Municipal Corporation Of Jabalpur And Others vs Hakim Khan

Sanjay Yadav, J

This appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 is directed against the order dated 28.03.2019 passed in Writ Petition No.10249/2018 (Hakim Khan vs The Municipal Corporation).

The petition at the instance of Hakim Khan, respondent herein, a retired employee of the appellant-Municipal Corporation, was for direction to the present appellant, the employer, for grant of gratuity. In a reply filed by the Municipal Corporation, it was stated that the petitioner had earlier preferred a Writ Petition No.21109/2017 which was decided on 05.12.2017 in the terms of the claim by the petitioner qua only for grant of gratuity in terms of the decision in Municipal Corporation Delhi vs Dharam Prakash Sharma (1998) 7 SCC 221. It was also stated that in terms of the order, the petitioner was paid on 09.02.2018 an amount of Rs.3,68,472/- including interest @ 6% towards gratuity. The amount, it was stated, was deposited in the account of the petitioner.

Learned Single Judge, in seisin, with the writ petition disposed of the same in the following terms :

"Be that as it may, as it is undisputed that the order of the labour Court makes it absolutely clear that the petitioner ought to be regularised from the date of the order passed by the Labour Court, the regularisation of the petitioner from the year 2010 is unlawful and is not in compliance with the order of the Labour Court.

Under the circumstances, it is directed that the respondents shall regularise the petitioner w.e.f. 25-11-2002 on the post from which he has finally retired and confer on him all consequential benefits that flow therefrom. The respondents are requested to comply with the said order within a period of three months from the date the certified copy of this Court's order is placed before it."

Evidently, the issue as regard to status of daily wagers who have been classified as permanent either by the employer or by the labour Court in furtherance to the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961 is no more res integra and has been settled at rest by the Supreme Court in the case of Ram Naresh Rawat vs Ashwini Ray (2017) 3 SCC 436, wherein it is held:-

"24. It is, thus, somewhat puzzling as to whether the employee, on getting the designation of "permanent employee" can be treated as "regular" employee. This answer does not flow from the reading of the Standing Orders Act and Rules. In common parlance, normally, a person who is known as "permanent employee" would be treated as a regular employee but it does not appear to be exactly that kind of situation in the instant case when we find that merely after completing six months' service an employee gets right to be treated as "permanent employee". Moreover, this Court has, as would be noticed now, drawn a distinction between "permanent employee" and "regular employee".

We may mention, at this stage that this aspect has come up for consideration, in another context, in State of M.P. vs. Dilip Singh Patel and Others (2017) 3 SCC 455. That was a case where similarly situated employees, who were classified as "permanent employees" under the Standing Orders Act, were given minimum of the pay scale attached to their posts. However, after the implementation of Sixth Pay Commission, benefits thereof were not extended to these employees. The High Court held that they would be entitled to have their pay fixed as per the revised scales in accordance with the recommendations of the Sixth Pay Commission which were accepted qua regular employees. This Court, though, upheld the orders of the High Court giving them the benefit of revision of pay scale pertained to Sixth Pay Commission, but at the same time made it clear that they would be entitled to minimum salary and allowances as per the said revised scales and would not be entitled to any increments. It was further held that such increments would be admissible only after regularisation of their services which regularisation was to take place as per the seniority list with due procedure. Following passage from the said judgment, which captures the aforesaid directions, is quoted hereunder:

"We have heard learned counsel for the parties and perused the records. It appears that the respondents earlier moved before the Administrative Tribunal, Gwalior by filing original applications such as O.A. No. 648 of 1995, O.A. No. 293 of 1991 etc. In compliance of the orders passed in such original applications, the Chief Engineer, Yamuna Kachhar, Water Resources Department, Gwalior (M.P.) by orders issued in between April, 2004 and June, 2004 provided the minimum wages and allowances to the respondents without increment as per the Schedule of the pay scale from the date of the order of the Tribunal. It was further ordered that the regularisation of the daily wages employees shall be made as per the seniority list with due procedure and the benefit of increment and other benefits can only be granted after the regularisation as per the Rules. It was ordered that the order of the Court for benefit of minimum wages and allowances shall be .....

From the aforesaid facts, it is clear that the respondents are entitled for minimum wages and allowance as per the fixed Schedule of the pay scale but without any increment. In such case, if the pay scale is revised from time to time including the pay-scale as revised pursuant to Sixth Pay Commission, the respondents will be entitled to minimum wages and allowance as per the said revised scale without increment. Only after regularisation of their service, as per seniority and rules, they can claim the benefit of increment and other benefits."

From the aforesaid, it follows that though a "permanent employee" has right to receive pay in the graded pay scale, at the same time, he would be getting only minimum of the said pay scale with no increments. It is only the regularisation in service which would entail grant of increments etc. in the pay scale."

True it may be that the order is cryptic. However, taking into consideration that there is already determination of the entitlement of the persons like petitioner for service benefit which will flow from the award passed by the Labour Court as also the order passed in Writ Petition No.21109/2017, we say no more than what has been determined by the respective orders as regard to entitlement of the petitioner for retrial dues other than the gratuity. In other words, the respondents/employer are at liberty to take a decision on the basis of the earlier determination of the status of the petitioner/employee and the order passed in Writ Petition No.21109/2017 in furtherance to impugned order dated 28.03.2019 passed in Writ Petition No.10249/2018 and the law laid down in the case of Ram Naresh Rawat (supra).

With these observations, we dispose of this writ appeal.

No costs.