JUDGMENT(ABHA Y S. OKA, J.) The submissions of the learned counsel appearing for the parties were heard on April 1, 2008. However, the judgment was not immediately delivered with a view to give an opportunity to the parties to settle the dispute amicably. The learned counsel appearing for the parties have today stated that there is no possibility of amicable settlement. Hence am proceeding to deliver the judgment. 2. By this Petition under Article 226 of the Constitution of India, the petitioner-employer has taken an exception to the judgment and Award dated June 7, 2007 passed by the 3rd Labour Court, Bombay. With a view to appreciate the submissions made by the learned counsel appearing for the parties, it will be necessary to briefly refer to the facts of the case. 3. According to the case of the 1st respondent, he was employed by the petitioner as a senior Clerk since May, 1979. It is alleged by the 1st respondent that he was in continuous i service prior to illegal termination allegedly made on January 30, 2003. It is alleged that his last drawn salary was Rs. 5,700/- per month. 4. According to the case of the 1st respondent, in December, 2002, a Director of the petitioner came to the office and informed the 1st respondent that due to lack of business some workers were required to be retrenched. The said Director Mr. Vijaykumar Banga insisted on the 1st respondent tendering his resignation and stated that on his failure to tender resignation, he will have to face problems. A threat was given to implicate him in a criminal case. It is stated that on January 7, 2003, a police officer arrested the 1st respondent while he was on duty in connection with a complaint lodged by the petitioner. It is alleged that with effect from January 30, 2003, the 1st respondent was not allowed to join the duty. The contention of the 1st respondent is that there is oral termination made without giving notice. It is the contention of the 1st respondent that there is a violation of provisions of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as "the said Act ofl0 1947"). It is contended that the service record of the 1st respondent was unblemished. It is the contention of the 1st respondent that there is a violation of provisions of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as "the said Act ofl0 1947"). It is contended that the service record of the 1st respondent was unblemished. It is contended that the petitioner has sufficient work and the 1st respondent was a permanent employee after having completed continuous service of 240 days each and every year. 5. It is the case of the 1st respondent that he approached the petitioner repeatedly. However, he was not allowed to resume his duties. An 20 industrial dispute was raised by the 1st respondent. The prayer of the 1st respondent is for reinstatement with full back wages and continuity of service. 6. The petitioner filed written statement and disputed the claim made in the statement of claim. The contention of the petitioner is that the 1st respondent was employed as a Divisional Manager-cum-Director at Bombay Division where he worked from April 1, 1998 to January 7, 2003. It is alleged that the 1st respondent indulged in misappropriation of funds in connection with the business of the petitioner in connivance with other employees. It is alleged that on October 19, 2002, a complaint was lodged with the concerned police station. The contention is that as the 1st respondent was employed in managerial and supervisory capacity, he is not a workman within the meaning of Section 2(s) of the said Act of 1947. It is submitted that the 1st respondent indulged in misappropriation of the funds of the petitioner and thereafter stopped reporting for work. The allegation is of misappropriation of a sum of Rs. 9,52,123/-. It is contended that though the 1st respondent was a permanent employee, he stopped reporting for work on his own and therefore it was not necessary to comply with requirements of Section 25- F or 25-G of the said Act of 1947. Another contention raised in the written statement was that the 1st respondent was gainfully employed elsewhere. 7. The learned Presiding Officer of the Labour Court held that the 1st respondent was a workman as defined under Section 2(s) of the said Act of 1947 and that the 1st respondent has established that the petitioner-employer has terminated his employment in violation of provisions of the statute. It was held that the reference was maintainable. 7. The learned Presiding Officer of the Labour Court held that the 1st respondent was a workman as defined under Section 2(s) of the said Act of 1947 and that the 1st respondent has established that the petitioner-employer has terminated his employment in violation of provisions of the statute. It was held that the reference was maintainable. The learned Judge of the Labour Court has passed the impugned order of reinstatement of the 1st respondent with full back wages and continuity of service with all consequential benefits. 8. By order dated March 13, 2008, this Court directed that the petition should be disposed of finally and accordingly the same was ordered to be listed on daily board for final hearing. 9. I have heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the 1st respondent. The learned counsel appearing for the petitioner has taken me through the pleadings, notes of evidence and other material on record. His first submission is that on plain reading of the evidence on record it is obvious that the 1st respondent was not a workman within the meaning of Section 2(s) of the said Act of 1947. 35 10. He submitted that the 1st respondent has not adduced any evidence to prove that he was performing any of the duties specified in Section 2(s) of the said Act of 1947. He submitted that even in the affidavit in lieu of evidence, the 1st respondent has not set out the nature of duties which were assigned to him. He pointed out that in the cross-examination the 1st respondent admitted that he could not produce any documentary evidence to show that he was working as a senior Clerk. It is pointed out that in fact there were number of documents signed by the 1st respondent in his capacity as a Manager. In fact it is an admitted position that the 1st respondent signed affidavits on behalf of the petitioner as a Director of the petitioner for the purposes of filing the same before the Industrial Court. He invited my attention to the evidence of Mr. Atul Kumar Mishra which established that the 1st respondent was overall in-charge of the establishment looking after day to day administration. He invited my attention to the evidence of Mr. Atul Kumar Mishra which established that the 1st respondent was overall in-charge of the establishment looking after day to day administration. He submitted that the evidence of the said witness which has practically gone unchallenged shows that not only that the 1st respondent was looking after day to day administration but also members of the staff were taking instructions from the 1st respondent. He pointed out that the affidavit in lieu of evidence of Mr. Banga disclosed the nature of work and duties assigned to the 1st respondent and there was hardly any challenge to his evidence in the cross-examination. His submission is that the 1st respondent did not discharge the burden on him. In any event, he submitted that the 1st respondent did not choose to report for duty on and from January 7, 2003. He submitted that at no stage the 1st respondent made any grievance regarding the alleged forced resignation and the 1st respondent admitted the same in his cross-examination. 11. The learned counsel appearing for the petitioner relied upon decision of the learned single Judge of this Court in the case of Saro Ramesh Shah v. Balkrishna Pen (Pvt.) Ltd and Others 1995-I-LLJ-176 (Born). He also relied upon a decision of the Apex Court in the case Of30 Mukesh K. Tripathi v. Senior Divisional Manager, L.I.C. and Others 2004-III-LLJ-740 (SC). He submitted that the impugned judgment and Order is perverse. 12. The learned counsel appearing for the 1st respondent supported the impugned judgment and order by pointing out inconsistent stands taken by the petitioner from time to time regarding the designation of the post allegedly held by the 1st respondent and regarding nature of his duties. In sofar as issue regarding burden of proof is concerned, the learned counsel for the 1st respondent relied upon a decision of the learned single Judge of this Court in the case of Aloysius Nunes v. Thomas Cook India Ltd (2000) II CLR 649. She pointed out that an Appeal was preferred against the said decision of the learned single Judge. She invited my attention to the order passed by the Appellate Bench to show that the Appeal was disposed of in tenns of the settlement between the parties. She pointed out that an Appeal was preferred against the said decision of the learned single Judge. She invited my attention to the order passed by the Appellate Bench to show that the Appeal was disposed of in tenns of the settlement between the parties. Her submission is that the law laid down by the learned single Judge has not been upset by the Division Bench and therefore the decision of the learned single Judge will have to be read as a binding precedent. 13. I have carefully considered the submissions. It will be necessary to refer to the pleadings and relevant documents on record. In the demand notice dated July 15, 2003 issued by the 1st respondent to the petitioner, he has stated that he was employed with the petitioner-company as a Co-ordinatorcum senior Clerk since May, 1979. In the show cause notice issued by the petitioner on June 17, 2003 to the 1st respondent, designation of the 1st respondent is shown as a Divisional Manager. In paragraph No.4 of the said notice, it is stated that the 1st respondent was holding responsible position of Divisional Manager-cum-Director. The demand notice issued by the 1st respondent was replied to by the petitioner by a reply dated August 6,2003 in which it was alleged that the 1st respondent was employed as a Divisional Manager-cum Director. 14. In the statement of claim filed by the, 1st respondent in the Reference before the Labour Court, the 1st respondent alleged that he was employed as a senior Clerk since May, 1979 by the petitioner. In the written statement filed by the petitioner, it was contended that the 1st respondent was employed in the capacity of a Divisional Manager-cum-Director in the Company. In the written statement the petitioner denied that the 1st respondent was employed as a senior Clerk since May, 1979. It is contended that as a matter of fact the 1st respondent was employed as a Divisional Manager-cum-Director with effect from April 1, 1998 and his last drawn salary was Rs. 5,700/- per month. There are other allegations made in the written statement regarding misappropriation of the company's funds by the 1st respondent to the extent of Rs. 9,52,123/-. It is stated that after F.I.R. was lodged, the 1st respondent was arrested and remanded to police custody for a period of two weeks. 5,700/- per month. There are other allegations made in the written statement regarding misappropriation of the company's funds by the 1st respondent to the extent of Rs. 9,52,123/-. It is stated that after F.I.R. was lodged, the 1st respondent was arrested and remanded to police custody for a period of two weeks. A contention is raised that from the date of his arrest i.e. on January 7, 2003, the 1st respondent never reported to the duty and did not submit any application. Therefore, it was submitted that in view of abandonment of service by the 1st respondent, it was not necessary to comply with the provisions of Sections 25-F and 25-G of the said Act of 1947. 15. One of the issues before the Labour Court was whether the 1st respondent was a workman within the meaning of Section 2(s) of the said Act of 1947. It must be noted that the Reference was made at the instance of the respondent on the ground that the 1st respondent was a workman. The status of the 1st respondent as a workman was disputed by the petitioner. It is the petitioner who came out with a case that the 1st respondent was not a workman within the meaning of Section 2(s) of the said Act of 1947. As pointed out earlier, it 20 was the specific case of the petitioner in the written statement that the 1st respondent was employed in the capacity of Divisional Manager-cum-Director and that the 1st respondent was employed in managerial and supervisory capacity. Thus, the petitioner disputed that the 1st respondent was a workman and contended that the nature of his duties were managerial and supervisory. It was submitted by the counsel for the petitioner that the workman i.e. the 1st respondent must establish that he satisfies the requirements of Section 2(s) of the said Act of 1947. The said submission cannot be accepted. If the petitioner had lead evidence to show that the 1st respondent was performing managerial or supervisory duties, in that case burden would have shifted to the 1st respondent. 16. The 1st respondent filed his affidavit in lieu of examination-in-chief. He stated that he was employed by the petitioner as a senior Clerk since May, 1979. He deposed that at the instance of Mr. 16. The 1st respondent filed his affidavit in lieu of examination-in-chief. He stated that he was employed by the petitioner as a senior Clerk since May, 1979. He deposed that at the instance of Mr. Vijaykumar Banga who had called him to his cabin he tendered a resignation from the employment in the month of December, 2002 as he was informed that unless resignation was tendered, he would be falsely implicated in a police case. 17. In the cross-examination of the 1st respondent his attention was invited to certain documents which were signed by him. He admitted that he has signed the said documents as a Director as per the directions of the f petitioner. He also admitted that he had signed at complaint addressed to police station in his capacity as a Director. He stated that he never protested while signing the said documents as a Manager or Director though he signed the same r at the instance of the petitioner. 18. The petitioner examined one Mr. Vijay Kumar Banga, its Director. In the affidavit it is stated that the 1st respondent was not a workman and he was employed in his capacity as a Divisional Manager-cum: Director. In paragraph No.4 of the affidavit, he has set out the nature of duties performed by the 1st respondent as regards handling of overall administration and operational work, signing and entering into agreements, letters etc. In his evidence he placed reliance on various communications which were signed by the 1st espondent either as a Manager or a Director of the petitioner. He referred to the police complaint filed by the petitioner regarding . misappropriation of the amount by the 1st respondent. In the cross-examination, he admitted that the petitioner had not issued an appointment letter to the 1st respondent as Manager-cum-Director. He admitted that the 1st respondent used to obey his orders and directions. He also admitted that the 1st respondent never attended any meeting of Board of Directors and that he was never called upon to attend the meeting of the Board of Directors. The petitioner also examined one Mr. Atul Kumar Mishra who deposed that the 1st respondent was overall in-charge of the establishment at Mumbai, Thane and Bhiwandi Divisions and all the members of the staff were taking instructions from him. He stated that day to day administration work was being looked after by the 1st respondent. The petitioner also examined one Mr. Atul Kumar Mishra who deposed that the 1st respondent was overall in-charge of the establishment at Mumbai, Thane and Bhiwandi Divisions and all the members of the staff were taking instructions from him. He stated that day to day administration work was being looked after by the 1st respondent. He denied that when the 1st respondent attended to report to his duty on January 30, 2003, he did not allow the 1st respondent to resume the duties. The cross-examination reveals that the admitted position is that there was no letter of appointment issued to the 1st respondent and that the 1st respondent used to put his signature on the muster roll. 19. The perusal of the impugned judgment of the learned Judge shows that the oral and documentary evidence has been considered and appreciated by the learned Judge. The learned Judge has referred to the deposition of the 5 witnesses examined by the parties. The learned Judge has referred to the documents produced on record. The learned Judge referred to certain F.L.R. lodged by the 1st respondent in his capacity as a Director. The learned Judge l( noticed that in the F.LR. filed by the said Vijay Kumar Banga there is an allegation of misappropriation of the company's funds. The said F.L.R. discloses the designation of the 1st respondent as a Manager and not as a Director. However, reliance has been placed on letters at Exhibit C-12 and C-13 issued to the 1st respondent which do not disclose the designation of the 1st respondent. There is no letter of appointment letter issued to the 1st respondent. 20. The learned Judge has recorded a finding of fact that Articles of Association of the company were not produced. The learned Judge noted that the 1st respondent was required to put his signature on the muster roll as is reflected from the admitted position. Though the petitioner claims that the 1st respondent was a Director, admittedly he was never invited to attend Board Meetings. The 31 learned Judge has referred to the case law on the point. After considering the oral evidence adduced by the petitioner as well as by the 1st respondent, there is a finding of fact recorded that the 1st respondent was a workman as the petitioner could not adduce any evidence to prove the assertions made by the petitioner. The 31 learned Judge has referred to the case law on the point. After considering the oral evidence adduced by the petitioner as well as by the 1st respondent, there is a finding of fact recorded that the 1st respondent was a workman as the petitioner could not adduce any evidence to prove the assertions made by the petitioner. Therefore, it is very difficult to accept the contention of the petitioner that the 1st respondent was not a workman within the 4' meaning of Section 2(s) of the said Act of 1947. 21. The learned Judge noted that the witness Vijay Kumar Banga examined by the petitioner admitted that no inquiry was conducted against the 1st respondent about his absence. Even as regards alleged misappropriation by the 1st respondent, no ; proceedings have been initiated by the petitioner against the 1st respondent. It is contended that the 1st respondent abandoned the job since the date of arrest. However, the Labour Court has rightly observed that there o was nothing on record to show that the petitioner issued any communication directing the 1st respondent to report for work. There is no departmental inquiry held against him. 22. Considering all these aspects, the learned Judge has accepted the case made out by the 1st respondent of illegal termination. Consequently an order has been passed directing reinstatement with full back wages o and continuity in service with all consequential benefits. 23. Findings of facts have been recorded by the learned Judge on the basis of appreciation of oral and documentary evidence. There is no perversity in the impugned judgment and Order. 24. Hence no case is made out for interference. Writ Petition is accordingly, rejected with no orders as to costs. 25. In view of disposal of the writ petition, the Notice of Motion does not survive. 26. At this stage, the learned counsel is appearing for the petitioner prays for continuation of the ad-interim relief granted by this Court. It is pointed out that interim relief was granted by order dated January 1, 2008 and instead of furnishing bank guarantee of Rs.103,00,000/-, the petitioner has deposited the sum, of Rs. 3,00,000/-. In view of this position, the stay granted by this Court by order dated January 11, 2008 will continue to operate till July 21, 2008.