- (1.) C. A. Rahim, J. Respondent No. 1 was appointed on 7-7-1959 as driver in the petitioners' Company. On 21-2-1974 a charge-sheet was sub mitted against him and an enquiry was started by one Sri D. R. Singh. A petition was filed by respondent No. 1 for changing Inquiry Officer but no order was passed. The said enquiry was purported to have been completed and the respondent No. 1 was dismissed from service. An appeal was preferred before the Assistant Regional Manager, which was dismissed. Against that order another appeal was preferred to the General Manager of U. P. Road Transport Corporation but no decision was arrived at for long. The Union therefore took up the matter to the Government of U. P. and a refe rence was made to the Labour Court for a decision whether the dismissal of the respondent No. 1 on 20-3-1977 was legal and proper.
(2.) THE allegation of the respondent No. 1 before the Labour Court was that the said enquiry was not properly held. Since the two witnesses, who alleged to have been deposed during the enquiry was done in the absence of the respondent No. 1 and that the Inquiring Officer wrongly found that the allegation was true and consequently he was dismissed. Labour Court initiated proceeding and framed an issue whether the order of dismissal dated 20-3- 1977 was proper and according to law if not what relief the petitioner (respondent No. 1 before mo) was entitled. Before the Labour Court the respondent No. 1 adduced his evidence but the Trans port Corporation obtained 20-25 adjournments but did not produce any evidence. The Labour Court, therefore, found that the said order of dismissal was illegal. He also found that as during the pendency of the appeal before the General Manager of the Corporation he was reinstated, the same should continue and he should be paid all arrears, salary and with all benefits expeditiously. Against that order of the Labour Court this writ petition has been filed alleging that the said order was illegal and bad in law. Learned counsel for the petitioner has submitted that the domestic enquiry was properly held. The allegation of the respondent No. 1 before the Labour Court that it was not properly held or that it was a defective enquiry should have been established by him as burden of proof lies on him. The Labour Court held that it was on the Corporation to establish that the domestic enquiry was properly held. In case of M/s. Fire Stones Tyre and Rubber Company reported in AIR 1973 SC page 1227 it was held that even if no enquiry was held by the employer or if the enquiry was found to be defective the Tribunal in order to satisfy itself about the legality and validity of the order has to give an opportunity to the employer and employee to adduce evidence before it. In case of Co-operative Engineering Limited, AIR 1975 SC 900 it was held that when the matter is in controversy between the parties that question must be decided as a preliminary issue it will be for the management to decide whether it will adduce any evidence before the Labour Court. If it chooses not to adduce any evidence it will not be thereafter permissible in any proceeding to raise the issue. In view of these decisions contention of the learned counsel for the petitioner in this respect does not seem to be correct. In the domestic enquiry it was the duty of the employer to prove the charge against the delinquent. It was also the duty of the said employer to establish before the Tribunal or labour Court that the enquiry was properly held, particularly when there is allegation that the said enquiry was defective. In the instant case no evidence was adduced by the employer after several adjournments were granted. The burden of proof that there was no enquiry or a defective enquiry was never on a person who denies it. Section 101 of the Evidence Act comes into play when the burden of proof was on the employer that the delinquent was guilty in the domestic enquiry, the said employer is also liable to prove before the labour court that the domestic enquiry was properly held. There can be no burden on a person to prove the negative to establish that there was no domestic enquiry. It does not rest on a person who denied the fact. I do not find any illegality in the order and the contention of the learned counsel for the petitioners fails.
(3.) LEARNED counsel for the petitioners has submitted that the order of dismissal dated 20-3-1977 stood merged in the order of the appellate court. It has been submitted that by an order of the appellate court respondent No. 1 was allowed to join and it tantamounts that the dismissal order was substi tuted by the said order and hence due to merger the Labour Court has no jurisdiction to entertain the reference and the same is bad in law. In this connection learned counsel for the petitioners has referred the case of M/s. Sahkari Ganna Vikas Samiti Limited reported in (1993) 1 U. P. Local Bodies and Educational Cases page 532. In that case respondent No. 4 was dismis sed but the appeal preferred by the workmen was allowed and the appellate authority administered warning to the respondent No. 2 and directed this reinstatement against the post to be fallen vacant in future. It was also ordered that the respondent No. 4 would not be entitled to any salary for the period he remained out of employment. Learned Counsel for the respondent No. 1 has submitted that in the instant case doctrine of merger is not applicable as no relief was given to the petitioner on adjudication of the appeal filed by the respondent No, 1.;