S.K Dhaon, J.:— A reference under Section 4-K read with Section 2-A of the U.P Industrial Disputes Act, 1947 (hereinafter referred to as the Act) was made by the State Government to Labour Court for the adjudication of an industrial dispute between the employers and its individual workman. The English rendering of the term of the reference was somewhat like this whether the termination of the services of the workman by the employers from a certain date is justified/lawful if not to what relief etc. is the workman entitled.
2. Before the Labour Court the employers and the workmen filed their respective written statements. It appears that the Labour Court insisted that the employers should lead evidence first. An application was filed by the employees praying that the workman should be directed to lead his evidence first. The Court rejected the application.
3. It held that in view of the phraseology by the State Government in the reference made to it, the legality or the justifiability of the termination of services of the workman had to be established by the employer and, therefore the burden of proof lay on the employers. The employer felt aggrieved by this order. Hence this petition.
4. Section 5C (1) of the Act provides that subject to any rules that may be made in this behalf, a Labour Court shall follow such procedure as it may think fit. It is therefore, clear that the discretion of the Court is not absolute. It is circumscribed by Rules, if any. We have, therefore, to look to the U.P Industrial Disputes Rules of 1957. Rule 12 provided that where the State Government refers an industrial dispute for adjudication to a Labour Court within two weeks of the date of receipt of the order of reference, the workmen and the employers involved in the dispute shall file before the Labour Court a statement of the demands relating to the issues as are included in the order of reference.
5. Sub-rule (8) provides that the written statement filed by the Union or the workman shall state the grounds upon which the claim of the concerned workmen is used and the written statement shall be accompanied by an affidavit in which the statement contained in the written statement should be sworn to. Sub-rule (9) states that if the statement accompanied by the affidavit of the Union or the workman is not repudiated by the employer, the Labour Court shall peruse the contents of the affidavit to be true and make an award accepting the case stated in the written statement.
6. From a combined reading of Section 5-C (1) and the aforementioned sub-rules of Rule 12 it is apparent that it is imperative upon a workman to file an affidavit in support of his written statement. This affidavit constitutes the preliminary evidence. If the employer does not care to controvert the averments made in the affidavit nothing further need be proved or done by the workman. The Labour Court is duty bound to accept the averments contained in the affidavit and give its decision or award accepting the averments made in the affidavit as correct. These provisions indicate that the burden of proving the case referred to the Labour Court for adjudication by the State Government lies on the workman. The distinction between a burden of proof and the onus of proof is well-known. It is trite that the burden of proof never shifts. It is the onus which keeps on shifting from stage to stage. The Labour Court patently erred in holding that keeping in view the terms of the reference made by the State Government the burden of proof lay upon the employers.
7. The matter can be looked at from another angle, which party will fail if the evidence is not led before the Labour Court in proceedings in a reference made to it for adjudication by the State Government ? The obvious answer is that the workman will fail. Here the reference was made by the State Government at the instance of the workmen and for the benefit of the workman. In the absence of any evidence led by or on behalf of the workman the reference is bound to be answered by the Court against the workmen. In such a situation it is not necessary for the employers to lead any evidence at all. This matter was dealt with by the Supreme Court in Shankar Chaudhary v. Britannia Biscuits Co. Ltd.(1) In paragraph 30th Court held that the Labour Court or the Industrial Tribunal have all the trappings of a Court. In paragraph 31 it held that any party appearing before a Labour Court or Industrial Tribunal ‘Must’ make a claim or demur the claim of the other side and when there is a burden upon it to prove or establish the fact so as to invite a decision in its favour, it has to lead evidence. The obligation to lead evidence to establish an allegation made by a party is on the party making the allegation. The test would be, who would fail if no evidence is led. It must seek an opportunity to lead evidence. Similar view has been taken by a Division Bench of this Court in the case V.K Raj Industries v. Labour Court.(2)
8. As a result of the foregoing decision it is apprent that the impugned order of the Labour Court cannot be allowed to stand.
9. The writ petition succeeds. It is allowed and the impugned order dated 11th May, 1983 passed by the Labour Court is quashed. It is directed to proceed with the hearing of the dispute referred to it in the light of the observations made above.
10. This order will govern Writ Petitions No. 6742, 6743, 6751 and 9048 of 1983. In these cases similar orders were passed by the Labour Court. The orders dated 18th February, 1983, 3rd May, 1983, 11th May, 1983 and 5th July, 1983 passed in Writ Petition No. 6742, 6742, 6751 and 9048 a of 1983 respectively by the Labour Courts concerned are quashed. These Labour Courts are also directed to resume the hearing of the industrial disputes referred to them for Adjudication in the light of the observations made above. There shall be no order as to costs in any of these writ petitions.