The burden of proving the number of employees in the workman category rests on the party making the allegation.

JUDGMENT :

Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing.

2. By this petition, Petitioner challenges award dated 02nd 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, provisions of Chapter VB of the Industrial Disputes Act (for short “I. D. Act”) are applicable. The Industrial Tribunal has therefore declared that closure notice dated 27th 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 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 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 findi