1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN ITS ORDINARY ORIGINAL CIVIL JURISDICTION AND IN ITS EXTRAORDINARY INHERENT CONSTITUTIONAL JURISDICTION WRIT PETITION NO.2517 OF 2009 Purushottam Bachare (President of Bombay Electric Workers Union) & Ors. ...Petitioners Versus Pravin N. Khanolkar & Ors. ...Respondents ...... Mr.A.V.Bukhari with Mr.Kishore Shetty for Petitioners. Mr.R.D.Bhat for Respondents. ...... CORAM : A.M.KHANWILKAR AND A.P.DESHPANDE, JJ. DATED : DECEMBER 19, 2009. P.C. : 1. Rule. Rule made returnable forthwith, by consent. Mr.Bhat waives service for the Respondents. 2. As short question is involved, Petition is taken up for final disposal forthwith, by consent. 3. This Writ Petition under Article 226 of the Constitution of India takes exception to the order passed by the Industrial Court, 2 Mumbai dated 16th November 2009 below Exhibit U-26 in Application (ICTU) No.4 of 2009. 4. By this order, the Industrial Court allowed the Application filed by the Respondents/Applicants for amendment of the original application. The proceedings have emanated from the reference made by the Deputy Registrar of Trade Union, Mumbai. An application was made to the Registrar under the provisions of the Trade Unions Act, 1926 that a dispute of the nature described in Annexure to the said Application had arisen as to whether or not the eight named persons are office bearers of Bombay Electric Workers’ Union. It was prayed that an inquiry be conducted under Regulation 23 of Bombay Trade Unions Regulations 1927, consequent to which, reference of the dispute be made to the Industrial Court. On the basis of the said application, the Deputy Registrar of Trade Union, Mumbai opined as follows : “FORM “L” TRADE UNION ACT, 1926 CONSENT CERTIFICATE On perusal of the application dt. 23.03.2009 received from Sarvashri Pravin N. Khanolkar, Pramod Jadhav and Girish Khanolkar, Member of the Bombay Electric Workers’ Union and after making inquiries in respect of the alleged dispute regarding 3 whether or not the following persons are office bearers of the Bombay Electric Workers Union, 1] Shri Pursuhottam Bachare President 2] Shri Subrao Kamble Working President 3] Shri Sarjerao Deshmukh Vice-President 4] Shri B.B.Sawant - “ - 5] Shri Shamrao Khamkar - “ - 6] Shri Shahaji Magare - “ - 7] Shri Vithalrao S. Gaikwad General Secretary 8] Shri Sabalsingh Dobliyal Treasurer I, A.K.Pendse, the deputy Registrar of Trade Union, Mumbai am satisfied that the dispute of the nature referred to in sub-section (1) of the Section 28-A of the Trade Unions Act, 1926 in its application to the State of Maharashtra, exists as to dispute relating to whether or not the aforementioned persons are office bearers of Bombay Electric Workers’ Union. Hence Consent Certificate is hereby given that Sarvashri Pravin N. Khanolkar, Pramod Jadhav and Girish Khanolkar, member of the Bombay Electric Workers’ Union may refer the dispute under the said sub-section (1) to the Industrial Court, Mumbai. Place: Mumbai Dated sd/-26/5/09 (A.K.PENDSE) Deputy Registrar of Trade Union Mumbai” 5. On the basis of this reference, the proceedings before the Industrial Court have commenced. The reference essentially is in relation to the question as to whether the eight named persons were office bearers of Bombay Electric Workers’ Union at the relevant time when the application was filed on 16th June 2009? During the pendency of the proceedings before the Industrial Court, the 4 Respondents/Applicants took out application for amendment, interalia, on the ground that certain subsequent events have unfolded and which are incidental to the developments to be considered while answering the reference. In proposed Paragraph 27(a), reference is made to incident of 17th June 2009, which was after the date of the application. In Paragraph 27(b), reference is made to threatening phone calls from unidentified persons and threat administered on 7th April 2009 on telephone. In Paragraph 27(c), reference is made to incident of 10th June 2009 whereas in remaining proposed Paragraphs 27(d) to 27(h), the same are founded on incidents after the filing of the application i.e. on 28th August 2009, 2nd September 2009, 16th September 2009 and 15th October 2009. The Industrial Court by the impugned decision acceded to the request of the Applicants and allowed the prayer for amendment of the application on the following basis: “As per the proposed amendments, applicants are trying to amend their application regarding promises given by the opponents if they withdraw their application, about threatening by opponents to applicants, alleged false complaint against applicant by the respondent to the management of Reliance Energy and assault on applicant No. 1 b y respondent along with modification in payer regarding office bearer-ship of Mumbai Electric Workers Union. These amendments sought by the applicants are related to the consent certificate issued by the Registrar of Trade Union on 26-3-09 and incidental developments which have taken place after filing this application. The amendment application filed by the 5 applicants has been filed on the date of which this Court has reframed issued i.e. 28-10-09. Therefore, it cannot be said that the applicants have filed amendment application after commencement of trial. The respondents have relied decisions of Hon’ble Supreme Court below Ex.C-18 which are as under- 1. 1979 LAB. I.C.-827 (SC) Pottery Mazdoor Panchayat v/s. The Perfect Pottery Co. Ltd. and ors. 2. AIR 2009 (S.C.) -1433 Vidyabai & ors. v/s. Padmalatha & anr. The ratio laid down by Their Lordship in the above said case are not helpful to the respondents as the proposed amendments are related to the consent certificate and incidental thereto. If the proposed amendments are allowed the scope of main application is not going to be enlarged. Hence following order is passed. ORDER i) The amendment Application Ex. U-26 filed by the applicants is hereby allowed. ii) The applicants to carry out proposed amendment in the application. iii) Matter to proceed for further hearing.” 6. The above decision is subject matter of challenge in the present Writ Petition. The principal argument of the Petitioners is that the Industrial Court could not have allowed the amendment which travels beyond the reference. The reference was limited to the question as to whether the named eight persons were office bearers of Bombay Electric Workers’ Union on the date of the 6 Application? The events which unfolded subsequent to the filing of the application, cannot be looked into by the Industrial Court, as the same will have no bearing to decide the point in issue. The Petitioners have assailed the opinion of the Industrial Court that the events referred to in the proposed amendment were incidental developments and having taken place after filing of the application, the same ought to be taken on record. To buttress the argument that the jurisdiction of the Tribunal is limited to the reference, reliance is placed on the decision of the Apex Court in the case of Pottery Mazdoor Panchayat vs. The Perfect Pottery Company Limited & Anr reported in (1983) I L.L.J. 232. On the other hand, according to the Counsel for the Respondents, no fault can be found with the opinion of the Industrial Tribunal and the amendment has been rightly granted in the interest of justice. The Respondents pray for dismissal of this Writ Petition. 7. After having considered the rival submissions, we find that the application on the basis of which reference has been made by the Deputy Registrar of Trade Union, clearly proceeds on the basis that dispute has arisen as to whether or not named eight persons are 7 office bearers of Bombay Electric Workers’ Union. On that basis, the Deputy Registrar formulated the reference by limiting it to question as to whether or not the eight named persons are office bearers of Bombay Electric Workers’ Union. Obviously, the question is in the context of events which have occurred prior to the institution of the application and more particularly in relation to the factum of whether the named persons were office bearers of the Union at the relevant time. To answer this reference, only those events which unfolded prior to the date of application can be looked into by the Industrial Court. The Industrial Court cannot, on its own, enlarge the scope of reference. The exposition of the Apex Court in the above said decision would fully support this contention of the Petitioners. The reasons recorded by the Industrial Court for allowing the amendment so as to allow the Applicants to allege facts which unfolded after the application or the reference order, in our opinion, cannot be countenanced. On this reasoning, the events referred to in the application so as to incorporate proposed Paragraphs 27(a), 27(d) to 27(h) cannot be countenanced. The Respondents/Applicants, at best, could be allowed to only refer to events which precede the date of application for making reference 8 and which alone can be said to be the basis for reference. The Industrial Court would be required to answer the reference as to whether the named persons are office bearers of the Union on the date of such application and/or reference and not on the basis of matters which are posterior to the said reference. In this view of the matter, the reasons recorded in the impugned decision will have to be set-aside but at the same time, we cannot be oblivious of the fact that in the proposed Paragraph Nos. part of 27(b), 27(c) and at best, 27(i) and 27(j), are matters which can be said to be incidental for deciding the question referred to the Industrial Court. 8. In our opinion, therefore, the Respondents/Applicants can be allowed to amend the application only to the extent of such facts which are relevant to decide the reference. The operative order passed by the Industrial Court which is impugned in this Petition, will therefore have to be modified and instead amendment application U-26 filed by the Respondents/Applicants will have to be partly allowed to the extent of permitting the Respondents/Applicants to amend the Application by incorporating part of proposed Paragraphs 27(b), 27(c), 27(i) and 27(j). The relevant portion of the said paragraphs read thus: 9 “27(b) ........... On 7-4-2009 he (Applicant No.1) was told over the landline of his residence that he should not attend the proceedings which were to take place on 14-4-2009 in the office of the Deputy Registrar of Trade Union failing which he will have to face dire consequences. One Shri Ramesh Ghadge who is a strong supporter of Respondent No. 7 threatened Applicant No. 1 that if the Applicant No. 1 proceeds against Respondent No. 7 he (Shri Ghadge) will personally see to it that the Applicant No. 1 will not survive. He also said that Respondent No. 7 and other Respondents had ample money whereas the Applicant No. 1 will have to sell his house effectively prosecute the Complaint. Hence, the Applicant No. 1 filed an N.C. Complaint at Dindoshi Police Station, a copy of which is already filed on record. 27(c) On 10-6-2009 once again the Applicant No. 1 received threats over his Mobile Phone without any indication of the phone number from which the call was made. The Applicant No. 1 was told that he should withdraw the application failing which he will have to face dire consequences. Copy of the Complaint filed by the Applicant No. 1 at Dindoshi Police Station is already on record. 27(i) In the past also m embers who had dared to file cases against the Respondent No. 7 were beaten up and/or threatened. Shri R.K. Kottary was similarly assaulted sometime in 2005. Shri Kottary has filed an application against Respondent No. 7 for misuse of Union funds for personal benefits. The said application is still pending in the Industrial Court. 27(j) From the above it is clear that the Respondent Nos. 1 to 8, especially Respondent No. 7 have been holding on to the posts of office bearers illegally and malafide for several years not only by manipulating records of the Union but also by threatening and even assaulting the opponents who dared to approach the Court against Respondents Nos. 1 to 8.” The Respondents/Applicants can also be permitted to amend the prayer clauses 29(a) and substitute as follows: 10 “29(a) That this Hon’ble Court be pleased to hold and declare that the Respondent Nos. 1 to 8 are not legal and bonafide Office bearers of Bombay Electric Workers Union.” 9. For the aforesaid reasons, Writ Petition partly succeeds. The impugned order, Clause (i) in particular, will stand modified for the reasons recorded hitherto to read as - “the amendment application Exhibit U-26 filed by the Applicants is hereby partly allowed in the terms of this order.” 10. Rest of clauses (ii) and (iii) of the impugned order would remain as it is. No order as to costs. A.P.DESHPANDE, J. A.M.KHANWILKAR, J.