Madhya Pradesh High Court
The Engineer In-Chief vs Puranlal Vishwakarma on 19 March, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 19 th OF MARCH, 2024
WRIT PETITION No. 18443 of 2006
BETWEEN:-
1. THE ENGINEER IN-CHIEF PUBLIC WORKS
DEPTT.SATPUDA BHAWAN,BHOPAL (MADHYA
PRADESH)
2. CHIEF ENGINEER P.W.D.(B&R), CENTRAL REGL.,
NEAR EMPIRE TALKIES, JABALPUR (MADHYA
PRADESH)
3. SUPDT.ENGINEER P.W.D.(B&R), SEONI CIRCLE,
SEONI (MADHYA PRADESH)
4. EXE. EN GI N EER P.W.D.(B&R), NARSINGHPUR
DIVISION, NARSINGHPUR (MADHYA PRADESH)
5. SUB DIVISIONAL OFFICER P.W.D.(B&R), SUB-
DIV.KARELI NO.2, DIST.NARSINGHPUR (MADHYA
PRADESH)
.....PETITIONERS
(BY SHRI AYUSH DEO BAJPAI - GOVERNMENT ADVOCATE)
AND
PURANLAL VISHWAKARMABHERO PRASAD
V I S H WA K A R M A SS.SONIKA MAKAAN,WARD
KARELI,NARSINGHPUR (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ANAND NAYAK - ADVOCATE)
T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER
Learned counsel for the respondent at the outset prays that since the Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/25/2024 5:22:10 PM 2 respondent is almost 75 years old and there is interim order prevailing in the matter, hence, the case may be heard finally at motion stage.
2. Considering the aforesaid, with consent of the parties, the case is heard finally at motion stage.
3. Challenge in the present petition is made to order Annexure P-1 passed by the Industrial Court on 19.01.2005, thereby in appeal the order passed by the Labour Court, Narsinghpur dated 07.11.2003 (Annexure P-2) has been partly modified and appeal partly allowed.
4. The Labour Court had ordered classification of the respondent on the post of Carpenter as permanent employee and to pay the regular salary in the pay-scale as per the said post, w.e.f. 21.03.1995. The Industrial Court has partly modified the said order and the date of payment of regular pay-scale has been postponed to 07.11.2003, i.e. the date of passing of the order by the Labour Court.
5. The State Government is in the present writ petition challenging the aforesaid order Annexures P-1 and P-2. Learned Government Advocate submits that the application of the respondent employee has been wrongly allowed by the Labour Court, because the respondent employee had failed to prove that he had worked for six months in vacant post as required under the standard standing orders for getting status of permanent employee. It is also submitted that since the State Government had issued a notification dated 20.01.1999, whereby the Engineering Industries carried out by any department of the State Government were excluded from the purview of M.P. Industrial Relations Act. Thus, it is contended that the Labour Court did not have the jurisdiction to continue to entertain the application filed by the respondent employee before the Labour Court under the provisions of M.P. Industrial Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/25/2024 5:22:10 PM 3 Relations Act. A copy of the notification dated 21.01.1999 has been placed on record as Annexure P-6.
6. It is also argued by learned Government Advocate for the State that in any event the direction passed by the Labour and Industrial Courts to pay salary of regular employee in regular pay-scale is bad in law because classification is different from regularization and the Labour and Industrial Courts have erred in directing payment of regular salary and regular pays-scale.
7. Per contra, learned counsel for the respondent employee has argued that the respondent employee was working in the department since the year 1978 and after having put in almost 18 years of service, he had submitted the application before the Labour Court on 21.03.1997 under the provisions of M.P. Industrial Relations Act, when the said proceedings were still maintainable and were not taken out on the purview of MPIR Act by notification Annexure P-6. It is submitted that the respondent has put in long years of service and looking to the evidence placed on record, it is crystal clear that the respondent employee has acquired right to be given status of the permanent employee. It is further argued that after acquiring the status of permanent employee payment of regular salary and regular pay scale is the only natural outcome and no different outcome would come out of that. Thus, it is submitted that the petition filed by the State be dismissed and the order passed by the Industrial Court be confirmed.
8. Heard learned counsel for the parties.
9. In the present case, the respondent employee had submitted application before the Labour Court under Section 31 (3) of M.P. Industrial Relations Act on 21.03.1997. It was contended that he has been working on the Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/25/2024 5:22:10 PM 4 clear vacant post since last more than 15 years and has thus acquired the status to be classified as permanent employee.
10. The State authorities filed reply to the said application and it was not disputed that the respondent is not working from 1978/1979. On the other hand, it was pleaded that the respondent had been engaged for maintenance work as labour and paid monthly as per daily rate fixed by the Collector. In para 1 of the reply, it was submitted that the applicant was never appointed on clear vacant post. So far as the contention of the juniors getting regularized, it was contended that those gang-men who have completed 25 years of service have been regularized and thus, the case of the present respondent does not stand on equal footing with those persons.
11. This Court has gone through the record of the Labour Court and Industrial Court. The service book of the respondent employee is available in the record and as per the said service book, it is apparent that the service book mentions that he has been working since May, 1978. The dates of absence have been mentioned in the service book from time to time and the said service book indicates that the respondent has been getting salary on monthly basis on the basis of attendance in the month. He has been sanctioned earned leaves from time to time. Thus, it is clear that he was working in the establishment in which even earned leaves are given to the employees. There is earned leave account appended to the said service book, which mentions the respondent getting earned leaves from 1990 onward. The service book also mentions the work 'Carpenter" after his name. The said service book has been exhibited as Exhibit P-1 before the Labour Court. No suggestion was given to the respondent that the said service book is forged, though the respondent was cross-examined in detail before the Labour Court.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/25/2024 5:22:10 PM 512. Looking to the evidence placed on record, the finding recorded by the Labour Court as well as the Industrial Court that the respondent employee is entitled to be classified as permanent employee does not appear to be erroneous. The said findings are hereby confirmed.
13. The other contention, which was taken by learned Government Advocate for the State is that the Engineering Industries being carried out by any department of the State Government were taken out from the purview of M.P. Industrial Relations Act vide notification dated 21.01.1999, whereby the schedule to the earlier notification dated 31.12.1960 was amended and by modifying entry at serial No.16, such Industry carried out by the State Government departments were taken out from purview of M.P. Industrial Relations Act. Thus, it is the contention of the State that the respondent ought to have availed remedy under Industrial Disputes Act and the remedy availed under M.P. Industrial Relations Act could not have continued after the date of this notification, i.e. 21.01.1999.
14. The proceedings before the Labour Court show that the Labour Court had taken cognizance of the proceedings on 21.01.1997 and issued notices to the State. On the date of notification Annexure P-6, the case was being proceeded awaiting service of some of the functionaries of the State, while some of the functionaries had been proceeded ex-parte.
15. The notification dated 21.01.1999 (Annexure P-6) does not contain in any clear terms that the pending cases would also come to an end. It was argued by Government Advocate that the amendment in the matter of forum for availing remedy is procedural in nature and always takes effect from retrospective date, because it is not substantive in nature.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/25/2024 5:22:10 PM 616. The Hon'ble Supreme Court recently had the occasion to consider the law on the subject and accepted the proposition that the change of forum being procedural the amendment amendment of forum would operate retrospectively. However, it was held by the Hon'ble Apex Court that in cases of change of forum, it ceases to be a question of procedure only, with reference to pending matter. It was held that change of "forum" could be substantive or procedural. It may well be procedural when the remedy was yet to be availed of but where the remedy had already been availed of (under an existing statutory provision), the right may be treated as having crystallised into a vested substantive right. In the case of SEBI v. Classic Credit Ltd., (2018) 13 SCC 1, the following has been held by the Hon'ble Apex Court:-
"51. Whilst accepting the contentions advanced on behalf of the learned counsel for SEBI pertaining to "forum" (with reference to which inferences have been drawn in the foregoing paragraph), it is not possible for us to outrightly reject the contentions advanced by Mr C.A. Sundaram, learned Senior Advocate, while projecting the claim of the accused. We are not oblivious of the conclusions recorded by this Court in CIT v. Dhadi Sahu [CIT v. Dhadi Sahu, 1994 Supp (1) SCC 257] , wherein it was held that (SCC p. 262, para 18) a law which brings about a change in the "forum" does not affect pending actions, unless an intention to the contrary is clearly shown. One of the modes in which such intentions can be shown is by making a provision for change for a proceeding from the court or the tribunal where it was pending, to the court or tribunal under which the new law gets jurisdiction. In the said judgment, this Court also observed, that it was true that no litigant had any vested right in the matter of procedural law, but where the question is of the change of "forum", it ceases to be a question of procedure only, with reference to pending matter. The "forum" of appeal or proceedings, it was held, was a vested right as opposed to pure procedure to be followed before a particular "forum". It was therefore concluded that a right becomes vested when Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/25/2024 5:22:10 PM 7 the proceedings are initiated in spite of change of jurisdiction/forum by way of amendment thereafter.
52. So also, in Manujendra Dutt v. Purnedu Prosad Roy Chowdhury [Manujendra Dutt v. Purnedu Prosad Roy Chowdhury, AIR 1967 SC 1419] , wherein a question arose, as to whether, by the deletion of Section 29 of the Thika Tenancy Act, 1949, the jurisdiction of the Controller over a pending suit was taken away. It was held by this Court that the deletion of Section 29 did not deprive the Controller of his jurisdiction to try the pending suit on the date when the amending Act came into force. It was pointed out that though the amending Act did not contain a saving clause the saving contained in Section 8 of the Bengal General Clauses Act, 1899, which corresponded with Section 6 of the Central Act, fully applied to the issue. And as such, the transfer of a suit having been lawfully filed under Section 29 of the Act could not be affected by its deletion or by its amendment.
53. Similarly, in Mohd. Idris v. Sat Narain [Mohd. Idris v. Sat Narain, AIR 1966 SC 1499] , the question which arose was whether a Munsif who was trying a suit under the U.P. Agriculturist Relief Act ceased to have jurisdiction, after the passing of the U.P. Zamindari Abolition and Amendment Act, 1953, which conferred jurisdiction on an Assistant Collector. This Court held that the jurisdiction of the Assistant Collector was itself created by the Abolition Act, and as there was no provision in that Act, that the pending case were to stand transferred to the Assistant Collector for disposal, the Munsif continued to have jurisdiction to try the suit. It was also observed in the above judgment, that the provisions for changeover of proceedings from o ne court to another, are only found in a statute, which takes away the jurisdiction of one court, and confers it on another, in pending actions. Since the amending Act did not show the pending proceedings before the court would abate, it was felt, that the court before which proceedings were filed, continued to have the jurisdiction to adjudicate the same. The above position has been considered affirmatively by this Court also in Nani Gopal Mitra v. State of Bihar [Nani Gopal Mitra v. State of Bihar, AIR 1970 SC 1636 : 1970 Cri LJ 1396] ; Ambalal Sarabhai Enterprises Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/25/2024 5:22:10 PM 8 Ltd. v. Amrit Lal and Co. [Ambalal Sarabhai Enterprises Ltd . v. Amrit Lal and Co., (2001) 8 SCC 397] ; R. Kapilnath v. Krishna [R. Kapilnath v. Krishna, (2003) 1 SCC 444] ; Ramesh Kumar Soni v. State of M.P. [Ramesh Kumar Soni v. State of M.P., (2013) 14 SCC 696 : (2014) 4 SCC (Cri) 340] ; and Videocon International Ltd. v. SEBI [Videocon International Ltd. v. SEBI, (2015) 4 SCC 33].
54. From a perusal of the conclusions drawn in the above judgments, we are inclined to accept the contention that change of "forum" could be substantive or procedural. It may well be procedural when the remedy was yet to be availed of but where the remedy had already been availed of (under an existing statutory provision), the right may be treated as having crystallised into a vested substantive right.
55. In the latter situation referred to (and debated) in the preceding paragraph, where the remedy had been availed of prior to the amendment, even according to the learned counsel for the private parties, unless the amending provision by express words, or by necessary implication, mandates the transfer of proceedings to the "forum"
introduced by the amendment the "forum" postulated by the unamended provision, would continue to have the jurisdiction to adjudicate upon pending matters (matters filed before amendment). In view of the above, we are of the considered view, that no vested right can be claimed with reference to "forum", where the court concerned, had not taken cognizance and commenced trial proceedings, in consonance with the unamended provision.
56. Insofar as the matters where proceedings had already commenced before the amendment, change of "forum" for trial came into effect, it is apparent from the judgments referred to in the preceding paragraph, that the general principle is that a law which brings about a change in the "forum", does not affect pending actions, unless intention to the contrary is clearly shown. What needs to be determined with reference to the 2002 Amendment Act, as well as, with reference to the 2014 Amendment Act is whether an intention to the contrary was expressed therein so as to alter the "forum" where proceedings were pending. A n d to bring such proceedings to the "forum"
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/25/2024 5:22:10 PM 9contemplated by the amendment."
17. In view of the aforesaid, it becomes clear that since the Labour Court had already entertained the application of the respondent prior to the amendment dated 21.01.1999, hence, the continuation of proceedings before the Labour Court cannot be said to be totally without jurisdiction. It was not the case that the forum had been extinguished. But, as argued by the State it is a case where the remedy still lied, though under the Industrial Disputes Act and not under M.P. Industrial Relations Act. Thus, the contention of the State that the orders Annexure P-1 and P-2 passed by the Labour Court are without jurisdiction, is liable to be rejected.
18. Coming to the third contention raised by the State Government that the Labour Court as well as the Industrial Court have erred in granting regular pay-scale as regular employee to the respondent is concerned, the said contention seems to have some substance. In view of the judgment of the Hon'ble Apex Court in the case of Ram Naresh Rawat v. Ashwini Ray, (2017) 3 SCC 436, it has been held that classification is different from regularization and upon classification under Industrial Law, the employee would be entitled to get minimum of the pay-scale, but without increments.
19. In view of the aforesaid, the present petition is partly allowed. The order of classification of the respondent from the date as held by the Industrial Court vide Annexure P-1 is upheld. However, it is directed that the respondent would be entitled to get the minimum of the regular pay-scale without increments in terms of the law laid down by the Hon'ble Apex Court in the case of Ram Naresh Rawat (supra).
20. Let the necessary dues be worked out and paid to the respondent employee within a period of two months from the date of production of Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/25/2024 5:22:10 PM 10 certified copy of this order before the petitioners, failing which the amount shall carry interest @ 6% per annum from the date of order of Industrial Court till date of payment.
(VIVEK JAIN) JUDGE rj Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/25/2024 5:22:10 PM