:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8696 OF 2007 Chief Executive Officer Zilla Parishad Kolhapur ..Petitioner Vs. Shantaram Ganapati Patil ..Respondent Mr. S.R. Nargolkar for petitioner. Mr. M.S. Topkar for respondent. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. Date : March 17, 2008. Date : March 17, 2008. Date : March 17, 2008. P.C.: P.C.: P.C.: 1. Heard Mr. Nargolkar the learned counsel for the petitioner - Zilla Parishad. 2. Rule. Mr. Topkar waives service for the respondent. 3. By consent of the parties, petition is taken up for final hearing forthwith. 4. The respondent - complainant was employed on :2: 2/5/1990 as a driver and against the quota reserved for the wards of the freedom fighter. He was issued order of termination on 28/10/1991 and the same order was challenged in Complaint (ULP) No. 293 of 1991. As per the order passed by the Labour Court in the said complaint he was reinstated on 21/9/1992. However, enquiry was instituted by the Zilla Parishad against the complainant on the charges that he had obtained the employment by furnishing a fabricated claim that he is the family member of the freedom fighter and ultimately he was served with an order of dismissal dated 27/4/1994. He challenged the said order in Complaint (ULP) No. 91 of 1994. The onus of proving that the complainant got employment by false representation and, therefore he was issued with an order of dismissal dated 27/4/1994, is on the Zilla Parishad. It examined one of its officers as the first witness. In addition, it wanted to examine Shri Dhondiram Sidhram Patekar, the freedom fighter concerned, as an additional witness. His affidavit by way of examination-in-chief was placed on record and the same was opposed by filing an application at Exh.U-75. The same application was rejected by the :3: Labour Court on 5/8/2005. The complainant challenged the said order in Revision Application (ULP) No. 132 of 2005 and the learned Member of the Industrial Court was pleased to allow the revision application on 22/8/2007. The Zilla Parishad is estopped from adducing any evidence in rebuttal as there is no prayer of any nature in the written statement or even subsequently also. Hence this petition. 5. In his affidavit, by way of examination-in-chief, Shri Dhondiram Sidhram Patekar has clearly stated that he appeared before the Collector on 13/7/1994, his oral statement was recorded and he stated before the Labour Court that on 9/8/1988 the complainant had got an affidavit made from him and on the pretext that the Co-operative Society was to be started in the village. The relationship, as explained between the parties and which is not in dispute, clearly goes to show that the complainant is not a family member of Shri Dhondiram Sidhram Patekar. On the said affidavit, Shri Patekar is required to be cross-examined by the complainant. In the additional Written Statement at Exh.4-C it is :4: clearly stated in para 5 that the service of the complainant was not terminated on the basis of misconduct but it was based on the report received that the complainant was not a family member of the freedom fighter - Shri Patekar and, therefore, it was necessary to examine said Shri Patekar. The reasoning given by the Industrial Court regarding rebuttal cannot be accepted. The Zilla Parishad has clearly stated that the order of termination passed on the second occasion was based on an enquiry made, which went to show that the complainant was not a family member of the freedom fighter Shri Patekar. Hence, it is necessary that Shri Patekar is allowed to be examined as an additional witness of the Zilla Parishad. The reasoning given by the Industrial Court to quash the order passed by the Labour Court is unsustainable and, therefore, this petition must succeed. 6. Hence, the petition is allowed. The impugned order passed by the Industrial Court is hereby quashed and set aside and Revision Application (ULP) No. 132 of 2005 stands dismissed. Shri Dhondiram Sidhram Patekar shall be produced as a witness of the :5: petitioner - Zilla Parishad within three weeks before the Labour Court and recording of his evidence shall be completed by 31st April, 2008. Additional evidence, if any, by the complainant may be completed by 31st June, 2008 and the complaint be decided preferably by 31st July, 2008. 7. Rule is made absolute accordingly with no order as to costs. (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)