Judgment:
ORDER
A.K. Patnaik, C.J.
1. This is an appeal filed under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khandpceth Ko Appeal) Adhiniyam, 2005 (for short 'the Adhiniyam') against the order dated 12-12-2007 passed by learned Single Judge in Writ Petition No. 15842/2007 (S). The relevant facts briefly are that a reference was made under Section 10(1)(d) of the Industrial Disputes Act, 1947 (for short 'the Act') by the Central Government to Central Government Industrial Tribunal-cum-Labour Court, Jabalpur (for short 'the Tribunal') to decide a dispute between the appellant and the respondent. Before the Tribunal, an application was filed by the appellant-Union for oral examination of the workers, but by order dated 31-10-2007, the Presiding Officer of the Tribunal rejected the application. Aggrieved, the appellant filed Writ Petition No. 15842/2007 (S) under Articles 226 and 227 of the Constitution in this Court and by the impugned order dated 12-12-2007 the learned Single Judge dismissed the writ petition summarily. Aggrieved, the appellant has filed this appeal.
2. Mr. P.S. Nair, Senior Counsel and Mr. K.C. Ghildiyal, learned Counsel for the appellant, submitted that the workers who are to be examined before the Tribunal are mostly illiterate Adivasis and Harijans and they are not capable of understanding the facts stated in the affidavit and therefore they are not in a position to swear the oath required in the case of an affidavit. They submitted that it is for this reason that many of the workers who are illiterate Adivasis and Harijans preferred to be examined orally before the Tribunal and yet this has not been permitted by the Tribunal by the order dated 31-10-2007. They referred to the provisions of Section 11(3) of the Act as well as Sub-rule (6) of Rule 10-B of the Industrial Disputes (Central) Rules, 1957 (for short 'the Rules') and submitted that evidence of witnesses can be recorded either in the Tribunal or on affidavit. They submitted that the Tribunal was therefore not right in rejecting the application of the appellant for examination of workers and in particular those workers who are illiterate Adivasis and Harijans.
3. Mr. Brian D'Silva and Mr. Saurabh Sharma, learned Counsel for the respondent, on the other hand, submitted that Sub-section (1) of Section 11 of the Act is clear that the Tribunal shall follow such procedure as it may think fit subject to the rules that may be made in that behalf. They submitted that even if Sub-rule (6) of Rule 10-B of the Rules provides for recording of evidence either in the Court or on affidavit, it is for the Tribunal to decide whether evidence will be recorded orally or evidence will be adduced through affidavit and the High Court in exercise of powers under Articles 226 and 227 of the Constitution does not interfere with such a decision of the Tribunal. They submitted that the learned Single Judge has taken a view in the impugned order dated 12-12-2007 that Tribunal cannot be said to be having acted illegally in rejecting the application of the appellant and as such no prejudice has been caused to the workers by the impugned order. They further submitted that the impugned order passed by the learned Single Judge, in any case, is one under Article 227 of the Constitution and the proviso to Sub-section (1) of Section 2 of the Adhiniyam is clear that no appeal will lie against an order passed by the learned Single Judge under Article 227 of the Constitution to a Division Bench.
4. We have perused the Writ Petition No. 15842/2007 and we find that the writ petition has been filed not only under Article 227 but also under Article 226 of the Constitution. We further find that the grounds taken in the writ petition by the appellant are such as are normally taken in a writ petition filed under Article 226 of the Constitution. Hence, from the pleadings in the writ petition, it is difficult to hold that the writ petition was not one under Article 226 of the Constitution of India but under Article 227 of the Constitution. In a judgment delivered by five-Judges of this Court in Manoj Kumar v. Board of Revenue and Ors. 2008(1) MPLJ 152 : 2007(4) M.P.H.T. 545, it has been held that it is for the Division Bench hearing the writ appeal to decide on the basis of pleadings in the writ petition as to whether the impugned order passed by the learned Single Judge is one under Article 226 or Article 227 of the Constitution. In our view, the order passed by the learned Single Judge can be treated as one under Article 226 of the Constitution and hence, an appeal under Section 2 (1) of the Adhiniyam against the impugned order will lie to a Division Bench. The preliminary objection raised by learned Counsel for the respondent to the maintainability of the appeal thus has not merit.
5. We may now examine the merits of the appeal. Sub- (1) and (3) of Section 11 of the Act and Sub-rule (6) of Rule 10-B of the Rules are on which the learned Counsel for the parties have relied on are quoted hereinbelow:
11. (1) Subject to any rules that may be made in this behalf, an arbitrator, a Board, Court, Labour Court, Tribunal or National Tribunal shall follow such procedure as the arbitrator or other Authority concerned may think fit.
(3) Every Board, Court (Labour Court, Tribunal and National Tribunal) shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit, in respect of the following matters, namely:
(a) enforcing the attendance of any person and examining him on oath;
(b) compelling the production of documents and material objects;
(c) issuing commissions for the examination of witnesses;
(d) in respect of such other matters as may be prescribed,
and every inquiry or investigation by a Board, Court (Labour Court, Tribunal or National Tribunal) shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860).
10-B. (6) Evidence shall be recorded either in Court or on affidavit but in the case of affidavit the opposite party shall have the right to cross-examine each of the deponents filing the affidavit. As the oral examination of each witness proceeds, the Labour Court, Tribunal or National Tribunal shall make a memorandum of the substance of what is being deposed. While recording the evidence the Labour Court, Tribunal or National Tribunal shall follow the procedure laid down in Rule 5 of Order XVIII of the First Schedule to the Code of Civil Procedure, 1908.
6. Sub-section (1) of Section 11 of the Act provides that subject to any rules that may be made, the Tribunal shall follow such procedure as it may think fit. Sub-section (3) of Section 11 provides that the Tribunal shall have the power as has been vested in the Civil Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the matters enumerated therein. In Clause (a), it is provided that the Tribunal shall have the power of enforcing the attendance of any person and examining him on oath as are vested in the Civil Procedure Code, 1908. Sub-rule (6) of Rule 10-B of the Rules provides that evidence shall be recorded either in Court or on affidavit. Hence, a discretion is vested in the Tribunal to record evidence either in the Court or in affidavit, but such discretion has to be exercised in such a manner as would advance the cause of justice keeping in mind the provisions of law and the time involved in recording the evidence.
7. Order XIX, Rule 3 of the Code of Civil Procedure, 1908 states that affidavits have to be confined to such facts as deponent is able of his own knowledge to prove. Section 6 of the Oaths Act, 1969 provides the Forms of oaths and affirmations and it states that all oaths made under Section 4 of the Act shall be administered according to such one of the forms given in the Schedule as may be appropriate to the circumstances of the case. The form prescribed in the Schedule to the Act for affidavits is extracted hereinbelow:- Form No. 4 (Affidavits):
do swear in the name of God I ------------------------------ that this is my name and signatureSolemnly affirm(or mark) and that the contents of this my affidavit are true.
It is thus clear that whoever swears an affidavit must swear that the facts stated in the affidavit or that the contents of the affidavit are true to his knowledge. In other words, the deponent of the affidavit must understand the facts stated in the affidavit or the contents of the affidavit and then swear that whatever is stated in the affidavit are true to his knowledge.
8. The case of the appellant before the Tribunal was that the workers who are to be examined on oath are mostly illiterate Adivasis and Harijans and they cannot understand the facts sworn in by them on oath in affidavit yet the Tribunal rejected the prayer for oral examination of the workers with the following reasons:
6. It is very clear from the application No. 461 that this dispute is in respect of 3405 workers. All of them have been alleged to be extremely poor in health, financially poor, physically handicapped. I find myself unable to accept that all of them are physically handicapped. It has been further submitted by the learned Counsel for the Union that the workers are illiterate Adivasis and Harijans, may it be correct. But it is difficult to believe that a worker will not understand the facts sworn in by him on oath in an affidavit. Till now about 55 workers have been examined on their affidavits in my presence. Only relevant questions have been permitted by me to be asked in cross-examination of the workers. Under the above circumstances, I find no force in the application of the Union for permitting the Union to examine the workers orally before this Tribunal. Consequently, application No. 461 is rejected.
9. The Tribunal has not disputed that the workers who are to be examined are mostly illiterate Adivasis and Harijans. The Tribunal has held that this may be correct but it is difficult to believe that workers will not understand the facts sworn in by them on oath in affidavits. If the workers were illiterate Adivasis and Harijans, they will not be able to read the facts stated in the affidavits. The view taken by the Tribunal that it is difficult to believe that a worker even though illiterate will not understand the facts sworn in by him on oath in affidavit is thus fallacious and the order does substance injustice to the workers. We accordingly set aside the order of the Tribunal and direct the Tribunal to record the oral evidence of those witnesses produced before him who are illiterate and are unable to understand the facts stated in the affidavit. The appeal is allowed. No cost.