Madhya Pradesh High Court
The State Of M.P. & Ors. vs Brindawan & Ors. on 30 January, 2017
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WP-4148-2000, WP-4149-2000, WP-4151-2000 & WP-4152-2000
WP-4148-2000, WP-4149-2000, WP-4151-2000 &
WP-4152-2000
2.2.2017.
Shri Ajay Pratap Singh, learned Govt. Advocate for
the petitioners.
Shri T.K. Modh, learned counsel for respondents-
workmen.
Heard.
This common order shall lead to final disposal of all
the aforesaid writ petitions as the issue involved in these
case are similar and therefore, are analogously heard.
These writ petitions at the instance of State of
Madhya Pradesh and its functionaries are directed against
the orders passed by Industrial Court in an appeal,
affirming the orders passed by Labour Court, classifying
the respondents-workmen as permanent on various posts.
In all these cases, the respondents-workmen were
engaged on daily wages and have been working as
Assistant Helper Hand Pump Mechanic and Driver
respectively.
The applications were filed by these respondents-
workmen under Sections 31(3) read with Section 61 and
62 of the Madhya Pradesh Industrial Relations Act, 1960
seeking permanent classification on the ground of having
completed six months' satisfactory service.
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WP-4148-2000, WP-4149-2000, WP-4151-2000 & WP-4152-2000
The Industrial Court on a finding that respective
workmen have satisfactorily worked for six months from
the initial date of engagement, directed for permanent
classification by respective orders, which are being
challenged in these batch of writ petitions resulting in
impugned order, affirming the findings arrived at by the
Labour Court.
The challenge is on the ground that respondents-
workmen being not appointed against clear vacant post,
were not entitled for being directed to be classified as
permanent and the same is contrary to the provisions as is
contemplated in clause 2(i) of the Annexure to Standard
Standing Orders under the M.P. Industrial Employment
(Standing Orders) Rules, 1963.
Though learned counsel for the respondents-workmen
contradicted the stand taken by petitioners; however, on a
perusal of Labour Court record, it is found that there is no
material evidence on record to substantiate the claim made
by the respondents-workmen on being appointed against
clear vacant post and that a permanent ticket was issued in
their favour. On the contrary, it is borne out from the
cogent material on record that respective workmen were
engaged on daily wages and have continued to discharge
their duties on daily wage basis.
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WP-4148-2000, WP-4149-2000, WP-4151-2000 & WP-4152-2000
Question which arises for consideration is as to
whether when a workman engaged on daily wages is
unable to establish through cogent evidence that he was
engaged against vacant post and that recruitment was
adhered to while appointing him on daily wages whether
he would be entitled for being classified as permanent
employee, is no more res integra and has been settled at
rest by the Supreme Court.
In M.P. Housing Board vs Manoj Shrivastava
(2006) 2 SCC 702, it has been held -
"8. A person with a view to obtain the status
of a 'permanent employee' must be appointed in
terms of the statutory rules. It is not the case of
the Respondent that he was appointed against a
vacant post which was duly sanctioned by the
statutory authority or his appointment was made
upon following the statutory law operating in
the field.
9. The Labour Court unfortunately did not
advert to the said question and proceeded to
pass its award on the premise that as the
Respondent had worked for more than six
months satisfactorily; in terms of clause 2(i) of
the Standard Standing Order, he acquired the
right of becoming permanent. For arriving at the
said conclusion, the Labour Court relied only
upon the oral statement made by the
Respondent.
10. It is one thing to say that a person was
appointed on an ad hoc basis or as a daily wager
but it is another thing to say that he is appointed
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WP-4148-2000, WP-4149-2000, WP-4151-2000 & WP-4152-2000
in a sanctioned post which was lying vacant
upon following the due procedure freedom
prescribed therefor.
11. It has not been found by the Labour Court
that the Respondent was appointed by the
Appellant herein, which is a 'State' within the
meaning of Article 12 of the Constitution of
India, upon compliance of the constitutional
requirements as also the provisions of the 1972
Act or the rules and regulations framed
thereunder."
In Mahendra L. Jain v. Indore Development
Authority (2005) 1 SCC 639, it has been held -
29. ... The 1961 Act itself shows that the
employees are to be classified in six categories,
namely, permanent, permanent seasonal,
probationers, badlies, apprentices and
temporary. The recruitments of the Appellants
do not fall in any of the said categories. With a
view to become eligible to be considered as a
permanent employee or a temporary employee,
one must be appointed in terms thereof.
Permanent employee has been divided in two
categories (i) who had been appointed against a
clear vacancy in one or more posts as
probationers and otherwise, and (ii) whose
name had been registered at muster roll and
who has been given a ticket of permanent
employee. A 'ticket of permanent employee'
was, thus, required to be issued in terms of
Order 3 of the Standard Standing Orders. Grant
of such ticket was imperative before
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WP-4148-2000, WP-4149-2000, WP-4151-2000 & WP-4152-2000
permanency could be so claimed. The
Appellants have not produced any such ticket.
....
31. The Standing Orders governing the terms and conditions of service must be read subject to the constitutional limitations wherever applicable. Constitution being the suprema lex, shall prevail over all other statutes. The only provision as regard recruitment of the employees is contained in Order 4 which merely provides that the Manager shall within a period of six months, lay down the procedure for recruitment of employees and notify it on the notice board on which Standing Orders are exhibited and shall send copy thereof to the Labour Commissioner. The matter relating to recruitment is governed by the 1973 Act and the 1987 Rules. In absence of any specific directions contained in the schedule appended to the Standing Orders, the statute and the statutory rules applicable to the employees of the Respondent shall prevail."
It is further observed in Manoj Shrivastava (supra) that -
15. A daily wager does not hold a post unless he is appointed in terms of the Act and the rules framed thereunder. He does not derive any legal right in relation thereto.
...
17. It is now well-settled that only because a person had been working for more than 240 days, he does not derive any legal right to be regularized in service. [See Madhyamik Shiksha :: 6 ::
WP-4148-2000, WP-4149-2000, WP-4151-2000 & WP-4152-2000 Parishad, U.P. v. Anil Kumar Mishra and Others, [(2005) 5 SCC 122], Executive Engineer, ZP Engg. Divn. And Another v. Digambara Rao and others, [(2004) 8 SCC 262], Dhampur Sugar Mills Ltd. v. Bhola Singh, [(2005) 2 SCC 470], Manager, Reserve Bank of India, Bangalore v. S. Mani and Others, [(2005) 5 SCC 100] and State of U.P. v. Neeraj Awasthi [(2006) 1 SCC 667)].
When the principle laid down by the Apex Court in the cases referred to supra, is applied to the facts of the present case wherein the respondents-workmen have failed to establish that they were appointed in accordance with statutory provisions against vacant post. The Labour Court and the Industrial Court, therefore, committed a grave folly in directing that respondents-workmen be classified as permanent as Assistant Helper Hand Pump Mechanic and Driver respectively.
In view whereof, the impugned orders are hereby set aside.
Petitions are allowed to the extent above. There shall be no costs.
(SANJAY YADAV) JUDGE vinod