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 Tyre
and Rubber Co. of India (Pvt.) Ltd. vs. The Management and Ors. MANU/SC/0305/1973; Bharat
Iron Works vs. Bhagubhai Balubhai Patel and Ors. MANU/SC/0345/1975; Shankar Chakravarti
vs. 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; Rajasthan
State Ganganagar S. Mills Ltd. vs. State of Rajasthan and Anr. MANU/SC/0749/2004; Municipal
Corporation, Faridabad vs. Siri Niwas MANU/SC/0727/2004; M.P. Electricity Board vs. Hariram
etc. MANU/SC/0842/2004; Dominent Off-set (P) Ltd. vs. Presiding Officer, Industrial Tribunalcum-Labour Court and Anr. MANU/PH/0216/1997; Neeta Kaplish vs. Presiding Officer, Labour
Court and Another MANU/SC/0762/1998
Citing Reference:

Discussed

Mentioned

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 sheeted
for misconduct - Petitioner dismissed him from service after giving opportunity of
hearing - Industrial dispute was pending before Industrial Tribunal in respect of
petitioner establishment - Therefore petitioner sought approval of its action of
dismissal of respondent No. 2 from service - Tribunal approved order of dismissal of
services of respondent no 2 - Respondent No. 2 served demand notice upon
Government seeking reference to Labour Court for determination of dispute under
Section 10 of Act and sought reinstatement with continuity of service and full back
wages - 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

2015-08-05 (Page 1 of 7 )

www.manupatra.com

LALIT BHASIN

employee between parties - Respondent no. 2 has sought reference under Section 10
of 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 vitiated
for any reason then it was respondent no. 2 who would fail as relationship of employer
and employee between parties has already come to an end - Therefore it was for
respondent 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 passed
by Labour Court is set aside and directed for frame new issue as in direction - Revision
dispose of accordingly
JUDGMENT
Hemant Gupta, J.
1. The challenge in the present revision petition is to the order passed by the learned Labour
Court dated 22.9.2003 whereby while treating an issue regarding fairness of domestic enquiry as
preliminary, 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 the
petitioner. The respondent No. 2 was found guilty vide report dated 23.2.1995 on conclusion of
the enquiry conducted by an Enquiry Officer. After giving an opportunity of hearing to
respondent 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 in
respect of the petitioner establishment, therefore, the petitioner sought approval of its action of
dismissing respondent No. 2 from service. The learned Industrial Tribunal vide order dated
11.11.1997 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 the
determination 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 back
wages. 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 the
principles 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 fair
and proper enquiry? OPM
2. If the Issue No. 1 is not proved, then whether the workman is guilty of major acts
of 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 preliminary
Issue. It was prayed that onus to prove the said Issue be placed on the workman. The learned
Labour 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

2015-08-05 (Page 2 of 7 )

www.manupatra.com

LALIT BHASIN

6. Learned Counsel for the petitioner has vehemently argued that the onus to prove an Issue
that 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 a
reference under Section 10 of the Act. It is contended that if the workman is able to prove that
the domestic enquiry is vitiated for one of the other reason, only then the Management will have
a right to adduce evidence, if sought, to prove the misconduct afresh before the leaned Labour
Court. 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 the
Evidence Act, 1872 are strictly not applicable to the proceedings before the learned Labour
Court, 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, are
applicable in the proceeding before the learned Labour Court as well. Therefore, the burden to
prove 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 by
the 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 legal
right or liability dependent on the existence of facts which he asserts, must prove
that 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. Jain
MANU/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 the
management 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 an
opportunity to adduce evidence before the Tribunal if the finding on the preliminary
issue is against the management. However, elaborate and cumbersome the
procedure may be, under such circumstances, it is open to the Tribunal to deal, in
the first instance, as a preliminary issue the validity of the domestic enquiry. If its
finding on the preliminary issue is in favour of the management, then no additional
evidence 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 the
employee to lead evidence contra, as the request to adduce evidence had been
made 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, in
case 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 discharge
of an employee is referred for industrial adjudication, the labour court should first
decide as a preliminary issue whether the domestic enquiry is admitted by the
employer, there will be no difficulty. But when the matter is in controversy between

2015-08-05 (Page 3 of 7 )

www.manupatra.com

LALIT BHASIN

the parties that question must be decided as a preliminary issue. On that decision
being 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 will
not be thereafter permissible in any proceedings to raise the issue.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
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 alleging
victimization, the Court held that "the onus of establishing a plea of victimization will be upon a
person 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 Section
33(2)(b) of the Act. The learned Tribunal rejected the application for approval of the action
terminating the services of the workman. The said action was challenged by the Management by
way of filing a Civil Writ Petition. The Writ Petition was dismissed, but in appeal, liberty was
given 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. The
Supreme 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 should
or omit to do, but the Labour Court has the trappings of a Court. It was held to the following
effect:
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
The Labour Court or the Tribunal would then proceed to decide the lis between the
parties. 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 quasijudicial 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 before
it. 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, the
Labour 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 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 the evidence. The quasi-judicial tribunal is not
required 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 pleading
rising a contention there is no question of substantiating such a non-existing
contention by evidence. It is will settled that allegation which is not pleaded, even if
there 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 to
the first mentioned party. We are not unmindful of the fact that pleadings before
such bodies have not to be read strictly, but it is equally true that the pleadings
must be such as to give sufficient notice to the other party of the case it is called
upon to meet.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

2015-08-05 (Page 4 of 7 )

www.manupatra.com

LALIT BHASIN

12. The Division Bench of this Court in a judgment reported as "Satpal Singh v. Union of India
2002(2) S.C.T. 179" while dealing with the onus of proof in case of a retrenchment, held to the
following effect:
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
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 Management
as it has been clearly held that when appointment is for a fixed period, unless there
is finding that power under Clause (bb) of Section 2(oo) was misused or vitiated by
its 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 or
appointment for a period was a colourable exercise of power. The misuse of power
has to be established in each case, in our view, by the workman by at least pleading
bare minimum facts. There ir no question for the management to establish noncolourable exercise unless it is called upon to do so and surely it would be called
upon to do so only if there is a charge to that effect against it. The burden of proof
for 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.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
13. The Single Bench of this Court in Civil Revision No. 768 of 1999 titled as Shri Bhiwani Cotton
Mills and Industries Limited v. Presiding Officer, Labour Court decided on 23.7.1999, has also
examined the question of onus to prove in reference before the learned Labour Court. It was
held to the following effectxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
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 proof
is, 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.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
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 with
the general principle that a party which approaches the Court must establish its
case. 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 the
Industrial Disputes Act have been considered applicable by the Apex Court in
Shankar Chakravarti v. Britannia Biscuit Co. Ltd. MANU/SC/0374/1979 : (1979)
IILLJ194SC .
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
14. Similar is he view of the Hon'ble Supreme Court in cases pertaining to retrenchment of
workman, 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

2015-08-05 (Page 5 of 7 )

www.manupatra.com

LALIT BHASIN

Limited v. Presiding Officer MANU/PH/0216/1997" by learned Counsel for the workman. In the
said 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 of
hearing to the workman. In these circumstances, this Court held that "the party asserting the
existence of a positive fact is supposed to place the material in proof of its existence". The
Management 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 Kaplish
v. Presiding Officer, Labour Court MANU/SC/0762/1998 : (1999)ILLJ275SC ". However, that was
a 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 since
the Management has failed to adduce fresh evidence, the order of termination cannot be said to
be 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, two
situations 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, the
Management 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 misconduct
shall be on the Management only as the order of the Management on the face of the record is
against the principles of natural justice.
18. However, in case where the domestic enquiry is held, but it is alleged by the workman that
such 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 of
evidence will be sufficient to prove such Issue is upon the judicial wisdom of the Labour Court. If
finding 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 in
support of their allegations of misconduct. The onus of the proof of the preliminary Issue that
the 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 after
granting an opportunity of hearing to the workman. The said order of dismissal has the effect of
cessation 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 his
dismissal from the services of his employer. If the workman does not lead any evidence in
respect 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 come
to an end. Therefore, it is for the workman to prove initially that the domestic enquiry is
defective or is vitiated. Such finding alone would give an opportunity to the Management to
prove 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 set
aside. 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

2015-08-05 (Page 6 of 7 )

www.manupatra.com

LALIT BHASIN

misconduct? OPM.
4. Relief.
The revision petition stands disposed of accordingly.

Manupatra Information Solutions Pvt. Ltd.

2015-08-05 (Page 7 of 7 )

www.manupatra.com

LALIT BHASIN