M/S Uflex Industries Limited vs State Of U.P. And 2 Others
2017 Latest Caselaw 4458 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 5
 

 
Case :- WRIT - C No. - 32510 of 2017
 
Petitioner :- M/S Uflex Industries Limited
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Shakti Swarup Nigam,Vijay Sinha
 
Counsel for Respondent :- C.S.C.,Ratan Singh
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Heard Shri Shakti Swarup Nigam, learned counsel for the petitioner; Shri Sanjay Kumar Singh, learned Standing Counsel for State respondent and Shri Ratan Singh, learned counsel for workman.

Petitioner-M/s UFLEX Industries Limited through its Joint Executive Managar (H.R.), Binghnesh Dubey is before this Court assailing the impugned orders dated 27.05.2014 and 01.05.2017 passed by second respondent.

Brief matrix of the case is that M/s UFLEX Industries Limited is a company registered under Companies Act, 1956 and the terms and conditions of workmen are governed by the Certified Standing Orders of the establishment. It appears that the third respondent/workman was charge-sheeted vide charge-sheet dated 21.01.2000 and thereafter domestic inquiry has been initiated against him. Petitioner claims that at no point of time, the principles of natural justice was violated but the reason best know to the workman, he did not participate in the inquiry and finally he was found guilty of the charges and his services were dispensed with vide order dated 22.09.2000 on account of misconduct. Thereafter, the conciliation proceedings were set in motion and once the same has failed, the State Government referred the matter for adjudication before the second respondent and reference was made to the following effect:-

" D;k Jh gjh'k dqekj iq= Jh dSyk'k flag dks nqjkpj.k ds vkjksiksa ij ?kjsyw tkWp dk;Zokgh ds vk/kkj ij fnukad 22-9-2000 ls lsok ls c[kkZLr djuk vuqfpr vkSj voS/kkfud gS \ ;fn gS] rks lEcaf/kr Jfed fdl fgr&ykHk vkSj vuqrks"k ikus dk vf/kdkjh gS vkSj vU; fdu fooj.k lfgr\"

In the present matter, the detailed Written Statement was filed by the petitioner on 23.01.2009 before the second respondent, wherein it has been claimed that principles of natural justice have not been violated during the inquiry and once workman himself has abstained from the domestic inquiry, then he cannot take plea that he was not afforded proper and reasonable opportunity to defend himself in the inquiry. The petitioner had also filed rejoinder affidavit on 19.02.2010 to the written statement filed by the third respondent. Finally the second respondent had framed the issues on 27.05.2014 and asked the management/petitioner to lead the evidence. Thereafter, an application was filed on behalf of petitioner on 16.09.2014 with a request to the second respondent that the workman be directed to lead the evidence with regard to the domestic inquiry as workman has raised the dispute that the inquiry was not fair and proper. In response to the same, the workman on 26.09.2014 had also filed his objection to the application dated 16.09.2014 refuting such claim and requesting to the second respondent that burden lay upon the Management to justify the enquiry by leading evidence. Thereafter, by the impugned order dated 01.05.2017, the Objection/Application 25-D that has been so moved by the petitioner had been turned down and the same has impelled the petitioner to be before this Court.

Shri Shakti Swaroop Nigam, learned counsel for the petitioner, in the light of the aforesaid reference order, submits that the workman has disputed the inquiry in question and alleged that the inquiry proceedings were not fair and proper and as such, the burden of proof lies upon the workmen and the Management has rightly moved an objection/application on 16.09.2014 but in most arbitrary manner, the Presiding Officer, Labour Court has proceeded in the matter and rejected the said objection/application. He further made submission that since the issue was raised about the fairness of domestic inquiry, in such eventuality the workman has to lead the evidence and not the management but the Presiding Officer vide order dated 01.05.2017 has rejected such application precisely under the backdrop that once the issue was framed by the second respondent earlier relating to fairness of domestic inquiry, then subsequently the application could not sustain as the same would amount to review of the earlier order and the same is impermissible and as such, he urged that the Tribunal has erred in granting indirect relief to the workman and has also committed manifest error of law in placing burden of proof on the employer to prove that the services of respondent workman were terminated in proper manner.

In this backdrop, he submits that it is well settled that if a party challenges the legality of an order, the burden lies upon him to prove the illegality in the order and if no evidence is produced, the party invoking jurisdiction of the Court must fail. He further submits that whenever the workman raises a dispute regarding the validity of termination of service, it is imperative for him to file written statement before the Industrial Court setting out grounds on which the order is challenged and he must also produce evidence to prove his case and in such a situation if the workman fails to appear or to file written statement or produce evidence, the dispute referred by the State Government cannot be answered in favour of the workman and he would not be entitled to any relief and in the instant case, the State Government had referred the dispute to the Labour Court at the instance of aggrieved workman and as such, the burden lay upon the workman to set up the grounds to challenge the validity of the termination order and to prove that the termination order is illegal and in such direction, if workman fails to lead the evidence, then the Labour Court cannot proceed any further asking the employer/management to lead the evidence. He has also contended that even for the sake of argument, if it is accepted that the power of substantive review is not exercisable by any Court, Tribunal or Authority unless the same is specifically conferred upon it under the relevant statute whereas the power of procedural review is inherent in every Court, Tribunal or Authority and could be exercised even if no such power is given to it under the Act and on this score also, the second respondent has erred in law while holding that there is no power of review to the Court and as such, the application cannot be accepted.

In support of his submission, he has placed reliance on the judgement in the cases of V.K. Raj Industries vs. Labour Court 1981 (29) FLR 198; M/s Airtech Pvt. Ltd. vs. State of U.P. 1984 (49) FLR 38; Shanker Chakravarti vs. Britannia Biscuit Co. Ltd. 1979 (39) FLR 70; M/s Poddar Nurshing Homes (P) Ltd. vs. Presiding Officer, Labour Court 2014(142) FLR 666; Kapra Mazdoor Extra Union vs. Birla Cotton Spinning & Weaving Mills Ltd. 2005(105) FLR 416; M/s Indo Gulf Industries Ltd. vs. State of U.P. And others 2016(148) FLR 991; and M/s U.P. State Sugar and Cane Development Corp. vs. Assistant Labour Commissioner and others 2016 (148) FLR 254.

Per contra, Shri Ratan Singh, Advocate who appears for the workman as well as Shri Sanjay Kumar Singh, learned Standing Counsel has vehemently opposed the Writ Petition and submits that the petitioner in most arbitrary manner has dispensed with the services of workman since 22.09.2000 and the matter is pending since long. Either for one reason or the other, the petitioner company is adopting delaying tactics and only in this backdrop, the petitioner had moved an application/objection on 27.05.2014 and as such, the Writ Petition is not liable to be entertained. He further made submission that once the proceedings have been delayed, the workman has approached to this Court by preferring Writ C No.28501/2014 (Harish Kumar vs. State of U.P. And others) with innocuous prayer for directing the Presiding Officer, Labour Court to decide the Adjudication Case No.95/2006 expeditiously. The same was disposed of asking the second respondent to decide the matter expeditiously without granting unnecessary adjournment to either of the parties and conclude the proceedings. In this backdrop, he submits that once there was a direction issued by this Court in the aforementioned Writ Petition, then it was imperative to the second respondent to decide the aforementioned adjudication case within stipulated time but in spite of the categorical direction, the petitioner is trying to delay the proceeding and only with this object, the aforementioned application has been filed and as such, in the aforementioned facts and circumstances, the present Writ Petition is liable to be dismissed.

Heard rival submissions and perused the record.

As the issue involved in the matter is purely legal and in the present matter, the workman has questioned the fairness of the domestic inquiry as such, the Presiding Officer by its order dated 27.05.2014 had framed the following issue with the further direction to the employer to lead the evidence:-

"D;k lsok;kstdksa }kjk dh xbZ ?kjsyw tkap izkd`frd U;k; ds vuq:i dh xbZ gS tSlk fd lsok;kstd us vius fyf[kr dFku esa dgk gS\ ;fn gkW rks mldk izHkkoA"

Once such issue was framed about the fairness of domestic inquiry, the petitioner being employer moved an objection/application on 16.09.2014 with a request to the Presiding Officer that as the issue was framed about the fairness of domestic inquiry, in such a situation, the workman has to lead the evidence instead of employer. The Presiding Officer while passing the impugned order dated 01.05.2017 has rejected the application of the petitioner precisely on the ground that it will amount to review of the order and the same is impermissible and before this Court the order dated 27.05.2014 as well as the order dated 01.05.2017 are assailed by the employer on the ground that the said order is in teeth of the settled proposition of law.

Much emphasis has been placed by the learned counsel for the petitioner on the fact that in case domestic inquiry was held by the employer and on the other hand, the workman is contesting on the ground that the domestic inquiry was not fair and proper and since the workman challenged this issue, in such circumstances, the burden lies on the shoulder of workman to lead evidence and the petitioner being an employer cannot be forced to lead negative evidence in first instance.

View to the similar effect has been taken by the Apex Court in Kapra Mazdoor Ekta Union vs. Birla Cotton Spinning and Weaving Mills Ltd. And another 2005 (105) FLR 416 as well as by this Court in V.K. Raj Industries vs. Labour Court 1981 (29) FLR 198, M/s Airtech Pvt. Ltd. vs. State of U.P. 1984 (49) FLR 38 and M/s Poddar Nursing Home (P) Ltd vs. Presding Officer, Labour Court (I) and another 2014 (142) FLR 666 wherein It has been held that the burden to prove lies on the person who seeks to establish the fact and it cannot be negatively advanced at the first instance.

In the instant case, the petitioner being an employer moved an application that since the issue was framed on the fairness of domestic inquiry, then in such a situation, the workman had to lead evidence but the said application has been turned down by the second respondent as it amounts to review the previous order, which is impermissible.

So far as the facet regarding the review is concerned, there is no dispute that in case there is no provision contained in the Act, the Prescribed Authority has no power to review its order, which means substantive review on merit and thus in absence of statutory power to review, the Prescribed Authority has no authority under law to substantively review its earlier order in the proceeding but at the same time, it is relevant to indicate that every Judicial Authority has inherent power to recall its order if it is established that the same has been passed erroneously or in violation of principles of natural justice. This is procedural review analogous to the powers of setting aside an ex-parte decree under Order IX Rule 13 CPC wherein summons are not properly served or the party fails to appear before the Court for some reasonable cause.

In the present case the application so moved by the petitioner/employer in nature is procedural and same may be taken in the nature of procedural review rather than substantive nature. It is well settled that the power of substantive review is not exercisable by any Court, Tribunal or Authority unless the same is specifically conferred upon under the relevant statute whereas the power of procedural review is inherent in every Court, Tribunal or Authority and can be exercised even though no power is given under the Act and the Presiding Officer has erred in law in observing that the present case would fall in the categorical of substantive review whereas the present matter falls under the category of procedural review and as such the Tribunal does not lack power to rectify such procedural flaws and it is well within its jurisdiction to rectify such situation.

In view of the above facts and circumstances and looking into the law laid down by the Apex Court as well as by this Court, this Court is of the considered opinion that the orders impugned dated 27.05.2014 and 01.05.2017 cannot sustain and the same are accordingly set aside. The second respondent is directed to proceed in the matter strictly as per the observations made hereinunder and it is also expected that the said proceedings may be concluded within one year period and the parties would not seek any unnecessary adjournment.

With these, Writ Petition is allowed.

Order Date :- 15.9.2017

A. Pandey