Employers cannot deny regularization to employees engaged in perennial work, regardless of claims of temporary employment, as such practices violate statutory obligations and constitute unfair labor practices.

ORDER :

BHARGAV D. KARIA, J.

1. Heard learned advocate Ms.Sejal K. Mandavia for the appellant and learned advocate Mr.U.T.Mishra for learned advocate Mr.T.R.Mishra for the respondent.

2. This Appeal is filed under Clause 15 of the Letters Patent, 1865 against the Judgment and Order dated 28th March, 2017 passed in Special Civil Application No.756 of 2017.

3.1. The appellant-original petitioner challenged the Judgment and Award dated 29th August, 2016 passed by the Industrial Tribunal, Jamnagar (for short ‘the Tribunal’) in Reference (IT) No.164 of 2012 in Special Civil Application. By the Judgment and Award passed by the Tribunal, the services of the respondent-workman was ordered to be regularised as Electrician with effect from the date on which he completed 240 days of service and all consequential benefits were also ordered to be granted, however, the Tribunal also ordered that the respondent- workman would not be entitled to any monetary benefit and arrears from the date of appointment in the service till the date of the Award and the same was ordered to be considered as notional.

3.2. The learned Single Judge, after considering the submissions made by both the sides, dismissed the Special Civil Application by observing as under :

“2. Having considered the rival submissions, it appears that the impugned award came to be passed on the finding that the petitioner employer had resorted to unfair labour practice by making appointment of the respondent workman for short term durations; at times as contractual workman or on the work charge employment or fixed period of 29 days, though work was of perennial nature. It also appears that the principal contention of the petitioner opposing the reference was that the workman was only a contractual appointee.

3. The workman had come out with a case that his appointment was regular in nature inasmuch as as per the practice, the petitioner Gujarat Maritime Board used to requisition human resource by publication on its notice board and in pursuance thereof the workman had applied and was interviewed and eventually selected. This assertion of the workman was not contested by the petitioner. It thus appears that except saying that the appointment of the workman was on contractual basis, no other evidence whatsoever came to be propounded by the petitioner before the Industrial Tribunal.

4. The Industrial Tribunal has taken into consideration the evidence on record as also the case law cited before it and had come to the conclusion that the workman was appointed in pursuance of the notice and interview on the sanctioned set up and that his appointment was not a back door entry and that his appointment at times as a contractual employee and then as work charge employee and then as employee for fixed term though the work is of perennial and was increasing from time to time, was unfair labour practice. By resorting to such unfair labour practice, the workman was denied his legitimate rights.

5. The learned counsel for the petitioner heavily relied on State of Karnataka v. Umadevi 3, (2006) 4 SCC 1 to contend that regularization sought for by the workman was contrary to the ratio laid down in the said case. Apropos the said submission, it can be noticed from the award itself that the Tribunal took into consideration, inter alia, the case of Maharashtra State Road Transport Corporation & Anr. v. Casteribe Raja Parivahan Karmchari Sanghatana (2009) 8 SCC 556 wherein the ratio laid down in Umadevi (supra) was explained and it was pointed out that the said case does not denude Industrial Tribunal and the Labour Court of their statutory powers under section 30 read with section 32 of the MRTU and PULP Act. It was pointed out that in the event of the employer resorting to unfair labour practice, the adjudicatory forums under the Industrial Law have jurisdiction to pass suitable orders and their powers in such a situation are not confi