Karnataka High Court
Nayana Kumar vs State Of Karnataka on 1 February, 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.9809 OF 2017 (S-DIS)
BETWEEN:
NAYANA KUMAR
S/O P SRINIVAS ACHARYA
AGED ABOUT 42 YEARS
GURUKRIPA, KUKKUJE POST
KARKALA TALUK
UDUPI DISTRICT-574 108
...PETITIONER
(BY SRI JANARDHANA G., ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF EDUCATION (HIGHER EDUCATION)
VIDHANASOUDHA, BANGALORE-560 001
REPRESENTED BY PRINCIPAL SECRETARY TO GOVT.
2. DIRECTORATE OF TECHNICAL EDUCATION
DEPARTMENT OF TECHNICAL EDUCATION
OFFICE OF THE DIRECTOR
PALACE ROAD, BANGALORE-560 001
REPRESENTED BY ITS DIRECTOR
3. NITTE RUKMINI ADYANTHAYA MEMORIAL
POLYTECHNIC (NRAMP) (AIDED)
2
NITTE, KARKALA TALUK
UDUPI DISTRICT-574 110
REPRESENTED BY ITS PRINCIPAL
4. NITTE EDUCATION TRUST
6TH FLOOR, UNIVERSITY ENCLAVE
MEDICAL SCIENCES COMPLEX
DERAKAKATTE, MANGALORE-575 013
BY ITS TRUSTEE
...RESPONDENTS
(BY SRI P.S.RAJAGOPAL, SENIOR ADVOCATE FOR
SMT. ASHWINI RAJAGOPAL, ADVOCATE FOR R3 & R4;
SMT. PRATHIBHA R.K., AGA FOR R1)
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER ON
I.A. PASSED IN EAT NO.1/2015 PENDING BEFORE THE HON'BLE
EDUCATIONAL APPELLATE TRIBUNAL, MANGALORE DATED
16.2.2017 MARKED AS ANNEX-J AND ETC.,
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 31.01.2024, COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The challenge in the present captioned petition is to the order passed by the Labour Court on an application filed by the respondent No.4/Management requesting the Labour Court to recast issue No.1 by casting burden on the workman to substantiate that domestic enquiry conducted by the 3 respondent No.4/Management is not just and fair. The said application filed by the respondent in I.A.No.5 under Order 47 Rule 1 is entertained by the Labour Court and the preliminary issue No.1 is reframed thereby casting burden on the petitioner/workman to substantiate that the domestic enquiry was not fair and just. The said order is under challenge.
2. The facts leading to the case are as under:
The petitioner was appointed as a Selection Grade Lecturer in respondent No.2/Institution. The respondent No.3/Institution issued a show cause notice alleging that petitioner has sought information in the fake names and addresses. The enquiry was constituted and petitioner appeared in the enquiry. The Enquiry Officer submitted his report. After conclusion of enquiry, the petitioner was served with enquiry report along with second show cause notice. The Disciplinary Authority having examined the explanation tendered by the petitioner proceeded to dismiss the petitioner 4 from service and the same is challenged before the Employees Appellate Tribunal in EAT.No.1/2015.
3. The respondent Nos.3 and 4 tendered written statement and following issues were framed:
"1. Whether the appellant proves that the domestic enquiry conducted by the respondent No.1 is not just and fair?
2. Whether the appellant proves that the termination order passed by the respondent No.1 dated 09.06.2015 is not valid and justifiable?
3. To what relief's the appellant is entitled to?"
4. The respondent No.4 filed an application under Order 47 to recast the preliminary issue. The Tribunal has allowed the application filed in I.A.No.5 and the preliminary issue is reframed as under:
"Whether the appellant proves that the domestic enquiry conducted by the respondent No.1 is not just and fair?"5
5. Learned counsel for the petitioner reiterating the grounds would contend that the burden of proving that enquiry was fair and proper is always on the Management. He would point out that petitioner has seriously disputed and questioned the fairness of enquiry and therefore, the burden is always on the Management to substantiate that domestic enquiry was fair and just. He would point out that the Tribunal by reframing the preliminary issue, the burden is cast on the petitioner to prove something in negative which is impermissible under law. Referring to Sections 103 to 106 of Evidence Act, he would vehemently argue and contend that preliminary issue framed by the Tribunal is in negative. Placing reliance on the judgment rendered by the Coordinate Bench in W.P.No.1714/2021, he would contend that burden is always on the employer to show that enquiry was fair and just.
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6. Per contra, learned Senior Counsel to counter the contentions of the petitioner has placed reliance on the following judgments:
1) The President, Golden Valley Education Trust, Oorgaum Kolar Gold Fields vs. The District Judge & Educational Appellate Tribunal, Kolar - ILR 1979 Kar 526;
2) Sri Jagadguru P.V.D. Vidya Peetha vs. Akalandaswamy Math - ILR 1979 Kar 2275;
3) Kalpatharu Vidya Samithi vs. Educational Appellate Tribunal - ILR 1988 Kar 701;
4) Board of Management of S.V.T. Educational Institution vs. A.Raghupathy Bhat - (1997) 10 SCC 178;
5) Hombe Gowda Educational Trust vs. State of Karnataka - (2006) 1 SCC 430;
6) Narang Latex & Dispersions (Pvt) Ltd. vs. S.V.Suvarna and Another - 1996 (3) LLN 737;
7) UCO Bank vs. The Presiding Officer & Another
- ILR (1999) II Delhi 331;
8) Punjab Tractors Limited vs. Presiding Officer, Labour Court & Another - 2007 SCC Online P&H 1086;
9) Airtech Private Limited vs. State of U.P. & Others - 1983 SCC Online ALL 954;7
10) Karnataka State Road Transport Corporation vs. Lakshmidevamma & Another - (2001) 5 SCC 433;
11) Ganges Manufacturing Company Ltd. and Others vs. State of West Bengal and Others - 1996 (2) LLN 1031;
12) General Secretary, Mc.Dowell Employees' Association, Varanad vs. Mc.Dowell & Co., Ltd. and Others - 1975 SCC Online Ker 92;
13) V.K.Raj Industries vs. First Labour Court, Kanpur and Others - (1981) 2 LLN 498.
7. Placing reliance on the judgment rendered by the Punjab and Haryana High Court in the case of Punjab Tractors Limited (supra), he would contend that where domestic enquiry is held but the same is questioned by the employee on the ground that enquiry is defective, the onus of proving such preliminary issue would be always on the workman to prove such domestic enquiry as vitiated on account of there being a defective enquiry. He would contend that if Management is placing reliance on the domestic enquiry, then the burden of proving the charges would arise, 8 subject to the findings recorded on preliminary issue. If preliminary issue is answered in favour of employee/workman, the Management has to adduce evidence to substantiate the misconduct of the employee/workman. Therefore, he would contend that the order under challenge recasting the preliminary issue does not suffer from any infirmities. Therefore, no indulgence is warranted at the hands of this Court.
8. Heard learned counsel for the petitioner and learned counsel appearing for the respondents. Perused the pleadings.
9. The domestic enquiry conducted by the respondent No.4/Management is challenged mainly on the following grounds raised before the Tribunal:
"(iii) The appellant has submitted detailed explanation to the show cause notice dated 30.09.2013.
The respondent No.1 ought to have accepted the 9 explanation and should have dropped the further proceedings.
(iv) The charges levelled against the appellant are vague. The charges framed are bad under law. The alleged charges framed are not under which provision of service rules is applicable.
(v) The appointment of one man enquiry is illegal. The respondent No.1 ought to have appointed enquiry committee in order to enquire into the charges levelled against the appellant and on same ground the one man enquiry is liable to be set-aside. The appellant ought to have followed the rules under the grant in aid code of collegiate education.
(vi) The reasons given by the enquiry officer in his enquiry report is erroneous, one sided and against the principles of natural justice. The enquiry report is one sided.
(vii) The enquiry conducted is also one sided. The appellant has not permitted to participate enquiry proceedings and he has not given permission to attend the same. Therefore the reasonable opportunity to participate enquiry is not provided. Virtually enquiry proceedings is one sided and same is liable to be set- aside."
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10. There are conflicting views by various High Courts on this issue. The Allahabad High Court in the case of U.P. State Road Transport Corporation Kanpur and Another vs. Sarfaraz Hussain and Others1, while examining on whom the burden lies insofar as preliminary issue is concerned, was of the view that in a domestic enquiry, the burden is on the employer to prove the charges against the delinquent. It is in this background, the Allahabad High Court was of the view that primarily burden is on the employer to establish before the Tribunal or Labour Court that the enquiry was properly held, particularly when such enquiry was defective. The Allahabad High Court was of the view that burden of proving that there was no enquiry or a defective enquiry was never on a person who denies it. It further proceeded to hold that Section 101 of Evidence Act comes into play when burden of proof was on the employer that delinquent was guilty in domestic enquiry and therefore, the 1 1994 SCC Online All 903 11 burden is on the employer to substantiate and prove that domestic enquiry was properly held.
11. The Punjab High Court in the case of Punjab Tractors Limited (supra), however, held that where domestic enquiry is held but it is alleged by workman that such enquiry is defective for one or the other reasons, the onus of proof of such preliminary issue would be on the workman to prove such domestic enquiry as vitiated.
12. Similar view is expressed by the Bombay High Court in the case of Narang Latex and Dispersions Pvt. Ltd. vs. S.V.Suvarna (Mrs.) and Another2. The Bombay High Court was of the view that where workman disputes the enquiry conducted against him as not proper and is violative of principles of natural justice, in such circumstances, burden of proving as to how enquiry conducted was illegal and invalid would be on the workman and not on the Management. 2 (1995) ILLJ113BOM 12
13. On meticulous examination of the principles laid down by various High Courts, the question that needs consideration at the hands of this Court is, as to on whom the burden lies when workman has disputed domestic enquiry on the ground that it was in violation of principles of natural justice.
14. When the Management relies on enquiry conducted by it, the Tribunal has to, at first instance, get itself satisfied as to whether enquiry proceedings have been held properly and are valid. In employment law and industrial relations, onus is often on the workmen to prove that a domestic enquiry was not fair because they are the ones challenging the fairness of the process. Since employer conducts domestic enquiry, it is presumed to be fair and valid unless employee can demonstrate otherwise. This arrangement helps maintain efficiency of workplace investigations while ensuring that employees have the opportunity to present evidence if they believe the process was unjust. It is a trite law where the 13 party challenging an established procedure or decision bears the burden of proof. The burden of proof on the workman to demonstrate that a domestic enquiry was not fair serves several purposes. Firstly, it promotes transparency and accountability in employment relations. By requiring the party challenging the fairness of an enquiry to present evidence, it ensures that allegations are not made lightly and that there is a basis for the claim.
15. In the present case on hand, it is the employee who has raised the dispute against his dismissal. He has filed an application by contending that enquiry conducted is not proper and that there is violation of principles of natural justice. Therefore, it is for the workman to actively participate in the dispute and articulate the grounds while questioning the fairness of domestic enquiry and present relevant evidence in that regard.
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16. Moreover, the principle aligns with the practicality of investigations conducted by employers. Employers are generally responsible for managing and maintaining order in the workplace, and they must have the ability to conduct internal inquiries efficiently. Therefore, presuming fairness of the domestic enquiry until proven otherwise helps maintain the integrity of internal investigation processes. The rationale behind placing the burden of proof on the workman is rooted in legal principles of fairness and efficiency. By requiring the party challenging the fairness of a domestic enquiry to provide evidence, it ensures a balanced approach in employment disputes.
17. If the preliminary issue is answered in favour of the workman, then the entire burden would shift on the Management to substantiate and prove the charges of misconduct. If the findings on preliminary issue is in favour of the Management, then no additional evidence need to be cited by the Management. Therefore, what emerges is that only 15 when preliminary issue is answered against the Management, the Tribunal will have to give the Management an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra. Therefore, all depends on facts and circumstances of the case and the burden of proving the charges would also depend upon the findings recorded by the Labour Court/Appellate Tribunal. When the preliminary issue is decided against the Management and the latter leads evidence before the Tribunal, decision under such circumstances will be that the Management is deprived of benefit of domestic enquiry as prima facie proof of alleged misconduct. In such cases, the Management will have to prove by adducing proper evidence that workman is guilty of misconduct and the action of dismissal taken by the Management is proper.
18. In the light of discussion made supra, the proposition laid down by the Allahabad High Court that in a 16 domestic enquiry, it is the duty of the employer to prove the charges against the delinquent does not lay a correct proposition of law. The burden of proving charges of misconduct would be on the Management only if the preliminary issue is answered against the Management. Therefore, the controversy relating to dismissal of service depends upon the findings recorded on preliminary issue and depending upon the outcome of findings on preliminary issue, the parties have to prove and substantiate their respective claim.
19. For the reasons stated supra, I pass the following:
ORDER The writ petition is devoid of merits and stands dismissed accordingly.
The Employees Appellate Tribunal shall expedite hearing and decide the case at the earliest.17
The pending interlocutory application, if any, does not survive for consideration and stands disposed of accordingly.
Sd/-
JUDGE CA