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MANU/PH/0993/2007

Equivalent Citation: [2008(117)FLR554], (2008)149PLR342

IN THE HIGH COURT OF PUNJAB AND HARYANA

Decided On: 31.10.2007

Appellants: Punjab Tractors Limited

Vs.Respondent: Presiding Officer, Labour Court and Anr.

Hon'ble Judges/Coram:Hemant Gupta, J.

Subject: Labour and Industrial

Subject: Law of Evidence

Acts/Rules/Orders:INDIAN EVIDENCE ACT 1872 - Section 101, INDIAN EVIDENCE ACT 1872 - Section 102;INDUSTRIAL DISPUTES ACT, 1947 - Section 2, INDUSTRIAL DISPUTES ACT, 1947 - Section 10,INDUSTRIAL DISPUTES ACT, 1947 - Section 33

Cases Referred:

State Bank of India vs. R.K. Jain and Ors. MANU/SC/0510/1971; The Workmen of Firestone Tyreand Rubber Co. of India (Pvt.) Ltd. vs. The Management and Ors. MANU/SC/0305/1973; BharatIron Works vs. Bhagubhai Balubhai Patel and Ors. MANU/SC/0345/1975; Shankar Chakravartivs. Britannia Biscuit Co. Ltd. and Anr. MANU/SC/0374/1979; The Range Forest Officer vs. S.T.

Hadimani MANU/SC/0115/2002; Essen Deinki vs. Rajiv Kumar MANU/SC/0894/2002; RajasthanState Ganganagar S. Mills Ltd. vs. State of Rajasthan and Anr. MANU/SC/0749/2004; MunicipalCorporation, Faridabad vs. Siri Niwas MANU/SC/0727/2004; M.P. Electricity Board vs. Harirametc. MANU/SC/0842/2004; Dominent Off-set (P) Ltd. vs. Presiding Officer, Industrial Tribunal-cum-Labour Court and Anr. MANU/PH/0216/1997; Neeta Kaplish vs. Presiding Officer, LabourCourt and Another MANU/SC/0762/1998

Citing Reference:

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Case Note:Labour and Industrial - Onus to Prove - Section 10 of the Industrial Disputes Act, 1947

- Respondent no. 2 was working under petitioner - Respondent no. 2 charge sheetedfor misconduct - Petitioner dismissed him from service after giving opportunity ofhearing - Industrial dispute was pending before Industrial Tribunal in respect of

petitioner establishment - Therefore petitioner sought approval of its action ofdismissal of respondent No. 2 from service - Tribunal approved order of dismissal ofservices of respondent no 2 - Respondent No. 2 served demand notice uponGovernment seeking reference to Labour Court for determination of dispute underSection 10 of Act and sought reinstatement with continuity of service and full backwages - Petitioner moved application and prayed that onus to prove issue regarding

fairness of domestic enquiry was on respondent no. 2 - Application rejected - Hence,present revision - Held, petitioner conducted enquiry after issuing charge sheet -

Order of punishment passed after granting opportunity of hearing to respondent no. 2- Said order of dismissal has effect of cessation of relationship of employer and

Discussed

Mentioned

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employee between parties - Respondent no. 2 has sought reference under Section 10of Act to seek adjudication of dispute in respect of his dismissal from services - If

respondent no. 2 did not lead any evidence in respect of domestic enquiry as vitiatedfor any reason then it was respondent no. 2 who would fail as relationship of employerand employee between parties has already come to an end - Therefore it was forrespondent no. 2 to prove initially that domestic enquiry was defective or was vitiated- Said finding alone would give opportunity to petitioner to prove misconduct afresh

before Labour Court if sought in accordance with law - In view of above order passedby Labour Court is set aside and directed for frame new issue as in direction - Revisiondispose of accordingly

JUDGMENT

Hemant Gupta, J.

1. The challenge in the present revision petition is to the order passed by the learned LabourCourt dated 22.9.2003 whereby while treating an issue regarding fairness of domestic enquiry aspreliminary, 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 thepetitioner. The respondent No. 2 was found guilty vide report dated 23.2.1995 on conclusion ofthe enquiry conducted by an Enquiry Officer. After giving an opportunity of hearing torespondent 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 inrespect of the petitioner establishment, therefore, the petitioner sought approval of its action ofdismissing respondent No. 2 from service. The learned Industrial Tribunal vide order dated11.11.1997 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 thedetermination 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 backwages. 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 theprinciples 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 fairand proper enquiry? OPM

2. If the Issue No. 1 is not proved, then whether the workman is guilty of major actsof 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 preliminaryIssue. It was prayed that onus to prove the said Issue be placed on the workman. The learnedLabour 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



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6. Learned Counsel for the petitioner has vehemently argued that the onus to prove an Issuethat 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 areference under Section 10 of the Act. It is contended that if the workman is able to prove thatthe domestic enquiry is vitiated for one of the other reason, only then the Management will havea right to adduce evidence, if sought, to prove the misconduct afresh before the leaned LabourCourt. 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 theEvidence Act, 1872 are strictly not applicable to the proceedings before the learned LabourCourt, 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, areapplicable in the proceeding before the learned Labour Court as well. Therefore, the burden toprove 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 bythe 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 legalright or liability dependent on the existence of facts which he asserts, must provethat 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. JainMANU/SC/0510/1971 : (1971)IILLJ599SC , the proposition 4 arrived at by the Court read as

under:

(4) When a domestic enquiry has been held by the management and themanagement 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 anopportunity to adduce evidence before the Tribunal if the finding on the preliminaryissue is against the management. However, elaborate and cumbersome theprocedure may be, under such circumstances, it is open to the Tribunal to deal, inthe first instance, as a preliminary issue the validity of the domestic enquiry. If itsfinding on the preliminary issue is in favour of the management, then no additionalevidence 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 theemployee to lead evidence contra, as the request to adduce evidence had beenmade 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, incase of "Firestone Tyre and Rubber Co. of India (P) Ltd. v. Management MANU/SC/0305/1973 :(1973)ILLJ278SC , 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 dischargeof an employee is referred for industrial adjudication, the labour court should first

decide as a preliminary issue whether the domestic enquiry is admitted by theemployer, there will be no difficulty. But when the matter is in controversy between



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the parties that question must be decided as a preliminary issue. On that decisionbeing 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 willnot 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 MANU/SC/0345/1975 :[1976]2SCR280 ", arising out of an action in pursuance of the domestic enquiry allegingvictimization, the Court held that "the onus of establishing a plea of victimization will be upon aperson pleading it."

11. In case "Shankar Chakraverti v. Britannia Biscuit Co. Ltd. MANU/SC/0374/1979 : (1979)IILLJ194SC ", 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 Section33(2)(b) of the Act. The learned Tribunal rejected the application for approval of the actionterminating the services of the workman. The said action was challenged by the Management byway of filing a Civil Writ Petition. The Writ Petition was dismissed, but in appeal, liberty wasgiven 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. TheSupreme 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 shouldor omit to do, but the Labour Court has the trappings of a Court. It was held to the followingeffect:

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 theparties. 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 beforeit. 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, theLabour 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 sideand when there is a burden upon it to prove or establish the fact so as to invite adecision in its favour, it has to lead the evidence. The quasi-judicial tribunal is notrequired 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 pleadingrising a contention there is no question of substantiating such a non-existingcontention by evidence. It is will settled that allegation which is not pleaded, even ifthere 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 tothe first mentioned party. We are not unmindful of the fact that pleadings beforesuch bodies have not to be read strictly, but it is equally true that the pleadingsmust be such as to give sufficient notice to the other party of the case it is called

upon to meet.




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12. The Division Bench of this Court in a judgment reported as "Satpal Singh v. Union of India2002(2) S.C.T. 179" while dealing with the onus of proof in case of a retrenchment, held to the

following effect:


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 Managementas it has been clearly held that when appointment is for a fixed period, unless thereis finding that power under Clause (bb) of Section 2(oo) was misused or vitiated byits 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 orappointment for a period was a colourable exercise of power. The misuse of powerhas to be established in each case, in our view, by the workman by at least pleadingbare 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 calledupon to do so only if there is a charge to that effect against it. The burden of prooffor such a charge shall always be upon the workman, which shall never change, even

though onus may keep on shifting depending upon the facts and circumstances of

the case.


13. The Single Bench of this Court in Civil Revision No. 768 of 1999 titled as Shri Bhiwani CottonMills and Industries Limited v. Presiding Officer, Labour Court decided on 23.7.1999, has alsoexamined the question of onus to prove in reference before the learned Labour Court. It washeld to the following effect-


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 proofis, 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.


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 withthe general principle that a party which approaches the Court must establish itscase. 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 theIndustrial Disputes Act have been considered applicable by the Apex Court inShankar Chakravarti v. Britannia Biscuit Co. Ltd. MANU/SC/0374/1979 : (1979)IILLJ194SC .


14. Similar is he view of the Hon'ble Supreme Court in cases pertaining to retrenchment ofworkman, such a "Range Forest Officer v. S.T. Hadimani and State of Karnataka v. S.T.Hadimani MANU/SC/0115/2002 : (2002)ILLJ1053SC ", "Essen Deinkiv. Rajiv Kumar

MANU/SC/0894/2002 : (2002)IIILLJ1111SC ". "Rajasthan State Ganganagar S. Mills Ltd. v.State of Rajasthan MANU/SC/0749/2004 : (2004)IIILLJ832SC ". "Municipal Corporation,

Faridabad v. Siri Niwas MANU/SC/0727/2004 : (2004)IIILLJ760SC " and "MP. Electricity Board v.Hari Ram MANU/SC/0842/2004 : (2004)IIILLJ1144SC ."

15. Reference was made to the judgment of this Court reported as "Dominant Off-set Private



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Limited v. Presiding Officer MANU/PH/0216/1997" by learned Counsel for the workman. In thesaid 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 ofhearing to the workman. In these circumstances, this Court held that "the party asserting theexistence of a positive fact is supposed to place the material in proof of its existence". TheManagement 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 Kaplishv. Presiding Officer, Labour Court MANU/SC/0762/1998 : (1999)ILLJ275SC ". However, that wasa 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 sincethe Management has failed to adduce fresh evidence, the order of termination cannot be said tobe 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, twosituations 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, theManagement 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 misconductshall be on the Management only as the order of the Management on the face of the record isagainst the principles of natural justice.

18. However, in case where the domestic enquiry is held, but it is alleged by the workman thatsuch 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 ofevidence will be sufficient to prove such Issue is upon the judicial wisdom of the Labour Court. Iffinding 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 insupport of their allegations of misconduct. The onus of the proof of the preliminary Issue thatthe 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 aftergranting an opportunity of hearing to the workman. The said order of dismissal has the effect ofcessation 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 hisdismissal from the services of his employer. If the workman does not lead any evidence inrespect 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 cometo an end. Therefore, it is for the workman to prove initially that the domestic enquiry isdefective or is vitiated. Such finding alone would give an opportunity to the Management toprove 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 setaside. 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



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misconduct? OPM.

4. Relief.

The revision petition stands disposed of accordingly.

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