Madhya Pradesh High Court
Engineer-In-Chief & Ors vs Ashok Kumar Joshi & Ors on 20 August, 2015
1
W.P.No.2303/2001
Writ Petition No.2303/2001
20.08.2015
Shri Deepak Awashty, learned Government Advocate for
the petitioners.
Shri Vijay Tripathi, learned counsel for the respondent
No.1.
Respondent Workman's permanent classification as Amin
in the Water Resources Department by Labour Court in a
proceeding under Section 31 read with Section 61 of M. P.
Industrial Relation Act 1960, by its order dated 30.10.1999 and
its affirmation in Appeal under Section 65 of 1960 Act, decided
on 16.08.2000, has led the petitioners file this petition seeking
quashment of these orders on the ground that the findings
arrived by both the Courts that the workman was engaged
against vacant post of Amin is perverse.
The Labour Court while answering issue Nos. 4 and 5
holds-
^^izfrizkFkhZ us tokc nkos esa ;g Lohdkj fd;k fd izkFkhZ
nS0os0Hkks0 vehu ds in ij dk;Zjr gSA izdj.k esa vk;h lk{;
ls Li"V gS fd izkFkhZ us 6 ekg ls yxkrkj larks"kizn :i ls
bl in ij dke dj fy;k gS vr% izkFkhZ ,l ,l vks vuqlkj
vehu ds in ij LFkk;h oxhZd`r gksus dk ik= gS] lkFk gh
fu;fer vehu ds leku dke djus ds dkj.k osru ds varj
o osrueku ikus dk ik= gS**
These findings are further elaborated by the Appellate
Court in the following terms :
2
W.P.No.2303/2001
"vfHkys[k ls izdV gS fd v/khuLFk U;k;ky; ds le{k
fu;ksDrk dh vksj ls tokcnkok izLrqr fd;k x;k gSA lkFk gh
lk{kh ,l-,l- ukxj ds dFku Hkh fyfic) djk;s x;s gSaA
fu;ksDrk dh vksj ls izLrqr tokcnkos esa deZpkjh dh fu;qfDr
fnukad ,oa mlds yxkrkj dk;Zjr jgus ds rF;ksa dks
vLohdkj ugha fd;k x;k gSA dsoy ;g crk;k x;k gS fd
mls f'kf{kr Jfed ds in ij nSfud osru Hkksxh deZpkjh
ds :i esa j[kk x;k FkkA fu;ksDrk ds lk{kh us Hkh dwV ijh{k.k
esa Lohdkj fd;k gS fd deZpkjh 1-8-82 v'kksd dqekj vehu ds
in dk dk;Z fu;qfDr fnukad ls dj jgk gS o mldk dk;Z Hkh
larks"ktud gSA fu;ksDrk dh vksj ls dh xbZ bu
LohdkjksfDr;ksa ds izdk'k eas vkyksP; vkns'k gLr{ksi ;ksX; ugha
gSA fu;skDrk dh vksj ls izLrqr U;k; n`"Vkar deZpkjh dh vksj
ls izLrqr rdksZa ds izdk'k esa izLrqr izdj.k ij ykxw fd;s tkus
;ksX; ugha gSA"
Question is whether these findings can be termed as
perverse.
Standard Standing Order made under the Madhya Pradesh
Industrial Employees (Standing Order) Act 1961 defines
"Permanent employee" and "temporary employee" in clause 2 (i)
and (vi) respectively which read as under -
"2. (i) A 'permanent' employee is one who has
completed six months' satisfactory service in a clear
vacancy in one or more posts whether as a probationer
or otherwise, or a person whose name has been
entered in the muster roll and who is given a ticket of
permanent employee;
......
(vi) 'temporary employee' means an employee who has been employed for work which is essentially of a 3 W.P.No.2303/2001 temporary character, or who is temporarily employed as an additional employee in connection with the temporary increase in the work of a permanent nature; 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."
That the aforesaid provisions came up for consideration before the Supreme Court in M.P. Housing Board v. Manoj Shrivastava (2006) 2 SCC 702 wherein 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 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, 4 W.P.No.2303/2001 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 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 5 W.P.No.2303/2001 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 M.P. Housing Board v. 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 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 Neeraj Awasthi (supra)]."
Thus incumbent it is upon a person claiming permanent classification to establish that his appointment has been against vacant post, and unless this burden is discharged, 6 W.P.No.2303/2001 merely because a person is engaged for a longer term will not entitle of being classified as Permanent Employee.
In the present case there is no cogent material evidence to establish that the workman was engaged against the vacant post of Amin. The admission on behalf of respondent (present petitioner) is only to the extent that the workman was engaged as educated labour on daily wages. It cannot be construed as an admission that the workman was engaged against the post of Amin. Thus the conclusion arrived by both the Courts that the Workman was engaged against vacant post of Amin cannot be endorsed.
The impugned orders when tested on the anvil of law laid down in Manoj Shrivastava (supra) and Indore Development Authority (supra) cannot be approved, consequently, are set aside. However, setting aside of the order of permanent classification will not entitle the petitioners to effect recovery of the amount paid to the respondent under the impugned orders.
Petition is allowed to the extent above. No costs.
(SANJAY YADAV) JUDGE anand