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High CourtsSingle Bench(2014) 07 AHC CK 0285

Poddar Nursing Home (P) Ltd. vs Presiding Officer

Allahabad High Court · Decided on 1 July 2014 · Citation: (2014) 142 FLR 666

HON’BLE JUDGES
Bharati Sapru, J
CASE NUMBER
Writ-C No. 33436 of 2014

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Judgment

8 paragraphs · 387 words

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Bharati Sapru, J.—Heard Sri Vivek Ratan Agrawal, learned Counsel for the petitioner and Sri P.K. Yadav, learned Counsel for the respondent-workman. The issue involved in this matter is purely legal and, therefore, is being decided without calling for any counter-affidavit with the consent of both parties.

2.

An order has been passed by the Labour Court on 30.5.2014 by which it has passed an order saying that the question whether the domestic inquiry was fair and proper or not should be tried as a preliminary issue. The Labour Court has come to the conclusion that ''Yes'' this issue must be decided as a preliminary issue but while proceeding to do so has given a direction that the employer should lead evidence first.

3.

Learned Counsel for the petitioner-employer states that it is the case of the employer that the domestic inquiry held by the employer was fair and proper and on the other hand it is the workman, who contests the position and states that the domestic inquiry was not fair and proper.

4.

Therefore, Counsel argues that since the workman challenges this issue it is his burden to establish this and lead evidence. The petitioner-employer cannot be forced to lead negative evidence in the first instance.

5.

Learned Counsel for the petitioner has relied on a decision of this Court in the case of Airtech Private Ltd. v. State of U.P., 1984 (49) FLR 38 wherein this Court took a clear view that the burden to prove lies on the person, who seeks to establish the fact, it cannot be negatively advanced in the first instance.

6.

A Division Bench of this Court has also taken the same view in the case of V.K. Raj Industries v. Labour Court and others 1981 (43) FLR 194. It is well settled that any party, which makes a claim against the other side owns the burden to prove or establish the fact so as to lead evidence to establish an allegation made by it and, therefore, in this case also the workman must necessarily lead evidence first. The Court below has already fixed a date in the matter and this Court directs that the Labour Court may first allow the workman to lead evidence and thereafter the employer.

With the above direction, the writ petition stands disposed of.