1. By this Civil Application under Art. 226 of the Constitution the petitioner 20th Century-Fox Corporation (India) Private Limited, seeks to challenge the validity of the order passed by the Industrial Tribunal, Bombay, dated the 16th of October, 1972, whereby the previous order passed on the 12th of July, 1972 was maintained by the Tribunal.
It is to be noticed that the order relates to an application made by the Union the Foreign Film Distributors Union for production of certain documents.
2. The short facts are that by an order dated the 5th of November, 1971 the Government of Maharashtra referred the industrial dispute between the petitioners and the workmen employed under them in relation to the demands specified in the schedule. It is necessary to notice that the first demand was for grades and scales of pay, the second for reclassification and up-grading, the third for application of the grades and scales of pay and adjustment thereof, the fourth for annual increments, the fifth for dearness allowance, the sixth for officiating allowance, the seventh for overtime allowance, the eighth for travelling allowance, the ninth for medical relief, the tenth for leave and the eleventh for gratuity.
3. It would appear that the union filed the statement of claim on 18th of December, 1971. The petitioners filed their written statement on the 18th January, 1972 and the union filed a rejoinder on 15th February, 1972.
4. Thereafter on the 15th of February, 1972 the union filed an application for production of documents in which the only statement as to the necessity of the production of the documents and the relevance of the documents was made in the following words :
'..... After considering various submissions and averments made by the company in its written statement, it is necessary that certain documents be produced before this Hon'ble Tribunal, which will throw sufficient light on various aspects of the issues involved in this reference ....'
A list of documents was then set out in the said application. It is appropriate that the entire application should be set out so as to appreciate the rival contentions of the parties :
'In the above reference the union has filed its statement of claims on 18th December, 1971, and the employer company has filed its written statement on 18th January, 1972. The union has also filed its rejoinder to the written statement of the company on 15th February, 1972. After considering various submissions and averments made by the company in its written statement, it is necessary that certain documents be produced before this Hon'ble Tribunal, which will throw sufficient light on various aspects of the issues involved in this reference. These documents are, however, in the sole possession of the employer-company.
'It is, therefore, prayed that the Hon'ble Tribunal may be pleased to direct the employer-company to produce the following documents and further be directed to supply copies of the same to the union simultaneously.
1. Balance sheet and profit and loss account statements of the company for each of the years 1966 to 1971.
2. Pay roll of the Bombay Office of the company including that of officers and workmen staff for the years 1966 to 1971 and various allowances along with quantum thereof paid to the officers of the company during the years 1966 to 1971.
3. The franchise agreement entered into by the employer-company with its parent-company in U.S.A. and also similar agreements entered into by the employer-company with other film producing companies in U.S.A.
4. The names of films distributed by the employer-company in India during the years 1966 to 1971 giving the rates and the amount of royalty in respect of each such films paid by the employer-company to its parent-company and or other companies in U.S.A. according to the respective franchise agreement.
5. Number of bookings and billings made by the employer-company during the each of the years from 1966 to 1971.
6. Sums advanced by the employer-company to the various theatres in India where the pictures distributed by the company were released, during the period 1966 to 1971.
7. Names of the officers of the company who have been continued in the service of the company even after superannuation.'
5. It would appear, that the learned Tribunal passed an order on the 12th July, 1972 in which he set out the list of documents wanted by the union and in paragraph 2 of the said order the Tribunal made the following observations :
'Shri Nath for the companies had no objection to production of the balance sheets, etc., described at Sr. No. 1. He, however, said that the union has not filed an affidavit in support of its application and not given the reasons for which the other documents are required. The union representative said that pay rolls and other documents are needed to ascertain what high salaries and increments are given to officer and to get other relevant information. In my opinion, the documents and information detailed at Sr. Nos. 2 to 7 above are relevant in this adjudication. I, therefore, direct the four companies mentioned above to produce all the documents and information demanded in the application and described at Sr. No. 1 to 7'.
6. It is to be noticed that excepting for referring to the contention of the advocates for the petitioner that the union had not filed an affidavit in support of its application and not given the reasons for which the documents other than balance-sheets were required the Tribunal made no observations whatsoever as to the grounds or reasons which persuaded him that the documents at Serial Nos. 2 to 7 were relevant for the purpose of adjudication of bonus. The company by an application dated 31st July, 1972 filed what has been described as a review application for the order of the 12th July, 1972. By an order dated 16th October, 1972 the learned Tribunal decided to maintain its previous order passed on 12th July, 1972. In this order also, after noting that the company contended that the union's application was untenable because it was not supported by an affidavit stated : 'I have held that the union representative had shown how the documents were relevant and, therefore, I have directed the companies to produce the information.' In spite of the objection as to maintainability no affidavit was called for and the only basis on which the learned Tribunal decided to maintain its order dated 12th July, 1972 was stated in the following words :
'... It is useful to note that the workmen of these companies have demanded revision of their grades and scales of pay and dearness allowance and other benefits. In support of that the workmen want to show that the companies have been draining the amount by way of royalty, giving heavy advances to the various theatres and also giving high salaries to the officers ....'
It is on these facts that the petitioner-company has approached this Court by this Special Civil Application.
7. The first contention of Mr. Singhvi, the learned advocate for the petitioner, was that there was no proper application made by the union with the detailed information as to why the production of documents was sought, how the documents were relevant and what was expected to be proved. Mr. Singhvi also contended that without a supporting affidavit the application for production of documents was incompetent and the learned Tribunal had no jurisdiction to entertain the same or pass any order thereon. Mr. Singhvi further contended that it was settled law that the protection to be given to a party's documents must be the same as in the Civil Procedure Code and that there were two basic ingredients which had to be considered before an order for production of documents could be made. The first ingredient was, that the petitioner must be in possession of the documents and the second equally important one was that the document must be relevant. In other words, there must be a proper inquiry on the question of relevance before any order for production and inspection of documents can be made. Mr. Singhvi invited our attention to S. 11 of the Industrial Disputes Act and in particular to clause 3(b) thereof to show that the Industrial Tribunal had powers for compelling production of documents and that these powers were to be exercised in the same manner as those exercised by the Civil Court under Order 11 of the Code of Civil Procedure. For this proposition he relied on a judgment of the Madras High Court in Mettur Chemical and Industrial Corporation Ltd., v. Their Workmen, : (1955)ILLJ27Mad , in which the following observations occur :
'The combined effect of S. 11(3) of the Industrial Disputes Act, 1947, and Rule 21 of the Rules framed thereunder is to vest in the Industrial Tribunal, with reference to discovery, production and inspection of documents the same powers which the Civil Procedure Code vest in a civil Court when it tries civil suits. It is true that neither S. 11 of the Industrial Disputes Act, nor Rule 21, specifically provides for the application of all the provisions of the Civil Procedure Code governing the discovery, inspection and production of documents. All the same, considering what are the powers of an Industrial Tribunal to order inspection of documents, the deciding factor should be what are the power of a civil Court to order inspection. It is not an unlimited power or rather a power the exercise of which is limited only by the discretion of the judge, that even S. 30 of the Civil Procedure Code confers on the civil Court. The power conferred by S. 30, Civil Procedure Code, is specifically subjected to 'limitations and conditions as may be prescribed', that is, the conditions and limitations prescribed for instance by relevant rules in Order XI, Civil Procedure Code. The Industrial Tribunal must conform to the general principles that underlay the provisions in Order XI, Civil Procedure Code, governing the inspection of documents.'
'Under order XI, Rule 15, the right to seek inspection is confined to the documents referred to in the pleadings or affidavits of the party against whom that right can be claimed. Rule 18(1) of Order XI, Civil Procedure Code, provides for inspection of documents referred to in rule 15. Rule 18(2) of Order XI, Civil Procedure Code provides for inspection of documents other than those referred to in Rule 15. The conditions to be satisfied before the power under Rule 18(2) of Order XI, Civil Procedure Code, can be exercised are (1) there should be an affidavit to show the documents inspection of which is sought; (2) party who applied for the inspection of documents should establish that he is entitled to inspect them, and (3) the documents inspection of which is sought must be in the possession of the party against whom the order for inspection is sought. The need for affidavit, the first requirement, may at first sight appear to be a rule of procedure failure to conform to which may not affect the power of the Court to order inspection. But on examination of the classes of documents excluded from the purview of clause 2 of Rule 18 of Order XI, Civil Procedure Code, the need for an affidavit, becomes obvious. The second requirement mentioned above that the party applying for inspection must be entitled to inspect the documents, appears to be a condition full proof of which the Court must insist upon before ordering inspection of documents that fall within the scope of Rule 18(2) of the Order XI, Civil Procedure Code. Whether the right to inspect claimed in a given case is to be held established or not must of course depend on the circumstances of that case and it is neither desirable nor even possible to prepare an exhaustive list of cases that would amount to an established right.'
8. The Madras High Court in the same case also held that the exercise of power to order inspection before the applicant satisfies the condition with reference to the documents that come within the scope of Rule 18(2) or Order XI, Civil Procedure Code, would be a case of erroneous assumption of jurisdiction and not of erroneous exercise of jurisdiction. On this basis Mr. Singhvi argued that if it be found that the learned Tribunal has passed an order for production of documents without the necessary pre-conditions being satisfied than its order was liable to be set aside.
9. Mr. Singhvi also relied on a judgment of the Calcutta High Court in Burn & Co. v. Jitendra Nath Maitra, : AIR1956Cal592 , where it was held that until an affidavit of documents had been directed to be filed the Court would have no jurisdiction to order inspection. The High Court also held that 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.
10. Now, it is not really necessary to consider authorities for the proposition that before any Tribunal can order production and inspection of documents it must be satisfied as to the relevancy of the documents called for. In order to determine the relevancy, there must be material before the Tribunal. In order that there should be material before the Tribunal the applicant must place it before the Tribunal, and this he can do by setting out in the application the necessary facts, the necessary contentions as to the nature of the documents, the necessity for their productions, what kind of reliance he wishes to place thereon and what is the case which he wishes to make out.
11. Mr. Sowani, the learned counsel for the union, fairly conceded that the Tribunal could only order production of relevant documents. According to Mr. Sowani, the documents asked for were relevant and also, according to him, it was not necessary that there must in all cases be an affidavit to support an application for production of documents. Mr. Sowani also contended that balance-sheets were not sacrosanct, they did not prove themselves, evidence had to be let in support of proving the material in the balance-sheets and that the union was entitled to challenge the correctness of the balance-sheets and the items contained therein. In order to do so, however, Mr. Sowani and (and in order to prevent the union from making an improper challenge) it was necessary that the union should be supplied with the documents which would enable them to decide whether the financial position as contained in the balance-sheets should be challenged or not.
12. Now, in our view, it is settled position in law that a party to any litigation cannot be permitted to embark on a fishing or roving inquiry in the hope that some material will come to hand on the basis of which he can set out his case. We do not wish to say that in a proper case, after the necessary material is on record, the Tribunal cannot order production of relevant documents which would be necessary for the purpose of the adjudication. But before that can be done, it would be the duty of the party asking for production of documents to make out a case why it would be necessary for certain documents to be produced.
13. In the instant case it is obvious from a reading of the application for production of documents that apart from a vague and a somewhat peremptory statement that in the opinion of the union it would be necessary that the documents referred to be produced, there is no material on which any Tribunal could validly order production of the documents referred to. What is perhaps more illuminating is that the union has started that the production of these documents will 'throw sufficient light on the various aspects of the issues involved'. Mr. Sowani also in his able arguments sought to persuade us that the company should provide some enlightenment to the union so that a proper case was made. We are afraid that production of documents and inspection thereof cannot be permitted for such a purpose.
14. The learned counsel for both sides have taken us through the list of documents and in so far as it is sought by the union to obtain material to support their general allegation that the officers of the company are being given fabulous salaries and fabulous increments and superannuated officers are being retained (so that nothing will be left for the workmen), Mr. Sowani made a somewhat startling but fascinating contention that according to the new concepts and development of social justice it was open to the union to maintain that there must be some kind of parity between the officers and the workmen. We wish to express no opinion on this contention except to say that at the moment it appears somewhat startling but it is true that concepts of social justice do develop as time passes.
15. For the purpose of the instant case, however, we are unable to appreciate how any 'relativity' between officers and workmen can have any bearing on the financial capacity of the company in so far as it can never be open to the union on principle or equity to question the business judgment of the employer in employing officers and paying them whatever he considers to be proper. We think that there can be no dispute that in the matter of employment of officers, entering into contracts or making purchases or paying royalty the employer's judgment cannot be questioned by the union or the workmen.
16. Now, in so far as the financial capacity is concerned, no doubt the Tribunal will, on proper evidence and appraisal thereof, determine the question, but we have always felt that except in very rare cases financial capacity is a state of facts and not of a state of putative facts or what should be.
17. In the circumstances we feel that no purpose will be served in discussing the various items in the application for production of documents. The order of the learned Tribunal dated 16th October, 1972 as well as that of 12th July, 1972 is obviously without jurisdiction as not having been founded on any material and must, therefore, be set aside.
18. Before parting with the matter we think that it will be appropriate to state that even though filing an affidavit in support of the application for production of documents would be desirable in most cases, it would not mean that it must be necessarily filed in all cases except at the discretion of the Tribunal. What is more important is that any application for production of documents must contain all the necessary materials in order to enable the Tribunal to apply its mind, determine the relevancy of the documents and ascertain whether inspection should be allowed or not and then pass a proper order.
19. The petition is, therefore, allowed and the Rule made absolute with no order as to costs.