CAV Judgment

L.S. Pirzada, J.

1. Heard learned advocate Mr.Bhavesh P. Trivedi appearing with learned advocate Mr.R.R. Trivedi for the appellant and learned advocate Mr.Jeet Y. Rajyaguru appearing for the respondent on advance copy.

2. The present appeal is preferred under Clause 15 of the Letters Patent, 1865 by the appellant-original petitioner against the Order dated 25.09.2025 passed by the learned Single Judge in Special Civil Application No.18326 of 2021, whereby the petition came to be dismissed and the Award dated 15.11.2019 passed by the learned Industrial Tribunal, Rajkot in Reference (I.T.) No.94 of 2008 came to be confirmed.

3. The factual matrix of the present appeal are that the respondent-original petitioner was engaged as a daily wager with Jetpur Nagarpalika since 05.04.1989 as an octroi clerk and was paid wages as per the minimum wages. It is the case of the respondent that despite existence of a sanctioned permanent post in the same establishment, which remained vacant for a long period, the respondent continued to work on a daily-wage basis. Thereafter, with effect from 27.12.1990, the respondent was engaged as a monthly wager. Thereafter, the respondent-original workman came to be illegally terminated from service on 31.12.1990.

4. Being aggrieved by the said termination, the respondent raised Industrial Dispute and Reference (L.C.R.) No. 651 of 1991 which came to be adjudicated by the learned Labour Court by order dated 17.04.2006, directing reinstatement of the respondent-workman on his original post. The said order was challenged by the appellant-Nagarpalika by filing Special Civil Application No.23086 of 2006 before this Court. Pursuant thereto, the respondent-workman was reinstated in service on 01.05.2007 and continued to work in the Tax Department of the Nagarpalika.

          4.1. Subsequently, by order dated 29.06.2007 in Special Civil Application No.23086 of 2006, while the direction granting continuity of service was set aside, the direction of reinstatement was confirmed, as the respondent had already been reinstated with effect from 01.05.2007. Thereafter, the respondent-workman requested the appellant-Nagarpalika to place him on a permanent post and to grant salary and benefits accordingly. It is the case of the respondent that he had worked for more than 240 days in each year and yet was not extended the benefits of leave, overtime, or other service benefits. Consequently, he raised another Industrial Dispute for regularization by filing Reference (I.T.) No.94 of 2008 before the Industrial Tribunal, Rajkot. The learned Industrial Tribunal, Rajkot, by Judgment and Award dated 15.11.2019, partly allowed the reference and directed the appellant-Nagarpalika to grant the benefit of permanency to the respondent-workman with effect from 01.01.2010 till the date of the Award for notional purposes and further directed payment of monetary benefits from the date of the Award within a period of 30 days.

          4.2 Being aggrieved and dissatisfied by the said Judgment and Award dated 15.11.2019, the appellant- Nagarpalika preferred Special Civil Application No. 18326 of 2021 before this Court. The said petition came to be dismissed by the learned Single Judge vide Order dated 25.09.2025, thereby confirming the Award passed by the learned Industrial Tribunal. Hence, the present appeal.

5. Learned advocate Mr.Bhavesh P. Trivedi appearing for the appellant submitted that the learned Single Judge committed an error of law by not considering that the appellant-Nagarpalika has no authority to fill up regular posts by way of regularisation, as there is no such provision under the Municipal Rules. Therefore, the impugned Award deserves to be quashed and set aside. He further submitted that as per the provisions of the Industrial Disputes Act, 1947, the definition of "Unfair Labour Practice" must strictly prove that the workman was continued as a daily wager for years together with a view to deprive him of regular appointment. The present case of the respondent-workman does not satisfy the said criteria. He further contended that the learned Single Judge failed to consider that the respondent-workman was reinstated in the year 2007, i.e. with effect from 01.05.2007, and that he raised the industrial dispute in the month of July 2008 i.e. within one year of his reinstatement. Therefore, merely one year of service cannot be treated as long and continuous service so as to entitle the workman for regularisation. 5.1. It was further submitted that the learned Single Judge failed to appreciate the factual aspect that the appointment of the respondent was made without following any selection procedure or prescribed recruitment process and hence, the appointment was a back-door entry and consequently, such service cannot be regularised. He submitted that the respondent was appointed only for a fixed period and fixed-term appointment orders were also issued from time to time. He further submitted that even assuming that casual, ad- hoc, or daily-wage service rendered for a long number of years may, in certain circumstances, be considered, service of merely one or two years would not entitle an employee to claim regularisation. Therefore, he submitted that the present appeal is required to be allowed and the impugned order passed by the learned Single Judge is required to be quashed and set aside.

6. On the other hand, learned advocate Mr.Jeet Y. Rajyaguru appearing for the respondent submitted that the order passed by the learned Single Judge is just and proper and does not require any interference. He further submitted that Special Civil Application No.23086 of 2006 was preferred by the present appellant - original petitioner, challenging the Award passed by the Labour Court, and the said petition came to be partly allowed by learned Single Judge vide order dated 21.12.2016. He submitted that by the said order, the direction of reinstatement of the claimant-original workman was confirmed, while the grant of continuity of service was set aside. Pursuant to the said order of the learned Single Judge and in compliance with the Award of the Labour Court to the extent it was confirmed, the appellant- Nagarpalika reinstated the claimant-workman with effect from 01.05.2007.

          6.1. It was further submitted that the said order of reinstatement, as confirmed by the learned Single Judge and the Co-ordinate Bench of this Court in Letters Patent Appeal No.1393 of 2017, has attained finality. Therefore, considering that the respondent-workman has been in service since 01.05.2007 and has completed more than ten years of service, even as on today, no illegality or perversity can be attributed to the order passed by the learned Single Judge. He, therefore, submitted that no interference is required in the present appeal and that the appeal is devoid of merits and is required to be dismissed.

7. Having heard the learned advocates appearing for the respective parties and having considered the facts of the case, it is not in dispute that the present respondent was working with Jetpur Nagarpalika since 1989 as a daily wager as on 05.04.1989 in the Octroi Department as naka clerk and was being paid minimum wages. Thereafter, he came to be terminated from service on 31.12.1990.

8. Further, after his initial termination, the respondent came to be reinstated in service with effect from 01.05.2007 pursuant to the Award passed by the Labour Court. The said Award was challenged by the appellant- Nagarpalika before learned Single Judge, which was partly allowed wherein the direction of reinstatement was confirmed and the direction granting continuity of service passed by the Labour Court, Rajkot, was set aside. Thereafter, upon reinstatement, the present respondent raised an industrial dispute by preferring a reference before the Industrial Tribunal. The said reference came to be partly allowed by the Industrial Tribunal, whereby the present appellant was directed to grant permanency to the respondent with effect from 01.01.2010, i.e. the date of the Award, for notional purposes, and further directed payment of monetary benefits from the date of the Award within a period of 30 days.

9. In this regard, it is now required to consider the findings recorded by the learned Single Judge in the impugned Judgment dated 25.09.2025, while dismissing the petition preferred by the present appellant wherein, the learned Single Judge observed as under:-

          "6. Having considered the arguments advanced by the learned advocates for the respective parties, and upon examining the record, it emerges that, as per the sanctioned set-up produced before the learned Labour Court in December 2012, out of 26 sanctioned posts of clerks, 12 posts remained vacant. Further, as per the seniority list dated 09.01.2013, the respondent's name was reflected at serial No.8, and employees at serial Nos.1 to 7, as well as those at serial Nos.10, 14, 15, and 16, were regularized pursuant to the orders passed either by this Court or by the learned Labour Court.

          6.1 It is not in dispute that the respondent possessed the educational qualification of SSC pass, as evidenced by the marksheet on record. Though it was contended that the respondent did not fulfill the recruitment rules, no such rules were ever placed on record by the employer. It is also undisputed that the respondent was initially appointed as a clerk in the year 1989, terminated on 27.12.1990, and thereafter reinstated pursuant to the Award passed by the learned Reference Court with effect from 01.05.2007. The Award granting reinstatement with continuity of service was challenged before this Court, which interfered only to the extent of denying continuity of service.

          6.2 It is pertinent to note that the seniority list relied upon is of 09.01.2013, i.e., subsequent to the respondent's reinstatement on 01.05.2007. Though the Reference was filed immediately upon reinstatement in July 2008, the learned Industrial Tribunal has balanced equities by granting permanency only with effect from 01.12.2019, while considering the period from 01.01.2010 to 01.12.2019 only for the purpose of notional benefits.

          6.3 It is true that length of service by itself may not automatically confer the right of permanency. However, when sanctioned posts remained vacant, and juniors to the respondent were regularized, denial of similar benefit to the respondent amounts to adoption of unfair labour practice. Further, paying the respondent minimum wages while extracting the same work as that of regular employees, who were paid more than double, amounts to exploitation. Therefore, no error can be said to have been committed by the learned Reference Court in granting permanency to the respondent.

          6.4 As regards the reliance placed on the decision in Krishan Gopal and Others (supra), it is noted that the said matter was referred to a Larger Bench to decide the scope and content of "unfair labour practice" under Section 2(ra) read with Item No.10 of the Fifth Schedule of the I.D. Act. Since no final pronouncement has yet been rendered by the Apex Court on that issue, the said decision does not advance the case of the petitioner.

7 With regard to the contention that the respondent did not possess the requisite educational qualification, this Court has referred to the recent decision of the Apex Court in Jaggo v. Union of India, 2024 SCC OnLine SC 3826, wherein it has been held that the conduct of the employers themselves demonstrates that such criteria were not strictly enforced in cases of regularization. The Apex Court further observed that long-standing and satisfactory performance of an employee itself attests to his capability to discharge the functions, and therefore, a rigid insistence on formal educational qualifications would amount to creating an unreasonable hurdle.

8 This Court in case of Dwarka appellant-Nagarpalika vs. Mantri Shree, Jamnagar Jilla Majdoor Sangh & Anr has observed as under:

          "8. Financial viability no doubt is one of the considerations but then such enterprise or institution should not spread its arms longer than its means. Where work is taken not for a short period or limited for a season or where work is not of part time nature and if pattern shows work is to be taken continuously year after year, there is no justification to keep such persons hanging as daily rate workers. In such situation a legal obligation is cast on an employer if there be vacant post to fill it up with such workers in accordance with rules if any. It is repeatedly submitted that without following the recruitment rules, their entries were made in the petitioner- appellant-Nagarpalika. No recruitment rules were filed in the proceedings either before the Tribunal or in the High Court on behalf of the petitioner- appellant-Nagarpalika."

9 Having considered the overall circumstances, this Court does not find any infirmity in the impugned Award. Accordingly, the petition fails and is hereby dismissed. Rule is discharged."

10. While dismissing the petition preferred by the present appellant - original petitioner, the learned Single Judge placed reliance upon the decision of the Hon'ble Apex Court in the case of Jaggo v. Union of India (supra) and also relied upon the judgment of the Co-ordinate Bench in the case of Dwarka appellant-Nagarpalika (supra).

11. Recently, the Hon'ble Apex Court, in the following decisions, has reiterated the principles of substantive nature of the roles of temporary service and continuous service akin to be permanent employee as under:-

          (i) In case of Vinod Kumar & Ors. Vs. Union of India (supra), the Hon'ble Apex Court held as under:

          "In light of the reasons recorded above, this Court finds merit in the appellants' arguments and holds that their service conditions, as evolved over time, warrant a reclassification from temporary to regular status. The failure to recognize the substantive nature of their roles and their continuous service akin to permanent employees runs counter to the principles of equity, fairness, and the intent behind employment regulations.

          (ii) In case of Jaggo Vs. Union Of India (supra), Hon'ble Apex Court held as under:

          "19. It is evident from the foregoing that the appellants' roles were not only essential but also indistinguishable from those of regular employees. Their sustained contributions over extended periods, coupled with absence of any adverse record, warrant equitable treatment and regularization of their services. Denial of this benefit, followed by their arbitrary termination, amounts to manifest injustice and must be rectified.

          22. The pervasive misuse of temporary employment contracts, as exemplified in this case, reflects a broader systemic issue that adversely affects workers' rights and job security. In the private sector, the rise of the gig economy has led to an increase in precarious employment arrangements, often characterized by lack of benefits, job security, and fair treatment. Such practices have been criticized for exploiting workers and undermining labour standards. Government institutions, entrusted with upholding the principles of fairness and justice, bear an even greater responsibility to avoid such exploitative employment practices.

          When public sector entities engage in misuse of temporary contracts, it not only mirrors the detrimental trends observed in the gig economy but also sets a concerning precedent that can erode public trust in governmental operations."

          (iii) In case of Dharam Singh & Ors. Vs. State of UP & Anr. (supra), Hon'ble Apex Court held as under:

          "Moreover, it must necessarily be noted that "ad-hocism" thrives where administration is opaque. The State Departments must keep and produce accurate establishment registers, muster rolls and outsourcing arrangements, and they must explain, with evidence, why they prefer precarious engagement over sanctioned posts where the work is perennial. If "constraint" is invoked, the record should show what alternatives were considered, why similarly placed workers were treated differently, and how the chosen course aligns with Articles 14, 16 and 21 of the Constitution of India. Sensitivity to the human consequences of prolonged insecurity is not sentimentality. It is a constitutional discipline that should inform every decision affecting those who keep public offices  running." 12. Considering the pronouncements of the Hon'ble Apex Court and the findings recorded by the learned Single Judge, it is evident that the present respondent had already been reinstated in service with effect from 01.05.2007 and had worked for more than 240 days in a year. In view of the said facts, the learned Industrial Tribunal has rightly granted the benefits of regularisation to the respondent.

13. Considering the aforesaid aspects, we are of the considered view that no illegality has been committed by the learned Single Judge. The findings recorded by the learned Single Judge are just and proper and do not require any interference by this Court. Accordingly, we do not find any reason to interfere with the impugned judgment.

14. In view of the foregoing reasons, the appeal, being devoid of any merit, is accordingly dismissed.

15. In view of the dismissal of the appeal, Civil Application would also not survive. Therefore, the Civil Application is disposed of accordingly.