1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4381 OF 2009 M/s International Conveyors Ltd. having its Works at Plot No.E-39 MIDC, Industrial Area,Chikalthana, Aurangabad – 431 210. - PETITIONER VERSUS Mr.Gorakshnath Bhaurao Pakhare Age: 47 Yrs., occu.Nil, r/o Warud Kazi, Tq. and District Aurangabad. - RESPONDENT ***** WITH WRIT PETITION NO.4477 OF 2009. M/s International Conveyors Ltd. having its Works at Plot No.E-39 MIDC, Industrial Area,Chikalthana, Aurangabad – 431 210. - PETITIONER VERSUS Mr.Dadarao Sakharam Ragade Age: 52 Yrs., occu.Nil, r/o Sangharsh Nagar, Room No.10 Lane A/4, Mukundwadi,Aurangabad. - RESPONDENT ***** WITH WRIT PETITION NO.4949 OF 2009. M/s International Conveyors Ltd. having its Works at Plot No.E-39 MIDC, Industrial Area,Chikalthana, 2 Aurangabad – 431 210. - PETITIONER VERSUS Mr.Mohd.Asif Mujahir Hussain Adul, occu.Nil, r/o Bharat Nagar, Plot No.67, Brijwadi, MIDC Chikalthana, Aurangabad-431 210. - RESPONDENT *** Mr.VN Upadhye,Advocate for Petitioner; Mr.CV Dharurkar,Advocate for Respondent. ----- CORAM : K.U.CHANDIWAL,J. DATE : 18th October,2010. ORAL JUDGMENT : 1) Heard learned Counsel for the parties extensively. 2) These three writ petitions involve a common question between the parties and consequently heard together. 3) Rule was issued on 21st August, 2009. The Respondent in each of the writ petitions, namely, Gorakshnath; Dadarao and Mohd.Asif, were employees of petitioner-company. They allegedly projected persistent absentism to the duties 3 inviting 27, 18 and 29 Warning letters or stoppage of wages. The situation allegedly made grave by the respondents when Gorakshanath in the year 2006 was absent for 65 days; Dadarao for 67 days and Mohd.Asif for 97 days. This resulted in issuance of a charge-sheet dated January 28, 2007 annexing the details of the absentism. A letter explaining the absence was tendered by demonstrating apology on 30th January, 2007. 4) After considering the recourse, termination was slapped on March 11, 2007, which is indicated at page 17 and 18 (of paper book of WP No.4381/2009). 5) The grievance of the petitioner is, by virtue of amendment under Order VI Rule 17 of CPC, entire new case is sought to be projected and brought on record by the employees/respondent to explain the alleged absentism. 6) The learned Judge allowed the amendment application by his common order dated 25.9.2008 and same was questioned by the petitioner/company in Revision before the Industrial Court, wherein the petitioner/company lost, which decision of the revisional court is impugned in these writ petitions. 4 7) The learned Counsel for the respondent/employee informs, effect of Order VI Rule 17 of CPC needs consideration. There was only preliminary stage of filing or completing the pleadings, issues were not formulated nor evidence was addressed. Consequently, the subsequent amendment in CPC, creating restrictions on amendments in terms of Order VI Rule 17 of CPC, will not be operating against the respondent/employees. 8) The Apex Court in the matter of Vidyabai and Ors. Vs. Padmalatha and Anr. reported in 2009 (4) Mh.L.J. 30, illustrated the effect of proviso to Order VI Rule 17 of CPC, which certainly is couched in a mandatory form. The Apex court has observed, - “The Court’s jurisdiction to allow an application for amendment is taken away unless the condition precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. 9) In the matter of Rajkumar Gurawara (Dead) Thr.L.Rs. Vs. M/s S.K.Sarwagi & Co.Pvt.Ltd. & Anr., reported in 2008 AIR SCW 4007, the Apex court dealt with the effect of operation of Order VI Rule 17 CPC to entertain 5 amendment of pleadings. The Apex Court has observed that, -”It is settled law that the grant of application for amendment be subject to certain conditions, namely, )i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation.” 10) Learned Counsel for the respondents/employees submits that the documents, indicating the reasons for absentism, could not be submitted as the inquiry against the respondents proceeded in lightning speed, having completed in five sittings. This may be correct, however, five sittings is not a short duration, and particularly when the respondents were well aware of their long drawn absentism and having invited such letters of warning for 27, 18 and 29 times. 11) Now, reverting back to the facts of the present case sought to be proposed by way of amendment, it is obvious that the respondents/employees were conscious of reasons for their long drawn absentism. They, as stated earlier, pleaded apology for their absentism. There was no injunction against the respondents 6 not to highlight and incorporate the plight that they have faced either due to hospitalization of somebody’s kids or somebody’s wife getting ill health or the respondents getting treated at ESI hospital. These may be the grounds, however, a long drawn absentism from duty int he year 2006, was alone considered by the petitioner/employer. The earlier events, which by way of amendment is sought to be projected, could not have been brought on record, as the learned Judge permitted. The second facet in the matter is, no vibrant reasons are assigned by the respondents/employees to effect the amendment. The learned Counsel submits that the respondents are rustic labourers and they may not be conscious of the precision in pleadings. This is again a submission beyond comprehension, as at all levels and stages the respondents were either represented by the union or by their advocate. It was only after change of advocate, the facts, which were in the knowledge of the respondents, are sought to be coined by way of amendment. The exercise carried by the learned Judge in entertaining the amendment is not in letter and spirit of order VI Rule 17 of CPC. It was not the subsequent event, which warranted the respondent to incorporate the same, being not in their control, but the events were certainly within their knowledge, when they were 7 prosecuting the matter, even faced the termination. 12) In the result, the order under challenge, allowing the amendment, is set aside. Rule is made absolute in the aforesaid terms. sd/- (K.U.CHANDIWAL) JUDGE bdv/ Authenticated copy (BD VADNERE,PS)