The court affirmed that failing to regularize employees engaged in continuous work constitutes unfair labor practice under the Industrial Disputes Act, 1947.

JUDGMENT :

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

1. ADMIT. Learned advocate Mr. I. G. Joshi, waives service of notice of admission on behalf of the respondent No.1.

2. The present appeal filed under Clause 15 of the Letters Patent, 1865 is directed against the common oral order dated 12.10.2023 passed by the learned Single Judge rejecting the writ petition filed by the appellant - Savarkundla Municipality assailing the award dated 30.07.2018 passed by the Industrial Tribunal, Bhavnagar (for short, “the Tribunal”) in Reference (IT) No.99 of 1999 directing the appellant – Municipality to absorb two Fitters, one Mr.Ismail Hasambhai Jhankhra and Mr.Mehbobbhai Musabhai Jhankhra on the regular posts. The Reference (IT) No.99 of 1999 was partly allowed and they were directed to be made regular and for the intervening period, the Tribunal has directed that the period shall be treated as notional and no arrears are granted. So far as the date of appointment as Fitter is concerned; (i) Mr.Ismail Hasambhai Jhankhra is appointed on 28.04.1995 and (ii) Mr.Mehbobbhai Musabhai Jhankhra is appointed on 28.04.1997. The same are not disputed.

3. The workmen, who are engaged as Fitter in the Water Works Department of the Municipality, raised a demand of regularization, which culminated into reference proceedings. The same was assailed by the appellant – Municipality by way of filing the captioned writ petition. The learned Single Judge has pleased to reject the same and the said rejection has given cause to file the present Letters Patent Appeal.

4. At the outset, learned advocate Mr. D. P. Sanchela, appearing for the appellant – Municipality has submitted that the Tribunal fell in error in ordering regularization of the workmen since no sanctioned post was available. He has submitted that in fact, there are various orders passed by the Tribunal, which are not in line with each other. It is submitted that the Tribunal as well as the learned Single Judge fell in error in not considering the Resolution dated 01.06.2010 passed by the Urban Housing Department, wherein it was stated that henceforth, no Valvemen/Pumpmen/Fitters like the present respondent-workmen are required to be engaged in the Water Works Department.

5. Learned advocate Mr.Sanchela, appearing for the appellant – Municipality has also placed reliance on the setup, which was produced before the Tribunal at Exh.21 and also the affidavit filed by the Savarkundla Municipality contending that no post of Valveman or Fitter is sanctioned by the Nagarpalika and hence, it is urged that the order passed by the learned Single Judge confirming the award passed by the Tribunal may be set aside. In support of his submissions, learned advocate Mr.Sanchela has placed reliance on the judgment of the Supreme Court in the case of Vibhuti Shankar Pandey Vs. State of Madhya Pradesh and others, 2023 (3) SCC 639.

6. Per contra, learned senior advocate Mr. G. M. Joshi, appearing for the respondent – workmen has submitted that all these contentions were raised before the Coordinate Bench, by the very same Municipality and the Coordinate Bench, after considering the evidence on record, which was similar in nature, has ultimately rejected the Letters Patent Appeals being Letters Patent Appeal No. No.973 of 2023 and allied matters vide judgment and order dated 23.01.2024, which was assailed before the Supreme Court by filing SLP (C) No.1606 of 2024 and the same has been rejected by the Supreme Court vide order dated 23.01.2024. It is submitted by the learned senior advocate that in the present case, the workmen are appointed in the years 1995 and 1997 and they continued in the Water Works Department by the Municipality and hence, as held by the Coordinate Bench in the order dated 23.01.2024 in the case of very same Municipality, such engagement for all these years would amount to unfair labour practice. It is submitted that the Coordinate Bench, after considering array of the judgments, has rejected the Letters