Full Judgment Text
1 wp 5290.19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5290 OF 2019
Siemens Ltd.
Plot No. A-1/2, Five Star
MIDC, Shendra, Aurangabad,
Through its Manager-HR .. Petitioner
Versus
Shendra Siemens Kamgar/Karmachari
Sanghatana, C/o Shri Chandrakant
Mohan, Sarode, Sant Dnyaneshwar
Nagar, House No. 70/1, Hudco,
N-9, M-2, Aurangabad,
Through Secretary. .. Respondent
Shri Sudhir Talsania, Senior Advocate i/by Shri Y. R. Marlapalle,
Advocate for the Petitioner.
Shri B. R. Kaware, Advocate for the Respondent/Sole.
CORAM : SANDEEP V. MARNE, J.
DATE : 14TH NOVEMBER, 2022.
ORAL JUDGMENT :
. Rule. Rule made returnable forthwith. With the consent
of parties taken up for final hearing.
nd
2. By this petition, Petitioner challenges award dated 02
November, 2018 passed by the Industrial Tribunal, Aurangabad
in Reference (IT) No. 08 of 2014. By that award, the Industrial
Tribunal has held that more than 100 employees in workman
category were working in petitioner company and that therefore,
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provisions of Chapter VB of the Industrial Disputes Act (for short
“I. D. Act”) are applicable. The Industrial Tribunal has therefore
th
declared that closure notice dated 27 September, 2014 is illegal
and consequently the termination of the employees has been set
aside. Petitioner is directed to pay wages to the members of the
respondent union from the date of closure with continuity of
service.
3. It was Petitioner’s case before the Tribunal that it had
employed only 99 employees in the workman category and that
therefore, due to lesser strength than 100 employees, the
company was not required to seek prior permission for closure
under the provisions of Section 25-O of the I. D. Act. Petitioner
contended that it had complied with the provisions of Section
25FF and 25-FFF of the I. D. Act. On the other hand, it was the
case of the respondent before the Tribunal that the company had
more than 100 employees in workmen category and, therefore,
closure in absence of prior permission mandated U/Sec. 25-O of
the I. D. Act rendered the same ab-initio void. Therefore, the
issue before the Tribunal was whether the company had 100
employees in workman category or not.
4. Respondent union presented names of 8-9 additional
employees claiming them to be in workman category. It was
Petitioner’s contention they were either not falling in the
workman category and some of them were engaged through
contractor. Evidence was led by both the sides. The Tribunal has
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arrived at a conclusion that petitioner had employed more than
100 workmen thereby necessitating prior permission U/Sec. 25-O
of the I. D. Act for closure. By recording these findings, the
reference has been allowed.
5. Appearing for the petitioner, Mr. Talsania, the learned
senior advocate would submit that the burden of proving that 8-9
additional employees were falling in workman category rested
solely on the shoulders of the respondent union and that they
have failed to discharge the burden. Inviting my attention to
various findings recorded in the impugned award, Mr. Talsnia
would contend that the Tribunal put entire burden of disproving
the contention of the respondent union on petitioner. He would
submit that for the alleged failure of petitioner to rebut the
contentions of the respondent union, the Tribunal has proceeded
to draw an inference that some of the said 09 employees fall
within workmn category. In support of his contention, Mr.
Talsania would rely upon judgment of the Apex Court in the case
of Ganga Kisan Sahkari Chini Mills Ltd. Vs. Jaivir Singh
reported in 2007 III CLR 840 and the decision of this Court in
the case of Vandana Joshi Vs. Standard Chartered Bank Ltd.
reported in 2011(1) LJ Soft 54 .
6. Per contra, Mr. Kaware, the learned counsel appearing for
the respondent union opposes the petition and supports the
award of the Tribunal. He would submit that the respondent
union sufficiently discharged the burden of proving that the
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additional employees fall in the category of workman. Inviting
my attention to the evidence of the management witness, Mr.
Kaware would content that there was an admission to the effect
that some of the employees were working on the post of Operator.
He also invites my attention to the evidence of Mr. Pravin
Vasant Patil, witness examined by the respondent union, to
prove that several employees were working as operators, who
were deliberately excluded from the list of total employees in the
petitioner company. Mr. Kaware would seek to accuse Petitioner
for withholding documents relating to all employees. Inviting my
attention to various findings recorded by the Tribunal, Mr.
Kaware would contend that after considering the evidence on
record, the Tribunal has arrived at a correct finding that
petitioner had more than 100 employees in workman category.
He would therefore urge that no interference is called for in the
impugned award passed by the Tribunal.
7. Rival contentions of the parties now fall for my
consideration.
8. Perusal of the award passed by the Industrial Tribunal
would indicate that it has mainly relied upon evidence of Mr.
Pravin V. Patil, witness examined by the respondent union, for
the purpose of arriving at a finding that some of the additional
employees in workman category were also employed by the
petitioner. The following findings recorded by the Tribunal in
this regard are relevant.
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5 wp 5290.19
“He has denied that Mohan Jawale was working as a Lezor
Cutter Operator. Further, he has denied that Mitesh Pimpale
was working as a Assembler. But he has stated that he was
working in Assembly Deptt. As an Operator. Further, Mr.
Abhishek Mishra is working in Maintenance Deptt. He has no
knowledge about nature of work of Mr. Abhishek Mishra.
Further, Yogesh Tikekar was working in Fixture Maintenance
Deptt. He has denied that all above said employees were in
the employee category. Further Mr. Pravin Kulkarni has not
disclosed the designation and duties performed by above
said employees. Due to working in Maintenance Deptt.,
Assembly Deptt. And Fixture Maintenance Deptt. As an
Operator, it should be presumed that they came within the
category of ‘workmen’ or ‘employee’.”
st
“ But the 1 party has not produced documentary
evidence in respect of nature of duties of Mohan
Jawale, Mitesh Pimpale, Abhishek Mishra, Yogesh
Tikekar and Vijay Kalyani . Further, from the evidence of
Mr. Kulkarni it is crystal clear that the said persons were
working as the operator. Therefore, it should be presumed
that those persons were direct employees/workmen of the
st
1 party.”
(emphasis supplied)
9. The above findings recorded by the Industrial Tribunal
would indicate that the Tribunal has sought to shift the burden
of disproving that the concerned persons were employed as
workman on petitioner. On account of Petitioner’s failure to
prove that they were not working as operators, a presumption is
raised that they fall within workman category.
10. Further findings recorded by the Tribunal in para No. 20 of
the award are as under :
“20. The sum and substance in the above said reported
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decision is that only the designation is not important. But it
is necessary to consider actual work performed by the
person. In the present case the name of Mohan Jawale, is
shown in the administrative staff, as Jr. Executive
st
production. But the 1 party has not disclosed his
nature of duties. Further other employees namely Mitesh
Pimpale, Abhishek Mishra, Yogesh Tikekar and Vijay Kalyani
were working as the operator. Further from the evidence of
Mr. Pravin Patil it appears that above said workmen are not
member of the union. Hence in my view while considering
the strength of the workmen above said person should be
added. Therefore said person being working as the
operator, they should be deemed as the workmen .
Hence the ratio laid down in the above said decision is
nd
helpful to the 2 party workman.”
(emphasis supplied)
11. The Tribunal further proceeded to hold in para No. 25 of
the award as under :
nd st
“But, according to me the 2 party has proved that in the 1
party company more than 100 workmen were working from
September, 2013 till the issuance of closure notice i.e.
September, 2014. Hence, in my view the provisions of
st
Chapter-VB of I. D. Act is applicable to the 1 party
nd
Company. In the present case the 2 party has proved that
st
more than 100 workmen were working in the 1 party
st
company. By way of rebuttal the 1 party has not
adduced sufficient evidence to come to the conclusion
that only 99 workmen were working .”
(emphasis supplied)
12. Perusal of the above findings would make it apparently
clear that the Tribunal has proceeded to treat some of the alleged
employees as workman essentially on account of failure of the
petitioner to lead evidence to prove to the contrary. This, in my
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7 wp 5290.19
opinion appears to be completely contrary to the settled position
of law that the burden of proving that a person is a workman
rests squarely on the shoulders of a person who makes such an
allegation. In this regard reliance of Mr. Talsania on the decision
Ganga Kisan Sahkari Chini
of the Apex Court in the case of
Mills Ltd. (supra) is apposite. In para No. 37 of the judgment,
the Apex Court has held as under :
37. In case any person raises a contention that his status
has been changed from apprentice to a workman, he must
plead and prove the requisite facts. In absence of any
pleading or proof that either by novation of the contract or
by reason of the conduct of the parties, such a change has
been brought about, an apprentice cannot be held to be
workman.
13. The decision in Ganga Kisan Sahkari Chini Mills Ltd.
(supra) has been followed by this Court in the case of Vandanda
Joshi (supra), in which it is held as under :
“The Supreme Court in Ganga Kisan Sahkari Chini Mills
Ltd.’s case (supra) held that the conclusion of the High
Court that the burden of proof lies on the employer to
establish the nature of appointment is contrary to law. The
ratio of the above decisions of the Supreme Court makes it
abundantly clear that it is for the appellant to prove that
she is a workman within the meaning of section 2(s) of the
Industrial Disputes Act, 1947 with reference to the
dominant nature of her duties.”
14. In the light of above exposition of law, it was incumbent
upon the Tribunal to examine whether the Respondent Union
was in a position to prove that any additional employees in
workman category was employed by Petitioner at the time of its
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closure. Instead of doing so, the Tribunal appears to have
recorded findings in favour of the Respondent union of account of
Petitioner’s failure to establish to the contrary. In my opinion,
therefore an error has crept in the impugned award on account of
the Tribunal shifting the burden of disproving that additional
persons were not employed in the capacity of workman on the
shoulders of the petitioner. The impugned award is therefore
liable to be set aside. However since Respondent union has
raised a plea of inability on their part to prove engagement of
100 employees in workman category due to non-disclosure of
documents, the Reference deserves to be remitted to the Tribunal
so as to give one more opportunity to the Respondent Union. This
shall however not be construed to mean that I have recorded any
finding to the effect that there is nondisclosure on the part of
Petitioner. All points in this regard are left open. Therefore,
while remanding the proceedings back to the Tribunal, I deem it
appropriate to give an opportunity to the respondent union as
well as to petitioner to lead additional evidence in support of
their respective contentions. The Tribunal may consider such
additional evidence in addition to the evidence which is already
appearing on record for the purpose of determining whether the
respondent union is in a position to prove that more than 99
employees were employed by the petitioner in capacity as
workmen.
15. I am informed that the petitioner company has restarted
its operations and had offered reemployment to 53 members of
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the respondent union. Mr. Kaware disputes this position and
submits that only 42 members of the respondent union are
offered such reemployment. Mr. Kaware, further submits that
such re-engagement is in the nature of fresh appointment. Mr.
Talsania would submit that out of 53 members of the respondent
union, 24 have accepted the re-engagement, whereas 29
members have refused the offer. The Industrial Tribunal may
consider this position also while deciding the reference afresh. I
therefore proceed to pass following order.
O R D E R
nd
A. The award dated 02 November, 2018 passed by the
Industrial Tribunal, Aurangabad in Reference (IT)
No. 08 of 2014 is set aside and the Reference is
remitted back to the Tribunal and restored on its file for
decision afresh by granting an opportunity to the
Respondent Union to prove that the Petitioner had engaged
more than 100 employees in workman category.
B. Both parties shall have an opportunity to lead additional
evidence, if they so desire.
C. All contentions on merits of the matter are left open. The
Industrial Tribunal, Aurangabad shall decide the reference
without being influenced by any of the observations made
in this order as expeditiously as possible and preferably
within a period of six (06) months from today.
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E. Rule is made absolute in above terms. There shall be no
order as to costs.
, J.
[SANDEEP V. MARNE ]
bsb/Nov. 22
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5290 OF 2019
Siemens Ltd.
Plot No. A-1/2, Five Star
MIDC, Shendra, Aurangabad,
Through its Manager-HR .. Petitioner
Versus
Shendra Siemens Kamgar/Karmachari
Sanghatana, C/o Shri Chandrakant
Mohan, Sarode, Sant Dnyaneshwar
Nagar, House No. 70/1, Hudco,
N-9, M-2, Aurangabad,
Through Secretary. .. Respondent
Shri Sudhir Talsania, Senior Advocate i/by Shri Y. R. Marlapalle,
Advocate for the Petitioner.
Shri B. R. Kaware, Advocate for the Respondent/Sole.
CORAM : SANDEEP V. MARNE, J.
DATE : 14TH NOVEMBER, 2022.
ORAL JUDGMENT :
. Rule. Rule made returnable forthwith. With the consent
of parties taken up for final hearing.
nd
2. By this petition, Petitioner challenges award dated 02
November, 2018 passed by the Industrial Tribunal, Aurangabad
in Reference (IT) No. 08 of 2014. By that award, the Industrial
Tribunal has held that more than 100 employees in workman
category were working in petitioner company and that therefore,
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2 wp 5290.19
provisions of Chapter VB of the Industrial Disputes Act (for short
“I. D. Act”) are applicable. The Industrial Tribunal has therefore
th
declared that closure notice dated 27 September, 2014 is illegal
and consequently the termination of the employees has been set
aside. Petitioner is directed to pay wages to the members of the
respondent union from the date of closure with continuity of
service.
3. It was Petitioner’s case before the Tribunal that it had
employed only 99 employees in the workman category and that
therefore, due to lesser strength than 100 employees, the
company was not required to seek prior permission for closure
under the provisions of Section 25-O of the I. D. Act. Petitioner
contended that it had complied with the provisions of Section
25FF and 25-FFF of the I. D. Act. On the other hand, it was the
case of the respondent before the Tribunal that the company had
more than 100 employees in workmen category and, therefore,
closure in absence of prior permission mandated U/Sec. 25-O of
the I. D. Act rendered the same ab-initio void. Therefore, the
issue before the Tribunal was whether the company had 100
employees in workman category or not.
4. Respondent union presented names of 8-9 additional
employees claiming them to be in workman category. It was
Petitioner’s contention they were either not falling in the
workman category and some of them were engaged through
contractor. Evidence was led by both the sides. The Tribunal has
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3 wp 5290.19
arrived at a conclusion that petitioner had employed more than
100 workmen thereby necessitating prior permission U/Sec. 25-O
of the I. D. Act for closure. By recording these findings, the
reference has been allowed.
5. Appearing for the petitioner, Mr. Talsania, the learned
senior advocate would submit that the burden of proving that 8-9
additional employees were falling in workman category rested
solely on the shoulders of the respondent union and that they
have failed to discharge the burden. Inviting my attention to
various findings recorded in the impugned award, Mr. Talsnia
would contend that the Tribunal put entire burden of disproving
the contention of the respondent union on petitioner. He would
submit that for the alleged failure of petitioner to rebut the
contentions of the respondent union, the Tribunal has proceeded
to draw an inference that some of the said 09 employees fall
within workmn category. In support of his contention, Mr.
Talsania would rely upon judgment of the Apex Court in the case
of Ganga Kisan Sahkari Chini Mills Ltd. Vs. Jaivir Singh
reported in 2007 III CLR 840 and the decision of this Court in
the case of Vandana Joshi Vs. Standard Chartered Bank Ltd.
reported in 2011(1) LJ Soft 54 .
6. Per contra, Mr. Kaware, the learned counsel appearing for
the respondent union opposes the petition and supports the
award of the Tribunal. He would submit that the respondent
union sufficiently discharged the burden of proving that the
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4 wp 5290.19
additional employees fall in the category of workman. Inviting
my attention to the evidence of the management witness, Mr.
Kaware would content that there was an admission to the effect
that some of the employees were working on the post of Operator.
He also invites my attention to the evidence of Mr. Pravin
Vasant Patil, witness examined by the respondent union, to
prove that several employees were working as operators, who
were deliberately excluded from the list of total employees in the
petitioner company. Mr. Kaware would seek to accuse Petitioner
for withholding documents relating to all employees. Inviting my
attention to various findings recorded by the Tribunal, Mr.
Kaware would contend that after considering the evidence on
record, the Tribunal has arrived at a correct finding that
petitioner had more than 100 employees in workman category.
He would therefore urge that no interference is called for in the
impugned award passed by the Tribunal.
7. Rival contentions of the parties now fall for my
consideration.
8. Perusal of the award passed by the Industrial Tribunal
would indicate that it has mainly relied upon evidence of Mr.
Pravin V. Patil, witness examined by the respondent union, for
the purpose of arriving at a finding that some of the additional
employees in workman category were also employed by the
petitioner. The following findings recorded by the Tribunal in
this regard are relevant.
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5 wp 5290.19
“He has denied that Mohan Jawale was working as a Lezor
Cutter Operator. Further, he has denied that Mitesh Pimpale
was working as a Assembler. But he has stated that he was
working in Assembly Deptt. As an Operator. Further, Mr.
Abhishek Mishra is working in Maintenance Deptt. He has no
knowledge about nature of work of Mr. Abhishek Mishra.
Further, Yogesh Tikekar was working in Fixture Maintenance
Deptt. He has denied that all above said employees were in
the employee category. Further Mr. Pravin Kulkarni has not
disclosed the designation and duties performed by above
said employees. Due to working in Maintenance Deptt.,
Assembly Deptt. And Fixture Maintenance Deptt. As an
Operator, it should be presumed that they came within the
category of ‘workmen’ or ‘employee’.”
st
“ But the 1 party has not produced documentary
evidence in respect of nature of duties of Mohan
Jawale, Mitesh Pimpale, Abhishek Mishra, Yogesh
Tikekar and Vijay Kalyani . Further, from the evidence of
Mr. Kulkarni it is crystal clear that the said persons were
working as the operator. Therefore, it should be presumed
that those persons were direct employees/workmen of the
st
1 party.”
(emphasis supplied)
9. The above findings recorded by the Industrial Tribunal
would indicate that the Tribunal has sought to shift the burden
of disproving that the concerned persons were employed as
workman on petitioner. On account of Petitioner’s failure to
prove that they were not working as operators, a presumption is
raised that they fall within workman category.
10. Further findings recorded by the Tribunal in para No. 20 of
the award are as under :
“20. The sum and substance in the above said reported
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6 wp 5290.19
decision is that only the designation is not important. But it
is necessary to consider actual work performed by the
person. In the present case the name of Mohan Jawale, is
shown in the administrative staff, as Jr. Executive
st
production. But the 1 party has not disclosed his
nature of duties. Further other employees namely Mitesh
Pimpale, Abhishek Mishra, Yogesh Tikekar and Vijay Kalyani
were working as the operator. Further from the evidence of
Mr. Pravin Patil it appears that above said workmen are not
member of the union. Hence in my view while considering
the strength of the workmen above said person should be
added. Therefore said person being working as the
operator, they should be deemed as the workmen .
Hence the ratio laid down in the above said decision is
nd
helpful to the 2 party workman.”
(emphasis supplied)
11. The Tribunal further proceeded to hold in para No. 25 of
the award as under :
nd st
“But, according to me the 2 party has proved that in the 1
party company more than 100 workmen were working from
September, 2013 till the issuance of closure notice i.e.
September, 2014. Hence, in my view the provisions of
st
Chapter-VB of I. D. Act is applicable to the 1 party
nd
Company. In the present case the 2 party has proved that
st
more than 100 workmen were working in the 1 party
st
company. By way of rebuttal the 1 party has not
adduced sufficient evidence to come to the conclusion
that only 99 workmen were working .”
(emphasis supplied)
12. Perusal of the above findings would make it apparently
clear that the Tribunal has proceeded to treat some of the alleged
employees as workman essentially on account of failure of the
petitioner to lead evidence to prove to the contrary. This, in my
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7 wp 5290.19
opinion appears to be completely contrary to the settled position
of law that the burden of proving that a person is a workman
rests squarely on the shoulders of a person who makes such an
allegation. In this regard reliance of Mr. Talsania on the decision
Ganga Kisan Sahkari Chini
of the Apex Court in the case of
Mills Ltd. (supra) is apposite. In para No. 37 of the judgment,
the Apex Court has held as under :
37. In case any person raises a contention that his status
has been changed from apprentice to a workman, he must
plead and prove the requisite facts. In absence of any
pleading or proof that either by novation of the contract or
by reason of the conduct of the parties, such a change has
been brought about, an apprentice cannot be held to be
workman.
13. The decision in Ganga Kisan Sahkari Chini Mills Ltd.
(supra) has been followed by this Court in the case of Vandanda
Joshi (supra), in which it is held as under :
“The Supreme Court in Ganga Kisan Sahkari Chini Mills
Ltd.’s case (supra) held that the conclusion of the High
Court that the burden of proof lies on the employer to
establish the nature of appointment is contrary to law. The
ratio of the above decisions of the Supreme Court makes it
abundantly clear that it is for the appellant to prove that
she is a workman within the meaning of section 2(s) of the
Industrial Disputes Act, 1947 with reference to the
dominant nature of her duties.”
14. In the light of above exposition of law, it was incumbent
upon the Tribunal to examine whether the Respondent Union
was in a position to prove that any additional employees in
workman category was employed by Petitioner at the time of its
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8 wp 5290.19
closure. Instead of doing so, the Tribunal appears to have
recorded findings in favour of the Respondent union of account of
Petitioner’s failure to establish to the contrary. In my opinion,
therefore an error has crept in the impugned award on account of
the Tribunal shifting the burden of disproving that additional
persons were not employed in the capacity of workman on the
shoulders of the petitioner. The impugned award is therefore
liable to be set aside. However since Respondent union has
raised a plea of inability on their part to prove engagement of
100 employees in workman category due to non-disclosure of
documents, the Reference deserves to be remitted to the Tribunal
so as to give one more opportunity to the Respondent Union. This
shall however not be construed to mean that I have recorded any
finding to the effect that there is nondisclosure on the part of
Petitioner. All points in this regard are left open. Therefore,
while remanding the proceedings back to the Tribunal, I deem it
appropriate to give an opportunity to the respondent union as
well as to petitioner to lead additional evidence in support of
their respective contentions. The Tribunal may consider such
additional evidence in addition to the evidence which is already
appearing on record for the purpose of determining whether the
respondent union is in a position to prove that more than 99
employees were employed by the petitioner in capacity as
workmen.
15. I am informed that the petitioner company has restarted
its operations and had offered reemployment to 53 members of
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9 wp 5290.19
the respondent union. Mr. Kaware disputes this position and
submits that only 42 members of the respondent union are
offered such reemployment. Mr. Kaware, further submits that
such re-engagement is in the nature of fresh appointment. Mr.
Talsania would submit that out of 53 members of the respondent
union, 24 have accepted the re-engagement, whereas 29
members have refused the offer. The Industrial Tribunal may
consider this position also while deciding the reference afresh. I
therefore proceed to pass following order.
O R D E R
nd
A. The award dated 02 November, 2018 passed by the
Industrial Tribunal, Aurangabad in Reference (IT)
No. 08 of 2014 is set aside and the Reference is
remitted back to the Tribunal and restored on its file for
decision afresh by granting an opportunity to the
Respondent Union to prove that the Petitioner had engaged
more than 100 employees in workman category.
B. Both parties shall have an opportunity to lead additional
evidence, if they so desire.
C. All contentions on merits of the matter are left open. The
Industrial Tribunal, Aurangabad shall decide the reference
without being influenced by any of the observations made
in this order as expeditiously as possible and preferably
within a period of six (06) months from today.
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E. Rule is made absolute in above terms. There shall be no
order as to costs.
, J.
[SANDEEP V. MARNE ]
bsb/Nov. 22
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