Decided on June 12,1995


Cited Judgements :-

A B Mitra VS. P O III Industrial Tribunal [LAWS(CAL)-1999-6-3] [REFERRED TO]


Gitesh Ranjan Bhattacharjee, J. - (1.)In this petition moved under Article 226 the Petitioners who are the Ganges Manufacturing Company Limited ('company', for short) and its Managing Director pray for quashing the impugned order No. 28 dated January 10, 1995 passed by the Judge, 4th Industrial Tribunal, West Bengal in case No. VIII-29/92 by which the learned Judge directed the Company to lead evidence first in the case arising out of a refer- ence made by the State Government under Section 10 of the Industrial Disputes Act, 1947. The Company allegedly dismissed five of its workmen after holding a domestic enquiry and also, terminated the services of 66 workmen by way of striking off their names from the register of the Company. The dispute was then referred to the said Industrial Tribunal under Section 10 of the Industrial Disputes Act, 1947. The parties filed their written statements before the Industrial Tribunal. In the written statement the Company prayed for hearing of the question of validity of the domestic enquiry in respect of five dismissed workmen as a preliminary issue and also prayed for opportunity to lead fresh evidence to establish the charges against the five workmen if the Tribunal held that the enquiry was not fair and proper. The learned Judge by his impugned order, as I have already pointed out, asked the company to lead evidence first. Being aggrieved by the said order the petitioners have moved this writ petition. It is submitted before me on behalf of the petitioner company that the impugned order is illegal and arbitrary and cannot be sustained in law because the Tribunal cannot ask the company to lead evidence first without deciding the preliminary issue regarding the validity of the domestic enquiry leading to the dismissal of the five workmen.
(2.)Before I proceed to examine the question as to who should be asked to lead evidence first in case of this nature, it is necessary to understand the nature of the function required to be di scharged by the Industrial Tribunal. It is now a settled proposition that in a proceeding under Section 10 or Section 33 of the Industrial Disputes Act, the Labour Court or the Industrial Tribunal exercises quasi-judicial function. In Shankar Chakarvarti v. Britannia Biscuit Co. 1979-II-LLJ-194) the Supreme Court in para-raphs 30 and 31 of the decision took note of the different provisions relating to adjudication of disputes and observed thus at page 207:- "30. These forms are more or less analogous to a plaint in a suit and the reply to be filed would take more or less the form of a written statement. Where the parties are at variance for facility of disposal, issues will have to be framed. It is open to it to frame an issue and dispose it of as a preliminary issue.... Parties have to lead evidence. S. 10 confers power of a Civil Court under the Code of Civil Procedure on the Labour Court or Industrial Tribunal in respect of matters therein specified. The Labour Court or Tribunal would then proceed to decide the lis between the parties. It has to decide the to on the evidence adduced before it. While it may not be hide bound by the rules prescribed in the Evidence Act it is none the less a quasi-judicial Tribunal proceeding to adjudicate upon a lis between the parties arrayed before it and must decide the matter on the evidence produced by the parties before it. It would not be open to it to decide the lis on any extraneous consideration. Justice, equity and good conscience will inform its adjudication. Therefore the Labour Court or the Industrial Tribunal has all the trappings of a Court.
"31. If such be the duties and functions of the Industrial Tribunal or the Labour Court, any party appearing before it must make a claim or demur the claim of the other side and when there is burden upon it to prove or establish the fact so as to invite a decision in its favour, it has to lead evidence. The quasi- judicial Tribunal is not required to advise the party either about its rights or what it should do or omit to do. Obligation to lead evidence to establish an allegation made by a party is on the party making the allegations. The test would be who would fail if no evidence is led."

(3.)There cannot be any doubt that although the Labour Court or the Industrial Tribunal is required under Section 11(1) of the Industrial Dis-putes Act to follow such procedure as it may think fit and although it is not certainly bound by all the technicalities of civil courts, yet the procedure to be adopted by it must be just and fair and must subserve and not subvert the goals of fair procedure and justice. It is therefore desirable that in respect of matters of cardinal importance relating to procedure the Labour Court or the Industrial Tnbunal should broadly follow the same pattern as followed by the civil Court. There is therefore no doubt that in locating the burden of proof over an issue requiring adjudication of the Industrial Tribunal notice will have to be taken of the principles reflected in the provisions contained in Sections 101 and 102 of the Evidence Act as well as of other provisions relevant to the matter.

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