Pramod Kumar Sharma vs M.P. Housing Board and Others

Being aggrieved by order dated 08/05/2007 passed by the learned Writ Court in W.P. No. 1361 of 2002(S) whereby an order dated 27/03/2002 passed by the Industrial Court and an order dated 22/11/2001 passed by the Labour Court have been set aside, the present appeal has been filed. Short facts of the case are that the appellant was appointed as Legal Assistant vide order dated 15/12/1995 for a period of six months and the period was extended for another six months by the respondents No. 1 to 3/employer (for short, ''Employer''). After expiry of the extended period, the appellant was allowed to continue and was terminated vide order dated 04/09/1997. Prior to his termination, the appellant filed a petition before the Labour Court for classification and regularisation in service. During pendency of that petition, the appellant was discontinued vide order dated 04/09/1997, therefore, the petition was amended and the termination order was challenged on various grounds including the ground that the service of the appellant had been discontinued by an incompetent authority. It was prayed that the termination order dated 04/09/2007 be quashed. The petition of the appellant was contested by the Employer on various grounds including the ground that the Labour Court has no jurisdiction entertain the petition as the appellant is not covered under the definition of "workman". After framing of the issues and recording the evidence, the Labour Court allowed the petition filed by the appellant and quashed the termination order dated 04/09/1997 with a further direction to classify and regularise the service of the appellant. Against which, an appeal was filed by the Employer which was dismissed. Against which, writ petition was filed by the Employer and the same was allowed by the impugned order, hence this appeal by the appellant.

Learned counsel for the appellant argued at length and submits that the impugned order passed by the learned Writ Court is illegal and the same has to be set aside. It is submitted by the learned counsel that the appellant was appointed by the Employer/Commissioner, M.P. Housing Board while the termination order was passed by the Deputy Commissioner who had no authority to terminate the service of the appellant but this aspect of the matter has not been examined by the learned Writ Court. It is submitted that the learned Writ Court was not justified in holding that the appellant is not a workman. It is submitted that the learned Writ Court has placed reliance on the decision of the Hon''ble Apex Court in the matter of Management of Sonepat Cooperative Sugar Mills Ltd. Vs. Ajit Singh, while the facts of that case are quite distinguishable to the case of the present appellant. It is submitted that in the case of Sonepat Cooperative Sugar Mills Ltd. (supra), the employee, Ajit Singh did not perform any stereo-type job and the same involved creativity and also rendered legal opinions, drafted pleadings, represented the appellant before various courts/authorities and discharged quasi-judicial function as an enquiry officer in domestic enquiries against workmen. It is submitted that in such circumstances, the Hon''ble Apex Court held that such a job would not make him a workman while in the present case, the duties assigned to the appellant are mentioned in the document, Annexure R/1 which reads as under:

It is submitted that in the facts and circumstances of the case, the appeal filed by the appellant be allowed and the impugned order passed by the learned Writ Court be set aside.

Learned counsel for the Employer/Housing Board supports the impugned order and submits that the appellant was appointed for discharging the work of Legal Assistant and his job was to work in coordination with the officers and the advocates of the Employer/Housing Board appearing in various Courts. The appellant was appointed in the pay scale of Rs. 1400-40-1440-50-2340 which is not pay scale for the workman. It is further submitted that the appellant was appointed for a period six months which was further extended by another six months. It is further submitted that since there was no extension of the period, therefore, the appellant was discontinued by order dated 04/09/1997 and the total period of service rendered by the appellant was only about 01 year 10 months. He has placed on reliance on the decision of the Hon''ble Apex Court in the case of M.P. Housing Board and Another Vs. Manoj Shrivastava, wherein it has been held that if an appointment is made in contravention of either against a duly sanctioned vacant post or upon following the statutory law operating in the field, such appointment would be void. It was further held that the effect of such void appointment confers no legal right. It is further submitted that in the circumstances, the learned Writ Court has rightly allowed the writ petition filed by the Employer/Housing Board. So far as the competency of the authority who issued the termination order to the appellant is concerned, learned counsel submits that this point was raised by the appellant before the Labour Court but the Labour Court has not given any finding in favour of the appellant and even in the appeal before the Industrial Court also, the appellant has not filed any cross-objection to controvert the said finding of the Labour Court. In such circumstances, at this stage, the appellant cannot be permitted to challenge the competency of the authority who had issued the termination order against the appellant to the effect that the authority who had issued the termination order was incompetent to pass the termination order. He further submits that the appointment order in favour of the appellant was issued by the Commissioner and the termination order was issued by the Deputy Commissioner on the basis of instructions given by the Commissioner as is evident from the termination order dated 04/09/1997 itself. He submits that the appeal has no merit and the same be dismissed.

From a perusal of the record, it is apparent that the validity of the termination order was challenged by the appellant on the ground that the termination order has been issued by an incompetent authority but the Labour Court has not given any finding in favour of the appellant on this point. The appellant did not raise this ground in the appeal before the Industrial Court by way of cross-objection or before the learned Writ Court, therefore, at this stage in writ appeal, it cannot be said that the termination order has been passed by the incompetent authority. So far as the status of the appellant is concerned, whether the appellant is an employee or not, the relevant portion of definition of Section 2(13) of the Madhya Pradesh Industrial Relations Act, 1960 is relevant and it reads as under"

"2(13) Employee" means any person employed in any industry to do any skilled, unskilled, manual supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and includes-

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(iv) who being employed in a supervisory capacity draws wages exceeding one thousand and six hundred rupees per mensem.

Explanation.- An employee who has been dismissed, discharged or retrenched from the employment or whose employment has been otherwise terminated shall, in respect of matters relating to such dismissal, discharge, retrenchment or termination, be deemed to be an employee for the purpose of this Act.

The appointment of the appellant was made on a particular post and in a particular pay scale which is not a pay scale for the workman. Apart from this, the services which are being rendered by the appellant cannot be said to be merely clerical job as the appellant was required to coordinate with the officers of the respondent and also with the concerned advocate appearing on behalf of the Employer in the Courts. The appellant was highly qualified as he is a graduate in law. In such circumstances, this Court finds that there is no illegality and infirmity in the impugned order passed by the learned Writ Court which can be corrected in this appeal. Now the fact remains that the appellant was appointed in the year 1995 and after passing the termination order on 04/09/1997, initially an interim order was passed by the Labour Court as a result, the appellant continued throughout the pendency of the writ petition and the writ appeal as well as he has rendered about 18 years of service, therefore, the appeal stands disposed of with a short direction that the appellant shall move an appropriate representation narrating all the facts including that the appellant is ready and willing to undertake that any type of post/job which may be assigned to him before the Commissioner, M.P. Housing Board within a period of four weeks from today along with a copy of this order which shall be considered by the said authority keeping in view the long tenure of service rendered by the appellant after giving an opportunity of hearing to the appellant by passing a reasoned speaking order within another four weeks of its submission. It is made clear that till deciding the representation of the appellant, the interim order passed by this Court shall remain in force. In case appellant fails to submit the representation, appeal shall be treated as dismissed. No order as to costs.