Oil
& Natural Gas Corpn. Ltd Vs. Engineering Mazdoor Sangh [2006] Insc 824 (20 November 2006)
Dr.Ar.
Lakshmanan & Altamas Kabir
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 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
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." 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, 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 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 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 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.
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