Gujarat High Court
Rajkot Nagrik Sahakari Bank Limited vs Jagdishbhai Nathabhai Poriya on 25 July, 2023
Author: Rajendra M. Sareen
Bench: Rajendra M. Sareen
NEUTRAL CITATION
C/SCA/8659/2014 JUDGMENT DATED: 25/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8659 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RAJKOT NAGRIK SAHAKARI BANK LIMITED
Versus
JAGDISHBHAI NATHABHAI PORIYA & 1 other(s)
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Appearance:
MR K.M. PATEL SENIOR ADVOCATE with
MR.VARUN K.PATEL(3802) for the Petitioner(s) No. 1
MR PRATIK Y JASANI(5325) for the Respondent(s) No. 1
SERVED BY RPAD (R) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 25/07/2023
ORAL JUDGMENT
1. Present petition under Articles 226 and 227 of the Constitution of India has been preferred by the petitioner - Rajkot Nagrik Sahakari Bank Limited, praying for the following main relief :
Page 1 of 13 Downloaded on : Sat Sep 16 22:45:12 IST 2023NEUTRAL CITATION C/SCA/8659/2014 JUDGMENT DATED: 25/07/2023 undefined "5(A). Be pleased to issue writ of certiorari and/or any other appropriate writ, order or direction in the like nature quashing and setting aside the order dated 5/12/2013 passed by the Labour Court, Rajkot rejecting the application for amendment of the written statement (Exh.40) filed by the petitioner herein in Reference (LCR) No.86/2009 at Annexure-A and be further pleased to allow the said application (Exh.40) of the petitioner for amendment of the written statement."
2. FACTS :
2.1. The case of the petitioner is that the petitioner is a Multi-state Co-operative Bank registered under the provisions of Multi-state Co-operative Societies Act, 1984.
The respondent No.1 (hereinafter referred to as "respondent workman) at the relevant time was working as clerk cum cashier in the petitioner bank. The respondent workman was dismissed from service of the petitioner bank vide order dated 5/8/1994 for misappropriating huge sum of Rs.7,30,592.30. Before dismissal, the respondent workman in his statement dated 2/2/1994 had categorically admitted the charge of misappropriation.
2.2. After more than 14 years from the said order of Page 2 of 13 Downloaded on : Sat Sep 16 22:45:12 IST 2023 NEUTRAL CITATION C/SCA/8659/2014 JUDGMENT DATED: 25/07/2023 undefined dismissal, at the instance of the respondent workman, a reference (LCR) No.86 of 2009 is made against the petitioner for reinstatement of the respondent workman with full back- wages.
2.3. The respondent workman filed statement of claim before the Labour Court, Rajkot.
2.4. The petitioner filed written statement before the Labour Court. It was categorically stated by the petitioner in his written statement that the respondent workman was dismissed in the year 1994 and at that time, the provisions of Bombay Industrial Relations Act, 1946 was applicable to the petitioner bank and that the provisions of Industrial Disputes Act applies to the petitioner bank only from 1/4/2002 when the petitioner started one of its branch in the State of Maharashtra.
2.5. The respondent workman produced documentary evidence vide list Exh.6 and oral evidence before the Labour Court. The petitioner also produced certain documents before the Labour Court vide list Exh.23.
2.6. According to the petitioner, at that state the petitioner felt it necessary to amend its written statement filed before the Labour Court. The petitioner, therefore, filed application Exh.40 for amendment of its written statement. The Page 3 of 13 Downloaded on : Sat Sep 16 22:45:12 IST 2023 NEUTRAL CITATION C/SCA/8659/2014 JUDGMENT DATED: 25/07/2023 undefined respondent workman filed reply opposing the said application of the petitioner for amendment in his written statement.
2.7. The Labour Court passed the impugned order dated 5/12/2013 rejecting the application for amendment of the written statement (Exh.40) filed by the petitioner in Reference (LCR) No.86 of 2009. Hence, the petitioner has preferred the present petition.
3. Submissions of the petitioner :
3.1. Mr.K.M. Patel, learned Senior Advocate appearing with Mr.Varun K. Patel, learned advocate for the petitioner has submitted that the Labour Court while passing the impugned order has considered irrelevant facts and issues and overlooked the relevant facts and issues involved in the case.
3.2. Mr.K.M. Patel, learned Senior Advocate for the petitioner has further submitted that by way of application for amendment of written statement, the petitioner sought to raise contentions regarding the dispute barred by limitation as per the provisions of BIR Act, reference was made after gross delay of about 15 years; that the respondent was acquitted after giving benefit of doubt in the Criminal Case; etc. The petitioner further sought for permission to lead evidence and prove misconduct of the Page 4 of 13 Downloaded on : Sat Sep 16 22:45:12 IST 2023 NEUTRAL CITATION C/SCA/8659/2014 JUDGMENT DATED: 25/07/2023 undefined respondent workman before the Labour Court. It is submitted that all the aforesaid contentions, averments and/or issues sought to be raised by the petitioner by way of said amendment in the written statement are necessary for the purpose of determining the real question in the controversy between the parties. It is submitted that therefore, the Labour Court ought to have allowed the application for amendment of their written statement.
3.3. Mr.K.M. Patel, learned Senior Advocate for the petitioner has further submitted that the Labour Court has rejected the application adopting hyper-technical approach by holding to the effect that since the petitioner in the said application for amendment of written statement has quoted wrong Exh. Number of the written statement as Exh.No.4 instead of Exh.No.12, the said application for amendment of written statement deserves to be rejected. It is submitted that the petitioner inadvertently due to typographical error has wrongly mentioned Exh. Number of the written statement in the said application for amendment as Exh.No.4 instead of Exh. No.12.
3.4. Mr.K.M. Patel, learned Senior Advocate for the petitioner has further submitted that the Labour Court erred in holding that the amendment sought for by the petitioner would change the nature of defence raised by the petitioner in the original written statement. It is submitted Page 5 of 13 Downloaded on : Sat Sep 16 22:45:12 IST 2023 NEUTRAL CITATION C/SCA/8659/2014 JUDGMENT DATED: 25/07/2023 undefined that the amendment sought for by the petitioner go to the very root of the matter. It is submitted that therefore, the Labour Court ought to have allowed the application for amendment of the written statement.
3.5. Mr.K.M. Patel, learned Senior Advocate for the petitioner has further submitted that when the Reference was at the initial state and the application for amendment was not filed at the belated stage, the proposed amendment would not change the nature of cause of action and hence the application for amendment ought to have been allowed by the Labour Court.
3.6. Mr.K.M. Patel, learned Senior Advocate for the petitioner has relied on the following decisions :
[1] (2018) 2 SCC 347 347 (N.C. Bansal Vs. Uttar Pradesh Financial Corporation and another) and [2] 2013-IV-LLJ-609 (Bombay) (Kundil Alloys Pvt. Ltd.
Vs. Govind Fadte and Others).
Making above submissions and relying upon above decisions, it is prayed to allow the present petition.
4. Submissions of the respondent workman:
4.1. Per contra, Mr.Pratik Jasani, learned advocate for the respondent workman has vehemently opposed the present Page 6 of 13 Downloaded on : Sat Sep 16 22:45:12 IST 2023 NEUTRAL CITATION C/SCA/8659/2014 JUDGMENT DATED: 25/07/2023 undefined petition. It is submitted that the petitioner failed to disclose the reasons for which they could not have raised the contentions mentioned in the said application for amendment earlier in their original written statement. It is submitted that the contentions raised in the amendment application are not subsequent development. It is submitted that even the said application for amendment was not supported by affidavit. It is submitted that if the proposed amendment is allowed, the same would change the nature of the defence raised by the petitioner in the original written statement which is not permissible.
4.2. Mr.Pratik Jasani, learned advocate for the respondent workman has further submitted that the trial has begun, the respondent workman has been examined and the petitioner has cross examined the respondent workman. It is submitted that to fill up the lecuna, the application for amendment in the written statement has been filed.
It is prayed to reject the present petition.
5. Heard Mr.K.M. Patel, learned Senior Advocate for the petitioner and Mr.Pratik Jasani, learned advocate for the respondent workman.
6. FINDING:
6.1. Having heard the learned advocates for the respective parties and considering the material on record, it is not in Page 7 of 13 Downloaded on : Sat Sep 16 22:45:12 IST 2023 NEUTRAL CITATION C/SCA/8659/2014 JUDGMENT DATED: 25/07/2023 undefined dispute that the petitioner filed against the reference (LCR) No.86 of 2009 filed by the petitioner for reinstatement of the respondent workman with full back-wages and statement of claim filed by the respondent workman before the Labour Court, Rajkot, the petitioner has filed written statement before the Labour Court. It is specifically stated by the petitioner in the written statement that the respondent workman was dismissed in the year 1994 and at that time, the provisions of Bombay Industrial Relations Act, 1946 was applicable to the petitioner bank and that the provisions of Industrial Disputes Act applies to the petitioner bank only from 1/4/2002 when the petitioner started one of its branch in the State of Maharashtra. It is also not in dispute that the petitioner has produced certain documents before the Labour Court vide list Exh.23. That thereafter the petitioner filed application Exh.40 for amendment of its written statement, which came to be rejected by the Labour Court by the impugned order. The Labour Court rejected the application for the amendment of the written statement on the grounds that the petitioner failed to disclose the reasons for which they could not have raised the contentions mentioned in the said application for amendment earlier in their original written statement; the contentions raised in the amendment application are not subsequent development; in the application for amendment, wrong Exh.Number of the written statement has been mentioned; the workman has been examined and he has Page 8 of 13 Downloaded on : Sat Sep 16 22:45:12 IST 2023 NEUTRAL CITATION C/SCA/8659/2014 JUDGMENT DATED: 25/07/2023 undefined been cross examined by the petitioner and the application for amendment in the written statement has been filed thereafter to fill up the lecuna.
6.2. The question which are required to be considered is as to at which stage the amendment can be granted and whether the proposed amendment changes the nature of the written statement or not.
6.3. In the present case, it is not in dispute that against the Statement of Claim filed by the respondent workman, the petitioner filed written statement and subsequently, the petitioner made application for amendment of the written statement. As per the settled legal position, while considering the amendment application, courts should be liberal in allowing the proposed amendment. Another question is whether the proposed amendment would change the nature of the written statement or not. It is pertinent to note that in the written statement the petitioner raised contentions that the respondent workman was dismissed in the year 1994 and at that time, the provisions of Bombay Industrial Relations Act, 1946 was applicable to the petitioner bank and that the provisions of Industrial Disputes Act applies to the petitioner bank only from 1/4/2002 when the petitioner started one of its branch in the State of Maharashtra. It is required to be noted that the petitioner sought to raise contentions regarding the dispute Page 9 of 13 Downloaded on : Sat Sep 16 22:45:12 IST 2023 NEUTRAL CITATION C/SCA/8659/2014 JUDGMENT DATED: 25/07/2023 undefined barred by limitation as per the provisions of BIR Act, reference was made after gross delay of about 15 years etc. In the opinion of this Court, all the aforesaid contentions, averments and/or issues sought to be raised by the petitioner by way of said amendment in the written statement are necessary for the purpose of determining the the issue and controversy between the parties in the reference. Under the circumstances, when the proposed amendment goes to the root of the matter and the proposed amendment would not change the nature of the written statement, liberal approach is required to be adopted and the application for amendment ought to have been granted by the Labour Court.
6.4. The Hon'ble Apex Court in the case of N.C. Bansal (supra) has observed and held as under :-
"In respect of Application under Order 5 Rule 17 (i) when suit is still at initial stage that is when trial has not begun (ii) where proposed amendment would not change the cause of action (iii) where applications are not filed at belated stage; under these circumstances, courts should be liberal in allowing proposed amendment."
6.5. The Bombay High Court in the case of Kundil Alloys Pvt. Ltd. (supra), relying upon the decision of the Hon'ble Apex Court in the case of Karnataka State Road Page 10 of 13 Downloaded on : Sat Sep 16 22:45:12 IST 2023 NEUTRAL CITATION C/SCA/8659/2014 JUDGMENT DATED: 25/07/2023 undefined Transport Corporation vs. Lakshmidevamma (SMT) and another, reported in (2001) 5 SCC 433, has observed and held as under:-
"In so far as the order passed by the Trial Court is concerned as indicated above the Trial Court has placed reliance on the judgement of the Apex Court in Karnataka State Road Transport Corporation vs. Kakshmidevamma *SMT) and another (supra) though the Apex Court has made the observation which have been adverted in the earlier part of the order. The Apex Court as can be seen at the same time has also observed that the same should not be understood as placing fetters on the powers of the Court/Tribunal requiring or directing parties to lead additional evidence including production of documents could be any stage of the proceedings before they are concluded if on the facts and circumstances of the case it is deemed just and necessary in the interest of justice.
Hence, the aspect of interest of justice is the paramount consideration. The Tribunal, in my view, has without considering the latter part of the judgement of the Apex Court has sought to lay emphasis only on the facet that such stand was required to be taken in the written statement and has thereby rejected the application. The Tribunal ought to have seen that in the case before the Apex Court the application was made after the Labour Court had held that the domestic inquiry was vitiated. In the instant case the application is made at the stage when the affidavit of evidence on behalf of the workman is filed. In so far as Page 11 of 13 Downloaded on : Sat Sep 16 22:45:12 IST 2023 NEUTRAL CITATION C/SCA/8659/2014 JUDGMENT DATED: 25/07/2023 undefined the non-acceptance of the reason cited by the petitioner in the application is concerned, in my view, the Tribunal has taken a hyper-technical view and thereby has recorded that inadvertence can be considered to mean as failure to take the plea on legal advise."
6.6. The Labour Court erred in rejecting the application on irrelevant considerations and on hyper-technical approach and opining that the amendment would change the nature of the written statement. Moreover, the Labour Court has observed that the dispute is not maintainable before the Labour Court and it is to be challenged in the High Court. Considering the provisions of Order 6 Rule 17 and relying upon the ratio laid down by the Hon'ble Apex Court in the case of N.C. Bansal (supra) as well as ratio laid down by the Bombay High Court in the case of Kundil Alloys Pvt. Ltd. (supra), if the application for amendment in the written statement is allowed, it would not cause prejudice to the respondent workman and therefore, the proposed amendment is required to be allowed.
7. In the result, present petition is allowed. The impugned order dated 5/12/2013 passed by the Labour Court, Rajkot in rejecting the application for amendment of the written statement - Exh.40 filed by the petitioner herein in Reference (LCR) No.86/2009 is hereby quashed and set aside and consequently, the said application Exh.40 of the Page 12 of 13 Downloaded on : Sat Sep 16 22:45:12 IST 2023 NEUTRAL CITATION C/SCA/8659/2014 JUDGMENT DATED: 25/07/2023 undefined petitioner for amendment of the written statement is allowed on condition that the petitioner shall deposit an amount of Rs.5000/- in the High Court Services Committee within a period of two weeks from today. On production of the receipt of deposit of cost of Rs.5000/-, the Labour Court shall permit the amendment to be carried out in the written statement by the petitioner. Copy of the amended written statement shall be given to the learned advocate for the respondent workman. The labour court shall given an opportunity to the respondent workman to lead further evidence in light of the amended written statement. If any application is made for filing documentary evidence, the same be decided by the Labour Court in accordance with law as expeditiously as possible. The Labour Court shall conclude the trial and dispose of the Reference within a period of six months from the date of filing of amended written statement. Rule is made absolute accordingly.
Sd/-
(RAJENDRA M. SAREEN,J) R.H. PARMAR Page 13 of 13 Downloaded on : Sat Sep 16 22:45:12 IST 2023