1 wp1120-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1120 OF 2010 Bharatiya Kamgar Sena ..Petitioner Vs. Maharashtra Samarth Kamgar Sanghatana and others ..Respondents Mr.S.K.Talsania, Senior Advocate i/b.Mr.A.H.Fatangare, for petitioner. Mr.L.R.Mohite, for respondent no.1. Mr.K.S.Bapat i/b.Mr.Desai & Desai, for respondent no.2 ......... CORAM: D.K.DESHMUKH & R.G.KETKAR, JJ. DATE : 10th AUGUST, 2010. P.C. : Rule. Rule made returnable forthwith by consent of the parties. 2] The order which is impugned in this petition reads as under :- “ Heard. Perused the material on record & citation. Investigation Officer Report not received till today and it is informed to me that it is still going on. Considering the ratio laid down in the cited decision, I.O. is directed to find out the common membership and then to ask the question to the common members as suggested in the application by adding 2 wp1120-10.sxw the question with which union the member wants to continue their membership. Hence this order.” 3] We have heard learned counsel for both the sides. There is no grievance made by both the sides about the first part of the impugned order which reads as under:- “Heard. Perused the material on record & citation. Investigation Officer Report not received till today and it is informed to me that it is still going on. Considering the ratio laid down in the cited decision, I.O. is directed to find out the common membership”, The grievance is in relation to the later part of the order which reads as under:- “........and then to ask the question to the common members as suggested in the application by adding the question with which union the member wants to continue their membership.....” 4] So far as the part of the order about asking question to the common members as to with which union they wants to continue is concerned, the learned counsel appearing for the respondent states that he never asked for this part of the order. Therefore, by consent of the parties, that part of the order is set aside. 3 wp1120-10.sxw 5] So far as that part of the order which permits the Investigation Officer to ask the question to the common members is concerned, it is modified as under :- (i) So far as those workers whose names are found in the register of both the Unions, the Investigation Officer may record their statement and submit the report to the Industrial Court. (ii) Both the Unions shall be at liberty to apply to the Industrial Court to summon the persons whose statements have been recorded as witnesses. In case such an application is made, it shall be decided by the Industrial Court in accordance with law. (iii) It is made clear that it is open for both the sides to contend before the Industrial Court that while deciding the question of recognition, the names found common in both the registers are to be ignored. 6} Rule made absolute. No order as to the costs. [R.G. KETKAR, J.] [D.K.DESHMUKH, J.]