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Madhya Pradesh High Court · body

2008 DIGILAW 671 (MP)

State of M. P. v. Hariram

2008-05-08

S.K.GANGELE

body2008
ORDER 1. Petitioners have filed the petition challenging the orders Annexure P-1 dated 16.11.2007 and Annexure P-2 dated 17.8.2007 passed by the Industrial Court, Gwalior and Labour Court, Gwalior. 2. Initially the respondent-employee filed an application before the Labour Court under the provisions of Madhya Pradesh Industrial Relations Act for his classification on the post of Chowkidar and also challenged the order of termination of service dated 4.7.1995. He pleaded that he had been working on daily wage basis as Chowkidar w.e.f. 1.7.1990. He completed six months' satisfactory service and was entitled to be classified on the post of Chowkidar. Contrary to this the department issued a notice dated 4.7.1995 terminating his services, which is illegal. The Labour Court vide order dated 4.7.2000 allowed the application of the respondent-employee and quashed the notice dated 4.7.1995 and also ordered classification of the employee from 24.7.1993 on the post of Chowkidar with payment of salary for the post w.e.f. 24.7.1993. 3. Petitioners filed an appeal against the aforesaid order, which was also dismissed by the Industrial Court vide order dated 23.4.2002. Thereafter, petitioners further filed a petition before this Court, which was registered as Writ Petition No.2140/2003 and same was also dismissed vide order dated 18.7.2003. Thereafter, the Executive. Engineer vide order dated 12.10.2004 classified the respondent-employee as permanent Labourer and further ordered that respondent-employee shall be entitled minimum pay as fixed by the Labour Commissioner. 4. After the order of the Executive Engineer the respondent-employee filed an application under section 108-A of the Madhya Pradesh Industrial Relations Act before the Labour Court for recovery of an amount of Rs.2,66,551/-. He pleaded that the Labour Court ordered to pay the pay-scale to him for the post of Chowkidar w.e.f. 24.7.1993, hence the respondent-employee was entitled to receive the aforesaid pay-scale and salary accordingly. Along with the application he also filed a chart and stated that he was entitled to an amount of Rs.2,66,551/-. Before the Labour Court the petitioners stated that the respondent-employee had already been classified as permanent but he is not entitled the pay-scale of Chowkidar. The Labour Court rejected the contention and ordered for payment of an amount of Rs.2,66,551/- and also issued RRC (Revenue Recovery Certificate) to this effect. Against the aforesaid order petitioners filed an appeal before the Industrial Court. That appeal has also been dismissed vide order dated 16.11.2007. Now, the petitioners filed present writ petition. The Labour Court rejected the contention and ordered for payment of an amount of Rs.2,66,551/- and also issued RRC (Revenue Recovery Certificate) to this effect. Against the aforesaid order petitioners filed an appeal before the Industrial Court. That appeal has also been dismissed vide order dated 16.11.2007. Now, the petitioners filed present writ petition. 5. Learned counsel for petitioners has submitted that the respondent-employee is not entitled the regular pay-scale of Chowkidar and Labour Court has committed an error of law in granting the pay-scale and issuing RRC in favour of the respondent-employee. Learned counsel further submitted that in view of the provisions of Madhya Pradesh Industrial Employment (Standing Orders) Rules, 1963 and Annexures to the Standard Standing Orders the respondent-employee is only entitled to benefits accrued in relation with the aforesaid Standard Standing Orders. In support of her contention learned Deputy Advocate General relied upon Mahendra L. Jain others v. Indore Development Authority and others [ 2005(3) JLJ 233 = (2005)1 SCC 639 ], and M.P State Agro Industries Development Corporation Ltd. and another v. S.C. Pandey [2006(2) Vidhi Bhasvar 78= (2006)2 SCC 716 ]. Contrary to this learned counsel for the respondent-employee has submitted that the respondent-employee has already been classified as permanent. There is order of Labour Court for payment of pay-scale of Chowkidar and that has been affirmed up to the High Court. In such circumstances, the Labour Court has rightly ordered issuance of RRC. In support of his contentions learned counsel relied upon the judgments of this Court in Engineer-in-Chief, PH.E.D. and others v. Budha Rao Magarde and others [ 2001(2) JLJ 399 = 2002(1) MPLJ 385 ], and Vandana Singh (Smt.) v. Steel Authority of India Ltd. and another [ 1993 JLJ 55 ]. 6. The respondent-workman, on an application filed by him before the Labour Court, has been classified as permanent on the post of Chowkidar vide order dated 10.2.2000. It has further been ordered by the Labour Court that the respondent-employee is entitled to pay-scale of permanent post of Chowkidar w.e.f. 24.7.1993. Against the aforesaid order an appeal was tiled which was also dismissed and the writ petition filed was also dismissed. Thereafter, the petitioners did not file any further appeal or proceedings. Hence, the order has attained finality. It has further been ordered by the Labour Court that the respondent-employee is entitled to pay-scale of permanent post of Chowkidar w.e.f. 24.7.1993. Against the aforesaid order an appeal was tiled which was also dismissed and the writ petition filed was also dismissed. Thereafter, the petitioners did not file any further appeal or proceedings. Hence, the order has attained finality. It is clear from the order of the Labour Court that the Labour Court has clearly directed to pay the pay-scale of Chowkidar to the respondent-employee w.e.f. 24.7.1993. 7. As per Annexure which is Standard Standing Orders under the Madhya Pradesh Industrial Employment (Standing Orders (Rules) 1963 the Standing Order 2 prescribes classification of employees, which is as under: "2. Classification of Employees. 7. As per Annexure which is Standard Standing Orders under the Madhya Pradesh Industrial Employment (Standing Orders (Rules) 1963 the Standing Order 2 prescribes classification of employees, which is as under: "2. Classification of Employees. -- Employees shall be classified as (i) permanent, (ii) permanent seasonal, (iii) probationers, (iv) Badlies, (v) apprentices, and (vi) temporary : (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 muster roll and who is given a ticket of permanent employee; (ii) A 'permanent seasonal employee' is one who has completed service for a period equal to 2/3rd of the duration or a season or three months whichever is less in a clear vacancy and shall be deemed to be a permanent employee for the purposes of these orders; (iii) A 'probationer' means an employee who is provisionally employed to fill a clear vacancy, and who has not completed six months' satisfactory service in the aggregate; (iv) A 'badli' employee means an employee who is employed on the post of a permanent employee, or a probationer or a permanent seasonal employee who is temporarily absent; (v) An 'apprentice' means a learner, provided that no employee shall be classified as an apprentice if he has had training for an aggregate period of one year, provided further that a longer period of apprenticeship shall be required if prescribed by a law or an award, or by agreement with the representative of employees; (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." 8. When an employee or worker has already been classified as permanent then he had got certain benefits. In the Standard Standing Orders the pay-scale of permanent employee has not been prescribed. continuously for more than six months he shall be deemed to be a permanent employee, within the meaning of clause (i) above." 8. When an employee or worker has already been classified as permanent then he had got certain benefits. In the Standard Standing Orders the pay-scale of permanent employee has not been prescribed. However, it is an admitted fact that in the department also there is no pay-scale prescribed of the employee who has been classified as permanent by the Labour Court under the aforesaid Standing Orders. However, the pay-scale of Chowkidar has been prescribed. When the respondent-employee has been classified as Chowkidar then certainly he is entitled to get the pay-scale of the aforesaid post also. Apart from this, the Labour Court has also ordered for payment of salary of permanent post of Chowkidar to the respondent-employee and that order has attained finality. Hence, the arguments advanced by the learned counsel for petitioners that the respondent-employee is not entitled the pay-scale of Chowkidar which has been prescribed for regularly recruited employees, cannot be accepted. 9. The aforesaid point has already been answered by the learned Single Judge of this Court in Engineer-in-Chief, PH.E.D. and others v. Budha Rao Magarde and others [ 2001(2) JLJ 399 = 2002(1) MPLJ 385 ], where learned Single Judge has held as under: "12. The next contention of the learned Government Advocate is that clauses (i) and (vi) of SSO 2 merely confer a status without any corresponding obligation to pay them wages or salary in the regular pay-scale of the posts. Learned Government Advocate has proceeded further to submit that by acquiring a status, a person gets apprised of the nature of the duties that he is required to discharge as employee engaged on daily wages can, without such status, be employed in different sections. It is difficult to comprehend that a person acquires permanent status only as a 'tag' without attendant benefit of salary of the posts relating to the nature of the work carried out by such an employee. In the present case each of the employees has specifically referred to the work of the service rendered by him in connection with a post. To illustrate, in WP No.3510/2000 the claim of the employee was that he was working as a Lab Assistant while in WP No.3056/2000 the claim was that the employee was working on the post of Sweeper. To illustrate, in WP No.3510/2000 the claim of the employee was that he was working as a Lab Assistant while in WP No.3056/2000 the claim was that the employee was working on the post of Sweeper. Thus, specific duties performed relating to specific posts were duly pleaded and not specifically denied. Such a status acquired by an employee does not give him any other advantage except the advantage of pay. In M.P.S.R.T.C. v. Harish (supra) itself on conferral of the deeming status of permanent employee, direction for payment of salary on the post was made which indicates that it goes without saying that when a person acquires a permanent status, he automatically becomes entitled to the salary of the said post. In State of M.P v. Ram Prakash (supra), the observations of the Division Bench which are relevant in this context read as extracted below: "12. For all the foregoing reasons, we have no hesitation to hold that our interference with the order or award passed by the Labour Court on 25.6.1987 (Annexure P-3) is not warranted, the claim of the respondent being legally as also Constitutionally justified, whether in Surendra Kumar Saxena v. Brij Kishore Sharma (supra), would not, in terms, apply to respondent's case for that reason. His entitlement would also be so determined (under the Annexure of 1963 Rules) in respect of his claim for being treated as permanent employee. Therefore, he would be entitled to be paid not only the minimum of salary in the pay-scale applicable to Lower Division Clerks/Typist appointed on regular basis; he would rather be entitled to be paid salary in the pay-scale applicable to them. Therefore, he would be entitled to be paid not only the minimum of salary in the pay-scale applicable to Lower Division Clerks/Typist appointed on regular basis; he would rather be entitled to be paid salary in the pay-scale applicable to them. In other words, he would also be entitled to increments envisaged under that pay- scale because we have held that he is entitled to be endowed with the status of a "permanent employee" in terms of the statutory provisions aforesaid." From the above decision it is clear that once an employee acquires the status of permanent employee he is required to be paid the salary/ wages of the post and he cannot be continued on the wages on which he had initially been appointed or continued till he had become permanent." Learned Division Bench of this Court in Vandana Singh (Smt.) v. Steel Authority of India Ltd. and another [ 1993 JLJ 55 ], has held as under with regard to entitlement of pay-scale: "In the result, the petition is allowed with costs. The petitioner is declared as a regular and permanent employee, who shall be entitled to the pay-scale of Rs.1425-2205 from 22.2.1990 with regular increments and all ancillary benefits attached to the post. The difference of salary shall be payable to petitioner only from 22.2.1990. Respondents to pay the costs of petitioner in this petition, counsel's fee Rs.1,000/- if already certified." 10. On the basis of above principle of law laid down in the aforementioned decisions of this Court it is clear that upon classification an employee is entitled to get the pay-scale of the post on which he has been classified as permanent. 11. The judgments relied upon by the learned Deputy Advocate General are with regard to the right of an employee to be classified under the provisions of certified Standing Orders and the powers of the Court. That point is not involved in the present case. The point involved in the present case is that the respondent has already been classified and ordered for payment of regular pay-scale of the post. 12. In my opinion, the Labour Court has not committed any error of law in computing the salary of the respondent-employee on the basis of regular pay-scale of the post of Chowkidar. The point involved in the present case is that the respondent has already been classified and ordered for payment of regular pay-scale of the post. 12. In my opinion, the Labour Court has not committed any error of law in computing the salary of the respondent-employee on the basis of regular pay-scale of the post of Chowkidar. However, the learned Deputy Advocate General has submitted that the department has not submitted cogent evidence before the Court with regard to correct amount and pay-scale which has to be paid to the respondent-employee. 13. Looking to the above facts of the case, the petition of the petitioner is disposed of with the following directions: (1) That, the orders Annexure P-1 dated 16.11.2007 and Annexure P-2 dated 17.8.2007 passed by the Industrial Court, Gwalior and Labour Court, Gwalior are upheld. However, if there is any ambiguity with regard to entitlement of the pay-scale to the respondent -employee, the department is free to pass appropriate orders after giving notice in this regard to the employee within a period of four weeks. If, within the aforesaid period, no order be passed then the respondent-employee will be entitled the amount which has been ordered by the Labour Court and the Industrial Court. It has further been ordered that the respondent -employee be also paid regular pay-scale as per the order of the Labour Court. No order as to costs.