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2021 DIGILAW 2 (MP)

MP Electricity Board v. Badri Prasad Kushwaha

2021-01-05

SANJAY DWIVEDI

body2021
ORDER : Sanjay Dwivedi, J. 1. With the consent of learned counsel for the parties, the matter is heard finally. 2. Learned counsel for the petitioners while arguing the matter finally, has confined his contention to the extent that for granting award of classification as permanent employee to the respondent herein, the labour Court has to give a specific finding whether the employee has been appointed against a clear vacant post or not. In this regard there should be a specific pleading from the employee and it has to be proved by him that his engagement on the post is against the clear vacancy and if that is not there and no specific finding is given by the labour Court, the order of classification as has been made in the present case, is not sustainable in the eyes of law. 3. Learned counsel appearing for the respondent submitted that in paragraph-6 of the reply submitted by the respondent-employee, it has been clearly mentioned that the appointment of the respondent on the post of Driver was made in accordance with the requirement of work and as per the rules. He further submits that it is an admitted position that the appointment of the respondent has been made as per the rules, against a clear vacant post. He submits that in paragraph-9 of the award passed by the labour Court, it is also observed that the petitioner-Department has failed to demonstrate as to how many posts of driver were lying vacant in the department and how many drivers were working against those posts and therefore, it can be easily presumed that there was a pleading in respect of appointment of the respondent on the post of Driver against a clear vacant post. He further submits that the respondent has already been paid salary for the post of Driver from year 2005 till the date of his retirement but the dispute is only in respect of nonpayment of the wages w.e.f. 1999-2005. He submits that in view of the facts and circumstances of the case, the order passed by the labour Court is proper and in accordance with law and no interference is called for. 4. Heard learned counsel for the parties at length. 5. The facts of the case are that the respondent-employee was appointed on the post of Attendant Grade-II (Helper) vide order dated 08.05.1989 (Annexure-P/3). 4. Heard learned counsel for the parties at length. 5. The facts of the case are that the respondent-employee was appointed on the post of Attendant Grade-II (Helper) vide order dated 08.05.1989 (Annexure-P/3). By virtue of his appointment order, he was continued to work on the post of Helper. Thereafter, the labour Court vide order dated 27.05.2003 (Annexure-P/2) allowed the application filed by the respondent-employee under Sections 61 and 62 of the Madhya Pradesh Industrial Relations Act, 1960 and passed an award that the respondent-employee is entitled to be classified as a Driver and should be required to be permanently classified on the said post and also found him entitled to get difference of salary of the said post for the preceding two years from the date of submitting the application. 6. Thereafter, an appeal was preferred by the petitioner-Department challenging the said order Annexure-P/2, and the appellate authority i.e. the Industrial Court, Rewa, vide order dated 28.02.2005 (Annexure-P/1), has dismissed the appeal affirming the order passed by the labour Court. 7. Being aggrieved with the order passed by the labour Court on 27.05.2003 and by the appellate authority on 28.02.2005, the petitioner-Department preferred the instant petition challenging the orders mainly on the ground that the respondent-employee was never appointed on the post of Driver, but appointed as an Attendant Grade-II, therefore, his classification on the said post as a permanent classified driver, is illegal. It is also contended by the petitioner-Department that even if it is presumed that the respondent-employee had worked on the post of Driver for a period of six months but that does not make him entitle to be classified unless it is proved that he had worked against a vacant post, however, the same has not been done in the present case. It is further contended that the Court below has not framed any issue as to whether the respondent-employee ever worked against a vacant post or not and therefore, the relief claimed and granted in his favour, is liable to be set-aside. 8. Learned counsel for the petitioners in support of his contentions, has placed reliance upon a decision reported in 1999(1) MPLJ 466 [Superintending Engineer, Public Works Department, Circle Gwalior & Another Vs. Dev Prakash Shrivas, Gwalior & Others]. 9. 8. Learned counsel for the petitioners in support of his contentions, has placed reliance upon a decision reported in 1999(1) MPLJ 466 [Superintending Engineer, Public Works Department, Circle Gwalior & Another Vs. Dev Prakash Shrivas, Gwalior & Others]. 9. Learned counsel for the respondent-employee has submitted that from perusal of the order passed by the labour Court, it is clear that the witnesses of the Establishment/petitioner have admitted this fact that from the respondent-employee, the work of Driver was being taken-up. It is also admitted that from the date of appointment and thereafter the respondent-employee was continuously performing the duties as a Driver, but was not being paid salary of the said post. The witnesses of the Establishment/petitioner also admitted that after performing duties as a Driver, his license was demanded by the Establishment and he had produced the same. The labour Court after scrutinizing the statements of the witnesses, has observed that the Establishment failed to show as to how many sanctioned posts of driver are available in the Establishment and against those available posts, how many drivers are working. They further failed to show that after year 1989, how many drivers were appointed. He submits that it is, thus, clear that the said aspect has been taken note of by the labour Court and then, finding was given relying upon the decision passed in the case of Anil Kumar Tiwari Vs. State of Madhya Pradesh reported in 2000 (2) MPLSR 629. He has further submitted that the respondent-employee has been paid salary for the post of Driver from year 2005 till the date of retirement, but at present, the only dispute remains to be adjudicated as the respondent-employee was not paid salary for the post of Driver with effect from 1999 as has been ordered by the labour Court that he is entitled to get the salary of the post of Driver preceding two years from the date of submitting the application, therefore, after retirement of the respondent-employee, the order of his classification to the post of Driver cannot be set-aside when the said order has already been given effect to and the respondent-employee was treated to be a Driver by the petitioner-Department and paid salary thereof. 10. 10. Considering the rival contentions of learned counsel for the parties and perusing the record, the main contention as raised by learned counsel for the petitioners is that the order passed by the labour Court on 27.05.2003 and by the appellate authority i.e. Industrial Court on 28.02.2005, are liable to be set-aside mainly on the ground that there is no specific pleading that the respondent-employee was working against a vacant post of Driver and the same has also not been proved by the petitioner-Department and in view of the Full Bench judgment and other judgment of this Court, the order of classification is not sustainable. 11. The Full Bench in the judgment passed in the case of Dev Prakash Shrivas (supra), has answered the reference made to it for answering the following question of law:- "Whether the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961 will be applicable to the services which are governed by the Rules mentioned in section 2(2) and also to those employees where Recruitment Rules have been framed?" 12. The said reference was answered in the following manner:- "As a result of above discussion, we hold that by virtue of sub-section (2) of section 2, unless Government notifies that particular rules which are applicable to that Department will exempt the application of the provisions of the M.P. Industrial Employment (Standing Orders) Act, 1961, till that time the provisions of the Act, Rules and Orders issued thereunder will govern that Department. The references are accordingly answered." 13. As such, in my opinion, the aforesaid Full Bench judgment is not relevant here in this case as the issue involved in this case is altogether different from that case. 14. Learned counsel for the petitioners has further relied upon a decision reported in (2006) 2 SCC 702 [M.P. Housing Board & Another Vs. Manoj Shrivastava]. As such, in my opinion, the aforesaid Full Bench judgment is not relevant here in this case as the issue involved in this case is altogether different from that case. 14. Learned counsel for the petitioners has further relied upon a decision reported in (2006) 2 SCC 702 [M.P. Housing Board & Another Vs. Manoj Shrivastava]. However, in the said case, the person appointed as a daily-wager was claiming status of permanent employee on the basis of the fact that he has worked continuously for a period of six months and therefore, he is entitled to be classified as a permanent employee, thereafter, the Supreme Court has observed that:- "A daily-wager worked for more than six months continuously cannot acquire the status of permanent employee unless he is able to prove that he was appointed according to the provision of statute or under any constitutional obligation and further that he has worked against a clear vacant post." 15. But, here in the case at hand, the respondent-employee was not appointed as a daily-wager and that is not the issue that the appointment of the respondent-employee in the Establishment was not against any statute; on the contrary, his appointment was on the post of Attendant Grade-II according to the provision of Statute as has been shown in the appointment order itself, which is Annexure-P/3, but the respondent-employee has claimed that after giving him appointment as an Attendant Grade-II, the Establishment/petitioner has taken the work of the post of Driver as there was a need and also asked him to submit his license which he had submitted. It is also clear from the order of labour Court that before the labour Court, the witnesses produced by the Establishment/petitioner, have admitted that the post of Driver was available and work of Driver was also available, therefore, the respondent-employee was asked to work on the said post, accordingly, the facts of the case of Manoj Shrivastava (supra) are also not applicable and as such, legal position as has been held in the said case, is not applicable in the present case. 16. Furthermore, in the case relied upon by learned counsel for the petitioners i.e. 2001 (3) MPLJ 585 [Chhaya Bhopatkar Vs. 16. Furthermore, in the case relied upon by learned counsel for the petitioners i.e. 2001 (3) MPLJ 585 [Chhaya Bhopatkar Vs. State of M.P. & Others], the Division Bench of this court has dealt with the issue that whether the claim of workman to be classified as a permanent employee, can be considered by the Court without considering the fact that whether the posts are available under the Recruitment Rules, or not, on which the claimant has performed the work. 17. In the present case, as has been discussed hereinabove, the labour Court very categorically examined this fact after scrutinizing the witnesses produced during the trial that there was work available for Driver and there were also vehicles available in the Establishment and in absence of driver, the respondent-employee was asked to work as a Driver and it is also held by the labour Court that the Establishment during the trial, failed to show as to how many posts of driver were available and how many persons were working against the said posts. It is also observed that the Establishment was not inclined to prove before the Court that the post of Driver was not available as well as they failed to show as to how many appointments were made after year 1989 to the post of Driver and therefore, the respondent-employee could not be given permanent status of the post of Driver. 18. Not only this, but admittedly the respondent-employee was treated to be a driver and granted wages of the said post, but not paid wages from year 1999 till 2001, therefore, in my opinion, there is no illegality and irregularity in the impugned orders passed by the labour Court so also by the appellate authority i.e. Industrial Court, on 27.05.2003 and 28.02.2005 respectively. 19. Further, I do not find any force in the submissions made by learned counsel for the petitioners. Accordingly, this petition being without any substance, deserves to be and is hereby dismissed.