Madhya Pradesh High Court
Lakhan Singh vs M.P. Electricity Board And Ors. on 27 August, 1999
Equivalent citations: (2000)ILLJ899MP
Author: A.K. Mathur
Bench: A.K. Mathur
ORDER A.K. Mathur, C.J.
1. This is a reference made by the learned single Judge to the larger Bench on the ground that the question of law which is involved in the petition is of wider importance.
2. For purposes of disposal of this matter, it will be relevant to refer to few facts of the case. The petitioner was an employee of the the-then Chhindwara Electric Supply Company, Chhindwara. It was taken over by the M.P. Electricity Board (for short 'Board'), therefore the services of the petitioner were merged with the Board by order dated March 10, 1966 and the petitioner was appointed as a Line Worker. It is alleged by the petitioner that his services were not properly counted and he was retired from service on attaining the age of superannuation on March 31, 1995 by treating his services in the Board with effect from January 16, 1968; whereas he was appointed initially with effect from March 10, 1966 and the earlier services of the petitioner in Chhindwara Electric Supply Company with effect from June 12, 1958 to March 9, 1966 were not counted for purposes of retiral benefits. It is alleged that his leave benefits were also not given as also other connected benefits. The petitioner therefore approached the Labour Court by moving an application which came to be registered as Case No. 26/96/MPIR. The respondent Board filed a reply and took a preliminary objection that the petitioner is not an 'employee' within the meaning of Section 2(13) of the M.P. Industrial Relations Act, 1960 (for short the 'Act') as he has retired. The Presiding Officer of the Labour Court overruled this objection by order dated September 3, 1996. Thereafter an appeal was preferred before the Industrial Court by the Board and the Industrial Court reversed the decision of the Labour Court holding that a retired employee is not covered by the definition of 'employee' under Section 2(13) of the Act by its order dated May 8, 1997. Aggrieved by this order, the present petition was filed by the petitioner before this Court.
3. The learned single Judge after hearing both the parties observed that in view of contention raised by Shri Menon, learned counsel appearing for the Board the matter requires to be referred to larger Bench. It was contended on behalf of the Board that under Section 31(3) of the Act read with definition of 'employee', as defined in Section 2(13), only dismissed, discharged and retrenched employee or whose services have been otherwise terminated is entitled to maintain the application and not the petitioner. As against this, it was contended by Shri Dhande, learned counsel for the petitioner that maintainability of application under Section 31(3) of the Act will depend on the nature of claim.
4. In order to appreciate the controversy involved in the matter, it will be relevant to refer certain provisions of the M.P. Industrial Relations Act, 1960. The Act of 1960 defines the word 'employee' under Section 2(13) as under:
"'Employee' means any person employed in any industry to do any skilled, unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied and includes: -
(a) a person employed by a contractor to do any work for him in the execution of a contract with an employer within the meaning of Sub-clause (e) of Clause 14; and
(b) an apprentice other than an apprentice under Sub-clause (v); but does not include any person -
(i) who is subject to the Army Act, 1950 (XLVI of 1950), or the Air Force Act, 1950 (XLV of 1950), or Navy Discipline Act, 1957 (62 of 1957);
(ii) who is employed in the Police Service or as an Officer or other employee of a prison; or
(iii) who is employed mainly in a managerial capacity; or
(iv) who being employed in a supervisory capacity draws wages exceeding one thousand and six hundred rupees per mensem; or
(v) who is a craftsman or an apprentice working under a scheme approved by the State Government on the condition that such craftsman or apprentice shall not be deemed to be an employee under this Act;
Explanation - An employee who has been dismissed, discharged or retrenched from the employment or whose employment has been otherwise terminated shall, in respect of matters relating to such dismissal, discharge, retrenchment or termination, be deemed to be an employee for the purpose of this Act."
Section 31 of the Act lays down as to who can approach the Labour Court under the M.P. Industrial Relations Act. Section 31 of the Act which is relevant reads as under:
"31. Notice of change - (1) An employer intending to effect any change in respect of an industrial matter specified in Schedule I shall give notice of such intention in the prescribed form and manner to the representative of employees and to such other person as may be prescribed.
(2) A representative of employee desiring a change in respect of an industrial matter which is neither covered by standing order nor is specified in Schedule II, shall give notice thereof in the prescribed manner to the employers concerned and to such other persons as may be prescribed.
(3) A representative of employees or an employee desiring a change in respect of an industrial matter specified in Schedule II or any other matter arising out of such change may make an application to Labour Court in such manner as may be prescribed."
Schedule II attached to the Act which is also relevant reads as under:
"Schedule II Section 31 (1) The propriety or legality of an order passed or action taken by an employer acting or purporting to act under the standing orders or any rules or regulations governing the conditions of service of the employees.
(2) Adequacy and quality of materials and equipment supplied to the employees.
(3) Health, safety and welfare of employees (including water, dining sheds, rest sheds, latrines, urinals, creches, restaurants and such other amenities).
(4) Matters relating to trade union organisation, membership and levies.
(5) Construction and interpretation of awards, agreements and settlements.
(6) Employment including -
(i) reinstatement and recruitment;
(ii) unemployment of persons previously employed in the industry concerned.
(7) Payment of compensation for closure, lay off and retrenchment.
(8) Assignment of work and transfer of employees within the undertaking."
In all the matters which are covered by Schedule II, any aggrieved party can approach the Labour Court. The expression appearing in Section 31(3) of the Act is little confusing because expression 'an employee desiring a change', the word 'change' is not happily worded. It should mean that any person aggrieved with respect to any matter specified in Schedule II can agitate the matter before the Labour Court. However, in the present case, the controversy is that the present incumbent who was an employee of the the-then Chhindwara Electric Supply Company which merged with the Board on account of taking over of its management by the State, became its employee as all employees of erstwhile Chhindwara Electric Supply Company became employees of the Board. The grievance of the petitioner is that the services rendered by him in the Chhindwara Electric Supply Company were not counted towards grant of his post retiral benefits and therefore, he filed application before the Labour Court for redressal of his grievance. In this context, question arose that whether petitioner can approach the Labour Court for redressal of his grievance or not?
5. The definition of 'employee' as quoted above means any person employed in any industry to do any skilled, unskilled, manual, supervisory, technical or clerical work for hire or reward and includes a person employed by a contractor to do any work for him in the execution of a contract with an employer within the meaning of Sub-clause (e) of Clause 14, an apprentice other than an apprentice under Clause (v); but does not include persons who are subject to the Army Act, Air Force Act, Navy Discipline Act, or who is employed in Police Service or as an officer or other employee of a prison, or who is employed mainly in a managerial capacity, or who being employed in a supervisory capacity draws wages exceeding one thousand and six hundred rupees per mensem, or who is a craftsman or an apprentice working under a scheme approved by the State Government on the condition that such craftsman or apprentice shall not be deemed to be an employee under this Act. There is also an Explanation added which makes by fiction all dismissed, discharged or retrenched employee or employees whose employment has been otherwise terminated as eligible for maintaining application before the Labour Court. If we analyse the definition of employee it transpires that any person falling within the category under Section 3(13) read with Section 2(13) can seek redress of grievance pertaining to subjects mentioned in Schedule II of the Act. It also includes discharged, dismissed, retrenched employees including those whose services have been otherwise terminated. In substance, it provides for redressal of grievance pertaining to his tenure of service.
6. In the present case, the petitioner had superannuated but his grievance is with regard to the period of service during which he was employed as skilled labour in M.P. E.B. Simply because he has retired on attaining the age of superannuation, it does not mean that he has ceased to be an employee for purposes of a grievance which was subsisting during his tenure of employment in the Board. The grievance of the petitioner in the present case is with regard to the fact that his past services rendered by him in Chhindwara Electric Supply Company have not been counted for post retiral benefits. He could not have made this grievance during the service tenure as the cause of action for him had only arisen when on attaining the age of superannuation, he was retired and his services were not counted properly for computing his pension. Since the grievance of the petitioner pertains to the period during which he was in the employment in the Board as a skilled labour, to defeat his grievance on the ground that he has ceased to be an employee after retirement would be contrary to the provision. As the grievance is with regard to the period during which he was employed as a skilled or unskilled labour in the Board, therefore, he falls in the first category of the definition of 'employee' for redressal of his grievance.
7. Even the Explanation by fiction treats the dismissed employee or discharged or retrenched employee as an employee. It also lays down that a person whose services have been otherwise terminated has to be treated as an employee. When an incumbent superannuates, then also his services come to an end. Termination means a cessation of service of the incumbent. Cessation of service could be on account of the dismissal, removal or retrenchment or it could also be on account of attaining the age of the superannuation. Therefore, by virtue of this Explanation, he can also be treated as an employee of the Board.
8. Next question is whether the grievance which was raised by the petitioner falls in any of the subjects enumerated in Schedule II framed under Section 31 or not. Item No. (1) says that any person aggrieved by an order passed or action taken by an employer, acting or purporting to act under the Standing orders or any rules or regulations governing the conditions of service can challenge its propriety or legality by making an application before the Labour Court. In the present case, the petitioner has a grievance against order passed by the M.P.E.B. in not counting his services rendered by him in Chhindvvara Electric Supply Company. Therefore, it is a matter which relates to the service conditions of the petitioner and he is aggrieved by the adverse order passed by the Board, which falls under Item (1) of Schedule II of the Act, hence it is open to the petitioner to challenge the same before the Labour Court. We are not dilating on the merit part of the matter because we do not know what were the service conditions of employees when their services were taken over by the Board. This will depend upon the service conditions governing the petitioner at the time of taking over the Company by the Board. We are therefore not touching that subject and leave it to the Labour Court to decide.
9. In view of above discussion, we are of the opinion that the view taken by the Industrial Court is not correct and the order of the Industrial Court is set aside and that of the Labour Court is sustained. The Labour Court may now adjudicate upon the order passed by the Board with regard to counting of services of the petitioner rendered by him in Chhindwara Electric Supply Company, according to the terms and conditions of merger. The writ petition is accordingly allowed. No order as to costs.