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Madhya Pradesh High Court · body

2009 DIGILAW 542 (MP)

NAGAR PALIK NIGAM SAGAR v. ANAND MANGAL GURU

2009-04-24

ARUN MISHRA, S.A.NAQVI

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Judgment ( 1. ) THE writ petitions have been filed by Municipal Corporation, Sagar and by the workmen aggrieved by award dated 28-10-2005 passed by the Labour court, Sagar in Case No. 94/01/idr. ( 2. ) CASES of workmen Anand Mangal Guru, Dev Kumar Choubey and ajay Kumar Mishra were referred for adjudication to the Labour Court. Anand mangal Guru was appointed as Health Inspector on 25-11-1997, Dev Kumar choubey and Ajay Kumar Mishra were appointed as Safai Daroga w. e. f. 25-11-1997. They had rendered continuous services. They prayed for the relief of declaring them to be permanent employee and different of wages. It was claimed by them that they were employed as against the vacant posts but their services were not regularized. ( 3. ) MUNICIPAL Corporation, Sagar in its reply contended that appointment was not made as per rules. Vacant posts were not available. Even if they had worked for more than 240 days in a calendar year, they are not entitled to be regularized in the services. The Labour Court, Sagar earlier passed an award (P-3), dated 5-6-2004 directing that regularization may be made w. e. f. 25-11-1997. The matter travelled to this Court in W. P. S. No. 10815/2004. This court allowed the writ petition, set aside the award passed by the Labour Court and remitted back the case to the Labour Court to examine the question of availability of vacant post for the purpose of classification. Thereafter, the impugned award has been passed after recording the evidence on the aforesaid question. The Labour Court has ordered the classification of the aforesaid workmen without affecting the seniority of the other employees and to grant other reliefs admissible on classification. 45 days time had been granted by the labour Court to comply with the award. Aggrieved by the award, W. P. S. No. 9366/2006 has been filed by the Municipal Corporation, whereas other three writ petitions have been filed by the workmen claiming that difference of wages ought to have been granted with effect from the date the right had accrued to them of being classified on permanent basis. ( 4. Aggrieved by the award, W. P. S. No. 9366/2006 has been filed by the Municipal Corporation, whereas other three writ petitions have been filed by the workmen claiming that difference of wages ought to have been granted with effect from the date the right had accrued to them of being classified on permanent basis. ( 4. ) SHRI G. P. Singh, learned Counsel appearing for Municipal corporation, Sagar has submitted that though the vacant posts were available and aforesaid workmen rendered the services on the vacant posts, the classification could not have been ordered in the light of the decision of Apex court in Secretary, Slate of Karnataka Vs. Uma Devi, (2006) 4 SCC 1 . He has also submitted that since with respect to vacancy earlier no evidence was adduced and this Court had remitted the case to the Labour Court in the year 2005, thereafter evidence as to vacant post has been adduced by the workmen, consequently they could not be said to be entitled for difference of wages w. e. f. the date of lapse of 6 months period, thus the award of the Labour Court in that regard is proper. He has also referred to other decisions of Apex Court. ( 5. ) SHRI P. C. Chandak, Sanjay Patel and Uttam Maheshwari appearing on behalf of workmen have submitted that earlier regularization was ordered which has been set aside and case was remitted to the Labour Court for examining the availability of vacant post for the purpose of classification which was claimed. Satisfactory services had been rendered by the workmen, consequently classification has been rightly ordered by the Labour Court, however, they have prayed that difference of wages ought to have been granted after lapse of 6 months satisfactory service when right had accrued to the workmen of being classified on permanent basis. ( 6. ) FOR the purpose of classification, Madhya Pradesh Industrial employment Standing Orders Rules, 1963, Standard Standing Order 2 (i) is that workman has completed 6 months satisfactory services and service has been rendered in the clear vacancy in one or more posts which was established, these conditions are cumulative and not independent of each other. ( 7. ) IN the instant case, it is not a case that the appointment was made by the person who had no authority to appoint or the appointment is shown to be void. ( 7. ) IN the instant case, it is not a case that the appointment was made by the person who had no authority to appoint or the appointment is shown to be void. The only submission is that in the light of the decision of Uma Devis case (supra), the classification could not have been ordered. ( 8. ) THE Apex Court in State of M. P. and others Vs. Lalit Kumar Verma, (2007) 1 SCC 575, has observed thus :- 7. A workman, therefore,would be entitled to classification of permanent or temporary employee, if the conditions precedent therefor are satisfied. The respondent was not appointed against a clear vacancy. He was not appointed in a permanent post or placed on probation. He had also not been given a ticket of permanent employee. Working on daily wages alone would not entitle him to the status of a permanent employee. It is apparent from the decision of Apex Court that there has to be availability of vacant post and satisfactory services. In the instant case, there was availability of vacant post, which is not in dispute. The Apex Court in aforesaid decision has also considered the question of regularization in case classification was not permissible and observed thus:- 10. The respondent was also not appointed in terms of the statutory rules. He was furthermore not entitled to any regular scale of pay attached to any post. Ordinarily, therefore, he could not have been directed to be regularised in service having regard to the constitution Bench decision of this Court in Secy. , State of karnataka Vs. Umadevi, (2006) 4 SCC 1 . Reliance, however, has been placed by Mr. Mathur on Para 53 of the judgment which reads as under:-(SCC p. 42)"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in state of Mysore Vs. S. Vs. Narayanappa, (1967) 1 SCR 128 , R. N. Nanjundappa Vs. T. Thimmian, (1972) 1 SCC 409 and B. N. Nagarajan Vs. State of Karnataka, (1979) 4 SCC 507 , and referred to in Para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the Courts or of Tribunals. State of Karnataka, (1979) 4 SCC 507 , and referred to in Para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the Courts or of Tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the Courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub-judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme. " The Apex Court has considered the case of classification in Para 7 and laid down the aforesaid requirement and has considered the claim of regularisation separately. In the instant case, regularisation has not been ordered, classification has been ordered. In view of the facts of the instant case, it is found to be proper as post was available and satisfactory services have been rendered, has also not been disputed. ( 9. ) THE Apex Court in State of M. P. and others Vs. Onkar Prasad Patel, (2005) 13 SCC 489 , has laid down thus :- 5. The Standing Order in terms of Rule 2 (i) of the Madhya Pradesh industrial Employment (Standing Orders) Rules, 1963 (in short "the Rules") which admittedly was applicable provided, inter alia, as follows:-"2. ( 9. ) THE Apex Court in State of M. P. and others Vs. Onkar Prasad Patel, (2005) 13 SCC 489 , has laid down thus :- 5. The Standing Order in terms of Rule 2 (i) of the Madhya Pradesh industrial Employment (Standing Orders) Rules, 1963 (in short "the Rules") which admittedly was applicable provided, inter alia, as follows:-"2. 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 muster roll and who is given a ticket of permanent employee. " 6. In view of the clear definition of a "permanent employee", as given in the Standard Standing Order, 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. That part of the direction is set aside. The Apex Court has emphasized the availability of vacancy and satisfactory service for six months, those requirement being fulfilled in the instant case, the decision of Labour Court cannot be faulted. ( 10. ) IN Secretary, State of Karnataka Vs. Uma Devi (supra), question of regularization has been considered. The decision of Uma Devis case has been considered by the Apex Court in State of M. P. and others Vs. Lalit Kumar Verma (supra), in which the Apex Court has found on facts that terms of contract was fixed on the basis of nature of job. The object of temporary employment was bonafide and not to deprive the employee from benefit of a permanent status. The burden to prove unfair labour practice is upon the workman. Once the period of contract is fixed and the same is done keeping in view the nature of job, it cannot be said that the act of the employer in terminating services is actuated by any malice. The burden to prove unfair labour practice is upon the workman. Once the period of contract is fixed and the same is done keeping in view the nature of job, it cannot be said that the act of the employer in terminating services is actuated by any malice. Mere completion of 240 days continuous service, does not entitle the employee concerned for regularization and permanent status. There is no dispute with the aforesaid preposition laid down by the Apex Court. However, in the instant case there is availability of vacant post and satisfactory services have been rendered. Both these facets have not been disputed. Consequently, in our opinion, the decision is of no assistance to the Municipal Corporation. ( 11. ) WITH respect to the grant of benefit with effect from the date of completion of 6 months satisfactory service on the vacant post, we find that the dispute was raised in the year 2001, initially with respect to the vacant post, the evidence was not adduced which has been adduced after case was remitted by this Court vide order dated 31-3-2005 passed in W. P. S. No. 10815/2004, there was lapse on the part of the workmen to adduce the evidence which was necessary to be adduced. Consequently, we find the award of the Labour Court granting the wages as ordered by it on being classified within 45 days, to be proper. We find no ground to interfere in the award passed by the Labour Court. Resultantly, the petitions preferred by the Municipal Corporation as well as by the workmen being devoid of merits are liable to be dismissed, same are hereby dismissed. Parties to bear their own costs as incurred of these petitions.