(Amendment of Pleading)

This is an application filed by the Company dated 11th March 2009 to amend the Statement in Reply dated 20th February, 2009. Submission had been filed by the Claimant and the Company.

The learned counsel for the Company argued that this application was filed in pursuant to the objection raised by the Claimant during his submission. On the other hand, the learned counsel for the Claimant submitted that this honourable Court should not allow this application on grounds that the issue as to whether the Claimant is a workman within the ambit of Section 2 of Industrial Relation Act, 1967 had been extensively argued by both parties in their respective submissions.

The learned counsel for the Company argued that this amendment was solely meant to insert the word "Group Managing Director" as enshrined in the proposed amended Statement in Reply to avoid any objection from Claimant. Mr. C.F. Lee also brought the Court's attention of Regulation 10(3) of the Industrial Court Rules, 1967 which reads:-

"Such Statement in Reply shall be confined to the matters raised in the Statement of Case and to any issues which are included in the case referred to the Court by the Minister or in the matter required to be determined by the Court under the provisions of the Act and which may have been omitted from the Statement of Case and shall contain:-

(i) ..................

(ii) .................

(iii) ................

and he further argued that the issue of whether the Claimant is a workman or otherwise is within the meaning of "a matter" required to be determined by this Court". In a different tone he also argued despite of issue not being pleaded, the Court still have to decide on it as it is related to a question of law.

The Counsel for the Claimant submits that the failure to plead these issue from the beginning tantamount to an admission that the Claimant was the employee of the Company. Furthermore, Mr. Kanesalingam argued that the Company should made an early application to review the decision of the Minister to refer the case to this Court if they dispute that the Claimant was not workman within the ambit of section 2 of the Industrial Relation Act, 1967.

After perusing the Industrial Relation Act 1967 and Industrial Court Rules 1967, there is no specific provision relating to the procedure for amendment of pleading which is "in pari materia" with Order 20 Rules 5 of Rules of High Court 1980 and Order 15 Rules 1 of the Subordinate Courts Rules 1980. On this point the learned counsel for the Company cited section 20(g) of the Industrial Relation Act 1967 which read as follows:-

Generally direct and do all such things as are necessary or expedient for the expeditious determination of the matter before it.

The learned counsel for the Company argued that based on this provision the Court shall consider all the established principles on amendments of pleading in determining whether this application should be allowed or otherwise.

At this juncture, it is also a great importance for this Court to take into consideration the provision of Section 30(5) of Industrial Relation Act, 1967 which reads:-

"The Court shall act according to equity, good conscience and the substantial merit of case without regard to technicalities and legal form."

The learned Counsel for the Company submitted that the objection raised by the Claimant is a legal technicalities and should not be entertain by this Court.

Hence, it is useful to understand the nature of pleading and it's importance in a civil trial. Basically, pleading is a formal document in which a party to a legal proceedings (esp. a civil lawsuit) sets forth or responds to allegations, claims, denials, or defences (see Black's Law Dictionary (7th edition)). The purpose of pleading is to avoid element of surprise during the trial and also to ascertain the issue or subject for decision. The importance of pleadings can be found in many authorities. The most instructive