State of M.P. vs Vatsala Rao (Smt.) and Others

Sanjay Yadav, J.—This order shall govern final disposal of W.P. No. 5566/1999 - State of M.P. v. Smt. Vatsala Rao and others and W.P. No. 4010/ 2000 - Smt. Vatsala Rao v. State of M.P. and another as both these writ petitions under Article 227 of the Constitution of India are directed against the order dated 26.7.1999 passed by Industrial Court in Appeal No. 158/ 1995 and 159/1995 M.P.I.R. By said order the Industrial Court affirmed the order dated 20.6.1995 passed by Labour Court in Case No. 229/92/MPIR.

The case No. 229/92 MPIR before the Labour Court was an application preferred by the Workman (respondent in W.P. No. 5566/1999 and the petitioner in W.P. No. 4014/2000) u/s 31(3) read with Section 61 of Madhya Pradesh Industrial Relation Act, 1960 (referred to as Act of 1960) for classifying her as copyist/typist w.e.f. 1.11.1983 from the date of her initial appointment.

The facts adverted to before the Labour Court was that having possessed the requisite qualification and experience/eligibility to be appointed to the post of copyist/typist, she filed an application submitting her candidature for the post of copyist on 6.11.1983. The said application was forwarded to the Sub Divisional Officer by the then Executive Engineer, Tilwara Left Bank Canal division Keolari district Seoni with an endorsement to consider her case for appointment on the post of copyist against a vacant post of Lower Division Clerk in the sub division. That, in pursuance to said recommendation the workmen was appointed on a clear and vacant post of copyist/typist in the said division and was paid the wages of copyist. Subsequently thereafter four months her wages were reduced and she was paid the wages as an qualified labour on daily wages on the anvil that she has satisfactorily completed six months of service against the vacant post, the said application was preferred seeking permanent classification.

The claim put-forth by the workman was contested by the State Government (petitioner in W.P. No. 5566/1999 and W.P. No. 4014/2000) on the ground that the workman was never appointed against the vacant post of copyist/typist and that she was engaged as a qualified labour and was paid wages accordingly. It was stated that the she worked as typist on her own will. Thus, the claim put-forth by the workman for being classified as permanent was contested by the State of Madhya Pradesh,

5 Documents were filed by the workman and evidence were led by respective pasties before the Labour Court. The Labour Court on the basis of evidence brought on record passed an order on 20.6.1995 directing for permanent classification of the workman by drawing a presumption that she having satisfactorily worked for a period of six months against the vacant post of typist. However, the difference of wages for the post of copyist/typist and qualified labour from November 1983 were declined. Being aggrieved the State of Madhya Pradesh as well as the workman preferred an appeal u/s 65 of the Act of 1960 before the Industrial Court. Whereas the appeal preferred by the workman was against the non-grant of difference of wages since November 1983. The appeal preferred by the State Government and its functionary was against the order of permanent classification.

The Industrial Court by impugned order dated 26.7.1999 dismissed both the appeals. Being dissatisfied with the order both the parties are before us vide respective petitions.

It is contended by learned Government Advocate that the Courts below fell into patent error in ignoring the evidence on record that the workman was never engaged against the vacant post. On the contrary she was engaged on daily wages as qualified labour. It is contended that an intermittent work of typist being carried out by the workman will not entitle her to be treated as being appointed as typist against the vacant post of Lower Division Clerk. To substantiate his submission learned Government Advocate has led us through the evidence as well as documents filed before the Labour Court. It is contended that workman no doubt was engaged as a typist but the same was only for a period of two months. Subsequent thereafter when a decision was required to be taken to dispense her from service, an application was filed by the workman to the extent that she may be accommodated as qualified labour on daily-wages. It is urged that, considering the said application the workman was allowed to continue to work on daily-wage basis as qualified labour. It is contended that there being no sanctioned/vacant post of qualified labour, the conclusion arrived at by the Labour Court that the workman was appointed against a vacant post is patently erroneous.

Learned Govt. Advocate further submits that for a classification as a permanent employee under Standard Standing Orders it is incumbent upon the person to prove that he/she was appointed against the vacant post and has satisfactorily served for more than six months. To substantiate his submission learned Government Advocate places reliance on decision in Mahendra L. Jain and Others Vs. Indore Development Authority and Others, M.P. Housing Board and Another Vs. Manoj Shrivastava,

Countering the submissions put-forth on behalf of State of M.P., learned counsel appearing for respondent workman while not disputing the proposition of law as has been settled by a catena of decisions rendered by Supreme Court that unless shown to have been appointed against a clear vacant post an incumbent will not be entitled for the benefit of classification as permanent employee, has to submit that in the cases at hand there is no evidence on record as could be construed that the Labour Court has gone into the aspect of factum that when workman was initially appointed the same was not against the clear vacant post. It is urged that for that the matter may be remanded to be examined by the Labour Court.

Considered the rival submissions. Perused the record.

Exhibit P-1 was an application whereby the workman applied for appointment as Copyist on daily-wages. The application was addressed to the Executive Engineer, Tilwara Left Bank Canal Division Keolari district Sidhi. The Executive Engineer forwarded the same to the Divisional Engineer, Tilwara, Left Bank Canal sub division No. 4 Keolari to consider the applicant/workman for the post of Copyist on daily-wages against the vacant post of Lower Division Clerk in his sub-division. Exhibit P-3 dated 1.11.1991 indicates that on behalf of Executive Engineer, Sub Divisional Officer directed to make the payment of wages as per the post on which the workman was appointed. Exhibit P-4 and P-5 dated 22.1.1992 and 28.2.1992 are the work allotment orders.

Pertinent it would be to note that while engaging the workman on daily-wages as Typist neither applications were invited through employment exchange or through advertisement nor any procedure for recruitment was adhered to. It was simply on the basis of an application preferred by the workman and the recommendation of the Executive Engineer that the workman was engaged on daily wages. Apparently no right accrued in favour of such workman.

Subsequently by order dated 21.2.1992 the workman was informed of her status being a qualified worker w.e.f. 1.4.1987. Consequent thereafter the workman has been paid the daily wages of qualified worker. The workman though by her letter dated 3.3.1992 (Ex. P-8) did raise an objection, the same was however, ruled out by letter dated 4.3.1992 (Ex. P-9) that the workman being engaged on daily wages cannot as a matter of right claim for wages of the post of Typist.

Thereafter, a dispute was raised before the Assistant Labour Commissioner that the workman being employed against the post of Typist was entitled for the said status as also the salary thereof. The claim was denied by the respondent management which led the workman to file an application before the Labour Court u/s 31(3) read with Section 61 of the M.P. Industrial Relations Act, 1960 seeking the direction that she be classified as Typist from the date of her initial appointment, I.e., 1.11.1983 and the respondent management be directed to pay the regular pay scale of typist along with arrears from 1.11.1983.

The claim was controverted by the respondent management wherein it was stated that the workman was employed on daily-wages and the salary of the typist paid to her for a period of four months was due to error which was subsequently rectified. It was categorically stated that the workman was engaged only when the work was available as a qualified labour and was never engaged as Typist.

Evidence were adduced by the respective parties; wherein the applicant categorically admitted that she was not appointed through employment exchange but was engaged on daily wages w.e.f. 1.11.1983. It was stated

The management witness in his evidence stated :-

In cross-examination also he denies that the workman has been working continuously on the post of Copyist since 1.11.1983. The Labour Court by drawing a presumption that since the workman has worked for more than six months on a vacant post allowed the application classifying the workman as typist w.e.f. November 1983 and granted the difference of wages. However, in an appeal the appellate court modified the order passed by the Labour Court to the extent that the workman was denied the difference of wages from 1983 till 23.9.1992.

The workman as well as management is before us vide these petitions under Article 227 of the Constitution of India. The question is as to whether the Courts below were justified in classifying the workman as permanent typist in the given facts of the case.

Rule 2 (i) of Standard Standing Orders under Madhya Pradesh Industrial Employment (Standing Orders) Rules, 1963 provide for "Classification of Employees, (i) a ''permanent'' employee is one who has completed six months'' satisfactory service in a clear vacancy in one or more posts whether as a probationer or otherwise, or a person whose name has been entered in the must roll and who is given a ticket of permanent employee;

Explanation- In computing the period of six months the days on which employee was absent due to authorised leave, sickness, maternity leave, accident, lock out and strike (which are not illegal) or closure of the undertaking shall be included.

In Vandana Singh (Smt.) v. Steel Authority of India Ltd. and another (1993 JLJ 55) it was observed

Relevant definition extracted from clause (2) of M.P. Industrial Employment Standing Orders Rules, 1963 read as under :-

Classification of employees : - Employees shall be classified as (i)permanent, (ii) permanent seasonal, (iii) probationers, (iv) badlies, (v) apprentices, (vi) temporary:

(i) A "permanent" employee is one who has complete 6 months" satisfactory service in a clear vacancy in one or more posts whether as a probationer or otherwise, or a person whose name has been entered in the muster roll and who is given a ticket of permanent employee"

(vi) ''Temporary employee'' means an employee who has been employed for work which is essentially of a temporary character, or who is temporarily employed as an additional employee in connection with the temporary increase in the work of a permanent nature, provided that in case such employee is required to work continuously for more than six months he shall be deemed to be a permanent employee, within the meaning of clause (i)above.

Vide clause (i)to be a permanent employee, the employee should have (a) completed six months" (b) satisfactory service; and (c) in a clear vacancy. If the proviso to clause (vi) is read in isolation, a temporary employee employed for work essentially of a temporary character would be deemed to have been confirmed with the status of a permanent employee without regard to the considerations whether the services were satisfactory or not and whether or not there was a clear vacancy. Such an interpretation would not only violate the celebrated rule of harmonious construction but would also lead to absurdity. Reference to clause (i)in the proviso to clause (vi) obliges the proviso being read with clause (i); meaning thereby that the temporary employee as defined under clause (vi) would remain a temporary employee without regard to the period of work done by him unless and until it is found that there was a clear vacancy available and he services of the employee were satisfactory. If this test is applied to the petitioner, she cannot be classified as " permanent", for there is no material available to hold that the petitioner''s performance was satisfactory and there was a clear vacancy available.

The aforesid view has been affirmed by Full Bench of this Court in Superintending Engineer, Public Works Department, Circle Gwalior v. Dev Prakash Shrivas, Gwalior and others [1999 (1) MPLJ 467] wherein it is held

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 subsection (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 196.

Our attention was also invited to the decision of this Court in the case of Vandana Singh v. Steel Authority of India : 1993 J.L.J. 55 whether question was with regard to articles 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 Orders which says that existence Vacancy is must.

In State of Madhya Pradesh and Others Vs. Onkar Prasad Patel, it is held that "6.....The applicant workman cannot be categorised 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 categorised as a permanent employee.

In Mahendra L. Jain and Others Vs. Indore Development Authority and Others, the Supreme Court dwelling upon the case of sub engineer who was not appointed against a sanctioned post and his appointment was not in a regular mode, i.e. through employment exchange or by issuing any advertisement held that regularization in such cannot be claimed as a matter of right. It was observed that "an illegal appointment cannot be legalised by taking recourse to regularisation. What can be regularised is an irregularity and not an illegality." (paragraph 19). In the context as the present one it was observed:

The Standing Orders governing the terms and conditions of service must be read subject to the constitutional limitations wherever applicable. Constitution being the suprema lex shall prevail over all other statutes. The only provision as regards recruitment of the employees is contained in Order 4 which merely provides that the manager shall within a period of six months, lay down the procedure for recruitment of employees and notify it on the notice board on which Standing Orders are exhibited and shall send copy thereof to the Labour Commissioner. The matter relating to recruitment is governed by the 1973 Act and the 1987 Rules. In the absence of any specific directions contained in the Schedule appended to the Standing Orders, the statute and the statutory rules applicable to the employees of the respondent shall prevail.

In M.P. Housing Board and Another Vs. Manoj Shrivastava, it was held:

A person with a view to obtain the status of a "permanent employee" must be appointed in terms of the statutory rules. It is not the case of the respondent that he was appointed against a vacant post which was duly sanctioned by the statutory authority or his appointment was made upon following the statutory law operating the field.

Please also see the decision in State of M.P. and Others Vs. Lalit Kumar Verma,

In the case at hand the material as brought before the Labour Court does not satisfy the condition that the workman was appointed against a clear vacant post and the post on which she was said to have been appointed was sanctioned by the statutory authority and that her appointment was made by operating the regular mode of recruitment. Thus, no right accrued in her favour as would entitle her to be classified as permanent employee. The approach of the Labour Court and Industrial Court was apparently erroneous in holding the applicant to have acquired a permanent status having continuously worked for more than six months.

In view whereof we quash the orders dated 20.6.1995 passed by Labour Court in Case No. 229/92/MPIR and 26.7.1999 passed by the Industrial Court in Appeal No. 158/1995. In the result W.P. No. 5566/1999 is allowed; whereas, W.P. No. 4014/2000 is dismissed.