Madhya Pradesh High Court
Mahesh Pratap Singh (Dead) Through Lrs. ... vs The State Of Madhya Pradesh on 1 April, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2025:MPHC-JBP:16744
1 W.P. No.21973/2017
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 1st OF APRIL, 2025
WRIT PETITION No. 21973 of 2017
MAHESH PRATAP SINGH (DEAD) THROUGH LR. SMT. GEETA SINGH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
............................................................................................................................................
Appearance:
Shri Ram Suphal Verma - Advocate for the petitioner.
Ms. Disha Rohitas - Advocate for respondents No.4 to 6.
............................................................................................................................................
ORDER
This petition under Article 226 of Constitution of India has been
filed assailing the Award dated 05/07/2007 passed by Labour Court,
Rewa, subsequent order dated 11/07/2008 passed in Appeal by the
Industrial Court Rewa and order dated 20/10/2010 passed by Additional
Secretary (Personnel), M.P. State Electricity Board, Jabalpur.
2. Initially the Writ Petition was filed by the employer but after his
demise, the same is being continued through his legal representative and
amendment to the aforesaid effect was carried out in view of the order
passed by this Court on 01/08/2024.
3. It is the case of the petitioner that he was an employee in the
respondent No.1 Department along with 55 other persons. He was
transferred from Bansagar Project to Madhya Pradesh Electricity Board
Tones Jal Vidyut Pariyojna Sirmour. He was discharging his duties with
utmost devotion and sincerity along with other similarly situated
persons. His name reflects at Sr.No.14 in the list prepared by the Board.
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Initially, husband of the petitioner was removed from service in the year
1984, therefore his name was not included in the list of other similarly
situated employees whose names were considered for regularization.
The said termination order was put to challenge before the Labour Court
and the Labour Court vide Award dated 28/07/1989 passed in case
No.19/MPIR/88, set aside the termination order of the petitioner and
respondents were directed to reinstate the petitioner. Therefore, in
compliance of the said order, petitioner was reinstated in service. On
04/08/1995, a drive was initiated for absorption of employees in the
Department who were engaged up to 31/03/1993 against the available
vacancies, wherein it was provided that all employees presently borne
on NMR who have been appointed up to 31/03/1993 and those who
have rendered 180 days satisfactory service against the vacant post and
are E.F. holders were to be regularized. After reinstatement of the
petitioner, he has completed 6 years of service against the vacant post
but his name was not considered for regularization. Therefore, he made
a representation to the Authorities on 25/06/1995. It was intimated to the
petitioner vide letter dated 27/07/1995 that against the Award passed by
the Labour Court, an Appeal is filed before the Industrial Court,
therefore, name of the petitioner could not be considered for
regularization.
4. The Award passed by the Labour Court was confirmed by the
Industrial Court vide order dated 17/04/1998 and the said order was
never challenged and has attained finality. Thereafter, petitioner sent a
legal notice through his counsel asking for regularization of his services
specifically mentioning the fact that juniors to the petitioner have been
regularized and allotted regular scale of pay and petitioner is
discriminated and is still continuing as a daily rated employee but no
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action was taken by the Authorities. Under compelling circumstances,
petitioner had filed an application under Sections 61 & 62 of M.P.
Industrial Relations Act, 1960 for his classification to the post of
Paricharak category 1st or 2nd or 3rd for classification permanent
employee as he is working against the vacant and sanctioned post and
juniors have been considered for regularization. The Labour Court vide
Award dated 10/06/2002 allowed the claim of the petitioner and directed
the respondents to regularize the services of thee petitioner on the post
of Grade-1, 2 or 3.
5. Against the said Award, an Appeal was preferred before Industrial
Court which stood dismissed on 24/03/2004. Thereafter, a Writ Petition
was filed before this Court being W.P. No.6312/2004 which was finally
disposed of along with another W.P. No.9755/2004 in analogous
hearing vide order dated 24/02/2005 and this Court has remanded the
matter back to the Labour Court for framing specific issue with respect
to availability of vacant post and the orders passed by the Labour Court
and Industrial Court were set aside. After remand of the matter, Labour
Court without application of mind has again framed four issues and
again decided the case of the petitioner and dismissed the claim vide
Award dated 05/07/2007. Again an Appeal was preferred before the
Industrial Court and the Award passed by Labour Court was affirmed
vide order dated 11/07/2008. The same is put to challenge by filing this
petition.
6. It is argued that employees similarly situated to the petitioner
have been considered for regularization. Petitioner is only getting
Rs.9,000/- per month and other similarly situated employees are getting
Rs.60,000/- per month. One junior to the petitioner namely, Kailash
Kumar Kushwaha who was engaged as a daily rated employee was
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regularized vide order dated 09/05/2000. The case of the petitioner
ought to have been considered for regularization at the relevant time. He
has further brought on record the document showing availability of post
of Grade-3 & 4 employees in the financial year 2001-02 but
surprisingly, the Authorities have held that petitioner is not found fit for
regularization in service. Thereafter, as the petitioner expired on
22/03/2021, the matter is being prosecuted further through his legal
representative. Learned counsel for the petitioner in support of his
arguments has relied upon the judgments passed by Hon'ble Supreme
Court in the case of State of Tamil Nadu and Ors. Vs. Nellai Cotton
Mills Ltd. And Ors. reported in (1990) 2 SCC 518, K. Thimmappa &
Ors. Vs. Chairman, Central Board of Directors, SBI and Anr.
Reported in AIR 2001 SC 467 and the order passed by the Division
Bench of High Court of Himanchal Pradesh, Shimla in the case of Purn
Chand Vs. State of HP & Ors decided on 01/10/2024 in CWPOA
No.7482 of 2020.
7. On notice being issued, a detailed reply has been filed by the
Authorities. They have taken initial objection with respect to delay in
approaching the Court. The Award passed by the Labour Court is dated
05/07/2007 and Industrial Court passed the order on 11/07/2008 and by
the Additional Secretary on 20/10/2010 and thereafter this petition has
been preferred in the year 2017 without there being any proper
explanation for delay in approaching the Court. It is contended that it
may be a case that the petitioner was prosecuting his grievances since
from very beginning but the fact remains that on earlier occasion, the
Award passed by the Labour Court and Industrial Court was set aside by
this Court by allowing the Writ Petition filed by the respondents being
W.P. No.6312/2004 vide order dated 24/02/2005 and the matter was
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remanded back to the Labour Court for fresh decision. Thereafter, again
the Labour Court has decided the matter. The explanation which has
been tendered for condoning the delay is not appropriate. It is mentioned
that due to paucity of funds, petitioner could not approach the Court but
that cannot be a just explanation as petitioner himself is a chronic
litigant fighting for his rights from the very beginning. Thus, it cannot
be said that due to paucity of funds, he has not challenged the order
passed by the Industrial Court in time. It is not the case that he is not
aware of the Award passed by the Industrial Court affirming the Award
passed by the Labour Court, therefore this petition should have been
dismissed on this ground alone. As far as merits are concerned, it is
contended that case of the petitioner has been scrutinized by the
Authorities and not found him fit for regularization, therefore his case
was not considered.
8. Heard learned counsel for the parties and perused the record.
9. Apart from the admitted position being passing of Award by
Labour Court on earlier occasion as well as Award passed by the
Industrial Court and thereafter the said Award being set aside by an
order passed in Writ Petition remanding the matter back to the Labour
Court for fresh decision. The Labour Court has again decided the matter
on 05/07/2007 and thereafter the Appeal preferred by the petitioner was
dismissed on 11/07/2008. Thereafter petitioner waited for long period of
9 years in challenging the said Award. The only explanation which was
given is that due to paucity of funds, petitioner could not approach the
Court.
10. The fact remains that this is not the first time petitioner is
agitating his claim. He is continuously fighting for his rights since the
very beginning i.e. he approached the Labour Court for the first time
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after termination of his service in the year 1989 and thereafter sought for
his regularization in service in the year 1995. It is not the case of the
petitioner that he is not aware of the Award passed by the Labour Court
and subsequent Appellate order passed by the Industrial Court but the
fact remains that the petitioner is a poor litigant getting only Rs.9,000/-
per month which is pointed out by him under the explanation given for
delay in approaching the Court, whereas similarly situated employees
were considered for regularization.
11. Under these circumstances, sufficient explanation is given by the
petitioner for the delay in approaching the Court. Accordingly, the
objection taken by the respondents regarding delay in filing the Writ
Petition is hereby rejected and the delay in approaching the Court is
hereby condoned.
12. As far as merits of the case are concerned, it is clear case of
discrimination with the petitioner. It is never disputed by the Authorities
that similarly situated employees like petitioner were considered for
regularization in service and their services were regularized. One junior
to the petitioner Kailash Kumar Kushwaha, who was engaged as daily
rated employee, was regularized vide order dated 09/05/2000. After
reinstatement of petitioner in service in pursuance to Award dated
28/07/1989 and subsequent thereto on completion of more than 6 years
of service in the Department, the case of the petitioner was not
considered for regularization and the other juniors to the petitioner were
considered and regularized.
13. The circular issued by the Madhya Pradesh Electricity Board
dated 04/01/1995 regarding absorption of employees who have been
appointed upto 31/03/1993 is important and the same reads as under:-
"MADHYA PRADESH ELECTRICITY BOARD
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***
Sub : Absorption of employees borne on NMR on
regular establishment.
---
The Board has decided to regularise the services of
all employees borne on NMR who have been engaged
upto 31.03.1993 and are EPF holders as "Unskilled
Labour" against the available vacancies in the
region/power station. In supersession of the circulars
issued in the past on regularisation of NMR employees,
fresh instructions are issued as detailed below:-
i) All employees presently borne. on NMR, who
have been engaged upto 31.3.93 and have
rendered atleast 180 days continuous
satisfactory service and are EPF holders, are to
be regularised against the available vacancies
of the region/power station as "Unskilled
Labour" in the pay scale of Rs.750-15-870-20-
950, subject to fulfilling the required criteria of
minimum educational qualification, i.e. VIIIth
class pass, maximum age limit and M.P.
Domicile. The regularisation should be strictly
on the basis of seniority and availability of
posts.
ii) The Regional/Power Station E.Ds/C.Es are
delegated powers for converting posts of
Attdt.Gr.II/ Attdt. Gr.III to that of Unskilled
Labour as per requirement restricted to the
available vacancies in the region.
iii) The panels are to be prepared at regional level
and it is to be ensured that all NMR persons
working in O&M, Testing, Civil, ST:RE, EHT-
C&M, Stores and other Sections etc. in the
geographical jurisdiction of the region,
excluding power stations/projects, should be
considered together in the order of length of
service by clubbing together all the available
vacancies in all the sections, subject to persons
fulfilling the required criteria as detailed
above. Similarly, panels are to be prepared at
power station/project level for the persons
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working on NMR in the concerned power
station/ project including those working in
Civil wing, subject to the availability of posts
in the concerned power station/ project.
iv) Appointment shall be subject to character and
antecedent verification by the police. However,
looking to the considerable time involved in
getting the reports from the police, it has been
decided that they may be given appointment on
regular establishment after obtaining an
affidavit from them as per the enclosed draft.
After obtaining affidavit and giving
appointment, the character and antecedent
verification may be got done by police
authorities expeditiously.
It is likely that some of the regions Power
Station may not be having adequate vacancies to absorb
all the eligible NMR employees in the regions/ power
stations. If the situation is so, the case of the remaining
eligible NMR employees as per seniority be referred to
the E.D. (O&M)/ ED(O&M :GEN), Jabalpur (as the
case may be), who shall arrange for their absorption in
the neighbouring regions/ power stations where
vacancy exists.
BY ORDER
Encl :- One
JOINT SECRETARY (P) I
M.P. ELECTRICITY BOARD"
14. If the aforesaid circular is seen, then it is clear that the sole
requirement for consideration of case for absorption in regular
establishment is working of 180 continuous days and the employee
being EPF holder and should fulfil the minimum requirement i.e. 8 th
class pass. Petitioner was fulfilling all the aforesaid requirements but
despite of the same, the Authorities have rejected the claim of the
petitioner. On earlier occasion, claim of the petitioner was considered
and allowed by the Labour Court which was also upheld by the
Industrial Court. However, when the matter travelled up to this Court in
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W.P. No.6312/2004, this Court has made specific observations as
under:-
"4- In view of the above discussion it is clear that
there is necessity of vacant post. For the purpose of
classification the Labour court has not addressed itself
to that question.
5- Shri Anil Khare has tried to attract the
attention on the pleadings of the parties and other
evidence which cannot be appreciated for the first time
in the writ petition.
6- Let the Labour Court frame issue as to
availability of the vacant post, if parties so desire, to
allow them to adduce evidence in that regard and
thereafter decide the matter afresh. The orders passed
by the Labour Court and the Industrial Court are set-
aside. Let fresh decision be rendered as far as possible
within six months. M.W.P. No.918/2004 also stands
disposed of."
15. The matter was remanded back for a particular issue but the
Labour Court while dealing with the case of the petitioner has again
framed four issues and re-decided the entire case rather only one issue
was required to be considered i.e. necessity of vacant post for
classification. Even otherwise, there is no explanation given by the
respondents that why the case of the petitioner was not considered for
regularization in service like other similarly situated employees. After
remand, the Labour Court has carved out a new definition to the
qualification of the petitioner by framing an issue as No.1 as " D;k
vkosnd f"kf{kr Jfed ds in ij LFkk;h oxhZd`r gksus o osrueku ikus dk
vf/kdkjh gS\". The same was never a requirement for absorption of
service of an employee borne on NMR.
16. Under these circumstances, the Award passed by the Labour
Court duly affirmed by the Industrial Court are per se illegal and hereby
set aside.
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17. As the original petitioner has expired and now the Writ Petition is
being prosecuted on behalf of his legal representatives, respondents are
hereby directed to re-consider the case of the petitioner's husband in
terms of the circular issued by the Madhya Pradesh State Electricity
Board dated 04/01/1995 (Annexure-P/6) for regularization of services of
petitioner's husband on the date when his junior was considered for
regularization way back in the year 2000 as document (Annexure-P/20)
as well as pleadings mentioned in paragraph 5.20 of the Writ Petition
clearly points out that junior to the petitioner namely Kailash Kumar
Kushwaha was regularized vide order dated 09/05/2000. The claim of
the petitioner is required to be considered by the Authorities in the light
of order passed on 09/05/2000.
18. The Authorities are directed to pass a self-contained speaking
order and communicate the outcome to the petitioner. If the petitioner
found entitled for regularization, then he will be entitled for notional
benefits regarding his regularization from the date when juniors to the
petitioner were regularized and accordingly, he will also be entitled for
consequential relief.
19. With aforesaid observations, petition stands allowed and
disposed of. No order as to costs.
(VISHAL MISHRA)
JUDGE
Shbhnkr
