The tribunal's failure to consider cross-examination evidence due to pleading deficiencies violated the principles of natural justice and procedural fairness.

Hearing concluded on : 20.06.2025 Judgment on : 01.07.2025 Shampa Dutt (Paul), J.:

1. The writ application has been preferred praying for setting aside of the award dated 13.12.2024 passed by the 2^nd Industrial Tribunal, Kolkata.

2. Learned counsel for the petitioner has brought the notice of this Court to page 30-31 and 32 of the award, wherein the tribunal has held as follows:-

“….. Though the OP company has asked the above questions to the petitioner in his cross-examination regarding his income after his termination, the OP company has not mentioned the said matters in its written statement and those questions in the cross-examination are beyond the pleadings of the OP company and accordingly the said cross-examinations cannot be considered legally according to law.

According to the decisions of the Hon’ble Supreme Court as reported in (2018) 12 SCC page 663 and (2019) 18 SCC page 814, the OP company has not pleaded and has not produced any evidence to prove that after termination the petitioner was gainfully employed and accordingly, he was not entitled to claim back wages.

In order to prove by evidence that after his termination the petitioner was gainfully employed elsewhere, the OP company should have pleaded the same in its written statement according to law but instead of pleading, the OP company has asked some questions to the petitioner regarding gainful employment in his cross-examination and the said cross-examinations cannot be given any legal value in absence of pleading to that effect.

Though in his examination in chief and written statement the petitioner has not whispered anything about any income from stock trading and the written statement of the OP company is also silent over it, the OP company has asked the petitioner in his cross-examination about this stock trading and in his cross-examination the petitioner has stated that he tries to make stock trading and in his affidavit in chief he has not mentioned that he has suffered loss in stock trading.

The OP company has not pleaded and proved by any evidence to show that since after termination of service till not the petitioner has been earning sufficient money from the stock trading and the petitioner has not pleaded in his written statement and affidavit in chief that he was involved in the stock trading and accordingly he had no legal liability to prove this stock trading while the OP company has legal liability to produce document to show that by means of stock trading, the petitioner has been earning sufficient money since after termination of service till now and accordingly the said cross-examinations by the OP company on this point are baseless and valueless……”

3. The Petitioner’s case is that as the tribunal has not considered the cross-

examination by the petitioner herein and passed the award, the award is bad in law and is liable to be set aside being not in accordance with law and thus against the principle of natural justice.

4. The petitioner has relied upon the judgment in State of Rajasthan &

Ors. vs. Heem Singh reported in (2021) 12 SCC 569 wherein the Court held as follows:-

“36. The Division Bench found fault with the Single Judge for not having seen the evidence of Jodh Singh in its entirety. A two-Judge Bench of this Court in P. John Chandy & Co. (P)

Ltd. v. John P. Thomas, has held : (SCC p. 95, para 7)

“7. For proper appraisal of evidence, a court must consider the whole statement. Cross-examination constitutes an important part of the statement of a witness and whatever is stated in the examination-in-chief, stands tested by the