Important Point: In the absence of a specific exclusion or bar, and in the light of the CPC not being strictly applicable to the proceedings before the Labour and Industrial Courts, there cannot be any reason to not to permit an amendment to the written statement.

1. Heard learned Advocates for the respective parties.

2. Issue is, as to whether filing of a Written Statement/Say should be permitted in an Appeal under the Industrial Employment (Standing Orders) Act, 1946 ("the Act of 1946") and the Bombay Industrial Employment (Standing Orders) Rules, 1959 ("the Rules of 1959").

3. Rule.

4. By consent, Rule is made returnable forthwith and the petition is taken up for final disposal.

5. The petitioner/Union is aggrieved by the order dated 13.10.2016, by which, application Exhibit U/8 filed by the Union seeking amendment to the written statement before the commencement of the trial, has been rejected on the ground that the contents of the amendment application are in the nature of arguments and no Written Statement can be filed in an Appeal under the Act of 1946.

6. I have considered the strenuous submissions of the learned Advocates for the respective sides and have gone through the judgments - James Joseph Vs. State of Kerala [(2010) 9 SCC 642] and North Eastern Railway Administration Versus Bhagwan Das (D) By L.Rs. [(2008) 8 SCC 511], cited by the respective sides.

7. Appeal (IESO) No.1 of 2015 is the proceeding pending before the Industrial Court in relation to a dispute as regards the Model Standing Orders vis-a-vis the certified amendments. The respective claims of the parties need not be delved upon in his judgment in the light of the fact that the proceedings are at a pre-trial stage. Suffice it to say that the Management, being aggrieved by the amendments to the M.S.O. certified by the authority, has preferred the Appeal.

8. The management is the appellant before the Industrial Court and has filed its detailed appeal with documents. The respondent Union/petitioner herein, has already filed it's written statement. There is no dispute that issues have not been cast and the Industrial Court has not decided, whether evidence is to be recorded or not.

9. For the sake of clarity, Rule 13 of the Bombay Industrial Employment (Standing Orders) Rules, 1959 is reproduced as under:-

“13. Procedure in appeal. --

(1) Any person desiring to prefer an appeal against an order of the Certifying Officer shall draw up a memorandum of appeal setting out the grounds of appeal and forward it in quadruplicate accompanied by a certified copy of the amendments or modifications and of the order of the Certifying Officer against which the appeal is preferred, to the Registrar of the Industrial Court.

(2) The appellate authority shall, after giving the appellant an opportunity of being heard, unless it comes to the conclusion that the decision of the Certifying Officer is contrary to law or otherwise erroneous, confirm the amendments or modifications as certified by him.

(3) Where the appellate authority does not confirm the amendments or modifications it shall fix a date for the hearing of the appeal and direct notice thereof to be given –

(a) where the appeal is filed by the employer or a workman, to trade unions of the workmen of the industrial establishments and where there are no such trade unions to the representatives of workmen elected under rule 4, or as the case may be, to the employer;

(b) where the appeal is filed by a trade union, to the employer and all other trade unions of the workmen of the industrial establishment;

(c) where the appeal is filed by the representatives of the workmen, to the employer and any other workman whom the appellate authority joins as a party to the appeal.

(4) The appellant shall furnish each of respondents, with a copy of the memorandum of appeal.

(5) The appellate authority may at any stage call for any evidence it considers necessary for the disposal of the appeal.

(6) On the date fixed under sub rule (3) for the hearing of the appeal, the appellate authority shall take such evidence as it may have called for or considers to be relevant.”

10. It is, therefore, apparent that though the proceedings before the Industrial Court are termed as appeal proceedings, there is a speci