REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL NOS.   10135     OF 2010 (Arising out of S.L.P (C) Nos. 7187-7194 of 2008)

AMAR CHAKRAVARTY & ORS. — APPELLANTS

VERSUS

MARUTI SUZUKI INDIA LTD. — RESPONDENT

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)

J U D G M E N T  

D.K. JAIN, J.:

Leave granted.

2. These  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 unjustified.

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3. Since 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.  

4. On  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.”

5. The 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 entitled?”

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6. On 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?

3. Relief.”

It is manifest that in relation to issue No. 1, the Labour Court had placed the  

onus of proof on the management.

7. Thereafter,  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 workman can  

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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.  

8. However, 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.”

9. Being 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  

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the Labour Court cannot be said to be perverse or illegal warranting its  

interference.  

10.Hence, the present appeals.

11.Mr. 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.

12.Per contra, Mr. Altaf Ahmed, learned senior counsel appearing on behalf  

of the respondent, urged that the impugned order deserves to be affirmed  

1 (2001) 5 SCC 433 2 (1973) 1 SCC 813

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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.  

13.In  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  

3 (2005) 5 SCC 100 4 (2008) 9 SCC 486 5 (2004) 8 SCC 195 6 (2006) 5 SCC 558

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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  

tantamounting to misconduct.

14.In 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  

7 (1983) 4 SCC 491

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mind  at  the  earliest  stage  and  file  the  application  for  that  purpose without any unreasonable delay.”

15.Similarly,  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)

16.In 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  

8 (2007) 12 SCC 585 9 (2003) 12 SCC 1

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and therefore, the assertion has to be proved by the employer and not by  

the workman.  

17.In 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.  

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.……………………………………               (D.K. JAIN, J.)  

                             .…………………………………….              (H.L. DATTU, J.)

NEW DELHI; NOVEMBER  29,  2010 AR

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