JUDGMENT :-

S.B. Sinha, J.

1. Leave granted.

2. Respondent was appointed on the post of driver on daily-wage basis. He was initially appointed for 89 days. His services admittedly had not been regularized. He was not placed in the category of a permanent employee in terms of the Standing Order framed under Madhya Pradesh Industrial Relations Act, 1960 (for short "the Act").

3. A selection panel was prepared wherein the particulars of the employees in question were recorded. We may notice the relevant entries:

4. A select list was prepared for appointment on a regular post of driver, upon taking into consideration cases of eight employees, relevant portion whereof reads as under:

"For the post of Driver on daily wage, employees have been considered. Total 8 cases of employees have been considered. 2 posts in Mandsour Sub-Division are vacant. One post of reserved quota and one post from general category has to be filled up. One post has to be filled up as there is no candidate from reserved quota.

1. Shri Iqbal Singh Tuteja

2. Shri Mohd. Ibrahim..."

5. An application under Sections 61 and 62 of the Act was filed by the respondent on or about 11.07.1988 praying for his classification in permanent category on the post of driver. By reason of a judgment and order dated 6.10.1997, the Labour Court allowed the said application, opining:

(i) As the appellants had classified Iqbal Singh Tuteja who was junior to him in permanent category, the respondent was discriminated against.

(ii) Having regard to the admission made by the witnesses examined on behalf of the appellants that despite the respondent having been working since 22.09.1980 but denied the benefit of classification on a permanent post only because he was a daily-wage employee, the said action was not justified.

(iii) As the appellants did not produce the records in its possession, an adverse inference should be drawn.

(iv) As there was no difference in work of a driver as a daily wager and a work charged employee or a regular employee, after the death of Iqbal Singh Tuteja, the appellant should have been placed in the permanent category of a driver.

It was held:

"8. On the basis of the above discussion, it is proved that the appointment of the applicant was prior to the opposite party No. 3 Iqbal Singh Tuteja i.e. prior to 22.9.80. The applicant being regular in the past and from 11.7.86 be given the benefits of pay and benefits of a regular driver."

6. The High Court, by reason of the impugned judgment, dismissed the writ petition filed by the appellants, stating:

"4. Respondent No. 3 Iqbal Singh has also died. Service book of the Respondent No. 3 has not been produced by the petitioners before the Labour Court, neither they have specifically stated that what was the date of engagement of the Respondent No. 3. It appears that they have deliberately suppressed this fact before the Court. After analyzing the aforesaid factual position the Labour Court has held that the present respondent in this petition is entitled for the post of regular driver with effect from 11.7.1986. This finding of the Labour has also been upheld by the Industrial Tribunal."

7. Mr. S.K. Dubey, learned senior counsel appearing on behalf of the appellants, would contend:

(i). The Labour Court and consequently the High Court committed a serious mistake insofar as they failed to take into consideration that the respondent having not been appointed on a regular basis and in terms of the recruitment rules and furthermore having left his job for some time, and thus was offered the job of a daily-wager at a later stage, he could not have been classified in the permanent category.

ii. In any event, Iqbal Singh Tuteja being senior to the respondent, the Selection Committee cannot be said to have faulted in preparing a draft select list.

8. Mr. Annam D.N. Rao, learned counsel appearing on behalf of the respondent, on the other hand, would urge:

a. Iqbal Singh Tuteja having been in the seniority list below the res