* THE HON'BLE MR JUSTICE RAMESH RANGANATHAN + WRIT PETITION NO. 16019 of 1996 AND WRIT PETITION NO. 8319 OF 1997 % 10-11-2005 # FGP Limited, A Company incorporated under the Companies Act, 1956 having its registered; office at Mumbai (the Successor-in-interest in so far as the factory at Thimmapur, Mahaboob Nagar District of CEAT Limited) Thimmapur, Mahabob Nagar District, Andhra Pradesh rep.,by its General Manager (HR) Mr. V.Sundar Rao. … Petitioner Vs. $ 1. The Presiding Officer, Labour Court-III, Chandravihar, M.J.Road, Hyderabad – 500 001 and another. … Respondent ! Mr.C.R.Sridharan, Counsel for the Petitioner ^ Counsel for respondent: Counsel for the Respondent < Gist: >Head Note ? AIR 1984 SC 186 2 AIR 1975 SC 650 3 AIR 1972 AP 134 FB 4 AIR 1983 SC 43 5 (1996) 11 SCC 680 6 AIR 2001 SC 699 7 AIR 1981 SC 588 8 AIR 1978 SC 484 9 AIR 1921 Privy Council 50 10 AIR 1972 AP 134 (FB) 11 (1988) 1 ALT 178 12 AIR 1984 SC 153 (FB) 13 1993 (1) LLJ Page 626 14 1982(1) LLN 332 15 1991(1) LLJ 29 16 1994(1) LLJ 162 17 (1996) 3 SCC 364 18 AIR 1963 SC 439 19 AIR 1964 SC 1272 20 AIR 1964 SC 1458 21 (1970) 1 LLJ 26 22 (1995) 5 SCC 75 23 1994(4) SCC 422 24 1998(6) SCC 651 25 AIR 1986 SC 2118 26 1993 (1) LLN: SC(1) 27 2000 LIC 3111 28 1973 SC 1183 29 2005 LAB.I.C.1073 30 1979 (39) F.L.R. 70 S.C. 31 1971 LAB.I.C. 788 Assam H.C.(DB) 32 1973(1) LLJ 278 SC para 44 & 46 33 1978 SCC (L&S) 465 para 17 34 1999 SCC (L&S) 302 para 18 (3) 35 1990 LLR AP 236 para 43 36 AIR 1964 SC 506 37 2001 (5) SCC 433 38 AIR 1971 SC 2414 39 AIR 2001 SC 3645 40 (1980) 4 SCC 443 41 AIR 2001 SC 2270 42 (2005)3 Supreme Court Cases 134 43 (2005) 2 SCC 481 44 1997(1) LLJ 1212 45 2001 LLR 11 46 2000(2) LLN 402 47 AIR 1982 Supreme Court 1552 48AIR 1984 Supreme Court 914 49AIR 1989 SC 149 50 1995 SCC (L&S) 1367 51 1996(3) ALD 383 THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO.16019 OF 1996 AND WRIT PETITION NO.8319 OF 1997 COMMON ORDER: W.P.No.16019 of 1996 is filed by M/s GHP Limited, against the award of the labour Court-III, Hyderabad in I.D.No.282 of 1993, (old I.D.No.289 of 1990), dated 23.03.1996, whereby the order of termination of the services of the 2nd respondent was set aside and he was directed to be reinstated with continuity of service and attendant benefits, but without back wages and on deferment of two increments as if not accrued. To the extent, back wages were denied and punishment of deferment of two increments was imposed by the labour Court, the workman has challenged the award, in W.P.No.8319 of 1997. As the award of the labour Court, in I.D.No.282 of 1993 dated 23.03.1996, is under challenge in both the writ petitions, they were heard together and are being disposed of by a common order. Parties shall, hereinafter, be referred to as they are arrayed in W.P.No.16019 of 1996. Facts, to the extent necessary for this writ petition, are that the petitioner-company, with its registered office at Mumbai, was engaged in manufacture and sale of fiberglass and its products. It had a factory, at Thimmapur in Mahaboob Nagar District of Andhra Pradesh, which it had earlier taken over from CEAT Limited. The 2nd respondent was appointed as an operator in the petitioner’s factory in 1981. The 2nd respondent, while working in the “C” shift on September 2nd 1988, was allegedly found sitting in the bushing control room at about 10.50 pm reading a magazine and when the shift incharge asked him to do the work of fibre forming, he is alleged to have abused the shift incharge calling him “saala and Maa-ka-louda”, an abuse in Hindi. This incident is alleged to have taken place in the presence of supervisors. The 2nd respondent workman was issued a charge sheet on 3rd September 1988 and called upon to offer his explanation as to why disciplinary action should not be taken against him. Again on September 6th, when he was in the “B” shift in the fibre forming section at about 3.30 pm, the 2nd respondent is alleged to have left his assigned place of work and to have rushed towards one Mr. Mohan, a Senior Executive, who was just about to enter his cabin, and to have addressed him in a threatening manner in Hindi, thus:- “You people were responsible for my transfer from the mechanical Department to the production Department and from the production Department to the fibre Forming. I am now facing a lot of troubles and I have also been issued with a charge sheet. All this has happened because of you people. There is no much time left now for me to leave this place. When I will be removed from here them my wages will stop which will cause me trouble. When my wages will stop then I will face difficulties and then you people will have to send the money to my home, otherwise you and your family will have lot of troubles”. On being questioned as to what he meant by the threat, the 2nd respondent is alleged to have replied that nothing could be specifically stated at that moment as to what he could do but it had to be seen. The 2nd respondent is alleged to have gesticulated in a threatening manner towards Mr. Mohan and to have walked away. The 2nd respondent was issued charge sheet for this alleged incident, on September 8th 1988, and was placed under suspension pending enquiry. The departmental enquiry was conducted on 14th September 1988 and since the 2nd respondent did not attend, the enquiry was adjourned to 28th September 1988, on which date the 2nd respondent is said to have attended the enquiry and to have informed the Enquiry Officer that he would not seek the assistance of any co- employee but would defend himself. The Enquiry Officer is said to have read out the charge sheet and to have explained its contents to the 2nd respondent who is said to have denied the allegations as false and that he did not commit any misconduct. The 2nd respondent refused to cross examine the management witnesses, who were examined on 28th September 1988, on the plea that full subsistence allowance was not paid to him. The 2nd respondent was set ex parte, the enquiry proceeded with and thereafter concluded on 10th October 1988 when three more witnesses were examined in support of the charges. The Enquiry Officer submitted his report on 25th October 1988 holding the 2nd respondent guilty of the charges alleged against him. With reference to the 2nd charge sheet dated 8th September 1988, a copy sent to the 2nd respondent, by registered post acknowledgment due, is said to have been returned unserved with the endorsement that he was absent. However the charge sheet was later served, on the 2nd respondent, on 20th September 1988 when he attended the factory. Since there was no explanation forthcoming from the 2nd respondent, it was decided to conduct an enquiry. The 2nd respondent is said to have attended the enquiry on 8th November 1988 and to have submitted a letter, to the enquiry Officer, addressed to the Asst. Manager (Admn. and Personnel), purported to be his explanation to the charge sheet dated 3rd September 1988. Since the explanation related to the other charge sheet and had no connection with the subject matter of enquiry, the Enquiry Officer proceeded to conduct the enquiry in respect of the subsequent charge sheet dated 8th September 1988. The Enquiry Officer is said to have called upon the 2nd respondent to make a statement regarding the 2nd charge sheet, to which he is said to have made a statement that it is only if a copy of the complaint was furnished would he tender his explanation. The enquiry was proceeded with, without a copy of the complaint being given to the 2nd respondent, in view of the assertion by the management that the copy of the complaint would be furnished as and when witnesses were examined and not earlier. When asked to cross examine, the 2nd respondent is said to have sought extension of time and subsequently, on 15th November 1988, to have cross examined the witnesses. Thereafter the evidence on behalf of the management was closed. The 2nd respondent did not choose to adduce evidence, either oral or documentary, in his defence and merely stated that the written explanation submitted by him on 15th November 1988 may be considered. The Enquiry Officer submitted his report holding the 2nd respondent guilty of misconduct. Having regard to the findings of the Enquiry Officer and the seriousness of the charges held proved, notice dated 3rd December 1988 was issued to the 2nd respondent calling upon him to show cause as to why he should not be dismissed from service. The 2nd respondent submitted his explanation thereto, vide his letter dated 16th December 1988. After considering his explanation and on holding that there was no mitigating or extenuating circumstances to take a lenient view in the matter and also having regard to his past record, the punishment of dismissal from service was imposed on the 2nd respondent on 20th December 1988. Reference is made, in the affidavit filed in support of the writ petition, to the past record of service of the 2nd respondent, who is said to have been warned six times for unauthorisedly leaving the work spot, reading magazines during working hours, habitual absenteeism etc and to have been advised to improve his attendance. It is stated that all these warnings had been given, after due enquiry into the case, that the 2nd respondent was punished with suspension for two days as he had been found guilty of being unauthorizedly absent from his work place, during working hours, on 17th February 1988, to have been orally warned for his rude behaviour on 12th April 1988 with one of the executives, to have been warned, vide letter dated 21.06.1988, for having been found sleeping on duty and to have again been warned and his wages deducted for refusing to do alternate jobs. It is contended that the previous record would disclose that there were no extenuating or mitigating circumstances to take a lenient view in the matter and that the order of dismissal imposed on the 2nd respondent was valid. The 2nd respondent filed a petition, under Section 2-A (2) of the Industrial Disputes Act, 1947, before the labour Court on 12th September 1990. The petition was initially numbered as I.D.No.289 of 1990, and on the matter being transferred and posted before the Labour Court III, Hyderabad, it was renumbered as I.D.No.282 of 1993. The Labour Court III, by order dated 27th August 1994, upheld the validity of the domestic enquiry. The 2nd respondent workman filed I.A.No.219 of 1995 seeking review of the order dated 27th August 1994. In the petition, filed in I.A.No. 219 of 1995, the 2nd respondent sought for an opportunity to adduce evidence and submit arguments regarding the validity of the domestic enquiry. I.A.No.219 of 1995 was dismissed, by the Labour Court, by order dated 11th March 1995. The Petitioner management filed I.A.No.28 of 1995, seeking permission to adduce evidence regarding the past service record of the 2nd respondent workman. On the I.A. being allowed by the Labour Court, the petitioner examined one witness and marked 14 documents as exhibits. The Labour Court thereafter examined the matter under Section 11-A of the Industrial Disputes Act and passed the award dated 23rd March, 1996 which was published in G.O.Rt.No.1911 dated 4th April 1996. This award is challenged, by the petitioner-employer as having been passed without application of mind. The findings of the labour Court, on the quantum of punishment and the reasons given for its substitution by a lesser punishment are contended to be perverse and liable to be set aside by this Court in certiorari proceedings. Before the contentions raised in W.P.No. 16019 of 1996 are examined, it is necessary to consider the contentions raised in W.P.No.8319 of 1997 filed by the 2nd respondent workman. The relief sought for in W.P.No.8319 of 1997 is to quash the order in I.A.No.219 of 1995 in I.D.No.282 of 1993 dated 11.03.1995 in not reviewing the order dated 27.08.1994 upholding the validity of the domestic enquiry and to hold that the award, in I.D.No.282 of 1993 dated 23.03.1996, insofar as back wages were denied and punishment of deferment of two increments was imposed, is arbitrary, unjust and in violation of Articles 14 and 16 of the Constitution of India. In the affidavit, filed in support of W.P.No. 8319 of 1997, the 2nd respondent workman would state that the enquiry conducted against the workman was without affording him reasonable opportunity, in spite of his request for being supplied copies of certain documents neither the Enquiry Officer nor the petitioner had furnished copies thereof, that the workman was not paid the subsistence allowance to which he was entitled to from the date of his suspension on 03.09.1998, that the punishment imposed on him was only because he was an active union leader which was not to the liking of the petitioner, that the enquiry proceedings were conducted in violation of principles of natural justice, that no independent witness was examined in support of the charge and only the complainant was examined in this regard, that the 2nd respondent workman was issued show cause notice of removal dated 03.12.1988 without furnishing him a copy of the enquiry report and other relevant documents and though the workman had, vide letter dated 16.12.1988, requested the petitioner management to furnish him a copy of the enquiry report in order to enable him to submit his explanation, his request was not favourably considered prior to imposition of punishment. It is stated that in I.D.No.282 of 1993 the workman had engaged a counsel to prosecute the case on his behalf. However due to the sudden demise of his wife the said Counsel could not attend the hearing and as a result the Labour Court, after hearing arguments of the Counsel for the management, passed the order upholding the validity of the domestic enquiry. It is stated that the 2nd respondent-workman, thereafter, engaged another Counsel and filed I.A.No.219 of 1995 seeking review of the order as there was a glaring mistake apparent on the face of the record as the Labour Court, by order dated 27.08.1994, had upheld the validity of the enquiry without perusing the documents on record, though the documents submitted by the workman formed part thereof. I.A. 219 of 1995 was dismissed by the Labour Court holding that it did not have the power to review the order. It is stated that Rule 30, of the A.P. Industrial Rules, empowers the Labour Court to review its orders, that the order of the Labour Court, in I.A.No.219 of 1995, was not challenged earlier as interlocutory orders of Labour Courts are, normally, not entertained by this Court and in such circumstances, the said order is now being challenged along with the award passed in I.D.No.282 of 1993 dated 11.03.1995. It is contended that the Labour Court had erred in placing reliance on the past record of service of the 2nd respondent-workman, which did not form part of the domestic enquiry, and had been placed before the Labour Court after the validity of domestic enquiry was upheld, that the findings of the Labour Court are contrary to the material evidence on record and that the order of the Labour Court in imposing punishment, of deferment of two annual increments and in denying back wages, was illegal. AMENDMENT OF PLEADINGS/PRAYER IN WRIT PROCEEDINGS During the course of final hearing of both the writ petitions and after Sri C.R. Sridharan, learned Counsel for the employer, had completed his submissions and had pointed out that the workman had not challenged the validity of the domestic enquiry even in the present Writ Petition, W.P.M.P.No. 27113 of 2005 in W.P.No.8317 of 1997 is filed by the 2nd respondent workman seeking amendment of the prayer to include a challenge to the order of the Labour Court dated 27.08.1994 upholding the validity of the domestic enquiry. The petitioner filed a counter affidavit opposing the request for amendment, contending that since arguments in the writ petition are almost complete, no permission ought to be granted at this stage to amend the prayer to include a challenge to the validity of the domestic enquiry. Sri C.R.Sridharan, Learned Counsel for the petitioner, would rely on Krishna Priya Ganguly Vs. University of Lucknow in support of his submission that it is not open for the High Court, under Article 226 of the Constitution of India, to grant a relief beyond what has been sought for in the writ petition. Learned Counsel would refer to Piare Lal Vs. Union of India, and contend that a belated application for amendment ought not to be permitted in the absence of any specific explanation for the inordinate delay in seeking amendment of the relief sought for in the writ petition. Sri V.Narasimha Goud, Learned Counsel for the workman, would submit that since there is a specific plea that the domestic enquiry was vitiated and that the workman, soon after the order dated 27.08.1994 whereby the Labour Court had upheld the validity of the domestic enquiry, had filed the petition in I.A.No.219 of 1995 seeking review of the said order, and since the order of the Labour Court, rejecting the 2nd respondent’s request to review its order, upholding the validity of the domestic enquiry, is the subject matter of challenge in this writ petition, the amendment petition should be ordered permitting a challenge to the validity of the domestic enquiry also, since failure to seek this relief in the writ petition was purely by oversight, and as no third party rights will be affected if the petition is allowed. Learned Counsel would rely on Bhoganadham Seshaiah Vs. Budhi Veerabhadrayya; Harcharan Vs. State of Haryana C.S.Company Vs. Kerala State Electricity Board and Ragu Thilak.D.John Vs. S.Rayapan in this regard. Normally Courts insist on parties being confined to the specific written pleadings and do not permit them to deviate therefrom by way of modification or supplementation except through the well known process of formally applying for an amendment. (S.S.Sarma Vs. Union of India). Procedural laws are, however, intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings are meant to give each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take. It is always open for this Court to permit amendment of pleadings or the prayer sought for. (M/s. Ganesh Trading Co., Vs. Moji Ram; Haricharan (4 supra). As long as the amendment does not constitute addition of a new cause of action or a change in the cause of action as originally pleaded, the petition for amendment need not be rejected (C.S.Company – 5 supra). A belated request for amendment cannot , by itself, be a ground for refusal thereof. The power to allow amendment is wide and can be exercised at any stage of proceedings in the interest of justice. While amendment cannot be claimed as a matter of right and under all circumstances Courts, while deciding such prayers, should not adopt a hypertechnical approach. Liberal approach should be the general rule and technicalities of law should not be permitted to hamper Courts in the administration of justice between parties. Amendments are allowed to avoid uncalled for multiplicity of litigation. (Ragu Thilak D.John – 6 supra). While an amendment, where its effect is to take away from a person a legal right which has accrued to him by lapse of time, would not normally be permitted, yet there are cases where such considerations are outweighed by the special circumstances of the case. Whether there are any special circumstances or not is a question of fact which has to be decided on the material on record and keeping in view the circumstances of the case. (Charandas Vs. Amir Khan; B.Seshaiah Vs. B.Veerabhadrayya). Now the judgments relied upon by Sri C.R.Sridharan, learned Counsel for the employer. In Krishna Priya Ganguly (1 supra) refusal to admit candidates, to post graduate degree courses in dental surgery, was the subject matter of challenge. Upon laying down the criteria for admission to these post graduate courses, the Allahabad High Court, while observing that certain candidates were dedicated workers having acquired diploma and had proved to be an invaluable asset to the institution, directed that they be admitted into post graduate courses. It is in this context that the Supreme Court observed that there was no proper material for the conclusions which the High Court had arrived at, apart from the fact that admissions were not to be given by the High Court according to its own notions and since the prayer sought for in the writ petition was to direct the State or the College to consider the case of candidates for admission and the High Court had straight away issued a writ of mandamus directing the College to admit the candidates, it had thereby granted a relief which the respondents themselves had not and could not have prayed for. In the present case the order of the Labour Court, dated 27.08.1994, upholding the validity of the domestic enquiry, was challenged by the workman before the Labour Court itself in I.A.No.219 of 1995 in I.D.No.292 of 1993. I.A.No.219 of 1995 was rejected by the Labour Court, by order dated 11.03.1995, holding that it did not have the power to review the order. This order of the Labour Court, in I.A.No.219 of 1995, is challenged in the present writ petition. Taking a hypertechnical view would require challenge in the writ petition to be restricted only to the order of the Labour Court dated 11.03.1995 refusing to review its earlier order dated 27.08.1994. The fact however remains that, in substance, it is the order of the Labour Court dated 27.08.1994, upholding the validity of the domestic enquiry, which is under challenge, albeit, indirectly. While it is true, as laid down in Krishna Priya Ganguly (1 supra), that this Court would, normally, not grant a relief which has not been prayed for, this Court can, if there are justifiable reasons to do so, mould the relief. A five judge bench of this Court in Dronamraju Satyanarayana Vs. N.T.Rama Rao) held that this Court could exercise its discretion and mould the relief to meet the situation more particularly in view of the comprehensive provisions of Article 226 of the Constitution of India which empowers the High Court to issue orders, “for any other purpose”, apart from writs for enforcement of the fundamental rights conferred under Part-III of the Constitution of India. While this Court undoubtedly has the power, to mould the relief, even in the absence of a specific prayer in this regard, it is not necessary for it to do so as a petition has now been filed seeking amendment of the prayer to include a challenge to the order of the Labour Court dated 27.08.1994 upholding the validity of the domestic enquiry. I n Piare Lal (2 supra) the writ petition was filed before the Punjab and Haryana High Court in 1965. During the pendency of the writ petitions, the Government had issued two orders on 28.10.1966. No amendment was sought before the Punjab and Haryana High Court to include a challenge to the validity of the aforesaid two orders. Even after the writ petitions came to be dismissed by the High