The main legal point established in the judgment is the requirement to prove the contents of documents by primary evidence or secondary evidence under Sections 61 and 65 of the Evidence Act.

JUDGMENT :

1. Heard Shri Vikas Singh, learned counsel for the petitioners, Shri Amar Nath Tripathi, learned counsel for respondent no.1. Learned Standing Counsel is present for State-respondents.

2. By means of the present writ petition under Article 226 of the Constitution of India the petitioners have approached this Court assailing the award dated 26.08.2011 published on notice board on 01.12.2010 passed by the Presiding Officer, Industrial Tribunal (2), U.P. Lucknow (here-in-after referred as the Tribunal) / respondent no.2.

3. The brief facts of the case, for adjudication of the present controversy, are that the respondent no.1 was appointed on the post of Service Engineer by the petitioners on 01.04.1998. His services were terminated. The conciliation proceedings were held between the petitioners and the respondent no.1, in Case No.249 of 2001 but on account of failure of the conciliation proceedings, reference was made by the Deputy Labour Commissioner, Lucknow Region, Lucknow / respondent no.3 to decide as to whether the termination of the service of the respondent no.1 from the post of Service Engineer w.e.f. 05.06.2001 was right or not and if not, to what relief the respondent no.1 was entitled from the petitioners. In pursuance to the reference made by the respondent no.3, Adjudication Case No.304 of 2001 was registered before the respondent no.2. The respondent no.2, after the written statements and the rejoinder affidavits filed by the petitioners and the respondent no.1 and the evidence by the parties, passed the award on 26.08.2010, which was published on 01.12.2010. Being aggrieved by the same, instant petition has been filed, challenging the same.

4. Learned counsel for the petitioners submitted that the Government has power to refer the dispute under Section 4(K) of the Industrial Disputes Act, 1947 (here-in-after referred to as the Act 1947) and not the Deputy Labour Commissioner, Lucknow Region, Lucknow. He further submitted that the respondent no.1 is not a workman as he was appointed under the supervisory capacity and discharging the duties as such. Learned counsel for the petitioners had also submitted that the respondent no.1 has not disclosed his duties. The duties of respondent no.1 were disclosed by the petitioners in their written statement, which were not specifically denied, rather they were admitted in his evidence by the respondent no.1. The duties of the respondent no.1 discloses that his work was supervisory in nature, therefore he was not a workman, thus he could not have been held a workman.

5. He further submitted that the services of the respondent no.1 were terminated by means of the order dated 16.07.2001 in accordance with the appointment order with immediate effect with three months salary in lieu of notice, which was communicated to the respondent no.1, therefore, even if, he could have been held a workman, the order of termination was made in terms of the appointment order, therefore there was no illegality or error in it. But without considering it, the Tribunal has recorded a finding that the services of the respondent no.1 were terminated on 05.06.2001.

6. He further submitted that the Tribunal has recorded an erroneous and perverse finding that the termination order had not been sent, whereas once a document regarding service i.e. acknowledgment is exhibited, no such finding could have been recorded. He further submitted that the evidence can be adduced only in regard to the pleadings and if the pleadings have not been made, neither any evidence can be adduced in regard to the same nor any evidence adduced against the pleadings can be read but the Tribunal recorded a finding of forged document without any pleadings. He further submitted that there is no pleading that the salary was paid only up to 31.05.2001.

7. On the basis of above, learned counsel for the petitioners submitted that the impugned award dated 26.04.2010 is not sustainable in the eyes of law and liable to be quashed.

8. L