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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.7724 OF 2009
Shakuntala Jagdish Ghengat,
age 37 years, occup. service,
r/of Jalgaon,Gurunanak Nagar,
Mamurabad road, ShaniPeth,
Jalgaon. Petitioner
vs
Municipal Corporation, Jalgaon,
through its Commssioner. Respondent
WITH WRIT PETITION NO.7725 of 2009
Digambar s/o Pitambar Sonwane,
age 40 years, occup. service,
r/o Sujade, post Bholane, Tq.
and District Jalgaon. Petitioner
vs
Municipal Corporation, Jalgaon,
through its Commssioner. Respondent
WITH WRIT PETITION NO.7726 of 2009
Ishwar Yaswant Chaudhari,
age 40 years, occup. service,
r/of Thorgavan, post Manwel,
Taluka Yawal, Dist. Jalgaon. Petitioner
vs
Municipal Corporation, Jalgaon,
through its Commssioner. Respondent
WITH WRIT PETITION NO.8294 of 2009
Dagadu Narayan Patil,
age 55 years, occup. Nil.,
r/of Old Asoda Road,
Gopal Pura, Jalgaon,
Tq. and Dist. Jalgaon. Petitioner
vs
Municipal Corporation, Jalgaon,
through its Commssioner. Respondent
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Shri L.V. Sangeet, Advocate for the Petitioners. Shri
P.R.Patil, Advocate, for Petitioners in Writ Petition Nos.
7724, 7725 and 7726 of 2009. Shri A.V. Patil, Advocate, for
petitioner in Writ Petition No. 8294 of 2009.
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Coram : Shrihari P.Davare, J.
Date : 15th September 2010.
ORAL JUDGMENT
01. Rule. Rule made returnable and with the
consent of learned counsel for the parties, petitions
are taken up for final hearing at admission stage.
02. By the present petitions filed under Articles
226 and 227 of the Constitution of India, the
Petitioners have challenged the orders dated 16.10.2009
passed by the Presiding Officer, Labour Court, Jalgaon
below applications dated 8.10.2009, at Exhs. U-19, U-19,
U-20 and U-29 in IDA Reference Nos.22/1998, 21/1998,
2/1999 and 18/1998 respectively filed by petitioners in
the respective writ petitions, thereby rejecting the
prayer of the applicants-writ petitioners to call the
deponent of the affidavit dated 6.10.2009 filed on
behalf of the Respondent, for cross examination.
03. For the purpose of convenience, facts of Writ
Petition No.7724 of 2009 are being referred to. The
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petitioner claims that he was in the service of the
Respondents on the post of sweeper in Health Department
from 1982 and completed 240 days in every year. However,
the Respondents terminated his services illegally and
hence, petitioner approached to the Labour Court,
Jalgaon, and filed the reference against the Respondent,
seeking continuation of service, permanency and back
wages, since no compensation as per Sec.25-F of the
Industrial Disputes Act,1947, was given to him and as
the Respondent allegedly committed unfair labour
practice.
04. Respondents appeared in the said Reference and
filed written statement denying the entire claim of the
petitioner.
05. Thereafter, the petitioner filed an
application before the Labour Court, on 8.10.2009,
praying for issuance of directions to the Respondent to
produce the record and give details of the relevant
record. It is the contention of the petitioner that the
learned Presiding Officer of the Labour Court, Jalgaon,
passed an order for production of the record. Pursuant
to that, the Deputy Commissioner of the Respondent filed
one line affidavit on 6.10.2009, that the petitioner
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never worked with the Respondent and, therefore, no
record was available with the respondent. Thereupon,
the petitioner filed an application on 8.10.2009 before
the learned Labour Court and prayed that the deponent
of the said affidavit dated 6.10.2009 filed on behalf of
the Respondent be called for the purpose of cross
examination. However, the learned Presiding Officer of
the Labour Court, Jalgaon, rejected the said
application, by order passed on 16.10.2009. Being
aggrieved and dissatisfied by the said order, the
petitioner has filed present petition and impugned the
said order and prayed for quashment thereof.
06. Shri L.V. Sangeet, learned Counsel for the
petitioners, canvassed that the affidavit filed by the
deponent on 6.10.2009 on behalf of the Respondent, was
as per the provisions of Order 19 Rule 1 of the Code of
Civil Procedure, 1908 and, therefore, the opportunity is
required to be given to the petitioners to cross examine
the deponent of the said affidavit, in accordance with
Rule 2 of Order 19 of the C.P.C. Learned Counsel Shri
Sangeet, also canvassed that the affidavit filed on
6.10.2009 on behalf of the Respondent may be read in
evidence, at the time of deciding the references and if
no opportunity is given to the petitioners herein to
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cross examine the said deponent, it may cause and lead
to injustice to the petitioners herein and, therefore,
it is necessary to call the said deponent of the
affidavit for the purpose of cross examination. Learned
Counsel Shri Sangeet also posed apprehension that, if
the Respondent chooses not to adduce any evidence, the
petitioners would not get opportunity to cross examine
the witnesses or the deponent and in that case, the
affidavit filed by the deponent on behalf of the
Respondent on 6.10.2009 would go uncontroverted in the
evidence and, hence, learned counsel urged that said
deponent is required to be called for cross examination.
07. Shri P.R. Patil, learned Counsel for the
Respondent-Corporation in first three petitions,
countered the said argument vehemently and submitted
that the affidavit filed by the deponent on behalf of
the Respondent on 6.10.2009 is not at all the affidavit
filed under Order 19 Rule 1 of the C.P.C., since there
is no order of the court in that respect. It is also
submitted that there is no application preferred by the
Respondent-Corporation for adducing evidence, and the
affidavit in question dated 6.10.2009 has not been
filed by the deponent on behalf of the Respondent in
pursuance of any application preferred by the Respondent
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and order passed thereon by the court and hence, the
said deponent cannot be called for any cross
examination, even under the provisions of Order 19 Rule
2 of the C.P.C.
08. Shri P.R.Patil, learned counsel for
Respondent, also canvassed that the deponent who filed
affidavit on behalf of Respondent cannot be construed as
“witness” and said affidavit, therefore, cannot be
treated as affidavit in evidence. Since it is not the
affidavit in lieu of examination-in-chief, petitioners
have no right to cross examine the said deponent of the
affidavit dated 6.10.2009, in view of the provisions of
Section 139 of the Indian Evidence Act.
09. Shri Patil, learned Counsel for the Respondent
also relied upon the provisions of Section 11(3) of the
Industrial Disputes Act, 1947, which reads as follows;
“11(3).
Procedure
and power of cociliationoffices, Boards, courts and Tribunals.-
(1)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(2)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(3)Every Board, Court, [Labour Court, Tribunal
and National Tribunal] shall have the same
powers as are vested in a Civil Court under
the Code of Civil Procedure, 1908 (5 of
1908), when trying a suit, in respect of the
following matters, namely,’::: Downloaded on – 09/06/2013 16:25:57 :::
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(a) enforcing the attendance of any
person and examining him on oath;
(b) compelling the production of
documents and material objects;
(c) issuing commission for the
examination of witnesses;
(d) in respect of such other matters as
may be prescribed;
Shri P.R.Patil, learned Counsel for the respondents,
submitted that the provisions of the C.P.C. are
applicable to the forums mentioned therein in respect of
the instances as specified therein.
10. Shri P.R. Patil, learned Counsel for the
Respondents also relied upon Section 1 of the Indian
Evidence Act, 1872 which reads as follows:
“Section (1). It extends to the whole of India
[except the State of Jammu and Kashmir] and
applies to all judicial proceedings in or
before any Court, including Courts-martial
[other than Courts-martial convened under the
Army Act (44 & 45 Vict., c.58)], [the NavalDiscipline Act (29 & 30 Vict., c.109) or [***]
the Indian Navy (Discipline Act, 1934 (34 of
1934) [or the Air Force Act (7 Geo.5, c.51],
but not to affidavits presented to any Court
or Officer, nor to proceedings before an
arbitrator; and it shall come into force on
the first day of September 1872.”
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11. After referring to Section 1 of the Indian
Evidence Act, 1872, Shri Patil, learned counsel for the
Respondent, submitted that the provisions of the
Evidence Act do not apply to the affidavits presented
to any court or officer, nor to the proceedings before
an arbitrator. He further submitted that Order 19 of the
C.P.C. is in respect of the power of the court to order
to prove any particular fact or facts by affidavit, or
that the affidavit of any witness may be read at the
hearing and further submitted that the provision of
Order 19 of the power of the Court to order to prove any
point by affidavit is carved out of Section 1 of the
Indian Evidence Act.
12. Accordingly learned Counsel Shri Patil urged
that the impugned order has been passed by the learned
Presiding Officer, School Tribunal, Jalgaon, rightly and
there is no perversity therein and therefore, no
interference is warranted in the same, under writ
jurisdiction.
13. Shri A.V.Patil, learned Counsel for
Respondent in Writ Petition No.8294/2009, adopted the
arguments advanced by Adv. Shri P.R.Patil, for
Respondent in other petitions.
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14. I have perused the contents of the petitions,
annexures thereto, as well as perused the impugned order
and considered the submissions advanced by the learned
counsel for the parties. It is apparent from the
impugned order itself that the petitioners herein have
adduced oral evidence by way of affidavit and the
learned Counsel for the Respondent cross examined them
and, thereafter, applications were preferred by the
petitioners for issuance of witness summonses which
were allowed, and accordingly, witness summonses were
issued to the witness of the Petitioner as prayed for.
At that juncture, an affidavit was filed by one
Mr.M.A.Pathan on 6.10.2009, on behalf of the Respondent-
Corporation in pursuance of the order passed by the
learned Labour Court, Jalgaon, to produce the documents
and thereafter the petitioners herein preferred
application dated 8.10.2009 to call the said deponent
for the cross examination. Hence, it is apparent that
even the evidence of the petitioner has not been
completed so far, and, therefore, the learned Judge of
the Labour Court rightly observed that the question does
not arise to call the deponent of the affidavit dated
6.10.2009 for cross examination as prayed for by the
present petitioner.
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15. Moreover, it is explicitly clear from the
affidavit dated 6.10.2009 filed by the deponent on
behalf of the Respondent that it is not the affidavit of
evidence filed in lieu of examination-in-chief and as
per Section 139 of the Indian Evidence Act, 1872, a
person summoned to produce the documents does not become
a witness and cannot be cross examined, unless and until
he is called as a witness.
16.
Besides that, the provisions of Order 19 Rule
1 of the C.P.C. do not come into picture, since the
Presiding Officer, Labour Court, Jalgaon, has not passed
any order to prove any fact by affidavit. Similarly, the
provisions of Order 19 Rule 2 of the C.P.C. also cannot
be attracted, since the respondent has not preferred any
application to lead the evidence and the affidavit in
question dated 6.10.2009 has not been filed in pursuance
of such application and, therefore, there is no
question of grant of any opportunity to the petitioners
to cross examine the deponent who has filed the
affidavit on behalf of the respondents in such
scenario.
17. In the circumstances, I am inclined to accept
the submissions advanced by learned Counsel for the
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Respondent and I am of the considered view that there is
no perversity in the impugned order dated 16.10.2009
passed by the Presiding Officer, Labour Court, Jalgaon
and this is not the fit case to interfere therein, under
the extra-ordinary writ jurisdiction and, therefore,
present petitions deserve to be rejected.
18. In the result, present petitions being sans merits,
stand dismissed. Rule stands discharged.
(SHRIHARI P. DAVARE, J.)
pnd/wp7724.09
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