State Of Mp vs Arati Saxena

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No(s). 5814/2011

STATE OF MADHYA PRADESH & ORS. Appellant(s)

VERSUS

KUMARI ARATI SAXENA Respondent(s)

J U D G M E N T

A.S. BOPANNA,J.:

(1) The appellants-State of Madhya Pradesh is before this

Court assailing Order dated 16.02.2010 passed by the Division

Bench of the High Court of Madhya Pradesh at Gwalior in Writ

Petition NO.4225/2005. Through the said order the Division

Bench of the High Court has approved the Award dated 10.03.2000

passed by the Additional Presiding Officer, Labour Court No.1,

Gwalior, in Case NO.107/M.P.I.R/98 by dismissing the appeal

filed by the appellants-State and upholding the order passed by

the learned Appellate Judge as well.

Signature Not Verified Digitally signed by MAHABIR SINGH (2) Date: 2019.10.01

18:27:54 IST We have heard Mrs. Pragati Neekhra, learned Additional Reason:

Advocate General appearing for the appellants-State and Mr.

Tapesh Kumar Singh, learned counsel appearing for the 2

respondent and also perused the impugned order and the

materials on record.

(3) The brief facts leading to the present situation is that

the respondent herein had filed an application under Sections

31, 61 and 62 of the Madhya Pradesh Industrial Relations Act,

1960 seeking for categorizing her permanently on the post of

Junior Division Clerk and providing permanent salary structure

of the said post. In the proceedings before the Additional

Presiding Officer, Labour Court No.1, Gwalior, in Case

NO.107/M.P.I.R/98, the appellants-State, who were shown as

respondents, had appeared and filed their objection statement.

It was contended therein that the respondent herein was

appointed on 05.06.1992 for the work of Hindi Typist on daily

wages. It was contended that the said appointment was not

against a clear vacancy and, therefore, the claim as put forth

by the respondent before the Labour Court is not justified.

The Labour Court on taking note of the rival contentions framed

four points for its consideration. While adverting to the

legal contentions, the factual aspects relating to the case

were taken note. Insofar as the claim as put forth by the

respondent seeking that she be categorized as a permanent

employee, the Labour Court on taking note of the legal position

as also the factual position emerging in the case had recorded

a factual finding that the respondent herein had worked for

more than six months continuously on the vacant post of Typist-

Lower Division Clerk from the date of the appointment. In that 3

background the Labour Court keeping in view the Madhya Pradesh

Industrial Employment (Standing Orders) Rules, 1963 with a

specific reference to the Standing Order 2(vi) had arrived at

the conclusion that the respondent is entitled to be considered

as a permanent employee as the eligibility condition indicated

therein as an exception is satisfied.

(4) At this stage it is necessary to take note of the

contentions put forth by Ms. Pragati Neekhra, learned

Additional Advocate General appearing for the appellants-State,

with reference to the very same provision at Standing Order

2(i). We have referred to the same and we find that in the

said Standing Order the provision made is in respect of the

permanent employee if appointed against a vacant post.

However, the Exception, as referred to by the Labour Court, is

in respect of a temporary employee and the circumstance under

which such temporary employee will be deemed to be a permanent

employee. In that light we are of the opinion that the

consideration as made by the Labour Court is to take note of

the claim which was put forth that though the respondent was

appointed as a temporary employee she has satisfied the

condition to be deemed as a permanent employee as per the said

Exception contained in the Standing Order and had accordingly

considered and ordered that the respondent be treated as a

permanent employee which is justified in the factual background

arising in the instant case.

(5) In this regard what is necessary to be taken note, in a

proceeding of the present nature is that when such conclusion 4

as reached by the Labour Court is assailed in a proceeding in

the higher forum what is necessary to be taken note is as to

whether there is any perversity in the conclusion reached by

the Labour Court and it would not be open to reappreciate the

evidence. In that regard the finding of fact recorded by the

Labour Court is that the respondent herein had served for more

than six months as a temporary employee attracting the

requirement in Standing Order 2(vi). When the said finding of

fact is undisputed the subsequent conclusion as reached by the

Labour Court cannot be considered as perverse.

(6) Be that as it may, when the Award passed by the Labour

Court was carried in the appeal bearing Appeal

No.269/MPIR/2000, the learned Judge of the Appellate Authority

has also adverted to the very same aspect and has upheld the

order passed by the Labour Court. In the said circumstance,

the appellants(State) herein was before the Division Bench of

the High Court in W.P.NO.4225/2005. The Division Bench keeping

in view the principle that is required to be followed while

examining such matter has noted that the Labour Court has

recorded a finding of fact while ordering classification of the

respondent herein to the post of Typist as a permanent

employee. In that view when such conclusion is reached

concurrently by the three courts below such finding of fact

would not call for interference in the proceedings of the

present nature where the scope for examination is limited.

(7) Having arrived at the above conclusion one other aspect

which requires to be taken note is that the Division Bench of 5

the High Court while ultimately disposing of the appeal has

also made a reference to the Order dated 17.11.2004 passed by

the Executive Engineer, Public Health Engineering Department.

The said reference is for the reason that under the said order

the Department itself had classified the respondent herein to

the post of Hindi Stenographer w.e.f. 27.11.1999. In that

regard, learned counsel for the appellant would contend that a

serious error has been committed by the Division Bench of the

High Court inasmuch as the Order dated 17.11.2004 itself is

being enquired into relating to the reason for which such order

was passed as the same has been erroneously passed by the

concerned Authority. In that regard learned counsel for the

appellant has also referred to the Order dated 18.04.2017

passed by this Court in SLP(C)No.6697 of 2016 and it is

contended by learned counsel for the appellants-State that this

Court while examining the order passed by the Chief Secretary

of the State of Madhya Pradesh directing the enquiry, has

upheld the same and, therefore, in the present circumstances

the correctness or otherwise of the Order dated 17.11.2004 is

required to be enqired into and in that circumstances granting

the benefit to the respondent based on such order would not be

justified. In that regard having referred to the Order dated

18.04.2017 passed in SLP(C)No.6697 of 2016, we also notice that

this Court in that regard while approving the manner in which

the enquiry could be proceeded by issuing individual notice had

also indicated that there would be protection to all such

employees whose appointments have been made in consonance with 6

the statutory provisions, or under a valid policy decision of

the State Government, and/or in consonance with the judgment

rendered on the subject of regular appointment, or

regularization of appointment.

(8) If the said observation is kept in view, in any event at

the first instance since in the instant facts consideration of

the permanent status relating to the respondent was made in a

proceeding contemplated in law by filing an application before

the Labour Court and based on the finding of fact a benefit has

been granted, such permanent status as accorded to the

respondent in view of the proceedings before the Court in any

event cannot be disturbed.

(9) Further, the only other aspect which arises for

consideration herein is as to whether the Division Bench of the

High Court was justified in directing that the respondent be

classified on the post of Hindi Stenographer w.e.f. 27.11.1999

and issuing such direction based on the Order dated 17.11.2004.

(10) In that regard to arrive at a conclusion we once again

refer to the Award dated 10.03.2000 passed by the Labour Court.

The Labour Court while taking into consideration the length of

service rendered by the respondent herein had ordered that she

be regularized as a Lower Division Clerk w.e.f. 20.07.1996. The

fact that the respondent has discharged her duty as a Typist

earlier to the said date and regularization has been granted

from the said date cannot be disputed. If that be the position

when such service has been rendered satisfactorily and post of

the Hindi Stenographer is not a promotional post but the 7

respondent having gone through the process of assessment and is

presently working as a stenographer the said benefit granted by

the High court need not be disturbed though it is clarified

that such benefit cannot be construed as a benefit arising out

of the Order dated 17.11.2004 but independent of the same

keeping in view the long service rendered by the respondent in

that post and that too after she is considered as a permanent

typist. It is further made clear that if in respect of any

other person there is individual enquiry pending based on the

benefit claimed under the Order dated 17.11.2004 or similar

orders, the same shall not stand affected by the benefit that

is granted to the respondent herein which is in the peculiar

fact of the present case keeping in view the order of the

Labour Court and the benefit granted thereunder and also the

subsequent status which the respondent on her own merit has

acquired due to long satisfactory service.

(11) Therefore, with the above clarification to the

observations as made by the Division Bench of the High Court,

we see no reason to interfere with the Award dated 10.03.2000

passed by the Labour Court or the Order dated 16.02.2010 passed

by the Division Bench of the High Court. Needless to mention

that in view of the finality to the litigation, all service

benefits payable to the respondent herein shall be computed and

paid in an expeditious manner.

8

(12) In terms of the above, the appeal stands disposed of

with no order as to costs.

..........................J. (A.S. BOPANNA)

..........................J. (HRISHIKESH ROY)

NEW DELHI, SEPTEMBER 26, 2019.