1 wp-6382-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6382 OF 2011 The State of Maharashtra through The Divisional Woman and Child Development Officer, Pune Division, Pune and ors. ..Petitioners Vs Sou.Lalita Waman Sabale ..Respondent -- Mr.P.B.Sawant, for petitioners. Mr.M.R.Deshpande, for respondent. -- CORAM : R.G.KETKAR, J. DATE : 23 rd SEPTEMBER, 2011 P.C.: Heard Mr.P.B.Sawant, learned A.G.P. for the petitioners and Mr.M.R.Deshpande, learned counsel for the respondent. Rule. Shri.Deshpande waives service. By consent of the parties, Rule is made returnable forthwith and is heard finally. 2] By this petition, the petitioners challenge the judgment and order dated 25 th April, 2006 passed by the learned Judge of the First 2 wp-6382-11.sxw Labour Court, Solapur in Complaint (ULP) No.98 of 2002 as also the judgment and order dated 2 nd February, 2011 passed by the learned Member, Industrial Court, Solapur in Revision Application (ULP) No. 74 of 2006. By these orders, the Courts below allowed the complaint made by the respondent under Section 28 read with items 1(a) and (b) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short “the Act”). The Courts below directed the petitioners herein to reinstate the respondent with continuity of service with full back wages at the rate of her appointment. 3] The respondent filed complaint inter alia contending that she joined services of the petitioner on 12 th August, 1999 on daily wages. Her service was terminated orally from 6 th August, 2002. Prior to her appointment, her name was entered with the District Social Welfare Office and she was sponsored by that office when vacancy of sweeper was to be filled in. According to her, she has worked for more than 240 days continuously in one year on daily wages. She was, however, paid wages for two months and thereafter she was not given wages. There was no compliance of Section 25e, 25g and 25h 3 wp-6382-11.sxw of Industrial Disputes Act, 1947 and Rule 81 thereunder. On these among assertions, she filed complaint praying for reinstatement with continuity of service along with full back wages. The petitioners resisted the complaint by filing reply. It was submitted that the complainant is governed by the Maharashtra Civil Services Rules and consequently, the complaint is not maintainable. According to the petitioners, the respondent was appointed from 12 th August, 1999 to 12 th September, 1999 and again by order dated 5 th October, 1999 she was appointed purely on temporary basis. The question, therefore, of her continuous service upto 6 th August, 2002 does not arise. The petitioners also contended that the respondent is entitled to the benefit of permanency. 4] Parties led oral as well as documentary evidence. During her evidence, the respondent stated that she used to sign on the gate register and she was not allowed to sign on the muster roll. Her statement went unchallenged. It was further stated that her signatures were obtained on the gate register which was also not denied by the petitioners. On behalf of the petitioners, Ashok Shinde Superintending In-charge was examined. In his evidence, he stated 4 wp-6382-11.sxw that he joined the office at Malshiras in the year 2003. Obviously, he was not having any personal knowledge about the services of the respondent including termination of the respondent on 6 th August, 2002. The respondent produced the copy of letter dated 19 th August, 2002 addressed by the petitioners herein in which it was stated that from 12 th August, 1999 till 14 th February, 2001, the respondent worked on the post of peon. She also produced copy of the summons in Regular Criminal Case No.301 of 2002 i.e. of Sessions Case No.65 of 2001. In that summons, the address of the respondent was shown at the premises allotted by the petitioners. The witness examined by the petitioners Ashok Shinde also admitted that there accommodation is provided to Sweepers at Malshiras and they do not allow any person to enter in the accommodation unless he is in service. 5] Considering this material on record, by judgment and order dated 25 th April, 2006, the learned Judge of the Labour Court came to the conclusion that the respondent was continued work in the service of the petitioner till she was terminated on 6 th August, 2002. The termination was illegal. The learned Judge accordingly order the 5 wp-6382-11.sxw petitioners to reinstate the respondent within continuity of service as also directed to pay full back wages. Being aggrieved with this order, the petitioners preferred Revision under Section 44 of Act before the Industrial Court. By the judgment and order dated 2 nd February, 2011, the Revision was dismissed by the Industrial Court. It is against these decisions the present petition is preferred. Mr.Sawant strenuously contended that the respondent was appointed purely on temporary basis on daily wages. By first appointment letter dated 31 st July, 1999, her appointment was for 29 days and by second appointment letter dated 5 th October, 1999 also it was for 29 th days. Thereafter, it she was not issued any appointment letter. The respondent also admitted that she was paid wages for 2 months. Thereafter, she was not paid any wages. Thus, the stand of the petitioners is that thereafter the respondent did not work continuously till 6 th August, 2002. 6] As noted earlier, the Courts below after appreciating the material on record and in particular, the documents of the respondent, came to the conclusion that the respondent had worked till her termination on 6 th August, 2002. It therefore cannot be said 6 wp-6382-11.sxw that the respondent worked only for 29 days as per the first appointment letter and again for 29 days on the basis of second appointment letter. The Courts below also considered the case of the respondent that she was signing gate register went unchallenged. The petitioners did not produce gate register to falsify the claim of the respondent. The respondent also produced summons in Sessions Case No.65 of 2001 wherein, the address of the respondent was shown at the premises allotted by the petitioners. It is in these circumstances not possible to accept the submissions made by the learned counsel for petitioners that the respondent worked for 29 days pursuant to the first appointment letter and again for 29 days as per the second appointment letter and that thereafter she did not work at all. 7] Mr.Sawant tried to contend that appointment of the respondent was not made after following the recruitment rules in this behalf. In the first place, no such contention was advanced in the written statement. Secondly, no such contention was even raised before the Labour Court. Thirdly, no such contention was raised in the memo of revision application. The petitioners also did not produce any 7 wp-6382-11.sxw material to substantiate that the appointment of the respondent was made contrary to the rules. This contention is raised for the first time in this Court without there being any foundation. It is in these circumstances I did not permit Mr.Sawant to urge this point. In the result, petition fails and the same is dismissed. Rule is discharged with no order as to costs. [R.G.KETKAR, J.]