Full Judgment Text
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CASE NO.:
Appeal (civil) 6607 of 2005
PETITIONER:
OIL & NATURAL GAS CORPN. LTD
RESPONDENT:
ENGINEERING MAZDOOR SANGH
DATE OF JUDGMENT: 20/11/2006
BENCH:
DR.AR. LAKSHMANAN & ALTAMAS KABIR
JUDGMENT:
J U D G M E N T
WITH
CONT.PETN. ) NO.164/2006 IN CA 6607/2005
ALTAMAS KABIR, J.
When the application being I.A.No.7/06 for revocation of
the leave granted, filed by the respondent-union, was taken
up for hearing, the appeal itself was taken up for disposal.
The Oil & Natural Gas Corporation Ltd. (hereinafter
referred to as ’the ONGC’ ) is a public sector undertaking
constituted under the Oil & Natural Gas Commission Act to
provide for production and sale of petroleum and petroleum
products. In order to achieve these objects, the ONGC carries
out geological and geophysical surveys for the exploration of
petroleum. Such work of survey is seasonal and is confined
to the period between November each year and April or May of
the following year. The workload is far less during the
monsoon period and is generally referred to as the off season.
Every year when such survey work or field season begins, the
ONGC starts recruiting casual/contingent/temporary
workmen for specified periods and their service are
terminated at the end of the field season. Such practice
appears to have been continuing from the very inception of the
ONGC in 1956. While in 1956, the ONGC had a staff strength
of 450 employees, in course of time the number increased to
about 25,000 employees by the year 1979. It has been stated
that the strength of the labour force has increased even
further since then.
In view of the aforesaid phenomenon relating to
employment of seasonal workers, the Engineering Mazdoor
Sangh on behalf of its members who had been recruited as
such casual/contingent/temporary workmen, raised an
industrial dispute in the form of a demand for regularization
of such workmen. The dispute was ultimately referred by the
Government of India to the Industrial Tribunal (Central) at
Vadodra (hereinafter referred to as ’the Tribunal’), being
Reference (ITC) No.6/1991. The following issue was referred
to the Tribunal for adjudication:-
"Whether the demand of Engineering Mazdoor
Sangh, Vadodra that the employees employed
in the ONGC, Western Region, Vadodra who
have completed 240 days or more in the
Commission as casual/contingent/temporary
be regularized as permanent workman from
the date of their engagement in ONGC, with
other consequential benefits, is justified? If
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yes, to what reliefs the said workmen are
entitled?"
While the reference was pending, the union filed a
complaint under Section 33A of the Industrial Disputes Act,
1947 (hereinafter referred to as the ’1947 Act’ ) being
Complaint (ITC) No.5/1993 alleging that the ONGC had
started giving work to contractors in preference to the
casual/contingent/temporary workmen and had thus altered
the terms of service of the workmen and committed breach of
Section 33 of the 1947 Act. The said complaint was tried by
the Tribunal and by its award dated 30th October, 1993, it
held that it was not permissible for the Tribunal to examine
whether the work of the ONGC was seasonal or not or whether
the ONGC had breached the terms of service of the workmen
by giving the work to contractors in preference to the
casual/contingent/temporary workmen. By the said order,
the ONGC was also directed to follow the principle of "last
come first go" in case it wanted to terminate the services of
the casual/temporary workmen on the ground that they had
no work. In such case, the ONGC was required to obtain the
prior permission of the Tribunal under Section 33 (1) (a) of the
1947 Act.
Consequent upon such order, the ONGC filed an
application on 25th April, 1994 seeking permission to
terminate the services of the casual/temporary workmen
mentioned in the list enclosed with the application. Due
notice of the application was served on the Engineering
Mazdoor Sangh and after hearing both the sides, by order
dated 30th May, 1994, the Tribunal directed the ONGC to
terminate the services of casual/contingent/temporary
workmen, except 189 out of 269 workmen who were indicated
in the list filed by the union.
While considering the question as to who would be
eligible to be considered for appointment to the regular posts
and whether the present workmen could be included in such
list and whether the reference should be restricted only to
those workmen who were members of the Engineering
Mazdoor Sangh and whose names appeared in the list filed by
the union, the Tribunal came to a finding that only a
temporary workman who had put in not less than 240 days of
attendance in a period of 12 consecutive months was entitled
to be considered for conversion as regular employee. The
learned Tribunal took note of the practice of ONGC of
recruiting casual workmen in the beginning of November every
year and terminating their services in April or May every year
as a recurring phenomenon. But it also observed that keeping
workmen casual/badli or temporary over long spells of time
amounts to unfair labour practice and observed that there had
to be some scheme for regularizing such workmen. In order to
find a solution to the said problem, the Tribunal took recourse
to the Certified Standing Orders which govern the parties and
in particular Rule 2 thereof which reads as follows:-
"2 Classification of Workmen
(i) The contingent employees of the
Commission shall hereafter be classified as
under:-
(a) Temporary, and
(b) Casual
(ii) A workman who has been on the rolls
of the Commission and has put in not less
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than 180 days of attendance in any period
of 12 consecutive months shall be a
temporary workman, provided that a
temporary workman who has put in not less
than 240 days of attendance in any period
of 12 consecutive months and who
possesses the minimum qualifications
prescribed by the Commission may be
considered for conversion as regular
employee.
(iii) A workman who is neither temporary
nor regular shall be considered as casual
workman."
On the basis of the above, the Tribunal held that a
casual workman who put in attendance of 180 or more days
in 12 consecutive months automatically became a temporary
workman who could after completion of 240 days of
attendance in any period of 12 consecutive months and
possessing qualifications be considered for conversion as a
regular employee. The Tribunal also rejected the list of 269
workmen shown by the Union who according to the Union
had completed 240 days and accepted as correct the list
submitted by the Chief Geophysicist showing about 189
workmen arranged in descending order as per number of days
put in by each workmen. Taking such list to be correct and
proceeding on the assumption that the workmen had
completed 240 days in the Commission, the Tribunal ordered
as follows:-
"The present reference is ordered to be
restricted to the workmen whose names
appear in the Schedule to the affidavit Ex.48 in
the Complaint (ITC) No.5/93 a copy of which is
appended to this award for the sake of
convenience. The ONGC is directed that as
and when vacancy to the regular post arise,
they shall consider the names of those
workmen in the same descending order in
which they are mentioned in the Schedule and
shall regularize them provided they satisfy the
prescribed educational qualifications and for
each 240 days of work put in by each
workman, the ONGC shall give him age
relaxation of one year. Ten workmen
mentioned at the bottom of this Schedule are
not entitled to any relief. It is made clear
that the workmen have to compete with other
workmen seeking employment through
Employment Exchange or similar lawful
manner. The ONGC is warned to ensure that
no officer in their employment resorts to the
unfair labour practice of inducing any casual
workman to change his name. Similarly no
workman shall hereinafter change his own
name to conceal his previous employment with
the ONGC.
Lastly, the ONGC is directed to pay a sum of
Rs.5,000/-(Rupees Five Thousand only) as
special cost to the Engineering Mazdoor
Sangh, Vadodra."
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The aforesaid order of the Tribunal was challenged by the
respondent-Union before the High Court of Gujarat in Special
Civil Application No.12850/1994. After considering the
submissions of the respective parties, the learned Single
Judge observed that though regularization could not be
effected in the absence of availability of permanent posts, the
availability of permanent post is a fortuitous circumstance
and consequential confirmation is, therefore, uncertain, but
that there was no ban against treating a person to be regular
even if a permanent post was not available. On the basis of
the aforesaid reasoning, the learned Single Judge modified the
order of the learned Tribunal in the following manner:-
(i) "..the relief will not be restricted only
to those workmen whose name appear in
the schedule to the affidavit at Exh.48
which was filed by the ONGC before the
Industrial Tribunal in the complaint (ITC)
5 of 1993, but it will be available to all the
employees who fulfil the requirements of
completion of 240 days or more and the
minimum qualifications under the ONGC
(Recruitment and Promotions) Regulations,
1980 in accordance with the relevant
Certified Standing Order and in case they
fulfil these requirements, all of them shall
be considered at par with regular
employees for the benefits which are given
to regular employees, whether their names
are there in the Schedule or not, whether
they are members of the petitioner Sangh
or not from the due date.
(ii) All such employees who are found to
be covered by the preceding para of the
relief as modified by this court shall be
treated at par with the other regular
employees working against the
corresponding or equivalent/equated or
identical posts and grant of such benefit
shall not wait for the availability of the
vacancies on the regular posts, of course,
they will have to wait according to their
turn for being made permanent as and
when the permanent posts become
available. For this purpose, the age
requirement shall be seen with reference to
the point of time when such employees
were initially employed instead of the
relaxation as has been directed by the
Industrial Tribunal in the impugned
award.
(iii) Whereas the status of regular
appointee is to be given to the employees
who are covered by the Standing Order
No.2 (ii) as above on the basis of
conversion, the requirement to compete
with other workman seeking employment
through Employment Exchange or similar
manner as has been mentioned by the
Industrial Tribunal in the impugned
award, simply does not arise..."
The impugned award of the Tribunal dated 6th June,
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1994, was modified accordingly.
The appellant herein took the matter in appeal to the
Division Bench in Letters Patent Appeal No.759/1999. While
the appeal was pending, the respondent-Union gave up its
claim for modification of the award as per the first direction
given by the learned Single Judge and only pressed for
implementation of the second direction given by the Tribunal.
Similarly, on behalf of the ONGC, it was submitted that it did
not wish to press its challenge in respect of the third direction.
Accordingly, the controversy in the appeal was restricted to
the challenge in respect of the second direction only. Going
one step further, the Division Bench disposed of the appeal by
directing that the workman concerned should be notionally
treated as regularized with effect from 1st May, 1999. Since
most of the benefits had already been given to the workmen, a
further direction was given to give them actual benefits at par
with regular employees, including all the perquisites and
applicable allowances, as also regular employment during the
year, with effect from 1st May, 2005. It was made clear that
the aforesaid directions would apply to the surviving
employees out of the 189 employees who had been accepted
as having acquired temporary status and whose employment
had been saved by the order dated 30th May, 1999 in
Complaint (ITC) No.5/1993.
Appearing for the ONGC \026 the appellant herein, Mr.
Harish Salve, learned senior advocate, while indicating the
aforesaid facts submitted that by filing the appeal, the
appellant was placed in a more disadvantageous position than
when the learned Single Judge passed his order on the Writ
Application. It was submitted that the learned Tribunal had
realized the difficulty of regularizing altogether all the 189
workmen who had acquired temporary status and were eligible
for being considered for conversion. It had accordingly
directed that they be absorbed against vacancies that may
arise from time to time in terms of seniority. The learned
Single Judge of the High Court, however, on a completely
erroneous construction of the law that non-availability of a
permanent post is no bar for considering the employees to be
at par with the regular employees for the purpose of giving
them all the benefits other than the status of a permanent
workman, directed that not only the 189 workmen, but all
employees who had fulfilled the requirements of completion of
240 days or more and had the minimum qualification under
the recruitment rules would be treated at par with the other
regular employees and the grant of such benefit would not
wait for the availability of vacancies to regular posts. The
learned Single Judge, however, also made it clear that in the
absence of vacancies, the concerned workmen would have to
wait for their turn for being made permanent as and when
permanent posts became available.
Mr.Salve submitted that not only was such a direction
based on a wrong reasoning, but such a direction would be
impossible to implement given the nature of work and the
period of employment. Mr. Salve submitted that contrary to
the settled law, the Division Bench had even directed that the
workman concerned be notionally treated to have been
regularized with effect from 1st May, 1999 in the appeal
which had been preferred by ONGC against the direction of the
learned Single Judge to treat such employees at par with the
regular employees. Mr. Salve urged that the directions given
by the learned Tribunal were more in conformity with the
Certified Standing Orders than the directions given both by
the learned Single Judge as also the Division Bench of the
High Court and could be worked out gradually.
Mr. Salve’s submissions were vehemently opposed on
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behalf of the Union by Mr. P.H. Parekh who tried to establish
that the directions given by the High Court, both by the
learned Single Judge as well as the Division Bench, were just
and reasonable and did not warrant any interference in this
appeal. Mr. Parekh contended that neither the Single Judge
nor the Division Bench had directed that the service of the
concerned 189 workmen now reduced to 153 workmen be
regularized. On the other hand, what weighed with the
learned Single Judge as also the Division Bench was the fact
that these employees had been working with the appellant
over a long period of time, though on a periodical basis, and
that they, therefore, deserved to be treated at par with regular
employees as far as financial benefits were concerned. Mr.
Parekh pointed out that while the learned Single Judge had
only directed that these workmen be treated at par with the
regular employees, the Division Bench felt that since the said
workmen had worked for even as long as 15 years, though on
a seasonal basis, they deserved to be treated as permanent
employees and accordingly directed that they be treated to
have been notionally regularized with effect from 1st May,
1999, though the actual monetary benefits were to be made
available with effect from 1st May, 2005.
We have carefully considered the submissions made on
behalf of the respective parties and we are unable to agree
with the reasoning both of the learned Single Judge as well as
the Division Bench of the High Court in firstly directing that
the concerned 153 workmen be treated at par with regular
employees as far as all benefits are concerned, except for
being given permanent status and the subsequent direction of
the Division Bench directing that they be treated as having
been notionally regularized with effect from 1st May, 1999.
Having regard to the nature of employment and the period
during which these field workers are employed, it would create
various difficulties if the seasonal workmen were to be treated
at par with regular employees as directed by the learned
Single Judge. It would be even more difficult for the
appellant to adjust the workmen in permanent employment
when the need for them was only seasonal. Admittedly, these
workmen who are employed for field survey work are employed
for about six months in a year between November and May. If
at all they are to be regularized, the appellant will have to find
work for them during the months when their services would
otherwise have not been required. As pointed out by Mr.
Salve, previously the appellant had monopolistic control over
geological survey work for oil and natural gas but today the
scene had changed and it is just another competitor along
with others, notwithstanding the fact that they are a
government company. The appellant is now required to
compete with others in securing exploration work and can only
recruit field workers as and when required. Even then the
learned Tribunal found a via media in directing that the 153
workmen who had admittedly completed 240 days and had
acquired a temporary status be regularized against vacancies
as and when such vacancies became available.
We are of the view that the directions given by the
learned Tribunal are reasonable and should be allowed to
stand as against the directions given by the High Court, firstly
to treat the said 153 workmen at par with the regular
employees and thereafter to treat their services as having been
notionally regularized from 1st May, 1999. We can, of course,
add a few further safeguards in order to protect the interests
of the said 153 workmen so that they are assured of
employment as before.
We, accordingly, dispose of this appeal by setting aside
the judgments and orders of both the learned Single Judge
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and the Division Bench of the High Court and restoring the
judgment and order passed by the Tribunal. We, however,
add that till such time as these 153 workmen are not
absorbed against regular vacancies in the concerned category
no recruitment from outside will be made by the appellant.
Furthermore, even in matters of seasonal employment, the
said 153 workmen or the numbers that remain after
regularization from time to time, shall be first considered for
employment before any other workmen are engaged for the
same type of work in the field. The appellant should make a
serious attempt to regularize the services of the workman
concerned, in terms of the order passed by the Tribunal, as
quickly as possible, but preferably within a period of two
years from the date of this order. There will be no order as to
costs.
Having regard to this order, no further orders are
required to be passed on the Contempt Petition which is
disposed of accordingly. I.A.Nos.7, 8 and 9 are also disposed
of by this order.