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Madhya Pradesh High Court · body

2003 DIGILAW 1374 (MP)

Gopi Chand Gupta v. M. P. Electricity Board

2003-12-19

S.S.JHA, SUBHASH SAMVATSAR

body2003
JUDGMENT Jha, J. -- 1. Both these appeals are disposed of by this judgment as they arise out of common order passed by the Single Bench. 2. Brief facts of the case are that : The appellants have filed applications for their classification as permanent before the Labour Court under the provisions of Madhya Pradesh Industrial E{l1ployees Standing Orders Act (hereinafter, referred to as the "Act"). Appellants claimed' that they have become eligible to be classified as "permanent" against the posts of Office Assistant Grade III. Appellants contended that they have worked continuously on the post for more than six months, therefore, they have acquired the right to be classified as permanent under the provisions of the Act. Labour Court allowed the application and held that the appellants are entitled to be classified as permanent and the order dispensing with their services was quashed. In appeal, the Industrial Court has affirmed the finding that the appellants are entitled to be classified as permanent employees against the post of Office Assistant Grade III. Employer has taken a plea that the workmen were not permanent employees. They were engaged on 11.6.1986 as trainees for a period of six months against the post of Office Assistant Grade III. Appellants were required to pass departmental examination after completion of training and thereafter they could be appointed on the post of Office Assistant Grade III. Since the appellants could not pass the test and clear training, their training period was extended for further period of six months. Even after the extended period of training, appellants could not clear the test and further time was extended by six months, but the appellants failed in the test. When the appellants failed to pass the examination, it was decided to dispense with their service with effect from 18.1.1988. Since contention of the employer was not accepted either by the Labour Court or by the Industrial Court, employer filed a writ petition before this Court. Learned Single Judge, while considering the scope of Standard Standing Orders, held that for acquiring the status of permanent, the essential ingredient is that the workman must have worked satisfactorily against vacant post for a period of six months. Learned Single Judge, while considering the scope of Standard Standing Orders, held that for acquiring the status of permanent, the essential ingredient is that the workman must have worked satisfactorily against vacant post for a period of six months. Single Bench held that since the appellants were trainees and were not appointed, therefore, the Labour Court and the Industrial Court erred in holding that the workmen have acquired the status of permanent employee and directing for payment of difference of salary. Single Bench allowed the writ petition filed by the employer and quashed the orders passed by the labour Court as well as Industrial Court. 3. In this appeal, preliminary objection is raised by the counsel for the respondents that the petition filed initially was under Article 227 of the Constitution of India, therefore, this letters patent appeal is not maintainable. In support of his contention, he referred to the judgment of this Court in the case of Gwalior Development Authority v. Harishankar Sharma [2002(1) Vidhi Bhaswar 13 = 2001(4) MPHT 177 ], wherein Division Bench has held that when the petitioner has invoked jurisdiction under Article 227 of the Constitution of India and the case was considered within the ambit of the provisions of Article 227 of the Constitution, letters patent appeal was held to be not maintainable relying upon the judgment of the Apex Court in the case of E.R.M.C. Mine Planning and Design Institute Ltd. v. Union of India and another [ AIR 2001 SC 883 ]. In support of this contention, counsel for the respondents also referred to the judgment of this Court in the case of Nagar Palika Parishad, Morena v. Darshanlal and another (LPA No. 13012000 decided on 7.9.2001), wherein Division Bench of this Court has held that since the order passed by the Single Bench was in exercise of the powers of superintendence, letters patent appeal is not maintainable and the appeal was dismissed. 4. However, contrary view is taken by this Court in the case of State of Bank of India v. Mis Shri Shyamji Sales [2002(1) Vidhi Bhasvar 5 = AIR 2003 MP 8 ]. 4. However, contrary view is taken by this Court in the case of State of Bank of India v. Mis Shri Shyamji Sales [2002(1) Vidhi Bhasvar 5 = AIR 2003 MP 8 ]. In para 4 of the judgment, Division Bench has held that when powers are exercised under Article 227 of the Constitution of India, letters patent appeal is not maintainable, but if the petition is filed under Articles 226 and 227 of the Constitution of India and not under Article 227 of the Constitution alone, then simply because the judgment mentions exercise of powers under Article 227 of the Constitution, that would not be the end of the matter. Statement of facts and the reliefs sought in the petition are to be considered to find out whether the petition is under Article 226 or under Article 227 of the Constitution of India and held that the appeal is maintainable. If the Single Bench has considered the petition only under artic1e 227 of the Constitution, then merely holding that since petition was filed under both the Artic1e 226 and 227 of the Constitution therefore letters patent appeal is maintainable is the view directly opposite to the earlier Division Bench judgment of this Court in the case of Gwalior Development Authority (supra). Normally the pleadings in the petition are to be seen. If no relief under Artic1e 226 of the Constitution is claimed in the petition though the petition may be styled as one under Article 226 and 227 of the Constitution, then also in the absence of any ground under Artic1e 226 of the Constitution, letters patent appeal under Clause 10 of the Letters Patent will not be maintainable. This question was considered by the Apex Court in the case of E.R.M.C. Mine Planning and Design Institute Ltd. (supra) wherein in para 7, the Apex Court held that Clause 15 of the Letters Patent of Calcutta, Bombay and Madras is in lisdem terminis Clause 10 of the Letters Patent of Allahabad, Patna, Punjab and Haryana and Madhya Pradesh. While interpreting Clause 15, it is held that the appeal shall lie to the larger Bench of the High Court of Judicature at Patna from a judgment of one judge of the said High Court or one Judge of any Division Court pursuant to Artic1e 225 of the Constitution of India. While interpreting Clause 15, it is held that the appeal shall lie to the larger Bench of the High Court of Judicature at Patna from a judgment of one judge of the said High Court or one Judge of any Division Court pursuant to Artic1e 225 of the Constitution of India. In other words, no letters patent appeal would lie to the High Court from the judgment of one Judge of the High Court passed in second appeal. It is further held that sentence or order passed or made in exercise of power under the provisions of section 107 of Government of India Act, 1935 (now Artic1e 227 of the Constitution of India) or in exercise of criminal jurisdiction, no letters patent appeal would lie to the High Court. Therefore, order passed in exercise of power of superintendence under Artic1e 227 of the Constitution will not be appealable under Clause 10 of the Letters Patent. 5. In the case of Hari Vishnu Kamath v. Ahmed Ishaque ( AIR 1955 SC 233 ), it is held that the High Courts have powers to issue writ of certiorari for quashing the decision of Election Tribunals notwithstanding that they become "functus officio" after pronouncing the decisions. The writ of certiorari for quashing is directed against a record, and as a record can be brought up only through human agency, it is issued to the person or the authority whose decision is to be reviewed. As it is the record of the decision that has to be removed by certiorari, the fact that the Tribunal has become "functus officio" subsequent to the decision can have no effect on the jurisdiction of the Court to remove the record. The Apex Court has also considered the scope of jurisdiction to issue writ of certiorari and while considering the scope of Article 227 of the Constitution, it is held that the Election Tribunals are subject to the superintendence of the High Courts under Artic1e 227 of the Constitution. Power of superintendence is both judicial and administrative. Under Article 226 of the Constitution the High Court can only annul the decision of the Tribunal, but under Article 227 it can do that and also issue further direction in the matter. Power of superintendence is both judicial and administrative. Under Article 226 of the Constitution the High Court can only annul the decision of the Tribunal, but under Article 227 it can do that and also issue further direction in the matter. Conditions for issuing writ in the nature of certiorari have been considered and it is held that writ of certiorari will be issued (i) for correcting the error of jurisdiction as and when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it; (ii) when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as and when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice; and (iii) the Court issuing writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. Relying upon this decision, counsel for the respondents submitted that Single Bench has exercised its jurisdiction under Article 227 of the Constitution, therefore, this appeal is not maintainable. 6. On the other hand, counsel for the appellants submitted that writ of petition was filed under Articles 226 and 227 of the Constitution of India. He referred to the judgment in the case of Hindustan Lever Limited v. B.N. Dongre [ (1994) 6 SCC 157 ] wherein it is held that decision of the Industrial Tribunal under the Industrial Disputes Act would be subject to review by the High Court under Article 226/227 of the Constitution of India and letters patent appeal will lie against the judgment. 7. In a recent judgment in the case of Surya Dev Rai v. Ram Chander Rai and others [ 2004(1) JLJ 1 = AIR 2003 SC 3044 ] question of issuance of writ under Articles 226 and 227 of the Constitution and the question of issuance of writ in the nature of certiorari has been considered by the Apex Court and distinction between the jurisdiction of issuance of writ of certiorari under Article 226 and supervisory jurisdiction under Article 227 has been considered. 8. We have gone through the judgment of the Single Bench. 8. We have gone through the judgment of the Single Bench. On perusal of the judgment, it is apparent that the Single Bench has allowed the writ petition filed by the respondent-Board on the ground that the Labour Court as well as Industrial Court have proceeded to decide the case on wrong premises that the employee who was undergoing training before appointment has been considered as workman and period of training has been considered as period of service. Therefore, learned Single Judge has refused to certify the record and allowed the petition. Thus, it is not a case where the petition has been decided under Article, 227 of the Constitution alone, but the learned Single Judge has exercised the jurisdiction under Articles 226 and 227 of the Constitution. Therefore, we hold that this letters patent appeal is maintainable. 9. Counsel for the appellants submitted that since, finding has been recorded by the Labour Court as well as by the Industrial Court that the appellants had worked continuously for more than six months, therefore, Single Bench has committed an error in interfering with the directions issued by the Labour Court as well as by the Industrial Court and there was no scope for interference with the orders of the Labour Court as well as the appellate order of the Industrial Court. 10. To resolve the controversy, it will be appropriate to go through the order of appointment. Vide Order Annexure P-1 dated 31st May, 1986 appellants were appointed as Office Assistant Grade III Trainee for on job training on a fixed stipend of Rs. 475/-. The appointment was subject to the terms and conditions mentioned in the appointment letter. It provides that on appointment as Officer Assistant Grade III, he will have to pass departmental examination as may be prescribed by the Board for his promotion to the next higher post. Annexure I provides that the appointment will be as Office Assistant Grade III Trainee for training for a period of six months. The period of training may be extended or curtailed at the discretion of the Board. It further provides that the services of trainee can be terminated during the period of training at any time without notice and without assigning any reason. The period of training may be extended or curtailed at the discretion of the Board. It further provides that the services of trainee can be terminated during the period of training at any time without notice and without assigning any reason. It further provides that on satisfactory completion of training and passing the written test conducted thereafter, candidate will be eligible to be considered for appointment as Office Assistant Grade III on probation in the time scale of pay. Thus, the essential ingredient was that the candidate should complete the training and pass written test. So long as the candidate has not completed the training and passed the written test, he will not be eligible to be appointed as Office Assistant Grade III. 11. In the case of appellants, they joined the training and the training period was extended from time to time. But the appellants could not pass the test for appointment on the post of Office Assistant Grade III. Since the appellants were not appointed as Office Assistant Grade III, it cannot be said that they have continuously worked for a period of six weeks satisfactorily to be classified as permanent. 12. To understand the controversy, para 2(i) of the Standard Standing Orders is reproduced below : "Classification of Employees -- Employees shall be classified as -- (i) permanent, (ii) permanent seasonal, (iii) probationers, (iv) badlies, (v) apprentices, and (vi) temporary, - 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 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." The provision lays down that it is necessary that an employee should work for six months continuously in a clear vacant post satisfactorily to be classified as permanent. But where an employee has failed to complete the training and could not pass the written test, no presumption can be drawn that he has worked satisfactorily against a vacant post. But where an employee has failed to complete the training and could not pass the written test, no presumption can be drawn that he has worked satisfactorily against a vacant post. On the contrary from the facts on record, it is apparent that the appellants were engaged on fixed stipend and were not appointed on the post of Office Assistant Grade III. They could be appointed on the post only after they have successfully completed the training and passed the written examination thereafter. Since the essential eligibility criteria for appointment was not fulfilled by the appellants they could not be classified as permanent without serving with the respondent-Board. These material facts have been over looked by the Labour Court as well as by the Industrial Court. Therefore, in our opinion, learned single Judge has not committed any error in holding that the appellants have not acquired any right to continue on the post as they have failed to complete the training. Orders of the Labour Court as well as of the Industrial Court are contrary to the material on record and the finding recorded by the Labour Court that the appellants were appointed as Office Assistant Grade III is perverse and the Single Bench has rightly quashed the orders passed by the Labour Court and the Industrial Court. 13. These appeals have no merit and are dismissed without any order as to costs.