Decided in Favour of :
Respondent
Petition Dismissed

H.K. Rathod, J.—Heard learned advocate Mr. S.J. Shah appearing on behalf of petitioner – Surat Ammonia Supply Company and learned Advocate Mr. M.S. Mansuri appearing on behalf of respondent-workman.

2. In the present petition, petitioner has challenged the order dated 27.04.2007 vide Exh. 50 passed by Labour Court, Baroda, wherein, Labour Court has decided that whatever departmental inquiry conducted against the workman is held to be illegal, unreasonable and improper. The matter was fixed on 18.05.2007 for further evidence of the parties.

3. Learned Advocate Mr. S.J. Shah appearing on behalf of petitioner submitted that respondent, as he has challenged the inquiry conducted by employer, should have to lead first evidence before the Labour Court for proving the fact that inquiry is illegal. He also submitted that respondent workman has not led any oral evidence, but, he gave closing purshis that he does not want to lead oral evidence in respect to the question of departmental inquiry and he relied upon the documents produced by petitioner. Therefore, he submitted that Labour Court has committed gross error in coming to conclusion that it was a burden upon the employer to lead first evidence for proving the documents relating to departmental inquiry which are not exhibited before the Labour Court. The Labour Court has also come to conclusion that factum of inquiry is challenged by workman, therefore, employer shall have to prove the factum of inquiry by leading first evidence. Therefore, Labour Court has decided that no evidence was led by petitioner for proving the inquiry papers before the Labour Court which remained unexhibited, therefore, inquiry is vitiated as it is not proved. Therefore, Learned Advocate Mr. S.J. Shah submitted that Labour Court has committed gross error.

4. Learned Advocate Mr. Shah further submitted that Labour Court has passed an order vide Exh. 11 directing the respondent workman to lead first evidence before the Labour Court as he has challenged the validity and legality of departmental inquiry on 20.09.2000. Therefore, it was a duty of workman to lead first evidence for challenging the departmental inquiry. He also submitted that Labour Court has not considered the order passed on Exh. 11 dated 20.09.2000. He also submitted that entire departmental inquiry was conducted, but, it remained ex-parte and thereafter, vide Exh. 10, Xerox copy of documents produced by petitioner and subsequently, original papers of departmental inquiry were produced by petitioner before the Labour Court, but, that documents are not exhibited by the Labour Court. Therefore, he submitted that when workman is challenging the departmental inquiry, he should have to lead first evidence that on what basis or how, the departmental inquiry is vitiated. He further submitted that Labour Court has passed an order of declaring inquiry vitiated which is contrary to the settled law. He relied upon Para 6 of one decision of Apex Court in case of Krishna Bhagya Jala Nigam Limited vs. Mohammed Rafi, reported in 2006 (110) FLR 1212, which is quoted as under:

“6. In R.M. Yellati vs. The Assistant Executive Engineer, the decisions referred to above were noted and it was held as follows :

“Analyzing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under Section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforestated judgments, we find that this Court has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily waged earner, there will be no letter of appointment or termination. There will also be no receipt or proof of payment. Thus i