The present petition challenges the impugned order dated 7th October 2021, passed by the Authority under the Payment of Gratuity Act, 1972, and the same issue was held in the judgement passed by a single bench judge comprising JUSTICE PRATHIBA M. SINGH, in the M/S SHARAT DASS AND ASSOCIATES V. RAMESHWAR SINGH AND ANR dealt with an issue mentioned above.
In the present case, the Petitioner stated that once the affidavit of evidence was filed by the Claimant witness, and the cross-examination was already taking place, such permission and liberty could not have been granted by the Authority under the Act.
Whereas Mr Manan, Counsel for the Petitioner, submitted that the claim of the Respondent was earlier even decreed in his favour on W.P.(C) 12292/2021 the basis of the said affidavit, which is now sought to be withdrawn, and now a fresh affidavit of evidence has been permitted to be tendered, which is contrary to law.
But Ms Richa Sharma, the counsel appearing for the Respondent submits that during cross-examination, some questions were put in respect of certain records and the claimant wished to file certain documents in response to those questions. It is due to the said fact that a further affidavit has been permitted by the Authority under the Act. There was an implied order which was passed and it says as such:
“Present Sh. Bhumi Solanki Counsel of respondent filed moved an application Under Section 151 of CPC to take off the record the documents filed by the workman along with its Evidence affidavit. The evidence/documents along with the affidavit were supplied by the claimant on 20/02/2020 and the copy of the same was also received physically by the respondent on 20/09/2021. Heard both parties on the application filed today. The application does not carry any merit same is dismissed. The cross-examination of the claimant to continue. Cross-examination was done and the witness was deferred. The claimant witness withdraws its evidence affidavit and wants to file fresh evidence. The counsel for the respondent objects to the same. In the interest of justice, one opportunity is granted to the claimant to rely upon relevant documents by filing a fresh affidavit of evidence. Next date fixed for 11/10/2021 at 10:30 A.M.”
Meanwhile the Claimant W.P.(C) 12292/2021 made a statement that he wishes to withdraw the evidence and file a fresh affidavit, while the affidavit filed by the Claimant was on record and the cross-examination had commenced, While the cross-examination was continuing they prayed to withdraw and file a new affidavit has mentioned above. They also looked into a case called Banganga Cooperative Housing Society Ltd. and Ors. v. Vasanti Gajanan Nerurkar and Ors. [2015 (5) Bom CR813].
Later, the impugned order was set aside, and few directions were given which as supposed to be followed, At this particular stage, Mr Manan, Counsel submits that the cross-examination was concluded on 7th October 2021, but the Authority has recorded to the contrary that the same was deferred and is to be continued.
The court perused the facts and argument’s presented, it thought that- “Because of the same, the above directions shall be complied with, following the law. The present writ petition, and all pending applications are disposed of in the above terms”.
Judgment Reviewed by: Mandira BS