MANAGEMENT OF ST.PHILOMENA"S HOSPITAL NO. 1, NEELAS ANDRA ROAD, BANGALORE - 560 047, REP BY ITS ADMINISTRATOR OFFICER, SISTER THERISIAMMA Vs. MR. H. IZACK GEORGE S/O HARRY MAJOR, RAT 219, MURPHY TOWN, ULSOOR, BANGALORE - 560 008

JUDGEMENT

(1.) PETITIONER has called in question order passed by first Additional Labour Court dated 24.09.2009 whereunder I.A.No.4 filed by petitioner under section 11 of the Industrial Disputes Act, read with Order VI Rule 17 of Code of Civil Procedure seeking amendment of counter statement came to be dismissed. Heard learned counsel appearing for petitioner. This court by order dated 02.07.2010 had directed the petitioner counsel to pay the process fee and had also directed to serve the copy of writ petition on learned advocate appearing for respondent before Labour court since the matter is still pending. An acknowledgment was filed by learned counsel for petitioner for having served the copy of writ petition on Sri.G.V.P Reddy, Advocate for respondent. Said learned counsel had not entered appearance and it was submitted before court that he is not authorised to appear in the writ petition. Hence petitioner was directed to take fresh steps for issue of notice. On 29.07.2011 Sri.T.Narayanaswamy, learned counsel submitted that he would take instructions from the second respondent and appear before court and as such registry was directed to print the name of Sri.T.Narayanaswamy as learned counsel appearing for respondent. On 04.08.2011 Sri.T.Narayanaswamy learned counsel submitted though he addressed a letter to the respondent there was no response and therefore requested this court to issue fresh notice to respondent. Court notice issued has been duly served on the respondent and same was noticed by this court and recorded on 28.05.2012. Registry was directed to print the name of respondent in the cause title. Same has been carried out by registry. Respondent called out. None appears. Since service of notice on respondent is held sufficient, matter is taken up for final disposal. 3. Only, grievance of learned counsel for petitioner is that in the statement of objections filed before Labour court a specific plea had not been raised seeking permission to lead evidence in the event of issue regarding fairness of enquiry is held against management and to avoid such technical plea being taken an amendment was sought praying to incorporate such a plea. He would submit that an application had also been filed namely I.A.No.2 seeking permission of Labour court to lead further evidence in the event of Labour Court coming to a conclusion that domestic enquiry was not fair and proper and Labour court by order dated 23.12.2008 had rejected the said application as premature and thereafter I.A.IV was filed seeking amendment in question. However.; Labour court by impugned order rejected the said application on the ground that there is no pleading on behalf of the management regarding proposed amendment in its counter statement already filed. It is the contention of Sri.Ganapathi Hegde, learned counsel appearing for petitioner that Labour court was permitting or allowing the employer to lead evidence in the event of Labour court decides the preliminary issue in favour of workman and against management even in the absence of such plea till law was declared by Hon'ble Apex Court in the case of Karnataka State Road Transport Corpn. Vs. Smt. Lakshmidevamma and Anr., AIR 2001 SC 2090 and Labour courts across the country irrespective of such plea being available or not was permitting the management and/or directing them to lead evidence on merits and now in view of the law laid down in Lakshmidevamma's case Labour courts are not permitting the management to lead evidence unless such plea had been raised and as such it is just and necessary that such a plea is required to be pleaded in the statement of objections and an account of specific plea not having being raised in the statement of objections amendment was sought for. Perusal of the impugned order would go to show that application for amendment has been dismissed on two grounds namely (1) application I.A.No.2 filed by petitioner management seeking permission to lead evidence on merits of the case in the event of issue regarding fairness of domestic enquiry being held as not fair and proper being dismissed; and (2) in the plea already put forward by petitioner -management namely in its counter statement there is no plea with regard to proposed amendment. As rightly contended by learned counsel for petitioner prior to law being laid down by Hon'ble Apex Court in the case of KSRTC Vs Lakshmidevamma referred to supra Labour courts were permitting or reserving liberty to management to lead evidence in the event of issue regarding fairness of enquiry being held against management. However Apex Court has held in Lakshmidevamma's case that liberty to lead further evidence should be reserved by employer at the earliest available opportunity namely by raising a plea in the counter statement. In the instant case it is noticed that dispute was raised on 31.03.1997 and management has filed its statement of objections on 15.03.2000 before law was laid down in Lakshmidevamma's case by Hon'ble Apex Court. At the time when counter statement was filed there was no embargo to restrain the management from leading evidence on merits and labour courts were permitting the management to lead evidence on merits irrespective of such being there or not in the counter statement. However, it has now been held in Lakshmidevamma's case by Hon'ble Apex Court that such a plea had to be raised at the first available opportunity. Thus, when counter statement had been filed by petitioner -management in the instant case said law had not been declared. During the course of trial petitioner -management having noticed that a specific plea on these lines having not been raised, an application I.A.No.2 was filed seeking permission of the Labour court to lead evidence in the event of issue regarding fairness of domestic enquiry being held against petitioner -management. On such application being dismissed, I.A.No.4 was filed seeking amendment and this application has been dismissed on the ground that plea is not found in the statement of objections. To avoid any technical plea being raised with regard to plea being not available in the counter statement proposed amendment has been sought for. Admittedly trial is yet to be concluded and during middle of the trial petitioner -management has sought for such a plea being raised. If the proposed amendment is allowed no hardship or inconvenience would be caused to respondent -workman nor it would displace the stand of workman or take away the right of workman. In that view of the matter I am of the considered view Labour court committed serious error in dismissing the application for amendment. For the reasons aforesaid, I pass the following: ORDER