IMPORTANT POINT
Long-term service and performance of duties similar to regular employees justify the regularization of daily wage workers, regardless of initial irregular appointment procedures.

JUDGMENT :

M. K. Thakker, J.

1. Rule returnable forthwith. Learned advocate Mr.Yogen Pandya waives service of rule on behalf of respondent no.1.

2. This petition is filed under Article 14, 19 and 226 and 227 of the Constitution of India challenging the judgment and award dated 12.12.2019 passed by the learned labour court in reference LCA D No.27 of 2005 whereby, the directions were issued to regularize the service of four workers namely Manguben Jivanbhai, Nanduben Mukeshbhai, Rameshbhai Keshabhai and Labhuben Manubhai on completion of 10 years on their original post.

2.1. The respondent-Union raised the dispute before the Assistant Commissioner of labour for 24 daily wager sweepers to regularize the service as well as to give benefit of permanency. On failure of conciliation proceedings, the matter was referred by the learned Assistant Commissioner of labour for adjudication to the learned labour Court and same was registered as reference LCA D No.27 of 2005 to decide the terms of reference. During the pendency of the reference, the application below Exh.46 came to be filed by the Union restricting the claim for only four workers out of 24 workmen. Learned labour Court has allowed the reference by judgment and award dated 12.12.2019 directing to regularize the service of four employees on completion of 10 years service as daily wager sweeper and has denied the difference of salary from the date of reference till the date of award, further the directions were issued to make verification and to pay all benefits in favour of the workman. The above order is subject matter of challenge before this Court.

3. Heard learned advocate Mr.B.T.Rao for the petitioner and learned advocate Mr.Yogen Pandya for the respondent no.1.

3.1. Learned advocate Mr.Rao submits that learned labour Court has committed error by issuing directions to regularize the service of the workman who was having back door entry and no recruitment procedure has been followed at the time of appointment. It is further submitted that after conversion of Gram Panchayat into Nagarpalika the area became larger and therefore, Nagarpalika has no option but to appoint the sweeper on daily wages basis as the Nagarpalika has not been given the authority to engage staff in regular pay scale. Learned advocate Mr.Rao submits that the Nagarpalika is not able to bear the expense as they do not have independent income and as per the decision rendered by this Court in Amreli Nagarpalika Vs State of Gujarat, the Nagarpalika cannot bear expense more than 45% out of its income towards salary. Learned advocate Mr.Rao submits that four workmen in whose favour the award is passed have been engaged through outsourcing by way of resolution passed in the General Board on 29.05.2015 as the contract for sweeping was given through outsourcing agency. At the time of giving contract, condition was imposed to give first opportunity to present respondent however, that resolution came to be challenged by the respondent-workmen by way of filing the petition being SCA No.13647 of 2020 wherein, the interim relief was granted by this Court vide order dated 13.11.2020 and thereafter, same was disposed of on the statement of the Chief Officer, Barwala Nagarpalika that there would not be any change in service conditions of the respondent-workman. Learned advocate Mr.Rao submits that as daily wagers are accommodated by the agencies and petitioner does not have any independent income to pay salary to the workman impugned award requires to be interfered with.

3.2. Learned advocate Mr.Rao has relied on the decision rendered by the Apex Court in the case of Union of India and Ors. Vs All India Trade Union Congress and Ors reported in 2019 5 SCC 773 and submitted that no mandatory directions can be issued to frame the scheme under writ jurisdiction of Article 226 of the Constitution of India. Learned advocate Mr.Rao submits that long service itself cannot be ground for regularizing the service of the petitioner who are