The court upheld the Tribunal's order for regularization of workers, finding the Municipality's prolonged employment practices constituted unfair labor practices under the Industrial Disputes Act.

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.151 of 1999 directing the appellant – Municipality to absorb the respondent No.1 – Ambabhai Savjibhai Kanena on the post of Bore Operator. The Reference (IT) No.151 of 1999 was partly allowed and he was directed to be made regular and for the intervening period, the Tribunal has directed that the appellant – Municipality to regularize the respondent workman from the date of reference i.e. from 02.11.1999 along with other benefits however, till 02.11.1999, the Tribunal had directed that the intervening period shall be treated as notional. So far as the date of appointment as Bore Operator is concerned, he is appointed on 01.03.1999 and the same is not disputed.

3. The workman, who is engaged as Bore Operator 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-workman is 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 – workman 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 workman is appointed in the year 1999 and he 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 con