Private companies cannot use discretion to justify unfair labour practices, and past financial status as a sick unit does not prevent directions of permanency that may increase financial burden.

JUDGMENT :

1. Heard learned Senior Advocate Mr. K.M. Patel for learned advocate Mr. Nirav Joshi for Gandhi Law Associates for the petitioner and learned advocate Mr. T. R. Mishra for the respondent of Special Civil Application No. 5422 of 2017 and learned advocate Mr. B. M. Mangukiya for the respondent in Special Civil Application No. 13366 of 2019.

2. By way of Special Civil Application No. 5422 of 2017, the petitioner has challenged the order dated 11.01.2017 passed by the Industrial Tribunal, Jamnagar below Exh. 162 in Reference (IT) No. 72 of 2012 (Old No. 330 of 2000) whereby the Tribunal was pleased to allow the reference of the workmen partly and granted them the benefit of permanency from the date on which they completed 240 days service. For deceased workmen, the Tribunal directed that their case would be governed as per the provisions of the Section 18 of the Act.

3. By way of Special Civil Application No. 13366 of 2019, the petitioner has challenged the award dated 02.01.2019 passed by the Industrial Tribunal, Jamnagar below Exh. 59 in Reference (IT) No. 73 of 2012 (Old No. 331 of 2000) whereby while partly allowing the reference of the workmen, the Tribunal held that except those workmen who expired or those who have taken voluntarily retirement; rest of the workmen shall be given the benefit of permanency by treating the period prior to the date of award as notional period.

4. Being aggrieved and dissatisfied with the aforesaid two orders, both the respective petitions are preferred.

5. Both the matters were finally heard with the consent of the counsels appearing for the parties on 08.11.2022 and were listed for dictation of judgment on 10.11.2022 and today i.e. on 16.11.2022.

6. Brief facts giving rise to Special Civil Application No. 5422 of 2017 can be summarized as under:-

6.1 It is the case of the petitioner that petitioner Company is engaged in the business of manufacturing various chemicals and at present it is division of Nirma Limited.

6.2 On 26.06.1998, the respondent no. 1 – Union addressed the letter to Government Labour Officer, Porbandar and raised the demand of regularization of 12 workmen. Thereafter, on 22.07.1999, the respondent – Union raised a demand by way of demand letter addressed to the petitioner – Company and demanded regularization of the workmen who were working in the Soda Godown Department and have completed 240 days. While another letter dated 27.09.1999 addressed to the Assistant Labour Commissioner, Porbandar, the respondent – Union included 13 more workmen in the said demand for regularization. Ultimately, Conciliation Case no. 3 of 1999 was registered. However, on failure of conciliation, Deputy Labour Commissioner, Rajkot sent the demand to Industrial Tribunal, Rajkot for adjudication and the same culminated in reference (IT) No. 313 of 2000. Subsequently, when the matter was transferred to Industrial Tribunal, Jamnagar, it was renumbered as Reference (IT) No. 72 of 2012.

6.3 In the aforesaid reference, the petitioner – Company opposed the statement of claim by filing the written statement and opposed the demand raised by Union by submitting that the respondent workmen are causal and daily wage workers and hence, they are not entitled to regularization even if they have completed 240 days. Ultimately, at the time of evidence, out of 48 workmen, only a few workmen were examined. It was the case of the petitioner – Company before the Industrial Tribunal that each of the workman was required to be examined and for that even an application also was given by the petitioner - Company which was subsequently not pressed by the petitioner – Company.

6.4 Same way, the workmen also preferred an application for production of muster roll. However, said application was partly allowed and Industrial Tribunal, Rajkot vide order dated 08.07.2011 directed the present petitioner to produce either muster roll or statement of the presence of the workmen from the date on which they were appointed till the dat