Gujarat High Court
State Of Gujarat vs Ajay Nalinkant Hathi on 27 June, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 421 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
AJAY NALINKANT HATHI & ANR.
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Appearance:
MR ADITYA DAVDA, AGP for the Petitioner(s) No. 1
JEET Y RAJYAGURU(8039) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 27/06/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr Rajyagur
waives service of rule on behalf of the respondent No.1.
2. This petition is filed under Articles 226 and 227 of the
Constitution of India challenging the award passed by the
learned Reference Court in Reference I.T. No.123 of 2015 (Old
Reference I.T. No.102 of 2012) dated 28.01.2020, by which the
reference filed by the respondent, was allowed and the
petitioner was directed to pay the wages as per the Minimum
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Wages Act from 19.09.2011 and to pay the balance amount
within 30 days. As well as, it is directed to extend the benefit of
G.R. dated 17.10.1988 by considering the service from
19.09.2011. It is further directed that the petitioner be given the
regular appointment on the post of Hamal as and when such post
becomes vacant.
3. It is the case of the present petitioner that the respondent
was serving as a Hamal since 04.10.1994 and getting the wages
of Rs.1,500 per month. The service of the respondent came to be
terminated on 27.05.1997. Challenging the termination, the
reference was filed, being Reference (L.C.B.) No. 336 of 2000. The
reference was awarded ex-parte, vide order dated 18.09.2008, by
granting the benefit of reinstatement with full back wages as
well as the continuity of service. Challenging the ex-parte award,
the writ petition came to be filed before this Court, being Special
Civil Application No. 2626 of 2009, which came to be dismissed by
this Court on 24.03.2009. Inasmuch as the award was not
implemented, therefore, the recovery application came to be
filed, being Recovery Application No. 7 of 2009, which came to be
rejected by the learned Labour Court. The respondent was
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reinstated vide communication dated 19.09.2011 and has been
paid the back wages by calculating the monthly wages of
Rs1,500/- of Rs.2,57,600/-. Thereafter, the second reference
came to be filed in the year 2015, being Reference I.T. No.123 of
2015, seeking minimum wage as well as the benefit under G.R.
dated 17.10.1988 along with the benefit of permanency on the
post of Hamal. The learned Labour Court, after considering the
sanctioned set-up as well as considering the facts that the
respondent was paid a meager amount of Rs.1,500/- from the
year 1994, has awarded the reference in favour of the
respondent, which is the subject matter of challenge before this
Court.
4. Learned A.G.P. Mr. Davda for the petitioner and learned
advocate Mr. Rajyaguru for the respondent No.1.
5. Learned A.G.P. Mr. Davda submits that the learned Labour
Court has exercised the jurisdiction erroneously, as the Labour
Court would not have the power to direct the petitioner to
regularize the service of the person, who was entered by way of
back-door entry. Learned A.G.P. Mr. Davda submits that the
continuous service of 240 days would not be a ground for
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granting the benefit of the regularization. At the most, the
continuous service would be considered for determining the
issue of Section 25-F with regard to the illegal termination.
Learned A.G.P. Mr. Davda submits that as per the decision
rendered by the Hon'ble Apex Court in the case of State of
Karnataka V/s. Uma Devi, the practice adopted by the
establishment of giving back-door entry is deprecated and as the
respondent does not fulfill the criteria mentioned as well as has
not passed the recruitment process, he would not be entitled for
the benefit, which is claimed.
5.1 In view of the above, learned A.G.P. Mr. Davda submits to
set aside the impugned award by allowing the petition.
6. Per contra, learned advocate Mr. Rajyaguru submits that at
the time of passing the award, the sanctioned set-up which was
produced Mark 10/1 and 10/2 suggests that no vacant post was
available, therefore, the directions were given to pay the benefit
of regularization as and when the post becomes vacant. Learned
advocate Mr. Rajyaguru submits that it is undisputed fact before
the learned Labour Court by the petitioner herein that though
the respondent had been serving for the last 25 years, he was
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paid a meager amount of Rs.1,500/-. Learned advocate Mr.
Rajyaguru submits that he works from 8:30 A.M. to 18:45 P.M.
and had done the work which is of a perennial nature and by
giving such a meager amount, it is nothing but an exploitation,
which is prohibited under the Industrial Disputes Act. Learned
advocate Mr. Rajyaguru relies on the decision rendered by the
Hon'ble Apex Court in the case Jaggo v. Union of India and
submits that the lacking of recruitment process as well as
educational qualification would not be the basis for declining the
relief of regularization of the employee who has served more
than 10 years.
6.1 In view of the above submissions, learned advocate Mr.
Rajyaguru prays to dismiss the present petition by affirming the
impugned award.
7. Having considered the arguments advanced by the learned
advocates for the respective parties as well as the records of the
petition, it emerges that the respondent had been serving on the
post of Hamal since 04.10.1994 and his working hours were more
than 8 hours in a day. He was paid Rs.1,500/- per month and his
service came to be terminated without following due procedure
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under the Industrial Disputes Act in the year 1997. Challenging
the above termination, the reference came to be filed, which was
awarded in favour of the respondent and was confirmed up to
this Court. By implementing the award of the learned Labour
Court, the service of the respondent was reinstated on
19.09.2011 and the wages were paid, by counting the monthly
wages of Rs.1,500/- to the respondent of Rs.2,57,600/-.
7.1 The learned Labour Court, while granting the relief of
minimum wage, had examined the cross-examination of the
witness of the petitioner, who admitted during his evidence that
the respondent was paid Rs.1,500/-, which was the wages at the
time of appointment. The working hours were also not disputed
by the witness during the cross-examination. It is also admitted
that the respondent had served with the petitioner - employer
for more than 21 years. By considering the above aspect, the
learned Labour Court has granted the relief of minimum wage,
which in the opinion of this Court, is just and proper.
7.2 So far as the relief of granting the benefit of G.R. dated
17.10.1988 as well as granting the relief of regularization are
concerned, the learned Labour Court has observed in the order
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that employees who were appointed after the respondents, were
regularized; employees, namely, (i) D. F. Chavriya, (ii) D.K. Manvar
and (iii) Miss. H. J. Vinzoda. However, the respondent was
deprived of the benefit of regularization as well as granting the
benefit of G.R. dated 17.10.1988. It was the contention of the
petitioner before the learned Labour Court that as per the
sanctioned set-up, there were 8 posts of Hamal, which had
already been filled up. Therefore, the benefit of regularization
cannot be awarded. As per the details, which were procured
through the R.T.I. by the respondent, it emerges that on
19.04.2023, out of 8 sanctioned posts, 3 posts remained vacant
and therefore, the respondent would entitle for the benefit of
regularization from this date i.e. 17.04.2023.
7.3 The learned Reference Court, in the opinion of this Court,
has balanced the case, as the directions were issued to pay the
benefits from 19.09.2011, which is the date on which the
respondent was reinstated. This Court has referred the recent
decision of the Hon'ble Apex Court 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
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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
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
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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
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.
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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
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
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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
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,
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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
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
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even if were not made strictly in accordaJnce 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
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
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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,
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
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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
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
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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
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
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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
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
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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."
7.4 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
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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
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
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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:
7.5 Considering the above ratio, this Court is of the view that if
the work is taken by the employer continuously as a daily wager
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.
This type of practice should be deprecated and if the work is
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perennial nature which has to be taken continuously and in case
when this pattern become apparent, and they continue to work
for years after years only option for employees to regularize the
service.
7.6 In considered opinion of this Court, no error has been
committed by the learned Reference Court awarding the
reference in favour of the respondent. Hence, no interference is
required.
8. Resultantly, The present petition is dismissed. Rule is
discharged.
(M. K. THAKKER,J)
Vikramsinh Amarsinh
