Chattisgarh High Court

Mohan Mohdikar vs Chhattisgarh State Power Distribution ... on 26 June, 2024

Author: Narendra Kumar Vyas

Bench: Narendra Kumar Vyas

Neutral Citation
2022:CGHC:19005




                                                      Page 1 of 22

                                                              AFR
         HIGH COURT OF CHHATTISGARH, BILASPUR

                                         Reserved on 26.04.2024
                                      Pronounced on 26.06.2024


                    WPS No. 4881 of 2022
  Vijay Kumar Kharra S/o Late Shri Nathuram Kharra Aged About
   56 Years Working As Assistant Grade-3, Office Of Executive
   Engineer, Chhattisgarh State Power Distribution Company
   Limited, Division Patthalgaon, District Jashpur, Chhattisgarh
                                                    ---- Petitioner
                           Versus
1. State Of Chhattisgarh Through The Secretary, Energy
   Department, Mahanadi Bhawan, Mantralaya, Nawa Raipur,
   District Raipur, Chhattisgarh
2. Chhattisgarh State Power Distribution Company Limited (An
   Enterprises Of Government Of Chhattisgarh), Through Its
   Managing Director, Dagania, Raipur, District Raipur,
   Chhattisgarh
3. The General Manager Chhattisgarh State Power Distribution
   Company Limited, Dagania, Raipur, District Raipur, Chhattisgarh
4. The Deputy General Manager Chhattisgarh State Power
   Distribution Company Limited, Dagania, Raipur, District Raipur,
   Chhattisgarh
5. The Superintending Engineer (Circle) C.S.P.D.C.L., Bilaspur,
   District Bilaspur, Chhattisgarh
6. The Executive Engineer C.S.P.D.C.L., Patthalgaon, District
   Jashpur, Chhattisgarh
                                                ---- Respondents
                    WPS No. 5680 of 2022
  Mohan Mohdikar S/o Late Shri Narayan Rao Mohdikar Aged
   About 68 Years R/o Mahamaya Vihar, Ware House Road,
   Bilaspur, District- Bilaspur Chhattisgarh.
                                                    ---- Petitioner
                           Versus
1. Chhattisgarh State Power Distribution Company Ltd. Danganiya
   Through Its General Manager, Chhattisgarh State Power
   Distribution Company Ltd. Danganiya, Raipur, District- Raipur
   Chhattisgarh.
2. Deputy General Manager (Human Resources) Chhattisgarh
   State Power Distribution Company Ltd. Danganiya, Raipur,
   District-Raipur Chhattisgarh.
   Neutral Citation
  2022:CGHC:19005




                                                                      Page 2 of 22

   3. Executive Director (Human Resources), Chhattisgarh State
      Power Distribution Company Ltd. Danganiya, Raipur, District-
      Raipur Chhattisgarh.
                                                                ---Respondents
________________________________________________________

For Petitioners      :      Mr. Anil S. Pandey and Mr. Manoj Paranjpe,
                            Advocates

For State            :      Ms. Upasana Mehta, Dy. Government
                            Advocate

For CSPDCL           :      Mr. Abhishek        Sinha,     Sr. Advocate        with
                            Mr. Vinod Deshmukh and Ms. Saloni Verma

________________________________________________________

                     Hon'ble Shri Narendra Kumar Vyas, J.

CAV ORDER

1. As common question of law and facts are involved in both the writ

petitions, they are heard analogously and are being disposed of by this

common order. On earlier occasion this Court vide order dated 24.08.2022

and 05.09.2022 disposed off both the petitions as the petitioners are

employees of the Chhattisgarh State Power Distribution Company Limited

and the petitioners have remedy of raising Industrial Dispute before the

Labour Court constituted under Chhattisgarh Industrial Act, 1960 (in short

'the Act of 1960'). Being aggrieved with these orders the respondents have

preferred Writ Appeal No. 81/2023 and Writ Appeal No. 155/2023. The said

Writ Appeals were allowed by the Hon'ble Division Bench remanding back

the matters for fresh consideration after giving opportunity of hearing to the

respondents - Chhattisgarh State Power Distribution Company Ltd.

2. Brief facts as reflected from the records are that the petitioner-

Mohan Mohdikar in WPS No. 5680/2022 was working as Office

Attendant Grade-I/ Senior Accounts Officer with the Chhattisgarh Neutral Citation 2022:CGHC:19005

State Power Distribution Company Ltd. He was charge-sheeted

on 15.10.2015 on the count that work orders were issued to the

contractors but work was not done by them and without

inspection the payments were made to them thereby causing

loss of Rs. 4,09,36.,163/- to the company and after holding

departmental inquiry he was imposed with major punishment

and his pension has been permanently withheld and stopped @

40% vide its order dated 30.07.2021 against which he has

preferred an appeal before the Deputy General Manager

(Human Resources)-3 Chhattisgarh State Power Distribution

Limited Company, Raipur who vide order dated 03.06.2022 has

rejected the said appeal. The petitioner has filed the present writ

petition assailing both the orders before this Court.

3. The petitioner- Vijay Kumar Kharra in WPS No. 4881/2022 was

working as Assistant Grade-II in the office of the Executive

Engineer, Sakti Division. H e was charge-sheeted on the count

that the payments were made to two different contractors without

inspection and without work completion certificate for same bills

thereby caused loss of Rs. 38,68,940/ to the company. He was

placed under suspension vide order dated 27-9-2014. In

pursuance of the charge sheet enquiry was conducted and

punishment order dated 29-6-2021 was imposed upon the

petitioner by which he has been reverted from the post of

Assistant Grade -2 to Assistant Grade-3 and fixed lower pay four

times below (corresponding lower) in metric S-5 of Assistant

Grade -III and further directed that the suspension period shall Neutral Citation 2022:CGHC:19005

not be included in duty period for any purpose. The petitioner

preferred an appeal before the Board of Directors which was

dismissed vide order dated 01.06.2022. The petitioner has filed

the present writ petition assailing both the orders before this

Court.

4. Earlier, Writ Petition No. 4881 of 2022 was disposed off vide

order dated 24.08.2022 and Writ Petition No. 5680 of 2022 was

disposed off vide order dated 05.09.2022 directing the petitioners

to file an application under Section 31(3) of the Industrial

Relations Act before the Labour Court. Pursuant to the orders,

the petitioners have approached the Labour Court where the

proceedings have been initiated and protective order has been

passed in favour of the petitioners. Said orders have not been

challenged by the CSPDCL however, has filed appeal before the

Hon'ble Division Bench. Hon'ble Division Bench set aside orders

dated 24.08.2022 and 05.09.2022 and remanded back the

matters for fresh consideration after noticing the respondents

and the proceedings before the learned Labour Court were

stayed till disposal of the present writ petitions. Hon'ble Division

Bench also directed to dispose off the petitions within 8 months.

This Court issued notice to the CSPDCL vide its order dated

31.08.2023 and pursuant to the notice CSPDCL filed its return in

both the cases.

5. Learned counsel for the petitioners would submit that the

petitioners were not responsible for any purchase, contract or

inspection of the works done. They are entrusted with the Neutral Citation 2022:CGHC:19005

general works, therefore, they cannot be held responsible for any

loss to the company. The payments were made on approval of

the competent authority after due inspection and satisfaction by

them. The petitioners have only performed their duties on their

part. Further, the departmental enquiry has been conducted in

violation of the principles of natural justice without affording

proper opportunity of hearing to them, therefore, the impugned

orders passed by the Disciplinary Authority as well as the

Appellate Authority, deserve to be quashed.

6. This Court before examining the merits of the case is considering

the issue of maintainability of the writ petition as the petitioners

being employees as defined in Section 2(13) of the Chhattisgarh

Industrial Relations Act, 1960 and respondent being Industry as

defined in Section 2(19) and dispute raised by the petitioners are

Industrial matters as defined in Section 2(18) of the Act of 1960,

therefore, counsel for both the parties were directed to make

their submission on the issue of maintainability of the writ

petitions.

7. Learned counsel for the petitioners would submit that the

petitioner in WPS No. 5680/2022 was working as Assistant

Grade-I and the petitioner in WPS No. 4881/2022 was working

as Assistant Grade-II, the nature of work done by the petitioners

is clerical in nature and they are employees as per Section 2(13)

of the Act of 1960. It has also been contended that since they

have been inflicted with the punishment by the respondents

which is an Industry therefore, it is an industrial matter as defined Neutral Citation 2022:CGHC:19005

in Section 2(18) of the Act of 1960. Therefore, after passing of

the earlier orders by this Court they have approached to the

Labour Court where the proceedings are pending. It has been

further contended that now since the matters are pending before

the Labour Court, they may be allowed to continue with the

proceeding and the respondents should have no objection for

disposal of the writ petition on the count of maintainability. They

would further submit that they have been granted interim

protection by the Labour Court but subsequent proceedings have

been stayed by the Hon'ble Division Bench till disposal of the writ

petitions by this Court, therefore, they would pray that the writ

petitions may be disposed off. It has been further submitted that

whether a person is workman or not is the matter which shall be

examined to determine the issue on the basis of nature of job

performed, duties, responsibilities and other relevant materials

which can be decided by the learned Labour Court by making

the same as preliminary issue. To substantiate their submission,

they would refer to the judgment of the Hon'ble Supreme Court

in case of Triveni Engg. and Industries Ltd. v. Jaswant Singh

{(2010) 9 SCC 151} and judgment of the Hon'ble High Court of

Bombay in case of Chandrashekhar Chintaman Vidya vs.

National Organic Chemical Industries ltd {2010 SCC Online

Bom 287} and would pray for direction to the learned Labour

Court to decide the matters expeditiously.

8. Learned Senior Advocate for the CSPDCL would submit that the

provisions of the Chhattisgarh Industrial Relations Act, 1960 are Neutral Citation 2022:CGHC:19005

not applicable in the case of petitioners as the services of the

petitioners are governed by the Chhattisgarh Civil Services

(Classification, Control and Appeal) Rules, 1966 as well as

Chhattisgarh Civil Services (Conduct) Rules, 1965. The

Competent Authority of the erstwhile Madhya Pradesh Electricity

Board (MPEB) has issued notification on 23.03.1970 as per the

provisions under Section 79(C) of the Electricity Supply Act,

1956 by which some amendments have been adopted wherein

the words "Governor, State Government, Government

Employees" have been replaced by words " Board, Board

Services, Board Services" in the said rules of 1966. Therefore,

the learned Labour Court has no jurisdiction to entertain over the

issue involved in the present case. He would further submit that

sufficient opportunity of hearing was given to the petitioners

thereafter, the penalty has been imposed upon the petitioners

which is commensurate with the gravity of the misconduct and in

accordance with the Rules of 1966 adopted by the CSPDCL, as

such there is no perversity or malafide in the order passed by the

Disciplinary Authority and Appellate Authority. To substantiate his

submission he would rely upon the judgment of the Hon'ble

Supreme Court in case of United Bank of India vs. Biswanath

Bhattacharejee {(2022) 13 SCC 329} and would pray for

dismissal of the writ petitions.

9. I have heard learned counsel for the parties and perused the

record.

10. From the submission made by the learned counsel for the Neutral Citation 2022:CGHC:19005

parties, the point emerged for determination by this Court is

whether the Chhattisgarh Employment Standing Orders Act is

applicable to employees of the respondent company though the

respondent company has adopted Chhattisgarh Civil Services

(Classification, Control and Appeal) Rules?

11. To examine the issue raised in these petitions, it is expedient for

this Court to extract certain provisions of the Standing Orders

Act, 1961 and the Chhattisgarh Industrial Relations Act, 1960,

which reads as under:-

Section 2 of the Madhya Pradesh / Chhattisgarh Industrial Employment (Standing Orders) Act, 1961 provides applicability of the Act which reads as under:-

Application of the Act. (1) This Act shall apply to :-

(a) every undertaking wherein the number of employees on any day during the twelve months preceding or on the day this Act comes into force or on any day thereafter was or is more than twenty; and

(b) such other class or classes of undertakings as the State Government may, from time to time, by notification, specify in this behalf :[Provided that it shall not apply to an undertaking carried on by or under the authority of the Central Government or railway administration or a mine or an oilfield.] [Inserted by M.P. Act No. 5 of 1962.]

(2)Nothing in this Act shall apply to the employees in an undertaking to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Services Regulations or any other rules or regulations that may be notified in this behalf by the State Government in the Official Gazette apply.

The Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961 (No. 26 of 1961), the State Government hereby notifies that the said Act shall not apply to employees in any undertaking to whom the following rules or regulation apply -

1. Civilians Defence Services (Classification, Control and Appeals) Rules;

Neutral Citation 2022:CGHC:19005

2. The Indian Railway Establishment Code; and

3. any other rules or regulations which have already been notified by the Central Government under section 13-B of the Industrial Employment (Standing Orders) Act, 1946 (XX of 1946).

The Chhattisgarh Industrial Relations Act, 1960:-

1. Short title, extent and commencement.-(1) This Act may

be called the Chhattisgarh Industrial Relations Act, 1960.

(2) It extends to the whole of Chhattisgarh.

(3) This section and section 112 shall come into force at once and the State Government may, by notification, bring all or any of the remaining provisions of this Act into force in respect of-

(a) any or all industries; or

(b) undertakings in any industry wherein the number of employees, on any day, during twelve months preceding or on the date of the notification or on any day thereafter, was or is more than such number as may be specified in, such notification on such date as may be specified therein.

[(4) The State Government may, by notification, direct that the provisions of this Act shall cease to apply to such industry in such area and from such date as may be specified in the notification.]

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-

1. a person employed by a contractor to do any work for him in the execution of a contract with an employer within the meaning of sub- clause (e) of clause 14; and

2. an apprentice other than an apprentice under sub- clause (v); but does not include any person-

1. who subject to the Army Act, 1950 (XLVI of 1950), or the Air Force Act, 1950 (XLV of 1950), or Navy Discipline Act, 1957 (62 of 1957); or

2. who is employed in the Police Service or as an Officer or other employee of a prison;

3. who is employed mainly in a managerial capacity; or [(iv) Neutral Citation 2022:CGHC:19005

who being employed in a supervisory capacity draws wages exceeding one thousand and six hundred rupees per mensem; or]

12. (v) who is a craftsman or an apprentice working under a scheme approved by the State Government on the condition that such craftsman or apprentice shall not be deemed to be an employee under this Act;

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.

(17) "industrial dispute" means any dispute or difference between an employer and employee or between employers and employees or between employees and employees and which is connected with any industrial matter (18) "industrial matter" means any matter relating to employment, work, wages, hours of work, privileges, rights or duties of employers or employee, or the mode, terms and conditions of employment or refusal to employ and includes-

(i) all matters pertaining to-

(a) the relationship between employers and employees;

(b) the dismissal or non-employment of any person;

(d) any right or claim under or in respect of or concerning a registered agreement or a submission, settlement or award made under this Act; and

(ii) all questions of what is fair and right in relation to any such matter having regard to the interest of the person immediately concerned and of the community as a whole;

(19) "industry" means-

a) any business, trade, manufacture, undertaking or calling of ( employers;

Neutral Citation 2022:CGHC:19005

(b) any calling, service, employment, handicraft, or industrial oc- cupation or a vocation of employees; and includes-

(i) agriculture and agricultural operations;

(ii) any branch of an industry or group of industries which the State Government may, by notification, declare to be an industry for the purposes of this Act;

13. Accordingly, as per Section 1 of the Act of 1960 the State

Government in exercise of power has issued notification on

31.12.1960 including the Power Generation, Transmission and

Distribution industry in the list of industries and applied

provisions of Chhattisgarh Industrial Relations Act, as such, it is

not in dispute that the Chhattisgarh State Power Distribution

Company is Scheduled industry as defined under the

Chhattisgarh Industrial Relation Act., 1960. The respondent

industry falls within item 3 of the Schedule as notified by the

State of Chhattisgarh and the petitioner i s an employee as

defined in Section 2(13) of the Chhattisgarh Industrial Relation

Act. There is complete mechanism which has been prescribed

under the Act of 1960 for redressing the grievance of the

employees. Section 61 of the Act provides power of Labour

Court and Section 62 provides commencement of proceeding in

respect of dispute falling under Clause (a) of paragraph A Sub

Section 1 of Section 61 within two years from the date of the

dispute. From perusal of the pleadings it is quite vivid that the

petitioners have filed petitions challenging the orders imposing

punishment which is within the jurisdiction of Labour Court to Neutral Citation 2022:CGHC:19005

decide the same.

14. Learned Senior Counsel for the respondents vehemently argued

that petitioners are not governed by the provisions of

Chhattisgarh Industrial Relations Act as they do not fall within

the ambit of employees under Section 2(13) of the Act of 1960. It

has been contended that services of the petitioners are being

governed by Chhattisgarh Civil Services (Classification, Control

and Appeal) Rules, 1966 as well as Chhattisgarh Civil Services

(Conduct) Rules, 1965. He would further submit that the

petitioners are not governed by the Act of 1961. Therefore, the

submission made by the learned counsel for the petitioners that

they are employees and the Labour Court has jurisdiction to

decide the issue deserves to be rejected. It has also been

submitted that while adopting the CCA(CCS) Rules as per the

power conferred on the erstwhile Board certain amendments

have been made in the CCA(CCS) Rules. He would further

submit that the erstwhile MPEB while issuing notification on

19.10.1963 regarding applicability of the Standing Orders to the

employees who are working as daily wage employees and work

charged establishment. The said notification has been adopted

by the respondent company on 20.09.2001, as such, the

Standing Orders Act is not applicable.

15. From bare perusal of this Section, it is necessary that if

exemption from application of the Act of 1961 is to be granted

then the State Government should have issued exemption

notification. The submission made by the learned Senior counsel Neutral Citation 2022:CGHC:19005

for the respondent that erstwhile MPEB issued notification

applying the Standing Orders for daily wage employees and

work charged employees no notification for employees of regular

establishment has been issued, therefore, the Standing Orders

Act, 1961 is not applicable is misconceived and deserves to be

rejected. The Section clearly provides that if the State indents to

exclude the industry from application of Standing Orders Act, it

should issue the notification and admittedly no notification to this

effect has been issued by the State Government. Thus the

Chhattisgarh Employment Standing Orders Act is applicable to

the respondents. This issue is no more res integra as it has

come up for consideration before the Hon'ble Supreme Court in

case of M.P. Vidyut Karamchari Sangh vs. M.P. Electricity

Board {(2004) 9 SCC 755} held as under:-

29. Keeping in view of the fact that the State Government has the exclusive power to enact a law regulating industrial relations and resolution of labour disputes, as has been held by this Court in Christian Medical College Hospital Employees' Union and Another Vs. Christian Medical College Vellore Association and Others [(1987) 4 SCC 691], the same shall prevail over the regulations framed by the Board in exercise of its power under Section 79 (c).

30.This brings us to the question as regard the effect of the 1961 Act. In terms of Section 2, the 1961 Act, applies to every undertaking wherein the number of employees on any day during the twelve months preceding or on the day the said Act came into force or any day thereafter was or is more than twenty and such other class or classes of undertakings as the State Government may, from time to time, by notification, specify in this behalf. The undertaking of the Board indisputably was in existence in 1961. Per se, therefore, the provisions of the 1961 Act shall apply to the undertakings of the Board. Sub-Section (2) of Section 2 of the 1961 Act makes an exception to the applicability of the Act stating that nothing therein shall apply to the employees of an undertaking to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Neutral Citation 2022:CGHC:19005

Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations or any other rules or regulations that may be notified in this behalf the State Government in the official gazette apply. For excluding the operation of the 1961 Act, it is imperative that an appropriate notification in terms of Section 2(2) of the 1961 Act is issued.

31.The Board adopted Fundamental and Supplementary Rules which per se were not applicable to the employees of their undertaking. They were adopted by the Board. The provisions of Fundamental and Supplementary Rules to the extent it was made applicable, having regard to the provisions contained in Section 79 (c) would, thus, be deemed to be the regulations governing the terms and conditions of the employees of the Board. The requisite notification under Section 2(2) of the 1966 Act was, thus, required to be issued by the State Government.

32. It is not in dispute that the State Government has not issued any notification in terms of Section 2(2) of the 1961 Act and in that view of the matter the provisions thereof shall apply to the employees of the State. The 1961 Act is a special law whereas the regulations framed by the Board under Section 79 (c) are general provisions. The maxim 'generalia specialibus non derogant' would, thus, be applicable in this case.

16. Again the Hon'ble Supreme Court in case of Madhya Pradesh

State Electricity Board and Another vs. S.K. Yadav {(2009) 2

SCC 50} held as under:-

10.The terms and conditions of the service are governed under the M.P. Electricity Board (General Service) Regulations, 1952 framed under the Electricity (Supply) Act, 1948. It is also not in dispute that the Standing Order framed in terms of the provisions of the Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961 is applicable.

11. Respondent filed an application before the Labour Court in terms of Sub-section (3) of Section 31 of the Act, which reads as under:

"31. Notice of change - (1) *** *** (2) *** *** (3) A representative of employees or an employee desiring a change in respect of an industrial matter specified in Schedule II or any other matter arising out of such change may make an application to Labour Court in such manner as may be prescribed."

12. The Labour Court while adjudicating on such a complaint is entitled to determine the question relevant to the dispute in Neutral Citation 2022:CGHC:19005

terms of Section 61(1) (A)(a) and 61(2) of the Act, which reads as under:

"61. Powers of Labour Court - (1) In addition to powers conferred under other provisions of this Act, a Labour Court shall have power to - (A) decide -

(a) dispute regarding which application has been made to it under sub-section (3) of Section 31 of the Act;

*** *** *** (2) For the purposes of deciding a dispute under paragraphs (A) and (B) of sub-section (1) it shall be lawful for the Labour Court to determine questions of fact relevant to the dispute."

It is in exercise of that power, the learned Labour Court invoked clause (b) of paragraph 8 of the Standing Order, which reads as under:

"(b) An employee who desires to obtain leave of absence shall apply to the Manager or the Officer authorized by him. It shall be duty of the Manager or the officer to pass orders thereon on two days in a week fixed for the purpose; provided that, if the leave asked for is of an urgent nature, i.e., commences on the date of the application or within three days thereof, orders for the grant or refusal of leave shall be communicated without delay."

We may also notice clause (e) of the said paragraph, which is as under:

"(e) An employee remaining absent beyond the period of leave originally granted or subsequently extended shall be liable to loose his lien on his post and shall be deemed to have left the services from the date of his unauthorized absence unless he returns within ten days of the expiry of the sanctioned leave and or explains to the satisfaction of the Manager or the officer authorized by him, his inability to resume immediately on the expiry of his leave. An employee who so looses his lien but reports for duty within 30 days of the expiry of his leave shall be kept as a badli if he so desires and his name shall be entered in the badli register."

Inter alia on the aforementioned premise as also on the ground that ordinarily only a fine can be imposed for being unauthorisedly absent, it was held that the charges against the respondent cannot be said to have been proved. ...

14. The Standing Order framed in terms of Madhya Neutral Citation 2022:CGHC:19005

Pradesh Industrial Employment (Standing Orders) Act, 1961 has the force of a statute. Paragraph 12 of the Standing Order provides for disciplinary action on the ground of commission of misconduct on the part of an employee. Clause (4) of Paragraph 12 thereof provides that no punishment shall be imposed on an employee unless proved guilty of misconduct in an enquiry conducted in the manner specified therein. Punishments which can be imposed upon a delinquent employee have been provided in Clause (3) of Paragraph 12 of the Standing Order. The Labour Court opined that the punishment imposed upon the respondent had not been prescribed in the Standing Order.

17.The full Bench of Madhya Pradesh High Court in case of

Superintending Engineer, P.W.D. vs Dev Prakash Shrivas

and others {(1999) IILLJ663MP } has held in paragraph 4 as

under:-

4. The State of M.P. promulgated M.P. Industrial Employment (Standing Orders) Act, 1961 (for short the Act of 1961).

Section 2(2) of the Act of 1961 lays down the application of the Act as to whom the Act shall apply and to whom it does not. Section 2 of the Act of 1961 reads as under:

2. Application of the Act -- (1) This Act shall apply to --

(a) every undertaking wherein the number of employees on any day during the twelve months preceding or on the day this Act comes into force or on any day thereafter was or is more than twenty; and

(b) such other class or classes of undertaking as the State Government may, from time to time, by notification specify in this behalf:

Provided that it shall not apply to an undertaking carried on by or under the authority of the Central Government or railway administration or a mine or an oil field.

(2) Nothing in this Act shall apply to the employees in an undertaking to whom the Fundamental and Supplementary Rules.

Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Services Regulations or any other rules or regulations that may be notified in this behalf by the State Government in Neutral Citation 2022:CGHC:19005

the Official Gazette apply.

Sub-section (2) of Section 2 is an exception to Section 2(1) of the Act and it says that nothing in this Act shall apply to the employees in an undertaking to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services Regulations apply or any other rule or regulations that may be notified in this behalf by the State Government in the Official Gazette apply. By virtue of Sub-section (2) of Section 2, exception has been carved out that undertaking to whom aforesaid Rules apply to their service conditions then provision of this Act and Rules framed thereunder shall not. apply. The second part further lays down that if Government wants that provision of this Act should not apply to other department or undertaking of Government, then it can further so notify by issuing necessary notification. So long as such a notification is not issued in this behalf by the State in the Official Gazette, till that time only those employees to whom the aforesaid rules govern will be exempted from the provisions of this Act. Under the Act, 1961 Standing Orders were also framed. They are known as M.P. Industrial Employment (Standing Orders) Rules, 1963 (for short the Rules of 1963) Rule 7 talks about framing of Standing Orders. Rule 7 reads as under:

"7. Framing of Standing Orders - Subject to the provisions of Section 6 of the Act, the Standard Standing Orders for all undertakings to which the Act applies shall be those set out in the Annexure."

The Annexure appended to these Rules of 1963 has been framed known as Standard Standing Orders for All the Undertakings in the State; Clause 2 of the Standard Standing Orders which is relevant for our purposes reads as under:

"2. Classification of Employees Employees shall be classified as (i) permanent (ii) permanent seasonal (iii) 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 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:

(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 the 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 Neutral Citation 2022:CGHC:19005

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."

There is no gainsaying that the present Department is an undertaking of the State as defined in the definition under Section 2(33) of the M.P. Industrial Relations Act, 1960. 'Undertaking' has been defined as under:

"undertaking" means a concern in any industry. 'Industry' has been defined in Section 2(19) of the Act of 1960 as under:

"Industry" means -- (a) any business, trade, manufacture, undertaking or calling of employers;

(b) any calling, service, employment, handicraft, or industrial occupation or a vocation of employees; and includes --

(i) Agriculture and agricultural operations;

(ii) any branch of an industry or group of industries which the State Government may, by notification, declare to be an industry for the purposes of this Act.

On a reading of these provisions and the ratio laid down in the case of Bangalore Water Supply & Sewerage Board v. A Rajappa (1978-I-LLJ-349) (SC) there in 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(1) 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 condition that he has put in six months' satisfactory service against a clear vacancy. Neutral Citation 2022:CGHC:19005

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.

5. In the scheme of the Rules, if we go back to Sub-section (2) of Section 2 of the Act of 1961, question is whether the present Department is governed by any service rules, as notified under Sub-section (2) of Section 2 or not. Learned Counsel for the State has not been able to point out whether the Rules mentioned in Sub-section (2) of Section 2 of the Act govern the present undertaking or not nor has been able to bring to our notice any exemption notification issued under this Act. Since the present Department has not been exempted by issuing a notification in accordance with Sub- section (2) of Section 2 of the Act of 1961, the Act of 1961, read with Rules of 1963, the Standard Standing Orders shall govern the Department.

18. In view of above stated factual and legal position and also

considering the fact that the State of Chhattisgarh has not issued

any notification to exempt applicability of Standing Orders Act,

1961, I am of the view that Standing Orders Act,1961 is

applicable mutatis mutandis in the respondent industry. Thus,

the submission made by the learned Senior Counsel that since

they have adopted CCA(CCS) Rule, 1966 the Standing Orders

Act, 1961 is not applicable deserve to be rejected, and

accordingly the same are rejected.

19. As such, the petitioners being employees, the respondent being

scheduled industry and the Chhattisgarh Industrial Relations Act

provides complete mechanism for resolving the grievances of

the employees, therefore, the petitioners have efficacious

alternative remedy of filing an application before the Labour

Court, which they have already exhausted and pending Neutral Citation 2022:CGHC:19005

consideration as such the writ petitions are not maintainable.

20. The petitioners have contended that the inquiry has been

conducted in violation of principle of natural justice and fair play

whereas the respondents have filed their return contending that

the petitioners have been given proper opportunity of hearing in

the inquiry which is disputed fact which cannot be adjudicated by

this Court while hearing the writ petition.

21. The question with regard to maintainability of the writ petitions

under the Labour Law where disputed facts are involved has

come up for consideration before the Hon'ble Supreme Court in

case of Hindustan Steel Works Construction Ltd. And

Another vs. Hindustan Steel Works Construction Ltd.

Employees Union {2005 6 SCC 725}, wherein Hon'ble

Supreme Court has held in paragraph 8, which reads as under:-

In UP State Bridge Corporation Ltd and Ors v. U.P.Rajya Setu Nigam S. Karamchari Sangh (2004 (4) SCC 268), it was held that when the dispute relates to enforcement of a right or obligation under the statute and specific remedy is, therefore, provided under the statute, the High Court should not deviate from the general view and interfere under Article 226 except when a very strong case is made out for making a departure. The person who insists upon such remedy can avail of the process as provided under the statute. To same effect are the decisions in Premier Automobiles Ltd. v. Kamalkar Shantarum Wadke 1976 (1) SCC 496), Rajasthan SRTCv. Krishna Kant (1995 (5) SCC

75), Chandrakant Tukaram Nikam v. Municipal Corporation of Ahmedabad and Anr. (2002)(2) SCC 542) and in Scooters India and Ors. v. Vijai V. Eldred (1998 (6) SCC

549).Therefore, the present writ petition is not maintainable in veiw of alternative statutory remedy available under the Chhattisgrarh Industrial Relation Act, 1960 and on the count disputed facts are involved which can be very well ascertained by the learned Labour Court after appreciating the evidence, material on record.

22. Learned Senior counsel of the respondents would submit further Neutral Citation 2022:CGHC:19005

that the order of imposing punishment has been passed after

thorough enquiry and materials on record which cannot be

interfered by this Court as this Court is not appellate authority to

Disciplinary Authority. This submission at this juncture does not

deserve to be considered as this Court has not examined the

merits of the allegation or misconduct or the proportionality of

the punishment imposed upon the petitioners. It is for the Labour

Court who has already seized up with the matters to decide in

accordance with law and materials placed before it.

23. In view of the above discussions, it is held that in view of

alternate efficacious remedy available under the Chhattisgarh