JUDGMENT : 1. Heard learned Senior Advocate Mr. K.M. Patel for learned advocate Mr. Nirav Joshi for Gandhi Law Associates for the petitioner and learned advocate Mr. T. R. Mishra for the respondent of Special Civil Application No. 5422 of 2017 and learned advocate Mr. B. M. Mangukiya for the respondent in Special Civil Application No. 13366 of 2019. 2. By way of Special Civil Application No. 5422 of 2017, the petitioner has challenged the order dated 11.01.2017 passed by the Industrial Tribunal, Jamnagar below Exh. 162 in Reference (IT) No. 72 of 2012 (Old No. 330 of 2000) whereby the Tribunal was pleased to allow the reference of the workmen partly and granted them the benefit of permanency from the date on which they completed 240 days service. For deceased workmen, the Tribunal directed that their case would be governed as per the provisions of the Section 18 of the Act. 3. By way of Special Civil Application No. 13366 of 2019, the petitioner has challenged the award dated 02.01.2019 passed by the Industrial Tribunal, Jamnagar below Exh. 59 in Reference (IT) No. 73 of 2012 (Old No. 331 of 2000) whereby while partly allowing the reference of the workmen, the Tribunal held that except those workmen who expired or those who have taken voluntarily retirement; rest of the workmen shall be given the benefit of permanency by treating the period prior to the date of award as notional period. 4. Being aggrieved and dissatisfied with the aforesaid two orders, both the respective petitions are preferred. 5. Both the matters were finally heard with the consent of the counsels appearing for the parties on 08.11.2022 and were listed for dictation of judgment on 10.11.2022 and today i.e. on 16.11.2022. 6. Brief facts giving rise to Special Civil Application No. 5422 of 2017 can be summarized as under:- 6.1 It is the case of the petitioner that petitioner Company is engaged in the business of manufacturing various chemicals and at present it is division of Nirma Limited. 6.2 On 26.06.1998, the respondent no. 1 – Union addressed the letter to Government Labour Officer, Porbandar and raised the demand of regularization of 12 workmen. 6.2 On 26.06.1998, the respondent no. 1 – Union addressed the letter to Government Labour Officer, Porbandar and raised the demand of regularization of 12 workmen. Thereafter, on 22.07.1999, the respondent – Union raised a demand by way of demand letter addressed to the petitioner – Company and demanded regularization of the workmen who were working in the Soda Godown Department and have completed 240 days. While another letter dated 27.09.1999 addressed to the Assistant Labour Commissioner, Porbandar, the respondent – Union included 13 more workmen in the said demand for regularization. Ultimately, Conciliation Case no. 3 of 1999 was registered. However, on failure of conciliation, Deputy Labour Commissioner, Rajkot sent the demand to Industrial Tribunal, Rajkot for adjudication and the same culminated in reference (IT) No. 313 of 2000. Subsequently, when the matter was transferred to Industrial Tribunal, Jamnagar, it was renumbered as Reference (IT) No. 72 of 2012. 6.3 In the aforesaid reference, the petitioner – Company opposed the statement of claim by filing the written statement and opposed the demand raised by Union by submitting that the respondent workmen are causal and daily wage workers and hence, they are not entitled to regularization even if they have completed 240 days. Ultimately, at the time of evidence, out of 48 workmen, only a few workmen were examined. It was the case of the petitioner – Company before the Industrial Tribunal that each of the workman was required to be examined and for that even an application also was given by the petitioner - Company which was subsequently not pressed by the petitioner – Company. 6.4 Same way, the workmen also preferred an application for production of muster roll. However, said application was partly allowed and Industrial Tribunal, Rajkot vide order dated 08.07.2011 directed the present petitioner to produce either muster roll or statement of the presence of the workmen from the date on which they were appointed till the date on which the industrial dispute was raised. However, said application was partly allowed and Industrial Tribunal, Rajkot vide order dated 08.07.2011 directed the present petitioner to produce either muster roll or statement of the presence of the workmen from the date on which they were appointed till the date on which the industrial dispute was raised. 6.5 The contention of the present respondent - workmen before the Tribunal was mainly in respect of the fact that they have completed 240 days in the petitioner – Company, the nature of the work of the respondent – workmen is identical to that of regular employees of the petitioner – company, though there are posts available in the petitioner – Company and persons performing identical duty are periodically retiring or have obtained VRS and therefore, those posts have fallen vacant and yet despite the fact that the respondent workmen are working in the petitioner – Company since long for so many years, they have not been given the benefits of the regularization which amounts to unfair labour practice and therefore, they are required to be regularized. The submissions made by the petitioner – Company before the Labour Court were to the effect that all the workmen are either casual or badli workers or they were called for work only as per the requirement of the company and as a replacement of workers who are on leave or who choose to remain absent. Merely because, they have worked for more than 240 days that will not confer any right upon the respondent workmen for regularization. Further when the management of the petitioner – Company was with erstwhile Saurashtra chemicals was a loss making company and therefore, was declared sick industrial unit which ultimately resulted in termination of a number of employees after following due procedure the petitioner – Company, upon taking overall the management by Nirma Limited were offered voluntarily retirement and hence, some of the employees availed that scheme also. Even, during the pendency of reference, a settlement between Nirma Limited which has taken over the petitioner – Company and all four Unions was worked out and the company has acted in accordance with the settlement. As per the settlement, more particularly, as per the clause no. 4. Even, during the pendency of reference, a settlement between Nirma Limited which has taken over the petitioner – Company and all four Unions was worked out and the company has acted in accordance with the settlement. As per the settlement, more particularly, as per the clause no. 4. 5 of the settlement, out of 182 casual workers of the company, the company agreed only for giving preferential work to the casual work as per the requirement of the company and qualification of the workmen. Further, the company agreed only for condoning a period from 18.02.2006 to 11.08.2006 while counting 240 days of the workmen for that particular year. The settlement was preferred in respect of the Reference (IT) No. 94 of 2016 and Reference (IT) No. 115 of 2006 and it was excepted by the petitioner – Company also that the aforesaid settlement does not included any clause in respect of regularization and therefore, any prayer for regularization would not covered by the aforesaid settlement. The petitioner – Company submitted before the Industrial Tribunal that there is no fresh recruitment after the company was taken over by Nirma Limited and therefore, there is no material to indicate that the nature of work that the respondents are performing was required by the company. In absence of there being any sanctioned set up no presumption can be drawn about requirement of the company. It was contended by the petitioner – company that it is not open for the Tribunal to decide the requirement of the Company as the company’s requirements would be based upon their financial viability. 7. By making the aforesaid submissions, the petitioner – Company prayed for dismissal of reference. 8. For workmen, a few workmen were examined. During their examinations, all the workmen who were examined conceded to the fact that they were not given any appointment order in writing and that they are causal workers. The same way, on behalf of the Company one Mr. Indravadan Dhruv working as Deputy Manger, (IR) was examined. During his cross examination he accepted the fact that the workmen were working in the company since last 15 to 20 years, there is no order in writing terminating the services of the workmen. The same way, on behalf of the Company one Mr. Indravadan Dhruv working as Deputy Manger, (IR) was examined. During his cross examination he accepted the fact that the workmen were working in the company since last 15 to 20 years, there is no order in writing terminating the services of the workmen. In his cross examination, he said that for the workers working in the company, there is a certified standing order, he also admitted the fact that it is true that as per the standing order, if any permanent employee goes on leave, he is required to submit his leave report in writing. He also admitted the fact that in case of absenteeism on the part of the workmen, there is a provision of disciplinary action in the standing order. However, no such leave report of the permanent employees were produced before the Industrial Tribunal. He also admitted the fact that there is an order in writing given to the workmen. In his cross examination, he also admitted the fact that nature of work that the workmen who have raised industrial dispute were doing, the same work is going on even at present and its a day to day work. Even, in his cross examination, he reiterated the fact that from 2006 till the date from his cross examination company has not recruited any operator, helper or semi scale worker. He admitted the fact that around 24 to 36 workmen have retired from the company. He also admitted the fact that there is no qualification prescribed for unskilled labour in company and there is no sanctioned set up or sanctioned strength about qualification or number of workmen are required in the company. 9. Ultimately, by considering the documentary evidence as well as oral evidence on record, the Industrial Tribunal, Jamnagar passed the order dated 11.01.2017 by partly allowing the reference below Exh. 162 in Reference (IT) No. 72 of 2012 and directed the petitioner - company to regularize the services of the respondent workmen from the date on which they have completed 240 days in services. The Tribunal also ordered that the workmen who have expired shall be governed by the provision of section 18 of the Industrial Disputes Act. 10. Special Civil Application No. 13366 of 2019 is preferred against the order dated 02.01.2019. In that petition also, the facts are more or less similar. The Tribunal also ordered that the workmen who have expired shall be governed by the provision of section 18 of the Industrial Disputes Act. 10. Special Civil Application No. 13366 of 2019 is preferred against the order dated 02.01.2019. In that petition also, the facts are more or less similar. However, at the time when the industrial dispute was raised, it was raised by the 14 workers. But both the learned Senior Advocate Mr. K. M. Patel and learned advocate Mr. B. M. Mangukia are in agreement to the fact that the dispute is confined only in respect of 8 workmen at present. Since, the facts of second petition are almost similar, nature of evidence also is almost similar. The same is not narrated and discussed at length by this Court as both the parties are in agreement that the facts of the first petition would cover the facts of the second petition as well. Learned advocate Mr. Nirav Joshi for the petitioner points out at the time of dictation of judgment that the only difference between two petitions is that in Special Civil Application No. 5422 of 2017, the demand was in respect of grant of benefit of permanency with immediate effect where in Special Civil Application No. 13366 of 2019 in the reference the prayer of the workmen was to grant them benefit of permanency/regularization from the date on which they completed 240 days. 11. Similarly, both the orders passed by the Industrial Tribunal are also almost of similar nature. However, in Reference (IT) No. 72 of 2912 against which Special Civil Application No. 5422 of 2017 is preferred where the Tribunal granted the benefit of permanency from the date on which the workmen have completed 240 days, whereas in Reference (IT) No. 73 of 2012, the Tribunal has granted the benefit of permanency/regularization to the workmen from the date of award against which Special Civil Application No. 13366 of 2019 is preferred. 12. Barring this there is no difference, either in respect of the facts or submissions made by the learned advocates for the parties before the Industrial Tribunal as well as before this Court and hence, the facts of Special Civil Application No. 13366 of 2019 before the Industrial Tribunal, Jamnagar are not elaborately stated. 13. Learned Senior Advocate Mr. K. M. Patel assisted by learned advocate Mr. Nirav Joshi and learned advocate Mr. 13. Learned Senior Advocate Mr. K. M. Patel assisted by learned advocate Mr. Nirav Joshi and learned advocate Mr. Divyesh Bais for the petitioner submitted that the Industrial Tribunal has committed a manifest error by taking into consideration the fact that the respondent – workmen have completed 240 days and on the basis of the fact of completion of 240 days by the workmen, the benefit of regularization has been granted. According to learned Senior Advocate Mr. Patel, law is well settled on this point and the relief of regularization cannot be granted by taking into consideration the fact that the workmen has completed more than 240 days of work. Learned Senior Advocate Mr. Patel submitted that the aspect of work for 240 days or more would be applicable only in case of retrenchment as well as illegal termination but for the purpose of regularization, the same ought not to have been required to be considered by the Tribunal. 14. Learned Senior Advocate Mr. Patel for the petitioner further submitted that the Tribunal has committed an error by not appreciating the facts in its true perspective that there is no recruitment in the petitioner – company after 2006. In absence of there being any fresh recruitment, the Tribunal has come to the conclusion that on account of retirement of employees performing the similar duties, the sanctioned post have fallen vacant and therefore, there are sanction post available and by taking into consideration the fact that the nature of the work of the present workmen with those permanent employees are of similar nature. The Industrial Tribunal have arrived at a conclusion that this would amount to an unfair labour practice as the respondent workmen are serving under the petitioner – company since, last 15 to 20 years. 15. Learned Senior Advocate Mr. Patel submitted that the Tribunal has committed an error by not appreciating the fact that the respondent workmen are the badli or casual workers whose services were taken only in case when regular employee was not available or was on leave or on account of his absence. 16. 15. Learned Senior Advocate Mr. Patel submitted that the Tribunal has committed an error by not appreciating the fact that the respondent workmen are the badli or casual workers whose services were taken only in case when regular employee was not available or was on leave or on account of his absence. 16. Considering the fact that nature of work of the workmen were depend upon the requirement of the work and availability of regular workmen, the Tribunal has committed an error by taking into consideration only the aspect that the workmen have completed 240 days work in so many years and they are working for last 15 to 20 years. 17. Learned Senior Advocate Mr. Patel further submitted that the Industrial Tribunal has failed to appreciate the fact that Saurashtra Chemicals wherein the respondent workmen were working initially was a sick industrial unit and subsequently it was taken over by the Nirma Limited. Considering the fact that the petitioner was a sick industrial unit any direction to regularize the workmen would only result into worsening the financial condition and would amount to adding financial burden on sick industrial unit. The Industrial Tribunal ought not to have passed any order of regularization in respect of the respondent workmen in view of the fact that the present petitioner is a sick industrial unit. 18. Learned Senior Advocate Mr. Patel further submitted that it is the discretion of the company to decide as to how many workmen are required in the company, requirement of the company can be assessed by the company only and it is not open for the Tribunal to encroach upon an arena about requirement of the work. The Tribunal by holding that the respondents workmen were performing the same duty as performed by the regular workmen and by ignoring the fact that though regular employees were retired, their posts were not filled up, as committed an error by presuming that those posts were available and yet it was offered to the workmen which amounts to an unfair labour practice and therefore, the impugned award is bad as per the law. 19. Learned Senior Advocate Mr. 19. Learned Senior Advocate Mr. K. M. Patel further submitted that even if the Industrial Tribunal has come to the conclusion that the petitioner – company has adopted unfair labour practice then also Section 25 U of the Act provides for penalty for committing unfair labour practice which provides for imprisonment to a person who commits unfair labour practice for a term which may extend to six months or with fine which may extend to one thousand rupees or both and therefore, in absence of there being any sanctioned strength in a private organization, in absence of there being any penalty, benefit of permanency ought not to have been granted in favour of the workmen. 20. Learned Senior Advocate Mr. Patel also submitted that the statements of the presence produced by the petitioner indicate that some of the workmen have not worked every year for 240 days as observed by the Tribunal. 21. Learned Senior Advocate Mr. K. M. Patel appearing for the petitioner has relied upon the following decisions of the Hon’ble Supreme Court as well as of this Court in support of this contention. Decisions of Hon’ble Supreme Court:- 1. in the case of M/s. Parry and Co. Ltd V/s. P. C. Pal, Judge on the Second Industrial Tribunal, Calcutta and others reported in AIR 1970 SC 1334 2. in the case of Post Master General, Kolkata V/s. Tutu Das (Dutta) reported in (2007) 5 SCC 317 3. in the case of Mahatma Phule Agricultural University And Others V/s. Nasik Zilla Sheth Kamgar Union reported in (2001) 7 SCC 346 4. in the case of Hari Nandan Prasad And Another V/s. Employer I/R. To Management of Food Corporation of India and Another reported in (2014) 7 SCC 190 5. in the case of Gangadhar Pillai V/s. Siements Ltd. reported in (2007) 1 SCC 533 6. Registrar General of Indian And Another V/s. V. Thippa Shetty and others reported in (1998) 8 SCC 690 Decisions of this High Court:- 7. Decision dated 25.01.2018 in case of Director District Rural Deve Agency And Other V/s. Kishorkumar D. Tank and Others 8. Abad Dairy V/s. Manjibhai Dhanjibhai reported in 2000 (3) GLH 409 22. Learned Senior Advocate Mr. K. M. Patel relying upon of decision of Hon’ble Supreme Court in the case of M/s. Parry and Co. Decision dated 25.01.2018 in case of Director District Rural Deve Agency And Other V/s. Kishorkumar D. Tank and Others 8. Abad Dairy V/s. Manjibhai Dhanjibhai reported in 2000 (3) GLH 409 22. Learned Senior Advocate Mr. K. M. Patel relying upon of decision of Hon’ble Supreme Court in the case of M/s. Parry and Co. Ltd V/s. P. C. Pal, Judge on the Second Industrial Tribunal, Calcutta and others reported in AIR 1970 SC 1334 and by relying upon the paragraph no. 14 of the same submitted that it is well established that it is within the managerial discretion of an employer to organise and arrange his business in the manner he considers best and therefore, the requirement of the company and whether as per the requirement of the company more workmen than the existing workmen are required or not which was not an aspect to be decided by the Industrial Tribunal. 23. Learned Senior Advocate Mr. Patel by relying upon the judgment in case Post Master General, Kolkata V/s. Tutu Das (Dutta) reported in (2007) 5 SCC 317 submitted that completion of 240 days continuous service in a year is an irrelevant criteria for regularization of an employee. 24. By relying upon the judgment in the case of Mahatma Phule Agricultural University And Others V/s. Nasik Zilla Sheth Kamgar Union reported in (2001) 7 SCC 346 and by relying upon the paragraph no. 14 of the same, learned Senior Advocate Mr. Patel submitted that in absence of there being any sanctioned post lying vacant even if the workman were carrying out the similar nature of work, no regularization can be granted. Learned Senior Advocate submitted that this being a private organization in absence of there being any set up sanction the requirement of the company is required to be considered. 25. By relying upon the judgment in the case of Director District Rural Deve Agency And Other V/s. Kishorkumar D. Tank and Others and more particularly paragraph no. 7 of the said judgment, learned Senior Advocate submitted that if there are no post available, direction of regularization would be impermissible. By relying upon the paragraph no. 25. By relying upon the judgment in the case of Director District Rural Deve Agency And Other V/s. Kishorkumar D. Tank and Others and more particularly paragraph no. 7 of the said judgment, learned Senior Advocate submitted that if there are no post available, direction of regularization would be impermissible. By relying upon the paragraph no. 7 of the judgment, learned Senior Advocate submitted that the Tribunal was required to take note of the fact that there is no recruitment after the year 2006 and no persons are appointed though there are more than 36 persons were retired from the company. By relying upon the paragraph no. 8 of the said judgment, learned Senior Advocate submitted that the Division Bench of this Court has held that the ratio of the judgment in case of Secretary, State Of Karnataka And others V/s. Umadevi And Others reported in 2006 (4) SCC 1 would be applicable even to the dispute related to the Industrial Dispute Act. 26. By relying upon the judgment in case of Hari Nandan Prasad And Another V/s. Employer I/R. To Management of Food Corporation of India and Another reported in (2014) 7 SCC 190 and by relying upon the paragraph no. 39 of the judgment, learned Senior Advocate Mr. Patel submitted that the Labour Court ought not to have given direction for regularization only because a worker has continued as dailywager/ ad hoc/temporary worker for number of years, when there are no post available. 27. By relying upon the judgment in case of Gangadhar Pillai V/s. Siements Ltd. reported in (2007) 1 SCC 533 , learned Senior Advocate submitted that merely because an employee has been engaged as a casual or temporary employee or that he has been employed for number of years that itself may not lead to the conclusion that such appointment has been made with the object of depriving the status and privilege of a permanent employee. 28. 28. By relying upon the judgment in case of the Abad Dairy V/s. Manjibhai Dhanjibhai reported in 2000 (3) GLH 409 , learned Senior Advocate submitted that Industrial Tribunal was well aware about the fact that the petitioner was a sick industrial unit and therefore, considering the financial condition of the petitioner unit any direction which would increase the financial burden of the petitioner company that is by way of directing the petitioner to regularize of the workman ought not to have been given by the Tribunal and hence, the order passed by the Tribunal is contrary to the ratio laid down in case of Abad Dairy. 29. Learned Senior Advocate lastly relying upon the judgment in case of Registrar General of Indian And Another V/s. V. Thippa Shetty and others reported in (1998) 8 SCC 690 submitted that regularization should always be prospective in nature and hence, the industrial Tribunal was not justified in passing the order of regularization even if the orders passed by the Industrial Tribunal are upheld than also the direction is required to be modified in Special Civil Application No. 5422 of 2017 by modifying the award of the Industrial Tribunal to be made applicable from the date of award and not from the date on which the workmen have completed 240 days. 30. Apart from the aforesaid submissions and judgments stated hereinabove, no other submissions were made by the learned Senior Advocate Mr. Patel nor any other judgments were cited by the learned Senior Advocate Mr. Patel. 31. Learned advocate Mr. T.R. Mishra and learned advocate Mr. B. M. Mangukia appearing for the respondents in respective petitions vehemently opposed the aforesaid petitions. Both the learned advocates appearing for the respondents submitted that the impugned award is absolutely just, legal and proper. Both the learned advocates have submitted that the Industrial Tribunal has discussed the evidence at length and passed a reasoned order. Learned advocates appearing for the respondents in both the respective petitions submitted that the Tribunal has not passed the order of permanency/regularization only by taking into consideration the 240 days service and has also taken into consideration the fact that the respondent – workmen are serving in the petitioner – Company since last more than 15 to 20 years and they have worked for more than 240 days. The other consideration of the Industrial Tribunal was that the petitioner – Company has adopted unfair labour practice as the nature of work of the workmen is similar to that of permanent employees and despite that they have been denied the benefit of permanency. 32. Learned advocates appearing for the respondents submitted that the Tribunal while passing the impugned order considered the fact that in the petitioner – Company, the persons performing the identical duty either resigned, took VRS or attained the age of superannuation and the aforesaid fact was substantiated by deposition of Mr. Indravadan Dhruv as he admitted during his cross examination that around 24 to 36 workers performing the similar duty have either superannuated or resigned. 33. Learned advocates appearing for the respondents submitted that the petitioner’s say that there is no recruitment after 2006 cannot be considered for the reason that at the time when the workmen were working, plant was manually operated and subsequently, even if automization has taken place, it cannot be said that the company does not have work and merely because plant has been automised, is no ground to deny the benefits of permanency to the workmen who are already working in the company since last 15 to 20 years. Learned advocates appearing for the respondents submitted that all the judgments cited and relied upon by learned Senior Advocate Mr. Patel appearing for the petitioners are in respect of the Government Companies or Government and therefore, the ratio about unfair labour practice in respect of sanctioned post though available not filled up and yet the workmen are asked to perform the same duty would not be applicable in the facts of the present case as the present petitioner being a private company, there is no sanctioned set up in the petitioner – company and therefore what is required to be seen is only the nature of the work that the present petitioner and permanent workers are performing. Once the aforesaid work was found to be similar and as it was admitted by the Deputy Manager, Mr. Dhruv of the company during his cross examination that in recent years atleast 24 to 36 employees have either been superannuated, took VRS or resigned, would indicate that there are vacancies of persons performing similar kind of work in the company. 34. Dhruv of the company during his cross examination that in recent years atleast 24 to 36 employees have either been superannuated, took VRS or resigned, would indicate that there are vacancies of persons performing similar kind of work in the company. 34. Learned advocates appearing for the respondents submitted that the petitioner – Company being a private company, Article 14 and 16 would not be applicable in case of the petitioner – company and therefore, ratio of the judgment in case of Umadevi would not be applicable in the facts of the present case. 35. As far as the submission of learned Senior Advocate Mr. Patel appearing for the petitioners in respect of the fact that the petitioner – Company was a loss making unit and was declared a sick unit and therefore, it should not be burden if any further financial liability is concerned, learned advocate Mr. T. R. Mishra appearing for the respondents submitted that the aforesaid company was subsequently taken over by profit making company and the company is still functioning and therefore, the benefits of permanency granted to the workmen by the Labour Court cannot be taken away only by citing the past of the company that the company was once upon a time a sick unit. What is required to be considered is the fact that the company is functioning today also and even the department wherein the workmen are working is still functional and therefore, the ratio in the case of Abad Dairy V/s. Manjibhai Dhanjibhai would not be applicable in the facts of the present case. 36. Learned advocate Mr. T.R. Mishra appearing for the workmen pointed out from the record that though it is the specific case of the petitioner – company that the present petitioners are casual or badli workers and they have called for work only when a regular employee was absent on account of leave or otherwise, learned advocate Mr. T. R. Mishra relying upon the model standing order and pointed out that if a regular employee does not report on duty either on account of leave or for any other reason, in that case, it is always open for the company to take disciplinary action against the absent persons. T. R. Mishra relying upon the model standing order and pointed out that if a regular employee does not report on duty either on account of leave or for any other reason, in that case, it is always open for the company to take disciplinary action against the absent persons. He submitted that to substantiate claim of the company that the workmen were badli or casual worker, the company even failed to produce the leave reports of the regular employees which would indicate that on account of leave of permanent employees the badli workers were called for duty. 37. By relying upon model standing order, learned advocate Mr. Mishra submitted that if the present petitioners were badli workers in that case the company was required to maintain a register of badli worker. However, at no point of time, during the reference any such register was produced by the petitioner – company. 38. Learned advocate Mr. Mishra further submitted that the Industrial Tribunal has taken into consideration overall view of the facts and circumstances and has considered the fact that though all these 34 workmen in both these petitions were working since more than 15 to 20 years and were performing similar duties compared to the permanent employees, they were deprived of benefit of permanency. The aforesaid aspect was considered by the Industrial Tribunal by taking note of the fact that the post of the permanent employees had fallen vacant on account of their superannuation or resignation and even the work was also available. 39. Learned advocate Mr. Mishra drew attention to the cross examination of Mr. Dhruv and submitted that Mr. Dhruv has admitted that the work which the workmen are performing is a day to day work and that is still going on in the company and which would indicate that there are vacant posts and there are requirement of workers and yet since the workmen were not given the benefit of permanency, the Industrial Tribunal after taking overall view of the matter and taking into consideration all the oral as well as documentary evidence was pleased to partly allow the reference of the workmen. 40. Learned advocate Mr. Mishra has relied upon the following decisions:- 1. Durgapur Casual Workers Union & Ors. V/s Food Corporation of India & Ors. reported in 2015 (5) SCC 786 . 2. 40. Learned advocate Mr. Mishra has relied upon the following decisions:- 1. Durgapur Casual Workers Union & Ors. V/s Food Corporation of India & Ors. reported in 2015 (5) SCC 786 . 2. Oil and Natural Gas Corporation Limited V/s. Petroleum Coal Labour Union and Others reported in (2015) 6 SCC 494 3. Sabha Shanker Dube V/s Divisional Forest Officer and Others, (2019) 12 SCC 297 41. Learned advocate Mr. Mishra relied upon the case of Durgapur Casual Workers Union & Ors. V/s Food Corporation of India & Ors. reported in 2015 (5) SCC 786 and by relying upon paragraph no. 12 and 18 of the said judgment submitted that Articles 14 and 16 of the Constitution of India are not attracted in the matter of appointment in a private establishment or undertaking. By relying upon paragraph no. 18 of the said judgment, learned advocate Mr. Mishra submitted that the judgment of Secretary, State Of Karnataka And others V/s. Umadevi And Others is an authoritative pronouncement for the proposition that the Hon’ble Supreme Court and the High Courts should not issue directions of absorption, regularization or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees unless the recruitment itself was made regularly in terms of constitutional scheme. However, the aforesaid judgment does not denude the Industrial and Labour Court of their statutory power under section 30 read with section 32 of the MRTU and PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under Item 6 of Schedule IV where the posts on which they have been working exist and judgment of Umadevi cannot be held to have overridden the powers of the Industrial or Labour Court under section 30 of the MRTU and PULP Act, once unfair labour practice on the part of the employer under Item 6 of Schedule IV is established. 42. By relying upon the aforesaid judgment, learned advocate Mr. Mishra submitted that the judgment in case of Secretary, State Of Karnataka And otehrs V/s. Umadevi And Others has a very limited applicability in respect of jurisdiction of Labour Court and the same would not bar the Labour Court from directing the order of permanency once the unfair labour practice is established. 43. Thereafter, learned advocate Mr. Mishra submitted that the judgment in case of Secretary, State Of Karnataka And otehrs V/s. Umadevi And Others has a very limited applicability in respect of jurisdiction of Labour Court and the same would not bar the Labour Court from directing the order of permanency once the unfair labour practice is established. 43. Thereafter, learned advocate Mr. T. R. Mishra relying upon the judgment in case of Oil and Natural Gas Corporation Limited V/s. Petroleum Coal Labour Union and Others reported in (2015) 6 SCC 494 submitted that company is required to follow the standing order as the same is mandatory. Learned advocate Mr. Mishra submitted that when the petitioner – company has taken a stand that the workmen are badli workers in that case, the petitioner – company was required to produce the register which is mandatory to be maintained by the company showing the list of badli workers. The standing order also prescribed that whenever the permanent employees was on leave, he is required to submit the leave application which has not been produced in the instant case on record before the Industrial Tribunal and therefore, in absence of there being any register for badli workers as also considering the fact that no leave reports of the permanent employees are produced on record keeping in mind the fact that the Industrial Disputes Act in a way is a benevolent Act protecting the rights of the workmen and adverse inference is required to be drawn in favour of the workmen. 44. Learned advocate Mr. Mishra relying upon the judgment of the Hon’ble Supreme Court in the case of Sabha Shanker Dube V/s Divisional Forest Officer and Others reported in (2019) 12 SCC 297 and by relying upon the paragraphs no. 11, 12 and 13 of the said judgment submitted that even assuming without admitting that the workmen are temporary employees or daily wagers or ad-hoc employees then also they are entitled to minimum of the regular pay scales on account of their performing the same duties which are discharged by those engaged on regular basis against the sanctioned posts. 45. By relying upon the aforesaid judgment, learned advocate Mr. Mishra and learned advocate Mr. Mangukia appearing for the respondents prayed for dismissal of the petitions. 46. I have heard the learned Senior Advocate Mr. K. M. Patel with learned advocate Mr. Nirav Joshi for the petitioners, learned advocate Mr. 45. By relying upon the aforesaid judgment, learned advocate Mr. Mishra and learned advocate Mr. Mangukia appearing for the respondents prayed for dismissal of the petitions. 46. I have heard the learned Senior Advocate Mr. K. M. Patel with learned advocate Mr. Nirav Joshi for the petitioners, learned advocate Mr. T. R. Mishra and learned advocate Mr. B. M. Mangukia for the respondents in respective petitions. Perused the record and considering the submissions made by the learned counsels appearing for the parties and have considered the various decisions cited by the counsels appearing for the parties. 47. The record indicates that the petitioner – Company erstwhile was owned by Saurashtra Chemicals and subsequently, during the pendency of the both the references was taken over by Nirma Limited and become a division of Nirma Limited. Both the references are of the year 1999 and at that time, it was Saurashtra Chemicals Limited and it is only in the year 2006 when the Company was taken over by Nirma Limited, the management changed and thereafter, automization had taken place. The record also indicates that there is no fresh recruitment on the post which the workmen are holding after 2006 but that hardly has any significance for the reason that the record also indicates that once the company was taken over, there was automisation and on account of automization no recruitment has taken place but it does not indicate that the company does not have work or that the work that the present petitioners are performing is no longer needed by the company. 48. If both the awards under challenge are perused by this Court it indicates that the Industrial Tribunal has not granted the benefit of permanency to the workmen only by taking into consideration that the workmen have completed 240 days, the Industrial Tribunal has apart from taking into consideration that the workmen have worked for more than 240 days as also taken into consideration that the workmen are performing the same nature of workmen with the regular employees are performing. 49. 49. As far as unfair labour practice is concerned, it is true that they are catena of decisions of this Court as well as Hon’ble Supreme Court wherein a view has been taken that unfair labour practice can be said to have been adopted by the company only when there are sanctioned post which are lying vacant and despite the sanctioned post lying vacant, workmen who are casual, badli or temporary workers are asked to perform the duties identical to that of permanent employees just to deprive them of the benefit of permanency. However, considering the fact that the present petitioner is not the Government Organization and therefore, the petitioner being a private company, it cannot have any permanent set up but merely because a private company does not have permanent set up would not mean that a private company cannot indulge into unfair labour practice. In case of a private company overall circumstances are required to be taken into consideration. The record indicates that in 2006, the erstwhile company was taken over by Nirma Limited and thereafter, automization has taken place and after automization there are 24 to 36 employees performing similar duties were retired or resigned or superannuated. However, as per the cross examination of the employee of the company Mr. Dhruv, he has admitted the fact that the work of the present workmen are of routine nature and is required everyday. Further, there are regular employees who are performing the similar work and therefore, the evidence on record indicates that the nature of work that the workmen are performing is similar to that of work performed by the regular employees. Therefore, the only question that remains for consideration of this Court is that in respect of a private company which does not have any sanctioned set up when there is no sanctioned set up still the practice adopted by private company obtained to different pay scale to permanent employees and badli or casual workers would amount to unfair labour practice or not. 50. Learned Senior Advocate Mr. Patel by relying the decision in case of Gangadhar Pillai V/s. Siements Ltd. and by relying upon the paragraphs no. 50. Learned Senior Advocate Mr. Patel by relying the decision in case of Gangadhar Pillai V/s. Siements Ltd. and by relying upon the paragraphs no. 23 to 28 submitted that the aforesaid judgment is in respect of a private company and yet the Hon’ble Supreme Court considered the question as to whether an employee had been intermittently engaged as casual or temporary for a number of years is essentially a question of fact. The issue as to whether unfair labour practices had been resorted to by the employer or not must be judged from the entirety of the circumstances brought on record by the parties. 51. However, though learned Senior Advocate Mr. Patel relied upon the aforesaid judgment and at the time of making submission, learned Senior Advocate Mr. Patel submitted that even if the unfair labour practice is proved than also in Industrial Disputes Act there is a provision for penalty only and for that the benefit of permanency ought not to have been granted by the Tribunal. By relying upon the judgment in case of Gangadhar Pillai V/s. Siements Ltd. Mr. Patel has submitted that though a private company may not have the sanctioned strength and therefore, what is required to be seen is the requirement of the private company as to whether what is number of people that would be required by the private company to ensure it’s functioning in a smoother way and that the issue about sufficiency of workmen is a matter of discretion of the company and that cannot be considered or decide by the Tribunal. There cannot be any question about the ratio of judgment in case of Gangadhar Pillai V/s. Siements Ltd. or M/s. Parry and Co.(supra). However, as observed in paragraph no. 23 in case of Gangadhar Pillai V/s. Siements Ltd. by Hon’ble Supreme Court unfair labour practice is a question of fact. The aforesaid question has been examined by the Industrial Tribunal at length and after examining the same, the Tribunal has come to the conclusion that the practice adopted by the petitioner company amounts to unfair labour practice and that was one of the reason that the benefit of permanency/regularization was granted in favour of the workmen. 52. The aforesaid question has been examined by the Industrial Tribunal at length and after examining the same, the Tribunal has come to the conclusion that the practice adopted by the petitioner company amounts to unfair labour practice and that was one of the reason that the benefit of permanency/regularization was granted in favour of the workmen. 52. It is true that the Industrial Disputes Act provides for a penalty for unfair labour practice but a direction for regularization or granting permanency benefit to the employee should not be seen as a punishment. The aforesaid direction is required to be seen and can be considered as a corrective major towards unfair labour practice and therefore, once the Hon’ble Supreme Court held the question of unfair labour practice to be determined as a question of fact and the same has been elaborately discussed by the Industrial Tribunal, this Court has very limited scope to interfere into the same and therefore, once unfair labour practice having been established by the Industrial Tribunal, any direction for permanency can be said to be a direction towards correcting the aforesaid practice as a corrective measure and cannot be said to be a penalty and therefore, the submission of learned Senior Advocate Mr. Patel that there is no unfair labour practice as there are no sanctioned post and sanctioned post or requirement of workers is required to be determined by the company and its a matter of discretion of the private company cannot be accepted. Said issue is examined by the Labour Court and I do not see any error committed by the Labour Court while examining the aforesaid aspect and holding that the practice adopted by the petitioner company amounts to unfair labour practice. 53. As far as the consideration of the Industrial Tribunal while granting the benefit of permanency that the workmen have worked for more than 240 days is concerned as submitted by learned Senior Advocate Mr. Patel working for 240 days or more should not be a consideration for regularizing the services. 53. As far as the consideration of the Industrial Tribunal while granting the benefit of permanency that the workmen have worked for more than 240 days is concerned as submitted by learned Senior Advocate Mr. Patel working for 240 days or more should not be a consideration for regularizing the services. There cannot be any dispute about the aforesaid proposition of law, however, the Industrial Tribunal has granted the benefit of permanency or regularization to the workmen not by taking into consideration the aspect that the workmen have worked for more than 240 days only, even if that aspect has been ignored completely than also there are other reasons which may make the workmen entitled for the benefit of permanency or regularization and unfair labour practice is one of those vital aspect which the Industrial Tribunal has examined and held in favour of the workmen. 54. As far as the submission of learned Senior Advocate Mr. Patel that the petitioner – company was a sick industrial unit and was a loss making unit and therefore, any direction which may increase the financial burden of the company ought not to have been given by Industrial Tribunal is concerned as learned Senior Advocate has relied the decision of Abad Dairy (supra) there cannot be any dispute about the ratio laid down by the Division Bench in respect of judgment of Abad Dairy. 55. However, considering the fact that in the year 1999 when the reference was made at that time the erstwhile company was not a sick industrial unit, the claim of workmen is required to be seen on the date on which it was lodged and not on the basis of subsequent events. Even if subsequent events are taken into consideration then also even after the erstwhile unit was declared a sick industrial unit, the same was taken over by a profit making unit and it is not the case of the petitioner that even after the erstwhile unit was taken over by the petitioner, thereafter, also the petitioner - unit has continued to incur losses. In absence of there being any findings about the fact that at the time when the award was passed by the Industrial Tribunal, the petitioner unit was a loss making unit, the submissions of learned Senior Advocate Mr.Patel cannot be accepted that the petitioner unit was a loss making unit and therefore, the Industrial Tribunal ought not to have given any direction of permanency or regularization which may increase the financial burden on the petitioner company. On the contrary the record indicates that after the erstwhile industrial unit was taken over by the petitioner company, the entire unit was automised and after the making the unit an automatic unit the production continued and may be the number of workmen might not have increased but the fact remains that the nature of duty that the workmen are performing has continued to be performed by the present workmen and the same is required even at present as can be seen from the cross examinations of Mr. Dhruv. 56. In view of the aforesaid discussion, the award passed by the Industrial Tribunal cannot be said to be contrary to the provisions of law nor it cannot be said that the Industrial Tribunal has committed any error of law while granting the permanency/regularization to the workmen and therefore, no interference is required to be called for in both the awards which are impugned in these petitions. 57. In view of above, both these petitions are required to be dismissed and the same are dismissed accordingly. Rule is discharged. No order as to costs. 58. Registry is directed to be sent back the R & P to the concerned Court.