1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.546 of 2008 Shirala Taluka Co-op. Credit Society Ltd. Petitioner Vs. Shri Subhash Ramkrishna Patil & ors. Respondents Mr.J.S.Suryawanshi with Mr.R.S.Ghadge for petitioner. Mr.Mahesh Shukla for respondent no.1. CORAM: B.H.MARLAPALLE, J. January 25, 2008 ORAL ORDER: 1. Heard Mr.Suryawanshi, the learned counsel for the petitioner - Society. 2. Rule. 3. Mr.Mahesh Shukla waives service for the respondent no.1. Respondent no.3 is not a necessary party and hence be deleted forthwith. Respondent no.2 is a formal party. 4. By consent the petition is taken up for final hearing forthwith. This petition impugns an interlocutory order passed below Exhibit C-6 by the learned Judge of the First Labour Court at Mumbai on 2 28/11/2007 and, therefore, it is being treated as a petition under Article 227 of the Constitution. 5. Respondent no.1 has filed an application under Section 33-C (2) of the Industrial Disputes Act, 1947 for recovery of financial dues against the present petitioner and its Secretary claiming that he was an employee of the petitioner - society and the said application has been registered as Application (IDA) No.263 of 2006. In the said application the petitioner-society filed Exhibit C-6 and prayed for leave to bring on record certain documents like the copies of the Managing Committee resolutions etc. The said application has been rejected on the ground that in the Written Statement, the employer-employee relationship was not disputed and it was not mentioned that he was doing the work on half day basis. The Written Statement was filed on 11/4/2005 whereas the application at Exhibit C-6 on 28/11/2007 and there was no genuineness. The Labour Court further held that whatever was not pleaded could not be brought into evidence and it would be prejudicial to the other side if the production is allowed. 6. The learned counsel for the respondent no.1 on 3 the other hand has relied upon the evidence of Shri Ganesh Ananda Sawant and Shankar Govind Patil (respondent no.2) as recorded before the Labour Court and submitted that admittedly there was no prima facie evidence to show that the applicant was a part timer and both the witnesses have admitted that he was a full time employee. 7. With the assistance of Shri Suryawanshi I have perused the Written Statement, a copy of which has been brought on record along with the petition memo and it has been clearly pleaded that the applicant was not an employee of the petitioner-society from 6/1/1998 and he was only one of the daily collection agents to assist the society for recovery of loan amounts from borrowers. It has been further pointed that he was not given any fixed day timings and, therefore, he was paid some amount as commission. It has also been pointed out that he is the owner of one auto-rickshaw bearing No.MH-02-P-6957 and whenever he got time from his normal time of driving rickshaw, he used to work as daily collection agent for the petitioner-society. It has been further stated that he applied for the post of peon and in the said application he clearly stated that he was already 4 working as recovery agent or daily collection agent for the Bank whenever he had time. This application dated 22/2/2004 was considered and as per the resolution passed by the managing committee, the applicant was appointed as a peon with effect from 1/4/2004 on temporary basis. The evidence of both the witnesses i.e. Shri Ganesh Sawant and Shri Shankar Patil is consistent with the Written Statement filed. In the cross-examination some questions were put to both the witnesses regarding the written documents about the working hours and both the witnesses admitted that there was no such document to show that the applicant was attending the work of collection agent between 4 p.m. to 8 p.m. It was also admitted in the cross-examination that rickshaw no. MH-942-P-6957 belongs to the uncle of the petitioner but no further question was asked whether the petitioner used to drive the same, which the witness very clearly stated in his affidavit in examination-in-chief. These questions here and there would not make out a case to oppose the application to bring on record certain resolutions in support of the petitioner - society’s contentions that the applicant was not its employee and he was only assisting it as a recovery agent or commission agent 5 in his spare time. The learned Judge of the Labour Court has apparently not gone through the Written Statement and passed the impugned order on totally erroneous grounds. If the application submitted by the the respondent no.1 has to be decided on merits, it is necessary that the documents sought to be produced along with the application at Exhibit C-6 are taken on record and in any case they can be exhibited only after they are proved by oral evidence. 8. Hence this petition succeeds and the same is hereby allowed. The impugned order dated 28/11/2007 is hereby quashed and set aside and the application at Exhibit C-6 stands allowed. 9. Trial of Application (IDA) No.263 of 2006 is hereby expedited. 10. Rule is made absolute accordingly with no order as to costs.