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1. Heard learned advocate Mr. R.R. Trivedi for petitioner and learned advocate Mrs. D.T. Shah appearing on behalf of respondent.

2. The Petitioner-Jetpur Municipality has challenged the award passed by the Industrial Tribunal, Rajkot in Reference I.T. No. 119 of 1995 dated 18.12.1998 wherein, Industrial Tribunal, Rajkot has granted the benefit of permanency to Narendra Punjabhai Dhadhal and Ashish Mansukhlal Dave, Octroi Clerks w.e.f. 1.11.1995 and, whatever the benefits are available, same are granted in favor of the workmen.

3. Initially, this Court has issued rule and notice to interim relief which was made returnable on 18.11.1999 by order dated 28.10.1999. Thereafter this Court has passed an order granting the ad interim relief in favor of the petitioner on 13.01.2000. Affidavit-in-reply has been filed by the respondent which is on record.

4. The brief facts of the present petition are as under.

4.1 Before the Tribunal, vide Exhibit-2, statement of claim was filed by the Union. The two workmen were appointed on 15.2.1991 and 9.4.1991. Both were treated as daily rated employees and therefore, the industrial dispute is raised by the Union to regularise their service and pay regular salary considering the length of service rendered by both of them. During the pendency of reference, an interim relief application was filed and Tribunal has granted interim relief in favour of them. Thereafter, vide Exhibit-8, reply was filed by the Municipality pointing out that both the workman were working as daily rated employees and accordingly the wages have been paid to both of them and, as and when they require them, their service will continue as they were not appointed on following due process of law. The financial position of the Municipality is also not good so they are not able to do even development work. In short, submission of petitioner-Municipality is that both the workman were allowed and engaged by the Municipality being back door entry and, therefore, they are not entitled the benefit of permanency. Vide Exhibits-9 and 30, two orders were produced in respect of these two workman by the Union. Thereafter vide Exhibit-11 one Narendrakumar Punjabhai Dhadhal was examined before the Tribunal. He deposed before the Tribunal that he was appointed on 9.4.1991 being an Octroi Clerk and he was remained continued in service and each year he completed 240 days continuous service. He is B.Com and is qualified to the post of Clerk. His case was that junior employees have been confirmed but these two workman have not been made permanent by the Municipality. According to the workmen, Municipality has given three months order and thereafter again while keeping gap of 3-4 days, three months order was given. Even during these 3-4 years gap, the work was taken by the Municipality. The oral interview of the workmen was taken by the Municipality. But, as no post was vacant in the set up the workmen were not made permanent. The similar deposition was made by one Ashish Mansukhlal Dave vide Exhibit-10 who was also cross-examined by the Municipality. Thereafter vide Exhibit-51 one Octroi Supervisor Madhavji Lilabhai Vaghasia was examined. He deposed before the Industrial Tribunal that both the workmen were required to work under him and because they obtained interim order of fixed time, have not been served to the respondent workmen. Both the workmen have been appointed after not following the due process of law and there is no vacancy available in the set up. The financial condition of the Municipality is also not good and no dispute about date of appointment of these two workmen namely 15.2.1991 and 9.4.1991. The said witness also admit that work of Octroi is day-by-day increasing and these workmen are working in a similar nature as the permanent employees are working in Octroi department. The work of both the workmen is found to be satisfactory and both are possessing the requisite qualification. Thereafter, Tribunal has considered that in each interval of three months the Municipality has given order of three months appointment while keeping gap of 3-4 days continuously from 1991. Therefore, Tribunal has considered the said break being an artificial break just to create a situation that workmen were not in continuous service. Therefore, Tribunal has examined the definition under Section 25(B) of the Industrial Disputes Act. After considering the definition of Section 25(B) of the Act and considering the working days of both the workmen Tribunal has come to the conclusion that in the year 1995 both the workmen have completed more than 240 days continuous service. Then they are entitled atleast protection under Section 25(F) of the Act. Thereafter, Tribunal has considered the deposition of Mr.Madhavji Lilabhai Vaghasia who was witness of the Municipality, wherein, he deposed that both the workmen were working under him and Octroi work is day by day increasing in the Municipality and nature of work is similar to the permanent employees. Not only that, but the work of these two workman was found to be satisfactory and both are possessing requisite qualification for the post of Octroi Clerk. The Tribunal has observed that the said deposition of the witness of the Municipality is indirectly favouring the workmen. Therefore, the Tribunal has considered that both the workman have sufficiently produced necessary documents to the satisfaction of the Tribunal and now only question is whether both the workmen are entitled benefit of permanency from which date. This aspect has been examined by the Tribunal. Ultimately, considering the financial condition of the Municipality, Tribunal has considered that, up to 28.10.1995 both the workmen were remained in service by periodical order of three months and from 1.11.1995 if these workmen are made permanent and accordingly benefit of Periodical appointment is granted this will meet the ends of justice between the parties. Accordingly final order has been passed by the Tribunal.

11. There is also clear admission of the Municipality that day-by-day the work of octroi is increasing in Municipality. The deposition of the witness must be either in the year 1996 or in the year 1997. At that time, the octroi work was continued in Municipality. Therefore, Tribunal has examined the existing position and considered the evidence of the witness of the Municipality that work of Octroi is day-by-day increasing in Municipality which require the employees to work in the Municipality. Municipality is a State authority within the meaning of Article 12 of the Constitution of India. If the workmen have been appointed for a period of three months and continued to work even for more than four years, then it amounts to unfair labour practice adopted by the State authority. In fact, if they have worked, then they should have to follow the procedure in accordance with law. Not to follow the procedure is not a fault on the part of the workmen but it is fault on the part of the Municipality. For that workmen should not have to suffer. Therefore, once the workmen are remained in service for more than four years by periodical order of three months with the gap of 3-4 days, this is nothing but a State authority has acted in arbitrary manner just to see that workmen may not get legal right to become permanent with the Municipality. Such approach on the part of the Municipality has rightly been deprecated by the Tribunal. The Tribunal has therefore, granted the relief in favour of the workmen. Both the workmen were satisfactorily working with the Municipality. As per deposition of the witness of the Municipality, the nature of work performed by them is similar to the permanent employees. The financial condition of the Municipality has rightly been appreciated by the Tribunal and granted the benefit only w.e.f. 1.11.1995 and not from the date of appointment in the year 1991. Therefore, according to my opinion Tribunal has rightly appreciated oral as well as documentary evidence as read and produced before the Tribunal by the respective parties. A cogent reason has been given in support of its conclusion. The finding given by the Tribunal is not baseless or perverse and a right approach of the Tribunal in granting the benefit in favour of two workmen w.e.f. 1.11.1995. Therefore, according to my opinion, Tribunal has not committed any error while passing the said award in favour of the two workmen. This Court having limited jurisdiction under Article 227 of the Constitution of India. This Court cannot act as an appellate authority. This Court can only order if there is any prima facie error committed by the Tribunal. The real challenge is not the decision but decision making process and in process no error has been committed by the Tribunal. Therefore, according to my opinion, Tribunal has rightly decided the matter in accordance with the settled principle of law laid down by the Hon'ble Apex Court and for that no error has been committed by the Tribunal and therefore, there is no need to require any interference by this Court while exercising the power under Article 227 of the Constitution of India. Hence, there is no substance in the present petition. Accordingly, present petition is dismissed. Rule is discharged. Ad interim relief, if any, stands vacated.