Karnataka High Court
Nayana Kumar vs State Of Karnataka on 1 February, 2024
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.9809 OF 2017 (S-DIS)
BETWEEN:
NAYANA KUMAR
S/O P SRINIVAS ACHARYA
AGED ABOUT 42 YEARS
GURUKRIPA, KUKKUJE POST
KARKALA TALUK
UDUPI DISTRICT-574 108
...PETITIONER
(BY SRI JANARDHANA G., ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF EDUCATION (HIGHER EDUCATION)
VIDHANASOUDHA, BANGALORE-560 001
REPRESENTED BY PRINCIPAL SECRETARY TO GOVT.
2. DIRECTORATE OF TECHNICAL EDUCATION
DEPARTMENT OF TECHNICAL EDUCATION
OFFICE OF THE DIRECTOR
PALACE ROAD, BANGALORE-560 001
REPRESENTED BY ITS DIRECTOR
3. NITTE RUKMINI ADYANTHAYA MEMORIAL
POLYTECHNIC (NRAMP) (AIDED)
2
NITTE, KARKALA TALUK
UDUPI DISTRICT-574 110
REPRESENTED BY ITS PRINCIPAL
4. NITTE EDUCATION TRUST
6TH FLOOR, UNIVERSITY ENCLAVE
MEDICAL SCIENCES COMPLEX
DERAKAKATTE, MANGALORE-575 013
BY ITS TRUSTEE
...RESPONDENTS
(BY SRI P.S.RAJAGOPAL, SENIOR ADVOCATE FOR
SMT. ASHWINI RAJAGOPAL, ADVOCATE FOR R3 & R4;
SMT. PRATHIBHA R.K., AGA FOR R1)
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER ON
I.A. PASSED IN EAT NO.1/2015 PENDING BEFORE THE HON'BLE
EDUCATIONAL APPELLATE TRIBUNAL, MANGALORE DATED
16.2.2017 MARKED AS ANNEX-J AND ETC.,
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 31.01.2024, COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The challenge in the present captioned petition is to the
order passed by the Labour Court on an application filed by
the respondent No.4/Management requesting the Labour Court
to recast issue No.1 by casting burden on the workman to
substantiate that domestic enquiry conducted by the
respondent No.4/Management is not just and fair. The said
application filed by the respondent in I.A.No.5 under Order 47
Rule 1 is entertained by the Labour Court and the preliminary
issue No.1 is reframed thereby casting burden on the
petitioner/workman to substantiate that the domestic enquiry
was not fair and just. The said order is under challenge.
2. The facts leading to the case are as under:
The petitioner was appointed as a Selection Grade
Lecturer in respondent No.2/Institution. The respondent
No.3/Institution issued a show cause notice alleging that
petitioner has sought information in the fake names and
addresses. The enquiry was constituted and petitioner
appeared in the enquiry. The Enquiry Officer submitted his
report. After conclusion of enquiry, the petitioner was served
with enquiry report along with second show cause notice. The
Disciplinary Authority having examined the explanation
tendered by the petitioner proceeded to dismiss the petitioner
from service and the same is challenged before the Employees
Appellate Tribunal in EAT.No.1/2015.
3. The respondent Nos.3 and 4 tendered written
statement and following issues were framed:
"1. Whether the appellant proves that the
domestic enquiry conducted by the respondent No.1 is
not just and fair?
2. Whether the appellant proves that the
termination order passed by the respondent No.1 dated
09.06.2015 is not valid and justifiable?
3. To what relief's the appellant is entitled to?"
4. The respondent No.4 filed an application under
Order 47 to recast the preliminary issue. The Tribunal has
allowed the application filed in I.A.No.5 and the preliminary
issue is reframed as under:
"Whether the appellant proves that the domestic
enquiry conducted by the respondent No.1 is not just
and fair?"
5. Learned counsel for the petitioner reiterating the
grounds would contend that the burden of proving that
enquiry was fair and proper is always on the Management. He
would point out that petitioner has seriously disputed and
questioned the fairness of enquiry and therefore, the burden is
always on the Management to substantiate that domestic
enquiry was fair and just. He would point out that the
Tribunal by reframing the preliminary issue, the burden is cast
on the petitioner to prove something in negative which is
impermissible under law. Referring to Sections 103 to 106 of
Evidence Act, he would vehemently argue and contend that
preliminary issue framed by the Tribunal is in negative.
Placing reliance on the judgment rendered by the Coordinate
Bench in W.P.No.1714/2021, he would contend that burden is
always on the employer to show that enquiry was fair and
just.
6. Per contra, learned Senior Counsel to counter the
contentions of the petitioner has placed reliance on the
following judgments:
1) The President, Golden Valley Education Trust,
Oorgaum Kolar Gold Fields vs. The District Judge &
Educational Appellate Tribunal, Kolar - ILR 1979 Kar
526;
2) Sri Jagadguru P.V.D. Vidya Peetha vs.
Akalandaswamy Math - ILR 1979 Kar 2275;
3) Kalpatharu Vidya Samithi vs. Educational
Appellate Tribunal - ILR 1988 Kar 701;
4) Board of Management of S.V.T. Educational
Institution vs. A.Raghupathy Bhat - (1997) 10 SCC
178;
5) Hombe Gowda Educational Trust vs. State of
Karnataka - (2006) 1 SCC 430;
6) Narang Latex & Dispersions (Pvt) Ltd. vs.
S.V.Suvarna and Another - 1996 (3) LLN 737;
7) UCO Bank vs. The Presiding Officer & Another
- ILR (1999) II Delhi 331;
8) Punjab Tractors Limited vs. Presiding Officer,
Labour Court & Another - 2007 SCC Online P&H 1086;
9) Airtech Private Limited vs. State of U.P. &
Others - 1983 SCC Online ALL 954;
10) Karnataka State Road Transport Corporation
vs. Lakshmidevamma & Another - (2001) 5 SCC 433;
11) Ganges Manufacturing Company Ltd. and
Others vs. State of West Bengal and Others - 1996
(2) LLN 1031;
12) General Secretary, Mc.Dowell Employees'
Association, Varanad vs. Mc.Dowell & Co., Ltd. and
Others - 1975 SCC Online Ker 92;
13) V.K.Raj Industries vs. First Labour Court,
Kanpur and Others - (1981) 2 LLN 498.
7. Placing reliance on the judgment rendered by the
Punjab and Haryana High Court in the case of Punjab
Tractors Limited (supra), he would contend that where
domestic enquiry is held but the same is questioned by the
employee on the ground that enquiry is defective, the onus of
proving such preliminary issue would be always on the
workman to prove such domestic enquiry as vitiated on
account of there being a defective enquiry. He would contend
that if Management is placing reliance on the domestic
enquiry, then the burden of proving the charges would arise,
subject to the findings recorded on preliminary issue. If
preliminary issue is answered in favour of employee/workman,
the Management has to adduce evidence to substantiate the
misconduct of the employee/workman. Therefore, he would
contend that the order under challenge recasting the
preliminary issue does not suffer from any infirmities.
Therefore, no indulgence is warranted at the hands of this
Court.
8. Heard learned counsel for the petitioner and
learned counsel appearing for the respondents. Perused the
pleadings.
9. The domestic enquiry conducted by the respondent
No.4/Management is challenged mainly on the following
grounds raised before the Tribunal:
"(iii) The appellant has submitted detailed
explanation to the show cause notice dated 30.09.2013.
The respondent No.1 ought to have accepted the
explanation and should have dropped the further
proceedings.
(iv) The charges levelled against the appellant are
vague. The charges framed are bad under law. The
alleged charges framed are not under which provision of
service rules is applicable.
(v) The appointment of one man enquiry is illegal.
The respondent No.1 ought to have appointed enquiry
committee in order to enquire into the charges levelled
against the appellant and on same ground the one man
enquiry is liable to be set-aside. The appellant ought to
have followed the rules under the grant in aid code of
collegiate education.
(vi) The reasons given by the enquiry officer in his
enquiry report is erroneous, one sided and against the
principles of natural justice. The enquiry report is one
sided.
(vii) The enquiry conducted is also one sided. The
appellant has not permitted to participate enquiry
proceedings and he has not given permission to attend
the same. Therefore the reasonable opportunity to
participate enquiry is not provided. Virtually enquiry
proceedings is one sided and same is liable to be set-
aside."
10. There are conflicting views by various High Courts
on this issue. The Allahabad High Court in the case of U.P.
State Road Transport Corporation Kanpur and Another
vs. Sarfaraz Hussain and Others1, while examining on
whom the burden lies insofar as preliminary issue is
concerned, was of the view that in a domestic enquiry, the
burden is on the employer to prove the charges against the
delinquent. It is in this background, the Allahabad High Court
was of the view that primarily burden is on the employer to
establish before the Tribunal or Labour Court that the enquiry
was properly held, particularly when such enquiry was
defective. The Allahabad High Court was of the view that
burden of proving that there was no enquiry or a defective
enquiry was never on a person who denies it. It further
proceeded to hold that Section 101 of Evidence Act comes into
play when burden of proof was on the employer that
delinquent was guilty in domestic enquiry and therefore, the
1994 SCC Online All 903
burden is on the employer to substantiate and prove that
domestic enquiry was properly held.
11. The Punjab High Court in the case of Punjab
Tractors Limited (supra), however, held that where
domestic enquiry is held but it is alleged by workman that
such enquiry is defective for one or the other reasons, the
onus of proof of such preliminary issue would be on the
workman to prove such domestic enquiry as vitiated.
12. Similar view is expressed by the Bombay High
Court in the case of Narang Latex and Dispersions Pvt.
Ltd. vs. S.V.Suvarna (Mrs.) and Another2. The Bombay
High Court was of the view that where workman disputes the
enquiry conducted against him as not proper and is violative of
principles of natural justice, in such circumstances, burden of
proving as to how enquiry conducted was illegal and invalid
would be on the workman and not on the Management.
(1995) ILLJ113BOM
13. On meticulous examination of the principles laid
down by various High Courts, the question that needs
consideration at the hands of this Court is, as to on whom the
burden lies when workman has disputed domestic enquiry on
the ground that it was in violation of principles of natural
justice.
14. When the Management relies on enquiry conducted
by it, the Tribunal has to, at first instance, get itself satisfied
as to whether enquiry proceedings have been held properly
and are valid. In employment law and industrial relations,
onus is often on the workmen to prove that a domestic
enquiry was not fair because they are the ones challenging the
fairness of the process. Since employer conducts domestic
enquiry, it is presumed to be fair and valid unless employee
can demonstrate otherwise. This arrangement helps maintain
efficiency of workplace investigations while ensuring that
employees have the opportunity to present evidence if they
believe the process was unjust. It is a trite law where the
party challenging an established procedure or decision bears
the burden of proof. The burden of proof on the workman to
demonstrate that a domestic enquiry was not fair serves
several purposes. Firstly, it promotes transparency and
accountability in employment relations. By requiring the party
challenging the fairness of an enquiry to present evidence, it
ensures that allegations are not made lightly and that there is
a basis for the claim.
15. In the present case on hand, it is the employee
who has raised the dispute against his dismissal. He has filed
an application by contending that enquiry conducted is not
proper and that there is violation of principles of natural
justice. Therefore, it is for the workman to actively participate
in the dispute and articulate the grounds while questioning the
fairness of domestic enquiry and present relevant evidence in
that regard.
16. Moreover, the principle aligns with the practicality
of investigations conducted by employers. Employers are
generally responsible for managing and maintaining order in
the workplace, and they must have the ability to conduct
internal inquiries efficiently. Therefore, presuming fairness of
the domestic enquiry until proven otherwise helps maintain
the integrity of internal investigation processes. The rationale
behind placing the burden of proof on the workman is rooted
in legal principles of fairness and efficiency. By requiring the
party challenging the fairness of a domestic enquiry to provide
evidence, it ensures a balanced approach in employment
disputes.
17. If the preliminary issue is answered in favour of the
workman, then the entire burden would shift on the
Management to substantiate and prove the charges of
misconduct. If the findings on preliminary issue is in favour of
the Management, then no additional evidence need to be cited
by the Management. Therefore, what emerges is that only
when preliminary issue is answered against the Management,
the Tribunal will have to give the Management an opportunity
to cite additional evidence and also give a similar opportunity
to the employee to lead evidence contra. Therefore, all
depends on facts and circumstances of the case and the
burden of proving the charges would also depend upon the
findings recorded by the Labour Court/Appellate Tribunal.
When the preliminary issue is decided against the
Management and the latter leads evidence before the Tribunal,
decision under such circumstances will be that the
Management is deprived of benefit of domestic enquiry as
prima facie proof of alleged misconduct. In such cases, the
Management will have to prove by adducing proper evidence
that workman is guilty of misconduct and the action of
dismissal taken by the Management is proper.
18. In the light of discussion made supra, the
proposition laid down by the Allahabad High Court that in a
domestic enquiry, it is the duty of the employer to prove the
charges against the delinquent does not lay a correct
proposition of law. The burden of proving charges of
misconduct would be on the Management only if the
preliminary issue is answered against the Management.
Therefore, the controversy relating to dismissal of service
depends upon the findings recorded on preliminary issue and
depending upon the outcome of findings on preliminary issue,
the parties have to prove and substantiate their respective
claim.
19. For the reasons stated supra, I pass the following:
ORDER
The writ petition is devoid of merits and stands dismissed
accordingly.
The Employees Appellate Tribunal shall expedite hearing
and decide the case at the earliest.
The pending interlocutory application, if any, does not
survive for consideration and stands disposed of accordingly.
Sd/-
JUDGE
CA
