WP/6205/1998 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6205 OF 1998 Nasik Shikshan Prasarak Mandal & anr. ... Petitioners V/s. Sou. Hirabai Shankar Lahamage ... Respondent Mr.M.V. Limaye for Petitioners Mr.M.S. Karnik for Respondent CORAM: SMT.NISHITA MHATRE, J. DATE: FEBRUARY 10, 2011 ORAL JUDGMENT: 1. The Petition has been preferred against the order passed by the Industrial Court, Nasik on 3.1.1998. This order was passed in a complaint filed by the respondent workman under Items 5, 6 and 9 of Schedule IV of the MRTU & PULP Act. 2. The brief facts involved in the present petition are as follows: Petitioner No.1 is a trust which runs the Adarsha Marathi Shala i.e. Petitioner No.2. It also runs a Balwadi known as Adarsh Marathi Shala Bal Mandir. The Petitioner No.1 employed the respondent in its Balwadi as a Sevika or Health Worker on 1.7.1983. She was being paid `60/- per month. Thereafter, her wages were increased and when the complaint was being decided the salary that the Respondent was drawing was `300/- per month. WP/6205/1998 : 2 : 3. The respondent filed a complaint on 5.9.1990 being complaint (ULP) No.615 of 1990 before the Industrial Court, Nashik alleging that the Petitioners had indulged in unfair labour practices under Items 5, 6 and 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. She contended therein that she had been employed on a temporary basis continuously for years together. She pleaded further she had worked for 240 days in each calendar year and that she had been employed for five years continuously in the Balwadi. She contended that two other women who were junior to her had been made permanent and the petitioners had thus committed an unfair labour practice under Item 5 of Schedule IV of the MRTU & PULP Act. It was also contended that she was entitled to a payscale of class IV employees of the aided school run by the petitioners. 4. The petitioners opposed the complaint by filing their written statement. The allegations in the complaint and more specifically the allegation that they had made two other employees permanent although they were junior to the respondent were also refuted by the Petitioners. It was further pleaded that since the respondent was employed in an unaided Balmandir or Balwadi she was not entitled to the pay and benefits of class IV employees in an aided school. 5. Evidence was led by the parties before the Industrial Court. The respondent admitted that she was working in the Balwadi. She also admitted that she was not aware whether other employees in the Bal Mandir and were getting the same salary as those in the aided schools run by Petitioner No.1. WP/6205/1998 : 3 : 6. The Industrial Court after considering the evidence on record held that the respondent had proved that the petitioners had committed unfair labour practices under Items 5, 6 and 9 of Schedule IV of the MRTU & PULP Act. A direction was issued to the petitioners to pay the respondent the same wagescales as were applicable to the permanent class IV employees in the aided school and that the respondent would be entitled to all consequential benefits from the date she filed the complaint i.e. w.e.f. 5.9.1990. The petitioners were further directed to consider her case for promotion and to appoint her as a peon in the school on a priority basis. 7. Mr.Limaye, appearing for the Petitioners, submits that the respondent was employed in a Balwadi which is run by petitioner No.1. However, the Balwadi was not made a party to the complaint. He then submits that in any case neither the trust which runs the Balwadi nor the Balwadi itself can be considered as an industry as defined u/s 2(j) of the Industrial Disputes Act. According to him, the Industrial Court has not considered this issue at all prior to deciding the claim on merits. The learned advocate points out that the Balwadi being an unaided school the employment of the respondent was merely contractual. He submits that no legislations have been enacted to govern the service conditions of the teachers and non teachers employed in pre-primary schools. The respondent was employed as a helper and she admittedly was being paid the same salary as other helpers in the establishment. According to Mr.Limaye, there was no evidence on record to indicate why the respondent was entitled to the same scale as payable to the class IV employees in aided schools. Furthermore, he submits that the respondent has attained the age of superannuation in 2008 and therefore, what falls for consideration in the petition now WP/6205/1998 : 4 : is only whether the petitioners are bound to pay wages to the respondent at par with the class IV employees in the aided primary school run by the petitioners. 8. This matter was adjourned time and again in order to enable the parties to settle the dispute between them on monetary basis. However, the gap it appears is too wide as though the petitioner offered `2 lakhs, the respondent claimed `30 lakhs. 9. I have perused the impugned order and in my opinion, it deserves to be set aside. Although Mr.Limaye has submitted that the complaint itself was not maintainable since the Balwadi was not an industry, I need not delve into that aspect since the petitioners had not raised this issue in their written statement. Whether an establishment is an industry or not is a question of fact. Parties went to trial without leading any evidence on this issue as the maintainability of the complaint was not contested by the petitioners. Reliance placed by Mr.Limaye on the judgment of the Delhi High Court in the case of Shakuntala v. M/s. Tamanna Special School, 2006 LAB. I.C. 3700 would be of no avail to the petitioners. The Delhi High Court has held that a helper in a Balwadi project run by Non-Governmental Organisation for imparting education to the children of labourers could not claim that the project was an industry. In the present case, however, there is no evidence at all led to establish whether or not the Balwadi is an industry as defined u/s 2(j) of the Industrial Disputes Act. Unless a foundation is laid through evidence that the Balwadi is not an industry, the petitioners cannot raise the issue at this stage. 10. As regards the merits of the case, in my opinion, the Industrial Court has WP/6205/1998 : 5 : erred in allowing the complaint. There is no basis for the Industrial Court to conclude that the respondent was entitled to the same wages as payable to employees of employees of an aided school. Admittedly, the Balwadi was not an aided school. It was a school run to impart education at the pre-primary level. Mr.Limaye states that there are no laws which regulate the school run as Balwadi or the education imparted in the pre-primary school. The Industrial Court in my opinion, therefore, erred in equating the work done by a helper in a pre-primary school with that of a helper in a primary aided school. Assuming the work was similar, the respondent cannot claim parity with the employees of a school which was aided. The Industrial Court has noted that the respondent had applied for the post of peon in the aided school run by petitioner No.1. Documentary evidence was produced to establish that the respondent was invited for an interview to that school. However, it appears that she was not found suitable for the post in the aided school. 11. In these circumstances, in my opinion, the Industrial Court has completely erred in granting the relief to the respondent. 12. The Writ Petition is therefore allowed. Rule made absolute. No order as to costs.