MIRANDA TOOLS Vs. JAYESH M PATEL

JUDGEMENT

(1.) In this petition under Articles 226 and 227 of the Constitution of India, the petitioner Miranda Tools, a Division of Nicholas Piramal India Ltd. (hereinafter referred to as the Management for convenience) has challenged the legality and validity of the order dtd.14th May, 2004 passed by the Labour Court, Bharuch below Application Ex.11 in Reference (LCB) No.211 of 2000 by which the Labour Court has directed the management to lead evidence at the first instance to prove the departmental inquiry and the documentary evidences with regard to the departmental inquiry produced vide List at Ex.13 and thereafter, the respondent workman has to give oral evidence.

(2.) It appears from the record that the respondent herein (hereinafter referred to as the workman for convenience) was serving as an Operator. By order dgtd.29th April, 2000, he was dismissed from service by the management. The workman raised an industrial dispute challenging the said order of dismissal which was referred to the Labour Court, Bharuch for its adjudication being Reference (LCB) No.211 of 2000. It also appears from the record that the workman submitted Statement of Claim and the case of the workman was that there was no departmental inquiry at all held by the management and that he was not permitted to participate in the inquiry. It also appears from the record that it was the case of the management that after the charge-sheet was served upon the workman, he did not participate in the departmental inquiry and thereafter the inquiry officer submitted inquiry report holding the charge proved against the workman and in fact it is denied by the management that no departmental inquiry was held as alleged by the workman. The management produced certain documentary evidences vide List at Ex.13 and the workman objected to exhibiting the said documents which came to be produced vide List Ex.13. The workman submitted an application at Ex.11 to pass an appropriate order directing the management to first lead evidence and to prove that in fact departmental inquiry was held as alleged and to prove the documents by leading evidence at the first instance. The said application came to be objected by the management contending inter-alia that if the workman is challenging the legality and validity of the inquiry, in that case, he has to first lead the evidence and thereafter the management. Number of decisions were relied upon by both the sides and ultimately, after considering all the judgments cited at the bar on behalf of both the parties, the Labour Court Bharuch, by its order dtd.14th May, 2004 passed the impugned order directing the petitioner to prove that the departmental inquiry was in fact held and to prove the documents produced vide list at ex.13 by leading evidence at the first instance and thereafter,the workman has to give his oral evidence. Being aggrieved by and dissatisfied with the order passed by the Labour Court, Bharuch dtd.14th May, 2004 below application Ex.11 in Reference (LCB) No.211 of 2000, the management has preferred the present petition under Articles 226 and 227 of the Constitution of India.

(3.) Mr.K.M. Patel, learned advocate appearing on behalf of the management has vehemently submitted that the order passed by the Labour Court directing the management to first lead evidence to prove the departmental inquiry is absolutely illegal and contrary to the provisions of the Indian EVIDENCE ACT, 1872. It is further submitted that when the workman is challenging the legality and validity of the departmental inquiry, then in that case, it is the workman who has to lead evidence at the first instance. It is further submitted that if the order passed by the Labour Court is ordered to stand, the management will be required to lead evidence at the first instance to prove the factum of inquiry having held against the workman and thereafter the workman will give evidence to show how according to him the inquiry is vitiated or in breach of principles of natural justice and in that case, the management may in all probabilities lose the opportunity to lead evidence in rebuttal and show and establish that the point on which the inquiry is assailed by the workman in his oral evidence are not tenable and this may result into failure of justice. It is further submitted that the Labour Court has taken an erroneous view that it is for the management to lead evidence at the first instance and show that the inquiry held is legal and proper. It is also further submitted that mere making an allegation in the statement of claim or in the application Ex.11 that the inquiry record is got up and not admitted by the workman, does not shift the onus of proof on the employer to first prove that the inquiry held against the workman is legal and proper. It is further submitted that it is the workman who has approached the court against the order of dismissal and is challenging the legality and validity of the departmental inquiry and therefore,it is for him to prove at the first instance by leading evidence to prove that the departmental inquiry is not legal and valid.