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2019 DIGILAW 1123 (GUJ)

Dipakbhai N. Patel v. Dufar Interfran Ltd

2019-12-06

SONIA GOKANI

body2019
JUDGMENT : Sonia Gokani, J. 1. The petitioner is aggrieved by the order passed by the Labour Court, Valsad (‘Court below’, in brief), Dated: 08.12.2009, in Reference (LCV) No. 276 of 1993, urging that the same is illegal, unjust and contrary to the settled principles of law. 2. The facts in capsulized form are as under: 2.1 The petitioner was serving respondent No.1 since 02.06.1985. It is the case of the petitioner that respondent No.1 declared illegal lock-out with effect from 25.01.1993, and therefore, the original petitioner and other similarly situated persons raised an industrial dispute before the Court below, which came to be numbered as Reference (LCV) No. 276 of 1993. The petitioner filed the Statement of Claim before the Court below on 20.09.1999 to which Respondent No.1 filed its written statement. 2.2 It is the grievance of the petitioner that pending Reference, respondent No.1 sold the factory premises to Respondent No.2, illegally. Therefore, Respondent No.2 was impleaded as defendant No.2 before the Court below vide amendment dated 12.09.1997, whereupon, Respondent No.2 also filed its written statement. Thus, before the Court below, Respondent Nos. 1 and 2 on the one hand and the petitioner on the other hand have been arraigned as the parties. 2.3 The petitioner filed his examination-in-chief vide affidavit, Exhibit-25, and he was also cross-examined by Respondent Nos. 1 and 2. It appears that, thereafter, one Mr. Alluri Sriramaprasad Verma filed his affidavit for and on behalf of Respondent No.1. 2.4 It appears that, thereafter, the petitioner filed an application below Exhibit-28, urging the Court below that, since, both the respondents are appearing on one side and since, respondent No.2 is supporting the case of Respondent No.2, let Respondent No.2, first, either take examination-in-chief or cross-examine the said witness of respondent No.1 or it may be declared that respondent No.2 does not want to further examine the said witness. It was also urged that after the cross-examination of the said witness, at the instance of the petitioner and the respondent No.2 is allowed to further cross-examine, the valuable rights of the petitioner will be violated. It was also pointed out to the Court below that Respondent No.2 may either further examine the witness of Respondent No.2 or if, at all, it want to cross-examine the said witness, it may do so, but, before the cross- examination by the petitioner. It was also pointed out to the Court below that Respondent No.2 may either further examine the witness of Respondent No.2 or if, at all, it want to cross-examine the said witness, it may do so, but, before the cross- examination by the petitioner. The Court below, after hearing both the sides, passed an order that only after the cross-examination of the witnesses, at the instance of the petitioner, Respondent No.2 may cross-examine them, if, it so desired. Since, the petitioner wanted to challenge the same, he gave an application to the Court below to stay the proceedings, which was allowed by it and the proceedings were stayed till 18.12.2009. 2.5 It is urged by the petitioner that it was pointed out to the Court below that Respondent No.2 may, first, either take examination-in- chief of the witness of the Respondent No.1 or they may cross-examine him, urging that, if, the petitioner cross-examines the witness of Respondent No.1, his entire defence would be disclosed and both the respondents, who are sailing in the same boat, shall be able to fill up the lacuna. It is also urged before this Court that, if, the procedure directed by the Court below is adopted, then, the very purpose of cross-examination of the said witness shall be frustrated. It is, therefore, urged that in the peculiar facts and circumstances of the case, the Court below ought to have directed Respondent No.2 either to further examine the said witness or to take his cross-examination. It is also urged by the petitioner that the Court below ought to have appreciated the aim and object of the Industrial Disputes Act, 1947 (in brief’ ‘ID Act’) and bearing in mind the controversy involved in this matter, where, both the parties are having identical / similar interest, it ought not have allowed them to take benefit of going through the defence of the petitioner, first. 3. The aggrieved petitioner is, therefore, before this Court, seeking following relief’s: “6. … (A) A writ of mandamus and/or certiorari and/or a writ in the nature of mandamus and/or certiorari may kindly be issued and be pleased to quash and set aside the order dated 08.12.2009, passed by the Labour Court, Valsad, in Reference (LCV) No. 276 of 1993 and further, be pleased to allow the Exh. … (A) A writ of mandamus and/or certiorari and/or a writ in the nature of mandamus and/or certiorari may kindly be issued and be pleased to quash and set aside the order dated 08.12.2009, passed by the Labour Court, Valsad, in Reference (LCV) No. 276 of 1993 and further, be pleased to allow the Exh. 28 application of the petitioner; (B) Pending the admission, hearing and final disposal of this petition, this Hon’ble Court may be pleased to stay the further proceedings of Reference (LCV) No. 276 of 1993; Or in the alternative (B) Pending hearing and final disposal of the petition, the labour court may be directed to proceed with the examination of witnesses as per the prayer made by the Petitioner below Exh. 28 application; (C) ...” 4. This Court vide its order dated 18.02.2010, granted adinterim-relif in favour of the petitioner, which came to be confirmed on 13.04.2010, while admitting the matter. 4.1 On issuance of rule, other Respondent No.2 appeared and contested this petition, whereas, though, duly served, none appears for Respondent No.1. 5. This Court has heard the learned Advocate, Mr. Dave, for the petitioner, who has urged that the Court below failed to appreciate that both the respondents are sailing in the same boat, and therefore, it ought to have directed Respondent No.2 to either further examine or to cross-examine the witness of Respondent No.1 and only then, it should direct the petitioner to cross-examine him. According to him, the contrary to the above shall seriously prejudice the rights of the parties, since, Respondent No.1 is the successor-in-interest of Respondent No.1 and their defence and interest are also common, which has been utterly disregarded by the Court below. He, further, has urged that, even if, the strict law of the evidence is not applicable, the Court below ought to have followed the sequence in recording the evidence, as above. It is, further, urged that the Court below can, though, evolve its own procedure, it should commensurate with the basic cannons of the law. 5.1 In support of his say, he has placed reliance on the decision of this Court in ‘CHANDRAKANT CHIMANLAL SHAH VS. CHIMANLAL AMBALAL SHAH’, 1992 (2) GLR 1411 . 6. Per contra, learned Advocate, Mr. It is, further, urged that the Court below can, though, evolve its own procedure, it should commensurate with the basic cannons of the law. 5.1 In support of his say, he has placed reliance on the decision of this Court in ‘CHANDRAKANT CHIMANLAL SHAH VS. CHIMANLAL AMBALAL SHAH’, 1992 (2) GLR 1411 . 6. Per contra, learned Advocate, Mr. Shukla, appearing for respondent No.2 has severely contested this petition and has urged that no interference is desirable with the order of the Court below, since, it has powers to evolve its own procedure, whereby, it has directed that Respondent No.2 to examine or cross-examine the witness of Respondent No.1, only after the petitioner does that. It is urged that the Court below, while passing the impugned order, has appreciated the entire gamut of facts so also the aim and object of the ID Act. It is urged that the strict law of evidence shall not be applicable and it is settled that the Labour Courts can evolve its own procedure. 6.1 To substantiate his say, he has placed reliance on the decision of the Division Bench of this Court in ‘M/S. ECHJAY INDUSTRIES PVT. LTD. VS. MAHAVIRSINH SHIVUBHA & OTHERS’, 1994 (2) GLR 1234 . 7. On, thus, having heard the learned Advocates on both the sides, this Court needs to consider the issue, which is in a very narrow compass, as to who can be permitted to examine or cross-examine, first. 7.1 This Court notices that Respondent No.2 has stepped into the shoes of Respondent No.1 and their interest, therefore, would be common and the same, if not, identical. Their grounds of contesting against the petitioner and the challenge also would remain the same. This Court cannot be oblivious of the fact that the petitioner has challenged before the Court below the lock-out by respondent No.1, on the ground of the same being illegal. Further, the industrial dispute, which has been raised, pending the same, the sale of the factory premises has been effected by Respondent No.1 in favour of Respondent No.2. This Court also needs to bear in mind that the very purpose of cross-examination is to bring out the truth. What all the petitioner, herein has requested is to permit him to cross-examine the witness of Respondent No.1, after once, Respondent No.2 either further examines or cross-examines him. This Court also needs to bear in mind that the very purpose of cross-examination is to bring out the truth. What all the petitioner, herein has requested is to permit him to cross-examine the witness of Respondent No.1, after once, Respondent No.2 either further examines or cross-examines him. 7.2 This Court is fully aware of the fact that the law of evidence will not be strictly applicable to the cases under the ID Act or under the labour laws and the Labour Courts are permitted to evolve their own procedure. Before this Court proceeds, further, the law on the subject shall needed to be regarded, first. 7.3 In ‘J.K. IRON AND STEEL CO. LTD., KANPUR, VS. THE IRON AND STEEL MAZDOOR UNION, KANPUR’, AIR 1956 SC 231 , the Apex Court held that that the adjudication by an adjudicator under the ID Act does not mean, adjudication according to the strict law of master and servant and that an adjudicator's award may contain provisions for the settlement of a dispute which no court could order if it was bound by ordinary law. Thus, the scope of an adjudication under the ID Act is much wider than that of an arbitrator making an award. Industrial Tribunals are not fettered by such limitations and an adjudicator has jurisdiction to investigate disputes about discharge and dismissal and where necessary, to direct reinstatement. Nevertheless, wide as their powers are, these Tribunals are not absolute and there are limitations to the ambit of their authority. Though they are not courts in the strict sense of the term, they have to discharge quasi judicial functions and as such are subject to the overriding jurisdiction of the Supreme Court under Art. 136 of the Constitution. Their powers are derived from the statute that creates them and they have to function within the limits imposed there and to act according to its provisions. Those provisions invest them with many of the trappings" of a court and deprive them of arbitrary or absolute discretion and power. 7.4 It, further, held that the Labour Courts and Industrial Tribunals, though, are not bound by all the technicalities of Civil Courts must nevertheless follow the general pattern of the Civil Courts in the matter of taking the pleadings of the parties in writing and the drawing up of issues. 7.4 It, further, held that the Labour Courts and Industrial Tribunals, though, are not bound by all the technicalities of Civil Courts must nevertheless follow the general pattern of the Civil Courts in the matter of taking the pleadings of the parties in writing and the drawing up of issues. It went on to an extent to state that it is not open to the Tribunals to disregard the pleadings and to reach any conclusion that they think are just and proper. 7.5 The Division Bench of this Court in ‘M/S. ECHJAY INDUSTRIES PVT. LTD.’ (Supra) was considering the question, as to whether, the Labour court had committed an error of law or jurisdiction by committing procedural irregularity in calling upon the employer to produce documentary and oral evidence in three reference cases relating to dismissal of the three workmen. In the matter before the Division Bench, originally, there were 33 references made to the Labour court, Rajkot, under Section 10 of the ID Act, relating to dismissal of 33 workmen. Later on, the disputes with 30 workmen came to be settled or disposed of in accordance with law. Out of the remaining three workmen, the first workman, namely Shri Mahavirsinh Shivubha, was a gardener in the garden department of the petitioner's factory and his services were terminated with effect from 25.1.1982. The second workman, namely Raghu Arjan, who was serving as Turner in machine shop of the petitioner's factory, whose services were terminated on 21.1.1982, whereas, the third workman Shri S.R., Bhatt was serving as Supervisor in Tool Room Department of the petitioner's factory; whose services were terminated on 21.01.1982. 7.6 In the matter before the Division Bench, there was a partial strike in the factory from 13.07.1980 to 23.08.1980. The Government banned the strike and referred certain demands of workmen to the Industrial Tribunal. The Tribunal rejected all the demands and held that the strike was illegal. The strike was accompanied by violence. Therefore, the petitioner appointed certain practicing Advocates as inquiry officers, and after departmental inquiry, several workmen were found to be guilty of serious misconduct and they were ordered to be dismissed, in six different groups on different dates. The Tribunal rejected all the demands and held that the strike was illegal. The strike was accompanied by violence. Therefore, the petitioner appointed certain practicing Advocates as inquiry officers, and after departmental inquiry, several workmen were found to be guilty of serious misconduct and they were ordered to be dismissed, in six different groups on different dates. 7.7 It appears that there was already a reference being Reference No. 502 of 1982 was pending, where, the employer made application to the Industrial Tribunal for approval under Section 33(2) (b)of the ID Act., where, the Industrial Tribunal granted approval. Being aggrieved with the same, on 20.06.1984, the workmen raised disputes for their reinstatement in service with backwages, which came to be referred to the Labour Court, Rajkot, by the Assistant Commissioner of Labour. It appears that as notice of hearing was not served on the employer, the Labour Court passed an ex parte order on 18.09.1985, which was later on set aside by the same labour judge. The order of the labour judge was challenged by the workmen by filing Special Civil Application No. 6531 of 1986, where, this Court dismissed the petition and directed the Labour court to dispose of the references expeditiously and preferably within six months. 7.8 The workmen, thereafter, filed their Statement of Demands and the petitioner company filed its written statement. It appears that the proceedings could not be conducted on 07.07.1988, 28.07.1988 and 25.08.1988 since, the concerned workman did not remain present on those dates. Therefore, the Advocate for the petitioner-Company submitted an application on 25.08.1988 to dismiss the references. However, the matters were adjourned to 12.09.1988. Again the petitioner's Advocate submitted application for dismissing references, but, as the workmen were not present the matters were again adjourned to 29.09.1988 and then to 10.10.1988. On 10.10.1988, the representatives of the workmen submitted application in reference No. 956 of 1984, contending that the company must prove the departmental inquiries and the workmen must be reinstated with wages immediately. 7.9 The Labour Court was of the view that conclusion of a reference of industrial dispute must be by an award and not by a summary order of dismissal for non-prosecution or default. 7.9 The Labour Court was of the view that conclusion of a reference of industrial dispute must be by an award and not by a summary order of dismissal for non-prosecution or default. The Labour Court relied on certain judgments on this point and particularly Rule 26 of the Industrial Disputes (Gujarat) Rules, 1966, and passed an order for closing the right of the workmen to lead evidence and also called upon the employer to produce documentary and oral evidence. Hence, the challenge to the said order was made before this Court, where, this Court observed and held as under: “The only object of requiring pleadings and drawing issues is to ascertain real dispute between the parties and to narrow the area of conflict. The Supreme Court, therefore, observed that it was not open to the Tribunals to fly off at a tangent and disregarding the pleadings to reach any conclusions that they think are just and proper. In the present case no such standing orders have been pointed out or placed on record nor the Labour Court has disregarded the pleadings which are very much on record and which would certainly be taken into consideration at the time of making the award. If the observations of the Supreme Court are to be taken as sacrosanct even the order passed by the Labour Court for closing evidence of the employee will have to be set aside and the Labour Court should be called upon to follow the technical requirement of drawing up the issues before calling upon the parties to lead evidence. (iii) In Burrakar Coal Co. (iii) In Burrakar Coal Co. v. Labour Appellant Tribunal of India & Ors., 1958 II LLJ 580, the learned single Judge of the Calcutta High Court held that the Industrial Disputes (Central) Rules grant - "power to a Board, Labour Court or a Tribunal as regards the state of the proceedings at which and the manner in which, the evidence shall be adduced, but it does not dispense with legal proof that it to say proof in accordance with the principles laid down in the Indian Evidence Act." In the case before the Calcutta High Court the trade union which was conducting case of the respondents workmen sent to the Tribunal alleged copy of the petition and slip of paper purporting to be a receipt granted by the Conciliation Officer bearing no seal or rubber stamp to indicate its genuineness. The Calcutta High Court, therefore, deprecated the action of the Tribunal to exhibit such evidence without proof and to decide the dispute on the basis of such evidence. Such a question does not arise in the present case. (iv) In Shankar Chakravarti v. Britannia Biscuits Co ., AIR 1979 SC 1652 , the Supreme Court examined the procedural requirements of the rules and held that even though the Labour Court or Tribunal may not be hidebound by the rules prescribed in the Evidence Act, it is nonetheless a quasi-judicial Tribunal proceeding to adjudicate upon a list between the parties arrayed before it and must decide the matter on the evidence produced by the parties before it. The Supreme Court held that in the absence of pleading in which any claim for additional evidence was made and in absence of any request made before the Industrial Tribunal by which the award was made, Calcutta High Court had committed an error in granting opportunity to produce additional evidence to the Employer at the stage of Letters Patent Appeal. Such point does not arise in the present case. (v) In Workmen of M/s. Hindustan Lever Ltd. & Ors. v. Management of M/s. Hindustan Lever Ltd., AIR 1984 SC 516 , the Supreme Court observed that if a contention is not raised the Tribunal was under no obligation suo motu or on its own to raise such a contention to clothe itself with jurisdiction to adjudicate upon the dispute. Mr. v. Management of M/s. Hindustan Lever Ltd., AIR 1984 SC 516 , the Supreme Court observed that if a contention is not raised the Tribunal was under no obligation suo motu or on its own to raise such a contention to clothe itself with jurisdiction to adjudicate upon the dispute. Mr. Patel emphasised the following observation of the Supreme Court : "If the contention is not raised, the Tribunal is under no obligation suo motu or on its own to raise an decide such a contention to clothe itself with jurisdiction to adjudicate upon the dispute. In this connection it may be recalled that when a reference is made under Section 10 of the Act, Rule 10-B of the Industrial Disputes (Central) Rules, 1957 obliges the workman involved in the reference to file with the Tribunal a statement of demands relating only to the issues as are included in the order of reference and simultaneously serve a copy of the same on the employer. Sub-rule (2) enjoins the employer within two weeks of the receipt of the statement of claim to field its rejoinder and simultaneously serve a copy of the same on the workman. Ordinarily, the Tribunal after ascertaining on what issue the parties are at variance raises issues to focus attention on points in dispute. In Industrial adjudication, issues are two types : (i) those referred by the Government for adjudication and set out in the order of reference and (ii) incidental issues which are sometimes the issues of law or issues of mixed and fact The Tribunal may as well frame preliminary issues if the point on which the parties are at variance, as reflected in the preliminary issue, would go to the root of the matter. But the Tribunal cannot travel beyond the pleadings and arrogate to itself the power to raise issues which the parties to the reference are precluded or prohibited from raising, to wit, if the empower does not question the status of the workman, the Tribunal cannot suo moto raise the issue and proceed to adjudicate upon the same and throw out the reference on the sole ground that the concerned workman was not a workman within the meaning of the expression of the Act. And it is not obligatory upon the employer necessarily to raise the contention that the concerned workman was not a workman within the meaning of the expression under the Act. Therefore, the Tribunal was wholly in error in holding that if the contention of the Union were to prevail, the well laid rule of no estoppel against a statute would be violated." In the present case the question of estoppel does not arise at all, nor it has been raised. The question of travelling beyond pleadings also does not arise. Therefore, the question of applying the ratio contained in this Supreme Court judgment to the facts of the present case does not arise. (vi) The last judgment cited by Mr. Patel is State of W. B. v. Atulkrishna Shaw, 1991 (Supplement) (1) SCC 414. The reference is made to the actual finding of the Supreme Court to the effect that in absence of adduction of the available documentary evidence the necessary conclusion drawn by the Assistant Settlement Officer was well justified. The Supreme Court incidentally observed that "the proceedings under the Act in a Civil Court and the question of burden of proof does not arise. "This judgment does not help the petitioner because he has approached this court before any award is made by the Labour Court. 14. We now refer to certain judgments cited by Mr. Shahani appearing for Mr. H. M. Mehta, on behalf of the respondent workmen. (1) In Union of India v. T. R. Varma, AIR. 1957 SC 882, the Supreme Court observed that : "The Evidence Act has no application to enquiries conducted by Tribunals, even though they may be judicial in character. The law requires that such Tribunals should observe rules of natural justice in the conduct of the enquiry and if they do so their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court of Law. The law requires that such Tribunals should observe rules of natural justice in the conduct of the enquiry and if they do so their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court of Law. Stating is broadly and without intending it to be exhaustive it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them. If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed." (2) In Associated Cement Companies Ltd., Dwarka v. Their Workmen, AIR 1959 SC 967 , the Supreme Court observed that : "In dealing with the employer's claim for rehabilitation in working out the available surplus formula for bonus the Tribunal values of the relevant factors on hypothetical and empirical considerations, and so it may generally not be useful or wise to make recourse to strict legalistic principles like estoppel in deciding this question as indeed all material questions in Industrial adjudications." 7.10 It is, thus, clear that the Tribunal, as held by the Apex Court in a catena of decisions, is under no obligation suo motu or on its own to raise such a contention to clothe itself with jurisdiction to adjudicate upon the dispute. The Tribunals are also not bound by the strict rule of evidence, while conducting inquiries, even though, they may be judicial in character. What the law requires is that, such Tribunals should observe rules of natural justice in the conduct of the enquiry and if, they do so their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court of Law. What the law requires is that, such Tribunals should observe rules of natural justice in the conduct of the enquiry and if, they do so their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court of Law. Rules of natural justice require that, a party should have the opportunity of adducing all relevant evidence on which he relies and that the evidence of the opponent should be taken in his presence and he should be given an opportunity of cross-examining the witnesses examined by that party and that no materials should be relied on against him, without his being given an opportunity of explaining them. If, these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed. 7.11 Here, there is another question, which has been raised, is, whether, Respondent No.2 could be permitted to cross-examine the witness of Respondent No.1 after the petitioner cross-examines him, although, the interests of both Respondent Nos. 1 and 2 are same. 7.12 This Court, in the case of ‘CHANDRAKANT CHIMANLAL SHAH ‘(Supra), was considering the challenge to the order of the learned City Civil Judge, Ahmedabad, passed on 18.07.1989 rejecting the application, below Exhibit-163, made by the petitioner-original defendant No. 1, requesting the Court that defendant No. 2 may be called upon to adduce the oral evidence in view of the fact that defendant No. 2 was supporting the plaintiff's case. 7.13 In the matter before this Court, it was not disputed that respondent No. 2, i.e., the original defendant No. 2, was supporting the petitioner’s case. There was also no dispute about the fact that the respondent No. 2 had filed written statement supporting the case of the plaintiff challenging the validity of the decree passed in H. M.P. No. 141 of 1976. It is in the above background and the admitted facts that the question had arisen, whether, respondent No. 2 should be asked to lead evidence before respondent No. 1 or not. Referring to the earlier decision of this Court in ‘HIRALAL VS. It is in the above background and the admitted facts that the question had arisen, whether, respondent No. 2 should be asked to lead evidence before respondent No. 1 or not. Referring to the earlier decision of this Court in ‘HIRALAL VS. M.G. PATHAK’, (1964) V GLR 327, where, a similar question had arisen, in context of the provisions of Order 18 Rule 2 of the Civil Procedure Code, and it was observed that, if, all the defendants completely oppose the plaintiff's case, then the question of order of leading evidence amongst the defendants is immaterial. However, when they are divided into two groups, one consisting of those supporting the plaintiffs case in part and the other consisting of defendants, who do not support the plaintiffs case, at all, then, the question of order of leading evidence assumes importance. This Court, then, proceeded to fix the order of leading evidence in such cases as follows: (1) Those defendants who fully support the case of the plaintiff; (2) Those defendants who partly support the case of the plaintiff; and (3) Those defendants who do not support the case of the plaintiff, if any. 7.14 The learned Single Judge referred to the provisions of Section 135 of the Indian Evidence Act, 1872, to hold that the order, in which the witnesses are produced and examined would be regulated by the law for the time being in force, relating to Civil and Criminal Procedure, respectively, and in absence of any such law, by the discretion of the Court. Order 18 Rule 1 of the Code refers to right to begin, which ordinarily is with the plaintiff, as indicated, therein, and Rule 2 lays down that the party, having the right to begin, shall state his case and produce his evidence in support of the issues which he is bound to prove on the day fixed for the hearing of the suit or on any other adjourned day, and only thereafter, the other party shall state his case and produce his evidence. The learned Single Judge, further, observed that Sub-rule (2) of Rule 2 of Order 18 of the Code does not provide for the order, in which, the other party has to lead evidence, when, there are more than one defendants. The learned Single Judge, further, observed that Sub-rule (2) of Rule 2 of Order 18 of the Code does not provide for the order, in which, the other party has to lead evidence, when, there are more than one defendants. Thus, when there is no specific provision on this aspect, the matter would rest on the discretion of the Court as provided in Section 135 of the Evidence Act and that discretion, obviously, has to be exercised on sound judicial principles. The relevant observations of this Court runs as under: “(1) Those defendants who fully support the case of the plaintiff, (2) Those defendants who partly support the case of the plaintiff, (3) Those defendants who do not support the case of the plaintiff in any part. In the instant case, undisputedly, the respondent No. 2 fully supported the case of the original plaintiff who is the respondent No. 1 herein. Therefore, in the order of leading the evidence, the trial Court ought to have directed the respondent No. 2 to lead evidence before the petitioner defendant No. 1 could lead his evidence. The ratio of Hiralal's case, (supra) fully supported the case of the petitioner in his application for seeking a direction on the respondent No. 2 to lead her evidence before he could lead his evidence. There is absolutely no cogent reason given by the trial Court for departing from the aforesaid sequence of leading evidence indicated by the decision of the Court in Hiralal's case (supra). 3. Under Section 135 of the Indian Evidence Act, 1872, it has been provided that the order in which witnesses are produced and examined would be regulated by the law for the time being in force relating to Civil and Criminal Procedure respectively and in absence of any such law by the discretion of the Court. Order 18 Rule 1 refers to right to begin which ordinarily is with the plaintiff as indicated therein and Rule 2 lays down that the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove on the day fixed for the hearing of the suit or on any other adjourned day and thereafter the other party shall state his case and produce his evidence. Sub-rule (2) of Rule 2 of Order 18 does not provide for the order in which the other party has to lead evidence when there are more than one defendants. Thus, when there is no specific provision on this aspect, the matter would rest on the discretion of the Court as provided in Section 135 of the Evidence Act and that discretion, obviously, has to be exercised on sound judicial principles, which, in the instant case, are reflected in the decision of this Court in Hiralal's case (supra). The principles laid down in that decision have already been adhered to by the Courts in Orissa as can be seen from the decision in Jhumpa Bewa and Ors. v. Sahadeb Rout and Ors., of the Orissa High Court (.After referring to the order of leading evidence indicated by this Court in Hiralal's case (supra), the Orissa High Court observed that these principles are adhered to by all the Courts in the State of Orissa. It was observed that the Courts in such cases cannot merely act as a passive agent and as a master of Court proceedings, the Presiding Officer shall guide the trial of a suit being fully aware of the pleadings and the nature of evidence that the parties are expected to adduce before the Court. A similar view was taken by the Andhra Pradesh High Court in Bommidi Vasudeva Murthy v. Bommidi Bhasker Rao and Ors., (reported in ILR 1975 AP 307, 308)]. 4. The provisions of Order 18 Rules 1 and 2 and Sections 137, 138 of the Evidence Act would indicate that when the plaintiff's case is fully supported by some of the defendants, these defendants are not adverse party and it would be just and proper for the Court to ask them to initially cross-examine the plaintiff and then ask the contesting defendants (adverse party) to cross-examine the plaintiff particularly when the adverse party so desires Therefore, it would not be appropriate to direct the real contesting party to first disclose his defence and then keep in a reserve the defendants supporting the plaintiff to destroy his defence. Prudence clearly demands that the supporting defendants should be considered on rhe side of the plaintiff and their leading evidence must immediately follow the plaintiffs' evidence so that the contesting defendants can meaningfully exercise their right of leading evidence in accordance with the provisions of Order 18 Rules 1 and 2 of the Civil Procedure Code. In other words, it would be in consonance with the scheme of those provisions to require the supporting defendants to lead their evidence immediately on the completion of the evidence of the plaintiff because the supporting defendants would not be, in true sense, the other party that is the adverse party. In this view of the matter, it is clear that the trial Court has committed an error in exercise of its jurisdiction in not issuing direction as sought for by the petitioner in his application Exh. 167 by asking the respondent No. 2 to lead evidence before the petitioner could lead his evidence. This Revision Application is, therefore, allowed and the impugned order dated 18th July, 1989 passed below Exh. 163 by the trial Court is hereby set aside and the application Exh. 163 is granted by directing the respondent No. 2 to lead evidence in the suit if she so desires before the petitioner could lead his evidence. Rule is made absolute accordingly with no order as to costs.” 7.15 Assuming that the strict law of evidence is not applicable and the Tribunals are more guided by the principles of natural justice and if, the Civil Code is not strictly to the procedure adopted by the Labour Courts, nonetheless they are guided by the judicial principles, which are also in consonance with the wisdom, which appeals to the common sense. Thus, the law provides that those defendants, who fully support the case of the plaintiff, should cross-examine first, followed by those defendants, who partly support the case of the plaintiff and then, those defendants, who do not support the case of the plaintiff, at all. 7.16 In the case on hand also, Respondent No.2 is fully supporting the case of Respondent No.2. Therefore, the cross-examination of the witness of Respondent No.1 should be, firstly, done by Respondent No.2 and then only, the petitioner should be called upon to cross-examine him. Therefore, the impugned order would require the interference of this Court. 8. 7.16 In the case on hand also, Respondent No.2 is fully supporting the case of Respondent No.2. Therefore, the cross-examination of the witness of Respondent No.1 should be, firstly, done by Respondent No.2 and then only, the petitioner should be called upon to cross-examine him. Therefore, the impugned order would require the interference of this Court. 8. Resultantly, this petition is ALLOWED and the impugned order passed by the Labour Court, Valsad, Dated: 08.12.2009, in Reference (LCV) No. 276 of 1993 is QUASHED and set aside. Let the Court below follow the chronology of examination of the witnesses, as indicated herein above. In short, in the case on hand, Respondent No.2 shall, firstly, either further examine or cross-examine the witness of Respondent No.2 and only thereafter, the petitioner-plaintiff shall be called upon to cross-examine the said witness. Otherwise, the defendant Nos. 1 and 2 shall ensure that the entire cross-examination is wiped off, by certain actions of the supporting party, i.e. Respondent No.2, herein, and that can never be the object of the cross-examination and it is always for the purpose of bringing out the truth from the witnesses and the material on record. 8.1 Considering the fact that nearly a decade has passed, since, this matter had been pending and the proceedings before the Court below have been stayed by this Court, at the instance of the petitioner, let the same be EXPEDITIOUSLY concluded by the Court below, where, both the sides shall cooperate. Rule is made absolute, accordingly. Direct service is permitted.