Franke Faber India Pvt Ltd Thr ... vs Abhay Ganpatrao Kulkarni
2021 Latest Caselaw 11658 Bom

                                                                            918.WP.5851.21.odt


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                             WRIT PETITION NO.5851 OF 2021

Franke Faber India Pvt Ltd.
Plot No. L-7, MIDC Industrial Area,
Waluj, Aurangabad
through Authorised Signatory.                                   ...      PETITIONER
                                                                     (Org. Defendant)
         VERSUS

Abhay S/o Ganpatrao Kulkarni,
Age : 57 years, Occ: Nil
R/o. Narendra Housing Society,
House No.13, P-11, N-7 CIDCO,
Aurangabad.                                                     ...      RESPONDENT
                                                                       (Org. Plaintiff)

                                       ...
Advocate for Petitioner : Mr. Sachin V. Dankh
Advocate for Respondent : Mr. V.I. Thole
                                      ...

                                    CORAM     :   MANGESH S. PATIL, J.

                                    DATE      :   24.08.2021

ORAL JUDGMENT :

                 Heard. Rule.       The Rule is returnable forthwith.           With the

consent of both the sides, the matter is heard finally at the stage of

admission.

2. The petitioner is the original defendant in a suit filed by the

respondent for damages on account of alleged illegal termination. The

petitioner submitted an Application (Exhibit-52) seeking a witness summons

to be issued to one Dr. Vijay Barhale, a Psychiatrist. The Application has

been rejected by the impugned order.

918.WP.5851.21.odt

3. The learned advocate for the petitioner would submit that the

petitioner has been dismissed from service due to lack of performance. It is

a specific contention that such lack of performance was perhaps because of

his mental illness. Even the respondent is claiming damages for mental

agony resulting from such illegal termination. He would submit that specific

issues have been framed at Serial Nos. 3 and 6 touching his mental

condition. Since the petitioner is aware about or has the knowledge of the

respondent having taken treatment of the Psychiatrist a witness summon

was solicited to be issued. He would submit that though there is no material

in the possession of the petitioner as of now to demonstrate mental

condition of the respondent, the petitioner is ready to run the risk of calling

the psychiatrist and no prejudice is likely to be caused to the respondent. If

the truth is to be searched, examination of the witness is necessary touching

the mental status of the respondent. It was in the interest of justice that the

petitioner ought to have been allowed to call the witness. The respondent

could have got the opportunity to cross-examine the witness as well. In

support of his submission he would place reliance on the following

decisions:

i. Ramdas Dhondibhu Pokharkar Vs. State Bank of India and Anr.; 2002 SCC OnLine Bom 1459

ii. Satyanarayan M. Agarwal through his LR's Vs. Vishwanath Chaudhary; 2020 SCC OnLine Bom 10832

4. Per contra, the learned advocate for the respondent would

submit that though the damages have been claimed by the respondent for

918.WP.5851.21.odt

alleged illegal termination, the Letter of Termination nowhere discloses that

medical condition of the respondent was the ground for termination of the

employment. He would further submit that the petitioner has been harping

in dark. There is no concrete material available with it and only a fishing

inquiry is sought to be undertaken based on some surmises and conjectures.

The respondent during his cross-examination flatly denied to have ever

consulted Dr. Barhale. Even the witness of the petitioner merely stated

about once having seen the respondent coming out of the Dr. Barhale's

Hospital. Therefore, in the absence of any material with the petitioner to

prima facie show that the respondent indeed has consulted Dr. Barhale, no

fault can be found with the impugned order refusing to issue the witness

summons.

5. The learned advocate for the respondent would further submit

that even the Application (Exhibit-52) was moved by the petitioner at the

fag end of the trial. No plausible explanation is coming forth as to why no

attempt was made at any earlier point of time to summon the witness.

6. The learned advocate further points out that now the petitioner

has even closed its evidence after rejection of the present Application and

the matter is closed for arguments. The petitioner has been remiss in

defending the suit. Even on earlier occasion cross-examination of

respondent on its behalf had to be declined on couple of occasions.

7. I have carefully gone through the papers and considered the

rival submissions. Though, the learned Judge has framed Issues Nos. 3 and

918.WP.5851.21.odt

6, the pleadings of the parties particularly that of the petitioner in the

Written Statement shows that except a bald assertion in clause D of

paragraph No.1 of the Written Statement to the effect that since the plaintiff

(respondent) is not medically fit and not entitled to any damages, the

Written Statement is absolutely silent about any knowledge on the part of

the petitioner about his mental condition muchless about he having ever

approached Dr. Barhale. Even in the absence of such pleadings the cross-

examination of the respondent has been conducted by putting couple of

similarly vague suggestions about he having taken treatment from

Dr. Barhale which suggestion he has flatly denied. Surprisingly, even it was

suggested to him that because of his mental health he could not give

performance satisfactorily and the company was required to terminate him.

Suffice for the purpose to repeat that the Termination Letter does not make

out any such ground for termination.

8. The witness of the petitioner during his examination-in-chief

has stated about the respondent having taken treatment from Dr. Barhale

and probably because of that his performance had gone down. Such a

statement seems to have been made without there being any basis in the

pleading and even when that is not the ground for termination spelt out in

the termination order. Surprisingly during his cross-examination he

admitted not to have seen any document about the respondent having taken

treatment from Dr. Barhale. He only states that he had once seen the

respondent coming out from the Dr. Barhale's Hospital in the year 2015 as

918.WP.5851.21.odt

the basis for his information. It is in view of such state of affairs, the request

made by the petitioner to summon Dr. Barhale would be nothing but a

fishing inquiry and the Court cannot be expected to indulge in any such

investigation.

9. The decisions cited on behalf of the petitioner (supra) would

operate in the matrix of the individual case. When in the matter in hand I

can find the aforementioned infirmities which apparently justify the

impugned order rejecting the Application to summon Dr. Barhale, in my

considered view the petitioner is not entitled to derive any benefit from the

decisions.

10. The Writ Petition is dismissed.

11. It is clarified that the observations made herein above are only

meant for the purpose of deciding the present petition and the learned

Judge shall not feel influenced by these observations.

(MANGESH S. PATIL, J.)

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