Indian Airlines Limited vs Gujarat Mazdoor Panchayat

S.R. Brahmbhatt, J.—The petitioner has challenged the common judgment and order dated 26.8.2002 passed by the Central Industrial Tribunal, Ahmedabad (herein after referred to as Tribunal) in Reference (ITC) No. 65 of 1998 and Reference (ITC) No. 125 of 1999 partly allowing the Reference of 97 workmen and directing the petitioner to treat them as permanent from the date of award and from the date of their completing ten years and be given all the benefits and facilities which were enjoyed by permanent employees on the ground that the workmen had worked as casual-workmen for years without getting any benefit of permanency, contrary to the provisions of Industrial Disputes Act, 1947 (hereinafter referred to as ''the I. D. Act'' for short).

The facts in brief deserve to be set out as under.

The petitioner is a Public Limited Company incorporated in Delhi, having its registered office at Airlines House, 113, Gurudwara Rakabgunj Road, New Delhi. Indian Airlines was a body corporate constituted under the Air Corporation Act, 1953. By virtue of Air Corporation (Transfer of Undertakings) Repeal Act, 1994, the Corporation which had come into existence on 1.8.1953 was abolished and Indian Airlines Limited, a Public Limited Company incorporated in Delhi, having its registered office at Delhi, came into existence. Indian Airlines Limited, a Public Limited Company, has its four Regional Offices situated in the Eastern, Western, Northern and Southern regions, respectively. The Regional Headquarters of Western Region are situated in Mumbai at New Engineering Complex, Sahara, Mumbai. Recently the Indian Air Lines is merged into AIR India and new entity is formed known as National Aviation Company of India Limited.

The respondents are Gujarat Mazdoor Panchayat, a Trade Union registered under the Indian Trade Unions Act, 1956.

The respondent workmen, casual Loaders in the Indian Airlines had to move Special Civil Application No. 10287 of 1994 in this Court interalia seeking declaration that the action of the respondent authority in discontinuing them from service and appointing new persons on the post of daily rated loader being arbitrary, discriminatory and hence unconstitutional and further seeking direction that the petitioners be continued and the action of respondent in not regularizing the services of the petitioners after long period of service being arbitrary, illegal and discriminatory the petitioners be regularized. This petition was filed on 11.8.1994 by Casual employees mentioned in the petition. As fact go to show the said petition was disposed of by this Court (Coram: M.R. Calla, J.) (as he then was) by order dated 29.6.1998. The said order reads as under:

Mr. Swami on behalf of the Respondent Indian Airlines has stated that the services of the petitioners in this Special Civil Application shall be utilized as they were being utilized prior to July, 1994 on casual basis from 1.2.1996 and they will be considered at par with other casual workers on the same terms. In view of the above statement made by the learned Counsel for the respondent, Mr. H.M. Mehta seeks to withdraw this petition at this stage. The petition is therefore dismissed as withdrawn. Rule is hereby discharged. No order as to costs.

The Respondent workmen did not receive any benefits of permanency or parity in wages with other regularly appointed employees. A demand was raised vide letter dated 29th June, 1998 by Union on behalf of Casual Employees. The conciliation proceedings started and as it did not yield any result, failure report was submitted to the competent authority i.e. Central Government which made order dated July 1998 through its Officer, referring the matter as industrial dispute to the concerned Competent Court being Industrial Tribunal, Ahmedabad in respect of 75 casual labourer, where it was marked as Reference (ITC) No. 65 of 1998. The other similarly situated co-worker raised similar dispute and the Central Government vide its order dated 17.05.1999 referred that also to the Tribunal wherein it was marked as Reference (ITC) No. 125 of 1999. In both the references there are total 97 casual loaders. The Claim and Written statements by the respective parties came to be filed. The Workmen contended that the respondent and petitioners herein above did not make them permanent treating them as casuals for avoiding higher payment of wages. Keeping them casual for years together was unfair labour practice and hence they were entitled to be treated as permanent. It was the case of the employer respondent before the Tribunal that the workmen did not have any right to be treated as permanent. The respondent in the reference contended that on account of peculiar facts and circumstances of the aviation industry, engagement of workmen as such was justified. It was also contended that during the pendency of the conciliation, a settlement was arrived at on 21.1.1999, which was a kind of package and in terms thereof, benefits were given to the workmen and therefore, the Reference was not tenable. The Labour Court after perusing the records and proceedings and appreciating the evidence on record, partly allowed the references, which were jointly heard and decided as stated here in above vide its common award dated 26.8.2002. The Petitioner has challenged the said Award in this petition under Article 227 of the Constitution of India.

Learned Counsel for the petitioners has contended that the Tribunal ought not to have issued any direction with regard to respondents'' regularization in service. He submitted that the Tribunal ought to have appreciated the fact that as per the scheme submitted by the petitioner Corporation before the Tribunal which was in fact approved by the Hon''ble Supreme Court in case between Indian Airlines Ltd. Vs. Samaresh Bhowmick and Others, the casual workmen were given only priority on the posts if they were found eligible as per the criteria and as per the recruitment and promotion rules. The Tribunal ought to have implemented such or similar scheme in respect of these respondent casual workmen also. They cannot be given benefit of permanency dehors the Recruitment Rules and Procedure. The Tribunal could not have held that the facts of that case were different than the instant.

Learned Counsel for the petitioners has contended that the petitioner has full-fledged Industrial Engineering Division to assess the manpower requirement based upon established work norms that take into consideration the workload at various stations and plans accordingly. The recruitment and promotions were governed by the Rules which were statutory in nature. And recruitment and promotions are made strictly in accordance therewith. Therefore the Tribunal could not have issued direction for regularizing the respondent workmen without appreciating the provisions of these Rules.

Learned Counsel for the petitioners has contended that the deployment of casual daily rated workmen was necessitated on account of peculiar facts and circumstances prevalent in Airline Industries. The various factors like clash of flights, delays and disruption of fights absenteeism ground handling of cargo and cratered flights, need to be borne in mind while assessing the need for employing staff. The persons who use to make themselves available on given day use to be engaged as casual workmen on casual basis to meet the contingency arising from the aforesaid factors. The casual work was offered to available persons on rotation basis so as to give all of them fair chance of being engaged uniformly. These casual workmen were not required to fulfill the eligibility criterion otherwise prescribed for being appointed on such posts. They were also at liberty not to report for work on any day if so desired. Thus they formed a separate lot and could not have been equated with the regularly employed staff.

Learned Counsel for the petitioners has contended that the Recruitment and promotions in the Corporation were governed by the set of Rules and therefore the Tribunal could not have ordered regularization of the respondent workmen contrary to the those rules. Under Rule 9 of Chapter II of the Rules the procedure for recruitment is prescribed. The minimum qualification criterion is also prescribed and therefore the Tribunal could not have ordered regularization of the respondent workmen dehors the said rules.

Learned Counsel for the petitioners has contended that the Tribunal ought to have appreciated the fact that due to heavy market fluctuations the national carrier like the petitioner is bound to have buoyancy and agility so as to keep itself afloat. Learned Counsel for the petitioners has contended that pursuant to the direction give by the Hon''ble Prime Minister in 1992 for reducing the staff strength by 10% the Ministry of Civil Aviation consistently rewed the status. The Fifth pay commission also recommended 30% abolition of posts in next 10 years. And 3% annually. The petitioner is incurring loses from 1989 -90 .The Government of India Constituted Committee of Expert in February 1995 to make a comprehensive study of loses and to suggests strategies for turning around corporation into the competitive market. The Committee recommended 2 phases strategies for revitalization of Indian Airlines. Towards implementation of the Kelkar Committee recommendations, the Government of India laid down the following recommendations with the Airline of the petitioner.

(A) In the next 3-years, employees productivity in terms of ATKm achievement will be increased by 50%;

(B) Freeze on recruitment;

(C) Increase in staff costs per ATKm will not be allowed beyond inflation rate;

(D) Productivity targets in passenger employees ratio and revenue earnings per employee be improved;

(E) The employee to aircraft ratio will be reduced progressively by 5% in the next 5-years and by further 5% in the following 5-years.

In view of the above, the efforts have been initiated by the petitioner to restructure the existing manpower, curb absenteeism among employees, control and monitoring of overtime, casual employment, etc. for optimum utilization of existing manpower. The recommendations of the Kelkar Committee have been accepted by the Government of India and it was decided to implement the scheme. Thus the Tribunal ought to have taken these factors into consideration before ordering regularization of the respondent workmen.

Learned Counsel for the petitioners has contended that the petitioners produced the relevant documents like Recruitment Rules, Promotion Rules, Eligibility Criteria, Letter dated 29.06.1998 , Settlement dated 21.01.1999 memo of SCA No. 10287 of 1994 and the order dated 23.01.1996 passed by this Court in the said petition by an application exhibit No. 41. Despite having them on record the learned Tribunal has not taken them into consideration and hence the order and impugned award deserve to be quashed and set aside.

Learned Counsel for the petitioners has contended that only one witness named Dinesh Parmar was examined by the respondent workmen in support of their case. The said Shri Parmar during his cross examination admitted that casual workmen were working in shifts work about 15 to 16 days on a month and they were paid by vouchers. The said Shri Dinesh Parmar also admitted that there are about 22 permanent workmen working in Indian Airlines Limited, Ahmedabad and 5 operators come to Ahmedabad from Mumbai for 15-15 days who are permanent workers. He also admitted that the flights which could not land at other Airports are at times diverted to Ahmedabad; besides, there are VVIP flights at Ahmedabad and because of the delay to the flights and several such reasons, there is a clash of flights as a result of which the casual loaders are required. Shri Dinesh Parmar also admitted in his cross-examination that a settlement was arrived at in the course of Conciliation proceedings on 21.01.1999 in a dispute raised by the Union vide letter dated 29.06.1998. The said Shri Dinesh Parmar also could not depose as to the length of service put in by each of the said casual workmen on whose behalf the dispute was raised and further more no documentary evidence was produced with regard to the said causal workmen either through the said witness Shri Dinesh Parmar and/or any other witness. The petitioner states that the only witness examined was Shri Dinesh Parmar by the respondent - Union. In view of this it was not open to the Tribunal to order regularization of these workmen.

Learned Counsel for the petitioners has contended that the Charter of Demands raised by the Union vide letter dated 29.06.1998 had already been settled vide the Memorandum of Settlement dated 21.01.1999 u/s 12(3) read with Section 18(3) of the Industrial Disputes Act, 1947 and as the said settlement had not been terminated as per the provisions of Section 19 of the Industrial Disputes Act, 1947, the said settlement was still in force and the demand including the demand of wages to casual workmen at par with the permanent workmen and also the regularization of casual workmen had already been settled. The attention of the Industrial Tribunal was drawn to the recent decision of the Hon''ble Supreme Court in Civil Appeal No. 16832 of 1996 dated 01.12.1999 in the case of National Engineering Industrial Limited (Appellants) v. State of Rajasthan and Ors. (Respondents) 2000 L&IC260. The observation made by the Hon''ble Supreme Court is as follows:

A settlement of dispute between the parties themselves is to be preferred, where it could be arrived at, to industrial adjudication as the settlement is likely to lead to more lasting peace than an Award. The settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them.

The said settlement was a ''Package Deal Settlement'' referring to not only the disputes pending before the Hon''ble Tribunal, i.e. Reference (ITC) No. 65 of 1999 and Reference (ITC) No. 125 of 1999, but also to the other demands raised by the Charter of Demands i.e. letter dated 29.06.1998. It is, therefore, respectfully submitted that the dispute referred to the Hon''ble Tribunal in the aforesaid References no longer exists and the said dispute referred to the Hon''ble Tribunal come to an end by virtue of the said settlement dated 21.01.1999 arrived in the course of Conciliation proceedings. Hence the dispute did not exist any more.

Learned Counsel for the petitioners has contended that the Industrial Tribunal should have accepted the seniority list prepared by the petitioner on the basis of the record available for the past 5-years prior to the year 1998. In fact, it was prepared on the basis of the principal enunciated by the Division Bench of the Bombay High Court at Aurangabad (V.K. Barde & A.H. Bagga, JJ) in the case of Marathawada Krishi Vidyapeeth Magasvargiya Sevak Kalyankari Sangh (petitioners) v. State of Maharashtra and Ors. (respondents) reported in 2000 L&IC 3601. The aforesaid judgment also goes to show that preparing the seniority list for the workers or employees who are in permanent or temporary service or on probation is one thing as there the principle of first day of entry in service can very well be made applicable without any difficulty. However, in case of daily rated workers, the seniority list cannot easily be prepared on the basis of first day of entry in service.

Learned Counsel for the petitioners has contended that the impugned order passed by the Industrial Tribunal is vague and ambiguous. Further the direction to regularize the casual labourers as permanent employees who have completed 10-years of the seniority cannot be implemented because it is difficult to choose those casual labourers who have completed 10 years of seniority. For example, a particular casual employee may have worked in a particular year and thereafter he had stopped coming for work for the next two years and thereafter again in the forth year he might have resumed works. Therefore, there were certain casual workmen who have not worked continuously and have resumed intermittently. Under these circumstances, it would be difficult to find out as to how the completion of 10 years of seniority has to be calculated. Since the judgment and order of the Industrial Tribunal is not clear and is vague, it requires to be quashed and set aside.

Learned Counsel for the petitioners has contended that the Recruitment & Promotion Rules for the recruitment of Grades I and II (Commercial Helpers, Engineers Helpers, Safaiwalas, etc.) as framed by Indian Airlines Limited in exercise of powers conferred by Rule 4 read with Rules 8 to 15 of Indian Airlines Service Rules were also filed before the Industrial Tribunal. Shri Dinesh Parmar, the only witness examined on behalf of the casual workmen in his cross-examination deposed as follows:

It is true that for appointment of permanent workers there are recruitment Rules in the First party establishment. I do not know about the required qualifications for Grade I and II and Helper.

It was also respectfully submitted before the Hon''ble Industrial Tribunal that there have been number of decision of the Hon''ble Supreme Court of India which would go to show that the doctrine of ''equal pay for equal work'' would not come into play or operation when the recruitment was not in accordance with the rules. It was also respectfully submitted to the Hon''ble Tribunal that the Hon''ble Supreme Court of India had gone to the extent of saying that the persons who were not appointed in accordance with the recruitment Rules and/or administrative instructions are not entitled to regularization. The judgment of the Hon''ble Supreme Court in the case of State of Haryana v. Surinder Kumar and Ors. Reported in 1998 (II) LLJ 516 was cited. The observation made by Hon''ble Supreme Court, in short, is as follows:

That since the Respondents were appointed on contract basis on daily wages, they cannot have any right to a post, as such they are not duly selected and appointed.

Also, the judgment of the Supreme Court of India in the case of Pawan Kumar Vs. State of Haryana and another, was cited which, inter alia, reads as follows:

That since no regular posts are available for appointment, making payment on par with regular employees does not arise, by implication, the minimum wages, if any, prescribed under the statue or the prevailing wages in the locality, the employer should necessarily pay but so long as there is no regular post available for appointment, the question of payment on par with the regular employees does not arise.

Therefore, in view of the aforesaid decision, the directions given by the Industrial Tribunal to treat the casual workers as permanent would amount to recruit them dehors the eligibility criteria and Recruitment and Promotion Rules of the petitioner. It would amount to a back-door entry on the post to the casual workers which otherwise can be filled only after following due procedure laid down under Recruitment and Promotion Rules and fulfillment of eligibility criteria as well as complying with the direction of the Government of India regarding reservation for SC, ST, Ex-servicemen and OBC, etc.

Learned Counsel for the petitioners has contended that a similar dispute for regularization was raised by the canteen workers at Madras. In the said dispute, a scheme was framed according to which the casual workers would be given priority on the said post if they were found eligible according to the eligibility criteria and as per Recruitment and Promotion Rules. Also in a case between Indian Airlines Limited v. Samaresh Bhowmick, the Division Bench of the Calcutta High Court passed judgment and order dated 12.08.1998 in Civil Appeal No. 3165 of 1999 against which the Indian Airlines had filed SLP before the Hon''ble Supreme Court. The Hon''ble Supreme Court was pleased to sanction the scheme of the casual labourers and the said decision is reported in Indian Airlines Ltd. Vs. Samaresh Bhowmick and Others, In fact, the very same scheme was also produced before the Hon''ble Tribunal and it was submitted that the petitioner is ready and willing to follow the said scheme in respect of the present casual workers and accordingly appropriate order may be passed. However, without going into the said aspect, the Industrial Tribunal did not accept the scheme on the ground that the facts of the cases before the Madras High Court and Calcutta High Court are not applicable to the facts of the present case.

Learned Counsel for the petitioners has contended that case between Phanibhusan Dutta v. Indian Airlines and Ors. the Division Bench of the Calcutta High Court in O.A. No. 1347 of 1997 vide order dated 04.12.1997 has held that once the casual labourers complete 240 days, they cannot claim regularization on that basis. It was further held that their case should be considered along with other eligible candidates. The SLP (Civil) No. 14877 of 1998 filed against the said judgment of the Calcutta High Court was dismissed upholding the contentions raised by the management. The extract of the said judgment reads as under:

There cannot be any doubt whatsoever that regularization is not a mode of recruitment. A person cannot claim regularization also on the ground that he has worked for 240 days in a year. If the management terminates the services of an employee despite his working for 240 days a year, the same would only be violative of Section 25F of the Industrial Disputes Act in as much as in terms of the same, an employee is merely entitled to get compensation, but on the basis thereof, he cannot claim regularization. Reference in this connection may be made to the case of Madhyamik Sikshan Parishad (U.P.) v. Anil Kumar Mishra and Ors. AIR 1994 SC 1630. Although there is no dearth of decisions on the question of a right of regularization we may only refer to the recent decisions reported in 1997 LIC 2384 : 1997 LIC 2557 : Santosh Kumar Verma and others Vs. State of Bihar and others, : N. Mohanan Vs. State of Kerala and Others, : State of U.P. and Others Vs. Ajay Kumar,

In that view of the matter, the petitioner cannot be said to have any legal right whatsoever for mandamus.

Therefore, merely because some of the casual workers are working since so many years, the tenure of such days cannot be the basis for regularizing such casual labourers.

The Counsel for the petitioners submitted that in fact after abolition of Air Corporation Act and initiation of Indian Airlines as Limited company in public sector which is now merged in Air India being National Carrier the Company''s basic structure and formation would remain that of a public undertaking and in view thereof, it is bound by the constitutional principles and is required to act fairly and in accordance with provisions of constitution of India.

The Counsel for the petitioners relying upon the decision of the Apex Court in case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, submitted that observations made in paras, 19 and 11, 59 would go to show that the regularization of the respondent in the instant case was uncalled for and ought not to have been ordered by the Tribunal. The Counsel for the petitioner relying upon the decision of the apex court in case of U.P. Power Corporation Ltd. and Another Vs. Bijli Mazdoor Sangh and Others, and submitted that though industrial adjudicator''s powers to direct regularization was not directly in issue in Umadevi (3) supra if the case is that of concept of regularization the same cannot be viewed differently only because it is before an industrial adjudicator. The concept of regularization is clearly linked with Article 14 if the fact situation is covered by some observation of Umadevi (3) the industrial adjudicator may modify relief but that does not dilute the observations made by Supreme Court in Umadevi (3) there could not be a case for regularization without there being an employee employer relationship. The respondent in that case being engaged on daily wages and not possessing the requisite qualification were held not entitled to regularization from any angle. The Counsel for the petitioner submitted that in the instant case also the respondent being engaged merely as casual workmen and they lack in requisite education qualification the Tribunal could not have ordered their regularization.

The Counsel for the petitioners relying upon decision of Apex Court in case of A. Umarani Vs. Registrar, Cooperative Societies and Others, contended that when the appointments were made in contravention of mandatory provisions of the Act and statutory Rules framed thereunder and in ignorance of essential qualifications the same would be illegal and cannot be regularized by the State on invoking its powers under Article 162 of the Constitution. Regularization is not and cannot be mode of recruitment in State. Nor can it grant permanence to adhoc employees. The learned Counsel for the petitioner further relied upon the decision of the apex court in case of Hindustan Aeronautics Ltd. Vs. Dan Bahadur Singh and Others, especially observations in paragraphs12, 16, 17, and 18 and submitted that the position of Government Servant is entirely different from that of a workman who is working in an industrial establishment like petitioner. A Government Servant enjoys a status and security of tenure on account of certain constitutional provisions which may not be available to even regularly appointed workman of Government Undertaking.

The Counsel for the petitioners relying upon decision of Apex Court in case of Indian Drugs and Pharmaceuticals Ltd. Vs. Workman, Indian Drugs and Pharmaceuticals Ltd., submitted that the impugned award deserves to be quashed and set aside.

The Counsel for the petitioners relying upon decision of Apex Court in case of National Fertilizers Ltd. and Others Vs. Somvir Singh, submitted that in Government Company it it most essential to comply with recruitment Rules for making appointments. When recruitment Rules are framed the employer is bound to comply with the same. Any appointment made in violation thereof would be nullity. Regularization of appointment made without following Rules is impermissible. Long continuance of illegally appointed employees would not entitled him for regularization. The Counsel for the petitioners relying upon decision of apex court in case of State of Karnataka and Others Vs. KGSD Canteen Employees Welfare Association and Others, and State of Haryana and Others Vs. Charanjit Singh and Others, etc. etc., submitted that the Award impugned in this petition deserves to be quashed and set aside.

The Counsel for the respondent workmen submitted that Ratio laid down in case of Umadevi (3) supra is not automatically applicable to all the cases involving regularization. In fact the distinction between Services governed by Service Regulations in Stare and those governed by principles of Industrial Act need to be borne in mind while applying ratio of that judgment. What could be true and applicable in cases of services in Government Agencies and Local Authorities might not be straight way applicable in services which are essentially governed by Industrial Relations and principles of I.D. Act.

The Counsel for the respondent workmen submitted that the petitioner is no more enjoying status of State in the sense as to exclude it from the purview of the I.D. Act. Relying upon decision of the Apex Court in case of Air India Vs. Union of India and others, it was submitted that the Apex Court did say that the Service Regulations originally framed under the provisions of Section 45 of the Air Corporation Act 1953 would not survive after the repeal of that act and hence the applicability of the Industrial Employment (Standing orders) Act could not be said to be barred. Thus it would now be governed by Standing Orders and not by the Service Regulations. The matter is referred to larger bench but the ratio would still govern the filed as it is yet not over ruled.

The Counsel for the respondent workmen submitted that the workmen in the Public Undertaking cannot be said to be governed either by Article 16, nor are they governed by any Rules framed under and in exercise of powers conferred under Article 309 nor are they enjoying protection under Articles 311 hence the ratio laid down in case of Umadevi supra cannot have any applicability to the facts and circumstances of the present case.

The Counsel for the respondent workmen submitted that Section 2(ra) of the I.D. Act defines ''Unfair Labour Practice'' means any of the practice specified in the Fifth Schedule. Section 25T of the ID Act prohibits commission of unfair labour practice. Section 25U prescribes punishment for persons committing unfair labour practice. The Fifth Schedule enumerates various unfair labour practice. Item 10 prescribes employing workmen as ''badlis'' casuals, or temporary and to continue them as such for years with the object of depriving them of the status and privileges of permanent workmen as unfair labour practice. Section 12A of the Industrial Employment (Standing Orders) Act 1946 provides that in absence of Certified Standing Orders the Model Standing Orders would be applicable. In view of these facts and circumstances the workmen who were treated as casual workmen for many years have right to be made permanent as other wise keeping them casual after long service would amount to adopting unfair labour practice and hence the Award impugned deserves to be confirmed.

The Counsel for the respondent workmen submitted that the Apex Court has in case of U.P. SEB v. Pooran Chandra Pandey reported in (2007) 11 SCC 92 held that even little difference in facts or additional fact may make lots of differences in presidential value of a decision. In that case while keeping mind ratio of the case of Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, the Apex Court despite the ruling of Umadevi (supra) considered and held in favour of Regularization in public employment. The case on hand does not deal with the public employment as such nor would it be governed by any Recruitment Rules and hence the impugned award ordering regularization cannot be said to be so perverse as to call for any interference of this Court under article 227 of the Constitution of India.

The Counsel for the respondent workmen submitted that the Apex Court has held in case of Chief Conservator of Forests v. Jagannath Maruti Kondhare reported in (1996) 2 SCC 239 keeping employee for long as casual in itself amounts to unfair labour practice and such employees were required to be regularized.

The Counsel for the respondent workmen submitted that the impugned award contains elaborate reasoning and findings going to show that the Tribunal was absolutely convinced for ordering regularization of the respondent workmen. The findings with regard to Seniority List submitted by the employees, findings with regard to long service for many years and findings with regard to permanent nature of work go to show that the same were based upon material on record and hence this Court under Article 227 of the Constitution may not interfere with the same.

The Counsel for the respondent workmen submitted that the testimony of one casual employee was sufficient for establishing the case of the workmen. The total numbers of permanent employees in the cadre of Commercial helpers compare to as many as 97 casuals like respondent workmen in these days of increased flight operating Ahmedabad Air Port would go to show that the petitioners were merely interested in getting cheap labour or contract labour for the regular work which otherwise required them to keep regular employees at a regular wages. The unfair labour practice has thus rightly been deprecated by the Tribunal and it has therefore rightly ordered regularization of the respondent workmen.

This Court has heard the Counsels of the respective parties and perused the impugned Award.

Before adverting to the rival contentions of parties let us summarize and enlist the indisputable facts so far emerging from the record.

The petitioner company has its origin into the Air Corporation Act 1953. It was at that time created as Statutory Corporation.

The two entity namely AIR India and Indian AIR Lines came into existence under the AIR Corporation Act 1953.

In the year 1994 on coming into force the Air Corporation (Transfer of Undertakings and repeal) Act 1994 the AIR India and Indian Air Lines became Public Limited Companies.

Recently on merger of Indian Air Lines with AIR India a new entity/company is created namely National Aviation Company of India Limited.

In the year 1994 some casual workmen filed Writ Petition being SCA No. 10287 of 1994 in this Court against their discontinuation as well as for regularization.

This High Court vide order dated 29.06.1998 permitted those petitioner workmen to withdraw the same as they were taken back as casual workmen to be treated as such with other casual workmen.

The Union of Workmen raised Demand vide their letter dated 29.06.1998 for regularization and permanency benefits before the concerned authority.

In July 1998 Order of Reference came to be made in respect of total 75 casual workmen which was marked as Reference (I.T.) No. 65 of 1998.

On 21.01.1999 settlement was arrived at between the casual Workmen and the petitioner of course with Clause that it was without prejudice to the pending reference.

Another set of 22 casual Workmen raised similar demand for regularization and other similar benefits.

The order of reference was made on 17.05.1999 and it was marked as Reference (IT) No. 125 of 1999 in respect of 22 casual workmen.

On 9.09.1998 Statement of claim came to be filed in the Reference No. 65 of 1998 by workmen inter alia contending that employer had adopted unfair labour practice in keeping them as casual for number of years thereby depriving them of the wages and other benefits available to regularly employed helpers. Identical Statement of claim came to be filed in reference No. 125 of 1999 on 6.09.1999 by the 22 workmen.

14.08.2000 and 25.11.2000 Written Statements came to be filed by the employer in these two reference inter alia contending that the workmen did not have any rights to be regularized as they were merely daily rated casual labourers given work by the employers on the day they make themselves available and as they were not getting regular engagement it was difficult to keep any seniority list of theirs.

Exhibit 38 was the Seniority List produced by the employer on the basis of date available for the preceding five years indicating the numbers of days the concerned workmen worked during each year in the preceding five years.

Exhibit 39 is the Seniority list produced by the workmen claiming that the same was prepared on the basis of the initial date of entry in to the service.

Workmen produced only one witness who deposed on behalf of all the workmen in both the references.

The workmen''s witness admitted that company was making payment of daily wages by vouchers.

The workmen''s witness admitted that in one month casual workmen was getting engaged for about 15 to 18 days.

The workmen''s witness admitted that the workmen did not receive any wages for those days when they did not get engaged.

The workmen''s witness admitted that no seniority was being maintained of such casual workmen.

The workmen''s witness admitted that he was 9th standard pass.

The workmen''s witness admitted that there were many permanent workmen and they were working along with them.

The workmen''s witness admitted that it is true that for appointing permanent workmen, there were Recruitment Rules and he did not know the eligibility criteria.

The workmen''s witness admitted that those who were appointed permanently were appointed only after taking their interview.

The workmen''s witness admitted and gave names of those casual workmen who were subsequently made permanent after interviewing them and they were transferred from Ahmedabad.

The workmen''s witness admitted that such casual workmen were given appointments after medical check up and interview.

The workmen''s witness admitted that he had also applied for being permanent and was called for interview but was not made permanent.

The workmen''s witness admitted that they had filed Spl.CA 10287 of 1994.

The petitioners did produce the Recruitment and Promotions Rules promulgated in exercise of the power conferred by Rule 4 read with Rules 8 to 15 of Indian Air Lines (Flying Crew) Services Rules , Indian Airlines (Aircraft Engineering Department) Service Rules and Indian Airlines (Employees other than Flying Crew and those in the Aircraft Engineering Department ) Service Rules.

The workmen''s witness admitted that these Recruitment and promotions Rules were in existence and recruitment and promotions were made in accordance therewith.

The workmen could not produce any evidence oral or documentary showing that workmen were engaged on issuing any kind of appointment letter nor were they visited with any penalty for not masking themselves available for work on given day.

The testimony of their sole witness go to show that they were in fact taking up job at some other places when the work was not available at Airport due to any reason.

The workmen''s sole witness also admitted that they were not getting work for the entire month and were in fact getting work only for 15 to 18 days a month.

On 26.08.2002 the Tribunal partly allowed the references.

The Union of the casual workmen filed MCA No. 2 of 2002 for removal of clerical mistakes in the award dated 26.08.2002.

The Tribunal rectified and clarified the same vide order dated 5.03.2003.

The respondent workmen have taken contention in the reply to this petition that as this subsequent order made on 5.03.2003 on MCA No. 2 of 2002 in Reference No. 65/98 and 125/99 has remained unchallenged by the petitioners their challenge to the main award dated 26.08.2002 would not be tenable.

This Court on has vide order dated 31.01.2003 issued Rule and granted Ad Interim Relief against the implementation of the impugned award.

Against this factual backdrop let us examine the impugned Award in light of the provisions of law.

The appropriate Government referred the dispute in both the matters in following terms: The Order of Reference dated July 1998 contained schedule which read as under:

The Schedule

Whether the demand of the Union for treating 75 loaders employed on the rolls (as per list attached) by the Indian Airlines Ahmedabad at par with regular employees (Loaders) in respect of wages and other benefits and their regularization as per their turn according to the casual rolls is legal and justified? If so to what relief are the workmen entitled to?'' This was marked as Reference (ITC) No. 65 of 1998

The Order of Reference dated 17.05.1999 which came to be marked as Reference (ITC) No. 125 of 1999 the following were the terms of Reference.

Whether the demand of the Union for treating 22 loaders employed on the rolls (as per list attached) by the Indian Airline Ahmedabad at par with regular employees (Loaders) in respect of wages and other benefits and their regularization as per their turn according to the casual rolls is legal and justified ? If so to what relief are the workmen entitled to?

Thus the Tribunal was to record its findings in respect of the Demands of the Workmen as to whether their Demands for wages and other benefits at par with other regularly employed loaders and for regularization on their turn were justified and legal and only after recording its findings on this next question was to be considered was that if it were justified and legal than to what relief the Workmen were entitled to in law.

The Tribunal has in paragraph 13 of the impugned Award framed two issues for determination namely;

Since when the workmen of these references are entitled to be made permanent?

What final Order is to be passed.

The Tribunal has answered them as under:

The Workmen are entitled to be made permanent from the date of the Order of Tribunal

As per the Final Order.

The Tribunal has thereafter started giving it reasoning for the same.

The very framing of issues by Tribunal shows that it missed the very crux of the entire controversy between the parties. The Tribunal was as it is stated herein above required to address itself to examining very legality of the Workmen''s demand for parity with the regularly employed ''Loaders'' in respect of wages, and other benefits and for being regularized as per their turn in Indian Air lines. This aspect deserves to be borne in mind while examining the contentions of parties in present petition.

It may be noted that the present petitioner has in its Written Statement filed on 25.11.1999 before Tribunal in Reference (ITC) No. 125 of 1999 taken contention in paragraph No. 5 that as with one Shri Jeetendra B Waghela 13 other similarly situated casual workmen had filed Spl. C.A. No. 10283 of 1994 in this Court interalia praying for regularization of their services in Indian Airlines which was withdrawn by the workmen on statement of the Counsel of the Indian Airlines that the services of the petitioners would be utilized as they were being utilized prior to July 1994 on casual basis from 1.02.1996 and they would be considered at par with other casual workmen on the same terms, the claim of the workmen in these reference was not maintainable as the issue sought to be agitated in the reference had already been decided by the High Court the claim of the workmen be rejected. The order permitting withdrawal, dated 23.01.1996 was also placed on record along with the memo of the petition. It may be noted that this contention does not find its place in the Written Submissions filed by the Indian Airlines on 14.08.2000 in Reference 9 ITC) No. 65 of 1998. It may also be noted that Workmen''s witness Shri Dinesh H Parmar in his cross examination admitted that "We had filed Special Application No. 10287 of 1994 in Hon''ble Gujarat High Court and it is Exhibited as pukka Exhibit No. 42...," The Tribunal has not dwell upon it in its Award impugned in the present petition. The fact remains to be noted that even from the present petitioner who was respondent in the reference proceedings no further elaboration was made on the point therefore it may now at this stage may not be of greater consequence.

The petitioners'' contention before the Tribunal in respect of non-maintainability of references on account of settlement dated 21.01.1999 between the parties also would be of no consequence as it contained specific Clause that the same was signed without prejudice to the rights and contention in the pending reference when the Reference being ITC No. 65 of 1998 was in fact pending and second reference being Ref (ITC) No. 125 of 1999 was in the offing as the same was referred to the Tribunal vie order dated 17.05.1999.

The Workmen issued Notice of Demand dated 29.06.1998 inter alia claiming benefit of regularization on account of their casual engagement for years and ultimately it culminated into subject reference. It would therefore be indeed essential to see the respective cases of the parties before the Tribunal in their Statement of Claims and Written Statements.

The workmen in their Statement of Claims filed in both the references mainly contended that on account of their being engaged as ''casuals'' for performing permanent nature of work, they be made permanent as they were not being engaged as ''Badlis'' and when the workload in the Employer Corporation indicated that there was need for engaging them they should not have been denied benefits of regular wages admissible to the regularly employed workmen and other benefits of regularization. The management by keeping them casual indulged into prohibitory Unfair Labour Practice. The management in their Written Statement has inter alia contended that the nature of work necessitates engagement of casual workmen as casuals only. The casual Workmen were engaged on a day keeping in mind the requirement of that day and they were engaged from the workmen who made themselves available for such engagement. The workmen had right not top report for duty in a given day with impunity. The casual workmen were never continuously being engaged and they were only engage as and when the exigency narrated therein arose. In the Indian Airlines the Recruitment and promotions Rules were in existence and all the recruitments and promotions were made in accordance therewith. The Workmen did not have any right to be regularized contrary to the Recruitment Rules. The workmen did not continuously worked for all the years as claimed by them. The workmen may have worked for some time and thereafter might not have worked at all in Indian Airlines for few months or years and again they might have got engaged as casuals in Indian Airlines and in view of this it was not even possible to maintain their seniority list as per their so called entry. It was also contended that India Airlines being public sector undertaking will have to be governed and guided by the principles of law and constitutional requirement in realms of recruitment as the recruitment in Indian Airlines would also be a public employment and all the Constitutional safeguards in this regard applicable to other public employment would also be applicable to the recruitment in Indian Airlines. The respondent Airlines further contended that it being public sector undertaking has to abide by the instructions and directions in respect of ban on recruitment has to follow scrupulously. The ban on recruitment issued by the parent department was also pressed into services by the respondent Airlines. The recommendation of the specially appointed Kelkar Committee for airlines was also pleaded. The Airline pleaded that in view of various decisions of the apex court against ordering regularization of workmen de horse the Recruitment Rules and procedure and in view of the all the facts and circumstances the workmen did not have any right to be regularized.

The Respondent workmen in their Statement of Claim or during the examination of their witness did not even remotely assert that recruitment and promotions in the Employer Corporation were not governed by Recruitment and Promotion Rules produced by the Corporation. Nor did the Workmen attempt to assert and establish that these Recruitment and promotions Rules did not have statutory force. Thus so far as evidence is concerned Employer did produced on record the aforesaid recruitment and promotions Rules and proved it existence and implementation in all recruitment to the posts in quest as the workmen''s witness also admitted to its existence and adherence in appointing permanent employees as could be seen from his testimony.

The Workman rested their case by merely advancing submissions without substantiating it with any evidence, that the Recruitment Rules were promulgated later on and therefore it did not have any impact upon the case of the workmen who were appointed prior to these rules.

The Tribunal has not appreciated the admission on the part of the witness that there exist the recruitment and promotions Rules and the permanent employees were being appointed in accordance therewith.

It would not be out of place here to mention that for the first time in this Court in the present proceedings only did the workmen''s Counsel attempt to assail the Recruitment and promotions Rules and its status being statutory or merely administrative that too without articulating the precise challenge in pleadings.

The fact remains to be noted that the Apex Court did hold in case of Air India Vs. Union of India and others, that in absence of express words in Section 8 of the AIR Corporation (Transfer of Undertakings and Repeal) Act 1994 to save the Air India Employees Service Regulations 1963 framed u/s 45 of the AIR India Corporation Act 1953 they cannot be said to have survived and were required to be held repealed along with repealing of its parent statute namely AIR Air India Corporation Act 1953 as the subordinate legislation would survive the parent act only if the repealing act provides for its specific saving. Thus AIR INDIA Employees Service Regulations 1963 being subordinate legislation stood repealed along with the repealing of its parent statute being Air Corporation Act 1953 and hence it cannot work as bar to applicability of Industrial Employment (Standing Orders) 1946 to the Air India public limited company. It is pertinent to note that such a plea was suggested for the first time in this Court under the proceedings of Article 227 before the Industrial Court not an iota of such pleadings has been laid. The plea may appear to be attractive in the first instance but without any further evidences on various aspect the same would be of no avail as it could be demonstrated herein after.

First of all it deserves to be noted that in the instant case the employer is not Air India as it stood at the time of repealing of Air Corporation Act 1953 in the year 1994. It is the case of the workmen through out that they were engaged by Indian Airlines. Hence it was incumbent upon the workmen firstly to assert and than to establish that along with repealing of Air Corporation Act 1953 the service regulations that were operative in Indian Airlines being subordinate legislation got repealed. Assuming for the sake of examining that on the strength of analogy of Air India and its Air India Employees Service Regulations which stood repealed the Service Regulations, if any in the Indian Airlines, also would have met the same fate than also it was for the workmen to assert the same and prove it by leading evidence before the Tribunal. Not only they did not make any whisper of it before Tribunal but even before this Court also they did not make any positive assertion in their Affidavit in Reply that the Recruitment and Promotion Rules produced and relied upon by the employers before the Tribunal were either the same Rules which were made in exercise of power conferred by any statutory provisions akin to Section 45 of the repealed Air Corporation Act 1953 where under the AIR India Employees Service Regulations were made and which were held to have been repealed along with repealing of the parent act or similar to them. Assuming without accepting that either the employees of Indian Airlines were also governed by the same Regulations namely AIR India Employees Service Regulations framed u/s 45 of the repealed AIR Corporation Act 1953 or in Indian Air Lines also similar Services Regulations were enacted pursuant to power conferred by the parent statute namely AIR Corporation of India 1953 but than also merely on its abolition or repealing the workmen would not be entitled to raise plea, in absence of any valid recruitment or service regulation in form of certified standing orders, that the Model Standing orders would govern the filed and as per the moder standing orders they would have right to be absorbed in services.

In absence of any such pleadings much less proof it would be certainly not open to the workmen to claim any special treatment under the ID Act or Industrial (Standing Orders) Act 1946. It was never the case of the workmen that in absence of any Certified Standing Orders Model Standing Orders would be applicable in this case nor has it been argued before the Tribunal that there exist any model standing order which would give right to the workmen to be treated as permanent in Indian Airlines. Nor have the workmen contended before the Tribunal that the Recruitment promotions Rules pressed in to services were not statutory so as to have any binding effect. Moreover the workmen have not, as stated herein above raised any such plea before the Industrial Tribunal. The facts and questions on facts like whether there was ever a demand for certified Standing Orders or whether the Industrial Employment (Standing Orders) Act, 1946, is applicable to the present petitioner and whether any right accrue in favour of any workmen creating corresponding liability to the petitioner Company. All these questions have not been examined as there was no plea at all before the Tribunal and therefore, this Court need not dwell upon this submission under Article 227 of the Constitution.

Assuming without accepting that there exists no binding recruitment Rules than also a question arises that in this given facts and circumstances of case on hand whether the Workmen have established that they were victims of Unfair Labour Practice adopted by the management with sole view to deprive them of their wages admissible to regularly employed persons. The answer would be emphatic ''NO''. The provisions of Industrial Disputes Act 1947 and especially those of Schedule V would certainly be binding on all the concerned irrespective of the owner of the company. It would be the duty caste upon every Court to see to it that they are complied with. The facts of case would govern fate of it. In the case on hand looking to the facts and circumstances of the case a question arises whether Workmen established that Indian Airlines in fact adopted unfair labour practice by employing them as casuals only with a view to depriving them of their legitimate right of being appointed regularly. The situation is to be examined against the hypothesis of non existence of Recruitment Rules as it is stated herein above at the inception of this paragraph. The admission of Shri Parmar a sole witness of the Workmen that they were getting 15 to 18 days engagement during month, the further admission of the said Shri Parmar that casual employees were paid on daily basis on voucher, the lack of evidence from the side of the Workmen that their engagement created in them at least some legitimate expectation to be regularized leave aside those decisions of the Court that mere existence of legitimate expectation alone would not be a sole ground for enforcing the rights, go to show that workmen did not have any legitimate expectations much less any enforceable rights under the law. Had there been a genuine case of unfair labour practice than the workmen in 1996 would not have withdrawn their writ petition and rather they would have tried to established their claim of being victims of unfair labour practice. The workmen were not given any promise or hope that they would ever be entitled to claim successfully regularization for which they might have continued to work as casuals though they did not get work for more than 18 days in a month. The workmen have not established that they were kept as casuals by the Employers only with a view to deprive them of their right to be regularized. The apex court has held time and again that merely workmen''s prolonged continuation on daily rate in itself would not be sufficient for holding that they have right to be absorbed in services. All the facts and circumstances are to be considered before arriving at such conclusion. The apex court has in case of Gangadhar Pillai Vs. Siemens Ltd., held that question as to whether an employee had been intermittently engaged as casual or temporary for numbers of years is essentially a question of facts. The issue as to whether unfair labour practice had been resorted to by the employer or not must be judged from the entirety of the circumstances brought on record by the parties. Only because an employee was engaged as casual or temporary employee for numbers of years the same by itself may not lead to the conclusion that such appointment had been made with a object of depriving him of status and privilege of permanent employee. The burden of proving unfair labour practice in such circumstances is undoubtedly on employee who claimed that it was unfair labour practice adopted by employer with a view to deprive him of his legitimate right to be regularly employed. In a given case attending facts and circumstances would go on its own strength to show that employer did continue the workmen as casual only for depriving him of his right to be regularized. But in all cases it is not so. In the instant case also the facts as emerged from record show that workmen could not establish that they engaged as casuals only with a view to depriving them of the status of permanency. Nor has the Tribunal recorded that the workmen were being victims of unfair labour practice by the employer.

It also deserves to be noted that the position of law in respect of Regularization has by now attained more clarity and apex court''s many decisions on the point have helped evolving certain universally acceptable principles of law especially in respect of Claim of Regularization in Public Employment in light of the Constitutional obligations upon the States and its Instrumentality and agencies functioning in any name or under any provisions of law.

The Industrial Tribunal ought to have taken into consideration and recorded its finding with regard to the aspect of recruitment Rules in the first instance. The cursory way of brushing it aside by merely terming it to be recruitment Rules framed after the appointment of the workmen without recording any details with regard to the dates, dates of appointment, etc., would amount to non-consideration of the very cogent plea raised by the petitioner and to that extent the decision of the Tribunal vice of perversity and hence it became unsustainable in law.

The Tribunal ought to have appreciated the fact that though the petitioner Company was no longer a statutory entity as it used to be in the past but in fact the Company was a Government Company and therefore, the concept of Public employment would squarely be attracted to it. This Court is unable to agree with the submission of the Learned Counsel for the Respondent Workmen that that the instant case would not be governed by the observations and ratio laid down in case of Umadevi (3) supra. The apex court has in fact time and again at the cost of repetition said that regularization cannot be ordered de horse the recruitment Rules and procedure.

The Industrial Tribunal has also not addressed itself appropriately with regard to the scheme which in fact had approval of the Apex Court in case of Bhowmik (Supra). The Tribunal''s approach to consideration of scheme is perfunctory and therefore, deserves to be viewed in appropriate prospective. The Scheme was in fact framed with a view to assuage of problems of daily rated employees in other stations of petitioner Company. The reasoning of the Industrial Court for not taking into consideration of the scheme also cannot be said to be act beyond the scope of judicial review and same deserves to be deprecated.

The Tribunal should not have ordered regularization of the respondent workmen in light of the fact that they did not full fill the basic qualification criteria and their regularization would be contrary to the Recruitment Rules. Reliance is placed on Uma Devi(3) (Supra) and UP Power Corporation (supra) would be just and proper and in light of the observations of the Apex Court, it was not open to the Tribunal to order straight way regularization of the workmen without recording finding on the applicability of the standard of qualifications and procedure for recruitment. This is all the more so in view of the testimony of Dinesh Parmar, a sole witness contain various admissions in respect of recruitment procedure and regularization of casual workers after interview, who fulfilled the qualification criteria.

The learned Counsel for the workmen''s placed reliance upon the decision in case of Purnanand Pandya reported in 2007(11) SCC 1192 based upon the principles of reasonableness and non-arbitrariness in a cases of recruitment, which is a judgment after the decision in case of Uma Devi, and in case of G.M. ONGC Silchar v. ONGC Contract Workmen reported in 2008(4) sc 401 would be of no avail to the workmen in view of the recent decision in case of Dayanand, which is a latest judgment of Supreme Court, wherein the Apex Court has categorically held that the Purnanand is not a good law and the decision rendered by the Apex Court in case of Uma Devi(3) would have to be taken into consideration by all the courts as and when matter with regard to regularization come up for decision. Moreover it deserves to be noted that the decision of the apex court in case of ONGC Sicher 200894) Supreme 401 was in respect of Contract Labour Act and it was a case decided on 16.05.2008 whereas the case of Dayanand (supra) was decided only on 4.11.2008. The facts of the ONGC case (supra) are different than the one on hand. In that case the findings of the Industrial Court were not though to be disturbed while in the instant case as it has been stated herein before there are no findings which could be said to be based upon material leading to one and only conclusion in favour of the workmen.

The Tribunal has also not appreciated the economic constraints pressed int service by the present petitioner for resisting the plea for regularization of the respondent workmen. In fact, the petitioner being Government Company is under an obligation to carry out the instructions and directives issued by the Government of India time and again for its smooth functioning and well being. The Government of India had issued ban on recruitment and recommendations of Kelkar Committee indicated that there was dire need for accepting stringent economic measure that was including the freezing of new recruitments at various stages if possible. The apex court has also held in case of National Fertilizers Ltd. and Others Vs. Somvir Singh, that regularization cannot be the mode of appointment at all. In fact appointments made in violation of the recruitment Rules cannot be termed as mere irregularity capable of being cured In fact it being illegality no regularization could have been ordered.

The effect of ban imposed also deserved some consideration. The apex Court has held in case of Union of India v. Narendra Nath Choudhury reported in (2003) 12 SCC 49 that Tribunal was not justified in issuing direction for reviewing its policy of banning the recruitment. One may make submissions that in the instant case it was the Company and not the Government itself, who could have pleaded freedom to form its policy, but such a submissions would not be of any avail in view of the fact that though it was Company before the industrial Court the fact remained to be noted that it was owned by the government of India and it was Government Company.

The Apex Court has held in case of Indian Drugs and Pharmaceuticals Ltd. Vs. Workman, Indian Drugs and Pharmaceuticals Ltd., observed that the term ''temporary employee'' is general category which has under it sub-categories e.g. casual employees, daily rated employees, ad hoc employees, and it is well settled that temporary employees have no rights to the post The Court cannot direct their continuation if they were not regularly employed. Creation of posts and vacancies is in realm of executives. The Supreme Court cannot arrogate itself the powers of executives.

This court at the cost of repetition also reiterates that the Tribunal has in a very cursory manner dealt with the plea of Recruitment and Promotion Rules. The Set of Rules pressed into service by the petitioner would give impression that they were not the Rules originally framed under the statutory provisions. Assuming the submission that they were same, then, also in absence of specific plea with regard to they being not applicable on account of their promulgation after appointment of workmen without mentioning the date of appointment and Rules would lack of proper appreciation of the evidence and facts by the Tribunal which has rendered the judgment venerable and unsustainable in eye of law.

In view of the aforesaid discussion and especially in view of the fact that the Tribunal has not appreciated the principles enunciated by the Apex Court in various decisions in respect of question of regularization in the undertaking owned by the Government and has not recorded its cogent findings with regard to non-applicability of the recruitment Rules couple with the fact the admission of the sole witness go to show that the recruitment Rules have been scrupulously followed. This Court is of the view that the Judgment and Award of the tribunal suffers from basic infirmity and it is unsustainable in eye of law.

Before parting this Court is of the view that quashing of the award would not come in way of the workmen to seek appropriate reliefs in terms of the Scheme which was originally approved by the Apex Court in case of Bhuamik (supra).

The petition therefore requires to be allowed and is accordingly allowed. The Award and Judgment dated 26.8.2002 passed by the Central Industrial Tribunal, Ahmedabad in Reference (ITC) No. 65 of 1998 and Reference (ITC) No. 125 of 1999 and subsequent order made on 5.03.2003 on MCA No. 2 of 2002 in Reference No. 65/98 and 125/99 are hereby quashed and set aside. Rule made absolute to the aforesaid extent. There shall be no order as to costs.

Order In Civil Application No. 10996 Of 2008.

In view of the order passed in Special Civil Application No. 290 of 2003, the Civil Application is disposed of accordingly.