Principal Secretary State of M.P. vs Suresh

Heard on the question of admission. This order will also govern for disposal of W.A. No. 748/2013 and W.A. No. 749/2013.

The respondents/writ petitioners aggrieved by the order of transfer dated 11.03.2013, whereby they have been transferred from Indore to Chhindwara and filed the writ petition. The learned Writ Court allowed the writ petition by passing following order:-

The record indicates that the petitioners had approached the Labour Court for their classification as permanent employees and grant of pay scale and other facilities and the Labour Court had passed the award dated 07.10.2005 in favour of the petitioners directing the respondents to treat the petitioners as permanent employees in terms of the order dated 18.06.2002 and to pay them the salary and other benefits of the permanent employees. The Writ Petition No. 1088/2006 filed by the respondents against the said award was dismissed by the Division Bench of this Court by order dated 09.02.2010 and the SLP was also dismissed by the Supreme Court vide order dated 05.07.2011. In spite of the same, the award of the Labour Court was not complied with, therefore, the petitioners had approached the Labour Commissioner for prosecuting the respondents and the Labour Commissioner vide order dated 12.01.2011 had granted permission for prosecution u/s 29 of the Industrial Disputes Act. It has been stated by the learned counsel for the petitioners that in the said prosecution, the final arguments have been heard and it has been closed for order, thereafter, the respondents have passed the order dated 11.03.2013 transferring/posting the petitioners to Chhindwar. The impugned order indicates that the status of the petitioners is still shown to be the daily rated employees. By the said order, the petitioners have been given minimum of the pay scale of work charge established without any increments whereas the Labour Court had directed for giving of the pay scale of the permanent employees with all other benefits. Nothing has been pointed out to show that the petitioners are treated as permanent employees by the respondents.

The counsel for the petitioners has placed reliance upon the judgment of this Court in the matter of State of Madhya Pradesh and Others Vs. Hariram and Others, in support of the plea that on classification on the permanent post, the petitioners were entitled for pay scale applicable to the said post.

Since the respondents has failed to produce any material before this Court to show that the petitioners have been classified or treated to be classified as permanent employees in terms of the order of the Labour Court, on the contrary, the impugned order dated 11.03.2013 shows the petitioners as daily rated employees, therefore, in terms of the Full Bench decision of this Court in the matter of H.S. Tripathi (Dr.) Vs. State of M.P. and Others, the petitioners could not have been transferred.

Even otherwise, keeping in view the sequence of events noted above, I find substance in the submissions of the learned counsel for petitioners that the impugned order lacks in bona-fide. This Court by the interim order had stayed the operation of the impugned order to the extent it relates to the petitioners and the petitioners are working at Indore. In this view of the matter, the impugned order dated 11.03.2013 so far as it relates to the petitioners cannot be sustained and is hereby set aside. Needless to mention that the respondents after due compliance of the order of the Labour Court and classifying/treating the petitioners as permanent employees would be at liberty to pass appropriate orders in accordance with law.

It is submitted by Ms. Mini Ravindran, learned counsel for the appellants/State that at Indore there is no regular post and, therefore, the appellants have been given posting at Chhindwar. Looking to the irrigation works, she further submitted that the said order being in administrative nature and do not deserve any sympathy by interference in the Court. With the aforesaid, she stated that the impugned order is liable to be set aside.

We heard of the learned counsel of the appellants at length, we have perused the impugned order reasoning assigned therein which has been discussed by the learned Writ Court in para No. 7 onwards and also law laid down in the matter of Ashok Tiwari (supra), we are of the view that learned Writ Court has rightly set aside the order of transfer passed on 11.03.2013 with a direction to the respondents after due compliance of the order of Labour Court and classifying/treating the respondents as permanent employees would be at liberty to pass appropriate orders in accordance with law.

On considering the aforesaid, we are of the view that no case for interference with the aforesaid order as prayed by the learned counsel for the appellants/State is made out.

The Writ Appeal No. 746/2013 is devoid of substance and is accordingly dismissed. Signed order be kept in the record of W.A. No. 746/2013 and the copies thereof be kept in the file of the connected Writ Petitions No. 748/2013 and 749/2013.