Dyes & Chemicals Workers' Union v. M/s. Jaysynth Dyechem Ltd.

Heard Ms. Singh for the Petitioner and Mr. Jalsatgi, for the Respondents. 2 RULE. Rule made returnable forthwith and heard by consent of the parties. 3 Petitioner is the original complainant in Complaint (ULP) No. 461 of 1999 which is filed under the provisions of MRTU and PULP Act, 1971 in the Industrial Court at Thane. In this complaint, the Petitioner had earlier filed an application for joining ARCIL as party-Respondent. - 2 - 24-wp-9645-2011 That application was rejected and that order was upheld by the learned Single Judge – Hon'ble Dr. D. Y. Chandrachud in Writ Petition No.6070 of

2008. 4 After the complainant closed his evidence but before the Respondents commenced their evidence, the complainant filed three applications. Application Exhibit U-76 was filed for amendment of the complaint and to bring on record the various subsequent developments. Application Exhibit U-83 was filed for addition of various parties which were stated to be sister concerns of the Respondents No.1. Thereafter, Application Exhibit U-84 was filed for amendment of Schedule-II of Application Exhibit U-76. All these applications were heard together by the learned Member of the Industrial Court. All these Applications were opposed by the Respondents on the ground that the application for amendment was belatedly filed. It was also contended that if the amendment is allowed, that will change the entire nature of controversy. It was also contended that if third parties are allowed to be added, that will cause prejudice since in the absence of any employer/employee relationship between the member of the Complainant-Union and the third parties, there can be no adjudication by the Industrial Court and therefore, they cannot be allowed to be added. 5 By the impugned Judgment and Order dated 22nd June, 2011, - 3 - 24-wp-9645-2011 the learned Member, Industrial Court, Thane decided the applications Exhibit U-76, Exhibit U-83 and Exhibit U-84. Only the application Exhibit U-76 was partly allowed and a few sentences were allowed to be added in the complaint which read thus:- “...........The complainant submits that the Respondents in collusion with ARCIL and M/s. RNA Life Style Pvt. Ltd. & M/s. Devbhoomi Realaters dismantled the remaining machineries at Turbhe factory and demolished the entire plant in contempt of the order of this Hon'ble Industrial court dated 30.11.1999.” 6 The gist of the reasoning in the impugned order is to be found in paragraphs 5 and 6 which read thus:- “Para-5:- It can be seen that most of the proposed pleadings are in respect of the alleged actions or unfair labour practices which happened way back in 1999-2000 or immediately thereafter. The grievances of the unfair labour practices were challenged by taking recourse to the remedies available in law. In some matters even the orders have been passed. At least for two reasons, these facts cannot be allowed to be now pleaded. First is that the complainant had closed its evidence on 30.3.2005. The trial in the complaint has commenced long back. As held in Vidyabai case decided by the Hon'ble Supreme Court (supra), the court's jurisdiction to allow an application for amendment is taken away by amended proviso to order 6 Rule 17 of CPC unless the condition precedent therefor are satisfied viz. it must come to a conclusion that inspite of due diligence the parties could not have raised the matter before the commencement of the trial. According to me, the complainant has not shown that inspite of due diligence it could not raise the aforesaid pleas before the commencement of trial. Para-6:- Secondly, as I have said, the complaint basically deals with delay or non-payment of wages in the year 1999, shifting of machinery, and some manufacturing activities to other unit. The complaint is restricted to a particular cause and - 4 - 24-wp-9645-2011 based on that, only a declaration is sought. There is no necessity or any justification in joining the various causes of action as proposed which are or have been subject matter of challenge in different proceedings. If any decision in those cases is relevant, the complainant can produce the said decision for consideration in this complaint. Allowing all these pleadings as proposed will be a mis-joinder of cause of action.” The Petitioner had thereafter filed an application below Exhibit U-92 for review which has been dismissed by order dated 19th September, 2011. Both the orders dated 22nd June, 2011 and 19th September, 2011 are challenged in this Writ Petition. 7 Smt. Singh contended that the proposed amendment was necessary to avoid multiplicity of judicial proceedings. She contended that though the evidence of the Complainant was closed, evidence of the Respondents was yet to begin when the first impugned order was passed. She contended that no inconsistent pleases are taken but according to her, the pleas which were sought to be incorporated were not inconsistent and were necessary for the adjudication of real controversy involved in the complaint. 8 On the other hand, Mr. Jalisatgi submitted that the application was filed belatedly as the complaint was filed in the year 1999 and the evidence was closed in the year 2005 itself. He submitted that if the proposed amendment is allowed, that will completely change the nature of proceedings and will cause substantial prejudice to the - 5 - 24-wp-9645-2011 Respondents. In so far as application Exhibit U-83 for adding parties is concerned, he submitted that no relationship of employer/employee was claimed to be existing between the members of the Petitioner and the said parties which were sought to be added. He, therefore, submitted that following the Judgment of the learned Single Judge in Writ Petition No. 6070 of 2008, wherein the learned Single Judge had held that ARCIL cannot be added as party, even application 83 was liable to be rejected. 9 I have carefully considered the submissions. The learned Judge has given no reasons as to why Exhibit U-84 which simply sought substitution of Schedule-II to the Application No. Exhibit U-76, was being rejected. Before hearing on the application Exhibit 76 and decision thereof, the learned Judge could have always allowed amendment of application Exhibit U-76 which was prayed for by application Exhibit U-84. Hence, the impugned order in so far as it dismisses application Exhibit U-84 is unsustainable and deserves to be quashed and set aside and is accordingly quashed and set aside. 10 In so far as application Exhibit U-76 and Exhibit U-83 are concerned, the first application was for the amendment whereas the second application was for adding parties. It is well settled law that an amendment can be allowed at any stage of the proceedings and even an inconsistent plea can be allowed to be pleaded by amendment. Schedule-I - 6 - 24-wp-9645-2011 of the application Exhibit U-76 will show that essentially the complainant wanted to place on record various events which had taken place subsequent to the filing of the complaint as also to narrate the history of numerous litigation which had taken place between the Complainant and the Respondents. The complainant also wanted to plead that there was a collusion between the Respondents and the sister concerns of Respondents and that the manufacturing activity of Respondents No.1 was shifted to its sister concerns. Perusal of the complaint shows that the complainant seeks a declaration against the Respondents that the Respondents have allegedly engaged in unfair labour practice under Item Nos.9 and 10 of the MRTU and PULP Act, 1971. Amendment proposed by Exhibit U-76 as amended by Exhibit U-84 seeks further relief against the Respondents and its sister concerns by contending that they have jointly filed and implemented scheme adopted by the High Court in Company Petition No. 966 of 2007 by order dated 20th June, 2008 and have allegedly committed unfair labour practices under Item 9 of Schedule IV of the aforesaid Act. A perusal of the proposed amendment will indicate that the pleas which were sought to be added, could not be held to be mutually exclusive vis- a-vis prayers in the complaint. According to me, therefore, there was no justification in replacing the amendment on the ground that the proposed amendment will change the real nature of the controversy. - 7 - 24-wp-9645-2011 11 I have also quoted paragraphs 5 and 6 of the impugned order of the Industrial Court wherein the reasons for refusing the amendment are given. The first reason is based on the Judgment of the Hon'ble Supreme Court in the case of Vidyabai. That Judgment really deals with a situation where the Civil Suit filed after 1st July, 2002 was sought to be amended after the commencement of the trial. It is clear that the said bar will not be applicable in respect of the complaint which was filed in the year 1999. Hence, the first reason given by the learned Judge of the Industrial Court for rejecting the amendment is not sustainable. 12 Mr. Jalsatgi further submitted that the Petitioner has accepted the impugned order and has acted upon the same by amending the complaint to the extent which was allowed by the Trial Court and that the Petitioner has also led further evidence by examining two witnesses and has closed the evidence thereafter. 13 Merely because on the basis of the order allowing the amendment partly, the Petitioner has proceeded to amend the plaint and has examined two witnesses, it is difficult to hold that they are not estopped from prosecuting the Petition, on the ground that the Petitioner has accepted the impugned order. 14 Even the second reason that there will be a mis-joinder of causes of action as unsubstantial. The complete reading of the proposed - 8 - 24-wp-9645-2011 amendment will show that the same is based on subsequent developments which have taken place. Merely because new parties are allowed to be added as Opponents in the complaint, who are claimed to be sister concerns of original opponents, it cannot be held that allowing proposed amendment would result in mis-joinder of cause of action. Hence, even the second reason given by the learned Judge for refusing the amendment and addition of parties is unsustainable. As an out come of the aforesaid discussion, it is clear that the impugned Judgment and Order dated 22nd June, 2011 passed by the learned Judge of the Industrial Court below Exhibits U-76 and U-83 deserves to be quashed and set aside and the same is accordingly quashed and set aside. Application Exhibit U-76 (as amended by Exhibit U-84) and Exhibit U-83 are allowed in their entirety. 15 It is needless to state that on account of amendment, if any fresh affidavit of evidence is to be filed by the Petitioner, the Petitioner will be permitted to lead his evidence. However, since one of the grievance of Mr. Jalsatgi is that the complainant is interested in delaying the trial for one reason or the other and since the complaint is pending from 1999, hearing of the complaint is expedited and the same shall be disposed off on or before 31st January, 2013. 16 Needless to state that after the Petitioner amends the complaint as per Exhibit U-76, the Respondents will be entitled to file - 9 - 24-wp-9645-2011 their additional Written Statements and the added Respondents will be entitled to file their respective Written Statements. 17 Rule is made absolute in the aforesaid terms with no order as to costs. 18 At this stage, Mr. Jalsatgi prays for stay of this order for a period of four weeks. The request is opposed. However, considering the nature of controversy, this order will remain stayed for a period of four weeks. (G.S.GODBOLE,J.)