1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1076 OF 2008 The Retreat Unit of Makewaves Sea Resort Pvt.Ltd. .. Petitioner Versus Ramesh B. Walmiki .. Respondent Mr.V.P.Vaidya for petitioner Mr.Shukla for respondent. CORAM : S.C.DHARMADHIKARI, J. DATE : 17th June 2008 P.C. . Heard both sides. Mr.Shukla who appeared before this Court on earlier occasion had waived service for respondent. With their consent 2 petition was heard finally and was reserved for orders. Accordingly it has been placed today for orders. 2. The petition is directed against an interlocutory order passed by the learned Judge of the 2nd Labour Court, Mumbai dated 20th February 2008 in Complaint (ULP) No.273 of 2004. An application was made during the course of hearing of the complaint (U-8) by the respondent workman, upon which a reply was filed by the petitioner which was taken on record and marked as Exh.C-12. 3. The complaint is at the instance of the workman alleging unfair labour practice under M.R.T.U. and PULP Act, 1971. It is not necessary to make a detailed reference to the allegations in the complaint and the unfair labour practice alleged inasmuch as the controversy before the court below in the above 3 application was very limited. 4. Suffice it to state that the petitioner runs a hotel/lodging boarding business. The respondent was its employee. A show cause notice came to be issued to him on 2nd June 2004 alleging serious acts of misconduct. A explanation was given to the same in writing which was not found satisfactory and that is how the petitioner management appointed an enquiry officer. The Enquiry Officer submitted his findings on 17th June 2004. A show cause notice with regard to the proposed punishment was issued but there was no reply thereto. Accordingly, a dismissal order was passed on 5th July 2004. 5. Aggrieved by this action the above complaint is filed and the same is pending. Petitioner filed written statement denying all the allegations in the complaint. The labour court framed preliminary issues with regard to 4 fairness of the enquiry and perversity of the findings therein. It appears that on the preliminary issues, evidence was led on behalf of petitioners - original respondents. Witnesses were examined which included enquiry officer. The enquiry officer has deposed with regard to the conduct of the enquiry and the only deposition with regard to the controversy in the application referred to above and in this petition is to be found in para 3 of his examination in chief. The said para reads thus:- "3. I say that I have given my findings of the enquiry on 17th June 2004. My findings are based on material on record available before me in the enquiry. The Enquiry proceedings at page No.1 to 12 of Exh.C-8 is signed by me as well as the persons present in the enquiry. The documents produced before me in the enquiry are at pages 13 to 34 5 of Exh.C-8. My report and findings of enquiry are at pages 35 to 46 of Exh.C-8 are signed by me. The contents of the same are true." 6. It appears that this witness was offered for cross examination of the respondent workman and he was cross examined. His cross examination was conducted on two days and later on the same was concluded. The cross examination concluded on 18th February 2008. Prior thereto, the workman had stepped into the witness box. He filed his affidavit in lieu of examination in chief and was cross examined by the petitioner management. 7. After the enquiry officer’s evidence was concluded, the subject application was preferred which was numbered as Exh.U-8. The application reads thus:- 6 ". The undersigned considering that, perversity of the findings will be decided after fairness of enquiry, did not cross examine witness of the company on Findings. It is therefore prayed that witness may please be recalled to be crossed on the other issue i.e. Finding." 7. It appears that the respondent requested the Court that the enquiry officer could not be cross examined with regard to perversity of his findings and, therefore, the witness (enquiry officer) Mr.Vijay Kumar Thekedatt be recalled. This application was opposed and it was pointed out by the petitioner management that the enquiry officer was cross examined by the Advocate for respondent original complainant at length on 2 days i.e. on 12th December 2007 and 18th February 2008. The Advocate for the complainant completed the cross examination. The witness was 7 not re-examined and was discharged. Now, the present application is made as an after-thought Apart from the said application being vague, it was pointed out by the petitioner that the respondent has no right in law to seek recall of witness on the ground that his Advocate purportedly forgot to cross examine witness on some aspect of the controversy. Thus, there was a reply given in writing to this application, setting out various aspects including lack of any provision in the C.P.C. or other laws for recall of witness on such grounds. 8. The application was placed before the learned Judge, Second labour court and the learned Judge has observed that in the interest of justice, it is necessary to give opportunity to the workman to cross examine the witness i.e. the enquiry officer on the point whether his findings are perverse or not. With these observations and directing recall of the witness, 8 application came to be allowed. 9. The petitioner management preferred a Revision application to challenge that order and the revision application has been dismissed on 26th March 2008. The learned Member of the Industrial Court has upheld the order of the labour court on the ground that there is no illegality, irregularity or perversity in the same. It held that the order is passed in the interest of justice and the Court has complete authority to pass such an order. 10. Both sides have been heard extensively by me. Learned Advocate appearing on behalf of the respondent invited my attention to a judgement of Supreme Court in the case of Jeet Mohinder Singh Vs. Harminder Singh reported in 2004 (5) Supreme 651. That judgement was rendered in the context of an election petition. The election petition was pending and during pendency of the same, an 9 application for recall of witness was filed. considering the aspect of nomenclature of the application and the duty cast on court, the Supreme Court made following observations:- ". Though the nomenclature of an application is really not material and the substance is to be seen, yet it cannot be said that a party shall be permitted to indicate any provision and thereafter contend that the nomenclature should be ignored. Duty is cast on the parties to properly frame their applications and indicate the provisions of law applicable for making the application. Nomenclature may not be normally material. But there is a purpose in a clear and precise manner. Though it is the substance and not the form which is material but as indicated above, that cannot be a reason to quote 10 an inappropriate provision of law and then say "Don’t look at the nomenclature". The care and caution which is required to be taken cannot be diluted to absurd limits. The care and caution required to be observed while making an application in the highest court of the State are sadly missing in this case. Order XVIII Rule 17 deals with recall and examination of a witness and reads as follows:- ". The Court may at any stage of a suit recall any witness who has been examined and may subject to the law of evidence for the time being in force put such questions to him as the court thinks fit." "In The Municipal Corporation of Greater 11 Bombay Vs. Lala Pancham and Otrs. (AIR 1965 S.C. 1008) it was observed that it is not open to a court to compel a party to make a particular kind of pleading of to amend his pleading so also it is beyond its competence to virtually oblige a party to examine any particular witness. "7. In view of the accepted position that the application was not filed with care and caution and did not indicate the relevant provisions of law correctly, we think it would be proper to permit the appellant, if he so chooses, to file a fresh application in terms of Order XVIII Rule 17 of the Code and if any such application is filed, the same shall be considered on its own merits in accordance with law uninfluenced by the rejection of the application which was 12 styled as one under Order XVI Rule 3 of the Code. The appeal is allowed to the extent indicated with no order as to costs." 11. The learned Advocate for respondent does not dispute that Order 18 Rule 17 of C.P.C. stands deleted with effect from 1st July 2002. In such circumstances, no assistance could be derived therefrom. That apart, the decisions which are setting out well settled principles need not be referred. In the interest of justice, court’s power to recall a witness and put questions to him/her has not been in any manner diluted. The court in appropriate cases and in the interest of justice can exercise such powers of recall. 12. However, if the present application is perused, it is hopelessly vague. There are no reasons as to why witness is sought to be 13 recalled. The mistake of an Advocate apart, as to why the enquiry officer needs to be cross examined on the aspect of perversity of findings recorded by him in the enquiry report is something which has not been set out at all. The necessity for recall is thus not at all explained. This being the position, I called upon both sides to file a copy of the deposition of the enquiry officer. Accordingly, Mr.Vaidya appearing for petitioner has tendered a copy of the affidavit in lieu of examination in chief of the enquiry officer. Para 3 of the same has been reproduced by me hereinabove. 13. In my view, in the present case and facts peculiar thereto, there is no necessity of recalling enquiry officer and cross examine him on this aspect. The court has before it the enquiry report, all documents forming part of the enquiry and other records in relation thereto. Further, the enquiry report is also on record. 14 The issue of perversity of findings of the enquiry officer is something which can be decided on the basis of Arguments. In the peculiar facts of this case, it is not necessary to cross examine the enquiry officer on his deposition in chief reproduced above. Without any cross examination, it is open for the respondent workman to argue that Enquiry Officer’s findings are perverse. In support of that argument, the workman can invite the attention of the court below to the record of the enquiry. Equally the management can support the findings on the basis of the material before the enquiry officer and his report. There was no reason for the learned Judge of the second labour court to have passed any order recalling the witness. Without applying his mind to the deposition of the enquiry officer and contents of the application preferred by the applicant, the impugned order has been passed. The learned Member of the Industrial court in revision should have stepped 15 in and by issuing appropriate clarification set aside the order of the labour court. He has also failed in his duty in law. Apart from serious issues relating to maintainability of the application and the provisions enabling recall of witness, there were other aspects of equal importance. This can become a trend and precedent in cases before the labour court/industrial court where enquiry proceedings and orders of termination are impugned. Such orders cannot be passed as a matter of course. The courts below were required to apply their mind to all aspects including interest of justice before passing such orders. That being not done, these orders are required to be interfered with. They are accordingly interfered with by this Court under Article 226 of the Constitution of India for the aforesaid reasons. Rule is, therefore, made absolute in terms of prayer clause (a). 16 14. However, it is clarified that the respondent workman can argue with regard to both aspects viz., fairness of the enquiry and perversity of the findings recorded by the enquiry officer. For the purpose of his arguments on aspects of perversity of the findings, it would not be necessary for the workman concerned to recall witness/enquiry officer and to cross examine him. However, merely because he sought recall of the witness, which course was permitted by the courts below, but orders in that behalf having been set aside by this court, does not mean that the liberty granted by this Court cannot be availed by both sides. Arguments on perversity are kept open and should be canvassed on the basis of available material. With this clarification petition is allowed. No costs. 17 (S.C.Dharmadhikari, J)