JUDGMENT
Gitesh Ranjan Bhattacharjee, J.
1. In this petition moved under Article 226 the Petitioners who are the Ganges Manufacturing Company Limited (‘company’, for short) and its Managing Director pray for quashing the impugned order No. 28 dated January 10, 1995 passed by the Judge, 4th Industrial Tribunal, West Bengal in case No. VIII-29/92 by which the learned Judge directed the Company to lead evidence first in the case arising out of a refer-
ence made by the State Government under Section 10 of the Industrial Disputes Act, 1947. The Company allegedly dismissed five of its workmen after holding a domestic enquiry and also, terminated the services of 66 workmen by way of striking off their names from the register of the Company. The dispute was then referred to the said Industrial Tribunal under Section 10 of the Industrial Disputes Act, 1947. The parties
filed their written statements before the Industrial Tribunal. In the written statement the Company prayed for hearing of the question of validity of the domestic enquiry in respect of five dismissed workmen as a preliminary issue and also prayed for opportunity to lead fresh evidence to establish the charges against the five workmen if the Tribunal held that the enquiry was not fair and proper. The learned Judge by his impugned order, as I have already pointed out, asked the company to lead evidence first. Being aggrieved by the said order the petitioners have moved this writ petition.
It is submitted before me on behalf of the petitioner company that the impugned order is illegal and arbitrary and cannot be sustained in law because the Tribunal cannot ask the company to lead evidence first without deciding the preliminary issue regarding the validity of the domestic enquiry leading to the dismissal of the five workmen.
2. Before I proceed to examine the question as to who should be asked to lead evidence first in case of this nature, it is necessary to understand the nature of the function required to be di scharged by the Industrial Tribunal. It is now a settled proposition that in a proceeding under Section 10 or Section 33 of the Industrial Disputes Act, the Labour Court or the Industrial Tribunal exercises quasi-judicial function. In Shankar Chakarvarti v. Britannia Biscuit Co. 1979-II-LLJ-194) the Supreme Court in para-raphs 30 and 31 of the decision took note of the different provisions relating to adjudication of disputes and observed thus at page 207:-
“30. These forms are more or less analogous to a plaint in a suit and the reply to be filed would take more or less the form of a written statement. Where the parties are at variance for facility of disposal, issues will have to be framed. It is open to it to frame an issue and dispose it of as a preliminary issue…. Parties have to lead evidence. S. 10 confers power of a Civil Court under the Code of Civil Procedure on the Labour Court or Industrial Tribunal in respect of matters therein specified. The Labour Court or Tribunal would then proceed to decide the lis between the parties. It has to decide the to on the evidence adduced before it. While it may not be hide bound by the rules prescribed in the Evidence Act it is none the less a quasi-judicial 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 consideration. 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 the duties and functions of the Industrial Tribunal or the Labour Court, any party appearing before it must make a claim or demur the claim of the other side and when there is burden upon it to prove or establish the fact so as to invite a decision in its favour, it has to lead evidence. The quasi- judicial Tribunal is not required to advise 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 a party is on the party making the allegations. The test would be who would fail if no evidence is led.”
3. There cannot be any doubt that although the Labour Court or the Industrial Tribunal is required under Section 11(1) of the Industrial Dis-putes Act to follow such procedure as it may think fit and although it is not certainly bound by all the technicalities of civil courts, yet the procedure to be adopted by it must be just and fair and must subserve and not subvert the goals of fair procedure and justice. It is therefore desirable that in respect of matters of cardinal importance relating to procedure the Labour Court or the Industrial Tnbunal should broadly follow the same pattern as followed by the civil Court. There is therefore no doubt that in locating the burden of proof over an issue requiring adjudication of the Industrial Tribunal notice will have to be taken of the principles reflected in the provisions contained in Sections 101 and 102 of the Evidence Act as well as of other provisions relevant to the matter.
4. Section 101 of the Evidence Act provides
that 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. It is further provided that when a person is bound to prove the existence of any fact it is said that the burden of proof lies on the person. Section 102 of the Evidence Act provides that 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. In Swapan Das Gupta v. The First Labour Court of West Bengal 1976 Lab I.C. 202. a leamed single Judge of this Court (Sabyasachi Mukherji, J as his lordship then was) held that where a person asserts that he was a workman of the Company and it is denied by the Company, it is for the workman to prove the fact and not for the Company to prove that he was not an employee of the Company but of some other person. That case arose out of reference made under Section 10 of the Industrial Disputes Act, 1947. In N.L and D. Pvt Ltd. v. Mrs. S.V. Swarna (1995-I-LLJ-113) a Division bench of the Bombay High Courtheld that the burden of proof lies on the workmen and that the workmen will have to lead evidence first in respect of the fairness or otherwise of the domestic enquiry conducted by the management. That was also a case arising out of a reference made under Section 10 of the Industrial Disputes Act as it would appear from paragraph 7 of the decision. With great respect I agree with the ratio of the Single Bench decision of this Court in Swapan Das Gupta v. The First Labour Court, West Bengal (supra) and the ratio of the Division bench decision of the Bombay High Court in. N.L. and D. Pvt. Ltd v. Mrs. S. V. Swarna (supra). It is not difficult to see that in a reference made under Section 10 of the Industrial Disputes Act where the workman challenges the validity of the domestic enquiry leading to the dismissal, discharge or termination of service of the workman, the reference will fail if the workman does not establish the invalidity of the domestic enquiry. Such invalidity may be established by the workman without adducing evidence if the invalidity is apparent from the records or the workman may lead evidence to establish the invalidity if such evidence is necessary for the purpose. The burden lies undoubtedly upon the workman to establish the invalidity of the do-mestic enquiry in a proceeding under Section 10.
5. The burden of proof again, riot infrequently, determines the right to begin or – one may call it also an obligation to begin – in a suit or other proceeding. Rule 1 of Order 18 of the Code of Civil Procedure provides that the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant, the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin. Rule 2 of Order 18 C.P..C. provides that at the commencement of the hearing the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove, and that the other party shall then state his case and produce his evidence (if any) and may then, address the Court generally on the whole case and then the party beginning may reply generally on the whole case. Rule 3 of Order 18 C.P.C. provides that where there are several issues the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party, and in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party to reply generally on the whole case. Since, as we have seen the Industrial Tribunal has all the trappings of court there is no reason why at least the broad principles underlying the provisions of Rules 1, 2 and 3 of the Order 18 of the Civil Procedure Code also should not be substantially followed in a proceeding before an Industrial Tribunal for adjudication of an industrial dispute where it may be necessary to dp to meet the requirements of fair procedure. It is needless to mention that in reference under Section 10 of the Industrial disputes Act challenging the validity of domestic enquiry leading to the order of dismissal, discharge or termination of service of workman the workman substantially stands on the same footing as that of the plaintiff in a civil suit. Since the workman challenges the validity of the domestic enquiry in the matter, if any, it is for the work-man to establish the invalidity of the same and if necessary to lead evidence for the purpose.
Therefore in a reference under Section 10 of the Industrial Disputes Act it is for the workman at the first instance to lead evidence, if necessary to show the invalidity of the concerned domestic enquiry, if any, because if invalidity is not established the reference will fail and the burden of proving such invalidity rests upon the workman. The position may however be different where the employer approaches the Industrial Tribunal under Section 33 of the Industrial Disputes Act for permission or approval in regard to dismissal of an employee on the basis of a domestic enquiry, because in such a case the burden would he on the employer to prove that the concerned order in respect of which permission of approval is sought was issued on the basis of properly held domestic enquiry. In a proceeding for permission of approval under Section 33 of the Industrial Disputes Act the position of the employer seeking such permission or approval of the Tribunal would rather be analogous to the position of a plaintiff in a civil suit. Be that as it may in proceeding arising out of a reference under Section 10 of the Industrial Disputes Act where the workman challenges the validity of the concerned domestic enquiry it is for the workman to establish the invalidity of the same and therefore it is for him to adduce evidence first for establishing such invalidity, if such evidence is considered necessary for the purpose.
The learned Advocate for the respondents attracted my attention to the decisions of the Supreme Court in (1)Delhi Cloth and General Mills Company v. Ludh Budh Singh (1972-I-LLJ-180) (2) Workmen of Firestone Tyre and Rubber Company v. Management (1973-I-LLJ- 278) and (3) Cooper Engineering Limited v. P.P. Mundhe (1975-II-LLJ-379). It may be mentioned here that in both the decisions Delhi Cloth and General Mills Company v. Ludh Budh Singh, (supra) and Workmen of Firestone Tyre and Rubber Company v. Management (supra) and indeed a number of other decisions have been discussed in Cooper Engineering Limited v. P.P. Mundhke (supra). Again those decisions including the decision in Cooper Engineering Limited v. P.P. Mundhe have been elaborately discussed in the decision of the Supreme Court in Shankar Chakravarti v. Britannia Biscuit Co. 1979 (39) FLR 70 (SC) which
has been relied upon by the learned Advocate for the petitioners. It may however be mentioned here that none of those decisions directly dealt with the question as to who has to open his case first where the order of dismissal, discharge or termination of service and the validity of the domestic enquiry, if any, is challenged. But then there are ample clues available in those decisions for coming to a conclusion as to who has to open his case first by leading evidence, if necessary, in a case of this nature arising put of a reference under Section 10 of the Industrial Disputes Act.
In Delhi Cloth and General Mills Co. Ltd v. Ludh Budh Singh (supra) the Supreme Court discussed a number of decisions and then in paragraph 61 formulated the following principles at pp 198-199:-
“(1) If no domestic enquiry had been held by the management, or if the management makes it clear that it does not rely upon any domestic enquiry that may have been held by it, it is entitled to straightaway adduce evidence before the Tribunal Justifying its action. The Tribunal is bound to consider that evidence so adduced before it, on merits, and give a decision thereon. In such a case, it is not necessary for the Tribunal to consider the validity of the domestic enquiry as the employer himself does not rely on it.
(2) if a domestic enquiry had been held, it is open to the management to rely upon the domestic enquiry held by it, in the first instance, and alternatively and without prejudice to its plea that the enquiry is proper and binding, simultaneously adduce additional evidence before the Tribunal justifying its action. In such a case no inference can be drawn without anything more, than the management has given up the enquiry conducted by it
(3) When the management relies on the enquiry conducted by it and also simultaneously adduce evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted
by the management, are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.
(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 with, 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 give 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. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal, the position, under such circumstances, will be, that the management is deprived of the benefit of haying the finding of the domestic Tribunal being accepted as prima facie proof of the alleged mis-conduct. On the other hand, the management will have to prove, by adducing proper evidence, that the workman is guilty of mis-conduct and that the action taken by it is proper. It will not be just and fair either to the management or to the workman that the
Tribunal should refuse to take evidence and thereby ask the management to make a further application, after holding a proper enquiry, and deprive the workman of the benefit of the Tribunal itself being satisfied, on evidence adduced before, that he was or was not guilty of the alleged misconduct.
(5) The Management has a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been availed of, or asked for by the management, before the proceedings are closed, the employer can make no grievance that the Tribunal did not provide such an opportunity. The Tribunal will have before it only the enquiry proceedings and it has to decide whether the proceedings have been held property and the findings recorded therein are also proper.
(6) If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decides mat the domestic enquiry has not been held properly it is not its function to invite suo motu the employer to adduce evidence before it to justify the action taken by it.
(7) The above principles apply to the proceedings before the Tribunal, which have come before it either on a reference under Section 10 or by way of an application under Section 33 of the Act.”
The Supreme Court again considered the matter in Workmen of Firestone Tyre and Rubber Co. v. The Management (supra) and exhaustively reviewed all the previous decisions on the subject and formulated the principles emerging therefrom, of the ten principles formulated therein I quote below a few which are relevant
for our purpose:-
“(4) 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, has 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.
(5)** ***
(6) The Tribunal gets jurisdiction to consider the evidence placed before itfor the first time in justification of the action taken only if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.”
The Supreme Court again in Cooper Engineering Ltd. v. P.P. Mundhe(Supra) reviewed the earlier decisions in the matter and recorded the following observations in paragraph 22:
” 22. We are, therefore, clearly of 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 en-
quiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer; there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced 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…….”
All the relevant decisions including the decision in Cooper Engineering Ltd. v. P.P. Mundhe (supra) were again reviewed by the Supreme Court in Shankar v. Britannia Biscuit co., (supra) and the Supreme Court made the following observations atpages 205 – 206:-
“Further, the decision in Cooper Engineering Ltd. case(supra) does not propose to depart from the ratio of the earlier decisions because this Court merely posed a question to itself as to what is the appropriate stage at which the opportunity has to be given to the employer to adduce additional evidence, if it chooses to do so. Merely the stage is indicated namely, the stage after decision on the preliminary issue about the validity of the enquiry. Cooper Engineering Ltd. case (supra) is not an authority for the proposition in every case coming before the Labour Court or Industrial Tribunal under Section 10 or Section 33 of the Act complaining about the punitive termination of service following a domestic enquiry that the Court or Tribunal as a matter of law must first frame a preliminary issue and proceed to decide the validity or otherwise of the enquiry and then serve a fresh notice on the employer by calling upon the employer to adduce further evidence to sustain the charges, if it so chooses to do. No
section of the Act or the Rules framed thereunder was read to pinpoint such an obligatory duty in law upon the Labour Court or the Industrial Tribunal. No decision was relied upon to show that such is the duty of the
Labour Court orthe Industrial Tribunal. This Court merely specified the stage where such
opportunity should be given meaning thereby if and when it is sought. This reading of the decision in Cooper Engineering Ltd. case is consistent with the decision in Ritz Theater case (1962-II-LLJ-498) because there as the application for permission to adduce additional evidence was made at a late stage the Tribunal rejected it and this Court declined to interfere. Now, if the ratio of the Cooper Engineering Ltd case is to be read to the effect that in every case as therein indicated it is an obligatory duty of the Industrial Tribunal or the Labour Court to give an opportunity after recording the finding on the preliminary issue adverse to the employer to adduce additional evidence it would run counter to the decision in Ritz Theatre case. Such is not the ratio in Cooper Engineering case. When read in the context of the proposition culled out in Delhi Cloth and General Mitts Co. case (supra) and the Firestone Tyre and Rubber Co. of India (P) Ltd. case (supra) the decision in Copper Engineering Ltd case (supra) merely indicates the stage at which an opportunity is to be given but it must not be overlooked that the opportunity has to be asked for. Earlier clear cut pronouncements of the court in R.K. Jain’s case and Delhi Cloth and General Mills Co. case (supra) that this right to adduce additional evidence is a right of the management or the employer and it is to be availed of by a request at appropriate stage and there is no duty in law cast on the Industrial Tribunal or the Labour Court suo motu to give such an opportunity notwithstanding the fact that none was ever asked for or not even departed from.”
The following observations of the Supreme Court in paragraph 34 of the said decision in Shankar v. Britannia Biscuit Co., (supra) are also relevant-
“34. Having given our most anxious consideration to the question raised before us and minutely examining the decision in Cooper Engineering Ltd, case (supra) to ascertain the ratio as well as the question raised both on precedent and on principle, it is undeniable that there is no duty cast on the Industrial
Tribunal or the Labour Court while adjudicating upon a penal termination of service of a workman either under Section 10 or under Section 33 to call upon the employer to adduce additional evidence to substantiate the charge of misconduct by giving some specific opportunity after decision on the preliminary issue whether the domestic enquiry was at all held, or if held, was defective, in favour of the workmen. Cooper Engineering Ltd. case merely specifies the stage at which such opportunity is to be given, if sought. It is both the right and obligation of the employer, if it so chooses, to adduce additional evidence to substantiate the charges of misconduct It is for the employer to avail of such opportunity by a specific pleading or by specific request. If such an opportunity is sought in the course of the proceeding the Industrial Tribunal or the Labour Court as the case may be, should grant the opportunity to lead additional evidence to substantiate the charges. But if no such opportunity is sought nor there is any pleading to that effect no duty is cast, on the Labour Court or the Industrial Tribunal suo motu to call upon the employer to adduce additional evidence to substantiate the charges.”
6. In our present case, as we have seen, the company has made prayer at the appropriate stage during the pendency of the proceeding before the Industrial Tribunal requesting the Tribunal to hear the question of validity as a preliminary issue and also prayed for opportunity to lead fresh evidence to establish the charges against the five workmen if the Tribunal held that the enquiry was not fair and proper. In view of the decisions discussed hereinabove the position in law appears to be this. In a proceeding under Section 10 or Section 33 of the Industrial Disputes Act if the validity of the concerned order of the employer regarding dismissal, discharge or penal termination of service is questioned by the workman on the ground that mere was no domestic enquiry at all or that the domestic enquiry held was vitiated by invalidity, the employer may request the Tribunal to decide the question of validity as a preliminary issue at the first instance and may also request during the pendency of the proceeding that in the event
such preliminary issue is decided against the employer, the employer may be given an opportunity to substantiate his case against the workman on merits by adducing fresh and independent evidence, If such a request is made at the appropriate stage it is the duty of the Tribunal to decide the preliminary issue about the validity of the domestic enquiry, if any, or about the impact of the absence of any domestic enquiry, as the case may be and thereafter to give an opportunity to the employer to lead fresh and independent evidence in support of his action against the workmen, if the decision on the preliminary issue goes against the employer by reason of the fact that there was no domestic enquiry at all or that the domestic enquiry was invalid. The employer of course has the option even to lead independent evidence on merits simultaneously while relying on the validity of the domestic enquiry, but even in such a case Tribunal has first to decide the issue relating to the question of validity of the domestic enquiry before dealing with the evidence that might have been adduced by the employer on merits and it is only if the Tribunal holds against the employer on the said issue it can then look into the evidence on merits as might have been adduced by the employer simultaneously while relying upon the validity of the domestic enquiry, but in that case the employee will have to be given an opportunity to controvert the evidence adduced by the employer on merits.
7. The other aspect of the matter relates to the question as to who is to open the case and lead evidence first. In a proceeding under Section 33 of the Industrial Disputes Act when the employer approaches the Tribunal for necessary permission or approval and ordinarily therefore the onus lies upon him to satisfy the Tribunal that he has made out a case for such permission or approval. But in a reference under Section 10 the position at the primary stage is different. A reference under Section 10 is made because the workman challenges and assails the action taken by the employer. There the onus primarily lies on the workman to establish that the action taken by the employeris bad in law due to defective enquiry or absence of enquiry and therefore, if any evidence on the point is needed for the purpose the same must be adduced first by workman and then the employer may controvert the same, if
necessary. We would thus see that regarding the question of validity or invalidity of domestic enquiry as a preliminary issue, the burden of establishing the same lies either with the employer or with the workmen depending upon whether the proceedings one under Section 33 or under Section 10 of the Industrial Disputes Act. But where the preliminary issue is decided against the employer, be it in a proceeding under Section 33 or under Section 10, the burden thereafter, squarely lies on the employer to prove by adducing evidence on merits that the action taken against the workman is justified on merits. On this question the burden squarely lies on the employer, and after suffering an adverse decision on preliminary issue the employer has to lead evidence first to establish his case on merits and the workman will then lead evidence, if necessary to controvert the same. But then for adducing evidence on merits after the preliminary issue regarding the validity of the impugned action is decided against the employer, the employer must have made prayer for adducing such evidence at the appropriate stage. In our present case, as we have seen, the company made such prayer at the appropriate stage. But unfortunately the Tribunal did not embark upon the task of deciding the preliminary issue about the alleged invalidity of the domestic enquiry. Instead, the Tribunal asked the employer to lead evidence first. That was not proper. The Tribunal must hear and decide the preliminary issue regarding the alleged invalidity of the domestic enquiry first and in a proceeding under Section 10 the burden primarily lies upon the workman to establish such invalidity. The Industrial Tribunal is accordingly directed to hear the preliminary issue first in accordance with law. It is further directed that in the event the preliminary issue is decided against the employer company the Tribunal will then allow the company to lead evidence on merits and will then give opportunity to the workman to lead evidence to controvert the same and will deal with the matter in accordance with law. Accordingly, the impugned order of the Tribunal dated January 10, 1995 is hereby quashed and the Tribunal is directed to act in accordance with law as indicated above. There will however be no order as to cost. The writ application stands disposed of accordingly.
