- (1.) By this Special Civil Application, the petitioner seeks an appropriate writ for setting aside the impugned order dated 16th September 1975 passed by the 2nd respondent, viz., the Presiding Officer, 2nd Labour Court, Bombay, and for directing the 2nd respondent to record the evidence of the employer, namely, the 1st respondent, before recording the evidence of the petitioner on a certain preliminary issue.
(2.) The petitioner was an employee of the 1st respondent-Company from 1957 till his services were terminated on 3lst July 1973. The petitioner's demand for reinstatement having been rejected by the employer, and conciliation proceedings having resulted in a failure report, the petitioner's demand for re-instatement was referred for adjudication to the 2nd respondent, and was taken on file as Reference No. 60S of 1974. Thereafter the petitioner filed his statement of claim setting out his case for re-instatement and in due course the employer, viz., the 1st respondent-Company, filed its written statement, The preliminary defence taken up in the written statement was a challenge to the maintainability of the reference on the ground that the petitioner was not a "workman" under Section 2 (s) of the Industrial Disputes Act, 1947 (referred to hereafter as "the Act), with the result that the dispute referred for adjudication was not an industrial dispute. As a result of an agreement between the petitioner and the employer, the 2nd respondent ordered that the question whether the petitioner is a "workman" should be decided as a preliminary issue. As however, the parties were not ad idem as to who should lead evidence first, the 2nd respondent, after hearing the parties, passed his impugned order dated 16th September 1975 directing the employee, namely, the petitioner, to adduce evidence to substantiate that he is a "workman'' within the meaning of the definition of the term "workman" jn Section 2 (s) of the Act. Hence the present Special Civil Application for the reliefs set out in the opening part of the judgment.
(3.) Challenging the impugned order, Mr. Deshmukh, the learned Counsel appearing on behalf of the petitioner, urged that it was for the employer, viz., the Jst respondent-Company, to lead evidence first in order to establish the preliminary point taken in the forefront in the written statement. On the other hand, Mr. Damania, the learned Counsel appearing on behalf of the employer, urged to the contrary, on the ground that the petitioner having alleged in his statement of claim to be a "workman", it was for him to substantiate the same by first leading evidence on that aspect.;