Chief Engineer, P.W.D., Gwalior and Others vs Safiq Rehman and Others

Rajendra Menon, J.

By this petition filed under Article 227 of the Constitution of India by the State Government challenge is made to the orders Annexure P/1 and P/2 dated 21.04.1999 and 24.01.1997 passed by the Industrial Court and Labour Court respectively by which a claim preferred for classifying the respondent employee as a permanent employee has been allowed and it has been ordered that the Respondent 1 employee be classified as a permanent employee in the establishment of the petitioner w.e.f. 25.09.1989.

The brief facts necessary for disposal of the present petition are that the respondent 1 was appointed on daily wages by the State Government w.e.f. 21.11.1984 vide Annexure R/1. Even though in the said order it is mentioned that he is appointed on daily wages as a time keeper for 30 days on muster roll the appointment continued from 21.11.1984 and after giving a break of one day respondent continued to work up to 1990 when he moved an application u/s 31 read with sections 61 and 62 of the M.P.I.R. Act on 05.11.1990 seeking classification w.e.f. the day he completed six months services, under the provisions of Standard Standing Orders formulated vide Annexure to the M.P. Industrial Employment (Standing orders) Rules 1963. It was the case of the petitioner that under the Standard Standing Order employees have been classified in clause 2, he is entitled to be classified as permanent employee under clause 2 (i). The said application was opposed. Evidence was led and vide order dated 24.7.1991, Annexure P-2 Labour Court directed for classification of the employee with effect from 25.9.1989 in the post of time keeper on the ground that he has worked for more than 6 months satisfactorily in the aforesaid post and by virtue of clause 2 (i) he is entitled to be classified. The aforesaid orders were challenged by the State by filing appeal before the Industrial Court vide Annexure P-1. The appeal has also been dismissed, hence, this petition under Article 227 of the Constitution.

Shri K.B. Chaturvedi, learned Govt. Advocate appearing for the petitioner submitted that classification of an employee under clause 2 (i) can be done only if it is established that the employee has worked for six months. His service was satisfactory and he had worked in a clear vacancy. It is the case of the petitioner that all the three criteria should be fulfilled. In this case it is not established that the employee respondent 1 was working in a clear vacancy, therefore, it is submitted that classification could not be done. That apart it is submitted by him that regularisation of an employee who has been recruited contrary to the recruitment rules cannot be permitted in view of the law laid down by the Supreme Court in the case of State of U.P. and Others Vs. Ajay Kumar, and Himanshu Kumar Vidyarthi and Others Vs. State of Bihar and Others, . It is submitted by him that in view of the aforesaid the respondent 1 cannot be regularised. It was also argued that by a notification dated 20.1.1999 Annexure P-9, the M.P. Industrial Relations Act, 1960 has been amended and entries to the scheduled as contatined in Section 1 (3) have been changed. Item No. 16 in the schedule has been amended and it has been held that Engineering Industries carried on by the department of State Government will not be undertakings and M.P. I.R. Act, 1960 will not applied to such departments.

It is, therefore, submitted that the orders impugned cannot be sustained. Shri B.P. Singh, learned counsel appearing for respondents submitted that the amendments have no effect in the facts and circumstances of the present case because amendment came in the year 1999 whereas the orders of the Labour Court was passed on 24.1.1997. That apart it has been indicated that respondent/employee has been in continous employment for a period of 9 years and therefore he is entitled to be classifed a permanent employee. It may be relevant to state here that State Government vide order Annexure P-7 have regularised the respondent in service. It is stated that this regularisation has been done taking into consideration his seniority and the policies of the State Government.

I have heard learned counsel for the parties and have also perused the original records of the courts below. The petitioner gave his own statement before the Labour Court and it was submitted by him that after he was appointed vide Annexure P-1 on 24.1.1981 (Ex/P-1) he was continuously working as Time keeper Initially his appointment was for 89 days and after giving break of one day he worked continuously as a time keeper. It was his case that he has been continuously working as Time Keeper since 1.12.1984. It was also submitted by him that he is being paid wages as per Collector rate and ignoring his claim vide Annexure P-2 various employees like Shri Mukesh Garg, Vasudev, Chowksey who were junior to him have been regularisd in the year 1988. Ex. P-3 is certificate issued to the respondent by Asstt. Engineer, P.W.D. wherein it has been indicated that the respondent employee had been working continuously as a time keeper since 1.12.1984, his work is satisfactory. The certificate is issued on 6.9.1990, and indicates that he has been continuously working since 1.2.1984. The Labour Court has considered the aforesaid documents and the statement of the petitioner. It has been indicated by the Labour Court that the statement of the respondent/employee was not rebutted by evidence produced by the petitioner. On the contrary the statement of the petitioner''s witness also indicates that petitioner had been continuously working. On the basis of the aforesaid and taking into consideration the fact that the application was not filed within a period of 2 years, classification was not granted after completing six months service. But on the basis of circular dt. 25.9.1999 classification has been granted from the said date. The Industrial Court has also considered the aforesaid evidence. Further, the Industrial Court has indicated that from the statement established that respondent/employee is continuosly working since 1984 and he is working as time keeper. The witnes has also admitted issuance of certificate Annexure P-3. On the basis of the certificate issued, the Industrial court recorded finding that the employee has been in continuous employment since 1.12.1984 as a time-keeper and as he has worked in the said post all these years and in view of the facts that the provisions of Standing Orders are applicable to the Superintending Engineer, P.W.D. and Another Vs. Dev Prakash Shrivas and Others, , there is no illegality in the order passed by the Labour Court.

From the aforesaid it is clear that both the courts below directed for classification on the ground that Full Bench has held the provisions of Standing Order applicable to such establishment and the respondent/employee was in continuous employment as Time Keeper from 1.12.1984 to 6.10.1990. This fact is established form the statement of witnesses produced by the petitioner and Annexure Ex. P-3. However challenge is made to the aforeaid orders on the ground that there is no finding as to whether clear vacancy existed. It is the case of the petitioner that classification can be permitted only if clear vacancy exists.

From the evidence produced by the Management petitioner before the Labour Court it is not indicated that vacancies were not available. The vacancy position, number of posts and other particulars have not been produced. It was submitted by Shri Chaturvedi, learned Govt. Advocate that the burden of proving that he was working in a clear vacancy was on the respondent/employee and as he has not proved that he was working against a clear vacancy no relief could be granted to him. I am unable to accept the aforesaid contention. When an employee is asked to work continuously and discharge duties of a particular post for more than six years a presumption has to be drawn that vacancies are available and that is why employee is continued in the same job. In such cases, it is the employer who has to show the vacancy position and the fact that posts are not available. If an employee had been in service for more than 6 years the normal presumption is that vacancies are available and classification cannot be denied. In such cases, a inference of unfair labour practice can be drawn however, this act was considered by this court in similar situation in W.P.No. 800/1998 decided on 12.10.2000 and in para 3 it has been observed as under. "Learned counsel for the petitioners submitted that there is no finding that he has worked against vacant post The question of vacant post cannot be presumed as respondent No.1 has continuously worked form the year 1980 on the post of Driver till 1992, when he filed the petition. Thus, he has continuously worked on the post for about 12 years which itself demonstrates that post was available with the petitioners. Learned Counsel for the petitiners submitted that the matter was referred to larger Bench in the case of Superintending Engineer and others vs. Raj kumar Prajapati W.P.No. 349/1997. The full Bench has already decided the question and has held that Standard Standing Orders will be applicable to the employees of the State as no recruitment rules for the employees of State have been framed for recruitment on daily wages, their services will be governed by Standard Standing Orders.

In the present case also continuously from 01.12.1984 up to 10.1.1997 that is the date on which regularisation was granted by the State Government, the respondent/employee was working in the post of Time Keeper, which itself demonstrates that posts and work was available with the department but no action was taken for regularisation. The full bench of this court in the case of M.P.S.R.T.C. and Another Vs. Narain Singh Rathore and Others, has observed that classification of an employee can be done at the recruitmentstage, however, classification cannot be done in promotional post. In the instant case classification is being sought by the employee at the entry point of service. The ground of non availability of vacancy cannot be accepted in the facts and circumstances of the present case. Normally an employee is appointed on daily wages or in muster roll in connection with the temporary increase in work or for work which are not permanent in nature like a project or a particular scheme etc. In such cases the question of availability of vacancies may be relevant, but in a case where the record indicates that employee bad been working continuously for years together the plea of non availability of vacancy cannot be accepted even if such a plea is to be accepted it can be only if the employers adduce sufficient evidence before the Labour Court in support thereof. In the present case there is no evidence to indicate as to what was the vacancy position, when the vacancies arose and other relevant factors. In view of the above, I am of the considered view that no illegality can be found in the orders passed by the Courts below. Classification has been done properly and contention of the learned counsel for the petitioner that there is not finding with regard to availability of clear vacancy is totally misconceived in the facts and circumstances of the present case.

The further submissions of learned counsel on the basis of the judgment of the Supreme Court in the case of Himanshu (Supra) cannot be accepted in view of the fact that those cases related to regularisation of an employee whereas the present is a case where on the basis of satatutory provisions, that is clause 2 (i) of the Standing Order, classification on the post is sought. Therefore, the law laid down in these cases are not applicable in the present case where in view of the statutory provisions the employee automatically attains the status of the permanent employee and the order is only to classify him as all the crieteria laid down for being decalred as a permanent employee under the statutory rules are fulfilled. In view of this there is no substance in the averments made by the learned counsel for the petitioner in this regard. All the submissions made by the learned counsel for the petitioner having being negated I do not find substance warranting interference in the orders passed by the Courts below in the present case.

Accordingly the petition is dismissed. Parties to bear their own costs.