2001(4) ALL MR 333
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.J. KOCHAR, J.
Northcote Nursing Home Pvt. Ltd. & Anr. Vs. Dr. (Ms.) Zarine H.Rahina & Anr.
Writ Petition No.1947 of 1997
2nd April, 2001
Petitioner Counsel: Mr.J.P.CAMA, K.A.ANILKUMAR
Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act (1971), S.28 r/w S.3(5) - Industrial Disputes Act (1947), S.2(s) - Complaint under - Burden of proof - Issue as to whether complainant an 'employee' U/S.3(5) - Held, where complaint filed with positive assertion that Complainant a workman and hence an employee - Burden on Complainant to lead evidence first to prove that he was a workman. (Paras 8,9)
JUDGMENT :- The Petitioners are aggrieved by the Order dated 19.11.1997 passed by the Learned Member of the Industrial Court in a Complaint (ULP) No.147 of 1995 at an interlocutory stage holding that the burden of leading evidence in the complaint would lie on the Petitioners on the issue whether the Respondent employee was an employee within meaning of Section 3(5) of the MRTU & PULP Act.
2. The relevant facts are very simple. The Petitioners had employed the Respondent employee as a Resident Medical Officer, who was a Junior Medical Practitioner. It appears that the Petitioners had appointed the Respondent no.1 on 1.4.1992 under a contract of service in the Managerial/Administrative Capacity. It further appears that on 26.5.1994 a Charge sheet was served on her for an alleged act of misconduct. It further appears that the Respondent No.1 objected to the departmental enquiry as she was not paid full salary as subsistence allowance. The Respondent No.1, therefore, filed a Complaint of unfair labour practice under Item 9 of Schedule IV of the Act praying for a declaration that the non payment of subsistence allowance by way of full salary during the suspension period from 26.5.1994 amounted to an unfair labour practice. She demanded arrears and also interim orders restraining the Petitioners not to proceed with the enquiry based on the charge sheet dated 26.5.1994.
3. The Petitioners filed their written statement denying the allegation of unfair labour practice. It further appears that by an order dated 29.6.1995 the Learned Member of the Industrial Court confirmed his earlier ad interim order passed on 9.2.1995 and directed the Petitioners to allow the Respondent No.1 to report on duty. The Petitioners being aggrieved by the said interim order approached this Court under Article 226 of the Constitution of India and prayed for stay of the said order. However the said writ petition came to be rejected in December, 1995. The Petitioners filed an appeal against the said order before the Appeal Court. The Respondent No.1 gave an undertaking to the Appeal Court that she would not insist for reinstatement or wages under the order of the Industrial Court dated 23.11.1995 in Complaint ULP No.174 of 1995. The Complaint however was allowed to proceed further before the Industrial Court.
(1) Whether the Respondent proves that the Complainant is not a Workman as per Sec.2(s) of the Industrial Disputes Act, and Sec.3(5) of the MRTU & PULP Act, 1971 ? Similarly, whether the Complainant proves that she is a workman?
(2) Whether the Respondent has right to conduct the enquiry against the complainant as per the setting out the terms and conditions of employment in contract and whether the Industrial Employment (Standing Orders) is applicable?
(3) Whether the Complainant proves that the Respondents have committed unfair labour practice under item 9 of Sch.IV of the MRTU & PULP Act, 1971?
(4) Whether the Complainant proves that she is entitled to Suspension Allowance from the date of suspension i.e. 26.4.1994 till the said suspension is revoked?
(1) Does the Complainant prove that she is a workman under Section 2(s) of the Industrial Disputes Act, 1947 ?
(2) Whether Respondents prove that the Industrial Court constituted under the MRTU & PULP Act has no jurisdiction to entertain, try and decide the present Complaint?
(3) Does the Complainant prove that the provisions of the Industrial Employment (Standing Orders) Act, are not applicable to the establishment of the 1st Respondent Nursing Home ?
(4) Does the Complainant prove that the Respondents have committed unfair labour practice under Item No.9 of Schedule IV of the MRTU & PULP Act ?
(5) To what reliefs, if any, is the Complainant entitled?
(6) What order?
6. The learned Member heard both the parties on the question of issues and on the question on whom the burden would lie and who is to lead evidence first. By the impugned order the Industrial Court has held that it was for the Petitioners to lead the evidence first to prove that the Respondent was not "a workman" within the meaning of Section 2(s) of the Industrial Disputes Act and therefore, not "an employee" as defined under Section 3(5) of the MRTU & PULP Act. While casting burden on the Petitioners the Industrial Court has hardly given any reason. The entire case which he has discussed is in paragraph 6 of his order and with last few lines it is held by the learned Member of the Industrial Court that he was convinced with the submissions made by the advocate for the respondent that petitioners had to lead the evidence first to prove their defence that the respondent was not a workman.
7. Shri.Cama the learned counsel for the petitioners has serious grievance against the said order casting the whole and initial burden on the petitioners to prove that the Respondent was not a workman as defined under Section 2(s) of the I.D. Act and an employee as defined under Section 3(5) of the MRTU & PULP Act. Shri.Cama has pointed out that the Respondent employee has filed the complaint by making specific assertion that she was a Medical Practitioner and a Resident Medical Officer and that she was a workman within the meaning of the Act. Shri.Cama has therefore, submitted that it was the positive assertion made by the Respondent herself that she was a workman within the meaning of the Act. It was for the respondent to prove her positive case that she was a "workman" and "employee" as contemplated by both the Acts and therefore she was entitled to file the complaint under the MRTU & PULP Act.
8. There is much substance in the contention of the learned counsel that the respondent employee had filed the complaint in the capacity of an employee and she asserted positively that she was a workman as contemplated under the I.D. Act and therefore, she was entitled to file the complaint filed by her. In my opinion and on the general principles of civil law it is for the party to lead evidence to prove the positive facts and it is not for the other side to prove the negative facts. If the Respondent had pleaded positively that she was a workman as contemplated by law in that case it was for her to step in the witness box to prove her positive assertion that the duties performed by her fell within the parameters of the definition of workman. It is not for the other side to prove how the respondent was not a workman. It is an admitted fact that the Respondent was employed as a Resident Medical Officer in a Managerial and Administrative Capacity by a contract of service.
9. In the aforesaid circumstances heavy burden would lie on the respondent to prove from the duties she performed that she satisfied the criteria laid down within the parameters of the definition of section. It would be thereafter for the petitioners management to rebut the evidence to show that from the duties performed by the respondent she fell in the exceptions of the definition and that she did not satisfy even the main definition of the Act. In the aforesaid circumstances it is not possible to hold that it was for the petitioners management to lead evidence first to prove the negative that the respondent was not a workman. It is for the respondent to prove that she was a workman within the meaning of the definition of section 2(s) of the I.D.Act. I, therefore, quash and set aside the impugned order and hold that it is for the respondent to lead the evidence first on the point of workman as also on the point of her complaint of unfair labour practice complained by her. It would be for the complainant to prove the allegations of the unfair labour practice on the basis of the pleadings in the written statement of the Respondent. Rule is made absolute in terms of prayer clause (a). No order as to costs.