Second attempt - amendments in ws at a stage when trial has commenced
(Querist) 26 November 2010
This query is : Resolved
Brief facts of the case :
A labour case in Delhi (of illegal termination and reinstatement of service with full back wages and continuity of service and consequential benefits) has proceeded upto worker evidence stage in 18 months and the workman has given sufficient evidences to prove his illegal termination and his nature of duties (mainly clerical) to prove that he is workman u/s 2(s) performing clerical work.
The management after receiving the copy of affidavit with evidences from worker side has suddenly changed his lawyer and the new lawyer have taken adjournments on two occasions on ground that he requires time for cross examination as he has to prepare and study the case.During the third occasion of cross examination of worker he filed a fresh application for amendment in his ws filed 1 year ago in sep'2009 and prayed for the following proposed amendments
1. jurisdiction - the case should be in NOida and not in Delhi
2. repeated the issue framed earlier - Workman was performing managerial function and hence not fall u/s 2(s) of ID Act
3.giving new offer of employment to workman vide their letter dated 15/11/2010 ( but on earlier terms and condition) by saying that company has vacancy in their other factory now(note that this factory is in a village almost 1200 kms away from his earlier posting since they have now closed the factory of noida in aug'2010 despite the fact that they have branch offices in delhi, noida and ghaziabad and even a new factory at roorkee.
4 since they are offering him new employment and if he accepts, it is presumed without admitting that now this case ceases to exist.
5 since the company has now no operations at noida and they are offering him employment he cannot be given relief of reinstatement or any other benefit.
My queries for dear experts are as follows :
1. Can such type of amendments in ws at a stage when trial has commenced (i.e. after seeing the evidences of worker) ,acceptable in law.
Please give some Apex court decisions references
2) Is it not a game plan/malafide of the management to delay the case by offering him employment in a remote area and side by side showing the court that they offered him the employment but he rejected.
3) Whether workman can ask for employment in nearby places as mentioned above.
4) If workman accept their offer than what about the claims of the period for which he remain unemployed and for which he is fighting the case for last 2 years
5) What reply should be given in court by the workman who want to join but in a nearby office and also his claims of 2 unemployed years due to illegal termination settled first.
I hope that this query will be replied by maximum number of expert as I feel it to be a complicated case for the suffering workman.
(Expert) 27 November 2010
You contest the amendment application on two grounds. (1) after framing of issues, no amendment shall not be allowed (2) it is a jurisdictional question of law and hence, without amendment, at the final arguments, the question of territorial jurisdiction can be argued on the basis of the facts proved before the court.
It is totally malafide intention on the part of management to offer reemployment in a far remote area. You can certainly object to this and put your counter proposal that the workman is interested to do job in Delhi, if the management is interested to give it. As far as the legality/illegality of termination and the relief of back wages are concerned, you can submit the court that while the workman is working in Delhi, the case may be allowed to continue till end and the relief part can be decided in the award on the basis of merit.