Madhya Pradesh State Road Transport Corporation, Bhopal, And Others v. Bhagiram Yadav And Others

Dubey, J.:— The petitioner-corporation has preferred this petition under Arts. 226 and 227 of the Constitution of India for quashing the orders passed by the Labour Court and the Industrial Court (annexures C and E respectively), whereby respondent 1 was declared to be classified as permanent junior booking clerk.

2. The brief facts leading to this petition are that respondent 1 was initially employed by the petitioner-corporation as a security guard and was posted at Neemuch Depot. In compliance of the order, dated 10 June, 1980, of the Divisional Manager, Madhya Pradesh State Road Transport Corporation, respondent 1 was deputed to work as such from 13 June, 1980, and posted to the Rampura Bus Stand for point to point booking. Respondent 1 was called back to his parent department vide order, dated 28 May, 1982. Being aggrieved by that order, respondent 1 filed an application under S. 61(1)(a)(c) read with S. 31 of the Madhya. Pradesh Industrial Relations Act, 1960 (hereinafter referred to as the Act), before the Labour Court, Ratlam, contending therein that he worked satisfactorily as a junior booking clerk continuously for more than 6 months. As such, he is entitled to be classified as a permanent junior booking agent/clerk under rule 2 of the standard standing orders framed under the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961, as he acquired the status of a permanent employee by working satisfactorily and continuously for a period of more than six months. This application was contested by the corporation, where it was contended that the petitioner was never promoted to the post of a junior booking clerk and there is no channel for promotion of security guard to the post of a junior booking clerk in the organisational set-up of the petitioner-corporation, and that the Labour Court had no jurisdiction in the matter unless it is shown that the promotion was mala fide. After recording evidence of the parties, the Labour Court, vide order (annexure C), dated 24 March, 1987, held that the petitioner was working as a junior booking agent/clerk as per order of the Divisional Manager of the petitioner-corporation, dated 10 June, 1980, and Circular No. 53, dated 23 April, 1980, issued by the Chairman of the petitioner-corporation. From the evidence adduced by the parties on record, the Labour Court also found that from the date of assuming the work of a junior booking agent/clerk, respondent 1, was continuously working as a junior booking clerk/agent in pursuance of the order passed by the Divisional Manager of the petitioner-corporation. As respondent 1 was working continuously on a vacant post for more than 6 months satisfactorily, he became entitled to be classified as a permanent junior booking clerk and the petitioner was declared as such. Aggrieved by this order, the petitioner-corporation preferred an appeal before the Industrial Court. But the findings of fact arrived at by the Labour Court were confirmed and the order passed by the Labour Court was affirmed. Hence, the petitioner-corporation has filed this petition.

3. Sri M.L Dhupar, learned counsel for the petitioner-corporation, contended before this Court that as there is no post of junior booking clerk/agent in the organisational set-up of the corporation and the petitioner was sent on deputation, the petitioner was Dot entitled to promotion or to be classified as a permanent junior booking clerk/agent according to rule 2 of the standard standing orders as there was no vacant post of junior booking clerk/agent. Sri Dhupar, placed reliance on a Division Bench decision of this Court in Mahendralal v. General Manager, Hindustan Steel, Ltd. [1968 M.P.L.J 597]. Sri Dhupar, also contended that a temporary promotion or sending a person on deputation to a post of higher cadre in an officiating capacity does not confer any right on respondent 1 to such post.

4. Sri P. Wasif, learned counsel for respondent 1, contended before this Court that respondent 1 did not approach the Court for promotion, which is the function of the management but he filed an application before the Labour Court for a declaration and classification of his status as a junior booking clerk and both the Labour Court and the Industrial Court, after appreciation of rival contentions of the parties and evidence on record, came to a finding that by virtue of the provisions of rule 2 of the standard standing orders, as respondent 1 worked continuously for more than six months, he was entitled to the status of a junior booking clerk and was declared and classified as such. The findings arrived at are findings of fact, which cannot be interferred in the supervisory jurisdiction of this Court under Art. 227 of the Constitution. Learned counsel placed reliance on a Division Bench dicision of this Court in V.K Jain v. Kamalsingh [1978 M.P.L.J 664], and also on the provisions of Art. 39(d) of the Constitution of India on the doctrine of “equal pay for equal work” and the decision of the apex Court in Jaipal v. State of Haryana [1988 — II L.L.N 580].

5. After hearing the counsel and perusing the record, we are of the opinion that this petition has no merit and deserves to be dismissed. It has now been finally settled by this Court that it is the standard standing orders and not the regulations that govern the employees of the petitioner-corporation (See the Full Bench decisions of this Court in Madhya Pradesh State Road Transport Corporation v. Heeralal [1960 M.P.L.J 8]. Therefore, the case of the parties has to be judged in the light of the provisions contained in the standard standing orders. If an employee, who was employed in a lower cadre, works on a higher post continuously and satisfactorily for a period of more than six months, such an employee, in view of the provisions of rule 2 of the standard standing orders can make a demand for classification and not for promotion. Such a demand can be made under S. 31(3) of the Act. That being so, the authority relied upon for showing that the promotion is a managerial function is not relevant. This contention and the provisions of rule 2 of the standard standing orders and the fact of working satisfactorily and continuously for more than six months on a clear vacant post, have been considered by a Division Bench of this Court in 1978 M.P.L.J 664 (vide supra). After considering rule 2 of the standard standing orders, which deals with classification of employee, this Court observed that there can be no quarrel with the proposition that rule? relates to the status of an employee and does not speak of post and that it does not provide for fixing a person from one post to another post. It only casts a statutory duty on the employer to properly classify an employee having regard to the nature of his work.

6. In Jiwajirao Cotton Mills v. Harish Chandra Kaushik [1978 M.P.I & L.C 549], a Division Bench of this Court, while considering the case of an employee, who was working as a clerk, held that when an employee approaches the Labour Court under S. 31(3) of the Act for classification of his status, it is not a claim for promotion to a higher post but it is an act of the employer for wrongly treating an employee and depriving him of pay and other emouluments attached to the said status. It was also held that such a dispute is covered by items (1) and (6) of Sch. II of the Act and the Labour Court has power to adjudicate upon. In both the cases, this Court held that if an employer takes works other than for which the employee was appointed, for a sufficiently long time and does not recognise the status of such an employee and treats him to be an employee in initial status such an employer is guilty of unfair labour practice.

7. A Division Bench of this Court in Abdul Khalil v. Madhya Pradesh State Road Transport Corporation [Miscellaneous Petition No. 1273 of 1975, decided on 31 October, 1979], in a similar matter, wherein the petitioner was appointed as a bus conductor and thereafter he was asked to work as a booking agent from 1 March, 1970 and he worked satisfactorily and continuously for more than 6 months because of the temporary increase in the working of the booking agent, which was one of permanent nature. After considering Sub-cl. (vi) of Cl (2) of the standard standing orders, this Court held that:

“there is no substance in the argument advanced on behalf of the corporation that the employment for the purpose of Sub-cl. (vi) of Cl. (2) of the standard standing orders relates only to the initial employment. The employment there means an employment to the post. On the evidence on record, the employee, who has worked continuously for a period of six months, though temporarily, is a booking agent. He was clearly entitled to this status.”

Therefore, the contention of the petitioner-corporation that as there was no post of junior booking agent/clerk in the organisational set up of the corporation, respondent 1, was not entitled for promotion or to be classified as such as respondent 1 was working in officiating capacity in a higher cadre, cannot be upheld. It is not disputed that respondent 1 was working as a junior booking clerk since 13 June, 1980 continuously. Therefore, it is too late in the day to say that there is no post and it being a case of promotion, respondent 1 was not entitled to be promoted on a higher post. The contention is self-contradictory. If there was no post, then why respondent 1 was allowed to work as a junior booking clerk since 13 June, 1980. Thus, the contention has no force and has been raised with a view to debar the rightful claim of respondent 1, which, in our opinion, amounts to unfair labour practice, i.e, to take work of a higher post or cadre and not to pay him the wages of the said post and not to classify him under rule 2 of the standard standing orders in the status of a junior booking clerk.

8. In the result, this petition has no force and is dismissed with costs. Counsel's fees Rs. 250 (Rupees Two hundred and fifty), if already certified.