Narasimhamurthy K. and Others vs Quality Industries

S. Abdul Nazeer, J—This writ petition is directed against the order dated 27.11.2013 in Application No. 19/2010 on the file of the Presiding Officer, III Addl. Labour Court, Bangalore.

The petitioners herein are the applicants before the Labour Court. They are the children of Narasimhamurthy K. Narasimhamurthy K was working in the establishment of the respondent as an Operator. He expired on 2.11.2009. The original applicant-Smt. Manjula, wife of Narasimhamurthy K. filed an application before the Labour Court seeking payment of statutory benefits payable to Narasimhamurthy K. in a total sum of Rs. 1,91,076/- along with interest.

Though notice was served on the respondent, it did not appear before the Labour Court. It was placed ex-parte and an order was passed by the Labour Court on 5.4.2011 directing the respondent to pay a sum of Rs. 1,17,836/- with interest.

The respondent filed an application-I.A. No. III before the Labour Court for recalling of the said order. The application was allowed on 25.2.2013 and the ex-parte order was set aside and the respondent was permitted to proceed with the case. In the meantime, the original applicant died and her legal representatives were brought on record. On 31.5.2013, the learned Counsel for the applicants submitted that the evidence of the original applicant has been let in. Hence, no further evidence is necessary on behalf of the applicants. Accordingly, the matter was posted for evidence of the respondent. On 12.7.2013, the respondent let in its evidence. The Labour Court has rejected the application of the petitioners No. 19/2010 on the ground that the original applicant, who had filed her evidence by way of affidavit was not available for cross-examination.

Learned Counsel for the petitioners submits that after placing the respondent ex-parte, the evidence of the original applicant by way of affidavit was produced before the Labour Court, on the basis of which, the Labour Court directed the respondent to pay a sum of Rs. 1,17,836/- with interest to the petitioners. This order was recalled on 25.2.2013. Since the evidence of the original applicant was already on record, no further evidence was let in by the petitioners. The respondent has not sought for expunction of her evidence. The Labour Court therefore was not justified in ignoring her evidence. It is argued that the said evidence does not render inadmissible merely because she was not cross-examined.

On the other hand, learned Counsel appearing for the respondent has sought to justify the impugned order.

Having heard the learned Counsel for the parties, the question for consideration is whether the Labour Court is justified in discarding the evidence of the original applicant in its entirety on the ground that she was not available for cross-examination?

In Alla Dia v. Emperor, AIR 1929 Lahore 840(1) , the Lahore High Court has held that evidence of witnesses not cross examined is admissible but weight to be attached to it depends upon circumstances of each case.

In Ahmad Ali v. Joti Prasad - AIR 1944 Allahabad 189, the Allahabad High Court held that the evidence of the witness dying before cross examination does not become inadmissible.

In Food Inspector Vs. James N.T. and Another, (1998) CriLJ 3494 : (1998) 2 ILR (Ker) 190 , the Kerala High Court has held that the evidence of a witness who could not be subjected to cross examination due to his death before he could be cross examined, is admissible in evidence, though the evidentiary value will depend upon the facts and circumstances of the case.

In Dever Park Builders Pvt. Ltd. and Others Vs. Smt. Madhuri Jalan and Others, AIR 2003 Cal 55 : AIR 2002 Cal 281 : (2002) 2 ILR (Cal) 328 , the Calcutta High Court has held that there is no provision under law that if witness is not cross-examined either in full or part his evidence would be absolutely rendered inadmissible. How much weight shall be attached should be decided considering other facts and circumstances surrounding it.

In the instant case, the respondent was placed ex-parte. The examination in chief of the original applicant in the form of affidavit was produced before the Labour Court. She was not cross-examined. The ex-parte order was set aside and the application was restored at the instance of the respondent. Thereafter, the original applicant died and her legal representatives were brought on record. Respondent has not sought for expunction of the evidence of the deceased applicant. On the contrary, the respondent has let in its evidence and documents have also been marked. In the circumstances, the Labour Court is not right in holding that the entire evidence of the deceased applicant was inadmissible. The Labour Court ought to have decided as to how much weight can be attached to the evidence of the original applicant considering the facts and circumstances of the case while considering the merits of the case. The Labour Court was not justified in rejecting the application on the ground that the original applicant, who had filed her evidence by way of affidavit was not available for cross-examination. I am of the view that the Labour Court has to reconsider the matter.

In the result, the writ petition succeeds and it is accordingly allowed in part. The order dated 27.11.2013 in Application No. 19/2010 is hereby quashed. The matter is remitted back to the Labour Court for fresh disposal in accordance with law and in the light of the observations made above. Liberty is also reserved to the parties to adduce additional evidence, if they so desire. Registry is directed to send the records to the Labour Court forthwith. No costs.