IMPORTANT POINT
Unfair labour practices entitle a workman to be absorbed as a permanent employee, and the failure to provide sanctioned posts does not absolve the employer from its obligations.

JUDGMENT :

1. Rule. Mr.Jeet Rajyaguru, learned advocate waives service of Rule on behalf of respondent No.1- workman and Mr.Mayank Chavda, learned Assistant Government Pleader waives service of Rule on behalf of respondent No.3.

2. Municipality as petitioner has filed this petition challenging an award of Industrial Tribunal dated 29.11.2021, in Reference (IT) No.30 of 2009 wherein, the petitioner was directed to grant benefit of regularisation to the respondent- workman from 01.04.2002 (date of joining). Benefits such as salary grade and other benefits of seniority, promotion, gratuity and other retirement benefits shall be awarded from 01.04.2002. The period, from the date of joining till the date of award, is to be considered as notional and no arrears shall be paid for that period.

3. Facts, in brief, as referred in the petition, are as under: The respondent-workman was working as Driver with Municipality from 01.04.2002 as Daily wager. For his regularisation, he raised dispute before Industrial Tribunal registered as Reference (IT) No.30 of 2009. Upon adjudication, Reference came to be allowed in favour of the respondent- workman and the petitioner was directed to grant benefit of regularisation to the respondent-workman from 01.04.2002 (date of joining). Benefits such as salary grade and other benefits of seniority, promotion, gratuity and other retirement benefits shall be awarded from 01.04.2002. The period, from the date of joining till the date of award, is to be considered as notional. Aggrieved by the directions, the present petition is filed.

4. Heard Mr.Vivek Bhamare, learned advocate for the petitioner and learned advocate for the respondent- workman.

5. Mr.Vivek Bhamare, learned advocate for the petitioner- municipality has submitted that award of the Industrial Tribunal is erroneous because it has ignored the provisions of Gujarat Municipalities Act. There is no work available with the Municipality and therefore, question of regularisation would not arise. Most importantly, there are no sanctioned post available on which, the respondent can be regularised and regularisation of the workman would amount to creation of post, which is not permissible under law. Further, initial appointment of respondent- workman was backdoor entry and Municipality is to recruit their employees after following recruitment process, which was not done in the present case and therefore, they are not entitled for regularisation.

6. On the other hand, learned advocate for respondent- workman submitted that the issue under consideration is no more res-integra in view of decision of this Court in Special Civil Application No.19334 of 2017 and allied matters. Special Civil Application No.19334 of 2017 and allied matters was subject matter of appeal in Letters Patent Appeal No.1398 of 2022 and other connected matters, wherein the appeals filed by the petitioner- Municipality were rejected. Even Special Leave to Appeal (civil) No. 1606 of 2024 by the petitioner- Municipality was dismissed vide order dated 23.01.2024.

6.1 Learned Advocate submitted that against the common order dated 25.03.2022, in Special Civil Application 19336 of 2017, one more Letters Patent Appeal No.1438 of 2022 was preferred and the same was dismissed confirming the order dated 25.03.2022. Thus, the order dated was confirmed in both the Letters Patent Appeal No. 1398 of 2022 and Letters Patent Appeal No. 1438 of 2022. In one another order in Special Leave to Appeal (C) No 1261 of 2024, the Hon’ble Apex Court, permitted to prefer review before this Court. The Misc. Civil Application (for review) No.757 of 2024 was filed and was also dismissed. Thus, since the order in Special Civil Application No.19334 of 2017 and allied matters, is confirmed till Hon’ble Supreme Court, the award of the Labour Court deserves no interference and the petition may be rejected.

7. Considered the submissions and decisions relied upon. Submission of Learned Advocate for the respondent-workman that th