Judgment :- By these petitions filed under Articles 226 and 227 of the Constitution of India, the petitioners/employees are challenging almost identical, but different judgments delivered by the Industrial Court dismissing their ULP Complaints claiming reemployment with respondent no.2. The order dated 30.06.2006 delivered by the said Court in ULP Complaint No. 832/1999 forms subject matter of Writ Petition No. 1424/2007 and order dated 20.08.2002 delivered in ULP Complaint No. 529/1994 is challenged in Writ Petition No. 1428/2007. The complainants before the Industrial Court who did not choose to join in filing Writ Petition before this Court are impleaded as respondents in both the matters. Parties have stated that Writ Petition No. 1428/2007 should be taken up as main matter. 2. The facts stated briefly show that on 05.12.1991 an agreement or understanding was reached between the elected representatives and respondent no.2. That agreement is at Exh.61 in ULP Complaint No. 529/1994 and at Exh.31 in ULP Complaint No. 832/1999. It mentions that about 100 workers were present at that time and the financial problem faced by the employer and its inability to provide work appears to be the subject matter thereof. Ultimately the said document records that the Management would pay to the workmen Gratuity, Bonus, Arrears of leave with wages, wages for earned leave proportionately and willing employees were to submit their applications along with resignations on 06.12.1991 and 07.12.1991. The Management had agreed to make the payments accordingly by 17.12.1991 and to deposit proportionate amount of provident fund with Provident Fund Commissioner. The agreement also provided that if management restarts the establishment, the workers who had resigned would only be given work as per need and seniority in preference. It also provided that if management started any establishment or then if any other factory/establishment was arranged on contract basis, similar precedence should be given to the workers. It is also an admitted position that there were about 174 employees with respondent no.2 and out of them only 118 submitted their applications/resignations as per this document dated 05.12.1991. The remaining employees did not submit to the same and hence respondent no.2 employer was constrained to continue them in employment and because of the various courts orders was also required to pay them salary. 3. Complaining of breach of this arrangement petitioners on 29.04.1994 filed ULP Complaint No. 529/1994. The remaining employees did not submit to the same and hence respondent no.2 employer was constrained to continue them in employment and because of the various courts orders was also required to pay them salary. 3. Complaining of breach of this arrangement petitioners on 29.04.1994 filed ULP Complaint No. 529/1994. The said complaint was filed by 27 employees who are out of 118 employees mentioned above. After pointing out that agreement dated 05.12.1991 was on account of intervention by the Assistant Labour Commissioner, Nagpur they have stated that the matter in dispute was settled and the complainants were retrenched after their nominal resignation. They pleaded that they never intended to leave the job and acted on assurance given by the management of reemploying them. They complained that there was no reemployment provided to them and other workers were given the job. They pleaded that about 48 employees were thus given the work without considering the seniority and the action was in violation of Section 25H of the Industrial Disputes Act as also agreement dated 05.12.1991. They pleaded that the cause of action arose on 31.09.1992 when they approached the employer for reemployment and the management did not pay any attention to their demands. 4. Other 27 employees out of above mentioned 118 employees filed ULP Complaint No. 832/1999 on 25.08.1999 with similar grievance. In this complaint also it is stated that the cause of action for the first time arose on 31.09.1992 at Nagpur. 5. Written statement filed by the management in both the ULP Complaints is more or less identical. The management has denied any violation of agreement dated 05.12.1991 and has also pointed out that the provisions of Section 25H were not relevant. Petitioners examined one elected representative Shri Ramesh Patole and two complainants as their witness in ULP Complaint No. 529/1994 and management examined one Therktti as their witness in the said matter. In ULP Complaint no. 832/1999 recorded representative Shri Ramesh Patole was itself the complainant. The complainants then examined said Ramesh Patole and another complainant by name Sudhodhan as their witness. Sudhodhan however was not made available for cross examination and hence while delivering the judgment on 20.08.2002 the learned Member of the Industrial Court has ignored his evidence. Management examined Shri Kurve as its witness in that matter. 6. The complainants then examined said Ramesh Patole and another complainant by name Sudhodhan as their witness. Sudhodhan however was not made available for cross examination and hence while delivering the judgment on 20.08.2002 the learned Member of the Industrial Court has ignored his evidence. Management examined Shri Kurve as its witness in that matter. 6. In this background I have heard Shri Wachasunder, learned counsel for petitioners / employees, Shri V.R. Thakur, learned counsel for respondent no.2 Employer and Shri Kankale, learned A.G.P. for respondent no.1. Other respondents are formal parties and they have chosen not to appear. 7. Shri Wachasunder, learned counsel has contended that the finding of Industrial Court about non-applicability of provisions of Section 25H of the Industrial Disputes Act in present circumstances is vitiated. He has contended that the purport of document dated 05.12.1991, if clearly understood shows that in fact an attempt was made to put the end to services of some employees and compensation has been offered for that purpose. In view of this, according to him, it was retrenchment only and therefore, provisions of Section 25H were clearly attracted. To substantiate his contentions, he has invited attention to various clauses of document at Exh.61 and further contended that the document needs to be interpreted in the light of various welfare legislation operating for the benefit of employees. 8. The finding, that petitioners did not establish any employment provided to fresh person is also assailed by inviting attention to the evidence adduced on record by complainants. It is urged that the learned Member of the Industrial Court while deciding ULP Complaint No. 529/1994 has not made any reference to cross-examination of witness Shri Paul and the important material which has come on record in his cross-examination has thus been ignored. The learned counsel contends that the work provided to fresh employees has thus come on record through Paul. The contention of employer that opportunity to report for duty [reemployment] was extended to petitioners, is being challenged by contending that there is no supporting document produced by the employer for that purpose. 9. Lastly, the learned counsel has contended that the document dated 05.12.1991 is itself illegal. He states that such a document entered into between the elected representatives and the management dehors the provisions of Bombay Industrial Relations Act cannot have any legal effect and it therefore needs to be ignored. 9. Lastly, the learned counsel has contended that the document dated 05.12.1991 is itself illegal. He states that such a document entered into between the elected representatives and the management dehors the provisions of Bombay Industrial Relations Act cannot have any legal effect and it therefore needs to be ignored. He has contended that the severance of relationship either on account of retrenchment or resignation purported to be brought about there under (by document) is void abinitio and hence all petitioners have continued in service. He therefore, contends that the finding of absence of unfair labour practice under Item 9 stands vitiated because the learned Member of the Industrial Court has not considered this challenge. Being in employment, the petitioners were/are entitled to work as also salary and with holding it attracted item 9 of Schedule IV of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practice Act. 10. Today, before the learned counsel for respondent no.2 – employer could begin his reply arguments, Shri Wachasunder, learned counsel has given his propositions in relation to validity of document dated 05.12.1991 in writing and in present circumstances it will be appropriate to reproduce the same in the body of this judgment. Those 9 propositions submitted by him are as under. 1. Under the scheme of BIR Act, the words 'Agreement' or ' Settlement' have not been defined and therefore only registered agreements under Section 44 signed between the employees Representatives and Management, on conclusion of conciliation proceedings held under Chapter X, are alone binding for settlement of Industrial Disputes and Industrial matters as defined under Section 2[17] and 2[18] respectively thereunder. 2. As such, the document dated 05.12.1991 (Annexure-C in both the Petitions) (Exh.31 in Complaint No. 832/1999) & (Exh.61 in Complaint No.529/1994) being not such an Agreement, could not be used by Management for keeping the petitioners out of employment, particularly when the same was not to be acted upon in so far as the same related to severance of relationship by Resignation. 3. 3. As the first part of the said document dated 05.12.1991 relating to resignations was not in real sense meaning resignation, the other part of keeping the petitioners out of employment due to non availability of work, was also not binding on them, for noncompliance provisions of Chapter X of the Act and more particularly because the reasons stated therein were not the reasons under Section 64 of the BIR Act which provides for exclusion of conciliation proceedings for settlement of the industrial disputes and industrial matters under the BIR Act. 4. The burden to prove therefore, of existence of right in the Management, to keep the petitioners out of employment since 1991, was on the management itself and as such it was not necessary for the petitioners to prove that any one or more persons were recruited from 1992 onwards to avail the benefits of Section 25H of Industrial Disputes Act. 5. The learned Member, Industrial Court was not therefore right in holding that because the petitioners have resigned, remedy under Section 25H was unavailable to them and that no evidence of breach of Section 25H of Industrial Disputes Act has been brought on record by petitioners. 6. Without prejudice however, the Management witness Shri Paul (Annexure-N in W.P.No. 1428/2007) has disclosed in para 12 and 14 of his deposition, such names who have been recruited during 1992-98 period and as such violation of Section 25H has been established by the petitioners. Name of those recruited in 3 different sections namely Galvanizing, Electrical and Fabrication are in para 12 and 14 of deposition of witness Shri Paul in W.P.No.1428/2007. 7. In the judgments in both the complaints, which are impugned in the present petition, the learned Member, Industrial Court, has formulated a wrong question for its decision and thereby obtaining wrong answer to the dispute involved between the parties, requiring interference therewith in the writ petition. 8. On account of non compliance of provisions of BIR Act, the respondent Management have committed unfair labour practice under Item 9 of Schedule IV of the Act and as such also the orders impugned in both the Writ Petitions warrants interference under extra ordinary and or supervisory jurisdiction of this Hon'ble Court. 9. 8. On account of non compliance of provisions of BIR Act, the respondent Management have committed unfair labour practice under Item 9 of Schedule IV of the Act and as such also the orders impugned in both the Writ Petitions warrants interference under extra ordinary and or supervisory jurisdiction of this Hon'ble Court. 9. The petitioners in both the writ petitions [only contesting] are entitled to full back wages for the period from 05.12.1991 onwards with continuity of service, treating all of them to be in the employment, which was not severed in law. The learned counsel has therefore contended that the approach of Industrial Court in the matter stands vitiated by error apparent in so far as the said document is concerned and this Court sitting in writ jurisdiction has to remove said error and the impugned orders therefore deserve to be quashed and set aside. He also urged that the matter can be remanded back for reconsideration of all these facets. 08/04/2010. 11. Shri Thakur, learned counsel in his reply arguments has at the outset, pointed out that though both the Complaints are decided by almost identical judgments, the nature of evidence in both the matters is substantially different. According to him, there is absolutely no evidence in Complaint ULP No. 832 of 1999 out of which Writ Petition No. 1424 of 2007 arises, to show that there was any fresh recruitment after 05.12.1991. He, therefore, states that said writ petition and challenge therein needs to be considered independently. In so far as Writ Petition No. 1428 of 2007 is concerned, he points out that there in Complaint ULP No. 529 of 1994, entire evidence which has come on record has been appreciated by the learned Member of Industrial Court and a finding has been reached thereafter. He argues that the petitioners have not chosen to rely upon their own evidence before this Court but have attempted to show some portion of cross examination of management witness Mr. Pal and on the strength of those portions, the effort has been made to build up case of violation of document at Exh. 61. He further points out that the order delivered there by the Industrial Court is dated 20.08.2002 and Writ Petition No. 1428 of 2007 has been filed before this Court on 20.02.2007 i.e. almost after 5 ½ years. 61. He further points out that the order delivered there by the Industrial Court is dated 20.08.2002 and Writ Petition No. 1428 of 2007 has been filed before this Court on 20.02.2007 i.e. almost after 5 ½ years. He, therefore, states that petition suffers from delay and latches and explanation furnished therefor in writ petition is not sufficient. 12. Without prejudice, the learned counsel has further contended that document dated 05.12.1991 is the base of both complaints and that document was never questioned by the petitioners even remotely before the Industrial Court in either of the Complaints. If the document is allowed to be questioned, according to him, the very base of those ULP Complaints vanishes and complaints, therefore, need to be dismissed. He, therefore, states that interpretation being put on said document by the petitioners is unwarranted and it overlooks the dates mentioned therein or contents thereof. He states that the applications and resignations tendered in response thereto have been rightly treated as resignations by learned Member of Industrial Court and no interference therewith is warranted in present writ petitions. 13. According to the learned counsel, the propositions placed in writing on record by petitioners did not arise for consideration in present complaints. He submits that the said propositions could have been made only before the Industrial Court via proper pleadings and then by tendering proper evidence. In absence of proper evidence and proper pleadings the documents cannot be scrutinized to find out its legality in the light of the various propositions pointed out by Shri Wachasunder. He states that none of those propositions are attracted in the present matter. 14. He further argues that the petitioners cannot be allowed to approbate or reprobate in such circumstances and seeks to rely upon the judgment of Hon'ble Apex Court in the case of (1) Nagubai Ammal and others .vrs. B. Shama Rao and others ( AIR 1956 SC 593 ); (2)R.N. Gosain .vrs. Yashpal Dhir (1992) 4 SCC 683 ) to urge that as the documents have been rightly treated as resignations, the provisions of Section 2OO of the Industrial Disputes Act are not attracted. He has placed reliance upon the judgment in case of J.K. Cotton Spinning and Weaving Mills .vrs. State of U.P. And others (1990) 4 SCC 27 ). 15. Yashpal Dhir (1992) 4 SCC 683 ) to urge that as the documents have been rightly treated as resignations, the provisions of Section 2OO of the Industrial Disputes Act are not attracted. He has placed reliance upon the judgment in case of J.K. Cotton Spinning and Weaving Mills .vrs. State of U.P. And others (1990) 4 SCC 27 ). 15. In his brief reply, Shri Wachasunder, learned counsel has invited attention to the explanation of delay and latches as given in paragraph nos. 38 and 39 of the Writ Petition No. 1428/2007 and again repeated that the document at Exh. 61 needs to be construed rightly by this Court in its welfare jurisdiction in the factual matrix. According to him, the question of reprobation does not arise here, as employees were all the while trying to get over that document and to establish their right of reemployment. He contends that infact there was no severance of relationship by that document and petitioners continued in employment and because of this not providing work is in violation of not only Section 25H as fresh employees have been recruited in their place, but it also constituted unfair labour practice under Item 9 of Schedule IV. 16. I find that first it will be proper to consider the document dated 05.12.1991 on the basis of which the petitioners approached the Industrial Court in ULP Complaint Nos. 589/1994 and 832/1999. The said document is prepared on 05.12.1991 and it records that on behalf of Management one Sanjay Agrawal is present. It also records that 5 Elected Representatives were also present along with 100 employees. The said representatives and employees have stated before the Authority before whom they were present that if, their employer was ready to pay retrenchment compensation as per law, they were ready to settle their accounts and submit resignations. After detailed discussion (as recorded) management has stated that by raising loan they have arranged amount of Rs. 20 lacs and out of it them can pay gratuity, bonus, wages for 9 months from 1990-91, 1991-92, earned leave etc., proportionately. Management further disclosed that if after proportionate payment any amount out of Rs. 20 lacs was left in balance, the same would again be utilized for effecting proportionate payments to employees. 20 lacs and out of it them can pay gratuity, bonus, wages for 9 months from 1990-91, 1991-92, earned leave etc., proportionately. Management further disclosed that if after proportionate payment any amount out of Rs. 20 lacs was left in balance, the same would again be utilized for effecting proportionate payments to employees. Thereafter the document records that workers were given time of two days i.e. next day and day thereafter [i.e. 06.12.1991 and 07.12.1991] to submit their applications and resignations. The management was given time till 17.12.1991 to pay the agreed amounts to the employees. 17. This document also records that if management started factory again or they start a new factory or arranged any other factory and started it, the management would given precedence to the employees who have resigned and they would be provided work as per need and as per their seniority. It is also recorded that the Management had offered the factory to employees to run it on co-operative basis, but the employees declined. 18. Thus, the document dated 05.12.1991 ultimately shows that about 100 employees who were present before the Authority are not signatories to this document. It is signed only by 5 elected representatives who as per the scheme of the Bombay Industrial Relations Act represent all the employees and bind them legally. The employees were given time of 2 days to give their applications and resignations and the payment was to be made after about 10 days thereafter. 118 workers have accordingly submitted their applications and resignations to the management and have taken payment on 17.12.1991 or thereafter. About 46 employees who did not accept the arrangement, did not move any application and also did not resign. They continued with the employer and later on filed independent ULPA Complaints for securing payment of their regular wages. It is therefore, obvious that the workers were absolutely free either to accept the arrangement or not to accept it. Those who intended to accept it also had time of 2 days to consider whether to accept it. They also had time to rethink whether to continue with the decision to accept and to receive the agreed amount on 17.12.1991 or then not to accept that amount. Those who intended to accept it also had time of 2 days to consider whether to accept it. They also had time to rethink whether to continue with the decision to accept and to receive the agreed amount on 17.12.1991 or then not to accept that amount. In this situation, the reference to various provisions of BIR Act by learned counsel for petitioner to urge that no proceedings for conciliation or negotiations were held between the parties in accordance with law and there was no notice of change or approach notice, are therefore irrelevant. The document only proposed arrangement and left it to the volition of individual workers whether to accept or reject it. The arrangement was accepted by some of the workers and it was not accepted by some part. There were total 174 workers and out of them 118 workers + 10 members of Staff totaling to 128 accepted the arrangement and submitted their applications and resignations. 46 workers did not accept and they continued to work with the employer. The facts therefore does not show any coercion by employer or even by any other authority like commissioner of labour on workers to accept the arrangement. Elected representatives on 5/12/1991 did nothing to prejudice the interest of unwilling employees to enable them to urge any violation of mandatory provisions of BIR Act. 19. In this situation, if said document dated 05.12.1991 was to be challenged as unfair or unvoluntary in any way, necessary pleadings pointing out as to how the agreement was forced upon unwilling workers and how they were made scape goat ought to have figured in ULPA Complaints. In both the ULP Complaints there is absolutely no whisper about any such coercion or undue influence. On the contrary perusal of ULP Complaints show that the said document dated 05.12.1991 has not been even remotely suggested to be either unfair or involuntary. Though parties have mentioned the said document as agreement, it is apparent that 54 complainants before the Industrial Court who have submitted their resignation to the employer were not parties to that document and it was open to them not to accept it. Decision to accept it and to submit application & resignations was there own. Though parties have mentioned the said document as agreement, it is apparent that 54 complainants before the Industrial Court who have submitted their resignation to the employer were not parties to that document and it was open to them not to accept it. Decision to accept it and to submit application & resignations was there own. In this situation, I do not find it necessary to consider the various propositions submitted in writing by Shri Wachasunder, learned counsel to urge that said document is illegal and void. The act of submitting applications and resignations after 05.12.1991 needs to be viewed independently and in the absence of appropriate pleadings and evidence on record, the said act on the part of the petitioners cannot be accepted as involuntary. The learned Member of the Industrial Court has therefore correctly appreciated the situation. Resignations here can not be looked as one procured by management that too by practicing any fraud or deceit. 20. The judgment of Hon'ble Apex Court in the case of J.K. Cotton Spinning and Weaving Mills (supra), considers the provisions of U.P. Industrial Disputes Act, 1947. Section 2[s] thereof defines retrenchment and it is pari materia with Section 2OO. The said judgment clearly show that the resignation cannot be treated as retrenchment. The learned Member of the Industrial Court therefore has rightly found that the provisions of Section 25H of the Industrial Disputes Act are not attracted in present facts. 21. The document dated 05.12.1991 extends a promise to employees who have submitted resignation to provide them work again by giving preference if the work become available as per their seniority. The burden to show that work had become available was therefore upon petitioners. Perusal of evidence in ULP Complaint No.832/1999 (Writ Petition No.1424/2007) shows that only two employees were examined by complainants before the Industrial Court to substantiate their contentions. Appreciation of this evidence by the Industrial Court will be commented upon little later. In complaint as filed, the complainants have given cause of action as arising on 31.09.1992 and have specifically stated for the first time it arose on that date. This stand is also taken in ULP Complaint No.529/1994. In the entire evidence there is nothing about the dated 31.09.1992. In fact there cannot be a date like 31.09.1992. In complaint as filed, the complainants have given cause of action as arising on 31.09.1992 and have specifically stated for the first time it arose on that date. This stand is also taken in ULP Complaint No.529/1994. In the entire evidence there is nothing about the dated 31.09.1992. In fact there cannot be a date like 31.09.1992. The complainants in both the matters were aware of the document dated 05.12.1991, of the fact that 46 colleague employees have not accepted the arrangement as prescribed therein and were continued in employment of their employer. In spite of this knowledge they have not taken any stand either to assail the document dated 05.12.1991 or then to assail the treatment extended to them as by way of victimization etc. They have proceeded as if the document dated 05.12.1991 is legal and valid and have sought its enforcement. In view of this position, it is apparent that effort is being made for the first time in this Writ Petition by the complainants to show that the said document is null and void and cannot be allowed. The learned counsel for respondent employer has relied upon the two judgments to urge that the petitioners cannot be allowed to be approbate and reprobate. It is clear that in the absence of specific pleadings in ULP Complaints and of evidence in that respect on record, the stand as sought to be taken cannot be allowed to be raised. The stand does not raise only simple and pure question of law, but also demands answer to various questions of facts. The opportunity to employer to bring on record necessary facts and to cross examine the witness of complainants in that regard was essential & ought to have been extended. As all this could not take place in the Industrial Court, in writ jurisdiction for the first time such question cannot be allowed to be raised. 22. In ULP Complaint No.832/1999 the employee Ramesh Patole has filed his affidavit on examination-in-chief and in entire affidavit he has not given details of any re-employment or fresh recruitment undertaken by his employer. In his cross examination, he has mostly accepted the suggestion put to him by the respondent employer. 22. In ULP Complaint No.832/1999 the employee Ramesh Patole has filed his affidavit on examination-in-chief and in entire affidavit he has not given details of any re-employment or fresh recruitment undertaken by his employer. In his cross examination, he has mostly accepted the suggestion put to him by the respondent employer. The other witness Sudhodhan has not turned up for cross examination and hence his evidence has been discarded by the Industrial Court and management examined its witness Shri Arjun Kurvey, Personal Officer and his cross examination also does not help the complainants in any way. It is therefore, apparent that in ULP Complaint No. 832/1999 there is absolutely no evidence 0f any fresh recruitment or than of reemploying any body by superseding the claim of complainants. The dismissal of that complaint by the Industrial Court therefore, does not call for any interference in writ jurisdiction. 23. In Writ Petition No. 1428/2008 the employer has raised objection about the delay and latches. In paragraph no.35, 37 and 39 of the Writ Petition the petitioners have sought to explain the same. They have stated that after the impugned judgment delivered in 2002 they felt dejected and then learnt about pendency of other ULP Complaint No. 832/1999 filed by other employees. As the issues raised therein were identical, they thought it fit to wait for its decision and that result or decision came in the month of June, 2006. They learnt that that complaint was also dismissed by the Industrial Court. They also learnt that complainants in Complaint No. 832/1999 have approached this Court and hence they also decided to approach in Writ Petition. Accordingly this Writ Petition has been filed on 20.02.2007. The reasons put forth clearly show that the petitioners in Writ Petition No.1428/2007 therefore were aware that they have to challenge the adverse order of Industrial Court dated 20.08.2002 before this Court, however, they postponed the decision about such challenge after learning about the pendency of ULP Complaint No.832/1999. I do not find any logic in the reason given on affidavit. If ULP Complaint No. 832/1999 was to be allowed, it was still necessary for petitioners to challenge the adverse judgment dated 20.08.2002 and without having it set aside they could not have obtained any relief against their employer. The challenge needed to be made in reasonable time. I do not find any logic in the reason given on affidavit. If ULP Complaint No. 832/1999 was to be allowed, it was still necessary for petitioners to challenge the adverse judgment dated 20.08.2002 and without having it set aside they could not have obtained any relief against their employer. The challenge needed to be made in reasonable time. If they had decided not to challenge the adverse order in case ULP Complaint No.832/1999 was itself dismissed, then only there was some point in waiting till that adjudication. I, therefore, do not find that the period of about 4 ½ years was spent in waiting and delay/latches have not been properly explained. Petition therefore needs to be dismissed on this short ground. 24. Coming to the merits of the matter, the learned counsel for respondent no.2employer is right in contending that the petitioners have not referred to, or relied upon their own evidence to bring on record the re-employment or fresh recruitment, allegedly resorted to by the employer. They have only made reference to alleged admissions given in the cross examination by the witness for management Shri Paul. In view of the arguments advanced by the petitioners it is not necessary for this court to reappreciate the evidence led by the employees before the Industrial Court as it does not assist their cause. The appreciation of that evidence by Industrial Court has not been even argued to be even perverse. Perusal of evidence of Shri Paul, particularly his cross examination shows that the witness accepted that Mr. Vijay Mishra and Ashok Hendve were not working prior to 1991 and he has stated that these two persons joined between 1994 to 1996. He has further stated that they were working on the post of Assistant Furnace Operator and he has further stated that none of the complainant before the Industrial Court was working on that post. However, later on he has accepted that the employees namely Prakash Wagh, S.G. Ganvir and Wamdeo Wandhare were working on the post of Assistant Furnace Operator. Then he has explained that these three employees were offered employment in the post of Assistant Furnace Operator and also accepted that no document showing that such offer was made to these employees was placed on record as the management did not find it necessary. He has also admitted that Mr. Then he has explained that these three employees were offered employment in the post of Assistant Furnace Operator and also accepted that no document showing that such offer was made to these employees was placed on record as the management did not find it necessary. He has also admitted that Mr. Subhash Waheti, Milandas and Suresh Bhonde were working on the post of Crane Operator and employees namely Umrao Tanbhane, Harida Kute and Narayan Nikhade were recruited on the post of crane operator as fresh recruit. He has again stated that prior to their appointment, the management had offered reemployment to earlier crane operators namely Subhash, Milandas and Suresh Bhonde and out of 4, employment was given to one. It could not be given to remaining three as they do not respond to employer's offer. In paragraph no.14 he has stated that in Galvanization Section the employee namely Subhash Sinha, Ansari, Subhash Sable, Umesh Tidke were working as assistant electricians and he has also added that they were not confined to galvanization section only. He has then denied that any new persons were recruited in place of assistant electricians. He explained that Shri Sinha was required to be recruited by virtue of orders of Court and new hands were required to be recruited, as its employees do not respond to their offer of recruitment. He denied that no such offer was made. He however, denied whether employee named F.M. Lambat was working as Shefarman. He has accepted that new recruit was appointed as Shefarman, as earlier there was no post like that. He has accepted that in the year 1998 in Galvanizing Section Shri Sherekar and Shri Chutke were working and other employees i.e. Shri Malve, Shri Kale, Shri Bahekar were working along with them. He also accepted that one Shri Choudhary was also working as staff employee. He accepted that in galvanizing section in 1998 employees namely Shri Waghmare, Shri Chaturvedi, Shri Bansod, Shri Magrale, Shri Ghushal, Shri Gaigavali and Shri Kawale were working. He stated that he did not remember whether Shri R.Srinivas, Shri Khandale and Shri Koya were working. He accepted that in 1998 Shri Ramteke, was working in the fabrication section. He accepted that in galvanizing section in 1998 employees namely Shri Waghmare, Shri Chaturvedi, Shri Bansod, Shri Magrale, Shri Ghushal, Shri Gaigavali and Shri Kawale were working. He stated that he did not remember whether Shri R.Srinivas, Shri Khandale and Shri Koya were working. He accepted that in 1998 Shri Ramteke, was working in the fabrication section. He states that he did not remember whether Shri Shende, Shiv Prasad, S. Khadse, Sakhare, L. Waghade, F. Thavkar, M. Chanoe, S. Avhane, Ulkey, W. Shendre, Duryoahan Mahurle, S. Kapse, D. Bhoyar, A. Sakharwade, I. Khobragade, P. Dahiwale, Devidas Mohurle, R. Kotnaike and S. Avsare were working in fabrication section. He denied that all these employees were newly recruited in fabrication section in the year 1998. 25. This evidence therefore shows that at least assistant furnace operator, crane operator and some other employees were newly recruited by respondent no.2. In view of the document dated 05.12.1991 burden was upon respondent no.2 to show the circumstances in which new recruitment was resorted to. That burden has not been discharged. The contention that complainants ought to have given notice to produce document, is misconceived and cannot be accepted. Party in possession of best evidence is duty bound to produce it and here positive evidence/material was possible only with employer. However, in view of the findings above, that filing of writ petition itself is belated and suffers from delay and latches, though Industrial Court has not considered this evidence, it is not possible for me to give any relief to the complainants in the present facts. 26. In view of the findings reached above, I do not find any case made out warranting any interference with the judgments delivered by the Industrial Court and impugned in both the Writ Petitions. Writ Petitions are therefore, dismissed with no order as to costs. Rule discharged accordingly.