Important Point—Enquiry Officer is not a Court.

1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.

2. Since a common issue is involved in both these matters, I have considered these petitions together.

3. The petitioner has raised an unusual, but a vital issue in the light of the Part I order of the Labour Court concluding that the findings of the Enquiry Officer are perverse. Whether the evidence statement of a witness in written form before the Enquiry Officer in a domestic enquiry, should necessarily be sworn on oath before a Notary or before a competent authority which has the power to administer an oath, is the issue.

4. In both these cases, the respondents/employees have preferred complaints before the Labour Court Aurangabad u/s 28 of the MRTU and PULP Act, 1971. In both these cases, the fairness of the enquiry has been conceded. However, in both these cases, the findings of the Enquiry Officer has been assailed.

5. The Labour Court permitted the litigating sides to lead evidence in support of the following two issues :

A. Whether the complainant proved that the enquiry conducted against him is not fair and proper and against the rules of natural justice ?

B. Whether the complainant proved that the findings of the enquiry of the Enquiry Officer are perverse ?

6. Since the first issue was not contested, it was answered in the negative. In so far as the second issue is concerned, the Labour Court has come to a conclusion that as the testimony of the Management witness before the Enquiry Officer was in a written form, it should have been an affidavit sworn on oath before a Notary or before a competent authority which has the power to administer the oath or affirmation and hence the findings are perverse.

7. The learned Advocate for the petitioner/Management has relied upon the Standing Orders which permit recording of oral evidence by the Enquiry Officer in a concise form. Reliance is also placed upon Standing Order 25(4) of The Model Standing Orders under Schedule I to the Industrial Employment (Standing Orders) Act, 1946. Contention, therefore, is that when the Management witness files a written examination in chief or in any other written form, it is in fact advantageous for the employee since he has a copy of such statement, which he can study, scrutinize and then cross examine the Management witness. An oral evidence can also be recorded in the form of a concise summary of the evidence.

8. The petitioner further submits that it was not the case of the respondent before the Labour Court that the written statement of the Management's witness was not by way of an affidavit duly sworn before a competent Authority or before a Notary and hence it deserves to be discarded.

9. Mr. Upadhye submits that the Labour Court has, by itself, concluded that the statement of the Management witness was not in the form of an affidavit and hence there was no evidence before the Enquiry Officer and therefore the enquiry is vitiated as his findings are perverse. He submits that such conclusions are alien to the procedure of conducting a domestic enquiry.

10. Mr. Suryawanshi, learned Advocate appearing on behalf of both the respondents/employees has strenuously supported the impugned orders. He submits that the Labour Court has rightly concluded that the examination in chief of the Management witness was prepared on a computer and it appears to be in the form of an affidavit and therefore it needs to be sworn before a competent officer or Notary or the Court.

11. Mr. Suryawanshi relies on the following 2 judgments, which the Labour Court had considered while concluding that the findings of the Enquiry Officer are perverse :

(a) V.R.Kamat Vs. Divisional Controller, AIR 1995 Karnataka 275.

(b) A.K.K.Nambiyar Vs. Union Of India, AIR 1970, 652.

12. He, therefore, submits that neither the Labour Court nor the Industrial Court has committed any error in delivering the impugned orders. He prays for the dismissal of this petition with heavy costs.

13. I have