Munishwar Singh Kushwah vs State of MP and Others

Sujoy Paul, Judge

In this petition filed under Article 226 of the Constitution of India, the petitioner has prayed for a command to the respondents for granting him the benefit of Sixth Pay Commission from due date. The brief facts necessary for adjudication of this matter are that the petitioner was initially appointed as a driver with effect from 01.01.1983. After working for a long time, he filed a case u/s 31 (3) of the M.P. Industrial Relations Act, 1960 (for short hereinafter referred to as "MPIR Act") for his classification as permanent employee with all other benefits.

The said matter was decided by the Labour Court on 10.12.1998. It was directed by the Labour Court that the petitioner shall be classified as a permanent employee on the post of Time Keeper and he be given increments and his pay shall be fixed from 20.09.1994. From 20.09.1994, the petitioner was held to be entitled for difference of pay. This order of the Labour Court was unsuccessfully challenged by the department in Appeal No. 61/MPIR/99 before the Industrial Court. The Industrial Court dismissed the appeal on 22.07.1999. The employer then filed Writ Petition No. 1851/1999 before this Court. This Court also affirmed the order of the Labour Court and the Industrial Court on 23.01.2003. The employer then assailed the orders aforesaid before the Hon''ble Supreme Court, which dismissed SLP (CC No. 3176/2006) on 24.04.2006 (Annexure P/5). Thus, the order of the Labour Court got stamp of approval of the Hon''ble Apex Court.

The net result of the order of the Labour Court is that the petitioner is declared as permanent Time Keeper and was further made entitled for certain financial benefits. The respondents granted him the benefit of Fifth Pay Commission and fixed his pay accordingly. The benefit of Sixth Pay Commission was also initially granted to the petitioner, but later on, it was taken away.

The singular question needs to be decided is whether the petitioner is entitled for the benefit of Sixth Pay Commission?

The Labour Court in so many words made it clear that the petitioner became entitled to be declared as permanent Time Keeper from 20.09.1994. Thus for all practical purposes, the petitioner became the permanent Time Keeper from 20.09.1994. It is not disputed by the other side that the benefit of Sixth Pay Commission is granted to the other employees of the State Government. However, it was denied to the petitioner on the ground that the "permanent" word is used in a different pretext and context and, therefore merely because he is declared and classified as permanent employee, he cannot not receive the benefit of regular employee.

In my considered opinion, this argument has no substance at all. Once an employee is declared and classified as permanent, for all practical purposes, he becomes a permanent employee. A Division Bench of this Court at Principal Seat in the case of Writ Appeal No. 1266/2010 and other connected matters has held that classification under the Standard Standing Orders is also a regular mode of induction as a permanent employee. Relevant paragraph of the aforesaid Division Bench judgment reads as under :-

The aforesaid rules do not contain any express prohibition that an employee, who has been classified as permanent employee under the Rules would not be entitled to benefits of the post hold by him. No restriction contained under the contract of employment has been brought to our notice.

Whether an employee comes by way of normal recruitment process or through the process of classification, the fact remains that both i.e. the normally recruited employee and a classified employee work on the same post and perform the same duties. It cannot be held that the classification has any less effect or force as compared to the normal process of appointment, because the classification is also based upon the law in the form of Standing Orders and as such both employees who have been brought in to service through either of the two processes permitted by law, as permanent employees against a particular post, should be entitled to the same benefits. Taking a contrary view would mean that the employees inducted through classification process would be saddled with an undesirable disability throughout their service, as compared to other employees which may tantamount to violation of the principle of "equal pay for equal work". Our view finds support from another Division Bench decision of this Court report in the case of State of Madhya Pradesh and Others Vs. Ram Prakash Sharma and Others,

Thus, when the employee becomes permanent by way of classification, he cannot be differentiated with other permanent employees. Once an employee is classified under the Standard Standing Orders pursuant to a Court''s order, which got stamp of approval till the Supreme Court, his birth mark, i.e. on which post and how he was initially inducted has lost its significance. In other words, once the petitioner is classified as a permanent employee, he cannot be differentiated by saying that the classification does not mean permanency. The Labour Court''s order leaves no room for any doubt that he has been made permanent with all basic benefits attached to the permanent post and other pay benefits. The respondents extended the benefit of Vth pay commission to the petitioner by treating him as a permanent employee and therefore they can not deprive him the benefits of VI th Pay Commission. The respondents, as a model employer ought to have extended the benefit to the petitioner after having lost the battle till the Supreme Court. This is an unfortunate situation where despite succeeding till the Supreme Court, the poor employee has been denied his legitimate claim. I strongly deprecate this practice and deem it proper to allow this petition with costs. Accordingly, this petition is allowed and the respondents are directed to extend the benefit of Sixth Pay Commission to the petitioner with all consequential benefits. Necessary fixation be made within 03 months, arrears be calculated and paid to the petitioner within the same time. If the arrears are not paid to the petitioner within 03 months, the same will be paid to the petitioner with 6% per annum interest till its realization. In the event of delay in granting the said benefit to the petitioner, the State will be free to realize the amount of interest from the erring officials. This Court deems it proper to impose costs on the respondents for unnecessarily dragging the petitioner in the present avoidable litigation. Accordingly the respondents shall pay Rs. 10,000/- as costs to the petitioner within the same time.