STATE OF M.P. AND ORS.versusONKAR PRASAD PATEL

A                             STATE OF M.P. AND ORS.
                                            v.
                              ONKAR PRASAD PATEL

                                  DECEMBER 7, 2005

B                [ARIJIT PASAYAT ANDTARUN CHATIERJEE, JJ.)


            Labour laws:

            Madhya Pradesh Industrial Relations Act, 1960; Ss. Jl(J) and 611
C Madhya Pradesh Industrial Employment Standing Orders Rules, 1963; Rule
    2(i):

         Filing of petition by a workman for regularization of services and
    payment of arrears on ground of rendering services continuously for six
D   months-Allowed by labour Court holding that he Was' entitled to be classified
    as permanent employee-Affirmed by Industrial Court and .also by High
    Court-On appeal, Held: The Workman cannot be categorized as perma,nint
    employee in terms of the Standing Order since he did not render service
    against a clear vacant permanent post.

E          Respondent-workman after rendering services as helper for six months
    in the Public Health Engineering Department of State of Madhya Pradesh filed
    a petition for regularization of his services and also for consequential benefits.

          Allowing the claim of the workman for regularization of his services,
    Labour Court rejected his claim for consequential benefits as he was not
F   appointed against a vacant permanent post Appeal against the order of Labour
    Court was dismissed by the Industrial court and later writ petition filed by
    the appellant-State was dismissed by the High Court. Hence the present appeal

        It was contended by the appellant-State that in order to be entitled to a
  declaration for permanency, certain criteria are fixed in terms of the Standard
G Standing Order framed under the Act; that no evidence was adduced by the
  claimant/workman to show that there was any clear vacancy and the auertions
  made in that regard in the petition was denied specifecally by the appellant;
  that the Labour court recorded a positive finding that there was no clear
  vacancy and, therefore, there was no question of the workman being classified
H                                          568
           STATE OF M.P. v. ONKARPRASADPATEL fPASAYAT.J.)                    569
in the permanent category; and that after having held that the applicant/ A
workman had not been appointed to any permanent and vacant post, the
directions given by the Labour Court, the Industrial Court and the High Court ·
do not stand to reason.

      The respondent/workman submitted that Ex.D-1 clearly indicated that
he was working continuously and also about the nature of work. Thus, the            B
views expressed by the Labour Court, the Industrial Court and the High court
do not suffer from any infirmity.

      Disposing of the appeal, the Court

      HELD: In view of the clear definition ofa "permanent employee", as C
given in the Standard Standing Order, the applicant/workman cannot be
categorized as a permanent employee even though he may have completed six
months satisfactory service. The other requirement that the service was :t'"
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 D
the position, the Labour Court, the Industrial Court and the High Court were
not justified in directing that the respondent/workman was to be categorized
as a permanent employee. (571-F, GI

      CIVIL APPEL LA TE JURISDICTION : Civil Appeal No. 6678 of2004.
                                                                                    E
     From the Judgment and Order dated 4.2.2002 of the Madhya Pradesh
High Court in W.P. No. 569 of2002.

      Ms. Vibha Datta Makhija and C.D. Singh for the Appellants.

      M.L. Lahoty, Paban K. Sharma, Sushi! Kumar Jain a~d Ms. Pratibha Jain         F
for the Respondent.

      The Judgment of the Court was delivered by

       ARIJIT PASAYAT, J. Challenge in this appeal is to a judgment of the
learned Single Judge of the High Court of Madhya Pradesh at Jabalpur                G
dismissing the writ petition filed by the State of Madhya Pradesh and its
functionaries; thereby putting its seal of approval on the orders of the Labour
Court, Jabalpur (in short, 'the Labour Court') and the Industrial Court, Jabalpur
Bench (in short, 'the Industrial Court'). The respondent (hereinafter referred
to as the workman) filed a petition under Section 31(3) read with Section 61
of the Madhya Pradesh Industrial Relations Act, 1960 (in short, 'the M.P.           fi
    570                     SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A Act'). His stand in the essence was that he was in the services of the Public
    Health Engineering Department and was working at Jabalpur Sub-Division
    since 17.11.1991 as a Helper. He prayed for regularization of his services on
    the ground that he had rendered services for more than six months in a
    permanent vacant post and, therefore, entitled to be classified as a permanent
B   employee and was also entitled to the difference of salary and consequential
    benefits. The claim ~as resisted by the State and its functionaries on the
    ground that the respondent was not working in respect of a permanent post
    and his services cannot, therefore, be regularized. Evidence was led by the
    parties. The Labour Court came to a positive finding that the applicant/
    workman had not been appointed to any permanent and vacant post by an
C   appointment order and he was not as such entitled to get benefits of difference
    in wages, as he was a daily wager. But it directed that from the date of order,
    he was entitled to get the regular wage rate. This, apparently, was done
    because the Labour Court felt that he had worked continuously ~nd, therefore,
    was entitled to be classified in the permanent category. It held that the
    applicant was entitled to be classified in permanent category on the post of
D   worker from 24.05.1994 i.e. two years prior to 24.05.1996 (the date of application)
    and was to be granted wage rate ofregular category from the date of the order
    of the Labour Court i.e. 26.08.2000. An appeal was filed before the Industrial
    Court, which was dismissed. The Industrial Court was of the view that since
    the applicant/workman had worked for more than six months from the date of
E   appointment, he was entitled to the benefit extended by the Labour Court. A
    writ application was filed before the High Court, which, as noted above, was
    dismissed. The High Court came to hold that enough opportunity was granted
    to the employer to place its case and the employer only exhibited Ex. D-1 and
    did not want to lead any further evidence. Therefore, the view expressed by
    the Labour Court and the Industrial Court did not warrant interference.
F
           Learned counsel for the appellant-State and its functionaries submitted
    that in order to be entitled to a declaration for permanency, certain criteria are
    fixed in terms of the Standard Standing Order framed under the Act. The
    requirements are (a) the employee must have completed six months satisfactory
G   service (b) the service must have been rendered in a clear vacancy in one or
    more posts. In the instant case, no evidence was adduced by the claimant/
    workman to show that there was any clear vacancy. The assertions made in
    that ,regard in the petition was denied specifically by the present appellant.
    In fact, the Labour Court recorded a positive finding that there was no clear
    vacancy and, therefore, there was no question of his being classified in the
H   permanent category. A specific issue was framed in this regard which reads
              STA TEOF M.P. v. ONKAR PRASAD PATEL [PASA YAT, J.]             571

as follows:                                                                         A
               "Whether the applicant is entitled to be on the post classified in
           the permanent category on the post of helper from 17. l I .1991 ?"

      After having held that the applicant/workman had not been appointed
to any permanent and vacant post, the directions given do not stand to              B
reason. Unfortunately, the Labour court, Industrial Court and the High Court
did not focus attention on this vital issue.

       In response, learned counsel for the respondent/workman submitted
that Ex. D-1 clearly indicated that the respondent was working continuously
and what was the nature of work. Therefore, the views expressed by the              C
Labour Court, the Industrial Court and the High Court do not suffer from any
infirmity.

     The Standing Order in terms of Rule 2(i) of the Madhya Pradesh Industrial
Employment Sanding Orders Rules, 1963 (in short 'Rules') which admittedly
was applicable provided, inter-alia, as follows:                                    D
           "Rule 2 Classification of Employees -

                  x x x

           (i) A "Permanent" employee is one who has completed six months           E
           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 employees."

       In view of the clear definition of a "permanent employee", as given in
the Standard Standing Order, the applicant/workman cannot be categorized as         f
a permanent employee even though he may have completed six months
satisfactory service. The other requirements 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 categorized as permanent         G
employee. That part of the direction is set aside.

         The appeal is allowed to the aforesaid extent. No costs.

S.K.S.                                                     Appeal disposed of
                                                                                    H