- (1.) Re: C.A.N. 8411 of 2018 (Application for condonation of delay) M.A.T. 923 of 2018 is barred by 246 days' delay. C.A.N. 8411 of 2018 is an application under Section 5 of the Limitation Act seeking condonation of delay in presentation of the appeal. We have heard learned advocates for the parties. Cause shown is sufficient. Delay in presentation of the appeal is condoned. C.A.N. 8411 of 2018 stands allowed. Register the appeal, if it is otherwise in form. Re: M.A.T. 923 of 2018 This intra-court writ appeal is directed against a judgment and order dated 30th August, 2017 passed by a learned Judge of this Court dismissing W. P. 17974 (W) of 2017. In such writ petition, which was at the instance of the appellant, the appellant had challenged an award dated 28th March, 2017 passed by the learned Judge of the Second Labour Court, Kolkata in Case No. 8 of 2013 under Section 2-A (2) of the Industrial Disputes Act, 1947. The learned Judge, however, proceeded to record the submission of Mr. Rakshit, learned advocate appearing for the petitioner before His Lordship that the principal challenge was against two orders passed by the Labour Court bearing Order No. 47 dated 23rd February, 2017 and Order No. 49 dated 27th February, 2017, whereby prayers for adjournment made on its behalf had been rejected. His Lordship discussed in detail as to why Order Nos. 47 and 49 dated 23rd February, 2017 and 27th February, 2017, respectively, did not merit interference. Thereafter, His Lordship proceeded to consider the matter on merits and found absolutely no reason to interfere with the award of the Labour Court. His Lordship recorded a finding of fact that the Labour Court had followed the evidence and had approached the issue from the correct legal perspective, the burden of proof had been rightly placed and also that the legal tests applied were just and proper. The award was, accordingly, upheld. C.A.N. 8414 of 2018 is an application for stay in the appeal. While hearing the application for stay on the previous occasion, we considered it just and proper to requisition the records of Case No. 11 of 2013 from the Labour Court, to satisfy our conscience as to whether the Labour Court was right in its observation that several opportunities had been extended by it to the appellant to cross-examine the workman (PW1) as well as to produce its own evidence, yet, the appellant did not avail of such opportunities for which cross-examination of PW1 was closed by Order No. 45 dated 9th February, 2017 and evidence of the appellant was also closed by Order No. 46 dated 13th February, 2017. Having perused the orders passed from time to time by the Labour Court, we find no reason to take any exception thereto.
(2.) By Order No. 47 dated 23rd February, 2017, the Labour Court had fixed the case for argument, when the advocate appearing for the appellant had prayed for an adjournment on the ground that one of his close relations had suffered a heart-attack. Such prayer was opposed by the learned advocate for the workman. The tribunal held the nature of explanation offered for seeking adjournment to be flimsy and proceeded to reject the prayer, with a direction upon the parties to get ready at once for advancing argument. Later, by Order No. 48 of even date, the written argument submitted by the learned advocate for the workman was taken on record and 27th February, 2017 was fixed for the reply of the appellant. Order No. 49 dated 27th February, 2017 proceeded to record the submission of the appellant that "the cross- examination of the workman as fixed on 23.02.2017 could not be completed due to bypass surgery of his Son-in-law. So another opportunity may kindly be given allowing the O.P. company to cross-examine the witness". Upon hearing such submission, the Labour Court considered the materials on record and found that vide order dated 9th February, 2017, cross-examination of PW1 was closed after giving several opportunities and that the evidence of the appellant was also closed by Order No. 46 dated 13th February, 2017. In such a situation, the Labour Court found absolutely no justification to allow the prayer of the appellant to cross-examine PW1 and rejected the prayer. It was also recorded that the petition for adjournment had not been verified by the authorized person on behalf of the appellant. Learned advocate for the appellant was directed to get ready to reply to the argument advanced by the learned advocate for the workman at once. Later, Order No. 50 of even date was passed recording that a petition seeking adjournment was once again filed by the appellant asking for opportunity to file a written argument. In the interest of justice, the prayer was allowed and 7th March, 2017 was fixed for hearing the argument in reply. Order No. 51 dated 7th March, 2017 went on to record that the advocate for the appellant had argued in part and 17th March, 2017 was fixed for further argument on its behalf. On 17th March, 2017, the advocate for the appellant once again prayed for an adjournment on the ground that the appellant intended to challenge Order Nos. 46 and 48 before this Court and that, hearing of the matter may be kept in abeyance till the final disposal of the cases by this Court.
(3.) The prayer of the appellant, no doubt, was unusual. Even without filing any proceeding before this Court, a prayer for adjournment had been made so that the matter before the Labour Court is kept in abeyance till such time the proceeding is concluded in this Court. We are more than satisfied that the Labour Court by Order No. 52 dated 17th March, 2017 was justified in rejecting such unusual prayer for adjournment, which was made after argument in part was advanced by the advocate for the appellant on 7th March, 2017. It, therefore, proceeded to reject the prayer for adjournment. Later, Order No. 53 of even date, recorded the submission of the advocate for the appellant that he would not advance any argument in this case; hence, argument on behalf of the appellant was closed and 27th March, 2017 was fixed for passing the award. By the award dated 28th March, 2017, the tribunal proceeded to order as follows :- "Hence, it is Ordered That the written statement U/s. 2A(2) of the Industrial Disputes Act, 1947 filed by the applicant is allowed on contest without cost. The applicant is entitled to get reinstatement with back wages and other consequential benefits, since the termination of service dated 10.07.2012. The O.P. company is hereby directed to pay the back wages along with consequential benefits to the applicant within the period of 90 (ninety) days from the date of passing of this award, in default, he is entitled to put the award in execution." We have perused the award and find no reason to interfere therewith in the exercise of appellate powers. The Labour Court rightly proceeded to accept the uncontroverted testimony of the workman. There being no counter-evidence produced by the appellant, conclusions were rightly drawn by the Labour Court that there was no ground to disbelieve the version of the workman. That apart, the tribunal returned a finding of fact that at the relevant period of time, the workman's salary was Rs.5,376/- and that since termination of service he had not been gainfully employed elsewhere. On the basis of oral and documentary evidence adduced by the workman, the Labour Court also recorded a finding that the workman was a regular employee under the appellant and that his service was terminated by way of refusal to employ him on and from 10th July, 2012; therefore, the order of termination was illegal and in violation of statutory provisions of law. ;