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Ganesh Kumar v/s Messrs Fashion Team & Others

    W.P.(C) 5579 of 2003

    Decided On, 22 February 2005

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE MUKUL MUDGAL

    For the Appearing Parties: Satish Kumar, Deepak Tyagi, Advocates.



Judgment Text

Mukul Mudgal, J.


1. Rule. With the consent of the learned counsel for the parties, the writ petition is taken up for hearing.


2.The dispute between the parties was referred for adjudication to the following effect:-


"Whether the services of Shri Ganesh have been terminated illegally and/or unjustifiably by the management, and if so, to what relief is he entitled and what directions are necessary in this respect?"


3. This writ petition challenges the impugned award dated 30th April, 2003 which proceeded on the basis of the workman has not produced him for cross-examination and disregarded the affidavit and oral examination in chief, and held that the workman was not entitled to relief and dismissed the statement of claim.


4. The rationale behind the impugned award of the Labour Court dated 30th April, 2003 is to be discerned from paragraphs No. 7 and 8 which read as under:-


"7. After framing of the issues case was fixed for workman evidence and he filed his affidavit on 29.1.99 and his oral statement was recorded as WW1 on the said date and since then the case was fixed for cross examination of the workman for 9/1/01, 155/01, 8/11/02, 22/01/02, 27/3/02, 14/5/02, 9/7/02, 8/11/02 and lastly for 1/4/03.


8. The record thus shows that several opportunities have been given to the workman for his cross examination but the workman did not produce himself for cross-examination by the authorised representative of the management and moreover, none appeared on behalf of the management on 1/3/03. Since several opportunities have given to the workman for leading his evidence and ultimately on account of absence of the workman evidence of the workman was closed vide order dated 1/4/03. As the workman has failed to produce himself for cross examination and the evidence of the workman was closed, he management representative also closed the evidence of the management."


5. It is not in dispute that while some adjournments were taken by the workman, the labour court has wrongly recorded a finding that on 9 dates, the matter was fixed for recording the cross-examination as noted above in paragraph 7. A perusal of the order sheets reveals that this is not correct and even on perusal of the order sheets it appears that the matter was fixed for cross examination only on 1st April, 2003 and 15th May, 2001. Thus there is clear error apparent on the face of the record as the Labour Court has appeared to be swayed by premise of 9 adjournments by the workman for cross-examination not brought out from the perusal of the record of the case. Accordingly, the impugned award which discloses an error apparent which is the basis of the award, is set aside and the matter is remanded back to the Labour Court No. IX for consid

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eration afresh. 6. The parties to appear before the Labour Court No. IX on 16th May, 2005. No adjournment shall be sought by the petitioner before the Labour Court for his cross examination. 7. The writ petition and all pending applications stand disposed of with the above directions.
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