ORDER
S.K. Gangele, J.
1. The petitioners filed this petition against the order dated 19-12-2003 passed in Appeal No. 74/MPIR/2003 dismissing his appeal and upholding the order of the Labour Court. There are near about 213 petitions have been filed by the same petitioners against the orders of Industrial Court and Labour Court. In all the petitions common question of law and facts are involved, hence they are being decided by this common order.
2. Question for determination before this Court is 'Whether a daily wages employee working in Government Department, i.e., P.W.D. which comes within the definition of industry can be classified as permanent employee as per the provision of Rule 2 of M.P. Industrial Employment (Standing Orders) Rules, 1963 hereinafter called as Rules of 1963. The rules have been framed by the State Government under Section 21 of the M.P. Industrial Employment (Standing Orders) Act, 1961 herein after called the Act of 1961.
3. The respondent a daily wages employee filed an application under Section 31 (3), 61, 62 of M.P. Industrial Relations Act, 1960 submitting that he had been working as gang collie since 1978 in the petitioner establishment and entitled to be declared as permanent after completing six months of service and wages thereof. He further submitted that he had been performing the work of road maintenance.
4. The petitioner No. 2 which is department of State of M.P. and is engaged in construction and maintenance of roads and bridges in the State, denied the pleadings of the respondent but admitted that the petitioner had been working regularly for the last ten years. It has further been submitted by the witness of the petitioner, i. e., S.D.O. that after completing 25 years of service employee would be entitled to regular pay scale and grade. At present as per the circular of the Government there are only 318 posts of gang man workers have been sanctioned. Creation and sanction of posts are within the competence of Engineer-in-Chief and Government. The respondent/workman deposed that he had been working regularly and was performing the work of permanent labour. He gets only Rs. 2,000 per month as wages although a permanent worker gets 4,500 per month as wages. The Labour Court allowed the application of the respondent by holding that because he had been working continuously more than six months (in present case near about 10 years), hence he is acquired the status of a permanent worker as per Rules of 1963 and entitled to get wages of a permanent employee and also awarded back wages w.e.f. the date of filing application by the respondent before the Labour Court.
5. The petitioners filed an appeal against the order of the Labour Court before the Industrial Court M.P. The learned President dismissed the appeal by holding :-
'From perusal of Clause (i), it is clear that for classification of an employee as permanent employee, it requires six months' satisfactory service on a clear vacancy. In this case, the applicant stated that he has been working on the post of Gangaman (Gang Collie) for more than 25 years. There is no reason to disbelieve this evidence. It is true that there is no oral or documentary evidence on record to prove that this post was vacant.
6. The learned Counsel for the petitioners has submitted that the respondent can not be classified as permanent worker as per Rules of 1963 untill and unless it is proved that there was a vacancy, it is sine qua non for permanent classification, there was no vacancy at the petitioner establishment, hence the impugned order is against the law and liable to be set-aside. In support of his contention he relied on following judgments of this Court 1999 Vol. 1 MPLJ Page 466, (2001) 3 MPLJ Page 585.
7. The learned Counsel for the respondent has submitted that order of the Appellate Court and Labour Court is as per law the respondent had been working for a long time of 10 years hence it must be presumed that there was a clear vacancy and act of the petitioner amount to unfair labour practice. In support of his contention he relied on the decisions reported in 1990 MPLJ Page 328, 1993 JLJ Page 55.
8. From the facts it is an admitted position that respondent was engaged as daily wages employee and his attendance was marked on a muster roll register, no appointment order was issued to him, he had been working continuously and was getting Rs. 2000/- per month more than the rates fixed by the Collector under Minimum Wages Act. The Industrial Court itself observed that 'it is true that there is no oral or documentary evidence on record to prove that the post was vacant'. It is further clear from the evidence of Sub-Divisional Officer that there was no regulars post available in the department, he further stated that if in future post will be sanctioned department will take action.
9. In such circumstances question for decision before this Court is, whether merely on the basis of continuous working from number of years (i.e., 10 years) a daily wages employee can be classified as permanent as per Rules of 1963. The aforesaid Rule which is quoted hereunder deals with classification of employees-
(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 spots 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 2/3 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.
10. In Vandana Singh v. Steel Authority of India Ltd. and Anr., reported in 1993 JLJ. This Hon'ble Court considered the question of granting permanent status to a daily wages employee under Standing Orders, 1963 and Hon'ble Justice Dubey in his opinion accepted the preposition of law that if a person worked more then six months there would be a presumption that there was a post or vacancy. However, the learned Justice R.C. Lahoti (as then His Lordship was) expressed his disagreement, which is as under :-
28. One of the pleas taken by respondents opposing the petitioner's claim for regularization is that there is surplus staff with the respondent and the respondent can not, therefore, afford to accommodate the petitioner, there being no vacancy available against which the petitioner might be 'regularised'.
In Suresh Chandra's case (supra), the Division Bench has said :-
'When there is no job left to be performed and the regular staff is enough to satisfy the regular requirements of the Department, forced entry of workers in the department in the name of regularisation, by compelling retention of such workers as were brought in casually to fulfil casual needs of the department is sure to bring inefficiency and demoralization in the public services for there would be number of persons being paid without any work being taken from them. Surplus staff is sure to be counter productive in the department spoiling the work- culture, also entailing heavily on the public exchequer. No doubt, employees in the public sector must have security of tenure and the feeling of safety by permanence in employment but at the other side can not just be blinked at.' (Para 47)
'There can be no regularisation if there are no vacancies.' (Para 49)
11. Subsequently a Full Bench of this Court in Superintending Engineer, Public Works Department, Circle Gwalior and Anr. v. Dev Prakas Shrivas, Gwalior and Ors., reported in 1999 Vol. I MPLJ Page 466 affirmed the view expressed by Hon'ble Mr. Justice R.C. Lahoti and held as under :-
Our attention was also invited to the decision of this Court in the case of Vandana Singh v. Steel Authority of India, 1993 JLJ 55, where the question was with regard to Articles 14, 16 and 39(d) of the Constitution of India. There was a difference of opinion between members of the Division Bench. One learned Judge held that the incumbent was entitled for regularisation and equal pay for equal work. The difference was whether he is entitled for equal pay for equal work when there was no permanent vacancy available. Another Hon'ble Judge held that in absence of permanent vacancy, no relief with regard to equal pay for equal work could be given. The view expressed by another learned Judge in that case appears to be well founded. This view appears to be in accordance with Clause 2 of Standard Standing Orders which says that existence vacancy is must.
12. Division Bench of this Court again held the same in Chhaya Bhapatkar v. State of M.P. and Ors., reported in 2001 Vol. 3 MPLJ Page 485, as under:-
As pointed out by the Full Bench in its decision in the case of Superintending Engineer, P.W.D. and another (supra), the expression clear vacancy as used in Clause 2 (i) of the Standard Standing Orders necessarily employed that for getting the benefit secured under that provisions, the pre-conditions of the existence of a clear vacancy had to be satisfied. The second pre-condition which was pointed out was that the concerned workman should have work against such a vacancy for a minimum period of six months and that his service should have been satisfactory.
13. On the basis of above principles of law facts and circumstances of the case the impugned orders passed by the Industrial Court and Labour Court are contrary to law. Consequently, petition filed by the petitioners is hereby allowed, orders, dated 26-10-2002 passed by the Labour Court Annexure P-1, dated 31-12-2003 passed by the Industrial Court Annexure P-2 are hereby quashed. In the facts and circumstances of the case no order as to cost.