Gujarat High Court

Chief Officer, Bagsara Nagarpalika vs Navneet Kumar Bhanjibhai Parmar on 2 July, 2025

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                              C/SCA/159/2020                                      JUDGMENT DATED: 02/07/2025

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                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                         R/SPECIAL CIVIL APPLICATION NO. 159 of 2020


                         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, BAGSARA NAGARPALIKA

                                                          Versus
                                          NAVNEET KUMAR BHANJIBHAI PARMAR & ANR.
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                        Appearance:
                        MR MB PARIKH(576) for the Petitioner(s) No. 1
                        MR UT MISHRA(3605) for the Respondent(s) No. 1,2
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                           CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                                                              Date : 02/07/2025

                                                              ORAL JUDGMENT

1. Rule returnable forthwith. Learned advocate Mr. Mishra

waives service of rule on behalf of the respondents.

2. This petition is filed under Articles 226 and 227 of the

Constitution of India challenging the award passed by the

learned Industrial Tribunal, Bhavnagar in Reference (IT) No.161

of 2000 dated 20.08.2018, whereby the learned Reference Court

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has allowed the reference filed by the respondents seeking the

benefit of the regularization and it was directed present

petitioner to grant the said benefits from 19.12.2000 and the

interregnum period was directed to be considered for notional

benefits.

3. Gist of the case is that the respondents were working as a

daily wagers Peon in the Octroi Department of petitioner-

Municipality from 1999. The reference came to be filed being

Reference IESO No.22 of 1999 before the learned Industrial

Tribunal, wherein the stay was granted against the termination.

Thereafter, the Regular Civil Suit No.12 of 2000 was filed before

the learned Civil Judge, Basgsara-Vadiya, seeking stay against the

apprehended termination, which was granted by the learned Civil

Court on 09.01.2000. The said stay was granted for a period of 10

days and subsequently, the impugned reference being Reference

IT No.161 of 2000 came to be filed, seeking the benefit of the

regularization, which came to be rejected by the learned Tribunal

vide order dated 12.01.2012. Pending the reference mentioned

hereinabove, the respondent Nos.1 and 2 have filed the

complaint being Complaint IT No.19 of 2002 and 21 of 2002

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under the provisions of Section 33-A of the Industrial Disputes

Act and also prayed for the stay against the termination, wherein

the learned Court initially granted stay, however, subsequently

disposed of the complaint as withdrawn. Again the respondent

Nos.1 and 2 have filed the complaint being Complaint No.7 of

2009 and 8 of 2009 in Reference IT No.161 of 2000 under Section

33-A, which was also disposed of vide order dated 24.05.2012.

Challenging the order passed in Reference IT No.161 of 2000, the

writ petition came to be filed before this Court being Special Civil

Application No.3892 of 2012, wherein this Court has passed an

order dated 28.08.2017 allowing the said writ petition remanded

the matter back to the learned Tribunal for fresh consideration.

Thereafter, the learned Reference Court has passed an award on

20.08.2018 allowing the said reference in favour of the

respondents, which is subject matter of challenge before this

Court.

4. Heard learned advocate Mr. Parikh for the petitioner -

Municipality and learned advocate Mr. Mishra for the

respondents.

5. Learned advocate Mr. Parikh submits that the respondent

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was entered with the Municipality as a daily wager Peon and

immediately the reference and complaints as well Civil Suits are

filed seeking injunction against the termination. Learned

advocate Mr. Parikh submits that on granting the injunction and

the respondents' services was protected and thereafter, the

impugned reference filed for seeking the benefits of the

regularization. Learned advocate Mr. Parikh submits that despite

the fact that the respondent does not possess the minimum

education qualification for the post and though they were

entered with the Municipality as a daily wager, however, under

the protection of the Court they served for the long time and

thereafter have claimed for benefit of the regularization.

Learned advocate Mr. Parikh submits that the learned Tribunal,

while allowing the reference, has discarded the submissions

made by the present petitioner that there is no sanctioned

vacant post available in the set up and from 01.05.2001

Department of Octroi was abolished. Learned advocate Mr.

Parikh submits that the back door entry, which was initially made,

was sought to be regularized, which is the adhors to the public

employment rules and therefore, impugned award deserves to

be set aside by allowing the petition.

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6. As against the same, learned advocate Mr. Mishra

appearing for the respondents submits that the learned

Reference Court has only granted the benefit of regularization

and for the interregnum period, it was observed to give the

notional effect. Learned advocate Mr. Mishra submits that the

petition, which is filed after the delay of 18 months, deserves to

be dismissed as impugned award was passed on 29.08.2018 and

the petition was filed in the year 2020. Learned advocate Mr.

Mishra submits that as per the observation made by the learned

Reference Court, the sanctioned set up which is part of the

record suggests the vacant post and therefore, the learned

Reference Court is justifying in issuing the direction to regularize

the service of the present respondent. Learned advocate Mr.

Mishra has relied on the information received through RTI dated

16.01.2018, suggesting that out of 4 posts, two posts are still

remained vacant and as per the admission made by the witness of

the petitioner, no efforts are made to fill up the post with regular

employee. Learned advocate Mr. Mishra submits that taking work

from the employees by paying the meager amount, which is of

perennial in nature, nothing but exploitation, which is prohibited

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under the Industrial Disputes Act and therefore, the impugned

award deserved to be affirmed and the petition is required to be

dismissed.

7. Learned advocate Mr. Mishra relied on the decision

rendered by the Division Bench of this Court in the case of

Dwarka Municipality V/s Mantri, Jamnagar Jilla Majdoor Sangh

& Anr. rendered in LPA No.421 of 2025 and submitted that the

order passed by this Court granting the benefit of regularization

and affirmed by the Hon'ble Division Bench and therefore, also

no interference is required in the impugned order.

8. Having considered the arguments advanced by the learned

advocates for the respective parties and having perused the

record, it emerges that the respondents are serving with the

petitioner - Municipality since 1998 and even today also they are

serving as a daily wager. It is undisputed fact that the sanctioned

post remained vacant for years together and no efforts were

made by the Municipality to fill up the said posts by regular

employees. It is painful that the meager amount has been paid to

the respondents for doing the work, which is perennial in nature

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and the regular employees who are doing the same work has

been paid much more amount. As per the information received

through the RTI and which is part of the record before the

learned Reference Court, out of the 4 posts, two posts remained

vacant in the year 2018 and as per the admission made during the

cross-examination of the witness of the petitioner, no procedure

has been adopted to fill up the posts by calling regular

employees. This Court has referred the decision rendered in the

case of Jaggo V/s. Union of India reported in 2024 SCC Online

SC 3826 wherein the Hon'ble Apex Court has held the Para

Nos.10 to 17 and 19 to 28 as under.

"10. Having given careful consideration to the submissions advanced and the material on record, we find that the appellants' long and uninterrupted service, for periods extending well beyond ten years, cannot be brushed aside merely by labelling their initial appointments as part-time or contractual. The essence of their employment must be considered in the light of their sustained contribution, the integral nature of their work, and the fact that no evidence suggests their entry was through any illegal or surreptitious route.

11. The appellants, throughout their tenure, were engaged in performing essential duties that were indispensable to the day-to-day functioning of the offices

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of the Central Water Commission (CWC). Applicant Nos. 1, 2, and 3, as Safaiwalis, were responsible for maintaining hygiene, cleanliness, and a conducive working environment within the office premises. Their duties involved sweeping, dusting, and cleaning of floors, workstations, and common areas--a set of responsibilities that directly contributed to the basic operational functionality of the CWC. Applicant No. 5, in the role of a Khallasi (with additional functions akin to those of a Mali), was entrusted with critical maintenance tasks, including gardening, upkeep of outdoor premises, and ensuring orderly surroundings.

12. Despite being labelled as "part-time workers," the appellants performed these essential tasks on a daily and continuous basis over extensive periods, ranging from over a decade to nearly two decades. Their engagement was not sporadic or temporary in nature; instead, it was recurrent, regular, and akin to the responsibilities typically associated with sanctioned posts. Moreover, the respondents did not engage any other personnel for these tasks during the appellants' tenure, underscoring the indispensable nature of their work.

13. The claim by the respondents that these were not regular posts lacks merit, as the nature of the work performed by the appellants was perennial and fundamental to the functioning of the offices. The recurring nature of these duties necessitates their classification as regular posts, irrespective of how their initial engagements were labelled. It is also noteworthy

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that subsequent outsourcing of these same tasks to private agencies after the appellants' termination demonstrates the inherent need for these services. This act of outsourcing, which effectively replaced one set of workers with another, further underscores that the work in question was neither temporary nor occasional.

14. The abrupt termination of the appellants' services, following dismissal of their Original Application before the Tribunal, was arbitrary and devoid of any justification. The termination letters, issued without prior notice or explanation, violated fundamental principles of natural justice. It is a settled principle of law that even contractual employees are entitled to a fair hearing before any adverse action is taken against them, particularly when their service records are unblemished. In this case, the appellants were given no opportunity to be heard, nor were they provided any reasons for their dismissal, which followed nearly two decades of dedicated service.

15. Furthermore, the respondents' conduct in issuing tenders for outsourcing the same tasks during the pendency of judicial proceedings, despite a stay order from the Tribunal directing maintenance of status quo, reveals lack of bona fide intentions. Such actions not only contravened judicial directives but also underscored the respondents' unwillingness to acknowledge the appellants' rightful claims to regularization.

16. The appellants' consistent performance over their long tenures further solidifies their claim for

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regularization. At no point during their engagement did the respondents raise any issues regarding their competence or performance. On the contrary, their services were extended repeatedly over the years, and their remuneration, though minimal, was incrementally increased which was an implicit acknowledgment of their satisfactory performance. The respondents' belated plea of alleged unsatisfactory service appears to be an afterthought and lacks credibility.

17. As for the argument relating to educational qualifications, we find it untenable in the present context. The nature of duties the appellants performed-- cleaning, sweeping, dusting, and gardening--does not inherently mandate formal educational prerequisites. It would be unjust to rely on educational criteria that were never central to their engagement or the performance of their duties for decades. Moreover, the respondents themselves have, by their conduct, shown that such criteria were not strictly enforced in other cases of regularization. The appellants' long-standing satisfactory performance itself attests to their capability to discharge these functions, making rigid insistence on formal educational requirements an unreasonable hurdle.

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

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this benefit, followed by their arbitrary termination, amounts to manifest injustice and must be rectified.

20. It is well established that the decision in Uma Devi (supra) does not intend to penalize employees who have rendered long years of service fulfilling ongoing and necessary functions of the State or its instrumentalities.

The said judgment sought to prevent backdoor entries and illegal appointments that circumvent constitutional requirements. However, where appointments were not illegal but possibly "irregular," and where employees had served continuously against the backdrop of sanctioned functions for a considerable period, the need for a fair and humane resolution becomes paramount. Prolonged, continuous, and unblemished service performing tasks inherently required on a regular basis can, over the time, transform what was initially ad-hoc or temporary into a scenario demanding fair regularization. In a recent judgement of this Court in Vinod Kumar and Ors. Etc. Vs. Union of India & Ors.5, it was held that held that procedural formalities cannot be used to deny regularization of service to an employee whose appointment was termed "temporary" but has performed the same duties as performed by the regular employee over a considerable period in the capacity of the regular employee. The relevant paras of this judgement have been reproduced below:

"6. The application of the judgment in Uma Devi (supra) by the High Court does not fit squarely with the facts at hand, given the specific circumstances under

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which the appellants were employed and have continued their service. The reliance on procedural formalities at the outset cannot be used to perpetually deny substantive rights that have accrued over a considerable period through continuous service. Their promotion was based on a specific notification for vacancies and a subsequent circular, followed by a selection process involving written tests and interviews, which distinguishes their case from the appointments through back door entry as discussed in the case of Uma Devi (supra).

7. The judgment in the case Uma Devi (supra) also distinguished between "irregular" and "illegal"

appointments underscoring the importance of considering certain appointments [2024] 1 S.C.R. 1230 even if were not made strictly in accordance with the prescribed Rules and Procedure, cannot be said to have been made illegally if they had followed the procedures of regular appointments such as conduct of written examinations or interviews as in the present case..."

21. The High Court placed undue emphasis on the initial label of the appellants' engagements and the outsourcing decision taken after their dismissal. Courts must look beyond the surface labels and consider the realities of employment: continuous, long-term service, indispensable duties, and absence of any mala fide or illegalities in their appointments. In that light, refusing regularization simply because their original terms did not explicitly state so, or because an outsourcing policy was

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belatedly introduced, would be contrary to principles of fairness and equity.

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.

23. The International Labour Organization (ILO), of which India is a founding member, has consistently advocated for employment stability and the fair treatment of workers. The ILO's Multinational Enterprises Declaration6 encourages companies to provide stable employment and to observe obligations concerning employment stability and social International Labour Organization- Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy. security. It emphasizes that enterprises should assume a leading role in promoting employment security,

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particularly in contexts where job discontinuation could exacerbate long-term unemployment.

24. The landmark judgement of the United State in the case of Vizcaino v. Microsoft Corporation7 serves as a pertinent example from the private sector, illustrating the consequences of misclassifying employees to circumvent providing benefits. In this case, Microsoft classified certain workers as independent contractors, thereby denying them employee benefits. The U.S. Court of Appeals for the Ninth Circuit determined that these workers were, in fact, common-law employees and were entitled to the same benefits as regular employees. The Court noted that large Corporations have increasingly adopted the practice of hiring temporary employees or independent contractors as a means of avoiding payment of employee 97 F.3d 1187 (9th Cir. 1996) benefits, thereby increasing their profits. This judgment underscores the principle that the nature of the work performed, rather than the label assigned to the worker, should determine employment status and the corresponding rights and benefits. It highlights the judiciary's role in rectifying such misclassifications and ensuring that workers receive fair treatment.

25. It is a disconcerting reality that temporary employees, particularly in government institutions, often face multifaceted forms of exploitation. While the foundational purpose of temporary contracts may have been to address short-term or seasonal needs, they have increasingly become a mechanism to evade long- term

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obligations owed to employees. These practices manifest in several ways:

• Misuse of "Temporary" Labels: Employees engaged for work that is essential, recurring, and integral to the functioning of an institution are often labeled as "temporary" or "contractual," even when their roles mirror those of regular employees. Such misclassification deprives workers of the dignity, security, and benefits that regular employees are entitled to, despite performing identical tasks.

• Arbitrary Termination: Temporary employees are frequently dismissed without cause or notice, as seen in the present case. This practice undermines the principles of natural justice and subjects workers to a state of constant insecurity, regardless of the quality or duration of their service.

• Lack of Career Progression: Temporary employees often find themselves excluded from opportunities for skill development, promotions, or incremental pay raises. They remain stagnant in their roles, creating a systemic disparity between them and their regular counterparts, despite their contributions being equally significant. • Using Outsourcing as a Shield: Institutions increasingly resort to outsourcing roles performed by temporary employees, effectively replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a deliberate effort to bypass the obligation to offer regular employment. • Denial of Basic Rights and Benefits: Temporary

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employees are often denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans decades. This lack of social security subjects them and their families to undue hardship, especially in cases of illness, retirement, or unforeseen circumstances.

26. While the judgment in Uma Devi (supra) sought to curtail the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that its principles are often misinterpreted or misapplied to deny legitimate claims of long-serving employees. This judgment aimed to distinguish between "illegal" and "irregular" appointments. It categorically held that employees in irregular appointments, who were engaged in duly sanctioned posts and had served continuously for more than ten years, should be considered for regularization as a one-time measure. However, the laudable intent of the judgment is being subverted when institutions rely on its dicta to indiscriminately reject the claims of employees, even in cases where their appointments are not illegal, but merely lack adherence to procedural formalities. Government departments often cite the judgment in Uma Devi (supra) to argue that no vested right to regularization exists for temporary employees, overlooking the judgment's explicit acknowledgment of cases where regularization is appropriate. This selective application distorts the judgment's spirit and purpose, effectively weaponizing it against employees who have

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rendered indispensable services over decades.

27. In light of these considerations, in our opinion, it is imperative for government departments to lead by example in providing fair and stable employment. Engaging workers on a temporary basis for extended periods, especially when their roles are integral to the organization's functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale. By ensuring fair employment practices, government institutions can reduce the burden of unnecessary litigation, promote job security, and uphold the principles of justice and fairness that they are meant to embody. This approach aligns with international standards and sets a positive precedent for the private sector to follow, thereby contributing to the overall betterment of labour practices in the country.

28. In view of the above discussion and findings, the appeals are allowed. The impugned orders passed by the High Court and the Tribunal are set aside and the original application is allowed to the following extent:

i. The termination orders dated 27.10.2018 are quashed; ii. The appellants shall be taken back on duty forthwith and their services regularised forthwith. However, the appellants shall not be entitled to any pecuniary benefits/back wages for the period they have not worked for but would be entitled to continuity of services for the said period and the same would be counted for their post-retiral benefits."

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8.1 This Court has also referred the decision rendered in the

case of Dwarka Municipality V/s Mantri, Jamnagar Jilla

Majdoor Sangh & Anr. rendered in the Special Civil Application

No.3556 of 2021, which was confirmed by the Hon'ble Division

Bench in the LPA No. 421 of 2025, wherein the Hon'ble Division

Bench has relied on the decision rendered in the case of Shripal

and Another V/s. Nagar Nigam Ghaziabad and others rendered

in Civil Appeal No.8157 of 2024 has observed the para No.9 as

under.

"9. In light of the aforesaid established facts, we may now refer to the observations of the Hon'ble Supreme Court in the recent judgment of Shripal and Others (supra). The Supreme Court, after considering the Constitution Bench judgment in the case of State of Karnataka vs. Uma Devi, (2006) 4 SCC 1, has held as under: -

"14. The Respondent Employer places reliance on Umadevi (supra)2 to contend that daily-wage or temporary employees cannot claim permanent absorption in the absence of statutory rules providing such absorption. However, as frequently reiterated, Uma Devi itself distinguishes between appointments that are "illegal" and those that are "irregular," the latter being eligible for regularization if they meet certain conditions. More importantly, (2006) 4 SCC 1. Uma Devi cannot

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serve as a shield to justify exploitative engagements persisting for years without the Employer undertaking legitimate recruitment. Given the record which shows no true contractor- based arrangement and a consistent need for permanent horticultural staff the alleged asserted ban on fresh recruitment, though real, cannot justify indefinite daily-wage status or continued unfair practices.

15. It is manifest that the Appellant Workmen continuously rendered their services over several years, sometimes spanning more than a decade. Even if certain muster rolls were not produced in full, the Employer's failure to furnish such records --despite directions to do so--allows an adverse inference under well-established labour jurisprudence. Indian labour law strongly disfavors perpetual daily-wage or contractual engagements in circumstances where the work is permanent in nature. Morally and legally, workers who fulfil ongoing municipal requirements year after year cannot be dismissed summarily as dispensable, particularly in the absence of a genuine contractor agreement. At this juncture, it would be appropriate to recall the broader critique of indefinite "temporary"

employment practices as done by a recent judgement of this court in Jaggo v. Union of India3 in the following paragraphs:

8.2 Considering the above ratio, this Court is of the view that if

the work is taken by the employer continuously as a daily wager

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for long number of years without considering the regularization

for its financial gain as against employees' legitimately claim, it

would be unfair labour practice. Taking the work from daily

wager or ad-hoc employee is always viewed to be only for a short

period or as a stop gap arrangement, but in the cases where they

work for 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 with staling

competent and legitimate claims, is prohibited under the Act.