Regularization of service requires proof of unfair labor practices; long service alone does not confer entitlement without due procedure.

JUDGMENT :

M.K. THAKKER, J.

1. Rule returnable forthwith. Learned advocate Ms. Siddhi Vadodariya waives service of Rule on behalf of respondent.

2. The present petition is filed challenging the judgment and award of the learned Industrial Tribunal of Bhavnagar dated 24.11.2022 in reference IT No. 1 of 2020 whereby, the directions were issued to the present petitioner to regularise the service of the respondent as a valman and grant permanancy benefits i.e. seniority, promotion, retirement benefits, gratuity etc. from the date on 01.08.2003. It was further clarified by the learned Tribunal that period from 01.08.2003 to 04.01.2020 was treated as notional and respondent- employees fare not entitled any arears. The aforesaid award is challenged by filing the petition under Article 226 and 227 of the Constitution of India.

3. The facts leading to the present petition is that on 09.01.2020 the respondent no. 1 filed statement of claim before the learned Tribunal, Bhavnagar below Exh.12 alleging that he was appointed from 01.08.2003 as Valman and on 21.07.2018 he served demand notice through registered post and through Union but as the same was remained unattended therefore, on 28.05.2019 chartered of demand was made before the Conciliation Officer being no. 13 of 2019 and on 04.01.2020 the dispute was referred to the learned Tribunal. It is stated by the respondent that though he was serving as a Valman from one year 2003 continuously without any break, however, he is getting fixed pay which is less than minimum wages even though the post of Valman is permanent and work is perennial in nature. The Nagarpalika by adopting unfair labour practice has not made him permanent and therefore, it was prayed before the learned court to regularise his service. The learned Labour Court after considering the evidence and the rival submissions made by the learned advocates, has passed impugned award allowing the reference directing petitioner to regularise service which is the subject matter of challenge before this Court.

4. Heard learned advocate Mr. M.B. Parikh for the petitioner and learned advocate Ms. Siddhi Vadodaria for respondent.

5. Learned advocate Mr. M.B. Parikh submits that while passing the impugned award the learned Tribunal has overlooked the written statement wherein, it is contended that respondent herein was not appointed by following due procedure and his appointment was purely of temporary in nature. As there was no sanction post of Valman therefore, he was appointed as daily wager. Learned advocate Mr. M.B. Parikh submits that as per section 50(1) of the Gujarat Municipality Act, 1963, the petitioner cannot appoint or promote any of the employees without prior permission of the Regional Commissioner. It was stated that petitioner’s overall expenditure is more than 45% and they are facing acute financial problems as they are indebted. Learned advocate Mr. M.B. Parikh submits that appointment of the respondent is absolutely a back door entry and without following due procedure of law as there was no publication of any advertisement neither they were called for any interview.

6. Learned advocate Mr. M.B. Parikh has relied on the decision rendered by the Apex Court in the case of Secretary to Gov. Comm. Vs. A. Singamuthu, (2017) 4 SCC 113 and submitted that a long continuation of service is irrelevant factor and does not confer any right to regularise the service when the scheme of regularisation is missing. Learned advocate Mr. M.B. Parikh has also relied on the decision rendered by the Apex Court in the case of Upendra Singh Vs. State of Bihar, (2018) 3 SCC 680 and submitted that the claim of regularisation cannot be considered when the appointment were not made by the competent authority. At the end the learned advocate Mr. M.B. Parikh submits that without considering the aforesaid settled law learned labour Court has directed regularisation of service of the present petitioner and therefore, petition is required to be allowed.

7.