Allowed

The Retreat Union of Makewaves Sea Resort Pvt. Ltd. v. Ramesh B. Walmiki

Bombay HC17 Jun 2008WP/1076/2008

Case brief

AI extract

What is this about?

The High Court exercised writ jurisdiction to set aside an interlocutory order recalling an enquiry officer for cross-examination. The Court held that perversity of findings could be argued on record evidence without recall, noting the lower courts erred failing to apply their mind to legal requirements.

What did the court decide?

Order recalling the enquiry officer set aside. Petitioner free to argue perversity of findings without recalling witness. Rule made absolute.

The Retreat Union of Makewaves Sea Resort Pvt… — Labour and Industrial Disputes | Bombay HC (2008)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO.1076 OF 2008

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The Retreat Unit of Makewaves

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Sea Resort Pvt.Ltd.

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.. Petitioner

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Versus

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Ramesh B. Walmiki

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.. Respondent

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Mr.V.P.Vaidya for petitioner

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Mr.Shukla for respondent.

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CORAM :S.C.DHARMADHIKARI, J.
DATE:17th June 2008

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P.C.

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.Heard both sides. Mr.Shukla who appeared
before this Court on earlier occasion had waived
service for respondent. With their consent

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petition was heard finally and was reserved for
orders. Accordingly it has been placed today for
orders.

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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.

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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

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application was very limited.

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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.

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5.Aggrieved by this action the above

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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

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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:-

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"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

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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."

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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.

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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:-

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".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."

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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

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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.

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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,

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application came to be allowed.

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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.

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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

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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:-

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".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

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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:-

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".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."

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"In The Municipal Corporation of Greater

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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.

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"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

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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."

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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.

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12.However, if the present application is
perused, it is hopelessly vague. There are no
reasons as to why witness is sought to be

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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.

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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.

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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

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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).

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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.

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(S.C.Dharmadhikari, J)

The Retreat Union of Makewaves Sea Resort Pvt. Ltd. v. Ramesh B. Walmiki

Case brief

What is this about?

What did the court decide?

The Retreat Union of Makewaves Sea Resort Pvt. Ltd. v. Ramesh B. Walmiki

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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