Nafr High Court
Case Details
1 BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.02.14 17:13:02 +0530 2025:CGHC:7878-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR REVP No. 23 of 2025 1 - Bharat Earth Movers Limited (Presently Known As BEML Limited) Represented By Its Director, BEML, Soudha 23/01, 4th Main, Sampangirama Nagar, Bengaluru (Karnataka) 2 - Bharat Earth Movers Ltd. Through Its Regional Manager BEML Limited, Regional Office, 01/A, Sirgitti Industrial Area, Sector C, Bilaspur Chhattisgarh. ... Petitioners versus
Legal Reasoning
1 - State Industrial Court Of Chhattisgarh At Raipur Mahanadi Khand, D.K.S Bhawan, Raipur 2 - Labour Court Bilaspur 3 - Audhyogik Keshetra Mazdoor Sangh Sambadh Bhartiya Mazdoor Sangh, Duara, Up-Adhyaksh, D/192, Ageyeye Nagar Bilaspur Chhattisgarh. 4 - Vidhya Sagar Pandey Labour Supplier, Near M.P.E.B. Gate, Tifra, Bilaspur, Chhattisgarh. ... Respondents For Petitioners
Legal Reasoning
: Mr.Ashish Shrivastava, Senior Advocate assisted by Mr.Rahul Ambast, Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Sachin Singh Rajput , Judge
Decision
Order on Board 2 Per Ramesh Sinha , Chief Justice 14.02.2025 1. Heard Mr.Ashish Shrivastava, learned Senior Advocate assisted by Mr.Rahul Ambast, learned counsel for the petitioners. 2. The petitioners have filed this review petition against the order dated 20.06.2024 passed by this Court in WA No.310 of 2024, whereby the Division Bench of this Court has dismissed the writ appeal filed by the appellants herein. Against the order dated 20.06.2024 passed by this Court in WA No.310/2024 the petitioners have filed SLP (Civil) Diary No.43074/2024 before the Hon’ble Supreme Court, which was dismissed as withdrawn. However, question of law is kept open vide order dated 25.11.2024. 3. Learned Senior Advocate appearing for the petitioners submits that whether the provisions of CGIR Act, 1960 are applicable to the petitioners/appellants' Undertaking and further, whether the State Government is 'appropriate Government' in respect of petitioners/appellants' Undertaking under CGIR Act 1960 or not is an important question of law and goes to the roots of case, therefore, this germane issue is to be decided by this Court. Learned Single Judge failed to appreciate that the Petitioners/Appellants' is a Central Public Sector Enterprise, a Schedule 'A' company under Ministry of Defence. BEML Ltd. as such, the Petitioner is under the functional, financial and 3 administrative control of the Union of India and is covered under the definition of 'State' in terms of Article 12 of the Constitution of India. He further submits that learned Single Judge failed to appreciate that the Petitioner entered into a service contract/contract labour supply agreement with a local manpower supplier, i.e. Respondent No. 2 herein. Consequently, there was no functional or administrative control of the Petitioner in regulation and maintenance of the service conditions of the contract labour. Further, there is no employer-employee relationship between the petitioner and the contract labour. In any event, the appointment was not by the Petitioner against the available vacancy by following the due procedure and rules applicable for appointment. Even if the 1963 Act were to apply to the Petitioner, this Court has held in State of M.P. v. Onkar Prasad Patel, (2005)13 see 489 that; “in view of the clear definition of a "permanent employee", as given in the Standard Standing Order, the applicant/workman cannot be categorized as a permanent employee even though he may have completed six months satisfactory service. The other requirements that the service was rendered in a clear vacancy in one or more posts was not established. The conditions are cumulative and are not independent of each other. That being the position, the Labour Court, the Industrial Court and the High Court were not justified in directing that the respondent/workman was to be categorized as permanent employee." 4 As such, it can be seen from the above verdict of this Court that even under the 1963 Act, due procedure still has to be followed before a worker can be made a permanent employee. 4. He further submits that learned Single Judge erred in not appreciating the Constitutional limitations placed upon a Company such as the Petitioner which is a 'State' within the meaning of Article 12 of the Constitution of India. Learned Single Judge erred in not appreciating the case of Mahendra L. Jain, (2005) 1 SCC 639 wherein, the Hon'ble Supreme Court categorically held that the Standing Orders governing the terms and conditions of service must be read subject to the constitutional and statutory limitations for the purpose of appointment both as a permanent employee or as a temporary employee. An appointment to the post of a temporary employee can be made where the work is essentially of temporary nature, In a case where there existed a vacancy, the same was required to be filled up by resorting to the procedures known to law. He contended that in M.P. Housing Board v. Manoj Shrivastava, (2006) 2 SCC 702) it was held a dally-wager does not hold a post as he is not appointed in terms of the provisions of the Act and the Rules framed there under and in that view of the matter he does not derive any legal right; only because an employee had been working for more than 240 days that by itself would not confer any legal right upon him to be regularized in Bijli service; if an appointment has been made contrary to the provisions of the statute the same would be void and the effect thereof would be that no legal right was derived by the employee by reason thereof. It is submitted that 5 these principles were equally applicable to case at hand where the workers according to the Petitioner were provided by the contractor on commission. It is submitted that the term irregular appointment through contractor cannot be taken to mean the creation of a post where none exists. He contended that applying the law as laid down by Hon'ble Supreme Court in the aforesaid matters would render the decisions of learned Single Judge as unjustified, illegal and arbitrary. He further contended that as per the settled preposition of law, regularization can only be directed as per the regularization policy declared by the concerned public body and nobody can claim regularization as a matter of right dehors a regularization policy. As such, the review petition deserves to be allowed and the judgment dated 20.06.2024 passed by this Court in WA No.310 of 2024 may be recalled/reviewed. 5. We have perused the impugned order under review. 6. It appears that the petitioners by presentation of this review petition seek an opportunity to argue the entire case afresh on merits under the garb of the review petition, which is not permissible and tenable in law. 7. It is well settled that scope of review jurisdiction is extremely limited and only an error apparent on face of record can be corrected in the said jurisdiction and re-appraisal/re-appreciation cannot be done in exercise of said jurisdiction as that would amount to exercise of appellate jurisdiction which is impermissible 6 in law (Devaraju Pillai v. Sellayya Pillai1, Meera Bhanja (Smt) v. Nirmala Kumari Choudhury (Smt)2, Avijit Tea Co. Pvt. Ltd. v. Terai Tea Co. and others3, Lily Thomas etc. v. Union of India and others4, Akhilesh Yavad v. Vishwanath Chaturvedi and others5 and Sasi (D) through LRS. v. Aravindakshan Nair and others6.) 8. The grounds raised by review petitioners in this review petition cannot be permitted to be raised in review petition. Even otherwise, there is no error apparent on the face of record in the impugned judgment under review warranting invocation of review jurisdiction. 9. Accordingly, the review petition is dismissed. No cost(s). Sd/- Sd/- (Sachin Singh Rajput) (Ramesh Sinha) Judge Chief Justice Bablu 1 (1987) 1 SCC 61 2 (1995) 1 SCC 170 3 (1996) 10 SCC 174 4 AIR 2000 SC 1650 5 (2013) 2 SCC 1 6 (2017) 4 SCC 692