ORDER : 1. This is a reference for adjudication of the demand of the workmen employed under Sri Ramtirth Yogashram, Bombay (hereinafter referred to as the employers), made under S. 10(2) of the Industrial Disputes Act, 1947 (XIV of 1947), by the Deputy Commissioner of Labour (Administration), Bombay, in the exercise of the powers delegated to him under S. 39 of the Act. The reference is made in pursuance of a settlement between the parties during the conciliation proceedings. The demands which are the subject of this reference are mentioned in the schedule to the order of reference. 2. The union demands that fifteen workmen named in the demand whose services were terminated on 7 July 1956 on the ground of insufficiency of work should be reinstated with full back wages from the date of their retrenchment, i.e. from 7 July 1956. The second demand of the union is that all workmen shall be paid bonus equivalent to one-third of the total earnings earned during the years 1953-54, 1954-55 and 1955-56, respectively. 3. In the statement of claim filed by the union it is alleged that the union was formed in 1956 with the object of improving the service, working and living conditions of the workmen. Much had to be done for achieving the above object, but the union moved slowly and as a first step towards achieving its object, the union compelled the employers to pay notice pay to Sri Rane, one of the employees who was discharged without notice, and pay weekly off-wages to all employees through the Payment of Wages Court. 4. It is not disputed that within a short time after the payment of the amounts the services of the fifteen workmen were terminated by a notice, dated 7 July 1956 (Ex. U.11) on the ground of insufficiency of work. The notice promised reinstatement if in future there was any work and it was decided to reemploy the workmen. The union's contention is that the alleged reason for discharge, namely, insufficiency of work, was not true and the workmen have been victimized for forming a union. 5. It may be stated that after the workmen were discharged, they accepted notice wages and retrenchment compensation from the employers through the intervention of the Government labour officer. The union's contention is that the alleged reason for discharge, namely, insufficiency of work, was not true and the workmen have been victimized for forming a union. 5. It may be stated that after the workmen were discharged, they accepted notice wages and retrenchment compensation from the employers through the intervention of the Government labour officer. The workmen allege that subsequent to their discharge the employers have recruited fresh labourers in contravention of S. 25H of the Industrial Disputes Act, 1947. As regards the demand for bonus, the union's contention is that the employers were making large profits and bonus should be ordered in accordance with the Labour Appellate Tribunal formula. 6. The employers are a proprietary concern and their sole business is the manufacture and sale of hair oil described as the Ramtirth Brahmi oil. No machinery is employed in the manufacturing process. The employers' contention is that the workmen were discharged because production has been stopped on account of unsatisfactory working during the year 1955-56 and that the only activity which was continued was the disposal of accumulated stocks. Thus, according to the employers the discharge of the workmen was a measure of bona fide retrenchment. It is further contended on their behalf that having accepted leave wages and retrenchment compensation, it was not open to the workmen to urge that their retrenchment was not bona fide. They deny that new labourers have been recruited as alleged by the union or that the provisions of S. 25H have been contravened by them. As regards the demand for bonus, their contention is that the demand for bonus for the years 1953-54 and 1954-55 was belated and should be rejected on that ground alone. As for the year 1955-56 they contend that the profits made by them during this year were meagre and no bonus was admissible to the workmen. 7. The parties were heard on the demands for reinstatement and also on the question whether the demand for bonus for the year 1953-54 and 1954-55 was belated and should not be rejected on that ground. With reference to the bonus for the year 1955-56 it was agreed at the hearing that the consideration of the demand should be adjourned till further evidence was recorded. I shall therefore decide the demand for reinstatement and also the demand for bonus for the years 1953-54 and 1954-55 by this award. With reference to the bonus for the year 1955-56 it was agreed at the hearing that the consideration of the demand should be adjourned till further evidence was recorded. I shall therefore decide the demand for reinstatement and also the demand for bonus for the years 1953-54 and 1954-55 by this award. The demand for bonus for 1955-56 will be decided after recording evidence of the parties. 8. Demand No. 1 - That workmen whose names are given below shall be reinstated with full back wages from the date of their retrenchment (i.e. 7 July 1956) effected for reasons of insufficient work: (1) Namdeo Bapu Chougule (2) Govind Narsinha Shenai (3) Sunder Shantaram Pai (4) Pandurang Vithal Bhandare (5) Khanderao Pandurang Dighe (6) Shankar Maruti Babar (7) Sadanand Ramchandra Tanksale (8) Sahebrao Jaisingrao Jagatap (9) Dattur Bhikaji Budgude (10) Tukaram Vithalrao Bhandare (11) Baloo Parshuram Bhor (12) T. Surendra Das Pai (13) Chadrakant Jangam, (14) Ramchandra Vyankatesh Baliga (15) Shivram Vithoo Mohite. The employers have not led any evidence in support of their contention that the manufacture of the hair oil has been completely stopped and their only activity is confined to the disposal of accumulated stocks. On the other hand, as I shall point out later, a large number of fresh employees have been employed by them after the discharge of these workmen and it is impossible to accept, without evidence to support it, the employer's contention that all these newly engaged workmen were required to dispose of surplus stocks. But the workmen have accepted notice pay and retrenchment compensation through the intervention of the Government labour officer and have thereby accepted their retrenchment. Sri R.S. Kulkarni for the union submitted that notice pay and retrenchment compensation were accepted by the workmen on the faith of the employer's representation that the production of the hair oil had been stopped. Whether this was the real reason for accepting notice pay and retrenchment compensation, it is not possible to say. But whatever consideration induced the workmen to accept them, the fact remains that they thereby accepted their retrenchment. Having accepted it and induced the employers to pay the notice wages and retrenchment compensation, the workmen cannot be permitted to recede from that position and contend that their discharge did not amount to retrenchment. But whatever consideration induced the workmen to accept them, the fact remains that they thereby accepted their retrenchment. Having accepted it and induced the employers to pay the notice wages and retrenchment compensation, the workmen cannot be permitted to recede from that position and contend that their discharge did not amount to retrenchment. Sri Kulkarni realized that the workmen could not keep the notice wages, etc., and challenge their retrenchment and offered to restore to the employers all the benefits of retrenchment received by them. But I do not think that he can be permitted to do so. Having elected to accept the retrenchment, the workmen must take all the consequences following from it. Therefore, the demand for reinstatement from the date of their discharge cannot be allowed. 9. I am however satisfied that the workmen have made out a complete case for reemployment from a later date, i.e., from 14 July 1956. The demand being for reinstatement from a particular date, the tribunal has jurisdiction to decide, if reinstatement from that day was not possible, that their reemployment should be ordered from a subsequent date. It is conceded by the employers that they have not completely closed down their business and that some workmen are being employed by them. Therefore, the burden of proving that the activity was confined to the disposal of surplus stocks and that it was carried on with the help of only such workmen who were in service before the discharge of these workmen lies on the employers. The employers must prove at least how many men were employed before the discharge and how many were retained in service. But they have led no evidence at all and we have no material to test their contention. It is stated in the written statement that the activities are carried on by family members of the proprietor. This is a tacit admission that additional hands are being employed after the discharge of these workmen. The evidence led by the union shows not only that new workmen have been taken in the employment but that there is no family member of the proprietor amongst such workmen. Sri R.R. Desai, the Inspector, under the Bombay Shops and Establishments Act, 1948 (Ex. U.1), visited the establishment on 16 July 1956. His marks are at Ex. U.2. The evidence led by the union shows not only that new workmen have been taken in the employment but that there is no family member of the proprietor amongst such workmen. Sri R.R. Desai, the Inspector, under the Bombay Shops and Establishments Act, 1948 (Ex. U.1), visited the establishment on 16 July 1956. His marks are at Ex. U.2. He found that in addition to two clerks and five salesmen, twenty persons were on the muster roll which was posted up to 14 July 1956. In the "M" register of leave the names of the labourers were not entered and in the "I" register for the week ended 14 July 1956, names of only four labourers were entered. Sri Desai thus proves that the employers were employing twenty labourers on 14 July 1956. There is no suggestion that any of these workmen were members of the proprietor's family. Sri Vasant B. Parelakr, a senior inspector under the Shops and Establishments Act (Ex. U.4), visited the company's establishment on 1 November 1957 and again on 5 November 1957. On 1 November 1957 be found six labourers packing cases in an adjacent room. A motor-driver and a cleaner came later whose names he took down. Three of those who were working were Shankar Narayan Dalvi, Sambhaji Dhondu and Janardan Nivruti Khandale but their names were not show in the register of employment nor in any register. On 5 November 1957 when he again visited the establishment, he found six labourers working there though the register of employment for the week ended on 10 November 1956 showed only four labourers. After this visit, the proprietor filed statements from the abovementioned Shankar Narayan Dalvi, Sambhaji Dhondu and Janardan Khandale to the effect that they were domestic servants to the proprietor and had no connexion with the establishment. The Senior Inspector, therefore, again visited the establishment and verified their statements. But these persons have not been examined as witnesses in this reference and the union has not been given an opportunity of cross-examining them. Under the circumstances their bare statements recorded behind the back of the union that they were the domestic servants of the proprietor cannot be accepted. 10. Gulam Mohamed Kara Rawat, another Senior Inspector (Ex. But these persons have not been examined as witnesses in this reference and the union has not been given an opportunity of cross-examining them. Under the circumstances their bare statements recorded behind the back of the union that they were the domestic servants of the proprietor cannot be accepted. 10. Gulam Mohamed Kara Rawat, another Senior Inspector (Ex. U.7), deposes to having visited the company's establishments on 21 November 1956 at 12-5 p.m. He had received a complaint from the union that the employers were not complying with the provisions of the Bombay Shops and Establishments Act. Though he found only two employees working there, the register of employment and the M form leave register showed 17 employees on the company's roll whose attendance was marked up to 20 November 1956. It appears that another complaint was received from the union by him that certain workmen, viz., Lakshman Sakharam Cholap, Babu Sonoo Dalvi nd Rajaram Javale, were not entered in the employment register. He therefore visited the company's establishment again on 12 January 1957. Sri Joshi, the proprietor, represented to him that these persons were his domestic servants and were not connected with the establishment. This statement was confirmed by Sri Rawat from these persons. On this occasion also there were 17 employees on the roll and their attendance was marked up to 11 January 1957. These three persons, who are alleged to be the domestic servants of the proprietor, though interrogated, by Sri Rawat, were not called as witnesses and their ex-parte statements cannot be accepted in proof of the fact that they were not connected with the establishment. In any case the fact remains that every time the establishment was visited by an inspector, the employers were found to have on their roll between 17 and 20 persons. It is not shown that any of them were family members of the proprietor, nor is it shown that they were on the roll of the company before the retrenchment of the workmen concerned in this reference. Reference may also be made to the letter (Ex. U.9) from the Assistant Labour Officer, Bombay, to the proprietor. It is not shown that any of them were family members of the proprietor, nor is it shown that they were on the roll of the company before the retrenchment of the workmen concerned in this reference. Reference may also be made to the letter (Ex. U.9) from the Assistant Labour Officer, Bombay, to the proprietor. The assistant labour officer states in the letter that he had paid a surprise visit to the establishment on 4 October 1956 when he found that three new employees were working in the premises and five more had left the premises before his arrival there, No attempt has been made to challenge the correctness of the statements contained in the letter. The letter proves beyond doubt that the employers had recruited at least eight new workmen after the retrenchment. The employers are proved to have engaged new workmen. It was their duty to prove affirmatively how many new workmen had been engaged by them. Instead of doing so they preferred to rely on a denial which is proved to be false. Under the circumstances, it must be held that all the present workmen were replaced by new workmen. 11. That being so, there is clearly a breach of the provisions of S. 25H of the Industrial Disputes Act by the employers. They have also been guilty of breach of faith with the workmen for failing to implement their promise to reemploy them in case they decided to engage new workmen. The discharged workmen are therefore entitled to be reinstated from 14 July 1956 and to back wages from that date. Accordingly I direct that the 15 workmen mentioned in the demand should be reinstated forthwith and should be paid back wages from 14 July 1956 till the date of their reinstatement. Though I am directing the reinstatement of the workers, it is to be taken in the sense of the reemployment of the workers as directed by S. 25H of the Industrial Disputes Act.