Gujarat High Court
Chief Officer, Porbandar Nagarpalika vs Secretary, Bharatiya Mazdoor Sangh on 10 February, 2025
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C/SCA/18069/2022 JUDGMENT DATED: 10/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18069 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
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CHIEF OFFICER, PORBANDAR NAGARPALIKA
Versus
SECRETARY, BHARATIYA MAZDOOR SANGH
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Appearance:
MR MURALI N DEVNANI(1863) for the Petitioner(s) No. 1
MS ASHLESHA M PATEL(6127) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 10/02/2025
ORAL JUDGMENT
1. This petition is filed under Articles 226 and 227 of the
Constitution of India challenging the award passed by learned
Industrial Tribunal, Jamnagar dated 07.05.2022 in Reference I.T.
No.5 of 2017 by which the learned Tribunal has directed to
consider the service of the respondent as a Class-IV employee
from 14.02.2006 and to pay all consequential benefits
accordingly.
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2. Pursuant to the last order passed by this Court, learned
advocate Mr. Devani has placed on record the sanction set up and
the communication addressed by the Deputy Municipal
Commissioner stating that there is 803 sanctioned posts and the
Nagarpalika has been given the permission to fill up 642 posts,
and after 2000, there is no other sanction set up, the same is
ordered to be taken on record.
3. Heard learned advocate Mr. Devani for the petitioner.
3.1 Learned advocate Mr. Devani has submitted that the post
for which directions were issued, was of Class-IV, as per the
reasons assigned by learned Tribunal on the post of one Vinubhai
who was serving as a helper was Class- IV and after his death, his
post remained vacant and therefore, no claim can be made to
consider at the place of said Vinubhai. Learned advocate Mr.
Devani submits that Vinubhai was working on the Class-III
employee and as per sanctioned set up, there are two posts
available, there was no any other evidence adduced before the
Court showing that in place of Vinubhai someone else was not
working. Learned advocate Mr. Devani submits that learned
Tribunal has committed error in directing to consider the period
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of regularization from 14.02.2006 without considering the
requirement of 240 days and availability of the post.
3.2 In view of above, learned advocate Mr. Devani prays to
allow the petition and set aside the impugned order passed by
learned Tribunal Court.
4. Considering the submissions made by learned advocate Mr.
Devani and considering the set up which was produced by
learned advocate Mr. Devani during the course of hearing, it is
undisputed that the sanctioned posts are available which are
remained vacant for years together the employment which is in
the nature of regular was taken from the daily wager by paying
the meager amount. This Court is of the view that this would
nothing but an exploitation and unfair labour practice which is
prohibited under the Act.
5. This Court has also considered the decision relied by
learned advocate for the petitioner as well as the decision
rendered in the case of Gujarat Agriculture University Vs Rathod
Labhu Bechar reported in 2001 3 SCC 574 wherein, it is held by
the Apex Court that if work is taken by the employer
continuously from daily wage workers for a long number of years
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without considering their regularization for its financially gain as
against employees' legitimately claim, it is an unfair labour
practice. Taking work from daily wage worker or ad-hoc
appointee is always viewed to be only for a short period or as a
stop gap arrangement, but in the cases like present one to
continue with it for a long time, either for financial gain or for
controlling its workers more effectively with sword of damocles
hanging over their heads or to continue with favoured one in the
cases of ad-hoc employee with staling competent and legitimate
claims. This type of practice should be deprecated. If the work is
of such a nature, which has to be taken continuously and in any
case when this pattern become apparent, when they continue to
work for year after year, only option to the employer is to
regularize them.
6. 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
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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-Municipality. No recruitment rules were filed in
the proceedings either before the Tribunal or in the High Court
on behalf of the petitioner-Municipality.
7. In view of the above, this petition deserves to be dismissed.
8. Resultantly, the present petition is dismissed. Notice is
discharged.
(M. K. THAKKER,J)
Vikramsinh Amarsinh
