JUDGMENT
Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. The petitioner was appointed as Driver in U.P. State Road Transport Corporation, Agra Region., Agra in February 1988. A charge sheet dated 4.10.1991 was issued to him by the Regional Manager, U.P.S.R.T.C, Agra.
(i) For causing a loss of Rs. 50,000/- to the corporation in accident due to his negligent driving, while he was driving Bus No. UAV 9803.
AND
(ii) Inspite of the fact that tyre pressure in Bus no. U.P. 80/9361 was very low; he drove the bus causing damage to tyres, which burst resulting in injury to the cleaner.
3. The petitioner was placed under suspension by order dated 15.7.1991 passed by Assistant Regional Manager, the order of suspension was revoked during the enquiry proceedings vide order dated 2./8./1991. After enquiry the petitioner was dismissed from service by order dated 31.8.1992.
4. Aggrieved by dismissal from services the petitioner raised an Industrial Dispute under Section 4-K of the U.P. Industrial Dispute Act 1947. On the basis of pleadings of the parties an additional issue was framed by the Labour Court regarding the fairness of. the Domestic enquiry. The Labour court decided the issue against the employer and held that domestic enquiry was not fair and proper and employer was to prove its case on merits before the Labour Court.
5. The employer produced Sri Ashok Nagar S/o Lekh Raj and Raja Ram S/o Sri Nathuram who gave evidence before the Labour Court to prove that damage amounting to Rs. 50,000/- was caused by the petitioner by his negligent driving. The workman did not give any evidence before the Labour Court in support of case. The Labour Court in this circumstance gave award against the petitioner impugned in the writ petition. It held that petitioner did not give any evidence; as such it is apparent that he was not innocent in the matter and the action of the management terminating the services w.e.f. 31.8.1992 is legal and justified and he is not entitled to any relief.
6. The object of the Industrial Dispute Act 1947, as has been explained by the Apex Court in (2002) 9 SCC 104, Virendra Bhandari v. Rajasthan State Road Transport Corporation and Ors. is to maintain industrial peace and harmony and not mere adjudication of dispute between two private parties. The Act provides a unique procedure for the investigation and settlement of industrial disputes and for certain other purposes. The scheme of the Act is to settle the “industrial dispute” that may arise between the “employers and employee” or “employer and workman” or between workman and workman i.e. the employees as well as employers can raise industrial dispute. The burden of proof lies initially on the party who raises the dispute and at the instance of whom reference has been made. This position is evident in case of Shanker Chaudhary v. Britannia Biscuit Co. Ltd. 1979 (39) FLR 70 it has been held by the Apex Court that:
“When the dispute comes before the Industrial Tribunal by way of a reference under Section 10 it is the aggrieved workman who has sought adjudication of the industrial dispute arising from the termination of his service. When the matter comes before the appropriate authority under Section 33 it is the employer who has moved for permission or approval of its intended action.”
“Where the reference is at the instance of a workman under Section 10 of the Tribunal would call upon the workman to file his statement of claim and thereafter the employer should be called upon to file its written statement. Rule 10-B of the Industrial Dispute (Central) Rules 1957 provides that within two weeks of the date of receipt of the order of reference. The party representing workmen and the employer involved in the dispute, shall file with the concerned authority a statement of demands relating only to the issues as are included in the order of reference and shall also forward a copy of such statement to each one of the opposite parties involved in the said dispute. Similarly, when the employer seeks permission taking the intended action or seeks approval of the action taken by it under Section 33 it has to make an application as provided by Rule 60 in either Form J or K as the case may be. Both the forms require that the necessity for and circumstances in which the proposed action is taken or is intended to be taken must be clearly and specifically set out and either express permission should be sought before taking the intended action or an approval of the already taken action must be sought.”
7. Following the reasoning in the Shanker Chakravarti (Supra) this Court in case of V.K. Raj Industries v. Labour Court and Ors. 1979 (39) FLR 70 it has observed that:-
“The proceedings before the Industrial Court are judicial in nature even though the Indian Evidence Act does not apply to the proceedings but the principle underlying the said Act is applicable to the proceeding before the Industrial Court. In a judicial proceeding if no evidence is produced the party challenging the validity the order must fail. It is well settled that if a party challenges the legality of an order, the burden lies upon him to prove illegality of the order and if no evidence is produced the party-involving jurisdiction of the Court must fail. Whenever a workman raises a dispute challenging the validity of the termination of service it is impetrative for him to file written statement before the Industrial Court setting out grounds on which the order is challenged and he must also produce evidence to prove his case. If the workman fails to appear or to file written statement or produce evidence the dispute referred by the State Government cannot be answered in favour of the workman and he would not be entitled to any relief.”
8. The view taken in the aforesaid judgments has been relied upon in the Single bench of this Court in case of Airtech Private Limited v. State of U.P. and Ors. 1984 (49) FLR 38 it has been held that:
“From a combined reading of Section 50(1) and the aforementioned sub-rules of Rule 12 it is apparent that it is imperative upon a workman to file an affidavit in support of his written statement. This affidavit constitutes the preliminary evidence. If the employer does not care to controvert the averments made in the affidavit nothing further need be proved or done by the workman. The Labour Court is duty bound to accept the averments contained in the affidavit and give its decision or award accepting the averments made in the affidavit ass correct. These provisions indicate that the burden of proving the case referred to be Labour Court for adjudication by the State Government lies on the workman. The distinction between a burden to proof and the onus of proof is well known. It is trite that the burden of proof never shifts. It is the onus which keeps on shifting from stage to stage/ The Labour Court patently erred in holding that keeping in view the terms of the reference made by the State government the burden of proof lay upon the employer.
The matter can be looked at from another angle, which party will fail if the evidence is not led before the Labour Court in proceedings in a reference made to it for adjudicated by the State Government? The obvious answer is that the workman will fail. Here the reference was made by the State Govt. at the instance of the workman and for the benefit of the workman. In the absence of any evidence led by or on behalf of the workman the reference is bound to be answered by the Court against the workman. In such a situation it is not necessary for the employers to lead any evidence at all. This matter was dealt with by the Supreme Court in Shanker Chaudhary v. Britannia Biscuits Co. Ltd. In paragraph 30 the Court held that the Labour Court or the Industrial Tribunal have all the trappings of a Court, In paragraph 31 it held that any party appearing before a Labour Court or Industrial Tribunal must make a claim or demur the claim of the other side and when there is a burden upon it to proved evidence. The obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be, who would fail if no evidence is led.”
9. The reference was made to the Labour Court at the instance of the workman. It was he who sought adjudication in the matter alleging that his dismissed was illegal. The burden of proof lay heavily on the workman who did not discharge it from the above settled position of law the case of the party must fail which has not lead evidence to prove his case. The case of workmen in this case is covered with above judgments. There is no illegality or infirmity in the award as in the instant case the worker had not led any evidence to prove his case. The writ petition is therefore liable to be dismissed.
10. For the reasons stated above there is no illegality or infirmity in the award. The writ petitioner is dismissed. No order as to costs.