Punjab-Haryana High Court
Dominent Off-Set (P) Ltd. vs Presiding Officer, Industrial ... on 30 April, 1997
Equivalent citations: (1998)ILLJ64P&H, (1997)116PLR736
Author: S.C. Malte
Bench: S.C. Malte
JUDGMENT S.C. Malte, J.
1. All these three writ petitions are being disposed of by the common judgment because of the factual and legal questions involved in these petitions are the same. All these petitions are against the order dated October 24, 1994 passed by the Industrial Tribunal Cum-Labour Court, Gurgaon, by which the application moved by the petitioner/management has been rejected by holding that the burden of proof lies on the management to show that the dismissal of respondent-workman was proper and legal.
2. Briefly stated the case putforth by the workmen in each of these cases is that their employment was terminated by serving on them a notice containing allegations. It is claimed by these workmen that such termination of employment, without even affording an opportunity to be heard, was illegal. The petitioner/ management on the other hand, came forward with the grievance that these workmen have resorted to indisciplined behaviour and adopted obstructive practices in the commissioning of the machinery and working of the industry. The petitioner further contended that in view of the repeated misconduct on the part of the workmen, their employment was terminated in terms of the Certified Standing Orders. It was further submitted that these Standing Orders do not make any provision for personal hearing.
3. It would thus appear that as per the stand taken by the petitioner/management, the termination was as a result of allegation of misconduct by the workmen. Further, the termination was without serving any charge-sheet on the workmen and without affording any opportunity of hearing to the workmen.
4. The counsel for the petitioner submitted that when the workmen moved the Industrial Tribunal-cum-Labour Court for getting adjudication on the question of legality or jurisdiction of termination of services, it is for them to bear the burden of proof to show accordingly. It was contended, that though the principle of Indian Evidence Act does apply to such proceedings, the spirit of the principle of burden of proof under that Act would certainly govern the case. In support of the contention my attention was invited to case of Shankar Chakrawarti v. Britania Biscuits (1979- II-LLJ-194). In that case the Supreme Court was considering a similar question. Their Lordships observed in para 31 of the report that obligation to lead evidence to establish an allegation made by a party is on the party making the allegations. That observation by Their Lordships was in the context of the facts of a case which indicated that question before Their Lordships was in which way an opportunity should be afforded to the parties before it to lead evidence. The question farther was regarding the extent of suo moto duty of the Industrial Tribunal to call upon the employer to adduce additional evidence to substantiate the charges. The observation made in that context, therefore, have undoubtedly application in general and its application should be considered in the light of the facts of the case in hand. The provisions of Evidence Act in that respect would afford a guideline, though these provisions do not apply in letter. The general rule, in spirit, in Section 101 of the Evidence Act is that the burden of proof lies on a person who is bound to prove the existence of a fact in order to get judgment in his favour. This general rule is subject to the spirit embodied in the subsequent Sections in the Evidence Act. In the circumstances the burden of proof of adducing evidence in support of a fact averred in the pleading would be on a person who wants the Courts to believe the existence of the fact as a justification for taking a particular action against the workman. It is in the set of this legal position, now it is to be seen as to what was the case of the parties before the Industrial Tribunal. The employee came with the case that his employment was terminated without serving even charge- sheet on him. His contention was that a composite order consisting of allegation cum termination of service was served on him . As against that, the management/ petitioner pleaded that the termination was a result of misconduct on the part of the employee, and the termination of service was in the terms of the Standing Orders. An admitted position was that no enquiry was conducted in the allegations of misconduct. In other words, a plain reading of the pleadings or the contentions raised by the parties clearly indicate that the management has admitted the termination of the employee without holding enquiry into the allegations. How-ever, the management wanted to justify its action on the basis of some clause in the Standing Orders. In other words, in this case the management is seeking to justify its action of termination on the basis of certain provisions in the Standing Orders. In view of the stand taken by the management, it is no more a controversial issue that the termination was without holding enquiry. All that is now left out is to find out as a positive fact as to whether the terms of the Standing Orders entitle the management to terminate their employment without holding enquiry, and in that case, whether the management has complied with the proceedural requirement as per the Standing Orders. The Industrial Tribunal has, therefore, taken a correct view in placing the burden on the management to prove that its action has a legal basis in the Standing Orders.
5. My attention was also invited to the ruling in the case of V. N. S Engineering & Services Co. v. Industrial Tribunal 1987 II L.L.N. 968. In that case the admitted position was that neither party led the evidence and the Industrial Tribunal proceeded to dispose of the matter on the basis of some admitted facts. In that case the crux of the grievance was that the petitioner/ Industry had not led evidence because it believed that no onus lies on it in the absence of any evidence led by the workmen. In the concluding part of the judgment, Their Lordship, of the Bombay High Court remanded the matter by observing that in the set of peculiar facts that was necessary. Obviously, observations made in that case are confined to the facts of that case. The counsel for the petitioner also placed reliance on the case of V. K. Raj Industries v. Labour Court 1981 (2) F.L.R. 194. In that case none of the parties had appeared before the Labour Court. Their Lordships of the Allahabad High Court in that case were not considering the shifting of onus of proof in view of the position emerging from the pleading of the parties. In the present case, as observed above, on the basis of pleadings, it is clear that the management wants to justify its action on the basis of existence of positive facts emerging from the provisioas of the Standing Orders. The party asserting the existence of a positive fact is supposed to place the material in proof of its existence. The management in this case comes forward with an allegation that the workmen have been guilty of misconduct which exposed them to punishment by way of termination. The allegation of misconduct on the part of the workmen, therefore, should be proved by the party alleging it. The observation of the Supreme Court in the case of Shankar Chakrawarti (supra) also indicates that burden of proof lies on the person who alleges existence of a particular fact as a basis for its action against the workman. The nil-ing in the case of Narang Latex & Dispersions Pvt. Ltd. v. S.V. Suvarna and Anr., (1995-I-LLJ-113) (Bom) cited on behalf of the petitioner, is also not applicable to the present case because in that case the issue was regarding the fairness of the enquiry. Merely in this case the admitted position is that there was no enquiry at all.
6. I, therefore, find that the order passed by the Industrial Tribunal-cum-Labour Court was quite correct and proper and requires no interference in the writ jurisdiction. Since the matter before the Industrial Tribunal is pretty old, it is directed that the Industrial Tribunal shall dispose of the same expeditiously, though I do not propose to lay down a particular time limit for disposal.