Madhya Pradesh High Court
The State Of M.P. vs Abdul Rafique & Ors on 17 January, 2012
1
W.P. No.2804/1999, W.P. No.2820/99,
W.P. No.3451/99 & W.P. No.2319/2000
17/1/2012:
Shri Vijay Pandey, learned Deputy Advocate General
with Shri Samdarshi Tiwari, learned Govt. Advocate for the
petitioner/ State.
Shri Sanjay Patel, learned counsel for respondents in
W.P. No.3451/99.
None for the respondents in other cases.
Challenging the orders passed by the Labour Court and the Industrial Court directing for classification of the employees on a particular post and consequential payment of salary and other allowances on such classification, all these four writ petitions have been filed by the State Government.
As common questions of law and facts are involved in all these writ petitions, they are being decided by this common order. For the sake of convenience, the documents available and the pleadings in W.P. No.2804/1999 - State of Madhya Pradesh Vs. Abdul Rafique and others is referred to in this order.
The employees in all these four cases were employed as daily wages employee in the Public Works Department. After having worked for certain period they filed applications before the Labour Court concerned, inter alia contending that in view of the provisions of Clause 2(i) of the Standard Standing Orders formulated under the Madhya Pradesh Industrial Employment 2 Standing Orders Act, the petitioners have acquired the status of a permanent employee and therefore, they be classified and be granted regular pay and allowances to which the permanent employee is entitled to. In all these cases the petitioners were working as daily wages employee and have claimed the aforesaid benefit only on the ground that they have been worked for more than six months. The Labour Court on the basis of evidence and material that came on record held that as the employee concerned has worked on a particular post for more than six months, in view of provisions of Clause 2(i) of the Standard Standing Orders, he is entitled to be classified and the direction for classification was issued. Challenge by the State Government before the Industrial Court having failed all these petitions are filed.
Two grounds are canvassed at the time of hearing by the learned counsel appearing for the State. The first ground is that as the employees are working in Public Works Department and as their service conditions are governed by statutory rule framed under Article 309 the Standing Order would not apply and therefore, Labour Court and Industrial Court has no jurisdiction to deal with the matter.
As far as this question is concerned, the same is no more in dispute. The Full Bench in the case of Superintending Engineer, Public Works Department Circle, Gwalior & Another Vs. Dev Prakas Shrivas & Others - 1999 Vol.1 MPLJ 466 has rejected the aforesaid contention and it has been held by the Full Bench that the Standard Standing Orders would 3 apply as it is a statutory act of legislature and is binding on the State. In view of the aforesaid judgment of the Full Bench in the case of Dev Prakas Shrivas (supra), the first ground canvassed by the learned counsel for the State cannot be accepted.
As far as second ground is concerned, learned counsel appearing for the State Government Shri Vijay Pandey, learned Deputy Advocate General and Shri Samdarshi Tiwari, learned Government Advocate invites our attention to the definition of a permanent employee as appearing in Clause 2(i) of the Standard Standing Orders and submit that merely because an employee has completed six months of service, it is not necessary to classify the employee. It is stated that apart from completing six months of satisfactory service it should be established that the employee had worked against a clear vacant post as a probationer or otherwise, he was given a ticket number and various other conditions stipulated have been fulfilled. Pointing out that all these factors particularly existence of clear vacant post has not been taken note of by the Courts below, while directing for classification. It is argued by them that the order passed by the Labour Court and Industrial Court are unsustainable. Inviting our attention to the principles laid down by the Supreme Court in the case of M.P. Housing Board and another Vs. Manoj Shrivastava - (2006)2 SCC 702 and State of M.P. & Ors. Vs. Lalit Kumar Verma - 2007 AIR SCW 70, it is argued by learned counsel for the State that the Labour Court could not classify the employees as permanent employee without conducting an enquiry with regard 4 to existence of clear vacant post and satisfactory service being completed. That apart, it is argued by them that a daily wages employee cannot be classified as permanent employee in view of law laid down by Supreme Court in the case of Lalit Kumar Verma (supra) particularly the findings recorded in para 7. Attention is also invited to the principles laid down by the Supreme Court in the case of Mahendra L. Jain & Ors. Vs. Indore Development Authority & Ors. - (2005)1 SCC 639 in support of the aforesaid contention.
Even though learned counsel for respondents Shri Sanjay Patel tried to rebut these contentions and in the other cases the record indicates that the respondent-employee has tried to justify the order passed by the Labour Court and Industrial Court but on consideration of legal question involved in the matter, it is clear that the Labour Court and the Industrial Court have ordered for classification of employees as permanent employees only because they have worked on the post for more than six months. However, for doing so the question as to whether employees have worked for six months that also and on vacant post or whether their services were satisfactory was taken note of and now in the light of law laid down by the Supreme Court in the cases of Manoj Shrivastava (supra), Lalit Kumar Verma (supra) and Mahendra L. Jain (supra) the matter has to be examined in the light of conditions precedent to be followed as a mandatory condition before classifying an employee. That being so, it is a case where the Labour Court has directed for classify the employer without considering the mandatory requirement of law to be followed 5 before doing so and as the order passed by the Labour Court and affirmed by the Industrial Court is contrary to law laid down by the Supreme Court in the cases referred to herein above, all these petitions have to be allowed.
Accordingly, all the four petitions are allowed. Order impugned passed by the Labour Court and the Appellate Court i.e. Industrial Court are quashed and matter is remanded back to the Labour Court to proceed to decide the question involved in these disputes afresh in accordance to law after taking note of the principles laid down by the Supreme Court in the cases referred to herein above.
Petitions stand allowed with the aforesaid.
c.c. as per rules.
( Rajendra Menon ) ( T. K. Kaushal )
Judge Judge
Mrs.m i shra