Continuous service by employees performing essential duties can warrant regularization despite procedural irregularities in their initial appointments.

JUDGMENT :

M. K. Thakker, J.

1. This petition is filed under Articles 226 and 227 of the Constitution of India challenging the award passed by the learned Labour Court dated 20.09.2024 in Reference Demand No.16 of 2024, whereby the learned Labour Court has directed to regularize the service of 4 employees and to pay the benefit of regularization from the date of award and the interregnum period was ordered to consider for notional benefits.

2. It is the case of the present petitioner that the 20 employees have preferred the reference seeking the regularization on the ground that though there is a vacant post available as well as they are working since more than 10 years, their services were not regularized and though work, which was carried out by the respondent, who was permanent in nature, by not filling up the vacant post, the unfair labour practice has been adopted. Learned Reference Court, on considering the evidence adduced by both the parties as well as on relying on the decision rendered by the Hon’ble Apex Court in the Case of Umrala Gram Panchayat vs The Sec.Municipal Employee Union , has awarded the reference in favour of the petitioner, which is the subject matter of the challenge before this Court.

3. Heard learned advocate Mr. Patel for the petitioner -Municipality.

4. Learned advocate Mr. Patel submits that as the respondent is appointed without following due recruitment process and the expenditure of the Municipality is more than 46%, therefore, the benefit, which was awarded in favour of the respondent – Employee cannot be granted. Learned advocate Mr. Patel that though the vacant post of Sweeper is available, however, considering the back door entry, if the same was granted then it would be violation of Articles 14 and 16 of the Constitution of India. Learned advocate Mr. Patel has relied on the decision rendered by this Court in the case of Amreli Municipality V/s Gujarat Pradesh Municipal Employees Union reported in 2004 (3) GLR 1841 as well as relied on the decision rendered by the Hon’ble Apex Court in the case of Vibhuti Shankar Pandey V/s. State of Madhya Pradesh and others reported in 2023 (3) SCC 639 and in the case of Upendra Singh V/s State of Bihar and others reported in 2018 (3) SCC 680 and has submitted that since initial appointment of the respondent was not by Competent Authority nor against the sanctioned post, therefore, the respondent is not entitled to be regularized.

4.1 In view of above submissions, Learned advocate Mr. Patel has prayed to allow this petition by setting aside the impugned order.

5. Having considered the arguments advanced by the learned advocate Mr. Patel and on referring the records along with the memo of the petition, it emerges that the reference was filed before the learned Industrial Tribunal, Vadodara seeking regularization by 19 employees. It was contended that all the employees have been working with the Municipality since more than 10 years, though they perform the working, which are perennial in nature and which are identical performed by the regular employees. They have been paid meager wages in comparison to the regular employees. It is contended by the workmen in the statement of claim as well as affidavit in the form of the chief examination that many of the employees were retired or died. Therefore, at present, 4 employees, who are contemplating their grievance, though it was filed by the 19 employees. Details of the each employee is mentioned hereinbelow.

5.1 It