JUDGMENT
Shiv Narayan Dhingra, J.
1. By this writ petition, the petitioner has challenged the award dated 7th November, 2001 passed by Industrial Tribunal III whereby the Industrial Tribunal has directed that the services of the respondent be regularized with effect from 1.4.1991.
2. Briefly, the fats are that the respondent/workman claimed that he was entitled for regularization from the date of his initial appointment, which was not agreed to by the petitioner and following dispute was referred for adjudication to the Industrial Tribunal:
Whether Shri Mahesh daily rated employee is entitled to be regularized on the post of Safai Karamchari from his initial date of appointment i.e. 16.8.1986 in proper pay scale and if so, what directions are necessary in this respect?
3. The Industrial Tribunal recorded evidence of the parties and during evidence, the respondent/workman could not give the name of anyone of the employees junior to him who had been regularized before him. The stand of the petitioner was that the regularization of all the employees was being done in a phased manner in terms of the scheme of the petitioner and the respondent was regularized with effect from 1.4.1994 in the pay scale of Rs. 750-940. The Tribunal, however observed that the witness of the management could not deny during his oral evidence if Mr. Bedi and Mr. Mahesh were regularized from 1.4.1991 or not. On the basis of the fact that the witness could not admit or deny the regularization of Mr. Bedi and Mr. Mahesh with effect from 1.4.1991, the Tribunal ordered for regularization of the respondent/workmen with effect from 1.4.1991.
4. I consider that the approach of the Tribunal, directing regularization of the respondent with effect from 1.4.1991, merely because in cross examination the witness of the petitioner could not orally state whether the other two workmen were either regularized from 1.4.1991 or not, was erroneous. The official witnesses have to depose on the basis of record. During cross examination, several questions are asked without referring to any record. It is incumbent upon the Tribunal that in order to have correct picture of facts, and to see whether or not the answer is supported by record, it should call for the record and see from record. The Tribunal should have seen the record to find out if regularization of junior persons was done on the date or not.
5. MCD had placed on record the scheme under which regularization of the casual/daily wagers/muster roll employees was being done in phased manner and the respondent was also regularized in a phased manner. There was no vested right in the respondent to be regularized from any particular date. He could be regularized as and when vacancy arose. In 1994(5) AD Delhi MCD v. Gopi Shankar this Court had observed that the absorption of employees, meaning thereby, regularization can only be granted if there are sanctioned posts available for being filled up and it cannot be directed from any arbitrary date. In 2004 Labour IC 893 Divisional Manager APSRTC v. P. Laxman G. Rao, Supreme Court observed that if the regularization has to take place in phased manner subject to availability of vacancies, the question of according regular status to the employees right from the date of initial appointment of daily wager does not arise. It cannot be laid down as a proposition of service law that the employee selected on daily wages basis, after selection, automatically become regular employee from day one even if he performs the duties similar to the regular employees.
6. I consider that employees on ad hoc/daily wages/muster roll, working with the petitioner, can be regularized as per policy of the petitioner as and when vacancies are available, in a phased manner and courts cannot thrust upon the petitioner for regularization of employees, if there are no vacancies available.
7. It is settled law that mere long service on ad hoc/daily wages basis does not give a right to the employees for permanent absorption. Persons appointed de hors the rules, cannot be directed to be regularized. Since, in this case, the respondent/workman had already been regularized from 1.4.1994, I find the order of the Tribunal, directing that he should be regularized from 1.4.1991, has no basis.
8. In view of reasons stated above, I hereby set aside the award passed by the Tribunal. The writ petition is allowed. No orders as to costs.