For the fulfilment of Internal assessment in the the subject Labor Law

Case Comment on

PETITIONER V. RESPONDENT JABALPUR DEVELOPMENT AUTHORITY

VS
SHARAD SHRIVASTAVA
(2005) ILLJ 304 MP

Date of Judgment: 6 August, 2004

Names of the Judges Constituting the Bench: Justice S.P. Khare
Name(s) of the Judge Delivering the Judgment: Justice S.P. Khare
Name(s) of the Dissenting Judge, if any: None

FACTS:
The respondent was appointed as sub-engineer on daily wages in Jabalpur Development Authority
(JDA) on October 1, 1991 and has completed almost thirteen years in that capacity. It is also not
controverted that his work has been satisfactory. He submitted an application under Section 31(3) of
the M.P. Industrial Relations Act, 1960 stating therein that he was appointed in a "clear vacancy". He
claimed that he became a permanent employee as per Clause 2(i) and (vi) of the Standard Standing
Orders (SSOs) annexed to the M.P. Industrial Employment (Standing Orders) Rules, 1963 framed under
the M. P. Industrial Employment (Standing Orders) Act, 1961. The petitioner submitted its reply
denying that the appointment of the respondent was in "clear vacancy". It was stated that he was
appointed as a "daily rated casual employee" and not against any permanent vacancy. It was also
contended that the application under Section 31(3) of the Act of 1960 was not maintainable as Jabalpur
Development Authority is not an "industry" because it has been created under a statute and further it
does not fall within the description of the industries given in the Schedule appended to the notification
under Section 31(3) of the Act of 1960. It was also stated that the services of the employees of this
Authority are governed by the M. P Development Authority Services (Officers and Servants)
Recruitment Rules, 1987 framed under the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 and,
therefore, the application of the SSOs is excluded.

STATUTES INVOLVED:
1) The Industrial Disputes Act, 1947
2) The Industrial Employment (Standing Orders) Act, 1946

ISSUES IN NUMBERED PARAGRAPHS

(a) Whether the petitioner JDA is industry within the meaning of Section 2(19) of the M.P.
Industrial Relations Act, 1960,
(b) Whether the petitioner is covered by entry No. 16 in the Schedule to the notification under
Section 1(3) of the M.P. Industrial Relations Act, 1960,
(c) Whether the services of the petitioner are governed by the SSOs
(d) Whether he was appointed in clear vacancy and became a permanent employee.

ARGUMENTS ADVANCED BY THE PARTIES IN NUMBERED PARAGRAPHS:

THE ARGUMENT OF THE LEARNED COUNSEL FOR THE PETITIONER
JDA that it is not an industry as it has been created under a statute is too late in the day and is so feeble
that it was not even raised when the case of Bhopal Development Authority came before this Court.
That is Bhopal Development Authority v. Farzana, 2002-IV-LLJ (Suppl)-1476 (NOC) (MP).
THE ARGGUMENT OF THE LEARNED COUNSEL FOR THE RESPONDENT
The counsel has produced a copy of unreported judgment dated August 13, 1997 in JDA v. State of MP
M.P. No. 2615 of 1986 in which it has been held by Justice Dharmadhikari. that keeping in view the
Preamble and provisions of the Act of 1973 Jabalpur Development Authority is "industry".

BRIEF DESCRIPTION OF OTHER CASES REFERRED TO IN THE JUDGMENT:

Issue No.1(a)

(e)

N.L.C. Labour and Staff Union vs Chief General Manager, P and A (K), on 18
October, 2004
Bangalore Water-Supply & vs R. Rajappa & Others on 21 February, 1978
The Corporation Of The City Of Nagpur Vs. Its Employees
Agricultural Produce Market vs Shri Ashok Harikuni & Anr. Etc on 22 September,
2000
State of Gujarat & Ors vs Pwd Employees Union & Ors Etc on 9 July, 2013

(a)

Bharat Chand Chaturvedi vs State Of M.P. And Ors. on 10 August, 1992

(b)
(c)
(d)

U.P. State Electricity Board and vs Hari Shanker Jain and Ors on 28 August, 1978
Uptron India Limited vs Shammi Bhan & Anr on 6 February, 1998
Superintending Engineer, P.W.D. vs Dev Prakash Shrivas and Ors. on 9
December, 1998

(b)
(c)
(d)

Issue No.2-

Issue No.3-

Issue No.4(a) State of M.P. & Anr vs Ram Prakash Singh & Anr on 10 January, 2012
(b) N.S.K. Nayar and Others vs Union of India and Others on 12 December, 1991
(c) Indore Development Authority vs Indore Development Authority on 26 April, 2000

STATUS OF THE ABOVE CASES FOLLOWED/OVER-RULED, ETC.(a)

(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)

N.L.C. Labour And Staff Union Vs Chief General Manager, P And A (K), On 18 October, 2004
Bangalore Water-Supply & Vs R. Rajappa & Others On 21 February, 1978
The Corporation Of The City Ofnagpur Vs. Its Employees
U.P. State Electricity Board And Vs Hari Shanker Jain And Ors On 28 August, 1978
Uptron India Limited Vs Shammi Bhan & Anr On 6 February, 1998
State Of M.P. & Anr Vs Ram Prakash Singh & Anr On 10 January, 2012
Superintending Engineer, P.W.D. Vs Dev Prakash Shrivas And Ors. On 9 December, 1998
N.S.K. Nayar And Others Vs Union Of India And Others On 12 December, 1991
Agricultural Produce Market Vs Shri Ashok Harikuni & Anr. Etc On 22 September, 2000
State Of Gujarat & Ors Vs Pwd Employees Union & Ors Etc On 9 July, 2013
Indore Development Authority Vs Indore Development Authority On 26 April, 2000

All the above mentioned cases were followed for the purposes of this case and over-ruling none.

PRINCIPLES LAID DOWN IN NUMBERED PARAGRAPHS:

1) Issue No.1
Section 2(19) of the Act of 1960 defines the expression "industry". It is couched almost in the
same language as in Section 2(j) of the Industrial Disputes Act, 1947. The forensic search in
the interpretation of the word "industry" in this Section has been unparallel. It has been
construed very widely from the very beginning. Its wider canvass has been further expanding
with the passage of time. More and more enterprises are being brought within its fold in an
anxiety to extend the protective umbrella of the labour laws to a larger number of workmen or
employees. It has been described as "the fertile field of yielding fresh crops". The Government
Departments and statutory Corporations attempt to wriggle out of the ambit of "industry" by
resorting to the plea that they are exercising sovereign function but their attempts have more or
less failed.
2) Issue No.2:
In Bharatchand v. State of M.P., it was held by a Division Bench of the Court that the Public
Health Engineering Department of Madhya Pradesh Government whose essential function is to
build reservoir, dams, canals and to dig well for maintaining supply and distribution of water
to the public is covered by Entry 16 of this notification. Therefore, Jabalpur Development
Authority which being engaged in the work of civil engineering, as mentioned above, would
also be covered by this entry. In such a situation the petitioner could directly knock at the doors
of the Labour Court under Section 31(3) of the Act of 1960 instead of adopting a circuitous
route of approaching it through the reference procedure given in the Central Act.
3) Issue No.3
The question is which should prevail over the other. Standard Standing Orders for all the
undertakings in the State are given in "Annexure" to the Rules of 1963. There is a procedure
for bringing amendment or modification in these SSOs by any particular undertaking. In case
there is no amendment the Standard Standing Orders which are of model character would be
applicable to all the undertakings in the State. The Standing Orders Act has been enacted to
define with sufficient precision the conditions of employment for workers employed in
industrial establishments and to make the same known to them. The Standing Orders are
binding upon both the employer and the employees and constitute the conditions of service of
the employees. These are "statutorily imposed conditions of service".
4) Issue No.4
In the case Indore Development Authority v. IDA Daily Wage Sub-Engineers Union 2001. The
ratio of that decision is not attracted in the present case as there was cogent and definite material
to hold that the employees concerned were not appointed in clear vacancies. The Division
Bench decisions in State of M.P. v. Ram Prakash, and Vandana Singh v. Steel Authority, are
relevant for holding that a daily wage employee is also a temporary employee and if his
appointment is against clear vacancy and he has worked for more than six months and his work
is satisfactory he can be classified as a permanent employee. The existence of clear vacancy is
a must as held by the Full Bench also in Dev Prakash's case referred above. In the present case
that ingredient has also been proved, as discussed above, the impugned orders are unassailable,
it has been observed in Vandana Singh's case by relying upon the decision of the Supreme Court
in N.S.K. Nayar v. Union of India, that an employee cannot be called "a temporary employee"
after rendering more than 12 years of service. That would be wholly arbitrary.