Burn And Co. v. Jitendra Nath Maitra And Others

1. The petitioner is a company and has an engineering workshop known as Howrah Iron Works.

2. By an order dated 8-1-1955, the Government of West Bengal referred to the first respondent, the Third Industrial Tribunal, an industrial dispute between the petitioner and its workmen, represented by the second, third and fourth respondents, who are trade unions of such workmen. The dispute referred to relates to bonus for the year ended 30-4-1953, it appears that before the Tribunal, the Burn's Employees' Union applied on 12-9-1955 for an order directing the company to allow its representative inspection of certain documents mentioned in the petition. The company opposed the prayer. On 6-10-1955 the Tribunal ordered as follows:

“Heard representatives of the parties concerned. Without prejudice to the question whether the bonus in question has to be calculated on the trading results of the entire company or of the particular unit before this tribunal, the company is directed to allow inspection of the documents mentioned in sub-paragraphs (a) and (b) relating to the year 1952-1953 in question and of statistical figure book of the company in 2 vols. for Burn & Co. Ltd., as in sub-paragraph (c). The inspection so to be given at the office of the company to two representatives from each of the three unions during office hours on, two successive days between 7 & 14-11-1955. Inspection in no case would extend beyond two successive days.”

This rule was issued on 25-11-1955 and challenges the order. The point taken by Ginwalla on behalf of the petitioner is as follows: He says that so far as power of ordering inspection is concerned, the Tribunal is bound to make such an order in accordance with law. Let us, therefore, see what the law on the point is. According to Section 11 of the Industrial Disputes Act, Labour Tribunals shall, subject to the provisions of the Industrial Disputes Act, follow such procedure as may be prescribed. Sub-rule 3 is as follows:—

“Every Board, Court and Tribunal shall have; the same powers as are vested in Civil Court under the Code of Civil Procedure, 1908 (V of 1908), when trying a suit, in respect of the following matters, viz:—………………………..

(d) In respect of such other matters as may be prescribed;”

Rules have been made under the power granted by the Industrial Disputes Act known as the Bengal Industrial Disputes Rules 1947. Rule 18 is as follows:—

“Powers of Courts and Boards— In addition to the powers conferred by sub-s. (3) of S. 11, a Court or Board or Tribunal shall have the following powers also, viz.:— powers vested in Courts under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters:— (a) Discovery and inspection—………………………..The position therefore is quite clear. So far as discovery and inspection is concerned, Tribunals are given the same power as Civil Courts. Therefore, the test to be applied here is a simple one viz. Has the Tribunal made an order which a Civil Court placed in similar circumstances would have made? So far as discovery and inspection is concerned, the relevant provisions are Section 30 and O. 11 of the CPC. Section 30 gives the Court power, subject to conditions and limitations as may be prescribed to make such orders relating to discovery and inspection etc., as may be necessary or reasonable. Limitations are contained in O. 11. Order 11, R. 12 lays down how an application is to be made for discovery of documents. The application is for an order directing any other party to make discovery on oath, of documents which were, or are in his possession or power, relating to any matter in question therein. Rule 13 specifies what the affidavit of documents should contain. Rule 15 gives power to a party to serve notice on the other party in whose pleadings and affidavits reference is made to any document, to produce such document for inspection. R. 17 speaks of how inspection should be given & R. 18 empowers the Court to order inspection when inspection has not been given in spite of notice. This question of discovery & inspection has been the subject matter of numerous authorities in England as well as in India. There are certain principles which have been firmly established in such cases, e.g an affidavit of documents is considered as prima facie conclusive, but there are certain circumstances under which the Court can order inspection of documents although not stated in the affidavit, because it comes to the conclusion that their existence is reasonable or probable by reason of anything contained in the affidavit, or the documents contained therein, or the pleadings. It is unnecessary to go into these cases because it is conceded by learned counsel appearing on behalf of the respondents that before inspection could have been ordered it was necessary to order the filing of an affidavit of documents. Such is in reality the procedure which has been laid down by law. Until, an affidavit of documents has been directed to be filed, the Court would have no jurisdiction to order inspection. This is not a procedure which can be omitted. I am informed that the tribunals do not order the filing of an affidavit of documents before ordering inspection. This is a practice contrary to law and must not be continued. It is not merely a shadow but a matter of substance that a party should be called upon and should be enabled to state on oath as to what documents are relevant and are in his possession or power, before being called upon to give inspection thereof. The Industrial Tribunals are creatures of law, and therefore they are bound to follow the procedure laid down by law. They cannot evolve their own procedure in the case of discovery and inspection. Mr. Acharya on behalf of some of the respondents has pointed out that the company has virtually admitted having possession of the documents of which inspection has been ordered, and therefore an order should not be made as asked for. Mr. Mukherjee on behalf of the respondent No. 1 has pointed out that before the Tribunal the company did not pointedly take objections regarding the filling of the affidavits. Unfortunately, the respondent No. 1 has not filed any affidavit, and it is very difficult to decide the question as to whether the company did or did not take any particular objection. Nor can I say upon the affidavits that the company has admitted possession or relevancy of all the documents. In any event, before compelling the company to give inspection of certain documents, it must be ordered to file an affidavit of documents, and there can be no exception to it. The order made by the tribunal therefore is not in accordance with law, and is bad on the face of it. As I have already said, learned counsel for both the respondents appearing before me, concede that an affidavit of documents must have to be filed. The proper order, therefore, would be to make this rule absolute and issue a writ in the nature of certiorari quashing the order of the respondent No. 1 dated 6-10-1955. The matter will now go back to the Tribunal which will, in the first instance, if it is desirous of directing the company to give inspection of any document, make an order directing it to file a proper affidavit of documents on the lines specified in the Code of Civil Procedure, and thereafter make such orders for inspection as is warranted by law. I think there is some ground for stating that the company had not taken clearly this objection before the Tribunal, and therefore it will be deprived of the costs of this application. There will be no order as to costs.

S.L.L

3. Rule made absolute.