JABALPUR DEVELOPMENT AUTHORITY Vs. SHARAD SHRIVASTAVA

JUDGEMENT

(1.) This is a writ petition under Articles 226 and 227 of the Constitution of India challenging the order dated June 27, 2003 (Annexure P/4) in Case No. 30/99/mpir of the Labour Court and order dated November 1, 2003 (Annexure p/6) in Appeal No. 100/mpir/2003 of the industrial Court, Jabalpur by which the petitioner has been directed to classify the respondent as "permanent employee".

(2.) It is not in dispute that the respondent was appointed as sub-engineer on daily wages in Jabalpur Development Authority (JDA) on october 1, 1991 and he is by now completing almost thirteen years in that capacity. It is also not controverted that his work has been satisfactory. He submitted an application under section 31 (3) of the M. P. Industrial Relations act, 1960 (hereinafter to be referred to as the act of 1960) stating therein that he was appointed in a "clear vacancy". He claimed that he became a permanent employee as per clause 2 (i) and (vi) of the Standard Standing orders (SSOs) annexed to the M. P. Industrial employment (Standing Orders) Rules, 1963 framed under the M. P. Industrial Employment (Standing Orders) Act, 1961 (hereinafter to be referred to as the Act of 1961). The petitioner submitted its reply denying that the appointment of the respondent was in "clear vacancy". It was stated that he was appointed as a "daily rated casual employee" and not against any permanent vacancy. It was also contended that the application under Section 31 (3) of the Act of 1960 was not maintainable as Jabalpur Development Authority is not an "industry" because it has been created under a statute and further it does not fall within the description of the industries given in the schedule appended to the notification under section 31 (3) of the Act of 1960. It was also stated that the services of the employees of this authority are governed by the M. P development Authority Services (Officers and servants) Recruitment Rules, 1987 (hereinafter called Rules of 1987) framed under the M. P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 (for short the Act of 1973) and, therefore, the application of the SSOs is excluded.

(3.) The Labour Court held that the respondent is continuously working as sub-engineer with the petitioner from October 1, 1991 and he has put in about 12 years of service on daily wages, he was appointed in a clear vacancy and his work is satisfactory. Therefore, he became entitled to be classified as permanent employee as per SSOs which are applicable to the employees of the petitioner. It was held that the Rules of 1987 framed under the Act of 1973 are not applicable to the respondent as these have not been notified under Section 2 (2) of the Act of 1961. It has been further held that the JDA is covered by the definition of "industry" and being an "engineering" industry comes within entry 16 of the Schedule and therefore the application under Section 31 (3) of the Act of 1960 is legally maintainable. In appeal filed by the petitioner the Industrial Court has upheld the finding of the Labour Court that the respondent was appointed against the vacant post of sub-engineer. It has also been held that the view taken by the Labour Court on question of law is also correct.