1 HIGH COURT OF MADHYA PRADESH : JABALPUR WRIT PETITION No.3239/2001 Municipal Corporation, Jabalpur & others Vs. Member Judge, Industrial Court & others ____________________________________________________________ Present : Hon’ble Shri Justice K.K. Trivedi ____________________________________________________________ Shri Ishan Mehta, learned Counsel for the petitioners. Shri K.N. Pethia, learned Counsel for respondent No.3. ____________________________________________________________ ORDER
(01/07/2013) By this petition under Article 227 of the Constitution of India, the petitioners have called in question the award passed by the respondent No.2 in favour of respondent No.3 and have also assailed the order passed by the appellate authority of Industrial Court rejecting the appeal of the petitioners against the award of the Labour Court.
2. Brief facts giving rise to filing of this writ petition are that the respondent No.3 claiming himself to be an employee of the petitioners, approached the Labour Court by making an application under Section 31(3) read with Section 61 and 64-A of the Madhya Pradesh Industrial Relations Act (herein after referred to as 'Act') seeking direction for his classification as Supervisor. It was contended by the respondent No.3 that he was initially appointed in the year 1981 by the Municipal Corporation, Jabalpur in the Public Works Department and has worked under the petitioner No.2 for more than 180 days. The respondent No.3 was being treated as a daily rated 2 employee whereas in terms of the provisions of the Act aforesaid, he should have been classified on the post. Since this was not being done despite demand, the respondent No.3 was required to file application before the Labour Court. Certain documents and affidavits were filed by the respondent No.3.
3. Upon notice, the petitioners have filed a written statement before the Labour Court categorically contending that the respondent No.3 was ever since engaged as a daily wager labour as and when so required by the petitioners. At no point of time he was appointed on the post of Supervisor. It was contended that the provisions of the Act would not be applicable on whole of the Municipal Corporation in all departments and, therefore, application was not maintainable. It was further contended that the respondent No.3 was only a daily wager, was not working as a Supervisor and, therefore, was not entitled to claim regularization or classification. It was contended that no post of Supervisor was vacant in the establishment of the petitioner No.1 and, therefore, no such relief could be granted to the respondent No.3.
4. The Labour Court recorded the evidence of the parties, examined the correctness of certain documents produced by the respondent No.3 and reached to the conclusion that the respondent No.3 has proved his claim. The application filed by the respondent No.3 was maintainable. In terms of these findings, the Labour Court passed the award on 16.02.2001 directing that the respondent No.3 be classified as permanent with effect from two years from the date of filing of the application before the Labour Court, i.e. 31.01.1996 and he be paid the wages of permanent category employee. The award passed by the Labour Court was challeged under Section 65 of the Act aforesaid before the Industrial Court, Jabalpur, in an appeal by the 3 petitioners. The respondent No.3 also challenged the said award on the ground that he should have been classified with effect from the date he has completed 180 days working on regular post of Supervisor in the establishment of the petitioners. Both the appeals were clubbed together by the Industrial Court and decided vide order dated 10.05.2001. The claim made by the respondent No.3 was rejected on the ground that he has not approached the Labour Court expeditiously and even if he is entitled to be classified in the year 1982, he waited up to the year 1998 and then filed the application before the Labour Court. Therefore, the Industrial Court held that the respondent No.3 was not entitled to be classified with effect from the year 1982 as claimed in the appeal filed by him. The claim made by the petitioners herein in their appeal was rejected after taking note of the law laid-down by this Court as also in view of the provisions of permanent standing orders and it was held that since the respondent No.3 has worked continuously on the post which fact has been proved by producing the certificate issued by the petitioners, duly proved by the witness examined by the petitioners, therefore, no interference in the award was called for. Against these orders and award, the present writ petition is required to be filed.
5. Learned Counsel for the petitioners has vehemently contended that the Labour Court as also the Appellate Court gravely erred in holding that the respondent No.3 was appointed on any permanent post or against any permanent post and as such it was wrongly held that the respondent No.3 was entitled to be regularized. It is contended that the post of Supervisor was not sanctioned at all in the establishment of the petitioners and, therefore, there was no question of working of the respondent No.3 on the said post. It is further contended by learned Counsel for the petitioners that merely because a certificate was issued by 4 the authorities of the petitioners, which was got proved through the statement of witnesses of the petitioners recorded by the Labour Court, it was not to be held that the claim made by the respondent No.3 was fully proved. It is contended that in fact there was no vacancy available on the post of Supervisor not the said post could have been filled in by appointment of the persons like respondent No.3. On the other hand, after making of the rules it is clear that such posts are to be filled in only and only by promotion and since the respondent No.3 was not in the feeder post, the order of classification of respondent No.3 on the said post could not have been issued. It is contended that in view of the law laid-down by the Apex Court, such an award was per se illegal and as such the Labour Court as also the Industrial Appellate Court, both have committed serious error in granting the award in favour of the respondent No.3 and rejecting the appeal against the said award filed by the petitioners. It is contended that law is well settled that unless there are vacancies available, classification on any post cannot be ordered by the Labour Court.
6. Per contra, it is submitted by learned Counsel for respondent No.3 that the respondent No.3 cannot be said to be a person not entitled to be classified on the post. It is contended that the burden was on the petitioners to prove that there was no vacancy on the post of Supervisor available. In fact the Timekeepers were being treated as Supervisor and this job was entrusted to the respondent No.3 by the officials of the petitioner-Corporation. In view of this, it is contended that the Labour Court has rightly passed the award in favour of respondent No.3 and appeal of the petitioners has been rightly dismissed by the Industrial Appellate Court”
7. Heard learned Counsel for the parties at length and perused the record.
8. First of all it has to be seen that the award passed by the Labour Court is based on the evidence adduced before it. It is the settled law that in exercise of powers under Article 227 of the Constitution of India, this Court is not required to re-appreciate the evidence already appreciated by the two Courts below. However, the only aspect which is required to be examined is whether any perverse finding against the available evidence was given by the Labour Court or not. Since no record is produced in respect of the evidence recorded by the Labour Court not it is contended that any finding recorded by the Labour Court is contrary to the evidence available on record of the Labour Court, this aspect is not required to be examined. The only question would be whether the respondent No.3 could have been granted a relief of classification or not under the provisions of Section 31(3) of the Act. Learned Counsel for the petitioners has heavily placed his reliance in the case of State of M.P. and others vs. Onkar Prasad Patel, (2005) 13 SCC 48.and has contended that in terms of the definition contained in Madhya Pradesh Industrial Employment (Standing Orders) Rules, 1963 (herein after referred to as 'Rules'), respondent No.3 cannot be said to be a person appointed on a permanent post or working on a permanent post for a period of six months without any interruption on a clear vacancy and, therefore, no order of classification could have been issued in his respect. True it is that classification of employees under the aforesaid rules has been defined in Rule 2 and a permanent employee is defined in sub-clause (i) of sub-rule (1) of Rule 2 of the aforesaid Rules. It is not the claim of respondent No.3 that he was working as a permanent employee, therefore, such a definition is not to be read. What is to be seen is whether the respondent No.3 had completed requisite days of 6 working without interruption in the establishment of the petitioners or not. Undisputedly, this fact was certified by the petitioners themselves as a certificate was issued in this respect in favour of the respondent No.3, which was produced before the Labour Court and which has been duly proved by the evidence recorded before the Labour Court. The certificate itself says that the respondent No.3 was working and discharging the duties of supervision with effect from 20.01.1982. The certificate itself was dated 2nd December, 1989. This particular fact was admitted by the witness examined by the petitioners before the Labour Court and the said witness has categorically said that the respondent No.3 was working in the establishment of the petitioners. If it was the stand taken by the petitioners that there was no vacancy available on the post of Supervisor, the burden was on the petitioners to prove that the stand taken by the respondent No.3 was incorrect and he has not proved that there was a vacancy on the post against which the respondent No.3 was working. No evidence to this effect was produced by the petitioners and in fact they invited a finding against them by the Labour Court. Even before the Industrial Appellate Court, nothing was placed on record to show that such a finding recorded by the Labour Court was incorrect. The Industrial Court in fact re- appreciated the evidence recorded by the Labour Court and in paragraph 7 of the order has given a finding against the petitioners while rejecting their appeal. In view of this, the submissions made by learned Counsel for the petitioners cannot be accepted not the law laid-down by the Apex Court in the case of Onkar Prasad Patel (supra) would be attracted at all.
9. Learned Counsel for the petitioners has further placed reliance in the case of State of M.P. and others vs. Lalit Kumar Verma, (2007) 1 SCC 575.and has contended that such a regularization was not permissible and the 7 respondent No.3 was not to be given the benefit of classification merely because he has worked continuously for more than six months on daily wages. In absence of any evidence produced to show that the requisite conditions prescribed in Rule 2 of the Rules referred to herein above were not satisfied, it was not open to the petitioners to allege that the respondent No.3 was not working against any vacancy. Even statement of their witness as has been reflected in the award and in the order of the Industrial Appellate Court indicates that the respondent No.3 was working in his capacity as Supervisor discharging the duties of supervision. Had it been a case that the respondent No.3 was never appointed in such a capacity, it was necessary for the petitioners to prove that such a stand taken by the respondent No.3 was totally misconceived and that the requisite condition prescribed in Rule 2 of the aforesaid Rules was not fulfilled and, therefore, respondent No.3 was not entitled to a relief of classification. This is being held because the respondent No.3 has not only produced documentary evidence but the said evidence was admitted by the witness examined by the petitioners in the Labour Court. In view of the aforesaid, it cannot be said that any illegality was committed by the Labour Court in granting the award to classify respondent No.3. The Industrial Appellate Court has also examined these aspects and has recorded a finding affirming the award passed by the Labour Court.
10. In view of the discussions herein above, there is no force in the writ petition, which fails and is hereby dismissed. However, there shall be no order as to costs. (K.K. Trivedi) Judge Skc