IMPORTANT POINT
The main legal point established in the judgment is that the acceptance of employment through an outsourcing agency and the absence of a challenge to this arrangement precludes entitlement to regularization or equal pay for equal work.

ORDER :

1. The workman through Union has filed this petition seeking following reliefs:

“8(A) This Hon'ble Court may be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ, order or direction to

(i) quash and set aside impugned award dated 21.01.2023 passed by Industrial Tribunal, Vadodara in Reference (I.T.) No.57 of 2016; (Ann-A)

(ii) hold and declare that the concerned employees (28 in numbers as per the Reference order) are entitled to be absorbed as permanent employees in the establishment of respondent Board upon completion of ten years of service i.e. with effect from 2017 and further may be pleased to direct the respondents to extend the pay-scale as skilled employees in the pay of 18000 with pay band of 5200-20200 to all the concerned employees connected with the Reference;

(iii) hold and declare that the action on part of the respondent Board in not in paying equal pay/equal salary to the concerned employees despite they being discharging same duty and not placing the concerned employees in the pay of 18000 in the pay band of 5200-20200 as illegal, unjust and further may be pleased to direct the respondent Board to give equal-pay-for-equal-work to the concerned employees i.e. to place them in the said pay-scale;

(B) Pending the admission hearing and final disposal of this petition, this Hon'ble Court may be pleased to direct the respondents to extend the benefit of equal-pay-for-equal-work to the concerned employees (28 in numbers as per the Reference order) and to place them in the pay of 18000 in the pay band of 5200-20200;

(C) Any other and further relief or reliefs to which this Hon'ble Court deemed fit, in the interest of justice; may kindly be granted;”

2. It is case of the petitioner herein that award of Industrial Tribunal, Vadodara dated 21.01.2023, in Reference (IT) No.57 of 2016, not granting regularization to the workmen is erroneous because it has failed to consider number of years of service put in by the workmen.

3. Brief facts, as referred in the petition, are as under:

The present petitioners represented through Union are employees of Contractor appointed for performing the work of respondent No.1- Board. Since they were working as Daily wagers and having completed considerable number of years of service (approximately 17 years), they raised industrial dispute seeking regularisation registered as Reference (IT) No.57 of 2016. Upon adjudication, Industrial Tribunal, Vadodara rejected the reference. Aggrieved by which, the present petition is filed.

4. Heard Mr.Dipak Dave, learned advocate for the petitioner. He submitted that award of Industrial Tribunal, Vadodara is erroneous on the following grounds:

4.1 Admittedly, all the workmen are working since 2007. On account of outsourcing policy of the State accepted by the respondent-board, all the workmen were placed under the contractor through outsourcing agency after 2007. Though they are working under the Contractor, entire supervision of their work, is done by the board and only salary is paid by the Contractor. Since they were not regularized, they raised a dispute, registered as Reference (IT) No.57 of 2016, which came to be rejected on the ground that no grievance was made with regard to contract being sham or bogus contract. Learned advocate submitted that rejection of reference on the ground that no dispute was raised for contract being sham and bogus is erroneous because impliedly when regularization is sought, Industrial Tribunal, Vadodara ought to have gone into the merits of the contract. Further, despite application filed below Exh-30 seeking list of documents, no documents were produced though the same were in possession of the board. The Industrial Tribunal ought to have drawn adverse inference, which it failed and therefore, the order is erroneous.

4.2 Further, Contractor was not joined as party in the dispute raised before Industrial Tribunal and therefore, the finding that the issue was not