Judgment : This WP Filed Praying To Call For The Records In Reference No.122/04, From The Industrial Tribunal, Mysore Dist, Mysore And Quash The Order Dt.30.1.09 In Ference 122/04 On The File Of The Industrial Tribunal, Mysore Dist, Mysore As Per Ann-D; And Etc. 1. The Mysore City Corporation aggrieved by the award dated 30th Jan. 2009 in Ref. No.122/2004 of the Industrial Tribunal, Mysore, directing regularization of the services of respondents 4 to 26 w.e.f. 2.11.2006 has presented this petition. 2. The 3rd respondent Employees Association espoused the cause of respondents 4 to 26 for regularisation of their service on the premise that though appointed by the petitioner Corporation were denied regularization, by initiating conciliation proceeding under the Industrial Disputes Act, 1947 (for short ‘the I.D.Act’). The conciliation having ended in a failure report led to the Government Order dated 9.11.2004 referring the points of dispute for adjudication to the industrial Tribunal, Mysore. Suffice it to refer to point of dispute no.4 which reads thus” 3. Respondent no.3 filed the claim statement on 15.7.2005 interalia contending that the 23 workmen are rendering unblemished record of service from the date of their joining service in the petitioner Corporation and having not been regularized, the petitioners actions are illegal and against all cannons of law and principles of natural justice and hence the relief of regularisation; other reliefs as deemed fit; and exemplary costs. 4. That petition was resisted by filing statement of objections of the petitioner arraigned as second party therein, interalia contending that the notification dated 29.1.2004 when floated inviting tenders for supply of manpower, undertaking different type of work relating to supply of water to Mysore city, one Venkatesh is said to have responded by a quotation for supply of manpower on daily wages at the rates approved by the PWD for the year 2003-04 which was accepted and manpower supplied from 1.6.2002 to 31.1.2004. Thereafterwards, for the period from 1.2.2004 to 5.8.2004 it is stated that one N.T. Dayananda was entrusted with supply of 213 workers, whence the said Venkatesh approached this Court and secured an order to cancel the agreement entered into with the contractor N.T. Dayananda, pursuant to which Venkatesh is said to have supplied 268 labourers from 6.8.2004 to 3.6.2005. Thereafterwards, for the period from 1.2.2004 to 5.8.2004 it is stated that one N.T. Dayananda was entrusted with supply of 213 workers, whence the said Venkatesh approached this Court and secured an order to cancel the agreement entered into with the contractor N.T. Dayananda, pursuant to which Venkatesh is said to have supplied 268 labourers from 6.8.2004 to 3.6.2005. In addition it was contended that there existed no jural relationship of employer and employees as between the parties and that the labourers supplied by the labour contractor are not entitled to any benefits in terms of the recruitment regulations or the conditions of service of employees in the Corporation. It was further contended that if a regular employee did not attend work on any given day, it was the duty of the contractor to ensure the presence of a contract employee to carry out and discharge the regular work. IT was lastly contended that the petitioner Corporation had no jurisdiction to regularize the services of daily wage employees under a contractor. 5. Before the Industrial Court, parties entered trial whence one Nagaraj (5th respondent herein), was examined as WW1 and documents W-1 to W-13 marked, while for the petitioner, the junior engineer of Vani Vilas Water Works was examined as MW-1 and documents were marked as M-1 to M-9. 6. The Industrial Tribunal having regard to the material on record, more particularly the admission of M.W.1 in cross-examination that respondents 4 to 26 were discharging duties of cleaning water tanks and leakage works from the dates of their respective engagements, on contract basis, concluded that the 23 workmen were engaged as labourers as labourers under the contractor by name V. Venkatesh. Since there was no material; placed to sustain the said plea, Industrial tribunal declined to accept the agreement dated 3.2.2004 – Ex. Since there was no material; placed to sustain the said plea, Industrial tribunal declined to accept the agreement dated 3.2.2004 – Ex. M-7, between the petitioner and one N.T. Dayananda s/o G.T. Gowda for supply of labourers and opined that the petitioner with an intention to circumvent the labour laws, by way of a fiction had created the contract and in the absence of the contractor by name Venkatesh being examined as well as proof of payment of wages through the contractor Venkatesh, entertained a doubt over the plea of the Corporation and accordingly by the award impugned, directed regularisation of the services of respondents 4 to 26 w.e.f. 2.11.2006, in view of the Government Order dated 2.11.2006 issued under section 10 of the Contract Labour (Regulation and Abolition Act, 1970 – Ex.W-4. (for short ‘the Contract Labour Act’). 7. Having heard the learned counsel for the parties, perused the pleadings and examined the award impugned, it is indisputable that the petitioner Corporation suffered an order of the State Government under section 10 of the “Contract Labour Act” in respect of its Water Works Department w.e.f. 2.11.2006 and therefore, in law, could not have engaged contract labour for work in the said division. It is also not in dispute that Venkatesh the contract labourers said to have supplied contract labour from 6.8.2004 to 30.6.2005 to the petitioner water works division was not examined. Even otherwise the contract labourers were engaged prior to 2.11.2006 the date of order abolishing contract labour and hence the workman cannot claim benefits under the ‘Contract Labour Act’. 8. Yet again there is no dispute that M.W.1 junior engineer of the Water Works Department admitted in the cross-examination the fact that respondents 4 to 26 were discharging duties of cleaning water tanks and leakage work ever since they were engaged on contract basis, in other words, much prior to and after 2.11.2006. Respondents 4 to 26 represented by respondent no.3 – trade union, too, in the claim statement before the Industrial Tribunal asserted to be appointed by the Corporation directly and not through the contract labour, since no reference is made to either Venkatesh or any other contract labourers in the claim petition. Respondents 4 to 26 represented by respondent no.3 – trade union, too, in the claim statement before the Industrial Tribunal asserted to be appointed by the Corporation directly and not through the contract labour, since no reference is made to either Venkatesh or any other contract labourers in the claim petition. Point no.4 referred for adjudication before the Industrial Tribunal extracted supra does not make reference to respondents 4 to 26 being appointed as contract labour, while what is referred for adjudication before the Industrial Tribunal is over the jurisdiction of the petitioner Corporation in not treating s permanent employees the said respondents. Therefore the respondent workman can claim no benefit under the Contract Labour Act. 9. In the admitted facts noticed supra, the question required to be answered by the Industrial adjudicator was: “Whether respondents 4 to 26 as represented by respondent no.3 – trade union were entitled to be regularized or treated as regular workman in the petitioner establishment?” It is by now well settled law as declared by the Constitution Bench of the Apex Court in SECRETARY STATE OF KARNATAKA & ORS. V S UMADEVI (3) AND ORS ILR 2006 KAR 2607 (SC) that there is a stark distinction between the words “regular” and “regularization” which do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments and that they are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. At paras 16 & 17 of the judgment, the Apex Court observed that it is only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized and it alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularisation. In addition it was observed that the executive or for that matter the Court, in appropriate cases, would have only the right to regularize an appointment made after following the due procedure, even though a non-fundamental element of that process or procedure has not been followed and this right of the executive and that of the Court would not extent to the executive or the Court being in a position to direct that an appointment made in clear violation of the constitutional scheme and the statutory rules made in that behalf, to be treated as permanent or directed to be treated as permanent. 10. The Apex Court in STATE OF RAJASTHAN & ORS vs. DAYA LAL & ORS (2011) 2 SCC 429 , summarized the well settled principles relating to regularisation and pay in parity thus: The following are well-settled principles relating to regularisation and parity in pay: (i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized. (ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be “litigious employment”. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right. (iii) Even where a scheme is formulate for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates. (iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees. (v) Part-time temporary employees in a government-run institution cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.” 11. In UNION OF INDIA & ORS. Vs. VARTAK LABOUR UNION (2) (2011) 4 SCC 200 at paragraphs 17 & 20 following the earlier reported opinions and also that of the Constitution Bench in UMA DEVI’s case opined that the respondent union’s claim for regularisation of its members merely because they have been working for the BRO for a considerable time cannot be granted in the light of the decision of the Court wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or a casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules. 12. IN UNION OF INDIA AND ANR. Vs. 12. IN UNION OF INDIA AND ANR. Vs. ARULMOZHI INIARASU & ORS (2011) 7 SCC 397 , at paragraphs 19 to 25 the Apex Court observed that the doctrine of legitimate expectation and its impact in administrative law had been considered by the Court in a catena of decisions while making reference to COUNCIL OF CIVIL SERVICES UNIONS vs. MINISTER FOR CIVIL SERVICES 1985 AC 374 as also in SETHI AUTO SERVICE STATION vs. DDA (2009) Vol I SCC 180, to conclude that the said doctrine is not attracted. 13. Having regard to the aforesaid well settled principles of law and applying the same to the facts of this case, indisputably the respondent workman not appointed in terms of the Constitutional Scheme, the Industrial Tribunal’s finding that respondents 4 to 26 were entitled to regularisation into service w.e.f. 2.11.2006, is perverse, calling for interference with the award. In the result, this petition is allowed. The award is quashed and the reference rejected. It is made clear respondents 4 to 26 are directed to be continued as such until their termination, In accordance with law.