Calcutta High Court
Mitra A.B. vs P.O., Iii Industrial Tribunal And Ors. on 11 June, 1999
Equivalent citations: (1999)IILLJ1243CAL
JUDGMENT Samaresh Banerjee, J.
1. Common questions of law and fact being involved in both the writ petitions the same have been heard analogously and will be governed by the same judgment.
2. In each of the writ petitions the petitioner has challenged the impugned order passed by the Tribunal directing that the workman will have to adduce evidence first to discharge the initial onus relating to validity or invalidity of the domestic enquiry.
3. In each of such cases on reference of the industrial dispute to the Tribunal, the Tribunal was required to decide as a preliminary point as to the validity of domestic enquiry which was challenged by the workman.
4. It is not disputed that in such a situation all along the Industrial Tribunal directed the employer to adduce his evidence first for the purpose of establishing that the domestic enquiry held against the workman was valid and proper.
5. But in the instant case on the application of the employer before the Tribunal, in view of the judgment rendered by the Hon'ble Mr. Justice G.R. BHATTACHARYA where His Lordship has held that in such a situation it is for the workman to adduce his evidence first, the Tribunal has passed the impugned order following the said judgment, reported in (1996 -II-LLJ 904) (Cal).
6. The question, therefore, which has come up for determination before this Court in the present writ petition, is who should be called upon by the Tribunal in such a situation to adduce evidence first.
7. The aforesaid point is no doubt covered by the aforesaid judgment of G.R. BHATTACHARYA, J.
8. But Mr. Bikash Ranjan Bhattacharya the learned counsel appearing for the writ petitioner in the case of Anil Mondal v. State of West Bengal and Ors. has argued at length in support of his contention that the aforesaid case requires reconsideration as the same has not laid down the correct proposition of law.
9. Being a Court of co-ordinate jurisdiction no doubt I am bound by the aforesaid judgment of Justice BHATTACHARYA and cannot sit in appeal over the same. But in case of difference of opinion with his Lordship, I am required to refer the matter to a larger Bench.
10. After considering the aforesaid judgment in the said case of Ganges Manufacturing Co. v. State of West Bengal and Ors., reported in (1996-II-LLJ-904) (Cal) and considering the submission of the parties I have not been able to persuade myself to agree with the proposition of law laid down by His Lordship in the aforesaid case for the reasons stated hereinafter and therefore, I am of the view that the issue involved in the present case requires consideration by a larger Bench.
11. Relying on a judgment of Bombay High Court and on certain Supreme Court decisions His Lordship is of the view when the validity of the domestic enquiry is to be decided by the Tribunal as a preliminary point, the onus is upon the workman to prove that the domestic enquiry was not valid and proper as the workman challenges the validity and propriety of the domestic enquiry.
12. In my view, when an industrial dispute is referred to the Tribunal under Section 10(1) of the Industrial Disputes Act for adjudication of the question whether the dismissal or termination of the workman is justified and the Tribunal is called upon to decide the validity of the domestic enquiry as a preliminary point, the burden is certainly on the employer to satisfy the Tribunal that such domestic enquiry was held validly and properly, when the employer wants to rely on such domestic enquiry as his defence.
13. Under Section 10(1) the appropriate Government on being satisfied that there exists an industrial dispute between the employer and the workman refers the same to the Industrial Tribunal for adjudication and on such reference the Tribunal usually in case of termination or dismissal frames an issue as to whether the dismissal of the concerned workman is justified.
14. It has to be kept in mind the legislature in its wisdom has enacted the Industrial Disputes Act which is a special statute creating Labour Courts, Tribunals, etc., for the purpose of adjudication of industrial dispute between the employer and the workman with utmost expedition for the purpose of securing peace in industry.
15. In such background if an industrial dispute between the employer and the workman is referred to the Tribunal for adjudication by the appropriate Government and such an issue as to the justification of the order of the dismissal or termination is framed, it is for the employer to justify such dismissal either by relying upon a domestic enquiry or by adducing fresh evidence.
16. Different courses which are open to the employer when the Tribunal seeks to adjudicate the dispute referred to it, have been very succinctly laid down by the Supreme Court in paragraph 60 of its judgment rendered in case of Delhi Cloth and General Mills Co. Ltd. v. Ludh Budh Singh, reported in (1972-I-LLJ- 180) (SC) upon which reliance has also been placed by Justice G.R. BHATTACHARYA in the aforesaid case of Ganges Manufacturing Ltd. It will be worth quoting the aforesaid paragraph of the said Supreme Court judgment hereunder :-
1. "If no domestic enquiry had been held by the management, or if the management makes it clear that it does not rely upon any domestic enquiry that may have been held by it, it is entitled to straight-away adduce evidence before the Tribunal justifying its action. The Tribunal is bound to consider that evidence so adduced before it, on merits, and give a decision thereon. In such a case, it is not necessary for the Tribunal to consider the validity of the domestic enquiry as the employer himself does not rely on it.
2. If a domestic enquiry had been held, it is open to the management to rely upon the domestic enquiry held by it in the first instance, and alternatively and without prejudice to its plea that the enquiry is proper and binding, simultaneously adduced additional evidence before the Tribunal justifying its action. In such a case no interference can be drawn without anything more, that the management has given up the enquiry conducted by it.
3. When the management relies on the enquiry conducted by it, and also simultaneously adduce evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal in the first instance to consider whether the enquiry proceedings conducted by the management are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives. It is only whom the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.
4. When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal if the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be under such circumstances, it is open to the Tribunal to deal with in the first instance, as a preliminary issue the validity of the domestic enquiry. It its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management. But if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence has been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal, the position under such circumstances, will be that the management is deprived of the benefit of having the finding of the domestic tribunal being accepted as prima facie proof of the alleged mis-conduct. On the other hand, the management will have to prove, by adducing proper evidence, that the workman is guilty of mis-conduct and that the action taken by it is proper. It will not be just and fair either to the management or to the workman that the Tribunal should refuse to take evidence and thereby ask the management to make a further application, after holding a proper enquiry, and deprive the workman of the benefit of the Tribunal itself being satisfied, on evidence adduced before it, that he was or was not guilty of the alleged misconduct.
5. The management has a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been availed of or asked for by the management before the proceedings are closed, the employer can make no grievance that the Tribunal did not provide such an opportunity. The Tribunal Will have before it only the enquiring proceedings and it has to decide whether the proceedings have been held properly and the findings recorded therein are also proper.
6. If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decides that the domestic enquiry has not been held properly it is not its function to invite suo motu the employer to adduce evidence before it to justify the action taken by it.
7. The above principles apply to the proceedings before the Tribunal, which have come before it either on a reference under Section 10 or by way of an application under Section 33 of the Act ".
17. In the aforesaid judgment the Supreme Court no doubt did not really had occasion to decide the question which has come up before this Court, namely, when the issue of the validity of the domestic enquiry is taken by the Tribunal as a preliminary point who will be asked to adduce evidence first.
18. But, in my view, from the principles which have been laid down by the Supreme Court in the aforesaid decision it will appear that it will be for the employer to justify its action in terminating or dismissing the workman before the Tribunal and therefore it relies on domestic enquiry as defence. The burden of proving that such enquiry was valid and proper will be on the employer and therefore, it will be for the employer to adduce the evidence first in support of such validity and propriety of the domestic enquiry.
19. It may be noted in this connection that the aforesaid decision was rendered by the Supreme Court while considering the application of the employer for permission to dismiss the workman under Section 33 of the Industrial Disputes Act, and such permission can be granted by the Tribunal only if the domestic enquiry is valid and proper.
20. In such a situation, therefore, there cannot be any doubt that such permission cannot be obtained by the employer unless it satisfies the Tribunal that the domestic enquiry held against the workman was valid and proper and therefore, the burden will be upon the employer to prove the same before the Tribunal. Consequently it is the employer who has to lead evidence first in such a situation.
21. In the instant case we are no doubt not concerned with the situation where the Tribunal was considering an application for permission to dismiss the workman under Section 33 of the Act.
22. In the instant case on reference of a dispute before the Tribunal under Section 10(1) of the Act the issue before the Tribunal was whether the dismissal of the workman was justified. But even in such a situation, in my view, if the employer relies on a domestic enquiry to defend his action and the validity of the domestic enquiry is to be considered by the Tribunal as a preliminary issue, the burden will be upon the employer to satisfy the Tribunal that the domestic enquiry was held validly and properly.
23. The above mentioned aspects of the matter have been overlooked by the Bombay High Court in the case of Naring Latex and Dispension Pvt. Ltd. and Ors. v. S. V. Suvarna, reported in (1995-I-LLJ 113) which has been followed by Justice BHATTACHARYA in the aforesaid case of Ganges Manufacturing Ltd. The Bombay High Court in the said case was of the view that the workman was to lead evidence first on issue of fairness of enquiry since the burden of proving the enquiry was defective is on the workman as it is alleged by the workman that the dismissal is wrongful as the domestic enquiry is defective- Such view was taken by Their Lordships on the principles that the burden of proof would lie on a party who would fail if no evidence is led by either of the parties and therefore, it would be for the workman to lead evidence first to show that the domestic enquiry is not fair and proper and therefore, the order of dismissal is wrongful.
24. The Bombay High Court followed the decision of the Allahabad High Court in the case of Air Tech. Pvt. Ltd. and Ors. v. State of U.P. and Ors., reported in 1984 (49) FLR 38 and the case of Sankar Chakraborty v. Britannia Biscuits Co. Ltd., reported in (1979-II-LLJ 194) (SC).
25. The matter, however, may be examined from a different angle also.
26. In the concerned domestic enquiry, the burden is not upon the workman to disprove the charge of misconduct, but it is upon the employer to prove the charge in the domestic enquiry and to prove that the workman was guilty of the misconduct.
27. In the adjudication of the dispute before the Industrial Tribunal, therefore, if the employer relies on the decision of the domestic enquiry, it is to be examined by the Tribunal whether the same has been held validly and properly. Before the Tribunal therefore, the employer really relies on a statement of things in its defence, namely, workman has been dismissed after holding a valid and proper domestic enquiry. Therefore, it will be for the employer to establish before the Tribunal that such domestic enquiry was valid and proper and to adduce evidence first.
28. Examining from another angle also it appears to this Court that the Tribunal should direct in such a situation the employer to lead his evidence first.
29. If the validity of the domestic enquiry is taken by the Tribunal the scope of examination of the Tribunal in that regard is limited. It is now well settled to decide the same that the Tribunal cannot examine the merits of the decision taken in the domestic enquiry nor can it substitute its own finding for that of the Enquiry Officer. In the process of examining the validity of the domestic enquiry the Tribunal really has to examine whether the principles of natural justice have been complied with and the workman was given reasonable opportunity of hearing at the Tribunal. It can also examine whether there is any defect in the procedure followed by the Tribunal.
30. Such being the scope of examination of the Tribunal, in the interest of expeditious disposal of the dispute the Tribunal should direct the employer to adduce evidence first. All the materials and documents being in possession of the employer apart from merely adducing oral evidence alleging that reasonable opportunity of hearing was denied at the enquiry or the procedure adopted by the Tribunal was defective, the workman will hardly be in a position to lead any documentary evidence. But if the employer is asked to adduce evidence first, it will be open to the employer right from the beginning to establish by producing documentary and oral evidence that the enquiry was held validly and properly and in compliance with the principles of natural justice and in case of its failure to do so it will be open to the employer to adduce additional evidence before the Tribunal to justify the termination which will lead to expeditious disposal of adjudication of dispute.
31. The best evidence being in possession of the employer as to the validity or propriety of the concerned domestic enquiry and since the employer wants to rely on a particular state of fact, namely, the workman was dismissed after holding a valid and proper domestic enquiry, in fitness of things the employer should be asked to prove the same by adducing the evidence first.
32. In the case of U.P. State Road Transport Corporation, Kanpur v. Sarafraj Hussain and Ors., a Learned Single Judge of Allahabad High Court, reported in 1995 (70) Indian Factories and Labour Reports 858 held that following the decision of the Supreme Court in the case of Workmen of Firestone Tyre and Rubber Co. v. Management reported in (1973-I-LLJ-278) that it is the duty of an employer to establish at the Tribunal that the enquiry has been properly held when there is allegation that the enquiry is defective.
33. In the case of Ganges Manufacturing Co. v. State of West Bengal (supra) Justice BHATTACHARYA has expressed the view that on a reference in Section 10 of the Industrial Disputes Act, when the employer asks the Tribunal to decide the validity of the domestic enquiry as a preliminary point the onus is upon the workman to prove that the same was not held properly and therefore, it is for the workman to adduce evidence first, mainly relying on the decision of the Supreme Court in the case of Sankar Chakraborty v. Britannia Biscuits Co. Ltd., (supra). In the said case the Supreme Court held, inter alia, that an Industrial Tribunal will have all the trappings of Court and when any party appearing before the Tribunal first makes a claim or demur the claim of the other side and when there is burden upon him to prove or establish the fact so as to invite the decision in favour of him, he has to lead evidence first. Relying on such decision it was held by Mr. BHATTACHARYA in paragraph 3 of the judgment that even though under Section 11(1) of the Industrial Disputes Act the Tribunal can follow such procedure as it may think fit and is not bound by all the technicalities of Civil Courts, yet the procedure to be adopted by it must be just and fair and must subserve and not subvert the goals of fair procedure and justice and therefore, it is desirable that in respect of matter of cardinal importance relating to procedure the Labour Court or Industrial Tribunal should broadly follow the same pattern as followed by the Civil Court. Relying on the provisions under Sections 101 and 102 of the Evidence Act that whoever desires any Court to give judgment as to any legal right or liability depending on the existence of the facts which he asserts must prove that those facts exist and burden of proof when a suit proceeding lies on the person who would fail if no evidence at all is given on either side. Following the decision of Bombay High Court it was held that the burden of proof would lie on the workman and therefore, he would have to lead evidence first.
I respectfully disagree with His Lordship.
34. In my view, paragraphs 30 and 31 of the aforesaid judgment of the Supreme Court in the case of Sankar Chakraborty v. Britannia Biscuits Co. Ltd., is not the authority for the proposition that when the employer asks the Tribunal to decide the question as to the validity of the domestic enquiry as a preliminary issue, it is for the workman to adduce the evidence first to prove that the domestic enquiry was invalid such a question was never an issue before the Supreme Court in the case of Sankar Chakraborty v. Britannia Biscuits Co. (supra). The issue before the Supreme Court in the said case was that when before the Tribunal or the Labour Court the employer justifies the order of termination on the basis of holding of a domestic enquiry as defence and the Tribunal while deciding such validity of the domestic enquiry finds the same to be defective, whether the employer should be permitted by the Tribunal to lead independent evidence in justification in the order of termination and at what stage and in what manner such opportunity should be given to the employer. That apart in the said case it was never held by the Supreme Court that when the employer asks the Tribunal to decide the validity of the domestic enquiry as a preliminary point, the burden will be upon the workman to prove that the domestic enquiry was held improperly and was invalid.
35. In my view, when the employer asks the Tribunal to decide the question of validity of the domestic enquiry as a preliminary point, the onus is upon the employer to prove that such domestic enquiring was held validly and properly and therefore, it will be quite fair and proper on the part of the Tribunal or the Labour Court to ask the employer to adduce evidence first.
36. The fact that burden is upon the employer to prove the domestic enquiry was held validly and properly in a proceeding under Section 33(3)(2) of the Industrial Disputes Act has also been accepted by Justice BHATTACHARYA in the aforesaid case of Ganges Manufacturing Co. Ltd. (supra) But such burden, in my view, is also on the employer even when a reference is made by the appropriate Government under Section 10(1) of the Act of the dispute between the parties to the Tribunal for its adjudication.
37. It cannot be disputed that the Industrial Disputes Act is a special statute enacted by the legislature with the object of ensuring peace in the industry through expeditious adjudication of disputes between the employer and employee. Industrial Tribunal, Labour Courts, etc., have been created under the aforesaid Act as a special forum for adjudication of the said disputes and in the matter of such adjudication even though the Industrial Tribunal may have the trappings of the Court they are not really Courts but special forum created under the said statute and although exercise quasi judicial power are not strictly governed by the rule of evidence. It is also not bound to follow the provisions of the Civil Procedure Code as a matter of rule except in case where it has been specified provided for under the Industrial Disputes Act or the Rules made thereunder. Section 11(1) of the Industrial Disputes Act empowers the Tribunal to regulate its own procedure.
38. It is true as pointed out by Justice BHATTACHARYA in the case of Ganges Manufacturing Co. Ltd., that such procedure to be adopted by the Tribunal has to be fair and proper and not arbitrary. But when Tribunal is required to decide the validity of domestic enquiry as a preliminary issue at the instance of the employer and asks the employer to adduce evidence first, such procedure followed by the Tribunal cannot be said to be either arbitrary or improper or unfair.
39. When under Section 10 of the Industrial Disputes Act the appropriate Government refers the dispute between the employer and the workman relating to termination of service to the Tribunal, although such reference may be made at the instance of the workman, such reference is made by the appropriate Government for adjudication by the Tribunal on the question whether the termination of the workman is justified and because of such reference by the appropriate Government under the aforesaid provisions of the Act the Tribunal or the Labour Court, as the case may be, is duly bound to adjudicate such questions.
40. Because of such reference under Section 10 of the Industrial Disputes Act, therefore, the real issue before the Tribunal is whether the termination of the workman is justified. Before the Tribunal, therefore, it will be for the employer to justify his termination of the workman. In justification of such Act before the Tribunal it is open to the employer to rely on the fact of holding of a valid and proper domestic enquiry by way of defence, but for which the Tribunal is under no obligation to examine on its own whether a valid and proper domestic enquiry has been held. It is also open to the employer to pray before the Tribunal for adducing additional evidence before the Tribunal as held by the Supreme Court to prove that the termination of the workman was justified, in the event the domestic enquiry is found to have been held improperly and is declared to be invalid. Thus, it is for the employer to justify its action of terminating the service of the workman either by proving before the Tribunal that the domestic enquiry was held validly and properly or by independent evidence or by both.
41. Under such circumstances when in a given case the employer asks the Tribunal to decide the question of the validity of the domestic enquiry as a preliminary point it will be quite fair and proper for the Tribunal to call upon the employer to lead evidence first, since for the reasons stated above the burden will be upon the employer to justify its action in terminating the service of the employer by proving that the same was done by holding a valid and proper domestic enquiry.
42. Even if the Rule of Evidence as contained in Sections 101 and 102 of the Evidence Act is applied as it was done by Justice BHATTACHARYA following the decision of the Bombay High Court, even then, in my view, the burden will be open the employer.
43. Since for the reasons stated above it will be for the employer to justify its action in terminating the service of the workman before the Tribunal and in justification thereof if the employer relies on a state of things or on a fact, namely, that such termination has been preceded by holding of a valid and proper domestic enquiry, it will be for the employer to prove before the Tribunal that such enquiry was held validly and properly.
44. The mere fact that a domestic enquiry has been held cannot be a defence of an employer in justification of the termination of the service of a workman, but only holding of a valid and proper domestic enquiry can be the defence in justification of the termination of the service of the workman.
45. The reason is, the question to be determined by the Tribunal while considering the question whether the termination of workman is justified or not, not whether the termination has been made after holding a domestic enquiry, but whether the termination has been made by holding a valid and proper enquiry where the workman had reasonable opportunity of defending himself in absence of which entire action of the employer including the domestic enquiry will be void.
46. It has been submitted by the learned Counsel appearing on behalf of the employer relying on the decision of the Supreme Court in the case of Kalwa Devadattam and Ors. v. Union of India and Ors., reported in AIR 1961 SC 880 that one of the tests for determining upon whom the burden of proof in a suit or proceeding lies, who would fail if no evidence at all .is given on either side.
47. Application of such tests for determination of question of burden also, however, in my view, will only indicate the burden will be upon the employer.
48. As pointed out hereinbefore that since issue before the Tribunal for adjudication is whether the termination of the workman is justified, it will be for the employer to justify its action before the Tribunal either by proving before the Tribunal that such termination was made after giving reasonable opportunity of hearing to the workman by holding a valid and proper domestic enquiry or by adducing independent evidence or by both. Unless, therefore, the employer seeks to justify the termination of the workman by contending the same was done after giving reasonable opportunity of hearing by holding a proper and valid domestic enquiry, the Tribunal has no obligation to examine whether termination of the workman has been made after giving reasonable opportunity of hearing to him by holding a proper and valid domestic enquiry.
49. In such a situation if no parties lead evidence before the Tribunal inevitable result will be the employer will fail to justify the termination of service of the workman.
50. As held by the Supreme Court in the case of Workmen of Firestone and Rubber Co. v. The Management and Ors., (supra) after introduction of Section 11-A of the Industrial Disputes Act, after reference to the Tribunal to adjudicate the issue whether the termination of the workman is justified, the Tribunal has to be satisfied that the order of discharge or dismissal was justified by holding a valid and proper domestic enquiry or otherwise. It was, however, held by the Supreme Court in the said case in paragraph 32 of the judgment the words "in the course of the adjudication proceedings the Tribunal is satisfied that the order of discharge or dismissal was not justified" used in Section 11-A of the Act clearly indicates that the Tribunal is now clothed with the power to reappriase the evidence in the domestic enquiry and satisfies itself whether the said evidence relied upon by an employer established the misconduct alleged against the workman; what was originally a plausible conclusion that could be drawn by an employer from the evidence, has now given place to a satisfaction to be arrived at by the Tribunal that the finding of the misconduct is correct. It was further held by the Supreme Court that after the introduction of Section 11-A of the Act the Tribunal is now at liberty to consider not only whether the finding of misconduct recorded by an employer is correct, but also to differ on the said finding if a proper case is made out; what was once largely in the realm of the satisfaction of the employer, has ceased to be so and now it is the satisfaction of the Tribunal that finally decides the matter. It was further held by the Supreme Court in the said case (Paragraph 45 of the judgment) that the legislature in Section 11-A of the Act has made a departure in certain respect of law as laid down by the Supreme Court earlier; for the first time power has been given to a Tribunal to satisfy itself whether misconduct is proved that is particularly so recording even findings arrived at by an employer in an enquiry properly held.
51. Such being the position of law there cannot be doubt, in my view, that when the employer puts on his defence against the order of termination or holding a valid and proper disciplinary enquiry and ask the Tribunal to decide the question of such valid and proper domestic enquiry as a preliminary point, the burden will be upon the employer to show that such domestic enquiry has been held validly and properly and consequently it will be for the employer to adduce evidence first to prove that the domestic enquiry was held validly and properly.
52. It may also be noted in this connection that in the said decision of Firestone Tyre and Rubber Co. (supra) it was also held by the Supreme Court (paragraph 40 of the judgment) that it is the consistent view of the Supreme Court that an employer is expected to hold a proper enquiry according to the Standing Order and principles of natural justice and that such an enquiry should not be an empty formality. It was further held by the Supreme Court in the said case that it cannot be over emphasised that conduct of a proper and valid enquiry by an employer will be conducive to harmonious and healthy relationship between the employer and the workman and it will serve the industrial peace and it will also enable the employer to persuade the Tribunal to accept the enquiry as proper and the finding also as correct.
53. The defence of the employer in justification of the termination of an employee before the Tribunal which is to adjudicate whether such termination was justified, therefore, cannot merely be holding of a domestic enquiry, but holding of a valid and proper enquiry after giving reasonable opportunity of hearing to the workman or in terms of the Standing Order and, therefore, the burden will be upon the employer to prove the same.
54. The decisions of the Supreme Court rendered in the case of Cooper Engineering Co. Ltd. v. P.P. Mundhe, reported in (1975-11-LLJ-379) (SC) and in the case of Delhi Cloth and General Mills v. Ludbudh Singh, (supra) and in the case of R.K. Jain, reported in 1972 Labour & Industrial Cases 13 and even in the case of Sankar Chakraborty v. Britannia Biscuits Co. Ltd., (supra) had to deal with the question that in an adjudication before the Tribunal what are the procedures which can be followed by the employer to justify its action in terminating the service of the workman will also indicate the burden will be" upon the employer to justify such action by proving that such termination was made after holding a valid and proper enquiry.
55. The observations made by the Supreme Court in paragraph 29 of its judgment in the case of Sankar Chakraborty (supra) are really in the nature of a general statement relating to the status of the Tribunal and the procedures to be followed therein.
56. Although much reliance has been placed by Justice BHATTACHARYA in the case of Sankar Chakraborty (supra), it was not decided by the Supreme Court at all in the said case that when employer seeks to justify its action in discharging the employee by taking the defence of holding a valid and proper domestic enquiry and asks the Tribunal to decide such question as a preliminary point, the burden will be upon the workman to prove the domestic enquiry was not held validly and properly.
57. In my view, there cannot be any general rule for determining the question while adjudicating a dispute between the parties. The Tribunal will call upon whom to adduce evidence first. The same will obviously depend upon the terms of reference made before the Tribunal and consequently the issue which the Tribunal will be required to adjudicate.
58. In fact, Rule 20(H) of the Industrial Disputes Rules, 1958 itself requires the Tribunal to decide first haying regard to the nature of dispute and issue regarding adjudication, which party would be called to adduce evidence and lead evidence.
59. For the reasons stated above, I am of the view, that when a reference is made under Section 10 of the Industrial Disputes Act before the Tribunal for adjudicating the issue whether the termination of the concerned workman is justified and to what relief he is entitled to and the employer seeking to justify such termination by holding of a valid and proper domestic enquiry asks the Tribunal to decide such question as a preliminary point, there cannot be any doubt that the employer will (sic) prove the same and consequently the employer should be asked to adduce evidence first.
60. Such burden will be upon the employer to prove that the termination of the employee was made after holding a valid and proper domestic enquiry more so when the Tribunal asks the employer to decide the same as a preliminary point.
61. This is also because of the reasons that it is the settled procedure that before any Court of law or Tribunal when a party raises a point of demurrer or a preliminary point, he will have to address first and satisfy the Court or Tribunal on such preliminary point raised by him.
62. Justice BHATTACHARYA in the case of Ganges Manufacturing (supra), inter alia, after referring to the decision of Delhi Cloth and General Mills (supra) has tried to make a distinction between the cases where the employer applied before the Tribunal for seeking leave to terminate the service of an employee under Section 33-C(2) of the Industrial Disputes Act and a case where a Tribunal has to adjudicate the issue referred to it by the appropriate Government under Section 10 of the Industrial Disputes Act and has held that when the employer seeks such relief from the Tribunal under Section 33-C(2) of the Act, the burden will be upon the employer to satisfy the Tribunal that the domestic enquiry was held validly and properly.
63. But in the matter of deciding as to the procedure to be followed before the Tribunal and what is the status of an Industrial Tribunal or Labour Court the Supreme Court in paragraphs 29 to 31 of its judgment in the aforesaid case of Sankar Chakraborty (supra) has not made any distinction in proceeding before the Tribunal or a Labour Court either on a reference under Section 10 or on an application under Section 33 of the Industrial Disputes Act.
64. The learned counsel appearing for the respondents also tried to contend that since the Tribunal in its discretion has decided that the workman should adduce evidence first and therefore, there is no violation of principles of natural justice, there cannot be any interference with the said decision of the Tribunal by the writ Court.
65. While the Tribunal now can regulate its own procedure under Sub-section (1) of Section 11 of the Industrial Disputes Act, such a procedure to be followed by the Tribunal, it cannot be disputed, cannot be arbitrary or in violation of principles of natural justice.
Such procedure has to be fair and proper.
66. Rule 20(H) of the West Bengal Industrial Disputes Rules, 1958 enjoins upon the Tribunal to decide first having regard to the nature of the dispute and the issue requiring adjudication, which party shall be called upon to open its case and lead evidence.
67. If in the matter of taking such decisions a party in a given case is called upon to adduce evidence first although the burden is upon the other party to prove a particular fact and consequently he has to lead evidence first, such procedure followed by the Tribunal certainly will be unfair, improper and arbitrary and therefore, certainly can be interfered with by the writ Court.
68. Since it is the specific case of the writ petitioner in the instant case who is the workman that the burden was on the employer to prove before the Tribunal that enquiry was held validly and properly and in consonance with the principles of natural justice, the Tribunal having been asked to decide such question as a preliminary point and the Tribunal have acted improperly by directing the workman to adduce evidence first, the petitioner certainly can maintain the present writ application.
69. The learned, counsel appearing for the respondents has also relied on the Constitution Bench decision of the Supreme Court in the case of Union of India v. T.R. Varma, reported in (1958-II-LLJ-259) (SC) in support of his contention that in following the impugned procedure there being no violation of natural justice by the Tribunal, there will be no interference by the writ Court.
70. Such position, in my view, however, helps the petitioner more than the respondent. It has been held, inter alia, by the Constitution Bench in the said case that the Evidence Act has no application to enquiry conducted by the Tribunals even though they may be judicial in character; law requires that such Tribunal should observe rules of natural justice in the conduct of enquiry and if they do so the decision is not liable to be impeached on the ground that the procedure followed was not in accordance with the Evidence Act.
71. In the instant case as pointed out hereinabove it will be certainly in violation of the principles of natural justice if the Tribunal calls upon a party to adduce evidence first although the burden is on the other party to prove that domestic enquiry was validly and properly held and hence the termination of the workman is justified.
72. But the other observations of the Constitution Bench in the said case that the Evidence Act has no application to enquiry conducted by the Tribunal even though they may be judicial in character establishes that in the case of Ganges Manufacturing, (supra) Justice BHATTACHARYA as also the Bombay High Court which was followed by Justice BHATTACHARYA unnecessarily emphasised on Sections 101 and 102 of the Evidence Act for the purpose of deciding who should be called upon to adduce evidence first when the Tribunal is asked by the employer to decide the question of validity of the domestic enquiry as a preliminary point.
73. For the reasons stated above, I am of the view, that the Industrial Tribunal acted improperly and in violation of principles of natural justice by calling upon the workman t adduce evidence first although the employer asked the Tribunal to decide the question of the validity of the domestic enquiry as a preliminary point.
74. Since I am, however, in disagreement with the view expressed by Justice BHATTACHARYA in the aforesaid case of Ganges Manufacturing Co. Ltd. (supra) following which the Tribunal after modifying its earlier order directing the employer to adduce evidence first, directed the workman to adduce evidence first, I have no option but to request the Hon'ble Chief Justice to refer the question involved in the present case to a larger Bench for its decision.
75. Let the matter, therefore, be placed before the Hon'ble Chief Justice for referring the matter to a larger Bench for deciding the question involved the present case.
76. Subject to any order that may be passed by such a larger Bench, all further proceedings before the Tribunal relating to the adjudication of the main issue shall remain stayed till the decision of such larger Bench.
77. It may be recorded that on the application of the workman when the matter was pending for judgment on May 6, 1999, it was directed, inter alia, by this Court that the main proceedings before the Tribunal shall remain stayed till the disposal of the present writ petition, i.e., W.P. No. 2531 of 1996, but the same will not prevent the Tribunal to consider and dispose of the application made by the workman for enforcement of Order No. 29 dated January 24, 1996, whereby an interim relief was granted. Since such prayer of interim relief having been allowed and the same not having been stayed or set aside by any higher Forum, the employer was bound to pay such interim relief.
78. It is, therefore, made clear, stay of all further proceedings before the Tribunal relating to the adjudication of the main issue till the decision of larger Bench as directed by this judgment, will not stand in the way of the Tribunal to consider and dispose of the application made by the workman for enforcement of the Order No. 29 dated January 24, 1996, whereby interim relief was granted to the workman.
79. There will be no order as to costs.