[Cites 17, Cited by 0]
Bombay High Court
The Commissioner, Municipal ... vs Shri. Pravin Shantaram Ghag And Ors on 9 April, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:16877
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8783 OF 2024
1. The Commissioner, Municipal Corporation
of Greater Mumbai, CST Station, Fort,
Mumbai 400 001
2. Ujwala Deshpande, Legal Officer,
Legal Branch, Municipal Corporation of
Greater Mumbai, Oppo. CST Station,
Mumbai 400 001
ATUL 3. Smt. Jogi, Education Officer, Education
GANESH
KULKARNI Department, Municipal Corporation of
Digitally signed by
ATUL GANESH
KULKARNI Greater Mumbai, Dadar Hindu Colony,
Date: 2026.04.09
14:35:49 +0530
Lakhamshi Nappu Marg, Dadar (East),
Mumbai 400 014 ... Petitioners
Vs.
1. Pravin Shantaram Ghag
2. Mahesh Shantaram Ghag
3. Rakesh Vitthal Jadhav
4. Ashok Harishchandra Dabhade
5. Nilesh Ramchandra Haryan
6. Rajesh Ramchandra Haryan
7. Santosh Shriram Shelar
8. Haresh Shriram Shelar
9. Priyanka Prabhakar Ghag
10. Santosh Yashwant Salvi
11. Vasant Babu Varose
12. Santosh Ramchandra Tambe
13. Nilesh Dattaram Patkare
1
::: Uploaded on - 09/04/2026 ::: Downloaded on - 09/04/2026 23:29:13 :::
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14. Sandesh Shantaram Salvi
15. Arvind Babu Varose
16. Anil Ramnath Gound
17. Deepak Shyamu Kharat
18. Deepak Ganpat Sawant
19. Ajay Janardan Ahire
20. Arun Waman Thosar
21. Chandanshive Prashant Bhimrao
22. Pol Roshidas Keru
23. Khan Amjad Mehmood
24. Solanki Vijay Chhaganlal
25. Waman Shivram Pawar
26. Santosh Shivram Pawar
27. Jangale Sanjay Zilu ... Respondents
Mr. A.V. Bukhari, Senior Advocate with Mr. Burhan
Bukhari and Mr. Santosh Parad for the petitioners.
Mr. S.C. Naidu with Mr. Manoj Gujar, Mr. T.R. Yadav,
and Mr. Pradeep Kumar i/by C.R. Naidu & Co., for the
respondents.
CORAM : AMIT BORKAR, J.
RESERVED ON : MARCH 5, 2026.
PRONOUNCED ON : APRIL 9, 2026
JUDGMENT:
1. By the present writ petition instituted under Articles 226 and
227 of the Constitution of India, the petitioners have called in
question the legality and correctness of the Judgment and Award
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dated 5 January 2019 rendered by the Industrial Tribunal, Mumbai
in Reference (I.T.) No.10 of 2014.
2. The facts giving rise to the present proceedings, as pleaded
by the original complainants, may briefly be stated thus. The
Municipal administration of the City and Suburbs of Mumbai is
divided into 24 wards. There are approximately 1269 municipal
schools functioning under the Municipal Corporation of Greater
Mumbai. The sanctioned strength includes 231 posts of Mali-cum-
Caretaker and 602 posts of Hamal. Out of these, 94 posts of Mali-
cum-Caretaker and approximately 300 posts of Hamal are stated to
be vacant. It is the case that during the period 1991-1992, the
Education Officer issued tenurial appointment letters engaging
respondent No.1 on daily wage basis to discharge duties as Mali-
cum-Caretaker. A Circular dated 23 January 1992 was thereafter
issued by the Education Officer recording that, by Office Order
dated 14 December 1991, the Deputy Municipal Commissioner
(Improvement) had delegated powers to the Administrative Officer
(Schools) to make appointments of Mali-cum-Caretaker, Hamal
and Sepoy on daily wage basis, along with prescribing the terms
and conditions governing such appointments.
3. The respondents were engaged prior to 31 March 2002 as
daily rated workers for carrying out duties such as maintenance of
gardens, watering of plants, opening and closing of school
premises and safeguarding of property. It is not in dispute that the
nature of work so performed is of a regular and perennial
character within the schools. In the year 2001, a demand was
raised by the Municipal Mazdoor Union and other recognised
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unions before the Municipal Commissioner seeking regularisation
of such daily wage workers in view of existing vacancies. As the
demand remained unresolved, the Union proposed to resort to
strike action. In the year 2002, the Municipal Commissioner
intervened, assured the recognised unions that the demand would
be considered, and advised them to refrain from striking and to
continue work. The respondents accordingly continued in service
as daily rated workers up to the year 2002. Pursuant to
deliberations held on 27 November 2002, the Corporation
formulated a Scheme of Regularisation, commonly referred to as
the Scheme of 2002. The said scheme was brought into effect by
Circular No. PKA/1944/SC and contemplated continuation,
regularisation and absorption of daily rated workers. The scheme
provided that those workers who had completed 240 days of
continuous service in a calendar year would be appointed on
probation for two years, whereas those who had not completed
240 days would be appointed on probation for three years.
4. On 16 December 2002, the Education Officer directed the
concerned department to collect requisite particulars of daily wage
employees falling in both categories as contemplated under the
Circular dated 27 November 2002. The department thereafter
sought consent from the workmen in the year 2002 and forwarded
the lists to the Education Officer for further action. In December
2002, the Chief Labour Officer of the Corporation prepared a
common waiting list of daily wage workmen engaged between 1
July 1985 and 1 March 2002 who were eligible for consideration
under the Scheme of 2002. It is further the case that on 1 July
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2003, in view of the absence of concrete steps towards
regularisation, the Additional Municipal Commissioner (WS)
directed that Hamals and Mali-cum-Caretakers be absorbed on a
preferential basis without imposing pre-conditions, and instructed
the Joint Commissioner (GA) to prepare a detailed note.
Subsequently, on 28 April 2006, orders were issued directing that
198 Mali-cum-Caretakers and 46 Hamals, who had worked for
more than 30 days in a year, be absorbed against vacant posts in
accordance with seniority. On 29 June 2007, the Additional
Municipal Commissioner (ES) directed submission of a detailed
report regarding daily wage workmen and completion of
formalities for their absorption. It is further stated that between
December 2003 and July 2007, approximately 8400 similarly
situated daily wage employees in 70 departments of the
Corporation, excluding the Education Department, were absorbed
in terms of the policy dated 27 November 2002.
5. A series of meetings were held up to the year 2008 at various
administrative levels concerning the issue of regularisation and
absorption of the concerned workmen. However, by proposal dated
1 September 2008 and order dated 18 October 2008 passed by the
Municipal Commissioner, it was decided that daily rated workmen
could not be absorbed into permanent service of the Corporation
in view of the law laid down by the Supreme Court in State of
Karnataka vs. Umadevi. Thereafter, from the year 2009 onwards,
the work earlier performed by Mali-cum-Caretakers and Hamals
came to be outsourced to contractors, namely BVG, Crystal and
another contractor.
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6. Being aggrieved, 752 workmen challenged the aforesaid
order dated 18 October 2008 as well as the outsourcing of work by
filing Writ Petition No.585 of 2012, inter alia seeking
implementation of the Scheme of 2002. By order dated 13
September 2012, this Court disposed of the petition by granting
liberty to the concerned workmen to raise an industrial dispute
before the appropriate Labour or Industrial Court.
7. Thereafter, on 15 October 2013, 27 workmen employed as
Mali-cum-Caretaker and Hamal in the Education Department, out
of the said 752 workmen, raised an industrial dispute claiming
entitlement to salary benefits, annual increments and continuity of
service from January 2003 onwards, along with absorption and
regularisation in the services of the Corporation as Class IV
employees. The said dispute came to be admitted in conciliation.
8. On 18 March 2014, the Deputy Commissioner of Labour, by
order bearing No.812, referred the dispute raised by the
respondents for adjudication to the Industrial Tribunal. The
reference was registered as Reference (I.T.) No.10 of 2014. The
respondents filed their statement of claim on 10 July 2014, and
the petitioners filed their written statement on 27 November 2014.
Oral evidence on behalf of both sides was thereafter recorded
during the period from 7 January 2015 to 25 February 2015.
9. By Award dated 7 March 2015, the Industrial Tribunal
allowed the reference and directed the Corporation to absorb on
regular basis the 27 workmen named in Annexure-A to the order
of reference from the date of the Award, along with payment of
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wages and consequential benefits in accordance with applicable
rules. The Corporation challenged the said Award by filing Writ
Petition No.6548 of 2015. By order dated 21 October 2016, a
learned Single Judge of this Court set aside the Award and
remanded the matter for de novo consideration, granting liberty to
the parties to adduce additional documentary and oral evidence.
10. Upon remand, the respondents filed an additional statement
of claim on 20 January 2017, to which the petitioners filed an
additional written statement. Thereafter, by the impugned Award
dated 5 January 2019, the Industrial Tribunal held that the 27
workmen were entitled to absorption and regularisation with
effect from January 2003 and further awarded lump sum
compensation of Rs.10,00,000 to each of the workmen for the
intervening period from 2003 to 2018. The said Award was
published on 20 March 2019 and became enforceable on 20 April
2019 under Section 17 of the Industrial Disputes Act. Aggrieved
thereby, the present writ petition has been instituted on 25 June
2019 challenging the said Award.
11. Mr. Bukhari, learned Senior Advocate appearing for the
petitioners, submitted that the appropriate Government is
empowered to make a reference under Section 10 of the Industrial
Disputes Act, 1947 only when an industrial dispute exists or is
apprehended between the parties. It was urged that, at the time
when the reference came to be made, neither any industrial
dispute existed nor was any such dispute apprehended. According
to him, there was no subsisting employer-employee relationship
between the parties. Reliance was placed on the judgment of the
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Apex Court in Oshiar Prasad v. Employees in relation to
Management of Sudamih Coal Washery of M/s Bharat Coking Coal
Ltd., (2015) 4 SCC 71, particularly paragraph 30, wherein it has
been held that a reference for examining the issue of absorption, in
the absence of a valid industrial dispute, is misconceived.
Proceeding on the aforesaid submission, it is contended that the
Industrial Tribunal lacked jurisdiction to adjudicate upon the issue
of absorption and regularisation. It is submitted that the Tribunal
could not have entered into the merits of the claim once the
reference itself was not maintainable. The Award is, therefore,
assailed as being illegal and contrary to the settled position of law.
It is further urged that though Issue No.1 regarding maintainability
was framed, the Tribunal has failed to consider the same in its
proper perspective. It is pointed out that, admittedly, the
respondent workmen were not in employment at the time of
raising the dispute, a fact which also finds acceptance in paragraph
59 of the Award. Despite this, the Tribunal has, without adequate
reasoning, held the reference to be maintainable. According to the
petitioners, the Tribunal has ignored material evidence led by the
Corporation and has also failed to apply the ratio of the judgment
in Oshiar Prasad. This, it is submitted, demonstrates non-
application of mind and constitutes a manifest error of law
warranting interference.
12. It is further submitted that, as per the demand letter and
statement of claim, the engagement of the respondents came to be
discontinued at various points of time between 1991 and 2001.
Reference is made to the chart produced on record indicating that
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several respondents had worked for short durations ranging from
11 days to 88 days and were discontinued in different years such
as 1995, 1997, 1998, 1999, 2000 and 2001. The reference,
however, was made only on 18 March 2014. According to the
petitioners, there is thus an inordinate delay ranging from 13 to 19
years in raising the dispute. It is submitted that none of the
respondents were in service at the time of raising the dispute and
no satisfactory explanation has been offered for such delay. The
only justification noted by the Tribunal is that the workers and the
Union were making representations from time to time. It is
contended that mere correspondence cannot constitute a valid
explanation for delay. It is further urged that the respondents did
not challenge their discontinuation at any point of time, even after
becoming aware in 2008 of the decision not to regularise workers
who had not completed 240 days of service. In such circumstances,
it is submitted that the Tribunal ought to have rejected the
reference on the ground of delay and laches. It is also contended
that the Industrial Tribunal has granted relief of reinstatement
without framing any issue in that regard. According to the
petitioners, neither was there any issue pertaining to illegal
termination nor any issue regarding entitlement to reinstatement.
The parties were, therefore, not put to notice that such relief was
under consideration. Despite this, the Tribunal has, in clause (iii)
of the Award, directed reinstatement of all 27 workmen. It is
submitted that such a direction travels beyond the terms of
reference, the pleadings and the issues framed, and is therefore
unsustainable in law. It is further urged that the terms of reference
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did not encompass any dispute relating to grant of lump sum
compensation, back wages or monetary benefits for the alleged
dispute period.
13. The petitioners submit that the workmen had neither
pleaded nor specifically claimed any lump sum monetary
compensation of Rs.10,00,000. The statement of claim does not
disclose any quantified claim, nor was any evidence led to
establish the basis or method of computation of such
compensation. In absence of pleadings and proof, the Tribunal
could not have granted such relief. By awarding a lump sum
amount of Rs.10,00,000 to each workman, the Tribunal has,
according to the petitioners, travelled beyond the scope of the
reference and exercised jurisdiction not vested in it.
14. It is further submitted that the reference did not contain any
demand concerning grant of pay scale or consequential benefits at
par with permanent employees. Despite this, the Tribunal framed
an issue and granted relief in that regard with effect from 2003,
which is beyond the scope of the reference. It is contended that a
policy decision taken by a competent authority continues to be
binding unless set aside by a court of competent jurisdiction. The
Industrial Tribunal, it is submitted, could not have ignored such
policy decision in the absence of any challenge to its validity. In
that context, it is urged that the decision of the Municipal
Commissioner refusing regularisation to workers who had not
completed 240 days of service governs the field. Consequently,
Clause 3 of the Circular dated 27 November 2002 could not have
been invoked in favour of such workers unless the said policy
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decision was set aside. It is further submitted that the workmen
were aware of the said policy decision at least by the year 2011, as
is evident from the cross-examination of witness Pravin Ghag.
Despite such knowledge, no steps were taken to challenge the said
decision either in the present proceedings or otherwise. The
demand was raised only in 2013 and the reference was made in
2014. This conduct, according to the petitioners, disentitles the
respondents from claiming any relief.
15. The petitioners further contend that the Tribunal has failed
to consider material evidence on record. It is pointed out that only
limited portions of the affidavit of one witness, Govind Kulkarni,
have been referred to, whereas the evidence of another witness, M.
Kale, has not been considered at all. There is no discussion of his
deposition in the Award, which, according to the petitioners,
reflects non-consideration of relevant evidence. It is also submitted
that even where certain portions of the cross-examination of
witness Kale have been reproduced, the Tribunal has failed to
consider the substantive evidence contained in the affidavits in
examination-in-chief of both Kale and Kulkarni, particularly in
relation to policy decisions, eligibility conditions and service
particulars. The petitioners submit that the entire claim of the
workmen was based on Clause 3 of the Circular dated 27
November 2002. Therefore, for establishing discrimination, it was
necessary for the Tribunal to examine whether similarly situated
employees had been regularised under the said clause.
16. In this regard, it is submitted that, as far as 83 employees of
the Deonar Slaughter House are concerned, the record clearly
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indicates that their regularisation was not under Clause 3 of the
Circular of 2002, but pursuant to a separate policy decision dated
1 September 2007, which is also admitted in the statement of
claim. It is, therefore, contended that none of the employees relied
upon for comparison were regularised under Clause 3 of the
Circular dated 2002. Most of them had either completed 240 days
of service or were regularised under independent policy decisions.
17. It is further submitted that the said employees were working
in different departments under different administrative and policy
frameworks, and therefore, no parity could be claimed by the
present workmen. The petitioners also challenge the reliance
placed on documents marked as U-112. It is submitted that these
documents were not proved in accordance with law, as they were
not tendered through any competent witness. The witness Salvi
has not referred to these documents in his evidence. The
documents were produced after completion of evidence, at the
stage of arguments, and their production was objected to by the
petitioners. It is, therefore, contended that the said documents are
inadmissible in evidence. It is further submitted that the Tribunal
has relied upon document U-8, namely a letter dated 10 January
2005 and minutes of meeting dated 19 October 2005, to hold that
30 days of service is sufficient for regularisation under Clause 3 of
the Circular dated 27 November 2002.
18. According to the petitioners, a plain reading of the said
documents does not support such conclusion. There is no reference
to Clause 3 of the Circular nor any indication that the requirement
of 240 days was diluted or modified. On the contrary, it is
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submitted that the minutes of the meeting clearly indicate that
workers who had completed 30 days were only to be placed on a
waiting list for engagement as daily wagers and not for
regularisation. The Tribunal has, therefore, misconstrued the said
documents. It is also pointed out that respondent No.1, in his
evidence, has admitted that duties were assigned to him only in
the absence of regular employees during their leave period.
Similarly, another witness has admitted in cross-examination that
he had worked only for short durations in different years and
further admitted that permanency was granted only to those who
had completed 240 days of continuous service. It is thus submitted
that none of the respondents had completed 240 days of service in
any calendar year. It is further contended that they were engaged
on daily wages without issuance of appointment letters and had
executed undertakings stating that they would not claim
permanency and would work against leave vacancies. Having
accepted such terms without protest, they are estopped from
raising a claim for regularisation.
19. The petitioners further submit that the respondents were not
appointed through any regular selection process. Evidence has
been led to show that appointments in the Corporation are
required to be made in accordance with prescribed rules and
procedures, which were not followed in the present case. No
advertisement was issued, no selection process was undertaken
and no names were called from the Employment Exchange. It is,
therefore, contended that the engagement of the respondents was
dehors the constitutional scheme of public employment and they
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cannot claim regularisation as a matter of right. Reliance is placed
on the law laid down by the Apex Court in State of Karnataka v.
Umadevi, 2006(4) SCC 1.
20. It is further submitted that the Circular dated 27 November
2002, having been issued by the Municipal Commissioner, could
not be overridden by subordinate authorities. The Tribunal has
misinterpreted the said Circular. It is also pointed out that the
subsequent decision dated 4 October 2008 declining regularisation
to those who had not completed 240 days has not been challenged
by the respondents.
21. The petitioners further rely on the settled position of law
that mere completion of 240 days does not confer any right to
regularisation, much less in cases where the initial appointment is
not in accordance with rules. Reliance is placed on the judgment in
M.P. Housing Board v. Manoj Srivastava, 2006(2)SCC 702, wherein
it has been held that completion of 240 days does not by itself
create a right to permanency. It is also submitted that the
regularisation of 83 labourers at the Deonar Slaughter House was
pursuant to a one-time policy decision taken after considering the
recommendations of the National Commission for Safai
Karamcharis. The said employees were working under different
conditions and for long periods and cannot be compared with the
respondents. It is further contended that past instances of
regularisation do not create any enforceable right in favour of
others.
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22. It is further submitted that the Circulars relied upon by the
respondents stood superseded by the decision dated 18 October
2008 taken in view of the law laid down in Umadevi. Therefore,
no right can be claimed on the basis of the Circular dated 27
November 2002, which in any event was applicable only to those
in employment at the relevant time.
23. In rejoinder, Mr. Bukhari submitted that even the procedural
aspects have not been complied with by the respondents. It is
pointed out that not all workmen have signed the Vakalatnama,
which fact has been admitted in cross-examination. Only two
witnesses have been examined on behalf of 27 workmen. It is
submitted that an authorised representative cannot depose on
behalf of all workmen when their individual service particulars
differ and are within their personal knowledge. Each workman
was required to establish his own case. It is further submitted that
the allegation regarding absorption of 8400 daily rated workers is
not supported by any evidence. No records have been produced to
substantiate the same. As regards the employees of Deonar
Slaughter House, it is reiterated that their regularisation was
pursuant to a separate policy decision. In the case of Bhujgonda, it
is submitted, the facts were entirely different as the workman had
completed 240 days of service and his services were terminated.
24. In light of the aforesaid submissions, it is contended that the
impugned Award dated 5 January 2019 suffers from serious legal
infirmities and is liable to be quashed and set aside in exercise of
writ jurisdiction under Articles 226 and 227 of the Constitution of
India. It is, therefore, prayed that the writ petition be allowed and
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the Rule be made absolute in terms of prayer clause (a).
25. Per contra, Mr. Naidu, learned Advocate appearing for the
respondents, submitted that the objection regarding absence of
signatures of all individual workmen on the Statement of Claim
and the contention that all respondents did not lead evidence is an
afterthought. It is pointed out that such a plea was neither taken in
the original Written Statement nor in the additional Written
Statement, and was also not urged in the earlier writ proceedings.
It is submitted that absence of signatures of every workman is not
fatal so long as the dispute has been properly espoused.
Proceedings under the Industrial Disputes Act are required to be
construed on the basis of substance rather than technical form.
Reliance is placed on paragraph 34 of the petition, wherein the
witness has categorically deposed that he was authorised to depose
on behalf of all 26 workmen. It is further submitted that the said
statement was not challenged by the Corporation at the relevant
time, nor was any evidence led to show lack of authority.
26. It is further submitted that the delay in reference of the
dispute is attributable to the conduct of the Corporation and not to
the concerned workmen. It is urged that the recognised Union had
raised an industrial dispute seeking regularisation of Khadabadli,
casual and daily rated workers employed in various departments of
the Corporation. In order to press the demand, the Union had
proposed to resort to strike. However, the Municipal Commissioner
intervened and assured consideration of the demand, thereby
persuading the workmen not to proceed on strike. It is submitted
that, on the basis of such assurance, the workmen continued in
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service and negotiations were held between the Municipal
Authorities and the Union. These negotiations culminated in
formulation of a scheme for continuation, absorption, and
regularisation of daily rated workers, embodied in Circular dated
27 November 2002. It is further submitted that the said Circular
was issued under the authority of the Municipal Commissioner and
is binding on the Corporation and its officers in view of Sections
54 and 64(3) of the Mumbai Municipal Corporation Act.
27. It is submitted that, in furtherance of the Scheme of 2002,
subsequent circulars and communications were issued calling for
details of daily rated workmen, including their service particulars.
By Office Memorandum dated 20 April 2006, directions were
issued to absorb certain categories of workers who had worked for
more than 30 days in a year. Further directions were issued in
2007 calling for detailed reports and completion of formalities for
absorption. It is contended that in the report so prepared, the
respondents were shown as eligible for absorption and
regularisation, which document has not been disclosed by the
petitioners. It is further submitted that the Scheme of 2002 was
implemented in respect of a large number of daily rated workers in
other departments, numbering about 8400, who were continued
and absorbed between 2003 and 2007, whereas similarly situated
workers in the Education Department were denied such benefit.
28. It is further submitted that, in August 2007, 83 daily rated
workers at the Deonar Slaughter House, including those who had
worked for less than 240 days, were absorbed on the basis of the
Scheme of 2002. It is pointed out that the Corporation's own
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witness has admitted that several meetings were held between
2002 and 2008 regarding regularisation. It is further submitted
that the Union continued to pursue the demand for absorption at
various levels, including with elected representatives and
ministers. The Corporation's witness has also admitted that
meetings were proposed at higher levels in this regard. These facts,
it is submitted, have been duly recorded by the Tribunal.
29. It is submitted that, in the absence of any response from the
Corporation, 77 workmen, including the present respondents,
approached this Court by filing Writ Petition No.585 of 2012
seeking implementation of the Scheme of 2002. By order dated 13
November 2012, this Court directed the workmen to raise an
industrial dispute. Thereafter, the respondents raised a dispute in
2013 seeking reinstatement, continuity of service, wages, and
regularisation. The conciliation proceedings failed, and a failure
report was submitted under Section 12(5) of the Act.
Consequently, by order dated 18 March 2014, the dispute was
referred for adjudication. It is submitted that the Tribunal has
considered these facts while dealing with the issue of delay and
has returned a finding in favour of the respondents based on
evidence on record.
30. It is further submitted that the reference made is composite
in nature and encompasses two interconnected disputes, namely,
discontinuation of service and the claim for absorption and
regularisation. It is urged that both aspects fall within the
jurisdiction of the Industrial Tribunal. It is contended that the
primary dispute pertains to non-implementation of the Scheme of
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2002, particularly Clauses 3 and 4 thereof. It is further submitted
that a substantial number of workmen were in employment at the
time of introduction of the scheme, and even the Corporation's
witness has admitted the possibility of the respondents having
worked after 1 January 2002.
31. It is submitted that both parts of the reference are
interdependent. The issue of regularisation and absorption is
linked with the question of continuity of service and entitlement to
wages and benefits. It is urged that the Tribunal has considered
both aspects and has granted relief after balancing equities. The
Tribunal has declined full back wages, observing that it would not
be appropriate to impose the entire financial burden on the
Corporation, and has instead granted lump sum compensation
while directing reinstatement and regularisation.
32. It is further submitted that once a reference is made by the
competent authority, the Tribunal is bound to adjudicate the
dispute on merits, subject to existence of jurisdictional facts. It is
contended that the decision in Oshiar Prasad is distinguishable, as
in that case the reference was limited only to regularisation
without any issue regarding termination. In the present case, the
reference specifically includes the issue of discontinuation of
service, which empowers the Tribunal to examine the legality of
such discontinuation and grant consequential relief.
33. It is further submitted that the Corporation's own evidence
establishes that the Scheme of 2002 was implemented in respect of
several categories of workers, including 8400 daily rated workers
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in various departments, 83 workers at Deonar Slaughter House,
and certain employees in the Education Department who were
regularised pursuant to court orders. It is contended that these
employees were similarly situated as the respondents.
34. It is also submitted that similarly situated employees such as
R.P. Mishra, Bhujgonda Kamble and others were granted relief of
reinstatement and regularisation pursuant to judicial orders, which
have attained finality. It is urged that the respondents are
identically placed and denial of similar treatment amounts to
discrimination. The Tribunal has, on appreciation of evidence,
recorded a finding of discrimination and arbitrariness in
implementation of the Scheme of 2002, which violates Articles 14
and 16 of the Constitution.
35. It is further submitted that the law laid down by the Apex
Court in subsequent decisions has clarified the position regarding
regularisation of long-serving daily wage employees. Reliance is
placed on the decision in Shripal v. Nagar Nigam, Ghaziabad, 2025
SCC OnLine SC 221, wherein it has been held that the State is
under an obligation to act as a model employer and cannot deny
regularisation to eligible employees by relying on its own inaction.
It is submitted that where employees have worked for long periods
against sanctioned posts, their appointments are irregular and not
illegal, and they are entitled to consideration for regularisation.
36. Reliance is also placed on the decision in Jaggo v. Union of
India, 2024 SCC OnLine SC 3826 wherein the Apex Court has held
that continued engagement of workers for long periods establishes
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the perennial nature of work and the State cannot deny
regularisation by invoking the principle laid down in Umadevi. It is
submitted that such denial would be arbitrary and unjust.
37. Further reliance is placed on the decision in Dharam Singh v.
State of U.P., 2025 INSC 998 wherein the Apex Court has
deprecated the practice of continuing workers on daily wages for
long periods and has held that the State cannot rely on financial
constraints to deny regularisation. It is submitted that selective
regularisation of some employees while denying the same to others
similarly situated is violative of Article 14.
38. It is also submitted that in Pawan Kumar v. Union of India,
2026 INSC 156 the Apex Court has reiterated that similarly
situated employees cannot be treated differently and that
outsourcing of work indicates its perennial nature. It is urged that
denial of regularisation in such circumstances amounts to
discrimination and arbitrariness.
39. In light of the aforesaid submissions, it is contended that the
writ petition is devoid of merit and not maintainable. It is
submitted that the Award passed by the Industrial Tribunal is legal
and justified and does not warrant interference in writ jurisdiction.
The respondents, therefore, pray for dismissal of the petition with
costs and for implementation of the Award.
REASONS AND ANALYSIS:
40. I have carefully considered the contentions of the parties and
the material placed on record. I now proceed to examine this issue
in some detail, so that the objection raised by the petitioners is
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properly understood and answered.
Maintainability of the Reference:
41. On the question of maintainability of the reference, the
petitioners have strongly argued that the reference itself was not
maintainable. According to them, on the date when the reference
was made, there was no existing relationship of employer and
employee between the parties. They say that the workmen were
already discontinued long back. Therefore, there was no industrial
dispute in existence or even apprehended. On this basis, they rely
upon the judgment in Oshiar Prasad, where the Supreme Court
has held that if the workmen are already out of service and no
dispute regarding termination is referred, then the Tribunal cannot
go into the question of absorption. The Court in that case clearly
observed that such a reference is misconceived.
42. In Oshiar Prasad, the dispute which was referred did not
include the issue of termination at all. Because of that, the Court
said that there was no existing relationship left, and therefore, no
question of deciding absorption. Here, the workmen have not
come before the Tribunal only asking for absorption in a vacuum.
They have specifically raised a dispute that their services were
discontinued and that such discontinuation was not proper. They
have asked that they be taken back in service, with continuity from
January 2003, and thereafter be regularised. This is a combined
claim. It includes the issue of discontinuation as well as the issue
of future service. I also find that the reference order dated 18
March 2014 clearly shows this position. It is not limited only to
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absorption. It speaks about continuity of service from January
2003 and also about absorption and regularisation. This shows
that the appropriate Government was aware of the full nature of
the dispute and has referred both aspects together. So, I cannot
read the reference in a restricted manner. In fact, when I read the
reference as a whole, it appears to me that it is of a composite
nature. One part of the dispute is whether the workmen were
wrongly discontinued. The second part is whether, if that is so,
they are entitled to be taken back and regularised. These two parts
cannot be separated. They are connected. If discontinuation is
found improper, then the question of reinstatement and
regularisation naturally follows. Therefore, I am unable to accept
the argument that there was no industrial dispute in existence. The
workmen had already raised a dispute in the year 2013. They had
demanded that they should be taken back with continuity and
regularisation. This itself is sufficient to show existence of an
industrial dispute. It is not necessary that the workmen must be
physically in service at that moment. What is required is a dispute
relating to employment or non-employment. Here, the dispute
clearly relates to non-employment and its consequences.
43. I also cannot ignore that the dispute went through the
process of conciliation and thereafter a failure report was
submitted. Only then the reference was made. This itself shows
that the machinery under the Industrial Disputes Act was properly
followed. In these circumstances, I am of the view that the
Tribunal did have jurisdiction to examine the dispute on merits.
The objection raised by the petitioners that the reference was
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misconceived does not hold good when the entire factual
background is taken into account. Thus, I find that the reliance
placed on Oshiar Prasad is misplaced in the facts of the present
case. That judgment applies where the dispute is incomplete and
does not include the question of termination. Here, the dispute is
complete and covers both discontinuation and regularisation. For
these reasons, I hold that the reference was maintainable, and the
Tribunal was justified in proceeding to decide the same. The
contention of the petitioners on this point is therefore rejected.
Delay and latches:
44. I now turn to the objection raised by the petitioners
regarding delay and laches, which according to them goes to the
root of the matter.
45. The petitioners have argued that the workmen have
approached the machinery of law after long delay. According to
them some of the workmen were last engaged somewhere in the
1990s and yet the dispute came to be raised only in the year 2013.
They say that by that time many years had already passed, and
therefore such stale claims ought not to have been entertained. It
is further submitted that on the date when the dispute was raised,
admittedly none of the workmen were in service. From this the
petitioners argue that if the workmen really believed that their
discontinuation or non-absorption was wrongful, they should have
taken steps immediately and not waited for so many years. Delay
in approaching a forum is always a matter of concern. Law does
not assist a person who sleeps over his rights. But at the same time
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I cannot look at delay, without examining the circumstances which
led to such delay.
46. From the record, I find that the recognised Union had raised
a demand for regularisation of daily rated workers as early as in
the year 2001. This was raised through the Union representing the
workers. It also appears that the Union had gone to the extent of
proposing a strike to press this demand. This shows that the issue
was actively pursued. At that stage, the Municipal Commissioner
himself intervened and assured that the demand would be
considered. Because of this assurance coming from the highest
authority in the Corporation, the workers chose not to go on strike.
In my view, the workers trusted the assurance given by the
authority and did not take immediate steps. Therefore, it cannot be
said that they were inactive at that stage. Thereafter, I find that
discussions took place between the authorities and the Union.
These were discussions involving officials and representatives of
the workers. As a result of these discussions, the Scheme of 2002
came to be framed. This scheme was issued with approval of the
Municipal Commissioner. This shows that the issue of
regularisation was taken up at the higher level. Further I find that
steps were actually taken to implement this scheme. Circulars were
issued in the years 2004 and 2005 asking for details of daily wage
workers. This indicates that the Corporation was collecting data
for the purpose of implementation. In 2007, further directions
were given to complete the process. All this shows that the scheme
was being actively worked upon. It also comes on record that a
large number of workers of about 8400 were absorbed in different
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departments. This shows that the Corporation accepted the need
for regularisation. However I find that the workers from the
Education Department, including the present respondents, were
not given the same benefit.
47. I also find that even after the year 2008, the matter did not
come to an end in the way the petitioners are trying to suggest. On
the contrary, the material on record shows that the issue of
absorption of these workers continued to remain under
consideration. From the evidence, it appears that meetings were
still being held at different levels within the Corporation and also
with higher authorities. They were part of a process where the
question of regularisation and absorption was being discussed.
This indicates that the Corporation had not treated the matter as
concluded. I also find that the Union did not remain silent after
2008. The Union continued to take up the issue with various
authorities. They approached not only officers of the Corporation,
but also public representatives such as Municipal Councillors,
Members of the Standing Committee, and even Ministers. This
shows that the workers were making efforts at multiple levels to
get their grievance addressed. They were trying to resolve the issue
through available channels before resorting to litigation. Even the
witness of the Corporation has admitted that such meetings were
taking place. This admission shows that the Corporation was itself
aware that the issue was under discussion. If the matter had been
finally closed in 2008, there would have been no reason for such
continued meetings and discussions. In my view, this conduct on
the part of both sides shows that the issue did not become stale
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after 2008. It was being pursued by the workers and was also
being considered by the authorities. Therefore, I find that the
argument of the petitioners that the respondents remained inactive
after 2008 is not borne out from the record. The meetings,
correspondence, and involvement of higher authorities show that
the dispute was alive and was under consideration for a long
period.
48. It further appears that when no final decision was taken, a
group of 77 workers, including the present respondents,
approached this Court in the year 2012. This step shows that when
the process did not give results, the workers ultimately turned to
the Court. This Court then directed them to raise an industrial
dispute. It is thereafter that the present reference came to be made
in 2014. So, the litigation process began only after the earlier
efforts failed.
49. From this sequence of events, I find that the delay is not
without explanation. It is not a case where the workers slept over
their rights. The delay is connected with negotiations, assurances
given by the authorities, and partial implementation of the scheme
by the Corporation itself. Therefore, in my view, the explanation
for delay is reasonable and acceptable in the facts of this case.
50. The Tribunal has considered this aspect in its Award and has
come to the conclusion that the delay is attributable more to the
inaction on the part of the Corporation rather than to any
negligence of the workmen. I do not find this conclusion to be
unreasonable. It is also necessary to remember that under the
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Industrial Disputes Act, there is no fixed limitation period for
raising a dispute. Of course, delay can still be a ground to refuse
relief if it causes prejudice or if the claim becomes stale beyond
justification. But that is a matter of facts in each case.
51. Taking all these factors together, I am not inclined to accept
the submission of the petitioners that the claim is barred by laches.
The delay in the present case is explained and does not appear to
be so unreasonable as to defeat the claim. Therefore, I hold that
the objection regarding delay and laches is not sufficient to non-
suit the workmen. The Tribunal was justified in proceeding with
the reference, and its finding on this aspect does not call for
interference.
Reliefs Beyond the Scope of Reference:
52. I now deal with the next contention raised by the petitioners,
which relates to the nature of relief granted by the Tribunal. The
petitioners have argued that the Tribunal has granted relief which
was never asked for by the workmen and was also not part of the
reference. They have pointed out two specific aspects. First, that
the Tribunal has directed reinstatement of all 27 workmen.
Second, that it has awarded a lump sum amount of Rs.10,00,000
to each workman for the period from 2003 to 2018. According to
them, both these directions are beyond the pleadings and beyond
the reference, and therefore cannot be sustained.
53. I will examine both these objections separately. So far as the
first objection regarding reinstatement is concerned, I do not find
much substance in the argument of the petitioners. It is true that
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no separate issue was framed in so many words regarding "illegal
termination". It is also true that the word "reinstatement" may not
have been specifically used as an independent prayer. But I cannot
read the pleadings and the reference in such a narrow and
technical manner. When one look at the case of the workmen as a
whole, I find that their main grievance was that they were
discontinued and not taken back in service and that they should be
given continuity from January 2003 and thereafter be regularised.
This clearly shows that they were asking to be brought back into
service. Continuity of service means that the break is ignored and
the service is treated as continuing. Such a claim involves putting
the workman back into service. The reference also uses the
expression "continuity of service from January 2003" along with
absorption and regularisation. These expressions cannot be
separated. If continuity is to be granted the logical result is that
the workman must be taken back. Otherwise the direction of
continuity becomes meaningless. The Tribunal has used the
expression "reinstated" or "taken back on work". In my view this is
nothing but giving effect to what was already claimed by the
workmen. It is not a new or additional relief. It is the natural
consequence of the claim for continuity and regularisation.
Therefore, I am of the view that the direction of reinstatement
does not travel beyond the scope of the reference. It remains
within the framework of the dispute which was referred. The
petitioners' objection on this count cannot be accepted.
54. However, when I come to the second part regarding lump
sum compensation, the position is different and requires closer
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scrutiny. The petitioners have rightly pointed out that the workmen
had not claimed any lump sum amount of Rs.10,00,000 in their
statement of claim. What they had asked for was salary, benefits,
increments and continuity from the year 2003, as if they were in
service. In other words their claim was in the nature of back wages
or consequential monetary benefits flowing from continuity.
Instead of examining that claim and granting or refusing it on
evidence the Tribunal has awarded a fixed amount of Rs.10,00,000
to each workman as compensation for the intervening period. I
find that there is no clear basis for arriving at this figure. There is
no discussion as to how this amount is calculated. There is no
evidence showing loss of wages to that extent. There is also no
pleading from the side of the workmen asking for such lump sum
compensation.
55. In law, a Tribunal is required to decide the dispute which is
referred to it. It cannot travel outside the pleadings and grant
relief which was never asked for. Particularly in matters involving
monetary claims, there must be some foundation. Either there
must be a specific claim or there must be evidence on record to
justify the amount. Here both are missing. The amount appears to
have been fixed by the Tribunal on its own notion of fairness.
While the intention may have been to balance equities such an
approach cannot replace legal reasoning. A Tribunal cannot grant a
large monetary amount merely because it feels it would be just.
The respondents have tried to justify this by saying that the
Tribunal was attempting to compensate the workers in place of full
back wages. But even for that, there must be some basis. Without
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pleadings and without evidence, such a direction cannot be
sustained. Therefore I am inclined to agree with the petitioners on
this aspect. The direction awarding Rs.10,00,000 to each workman
is beyond the scope of the reference and is not supported by any
legal foundation. To that extent, the Award suffers from error. In
view of this I hold that while the Tribunal was justified in directing
reinstatement and considering regularisation from 2003, it was not
justified in awarding lump sum compensation in the manner it has
done.
56. Accordingly the Award requires to be modified. The direction
relating to lump sum compensation cannot be sustained and is
liable to be set aside. The remaining part of the Award, insofar as
it grants reinstatement and consequential service benefits in
accordance with law, does not call for interference.
Employer-Employee Relationship and 240-Day Rule:
57. I now deal with the submissions advanced by learned Senior
Counsel Mr. Bukhari on behalf of the petitioners. According to him
it is not in dispute on record that all the 27 respondents were
engaged only on daily wage basis and that too against leave
vacancies. I find that this submission is supported by the material
placed on record. The case of the petitioner is that whenever
regular employees working as Gardener or Mali-cum-Caretaker
were on leave or absent, temporary arrangements were made to
ensure that the work of the schools did not suffer. For that limited
purpose, persons like the respondents were engaged on daily
wages under the Circular dated 23 January 1992. I further notice
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that Respondent No.1, Mr. Pravin Ghag, in his evidence has clearly
stated that he was given work only when regular employees were
absent. This is a direct admission. Similarly the second witness
examined on behalf of the respondents has also admitted in cross-
examination that he worked only for few days in different years.
He stated specific figures. Only 9 days in one year, 26 in another,
10 in another, and about 30 days in one year. These are not long
periods. These are short and broken periods. He also admitted that
permanency is given only when a person completes 240 days in a
year. This admission is very important. It shows that even
according to the respondents, completion of 240 days is necessary.
I also find that except these two witnesses, no other respondent
has come forward to give evidence. This is a weakness in their
case. If 27 persons are claiming regularisation, then they were
required to at least show their period of work by stepping in the
witness box either personally or through coworker . That is not
done. No individual details are proved. No records are produced
through proper evidence. Therefore the claim remains
unsupported.
58. From the material, I am satisfied that the engagement of the
respondents was only during the leave period of regular
employees. It was not continuous. It was only to fill temporary
gaps. The Corporation runs many schools. In such setup, whenever
one employee goes on leave, some arrangement has to be made.
The respondents were used for that purpose. Even their own
witness has admitted that they were working in different schools
as per requirement. This shows that their engagement was need-
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based and not regular. The chart produced by the petitioners
further supports this position. It shows year-wise working days
from 1993 to 2001. On looking at this chart, it becomes clear that
the respondents have worked only for few days in a year. In some
cases only 9 days. In some, 20 or 30 days. The respondents
themselves have also filed their own chart. That also shows similar
figures. There is no serious dispute about number of days worked.
If I take examples from the record, one respondent worked for 9
days in a year. Another worked for 11 days. Another for 30 days.
Some worked for 30 to 40 days spread over two or three years.
These figures do not show continuous work. They show occasional
engagement. Such kind of work cannot be treated as regular
service. From this material, one conclusion clearly follows. None of
the respondents has completed 240 days in any calendar year.
There is no evidence to show that they have worked continuously.
59. It is also not disputed that the respondents were paid only
daily wages. No appointment letters were issued to them. At the
time of their engagement, they had executed what is called "Hami
Patra". This fact is also admitted in evidence. This document is
important because it shows the understanding between the parties
at the time of engagement. The Hami Patra clearly states that the
respondents will not claim permanency and that they are being
engaged only against leave vacancies. This means they were fully
aware of the nature of their engagement. They accepted these
conditions. They continued to work under those conditions. At that
time, they did not raise any objection. In such situation, it is not
open for them now to turn around and say that they should be
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treated as permanent employees. When a person accepts a
condition knowingly and works under it, then later he cannot
claim something contrary to it. I also find that the engagement of
the respondents was purely temporary. It was dependent on
absence of regular employees. It had no element of permanency.
The respondents knew this from the beginning. They accepted the
terms. Therefore, their claim for regularisation cannot be accepted
as a matter of right.
60. One more aspect requires to be noted. These facts and
admissions, which are very important, have not been properly
considered by the Industrial Tribunal. The Tribunal has not given
due weight to the admissions of the respondents' own witnesses. It
has also not properly examined the documentary material showing
limited number of working days. This has affected the correctness
of the Award. In my view, when such clear admissions are available
on record, and when the evidence shows only intermittent
engagement, the Tribunal ought to have taken a different view.
The failure to consider these aspects makes the Award
unsustainable.
61. The petitioner has strongly contended that the respondents
were never appointed through any proper or lawful process. On
careful reading of the record, this position appears correct. It is not
disputed that no appointment letters were issued to any of the
respondents for regular posts. There was no advertisement issued
in newspapers. No names were called from the Employment
Exchange. No interview, no written test, no medical examination
was conducted. In other words, the normal process which is
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required for public employment was not followed at all. The
evidence of the respondents themselves supports this position.
Respondent No.1 has clearly admitted in cross examination that no
appointment orders were given. He also admitted that no
interview was taken, no test was conducted, and no medical fitness
was checked. These are basic requirements for entering public
service. The respondents have also not pleaded anywhere that
they were appointed through a lawful process. There is no such
case made out before the Tribunal.
Discrimination and Comparators:
62. I now deal with the submission advanced on behalf of the
respondents that several other daily rated workers were
regularised under the Scheme of 2002 and, therefore, the present
respondents are entitled to the same treatment. This argument is
built on the claim that the Corporation has itself accepted and
implemented the Scheme in many cases, and hence cannot deny
the same benefit to the present set of workmen. The submission
requires careful scrutiny, both on facts and in law.
63. It is pointed out by the respondents that a very large number
of daily rated workers, around 8400, were continued and absorbed
between the years 2003 to 2007. On this basis, the respondents
argue that they stand on the same footing and that they have been
left out without any proper reason. According to them, this
amounts to unfair treatment. The figure of 8400, by itself, does
not prove anything unless it is shown that those workers were
similarly placed in all material respects. Firstly, there is no detailed
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material before this Court to show the service conditions of those
8400 workers. It is not shown how many days they worked in a
year. It is not shown whether they were continuously engaged or
only intermittently like the present respondents. It is also not
shown whether they had completed the required number of days
or fulfilled eligibility conditions under the scheme. In absence of
such details, the Court cannot assume that all those workers were
identical to the present respondents. The respondents have also
not produced any records of those workers to show similarity. A
general statement that 8400 workers were regularised is not
enough. It must be shown that both groups stand on same factual
foundation. That exercise is completely missing here. Secondly, the
record in the present case clearly shows that these respondents
worked only for very few days in a year. Some worked for 9 days,
some for 20 or 30 days. None has shown continuous service. This
is a very important distinguishing factor. If other workers had
worked continuously or had completed required days, then they
cannot be compared with the present respondents who worked
only occasionally. It must also be remembered that equality in law
is not based on broad comparisons. It requires strict similarity. If
two cases differ even in important aspects, then different
treatment is permissible. Here, the respondents have failed to
establish that they are similarly situated to those 8400 workers or
other individuals. Therefore, the figure of 8400, though large,
remains only a general statement without supporting details. It
cannot be treated as a legal basis to grant relief. The Court cannot
direct regularisation merely because others were regularised,
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unless the respondents show that they satisfy the same conditions.
That burden is not discharged. For these reasons, the argument
based on large number of regularisations and alleged similarity
does not sustain. It fails on lack of evidence and proper
comparison.
64. I now consider the argument of the respondents on the
ground of unequal treatment and discrimination, particularly their
reliance on the case of 83 Safai Kamgars of Deonar Slaughter
House. The respondents say that those workers were regularised
even though some of them had not completed 240 days, and
therefore similar benefit must be given to them. Firstly, the
material on record clearly shows that the case of Safai Kamgars of
Deonar Slaughter House stands on a completely different footing.
Those workers were engaged in a very different kind of work. They
were working in slaughter house conditions, doing heavy and
continuous conservancy work, including cleaning, handling waste
of animals, and maintaining hygiene in extremely difficult
surroundings. It is also seen that many of them had worked for a
long period, in some cases for 15 to 20 years. Their work was not
occasional or intermittent. It was continuous and of a permanent
nature. This is not the case with the present respondents. In
contrast, the respondents before this Court were engaged only on
daily wages and that too against leave vacancies. Their own
evidence shows that they worked only for few days in a year. Some
worked 9 days, some 20 or 30 days, and none has shown
continuous engagement. Their work was not of a permanent
nature. It depended entirely on absence of regular employees.
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Therefore, both in nature of work and in duration of service, the
two groups are clearly different. Hence, comparison itself is not
proper. Secondly, the regularisation of the Safai Kamgars was not a
general policy applicable to all workers. It was a one-time decision
taken in special circumstances. It is on record that in the year
2006, the National Commission for Safai Karamcharis visited the
Deonar Slaughter House. After examining the working conditions,
the nature of duties, and the long years of service of those
workers, the Commission made specific recommendations for their
regularisation. Based on this, the Municipal Commissioner took a
conscious decision to regularise them as a special measure.
Therefore, this was an exceptional situation. It cannot be treated
as a general rule applicable to all daily wage workers. There is also
one more important aspect. The respondents were aware from the
beginning that their engagement was purely temporary. They were
appointed only in leave vacancies. They had also given
undertaking that they would not claim permanency. Despite this,
they now seek regularisation. Such a claim cannot be accepted,
especially when they have not fulfilled the basic requirement of
continuous service. Therefore, when the entire material is
considered, it becomes clear that the reliance placed by the
respondents on the case of Safai Kamgars of Deonar Slaughter
House is misplaced. The two cases are not comparable. The
respondents have failed to establish that they are similarly
situated. In absence of such parity, the plea of discrimination must
fail. Accordingly, this submission of the respondents on the ground
of unequal treatment and discrimination is rejected.
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65. Thirdly, as regards the workers like Ramdas Avalegaonkar,
Rajendra Mohite and others, it is necessary to understand how
their cases were decided. From the record, it appears that their
regularisation was granted by specific orders passed by competent
courts. In those proceedings, the Court must have examined their
individual service details, their length of work, and other relevant
facts. Only after such examination, relief was granted to them.
Those orders have now become final. However, such judicial
orders cannot be treated as blanket directions for all other
workers. Each case depends on its own facts. Unless the present
respondents are able to show that their facts are similar, they
cannot claim benefit on that basis. In the present case, this
essential step is missing. The respondents have not placed any
material to show that they had similar length of service or
continuity of work as those workers. There is no record showing
that they worked for long periods without break. On the contrary,
the material on record shows that they worked only for few days in
a year. Therefore, the comparison itself fails. Without establishing
similarity, reliance on those judgments does not help the
respondents.
66. The same reasoning applies to the case of Santosh Gadekar
and other individuals relied upon by the respondents. Their cases
appear to have been decided either by specific court directions or
by orders of competent authorities in special circumstances. These
are individual cases. They are not general rules. They cannot be
extended to all other workers as a matter of right.
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67. It is also important to remember that the entire claim of the
respondents is based on the Scheme of 2002. That Scheme itself
contains certain conditions. It is not an open benefit for all. One of
the basic requirements under the Scheme relates to length and
continuity of service. A worker must show that he has worked for
the required period. In the present case, this condition is not
satisfied. There is no evidence to show that any of the respondents
completed 240 days in any calendar year. This is not only clear
from the documents on record, but also from the admissions made
by their own witnesses.
68. In the present matter, the respondents have failed to produce
any evidence of continuous service. Their engagement was clearly
intermittent. It depended on leave vacancies. Their own witnesses
have admitted that they worked only for limited days. These facts
cannot be ignored. In absence of proof of continuous service, the
claim for regularisation has no foundation. Therefore, the finding
of the Industrial Tribunal that the Corporation has acted with
favouritism or partiality cannot be accepted. That finding
overlooks the clear differences in facts and ignores the lack of
evidence on the part of the respondents. The conclusion is not
supported by the material on record. For all these reasons, the
submission that the respondents are entitled to regularisation on
the ground of parity with other workers cannot be accepted. The
respondents have failed to show that they are similarly situated or
that they meet the required conditions under the Scheme. Hence,
no relief can be granted on this ground.
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Scope of the 2002 Scheme and Government Policy:
69. I now turn to the issue whether the decision taken in
October 2008 satisfies the character of a policy decision and
whether it overrides the earlier policy of 2002. On this point the
submissions of the petitioner deserve acceptance. The record
shows that the Scheme of 2002 was framed with a view to deal
with daily rated workers who were then in service and who
fulfilled the conditions stated therein. That scheme opened a
window for consideration of certain categories of workers. But it
was not a unchangeable decision for all times to come. It was an
administrative arrangement meant to guide the Corporation in a
particular situation. Such a scheme can always be examined again
by the competent authority especially when the legal position
changes or when the authority finds that the earlier arrangement
cannot be continued in the same form.
70. In the present case, the Municipal Commissioner took a
decision in October 2008 after considering the law declared by the
Supreme Court in Umadevi. This is an important fact. The decision
was taken by the authority who is competent to take policy
decisions for the Corporation. The material on record shows that
the Municipal Commissioner consciously decided that workers who
had not completed 240 days of service would not be given
permanency. This is a clear policy decision. A policy decision is not
required to be in a particular form. What is material is the
substance of the decision. If the competent authority after
considering relevant facts and legal position decides how a class of
workers is to be treated, that decision has the force of policy. Here
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the October 2008 decision answers that description. It sets out the
Corporation's stand on regularisation. It says that those who have
not completed 240 days are not to be regularised. The reason is
also stated. The reason is the law laid down in Umadevi. So the
decision is not arbitrary. It is backed by legal principle.
71. It is also important that this 2008 decision was not
challenged by the respondents. They knew about it. The evidence
shows that they were aware of the stand taken by the Corporation.
Yet they did not question that decision by filing any separate
proceeding to set it aside. So the decision remained in force. A
policy decision once taken by a competent authority and not
challenged cannot be ignored by the Tribunal as if it never existed.
It continues to bind the Corporation until it is set aside by lawful
authority.
72. The respondents tried to rely on the Scheme of 2002 as if it
gave them a continuing right. That submission cannot be accepted
in the face of the later decision. When the 2008 policy was issued
it clearly changed the field. The later policy was not only a
repetition of the earlier one. It was a clear statement that persons
who had not completed 240 days would not be granted
permanency. That means the earlier scheme to the extent it
suggested otherwise stood controlled by the later policy. The later
decision being of the same competent authority and being based
on the law then prevailing, overrides the earlier arrangement. The
Tribunal appears to have treated the Scheme of 2002 as if it
continued in full force without change. The Tribunal ought to
have seen that the Corporation had by 2008 altered its policy
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position. Once such change is shown the claim of the respondents
cannot rest only on the old scheme. A person cannot insist on a
benefit under an earlier policy when the competent authority has
later decided to restrict that benefit in accordance with law. After
that the 2008 policy removes any remaining doubt. It says in plain
terms that workers without 240 days will not be regularised.
Therefore the claim fails. For these reasons, I hold that the decision
of October 2008 is a valid policy decision. It was taken by the
competent authority. It was based on the law declared by the
Supreme Court. It was not challenged by the respondents. It
therefore operates with full force and overrides the earlier policy
arrangement of 2002, to the extent the two are inconsistent. The
respondents cannot claim regularisation by ignoring the later
binding policy.
73. In view of the aforesaid discussion, when the entire material
on record is considered as a whole, it becomes clear that the
respondents have failed to establish the basic foundation of their
claim. There is no reliable evidence to show that any of them
completed 240 days of continuous service in any calendar year.
Their engagement was admittedly intermittent, dependent upon
leave vacancies, and not in accordance with any prescribed
recruitment procedure. The reliance placed on the Scheme of 2002
and on alleged instances of parity is misplaced, particularly in light
of the subsequent policy decision of 2008 which governs the field.
The findings of the Industrial Tribunal, therefore, cannot be
sustained as they overlook material admissions and evidence on
record. The claim for regularisation and absorption, in absence of
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proof of eligibility, cannot be granted. Accordingly, the petition
deserves to be allowed and the impugned Award is liable to be set
aside.
74. In view of the aforesaid discussion and reasons recorded
hereinabove, I proceed to pass the following order:
(i) The Writ Petition is allowed;
(ii) The Judgment and Award dated 5 January 2019
passed by the Industrial Tribunal, Mumbai in Reference (I.T.)
No. 10 of 2014 is hereby quashed and set aside;
(iii) The Reference (I.T.) No. 10 of 2014 stands answered in
the negative, and the claims made by the respondents for
reinstatement, continuity of service, back wages,
regularisation and absorption in service are rejected;
(iv) It is, however, clarified that the respondents shall be at
liberty to make an appropriate application before the
Industrial Court under Section 17B of the Industrial Disputes
Act, 1947. In the event, such an application is filed, the
Industrial Court shall consider and decide the same on its
own merits and in accordance with law without being
influenced by any obervations made in this judgment;
(v) Rule is made absolute in the above terms;
(vi) There shall be no order as to costs.
(AMIT BORKAR, J.)
