0.28965905076893483

ORAL ORDER

1. By the present Special Civil Application, the petitioners have impugned the award dated 30.11.2023 passed in the Reference (IT) No.68 of 2018, whereby the learned Industrial Court, Bhavnagar has granted regularization of service to the respondent as a peon on the permanent post and further granted other benefits as available to a permanent employee.

2. The learned counsel for the petitioners submits that the respondent workman came to be appointed as daily wager peon on temporary basis for the limited period and that such appointment was done without following any regular recruitment procedure. He submits that after working for a long period of time, the respondent workman raised a dispute on 08.05.2018 seeking regularization on the post of peon or any other sanctioned class-IV post along with salary, allowance and arrears as admissible to a regular employee. The learned counsel submits that after appreciating the evidence on record, the learned Industrial Court granted regularization of service to the respondent workman. It is submitted that the learned Industrial Court has ignored the specific contention taken by the respondent workman that he was appointed on a sanctioned post, though the appointment of the respondent was on temporary basis as daily wager and without following due recruitment procedure. The learned counsel further submits that the learned Industrial Court has overlooked the judgment of the Hon’ble Apex Court in the case of State of Karanataka vs. Uma Devi reported in (2006) 4 SCC 1, wherein it has been held that if the appointments are illegal and irregular, then the service of the workmen cannot be regularized since such appointments amount to a back-door entry. The learned counsel submits that a daily wager employee cannot claim parity with the regular employees who are appointed on vacant sanctioned posts after following due procedure of law. The learned counsel further submits that the respondent workman had not worked continuously for a period of 10 years and therefore, he cannot be extended the benefit of regularization. It is also submitted that in-between, the service of the respondent came to be terminated and the said termination came to be challenged by the respondent workman by raising a dispute before the learned Industrial Court, Bhavnagar. That thereafter, the service of the respondent workman came to be dismissed and aggrieved, the respondent workman had challenged the said award by way of Special Civil Application No.770 of 1996. The said Special Civil Application came to be allowed vide order dated 23.03.2004 and the termination order of the respondent workman came to be quashed and he came to be reinstated in service with 50% back-wages. The petitioners herein had challenged the said order by way of Letters Patent Appeal No.1248 of 2004 which came to be dismissed on 23.01.2014. That thereafter, the respondent workman came to be reinstated and remained in service till the date of his superannuation. The learned counsel submits that thereafter, the respondent workman was continued in view of the orders passed by the Courts. The learned counsel submits that the learned Industrial Court has wrongly extended the benefit of regularization in the present case. The learned counsel also submits that the impugned award has been passed ex-parte as the petitioners herein failed to appear for cross examining the respondent and also failed to lead oral as well as documentary evidence in the reference proceedings. It is submitted that such absence was unintentional and beyond reasonable control of the petitioner No.2. The award has been passed in absence of evidence on behalf of the petitioners and therefore, it has resulted into miscarriage of justice. The learned counsel, therefore, submits that the impugned award be quashed and set aside and the present Special Civil Application be allowed.

3. Per contra, the learned counsel appearing for the res