IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 12070 of 2008. Date of Decision : April 27, 2009. Pushp Profiles Pvt. Ltd., Rewari. ....... Petitioner. Versus. The Presiding Officer, Industrial Tribunal-cum-Labour Court-I, Gurgaon, and another. ....... Respondents. CORAM:HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. Pawan Kumar Mutneja, Advocate, for the petitioner. None for the respondent No. 2. AUGUSTINE GEORGE MASIH, J. (ORAL). In the present writ petition, the challenge is to the award dated 11.04.2008 (Annexure-P-8), vide which the reference has been answered in favour of the workman, holding him entitled to reinstatement in service with continuity and back wages to the extent of 30% on the basis of last draw salary. Counsel for the petitioner contends that the assertion and the evidence of Shri Sunil Kumar Nischal, who has appeared as M.W.-2, has not been taken into consideration by the Labour Court only on the ground that though his examination-in-chief was recorded and his cross-examination was deferred but he did not make himself available for cross-examination. He contends that if the examination-in-chief as recorded of Shri Sunil Kumar Nischal and the documentary evidence produced alongwith the same, is taken into consideration, the findings which have been recorded by the Labour C.W.P. No. 12070 of 2008. Court, could not have been the same. He contends that the award, therefore, deserves to be set aside. He further contends that the examination-in-chief of Shri Sunil Kumar Nischal, M.W.2 was recorded on 27.02.2004 when his cross- examination was deferred. The next date was fixed for 27.08.2004. On the said date, M.W. 2-Shri Sunil Kumar Nischal was present for his cross- examination with the records. A request on behalf of Mr. Tyagi, who was the authorised representative of the workman, was made on the ground that he was away to Chandigarh to appear in the High Court and accordingly the hearing of the case was deferred to 27.05.2005. The cross-examination of M.W.2 was also deferred for the said date. On 27.05.2005, two orders were passed by the Labour Court. The first order states that Shri Sunil Kumar Nischal is present with the records for cross-examination and both the authorised representatives requested for an adjournment as similar case was fixed for 26.08.2005 and also Mr. Moudgil, authorised representative of the management had to leave the Court as he has received an urgent message. The case was adjourned to 26.08.2005 for cross-examination of M.W.2-Shri Sunil Kumar Nischal. On the same date, another order was recorded which states that the management witness is not present for cross-examination. The reference was an old one and various opportunities have been granted including last opportunity of 27.05.2005. Further prayer for an adjournment was therefore rejected and the evidence of the management was closed by this order. Counsel for the petitioner on this basis contends that there are two contradictory orders passed by the Labour Court. The first order says that the management witness who was to be cross-examined was present in -2- C.W.P. No. 12070 of 2008. the Court and the second order of even date says, he is not present. He therefore, contends that this order, it appears, has been passed under some mistaken belief, leading to the situation where the management was unable to conclude its evidence. He, therefore, contends that the impugned award be set aside and the management be granted one last opportunity to produce M.W.2-Shri Sunil Kumar Nischal for cross-examination so that equal opportunity be given to the management to prove its side of stand. None has put in appearance on behalf of respondent No. 2- workman despite service. On 16.02.2009, this Court had called for the records of the Labour Court. The said records has been received in the Court. I have gone through the records of the Labour Court and find that an assertion made by counsel for the petitioner with regard to two distinct orders passed by the Labour Court on 27.05.2005, are available on the records. The said orders read as follow :- “Present:- As above. M.W. namely Sunil Kumar is present with record for cross-exam. Both ARs request adj. submitting similar cases are fixed on 26.08.2005 and also Mr. Mudgil has to leave the Court due urgent message received just now. On request to come up 26.08.2005 for cross-exam. of MW Sunil. Sd/- 27.5.05. Present:- Shri Karan Singh, A.R. for the Workman. Shri R.P. Mudgil, A.R. for Mgt. M.W. is not present for cross-examination. This is an old reference and Mgt has been granted numerous opportunities including last opportunity on 27.05.2005. Adjournment opposed. In such circumstances, no ground for further adjournment is justified and hence, the evidence of the mgt. is closed. To come up on 26.08.05 for evidence of the petitioner. Sd/- P.O.L.C./27.5.05.” -3- C.W.P. No. 12070 of 2008. Perusal of the above orders leave no doubt that the management witness was present with records for cross-examination. The case was adjourned to 26.08.2005 on the request of both the authorised representatives. The second order of the even date is totally contrary to the earlier order passed. The said order, therefore, cannot be sustained which is not as per the records. The evidence which has been produced by Shri Sunil Kumar Nischal-M.W.2 in his examination in chief has not been taken into consideration because of the order passed by the Labour Court wherein the evidence of the management was closed on mistaken belief. It would be just and equitable that an opportunity be granted to the management to conclude its evidence and produce Shri Sunil Kumar Nischal-M.W.2 before the Labour Court for cross-examination. In this view of the matter, the impugned award dated 11.04.2008 (Annexure-P-8), passed by the Industrial Tribunal-cum-Labour Court-I, Gurgaon, is hereby set aside. The matter is remanded back to the Industrial Tribunal-cum-Labour Court-I, Gurgaon, for fresh adjudication. A direction is issued to the Labour Court to give one effective opportunity to the management to produce Shri Sunil Kumar Nischal-M.W.2 for cross-examination alongwith the records. The writ petition stands disposed of with the above observations. Records of the Industrial Tribunal-cum-Labour Court-I, Gurgaon, be returned within a period of two weeks from today. (AUGUSTINE GEORGE MASIH) JUDGE April 27, 2009. sjks. -4-