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Madhya Pradesh High Court

The State Of Madhya Pradesh vs Jagendra Bahadur Singh on 28 November, 2023

                                                            1
                            IN    THE       HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                      BEFORE
                                          HON'BLE SHRI JUSTICE VINAY SARAF
                                             ON THE 28 th OF NOVEMBER, 2023
                                             WRIT PETITION No. 16188 of 2006

                           BETWEEN:-
                           1.    THE STATE OF MADHYA PRADESH THROUGH :
                                 SECRETARY WATER RESOURCES DEPTT. BHOPAL
                                 (MADHYA PRADESH)

                           2.    CHIEF ENGINER WATER RESOURCES DEPTT.
                                 GANGA KACHAR REWA (MADHYA PRADESH)

                           3.    EXECUTIVE ENGINEER OCCUPATION: LIGHT
                                 MACHINERY LEFT ADN GATE DEPTT. WATER
                                 RESOURCES DEPTT. REWA (MADHYA PRADESH)

                           4.    SUB DIVISIONAL OFFICER OCCUPATION: LIGHT
                                 MACHINERY WATER RESOURCES DEPTT. REWA
                                 (MADHYA PRADESH)

                                                                                        .....PETITIONER
                           (BY SHRI V.P. TIWARI-ADVOCATE)

                           AND
                           1.    JAGENDRA BAHADUR     SINGH    S/O   LATE
                                 MANOJUSINGH, AGED ABOUT 42 YEARS,
                                 OCCUPATION:     FARMER       R/O VILLAGE
                                 DHANKHER, POST BACHBAI , DISTRICT SATNA
                                 (MADHYA PRADESH)

                           2.    THE PRESIDING OFFICER LABOUR COURT REWA
                                 (MADHYA PRADESH)

                           3.    MEMBER JUDGE INDUSTRIAL COURT REWA
                                 (MADHYA PRADESH)

                                                                                     .....RESPONDENTS
                           (BY SHRI LAL RAJ BAHORAN SINGH CHOUHAN-ADVOCATE)

                                 This petition coming on for final hearing this day, the court passed the

Signature Not Verified
Signed by: PREETI TIWARI
Signing time: 12/2/2023
1:14:05 PM
                                                               2
                           following:
                                                               ORDER

With the consent of parties, the matter is heard finally.

2. The present petition has been preferred challenging the award dated 20.9.2004 passed by Labour Court Rewa directing regularization of the respondent on the post of Skilled Labour and the order dated 25.4.2005 passed by the Industrial Tribunal Rewa whereby the appeal preferred by the petitioner was dismissed and the appeal preferred by the respondent was allowed and the order of the labour court was modified to the extent that the respondent will be classified as Gate Mechanic in place of Skilled Labour as ordered by the Labour Court.

3. The short facts of the case are that the respondent is working with the Water Resources Department since 1.9.1977 as daily wager. According to the respondent, he is working as Gate Machanic whereas according to the petitioner, the respondent was working as Skilled Labour. As the respondent was not classified therefore, the respondent approached the Labour Court Rewa and filed an application under Section 31(3) of the M.P. Industrial Relation Act, 1960 with a prayer to classify the respondent as Gate Machanic and pay the difference amount of payscale. The petitioner opposed application and after recording the statement of the parties, the Labour Court vide order dated 20.3.2004 partly allowed the application filed by the respondent and ordered to classify as Skilled Labour and pay the payscale payable to the Skilled Labour. Being aggrieved by the said order, the petitioner challenged that order in appeal before the Industrial Tribunal, Rewa which was dismissed on 25.4.2005 and the appeal of the respondent was allowed and he was directed to be classified permanently in the post of Gate Machanic with the pay difference Signature Not Verified Signed by: PREETI TIWARI Signing time: 12/2/2023 1:14:05 PM 3 of the salary.

4. Learned G.A. appearing on behalf of the petitioner submitted that there was no any vacant post of Gate Machanic in the department and therefore, the respondent was a daily wager could not be ordered to be regularized and classified as on the post of Gate Machanic. The second objection raised by learned G.A. that due to the notification issued by the state government, entry no.16 in the M.P. Industrial Relation Act, 1960 has been omitted, therefore, the provisions of the Act are not applicable to the petitioner department.

5. Learned G.A. has relied on the judgments of Apex court reported in (2006) 7 SCC 755 (State of Rajasthan & Anr. Vs. Gyan Chand) whereas the Apex Court held that in the matter of industrial Disputes Act, the labour court is directed to pay the compensation after keeping in view the fact that employee was not in service since 1990 and therefore, the order of payment of reinstatement was not found justified. Here the situation is different therefore, this judgment is not applicable to the facts of present case. In the present case, the respondent was in service on the date of filing of the application and he remained in service later on also. Learned G.A. has relied upon the judgment of the Apex Court in the case reported in (2007) 1 SCC 575 (State of M.P. & Ors. Vs. Lalilt Kumar Verma) whereby it was held by the Apex Court that in the matter of classification of employees, a workman would not be entitled for classification as permanent or temporary employee if the conditions precedent therefor are not satisfied. In that matter the workman was not appointed against a clear vacancy and he was not appointed in a permanent post or placed on probation and he was given benefit of permanent employee therefore, working on daily-wages, he was not holding the status of permanent employee. In that matter, the appointment was found illegal and therefore, the relief was not Signature Not Verified Signed by: PREETI TIWARI Signing time: 12/2/2023 1:14:05 PM 4 extended but in the present matter it is not the case of the petitioner that appointment was illegal, here is the dispute only in respect of the post of the petitioner for which he was permanently classified even if no vacant post is available in the department.

6. Learned G.A. further relied on the judgment reported in (2007) 9 SCC 748 (M.P. Adminstration Vs. Tribhuban) wherein the Apex Court has held that distinction between relief to be granted to the daily wager who does not hold a post of permanent employee, he cannot be ordered to be reinstated with full backwages automatically. The said case was of retrenchment of workmen and the Apex Court examined the case from the point of Section 25F of the Industrial Disputes Act and it was observed that in the peculiar facts and circumstances of the case, the orders were passed whereas the present case is not a case of retrenchment and the respondent/employee is still working, therefore, the said case is also not applicable to the present case.

7. Learned counsel for the respondent supported the order passed by the Industrial Court and argued that Industrial Court has rightly granted relief to the respondent. The respondent has duly proved by the evidence that he is working in the department since 01.09.1977 in the post of Gate Machanic. It is pointed out that even the witness examined by the department namely, Shri A.P. Dwivedi accepted in his cross-examination that the respondent is working as Gate Machanic and he was working on the said post from the date of appointment till today.

8. It is argued that notification in respect of omitting the entry no.16 in M.P. Industrial Relation Act was not in respect of the petitioner, department. Upon query the learned G.A. could not point out that how the petitioner-

department which is Water Resources Department is affected by the notification issued under Section 1 (4) of the M.P. Industrial Relation Act, 1960.

9. Learned counsel for the respondent further relied on the judgment reported in 2006 (1) MPHT 551 (Heavy Electrical Mazdoor Trade.. Vs. State of MP & Ors. delivered on 24.2.2006 by the Full Bench of this Court whereby it was held that under Sub-section 3 of Section 1 of the Act read with Section 21 of the M.P. General Clauses Act, the State Government cannot by notification under Sub-section 3 of Section 1 of the Act amend the notification dated 31.12.1960 so as to exclude industries or undertakings in respect of which the remaining provisions of the Act were brought into force by the notification dated 31.12.1960. It was held that in the opinion of the Court the nature, limits, and dimensions of the power of the State Government under Sub- section 3 of Section 1 of the Act are such that it cannot include the power to amend or rescind the notification dated 31.12.1960. It was further held that since Sub-section 4 of Section 1 of the Act has not been brought into the force till passing the judgment, the Court refrain from deciding the vires of the said provision. Therefore, the objection raised by the learned G.A. by virtue of the amended provision of Sub-section 4 of Section 1 and the notification issued to delete the entry no.16 of the Engineering, the provisions of M.P. Industrial Relations Act, 1960 is not applicable to the petitioner's requirement is not correct. The courts below has rightly granted the relief to the respondent by permanently classify as Gate Machanic and pay difference of payscale. There is no need to interfere with the order passed by the Industrial Court.

Hence the petition stands dismissed without any order as to costs.

(VINAY SARAF) JUDGE P/-