IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3295 OF 2009 The Ratnagiri Gas and Power Pvt. Ltd. Dist. Ratnagiri ...Petitioner Vs. Dabhol Vij Prakalp Kamgar Sangh & Ors. ... Respondents --- Shri M.S. Topkar for Petitioner Mr.Ravindra Nair with Mr. Rahul D. Oak for Respondent No.1 Ms. Urvashi Tapas i/b. M & M Legal Venture for Respondent No.2. ---- CORAM: V.M. KANADE J. DATED 16TH JUNE, 2009 P.C. 1. Heard the learned Counsel appearing on behalf of the Petitioner and the learned Counsel for the Respondent Nos.1 and 2. 2. Though the Respondent Nos.3 and 4 are served, none appears on behalf of these Respondents. 3. Notice before admission was issued by this Court on 6th April, 2009. In the notice, it was specifically stated that the petition would be disposed of finally at the stage of admission. 4. The Petitioner is the Original Respondent No.2 in a complaint filed by the Respondent No.1 herein. In the complaint, it was alleged that the Respondent, the power company (the Petitioner herein) was engaged in unfair labour practices under Item No.9 and 10 of Schedule IV of the M.R.T.U. and P.U.L.P. Act, 1971. Written Statement was filed by the Petitioner and in paragraph 6 page 28 of the written statement, an averment was made that the Petitioner had learnt from the Respondent No.1 that notices of termination had been issued to all its employees and their services were terminated and that the above power company did not have employees on its roll. Thereafter, an application for amendment in the written statement was filed by the Petitioner herein. In the said application, leave of the Court was sought to add in paragraph 6(a). In the said paragraph, an averment was made that the Industrial Court did not have jurisdiction to try and entertain the issue since the services of the employees of the Respondent No.1 herein had been terminated/ removed. Further averment was made that the said power regarding deciding the legality of the removal /termination are with the Labour Court, under item 1 of Schedule IV to the M.R.T.U. and P.U.L.P. Act, 1971 or under the Industrial Disputes Act. This application for amendment was opposed by the Respondent No.1. The Industrial Court was pleased to reject the application for amendment. Being aggrieved by the said order, the Petitioner has filed this petition under Articles 226 and 227 of the Constitution of India. 5. Shri Topkar, the learned Counsel for the Petitioner submitted that no prejudice would be caused to the Respondent, if the said amendment is allowed. He further submitted that though the complaint was filed in 2002, the Petitioner herein was added as Respondent No.1 in 2005. He submitted that in 2008, when the Respondent No.1 filed certain documents along with Exhibit U-36, the Petitioner learnt about the removal of the employees of Respondent No.1 with effect from 31.3.2002 and, therefore, the said application for amendment was made immediately on 29.11.2008. He submitted that the Industrial Court had committed an error of law. The Industrial Court had erred in not granting the said amendment. He submitted that the Apex Court had held that unless serious injustice or irreparable loss is caused to the other side, application for amendment should not be rejected. In support of the said submission, he relied on a judgment of the Apex Court in the case of Usha Balasaheb Swami & Ors. vs. Kiran Appaso Swami & Ors. Reported in 2007 DGLS (Soft) page 438. 6. The learned Counsel appearing on behalf of the Respondent No.1, on the other hand, submitted that the fact of termination of the employees of the Respondent No.1 was within the knowledge of the Respondent No.4 which was evident from the averments made in paragraph 6. He submitted that affidavit of evidence was filed and the trial had commenced. He further submitted that the said plea which was now sought to be raised is inconsistent with the original plea and serious prejudice would be caused to the Respondent No.1 in the said application. 6. In my view, taking into consideration the peculiar facts and circumstances of the case, the Industrial Court ought to have allowed the application for amendment in the written statement. It is an admitted position that the Petitioner Company stepped into the shoes of the Dabhol Power and others in the year 2005. The complaint was filed in 2002 and subsequently the Petitioner herein was brought on record in the year 2005. In paragraph 6 of the written statement, the following averment was made: “Further it is learnt that, the Respondent No.1 at the beginning of the First week of December, 2001 issued notices of termination to all its employees and terminated their service contracts, abandoned the work and left the project site. Thereafter the Respondent No.1 had no employees on its roll.” Thereafter, the Respondent No.1 filed certain documents on 19.7.2008 and from some of the documents, the Petitioner learnt that the services of the employees of the Respondent No.1 were terminated with effect from 31.3.2002 and, therefore, in the application leave was sought to amend the written statement by incorporating paragraph 6A, which reads as under:- “The Respondent No.4 most respectfully submits that the services of the employees of Respondent No.1 had terminated/removed by the Respondent No.1. Hence at the time of taking possession by the Hon'ble Court receiver there were no any employee on the muster roll of the Respondent No.1. However, the said removal or termination from the services is not challenged by the Complainant or the employees before the Hon'ble Labour Court. Under these circumstances, the present matter which is filed under item 9 and 10 of Schedule IV to the M.R.T.U. and P.U.L.P. Act, 1971 is not maintainable. The powers regarding deciding legality of the removal/termination are with the Hon'ble Labour Court, under item 1 of Schedule IV to the M.R.T.U. and P.U.L.P. Act, 1971 or under the Industrial Disputes Act. Hence unless and until the legality of removal/termination effected is decided by the Hon'ble Labour Court and the termination/removal is set aside with continuity of services along with consequential benefits the present matter is not at all maintainable and this Hon'ble Member has no any jurisdiction to entertain and try same. On this count alone the instant Complaint deserves to be dismissed in limine.” 7. In my view, no prejudice would be caused to the Respondent if the Petitioner is permitted to amend the said paragraph though affidavit of evidence has been filed, cross examination has not yet commenced. By incorporating the said paragraph, the Petitioner is challenging the maintainability of the complaint which they are entitled. The Industrial Court, therefore, in my view, ought to have allowed the said application. The ratio of the judgment of the Apex Court in the case of Usha Balasaheb Swami & Ors. (supra), therefore, in my view, squarely applies to the facts of the present case and serious injustice or irreparable loss will not be caused to the Respondents if the said application is allowed. 8. In these circumstances , the writ petition is allowed and the impugned order is set aside. The Industrial Court shall permit the Petitioner herein to amend the written statement. Amendment shall be carried out within six weeks. The Respondent workmen shall also be permitted to file an affidavit of additional evidence. Hearing of the complaint is expedited. V.M. KANADE J.