ORDER
A.K. Srivastava, J.
1. By this writ Petition filed under Article 227 of the Constitution of India, the petitioners are challenging the pregnability of the impugned order dated November 5, 2004 passed by learned Industrial Court of Madhya Pradesh, Bench at Gwalior in Appeal No. 22/MPIR/2002, whereby the order dated December 18, 2001 passed by learned Labour Court No. 1, Gwalior in Case No. 494/89/MPIR has been reversed and set aside and the application filed under Section 31(3), 61 and 62 of Madhya Pradesh Industrial Relations Act, 1960 (in brevity as an 'Act') by the respondent No. 1 has been allowed.
2. The respondent No. 1 (hereinafter referred to as an 'Employee') filed an application under Sections 31(3), 61 and 62 of the Act before the learned Labour Court that he is serving since 1983 in the establishment of the petitioners (hereinafter referred to as an 'Employee') on a clear vacant post of helper and his work has been found to be satisfactory and hence, he has acquired right to get him classification on the permanent post of helper in terms of Clause 2(1) of the M.P. Industrial Employment (Standing Orders) Act, 1961 (in brevity as 'SSO').
3. The averments made in the application were refuted by the employer by filing written statement. In para 3, it has been pleaded by the employer that there is no post of 'helper' lying vacant and therefore, classifying the employee on such post does not arise. It has been prayed in the written statement that the application filed under the Act by the employee be dismissed.
4. The learned Labour Court after framing necessary issues, recorded the statement of the employee, however, despite providing ample opportunity to the employer, no evidence was adduced on its behalf. The learned Labour Court on the basis of pleadings and the evidence placed on record came to hold that the employee has failed to prove that he is, serving on a clear vacant post for more than six months, therefore, he is not entitled for classification on the post of 'helper'. Eventually, the application filed by the employee was dismissed.
5. Thereafter, an appeal under Section 65 of the Act was filed by the employee which has been allowed by the impugned order by the learned Industrial Court holding that the employee is entitled for classification.
6. In this manner, this writ petition has been filed by the employer assailing the impugned order passed by the learned Industrial Court.
7. The contentions of Shri Ravi Jain, learned Counsel for the employer is that the burden of proof lies on the employee to prove that he is working continuously for a period of more than six months with satisfactory service on a clear vacant post and if he has failed to prove that he is serving on a clear vacant post, the employee is not entitled for the grant of relief in question. Further, it has been contended by the learned Counsel that the learned Labour Court has assigned cogent reasons while rejecting the application of the employee under Section 31(3), 61 and 62 of the Act and specific finding has been rendered that the employee has failed to prove that he is serving on a 'vacant post' and therefore, he is not entitled for classification on the post in question and the learned Industrial Court erred in allowing the application of the employee without holding that he is serving on a clear vacant post of 'helper' and therefore the impugned order be set aside. In support of his contentions, learned Counsel has relied on the Judgment of Apex Court in State of M.P. and Ors. v. Lalit Kumar Verma 2007 I LLJ 789 (SC).
8. On the other hand, Shri M.L. Hirway, learned Counsel for the employee/respondent No. 1 argued in support of the impugned order and submitted that earlier the employee filed an application for reinstatement which was allowed by the Labour Court and the order was maintained upto this Court and therefore, since the employee is serving w.e.f. September, 1983 on the post of helper, therefore, the employee has acquired the status of 'permanent employee' in terms of Clause 2(1) of SSO. In support of his contentions, learned Counsel relied on the Judgment of Supreme Court in Management of Madurantakam Co-op. Sugar Mills Ltd. v. S. Viswanathan : AIR 2005 SC 1954 : (2005) 3 SCC 193 : 2005 II LLJ 1.
9. Having heard the learned Counsel for the parties, we are of considered view that this petition deserves to be allowed and the order of learned Industrial Court deserves to be set aside and the matter is required to be sent back to the Industrial Court to decide the appeal fresh.
10. The arguments advanced by the learned Counsel for the employee is that vide order dated May 6, 1987, the learned Labour Court No. 1, Gwalior in case No. 293/84/MPIR allqwed the application of the employee and reinstated him - and therefore, it should be held that the employee is serving w.e.f. September, 1983 on clear vacant post of 'helper'. The argument at first blush appears to be quite attractive but on deeper scrutiny found to be devoid of substance.
11. On X-raying the order of learned, Labour Court dated May 6, 1987 (Annexure P/4), it is gathered that a specific finding has been given by learned Labour Court to reinstate the employee on the post on which he was already working. Since, the employee was working on daily wages basis on muster role and since there is no indication in the order dated May 6, 1987 (Annexure P/4) of the. Labour Court that the employee was serving on clear vacant post of 'helper', therefore, the order of reinstatement (Annexure P/4) would not help the employee in order to establish that he is serving on the clear vacant post of 'helper', since 1983.
12. Indeed, this was the issue before the Labour Court in the instant Case No. 494/89MPIR. The Labour Court framed specific issue No. 2 in that regard and while deciding the said issue, in para 6, after scanning' the pleadings and oral testimony of the employee specific finding has been recorded by learned Labour Court that the employee has not served on clear vacant post of 'helper'. Eventually, the Labour Court dismissed the' application.
13. The order of the Labour Court was assailed by the employee by filing an appeal under Section 65 of the Act before the Industrial Court. Therefore, it is incumbent upon the learned Industrial Court to decide the controversy as to whether the employee has served on clear vacant post of 'helper' with satisfactory work for a continuous period of more than six months?
14. On going through the impugned order, we do not find any finding of the Industrial Court in this regard. After going through Clause 2(1) of SSO, according to us, in order to get the employee classified on particular permanent post, the employee is required to prove three essential ingredients:
(i) that, he has completed six months service;
(ii) he is serving satisfactorily; and
(iii) on clear vacant post, whether probationary or otherwise.
15. According to us, these three ingredients are three strong pillars on which the roof of classification of permanent employee rests and if any one of the pillar is missing the roof will be collapsed and the employee will not be entitled for the said relief of classification. Therefore, before passing any order with regard to classification of an employee, it is the bounden and statutory duty or the Court to pass an order giving specific finding that the employee is serving for more than six months with satisfactory service on a particular clear vacant post.
16. We have held hereinabove that the learned Industrial Court has failed to give any finding that the employee was serving on a clear vacant post of 'helper' and therefore, according to us, the impugned order cannot be allowed to remain stand and the same is hereby set aside and the matter is sent back to the learned Industrial Court to re-decide the appeal of the employee on the principles which are enumerated hereinabove.
17. Since the matter is quite old, therefore, we expect that the Industrial Court shall decide the matter as early as possible preferably within a period of three months from the date of receipt of certified copy of this order.
18. Parties are directed to appear before the Industrial Court on April 20, 2009.
19. Looking to the facts and circumstances of the case, parties are directed to bear their own cost.