Orissa High Court
Larsen And Toubro Ltd. vs Presiding Officer, Industrial ... on 16 March, 1995
Equivalent citations: (1997)IIILLJ1068ORI
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT 1. The order of the Presiding Officer, Industrial Tribunal dated September 30, 1993 in a reference made at the instance of the workman under Section 10 of the Industrial Disputes Act directing the management to lead evidence is under challenge in this writ application. 2. On the basis of a conciliation failure report the State Government in exercise of its power under Sub-section (5) of Section 12 read with Clause (1)(d) of Section 10 of the Industrial Disputes Act has referred the dispute for adjudication of the Industrial Tribunal, the dispute being :- "Whether the termination of service of Sri. Muralidhar Das a Clerical Trainee by the Management of M/s Larsen & Toubro Ltd. (Kansbahal Works), Kansbahal, Sundargarh, with effect from November 3, 1984 is legal and/or justified ? If not to what relief Sri Das is entitled ?" After the proceeding was initiated before the Tribunal the workman was called upon to file his statement of claim and thereafter the employer had also been called upon to file its written statement. The stand of the employer essentially in the written statement is that the alleged workman was continuing as an Apprentice and after expiry of the apprenticeship period, the services have not been extended further and, therefore, it was not a case of termination on account of any misconduct in any disciplinary proceeding. The further stand of the employer is that an apprenticeship cannot be held to be a workman. Before the Tribunal the employer had filed an application that the Tribunal should decide the question as to who would lead evidence first. On this application the Tribunal having passed the impugned order on September 30, 1993, the employer has approached this Court. 3. The Tribunal on going through the terms of reference being of the opinion that it is the Management who is to lead evidence since the legality and justifiability of the termination of workman as a trainee is in dispute, has called upon the Management to lead evidence to justify its action. 4. Mr. Nanda appearing for the petitioner contends that in view of the pleadings of the parties, particularly the stand taken by the employer in its written statement, the Tribunal was wholly erred in law in directing the employer to lead evidence and in fact has not understood the stand taken by the employer in the written statement filed before it. 5. Mr. Dash appearing for the employee, on the other hand, contended that the proceeding before the Industrial Tribunal cannot be equated with a Civil suit and since the legality of the order of termination was an issue, the Tribunal rightly directed the employer to begin the case. In support of this stand Mr. Dash placed reliance on two decisions of the Supreme Court in the case of The Cooper Engineering Ltd. v. P.P. Mundhe (1975-II-LLJ-379) as well as in case of Shankar Chakravarti v. Britannia Biscuit Co. Ltd. and Anr. (1979-II-LLJ-194). 6. On examining the aforesaid two decisions we are of the considered opinion that none of these decisions has any application to the facts in hand. In the former case (The Cooper Engineering Ltd. 's case) what had been held by the Supreme Court is that when a case of dismissal or discharge of an employee is referred for industrial adjudication the Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice and when there is no domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the Labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue. The present case has got no relationship with the aforesaid decision relied upon by Mr. Dash appearing for the workman. In the second case on which Mr. Dash for the workman had placed reliance, the question that had arisen for consideration was as to whether an application seeking approval of order of dismissal for misconduct was same or similar to an application which had been given before the Tribunal in a reference under Section 10. In the aforesaid case their Lordships of the Supreme Court have held that when dispute comes before the Industrial Tribunal by way of a reference under Section 10, it is the aggrieved workman who has sought for adjudication of the industrial dispute arising from termination of the services, and when reference is at the instance of a workman under Section 10, the Tribunal would call upon the workman to file his statement of claim and thereafter the employer would be called upon to file its written statement. We fail to understand as to how this decision is of any assistance to the workman on the question involved for our consideration. 7. In view of the stand taken by the employer in its written statement to the effect that the workman was merely an apprentice and that after the period of apprenticeship the said period has not been renewed, the question of any domestic enquiry if at all being held or the said enquiry is fair and proper does not arise for consideration. In view of the rival stand of the parties, if no party leads any evidence before the Tribunal then the reference has to be answered against the workman. In that view of the matter the Tribunal wholly erred in law in directing that the employer should begin by leading evidence. We accordingly quash the impugned order of the Tribunal and direct that the workman shall lead evidence in this case. Since the proceeding is pending before the Tribunal for a long time, the Tribunal is called upon to conclude the proceeding within three months from the date of receipt of our order. The writ application is accordingly allowed. D.M. Patnaik, J.
8. I agree.