1 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 2 ------------------------------------------------------------- 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. ------------------------------------------------------------- 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 3 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 4 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 5 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 6 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 cociliation offices, 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,' 7 (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 Naval Discipline 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." 8 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. 9 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. 10 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 11 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