The Senior Divisional Commercial Manager, South East Central Railway Vs. the General Secretary, Parcel Porter Sanghatan, S.E. Railway, Nagpur Division - Court Judgment

Excerpt:
- section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - they are appointed as licensed porters, but their duties are different from the licensed porters and they are working in the parcel office as parcel porters like regular railway parcel porters since 1994 onwards. 8. heard learned counsel for the petitioner as well as respondent union at length on number of dates. seen the entire record of this court as well as of the tribunal. therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination of his service. in order to entitle the court to draw inference unfavourable to the party, the court must be satisfied that evidence is in existence and could have been proved. there is a failure on the part of the petitioner railways in not producing all the relevant records before the tribunal in fairness and help the tribunal to adjudicate the dispute effectively. the practice and procedure required to be followed in the matter of proof of documents and the other aspects which i have already pointed out has not been followed by the parties as well as the tribunal. it is the case of the petitioner railways itself that they provided license to the licensed porters, recovered security deposits as well as license fee regularly, has power to cancel the license in case of misconduct or as the case may be. the manual work is performed by the licensed porters as well as parcel porters and this is the systematic activity of cooperation between the employer and the workmen.a.b. chaudhari, j.1. rule. returnable forthwith. heard finally by consent of parties.2. the petitioners south east central railway, nagpur, has taken exception to the judgment and award dated 20th march, 2008, passed by presiding officer, c.g.i.t - cum - labour court, nagpur in case no. cgit ngp 36/42.facts3. appropriate government had made two references containing two lists of 63 and 143 workmen with the cgit cum labour court (for brevity hereinafter referred to as 'tribunal'). upon consolidation thereof, the tribunal took up the same for adjudication. the gist of the reference by and large was whether these persons claiming to be parcel porters were workman under section 2(s) of the industrial disputes act and whether they could be regularized as railway employees. the union which represented the workmen, namely the general secretary, parcel porter sanghatana, s.e. railway, nagpur division, motibag, nagpur-12, filed its statement of claim through one manish saxena, in two sets with almost the same pleadings and who had also given his evidence. it was the case of the union that railways undertake a systematic activity for production, supply or distribution of goods or services with a view to satisfy the human wants or wishes and with a motive to make gain & profit. its members who have been working as parcel porters are, therefore, workmen. according to them, management of railways carries the business of transportation of goods parcels all over the country and it also earns profit therefrom. parcel porters are engaged to load and unload, seal & unseal the parcels. as this work is of perennial nature, the union made a demand for their absorption on regular basis. it was then claimed that on 8.8.1994, a public notification was issued for inviting persons for interview and the appointments were made as per the procedure laid down in the railway recruitment regulation as licensed porters. but the duties they performed were of loading & unloading, sealing and unsealing of the railway materials etc. the list of 151 parcel porters working at itwari, kamptee, bhandara, tumsar road, tiroda, gondia and rajnandgaon showed the names of all parcel porters. they are appointed as licensed porters, but their duties are different from the licensed porters and they are working in the parcel office as parcel porters like regular railway parcel porters since 1994 onwards. initially they were allowed to work only for 4 hours but after may, 1997, they worked for 8 hours. affirmatively putting their case, they averred that neither they had paid any monthly license fees, nor they had signed any agreement, nor they were allotted any badge or buckle, nor they were supplied red coloured uniform so that they could be termed as hamal or licensed porter. on the contrary, as per the muster roll, their names were maintained on record and they had completed 120 days and thus they are entitled to temporary status.4. the petitioner railway filed their written statement and opposed the claim made by the union and averred that all these members of the union in fact were appointed as licensed porters and that was in terms of the agreement executed between the parties and the licensed porters numbering 388 are working on various stations in nagpur division since 1994. they being the persons having entered into an agreement and looking to the nature of work viz. that they have to carry the luggage of passengers and recover their remuneration as fixed by the railways from the passengers. no responsibility is taken by railways to pay them any remuneration and on the contrary, they are required to take license to work on the railway platform by paying license fees and to work under the control of the railways. pursuant to the notification dated 8.8.1994, these members were appointed as licensed porters and not as parcel porters and they are, therefore, not workmen within the meaning of section 2(s) of the industrial disputes act and the reference that was made itself was not maintainable and liable to be dismissed. the members of union had signed and executed the agreement with railway administration and also paid security deposits and have been continuously paying the license fees to the railway administration and they have no locus standi to initiate such a reference, they being the licensed porters. it was then stated that they were given the work for 4 hours daily and alternatively and subsequently their working hours were increased to 8 hours and the wages are being paid to them in accordance with the notification issued by the ministry of labour. it is then stated that they are purely performing the function as licensed coolies but they are being utilized on rotational basis with a view to provide work to each licensed porter in a month to avoid disparity. the petitioner thus opposed the claim and stated that question of regularization of licensed porters or hamal as railway employees in the above background could not arise.5. parties thereafter went on trial. respondent union examined manish saxena, rajesh supatkar, bhaurao selokar, jeetendra chouhan, jitendra rangari, sunil kumar yadav, arun ramlal wanjari, nagesh gajbhiye, sanjay jinde and several other members of the union. the petitioner examined k.v. ramanna, a.vinayakam while one shri r.mishra was examined as a court witness. the tribunal thereafter heard parties and decided the reference in the affirmative. hence this writ petition.6. submissions by the petitioner.in support of the writ petition, mr. a.m.gordey, learned counsel for the petitioner made the following submissions.(1) looking to the nature of the work performed by the members of the respondent union, and the fact that no remuneration was paid by the railways for the work done by them and on the basis of agreements with them and payment of license fees, they are allowed to work on the railway platform to carry the luggage of the passengers and recover their remuneration as fixed by the railways, in no case it could be said that they are 'workmen' within the meaning of section 2(s) of the industrial disputes act.(2) the members of respondent union having been admittedly appointed as licensed porters, vide paragraph 14 of the statement of claim, the union could not be allowed to claim that they were appointed and working as parcel porters. there is no provision for regularizing the services of licensed porters or absorbing them permanently in class iv category or make them railway employees, nor any such policy has been pointed out to the court. the recruitment for parcel porters and the procedure to appoint them is totally different from appointing the licensed porters and since none of them were appointed as parcel porter, the very foundation of the reference was misconceived.(3) it is true that licensed porters were engaged to perform the work of parcel porters according to the exigencies of service and were also paid minimum wages for the work done, initially for 4 hours and subsequently for 8 hours. but then this was done with a view to provide the work to licensed porters in addition and that too by rotation and for a few days with a view not to distribute the work with disparity. but then that was done with the aid of policy of the railways purely from the social angle of making them earn their livelihood. that cannot be taken undue advantage of by the union.(4) all the licensed porters who claimed regularization did not prove the fact that they worked for 240 days or 120 days, as the case may be, either by oral or documentary evidence and on the contrary, pointing out from the cross examination of manish saxena, mr. gordey submitted that he admitted to have not completed 240 days. in the absence of evidence about each & every licensed porter completing 240 days, the tribunal could not have even thought of granting relief to the members of the union in one stroke. no legal right was spelt out by the union in the matter of regularization and the tribunal could not have drawn the conclusions which are not borne out of record. the initial burden of proof which was required to be discharged by the union about their claim has not been discharged and the tribunal committed an error in throwing the burden of proof on the petitioner about the members of the union working as licensed porters on regular basis.(5) the nature of work admittedly being of casual in nature, they were not entitled to be regularized as claimed by them. pointing out my attention to the findings recorded by the tribunal, the learned counsel for the petitioner argued that these findings are not based on any evidence or materials on record, but are based on surmises and conjectures. the petitioner has produced a receipt by way of example in respect of the license fee recovered from these licensed porter, so also some agreements on record, which have been ignored.(6) the documents produced by the union on the record of the tribunal were not proved in accordance with the law, nor their contents were proved and therefore, by merely exhibiting documents it cannot be said that they could be read in evidence and therefore, all the documents produced on record before the tribunal could not have been at all read in evidence. no witness of the union testified about the correctness of the documents before the tribunal to prove the same in accordance with law. by merely putting exhibits on the documents, they did not become admissible in evidence. the finding that they completed 240 days and were entitled to regularization has been abruptly recorded without even discussing anything and in paragraph 14 of the impugned judgment, a self contradictory finding has been recorded by the learned presiding officer of the tribunal. the judgment and award is thus not based on evidence and is liable to be quashed and set aside. inviting my attention to civil application filed by the petitioner i.e. c.a. no. 2089 of 2009, mr. gordey sought permission to produce annexure-iv & v to the petition since they were never filed before the tribunal. similar application was filed by the union i.e. c.a. no. 2088 of 2009, for filing in all five documents mentioned in that application and in fact those documents were already filed and by separate order made on 5/10/2009, i have allowed both the applications.7. submissions by the respondent.per contra, mr. a.s.jaiswal, learned counsel for the respondent union made the following submissions.(i) inviting my attention to the indian railway establishment manual (second edition), the learned counsel with reference to item nos. 2501 and 2512 thereof, pointed out the definition of casual labour, its recruitment and absorption in regular vacancies. he also invited invited my attention to indian railway commercial manual volume ii and in particular, chapter xxiii, item nos. 2301, 2302, 2303, 2304 and 3015 in relation to handling of goods, parcels etc., and salient features regarding engagement of licensed porters. he then placed before me south eastern railway establishment serial circulars, 1996, and again pointed out the provisions regarding casual labour to show that they are also engaged for loading and unloading in the railway goods shed and all other related matters thereto, including payment of wages. these documents were admittedly not placed before the tribunal by any of the parties, but learned counsel argued that they being the documents issued by railways, this court can act thereon and appreciate the contentions advanced on the basis thereof, to which mr. gordey, learned counsel for the petitioner objected to arguing that petitioner railways cannot be taken by surprise if the respondent union wants to streamline its case on the basis of those documents. inviting my attention to 5 documents filed with c.a. no. 2088 of 09, allowed by me, he argued that again those documents are required to be considered by this court. mr. jaiswal then argued that applications for notice to produce documents were filed before the tribunal vide record page 27 and record page 31, but the railways did not file those documents and therefore the tribunal has rightly drawn adverse inference against the petitioner railways. those documents related to muster roll etc. and were in fairness required to be produced by the railways.(ii) the learned counsel also pointed out a document dated 30th july, 1997, issued by the government of india, ministry of railways (railway bord), that the licensed porters should not be utilized for parcel handling work as they are granted license for carrying out passenger luggage only. this document was never filed before the tribunal.(iii) the learned counsel then argued that the pleadings and the evidence adduced by the union about the nature of work and the activities of the railways in undertaking transport business is a systematic activity for production, supply or distribution of goods or service with a view to satisfy the human wants or wishes and with a motive to make gain & profit. the said pleadings and evidence were not satisfactorily rebutted by evidence by the railways, and therefore, the findings that the members of respondent union are workmen within the meaning of section 2(s) of the industrial disputes act deserves to be confirmed by this court.(iv) the procedure to appoint licensed porters and parcel porters is almost the same and though the respondent union in its statement of claim stated that its members were appointed as licensed porters, it is the case of the union that they were actually working as parcel porters throughout and were paid accordingly by the railways and therefore, they were entitled to be regularized as parcel porters. it was not necessary for each and every member of the union to enter the witness-box to prove their working for 240 days or 120 days, as the case may be, and even then, large numbers of members have filed affidavit-evidence before the tribunal, some of whom were cross examined and some of whom were not cross examined and therefore, the burden of proof to show that they worked for more than 120 days or 240 days was discharged.(v) the contention raised by mr. gordey that licensed porters were provided the work of parcel porters initially for 4 hours and thereafter for 8 hours, is without suitable pleadings in their written statement, so also the evidence and therefore, this court need not advert to the said aspect.(vi) the legal right that was spelt out by the union was that the members of the respondent union were actually working as parcel porters and therefore, they were required to be regularized as parcel porters, having completed 120 days or 240 days in accordance with policy of railways now placed before this court.(vii) the documents produced by railways viz. one receipt showing receipt of some payment and some numbers cannot be said to be money receipt for recovery of license fee, so also the agreement, some of which have been placed on record by the railways, which have not been signed by any officer on behalf of the railways or even by the members of the respondent union, nor these documents were proved according to law, though they were exhibited and they cannot be read in evidence. none testified about the truthfulness of those documents and therefore, this court will have to ignore those documents.(viii) the pleadings and evidence that the petitioner railways did not prove that any of the members of the respondent union were furnished with badges or red cloth uniforms meant for hamal, nor any record was produced to show accordingly and therefore, evidence of the workmen is required to be accepted that they were not appointed as licensed porters, but were appointed as parcel porters and therefore, the tribunal has rightly ordered their regularization. even assuming that the members are treated as casual labours, as contended by the railways, in terms of the circulars pointed out to this court, they are also entitled to regularization and therefore, this court may accept the alternate case of the union. the learned counsel thus prayed for dismissal of the writ petition. he relied on the following decisions.(a) : 1995 ii llj 712 (supreme court)1995 ii llj 712 (supreme court) national federation of railway porters v. union of india and ors.(b) 2003 (4) lln 22 (sc) all india railway parcel and goods porters union v. union of india and ors.(c) : 2005 i llj 162 (calcutta high court) union of india v. ram chanda tanti and ors.8. heard learned counsel for the petitioner as well as respondent union at length on number of dates. seen the entire record of this court as well as of the tribunal. the following salient features are seen by me.(1) the respondent union filed affidavits of (i) manish saxena, (ii) rajesh supatkar, (iii) jitendra chouhan, (iv) jitendra ranjari, (v) sunil kumar yadav, (vi) arun wanjari, (vii) nagesh gajbhiye, (viii) sanjay jinde, (ix) rajesh bansod, (x) jagdish thwaere, (xi) radheshyam godhad, (xii) fulchand rahangdale, (xiii) madan khairba, (xiv)keshao meshram, (xv) sanjay chotelal yadav, (xvi) anil kotangale, (xvii) ajay chotelal yadav, (xviii) satish sahare, (xix) rajesh meshram, (xx) dipak lanjewar, (xxi) nathu mashdeo borkar, (xxii) prakash mele, (xxiii) shyamlal modak, (xxiv) shreeram jaiswal, (xxv) vasant barsagade, (xxvi) p. vijay shekra rao, (xxvii) bramanand meshram, (xxviii) vijay asaram, (xxix) sunil ramteke, (xxx) ravishankar bathaw, (xxxi) ravindra thalal, (xxxii) ashok chandankar and (xxxiii) mahendra ramlochan shukla. all these witnesses were cross examined by the petitioner railways.the workmen namely, (i) bhaurao selokar, (ii) ravindra vasnik, (iii) sandeepkumar budhe, (iv) kishor meshram, (v) vijay panchbuche, (vi) vijay niwware, (vii) sanjay hiralal yadav, (viii) mohan burade, (ix) maroti kamde, (x) bujram thawkar, (xi) radhyeshyam bawane, (xii) kailas mohule, (xiii) koteshwar rao gopal rao jiru, (xiv) sunil kumre, (xv) hanumantrao chandankar, (xvi) rajendra prasad pal, (xvii) vinod meshram, (xviii) rakesh sawaitule, (xix) girish dhawale, (xx) anant khobragade, (xxi) paras mendhekar, (xxii) shailesh bagde, (xxiii) gyaneshwar raut, (xxiv) chakradhar gajbhiye, (xxv) jalilibeg sattarbeg, (xxvi) dushyant kumar dewangan, (xxvii) manik lal dewangan (xxviii) sharad chaware, (xxix) mahadeo mane, (xxx) pramod khobragade, filed affidavits by way of evidence on the record of the tribunal, but record does not show that they were cross examined. it is also not known whether they presented themselves for cross examination.(2) these witnesses of the respondent union who were cross examined on their affidavit-evidence have in their affidavits mentioned the exhibit number of the identity card, experience certificate, news item published in various daily newspaper. in many affidavits, these blanks have not even been filled in about the exhibits, nor any of these witnesses testified before the tribunal about proof or contents of the documents in order that the documents become legally admissible in evidence. the documents referred to in these affidavits as exhibits, in my opinion, therefore, cannot be said to have been proved according to law. therefore, the reliance placed on these documents, reading them in evidence as documents showing that the workmen worked as parcel porters, by the tribunal, does not appear to be justified.(3) similar is the case with the petitioner railways who filed as many as 27 documents vide list of document dated 22.5.2006 and these documents have also been marked as exhibits. as a matter of fact, these documents cannot be said to have been proved according to law because none testified about the truthfulness or correctness thereof before the tribunal on oath. by merely marking those documents as exhibits, it cannot be said that they were proved in accordance with law. document nos. 1 to 24 in the said list are xerox copies of the agreements. these documents in the first place were not verified with the originals. these documents contain certain photographs without any signature of the officer of petitioner railways in the relevant column. nothing is on record to show whether these agreements were exhibited in accordance with law or not and whether they could be treated as agreement, as contended by petitioner railways. then, these are only 24 agreements and it is not known what is the case of the petitioner about the other workmen involved in the present dispute.(4) respondent union had filed notice to produce documents before the tribunal vide record page 27 & 31 (file no. 6 of cgit). the record of the tribunal does not show that the tribunal had made any order on the said application for notice to produce documents. the provisions of order 11, rule 14, 15 and 18 of c.p.c. provide for passing of such order, in order that the party which is directed to produce documents must understand the consequences of not complying with such order. not only that, in : (2005) 8 scc 750; surendranagar district panchayat v. dahyabhai amarsinh the apex court has in para 18 held thus:18. in the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he had actually worked with the employer for not less than 240 days during the period of twelve calendar months preceding the date of termination. what we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. no proof of receipt of salary or wages or any record or order in that regard was produced; no co-worker was examined; muster roll produced by the employer has not been contradicted. it is improbable that the workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidence to prove nature of his engagement and the period of work he had undertaken with his employer. therefore, we are of the opinion that the workman has failed to discharge his burden that he was in employment for 240 days during the preceding 12 months of the date of termination of his service. the courts below have wrongly drawn an adverse inference for non-production of the record of the workman for ten years. the scope of enquiry before the labour court was confined to only 12 months preceding the ate of termination to decide the question of continuation of service for the purpose of section 25-f of the industrial disputes act. the workman has never contended that he was regularly employed in the panchayat for one year to claim the uninterrupted period of service as required under section 25-b(1) of the act. in the facts and situation and in the light of the law on the subject, we find that the respondent workman is not entitled to the protection or compliance with section 25-f of the act before his service was terminated by the employer. as regards non-compliance with sections 25-g and 25-h suffice it to say that witness vinod misra examined by the appellant has stated that no seniority list was maintained by the department of daily-wagers. in the absence of regular employment of the workmen, the appellant was not expected to maintain seniority list of the employees engaged on daily wages and in the absence of any proof by the respondent regarding existence of the seniority list and his so-called seniority, no relief could be given to him for non-compliance with provisions of the act. the courts could have drawn adverse inference against the appellant only when seniority list was proved to be in existence and then not produced before the court. in order to entitle the court to draw inference unfavourable to the party, the court must be satisfied that evidence is in existence and could have been proved.by merely keeping the notice to produce documents on record without making any order thereon and examining the position as per above direction, no adverse inference can be drawn against a party.(5) the documents filed in this writ petition for the first time by both sides about which i have made a detailed reference hereinbefore, are the documents which are relevant and would definitely help the tribunal to find out the truth and come to a correct conclusion. it is not possible for this court to either accept or reject or appreciate the submissions made on the basis of these documents for the first time in writ jurisdiction and both parties will have to be given an opportunity to put up their side about those documents. similar is the case with the list produced by petitioner railways before me through c.a. no. 2089 of 2009.(6) the petitioner railways has pleaded about the work of parcel porters being given by rotation, but the pleadings are not elaborate and adequate for one to understand the exact defence of the petitioner railways in that context, nor the petitioner railways produced any clear evidence thereabout and therefore, with this, it is difficult to find out the truth about the defence of railways which ought to have elaborated by proper pleadings and proper evidence.(7) the burden of proof that members of the respondent union were appointed or were actually working as parcel porters was certainly on the respondent union and the same was required to be discharged in entirety. at the same time the ideal employer, the petitioner railways ought to have been fair enough in producing the entire documentary evidence on record, so also proper oral evidence with a view to help the tribunal in finding out the truth. there is a failure on the part of the petitioner railways in not producing all the relevant records before the tribunal in fairness and help the tribunal to adjudicate the dispute effectively. but that does not mean that the respondent union can be said to have proved its case or discharged the burden of proof which was required to be discharged.9. considering the submissions made by mr. gordey, learned counsel for the petitioner that the order of the tribunal is without any reason and therefore, as held by this court in the case of atmram balani v. state of maharashtra and anr. in l.p.a. no. 304/2008, decided on 19th november, 2008, the proceeding of reference should be remitted to the tribunal, i find that legal position stated therein is surprising in relation to making remand order in the jurisdiction of the high court under article 226 of the constitution of india. the judgment of supreme court in the case of brihanmumbai mahanagar palika and anr. v. akruti nirman (p) ltd. and anr. reported in : 2008 (3) scc 78, relied by appellant's counsel mr.gordey therein and relied upon by the division bench is a judgment relating to first appeal under section 96 c.p.c., decided by single judge of bombay high court without detailed reasons and not under article 226 of the constitution. in tata iron & steel co. ltd. v. state of jharkhand and ors. reported in : (2004) 7 scc 242, however, while deciding matter relating to article 226 & 227, supreme court has had to say as under in para 18, 20:18. ...even the high court on such material that was available before it did not come to a definite conclusion that the finding of the joint commissioner was erroneous but it proceeded to weigh the quantity of evidence and thought it more prudent to remand the matter to take more evidence in this regard. we think in a writ petition filed under article 226 or 227, the high court ought not to have done such an exercise.20. ...the material produced before the joint commissioner was in our opinion sufficient to decide whether the product manufactured by the appellant is crm or not and the said joint commissioner having given a positive finding and that finding having not been interfered with by the commissioner, we think the high court erred in remanding the matter for fresh inquiry.it is thus clear that when the material was available before the high court, it was not justified in making remand even while exercising powers under article 226 and 227 of the constitution. it will not be correct to state that the high court should shirk its responsibility in deciding the matters on merits acting even under article 226 or 227 or in appellate jurisdiction when the entire material is placed before it in writ petition or even in appeal rather than remanding the same mechanically to the authority or lower court. that is obviously with a view to cut short the litigation and the delay in deciding the dispute before the court of which litigants are the victim. the supreme court in ashwinkumar k. patel v. upendra j. patel and ors. reported in : 1999 (3) supreme court cases 161 in paragraph no. 8 held, while speaking on the attitude of the courts in remanding the matters, as under:8. in our view, the high court should not ordinarily remand a case under order 41 rule 23 cpc to the lower court merely because it considered that the reasoning of the lower court in some respects was wrong. such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. when the material was available before the high court, it should have itself decided the appeal one way or the other. it could have considered the various aspects of the case mentioned in the order of the trial court and considered whether the order of the trial court ought to be confirmed or reversed or modified. it could have easily considered the documents and affidavits and decided about the prima facie case on the material available. in matters involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in this case, such remand orders would lead to further delay and uncertainty. we are, therefore, of the view that the remand by the high court was not necessary.i, therefore, do not agree with the learned counsel that the said judgment dated 19th november, 2008, lays down the correct law as the same is contrary to the aforesaid judgments of the supreme court and is thus per incuriam. in the instant case, the contention that tribunal has not recoded reasons, is not correct. there are reasons recorded but they may be wrong or as a result of omission to follow the required 'practice and procedure'. however, i find in the instant case, in the light of the salient features stated hereinbefore that both the parties are at fault in not properly filing the documents and properly proving them in accordance with law before the tribunal. the practice and procedure required to be followed in the matter of proof of documents and the other aspects which i have already pointed out has not been followed by the parties as well as the tribunal. consequently the findings recorded by the tribunal on the basis of these oral and documentary evidences would not be correct, legal and proper.10. however, the question whether the members of the respondent union are workmen or not will have to be decided here since there is material on record to answer the said issue. in the statement of claim, vide paragraph 5 & 6, there are ample pleadings about the activities performed by the petitioner railways, and these pleadings are not denied. there is also evidence to the said effect on record. there is no dispute that the railways carry on its business of transportation and earns huge profit from the said business, so also from transportation of passengers. it is the case of the petitioner railways itself that they provided license to the licensed porters, recovered security deposits as well as license fee regularly, has power to cancel the license in case of misconduct or as the case may be. it has power to regulate and control the activities of licensed porters on platforms. it has power to fix the remuneration which the licensed porters can receive from the passengers. not only that, even according to the petitioner, the licensed porters as per the exigencies are engaged to perform the work of parcel porters and that was done initially for 4 hours and thereafter for 8 hours and this entire work is done upon the direction of the railways and its officers and there is a full control over the same. the minimum wages are paid by the railways for such work done by such licensed porters. the manual work is performed by the licensed porters as well as parcel porters and this is the systematic activity of cooperation between the employer and the workmen. as a matter of fact, the petitioner railways did not lead any evidence before the tribunal to show as to how the activities undertaken by the petitioner railways and the work required to be performed as aforesaid by the licensed porters and the parcel porters would not fall in the definition of 'industry' and 'workman' under the industrial disputes act. in the absence of any rebuttal evidence and appropriate pleadings to refute the claim of the members of the respondent union that they are workmen, i hold that the members of the respondent union are workmen and entitled to maintain the reference before the tribunal.11. for all the reasons, therefore, i find that the only way now for this court is to remand the reference to the tribunal for fresh hearing on the merits of the reference in the light of the findings recorded by me and the observations made hereinbefore. since the petitioner railways did not fairly produce the entire material before the tribunal, it will be appropriate to compensate the respondent union by asking the petitioner railways to pay costs.12. for all the reasons, therefore, i make the following order.the writ petition is partly allowed. the impugned judgment and award dated 28.03.2008 passed by c.g.i.t. cum labour court in case no. cgit/ngp/36/2002 is quashed and set aside. the proceedings of reference no. l-41001/28/97-ir (b.i) are remitted to the c.g.i.t. cum labour court, nagpur, for fresh disposal of the reference in accordance with law and in the light of the findings given & observations made by this court hereinabove. the issue whether members of respondent union are workmen or not is decided against the petitioner by me and shall not be tried by the tribunal again. parties are at liberty to amend their respective pleadings, so also to lead evidence/additional evidence in support of their respective case. both parties shall cooperate with the tribunal for disposal of the reference after remand. any party attempting to delay the proceeding shall be suitably punished by the tribunal. the reference after remand shall be decided as early as possible by the tribunal and in any case not beyond the period of six months from today. the parties shall appear before the tribunal on 9th november, 2009. the petitioner shall pay costs of rs. 20,000/- to the respondent union within a period of four weeks from today.writ petition is thus disposed of.