JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard Counsel for the petitioner and the Standing Counsel. 2. This writ petition has been filed by Kanpur Electricity Supply Co. Ltd. (hereinafter referred to as KESCO) through its Managing Director against an award dated 22.1.2008 given by labour Court, III, U.P., Kanpur in Adjudication case No. 38/2004. 3. The facts of the case in nutshell are that Assistant Manager found respondent No. 1 absent from duty and therefore a show cause notice dated 28.12.2002 was issued to the workman for explaining his absence from 21.10.2002 in writing. The workman in his explanation dated 9.1.2003 informed that he was in jail as he stood surety for Rs. 15,000/- of one Radhey son of Lalaram Jatav, in case crime No. 213/1994, under Sections 394, 307, 411, 420, IPC, P.S. Pheelkhana, Kanpur Nagar who did not appear in Court on several dates. 4. It appears that a notice was issued to the workman for recovery of surety amount of Rs. 15,000/- but as he could not discharge his obligation towards the surety given by him, he was confined to jail. 5. On receipt of explanation, the employer terminated services of respondent No. 1 forthwith on ground of misconduct of absence from duty without proceeding any further in the matter and without holding any domestic enquiry. Aggrieved by termination of his services, workman raised an industrial dispute which has culminated in the aforesaid award dated 22.1.2008 which has been published on 17.3.2008 and is under challenge in this writ petition. 6. It is contended by the Counsel for petitioner that petitioner establishment was earlier part of U.P. State Electricity Board constituted under Section 5 of the Electricity Supply Act and under Section 79-C of the aforesaid Act, the Board has power to frame regulations laying down service conditions for recruitment, employment etc. for its employees. The regulations so framed are statutory in nature and since the workman had committed a misconduct, it was not possible for them to take him back in service. 7. The labour Court after evaluating the pleadings, evidence and hearing of the parties, came to the conclusion that the employer had not given reasonable basis or reasons in their order terminating the services of the Workman, as such their action is arbitrary. 7. The labour Court after evaluating the pleadings, evidence and hearing of the parties, came to the conclusion that the employer had not given reasonable basis or reasons in their order terminating the services of the Workman, as such their action is arbitrary. The labour Court found that workman had not gone to jail in pursuance of any offence committed by him in or outside the establishment but he could not attend his duties as he was in jail only for the reason that he was not able to discharge his obligation as surety by payment of Rs. 15000/-, hence his absence was not voluntary. It was also found by the labour Court that employer had not considered this vital aspect of the matter which the workman had brought before them through his explanation in reply to the show cause notice. The labour Court further held that the employer had failed to prove their case of any misconduct by the work and accordingly directed for reinstatement of the workman with full back wages. Operative portion of the order is as under : ^^lsok;kstd dk fookfnr vknsk rdksZa ij vkèkkfjr u gksdj LosPNkpkfjrk ij vkèkkfjr gSA oknh Jfed viuh LosPNk ls tsy ugha x;k mls dkuwuh izfØ;k ds varxZr tsy esa cUn fd;k x;kA vr% ,slh fLFkfr esa ;g dk;kZy; esa mifLFkr ugha gks ldrkA ;gh fLFkfr mlus Li"Vhdj.k fnukad 9&1&2003 esa nh x;h FkhA vr% dk;kZy; esa mDr vofèk esa vuqifLFkfr jguk nqjkpj.k dh Js.kh esa ugha vkrkA fookfnr vknsk ds voyksdu ls ;g Li"V gksrk gS fd lsok;kstd us vknsk ikfjr djus ds iwoZ Jfed dk lsok o`rkur rFkk mu rF;ksa dks tks izLrkfor n.M dks de ls de ;k vfèkd djus esa lgk;d gks] ij fopkj ugha fd;kA lsok;kstd i{k viuk okn fl) djus esa vlQy jgk gSA vr% mijksDr dkj.kksa ls fookfnr vknsk fujLr djus ;ksX; gSA vr% bls fujLr fd;k tkrk gS rFkk oknh dk vuqjksèk Lohdkj fd;k tkrk gSA mijksDr rF;ksa ,oa ifjfLFkfr;ksa dks è;ku esa j[krs gq;s lsok;kstd i{k dks vknsfkr fd;k tkrk gS fd og oknh Jfed dks lsok esa iqu% okil ys rFkk csdkjh dh vofèk dk iw.kZ osru o vU; HkÙkksa dk Hkqxrku djsaA okn O;; :i;s 200@& :i;s dk Hkqxrku lsok;kstd i{k oknh Jfed dks djsaA fopkjkèkhu lanHkkZnsk esa esjk ;gh fu.kZ; gSA g0 vLi"V ¼latu yky½ ihBklhu vfèkdkjhA** 8. The Apex Court in a stream of cases has held the burden of proof lies upon the party which makes an allegation. Reference in this regard may be made to the decision in the case of Meritech India Ltd. v. State of U.P. and others, 1996 (74) F.L.R. wherein in paragraph 6 and 7 it has been held that : 6. In the case of Airtech Private Limited v. State of U.P. and others, 1984 (49) FLR. 38, it has been held : “Section 5-C(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 provide 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. 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 based 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 presume the contents of the affidavit to be true and make an award accepting the case stated in the written statement. From a combined reading of Section 5C(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. 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 be Labour Court for adjudication by the State Government lies on the workman. The distinction between a burden to 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 employer. 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 Govt. at the instance of the workman 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 workman. 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 Shanker Chaudhary v. Britannia Biscuits Co. Ltd., 1984 (49) FLR 38. In paragraph 30 the 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 is 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. 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 and others, 1979 (39) FLR 70.” 7. In the case of V.K. Raj Industries v. Labour Court and others, 1979 (39) FLR 70, referred to in the case of Airtech (supra) the same view has been taken to the effect : “The proceedings before the Industrial Court are judicial in nature even though the Indian Evidence Act does not apply to the proceedings but the principle underlying the said Act is applicable to the proceeding before the Industrial Court. In a judicial proceeding if no evidence is produced the party challenging the validity of the order must fail. It is well-settled that if a party challenges the legality of an order, the burden lies upon him to prove illegality of the order and if no evidence is produced the party invoking jurisdiction of the Court must fail. Whenever a workman raises a dispute challenging the validity of the 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. 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.” 9. The ratio laid down in the above cases is that the case of that party must fail which is not able to discharge its burden of proof to prove its case. The petitioner could not discharge their burden of proof before the labour Court and their action of termination of services of the workman has been found to be arbitrary by the labour Court in light of evidence and pleading of the parties before it. 10. The petitioner could not discharge their burden of proof before the labour Court and their action of termination of services of the workman has been found to be arbitrary by the labour Court in light of evidence and pleading of the parties before it. 10. Learned Counsel for the petitioner has fairly stated that to his knowledge there is no provision in the Standing Orders or in the regulations under Section 79-C of the Act to the effect that where an employee is confined to jail, he commits a misconduct of voluntary absence from duty and that his services can be terminated on that basis. Even if the workman was found to be absent, he had given his explanation which was required to be considered by the employer. They have neither held any domestic enquiry nor could prove their case of misconduct by the workman before the labour Court as has been held in the award. 11. For all the reasons stated above, I do not find any illegality or infirmity in the award. 12. The petition is accordingly dismissed. No order as to costs. ————