Madhya Pradesh High Court
M.P. State Road Transport Corporation vs Harish Jayanti Prasad Agarwal And Ors. on 9 January, 1989
Equivalent citations: (1991)IILLJ611MP, 1990(0)MPLJ97
JUDGMENT
1. Two short points raised by the petition in this matter merit a still shorter order.
2. Indeed if anything more in this context we have to say, we say that the grievance, which the non-applicant workman agitated before the Labour Court was itself a short one, which happily, has been redressed by the two Courts in admirable manner.
3. The short dispute which was raised was whether respondent workman was to be treated as a "permanent employee" and had to be paid salary of the post of Lower Division Clerk, in the employment of the petitioner. The first challenge, which Shri R.D. Jain, appearing for the petitioner vocalised is on the question of limitation. That contention must be rebuffed immediately, as the question was not at all raised in any of the two Courts below. In doing so we have borne in mind limitations of centioriari jurisdiction and we have told Shri Jain that we are concerned merely to see whether the impugned order passed in appeal by the Industrial Court (Annexture P-8) suffers from any error of law apparent on the face of the record. That question of limitation not being raised, it was not discussed and dealt with and as such, it cannot be said that the said order suffers in that regard any error of law.
4. The other question is regarding merits of the claim, but, for that, we are required to look at the relevant statutory provisions, which are to be read in "ANNEXURE" to M.P. Industrial Employment (Standing Orders) Rules, 1963. Sub-clause (1) of Clause 2 of those Standing Orders (Annexures) defines the term "permanent" employee, while the term "temporary" employee is defined in Sub-clause (iv) of the said Clause 2. Shri Jain's contention is that the respondent workman failed to make out and prove his case that he was serving in a "clear vacancy" for a period of more than 6 months to claim the benefit envisaged under Clause 2(1) aforesaid. This contention is meritless for two fold reasons and for that there is two fold answer. Firstly, the counsel conceded that the challenge had not been raised in the issues framed by the Labour Court and we are not able to appreciate the contention that without issue, it was incumbent on the Labour Court to determine the question whether the vacancy in question was "clear" or not and also that it was the burden on the workman respondent to prove the fact. If the petitioner was not satisfied by the issues struck, it was for him to pray for issues to be amended and to be determined accordingly but having waived his right to do so, he cannot have a grievance in that regard before us in this matter. The amendment was not prayed even at the appellate stage before the Industrial Court. We also do not think if the question of burden in a labour dispute arises in the fashion conceded as a labour dispute and civil cases have different complexions and have to be proved differently according to the norms of the two different jurisprudence. It is well-settled in a labour dispute, that each side is required to file written statement of his claim and to prove the case set up. It was therefore, the bounden duty of the employer petitioner to prove its own case that the vacancy was not 'clear' vacancy. Secondly, the contention is also blunted by the provisions of Sub-clause (iv) of Clause 2, wherein there is no such requirement of a 'clear' vacancy. The best we can do to explain the purport of the said clause is to quote the relavant portion:
"Provided that in case such employee is required to work continuously for more than six months he shall be deemed to be a permanent employee, within the meaning of Clause (i) above."
The fact which is not disputed at any stage, even at this stage is that the respondent workman had rendered service for a period of 6 months as Lower Division Clerk. That being so, it cannot be said that he would not be deemed to be a permanent employee and paid salary for the post of Lower Division Clerk while rendering that service.
5. For all the foregoing reasons, we find no merit in the petition and it is dismissed. There shall be no order as to costs. Outstanding security amount if in deposit, shall be returned to the petitioner.