The burden of proof lies on the party who would fail if no evidence is led by either party.

JUDGMENT :

A.C. Agarwal, J.—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 2 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 evide