IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR.JUSTICE P.B. BAJANTHRI W.P. NO.56318 OF 2018 C/W W.P.NO.56319 OF 2018 (L-RES) W.P. NO.56318 OF 2018 BETWEEN:
1. SHELL INDIA MARKETS PVT. LTD., REPRESENTED BY ITS AUTHORIZED SIGNATORY MS.XENA PRASAD THOMAS HAVING OFFICE AT PLOT NO.7, BENGALURU HARDWARE PARK, KIADB INDUSTRIAL PARK MAHADEVA KODIGEHALLI BENGALURU-562 149.
2. SHELL INDIA MARKETS PVT. LTD., REPRESENTED BY ITS AUTHORIZED SIGNATORY MS.XENA PRASAD THOMAS HAVING REGISTERED OFFICE AT 2ND FLOOR, CAMPUS 4A, RMZ MILLENIA BUSINESS PARK, 143, DR.M.G.R. ROAD, PERUNGUDI CHENNAI- 600 096 … PETITIONERS (BY SRI.M.NAGA PRASANNA, SR. ADV. FOR SRI.NIMISHA KUMAR, ADV.) AND:
SRI.VIJAY SARATHY S/O.JAYANTHI LAKSHMINARAYANA AGED ABOUT 35 YEARS R/AT FLAT NO.P-503 PURVA FOUNTAIN SQUARE APARTMENTS VARTHUR MAIN ROAD NEAR MARATHAHALLI BRIDGE MARATHAHALLI BENGALUURU-560 037 (BY SRI.A.J.SRINIVASAN, ADV.) ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE 2ND ADDITIONAL LABOUR COURT AT BENGALURU IN I.D.NO.64/2017, DTD:4.8.2018 REJECTING THE IA NO.1 PLACED HEREWITH AS ANNEXURE-P AND CONSEQUENTLY ALOW IA NO.1 OF IN THE ALTERNATIVE AND ETC.
W.P. NO.56319 OF 2018 BETWEEN:
1. SHELL INDIA MARKETS PVT. LTD., REPRESENTED BY ITS AUTHORIZED SIGNATORY MS.XENA PRASAD THOMAS HAVING OFFICE AT PLOT NO.7, BENGALURU HARDWARE PARK, KIADB INDUSTRIAL PARK MAHADEVA KODIGEHALLI BENGALURU-562 149.
2. SHELL INDIA MARKETS PVT. LTD., REPRESENTED BY ITS AUTHORIZED SIGNATORY MS.XENA PRASAD THOMAS HAVING REGISTERED OFFICE AT 2ND FLOOR, CAMPUS 4A, RMZ MILLENIA BUSINESS PARK, 143, DR.M.G.R. ROAD, PERUNGUDI CHENNAI- 600 096.
… PETITIONERS (BY SRI.M.NAGA PRASANNA, SR. ADV. FOR SRI.NIMISHA KUMAR, ADV.) AND:
SRI.VIJAY SARATHY S/O.JAYANTHI LAKSHMINARAYANA AGED ABOUT 35 YEARS R/AT FLAT NO.P-503 PURVA FOUNTAIN SQUARE APARTMENTS VARTHUR MAIN ROAD NEAR MARATHAHALLI BRIDGE MARATHAHALLI BENGALUURU-560 037.
(BY SRI.A.J.SRINIVASAN, ADV.) ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED: 19.11.2018 PASSED BY THE 2ND ADDITIONAL LABOUR COURT AT BENGALURU IN I.D.NO.64/2017, REJECTING THE IA NO.3 PLACED HEREWITH AS ANNEXURE-P AND CONSEQUENTLY ALOW IA NO.3 OF IN THE ALTERNATIVE AND ETC.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER In these writ petitions, petitioners-Management has assailed the order passed on I.A.No.1 in I.D. No.64/2017 dated 04.08.2018 passed by the II Addl. Labour Court, Bengaluru.
2. On 09.01.2018, Labour Court framed the following issues:
1. Whether the second party proves that the enquiry held against the first party is fair and proper?
2. Whether the first party proves that he is a workman as defined under section 2(s) of the Industrial Disputes Act, 1947?
3. The petitioners-management being aggrieved by the order dated 09.1.2018 insofar as the first issue “whether the second party proves that the enquiry held against the first party is fair and proper?” is concerned, contends that framing of issue in respect of employees’ grievance before the Labour Court is for the employee to prove and not the petitioners – Management.
4. Learned counsel for the petitioners relied on the decisions of Punjab and Haryana High Court in the case of Punjab Tractors Limited Vs. Presiding Officer, Labour Court and the relevant para reads as under:
19. However, in case where the domestic enquiry is held, but it is alleged by the workman that such enquiry is defective for one or the other reasons, the onus of proof of such preliminary issue would be on the workman to prove such domestic enquiry as vitiated. What kind of evidence will be sufficient to prove such issue is upon the judicial wisdom of the Labour Court. If finding on such preliminary issue is returned against the Management and the Management has sought opportunity to adduce evidence to prove misconduct before the Labour Court itself again, the learned Labour Court shall give an opportunity to adduce evidence to the Management in support of their allegations of misconduct. The onus of the proof of the preliminary issue that the domestic enquiry is vitiated, shall lie on the person who has approached the Labour Court as the burden will lie on the person who would fail if no evidence is led.
5. He has also cited another decision in the case of Pawan Kumar Vs. Labour Commissioner, Haryana and another reported in 2017 SCC OnLine P & H 3969 to contend that onus lies on the person whose grievance is required to be examined by the Industrial Tribunal and the relevant para reads as under:
16. Perusal of citation cited by the respondent-management’s counsel like Shankar Chakravarti (Supra) not related to Section 33 (2) (b) of ID Act. Bharat Iron Works-Tribunal will give opportunity to the employer to adduce evidence, if any, and also to the workman to rebut it if he chooses. Satpal Singh’s case not related to Section 33 (2) (b) of ID Act. Punjab Tractors Limited’s case- The management is required to prove the misconduct against the workman on the basis evidence to be led before the Labour Court itself. In all such cases, the burden of proof of misconduct shall be on the management only. The onus of the proof of the preliminary issue that domestic enquiry is vitiated, shall lie on the person who has approached the Labour Court as the burden will lie on the person.
6. On the other hand, learned counsel for the respondent-employee relied on the decision in the case of Dalmia Dadri Cement Ltd., Vs. Its Workmen as represented by the Mazdoor Ekta Samiti And Ors reported in LAWS (P&H) 1968 4 26 and the relevant para reads as under:
Reference was also made to the judgment of a learned Single Judge of the Andhra Pradesh High Court in Shri Kripa Printing Press v. Labour Court and Anr., 1960 (1) L.L.J. 53 wherein it was held that when the validity of the reference relating to a single workman is challenged on the ground that what is referred is only an individual dispute and not ‘industrial dispute’. it is not for the employer to establish that the dispute is not an ‘industrial dispute’. It is for the workman to show that his cause has been sponsored by his union or by a number of workmen of his class. This was a case where the dispute related to sponsoring the cause of an individual workman.
Counsel then referred to the judgment of Shamsher Bahadur, J. in Khadi Gramodyog Bhawan Workers Union V. E Krishna Murti and Anr., A.I.R. 1962 P & B 354 and the appellate judgment of Mahajan and S.K.Kapur, JJ. upholding the order of the learned Single Judge Khadi Gramodyog Bhawan Workers Union v. Shri E.Krishnamurthy and Anr., 1965 P.L.R. 816. I have noticed the arguments of the learned counsel in this behalf as well as the authorities cited by him in fairness to the Petitioner. It is, however, wholly needless to go into this matter, as I am firmly of the opinion that no petition under Article 226 or Article 227 of the Constitution is maintainable merely in order to shift the burden of an issue however erroneous the view of a Tribunal in the matter of placing onus pro-bandi may be. All the burden of proof means in an ultimate analysis is as to who has the right to begin leading evidence. An order placing onus of an on a particular party is hardly a matter to be interfered with by this Court even in a petition for revision under Section 115 of the Code. The jurisdiction of this Court under Article 227 is no wider in the respect. Nor is it a matter for which the extraordinary jurisdiction of this Court under Article 226 can be invoked. The Tribunal had the jurisdiction to place the burden of the issue in dispute (issue No.2) on any of the two parties according as the Tribunal had thought fit and proper in the circumstances of the case and I regret I am unable to find my way to interfere with the same in these proceedings.
7. He has also cited another decision of the Hon’ble Supreme Court in the case of case of Mitra A.B. and P.O., III Industrial Tribunal and Others reported in 1999 2 LLJ 1243 and the relevant para reads as under:
The decisions of the Supreme Court rendered in the case of Cooper Engineering Co. Ltd. v. P.P.Mundhe, reported in (1975-II-LLJ-379) (SC) and in the case of Delhi Cloth and General Mills v. Ludbudh Singh (Supra) and in the case of R.K.Jain, reported in 1972 Labour & Industrial Cases 13 and even in the case of Sankar Chakraborty V. Britannia Biscuits Co. Ltd., (supra) had to deal with the question that in an adjudication before the Tribunal what are the procedures which can be followed by the employer to justify its action in terminating the service of the workman will also indicate the burden will be upon the employer to justify such action by proving that such termination was made after holding a valid and proper enquiry.
8. Heard learned counsel for the parties.
9. Undisputed facts are that, petitioners- Management held domestic enquiry against the employee-respondent, wherein charges leveled against the employee has been proved and thus employee has raised dispute relating to termination. One of the contention of the employee is that enquiry was not held by the petitioners-Management in a fair and proper manner. In such an event, burden lies on the employee to establish before the Tribunal by adducing appropriate evidence. The decisions cited by the respondent- employee are not assisting his version for the reasons that employee had raised all contentions before the Industrial Tribunal that petitioners-Management has not held enquiry in an appropriate and fair manner. Therefore, burden lies on the employee. Thus, Tribunal has erred in framing the issue to the extent ‘Whether the second party proves that the enquiry held against the first party is fair and proper?’ 10. Having regard to the facts and circumstances r/w aforesaid decisions, Tribunal has committed an error in framing issue No.1. Accordingly, order on I.A. No.3* in I.D. No.64/2017 dated:19.11.2018* is set aside and writ petition No.56319*/2018 stands allowed.
11. The W.P.56319/2018 arises out of the same factual aspects. The only question is ‘whether respondent-employee proves that he is a workman as defined under Section 2(s) of the Industrial Disputes Act, 1947? The Tribunal has passed a detailed order to the extent that it can’t be a preliminary issue and the management’s application has been turned down. In an identical matter, this Court in the case of M/s Diganth Mudrana Ltd., decided on 06.02.2018 in W.P. No.38018/2017 under Article 226 r/w 227 in respect of Preliminary issue, scope is very limited, such decision *Corrected vide Court order dated: 05.07.2019 has been rendered in Supreme Court’s decision in the case of D.P. Maheshwari vs. Delhi Admn. And others reported in AIR 1984 SC 153 wherein it has been held relating to principles laid down in respect of entertaining writ petition.
12. Having regard to the principle laid down in the case of D.P. Maheshwari cited supra r/w M/s. Digantha Mudrana Ltd., petitioner has not made out a case. Accordingly, W.P. No.56318*/2018 stands dismissed.
Sd/- JUDGE BS *Corrected vide Court order dated: 05.07.2019