JUDGMENT : 1. This group of petitions is filed by the petitioners- workmen against respective judgments and awards passed by the Industrial Tribunal, Bhavnagar in respective References. With consent of learned Advocates for the parties, all these petitions are taken up for joint hearing and disposal. The facts are recorded from lead matter, SCA No.10280 of 2011. 2. This petition is filed for following reliefs:- “(A) Your Lordship may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or an other appropriate writ, order or direction quashing and setting aside the impugned Award dated 31.03.2011 passed by the learned Industrial Tribunal, Bhavnagar in Reference (IT) No.75 of 1998 at Annexure ‘A’ herein, rejecting the Reference of the Petitioner Workman as being illegal, unjust and improper. 3. The details of each of the petitioners with relevant date is hereby given in a tabular form as under:- Sr. No. Name Designation Date of retirement 1. Govindbhai Nathubhai Gohil Peon /Driver 31.12.2024 2. Mansibhai Apabhai Khachar Do Expired on 22.04.2016 3. Shantilal D.Rathod Clerk 31.12.2036 4. Hansaben B.Desani Peon Retired on 30.06.2022 5. Rajesh B.Vaghela Peon 31.01.2032 6. Rajubhai K.Kureshi Cleaner 30.06.2031 4. Learned Advocate for the petitioner submitted that the petitioner was working as peon from the date of his joining continuously and persons who were junior to the petitioner as well as working on the same post have been made permanent. However, the petitioner was paid minimum wages as a daily wager and therefore, action of the respondent-Municipality amounts to unfair labour practice. It is submitted that even though there is no difference in work performed by the petitioner and other workmen, the petitioner is paid less wages and he is also not granted other benefits available to the permanent workmen. 4.1 It is submitted that the petitioner submitted his deposition on affidavit before the Industrial Tribunal on 04.01.2005 and he was cross-examined on 19.04.2005. The petitioner had stated on oath that he was working on permanent vacant post and the duties performed by him are also of permanent nature. The duties performed by the petitioner and other permanent workmen is the same and there is no difference in their duties. It is submitted that junior to the petitioner, viz. Bipinbhai Nanubhai has been made permanent as peon. The petitioner is also not given other benefits which are made available to other permanent workmen. The duties performed by the petitioner and other permanent workmen is the same and there is no difference in their duties. It is submitted that junior to the petitioner, viz. Bipinbhai Nanubhai has been made permanent as peon. The petitioner is also not given other benefits which are made available to other permanent workmen. 4.2 It is submitted that the respondent-Municipality is having several vacant posts in different departments and therefore, the petitioner-workman is transferred from one post to another post and from one department to another department. The respondent-Municipality is exploiting the petitioner-workman by taking different types of works of permanent workman, but the petitioner is paid only minimum wages. 4.3 It is submitted that the respondent-Municipality is having huge income and surplus every year. The expenditure for permanent as well as temporary workmen is around 26% to 29% for the years 2008-09 and 2009-10. For the year 2008-09, the expenditure for permanent and temporary workmen is 28.93% of total revenue while for the year 2009-10, it is 26.29%. 4.4 It is submitted that the petitioner-workman is working on the vacant post of peon as well as discharging additional duties of driver with the respondent-Municipality since 15.04.1995 and has been paid Rs.11,321/- per month, i.e. Rs.365.20 per day. However, permanent peons are paid Rs.24,288/- as per 6th pay commission pay scale benefits along with other benefits like annual increments, leave benefits, etc. It is submitted that the petitioner should be granted the benefits of permanency and should be paid regular pay scale and other monetary benefits paid to other permanent peons of the respondent-Municipality on the principle of ‘Equal Pay for Equal Work’. The action of the respondent- Municipality is also violative of Article 14 of the Constitution of India. 4.5 It is submitted that the sanctioned set up of the employees /workmen of the respondent-Municipality including the vacant posts as on 31.01.2021 reveals that the following posts of peons are vacant:- Sr. No. Post No. of vacant posts 1. Office peon 02 2. Tax peon 01 3. Fire peon 01 4. Bal Mandir peon 01 5. Sanitary Ward peon 01 Total 06 4.6 Learned Advocate for the petitioners has referred to several judgments /orders passed in case of the very Municipality and same are passed in favour of the workmen. No. Post No. of vacant posts 1. Office peon 02 2. Tax peon 01 3. Fire peon 01 4. Bal Mandir peon 01 5. Sanitary Ward peon 01 Total 06 4.6 Learned Advocate for the petitioners has referred to several judgments /orders passed in case of the very Municipality and same are passed in favour of the workmen. Reference is made to oral order dated 18.08.2011 in SCA No.2326 of 2011 and allied matters, order dated 26.04.2016 in LPA No.65 of 2016 and order dated 30.07.2019 in SCA No.20959 of 2017. 5. The petitions are opposed by learned Advocate for the respondent-Municipality submitting that the work/duties have been carried out through the employees as per the set-up decided by the Government. The respondent-Municipality is in the financial crises. There is a very huge debt. In these circumstances, the demand for making the staff permanent outside the set-up is unreasonable and illegal. The petitioner has placed a huge financial burden on the Municipality by obtaining an illegal injunction. 5.1 It is submitted that a particular worker cannot be made permanent in the place of set-up. The demand is illegal. Further, the respondent-Municipality had hired the petitioner as a casual laborer on a temporary basis in case of contingency operations / emergency work, but before the petitioner was liable to be removed on completion of his service, the petitioner has filed an illegal complaint with the Conciliation/ Settlement Officer and obtained injunction. In such circumstances also, the reference to make the petitioner permanent is illegal. 5.2 Learned Advocate for the respondent-Municipality relied upon decision of the Apex Court in case of Union of India & Ors. Vs. Ilmo Devi & Anr., reported in 2021, SCC Online, SC, 899, to contend that regularization cannot be ordered in absence of sanctioned post. 5.3 Learned Advocate for the respondent-Municipality next relied upon decision of the Apex Court in case of State of Rajasthan & Ors. Vs. Dayalal & Ors., reported in (2011) 2 SCC, 429, to contend that under Article 226, the High Court may not issue direction for regularization or absorption unless employee is appointed pursuant to regular recruitment. 6. 5.3 Learned Advocate for the respondent-Municipality next relied upon decision of the Apex Court in case of State of Rajasthan & Ors. Vs. Dayalal & Ors., reported in (2011) 2 SCC, 429, to contend that under Article 226, the High Court may not issue direction for regularization or absorption unless employee is appointed pursuant to regular recruitment. 6. Having heard learned Advocates for the parties and having perused documents on record, it appears that the dispute was referred upon failure of conciliation for examining whether the petitioner is eligible to be made permanent as peon and is entitled to all the benefits as such with arrears. 7. The petitioner-workman was initially appointed as peon with effect from 15.04.1995. The petitioner was illegally terminated from the service in 1996. The petitioner raised industrial dispute for his termination from service. During pendency of the proceedings, the petitioner was reinstated in services. The petitioner is working on the vacant post of permanent peon, but is only paid minimum wages. The petitioner therefore, raised industrial dispute to make him permanent as peon with effect from 15.04.1995 and to grant pay and other allowances payable to the permanent peon along with other consequential benefits. The dispute came to be referred to the Industrial Tribunal, Bhavnagar being Reference (IT) No.75 of 1998. 8. The respondent-Municipality issued office order dated 27.05.2004 to the petitioner-workman directing him to join his duties as Chowkidar at vegetable market over and above his normal duties. The petitioner-workman was directed to perform his duties in the transport section as driver vide office orders dated 07.11.2004 and 25.04.2005. Vide office order dated 04.02.2005, the petitioner-workman was directed to perform his duties in the encroachment removing drive as peon. The petitioner-workman was directed to work with Food Inspector for taking samples of the adulterated goods vide office order dated 05.03.2007. The aforesaid version is supported by the affidavit of the petitioner before the Labour Court at Exh.14. The deposition reveals that the petitioner is paid wages of Rs.4,000/- and junior employee to the petitioner is appointed as permanent peon. 9. On behalf of the respondent-Municipality, documentary evidence have been produced vide of Exh.22. The Affidavit of the witness Suresh Kevlaji Katara has been produced vide Exh.23. The deposition reveals that the petitioner is paid wages of Rs.4,000/- and junior employee to the petitioner is appointed as permanent peon. 9. On behalf of the respondent-Municipality, documentary evidence have been produced vide of Exh.22. The Affidavit of the witness Suresh Kevlaji Katara has been produced vide Exh.23. Thereafter, the witness of the respondent-Municipality was supposed to remain present for the cross examination, but as he was engaged in the procedure of Tax Collection, could not come and so he has prayed to grant an adjournment by submitting the purshish at Exh.31. However, a strong objection was raised on behalf of the second party. Hence, the Industrial Tribunal passed order on 16.03.2011 and resolved that, this work is very old, i.e. of the year 1998 and as the instruction have been given by the High Court to complete the cases upto year 2000, the parties of this Reference have stated that they will co-operate to complete the cases up to year 1998 till the end of March-2011. Despite that, the respondent-Municipality submitted an application seeking adjournment vide purshish Exh.31. Looking to the grounds, as the same were not found proper, the application was rejected and it was ordered to cancel the affidavit of evidence of the respondent- Municipality which was produced vide Exh.23 and it was ordered to proceed with the case for the arguments of the petitioner herein. 10. The Industrial Tribunal had perused Exh.22, which are the details of the establishment /set up showing the number of vacancies of peon or other posts. There have been changes since then. Today, the present day set up is placed on record, which is not disputed and it is at page No.53 of the petition. This document shows present status of total 59 posts which are vacant in the establishment and atleast 7 posts of peon are vacant. Over and above, it is an uncontroverted fact that the petitioner is made to work on various posts and various departments within the respondent-Municipality since long. 11. It is also a matter of fact that although the Reference of the petitioner is rejected, the petitioner still continues to work on the establishment even as on date. The fact of junior to the petitioner was given permanent appointment is not controverted by the respondent-Municipality. 12. 11. It is also a matter of fact that although the Reference of the petitioner is rejected, the petitioner still continues to work on the establishment even as on date. The fact of junior to the petitioner was given permanent appointment is not controverted by the respondent-Municipality. 12. The aforesaid aspect appears to have not been appreciated by the Industrial Tribunal as the Industrial Tribunal proceeded to reject the Reference only on the ground of appointment not being made as per the recruitment process, but the Industrial Tribunal has failed to examine as to whether at the relevant time, i.e. in the year 1995, when the petitioner was appointed, whether there existed any regular recruitment procedure being followed by the respondent-Municipality. In absence of such fact coming on record, the Industrial Tribunal committed error. This is held as such, as it is established on record that the petitioner was indeed working as daily wager and that too for a long time, he has been assigned work from time to time by the respondent-Municipality and is also paid wages. Therefore, not accepting the contention of appointment not being through regular recruitment, is giving premium to wrong. 13. The Court has examined the decision of this Court in case of the very Municipality in SCA No.2326 of 2011 and allied matters and the decision of the Division Bench in LPA No.65 of 2016, where also, similar grounds of irregular appointment and non-availability of sanctioned post were advanced, but by considering the longevity of service of the workmen with the Municipality, the directions for absorbing them in sanctioned set up were maintained. 14. On the other hand, the decision relied upon by learned Advocate for the respondent-Municipality on in case of Ilmo Devi (supra), was in context of part-time, irregularly appointed workmen with the Post Office Department. Therefore, the ratio may not apply to the present facts. 15. 14. On the other hand, the decision relied upon by learned Advocate for the respondent-Municipality on in case of Ilmo Devi (supra), was in context of part-time, irregularly appointed workmen with the Post Office Department. Therefore, the ratio may not apply to the present facts. 15. In view of the aforesaid, the Court is inclined to quash and set aside the orders of the Industrial Tribunal in each of the petitions and pass following order:- I. In SCA No.10280 of 2011, the petitioner is directed to be given permanency on the post of peon available in the sanctioned set up and be paid wages at par with the post of peon in the establishment from the date on which the sanctioned post of peon had fallen vacant or from the date on which the daily wager /Class-IV employee, junior to the petitioner is given permanent appointment. II. SCA No.6901 of 2012 and SCA No.9081 of 2012 (cross petitions) and SCA No.8185 of 2012, it is reported that the petitioners have expired. Therefore, it is directed to pay a lump sum compensation of Rs.3,00,000/- to the legal heir/s of the deceased employees upon due verification. III. In SCA No.8332 of 2012, the petitioner be given permanency on the post of Clerk from the date on which vacant post of clerk was available or from the date on which another daily wager /clerk, junior to the petitioner was appointed (see page No.53). IV. In SCA No.8334 of 2012, the petitioner has reportedly retired on 30.06.2022. Hence, she is ordered to pay lump sum compensation of Rs.3,00,000/-. V. In SCA No.8673 of 2012, the petitioner is directed to be given permanency on the post of peon available in the sanctioned set up and be paid wages at par with the post of peon in the establishment from the date on which the sanctioned post of peon had fallen vacant or from the date on which the daily wager /Class-IV employee, junior to the petitioner is given permanent appointment. VI. In SCA No.16172 of 2011, the petitioner be given permanency on the post of cleaner at par with the post of cleaner in the establishment of the respondent-Municipality from the date on which vacant post in the establishment is available or any daily wager /cleaner, junior to the petitioner is given appointment. 16. VI. In SCA No.16172 of 2011, the petitioner be given permanency on the post of cleaner at par with the post of cleaner in the establishment of the respondent-Municipality from the date on which vacant post in the establishment is available or any daily wager /cleaner, junior to the petitioner is given appointment. 16. SCA Nos.10280 of 2011, 8185 of 2013, 8332 of 2012, 8334 of 2012, 8673 of 2012 and 16172 of 2011 stand partly allowed. Rule is made absolute to the aforesaid extent. SCA Nos.6901 of 2012, 9081 of 2012 and 11072 of 2014 stand dismissed. Rule is discharged. No order as to costs.