Long-term service in essential roles warrants regularization despite procedural irregularities; employment rights must be upheld in fairness.

JUDGMENT :

M. K. THAKKER, J.

1. This petition is filed challenging the order passed by the learned Industrial Tribunal, Rajkot in Reference (IT) No.55 of 2019 dated 20.01.2023, whereby the learned Tribunal has granted the benefit of permanency to the respondent from the date on which the respondent completed 240 days of service. The Tribunal has further directed that the interregnum period shall be considered for notional benefits.

2. It is the case of the present petitioner that the respondents had joined the petitioner–Municipality on the post of driver on a daily wage basis in the year 1995. Respondent No.1, namely Vinod Kumar Nathalal Tatamiya, joined on 01.05.1997, and Jitendra Kishanbhai Sondarwa joined on 09.10.1995. Their services came to be terminated by the petitioner, which was challenged by filing Reference (LCR) No.355 of 2001. The learned Labour Court allowed the said Reference in favour of the respondents by granting reinstatement with continuity of service. Challenging the said award, a writ petition was filed before this Court being Special Civil Application No.2342 of 2015, which came to be dismissed by this Court on 27.02.2015, and thereafter, the respondents were permitted to resume duty from the year 2016 onwards. It was further contended before the learned Labour Court by the petitioner that another petition, being Special Civil Application No.7222 of 2016, is still pending before this Court, and during the pendency of the said petition, a second Reference was filed before the learned Tribunal, being Reference (IT) No.55 of 2019, seeking the benefits of regularisation. The learned Tribunal, after considering the sanctioned setup produced below Exhibit 37 as well as the cross- examination of the witnesses of the petitioner and the employees, has granted the benefit of permanency to the respondents upon completion of 240 days and has directed that the interregnum period shall be considered for notional benefits, which is the subject matter of challenge before this Court.

3. Heard the learned advocate Mr.Vyas for the petitioner and learned advocate Mr.Rajyaguru for the respondents.

4. Learned advocate Mr. Vyas submits that the appointments of the respondents were made dehors the recruitment rules and amounted to backdoor entries, which are expressly prohibited by the Apex Court in the case of Secretary, State of Karnataka v. Umadevi , reported in [(2006) 4 SCC 1] . Learned advocate Mr. Vyas further submits that as per the evidence adduced before the learned Tribunal by the present petitioner, the respondents did not complete 240 days of continuous service in any given year, and therefore, they are not entitled to the benefit of regularization. Learned advocate Mr. Vyas also submits that, in view of the fact that the expenditure of the Municipality exceeds 45%, and that the State Government has imposed a prohibition on regular recruitment, the petitioner-Municipality does not have the authority to regularize the services of the respondents as directed by the learned Tribunal. He further submits that the respondents were allowed to resume duties only pursuant to the directions issued by the learned Labour Court, which were subsequently upheld by this Court however, the respondents cannot claim any entitlement to regularization or permanency benefits merely on that basis. Accordingly, the impugned award deserves to be quashed and set aside.

5. Per contra, learned advocate Mr. Rajyaguru appearing for the respondent submits that both the workmen, who are working with the petitioner for more than 20 years, have been deprived of the status of permanent employees, which is