The Judgment of the Court was delivered by

D.K Seth, J.:— In this case in course of adjudication before the Industrial Tribunal the workman had filed a list of documents on 5th March, 1999 but did not exchange the documents within 10 days from the date of filing of the written statement. The written statement was filed on 13th May, 1999. Thereafter the workman had adduced evidence and he was examined as P.W 1 and cross-examined. At this state the workman had filed two applications; one for permitting him to file the original document disclosed in the list of documents and the other for recalling himself for being re-examined. These two applications were dismissed by Order Nos. 13 and 14, both dated 14th September, 1999 passed by the learned Second Labour Court, West Bengal in Case No. 10(1B)(d) 25 of 1998. These two orders have since been challenged.

2. Mr. Sahu, learned counsel for the workman points out that section 11(3) of Industrial Disputes Act, 1947 prescribes the application of the Code of Civil Procedure so far as it relates to the matters as enumerated therein. Therefore, according to him, in tenure of the provisions contained in the Code of Civil Procedure relating to those matters would apply in this case with full force subject to the limitation as prescribed in the Rules. He had relied on some decisions in support of his contention to which reference would be made at appropriate stage. With regard to the question of recalling own witnesses, he had also relied on section 13 of the Industrial Disputes Act and also claimed that Order 18 Rule 17 of the Code of Civil Procedure shall be applicable in such cases in support of which he had relied on some decisions to which reference would be made at appropriate stage. Learned counsel for the employer on the other hand contends that the Industrial Disputes Act is a special statute. It only borrowed certain provisions of the Code of Civil Procedure for limited purpose as provided in section 11 of the Industrial Disputes Act. It cannot be stretched beyond the scope for which it is so borrowed and is also subject to rules framed therein. According to him, rules enacted in the special statute providing certain period of limitation, the same is to be given full effect and as soon such limitation expires, the right ceases and cannot be respondent even when it is so permissible under the Code of Civil Procedure. The application of the Code of Civil Procedure is limited to that extent. He also relied on the two judgments in support of his such contention to which reference would be made at appropriate stage.

3. So far as the question of recalling is concerned, he has contended that it cannot recalled after the workman had allowed to produce the documents and had been examined and cross-examined. Therefore, this writ petition should fail.

4. I have heard the learned counsel for the respective parties at length.

5. It appears that the petitioner had disclosed the documents by filing a list of documents on 5th March, 1999. This is not in dispute. This also finds place in the impugned order No. 13 dated 14th September, 1999. It is also admitted position that the documents were not exchanged. Neither those were filed. The rule however, provides certain limitation. The relevant rule may be found in Rule 20-C of the West Bengal Industrial Disputes Rules, 1958. The said Rule 20-C prescribes 14 days limitation after filing of written statement by the second party, for filing the list disclosing the documents. Each of the parties is required to give notice to the other on the date on which it is so filed. So far this provision is concerned, that has since been compiled with. Sub-rule 2 provides that within 10 days from filing this list of documents, copies of the documents are to be furnished to each other except the original registered Books of Account and such other documents that may be exempted by the Tribunal or Labour Court, as the case may be. In the present case, the documents which are now being sought to be produced are not exempted documents and at the same time there was no order by the Labour Court exempting those documents. Therefore, it is not a question of exchange of the documents. It is a question of exchange of the documents. Admittedly it was not complied with.

6. The procedures are hand-maid of justice. Technicalities can not stand in the way of dispensing justice. However, the rules do not contemplate as to what would be the effect of expire of such time. Admittedly the provision in industrial dispute is enacted for deciding disputes as expeditiously as possible. With this few limitations have been provided in Rule 20-C of the said Rules. At the same time, the said Rules does not prescribe any consequences of non-exchange of such documents within the time specified. It also does not provide anything to the time when such documents are to be filed. It also does not contain that in case the documents are not exchanged, the parties will be precluded from producing the documents at the hearing. But Rule 15 of the said Rules provides for adducing evidence and the Labour Court or the Tribunal may accept, admit or call for evidence at any stage of the proceedings which his since been held by the Court can be granted for dispensing justice at appropriate stage. Unless it is show that a party is not diligent or otherwise guilty of laches and delay or is acting malafide with in but to delay the process, is that event it is the discretion of the Tribunal of the Labour Court either to accept or to reject or refuse it. It is the discretion which the Tribunal has to exercise judiciously having regard to the facts and circumstances of the case.

7. In the present case, a list of documents was disclosed on 5th March, 1999 and the written statement was filed on 13th May, 1999. The workman was examined and cross-examined on 2nd August, 1999. On the same day i.e 2nd August 1999 the petitioner filed one application seeking leave to adduce further evidence which was fixed on 19th August, 1999. On 19th August, 1999 these two applications one for leave to file the original documents and the other for recalling himself (PW-1) for examination, were filed. Thus it does not appear that there was any delay. There is nothing on record to find that the workman is after delaying the process. Inasmuch as the workman is not expected to delay the process which will go against his own interest. Thus the ground that the workman wants to delay the process for which he did not produce the documents, can not be accepted. The ground that has been made out for the purpose of explaining the delay that there was change of brief between the counsel, that might possibly be a plausible ground and it may so happen. Time is too short in between. Therefore, such reason can be a possible explanation and in fact an acceptable explanation with regard thereto.

8. While exercising judicial function court his to exercise some discretion. It is not possible to provide in the rules of procedure, for all eventualities. It is at this stages the court has the liberty to exercise its dissection such discretion, naturally a judicial discretion, is to be exercised judiciously. Court is not bound by hard and fast technicalities when the rule does not provide for specifically in respect of a particular situation.

9. In such a Case the court has to be alive to the situation. It has to examine the context and the established principle's of law and justice. It is justice that is required to be done. It is justice that matters. It is justice real which is to be dispensed with. It is justice to both or all. It is justice which is natural. It is justice which is oriented by equities. It is justice which removes or avoids prejudice; not to one but to both or all. If it affects either, then it is to be weighed. The comparatively more prejudice effecting justice is to be avoided and the lesser one is to yield. No one has any right to the procedure. A procedural law does neither creato nor affect any substantive right, unless a legal right accrues by operation of law, which however can not be taken away.

10. In the present case, if the original documents, list whereof have already been filed, though copies not exchanged, the employer can not be said to suffer any prejudice. The documents are necessary for deciding the real question at issue. Without these documents the workman will suffer prejudice. He will not be able to establish his case only on mere technicalities. Whereas the employer will be able to confront these documents and cross-examine the workman. If it is allowed the employer will not suffer any prejudice.

11. The workman having applied on 2nd August, 1999 itself for adducing further evidence before any other witness is examined, therefore recalling of P.W-1 will in no way prejudice the employer, who will be at liberty to cross examine him.

12. Copies of these documents can also now be furnished to the other party and a few days, say 7 days, time may be allowed to him to examine those documents. It is so done be can not be said to be prejndiced. It may be bounced in mind that the Rule 20-C does not prescribe any time for filing the documents. Therefore, it could be filed before or at the time or during the course of examination the witness.

13. Admittedly the time is fixed in Rule 20C. Rule 20G empowers the Labour Court/Industrial Tribunal to alter the date or enlarge the period fixed by rules as it thinks fit. Thus the rules itself prescribes power to enlarge the period. However, such enlargement would not be permissible if the period is mandatory. Having regard to the Scheme of Rule 20C and the language employed therein it does not seem to be mandatory. It is subject to Rule 20G. Rule 24 vests the Labour Court/Industrial Tribunal with the powers of civil court in relation to reception of evidence taken on affidavit. This is in addition to direct oral evidence. Rule 20-E empowers it to summon any person to give evidence or to produce documents or for both purposes. While Rule 15 empowers it to accept admit or call for evidence at any stage of the proceedings before it in such manner as it thinks fit. These powers are not constrained by the ringour of the procedure laid down in the Code of Civil Procedure. The proceedings before it is little more flexible.

14. These powers as prescribed by the rules are in addition to the power prescribed under Section 11(3) of the Act. An Industrial Tribunal or labour court is vested with the power of civil court under the Code of Civil Procedure in respect of—(a) enforcing attendance of any person and examining him on oath; (b) compelling the production of documents and material objects; (c) issuing commission for be examination of witness.

15. Since Rule 24 includes the civil courts power of discovery and inspection the provisions of Order 11 CPC is applicable subject to Rule 20C. Therefore, the non compliance can attract Order 11 rule 21 CPC. But it will apply only when the is a failure as contemplaced in order 11 rule 21 CPC and not otherwise, provided there is an order under any of the rules being Rules 14, 15, 16 or 18 of Order 11 CPC. In the present case none of this provisions are applicable. Inasmuch was neither there was any such order nor was there any notice under any of the said provisions.

16. When these rules do not prescribed any consequences. Particularly with regard to non-compliance of Sub-rule 2 of Rule 20-C of the said Rules, in that event the Court or Tribunal can not preclude the workman from producing such documents. It is the discretion of the Court or Tribunal which is to be exercised judicially. So far as the Code of Civil Procedure is concerned, having regard to section 11 of the 1947 Act, it appears that the Tribunal has the same powers as are vested in court under the Code of Civil Procedure while trying a suit in respect of enforcement of attendance of a person examining him on oath which includes power under Order 18 Rule 17 as also the procedure for production and inspection of the documents and material objections which includes Order 11 and Order 18 mutatis mutandis subject to the Rules. Though the limitation has been provided in Rules 2-C, that can not take away the right conferred under section 11(3) of the Industrial Disputes Act and the discretion of the court can not be encroached upon by enactment of Rule. If the rule is inconsistent with the section or provisions of the Act, in that event the same is to yield to the provisions of the Act. When there is apparent conflict, in that event such Rules are to be reconciled with the Act. In the present case however there is no conflict in between the provisions contained in the Rules or those of the Act. The list having been disclosed, there was a disclosure. After the list of document is filed though not exchanged, it will not crete any obstruction in the matter of dispensing justice when it is sought to be adduced in evidence within a short while without causing much delay. However, the question that arises in this case is as to whether by reason of such non-exchange, the petitioner is precluded from proceeding the original documents. It can very well be produced if the Court finds on the facts and circumstances of a particular case that it is a case fit for exercising discretion to allow reduction of documents at such stage to a party without prejudice to the other side, he might be given adequate opportunity to produce it. Similarly witness can be recalled in appropriate cases on behalf of the Tribunal or the Labour Court. Thus the question is also not disputed by the learned counsel, though it is contended on the basis of the facts and circumstances of this case that the principle would not be applicable.

17. In the decision in Shipping Corporation of India Ltd. v. Industrial Tribunal III West Bengal . 1998 78 FLR 984 Cal.., this Court had held that it can not be produced if the period has expired. But it was a case where the documents were not at all disclosed. The facts of this case are distinguishable and it can not be applied in the present case where the list was filed and the documents were disclosed. The decision in the case of in Re. Excel Fruits & Colours Ltd.2 this Court had held that, relying on the decision in Shipping Corporation of India (supra), the documents would not be filed unless it is disclosed. In the said case, the step was sought to be taken after the award was passed and not before. Thus on facts the said decision is also extinguishable.

18. On the other hand in the decision cited by Mr. Sahu in In Re: Mansural Hasan… v. Sri Balaram Dey…Opposite Party. . CLR 1995 1 HC 331., this Court had held that if sufficient explanation for non-production of documents earlier are given and if it does not cause prejudice to the other side on account of Lawyers default, it can be admitted into evidence. In the decision in U.K Ghosh v. Voltas Ltd. . AIR 1994 Orissa 131., it was held that when a witness was sought to be recalled, the same can be allowed by the Court having regard to the convenience of the parties at the discretion of the Court. In the decision in Billa Jagan Mohan Reddy v. Billa Sanjeeva Reddy, the Apex Court had taken the view that the production of the documents should not be ordinarily prevented and in such cases discretion should be discretionary in favour of the parties unless it is shown that he is guilty of mala fide or other wise. In the decision in Smt. Karti v. Rattia, it was held that the production of the documents at late stage can not be denied simply on technical ground unless it is shown that the person is guilty of delay and latches or is acting mala fide.

19. However, all these decisions relate to matter covered by the Code of Civil Procedure and exercised by Civil Courts. How far that would be applicable in a proceeding before the Tribunal is required to be examined. Having regard to the provisions under section 11(3) of the Industrial Disputes Act as also the discussion I have made earlier, it seems that it will apply subject to the limitation as provided under the rules unless it is delayed in unnecessary extent. In Para 10 of the decision in Rajiv Singh v. Sirhind Corporation Marketing-cum-Processing Service Society Ltd., the Apex Court had held that the Court can not refuse reference simply on the ground of delay along even if it is made beyond time. Thus the time specified has been held to be directory and not to be mandatory. Since nothing has been provided in respect of the consequences of the expire of the period, therefore, the said limitation should be treated to be directory and not mandatory and should be left to the discretion of the Court and having regard to the facts and circumstances of the case and conduct of the parties where such delays appear to have been properly explained.

20. In the circumstances, in my view, the orders impugned having regard to the facts and circumstances of this case can not be sustained. Both the order Nos. 13 and 14 dated 14th September, 1999 respectively are hereby quashed.

21. Let this matter be transmitted to the Tribunal for deciding the case expeditiously, preferably within a period of six months from the date of communication of this order.

22. The application filed by the petitioner for production of the documents and recalling of the witness are hereby allowed.

23. The petitioner shall furnish copies of the documents to the employer's Counsel and produce the document before the Tribunal within a fortnight after reopening after Puja vacation. The Tribunal shall fix an appropriate date for reexamination of the witness after a fortnight thereafter. The Tribunal shall proceed on the basis of the evidence already recorded as well as further evidence as may be adduced by the respective parties.

24. With this observation, this writ petition stands allowed. Xerox certified copy of this order, if applied for, be given.

25. Petition Allowed.