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Judgment
P.K. Jain, J.—Heard Sri Rakesh Tewari, brief holder for Sri J. N. Tiwari, learned Counsel for the Petitioner, Sri A. K. Gaur learned Counsel for Respondent Nos. 2 to 5 and learned standing counsel for Respondent No. 1.
Respondent Nos. 3, 4 and 5 were workmen employed with the Petitioner. Petitioner''s case is that on 7.10.1977, the three workmen tendered their resignations which were accepted by the Petitioner. Petitioner after accepting their resignations paid lawful dues of Respondent Nos. 3, 4 and 5 to them including bonus, wages in lieu of unavailed leave and gratuity, etc. However, on 10.10.1977, Respondents No. 3, 4 and 5 made a representation (Annexure 4 to the writ petition) alleging that their signatures/thumb impressions were obtained on blank papers on a promise that proper payment shall be made to them but the amounts agreed were not paid to them and thus the Respondents were retrenched by playing fraud. A request was made that the Respondents may be taken back on duty. Petitioner''s case is that the Respondent Nos. 3, 4 and 5 had resigned of their own free will but after receipt of payments and other dues, they changed their stands. The Respondent Nos. 3, 4 and 5 through Respondent No. 2 raised an industrial dispute although Respondent No. 2 was not competent to espouse the cause of the Respondents. The State Government made the following reference vide Notification dated 11.6.1978 to the Labour Court, Meerut for adjudication.
Kya Sewayojokon dwara apne shramik S/Sri Hakimuddin son of Nasiruddin, Karag Singh son of Nanak Singh tatha Yasin son of Abdul Rahman, Moulderki sevaan dinank 10.10.1977 se samapt kiya jana uchit tatha/athwa vaidhanik hai? Yadi nahin, to sambandhit shramik ka labh/chhatipurti pane ke adhikaron se tatha anya kis vivaran sahit?
It appears that the parties filed their written statements and Respondent Nos. 3 to 5 also filed rejoinder statement on the basis of which the Tribunal framed six issues as mentioned in the award. Several opportunities were given to the Petitioner to adduce evidence in support of their claim but the Petitioner failed to adduce any evidence. The Respondent Nos. 3, 4 and 5 also did not adduce any evidence in support of their claim and expressed that the case may be disposed of on documentary evidence already tendered by them. The Tribunal held that the burden of proving that the Respondents had tendered voluntary resignations and thai termination of their services was legal was on Petitioner and since the Petitioner did not adduce any evidence, the case of the workmen that they were illegally terminated was correct. The Tribunal, therefore, by its award dated 21.7.1981 directed that the workmen shall be deemed to have continued in employment and will be entitled to all back wages and other attendant benefits available to them under the rules.
It is this award which is being challenged on the ground that the real dispute between the parties was not referred to the Tribunal, hence the reference was bad in law. The dispute was with regard to the amount to which the Respondent Nos. 3 to 5 were entitled on their resignations being accepted and not termination of service and secondly, that the Tribunal has wrongly held that burden of proof of illegal termination was upon the Petitioner. Since the Respondents claimed that the termination was illegal and that their thumb impressions and signatures were obtained on blank papers, it was for them to have adduced evidence in support of their contention. The Respondent Nos. 3 to 5 did not adduce any evidence and hence no finding could have been given by the Tribunal against the Petitioner.
For the Respondent Nos. 3, 4 and 5, it is contended that the language of the reference shows that it was for the Petitioner to prove that the termination was legal and proper and despite ample opportunity having been given, they failed to adduce evidence. The Tribunal rightly upheld the plea of the Respondents. It is further contended that perusal of Annexure 4 to the writ petition clearly discloses that thumb impressions/signatures of the Respondents were obtained on blank papers by fraud and subsequently resignations were forged on such papers. Therefore, there was a clear dispute of retrenchment amounting to illegal termination of employment. Thus, the reference was correctly made.
The Labour Court appears to have placed burden of proof upon the employers. The claim of the Respondent Nos. 3, 4 and 5 was that their thumb impressions/signatures were obtained on blank papers by making false inducements and false promise and the Petitioner had forged their resignation letters in order to deprive them of their legitimate dues and the sum promised by the employers. The real controversy was whether the termination of the services of the Respondent Nos. 3, 4 and 5 as alleged by them was illegal as also whether they had not actually tendered any resignations.
The reference was, however, couched in a language so as to prima facie make it incumbent upon the Petitioner to establish the legality or justifiability of the termination of the service of the workmen. The phraseology employed in the reference prima facie lays the burden of proof on the employers. The question, however, is as to who will fail in case no evidence is led. Section 5(c)(1) of the U.P. Industrial Disputes Act provides that subject to any rules that may be made in this behalf, a Labour Court shall follow such procedure as it may think fit. Rule 12, Sub-rules (8) and (9) of the U.P. Industrial Disputes Rules, 1957, however, circumscribes the discretion of the Labour Court/Tribunal. Combined effect of Section 5 (c) (1) and Rule 12 is that it is imperative upon workman to file affidavit in support of his written statement. It is only when such an affidavit is filed by the employee which constitutes preliminary evidence that the employer is called upon to rebut the allegations and controvert the averments made in the affidavit and in case the employer does not do so, there is no further need to prove by the workmen. The discretion of the Labour Court in respect of the procedure to be followed by it is thus not absolute. If looked from this angle, it would be workmen who would suffer in case no evidence in the form of affidavit in support of the written statement is filed by him. It is true that the Petitioner having taken several adjournments failed to adduce any evidence but at the same time, the Respondent Nos. 3, 4 and 5 do not appear to have filed any affidavit in support of their written statement. Only Respondent No. 4 Mohd. Yaseen has filed counter-affidavit in this Court and he has no where stated that in support of the written statement filed before the Labour Court, affidavit of any of the Respondent Nos. 3, 4 and 5 was filed. Even the Labour Court in its award (Annexure 9 to the petition) does not make a mention of any such affidavit having been filed by the Respondents in support of their written statement.
There are a number of decisions fortifying the above view. In Airtech Private Ltd. v. State of U.P. and Ors. IFLR 1984 (49) Page 38. this Court after consideration of provisions of Section 5 of the U.P. Industrial Disputes Act and Rule 12 of the U.P. Industrial Disputes Rules, held that the burden of proving the case referred to the Labour Court for adjudication by the Government lies on the workman. The distinction between a burden of 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 employers.
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 adjudication by the State Government? The obvious answer is that the workman will fail. Here the reference was made by the State Government at the instance of the workmen 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 workmen. 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 Shankar Chaudhary v. Britannia Biscuits Co. Ltd. (1). In paragraph 30th 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 prove or establish the fact so as to invite a decision in its favour, it has to lead 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. It must seek an opportunity to lead evidence". Similar view has been taken by a Division Bench of this Court in the case V.K. Rai Industries v. Labour Court and Ors. 1981 (43) FLR 194 and a recent decision in Meritec India Ltd. v. State of U.P. and Ors. 1996 (74) FLR 2004.
It may be made clear here that the view taken by the Labour Court that in the absence of the evidence adduced by the employers, the averments made by the employees in their written statements stood proved was erroneous. The primary burden of establishing the fact that thumb impressions/signatures of the employees were obtained by the Petitioner on blank papers and such papers were subsequently used as resignation letters to the disadvantage of the employees and further that the consent for resignation was taken on false promise and inducement which was not intended to be fulfilled will always remain upon the employees at whose instance the reference was made. It is only after the evidence in support of such pleas is adduced that the Petitioner is called upon to prove that the employees had voluntarily tendered their resignations and the same were accepted by the Petitioners on 7.10.1977.
The next question as to whether the reference was bad for the reason that the real controversy was not referred by the State Government for determination can be disposed of only in the light of the evidence that may be adduced by the parties. Although Respondents No. Z. 4 and 5 have stated in their representation dated 10.10.1977 (Annexure 4 to the writ petition) that they were not paid the amount promised by the employers but at the same time, what appears from reading the contents of the said document is that consent of the employees to submit resignations was taken by making false inducements and promises which the Petitioner did not intend to fulfil. Without evidence, that resignations, Annexures 1, 2 and 3 to the writ petition, were tendered by the employees of their own free will, at this stage, it cannot be held that it was a case of resignations by the employees and not retrenchment amounting to illegal termination of the services of the employees. This question of fact has to be first disposed of on evidence of the parties by the Tribunal and only then the question whether the reference was bad as claimed by the Petitioner can be disposed of.
In view of discussion made above, the petition deserves to be allowed.
The petition is hereby allowed. Impugned award is hereby quashed and the matter is sent back to the Labour Court. Meerut, to dispose of the matter afresh within a period of six months from the date of presentation of a certified copy of this order by either party, in the light of the observations made in the body of the judgment. No order as to costs.