1 W.P.No.1024 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.1024 OF 2011 Tarabai Bandu Shirsath, Age 42 years, Occu.Nil, R/o At Waghale, Begharwasti, Post Hatale, Taluka Chalisgaon, District Jalgaon ..PETITIONER VERSUS 1. Chairman, Gautam Magasvargiya Educational Institution, Bajaj Complex, Chalisgaon, Taluka Chalisgaon, District Jalgaon 2. Secretary, Gautam Magasvargiya Educational Institution, Bajaj Complex, Chalisgaon, Taluka Chalisgaon, District Jalgaon 3. Head Master, Konga Nagar Ashram School, Waghale Tanda, Taluka Chalisgaon, District Jalgaon 4. Social Welfare Officer, District Social Welfare Office, Administrative Building, Akashwani Chowk, Jalgaon, District Jalgaon 5. Sushilabai Rohidas Chavan, Age Major, Occu.Service, R/o At Waghale, Post Hatale, Taluka Chalisgaon, District Jalgaon ..RESPONDENTS 2 W.P.No.1024 of 2011 Mr Sandesh R.Patil, Advocate for petitioner Mr P.B.Patil, Advocate for respondents 1 to 3 CORAM : K.U.CHANDIWAL, J. DATE OF RESERVING THE ORDER : 8.12.2011 DATE OF PRONOUCNING THE JUDGMENT : 21.12.2011 JUDGMENT 1. Heard extensively. Rule. Rule made returnable forthwith. 2. The petitioner has questioned propriety and legality of orders dated 7.8.2009 passed by learned Member, Industrial Court, Jalgaon and the judgment and order dated 26.9.2008 of learned Judge, Labour Court, Jalgaon in Complaint (ULP) No.146/1998. 3. The petitioner asserts, she was duly appointed as a Cook in respondent No.3 – Ashram School, conducted by respondent No.1 – Institution. Her appointment was on probation, it was vacant and permanent post. She received appointment order every year. She has completed probation on 6.8.1998 and it was incumbent upon respondents 1 and 2 to make her permanent in service, but it was not made. Consequently, she issued a letter to respondent No.4. In spite of petitioner’s serving diligently, as a Cook, she was orally terminated on 16.8.1998. 3 W.P.No.1024 of 2011 4. The respondents denied that the petitioner’s services are terminated on 16.8.1998. According to them she was appointed temporarily for academic year 1995-1996, again for the year 1996-97 and then for 1997-1998. No further appointment order was issued after 1998-1999. In May 1998, an advertisement was published in newspaper for appointment of Cook but, the petitioner did not appear in the interview and consequently, one Sushilabai Chavan was appointed. 5. The Social Welfare Officer denied adverse allegations. According to him the petitioner was appointed purely on temporary basis, she has not completed 240 days in any year and Social Welfare Department has no concern with appointment of Sushilabai Chavan. 6. The learned Judge, Labour Court, on evaluation of evidence and documents did not accede to the urge of the petitioner that she was terminated orally w.e.f. 16.8.1998. 7. The scope and jurisdiction under Section 44 of M.R.T.U. & P.U.L.P. Act, 1971 has inbuilt limitations. The Industrial Court has only supervisory jurisdiction in which it cannot re-appreciate the evidence and overturn the findings of facts nor re-assess the evidence. 4 W.P.No.1024 of 2011 8. The petitioner, as could be seen was appointed as a Cook without any advertisement or without appearing before any selection Committee, purely on temporary basis. The record illustrates, her brother was a treasurer in the institution and yield pressure on ensuring her appointment for the post of Cook. Even if the petitioner served continuously for three years referred above, however, she knew it was a temporary and ad hoc arrangement without any lawful appointment. On 6.8.1998 she made an application to regularise her services. It was brought on record that there was no oral termination on 16.8.1998 but, the petitioner was not continued for the academic year 1998-1999. 9. The appointment of the petitioner was temporary and periodical. Consequently, she will not be eligible to take effect of Section 25-F of the Industrial Disputes Act, 1947. Since she was not continued, the temporary services are naturally came to an end from 1998 onwards. The petitioner was appointed by different letters dated 9.6.1995, 1.6.1996 and 1.7.1997 for a particular academic year. Computation of each year’s period does not exceed 240 days. Certain papers produced by the petitioner before the learned Labour Court in respect of her lodging report with Police were not established by her and consequently, the learned Judge, Labour Court did not entertain the same. 5 W.P.No.1024 of 2011 10. In the present proceedings, additional affidavit was produced annexing several documents by the petitioner and consequently, respondents were also called upon to file affidavit, if any. 11. The learned Counsel for the respondents 1 to 3 has rightly objected filing of additional documents by the petitioner in writ jurisdiction. Any accommodation to the petitioner by virtue of orders of the Labour Court during pendency of the proceedings certainly will not be a ground to extend continuation to her in spite of there being termination order after certain period. In January 2011, if the petitioner has worked, that will also not diminish effects of her temporary service or will not activate her case to stake claim of permanency on the post of Cook. The record illustrates, by virtue of regular advertisement already post of Cook is filled in and the incumbent is working. It would be prejudicial upon the incumbent if the case of the petitioner is reassessed and considered to be appointed as Cook, as it will shatter the regular appointment effected by following procedure of one Sanjay Khairnar. 12. The plight of the petitioner explained by the learned Counsel, as she has to maintain three children and she is widow, though attracts sympathy, however, will not be within the bracket of awarding her either permanency or to adversely affecting the regular appointment made by the respondent to Shri Khairnar, however, care can be taken to compensate the petitioner. 6 W.P.No.1024 of 2011 ORDER Writ petition dismissed. Rule discharged. The respondent No.1, 2 and 3 to pay consolidated amount of Rs.50,000/- to the petitioner within sixty days from the order. ( K.U. CHANDIWAL, J.) (vvr1024.11wp)