden would be on the petitioner workman to prove this fact and not allowing the said application, has resulted in great prejudice to the petitioner and the reasoning given by the labour court by placing reliance on the order passed by this Court in W.P.No.2941/2011 is mis- placed and the provision of CPC referred to by the labour court viz., Order 41 Rule 25 has no application to the facts on hand. As such, he seeks for quashing of the impugned order and prays for allowing the writ petition. In support of his submission, he has relied on the following judgments:
(1) AIR 1979 SC 551-Ishwardas Vs. The State of Madhya Pradesh & Others.-5-
(2) ILR 1992 KAR 1107 - M.R.K. Rau Vs. Corporation of the City of Bangalore.
4. Per contra, Sri K.S.Bharat Kumar, learned counsel for the respondent-Corporation would support the order passed by the labour court and seeks for dismissal of the writ petition.
5. Having heard the learned advocate appearing for the parties and on perusal of the impugned order, it would be necessary at the outset to extract the operative portion of the order dated 23.11.2011 passed in W.P.No.2941/2011, in view of the fact that Labour Court is now seized of the matter by virtue of an order of remand made by this Court.
"5.In the result, petition is allowed. The award insofar as it relates to interference with the punishment of termination is quashed and in all other respect remains unaltered.
6. The proceeding is remitted to the III Additional Labour Court, Bangalore, for consideration over exercise of discretion under Section 11-A of the Act, after extending -6- reasonable opportunity of hearing to the parties and to pass an award in accordance with law and in the light of the observation made supra".
(emphasis supplied by me)
6. This court in the normal circumstances, would have allowed an application filed under Order VI Rule 17 Code of Civil Procedure particularly when such plea raised would go to the jurisdiction of the matter or the maintainability of the petition is concerned. In the instant case, it is noticed that matter is now pending before Labour Court in Ref.No.6/2008 which was on account of an order of remand made by this court. In other words, when the award of the Labour Court dated 6.5.2010 came to be set aside by this Court on the ground that Labour Court was not justified in exercising its power under Section 11A of Industrial Disputes Act, to interfere with the quantum of punishment on the ground of workman had served in the Corporation for about 28 years prior to his termination from service and also on the ground that he had still 11 years of service before retirement. As noticed from the order passed by -7- this court in Writ Petition No.2941/2011 on 23.11.2011 the award passed on 6.5.2010 by the Labour Court in so far as it related to the interference with the quantum of punishment imposed by the management terminating the workman came to be set aside by remitting the matter to the Labour Court for consideration of issue regarding exercise of jurisdiction under section 11A of the Industrial Disputes Act, by extending reasonable opportunity of hearing to both parties. In other words, as rightly observed by the Labour Court, matter was remitted back to Labour Court only for adjudication as to under what circumstances section 11A of the Act could be invoked and nothing beyond it. When such an order of remand came to be passed by this court, Labour Court cannot go beyond this issue since award in all other respects was held to remain unaltered. In other words, the award of the Labour Court on all other aspects had stood affirmed by this Court. In that view of the matter, Labour Court drawing analogy from the provisions of Order 41 Rule 25 Code of Civil Procedure in so far as it relates to scope of remand and holding -8- that when the order of remand is being limited, the court to which the matter is remanded has little scope left with it, to examine any other contention and as such it has not entertained the application for amendment. It is this underlying principle of the order of remand, which came to be examined by Labour Court to negative the contention of workman to reject the application for amendment and rightly so.
7. In support of his contention that applications for amendment should have been allowed Sri. Mukkannappa has relied upon the following two judgments:
I. AIR 1979 SC 551-Ishwardas Vs. The State of Madhya Pradesh & Others.
"4. We are unable to see any substance in any of the submissions. The learned counsel appeared to argue on the assumption that a new plea could not be permitted at the appellate stage unless all the material necessary to decide the plea was already before the Court. There is no legal basis for this assumption. There is no impediment or bar against an appellate Court permitting -9- amendment of pleadings so as to enable a party to raise a new plea. All that is necessary is that the Appellate Court should observe the well known principles subject to which amendments of pleadings are usually granted. Naturally one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at the Appellate stage, the reason why it was not sought in the Trial Court. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But, there is no prohibition against an Appellate Court permitting an amendment at the appellate stage merely because the necessary material is not already before the Court."
II. ILR 1992 KAR 1107- M.R.K. Rau Vs. Corporation of the City of Bangalore "9.1. It is a settled position of law that amendment of pleadings can be allowed at any stage of the proceeding either in the suit or in the appeal provided it is necessary for the purpose of deciding the controversies between
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the parties and it is not barred by time; in other words, a fresh suit on the amended claim shall not be barred by limitation on the date of the application but this is a factor to be taken into consideration in exercise of the discretion as to whether amendment should be allowed or not. However, it does not affect the power of the Court to allow the amendment if it is required to do justice. As already pointed out above, the amendment sought for by the plaintiffs is necessary not only to do justice but also to decide the controversies between the parties".
8. It is no doubt true that courts are clothed with power to allow the amendment at any stage including appellate stage. There cannot be any dispute with regard to the proposition of law laid down in this regard and two judgments relied upon by the learned counsel for petitioner referred to hereinabove also is to the said effect. However, it is to be noted that even in those two judgments it has been specifically observed the applications for amendment can be allowed subject to:
(1) There being no delay;
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(2) Circumstances have been explained necessitating Such amendment;
(3) Necessary material on which the plea arising from the amendment is already there; and (4) It is necessary for the purposes of deciding the controversies between the parties and it is not barred by time; next time are the factors which requires to be taken into consideration.
9. In fact, the Hon'ble Supreme Court in the case of M/s.Revajeetu Builders and Developers Vs. M/s. Narayanaswamy and Sons & Others reported in 2009 AIR SCW 6644 after analysing all the judgments rendered has laid down the basic principles which ought to be taken into consideration while allowing or rejecting an application for amendment of plaint and they are as under:
(1) Whether the amendment sought imperative for proper and effective adjudication of the case?
(2) Whether the application for amendment is bona fide or mala fide?
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(3) The amendment should not cause such prejudice to the other side which can not be compensated adequately in terms of money;
(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and (6) As a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under order VI, Rule 17. These are only illustrative and not exhaustive. The decision on an application made under Order VI, Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. While deciding applications for amendments the Courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."
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10. And as stated by the Hon'ble Apex Court, they are only illustrative and not exhaustive. Keeping in mind the law laid down by the Hon'ble Apex Court in Revajeetu case and both the judgments relied upon by learned Counsel appearing for petitioner when facts on hand are examined it is noticed that while setting aside the award passed by the Labour Court by quashing the award dated 6.5.2012 this court had remitted the matter to the Labour Court by order dated 23.11.2011 for the limited purpose of considering the exercise of discretion under section 11A of the Industrial Disputes Act for the reasons assigned by it and as such if the Labour Court were to dredge upon considering any other factor including the one proposed it would amount to expanding the scope of order passed by this court and Labour Court would also be exceeding its jurisdiction and as such, it has rightly held that such an amendment cannot be allowed as it would be out side the purview of the order passed by this court in Writ Petition No.2941/2011 dated 23.11.2011 at Annexure-E.
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In that view of the matter, I do not find any infirmity in the order passed by the Labour Court which calls for interference at the hands of this court. Hence, Writ Petition fails and it is hereby dismissed.
Sd/-
JUDGE PL