( 1 ) HEARD learned advocate Mr. R. R. Trivedi for petitioner and learned advocate Mrs. D. T. Shah appearing on behalf of respondent.

( 2 ) THE Petitioner-Jetpur Municipality has challenged the award passed by the Industrial Tribunal, Rajkot in Reference I. T. No. 119 of 1995 dated 18. 12. 1998 wherein, Industrial Tribunal, Rajkot has granted the benefit of permanency to Narendra Punjabhai Dhadhal and Ashish Mansukhlal Dave, Octroi Clerks w. e. f. 1. 11. 1995 and, whatever the benefits are available, same are granted in favour of the workmen.

( 3 ) INITIALLY, this Court has issued rule and notice to interim relief which was made returnable on 18. 11. 1999 by order dated 28. 10. 1999. Thereafter this Court has passed an order granting the ad interim relief in favour of the petitioner on 13. 01. 2000. Affidavit-in-reply has been filed by the respondent which is on record.

( 4 ) THE brief facts of the present petition are as under. 4. 1 before the Tribunal, vide Exhibit-2, statement of claim was filed by the Union. The two workmen were appointed on 15. 2. 1991 and 9. 4. 1991. Both were treated as daily rated employees and therefore, the industrial dispute is raised by the Union to regularise their service and pay regular salary considering the length of service rendered by both of them. During the pendency of reference, an interim relief application was filed and Tribunal has granted interim relief in favour of them. Thereafter, vide Exhibit-8, reply was filed by the Municipality pointing out that both the workman were working as daily rated employees and accordingly the wages have been paid to both of them and, as and when they require them, their service will continue as they were not appointed on following due process of law. The financial position of the Municipality is also not good so they are not able to do even development work. In short, submission of petitioner-Municipality is that both the workman were allowed and engaged by the Municipality being back door entry and, therefore, they are not entitled the benefit of permanency. Vide Exhibits-9 and 30, two orders were produced in respect of these two workman by the Union. Thereafter vide Exhibit-11 one Narendrakumar Punjabhai Dhadhal was examined before the Tribunal. He deposed before the Tribunal that he was appointed on 9. 4. 1991 being an Octroi Clerk and he was remained continued in service and each year he completed 240 days continuous service. He is B. Com and is qualified to the post of Clerk. His case was that junior employees have been confirmed but these two workman have not been made permanent by the Municipality. According to the workmen, Municipality has given three months order and thereafter again while keeping gap of 3-4 days, three months order was given. Even during these 3-4 years gap, the work was taken by the Municipality. The oral interview of the workmen was taken by the Municipality. But, as no post was vacant in the set up the workmen were not made permanent. The similar deposition was made by one Ashish Mansukhlal Dave vide Exhibit-10 who was also cross-examined by the Municipality. Thereafter vide Exhibit-51 one Octroi Supervisor Madhavji Lilabhai Vaghasia was examined. He deposed before the Industrial Tribunal that both the workmen were required to work under him and because they obtained interim order of fixed time, have not been served to the respondent workmen. Both the workmen have been appointed after not following the due process of law and there is no vacancy available in the set up. The financial condition of the Municipality is also not good and no dispute about date of appointment of these two workmen namely 15. 2. 1991 and 9. 4. 1991. The said witness also admit that work of Octroi is day-by-day increasing and these workmen are working in a similar nature as the permanent employees are working in Octroi department. The work of both the workmen is found to be satisfactory and both are possessing the requisite qualific