JUDGMENT
Gita Mittal, J.
1. This writ petition has been filed by the petitioner challenging the legality and validity of an order of reference dated 16th May, 1996 made by the Government of N.C.T. of Delhi under Section 10(1)(c) of the Industrial Disputes Act, 1947 and the ex parte award dated 1st November, 2001 resulting from the adjudication thereupon by the Labour Court.
2. The petitioner before this court has stated that he ordinarily resides in London and had purchased a farm house in Mehrauli in the year 1992 for his sons’ residence as well as for his family during visits to Delhi. In view of the red brick exterior of the property, he had given to this house the appellation “Villa Rosa”. The house was a residential property made and utilised for this purpose alone. From 14th September, 1994, for the purposes of normal domestic works, persons such as cook, cleaners, gardeners, watchmen/chowkidars etc. were appointed on a part time basis. The petitioner had engaged the services of Shri Bhaggu Lal (respondent no.5 herein) as a part-time ironing man/presswala for ironing/pressing of personal clothing and linen of family intermittently spread over a year from September, 1994. He was engaged at a monthly remuneration of Rs.1,600/- and his services were so utilised up to the 6th October, 1995.
It is submitted that the services of the respondent no.5 were utlilised as normal domestic staff engaged for maintenance and running of the household. The services of the respondent was being utilised intermittently. No industrial activity or business establishment was in existence at this property let alone any establishment within the meaning of Section 2j of the Industrial Disputes Act, 1947.
3. Asserting that on or about 30th December, 2003, a cryptic notice dated 10th December, 2003 was received at the farm house from the office of the Deputy Commissioner (South-West) issued by the Sub-Divisional Magistrate which was addressed to the “Billa Roja” and was returnable on 5th January, 2004. In this notice, demand for deposit of Rs.2,10,964/- as arrears of land revenue on account of “wages Bhaggu Lal” was made without giving any particulars of any case whatsoever. One Jagjit Singh Siddhu, a domestic employee of the petitioner made inquiries about the notice whereupon he received copy of the recovery certificate issued by the Deputy Labour Commissioner (respondent no.7 herein) in respect of some industrial adjudication.
It was on inquiries from the officers of respondent nos. 1 to 4 that the petitioner learnt that an ex parte award dated 1st November, 2001 had been made by the Labour Court No. IV against the “Management of Villa Rosa” pursuant to an order of reference dated 16th May, 1996 made by the Secretary (Labour), Government of N.C.T. of Delhi (respondent no.3 herein).
4. The petitioner has vehemently contended that apart from the afore-said notice from the Deputy Commissioner, no notice or summons have ever been served on the petitioner or any member of his family or any other person competent to accept service on his behalf from any of the authorities or from the Labour Court.
5. The petitioner is stated to have moved an application thereafter before the labour court seeking setting aside of the ex parte Award, pointing out the foregoing facts. However, the authorised representative of Shri Bhaggu Lal, respondent no.5 herein, objected to the petitioner being represented through counsel and had filed an application under Section 33 of the Industrial Disputes Act, 1947 in this behalf. This application was allowed by the Labour Court by its order dated 6th March, 2004. The authorised representative of the petitioner was thereby precluded from appearance before the Labour Court and in these circumstances, the present writ petition was necessitated and was filed by the petitioner. It has been stated that the application before the Labour Court was consequently withdrawn.
6. The pertinent question which arises for consideration in the present case relates to the necessary conditions which are precedent to the making of an order of reference under Section 10(1)(c) of the Industrial Disputes Act, 1947. The formation of the opinion of the competent Government relates to the existence of an industrial dispute or its apprehension. The second issue which has arisen for consideration in the present case is the manner in which an Award is to be made by an industrial adjudicator and its satisfaction with the discharge of the onus and burden of proof by the party on whom the same is cast in respect of the claim pending for adjudication.
7. At this stage, it becomes necessary to notice the facts as were laid out by the respondent no.5 alleging illegal termination of his services from M/s Villa Rosa. The respondent no.5 claimed illegal termination of his services on 6th October, 1995. The respondent no.5 claimed to have raised a demand upon the petitioner and also made a claim before the conciliation officer in respect of his alleged termination.
On a failure report having been sent by the conciliation officer, the Secretary (Labour) made an order of reference dated 16th May, 1996 to the Government of Delhi referring the following dispute for adjudication to the Labour Court:-
Whether the services of S/Sh. Bhaggu Lal and Basant have been terminated illegally and/or unjustifiably by the management and if so, to what relief are they entitled and what directions are necessary in this respect?
8. Based on this reference, the Labour Court initiated adjudication proceedings. Notices issued to the present petitioner were received back unserved. On the notices issued for a hearing fixed on 17th September, 1999, the notices were returned unserved with the report that despite concerted efforts and inquiry, the address could not be traced out. A registered A.D. sent purportedly to “Villa Roza” at Ghitorni Village, Plot No.314, Mehrauli Gurgaon Road, New Delhi was returned back with the remark that the addressee was in London.
9. However, a notice which was issued on 7th April, 2000 was returned back with the report that the process server met the security guard who spoke to the manager on telephone and the manager refused to receive the summons and on telephonic instructions of the manager, the security guard also refused to receive the summons.
10. Based on this service report, the Labour Court recorded that the management had refused the service and accordingly, directed ex parte proceedings. The workman tendered his evidence by way of the affidavit on the 4th May, 2001 and further tendered in evidence certain documents on 31st October, 2001. The Labour Court believed the submissions made by the workman and answered the reference in his favor vide an ex parte Award made on 1st November, 2001.
11. Perusal of the statement of claim filed by the respondent no.5 coupled with the affidavit by way of evidence which was a verbatim reproduction of the claim shows that according to the workman:
(i) the post on which the workman was working and the nature of his work was that the workman Shri Bhaggu Lal, “in addition to his regular work in the establishment, was also performing the duty of house keeper to Secretary, Ms. Vandana Anand”.
(ii) he was so employed w.e.f. 14th September, 1994 at a monthly salary of Rs.1,600/- and his services were terminated on 6th October, 1995 unjustifiably even though his work had been to the entire satisfaction of the management.
(iii) the management was not giving legal and welfare facility to the workman in terms of the letter of appointment like E.S.I. benefit, provident fund benefit, leave with wages, bonus etc. despite repeated requests. The respondent no.5 made claims to the office of the labour department on 18th September, 1995 but his services were terminated. Thereafter a demand notice dated 17th October, 1995 was sent and a complaint was made to the labour department on 17th October, 1995 while the dispute was raised on 29th October, 1995.
12. The perusal of the Award shows that no finding was returned as to the post on which the respondent no.5 was actually engaged or the nature of business of the petitioner. On the vague assertions of the respondent no.5 which were unsupported by any other oral or documentary evidence, the Labour Court held that the services of the workman Shri Bhaggu Lal were terminated by the management in violation of the provisions of Industrial Disputes Act, 1947, hence directed the management to reinstate him with full back wages.
It is necessary to notice that the only documents placed on record before the Labour Court by the respondent no.5 were his complaints to the Labour Authorities.
These complaints of the respondent no.5 were as bereft of material particulars as the claim and deposition made by the petitioner before the industrial adjudicator.
13. In view of the objections raised by the petitioner before this court, the original record of ID No.566/1996 which culminated in the award dated 1st November, 2001 has been made available. The record of the labour department in respect of the conciliation proceedings, report of the conciliation officer and the opinion of the Secretary (Labour) resulting in the order of reference, was also called for. The same have been produced before this court.
14. So far as the record of the conciliation officer is concerned, I find that the notices were issued to M/s Vila Roja, Khasra No.314, Village Ghitorni, Mehrauli, New Delhi. No report of service is forthcoming on the record. On 16th February, 1996, it is recorded on the file that despite sending registered notice, the management has failed to attend the proceedings and for this reason, the conciliation officer was of the opinion that there was no possibility of settlement and the proceedings were closed.
Based on this noting, the conciliation officer has made recommendations on a cyclostyled proforma which are dated 16th February, 1996. The terms in which the reference was required to be made was also suggested on this proforma by the conciliation officer.
15. It is apparent that there was no sincere effort by the conciliation officer to effect service of notice or verify even prima facie the correctness of the complaint made by the workman. There was, therefore, no efforts to effect conciliation as statutorily mandated.
16. So far as the office of the Secretary (Labour) of the Govt. of N.C.T. of Delhi is concerned, on the mere receipt of the above failure report of the conciliation officer and his recommendation that the dispute be sent for adjudication, an order of reference was prepared by the officers which was put up for signatures of the Secretary (Labour). There was no application of mind and the fair order of reference based on the recommendations of the Conciliation officer, which was put up for approval and signature, has been signed without any further consideration.
17. Conciliation is the basis of industrial adjudication. Where the appropriate Government is of the opinion that an industrial dispute exists or is apprehended, it may, by order in writing, refer such dispute or any matter appearing to be connected therewith or relevant to the dispute to a labour court for adjudication, if the matter is specified in the second schedule. If such matter relates to a matter specified in the second schedule or the third schedule, the appropriate government would refer the dispute to a tribunal for adjudication.
18. In the instant case, the petitioner has contended that there was no material before the appropriate government to arrive at a decision and to form an opinion that there was a dispute relating to an industry.
19. It is noteworthy that the respondent no.5 had merely pre-fixed the appellation Villa Rosa with “M/s”. The complaint made by the respondent no.5 was completely silent in terms of the nature of work or activities which were being discharged or carried out by claimed management. Furthermore, there was nothing on record either before the conciliation officer or before the appropriate Government as to the position or post in which the respondent no.5 had been appointed or the nature of his duties. The respondent no.5 had cleverly stated that apart from his “regular duty”, he had worked for the house keeper secretary, Ms. Vandana Anand in her individual capacity. Claiming that the workman had objected to denial of failure to pay wages and denial of illegal facilities as appointment letter, E.S.I. etc, the workman had made a complaint against the management.
20. The power of the appropriate Government in referring or refusing to refer the dispute for adjudication is circumscribed by the provisions of Section 10 of the Industrial Disputes Act, 1947. The workman cannot approach a Labour Court or Industrial Tribunal directly for adjudication of an industrial dispute and he has to seek reference of his dispute under the statutory provisions. The appropriate government is defined under Section 2(a) of the Industrial Disputes Act, 1947 which is empowered to make the reference. So far as the power of the appropriate government is concerned, the same has fallen for consideration before the Apex Court in a large number of cases. The principles governing the exercise of such power were laid down by the Apex Court in (1953) 1 LLJ 174 entitled State of Madras v. C.P. Sarthy wherein the court held thus:-
i. The Government should satisfy itself, on the facts and circumstances brought to its notice, in its subjective opinion that an ‘industrial dispute’ exists or is ‘apprehended’;
ii. the factual existence of a dispute or its apprehension and the expediency of making reference are matters entirely for the Government to decide;
iii. The order making a reference is an administrative act and it is not a judicial or a quasi-judicial act, and
iv. the order of reference passed by the Government cannot be examined by the High Court in its jurisdiction under Article 226 of the Constitution that the dispute existed, or was apprehended.
21. The principles laid down were expanded by judicial pronouncement after a statutory amendment whereby the words “where the appropriate government is of the opinion” were incorporated into Section 10 of the Industrial Disputes Act, 1947.
Reference in this regard can be had to the judgments reported at , 1997 3 LLJ Suppl. 204 Bank of Maharashtra and Anr. v. Om Prakash Malviya; Bombay Union of Journalists v. State of Bombay 1985 (51) FLR 71 (SC) Ram Avtar Sharma v. State of Haryana & .
22. It is well settled that judicial review of the Government decision or order under Section 10 is permissible if the same is based on irrelevant, extraneous consideration and non-germane grounds. Where the appropriate government has refused to make the order, it is open to the writ court to issue a writ of mandamus directing the Government to reconsider its decision on relevant and germane grounds.
The adequacy or sufficiency of the material on which an order is based is certainly beyond the permissible scope of judicial scrutiny. If the action of the Government in making the reference is impugned by a party, as in the instant case, it is, however, open to the party to show that the matter referred was not an industrial dispute or that the industrial adjudicator had no jurisdiction to make the award.
Thus, the satisfaction as to the very existence of an industrial dispute or its apprehension is certainly a necessary condition precedent to the making of the order of reference. This requires an opinion to be formed which necessarily mandates that the government must be prima facie satisfied that the employer against whom the dispute is being referred is an industrial establishment as would be covered under the definition of the expression in Section 2(j) of the Industrial Disputes Act, 1947 and also that the person who is seeking reference is a `workman’ under Section 2(s) of the Industrial Disputes Act, 1947.
23. It is based on the materials placed before it, that the appropriate government arrives at an administrative decision as to the existence or apprehension of an industrial dispute resulting in the order of reference or refusal to make the same. Regard in this behalf can be had to 1985 (51) FLR 71 (SC) entitled Ram Avtar Sharma v. State of Haryana.
24. In a recent case, the issue being considered by this court, had arisen before the Apex Court in Secretary, Indian Tea Association v. Ajit Kumar Barat and Ors. The court was considering the legality of the refusal of the appropriate government to make a reference on the ground that the concerned workman was not covered within the definition under Section 2(s) of the Act. In this case, the appropriate Government considered the salary and allowance drawn by the employee as well as the nature of work performed by him while arriving at its conclusions. In its judgment reported at , the Supreme Court sustained the order of the appropriate government refusing to make a reference after a detailed consideration of the law on the subject. The principles laid down by the Apex Court read thus:-
Therefore the view that while exercising power under Section 10(1) the functions performed by the appropriate Government is an administrative function and not a judicial or quasi-judicial function is beyond the pale of controversy.
Now if the Government performs an administrative act while either making or refusing to make a reference under Section 10(1), it cannot delve into the merits of the dispute and take upon itself the determination of lis. That would certainly be in the excess of the power conferred by Section 10. Section 10 requires the appropriate Government to be satisfied that the industrial dispute exists or is apprehended. This may permit the appropriate Government to determine prima facie whether an industrial dispute exists or claim is frivolous or bogus or put forth extraneous and relevant reasons not for justice of industrial peace and harmony. Every administrative determination must be based on ground relevant and germane to the exercise of power. If the administrative determination is based on the relevant; extraneous or grounds not germane to the exercise of power, it is liable to be questioned in exercise of the power of judicial review.
25. In the instant case, it has been contended that there was no material at all placed by the respondent no.5 before the labour authorities to arrive at a conclusion that a dispute existed between an industry as defined under Section 2(s) and a workman under Section 2(j) of the Industrial Disputes Act, 1947.
26. I have been taken through the record of the conciliation officer as well as of the appropriate government. The only material on the available record is in respect of the complaint made by the workman wherein also he does not state or give any particulars of the industrial establishment against whom he is making the complaint or the post at which he is appointed. Though the word “press vala” is mentioned at one place, however, the respondent no.5 has really claimed that he was employed by the house keeper, Secretary, Ms. Vandana Anand. Even this engagement cannot be ascertained with any clarity from the assertions of the respondent no.5.
27. I may also notice the complete failure on the part of the conciliation officer to ensure that the claimed management was served with the notices sent by it. Section 11(4) of the Industrial Disputes Act, 1947 adequately empowers the conciliation officer to enforce the attendance of any person and he is also empowered to inspect any document. He would have to examine existence of grounds for consideration relevant to the industrial dispute. The statute has vested the conciliation officer with the same powers as are vested in civil court under the Code of Civil Procedure, 1908 in respect of enforcing the attendance of a person and examining him or for compelling the production of a document.
Yet no real effort was made by the conciliation officer to effect service.
Even the report has been made without application of mind and has been issued in a cyclostyled proforma. In the instant case, in my view, the conciliation officer failed to discharge the statutory duty enjoined upon him before making the report. The management was never served with the notice and never had opportunity to participate in the conciliation proceedings. Therefore, the failure report of the conciliation officer is bereft of any factual basis.
28. In these circumstances, the order of reference dated 16th May, 1996 is clearly without jurisdiction and is based on no material and consequently, cannot be sustained.
29. Having so found, the matter would have ended here. However, I find that in the instant case, the labour court has proceeded mechanically in the matter and has answered the reference affirmatively in favor of the claimant-respondent no.5. In as much as the several awards made in similar circumstances have been brought to the notice of this court, it becomes my bounden duty to deal with the challenge made to the award also and the submissions made thereon by both parties.
30. I find that the before the Industrial Adjudicator, the respondent no.5 did not use the expression “press wala” in the entire body of the claim. Apart from a vague reference to “regular duties” and the work which the respondent no.5 claimed to have been doing for Ms. Vandana Anand, there is not a whisper as to the post on which he was engaged nor any particulars of “regular duties” The deposition of the respondent no.5 was equally vague. There is no description of the management apart from it being arrayed as “M/s Villa Rosa”. The Industrial Adjudicator had no material before it as to the composition or constitution of the alleged management. Thus, the management could have ranged from being a public limited company/private limited company incorporated under the Indian Companies Act, or could have been a partnership firm under the Indian Partnership Act or a sole proprietorship firm, or a society registered under the Societies Registration Act or an association/organisation. The status of the management is completely unclear while there is nothing about the nature of business of the management available on record.
31. It has been repeatedly held that so far as an industrial claim is concerned, its procedure is guided by the general principles of the law of evidence that he who asserts must prove. Based on the rule of Roman Law – `ei incumbit probatio, qui dicit, non qui negat’ – the burden of proving a fact rests on party who substantially asserts the affirmative of the issue and not upon the party who denies it, for a negative does not admit of direct and simple proof. It is well settled that the onus and burden of proof of establishing the employment is consequently on the workman. The workman can discharge the same by leading cogent and reliable evidence in respect thereof which could be oral or documentary. In the event of non-availability of the same, he can very well cause the same to be summoned from the authorities concerned or the management itself and place the same before the industrial adjudicator.
32. It is well settled that the provisions of the Indian Evidence Act, 1872 per se are not applicable to an industrial adjudication. The general principles of the Indian Evidence Act, 1872 are, however, are applicable. It is also absolutely imperative for the industrial adjudicator to see that the principles of natural justice are complied with. Undoubtedly the principles of law laid down with regard to discharge of burden and onus of proof have to be strictly adhered to. The parties to the adjudication have to make out a case in law to be entitled to adjudication in their favor.
33. In this behalf the law laid down by the Apex Court in Manager, Reserve Bank of India v. S. Mani and Ors., is noteworthy. It was held by the apex court that it is only if the initial burden of proof, which was on the workman, was discharged to some extent, that a finding can be returned in respect of the defense of the management. Furthermore, a plea having been set up by the workman, the initial burden of proof was on the workman to show that he had been employed by the respondent bank in the claimed capacity on the stated terms. The circumstances in which the court may draw an adverse inference against the management has been succinctly set down thus :-
22. An adverse inference, therefore, was drawn for non-production of the attendance register alone, and not for non-production of the wage-slips. Reference to “other relevant documents” must be held to be vague as the appellant herein had not been called upon to produce any other documents for the said purpose.
23. It appears that the learned Tribunal considered the matter solely from the angle that the appellant had failed to prove its plea of abandonment of service by the respondents.
24. The question came up for consideration before this Court recently in Siri Niwas wherein it was held : (SCCp.198, para 15)
15. A court of law even in a case where provisions of the Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against his contentions. The matter, however, would be different where despite direction by a court the evidence is withheld. Presumption as to adverse inference for non-production of evidence is always optional and one of the factors which is required to be taken into consideration is the background of facts involved in the lis. The presumption, thus, is not obligatory because notwithstanding the intentional non-production, other circumstances may exist upon which such intentional non-production may be found to be justifiable on some reasonable grounds.
25. Referring to the decision of this Court in Indira Nehru Gandhi v. Raj Narain this court observed :(Siri Niwas case, SCC p. 199, para 19)
19. Furthermore a party in order to get benefit of the provisions contained in Section 114III.(g) of the Evidence Act must place some evidence in support of his case. Here the respondent failed to do so.
26. In Hariram this Court observed : (SCC p. 250, para 11)
11. The above burden having not been dischasrgsed and the Labour Court having held so, in our opinion, the Industrial Court and the High Court erred in basing an order of reinstatement solely on an adverse inference drawn erroneously.
27. As noticed hereinbefore, in this case also the respondents did not adduce any evidence whatsoever. Thus, in the facts and circumstances of the case, the Tribunal erred in drawing an adverse inference.
Burden of proof
28. The initial burden of proof was on the workmen to show that they had completed 240 days of service. The Tribunal did not consider the question from that angle. It held that the burden of proof was upon the appellant on the premise that they have failed to prove their plea of abandonment of service stating :
It is admitted case of the parties that all the first parties under the reference CRs Nos. 1 to 11 of 1992 have been appointed by the second party as ticca mazdoors. As per the first parties, they had worked continuously from April 1980 to December 1982. But the second party had denied the above said claim of continuous service of the first parties on the ground that the first parties has not been appointed as regular workmen but they were working only as temporary part-time workers as ticca mazdoor and their services were required whenever necessity arose that too on the leave vacancies of regular employees. But as strongly contended by the counsel for the first party, since the second party had denied the above said claim of continuous period of service, it is for the second party to prove through the records available with them as the relevant records could be available only with the second party.
29. The Tribunal, therefore, accepted that the appellant had denied the respondents’ claim as regards their continuous service.
30. In Range Forest Officer v. S.T. Hadimani it was stated : (SCC p. 26, para 3)
3. …In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year proceding his termination. Filing of an affidavit is only his own statement in his favor and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside.
31. In Siri Niwas this Court held : (SCC pp. 197-198, para 13)
13. The provisions of the Evidence Act, 1872 per se are not applicable in an industrial adjudication. The general principles of it are, however, applicable. It is also imperative for the Industrial Tribunal to see that the principles of natural justice are complied with. The burden of proof was on the respondent workman herein to show that he had worked for 240 days in the preceding twelve months prior to his alleged retrenchment. In terms of Section 25F of the Industrial Disputes Act, 1947, an order retrenching a workman would not be effective unless the conditions precedent therefore are satisfied. Section 25F postulates the following conditions to be fulfillled by an employer for effecting a valid retrenchment :
(i) one month’s notice in writing indicting the reasons for retrenchment or wages in lieu thereof;
(ii) payment of compensation equivalent to fifteen days’ average pay for every completed year of continuous service or any part thereof in excess of six months.
It was further observed : (SCC p. 198, para 14)
14. …As noticed hereinbefore, the burden of proof was on the workman. From the award it does not appear that the workman adduced any evidence whatsoever in support of his contention that he complied with the requirements of Section 25B of the Industrial Disputes Act. Apart from examining himself in support of his contention he did not produce or call for any document from the office of the appellant herein including the muster rolls. It is improbable that a person working in a local authority would not be in possession of any documentary evidence to support his claim before the Tribunal. Apart from muster rolls he could have shown the terms and conditions of his offer of appointment and the remuneration received by him for working during the aforementioned period. He did not even examine any other witness in support of his case.
32. Yet again in Hariram it was opined : (SCC p. 250, para 10)
10. …We cannot but bear in mind the fact that the initial burden of establishing the factum of their continuous work for 240 days in a year rests with the respondent applicants.
34. So far as the effect of failure to produce evidence which is in the power and possession of a party, illustration (g) of Section 114 of the Indian Evidence Act provides that the court may presume that evidence which could be and is not produced, would if produced, be unfavorable to the person holds it. In this behalf, in entitled Citi Bank N.A. v. Standard Chartered Bank and Ors., the Apex Court held thus:-
36. Illustration (g) of Section 114 of the Indian Evidence Act provides that the court may presume “that evidence which could be and is not produced would, if produced, be unfavorable to the person who holds it”. The Privy Council in T.S. Murugesam Pillai v. M.D. Gnana Sambandha Pandara Sannadhhi held:
A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing accordingly to furnish to the courts the best material for its decision. With regard to third parties, this may be right enough; they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in Their Lordships’ opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the court the written evidence in their possession which would throw light upon the proposition.
37. This passage was cited with approval of this Court in Biltu Ram v. Jainandan Prasad and again in Gopal Krishnaji Ketkar v. Mohd. Haji Latif in which it was held:
Even if the burden of proof does not lie on a party the court may draw an adverse inference if the withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.
35. To the same effect are the observations in entitled Punit Rai v. Dinesh Chaudhary. When a claim is raised by a workman that his services have been illegally terminated, inherent therein is the issue of the management being covered under the definition of “industry” as contained in Section 2(j) of the Industrial Disputes Act, 1947 and a relationship of employment of the person so claiming with such management. It is well settled that the initially onus and burden of proof to establish these rests on the employee.
36. It is well settled that the primary burden of proof to establish a relationship of employment rests on the workman by the management of the industry where he is working rests on the person who is so claiming. In this behalf reference can be appropriately made to the judicial pronouncement in S.M. Nilajkar etc. v. Telecom Distt. Manager; State of Gujarat and Ors. vs Pratamsingh Narsinh Parmar; 2004 LLR 351 (para 49) Nilgiri Coop. Marketing Society Ltd. v. State of Tamil Nadu; 2001 LLR 148 Dhyan Singh vs Raman Lal; 1996 Lab. I.C. 202 Swapan vs First Labour Court, West Bengal and 1973 Lab. I.C. 398 N.C. John v. TTS & CE Workers Union;
37. At this stage, it becomes necessary also to know the extent to which the workman is required to prove his case in the light of the absence of non-traverse by the management and lack of any defense before the industrial adjudicator. Such issue can be examined in the light of the provisions of Order 8 Rules 5 & 10 of the Code of Civil Procedure and the principles of law laid down there under.
Even if the respondent has not appeared before the court, the court has to exercise discretion as to the manner in which further proceedings should take place. The court would examine the allegations made by the claimant and the material placed on record, and if fully satisfied, would proceed to answer the reference in favor of the workman. However, the basic principle being that where a claimant comes to court, he must prove his case, cannot be whittled down even in a case where no respondent appears. The court having called upon claimant to lead its evidence would be required to look at the case set up by the claimant which would include the pleadings and evidence in support and evaluate the same and be satisfied that the case set up by the claimant has been adequately established.
It is settled law that the party seeking a claim and adjudication has to prove its case before the court. Merely because, the respondent or the defendant has chosen to remain absent from the proceedings before the court or the tribunal, it does not follow that the consequence has to be a judgment or an order in favor of the claimant without any further proof of its contentions. A claim could be required to be proved by cogent and reliable evidence.
38. In this behalf in entitled Manager, Reserve Bank of Bangalore v. S. Mani and Ors., the Apex Court observed thus:-
Pleadings are no substitute for proof. No workman, thus, took an oath to state that they had worked for 240 days. No document in support of the said plea was produced. It is, therefore, not correct to contend that the plea raised by the respondents herein that they had worked continuously for 240 days was deemed to have been admitted by applying the doctrine of non-traverse. In any event, the contention of the respondents having been denied and disputed, it was obligatory on the part of the respondents to add new evidence. The contents raised in the letters of the union dated 30-5-1988 and 11-4-1990 containing statements to the effect that the workmen had been working continuously for 240 days might not have been replied to, but the same is of no effect as by reason thereof, the allegations made therein cannot be said to have been proved, particularly in view of the fact that the contents thereof were not proved by any witness. Only by reason of non-response to such letters, the contents thereof would not stand admitted. The Evidence Act does not say so.
39. Looked at from any angle, in view of the principles noticed hereinabove, I have no manner of doubt that the respondent no.5 had miserably failed to establish any part of its case before the industrial adjudicator and there was no material before the adjudicator in arriving at any conclusion with regard to either the particulars of the management/industrial concern; employment or post of the workman or his nature of duties.
40. It is trite that the courts and tribunals have a discretionary power to grant an appropriate relief to the parties. The aim and object of the Industrial Disputes Act, 1947 may be to impart social justice to the workman. The same by itself would not mean that irrespective of his conduct, a workman would automatically be entitled to relief. Procedural laws as estoppel and waiver are applicable equally to industrial tribunal. A person in certain circumstances may even be held to be bound by doctrine of silentio.
41. It is also noteworthy that the workman in his affidavit dated 4th May, 2001 stated that he was about 65 years of age when he deposed the affidavit. The Award was passed about six months later. The workman was obviously beyond the age of superannuation and for this reason as well, no award of reinstatement or back wages could have possibly been made in his favor.
42. Before parting with this case, I may also observe the manner in which the industrial adjudicator proceeded ex parte against the petitioner.
43. The procedure which is required to be followed by the Labour Court and Tribunal in industrial adjudication is to be found in Rule 10-B of the Industrial Disputes (Central) Rules, 1957. As per this provision, the government, while referring an industrial dispute for adjudication, is required to direct the party raising the dispute to file a statement of claim complete with relevant documents, list of reliance etc. with the adjudicator within 15 days of the receipt of the order of reference and also forward a copy of the statement to each of the opposite parties involved in the dispute.
44. After ascertaining that copies are furnished to the other side by the party raising the dispute, the adjudicator is required to fix the first hearing for on a date in accordance with Rule 10-B(2).
45. If the adjudicator finds that the party raising the dispute, though directed, did not forward the copy of the statement of claim to the opposite party or parties, as per Rule 10-B(3), it shall give directions to the concerned party to furnish the copy of the statement to the opposite party. These statutory rules have been framed by the legislature to further the ends of justice and require compliance.
46. It needs no discussion that an award made by an adjudicator without summoning the parties effected or likely to be effected by its award, will be fundamentally wrong and can be successfully challenged on the ground that it violates principles of natural justice.
47. The record before this court reflects that the report of the process server was to the effect that some security guard had telephoned the manager on whose instructions, the security guard refused to take the summons. There are no particulars of either the security guard or the manager, who is stated to have given the instructions. Even these instructions would have been received by the security guard and could not have possibly been heard by the process server. It is no one’s contention that the security guard was a person authorised to receive summons on behalf of the management. In these circumstances, it could not possibly have been held that there was a refusal to receive the summons by a party to the adjudication. For this reason, no order directing ex parte proceedings could have been made against the management. Undoubtedly, the adjudicator ought to have proceeded with caution.
48. So far as the objections to the maintainability of the present petition on the ground that the petitioner had filed an application for setting aside the ex parte Award is concerned, the reasons for filing the same and its withdrawal have been stated before this court in the writ petition itself and a copy of the order withdrawing the proceedings has been filed on record.
I, therefore, find no merits in the objection raised by the respondent on this count as to the maintainability of the writ petition.
For all the afore-noticed reasons, the writ petition is allowed. The Award dated 1st November, 2001 cannot be sustained and is, hereby set aside and quashed.