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1999 Supreme(Cal) 305
High Court Of Calcutta
Samaresh Banerjee
A.B.MITRA - Appellant
Versus
P.O., III INDUSTRIAL TRIBUNAL - Respondent
W. P. 2345 (W) Of 1997
Decided On : 06/11/1999
When the validity of the domestic enquiry is to be decided by the Tribunal as a preliminary point, the onus is upon the employer to prove that the domestic enquiry was held validly and properly.
Headnote:
INDUSTRIAL DISPUTES - Validity of domestic enquiry - Burden of proof - Onus on employer to prove validity and propriety of domestic enquiry - Tribunal to direct employer to lead evidence first.
Fact of the Case:
In two writ petitions, the petitioners challenged the impugned order passed by the Tribunal directing the workman to adduce evidence first to discharge the initial onus relating to the validity or invalidity of the domestic enquiry.
Finding of the Court:
The burden is upon the employer to satisfy the Tribunal that such domestic enquiry was held validly and properly, when the employer wants to rely on such domestic enquiry as his defence.
Issues: 1. Who should be called upon by the Tribunal to adduce evidence first when the validity of the domestic enquiry is to be decided by the Tribunal as a preliminary point? 2. Whether the onus is upon the workman to prove that the domestic enquiry was not valid and proper?
Ratio Decidendi: 1. When an industrial dispute is referred to the Tribunal under Section 10(1) of the Industrial Disputes Act for adjudication of the question whether the dismissal or termination of the workman is justified and the Tribunal is called upon to decide the validity of the domestic enquiry as a preliminary point, the burden is certainly on the employer to satisfy the Tribunal that such domestic enquiry was held validly and properly. 2. The onus is upon the employer to prove that the domestic enquiry was held validly and properly, when the employer wants to rely on such domestic enquiry as his defence.
Final Decision: The Industrial Tribunal acted improperly and in violation of principles of natural justice by calling upon the workman to adduce evidence first although the employer asked the Tribunal to decide the question of the validity of the domestic enquiry as a preliminary point.
( 1 ) COMMON questions of law and fact being involved in both the writ petitions the same have been heard analogously and will be governed by the same judgment.
( 2 ) IN each of the writ petitions the petitioner has challenged the impugned order passed by the Tribunal directing that the workman will have to adduce evidence first to discharge the initial onus relating to validity or invalidity of the domestic enquiry.
( 3 ) IN each of such cases on reference of the industrial dispute to the Tribunal, the Tribunal was required to decide as a preliminary point as to the validity of domestic enquiry which was challenged by the workman.
( 4 ) IT is not disputed that in such a situation all along the Industrial Tribunal directed the employer to adduce his evidence first for the purpose of establishing that the domestic enquiry held against the workman was valid and proper.
( 5 ) BUT in the instant case on the application of the employer before the Tribunal, in view of the judgment rendered by the Hon'ble Mr. Justice G. R. BHATTACHARYA where His Lordship has held that in such a situation it is for the workman to adduce his evidence first, the Tribunal has passed the impugned order following the said judgment, reported in (1996 -II-LLJ 904) (Cal ).
( 6 ) THE question, therefore, which has come up for determination before this Court in the present writ petition, is who should be called upon by the Tribunal in such a situation to adduce evidence first.
( 7 ) THE aforesaid point is no doubt covered by the aforesaid judgment of G. R. BHATTACHARYA, J.
( 8 ) BUT Mr. Bikash Ranjan Bhattacharya the learned counsel appearing for the writ petitioner in the case of Anil Mondal v. State of West Bengal and Ors. has argued at length in support of his contention that the aforesaid case requires reconsideration as the same has not laid down the correct proposition of law.
( 9 ) BEING a Court of co-ordinate jurisdiction no doubt I am bound by the aforesaid judgment of Justice BHATTACHARYA and cannot sit in appeal over the same. But in case of difference of opinion with his Lordship, I am required to refer the matter to a larger Bench.
( 10 ) AFTER considering the aforesaid judgment in the said case of Ganges Manufacturing Co. v. State of West Bengal and Ors. , reported in (1996-II-LLJ-904) (Cal) and considering the submission of the parties I have not been able to persuade myself to agree with the proposition of law laid down by His Lordship in the aforesaid case for the reasons stated hereinafter and therefore, I am of the view that the issue involved in the present case requires consideration by a larger Bench.
( 11 ) RELYING on a judgment of Bombay High Court and on certain Supreme Court decisions His Lordship is of the view when the validity of the domestic enquiry is to be decided by the Tribunal as a preliminary point, the onus is upon the workman to prove that the domestic enquiry was not valid and proper as the workman challenges the validity and propriety of the domestic enquiry.
( 12 ) IN my view, when an industrial dispute is referred to the Tribunal under Section 10 (1) of the Industrial Disputes Act for adjudication of the question whether the dismissal or termination of the workman is justified and the Tribunal is called upon to decide the validity of the domestic enquiry as a preliminary point, the burden is certainly on the employer to satisfy the Tribunal that such domestic enquiry was held validly and properly, when the employer wants to rely on such domestic enquiry as his defence.
( 13 ) UNDER Section 10 (1) the appropriate Government on being satisfied that there exists an industrial dispute between the employer and the workman refers the same to the Industrial Tribunal for adjudication and on such reference the Tribunal usually in case of termination or dismissal frames an issue as to whether the dismissal of the concerned workman is justified.
( 14 ) IT has to be kept in mind the legislature i
