Without filing reply from other party is it legally correct to set aside ex-parte order? Since I strongly opposed for set aside of ex-parte orally?

I know I can challenge in HC regarding this order but my question is Since I have put perjury case against management under Cr.P.C.340 if perjury has been proved is there any chance of declaring ex-parte once again?

It is the duty of the respondent to file a counter or reply to any petition filed by the petitioner.

If you have not filed any counter to the petition seeking setting aside exparte order, the court deemed that you dont have any reply or counter hence proceeded to allow the application for setting aside the exparte order.

Oral objections cannot be affirmed.

The suspicions into the veracity of their averments/pleadings seeking to set aside the exparte order should have been recorded as objection in writing in the reply which you failed to do.

The court finding no objection or reply to the petition has admitted the same without going deep to ascertain whether the reasons stated in the petition are facts or not.

If you win perjury case, the court will convict the accused accordingly which shall be notified in the judgment.

How can the judge without giving reasons of rejection of four exhibits, how all exhibits can be rejected?

Without knowing the nature or the documentary evidence or seeing the document it would be difficult to opine that what could have been the reason for the court to reject the said documents from marking them as exhibits.

What is OPW as mentioned above in issues formed?

You could have clarified about this with the court clerk itself.

Shall I ask the same court to ask the reply from management once again and based on the reply and my replication only the court should reject?

Is there any provision in law to do that?

It is not your problem to direct the management to file their reply.

The court will decide about it.

The court will proceed against them if they have not filed the reply.

If once again my additional evidence rejected then what are the other ways to prove myself as a worker, Please mention all points so that I can cross-examine the management.

You can file a revision petition seeking to review the lower court order rejecting your application for additional evidence.

I have worked for more than 22 months, I was confirmed by the company and also salary was hiked but the management did not conduct domestic enquiry before termination. Is this single point is enough to prove me terminated illegally? Or still, much more ways to prove illegal termination has been done.

The company's management should have followed due process of law to terminate yor services, hence it may be considered as an illegal action if no procedure, as laid down, was followed.

court should have asked you to file reply before passing an order for setting aside exparte order

2)in the interest of justice court would not set aside exparte order .

3) Ex 34 proves that you are the worker .

4) after your evidence is closed court would ordinarily not permit you to lead additional evidence

5) There is no specific provision in the cIVIL procedure Code enabling the parties to re- open the evidence for the purpose of further examination-in-chief or cross- examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Code to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for re-opening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to re- open the evidence and/or recall witnesses for further examination.

6) it appears that your termination is illegal as no enquiry was conducted before your termination

The scope of section 151 has been explained by Supreme Court in several decisions (See : Padam Sen vs. State of UP-AIR 1961 SC 218; Manoharlal Chopra vs. Seth Hiralal - AIR 1962 SC 527; Arjun Singh vs. Mohindra Kumar - AIR 1964 SC 993; Ram Chand and Sons Sugar Mills (P) Ltd. vs. Kanhay Lal - AIR 1966 SC 1899; Nain Singh vs. Koonwarjee - 1970 (1) SCC 732; The Newabganj Sugar Mills Co.Ltd. vs. Union of India - AIR 1976 SC 1152; Jaipur Mineral Development Syndicate vs. Commissioner of Income Tax, New Delhi - AIR 1977 SC 1348; National Institute of Mental Health & Neuro Sciences vs. C Parameshwara - 2005 (2) SCC 256; and Vinod Seth vs. Devinder Bajaj - 2010 (8) SCC 1). We may summarize them as follows:

(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is `right' and undo what is `wrong', that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.

(b) As the provisions of the Code are not exhaustive, section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances.

(c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.

(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature.

(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.

(f) The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.

If you ask so many question in a single query it is very difficult to answer all. I have tried to answer most of the question.

First, your query regarding recalling the exparte order . The Court can recall the exparte order if sufficient cause is mentioned in the application for setting aside exparte order. It is discretionary power of the Court. Also challenging the same is not at all advised. And for what reasons you want an exparte award it can be challenge by the Management in the Hon'ble High Court. You should think about fighting the case on merit instead of relying on the exparte order.

Secondly, if you have traced some documents after the stage of cross examination you can give application to the Court and the court if deems fit can allow you to file additional documents also if you have mentioned in the application for filing documents at that stage in the document filing application some documents are presently not traceable and will be filed as & when they are traceable it would have helped you. Since the Hon'ble Court has rejected your application. I would advise you to seek permission of the court once again stating all reasons in the application for filing additional documents .

To prove that you were worker and was not having any administrative/supervisory control there is no need of specific paper stating that you are workman. If no employees are working under you and you dont have supervisory power that means you are workman under section 2s of ID Act, 1947 and if you have worked for more than 240 days in preceding 12 months.

OPW is Petitioner /workman.

The case of perjury which you have filed against the management will not get you any benefit/ compensation.

Thanks

Sankalp Mehrotra

Advocate

&

Labour Law Consultant

The emphasis is laid on the nature of duties and powers conferred on an employee

2) the nature of the main function performed by the person has to be considered to determine if the person is a "workman

3) Even if a person is designated as supervisor, the employer has to prove that his work and his duties were in nature of a supervisor.

4) if perjury is proved court can impose punishment on person filing affidavit for making false statement on oath

5) you can confront the management witness with the letter employing you as worker .

The powers like cheque signing authority or leave sanctioning powers alone do not constitute for a supervisory cadre.

The team leader under whom some sizeable employees are reporting can also be considered as a supervisor.

Thus the burden of proof to prove that you are not worker lies on your shoulder in accordance with your organisation's rules.

The punishment for perjury depends on how it is proved and who is held responsible.

The management can easily escape the liability by putting the blame on different departments hence it will be difficult to pinpoint the responsibility for this lapse.

As far as compensation, you have to file a separate case and cannot claim in this itself.

For claiming compensation it is again your responsibility to prove the loss you had sustained.

Filing or not filing a reply to the petition filed by you is the decision by the management, even th court cannot insist on it.

If the management decides to not file a reply then the court will proceed without the reply to decide the petition on its merits.

The decision to allow the petition or to dismiss it depends on your arguments as well as the merits and the discretion of the court.

The documents you rely upon should be your side exhibit and not the opposite side.

1. Do not use statements like ''answer without fail'' as we do not take this sort of stuff from anybody. Be humble and not haughty while addressing lawyers.

2. If you were aggrieved by the court setting aside the ex parte order without calling a reply from you then it was incumbent on you to move the HC to assail that order, but you did not avail this legal remedy within the period of limitation, as a corollary thereto the order has now attained finality. So you should have no complaints as there was a waiver of legal remedy by you. And, no, you cannot challenge this order after the limitation is over.

3. It is your case that you filed certain documents after the evidence was over, as a corollary thereto before the documents could be exhibited you were required to prove that despite exercise of due diligence you could not lead the documents earlier. That the documents were untraceable in your house is no ground to allow them to be read into evidence belatedly. Be that as it may, this order is also open to challenge in the HC within 90 days unless you have waived the right before that.

4. You may reapply to the court to call reply from the management but it is the prerogative of the management to file or not to file the reply. Should the management decide against the filing of reply the court would be free to proceed to hear the arguments. There is no legal infirmity in the court doing this.

5. Engage a lawyer for cross-examination as you are not a trained legal mind. It is naive on your part to expect us here to give you questions to be asked in cross-examination. This is an expert task which can be effectively performed by an expert only after a threadbare perusal of the file.

6. Engage a lawyer, I would suggest.