1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE LETTER PATENT APPEAL NO.47 OF 2006 LETTER PATENT APPEAL NO.47 OF 2006 LETTER PATENT APPEAL NO.47 OF 2006 Dockyard Labour Union ...Appellants Dockyard Labour Union ...Appellants Dockyard Labour Union ...Appellants Vs. Vs. Vs. Mazgaon Dock Ltd. ...Respondent Mazgaon Dock Ltd. ...Respondent Mazgaon Dock Ltd. ...Respondent ----- ----- ----- Ms.Tavadia i/b. Mr.M.M.Thorat for Appellant Ms.Tavadia i/b. Mr.M.M.Thorat for Appellant Ms.Tavadia i/b. Mr.M.M.Thorat for Appellant Mr.P.M.Palshikar for Respondent Mr.P.M.Palshikar for Respondent Mr.P.M.Palshikar for Respondent CORAM: R.M.S.KHANDEPARKAR & CORAM: R.M.S.KHANDEPARKAR & CORAM: R.M.S.KHANDEPARKAR & SMT.ROSHAN DALVI, JJ. SMT.ROSHAN DALVI, JJ. SMT.ROSHAN DALVI, JJ. DATED: 3RD APRIL, 2006 DATED: 3RD APRIL, 2006 DATED: 3RD APRIL, 2006 P.C. P.C. P.C. 1. Heard. 1. Heard. 1. Heard. 2. Undisputedly the appellants have not produced 2. Undisputedly the appellants have not produced 2. Undisputedly the appellants have not produced any material or evidence in support of their claim any material or evidence in support of their claim any material or evidence in support of their claim that they were served with the order on 4th September that they were served with the order on 4th September that they were served with the order on 4th September 1984 and on that count they could not report to their 1984 and on that count they could not report to their 1984 and on that count they could not report to their duty. At the same time undisputedly other employees duty. At the same time undisputedly other employees duty. At the same time undisputedly other employees had reported on 1st September 1984 on service of the had reported on 1st September 1984 on service of the had reported on 1st September 1984 on service of the copy of the order. copy of the order. copy of the order. 3. Drawing our attention to the evidence which 3. Drawing our attention to the evidence which 3. Drawing our attention to the evidence which discloses the statement by Ramesh Ganpat Ahire, discloses the statement by Ramesh Ganpat Ahire, discloses the statement by Ramesh Ganpat Ahire, Officer of the Company to the effect that "there is no Officer of the Company to the effect that "there is no Officer of the Company to the effect that "there is no documentary evidence to show that these workmen were documentary evidence to show that these workmen were documentary evidence to show that these workmen were given letters dated 31st August 1984 on that day". It given letters dated 31st August 1984 on that day". It given letters dated 31st August 1984 on that day". It was sought to be argued that once it is established by was sought to be argued that once it is established by was sought to be argued that once it is established by 2 the workmen that the order of 31st August 1984 was not the workmen that the order of 31st August 1984 was not the workmen that the order of 31st August 1984 was not served upon the employees on 31st August 1984, it was served upon the employees on 31st August 1984, it was served upon the employees on 31st August 1984, it was necessary for the Management to establish that the necessary for the Management to establish that the necessary for the Management to establish that the order was in fact served upon the employees on 1st order was in fact served upon the employees on 1st order was in fact served upon the employees on 1st September 1984 for reporting on work and that has not September 1984 for reporting on work and that has not September 1984 for reporting on work and that has not been established by the management and therefore, the been established by the management and therefore, the been established by the management and therefore, the impugned order needs interference in the appeal. We impugned order needs interference in the appeal. We impugned order needs interference in the appeal. We are not at all impressed by this argument. Once the are not at all impressed by this argument. Once the are not at all impressed by this argument. Once the workmen had approached to the Court with the grievance workmen had approached to the Court with the grievance workmen had approached to the Court with the grievance that they could not report to the duty prior to 4th that they could not report to the duty prior to 4th that they could not report to the duty prior to 4th September 1984 as they were served with the copy of September 1984 as they were served with the copy of September 1984 as they were served with the copy of the order only on 4th September 1984, it was primarily the order only on 4th September 1984, it was primarily the order only on 4th September 1984, it was primarily for the workmen to establish the said fact and unless for the workmen to establish the said fact and unless for the workmen to establish the said fact and unless the burden in that regard is discharged by the the burden in that regard is discharged by the the burden in that regard is discharged by the workmen workmen workmen, the onus does not shift upon the employer to the onus does not shift upon the employer to the onus does not shift upon the employer to prove to the contrary. Stating that the letter dated prove to the contrary. Stating that the letter dated prove to the contrary. Stating that the letter dated 31st August 1984 was not served on 31st August 1984 31st August 1984 was not served on 31st August 1984 31st August 1984 was not served on 31st August 1984 itself does not amount to an admission on the part of itself does not amount to an admission on the part of itself does not amount to an admission on the part of the management that the copy of the order was not the management that the copy of the order was not the management that the copy of the order was not served on 1st September 1984. It is to be remembered served on 1st September 1984. It is to be remembered served on 1st September 1984. It is to be remembered that it is not in dispute that other employees did that it is not in dispute that other employees did that it is not in dispute that other employees did reporte on 1st September 1984. Obviously they could reporte on 1st September 1984. Obviously they could reporte on 1st September 1984. Obviously they could not have reported on the duty on 1st September 1984 not have reported on the duty on 1st September 1984 not have reported on the duty on 1st September 1984 unless they were served with the copy of the order on unless they were served with the copy of the order on unless they were served with the copy of the order on or before 1st September 1984. or before 1st September 1984. or before 1st September 1984. 4. In these circumstances it was necessary for 4. In these circumstances it was necessary for 4. In these circumstances it was necessary for the workmen to establish their contention that they the workmen to establish their contention that they the workmen to establish their contention that they were in fact served on 4th September 1984 and were in fact served on 4th September 1984 and were in fact served on 4th September 1984 and 3 therefore, they could not report to the duty prior to therefore, they could not report to the duty prior to therefore, they could not report to the duty prior to 4th September 1984. Considering these facts we do not 4th September 1984. Considering these facts we do not 4th September 1984. Considering these facts we do not find any illegality or infirmity in the impugned order find any illegality or infirmity in the impugned order find any illegality or infirmity in the impugned order and it does not require any interference. Hence, the and it does not require any interference. Hence, the and it does not require any interference. Hence, the appeal is rejected. appeal is rejected. appeal is rejected. (SMT. ROSHAN DALVI, J.) (R.M.S.KHANDEPARKAR,J.) (SMT. ROSHAN DALVI, J.) (R.M.S.KHANDEPARKAR,J.) (SMT. ROSHAN DALVI, J.) (R.M.S.KHANDEPARKAR,J.)