IMPORTNAT POINT
When a workman is terminated without enquiry, onus to prove that it was not possible to conduct the enquiry and that the termination was justified because of misconduct by the employee, lies on the management.

Headnote:(a) Labour Law – Industrial Dispute – Burden of proof – While the provisions of Evidence Act pee se do not apply to industrial adjudication, general principles do apply. (Para 13)
        (2004) 8 SCC 195; (2006) 5 SCC 558 – Relied upon
        (b) Labour Law – Termination – Burden of proof – Burden of proving a fact lies on the party asserting the affirmative of the issue, and not on the party who denies it – It is for the employer to prove misconduct for which workman was dismissed or discharged – In the first instance, workman cannot be asked to prove that he has not committed any act tantamounting to misconduct. (Para 13)
        (2005) 5 SCC 100; (2008) 9 SCC 486 – Distinguished
        (c) Industrial Disputes Act, 1947 – Section 10 – Right of the employer to adduce additional evidence in a proceeding questioning the legality of the order terminating the service – Must be availed of by making a proper request at the time of filing statement of claim or written statement. (Para 14)
        (2001) 5 SCC 433; (1983) 4 SCC 491; (1973) 1 SCC 813; (2007) 12 SCC 585; (2007) 12 SCC 585 – Relied upon
        (d) Labour Law – Termination – Burden of Proof – When a workman is terminated without enquiry, onus to prove that it was not possible to conduct the enquiry and that the termination was justified because of misconduct by the employee, lies on the management. (Para 17)
       Facts of the case:
        1. The respondent-management dismissed the appellant without holding an enquiry mainly on the allegations that he had been participating in tool down strike; had been exhorting other workers to slow down the work so that there is fall in production of cars; had indulged in holding demonstrations within the factory premises and raised derogatory and offensive slogans against the management; and was threatening the supervisors etc.
        2. State Government referred the dispute to the Labour Court, Gurgaon
        3. The Labour Court held that in the first instance, it was for the management to prove, by adducing cogent evidence, that the order of dismissal passed against the workman was legal. However, later on the Labour Court shifted the onus of proof on the workman.
        3. High Court observed that onus of establishing a plea of victimization or that he had completed 240 days of service in the last calendar year, in order to avail of the benefit of Sections 25F, 25G and 25H of the Act, is on the workman.
       Finding of the Court:
        The order passed by the Labour Court, shifting the burden to prove issue No. 1 on the workmen is fallacious and the High Court should have quashed it.
       Result : Appeals allowed with cost.

JUDGMENT

D.K. Jain, J. —

Leave granted.

2. These appeals, by special leave, are directed against the judgments delivered by the High Court of Punjab and Haryana, whereby it dismissed the writ petitions of the appellants herein, holding that the Labour Court was correct in shifting the burden on the workmen- appellants to prove that their termination was unjustified.

3. Since the question of law arising in all the appeals is the same, these are being disposed of by this common judgment. However, a brief reference to the facts in S.L.P (C) No.7187 of 2008 would be expedient in order to appreciate the controversy at hand.

4. On 23rd November, 2000, the respondent-management dismissed the appellant without holding an enquiry mainly on the allegations that he had been participating in tool down strike; had been exhorting other workers to slow down the work so that there is fall in production of cars; had indulged in holding demonstrations within the factory premises and raised derogatory and offensive slogans against the management; and was threatening the supervisors etc. The relevant portion of the dismissal order reads thus:

“In view of the situation created by you, Management finds that it is not reasonably practical to hold an enquiry. In view of the gravity of the misconduct thus committed by you, you are hereby dismissed from service.”

5. The appellant having raised an industrial dispute, the State Government referred the same to the Labour Court, Gurgaon under Section 10(1)(c) of the Industrial Disputes Act, 1947 (for short “the Act”). The terms of reference for the adjudication were:

“Whether the termination of service of Shri Amar Chakarvarty was justified and in order, if not, to what relief is he entitled?”

6. On 13th May, 2002, the Labour Court framed the following issues:

“1. Whether the termination of the services of the petitioner is justified and if not to what relief he is entitled to? OPM

2. Whether the petitioner is gainfully employed?

3. Relief.”

It is manifest that in relation to issue No. 1, the Labour Court had placed the onus of proof on the management.

7. Thereafter, the appellants preferred an application before the Labour Court for framing additional issues and disposal of the reference by treating them as preliminary issues. One of the proposed additional issue was with reference to the violation of Standing Order No. 21.3, which stipulates that no order of dismissal shall be made except after holding an enquiry against the workman concerned in respect of the alleged misconduct. However, the Labour Court, vide order dated 12th August, 2003, dismissed the application, observing as under:

“It is for the management to prove, by adducing cogent evidence, that the order of dismissal passed against the workman was perfectly legal. For that the management is required to adduce evidence. The matter cannot be cut short (sic) by disallowing the management to adduce any evidence and by holding the order of dismissal as illegal, being violative Standing Order 21.3. The additional issues sought (sic) to be framed by the workman, stand clearly covered in issue no.1 framed in this case. The workman can lead evidence in rebuttal on issue no.1 to prove those facts which he wants to bring on record by getting additional issues framed.” (emphasis supplied by us)

The Labour Court thus, held that in the first instance, it was for the management to prove, by adducing cogent evidence, that the order of dismissal passed against the workman was legal.

8. However, on a motion being made by the management, the Labour Court, vide a short order dated 31st January, 2006, shifted the onus of proof in relation to the afore-extracted issue No. 1 on the workman. The order reads as follows:

“In view of the latest law on the point. I hereby shift the onus to prove issue no. 1 from the management to the workman. To come up on 11.01.2007 for the evidence of the workman.”

9. Being aggrieved by the said order, the appellant preferred a writ pe

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2010 Supreme(SC) 1151

IMPORTNAT POINT When a workman is terminated without enquiry, onus to prove that it was not possible to conduct the enquiry and that the termination was justified because of misconduct by the employee, lies on the management.

Cases Referred (7)

IMPORTNAT POINT
When a workman is terminated without enquiry, onus to prove that it was not possible to conduct the enquiry and that the termination was justified because of misconduct by the employee, lies on the management.