JUDGMENT : M. K. THAKKER, J. 1. Rule, returnable forthwith. Learned advocates for the respondents in SCA No.14661 of 2022 as well as in SCA No.16901 of 2022 waives service of notice of Rule on behalf of respondent. 2. This petition being SCA No.14661 of 2022 is filed by the workman challenging the judgment and award passed by the learned labour court, Bhavnagar in reference IT No.71 of 2016 to the extent of denial of arrears of pay for the entire length of service from 21.06.1999 to the date of order. 3. The petition being SCA No.16901 of 2022 is filed by the employer-Panchayat challenging the impugned award directing the employer to regularize the service of the present workman with effect from 21.06.1999 as a Driver and granting the benefit of regularization as well by directing to grant the benefit of permanent employee from 21.06.1999 to 14.02.2022 to be treated as notional and thereafter, the actual benefit were granted. 4. The gist of the case is that, employer-Panchayat has published an advertisement on the notice board about the vacancy for the post of driver, pursuant to the said advertisement the workman had applied and was called for the interview and thereafter, he was selected on the post of Driver on daily wage basis at Primary Health Center Velavadar on 21.06.1999. As there was sanctioned vacant post and the workman has worked on daily wage basis as well as the workman was deprived from the benefit of Government resolution dated 17.10.1988, the reference came to be filed before the learned labour court, Bhavnagar being reference IT No.71 of 2016 seeking regularization on the post of Driver. Keeping grudge of the above reference, services of the workman came to be terminated on 27.07.2016, therefore, complaint came to be filed under section 33(a) of the Industrial Disputes Act, 1947(hereinafter referred to as the “ID Act”) before the learned labour court, Bhavnagar. Learned labour court vide order dated 23.11.2017 has allowed the complaint and directed the employer-Panchayat to reinstate the workman within a period of 30 days and further directed to pay the salary for the period for which he was wrongfully terminated. Learned labour court vide order dated 23.11.2017 has allowed the complaint and directed the employer-Panchayat to reinstate the workman within a period of 30 days and further directed to pay the salary for the period for which he was wrongfully terminated. Challenging the above award, the petition came to be filed by the employer being SCA No.6029 of 2018 which came to be dismissed vide order dated 16.04.2018 confirming the order passed by the learned court dated 23.11.2017, thereafter, reference being No.71 of 2016 came to be decided and directions were issued to regularize the service of the present workman with effect from 21.06.1999. As the learned labour court has observed that for promotion, seniority, retirement benefits etc. the period of service from 21.06.1999 was to be considered as notional. The workman has filed the petition praying to grant the benefit of actual wages and all the consequential benefits on completion of 240 days from initial date of appointment. Employer has also challenged the said order on the ground that application made by the workman on 15.06.1999 for the post of Driver and considering the administrative exigencies, more particularly availability of only one vehicle for three Primary Health Center and the post was vacant, the medical officer of Velavadar Primary Health Center offered the work to the workman as a daily wager Driver with effect from 21.06.1999. As the appointment was on a daily wage basis therefore, no claim subsequently can be made for regularization of the service and stating the workman as a regular employee therefore, the award passed by the learned labour court was challenged by the employer. 5. Heard learned advocate Mr.Japee for the workman and learned advocate Mr.Munshaw for the employer. 6. Learned advocate Mr.Japee submits that the workman has worked continuously from 21.06.1999 and as on date he is serving on the post of Driver which is a vacant sanctioned post and he was the only Driver for three different Primary Health Centers, despite the same he was given the meager wages in comparison to the regular employees. Learned advocate Mr.Japee submits that employer has exploited the workmen by taking the work which is of perineal nature by paying poor wages for the post which is sanctioned vacant post and therefore, same is nothing but an unfair labour practice which is prohibited under the Industrial Dispute Act. Learned advocate Mr.Japee submits that employer has exploited the workmen by taking the work which is of perineal nature by paying poor wages for the post which is sanctioned vacant post and therefore, same is nothing but an unfair labour practice which is prohibited under the Industrial Dispute Act. Learned advocate Mr.Japee submits that for not granting the actual benefit from the date of his appointment no reason was assigned by the learned labour court therefore, the award to the extend of denial of arrears for the entire length of service from 21.06.1999 is required to be modified and the direction is required to be issued to pay arrears of salary from 21.06.1999. Learned advocate Mr.Japee further submits that other similarly situated persons who are junior to the present petitioner were regularized and were paid higher salary than the workman and petitioner was only deprived from the benefit of regular pay scale. 6.1. Learned advocate Mr.Japee has relied on the decision rendered by the Apex Court in the case of Umrala Gram Panchayat versus The Secretary, Municipal Employees Union & Ors reported in 2015 12 SCC 775 as well as the decision rendered in the case of Maharashtra State Road Transport Corporation and Another Versus Casteribe Rajya Parivahan Karmachari Sanghatana reported in 2009 (8) SCC 556 and the decision rendered by this Court in the case of Chief Officer, Gariyadhar Nagar Palika versus Arvindbhai Dhulabhai Vanzara rendered in Letters Patetnt Appeal No. 589 of 2019 and submitted that if persons are continued to be engaged for long period without extending their benefits of permanency it would amount to unfair labour practice and after getting the work for more than 20 years it is not open for the employer to deprive from the benefit of regular pay scale. Learned advocate Mr.Japee submits that the award passed by the learned labour court to the extent to denying the actual benefits required to be modified and the petition is required to be allowed. 7. Per Contra, learned advocate Mr.Munshaw appearing for the employer submits that at the time of appointment, the workman was having the knowledge that he was appointed on daily wage basis therefore, it is not open for him subsequently to claim for benefit of regular employees. 7. Per Contra, learned advocate Mr.Munshaw appearing for the employer submits that at the time of appointment, the workman was having the knowledge that he was appointed on daily wage basis therefore, it is not open for him subsequently to claim for benefit of regular employees. Considering the exigency, the appointment was made purely on daily wage basis and that was also not after getting the names from the employment exchange and as no recruitment process was followed, the appointment would be a back door entry which cannot be certified by the court of law by granting the benefit of regularization. 7.1. Learned advocate Mr.Munshaw submits that no evidences were laid before the labour court to show that juniors were granted the benefit of regularization and the workman was deprived of the same. Therefore, in absence of any evidence learned labour court ought to have rejected the reference, however, the learned labour court has awarded the reference in favour of the present petitioner. Learned advocate Mr.Munshaw further submits that considering the financial burden, learned labour court has directed that the period from 21.06.1999 be considered as notional and actual benefits were awarded from the date of passing award. Learned advocate Mr.Munshaw submits that petition filed by the workman is required to be dismissed and petition filed by the employer is required to be allowed by setting aside the impugned award. 8. Considering the submissions made by the learned advocates for the respective parties, it is undisputed fact that respondent was appointed on the post of Driver from 21.06.1999 after following the recruitment process i.e. on making the application and after taking interviews. He served continuously till the date, however, despite the work of perineal in nature, was taken by the employer, workman was paid meager amount in comparison to the regular employees, he also has worked of the same nature. It also transpires from the record that there was a sanction vacant post of Driver and was performing the duty for three different Primary Medical Centers. It also transpires from the record that as the permanent Driver namely Khodubha was transferred to the other place and as the post remained vacant, therefore, the petitioner has served in place of that Driver. It also transpires from the record that as the permanent Driver namely Khodubha was transferred to the other place and as the post remained vacant, therefore, the petitioner has served in place of that Driver. Claiming the benefit of regularization, the reference came to be filed before the learned labour court at Bhavnagar being Reference No.71 of 2016 on 28.07.2016 and immediately thereafter, his services were terminated. Therefore, complaint came to be filed under section 33 of the ID Act being complaint No.9 of 2016 which was ordered in favour of the workman and the employer was directed to reinstate the workman on 23.11.2017 with full back wages and all the consequential benefits. 8.1. Being aggrieved by the aforesaid order, the employer- District Panchayat filed a petition before this Court being SCA No.6029 of 2018 which was dismissed vide order dated 16.04.2018 and as per the submission made by the learned advocate Mr.Munshaw, he is continued till hearing of this petition. On completion of 25 years of service, it is not open for the employer to contend that appointment was made through back door entry. It is undisputed fact that on the place of the regular employee, petitioner has worked as a Driver of the Ambulance Van for three different Primary Health Center. Once, work was taken for these many years, the employer cannot be permitted to take benefit of his own wrong. As per the sanction set up which was produced below mark 21/2, there was a vacant post of Driver at Velavadar which remained unfilled for more than two decades. 9. At this stage, decision of the Apex Court in the case of Maharashtra State Road Transport Corporation and Another Versus Casteribe Rajya Parivahan Karmachari Sanghatana (Supra) is required to be referred. The relevant paragraph is reproduced herein below:- “29. In the case of Indian Drugs & Pharmaceuticals Ltd. vs. Workmen, Indian Drugs & Pharmaceuticals Ltd. , this Court stated that courts cannot create a post where none exists. In paragraph 37 of the report, this Court held: "37. Creation and abolition of posts and regularisation are purely executive functions vide P.U. Joshi v. Accountant General (2003) 2 SCC 632. Hence, the court cannot create a post where none exists. Also, we cannot issue any direction to absorb the respondents or continue them in service, or pay them salaries of regular employees, as these are purely executive functions. Creation and abolition of posts and regularisation are purely executive functions vide P.U. Joshi v. Accountant General (2003) 2 SCC 632. Hence, the court cannot create a post where none exists. Also, we cannot issue any direction to absorb the respondents or continue them in service, or pay them salaries of regular employees, as these are purely executive functions. This Court cannot arrogate to itself the powers of the executive or legislature. There is broad separation of powers under the Constitution, and the judiciary, too, must know its limits." 33. In view of the findings recorded by the Industrial Court, Thane as well as Industrial Court, Bombay, it can be safely held that the posts of cleaners exist in the Corporation. No factual foundation has been laid by the Corporation that the posts of cleaners do not exist in the Corporation, rather the evidence on record reflects otherwise. 34. The question, now, remains to be seen is whether the recruitment of these workers is in conformity with Standing Order 503 and, if not, what is its effect? No doubt, Standing Order 503 prescribes the procedure for recruitment of Class IV employees of the Corporation which is to the effect that such posts shall be filled up after receiving the recommendations from the Service Selection Board and this exercise does not seem to have been done but Standing Orders cannot be elevated to the statutory rules. These are not statutory in nature. We find merit in the submission of Mr.Shekhar Naphade, learned Senior Counsel that Standing Orders are contractual in nature and do not have a statutory force and breach of Standing Orders by the Corporation is itself an unfair labour practice. The concerned employees having been exploited by the Corporation for years together by engaging them on piece rate basis, it is too late in the day for them to urge that procedure laid down in Standing Order No. 503 having not been followed, these employees could not be given status and principles of permanency. The argument of the Corporation, if accepted, would tantamount to putting premium on their unlawful act of engaging in unfair labour practice. The argument of the Corporation, if accepted, would tantamount to putting premium on their unlawful act of engaging in unfair labour practice. It was strenuously urged by the learned Senior Counsel for the Corporation that industrial court having found that the Corporation indulged in unfair labour practice in employing the complainants as casuals on piece rate basis, the only direction that could have been given to the Corporation was to cease and desist from indulging into such unfair labour practice and no direction of according permanency to these employees could have been given. We are afraid, the argument ignores and overlooks the specific power given to the Industrial/Labour Court under Section 30(1)(b) to take affirmative action against the erring employer which as noticed above is of wide amplitude and comprehends within its fold a direction to the employer to accord permanency to the employees affected by such unfair labour practice. 35. Seen thus, the direction of giving status, wages and all other benefits of permanency applicable to the post of cleaners to the complainants, in the facts and circumstances, is justified and warrants no interference. Question (one) is answered accordingly. re. : question (two) 36. A recognised union is a union which has been issued a certificate of recognition under Chapter III of MRTU & PULP Act. In terms of Section 2, no employee in an undertaking to which the provisions of Industrial Disputes Act apply, shall be allowed to appear or act or be represented in the proceedings relating to unfair labour practices specified in items 2 and 6 of Schedule IV except through the recognized union. Schedule IV deals with general unfair labour practices on the part of the employers. Item 6 covers unfair labour practice on the part of the employer to employ badlis, casual or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees. Section 28 is a procedural provision with regard to complaints relating to unfair labour practices.” 10. Division Bench of this Court in the case of Chief Officer, Gariyadhar Nagar Palika versus Arvindbhai Dhulabhai Vanzara (Supra) has held as under:- “8 In Special Civil Application No. 18642 of 2017, the claimant was one Maheshbhai Babubhai who was working as a Driver with the Nagarpalika. Division Bench of this Court in the case of Chief Officer, Gariyadhar Nagar Palika versus Arvindbhai Dhulabhai Vanzara (Supra) has held as under:- “8 In Special Civil Application No. 18642 of 2017, the claimant was one Maheshbhai Babubhai who was working as a Driver with the Nagarpalika. He had filed a statement of claim at Exh.5 stating that he was working with the Nagarpalika with effect from 01.04.1996 as a driver. The Industrial Tribunal based on the evidence as discussed in the case of the Valve Man came to a conclusion that there was a sanctioned setup. There were three posts of drivers, out of which only two were filled in and therefore one post of driver was vacant. The Industrial Tribunal directed regularization with effect from 01.04.1996. However, the period post 01.04.1996 to 05.07.2010 was teated as notional. 9 In Special Civil Application No. 17964 of 2018, the claimant was one Ashokbhai Parshottambhai who was working as a Tanker Driver with effect from 01.04.2000. Even in this case, the Industrial Tribunal as in the case of previous two others based on the appreciation of evidence and the sanctioned set up found that there was a post of Tanker Driver vacant as on date, and therefore, by a similar award directed that the respondent-claimant herein be regularized. 14 Having perused the relevant paragraphs of the award of the Industrial Tribunal, we are aware that the Tribunal has considered in extenso, the position of law reiterated time and again by the Supreme Court and this Court. Perusal of paragraphs 23 to 25 of the Industrial Tribunal in the first appeal before us and which has been considered in the subsequent awards of the Industrial Tribunal, the Tribunal has considered the judgments of the Supreme Court and this Court wherein it has been held that if persons are continued to be engaged without extending the benefits of permanency, it would amount to “Unfair Labour Practice”. The Industrial Tribunal has also considered the judgments which hold that it is not open for an employer to contend that the employee was recruited through illegal means once having taken work for several years.” 11. The aforesaid decision was confirmed by the Apex Court in the petition filed by the employer came to be dismissed. The Industrial Tribunal has also considered the judgments which hold that it is not open for an employer to contend that the employee was recruited through illegal means once having taken work for several years.” 11. The aforesaid decision was confirmed by the Apex Court in the petition filed by the employer came to be dismissed. Similar was the observation made by the Apex Court in the case of Umrala Gram Panchayat versus The Secretary, Municipal Employees Union & Ors (Supra) wherein, it is held as under:- “On a perusal of the same, we have come to the conclusion that the High Court has rightly dismissed the case of the appellant as the Labour Court has dealt with the same in detail in its reasoning portion of the Award in support of its findings of fact while answering the points of dispute and the same cannot be said to be either erroneous or error in law. In support of the above said conclusions arrived at by us, we record our reasons hereunder: It is an admitted fact that the work which was being done by the concerned workmen was the same as that of the permanent workmen of the appellant- Panchayat. They have also been working for similar number of hours, however, the discrepancy in the payment of wages/salary between the permanent and the non-permanent workmen is alarming and the same has to be construed as being an unfair labour practice as defined under Section 2(ra) of the ID Act r/w Entry No.10 of the Fifth Schedule to the ID Act, which is prohibited under Section 25(T) of the ID Act. Further, there is no documentary evidence produced on record before the Labour Court which shows that the present workmen are working less or for lesser number of hours than the permanent employees of the appellant- Panchayat. Further, there is no documentary evidence produced on record before the Labour Court which shows that the present workmen are working less or for lesser number of hours than the permanent employees of the appellant- Panchayat. Thus, on the face of it, the work being done by the concerned workmen has been permanent in nature and the Labour Court as well as the High Court have come to the right conclusion on the points of dispute and have rightly rejected the contention of the appellant-Panchayat as the same amounts to unfair labour practice by the appellant-Panchayat which is prohibited under Section 25(T) of the ID Act and it also amounts to statutory offence on the part of the appellant under Section 25(U) of the ID Act for which it is liable to be prosecuted. Further, the Labour Court has rightly held that there is no restriction for the recruitment of the workmen in the Panchayat's set-up as there is evidence to show that by making a proposal, the District Panchayat has increased the work force in the establishment of the appellant-Panchayat and therefore, the contention urged by the learned senior counsel appearing for the appellant-Panchayat that there are only limited number of permanent vacancies for the workmen in the Panchayat of the appellant is not tenable in law. Further, we have also taken note of the fact that the financial position of the Panchayat is not so unsound as no activity of the Panchayat has been discontinued, as all the other workers of the appellant-Panchayat are being paid their wages regularly. Thus, there would be no difficulty for the appellant-Panchayat to bear the extra cost for the payment of the wages/salary and other monetary benefits to the concerned workmen if they are made permanent. Further, Section 25(T) of the ID Act clearly states that unfair labour practice should not be encouraged and the same should be discontinued. In the present case, the principle "equal work, equal pay" has been violated by the appellant-Panchayat as they have been treating the concerned workmen unfairly and therefore, the demand raised by the respondent-Union needs to be accepted. The High Court has thus, rightly not interfered with the Award of the Labour Court as the same is legal and supported with cogent and valid reasons. The High Court has thus, rightly not interfered with the Award of the Labour Court as the same is legal and supported with cogent and valid reasons. Therefore, the learned single Judge as well as the Division Bench of the High Court have exercised the power under Articles 226 and 227 of the Constitution of India and have rightly held that the Labour Court has jurisdiction to decide the industrial dispute that has been referred to it by the Dy. Commissioner of Labour, Ahmedabad. Reliance has been placed upon the decision of this Court in the case of Maharashtra State Road Transport Corporation and Anr. v. Casteribe Rajya P. Karmchari Sanghatana[1], wherein it has been held thus: "32.The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer." Further, reliance has been placed upon the decision of this Court in the case of Durgapur Casual Workers Union v. Food Corporation of India,[2] wherein it has been held thus: "19. Almost similar issue relating to unfair trade practice by employer and the effect of decision of Umadevi (3) in the grant of relief was considered by this Court in Ajaypal Singh v. Haryana Warehousing Corporation in Civil Appeal No. 6327 of 2014 decided on 9th July, 2014. In the said case, this Court observed and held as follows: 20. The provisions of Industrial Disputes Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi's case. The issue pertaining to unfair labour practice was neither the subject matter for decision nor was it decided in Umadevi's case. 21. We have noticed that Industrial Disputes Act is made for settlement of industrial disputes and for certain other purposes as mentioned therein. The issue pertaining to unfair labour practice was neither the subject matter for decision nor was it decided in Umadevi's case. 21. We have noticed that Industrial Disputes Act is made for settlement of industrial disputes and for certain other purposes as mentioned therein. It prohibits unfair labour practice on the part of the employer in engaging employees as casual or temporary employees for a long period without giving them the status and privileges of permanent employees.…"" Thus, in the light of the above referred cases of this Court, it is amply clear that the judgments and orders of the High Court and the Award passed by the Labour Court are reasonable and the same have been arrived at in a just and fair manner. The reliance placed by the learned senior counsel for the appellant upon the decision of this Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors.[3], does not apply to the fact situation of the present case and the same cannot be accepted by us in the light of the cogent reasons arrived at by the courts below. In view of the reasons stated supra and in the light of the facts and circumstances of the present case, we hold that the services of the concerned workmen are permanent in nature, since they have worked for more than 240 days in a calendar year from the date of their initial appointment, which is clear from the evidence on record. Therefore, not making their services permanent by the appellant-Panchayat is erroneous and also amounts to error in law. Hence, the same cannot be allowed to sustain in law. For the reasons stated supra, we dismiss the appeals and direct the appellants to treat the services of the concerned workmen as permanent employees, after five years of their initial appointment as daily wage workmen till they attain the age of superannuation for the purpose of granting terminal benefits to them. The appellant is further directed to pay the regular pay-scale as per the revised pay scale fixed to the post of permanent safai kamdars for a total period of 15 years to the concerned workmen and the legal representatives of the deceased workmen. The appellant is further directed to pay the regular pay-scale as per the revised pay scale fixed to the post of permanent safai kamdars for a total period of 15 years to the concerned workmen and the legal representatives of the deceased workmen. The same shall be implemented within six weeks from the date of receipt of copy of this judgment and compliance report of the same shall be submitted for the perusal of this Court. No Costs.” 12. Applying the above ratio in the present case, in the present case also it is undisputed fact that the workman has done the work which was of perennial nature and of work of permanent employee on the sanctioned vacant post which has remained unfilled for number of years. Taking the work of regular employees from the employees who have been appointed on temporary basis, by paying poor wages is nothing, but an exploitation which is prohibited under the ID Act and was termed as unfair labour practice. The employer avoids to fill up the permanent post even when the post is available and continues to employ workers on temporary or daily wage basis taking the same work from them which is done by the regular workers and pay meager wages, it is the case of unfair labour practice. Duty cast upon the employer to pay the regular scale which was paid to the regular employees who has done similar work, like the workman. 13. In the case of Hari Nandan Prasad and Another vs. Employer I/R to Management of Food Corporation of India and Another [ (2014) 7 SCC 190 ], the Supreme Court imposed a fine balancing the rights of the employer and employee in the matter of regularization of the employees and granting the temporary fees, benefits of permanency. Referring to some of its own decisions, Supreme Court holds that, it was depended on the fact of the case as to whether the order of regularization is necessitated to advance the justice to the daily waged workers or such benefits is to be denied, where given directions would infringe upon the employer’s right. 14. The submission of the learned advocate Mr.Munshaw that learned court below ought to have granted the benefits by Government resolutions dated 17.10.1988 instead of granting the benefits of permanency. 14. The submission of the learned advocate Mr.Munshaw that learned court below ought to have granted the benefits by Government resolutions dated 17.10.1988 instead of granting the benefits of permanency. If the same is examined then it transpires that for the 25 years employer did not forwarded any proposal to the State Government to grant benefit of GR dated 17.10.1988. If the employer is of the view that the workman who completed 25 years of service is required to be granted benefits of GR dated 17.10.1988, then it could have been granted on its own. Only after the stage that learned labour court has awarded reference in favour of the workman by granting the benefits of permanency GR dated 17.10.1988, plea came to be raised before this Court with regard that there would be injustice to other employees who are serving like the present workman and therefore, benefit of the GR dated 17.10.1988 are required to be granted. This Court is of the view that when the award is passed in favour of the workman thereafter, also if the employer wants to grant the benefits of GR dated 17.10.1988, no one has restrained them from doing so. However, only with a view to deprive the benefits of permanency, this plea has been taken by the employer. In that view of the matter, this Court is of the view that petition filed by the employer deserves to be dismissed being devoid of any merits. 15. So far as the petition filed by workman being SCA No.14661 of 2022, wherein, the challenge made to the extent of not granting the actual benefits of permanency, learned labour court ought to have granted actual monetary benefits rising from the award is from the date of filing of reference i.e. 19.08.2016, considering work which was taken from the petitioner and wages against the same which was paid. 16. In view of the same, the order is modified in the petition being SCA No.14661 of 2022 by granting monetary benefits of permanency from the date of filing of reference to the workman and the petition filed by the employer i.e. 19.08.2016 being SCA No.16901 of 2022 is hereby dismissed. 17. Resultantly, this petition is partly allowed. 18. Rule made absolute, to the above extent in SCA No.14661 of 2022. Rule is discharged in SCA No.16901 of 2022.