IMPORTANT POINT
The court affirmed that prolonged employment without regularization constitutes unfair labor practice, mandating permanent status and equal pay for work of similar nature.

JUDGMENT :

M. K. THAKKER, J.

1. Rule, returnable forthwith. Learned advocates for the respondents in SCA No.14661 of 2022 as well as in SCA No.16901 of 2022 waives service of notice of Rule on behalf of respondent.

2. This petition being SCA No.14661 of 2022 is filed by the workman challenging the judgment and award passed by the learned labour court, Bhavnagar in reference IT No.71 of 2016 to the extent of denial of arrears of pay for the entire length of service from 21.06.1999 to the date of order.

3. The petition being SCA No.16901 of 2022 is filed by the employer-Panchayat challenging the impugned award directing the employer to regularize the service of the present workman with effect from 21.06.1999 as a Driver and granting the benefit of regularization as well by directing to grant the benefit of permanent employee from 21.06.1999 to 14.02.2022 to be treated as notional and thereafter, the actual benefit were granted.

4. The gist of the case is that, employer-Panchayat has published an advertisement on the notice board about the vacancy for the post of driver, pursuant to the said advertisement the workman had applied and was called for the interview and thereafter, he was selected on the post of Driver on daily wage basis at Primary Health Center Velavadar on 21.06.1999. As there was sanctioned vacant post and the workman has worked on daily wage basis as well as the workman was deprived from the benefit of Government resolution dated 17.10.1988, the reference came to be filed before the learned labour court, Bhavnagar being reference IT No.71 of 2016 seeking regularization on the post of Driver. Keeping grudge of the above reference, services of the workman came to be terminated on 27.07.2016, therefore, complaint came to be filed under section 33(a) of the Industrial Disputes Act, 1947(hereinafter referred to as the “ID Act”) before the learned labour court, Bhavnagar. Learned labour court vide order dated 23.11.2017 has allowed the complaint and directed the employer-Panchayat to reinstate the workman within a period of 30 days and further directed to pay the salary for the period for which he was wrongfully terminated. Challenging the above award, the petition came to be filed by the employer being SCA No.6029 of 2018 which came to be dismissed vide order dated 16.04.2018 confirming the order passed by the learned court dated 23.11.2017, thereafter, reference being No.71 of 2016 came to be decided and directions were issued to regularize the service of the present workman with effect from 21.06.1999. As the learned labour court has observed that for promotion, seniority, retirement benefits etc. the period of service from 21.06.1999 was to be considered as notional. The workman has filed the petition praying to grant the benefit of actual wages and all the consequential benefits on completion of 240 days from initial date of appointment. Employer has also challenged the said order on the ground that application made by the workman on 15.06.1999 for the post of Driver and considering the administrative exigencies, more particularly availability of only one vehicle for three Primary Health Center and the post was vacant, the medical officer of Velavadar Primary Health Center offered the work to the workman as a daily wager Driver with effect from 21.06.1999. As the appointment was on a daily wage basis therefore, no claim subsequently can be made for regularization of the service and stating the workman as a regular employee therefore, the award passed by the learned labour court was challenged by the employer.

5. Heard learned advocate Mr.Japee for the workman and learned advocate Mr.Munshaw for the employer.

6. Learned advocate Mr.Japee submits that the workman has worked continuously from 21.06.1999 and as on date he is serving on the post of Driver which is a vacant sanctioned post and he was the only Driver for three different Primary Health Centers, despite the same he was given the meager wages in comparison to the