IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9786 of 2002 MANAGEMENT OF M/S KURJI HOLY FAMILY HOSPITAL, KURJI, P.S.PATLIPUTRA, DISTRICT PATNA THROUGH ITS ADMINISTRATOR ...........Petitioner Versus 1.THE STATE OF BIHAR THROUGH UNDER SECRETARY, LABOUR EMPLOYMENT & TRAINING DEPARTMENT, NEW SECRETARIAT, PATNA. 2. THE PRESIDING OFFICER, LABOUR COURT, PATNA. 3. THE WORKMEN REPRESENTED BY PRESIDENT, KURJI HOLY FAMILY HOSPITAL KARAMCHARI UNION, PATNA ............Respondents For the Petitioner : Mr. Shivaji Pandey, Sr. Advocate Mr.B.B.Sharan,Advocate For the Respondent no.3: Mr. Alok Kumar Sinha,Advocate Mr. Indrajeet Bhushan, Advocate O r d e r 6 24-2-2010 The issue involved in this case is whether the management has a right to file rejoinder or reply to the written statement filed on behalf of another party in absence of any provisions in the Industrial Disputes (Bihar) Rules, 1961 (hereinafter referred to as „the Bihar Rules, 1961). 2. One Satyanarayan Prasad, Respondent no.3, was working as Boiler Room Assistant, Maintenance and Operation in Kurji Holy Hospital (hereinafter referred to as „the Management‟). The management sought explanations from Satyanarayan Prasad relating to certain act of misconduct. The explanation provided by Shri Satyanarayan Prasad was not found satisfactory. A full fledged domestic enquiry was conducted by a lawyer of High Court. The Management after considering the enquiry report as well as evidence on record, sent copy of the same to the concerned workman and sought for his comment. After receipt of the comments, the Management passed orders of dismissal of Satyanarayan Prasad. 2 3. The Kurji Holy Family Karamchari Aspatal Union raised an industrial dispute. The State of Bihar vide notification dated 9.10.1998 referred the following issue for adjudication of Labour court: “Whether the termination of service of workman Shri Satyanarayan Prasad by the Management of M/s Kurji Holy Family Hospital, Patna is justified, if not, what relief workman is entitled? 4. The reference was registered as Reference Case No.22 of 1998, by the Labour Court. 5. On 2.2.2000 the Management filed a petition that its written statement is ready and it would be filed if the workman files the same. The Management finally filed its written statement on 14.3.2000 in a sealed cover in view of Rule 14 of the Bihar Rules, 1961. The management asserted that workman committed misconduct and was rightly dismissed. The workman filed its written statement on 12.12.2000 in which he stated that domestic enquiry was not conducted in accordance with law, and the charges were vehemently denied. He asserted that his past record of service was clean. A copy of the written statement of the Management and the workman are annexed at Annexure- 2 and 3. 6. Both the parties exchanged their written statement on 12.12.2000 in terms of Bihar Rules, 1961. The Management filed a rejoinder in rebuttal of the written statement of the workman on 9.4.2002. A copy of the rejoinder of the written statement is annexed at Annexure-4. The workman pleaded before the Labour Court not to accept the rejoinder on the ground that the Bihar Rules, 1961 does not allow for filing a rejoinder to a written 3 statement. Further more; filing of rejoinder was a dilatory tactics on part of Management to delay the adjudication. A copy of objection filed by the workman is annexed at Annexure-5. The Management filed its reply to the objection stating therein that it came to know stand of other side (Respondent no.3) only on receiving a copy of the written statement filed on 12.12.2000. A copy of reply of the Management is at Annexure-6. 7. The Labour Court by its order dated 6.6.2002 declined to entertain the rejoinder filed on behalf of the Management to the written statement filed on behalf of the workman dated 12.12.2000. The Labour Court while relying upon a Division Bench order of this court in the case of Management of Nav Chetan Samiti Vs the Presiding Officer, Labour Court disposed of on 3.12.1991, passed in C.W.J.C.No.3451 of 1991, held that there is no scope for filing of any rejoinder to the written statement by either of the party in absence of any provisions in the Bihar Rules, 1961. 8. The Management, which is petitioner herein, has assailed the impugned order on the ground that section 11(3) of the Industrial Disputes Act, 1947 empowers the Labour Court and Tribunal to follow such procedure “as it may think fit”. The court will have inherent power to adopt such procedure which may advance the cause of justice. In support of its contention, learned counsel for the Management relied upon a decision in the case of Metals Fabricators (India) Vs B.D. Gupta & Ors, reported in 1975 LAB I.C. 1707, particularly paragraphs 11 and 12. The Management further submits that in Bihar Rules, 1961 the workman and the Management are required to file their written statement simultaneously and only after filing of their written statement, the parties would exchange their written 4 statement with one another. Thus, neither of the party is in know how of the stand of the other side. If the parties are not allowed to file rejoinder, it will be violative of principle of natural justice denying the opportunity to rebut the stand of other side. He further submits that procedural prescriptions are handmaids, not mistresses of justice. The approach of the court in procedural matter should be liberal, if it advances the causes and sub- serves the interest of justice. Learned counsel then contended that every procedure which would advance cause of justice should be understood as permissible till it is prohibited by law. By way of illustration he stated that there is no express provision, either in the Consumer Act or I.D.Act, for restoring an exparte order dismissing a complaint for default. The Apex Court held that the court would have the inherent power and jurisdiction to restore the complaint on good cause being shown for the non-appearance of the complainant. In support of his submission, he relied upon a decision in the case of New India Assurance Co. Ltd. Vs R.Srinivasan, reported in (2000) 3 SCC 242 particularly paragraphs 17 and 18. 9. Thus, according to him if the court is of the view that filing of rejoinder is necessary, then he is not prohibited from entertaining the same unless there is a provision to the contrary. In support of his contention, learned counsel for the Management relied upon decisions in the case of the Mumbai Kamgar Sabha Bombay Vs M/s Abdulbhai Faizullabhai & Ors, reported in 1976 SC 1455, paragraph 7; Union of India & Ors Vs Dhanwanti Devi & Ors, reported in (1996) 6 SCC 44 paragraph 44; Shankar Chakrabarti Vs Britannia Biscuits Co. Ltd., reported in A.I.R.1979 SC 1652 para 31; J.K. Iron & Steel Co. Ltd. Vs Mazdoor Union, reported in 1956 SC 5 231 para 20; Sardar Amarjeet Singh Kalra & Ors Vs Pramod Gupta & Ors, reported in 2003(3) SCC 272 paragraph 26 and 31. 10. On these premises, counsel for the petitioner submits that the Labour Court in absence of any provision to the contrary in the statute ought to have entertained the rejoinder filed by the Management to the written statement of the workman. 11. Counsel for the respondent no.3, the workman, submits that a dispute under the Industrial Disputes Act cannot be adjudicated like a civil suit. The scheme of the Act provides for expeditious and speedy disposal of the suit, so that a poor workman may not be embroiled in a long drawn proceeding. He submits that the Government and the Legislature has very consciously not provided provisions of rejoinder to the written statement under Rule 14 of Bihar Rules, 1961, as provided in Rule 10B of the Industrial Disputes(Central) Rules, 1957 (hereinafter referred to as „the Central Rules, 1957) which provides for proceeding before the Labour Court, Tribunal or National Tribunal. The reasons for having not provided for rejoinder in Bihar Rules, 1961 is obvious in view of difference of procedure adopted under the two rules. As per Rule 10B of the Central Rules, the parties raising their dispute has to file statement of claim complete with relevant documents, list of reliance and witnesses within 15 days of the receipt of the order of reference. The Opposite party would thus file their written statement along with documents and list of witnesses. Sub- rule (4) of Rule 10B states that a party raising a dispute may submit a rejoinder if it chooses to do so. Learned counsel submits that the procedure followed under the Bihar Rules is different and as such the provisions for 6 allowing rejoinder to the written statement has not been provided for. He submits that Rule 14(1) of Bihar Rules requires that the State Government, if refers a case for adjudication to a Labour Court or Tribunal, it will send copy of every such order or reference together with a copy of the statement of demand received under Rule 13.As per rule 14 the parties are required to file their written statement within two weeks and simultaneously forward copies thereof to the other party. Sub-rule(3) provides for speedy disposal of the dispute. Learned counsel submits that in case the dispute is against an individual workman, then as per section 10(2A) of the Industrial Disputes Act the same has to be adjudicated within three months. As both parties are in know how of the terms of reference as well as statement of demand, no provision was provided for filing a reply to the written statement consciously. This has been done with avowed object of providing a speedy adjudication and also to prevent either of the parties from fabricating or enlarging the pleadings. Thus, he submits that rejoinder to the written statement was filed by the Management after about 1 year 4 months of filing of the written statement. The Labour Court was correct in declining to accept the same, as the latter in exercise of its discretion did not find the same to be in the interest of justice. Further more, the statute also provides for speedy adjudication and that too within three months if it concerns an individual workman. 12. It would appear from the respective pleadings that the workman Satyanarayan Prasad was dismissed and the Government referred the dispute to the Labour Court vide notification dated 9.10.1998. The petitioner filed written statement in sealed cover on 14.3.2000 whereas 7 written statement on behalf of the workman (Respondent no.3) was filed on 12.12.2000. Nearly after 1 year 4 months, a rejoinder to the written statement was filed by the Management. The Labour Court by the impugned order dated 6.6.2002 refused to entertain the application. The Labour Court while rejecting the application, relied upon a judgment in the case of Management of Nav Chetan Samiti, passed by the Division Bench of this court as well as the scheme of the statute which provides for expeditious disposal of the labour dispute particularly section 10(2-A) of the Act which provides for adjudication of such dispute within three months if it relates to an individual workman. The Labour Court also noted that there is no provision for filing a rejoinder to the written statement filed by either of the party under Bihar rules, 1961. 13. There cannot be any dispute to the proposition that even in absence of any specific provisions a Tribunal or body would be endowed with such ancillary or incidental power as necessary, to discharge its function effectively for doing justice between the parties. It is true that procedure has always been viewed as the handmaid of justice and not meant to hamper to cause of justice or sanctify miscarriage of justice, and the same should be construed liberally to make it workable. It is equally well settled that a Labour Court or Tribunal or even the consumer court has inherent power to set aside an exparte order or award or to restore a complaint dismissed for default, if sufficient cause is shown for the same. 14. In back drop of such settled position of law, it is now to be seen whether the Management would have a right to file a rejoinder to the written statement filed by the aggrieved side. 8 15. To appreciate the issue involved in this case, it would be necessary to notice the provisions regarding procedure provided under Rule 10B of the Central Rules, 1957 and Rule 14 of the Bihar Rules, 1961, in extensio, which are being quoted herein below: “10B. Proceeding before the Labour Court, Tribunal or National Tribunal.-(1) While referring an industrial dispute for adjudication to a Labour Court, Tribunal or National Tribunal, the Central Government shall direct the party raising the dispute to file a statement of claim complete with relevant documents, list of reliance and witnesses with the Labour Court, Tribunal or National Tribunal within fifteen days of the receipt of the order of reference and also forward a copy of such statement to each one of the opposite parties involved in the dispute. (2) The Labour Court, Tribunal or National Tribunal after ascertaining that copies of statement of claim are furnished to the other side by party raising the dispute shall fix the first hearing on a date not beyond one month from the date of receipt of the order of reference and the opposite party or parties shall file their written statement together with documents, list of reliance and witnesses within a period 15 days from the date of first hearing and simultaneously forward a copy thereof to the other party. (3) xx xx xx (4) The party raising a dispute may submit a rejoinder if it chooses to do so, to the written statement(s) by the appropriate party or parties within a period of fifteen days from the filing of the written statement by the latter.” Rule 14 of the Bihar Rules runs as follows: “14. Proceedings before the Labour Court, or Tribunal- (1) Where the State Government refers any case for adjudication to 9 a Labour Court or Tribunal, it shall send to the Labour Court or Tribunal concerned and both parties concerned in the industrial dispute, a copy of every such order or reference together with a copy of statement of demand received by it under Rule 13. (2) Within two weeks of the statement referred under sub-rule (1) both parties, shall file their respective written statement with the Labour Court or Tribunal, as the case may be, and simultaneously forward copies thereof to the other party; Provided that where the Labour Court or Tribunal, as the case may be, considers it necessary, it may extend the time-limit for the filing of written statement by any period. (3) The Labour Court or Tribunal, as the case may be, shall ordinarily fix the date of the first hearing of dispute within six weeks of the date on which it was referred for adjudication. Provided that the Labour Court or Tribunal, as the case may be, may, for reasons to be recorded in writing fix a later date for the first hearing of the dispute. (4) The hearing shall ordinarily be continued from day to day and arguments shall follow immediately after the closing of evidence”. 16. Rule 23 of the State Rules states that the Court, Labour or Tribunal, as the case may be, after filing of the written statement shall call upon the parties to state their case and to give list of witnesses and to file documents or in the alternative to call for the documents from the custody of the adverse party. Thus, as per the State Rules, the list of witnesses and the documents are to be provided after filing of the written statement, whereas in the Central Rules the aggrieved party has to initially file a statement of claim complete with the relevant documents and list of witnesses. Thereafter, the other side will file his written statement together with documents and list of witnesses. In these circumstances, sub-rule (4) of 10 Rule 10B provides for submitting a rejoinder by party raising a dispute, if it chooses to do so. It would thus appear that this opportunity of filing of rejoinder is provided as the statement of the claim and the list of documents and witnesses being relied upon by the aggrieved party is known to the other side, whereas in the Bihar Rules none of the party is in know how of the statement of claim, the documents and the witnesses that may be relied upon by either of the parties. Both parties only know the terms of reference and the demand raised by the aggrieved party and as such none of them are at a disadvantage, as both sides would exchange their written statement of the pleadings simultaneously. Under Central Rules, non-aggrieved side has an advantage of knowing the defence of other side and that is why an opportunity is given to the aggrieved side to file a rejoinder, if it chooses. Even under the Central Rules, it is only the aggrieved side which gets an opportunity to file a rejoinder. Central Rules does not speak of any provision which provides for filing of reply to the rejoinder of aggrieved side. 17. In the instant case the workman is the aggrieved side and even under the Central Rules,1957 it would be only the worker, the aggrieved party which could have filed rejoinder and not the Management. In this view of the matter, the Management, which is the petitioner herein, would not have a right to file a rejoinder, even under the Central Rules, 1957. 18. It is not in dispute that in the instant case, the aggrieved side is a workman. Section 10(2-A) of the Industrial Disputes Act, 1947 incorporated by Act 46 of 1982 provides that while referring the dispute to a Labour Court or Tribunal or National Tribunal, the appropriate 11 government would specify the period within which such body will submit its award on such dispute to the appropriate government. However, the proviso to sub-section(2-A) of section 10 states that where such industrial dispute is connected with an individual workman, no period shall exceed three months save and except as provided in the further proviso thereof in the exceptional circumstances. 19. Even if the dispute relates to more than one workman, rule 14 provides for expeditious disposal of the case. Rule 14(2) requires that written statement would be filed by the respective sides within two weeks of receipt of a copy of order or reference together with copy of statement of demand under Rule 13 of the State Rules, 1961. However, the Labour Court would have discretion to extend the time limit, if it considers if so necessary. Rule 14(3) states that the first hearing should ordinarily start within six weeks of the date on which the dispute was referred for adjudication. Sub-rule (4) of Rule 14 states that hearing would ordinarily continue from day to day and argument would follow immediately after closing of evidence. 20. Thus, it would be apparent from perusal of section 10(2-A) of the Act and Rule 14 of the Bihar Rules that the object of the statute is to provide for expeditious disposal of the dispute preferably within a short frame of time, moreso within three months in case of individual workman. Such time is not to be extended in a routine manner, unless the extension becomes necessary. 21. The aim and object of the statute is to provide speedy trial or quick justice to the party, other wise the same would get embroiled in long 12 drawn proceeding. This is the reason, the statute has provided for its own procedure instead of general provisions under C.P.C. or Evidence Act. 22. A comparative perusal of the Central Rules, 1957 and Bihar Rules, 1961 both dealing with the same circumstances would show that Rule 10B of the Central Rules provides for filing of statement of claim complete with relevant documents, list of witnesses by the party raising the dispute and thereafter written statement is to be filed by the other side. In such a situation, the party raising the dispute has been given a chance to file a rejoinder. But in case of Bihar Rules, statement of demand is served upon both the parties and thereafter both are required to file their respective written statements. Unlike the Central Rules, when the party raising the dispute is to furnish the relevant documents along with statement of claim, the Bihar Rules makes such a provision at later stage in Rule 23, when the authorities are empowered to issue a direction in this regard at the first hearing. The reasons for having not provided for rejoinder in Bihar Rules, 1961 is obvious in view of difference of procedure adopted under the two Rules. As such, provisions for filing rejoinder even by the party raising the claim, is absent in the Bihar Rules. Thus, the entitlement to file rejoinder cannot be recognized as a right under the Bihar Rules, 1961. However, in view of the principles of law well settled, a Court or Tribunal will have ancillary and incidental jurisdiction to ask for additional pleadings, if the facts and circumstances of the case, justify exercise of such discretion or adoption of such procedure, as it may think fit. 23. In the instant case, I find that the management has filed its rejoinder nearly after 1 year 4 months of filing of the written statement by the 13 KHAN A.F.R. workman. Thus, as held by the Division Bench of this court in the case of Management of Nav Chetan Samiti referred to above, even if it can be said that there is discretion in the absence of rule, in my view, discretion has been properly exercised. Thus, I find that the Labour Court has rightly rejected the rejoinder to the written statement dated 9.4.2002 filed by the Management. 24. For the reasons stated aforesaid, I do not find any illegality in the order dated 6.6.2002 passed by the Presiding Officer, Labour Court, Patna in Ref. Case No.22 of 1998 and thus this application is accordingly dismissed. 25. The Labour Court is directed to proceed further in the matter and dispose of the dispute within a period of three months from the date of receipt/production of a copy of this order, as the reference is of the year 1998. (Samarendra Pratap Singh,J)