1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.699 OF 2007 NO.699 OF 2007 NO.699 OF 2007 in in in WRIT WRIT WRIT PETITION NO.1005 OF 2004 PETITION NO.1005 OF 2004 PETITION NO.1005 OF 2004 Mukand Staff & Officers Association .. Appellant Vs. Mukand Limited .. Respondents Mr.Susheel Mhadeshwar i.b.Ms.Ranjana Todankar for for Appellant Mr.P.K.Rele, Sr.Advocate with Mr.R.P.Rele i.b.Mr.Piyush Shah for Respondents CORAM CORAM CORAM : R.M.S.KHANDEPARKAR AND : R.M.S.KHANDEPARKAR AND : R.M.S.KHANDEPARKAR AND A.V.NIRGUDE, A.V.NIRGUDE, A.V.NIRGUDE, JJ JJ JJ DATED DATED DATED : 17th April, 2008 : 17th April, 2008 : 17th April, 2008 P.C. P.C. P.C. 1. This appeal arises from the judgment and order dated 22nd August, 2007 passed in Writ Petition No.1005 of 2004 by the learned Single Judge. 2. By the impugned judgment, the petition filed by the appellants herein against the order dated 26th September, 2003 of the Industrial Tribunal Mumbai has been dismissed. The Industrial Tribunal had rejected the contention of the appellant that the burden to prove that the appellant is not a workman would lie upon the respondent-employer. The said view has been 2 upheld by the learned Single Judge. 3. Referring to the decision of the Division Bench in Seth Jejeebhoy Dadabhoy Charity Funds & 3 Seth Jejeebhoy Dadabhoy Charity Funds & 3 Seth Jejeebhoy Dadabhoy Charity Funds & 3 ors ors ors vs Farokh Noshir Dadachanji reported in vs Farokh Noshir Dadachanji reported in vs Farokh Noshir Dadachanji reported in 2005-III-LLJ 2005-III-LLJ 2005-III-LLJ page 716 page 716 page 716 learned Advocate appearing for the appellant submitted that in view of the fact that the initial relationship of employer and employee being not in dispute and only dispute which is sought to be raised on behalf of the respondents that the members of the appellant were not workmen within the meaning of section 25 of the Industrial Disputes Act, the burden to prove the same squarely lies upon the respondent-employer and this aspect has been totally ignored by the learned Single Judge. 4. Perusal of the impugned judgment clearly discloses that the learned Single Judge after taking into consideration all the relevant decisions on the point in issue including the decision sought to be referred by the learned counsel for the appellant has arrived at a clear finding that prima facie the burden lies upon the workmen to establish their claim. 3 5. The matter had come before the Industrial Tribunal pursuant to the reference of dispute relating to the termination of the services of the members of the appellant. In answer to the claim of the appellants, the respondents have specifically stated that the employees whose names were mentioned under item (1) of the Schedule to the reference were not workmen as contemplated under section 2 (s) of the Industrial Disputes Act, 1947 since they were drawing wages exceeding Rs.1600/- per month and were employed in supervisory/managerial/administrative capacities and exercised, either by the nature of the duties attached to the office or by reason of the powers vested in them, functions mainly of a supervisory/managerial nature and in any event, they were not employed in skilled, unskilled, manual, clerical, technical or operational work. In other words, the status of the members of the appellants as the workmen within the meaning of the said expression under section 2 (s) of the said Act was specifically disputed and denied by the respondents. Once the status of the claimants as that of the workmen is denied, it will be primarily for such claimants to establish with the necessary and basic materials which could disclose 4 such status and only thereupon, the onus will shift upon the employer to disprove the claim. In fact, that is the ratio of the decision of the Apex Court in Bank of Baroda vs Ghemarbhai Bank of Baroda vs Ghemarbhai Bank of Baroda vs Ghemarbhai Harjibhai Harjibhai Harjibhai Rabari reported in 2005 AIR SCW Weekly Rabari reported in 2005 AIR SCW Weekly Rabari reported in 2005 AIR SCW Weekly 1817. 1817. 1817. The Apex Court therein has clearly observed that the claimant aproaching the Court as workman in the said case had produced the necessary evidence to estabish that he was driver of the car belonging to the bank and during the relevant period had worked for more than 240 days and had also produced 3 vouchers which showed that he had been paid certain sums of money towards his wages and the said amount had been debited to the account of the bank. As against the said evidence, the bank employer had not produced any evidence to rebut the evidence produced by the workman. That is not the situation in the case in hand. In fact, in the case in hand even before going to trial, the appellants had been disputing their obligation to discharge the initial burden which the claimant had to discharge to establish that he is a workman. Being so, the Industrial Tribunal was justified in rejecting the said claim on the part of the appellants and there was no illegality committed in that regard by the 5 Industrial Tribunal and therefore, the learned Single Judge was justified in rejecting the petition. We find no case for interference in the impugned judgment. 6. Hence, Appeal is summarily dismissed. (A.V.Nirgude, (A.V.Nirgude, (A.V.Nirgude, J) J) J) (R.M.S.Khandeparkar, (R.M.S.Khandeparkar, (R.M.S.Khandeparkar, J) J) J)