I N T H E H I G H C O U R T O F C H H A T T I S G A R H M A T B I L A S P U R X f v W ‘ P - N O - w / z o m / P e t i t i o n e r L 9/ / . S E C R E T A R Y , K r i s h i T h r o u g h U p a j - Y o g e s h M a n d i S a m i t i , A g r a w a l K h a i r a g a r h S / o S . S . A g r a w a l , a g e d a b o u t 4 3 y e a r s , I t s S e c r e t a r y , P r i n c i p a l E x e c u t i v e O f f i c e r V E R S U S P r e s i d i n g O f f i c e r , :§ 1 . L a b o u r C o u r t ( U n d e r I . D . A c t ) R a j n a n d g a o n , C h h a t t i s g a r h . P r e s i d e n t K r i s h i U p a j M a n d i K a r m a c h a r i S a n g h , B r a n c h K h a i r a g a r h , D i s t t . R a j n a n d g a o n ( C . G . ) D e p u t y S e c r e t a r y , M . P . S t a t e K r i e h i V i p n a n B o a r d , ( N o w C . G . S t a t e K r i s h i V i p n a n B o a r d ) , N e a r P r a b h a f T a l k i e s , R a i p u r ‘ ( C . G . ) B h a r s a d h a k O f f i c e r , K r i s h i U p a j M a n d i S a m i t i , K h a i r a g a r h , R a j n a n d g a o n ( C . G . ) M a n o j S o n i , S / o L a t e ‘ S h r i B . L . S o n i , / A g e d a b o u t 4 3 y e a r s , R / o S u n a r p a r a , K h a i r a g a r h , D i s t t . R a j n a n d g a o n ( C . G . ) / R e s g o n d e n t s R a v i N a m d e o S / o S h r a w a n K u m a r N a m d e o a g e d a b o u t 3 5 y e a r s , R / o I t w a r i B a z a r , K h a i r a g a r h , D i s t t , R a j n a n d g a o n G ' : G . ) . ' 9 w W R I T P E T I T I O N U N D E R A R T I C L E S 2 2 6 / 2 ? O F T H E C O N S T I T U T I O N O F I N D I A M o h d . K a d i r Q u r e s h i , S / o M o h d . Z a h e e r Q u r e s h i , a g e d a b o u t 4 3 y e a r s , R / o T h a k u r p a r a , K h a i r a g a r h , D i s t t . R a j n a n d g a o n \ ( C . G . ) . -^ HIGH COURT OF CHHATTISGARH AT BILASPUR ( Y SINGLEBENCH : HON'BLE SHRI SATISH K. AGNIHOTRI, J. Petitioner Respondents Petitipner Respondents Petiti'pner Respondents WRITPETITION N0.1404 OF 2003 versus Secretary, Krishi Upaj Mandi Samiti, Khairagarh Presiding Officer, Labour Court (Under I.D. Act), Rajnandgaon and others WRIT PETITION N0.1403 OF 2003 versus Secretary, Krishi Upaj Mandi Samiti, Khairagarh Presiding Officer, Labour Court (Under I.D. Act), Rajnandgaon and others WRIT PETITION N0.1379 OF 2003 versus Secretary, Krishi Upaj Mandi Samiti, Khairagarh Presiding Officer, Labour Court (Under I.D. Act), Rajnandgaon and others .-2-- WRIT PETITION N0.1402 OF 2003 Petitioner versus Respondents Secretary, Krishi Upaj Mandi Samiti, Khairagarh Presiding Officer, Labour Court (Under I.D. Act), Rajnandgaon and others Present : Mr. Rajnish Singh Baghel, counsel for the petitioner. Mr. Manindra Shrivastava, Senior Advocate with Mr. Amit Verma, counsel for respondent No.2. Mr. Sameer Behar, counsel for respondentNo.3. Mr. Parag Kotecha, counsel for the caveator. ORAL ORDER (Passed on 27al ofJuly, 2006) The present writ petitions, being Writ Petitions No. 1404/2003, 1403/2003, 1379/2003 and 1402/2003, involve common question oflaw as to whether the impugned awards dated 24-2-2003 passed in Cases No.236/I.D.AcV97, 235//I.D.Act/Reterence/97, 237/I.D.Act/97/Reference and 233/I.D.Act/Reference/97 respectively by the Labour Court suffer from patent illegality. Thus, these petitions are being disposed ofby this common order. 2. In Writ Petition No. 1404/2003, respondents No.5 and 6 were appointed in the year 1991 as L.D.C. In Writ Petition No. 1403/2003, respondents No.5, 6 and 7 were appointed as Assistant Sub-Inspectors on 8- -3 a' t) 5-1992, 5-8-1991 and 2-12-1991 respectively. In Writ Petition No.1379/2003, respondents No.5 and 6 were appointed on the posts ofPeon in the year 1991 and in Writ Petition No.l402/2003, respondent No.5 was appointed as Assistant Sub-Inspector on 5-8-1991. The question of law involved herein lis whether the above stated private respondents, who are continuing on the posts of Peon/L.D.C./Assistant Sub-Inspector for more than 6 months, are entitled to be classified as permanent under the Standard Standing Orders annexure to the M.P./C.G. Industrial Employment (Standing Orders) Rules, 1963 (henceforth 'the Rules, 1963'). 3. Leamed counsel for the petitioner impugns the awards on the common grounds, firstly that the private respondents had approached High Court of Judicature at Jabalpur seeking for the same relief of regularization by way of filing writ petitions, being Writ Petition No.503/2000 and Writ Petition No.883/1994. The High Court ofJudicature at Jabalpur disposed of the vvrit petitions with a direction to make representations. The petitioner has not produced a copy ofthe order passed by the High Court ofJudicature at Jabalpur, whereby representations were directed to be made to the authorities. It is not known as to whether cases were decided on merit or disposed of with a direction. Leamed counsel for the petitioner relies on decision ofthe Supreme Court in Pondicherr^ Khadi & Villaee hidustries Board vs. P. Kulothanean and another, reported in (2004) 1 SCC 68 in support of his contention that the principle of res judicata operates in industrial disputes also. In the cases on hand, there is no question of ^. ^ Ipiir"^ applying principle of resjudicata to the facts ofthe cases. The petitioner has not produced any material to prove that the present disputes have been dealt with in the eariier proceedings before the High Court of Judicature at Jabalpur in any ofthe writ petitions as stated above. Admitted case of both the parties is that the High Court of Judicature at Jabalpur has disposed of the petitions with a direction to make representations before the authorities. Ifthe cases were not decided on merit and the same were disposed ofwith a direction to make representations, principle of res judicata vvill not be applicable. Contention of leamed counsel for the petitioner is bereft of relevant materials. That does not amount to disposal of the disputes on merits, vvhich create resjudicata in the present disputes. The petitioner has failed to produce any material in support ofabove contention and as such the same deser^es to be rejected. 4. The second challenge to the impugned awards is that the provisions of the M.P./C.G. Industrial Employment (Standing Orders) Act, 1961 (henceforth 'the Act, 1961') are not applicable. Section 2 ofthe Act, 1961 provides tor application ofthe Act, as quoted below :- S_2: "AppUcationoftheAct.-(l)ThisAct shall apply to (a) every undertaking wherein the number of employees on any day during the tw'elve 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, specifv in this behalf : -sr-- Provided that it shall not apply to an undertaking carried on by or under the authority of the Central Govemment or railway administration or a mine or an oilfield. (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 mles or regulations that may be notified in this behalf by the State Govemment in the Official Gazette apply." 5. The petitioner has not produced any document or any material to show that the provisions ofthe Act, 1961 are not applicable. The Labour Court, after having considered contention of both the parties, has come to the categorical conclusion that the provisions of the Act, 1961 and the Standard Standing Orders under the Rules, 1963 are applicable to the case. The petitioner Krishi Upaj Mandi Samiti, Khairagarh admittedly is not performing a sovereign function of the State Govemment. Function of the Mandi Samiti is commercial and profit oriented. It is settled position of law that an undertaking/department involved in commercial activities with profit orientation cannot be held that the same is performing sovereign ftinction of the State Govemment and is not an industry. Leamed counsel for the petitioner has not produced any material which goes to show that the petitioner was involved in sovereign function ofthe State Govemment not in commercial activities. Thus, the provisions of Industrial Laws are applicable to the disputes involved in the present cases. _-— 6. Thirdly, the private respondents were not appointed in accordance with mles and bylaws as framed under the M.P./C.G. Krishi Upaj Mandi Adhmiyam, 1972. Leamed counsel for the petitioner further relies on decision of the Supreme Court in Ranee Forest Officer vs. S.T. Hadunani, reported in (2002) 3 SCC 25 to the effect that the burden to prove that the private respondents - employees have worked for more than 6 months is on the private respondents - employees and no inference can be drawn on the basis ofmere statement made by the employees/applicants. 7. It was further contended that in view of decision of the Supreme Court in Secretary, State of Kamataka and others vs. Umadevi C3) and others, reported in C2006) 4 SCC 1, the appointment ofthe private respondents - employees vvere made not in accordance with law, as such they have no right to be either regularised or to be declared as permanent. 8. Mr. Manindra Shrivastava, leamed Senior Advocate with Mr. Aniit Verma, leamed counsel, appearing for the private respondents, on the contrar)'- submits that there is no infirmity or illegality in the impugned awards. The Labour Court has considered facts ofthe cases and has come to the categorical conclusion that the provisions of the Act, 1961 and the Standard Standing Orders under the Rules, 1963 are applicable to the case. With regard to applicability ofthe Rules, 1963, leamed counsel submits that since the present dispute is govemed under the provisions of Industrial Laws, the Rules, 1963 are applicable, as the Industrial Laws are beneficial piece of legislation. -7 9. I have heard leamed counsel for the parties and have gone through the records appended to the petition as well as the retum. It is evident that the Labour Court has recorded its finding clearly after considering contentions ofthe parties that the provisions ofthe Act, 1961 and Standard Standing Orders under the Rules, 1963 are applicable to the dispute in question. Clause 2 ofthe Standard Standing Orders provides for classification of the employees who have completed 6 months satisfactor>' service in a clear vacancy. In the instant case, all the private respondents, according to deposition of the employer, Secretaiy, Krishi Upaj Mandi Samiti, Khairagarh, have completed regular service for more than 6 years and the private respondents are working against the vacant posts satisfactorily. Relying on the deposition ofthe Secretary, Krishi Upaj Mandi Samiti, Khairagarh, which stands unrebutted, the Labour Court has come to the conclusion that the requirement of the Clause 2(i) of the Standard Standing Orders for classifying the private respondents as pemianent are satisfied. The Labour Court has not only recorded finding ofworking ofthe private respondents - employees for more than 6 years on the basis of self same statement ofthe employees without support ofany document, but also on the basis of deposltion of the Secretary, Krishi Upaj Mandi Samiti, Khairagarh that the private resppndents - employees have worked for more than 6 years. The requirement to attract provisions of Clause 2 of the Standard Standing Orders is 6 months satisfactoty service tn a clear vacancy to classify the employee as permanent employee. In the present cases, the -9— above requirement is cleariy satisfied on the basis of deposition of the Secretaiy, Krishi Upaj Mandi Samiti, Khairagarh. 10. Reliance of learned counsel for the petitioner in the case of ^ Secretary, State of Karnataka and others vs. Umadevi (3) and others (Supra) is not applicable to the facts of the present cases. In the present cases, the private respondents were neither removed nor discontinued from sei-vices. The question of their appointment vvas not in question and their classification as pei-manent is in accordance with the provisions of law, i.e., Clause 2 of the Standard Standing Orders. Hence, it cannot be held that the impugned avvards passed by the Labour Court are not as per Constitutional scheme or not in accordance with law, and suffer from any illegality, penrersity. ^ 11. For the atbresaid reasons, there is no illegality, infimiitv' or irregularity found in the awards impugned herein, which wan'aiit Interterence by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India. Accordingly, all the vvrit petitions are dismissed. No order as to costs. 12. A copy of this order be placed in the record of the three connected writ petitions. Sd/- Satish K. Agnihotri Judge Gopal