1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6943 OF 2008 Rajesh Parshuram Salvi ..Petitioner. Vs. M/s. ION Exchange (India) Ltd. ..Respondent. .... Mr. S.N. Deshpande for the Petitioner. Mr. P.C. Pavaskar for the Respondent. .... CORAM: DR. D.Y. CHANDRACHUD, J. 14th October, 2008. P.C. : 1. Rule, made returnable forthwith. Counsel appearing for the Respondent waives service. By consent of the learned counsel, taken up for hearing and final disposal. 2. By an order dated 30th October, 2004 the Labour Court allowed an application taken out by the Petitioner for permitting him to be re-examined with reference to certain documents which were produced along with the list at Exhibit 9. The grievance of the Petitioner is that on 13th October, 2005 when the re-examination was sought to be carried out, the management objected as a result of which the re-examination could be confined only to the 2 documents at Sr. No.1 of Exhibit 9. This grievance was placed on the record in an application dated 17th March, 2006 which was filed before the Labour Court by the Petitioner. The Labour Court dismissed the application which was taken out by the Petitioner for being allowed to be re-examined on all the other documents at Exhibit 9 and in the event that the employer did not admit those documents for the issuance of witness summons to the authors of the documents. The Industrial Court confirmed the order in revision. Counsel appearing for the Petitioner submitted that by the order dated 30th October, 2004 he has already been permitted to be re-examined with reference to the documents at Exhibit 9. The aforesaid order has not been challenged by the employer. It was submitted that the Petitioner had placed his grievance on the record regarding the denial of an opportunity to him to be re- examined with reference to all the documents at Exhibit 9. In the circumstances, it was submitted that there is no reason why the Petitioner should not be permitted to do so. 3. On the other hand it has been submitted on behalf of the management that by seeking a re-examination with reference to the documents at Exhibit 9, the Petitioner is only seeking to 3 explain away several admissions which have occurred during the course of the cross examination. 4. At this stage, the admitted position on the record is that the interim order dated 30th October, 2004 passed by the Labour Court allowing re-examination with reference to the documents at Exhibit 9 continues to hold the field. The employer has not challenged the order. Hence, it would not be open to the employer at the present stage to contend that the effect of the aforesaid order would be to allow the workman to explain away certain admissions in the course of the cross examination. The employer was at liberty to challenge the order dated 30th October, 2004, but has not done so until date. Consequently for the purpose of these proceedings, the order of the Labour Court dated 30th October, 2004 may be regarded as continuing to subsist. The record before the Court shows that the workman has not been re-examined with reference to all the documents contained in the list at Exhibit 9. The grievance of the workman was that it was as a result of the objection of the employer that he was prevented from completing the re-examination. At this stage, it is not necessary for the Court to go into that aspect of the matter save and except to observe that once the Labour Court came to the conclusion that re-examination 4 was necessary, there was no reason or justification as to why the order dated 30th October, 2004 should not be taken to its logical conclusion. Counsel appearing for the employer has stated before the Court that the employer does not admit any of the documents in the list at Exhibit 9. If that be so, it is obviously for the workman to prove the documents in question and it would be open to the Labour Court to determine as to whether the disputed documents have been proved in accordance with law. That is a matter for the Labour Court to decide. At this stage, the Labour Court having permitted the Petitioner by its order dated 30th October, 2004 to be re-examined on the basis of those documents, it is evident that the documents in question will still have to be proved. There is no reason why in the interest of justice, the Petitioner should not be permitted to have an opportunity to do so particularly when there is some merit in the submission that the exclusion of the aforesaid documentary material may seriously result in the miscarriage of justice. 5. In the circumstances, this Petition is disposed of with the following directions : 5 i) Parties shall appear before the Labour Court at Thane in complaint (ULP) 102 of 2001 for receiving directions on 10th November, 2008; ii) The Labour Court shall fix an early date consistent with the exigencies of its own work for completing the process of re- examination in respect of the documents at Exhibit 9 in pursuance of the order passed on 30th October, 2004; iii) The Labour Court, it is clarified shall determine whether the documents at Exhibit 9 have been duly proved by the workman in accordance with law. The request made by the workman, in the alternative, for the issuance of witness summons shall be dealt with and disposed of by the Labour Court after hearing the parties; iv) The impugned orders passed by the Labour Court and by the Industrial Court shall stand modified to the aforesaid extent. Rule is made absolute accordingly. There shall be no order as to costs. ***** 6