Bombay High Court
Rashtrasant Tukdoji Maharaj Technical ... vs Chandan Bapurao Karwade And Others on 5 May, 2022
Author: Manish Pitale
Bench: Manish Pitale
1/13 WP-6582.19-J
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 6582 OF 2019
PETITIONERS :- 1. Rashtrasant Tukdoji Maharaj Technical and
Educational Society, Nagpur, Through its
President.
2. Adult Physically Handicapped Technical
Residential Shelter Workshop, Kumbhalkar
Bhavan, Nagpur
(Petitioners are on R.A.)
...VERSUS...
RESPONDENTS :- 1. Mr.Chandan Bapurao Karwade, Aged :
Major, R/o Thaware Nagar, Kamgar Kalyan
Kendra, Jaripatka, Nagpur.
2. Mr. Rajesh Bharatlal Pande (Dead)
through his legal heirs.
2-A] Kiran Wd/o Rajesh Yadav, aged about 47
years,
2-B] Lavya S/o Rajesh Yadav, aged about 15
years,
2-C] Lakshya S/o Rajesh Yadav, Aged about 11
years,
Nos.2-B & 2-C minor through their legal
guardian mother i.e. respondent No.2-A.
All R/o. Qtr. No.7/8, V.H.B. Colony, Ring
Road, Near Tukdoji Putala Square,
Adiwasi Colony, Vishwakarma NAGAR, Ajni,
Nagpur-440003.
KHUNTE
2/13 WP-6582.19-J
3. The District Social Welfare Officer, Zilla
Parishad, Civil Lines, Nagpur.
(All the respondents are on R.A.)
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Mr. S. S. Ghate, counsel for the petitioners.
Ms Kalpana Pathak, counsel for respondent Nos.1 and 2.
Mr.H.D.Dubey, AGP for respondent No.3.
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CORAM : MANISH PITALE, J.
DATE OF RESERVING THE JUDGMENT: 27.04.2022.
DATE OF PRONOUNCING THE JUDGMENT: 05.05.2022.
JUDGMENT
Heard.
2. Rule. Rule made returnable forthwith. Heard the writ petition finally with the consent of the learned counsel appearing for the rival parties.
3. By this writ petition, the petitioners have challenged order dated 16/09/2019, passed by the Industrial Court at Nagpur, whereby an application at Exhibit-30, seeking amendment of the memo of revision petition has been rejected, on the ground that the Industrial Court while exercising revisional jurisdiction under section 44 of the Maharashtra KHUNTE 3/13 WP-6582.19-J Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "MRTU & PULP Act") does not have the power to permit amendment of the memo of revision petition.
4. The respondent Nos.1 and 2 filed complaint under the provisions of the MRTU & PULP Act before the Labour Court contending that their services were wrongly terminated by the petitioners, as there was violation of sections 25F and 25G of the Industrial Disputes Act, 1947. The reliefs sought by respondent Nos.1 and 2 were opposed by the petitioners, but by judgment and order dated 19/12/2007, the Labour Court allowed the complaint and directed respondent Nos.1 and 2 to be reinstated in service with full back wages and continuity of service. Aggrieved by the judgment and order of the Labour Court, the petitioners filed revision petition before the Industrial Court, wherein interim stay of the order of the Labour Court was granted. Subsequently, by judgment and order dated 02/05/2009, the Industrial Court allowed the revision petition and set aside the order of the Labour Court. The respondent Nos.1 and 2 challenged the said order of the Industrial Court by filing Writ Petition No.4903 of 2009.
5. The said writ petition came up for final hearing before this Court and by judgment and order dated 04/04/2019, the petition was KHUNTE 4/13 WP-6582.19-J partly allowed and the judgment and order dated 02/05/2009 of the Industrial Court was set aside. The proceedings in the revision petition were restored before the Industrial Court and the parties were directed to appear before the Industrial Court on 02/05/2019. All contentions of the parties on merits other than the jurisdictional aspect were kept open. This was for the reason that the Industrial Court in the first instance had allowed the revision petition of the petitioners on the ground that the Labour Court had no jurisdiction to entertain the complaint filed by respondent Nos.1 and 2.
6. After the said revision petition stood restored before the Industrial Court, the petitioners filed the aforesaid application at Exhibit- 30, seeking amendment of the revision memo and permission to file certain documents. By this application, the petitioners sought to bring on record subsequent developments in the matter, in order to plead that with passage of time and the events that had occurred during the pendency of the proceedings before the Industrial Court and this Court, no posts were available, wherein respondent Nos.1 and 2 could be accommodated, even if the order of the Labour Court was to be upheld. The said application was opposed on behalf of respondent Nos.1 and 2. It was contended on behalf of respondent Nos.1 and 2 that there was no power available with KHUNTE 5/13 WP-6582.19-J the Industrial Court to allow such an amendment and further that the petitioners could have placed the said subsequent events before this Court during the pendency of the aforesaid Writ Petition No.4903 of 2009.
7. As noted above, by the impugned order dated 16/09/2019, the Industrial Court dismissed the application, holding that there was no power available with the Industrial Court, while considering the revision petition, to grant amendment of the memo of revision petition, so as to allow the amendment as sought by the petitioners.
8. Mr. S.S.Ghate, learned counsel appearing for the petitioners, submitted that the Industrial Court erred in holding that there was no power available under the provisions of the MRTU & PULP Act with the Industrial Court while considering the revision petition, to grant amendment of the memo of revision. It was submitted that under the provisions of the MRTU & PULP Act and the Regulations framed thereunder, reference to the Code of Civil Procedure was made and therefore, power to grant such amendment could be read into the revisional jurisdiction being exercised by the Industrial Court under the provisions of the MRTU & PULP Act. The learned counsel for the petitioners relied upon section 9 read with Order VI Rule 17 of the Code of Civil Procedure, to contend that the application for amendment could KHUNTE 6/13 WP-6582.19-J have been granted by the Industrial Court. The learned counsel then relied upon judgments of the Hon'ble Supreme Court in the case of Hasmat Rai and Another v. Raghunath Prasad, reported in (1981) 3 SCC 103, Sheshambal (Dead) Through LRs v. Chelur Corporation Chelur Building and Others, reported in (2010) 3 SCC 470, Pratap Rai Tanwani and Another v. Uttam Chand and Another, reported in (2004) 8 SCC 490, wherein the Hon'ble Supreme Court had categorically laid down that subsequent events could certainly be taken into account by the Court in the interest of justice. The learned counsel also relied upon judgment of this Court in the case of Prakash Kashiram Sawant and others v. Motherson Advanced Tooling Solutions Ltd., Aurangabad, reported in 2020 (1) Mh.L.J. 561, to claim that the application for amendment could be allowed. Reliance was also placed on the judgment of Calcutta High Court in the case of Shahadat Khan v Mohammad Hossain, reported in AIR 1954 Cal. 347, to contend that where the local law was silent, the provisions of the Code of Civil Procedure could certainly apply.
9. On the other hand, Ms Kalpana Pathak, learned counsel appearing for respondent Nos.1 and 2, submitted that the order of the Labour Court directing reinstatement with back wages and continuity of service was passed in favour of respondent Nos.1 and 2, as far back as on KHUNTE 7/13 WP-6582.19-J 19/01/2007. Yet, the relief could not be enjoyed by the said respondents because of pendency of the litigation. It was submitted that a proper reading of the provisions of the MRTU & PULP Act, particularly section 44 thereof, shows that the Industrial Court has limited power of superintending jurisdiction and that the correctness or otherwise of the order of the Labour Court, has to be decided by the Industrial Court on the basis of the material that was available before the Labour Court. According to the learned counsel for respondent Nos.1 and 2, there is no provision in the MRTU & PULP Act permitting amendment of the memo of revision petition. It was submitted that provisions of the MRTU & PULP Act, read with the relevant Regulations framed thereunder, would show that the applicability of the Code of Civil Procedure was provided only for specific contingencies and it could not be said that the Statute was silent as regards the limited areas in which the Code of Civil Procedure would apply. On this basis, it was submitted that in the absence of specific power, the Industrial Court was justified in rejecting the application at Exhibit-30.
10. Learned Assistant Government Pleader Shri Dubey appeared on behalf of respondent No.3.
KHUNTE 8/13 WP-6582.19-J
11. In order to examine the rival contentions placed before this Court, it will have to be examined as to whether the Industrial Court under the provisions of the MRTU & PULP Act could exercise specific power to permit amendment of the memo of revision petition. Section 44 of the MRTU & PULP Act, gives power to the Industrial Court of superintending jurisdiction so as to examine the correctness or otherwise, of orders passed by the Labour Court. The nature of power is limited. The provisions of the MRTU & PULP Act do not specifically provide for a power in the Industrial Court to permit amendment of the revision petition. It is for this reason that the learned counsel appearing for the petitioners submitted that the Court to take recourse to section 9 read with Order VI Rule 17 of the Code of Civil Procedure. Section 9 of the Code of Civil Procedure pertains to the jurisdiction of Civil Courts to try suits of a civil nature, except those that are expressly or impliedly barred and Order VI Rule 17 of the Code of Civil Procedure provides for amendment of pleadings. The aforesaid contention raised on behalf of the petitioners can be examined if it is concluded that the Code of Civil Procedure would be applicable to the proceedings before the Industrial Court while exercising revisional jurisdiction under the provisions of the MRTU & PULP Act.
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12. The petitioners have claimed that where the Statute is silent about the applicability of the Code of Civil Procedure, recourse to the Code of Civil Procedure can be undertaken. In the present case, it was brought to the notice of this Court that under Regulations 149 and 150 of the Industrial Court Regulations, 1975, framed under the MRTU & PULP Act, it has been specified in what contingencies specific provisions of the Code of Civil Procedure would be applicable. Regulations 149 and 150 of the Industrial Court Regulations, 1975, read as follows:
"149. Wherever the provisions under the MRTU and PULP Act, 1971 and the Industrial Court Regulations, 1975 are silent, the provisions of the Code of Civil Procedure under Sections 27 to 32 read with Order XI, XII, XIII, XIV, XVI, XVI-A, XVIII and XIX, shall be applicable to the proceedings under the MRTU and PULP Act, 1971.
150. Any clerical or arithmetical mistake or error or accidental slip arising therefrom, in the judgment or order, may be corrected by the court either of it's own motion or on an application by any of the parties, akin to Section 152 of the Code of Civil Procedure, 1908."
13. Under the MRTU & PULP Act, as also the Regulations framed thereunder, it cannot be said that the statutory scheme is silent about the applicability of the Code of Civil Procedure. On the contrary, it is specified as to the only contingencies in which the Code of Civil Procedure is applicable. None of the said contingencies cover the specific KHUNTE 10/13 WP-6582.19-J prayer made on behalf of the petitioners in the said application at Exhibit- 30, seeking amendment of the memo of revision petition.
14. The learned counsel for respondent Nos.1 and 2 is justified in contending that the petitioners could make out a case only for amendment of the original pleadings, but there was no question of permitting the petitioners to amend the memo of revision petition in the absence of any power available with the Industrial Court. The subsequent events that the petitioners wish to place on record, could have been brought to the notice of this Court also in the aforesaid Writ Petition No.4903 of 2019, but the petitioners chose not to do so. The nature of subsequent events sought to be brought on record are assertions on facts sought to be made by the petitioners concerning alleged subsequent events, which according to the petitioners, make it impossible to grant relief to respondent Nos.1 and 2, in terms of the order passed by the Labour Court in their favour. There is substance in the contention raised on behalf of respondent Nos.1 and 2 that the Industrial Court in revisional jurisdiction under section 44 of the MRTU & PULP Act cannot for the first time look at such claims made on facts by the petitioners, in the absence of any pleadings or evidence to support the same. The memo of revision KHUNTE 11/13 WP-6582.19-J petition cannot be permitted to be amended so as to add the proposed amendments in the pending revision petition.
15. There can be no quarrel with the proposition that subsequent events can be considered by the Superior Court, which may have an impact on the reliefs that can be granted to the party concerned. The judgments on which the learned counsel for the petitioners has placed reliance pertained to disputes between landlord and tenant, wherein the subsequent events had an impact on the very basis of granting relief to the tenant or the landlord as the case may be. The manner in which the Superior Court could take note of such subsequent events would also depend upon the provisions of the concerned Statute and therefore, the said judgments (cited supra) cannot be of any assistance to the petitioners in the present case. There was nothing placed on record before this Court to indicate that there was indeed power in the Industrial Court under the statutory scheme contemplated as per the MRTU & PULP Act, to permit amendment of the memo of revision petition. Thus, it cannot be said that the Industrial Court committed any error in rejecting the application at Exhibit-30.
16. At the most, the petitioners could have placed on record an affidavit before the Industrial Court in the revision petition, along with KHUNTE 12/13 WP-6582.19-J relevant documents to place on record the subsequent events, to make submissions as regards the impact of such subsequent events. It would be for the Industrial Court while exercising revisional jurisdiction to take an appropriate view in the matter upon perusal of such affidavit and documents. This is because the memo of the revision petition can only raise grounds to demonstrate the error committed by the Labour Court in the order impugned, on the basis of the pleadings, evidence and material that was placed on record before the Labour Court by the rival parties. The correctness or otherwise of the order of the Labour Court, cannot be judged by the Industrial Court while exercising revisional jurisdiction under section 44 of the MRTU & PULP Act, on the basis of pleadings and material that were not even placed before the Labour Court. Therefore, no case for interference under Article 227 of the Constitution of India is made out by the petitioners while challenging the impugned order passed by the Industrial Court, rejecting the application at Exhibit-30.
17. In view of the above, the writ petition is dismissed.
18. Needless to say, as observed herein above, the petitioners could place on record a proper affidavit along with relevant documents before the Industrial Court to place on record the subsequent events. The respondent Nos.1 and 2 could respond to such an affidavit. The Industrial KHUNTE 13/13 WP-6582.19-J Court would then be able to take into account the material on record to pass appropriate orders, in the interest of justice.
19. Rule is discharged. No costs.
JUDGE Signed By:GHANSHYAM S KHUNTE Signing Date:05.05.2022 14:50 KHUNTE