Siemens Ltd Through Its Manager Hr vs Shendra Siemens Kamgar / Karmachari Sanghatana Through Secretary

2026:BHC-AUG:21102
WP No. 5290.2019
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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 – It’s Manager-HR
VERSUS
Shendra Siemens Kamgar / Karmachari Sanghatana,
C/o. Shri. Chandrakant Mohan Sarode,
Sant Dnyaneshwar Nagar, House No. 70/1,
Through – It’s Secretary
*
Advocate for Petitioner : Mr. Sudhri Talsania, Senior Counsel i/b
Mr. Yugant R. Morampalle
Advocate for Respondent : Mr. B. R. Kaware
*
WITH
CIVIL APPLICATION NO. 9297 OF 2019
Shendra Siemens Kamgar / Karmachari Sanghatana,
(Through its Authorized Signatory)
C/o. Shri. Subhash Haibati Kumbhar
Plot No. 13, Meenatai Thakare Nagar,
Cidco N-2, Aurangabad, 431003
VERSUS
M/s. Siemens Limited
(Through its Factory Incharge)
Plot No. A-1/2, Five Star MIDC Shendra,
Tq. Dist. Aurangabad
*
Advocate for Applicant : Mr. B. R. Kaware
*

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CORAM : SIDDHESHWAR S. THOMBRE, J.
th
Date : 6 May, 2026
JUDGMENT :-
1. Rule . Rule made returnable forthwith. Heard finally
with the consent of the parties at the stage of admission.
2. The petitioner has challenged the judgment and order
dated 02.11.2018 passed by the learned Industrial Tribunal in
Reference (IT) No. 08 of 2014, whereby the reference forwarded
by the Labour Officer came to allowed.
3. The Petitioner is a Public Limited Company engaged in
the manufacturing of bogie frames for the Indian Railways and is
an ‘industry’ within the meaning of Section 2(j) of the Industrial
Disputes Act, 1947 (for short, “the Act”). The Respondent is a
registered Trade Union representing the workmen who were in the
employment of the Petitioner.
4. The Petitioner’s case is that it employed exactly 99
workmen. On 14.08.2014, the Petitioner issued a notice
discontinuing operations due to operational difficulties, effective
from 16.08.2014. Wages were admittedly paid to the 99 workmen

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until 29.09.2014. Subsequently, on 27.09.2014, the Petitioner
served a 60-day notice of its intention to close the undertaking
under Section 25-FFA of the Act, effective from 27.11.2014, and
paid closure compensation to all 99 workmen.
5. A dispute arose when the Respondent Union filed a
Charter of Demands. Following a failure report from the
Conciliation Officer, the matter was referred to the Industrial
Tribunal, Aurangabad. The primary point of contention was whether
the Petitioner employed 100 or more workmen, which would trigger
the mandatory prior permission requirements under Chapter V-B of
the Act.
6. The Industrial Tribunal allowed the reference, holding
that the Petitioner had employed more than 100 workmen. This
Court previously remanded the matter, but the Hon'ble Supreme
Court, in SLP No. 2776/2023 and restored this writ petition.
Consequently, the petition is now heard finally on its merits.
7. Mr. Talsania, learned Senior Counsel for the Petitioner,
submits that the Tribunal’s finding is perverse and contrary to the
settled principles of law regarding the burden of proof. He contends

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that the Petitioner produced the Muster Roll (Exh. C-20) and
Attendance Records (Exh. C-24) for the administrative staff, which
clearly established a headcount of 99 workmen.
8. The learned Senior Counsel strenuously argues that the
burden of proof lies squarely on the party asserting a fact. Since
the Respondent Union alleged that the headcount exceeded 100,
the onus was on the Union to substantiate this with evidence. IN
support of its contentions, the learned Senior Counsel for petitioner
relief upon following judgments :-
➢ Shankar Chakravarti Vs. Britannia Buiscuit Co.Ltd.
[(1979)3 SCC 371]
➢ Voltas Ltd. Vs. Umed Singh Bajetha [2009(1) LLJ 576]
➢ Bajaj Auto Ltd. Vs. Ashok Dnyanoba Dhumal [2006(1)
Mh. L. J. 147]
The learned Senior Counsel placed reliance on the
decisions of the Hon’ble Apex Court Shankar Chakravarti v.
Britannia Biscuit Co. Ltd., specifically Paragraphs 32 and 33, to
argue that the burden cannot be shifted to the employer to prove a
negative.

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9. It is further submitted that the Tribunal erred in
classifying maintenance and assembly staff as "workmen" based
solely on the cross-examination of the Petitioner’s witness. The
learned Counsel argues that these responses were merely answers
to suggestive queries and did not constitute legal admissions. He
maintains that the status of a "workman" must be determined by
the nature of duties, which the Tribunal failed to analyze.
10. The learned Senior Counsel for Petitioner highlights that
during the pendency of this petition, 54 out of 99 workmen have
already accepted fresh appointment orders and resumed duties.
While the Petitioner offered re-employment to the remaining
members, the settlement failed as the Respondent Union insisted
on back wages and continuity of service, which is not feasible given
the closure under Section 25-FFA.
11. Mr. Kaware, learned counsel appearing for the
Respondent Union, vehemently opposed the petition, submitting
that the Petitioner had deliberately suppressed the actual number
of employees to circumvent the statutory requirement of seeking
prior permission for closure from the appropriate government. It is
the Respondent's specific case that the Petitioner employed more

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than 100 workmen, thereby attracting the stringent provisions of
Chapter V-B of the Industrial Disputes Act.
12. Learned counsel submitted that while the Respondent
Union represents 99 permanent workmen, there were an additional
28 staff members who, by the nature of their duties, squarely fall
within the definition of "workman" under Section 2(s) of the Act.
Although these 28 staff members were not members of the Union,
they must be counted toward the total strength of the industrial
establishment. Furthermore, the Respondent in its evidence
affidavit clearly identified certain "ex-workmen" whose inclusion
pushes the total headcount well beyond the threshold of 100.
13. It is contended that the notice dated 29.09.2014,
expressing an intention to effect closure with effect from
27.11.2014, is a colorable exercise of power and in flagrant
violation of Section 25-O (Chapter V-B) of the Act. The Respondent
Union challenged this illegal closure, leading the appropriate
Government to refer the dispute to the Industrial Tribunal with a
specific issue for adjudication: “Whether the Petitioner company
employed one hundred or more than one hundred workmen on the
date of the alleged closure?”.

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14. Learned counsel invited the my attention to the fact
that the Petitioner failed to comply with the Tribunal’s order dated
10.07.2015 regarding the production of documents. Specifically,
the Petitioner failed to produce the Wages Register despite a notice
for production. Mr. Kaware further argued that an adverse
inference must be drawn against the Petitioner for withholding
primary documentary evidence. He submitted that nine specific
employees from the administrative staff were in addition to the 99
workmen, and their names were deliberately omitted from the
records to artificially restrict the headcount.
15. Reliance was placed on the written notes of arguments
and the oral testimony of the Union's witnesses to assert that the
Respondent has successfully discharged its burden of proving that
the total strength exceeded 100. Counsel emphasized that since
the Petitioner failed to produce the best evidence (the complete
Wages Register), the Tribunal was justified in concluding that the
Petitioner’s records were unreliable. In support of his contentions,
the learned counsel for respondent placed reliance on following
judgments :-
➢ Raj Kumar Dixit Vs. M/s. Vijay Kumar Gauri Shankar,
[2015(2) CLR 573]

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➢ Shreedhar Govind Kamerkar Vs. Yashwant Govind
Kamerkar and Ors. [(2006)13 SCC 48]
16. Finally, it was submitted that the Hon’ble Supreme
Court, while setting aside the previous remand order of this Court,
effectively restored the matter for a decision on the existing record.
The Industrial Tribunal, after a thorough appreciation of both oral
and documentary evidence, arrived at a finding of fact that is
neither perverse nor illegal. Consequently, learned counsel prayed
for the dismissal of the Writ Petition.
17. Having heard the learned counsel for the respective
parties at length and after perusing the record, the core issue for
determination is whether, at the time of the closure notice, the
Petitioner establishment employed 100 or more workmen, thereby
attracting the rigours of Chapter V-B of the Industrial Disputes Act,
1947.
18. To adjudicate this controversy, it is necessary to refer
to the relevant statutory provisions. Section 25-K (Chapter V-B)
mandates that the provisions of this chapter apply to an industrial
establishment in which not less than one hundred workmen were
employed on an average per working day for the preceding twelve

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months. Further, Section 25-O prescribes the procedure for closing
down an undertaking, requiring prior permission from the
appropriate Government. Conversely, for establishments employing
fewer than 100 workmen, Section 25-FFA (Chapter V-A) applies,
requiring a mere sixty days' notice of the intention to close.
19. The Petitioner contends that it employed only 99
workmen and was thus governed by Section 25-FFA. However, the
Respondent Union asserts that the Petitioner artificially suppressed
the headcount by excluding staff members and indirect workmen
who fall within the definition of "workman" under Section 2(s) of
the Act.
20. This Court has scrutinised the evidence led before the
Industrial Tribunal. Records reveal that the Respondent filed an
application for the production of documents, including the Wages
Register and specific muster rolls. Despite the Tribunal's order
dated 10.07.2015, the Petitioner failed to produce the
comprehensive Wages Register. In industrial adjudication, where
the employer is the custodian of the best evidence regarding
employment records, the non-production of such vital documents
despite a court order warrants the drawing of an adverse inference.

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21. The evidence affidavit of the Respondent provides a
granular breakdown of the workforce. The details of employees
employed by the Company during the period of September 2013
onwards are under :-

22. The Petitioner’s witness, Mr. Pravin Kulkarni was cross-
examined by the respondent. The relevant portion of his cross-
examination is reproduced hereunder :-
“10. It is not true to say that, in organization chart name of all
employees were not mentioned. Names of Jiten Karmarkar,
Ashosh Deshpande are not mentioned in the organization chart

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at page No. 95 at Exh. C-6. It is not true to say that, Mr.
Mohan Jawale was working as Lezor cutting operator. He was
working till December-2013. We have not produced his
appointment letter. Kari Ansari and Rahul Kulkarni were
working as a Store Keeper. It is not true to say that, Nitesh
Pimpale was working as a assembler. He was working in
assembly department as a operator. It is not true to say that,
Abhishek Mishra was working in Maintenance Department. I
am unable to tell his nature of work. It is not true to say that,
Vijay Kalyani was working in Electrical Maintenance
Department. H e was working in the same department as a Jr.
Executive. Yogesh Tokekar was working in Fixture
Maintenance Department. It is not true to say that, his nature
of work was in the employee category. We have not produced
their appointment letters of documents in respect of their
nature of duties. It is not true to say that, all above said 9
employees were working as a employee on the machine.
23. The witness admitted to the presence of staff and
indirect workers. Furthermore, it has come in evidence that
individuals such as Mr. Mohan Jawale (Lezor Cutter Operator) and
others like Yogesh Tikekar were categorized as "administrative
staff" to exclude them from the workman tally. However, the
Petitioner failed to disclose the actual nature of their duties. In the
absence of evidence proving that these employees performed
purely managerial or supervisory functions as contemplated under
the exceptions to Section 2(s), the Tribunal was justified in treating
them as workmen.
24. As regarding the contention of the Petitioner that the
burden of proof lay upon the Respondent, this Court finds that the

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Respondent Union has successfully discharged its initial burden by
leading oral evidence and providing a detailed list of employees.
The burden then shifted to the Petitioner to rebut this with
documentary evidence (Wages Register/Muster Rolls), which it
failed to do.
25. This Court finds that the Respondent has proved that
more than 100 workmen were engaged with the Petitioner
establishment. The Petitioner's attempt to restrict the number to
99 appears to be a calculated move to evade the requirement of
seeking Government permission under Section 25-O. The reasoning
recorded by the Industrial Tribunal is based on a sound
appreciation of the evidence and the admissions made during
cross-examination.
26. Consequently, the findings of the Industrial Tribunal
cannot be termed as perverse or illegal. The closure effected
without complying with Chapter V-B is void ab initio. As such, no
case is made out to cause interference in the impugned order.
Hence, I am not inclined to allow the writ petition. Accordingly,
following order is passed :

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ORDER
(I) The Writ Petition is devoid of merits and is hereby dismissed .
(II) The findings and the order passed by the Industrial Tribunal
are upheld. No order as to costs.
(III) Rule stands discharged .
(IV) Resultantly, pending civil applications, if any, also stand
disposed of.
(SIDDHESHWAR S. THOMBRE, J.)
ORDER
27. Upon the pronouncement of this judgment, the learned
counsel for the petitioner moved an oral request seeking a stay on
the execution and implementation of this order for a period of six
weeks.
28. The learned counsel for the respondent strenuously
opposed the request, submitting that the matter has been pending
since 2019 and further delay would be prejudicial.
29. Having considered the aforesaid submissions, I find
that no interim relief was granted during the pendency of this
petition. Furthermore, as the employees concerned are currently

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out of service, I am not inclined to grant a stay. Accordingly, the
petitioner's request is rejected.
(SIDDHESHWAR S. THOMBRE, J.)
Omkar Joshi