SUPREME COURT OF INDIA
State of M.P.
Vs.
Onkar Prasad Patel
C.A.No.6678 of 2004
(Arijit Pasayat and Tarun Chatterjee JJ.)
07.12.2005
Arijit Pasayat, J.
1. Challenge in this appeal is to a judgment of the learned Single Judge of the
High Court of Madhya Pradesh at Jabalpur dismissing the writ petition filed by
the State of Madhya Pradesh and its functionaries; thereby putting its seal of
approval on the orders of the Labour Court, Jabalpur (in short, 'the Labour
Court') and the Industrial Court, Jabalpur Bench (in short, 'the Industrial
Court'). The respondent (hereinafter referred to as the workman) filed a
petition under Section 31(3) read with Section 61 of the Madhya Pradesh
Industrial Relations Act, 1960 (in short, 'the M.P.Act'). His stand in the
essence was that he was in the services of the Public Health Engineering
Department and was working at Jabalpur Sub-Division since 17.11.1991 as a
Helper. He prayed for regularization of his services on the ground that he had
rendered services for more than six months in a permanent vacant post and,
therefore, entitled to be classified as a permanent employee and was also
entitled to the difference of salary and consequential benefits. The claim was
resisted by the State and its functionaries on the ground that the respondent
was not working in respect of a permanent post and his services cannot,
therefore, be regularized. Evidence was led by the parties. The Labour Court
came to a positive finding that the applicant/workman had not been appointed to
any permanent and vacant post by an appointment order and he was not as such
entitled to get the benefits of differences in wages, as he was a daily wager.
But it directed that from the date of order, he was entitled to get the regular
wage rate. This, apparently, was done because the Labour Court felt that he had
worked continuously and, therefore, was entitled to be classified the permanent
category. It held that the applicant was entitled to be classified in permanent
category on the post of worker from 24.05.1994 i.e. two years prior to
24.05.1996 (the date of application) and was to be granted wage rate of regular
category from the date of the order of the Labour Court i.e. 26.08.2000. An
appeal was filed before the Industrial Court, which was dismissed. The
Industrial Court was of the view that since the applicant/workman had worked
for more than six months from the date of appointment, he was entitled to the
benefit extended by the Labour Court. A writ application was filed before the
High Court, which, as noted above, was dismissed. The High Court came to hold
that enough opportunity was granted to the employer to place its case and the
employer only exhibited Ex.D-1 and did not want to lead any further evidence.
Therefore, the view expressed by the Labour Court and the Industrial Court did
not warrant interference.
2. Learned counsel for the appellant-State and its functionaries submitted that
in order to be entitled to a declaration for permanency, certain criteria are
fixed in terms of the Standard Standing Order framed under the Act. The
requirements are (a) the employee must have completed six months satisfactory
service (b) the service must have been rendered in a clear vacancy in one or
more posts. In the instant case, no evidence was adduced by the
claimant/workman to show that there was any clear vacancy. The assertions made
in that regard in the petition was denied specifically by the present
appellant. In fact, the Labour Court recorded a positive finding that there was
no clear vacancy and, therefore, there was no question of his being classified
in the permanent category. A specific issue was framed in this regard which
reads as follows:
"Whether the applicant is entitled to be on the post classified in the
permanent category on the post of helper from 17.11.1991?"
3. After having held that the applicant/workman had not been appointed to
any permanent and vacant post, the directions given do not stand to reason.
Unfortunately, the Labour Court, Industrial Court and the High Court did not
focus attention on this vital issue.
4. In response, learned counsel for the respondent/workman submitted that Ex.D-1 clearly indicated that the respondent was working continuously and what was the nature of work. Therefore, the views expressed by the Labour Court, the Industrial Court and the High Court do not suffer from any infirmity.
5. The Standing Order in terms of Rule 2 (i) of the Madhya Pradesh
Industrial Employment Standing Orders Rules, 1963 (in short 'Rules') which
admittedly was applicable provided, inter-alia, as follows:
"Rule 2 Classification of Employees –
x x x
(i) A 'Permanent" employee is one who has completed six months
satisfactory service in a clear vacancy in one or more posts whether as
Probationer or otherwise, or a person whose name has been entered in the muster
roll and who is given a ticket of permanent employees."
6. In view of the clear definition of a "permanent employee", as
given in the Standard Standing Order, the applicant/workman cannot be
categorized as a permanent employee even though he may have completed six
months satisfactory service. The other requirement that the service was
rendered in a clear vacancy in one or more posts was not established. The
conditions are cumulative and are not independent of each other. That being the
position, the Labour Court, the Industrial Court and the High Court were not
justified in directing that the respondent/workman was to be categorized as a
permanent employee. That part of the direction is set aside.
7. The appeal is allowed to the aforesaid extent. No costs.