& Ors. Vs Maruti Suzuki India Ltd.
WITH CIVIL APPEAL NO.
10144 OF 2010 (Arising out of S.L.P (C) No. 9604 of 2008) & CIVIL APPEAL
NO. 10143 OF 2010 (Arising out of S.L.P (C) No. 21919 of 2008)
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
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.
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."
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
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? Relief "It is manifest that in relation to issue No. 1, the
Labour Court had placed theonus of proof on the management.
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 work man 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.
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"
aggrieved by the said order, the appellant preferred a writ petition before the
High Court. As afore-mentioned, the High Court, vide judgment dated 22nd
January, 2008 has dismissed the writ petition of the appellant, inter alia,
observing 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. The
High Court held that the order of the Labour Court cannot be said to be
perverse or illegal warranting its interference.
the present appeals.
Jitendra Sharma, learned senior counsel appearing for the appellants in S.L.P.
(C) Nos. 7187-7194 of 2008 and S.L.P. (C) No. 9604 of 2008 while assailing the
impugned order contended that in light of the decisions of this Court in
Karnataka State Road Transport Corpn. Vs. Lakshmidevamma (Smt.) & Anr.1 and.
The Workmen of M/s Firestone Tyre & Rubber Co. of India (Pvt.) Ltd. Vs. The
Management & Ors.2, it is a settled principle that when a domestic enquiry
is found to be irregular or improper or is not at all conducted on the ground
that it is not practical to hold it because of some compelling circumstances,
the onus to prove that the termination was justified is on the management. It
was asserted that the order passed by the Labour Court on 31st January, 2006 is
per se illegal and therefore, the High Court erred in not reversing the same.
contra, Mr. Altaf Ahmed, learned senior counsel appearing on behalf of the
respondent, urged that the impugned order deserves to be in light of the
decisions of this Court in Manager, Reserve Bank of India, Bangalore Vs. S.
Mani & Ors.3 and Talwara Cooperative Credit and Service Society Limited Vs.
Sushil Kumar4 wherein it has been held that the burden of proving that the
termination was unjustified lies on the workman. Learned counsel also submitted
that since both the parties have already filed affidavits by way of evidence,
these appeals have been rendered infructuous.
our opinion, in light of the settled legal position on the point, the judgment
of the High Court is clearly indefensible. Whilst it is true that the
provisions of the Evidence Act, 1872 per se are not applicable in an industrial
adjudication, it is trite that its general principles do apply in proceedings
before the Industrial Tribunal or the Labour Court, as the case may be. (See:
Municipal Corporation, Faridabad Vs. Siri Niwas5). In any proceeding, the
burden of proving a fact lies on the party that substantially asserts the
affirmative of the issue, and not on the party who denies it. (See: Anil Rishi
Vs. Gurbaksh Singh6) Therefore, it follows that where an employer asserts
misconduct on the part of the workman and dismisses or discharges him on that
ground, it is for him to prove misconduct by the workman before the Industrial
Tribunal or the Labour Court, as the case may be, by leading relevant evidence
before it and it is open to the workman to adduce evidence contra. In the first
instance, a workman cannot be asked to prove that he has not committed any act tanta
mounting to misconduct.
Karnataka State Road Transport Corporation (supra) relied upon by learned
counsel for the appellant, a Constitution Bench of this Court affirmed the
decision of this Court in Shambu Nath Goyal Vs. Bank of Baroda & Ors.7,
wherein the issue for consideration was as to at what stage, the management is
entitled to seek permission to adduce evidence in justification of its decision
to terminate the services of an employee. It was held that the right of the
employer to adduce additional evidence, in a proceeding before the Labour Court
under Section 10 of the Act, questioning the legality of the order terminating
the service must be availed of by the employer by making a proper request at
the time when it files its statement of claim or written statement. It was
observed that: "The management is made aware of the workman's contention regarding
the defect in the domestic enquiry by the written statement of defence filed by
him in the application filed by the management under Section 33 of the Act.
Then, if the management chooses to exercise its right it must make up its (1983)
4 SCC 491 mind at the earliest stage and file the application for that purpose
without any unreasonable delay."
in The Workmen of M/s Firestone Tyre & Rubber Co. (supra), this court
observed that: "Even if no enquiry has been held by an employer or if the enquiry
held by him is found to be defective, the Tribunal in order to satisfy itself
about the legality and validity of the order, had to give an opportunity to the
employer and employee to adduce evidence before it. It is open to the employer
to adduce evidence for the first time justifying his action, and it is open to the
employee to adduce evidence contra." (See also: United Bank of India Vs.
Tamil Nadu Banks Deposit Collectors Union & Anr.8; Engineering Laghu Udyog
Employees' Union Vs. Judge, Labour Court and Industrial Tribunal & Anr.9 (emphasis
supplied by us)
our opinion, the decisions in Manager, Reserve Bank of India (supra) and
Talwara Cooperative Credit and Service Society Limited (supra) relied upon by
the learned counsel for the respondent have no bearing on the issue at hand in
as much as the said decisions deal with the onus of proof in relation to
proving 240 days of continuous service and entitlement to back wages
respectively, for which the claims were made by the workmen, which is not the
case here. In the present case, as stated above, the assertion to the effect
that it was not practical to hold domestic enquiry to prove the misconduct of
the workman was by the employer and therefore, the assertion has to be proved
by the employer and not by the workman.
view of the aforesaid position in law, the inevitable conclusion is that when
no enquiry is conducted before the service of a workman is terminated, the 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. It bears repetition that it is for the management to prove, by
adducing evidence, that the workman is guilty of misconduct and that the action
taken by it is proper. In the present case, the services of the
appellants-workmen having been terminated on the ground of misconduct, without
holding a domestic enquiry, it would be for the management to adduce evidence
to justify its action. It will be open to the appellants-workmen to adduce
evidence in rebuttal. Therefore, 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.18.For the foregoing reasons, the appeals are allowed;
the impugned judgments are set aside and the Labour Court is directed to
dispose of the references expeditiously. The appellants will also be entitled
to costs, quantified at ` 10,000/- for each set of appeals.
(D.K. JAIN, J.)
(H.L. DATTU, J.)