Executive Engineer and Another vs Balata and Another

S.K. Gangele, J

The petitioner has filed this petition against an award Annexure P/1 dated 9.7.2012.

The respondent No. 1 employee was engaged as daily wager in June 1968 by the Department. His date of birth recorded in the service book as 17.1.1947. After completing 30 years of service, the respondent employee was disengaged from service with effect from 31.12.2009. He made a complaint to the appropriate Government that his disengagement was illegal and he was entitled to continue in service upto the age of 60 years in accordance with the circular of the Department. The appropriate Government made the reference before the labour Court u/s 10 of the Industrial Disputes Act that whether the disengagement of the respondent employee was proper or not. The Labour Court answered the reference in favour of the respondent employee vide impugned award and held that the employee is entitled to continue in service upto the age of 60 years.

The petitioners/State in this petition has contended that the employee was a daily wager, hence, he has no right to continue in service upto a particular age and the Department has rightly disengaged him after completing 30 years of service in accordance with the circular of the Department.

The question raised in this petition has already been answered by the Division Bench of this Court in the case of Mahesh Rajak v. State of M.P. and others; WP 594/2011, where this Court has held that the Standard Standing Orders are applicable to the Government Department. In the present case, the respondent employee was serving in the Public Works Department, hence, the Standard Standing Order is applicable in the aforesaid Department framed under the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961. The Division Bench has held as under:

It is also a fact that the daily wager employees are not covered by the provisions of Civil Services (Classification, Control and Appeal) Rules and Civil Services (Temporary Service) Rules, hence, the Act of 1961 is applicable to the appellant.

Annexure to the Act of 1961 prescribes SSO for all the industries in the State. Regulation 14-A of the aforesaid "SSO" prescribes the age of retirement of an employee which is as under :

14-A Retirement: an employee shall retire from the service of the employer on the date he attains the age of 58 years. He may, however, be retained in service by the employer after the date of attaining the age of 58 years if his services necessary in the interest of the undertaking but he shall not be retained in service after the age of 60 years.

From the aforesaid statutory provision, it is clear that an employee working in an undertaking is entitled to continue in service up to 58 years of service.

A Full Bench of this Court in Superintending Engineer v. Dev Prakash Shrivas 1999 (I) MPJR 1 (FB). has answered the reference in regard to applicability of the Act in the government department as under :

In the scheme of the rules, if we go back to sub-section (2) of section 2 of the Act of 1961, question is whether the present Department is governed by any service rules, as notified under sub-section (2) of section 2 or not. Learned Counsel for the State has not been able to point out whether the Rules mentioned in sub-section (2) of section 2 of the Act govern the present undertaking or not nor has been able to bring to our notice any exemption notification issued under this Act. Since the present Department has not been exempted by issuing a notification in accordance with sub-section (2) of section 2 of the Act of 1961, the Act of 1961 read with Rules of 1663, the Standard Standing Orders shall govern the Department.

In the case of State of Madhya Pradesh and Others Vs. Ram Prakash Sharma and Others, this Court examined the provisions of the Industrial Employment (Standing Orders) Act, 1961 read with the Rules of 1963 and held that the service conditions which have been incorporated as Annexure shall apply. Though another aspect was also considered whether a direct petition is maintainable or not without going to the industrial Court, that aspect was discussed in greater detail. Specifically the applicability of sub-section (2) of section 2 did not arise in that case. Be that as it may, the fact remains that in view of our present opinion that Annexure which is Standard Standing Order will definitely govern the present Department also till a proper notification is issued under sub-section (2) of section 2 of the Act of 1961.

Our attention was also invited to the decision of this Court in the case of Vandana Singh v. Steel Authority of India, 1993 JLJ 55. where the question was with regard to Arts. 14,16 and 39(d) of the Constitution of India. There was a '' difference of opinion between members of the Division Bench. One learned Judge held that the incumbent was entitled for regularization and equal pay for equal work. The difference was whether he is entitled for equal pay for equal work when there was no permanent vacancy available. Another Hon. Judge held that in absence of permanent vacancy, no relief with regard to equal pay for equal work could be given. The view expressed by another learned Judge in that case appears to be well founded. This view appears to be in accordance with clause 2 of Standard Standing Order which says that existence vacancy is must.

Hon. Referring Judge made reference of two decisions of Apex Court in H.D. Singh v. Reserve Bank of India 1985 (51) FLR 494 (SC). and Grih Kalyan Kendra Worker''s Union v. Union of India 1991(62)FLR 337(SC). Both these cases were with regard to regularization of daily wage employees who were working for long in the Department. In that, the Apex Court observed that such daily wagers cannot as a matter of right claim regularization as they were not regularly recruited according to the rules. Both these decisions of the Apex Court were with regard to general principles for regularization of daily wagers who had put in long service and there were no statutory provisions like Standard Standing Orders involved in both these decisions. The present case is governed by the Act of 1961, Rules of 1963 and the statutory Standing Orders framed under the provisions of the Act. Therefore, general ratio laid down by the Apex Court will not govern the present case.

As a result of above discussion, we hold that by virtue of sub-section (2) of section 2, unless Government notifies that particular rules which are applicable to that Department will exempt the application of the provisions of the MP Industrial Employment (Standing Orders) Act, 1961, till that time the provisions of the Act, Rules and Orders issued thereunder will govern that Department. The reference are accordingly answered.

Earlier also, in Madhya Pradesh State Road Transport Corporation v. Heeralal Oghhelal and others, 1980 MPLJ 8. Five Judges Bench of this Court has held as under in regard to the applicability of the Act of 1961:

Before parting with the case we desire to point out that in Ramchandra''s case the conflict between the regulations made under the Road Transport Corporations Act, 1950 and the Standard Standing Orders made under the Madhya Pradesh Standing Orders Act was solved by recourse to Article 254 of the Constitution. It was held in that case that the Road Transport Corporations Act was enacted by Parliament in exercise of its powers under Entries 43 and 44 of the Union List and the Standing Orders Act by the State Legislature under entry 24 of the Concurrent List. The conclusion that one of the competing legislations pertained to a matter in the Union List, made Article 254 wholly inapplicable for now it is well settled that that Article applies only when the competing legislations, one made by Parliament and the other made by the State Legislature, both pertain to a subject in the Concurrent List. Article 254 (2) is in terms limited to matters in the Concurrent List and although in Article 254 (1) the language while referring to a law made by Parliament is not that specific, judicial decisions have confined its application to Concurrent List. In A.S. Krishna Vs. State of Madras, while dealing with section 107 (1) of the Government of India Act, 1935 which was identically worded as Article 254 (1) of the Constitution, the Supreme Court, observed; "For this section to apply, two conditions must be fulfilled: (1) Provisions of the provincial law and those of the Central legislation must both be in-, respect of a matter which is enumerated in the concurrent list, and (2) they must be repugnant to each other." These observations were adopted as correct exposition of Article 254 (1) Prem Nath Kaul Vs. The State of Jammu and Kashmir, . and Kerala State Electricity Board v. Indian Aluminum Co., AIR 1975 SC 1031, p. 1039 Further, in M. Karunanidhi Vs. Union of India and Another, he Supreme Court again read Article 254 (1) as confined to matters in the concurrent list. If a legislation made by Parliament, which in pith and substance is under the Union List, incidentally trenches upon a subject in the concurrent list or State list covered by a State Legislation, the legislation made by Parliament whether before or after the State legislation will prevail in case of conflict not because of something contained in Article 254 but because of inherent supremacy of Parliament''s power of legislation in respect of a matter in the Union List conferred by clause (1) of Article 245 of the Constitution which operates "notwithstanding anything contained in clauses (2) and (3)" which deal with legislations in the Concurrent and State lists and which clearly provide that the power of the State Legislature to legislate in matters contained in those lists is "subject to" Parliament''s power of legislation in the Union List. A conflict of this nature is conceivable and can arise because of the doctrine of pith and substance which permits incidental encroachment in the domain of the rival Legislature. However, such a conflict must be inferred only as a matter of last resort when it is impossible to reconcile the competing legislations by recourse to the rules of harmonious construction which include the rule that a general provision is not intended to come in the way of or to supersede a special provision. We may only add that it is on this principle that regulations made u/s 45 (2) (c) of the Road Transport Corporations Act are to be subordinated to Standard Standing Orders on matters specified in the schedule to the Standard Standing Orders Act unless the regulations are notified u/s 2 (2) or certified as Standing Orders in accordance with the procedure laid down in the said Act.

There is statutory provision in regard to retirement of employees of an undertaking under the Act of 1961. In the aforesaid Act, there is no distinction between daily wager employee or regular employee. It is applicable to all the employees. The Act of 1961 has been enacted by the Legislature as a welfare legislation to provide certain benefits and legal rights to the employees in order to prevent exploitation of workers.

In this view of the matter, in our opinion, the respondent employee is entitled to continue in service upto the age of 58 years in accordance with the SSO. Hence, the petition of the petitioners is disposed of with a direction that the employee is entitled to continue in service upto the age of 58 years and he shall also be entitled to receive the benefit of salary upto the aforesaid age, because he had crossed the aforesaid age limit. The impugned award passed by the labour Court is modified to the above extent. The writ petition is disposed of accordingly. No order as to costs.