Remio A. Rodrigues v. Goa Glass Fibre Ltd. - (High Court of Bombay) (28 Apr 2017)

Tribunal has power to recall witness on ground of mistake of an Advocate

MANU/MH/0819/2017

Labour and Industrial

Challenge in present petition is to order, by which learned Presiding Officer of Industrial Tribunal dismissed Petitioner's application for recall of a witness for purpose of cross-examination. It is submitted that under Section 11(3) of Industrial Disputes Act, 1947, Tribunal has power to recall a witness.

Application for recall is required to be allowed in peculiar facts and circumstances of present case. Division Bench of Madhya Pradesh High Court in case of Karam Chand Thapar and Brothers (Pvt.) Ltd., has held that, Sub-section (3) of Section 11 of said Act confers upon Tribunal same powers as are vested in a Civil Court under Civil Procedure Code in matter of enforcing the attendance of a person and examining him on oath. This power includes power to recall a witness.

Blanket proposition in impugned order that, mistake of an Advocate can never be a ground for recall of witness, cannot be accepted. Presiding Officer of Industrial Tribunal is right that, power of recall must be sparingly exercised and that too for a good reason. In case of Jodhpur Gums & Chemicals Pvt. Ltd. v. Punjab National Bank and others, power of recall of a witness was exercised, where there was an oversight of Advocate of Plaintiff in matter of full and complete examination of witness.

In facts of present case, all that Petitioner, through his Advocate seeks to do, is to cross-examine witness as regards authority to take action against employees. The witness in present case had submitted that, he had necessary authority. It was pointed out that, factum of making of such statement escaped her and, therefore, no questions were posed as regards this aspect. Only a general suggestion was put to witness that, he lacks the authority. In a situation of this nature, fact that Petitioner is a workman, who is pitted against employer Company, an additional opportunity, as applied for by Petitioner, was required to be granted. Impugned order nowhere states that, cross-examination on this point would be irrelevant or impermissible. Impugned order proceeds on basis that, Tribunal has no power to recall and in any case, power to recall cannot be exercised on ground of mistake of Advocate for Petitioner. Both these grounds, appear to be widely stated and, therefore, cannot be accepted as a rule. Therefore, in facts and circumstances of present case, impugned order is set aside. Petitioner's application for recall of witness for limited cross-examination, as indicated in application for recall is allowed.

Relevant : Karam Chand Thapar and Bros. (Private), Ltd. vs. Workmen of North Chirimiri Colliery and Ors. MANU/MP/0094/1967; Jodhpur Gums & Chemicals Pvt. Ltd. vs. Punjab National Bank and Ors. MANU/RH/0173/1999

Tags : CROSS-EXAMINATION RECALL WITNESS