:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO. 2565 OF PETITION NO. 2565 OF PETITION NO. 2565 OF 2008 2008 2008 Maharashtra General Kamgar Union. ... Petitioner. V/s. Bombay Oxygen Corporation Ltd. & Ors. ... Respondents. Mr. N.M. Ganguli for the Petitioners. Mr. J.P. Cama, Sr. Counsel a/w. Mr. R.J. Cama and Ms. P. Dedhia i/b. Sanjay Udeshi & Co. for Respondent No.1 Mr. N. Engineer i/b. Markand Gandhi for Respondent No.4. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 10TH 10TH 10TH FEBRUARY 2009. FEBRUARY 2009. FEBRUARY 2009. P.C. P.C. P.C. : : : . Rule. Respondents waive service. By consent, Rule made returnable forthwith. Heard both sides. 2. The Petitioner challenges the order passed by the learned Member, Industrial Court, Mumbai below Exhibit U-33 in Complaint (ULP) No.548 of 2006. By the order under challenge delivered on 30th September 2008, the learned Member has allowed the application for Amendment preferred by the Petitioner in part. The Court below rejected the rest of the amendments. 3. The operative portion of the impugned order reads thus :- " ORDER (i) The application is partly allowed. :2: (ii) The amendments proposed as per Para-(b)(i) to (iii), and (vi) to (x) of Schedule Ex.-C, are allowed. (iii) Rest of the proposed amendments, are disallowed, (iv) The amendment allowed be carried out. (v) Consequential amendment, if any, is also allowed." 4. The Petitioner - Orig. Complainant has challenged this order. The Respondent No.1 and Respondent No.4 (Newly added party) have not challenged it. Mr. Ganguli, learned Advocate appearing for the original complainant who is the Petitioner before me, contends that an application for amendment was made earlier which was allowed. However, that order came to be challenged by the First Respondent - Employer by instituting a Writ Petition in this Court. That Writ Petition came up for admission before a learned Single Judge of this Court on 1st September 2008 and he passed the following order :- " Rule, returnable forthwith. Heard consent. :3: 2. Mr. Cama, the learned Counsel for the Petitioners is right in the submission that no order directing HDIL could have been passed, unless HDIL was first joined as party in the complaint. Mr. Ganguli, the learned Counsel for Respondent No.1 fairly states that there is an omission in praying for joining HDIL as a party. 3. In the circumstances, the impugned order is set aside. The matter is remanded back for proceeding in accordance with law. 4. Rule made absolute in above terms." 5. Mr. Ganguli submits that after the said order, an application for Amendment has been made and coupled with the a request to amend title, the Petitioner - Union has pointed out as to how all amendments are necessary for complete and effective resolution of the controversy. The schedule to the amendment application which was preferred on 1st November 2008 contains clause (a) where the prayer is for joinder of one Housing Development and Infrastructure Limited as a party Respondent to the complaint. Thereafter, in the schedule para (b) sub-clauses ending up to (xi) have been set now and lastly by clause (c) para 10 of the same, the complaint is sought to be amended by incorporating a prayer against the First Respondent and the newly added party. :4: 6. The grievance of Mr. Ganguli is that the learned Judge has allowed the application for amendment in part. In other words, he has allowed the application in terms of clauses (b)(i) to (x) excluding the sub-clauses (iv) and (v) and (xi) of the schedule to the amendment. A perusal of the sub-clauses and the schedule would indicate that the defect or lacunae earlier noticed has been duly removed. There is a specific prayer now made for joinder of Respondent No.4 as a party to the complaint. Moreover, there is a reference made in the schedule so also in the main amendment application about how the presence of Respondent No.4 is necessary for effective and complete resolution of the controversy. He submits that the earlier application was allowed. While that application was being allowed, this Court had noticed that earlier application for amendment had prayed that the complainant - Petitioner be allowed to amend the Title of the complaint by incorporating Respondent No.4 as a party. That is how the employer - First Respondent approached this Court. This Court has observed that no order against the Fourth Respondent could have been passed unless it was made party to the complaint. He submits that the statement of the Petitioner Union was recorded that while seeking amendment, there is no relief claimed for joining the Fourth Respondent as a party. That lacunae or defect has been removed now and therefore, the impugned order could not have been passed by the Court below. :5: 7. In any event, once the learned Member of the Industrial Court allows the amendment in terms of Schedule (b), sub-clauses 1 to 3, and thereafter, 6 to 10, it is clear that the Industrial Court has permitted the Petitioner - Complainant to include the facts pertaining to the alleged shifting of the company’s premises. A reading of the sub-clauses of the amendment application would show that there is a reference to the Fourth Respondent therein. In such circumstances, and by adopting a Hyper technical approach, the application could not have been rejected. Further, the learned Judge was in clear error in entering into the merits of the controversy. There was no occasion for the learned Judge to do so as all pleas including that of jurisdiction of the Industrial Court could have been kept open for being raised by the newly added party so also by the First Respondent. No prejudice would have been caused if the amendment application is completely and fully granted. 8. On the other hand, Mr. Cama, learned Senior Counsel appearing for the First Respondent has contended that the earlier application for amendment was allowed on 19th March 2008. That order was set aside by this Court on 1st September 2008. Identical application has been made with a similar defect and lacunae. In such circumstances, the Petitioner could not have sought the same relief once again from the Industrial Court. The :6: Industrial Court was right in rejecting the request of the Petitioner for joinder of Respondent No.4 to the complaint. 9. Mr. Cama submits that Respondent No.4 is neither a proper nor a necessary party. Respondent No.4 has absolutely no connection with the dispute and the controversy which is subject matter of the complaint. The employees who are only 10 in number have filed the complaint alleging that the plant and machinery is being shifted by the First Respondent. The Complainant - Union cannot have any grievance if the surrounding land and the building is being handed over to the Developer. In such circumstances, the learned Judge was right in partly allowing the request to amend the complaint. No interference is necessary with this discretionary order of the Member, Industrial Court, in writ jurisdiction. For all these reasons, he submits that the Petition be dismissed. Mr. Cama has relied upon a Judgment of a learned Single Judge of this Court reported in 1998 II CLR 1998 II CLR 1998 II CLR 54 54 54 (Glaxo India Ltd. V/s. Chemical Employees Union & (Glaxo India Ltd. V/s. Chemical Employees Union & (Glaxo India Ltd. V/s. Chemical Employees Union & Ors.). Ors.). Ors.). 10. Mr. Engineer, appearing for Respondent No.4 has adopted the arguments of Mr. Cama and additionally contended that Respondent No.4 cannot be impleaded as a party Respondent to the complaint. The Industrial Court would have no jurisdiction under M.R.T.U. & P.U.L.P. :7: Act, 1971 to pass any orders against Respondent No.4. That is a matter which is out of the purview of the Industrial Court’s jurisdiction and must be dealt with under the ordinary law of the land. In these circumstances, the amendment prayed for was misconceived and has been rightly rejected. 11. For properly appreciating the rival contentions, it would be necessary to refer to the complaint filed by the Petitioner. The Petitioner - Union has filed a complaint under the M.R.T.U. & P.U.L.P. Act. The complaint invokes Item 5 of Schedule II and Items 3,9 and 10 of Schedule IV of the M.R.T.U. & P.U.L.P. Act, 1971. The complaint alleges unfair labour practices. The complaint is that the First Respondent is shifting the manufacturing activities from Mulund to Kalwa. A direction is sought to recommence the manufacturing activities alongwith the workmen at Mulund. All these reliefs are sought from the Industrial Court, Bombay. 12. The Complainant has also sought a relief restraining the First Respondent from transferring or disposing off the plant and machinery. 13. In such a complaint, an application for amendment was made on 1st March 2008. 14. A copy of the amendment application is annexed as :8: annexure ‘O’ page 100 of the present petition. From a perusal of this application what appears to me is that save and except para 5 therein, the application does not contain any Schedule of Amendment. Further, the application for amendment filed earlier did not contain a specific paragraph, which was to be incorporated as and by way of amendment to the complaint, by which the joinder of Respondent No.4 was prayed. In these circumstances, when that application was allowed on 19th March 2008 that the Petitioner - Union noticed that a technical lacunae or defect should not prejudice their case. The Court below had allowed the amendment without there being any specific plea for addition of Respondent No.4, as a party Respondent. That order was passed on 19th March 2008. Noticing this lacunae and defect in the application for amendment, the Petitioner - Union conceded before this Court that the order granting amendment cannot be sustained. In these circumstances, this Court allowed the employer - First Respondent’s Writ Petition and set aside the order of the Industrial Court. It remitted the matter back to the Industrial Court. 15. The Petitioner - Union thereafter made an application for amendment which was numbered as Exhibit ‘S’ and a copy of which is at page 117. 16. This application for amendment in so far as material for our purpose, reads as under :- :9: "5. The Respondents carried the matter to the Hon’ble High Court of Judicature at Bombay by filing Writ Petition No.1731 of 2008. The Complainant states that unfortunately and by inadvertence the proposed amendment did not contain the prayer that the additional Respondent may be impleaded as the Party Respondent in the amendment application with the result the additional reliefs in para 10 sub-para (d)(i) would become ineffective and unforceable. The complainant states that on this ground, the order dated 19.3.2008 passed by the Hon’ble Court allowing the application was set aside and the matter was remanded back by the Hon’ble High Court by order dated 01.09.2008 by Shri S.A. Bobde in Writ Petition No.1731 of 2008. 6. The copy of this order dated 01.09.2008 is yet to be received, the same will be filed in the Hon’ble Court when received. However, pending receipt of the copy of the said order, in making the present application for amendment. In view of the fact, the Hon’ble High Court of Bombay has directed the Hon’ble Industrial Court at Mumbai, while expediting the hearing of the Writ Petition by order dated 06.08.2007 in Writ Petition No.1425 of 2007 to dispose of this complaint on a time bound schedule and therefore, the Complainant does :10: not desire to delay the matter. 7. The Complainant states and submits that in the circumstance the amendment as sought in the earlier application dated 01.03.2008 with the additional prayer to implead the additional Respondent as Party Respondent in the complaint as more specifically set out in the schedule annexed hereto and marked as Exhibit ‘C’. 8. The Complainant submits that the amendment become necessary, more specifically set out in application and no prejudice will cause to the Respondents and the Additional Respondent and the amendments may be allowed." 17. This application is made on 11th September 2008. In the Schedule appended thereto, sub-clause (a) reads as under :- (a) Add the following in the cause title after Respondent No.3 as Respondent No.4 as : "4. Housing Development & Infrastructure Ltd." HDIL, Dheeraj Arma, 9th floor, Anant Kanekar Marg, Bandra (East), Mumbai - 400 051." :11: 18. There was an affidavit filed in support of the application and a reply affidavit came to be filed by the proposed Respondent No.4, which is also a party before this Court as Respondent No.4. 19. After the matter was placed before the learned Member, he has allowed the application. What he has done is he has granted the amendment in terms of the Schedule Clause (b), sub-clauses (1) to (3) and (6) to (10). If the proposed amendment vide clause (10) is perused, it is clear that the same makes allegations of shifting of the registered office and handing over vacant premises to HDIL, that is Respondent No.4 and display by HDIL on their Board that they are commencing construction activities at the premises. Thus, the manufacturing activities and the registered office is sought to be shifted from L.B.S. Marg, Mulund (West), Mumbai and these premises are being developed by Respondent No.4 is the allegation in the Schedule to the amendment application and that is allowed. The amendment application also makes a reference in the earlier paragraphs with regard to the shifting and that is to be found in Schedule (b)(i). Thus, reading the Amendment Application as a whole, that means the substantive paras and the schedule, clearly denotes that a request or prayer is made for joining Respondent No.4 as a party to the complaint. (See para 7 of the Amendment Application). The lacuna or defect, as found earlier, is thus removed. Hence, there was no need for adopting a :12: Hyper Technical Approach. 20. All procedural provisions are incorporated with a view to render justice to litigants. Procedural provisions assist the Court to arrive at a just, fair and complete decision. It is well settled that procedure is hand-maid of justice. The procedural provision is not construed as mandatory. If any reference, is necessary for reiterating this well settled principle, then, it would suffice to reproduce following observations of the Hon’ble Supreme Court in AIR 1969 SC 1267 (Jai Jai Ram AIR 1969 SC 1267 (Jai Jai Ram AIR 1969 SC 1267 (Jai Jai Ram Manohar Manohar Manohar Lal V/s. National Building Material Supply) :- Lal V/s. National Building Material Supply) :- Lal V/s. National Building Material Supply) :- 4. The Trial Judge decreed the claim for Rs.6,568/6/3. Against that decree an appeal was preferred to the High Court of Allahabad. The High The High The High Court Court Court being of the view that the action was being of the view that the action was being of the view that the action was instituted instituted instituted in the name of a "non-existing person" in the name of a "non-existing person" in the name of a "non-existing person" and and and Manohar Lal having failed to aver in the Manohar Lal having failed to aver in the Manohar Lal having failed to aver in the application application application for amendment that the action was for amendment that the action was for amendment that the action was instituted instituted instituted in the name of "Jai Jai Ram Manohar Lal" in the name of "Jai Jai Ram Manohar Lal" in the name of "Jai Jai Ram Manohar Lal" on on on account of some bona fide mistake or omission, account of some bona fide mistake or omission, account of some bona fide mistake or omission, the the the subordinate Judge was incompetent to grant subordinate Judge was incompetent to grant subordinate Judge was incompetent to grant leave leave leave to amend the plaint. to amend the plaint. to amend the plaint. ..... 5. The order passed by the High Court cannot be sustained. Rules of procedure are intended to be a handmaid to the administration of justice. A party :13: cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting malafide, or that by his blunder, he had caused injury to his opponent which may not be compensed for by an order of costs. However, However, However, negligent or careless may have been the negligent or careless may have been the negligent or careless may have been the first first first omission, and, however, late the proposed omission, and, however, late the proposed omission, and, however, late the proposed amendment, amendment, amendment, the amendment may be allowed if it can the amendment may be allowed if it can the amendment may be allowed if it can be be be made without injustice to the other side. made without injustice to the other side. made without injustice to the other side. ........ 6. ..... These cases do not do more than illustrate the well-settled rule that all amendments should be permitted as may be necessary for the purpose of determining the real question in controversy between the parties, unless by permitting the amendment injustice may result to the other side. 7. In the present case, the Plaintiff was carrying on business as commission agent in the name of "Jai Jai Ram Manohar Lal". The Plaintiff was competent to sue in his own name as Manager of the Hindu undivided family to which the business belonged; he says be sued on behalf of the family :14: in the business name. The observations made by the High Court that the application for amendment of the plaint could not be granted, because there was no averment therein that the misdescription was on account of a bona fide mistake, and on that account the suit must fail, cannot be accepted. In our view, there is no rule that unless in an application for amendment of the plaint it is expressly averred that the error, omission, or misdescription is due to a bona fide mistake, the court has no power to grant leave to amend the plaint. The power to grant amendment of the The power to grant amendment of the The power to grant amendment of the pleadings pleadings pleadings is intended to serve the ends of justice is intended to serve the ends of justice is intended to serve the ends of justice and and and is not governed by any such narrow or technical is not governed by any such narrow or technical is not governed by any such narrow or technical limitations." limitations." limitations." Somewhat similar observations are made in AIR 1989 SC 2206 AIR 1989 SC 2206 AIR 1989 SC 2206 (Owners (Owners (Owners and Parties interested in M.V. "Vali Pero" V/s. and Parties interested in M.V. "Vali Pero" V/s. and Parties interested in M.V. "Vali Pero" V/s. Fernandeo Fernandeo Fernandeo Lopez) :- Lopez) :- Lopez) :- "18. Rules of procedure are not by themselves an end but the means to achieve the ends of justice. Rules of procedure are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice. Construction of a rule of procedure which promotes justice and prevents its miscarriage by enabling the court to do justice in myriad situation, all of which cannot be envisaged, acting :15: within the limits of the permissible construction, must be preferred to what which is rigid and negatives the cause of justice. The reason is obvious. Procedure is meant to subserve and not rule the cause of justice. Where the outcome and Where the outcome and Where the outcome and fairness fairness fairness of the procedure adopted is not doubted of the procedure adopted is not doubted of the procedure adopted is not doubted and and and the essentials of the prescribed procedure have the essentials of the prescribed procedure have the essentials of the prescribed procedure have been been been followed, there is no reason to discard the followed, there is no reason to discard the followed, there is no reason to discard the result result result simply because certain details which have simply because certain details which have simply because certain details which have not not not prejudicially affected the result have been prejudicially affected the result have been prejudicially affected the result have been inadvertently inadvertently inadvertently omitted in a particular case. omitted in a particular case. omitted in a particular case. In our view, this appears to be the pragmatic approach which needs to be adopted while construing a purely procedural provision. Otherwise, rules of procedure will become the mistress instead of remaining the handmaid of justice, contrary to the role attributed to it in our legal system." 21. The same principles are re-stated in Kailash V/s. Nankhu and Others, reported in (2005) 4 SCC page 480 (see paras 28,29 at page 495). Amendment applications which contain all details cannot be thrown out merely because there is a omission to state something which is obvious or pray for something which the Court has otherwise a power to grant. It is pertinent to note that the parties concede that the Industrial Court has a power to grant and permit amendments. That is undisputed so also its injerent power to do justice. Merely, because the :16: Schedule to the amendment does not contain a prayer for joinder of Respondent No.4 as Respondent to the complaint does not mean that the application can be thrown out on that ground. The learned Member failed to read the Amendment application as a whole. If he had been careful enough to read it alongwith the Schedule, possibly, he would not have come to a conclusion that there is a defect therein. Merely because the earlier application had an omission, which is not corrected in the opinion of the learned Member, does not mean that the application should be thrown out and rejected. Admittedly, this is not done by the learned Member. He has not rejected the application in its entirety but allowed it in part. He has permitted incorporating all pleas with regard to the alleged rights created in favour of Respondent No.4. Once he has allowed all this and the Respondent No.4 must be given opportunity to rebut all allegations, then, there was no occasion to reject the application in part. The Respondent No.4 has to be made a party if the above opportunity is to be given to it. In its absence, effective and complete adjudication of the controversy is not possible. Respondent No.4 has not made any grievance about its joinder. 22. The Learned Member has faulted the Petitioner - Complainant for not rectifying the omission. In para 5 of the Impugned Order the Learned Member holds that the omission continues and in the Application or Schedule, :17: there is no specific prayer for joining the Respondent No.4 as a party. However, the learned Member overlooked the fact that the alleged omission causes no prejudice. There is a general prayer and it is requested that the Court be pleased to grant such other and further relief. This was enough to remedy the defect. More so, when no one was complaining either in the Lower Court or before me. 23. Further, The Learned Member erred in deciding the Application on merits. Paragraph 6 of the Impugned Order would indicate that the Counsel addressed the Court on merits of the amendment. However, that does not mean that the learned Member was obliged to consider the same. He could have kept all pleas and Issues open. Once he has allowed the incorporation of all pleas