ORDER
S.K. Kulshrestha, J.
1. All these petitions challenge orders identical to the order dated November 27, 1999 (Annexure P/5) passed by the Labour Court and order Annexure P/7 dated February 23, 2000 passed by the Industrial Court affirming the said order Annexure P/5 in Civil Appeal No. 260/99/MPIR in the case of the employee Budha Rao Magarde in W.P. No. 3510/2000 and were, therefore, analogously heard and are being decided by this common order on the basis of the facts of W.P. No. 3510/2000 / Engineer-in-Chief, P.H.E.D. and Ors. v. Budha Rao Magarde and Ors.. The employee in each of the above cases had approached the Labour Court under Section 31(3) of the M.P. Industrial Relations Act, 1960 (MPIR Act for short) for seeking classification on the post on which he had been working in the Kolar Project of the petitioner Public Health Engineering Department. It is not disputed that the employees were inducted on daily wages from 1989 onwards till 1993.
2. The case of the employees before the Labour Court was that being an engineering undertaking, the activities of the petitioner. Public Health Engineering Department were governed by the provisions of the MPIR Act.
3. The undertaking had sanctioned 262 posts in the year 1989 and the employees were engaged on daily wages against the said posts and continued till a notice was issued proposing to terminate their services. It was contended before the Labour Court that since the employees had rendered continuous service on the posts which were continued and there was foreseeable likelihood of the project being completed, their service could not be terminated, much less without following the procedure laid down in Chapter VA of the Industrial Disputes Act, 1947 and without payment of compensation in accordance with Section 25F thereof. It was also submitted before the Labour Court that these employees having worked on the posts Continuously for more than six months, had even otherwise acquired the status of permanent employees under the provisions of Order 2 at the Standard Standing orders for all the undertakings in the State, appended as Annexure to the M.P. Industrial Employment (Standing Orders) Rules, 1963, and, therefore, they were entitled to be classified as permanent employees and given all benefits accruing from the said status. The claim was resisted by the petitioner undertaking inter alia on the ground that these persons had been engaged intermittently as per the requirement on daily wages temporarily in connection with temporary increase in the work and, therefore, their services had not been continued against any vacant post. It was also stated that the termination notices issued under the direction of the State had been stayed by the State Government itself and, therefore, no cause survived in favour of the employees to claim any relief from the Labour Court. It was also stated that since these employees were being paid from the contingency fund and had not been employed against any vacant posts, they were not entitled to seek classification as permanent employees and, therefore, their applications deserved to be rejected.
4. Initially, the Labour Court had allowed the claims of the employees by order dated June 30, 1998 (Annexure P/3) for classification with effect from two years prior to the date of applications and for payment of salary to them accordingly, but in appeal, the Industrial Court on noticing that the Labour Court has passed cyclostyled orders which did not depict due application of mind and the proceedings did not evidence that the parties had been given due opportunity of hearing, remanded the case, by order dated December 18, 1998 (Annexure P/4). After the remand of the cases to the Labour Court, the counsel for the parties stated that they did not want to lead any further evidence and after hearing the arguments, impugned order Annexure P/5 was passed by which the Labour Court, in each case, has quashed the termination notice notwithstanding the same having already been suspended by the State Government and directed classification of the employees with effect from the date two years prior to the dates of applications and payment of salary/wages accordingly. The direction for classification from a date anterior, to the application has apparently been given, keeping in view the period of limitation of two years for filing application for classification under the provisions of MPIR Act. The appeals filed by the petitioners have been dismissed by order such as Annexure P/7 and hence the above petitions have been filed.
4. While learned Government Advocate does not dispute that the undertaking is covered by the provisions of the M.P. Industrial Relations Act and the M.P. Industrial Employment (Standing Orders) Act, 1961 (hereinafter referred to as the Standing Orders Act) and the M.P. Industrial Employment (Standing Orders) Rules, 1963 (hereinafter referred to as the Standing Orders Rules) framed under Section 21 of the Standing Orders Act, and rightly so in view of a Division Bench decision of this Court in State of M.P. v. Ram Prakash Sharma, 1990-I-LLJ-551, contention of the learned Government Advocate is that the engagement of the employees not having been against any vacant posts, the Labour Court could not have directed their classification under the provisions of Standard Standing Orders (SSO) 2 on misreading of the evidence of the witness Ashok Pawar of the employer and in any case, even if a person is classified as permanent employee under the said SSO, he does not become entitled to receive the salary for the post on which he is classified and, therefore, direction for payment of salary in the pay-scale applicable to the post could not have been given.
5. Learned counsel for the respondent employee, on the contrary, has submitted that firstly, there was clear admission of the witness examined by the employer that the employees had been engaged against the 262 posts sanctioned for Kolar Project as shown in the document Exhibit P/1 and, secondly, there was also recommendation for their regularisation as evident from the document Exhibit P/2 and therefore, the Labour Court did not err in granting the status of permanent employee to them and even otherwise their engagement on daily wages having uninterruptedly continued for several years, they had acquired the said status under the proviso to Clause (vi) of SSO 2 and were entitled to all the benefits following from lie said status. Learned counsel, on the above premises, has prayed that these petitions be dismissed.
6. The Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961 was enacted to replace the M.P. Industrial Workmen (Standing Orders) Act, 1959, with a view to bring it in accord with the provisions of the MPIR Act and the Indian Trade Unions (Madhya Pradesh Amendment) Act, 1960. Section 2 of the Act makes the Act applicable to every undertaking wherein number of employees on any day during 12 months preceding or on the day the said Act was brought into force or on any day thereafter was or is more than 20. It has already been held by a Division Bench of this Court in State of M.P. v. Ram Prakash (supra) that Public Health Engineering Department is undertaking within the meaning of Section 2(1)(a). The Act in Section 3(b) defines “Standard Standing Orders” to mean the Rules framed under Section 21 thereof relating the matters set out in the Schedule. In the Schedule appended to the Act, item No. I provides for classification of employees, e.g., whether permanent, temporary, apprentices, probationers, badlies and whether seasonal or otherwise, while item no XI provides for termination of employment otherwise than by way of punishment and the notice thereof to be given to the employees. Under the Standard Standing Rules framed under Section 21 of the SSO Act, a Schedule has been appended containing the Standard Standing Orders for all the undertakings in the State of which Order 2 deals with classification of employees and reads as under:
“2. Classification of Employees: Employees shall be classified as (i) permanent, (ii) permanent seasonal, (in) probationers, (iv) badlies, (v) apprentices, and (vi) temporary:
(i) A ‘permanent’ employee is one who has completed six months satisfactory service in a clear vacancy in one or more posts whether as probationer or otherwise, or a person whose name has been entered in the muster roll and who is given a ticket of permanent employee;
(ii) A ‘permanent seasonal employee’ is one who has completed service for a period equal to 2/3 of the duration or a season or three months whichever is less in a clear vacancy and shall be deemed to be a permanent employee for the purposes of these orders;
(iii) A ‘probationer’ means an employee who is provisionally employed to fill a clear vacancy, and who has not completed six months’ satisfactory service in the aggregate;
(iv) A ‘badli’ employee means an employee who is employed on the post of a permanent employee, or a probationer or a permanent seasonal employee who is temporarily absent;
(v) An ‘apprentice’ means a learner; provided that no employee shall be classified as an apprentice if he has had training for an aggregate period of one year; provided further that a longer period of apprenticeship shall be required if prescribed by a law or an award, or by agreement with the representative of employees;
(vi) ‘temporary employee’ means an employee who has been employed for work which is essentially of a temporary character, or who is temporarily employed as an additional employee in connection with the temporary increase in the work of a permanent nature; provided that in case such employee is required to work continuously for more than six months he shall be deemed to be a permanent employee, within the meaning of Clause (i) above.”
7. In the present case, the relevant clauses of Order 2 are Clause (i) & (vi) which deal with the classification as ‘permanent employee’ and ‘temporary employee’. Learned Government advocate for the petitioners has referred to the evidence of Ashok Pawar examined by the employer and pointed out that he had clearly stated before the Labour Court that these employees had not continuously worked in the undertaking and there was no immediate proposal for termination of their services. He has also referred to his evidence in the cross-examination to the effect that although the witness has admitted the factual position of 262 posts having been sanctioned in connection with the said Kolar Project, there is no admission on his part that these respondents had been engaged against the said sanctioned posts. Learned counsel submits that what the witness had stated before the Court was that 250 posts had already been filled and his admission that Exhibit P/1 contained the list of the employees engaged on daily wages has been misread by the Labour Court as an admission of these employees having been engaged against the said sanctioned posts. In explaining the evidence with regard to document Exhibit P/2, learned Government advocate has pointed out that such recommendation for regularisation of the employees are forwarded in routine course as and when a request is received from the employee concerned and on that basis the Labour Court could not have come to any finding that there was a proposal for regularisation of these employees. Learned Government advocate has, however, not disputed that the project was continuing and its completion was not in the offing. In appreciating the evidence of the witness examined by the Department, the Labour Court and the Industrial Court, both have understood the same as meaning that the respondent employees had been engaged against the sanctioned vacant posts and the obscurity in the evidence of Ashok Pawar examined by the department has been construed as an admission to the effect that it was these employees who had been engaged on daily wages against the said sanctioned posts. The inference drawn by the Labour Court and the Industrial Court also appears to be a possible and plausible view based on the evidence produced by the Department which cannot be interfered with in exercise of power under Article 227 of the Constitution but in the present case this contention need not detain us longer as even under the proviso to Clause (vi) of Order 2 also these employees had acquired the status of permanent employees.
8. Clause (vi) of SSO 2, while describing temporary employee to mean an employee who has been employed for work which is essentially of a temporary character, or who is temporarily employed as additional employee in connection with the temporary increase in the work of a permanent nature, introduces a deeming provision by adding the proviso that in case such employee is required to work continuously for more than six months, he shall be, deemed to be a permanent employee within the meaning of Clause (i) of SSO 2. It is, thus, manifest that even without the existence of the conditions contained in Clause (i) of SSO 2, an employee under the proviso acquires the status of a permanent employee if the conditions contained in Clause (vi) of SSO 2 are satisfied. The two clauses are distinct with the only link implanted with regard to the status that a person acquires under Clause (i). The legislature has designedly inserted a deeming provision to fictionally confer the status of ‘permanent’ employee even in the absence of such an employee having rendered satisfactory service in a clear vacancy on one or more posts to obviate the possibility of mischief of an unscrupulous employer engaging employees to do the work of perennial nature without creating specific posts relating to the work as also to prevent him from taking shelter under the plea of unsatisfactory service of the employee by artificially creating circumstances such as punctuating his tenure with communication of lapses to create evidence for substantiating such a plea if the employee attempted to claim the status of permanent employee. It is for this reason that the proviso does not lay any stress on the existence of the posts or satisfactory service on such posts. The fact that a person has been continued under Clause (vi) for more than six months by itself confirms that had the service rendered by him been not satisfactory, he would not have been continued. Thus, to read the requirement of existence of post and satisfactory service rendered thereon in Clause (vi) of SSO 2 would be to render the proviso redundant and meaningless and to act counter to its legislative intent. Learned Government advocate has referred to a Division Bench decision of this Court in Vandana Singh v. Steel Authority of India, 1993 JLJ 55, to the dissenting opinion that the temporary employee employed for the work of temporary character cannot always acquire the status of permanent employee after working for six months unless and until it is found that there was a clear vacancy available and the services of the employee were satisfactory as the proviso to Clause (vi) is to be read with Clause (i) only under which he acquired such status. Learned Government Advocate has also referred to Full Bench decision of this Court in Superintending Engineer, PWD v. Dev Prakash, 1999-II-LLJ-663 (MP-FB) to further expatiate his contention in support of the above opinion. Before the Division Bench in Vandana Singh (supra), an earlier judgment of the Division Bench in MPSRTC v. Harish, 1990 MPLJ 97 was not brought to their Lordships’ notice which takes the view that there is no such requirement of availability of a clear vacancy in Clause (vi) of SSO 2.
9. Since learned Government Advocate has placed strong reliance on the Full Bench decision in Superintending Engineer, PWD v. Dev Prakash (supra), it is necessary to refer to the question referred to the Full Bench for decision. The question of law considered by the Full Bench reads as under:
“Whether the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961 will be applicable to the services which are governed by the Rules mentioned in Section 2(2) and also to those employees where recruitment rules have been framed ?”
10. In answering the said question, their Lordships held that unless the Government notified under Section 2(2) of the Standing Orders Act, that particular rules which are applicable in a department will exempt the application of the provisions of the said Act, the Acts, Rules and Orders issued thereunder will be applicable, in the case of the employees of the department. The question of the meaning and effect of Clause (vi) of SSO 2 was neither referred nor “considered by the Full Bench. Learned Government Advocate has referred to the passage in paragraph 4 to the effect that one of the pre-conditions for acquiring permanent status is the existence of clear vacancy while the other two requirements are that the employee should have worked against a clear vacancy for a minimum period of six months and that his service should have been satisfactory. This requirement has been stressed only while considering SSO 2(1) as is clear from the passage itself referred to by the learned Government Advocate, which reads as under:
“On a reading of these provisions and the ratio laid down in the case of Bangalore Water Supply and Sewerage Board v. A. Rajappa, AIR 1978 SC 969 : 1978 (2) SCC 213 : 1978-I- LLJ-349, there is no gainsaying that the present Department is an undertaking of the State. Therefore, Clause (2) of the Standard Standing Orders for all the undertakings in the State is applicable and according to the said clause, employees shall be classified as permanent, permanent seasonal, probationers, badlies, apprentices and temporary. Clause 2(i) clearly says that permanent employee is one who has. completed six months’ satisfactory service in a clear vacancy in one or more posts whether as a probationer or otherwise, or a person whose name has been entered in the muster roll and who is given a ticket of permanent employee. What it conveys is that a person would be entitled to be declared under this Standing Order as a permanent employee subject to the conditions that he put in six months’ satisfactory service against a clear vacancy. Therefore, one of the pre-conditions is the existence of a clear vacancy, second is that he should have worked against the clear vacancy for a minimum period of six months and third is that his service should be satisfactory. It is irrelevant that a man might have worked for 10-15 years and if there is no permanent vacancy available and his service record is not satisfactory, then he cannot be classified as a permanent employee.”
11. It is clear from the above passage that their Lordships in that case were not considering the effect of the proviso which, in conferring (sic) of the status, does not lay any stress on the requirement of existence of vacant post or the satisfactory nature of the service. Even in an earlier decision of a Single Bench in Bijlee Karmachari Sangh v. M.P. Electricity Board, 1986 MPLJ 285, it was observed that the employees on the nominal muster roll and the work-charged employees who had put in the requisite period of continuous service of six months under the Standard Standing Orders are entitled to be treated as permanent employees and to all the benefits of the service as permanent employees without any discrimination. In the present case, even if the findings of the Labour Court and the Industrial Court that these employees had worked against the posts sanctioned for Kolar Project continuously for several years are ignored, there being no requirement for acquiring the status of permanent employee under the proviso to Clause (vi) of SSO 2 of having worked against a clear vacant post, the conclusion that these employees acquired such a status does not call for any interference much less in exercise of power under Article 227 of the Constitution.
12. The next contention of the learned Government advocate is that Clauses (i) and (vi) of SSO 2 merely confer a status without any corresponding obligation to pay them wages or salary in the regular pay scale of the posts. Learned Government advocate has proceeded further to submit that by acquiring a status, a person gets apprised of the nature of the duties that he is required to discharge as employee engaged on daily wages can, without such status, be employed in different sections. It is difficult to comprehend that a person acquires permanent status only as a ‘tag’ without attendant benefit of salary of the posts relating to the nature of the work carried out by such an employee. In the present case, each of the employees has specifically referred to the work of the service rendered by him in connection with a post. To illustrate, in W.P. No. 3510/2000, the claim of the employee was that he was working as a Lab Assistant while in W.P. No. 3056/2000, the claim was that the employee was working on the post of sweeper. Thus, specific duties performed relating to specific posts were duly pleaded and not specifically denied. Such a status acquired by an employee does not give him any other advantage except the advantage of pay. In MPSRTC v. Harish (supra), itself on conferring (sic) of the deeming status of permanent employee, direction for payment of salary on the post was made which indicates that it goes without saying that when a person acquires a permanent status, he automatically becomes entitled to the salary of the said post. In State of M.P. v. Ram Prakash (supra), the observations of the Division Bench which are relevant in this context read as extracted below:
“12. For all the foregoing reasons, we have no hesitation to hold that our interference with the order or award passed by the Labour Court on June 25, 1987 (Annexure P/3) is not warranted, the claim of the respondent being legally as also constitutionally justified. However, we would like to make it clear that the holding of this Court, whether in Surendra Kumar Saxena or Brij Kishore Sharma (supra) would not, in terms, apply to respondent’s, case for that reason. His entitlement would also be so determined (under the “Annexure” of 1963 Rules) in respect of his claim for being treated as permanent employee. Therefore, he would be entitled to be paid not only the minimum of salary in the pay scale applicable to Lower Division Clerks/Typist appointed on regular basis; he would rather be entitled to be paid salary in the pay-scale applicable to them. In other words, he would also be entitled to increments envisaged under that pay-scale because we have held that he is entitled to be endowed with the status of a ‘permanent employee’ in terms of the statutory provisions aforesaid.”
13. From the above decision it is clear that once an employee acquires the status of permanent employee, he is required to be paid the salary/wages of the post and he cannot be continued on the wages on which he had initially been appointed or continued till he had become permanent. Learned Government advocate has, however, referred to the application (Annexure P/1) filed before the Labour Court by the employees and has invited attention to the relief clause to point out that no . claim for salary of the posts, much less from any retrospective date had been made by the applicants. Learned counsel for the applicant submits that such a relief would be covered by the general relief claimed in Clause D of the relief clause and even otherwise in the body of the petition, the statement with regard to the entitlement of the salary has been duly made. From the application of the employees, it is clear that the main thrust was on the challenge to the order proposing termination of the service in which it was merely stated that the attempt of the Department was to terminate the service with the intention to deprive the employees of making a claim for classification as permanent employees and for depriving them of the benefit attached to such status. No claim was specifically or by implication made for any difference of wages or classification from any retrospective date. Thus the main thrust was against the order of termination in which direction was incidentally claimed for permanent status on the post on which he was working. In view of the facts pleaded and the relief claimed, there was no occasion for the Labour Court to have granted a relief from any retrospective date, much less the wages/ pay-scales from such a date. In the facts and circumstances of these cases, therefore, the direction for payment of difference of wages from the retrospective dates from which these employees have been classified as permanent should not have been made.
14. Consequently, these petitions are partly allowed. While maintaining the direction of the Labour Court as affirmed by the Industrial Court for classification of these employees as permanent employees on the posts from the dates as directed by the Labour Court, it is directed that insofar as the wages/pay is concerned, the direction shall be construed as prospective from the date of the order Annexure-P/5 passed by the Labour Court. There shall be no order as to costs.