Punjab-Haryana High Court
Punjab Tractors Limited vs Presiding Officer, Labour Court And ... on 31 October, 2007
Equivalent citations: (2008)149PLR342
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. The challenge in the present revision petition is to the order passed by the learned Labour Court dated 22.9.2003 whereby while treating an issue regarding fairness of domestic enquiry as preliminary, issue, the onus to prove the said issue was placed on the Management.
2. The respondent No. 2 was charge-sheeted on 9.8.1993 for his alleged misconduct by the petitioner. The respondent No. 2 was found guilty vide report dated 23.2.1995 on conclusion of the enquiry conducted by an Enquiry Officer. After giving an opportunity of hearing to respondent No. 2, an order of dismissal of his services was passed on 10.4.1995 by the Management. An industrial dispute was pending before the learned Industrial Tribunal, Punjab in respect of the petitioner establishment, therefore, the petitioner sought approval of its action of dismissing respondent No. 2 from service. The learned Industrial Tribunal vide order dated 11.11.1997 accorded approval of dismissal of services of respondent.
3. After the dismissal order came into effect, respondent No. 2 served a demand notice dated 29.12.1997. upon the appropriate Government seeking reference to the Labour Court for the determination of dispute under Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) and demanding reinstatement with continuity of service and full back wages. On the reference being made to the Labour Court, Respondent No. 2 alleged in his claim statement that the enquiry held by the Management was not fair and proper and was against the principles of material justice. The Management denied the assertion of respondent No. 2.
4. The learned Labour Court framed the following four issues:
1. Whether the services of the workman have been terminated after holding a fair and proper enquiry? OPM
2. If the Issue No. 1 is not proved, then whether the workman is guilty of major acts of misconduct? OPM
3. Whether the termination of the services of the workman is justified and in order? OPM
4. Relief.
The onus to prove all the Issues was put on the Management.
5. Later on, the petitioner moved an application to recast Issue No. 1 and treat it as preliminary Issue. It was prayed that onus to prove the said Issue be placed on the workman. The learned Labour Court reframed the Issues. Reframed Issue No. 1, which was ordered to be treated as preliminary Issue, read as under:
1. Whether the enquiry conducted by the respondent Management is fair and proper? OPR
6. Learned Counsel for the petitioner has vehemently argued that the onus to prove an Issue that the domestic enquiry was not fair, reasonable and defective and thus stands vitiated, is required to be put on the workman who has sought to dispute the domestic enquiry in a reference under Section 10 of the Act. It is contended that if the workman is able to prove that the domestic enquiry is vitiated for one of the other reason, only then the Management will have a right to adduce evidence, if sought, to prove the misconduct afresh before the leaned Labour Court. But the onus to prove that the enquiry was fair and reasonable cannot be placed upon the management in the first instance itself. It is contended that though the provisions of the Evidence Act, 1872 are strictly not applicable to the proceedings before the learned Labour Court, but the provisions contained therein, particularly that of Section 101 and 102 of the Evidence Act, 1872 which are in consonance of the principles of natural justice and equity, are applicable in the proceeding before the learned Labour Court as well. Therefore, the burden to prove the said Issue lies on the workman. On the other hand, the learned Counsel for the workman submitted that the Issue of domestic enquiry as fair and reasonable is to be proved by the Management only.
7. I have heard learned Counsel for the parties at some length. Before proceeding further, Section 101 and 102 of the Evidence Act, 1872 may be reproduced for ready reference:
101. Burden of Proof/Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
102. On whom burden of proof lies: The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
8. The question posed is not res-integra. In "State Bank of India v. R.K. Jain , the proposition 4 arrived at by the Court read as under:
(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, in the first instance, as a preliminary issue the validity of the domestic enquiry. If 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 given a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end.
9. In the said case, whether the burden to prove that the domestic enquiry is valid or not, should be placed on the workman or the Management, was not the question raised. Later on, in case of "Firestone Tyre and Rubber Co. of India (P) Ltd. v. Management , the Court opined as under:
XX XX XX XX XX XX XX XX XX XX XX XX XX XX XX XX XX XX XX XX XX We are, therefore, clearly of the opinion 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 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 announced, 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 proceedings to raise the issue.
X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X
10. In case Messrs Bharat Iron Works v. Bhagubhai Balubhai Patel ", arising out of an action in pursuance of the domestic enquiry alleging victimization, the Court held that "the onus of establishing a plea of victimization will be upon a person pleading it."
11. In case "Shankar Chakraverti v. Britannia Biscuit Co. Ltd. ", the Supreme Court was seized of the matter where the employer has sought approval of the Tribunal of its action of terminating the services of the workman under Section 33(2)(b) of the Act. The learned Tribunal rejected the application for approval of the action terminating the services of the workman. The said action was challenged by the Management by way of filing a Civil Writ Petition. The Writ Petition was dismissed, but in appeal, liberty was given to the employer to adduce further evidence to prove the charges alleged against the workman as the issue about validity of the enquiry was not decided as preliminary issue. The Supreme Court set aside the order passed by the Division Bench, inter-alia, on the ground that quasi judicial Tribunal is not required to advice the party either about its rights or what it should or omit to do, but the Labour Court has the trappings of a Court. It was held to the following effect:
x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x The Labour Court or the Tribunal would then proceed to decide the lis between the parties. It has to decide the lis on the evidence adduced before it. While it may not be. hidebound by the rules prescribed in the Evidence Act, it is nonetheless a quasi-judicial Tribunal proceeding to adjudicate upon a lis between the 'parties arrayed before it and must decide the matter on the evidence produced by the parties before it. It would not be open to it to decide the lis on any extraneous considerations. Justice, equity and good conscience will inform its adjudication. Therefore, the Labour Court or the Industrial Tribunal has all the trappings of a Court.
31. If such be duties and functions of the Industrial Tribunal or the Labour Court, any party appearing before it must take a claim or demur the claim of the other side and when there is a burden upon it to prove or establish the fact so as to invite a decision in its favour, it has to lead the evidence. The quasi-judicial tribunal is not required to advice the party either about its rights or what it should do or omit to do. Obligation to lead evidence to establish an allegation made by the party is on the party making the allegation. The test would be who would fail if no evidence is led.
(Emphasis supplied) It must seek an opportunity to lead evidence and lead evidence. A contention to substantiate which evidence is necessary has to be pleaded. If there is no pleading rising a contention there is no question of substantiating such a non-existing contention by evidence. It is will settled that allegation which is not pleaded, even if there is evidence in support of it, cannot be examined because the other side has no notice of it and if entertained it would tantamount to granting an unfair advantage to the first mentioned party. We are not unmindful of the fact that pleadings before such bodies have not to be read strictly, but it is equally true that the pleadings must be such as to give sufficient notice to the other party of the case it is called upon to meet.
x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x
12. The Division Bench of this Court in a judgment reported as "Satpal Singh v. Union of India 2002(2) S.C.T. 179" while dealing with the onus of proof in case of a retrenchment, held to the following effect:
x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x
17. In our opinion, the view expressed by the Hon'ble Supreme Court, far from advancing the cause of workman, would rather advance the case of the Management as it has been clearly held that when appointment is for a fixed period, unless there is finding that power under Clause (bb) of Section 2(oo) was misused or vitiated by its malafide exercise, it cannot be held that termination is illegal and further, it must be established in each case that the power was misused by the Management or appointment for a period was a colourable exercise of power. The misuse of power has to be established in each case, in our view, by the workman by at least pleading bare minimum facts. There ir no question for the management to establish non-colourable exercise unless it is called upon to do so and surely it would be called upon to do so only if there is a charge to that effect against it. The burden of proof for such a charge shall always be upon the workman, which shall never change, evon though onus may keep on shifting depending upon the facts and circumstances of the case.
x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x
13. The Single Bench of this Court in Civil Revision No. 768 of 1999 titled as Shri Bhiwani Cotton Mills and Industries Limited v. Presiding Officer, Labour Court decided on 23.7.1999, has also examined the question of onus to prove in reference before the learned Labour Court. It was held to the following effect-
x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x According to the common law, whoever desired the Court to give judgment, must establish his right. In other words, he who approaches a Court seeking a relief/claim, has to discharge the burden of proof. Another principle in respect of burden of proof is, that it lies on the party who would fail if no evidence was adduced in either side. The aforesaid two principles of common law have been incorporated in Chapter VII of the Indian Evidence Act.
x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x I am of the considered view that pleadings are extremely material for determining the burden of proof at the commencement of the proceedings. One must start with the general principle that a party which approaches the Court must establish its case. Based on the pleadings, onus can shift to the second principle or the party which would fail if no evidence was led. The aforesaid principles in respect of the Industrial Disputes Act have been considered applicable by the Apex Court in Shankar Chakravarti v. Britannia Biscuit Co. Ltd. .
x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x
14. Similar is he view of the Hon'ble Supreme Court in cases pertaining to retrenchment of workman, such a "Range Forest Officer v. S.T. Hadimani and State of Karnataka v. S.T. Hadimani ", "Essen Deinkiv. Rajiv Kumar ". "Rajasthan State Ganganagar S. Mills Ltd. v. State of Rajasihan ". "Municipal Corporation, Faridabad v. Siri Niwas " and "MP. Electricity Board v. Hari Ram ."
15. Reference was made to the judgment of this Court reported as "Dominant Off-set Private Limited v. Presiding Officer " by learned Counsel for the workman. In the said case, the services of the workman were terminated as a result of allegations of misconduct by the workman, without serving any charge-sheet and without affording an opportunity of hearing to the workman. In these circumstances, this Court held that "the party asserting the existence of a positive fact is supposed to place the material in proof of its existence". The Management has come forward with an allegation that the workman has misconducted. Therefore, the allegation of misconduct on the part of the workman should be proved by the party alleging it.
16. Reference is also made to a judgment of the Hon'ble Supreme Court of India, "Neeta Kaplish v. Presiding Officer, Labour Court ". However, that was a case where the domestic enquiry was found to be vitiated, but thereafter the Management had not led any evidence in proof of the misconduct of the workman. Thus, the Court held that since the Management has failed to adduce fresh evidence, the order of termination cannot be said to be proper. The said judgment provide little assistance to the workman.
17. Having perused various judgments cited at the Bar and the principles laid down therein, two situations can be envisaged. One when there is no domestic enquiry held, but the order of punishment is passed. There could cases where the Management does not hold any domestic enquiry or the infraction of the Rules applicable to the establishment are apparent from record, but still an order of removal is passed against the workman. In such a situation, the Management is required to prove the misconduct against the workman on the basis of evidence to be led before the Labour Court itself. In all such cases, the burden of proof of misconduct shall be on the Management only as the order of the Management on the face of the record is against the principles of natural justice.
18. However, in case where the domestic enquiry is held, but it is alleged by the 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. What kind of evidence will be sufficient to prove such Issue is upon the judicial wisdom of the Labour Court. If finding on such preliminary Issue is returned against the Management and the Management has sought opportunity to adduce evidence to prove misconduct before the Labour Court itself again, the learned Labour Court shall give an opportunity to adduce evidence to the Management in support of their allegations of misconduct. The onus of the proof of the preliminary Issue that the domestic enquiry is vitiated, shall lie on the person who has approached the Labour Court as the burden will lie on the person who would fail if no evidence is led.
19. In the present case, the Management has conducted an enquiry after issuing a charge sheet. On conclusion of such enquiry, it is alleged that the order of punishment was passed after granting an opportunity of hearing to the workman. The said order of dismissal has the effect of cessation of relationship of employer and employee between the parties. The workman has sought reference under Section 10 of the Act to seek adjudication of a dispute in respect of his dismissal from the services of his employer. If the workman does not lead any evidence in respect of domestic enquiry as vitiated, for one or the other reason, it is the workman who would fail as the relationship of employer and employee between the parties has already come to an end. Therefore, it is for the workman to prove initially that the domestic enquiry is defective or is vitiated. Such finding alone would give an opportunity to the Management to prove misconduct afresh before the Labour Court, if sought, in accordance with law.
20. In view of the above, the order passed by the learned Labour Court dated 22.9.2003 is set aside. The following issues are framed, out of which, Issue Nos. 1 & 2 shall be treated as preliminary Issue:
1. Whether the domestic enquiry conducted by respondent No. 2 is vitiated? OPW
2. Whether the workman is estopped from challenging the domestic enquiry on the principles of resjudicata? OPM
3. Whether the service of the workman are liable to be terminated on the basis of misconduct? OPM.
4. Relief.
The revision petition stands disposed of accordingly.