Bombay High Court
Narang Latex And Dispersions Pvt. Ltd. vs S.V. Suvarna (Mrs.) And Anr. on 22 March, 1994
Equivalent citations: [1994(68)FLR1028], (1995)ILLJ113BOM
JUDGMENT A.C. Agarwal, J.
1. Admit.
2. On application of Mr. Rele for the petitioner, the name of respondent No. 1 is deleted. Miss Buch for original respondent No. 2 waives service.
3. By consent appeal is called out for hearing and final disposal. Heard parties.
4. The short question which arises for our consideration is, "On whom does the burden lie to prove the fairness or otherwise of the Domestic Enquiry which has culminated in an order of dismissal passed against the workmen of the petitioner Company. By an order passed on 30th September, 1993, the learned Presiding Officer, 4th Labour Court, Thane has held that the burden lies on the company and has directed it to lead evidence first on the issue of fairness of the enquiry. The said order was sought to be impugned by the petitioner by filing a Writ Petition, being Writ Petition No. 4 of 1994. By an order passed on 5th January 1994, the learned single Judge has rejected the petition on the ground that the order impugned is interlocutory. The said order is impugned in the present Letters Patent Appeal.
5. In the case between Airtech Private Ltd. v. State of U.P. & Ors. 1984 (49) FLR 38, the Allahabad High Court has observed as follows :
"The matter can be looked at from another angle, which party will fail if the evidence is not led before the Labour Court in proceedings in a reference made to it for adjudication by the State Government? The obvious answer is that the workman will fail. Here the reference was made by the State Government at the instance of the workmen and for the benefit of the workman. In the absence of any evidence led by or on behalf of the workman the reference is bound to be answered by the Court against the workman. In such a situation it is not necessary for the employers to lead any evidence at all. This matter was dealt with by the Supreme Court in Shankar Chaudhary v. Britania Biscuits Co. Ltd. In paragraph 30th Court held that the Labour Court or the Industrial Tribunal have all the trappings of a Court. In paragraph 31 it held that any party appearing before a Labour Court or Industrial Tribunal 'Must' make 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 evidence. The obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be, who would fail if no evidence is led. It must seek an opportunity to lead evidence. Similar view has been taken by a Division Bench of this Court in the case V. K. Raj Industries v. Labour Court & Ors.
6. The above judgment of Allahabad High Court came up for consideration before a Division Bench of this Court in the case between V. N. S. Engineering and Services Company and Industrial Tribunal, Goa, Daman and Diu & Anr. 1987 II LLN 968. The Division Bench in the aforesaid case has, inter alia observed as under :
"Shri S. K. Kakodkar, the learned Counsel appearing for the petitioners, contends that the impugned award is vitiated in as much as the Tribunal has wrongly placed the burden to prove that the termination of the services of the second respondent was legal and justified on the petitioners. According to the learned counsel, the second respondent has caused the reference to the Tribunal and, therefore, it was for him to prove that the termination of service was illegal, unjustified and unwarranted. Reliance was placed in support of this submission on Airtech (Private) Ltd. v. State of Uttar Pradesh, 1984 (49) FLR 381 and in V. K. Raj Industries v. First Labour Court, Kanpur & Ors. 1981 (43) FLR 194. The learned counsel further submitted that the provisions of Section 25F of the Industrial Disputes Act were not attracted to the facts of the case since the second respondent has not yet completed 240 continuous days of service. That apart, it was further urged by the learned counsel that the Tribunal has decided the case although no evidence has been led by the parties, being noteworthy that the second respondent's representative specifically stated that he did not want to lead any evidence in the matter. In the circumstances, therefore, there was no evidence of whatsoever nature to justify the findings of the Tribunal that the action of the petitioners in terminating the services of the second respondent was illegal and not justified.
It is an admitted position that the employers i.e., the petitioners did not file any list of evidence and that on the date fixed for evidence, the representative of the petitioners prayed for an adjournment. The case was adjourned and on the next day a fresh application for adjournment was filed which was objected to. The Tribunal upheld the objection and declared that the evidence of the petitioners was closed. Thereafter, the representatives of the second respondent made a declaration that the second respondent was not willing to lead evidence since the onus was cast on the employer. Thereafter, the Tribunal went on disposing of the reference on the basis of the admitted facts and on the ground that it was for the employer to prove that the termination of the services of the workman was legal and justified and that the employer has not led any evidence to discharge this burden".
Therefore, as rightly pointed out by Sri Kakodkar, the first question that arises for our determination is whether the Tribunal was right in holding that the burden of proving that the termination of services of the second respondent was legal and justified was lying on the petitioners. Sri Kakodkar, as we already said, placing reliance on Airtech (Pvt.) Ltd. v. State of Uttar Pradesh, (supra) submitted that the burden of proving that the termination of services was not legal and justified was on the second respondent, since he had caused the reference or the reference has been made to the Industrial Tribunal by the State Government at his instance. We find ourselves in agreement with Sri Kakodkar, since there is nothing in the Industrial Disputes Act that causes us to depart from the general rule that he who approaches a Court for relief should prove his case. We find support for this view in the decision cited by Sri Kakodkar. In Airtech (Private) Ltd. case (supra), an industrial dispute arose and the Labour Court insisted that the employers were to lead evidence, first holding that in view of the phraseology employed by the State Government in the reference made to it, the legality or the justifiability of the termination of service of the workman had to be established by the employer and, therefore, the burden of proof lay on the employer. The Court held that this view was not correct and that the burden of proof was lying on the workman. Similarly, in V. K. Raj Industries v. First Labour Court, Kanpur & Ors. 1981 (43) FLR 194, the Division Bench of the Allahabad High Court held that the burden of proving whether or not the order of termination of services is valid lies on the person who challenges the validity of the order. That was a case where the services of a workman had been terminated by the employer and a reference has been made by the State of Uttar Pradesh to the Labour Court for adjudication under Section 10(1)(c) of the Industrial Disputes Act, 1947. On receipt of the reference, the Labour Court has issued notices to the petitioner as well as to the workman calling upon them to file their written statements before it. The notice was served on the petitioner as well as the workman, but none of them appeared before the Labour Court to file a written statement or to participate in the proceedings. The Labour Court, in the absence of the parties, gave an award directing the employer to reinstate the workman with continuity of service and full wages for the period during which he remained out of service. It was argued in that case on behalf of the petitioner that the Labour Court has committed an error in granting relief to the workman even though he did not appear before the Labour Court or file a written statement, or produce evidence. It was also contended that the Labour Court has committed manifestly an error of law in placing the burden of proof on the employer to prove that the services of the respondent workman were terminated in a proper and legal manner. Dealing with these contentions, the Division Bench observed as under in para 3, at page 499 :
".... The employer had terminated the services of the respondent-workman. Validity of the termination order was challenged by the workman by raising Industrial Dispute. The State Government at the instance of the workman referred the dispute for adjudication to the Labour Court. It was thus incumbent for the workman to have appeared and substantiated his allegation that the termination was not valid or legal. The proceedings before the Industrial Court are judicial in nature even though the Indian Evidence Act does not apply to the proceedings but the principle underlying the said Act is applicable to the proceedings before the Industrial Court. In a judicial proceeding if no evidence is produced the party challenging the validity of the order must fail. It is well settled that if a party challenges the legality of an order, the burden lies upon him to prove illegality of the order and if no evidence is produced the party invoking jurisdiction of the Court must fail. Whenever, a workman raises a dispute challenging the validity of the termination of service it is imperative for him to file written statement before the Industrial Court setting out grounds on which the order is challenged and he must also produce evidence to prove his case. If the workman fails to appear or to file written statement or produce evidence, the dispute referred by the State Government cannot be answered in favour of the workman and he would not be entitled to any relief".
It is true that Sri Talaulikar contended that in view of the decision of the Supreme Court in Shankar Chakravarthy v. Britania Biscuits Company Ltd. & Anr. 1979 (39) FLR 70 (SC), the above position of law is not correct. We, however, fail to agree with Sri Talaulikar, since the decision of the Supreme Court in Shankar Chakravarthy case (vide supra), deals with an entirely different issue. In fact, the question before the Supreme Court was whether in a case where dismissal of an employee was done without holding an inquiry, the employer could not lead evidence before the Industrial Tribunal to support the order of dismissal. That apart, the observation made by the Supreme Court in Para 31 of the same case far from supporting the view of Sri Talaulikar run counter.
7. It would thus appear that the Division Bench of this Court in the above case has approved the ratio laid down by Allahabad High Court in the case of Airtech Private Ltd., and has held that the burden of proof lies on the workman and not on the management. The present reference has been made at the instance of the workmen who have alleged that their dismissal is wrongful. They have also alleged that the domestic enquiry conducted by the management is defective and hence order of dismissal passed in the domestic enquiry is non-est. On the principle that the burden would lie on a party who would fail if no evidence is led by either of the parties, it would be for the workman to lead evidence first in order to show that the domestic enquiry is not fair and proper and therefore, the order of dismissal is wrongful.
8. Miss Buch, the learned Counsel appearing on behalf of the workmen has, however, placed reliance on the decision in the case of Delhi Cloth and General Mills Co. v. Ludh Budh Singh, 1972 (25) FLR 1 (SC), she has, in particular, relied upon the observations in paras 60 and 61 of the judgment which are as follows :
"60. From the above decisions the following principles broadly emerge :
(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 straightaway 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 has 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 adduce additional evidence before the Tribunal justifying its action. In such a case no inference 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 when 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 maybe 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 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 misconduct. 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 the workmen 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 got 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 enquiry 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.
61. Having due regard to the above principles, as could be gathered from the decision, referred to above, in our opinion, the application filed by the management for permission to adduce evidence was highly belated. We have already emphasised that the enquiry proceedings before the Tribunal to consider the validity of the domestic enquiry and the evidence adduced by the management before it, are to be considered in two stages. It is no doubt true that the management has got a right to adduce evidence before the Tribunal in case the domestic enquiry is held to be vitiated. The Tribunal derives jurisdiction to deal with the merits of the dispute only if it has held that the domestic enquiry has not been held properly. But the two stages in which the Tribunal has to conduct the enquiry are in the same proceeding which relates to the consideration of the dispute regarding the validity of the action taken by the management. Therefore, if the management wants to avail itself of the right, that it has in law of adducing additional evidence, it has either to adduce evidence simultaneously with its reliance on the Tribunal to consider the validity of the domestic enquiry as a preliminary issue with a request to grant permission to adduce evidence, if the decision of preliminary issue is against the management. An enquiry into the preliminary issue is in the course of the proceedings and the opportunity given to the management, after a decision on the preliminary issue, is really a continuation of the same proceedings before the Tribunal".
In our judgment, the above case does not directly deal with the issue which arises in the present case. The case arose out of an application filed by the management under Section 33(1)(b) of the Industrial Disputes Act for permission to dismiss its workman. The Supreme court was dealing with the jurisdiction of and the scope of inquiry before the Industrial Tribunal in an application under Section 33 or a reference under Section 10. The issue regarding burden of proof, as has arisen in the present case, was not present before the Supreme Court. The cases of Airtech Private Ltd., and V. N. S. Engineering are directly on the point. Issue regarding burden of proof directly arose for consideration. The decision in the case of V. N. S. Engineering is a decision of a Division Bench of this Court and the same is binding upon us. We have no reason to differ from the view taken in the said case.
9. In the result, the appeal succeeds. The impugned order passed on 30th September, 1993 by the Presiding Officer, 4th Labour Court, Thane in Reference No. ID No. 2 of 1986 is set aside. We direct that the workmen will lead evidence first in respect of the fairness or otherwise of the domestic enquiry conducted by the management.
10. Appeal is allowed with no order as to costs.
11. In view of the order in appeal, no order is necessary in the Civil Application which is accordingly rejected.
12. Appeal allowed.