1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR L. P. A. NO. 248 OF 2011 IN WRIT PETITION NO. 1669 OF 2009 Divisional Controller M.S.R.T.C. Nagpur Vs. Abdul Rashid Abdul Rahman ........................................................................................................................................................................ Office Notes, Office Memoranda of Coram, appearances, Court orders or directions Court's or Judge's Order and Registrar's orders ........................................................................................................................................................................ Shri V. G. Wankhede Adv for petitioner. Shri Dandekar Adv for respondent. CORAM: B. P. DHARMADHIKARI & A. P. BHANGALE JJ. DATED: 7th DECEMBER, 2011. . Heard Shri Wankhede learned counsel for the petitioner, Shri Dandekar learned counsel for the respondent. Perused the cross examination of respondent. The cross examination shows that annexure filed along with application has not been proved and respondent was not even knowing its contents. He has stated that he received that document from the Union. No office bearer of Union has been examined to substantiate the correctness of calculations therein. Labour Court appears to have accepted the part of claim made therein only because of the omission on part of appellants to produce the accounts and calculation. 2 During hearing it is admitted position that no notice to produce documents was issued by workman. Shri Wankhede learned counsel has further stated that after adjudication by Labour Court the appellants have worked out entitlement of respondent and that amount works out to approximately Rs. 20,000/-. Learned Single Judge of this Court has relied upon provisions of Clause 49 of the settlement of 1956 and then looked into the arguments of present appellant about burden of proof. However, this cross examination of respondent or its effect has not been gone into. Under Section 33(C)(2) of the Industrial Disputes Act, Labour Court is competent to summon documents and to compute the claim. That has not been done in present case. Order dated 27.07.2010 passed by learned Single Judge of this Court in Writ Petition No. 5498 of 2009 has been pointed out to show that there the matter was remanded back in similar situation. Shri Dandekar learned counsel contends that he appeared for that respondent also and as facts were different after accepting costs of Rs.10,000/-, the order of remand was accepted. In this situation as the basic burden to show his 3 entitlement to particular amount was upon respondent, we are not in a position to sustain the impugned order. However, it can be held that the subsequent computation undertaken by appellant itself shows that amount on that count was not paid to respondent. Hence, we direct the appellant-employer to deposit provisionally amount of Rs. 1,00,000/- with the office of Labour Court within 8 weeks from today. Out of the amount so deposited the Labour Court shall permit the respondent to withdraw the amount to which he is found entitled by present appellant. Such withdrawal shall not prejudice the rights and contentions of present respondent in any way before the Labour Court. Labour Court shall then proceed further to ascertain and compute his entitlement under Section 33(C)(2) in accordance with law and shall call upon the appellant-employer to produce relevant documents to substantiate its calculations. Shri Dandekar learned counsel states that in view of subsequent development, appellant should also be permitted to place the documents on record and lead additional evidence. Labour Court shall permit the parties opportunity to place additional documents on record and thereafter to lead evidence if any. 4 Subject to this impugned orders dated 29.09.2007 in IDA Case No. 66 of 2005 and order dated 07.05.2010 in Writ Petition no. 1669 of 2009 are hereby quashed and set aside. Letters Patent Appeal is partly allowed. No costs. JUDGE JUDGE svk