1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 890 OF 2010. (The Yavatmal District Forest Labour and another .vrs. Industrial Court, Yavatmal and others.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : JULY 08, 2010. Heard finally by consent of Mrs. R.D. Raskar, learned counsel for petitioners, Shri Jaiswal, learned A.G.P. for respondent no.1 and 2 and Shri D.C.R. Mishra, learned counsel for respondent no.3. This Court in earlier round of litigation remanded the matter back to Labour Court on 08.10.2008 vide its order in Writ Petition No. 2526/2008, to find out whether present respondent no.3 is or is not a workman. Respondent no.2 then moved an application before the Labour Court and sought direction that his employer should first lead evidence on the issue. By a reasoned order on 17.02.2009 the Labour Court rejected that request. Thereafter respondent no.3 lead 2 his evidence and examined one more witness. The present petitioners cross examined them. After appreciation of this evidence the Labour Court delivered its judgment on 08.05.2009 and held that the present respondent no.3 is not a workman, as defined under Section 2-S of the Industrial Disputes Act. This judgment of Labour Court was questioned by respondent no.3 in Revision under Section 44 of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practice Act, 1971 in Revision No. 17/2009. Vide judgment dated 28.12.2009 the Industrial Court has allowed his revision and has held that respondent no.3 is workman. This finding is being questioned by the employer before this Court in present Writ Petition. Mrs. Raskar, learned counsel appearing for petitioners/employer contend that it was not necessary for the employer to lead any evidence, and employer could have legitimately relied upon the evidence which has come on record to show that respondent no.3 is not a workman. As that was done and accepted by the Labour Court, the Industrial Court could not have interfered with the matter merely because of its findings that the burden to prove was upon the employer. She contends that liberty given by this 3 Court was not sufficient to determine the question of burden of proof, after the evidence has come on record. Shri Mishra, learned counsel on the other hand has relied upon the order passed by the High Court to urge that the liberty given was to petitioner to prove that respondent no.3 is not a workman. Learned A.G.P. has also supported the impugned order. I do not find it necessary to delve into more details of this controversy. The petitioners came before this Court in earlier round and therefore, the liberty was given. In exercise of that liberty, evidence was led before the Labour Court. Present respondent no.3 had moved application calling upon the petitioners to lead evidence first and Labour Court rejected that application. That orders was not questioned by him and he adduced the evidence accordingly, and it is therefore obvious that the finding whether respondent no.3 is or is not a workman needs to be recorded on the basis of the evidence which has come on record. For not leading any evidence, adverse inference if any, at the most could have been drawn against the petitioners. The Industrial Court therefore, could not have decided the controversy only because the alleged burden is not 4 discharged by the petitioners. The Industrial Court ought to have evaluated the evidence on record on merits to find out whether the application of mind thereto by the Labour Court was in accordance with law or not. The impugned judgment of Industrial Court does not show any such exercise. With the result, the impugned judgment of Industrial Court dated 28.12.2009 in ULP Revision No.17/2009 is quashed and set aside and the said Revision is restored back to its file to find out whether on the strength of evidence the finding recorded by the Labour Court can be sustained or not. As the matter is now being remanded, the learned Member of the Industrial Court shall decide the revision as early as possible and in any case by 31st September, 2010. For that purpose, the parties to appear before the Industrial Court on 22.07.2010 and to abide by is further instructions in the matter. Writ Petition is allowed in the aforesaid terms. Rule accordingly. No costs. JUDGE Rgd.