G.M., O.N.G.C.,Shilchar Vs. O.N.G.C. Contractual Workers Union
[2008] INSC 959 (16
May 2008)
E IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4755 OF 2001 G.M. ONGC, Shilchar
....Appellant ONGC Contractual Workers Union ....Respondent WITH
Transfer Petition(Civil) Nos.890-892/2007
HARJIT SINGH BEDI,J.
1. This appeal after special leave
arises out of the following facts:
2. The appellant, the Oil and
Natural Gas Commission (hereinafter called the "ONGC") is engaged in
the exploration for oil and natural gas. In 1997, the ONGC started its drilling
operations in the district of Cachar and for that purpose engaged a large
number of staff in various fields, initially 2 through contractors. These
employees later formed the ONGC Contractual Workers Union (hereinafter called
the "Union") which is the contesting respondent in this matter. The
Union raised a dispute demanding the regularization of the services of its
members. This demand was resisted by the ONGC and on the failure of conciliation
proceedings, the State Government made a reference to the Industrial Tribunal.
3. The parties before the
Industrial Tribunal filed their pleadings and also recorded their evidence. The
Tribunal in its award dated 11th July 1994, held that the members of the Union
were indeed the employees of the ONGC and a direction was accordingly issued
that their services be regularized in a phased manner with pay and other
allowances, as permissible to regular employees. This award was challenged by
the ONGC in the High Court on the ground that the members of the Union were
employees of the contractors and not of the ONGC and as such there was no
obligation on the part of the ONGC to regularize their services. The learned
Single Judge accepted this submission and further observing that the Tribunal
had exceeded its jurisdiction by deciding beyond the 3 reference, allowed the
writ petition. A Writ appeal was thereafter taken by the Union before the
Division Bench of the High Court which, vide the impugned judgment dated 24th
December 1999, reversed the findings of the learned Single Judge observing that
the powers of the High Court while examining an award of a subordinate tribunal
were not as if it were a Court of Appeal and that the learned Single Judge
appeared to have fallen into a cardinal error in differing with the conclusions
on facts drawn by the Industrial Tribunal.
The Division Bench then noted that
no workman or contractor had been examined to show the existence of any
contract labour and that no clarification having been sought by the ONGC under
section 10 of the Contract Labour (Regularisation & Abolition) Act 1970,
the very basis for the employment of contract labour did not exist. The
Division Bench also observed that there was no ambiguity with regard to the
issues raised in the reference made by the State Government as the parties were
fully aware as to its meaning and import. The writ appeal was accordingly
allowed, the order of the learned Single Judge was set aside and the award 4 of
the Industrial Tribunal restored. The ONGC is before us in appeal.
4. At the very outset, Mr.
Dushayant A. Dave, the learned senior counsel for the appellant has referred us
to I.A.
No.7/2007 to bring on record the
present ground situation vis-`-vis the ONGC and the members of the respondent
Union, and has pointed out that till the year 1999, only one Oil Company, the
ONGC, owned by the Government of India had the exclusive right to prospect for
oil, but to accelerate exploration, it had been decided as from that year, to
throw the field open to National Oil Companies or private companies, Indian or
foreign, by way of an open bidding process, with the result that the ONGC was
no longer holding a monopoly in this regard. It has been submitted that as a
result of this liberalization, a large number of companies besides the ONGC
were now engaged in the exploration for oil and that it was imperative in this
situation and changed scenario for the ONGC to make an attempt to reduce its
work force and it had done so by introducing a voluntary retirement scheme with
effect from 1999, which had resulted in a reduction of more 5 than 3500. It has
been highlighted that at the time of the filing of this appeal, about 400 and
odd workmen had been involved but many had subsequently accepted voluntary
retirement and the matter had been initially restricted to about 290 workmen,
who in the light of the status quo order passed by this Court in these
proceedings, had been receiving payments/service charges to the tune of
Rs.7,22,000/- per month for the last 7 years which now totalled about seven
crore although no work was being performed by them. It has been submitted that
as a result of another Memorandum of Understanding signed on 24th January 2007,
another 176 workmen or their legal heirs out of the 290 aforementioned, had
opted out of the appeal and accepted voluntary retirement with the result that
as of today, only about 70 or 80 workmen were associated with the Union in
pursuing this appeal. It has accordingly been pleaded that to meet the latest
situation and in the light of the above facts, the earlier scheme formulated by
the ONGC for absorption of its workmen set out in the additional affidavit
filed on 14th February 2001, be treated as withdrawn, though the offer with
regard to the 6 voluntary retirement scheme which has been accepted by the 176
workmen was still open to the present members of the Union. On facts, it has
been argued that the findings of the Industrial Tribunal were erroneous and the
learned Single Judge was, therefore, fully justified in setting aside the award
pursuant to its writ jurisdiction under Article 226 of the Constitution of
India. Reliance for this argument has been Kumar Jayantibhai Patel (1997) 6 SCC
650, Trambak Rubber Industries Ltd. vs. Nashik Workers Union & Ors.
(2003) 6 SCC 416 and Seema Ghosh
vs. Tata Iron & Steel Co. (2006) 7 SCC 722. It has also been urged that a
workman who had worked for 240 days or more could not claim regularization of
services and that in any case, contractual workers were not entitled to
regularization. In support of this submission, reliance has been placed on the
State of Karnataka & Ors. vs. KGSD Canteen Employees' Welfare Association
& Ors. (2006) 1 SCC 567, M.P.
Housing Board & Anr. vs. Manoj
Shrivastava (2006) 2 SCC 702, Indian Drug & Pharmaceuticals Ltd. vs.
Workmen, 7 Indian Drugs & Pharmaceuticals Ltd. 2007(1) SCC 408, Gangadhar
Pillai vs. Siemens Ltd. (2007) 1 SCC 533 and Hindustan Aeronautics Ltd. vs. Dan
Bahadur Singh & Ors.
(2007) 6 SCC 207. It has finally been
contended that after the promulgation of the Contract Labour (Regularisation
&
Abolition) Act, 1970
regularization of contract labour was not permissible and in support of this
plea, the learned counsel has relied on Steel Authority of India Ltd. & Ors.
vs.
National Union Waterfront Workers
& Ors. (2001) 7 SCC 1 and Secretary, State of Karnataka & Ors. vs. Uma
Devi (3) & Ors. (2006) 4 SCC 1.
5. Mr. Sanyal, the learned senior
counsel has, at the very outset, pointed out that pursuant to the observations
of this Court, the ONGC had made an offer for absorption of the workmen by way
of an additional affidavit dated 14th February 2001 and the Union had been
seriously inclined to accept that offer, but had sought some minor
clarifications from the ONGC (which were not forthcoming) and on the contrary,
the ONGC had moved I.A. No.7/2007 withdrawing the said offer and suggesting
another voluntary retirement scheme which 8 was not acceptable to the members
of the Union. It has accordingly been pleaded that it was the ONGC which had
been unfair in its dealings and that despite the passage of almost 28 years,
the workmen had not been able to get any substantial relief. It has also been
submitted that the Industrial Tribunal was fully justified in delving into the
facts of the case to see the nature of employment of the workmen i.e. as to
whether they were employees of the ONGC or of the contractor, and the Tribunal
having done so, the learned Single Judge was not justified in making a
re-assessment on facts. For this argument, the learned counsel has relied on
R.K.Panda & Ors. vs. Steel Authority of India & Ors. (1994) 5 SCC 304
and Steel Authority of India Ltd. (supra). It has also been contended that the
reference made undoubtedly did give an impression that the Union had accepted
their status as contractual workers and were merely seeking regularization of
their services but in the light of the pleadings of the parties, the evidence
led before the Industrial Tribunal and the arguments raised by the learned counsel
in all the fora, it was clear that the examination was not limited to this
investigation 9 but the broader question as to whether the members of Union
were employees of the ONGC or of the contractors was the core issue and as the
parties were fully aware of this basic fact, it was not open to the ONGC to
contend that the reference was bad. It has further been highlighted that
reliance by the appellant on Uma Devi's case was misplaced as this matter had
been clarified and explained by this Court in U.P. State Electricity Board vs.
Pooran Chandra Pandey, (2007) 12 SCALE 304.
6. We first take up Mr. Dave's
arguments with regard to the propriety of the Division Bench entering into the
facts of the case and upsetting the findings recorded by the Single Judge with
regard to the nature of employment of the workmen. It has been submitted that
the interference by the Division Bench was not called for in the light of the
various judgments of the Supreme Court.
7. On the contrary, Mr. Sanyal has
been at pains to point out that the Industrial Tribunal was in fact the sole
fact finding authority and interference by the Single Bench of the High Court
in its writ jurisdiction under Article 226 of the 10 Constitution could be
justified only if the findings could be said to be perverse. He has relied upon
several judgments of this Court including Sadhu Ram vs. Delhi Transport
Corporation AIR 1984 SC 1467 for this argument. It has also been submitted that
there was no perversity in the Award of the Industrial Tribunal, and the Single
Judge had, thus, impinged and transgressed into the jurisdiction of the
Industrial Tribunal.
8. We have examined the arguments
advanced by the learned counsel. This Court has held time and again that the
High Court had the authority to enquire as to whether a finding arrived at by
the Tribunal was based on evidence and to correct an error apparent on the face
of the record. The observations in Trambak Rubber Industries Ltd.'s case
(supra) are to this effect and it has been highlighted that the High Court
would be fully justified in interfering with an Award of an Industrial Court on
account of a patent illegality.
In Seema Ghosh's case (Supra),
this Court observed that the High Court's interference under Articles 226 and
227 of the Constitution with an Award of the Labour Court was justified 11 as
the Award had been rendered contrary to the law laid down by this Court and as
a measure of "misplaced sympathy", and was thus perverse. The other
judgments cited by Mr. Dave lay down similar principles and need not be dealt
with individually. It will be seen therefore that the interference would be
limited to a few cases and as already noted above, in the case of a patent
illegality or perversity. On the contrary, Mr. Sanyal's reliance on Sadhu Ram's
case (supra) is more appropriate to the circumstances herein. It has been
observed as under:
"The jurisdiction under
Article 226 of the Constitution of India is truly wide but, for that very
reason, it has to be exercised with great circumspection. It is not for the
High Court to constitute itself into an appellate court over tribunals
constituted under special legislations to resolve disputes of a kind
qualitatively different from ordinary civil disputes and to re-adjudicate upon
questions of fact decided by those tribunals. That the questions decided
pertain to jurisdictional facts does not entitle the High Court to interfere
with the findings on jurisdictional facts which the Tribunal is well competent
to decide. Where the circumstances indicate that the Tribunal has snatched at
jurisdiction, the High Court may be justified in interfering. But where the
tribunal gets jurisdiction only if a reference is made and it is therefore
impossible ever to say that the Tribunal has clutched at jurisdiction, we do
not 12 think that it was proper for the High Court to substitute its judgment
for that of the Labour Court and hold that the workman had raised no demand
with the management".
9. We are therefore of the opinion
that in the light of the facts that have come on record we find no perversity
or patent illegality in the Award of the Industrial Tribunal and on the
contrary must appreciate that it has minutely examined the evidence in arriving
at its decision. In this view of the matter, it was inappropriate for the Learned
Single Judge to have re- appraised the evidence and come to a different
conclusion.
10. Mr. Dave has also laid great
emphasis on the fact that in the light of several judgments of the Supreme
Court there was no inflexible right in a workman who had put in 240 days or
more to have his/her services regularized and that contractual workers were in
any case precluded from claiming this relief.
Mr. Sanyal has, however, submitted
that most of the workmen had joined in the year 1979 and 1984 and though they
had two orders in their favour, one of the Industrial Tribunal and the other of
the Division Bench, they had not been able to 13 enforce their rights in some
cases for almost 30 years. We have accordingly chosen to deal with these issues
together.
There are several observations
which do suggest that a workman who has put in 240 days or is a contractual
worker, is not entitled automatically to regularization. We, however, believe
that the present case is not one of regularization simpliciter such as in the
case of an ad-hoc or casual employee claiming this privilege. The basic issue
in the present case is the status of the workmen and whether they were the
employees of the ONGC or the contractor and in the event that they were
employees of the former, a claim to be treated at par with other such
employees. As would be clear from the discussion a little later, this was the
basic issue on which the parties went to trial, notwithstanding the confusion
created by the ill-worded reference. The Division Bench has examined the
evidence on this aspect and has endorsed the finding of the Industrial
Tribunal. We also find that the observations in R.K.Panda's case(supra) are
significant:
"It is true that with the
passage of time and purely with a view to safeguard the 14 interests of
workers, many principal employees while renewing the contracts have been
insisting that the contractor or the new contractor retains the old employees.
In fact, such a condition is incorporated in the contract itself. However, such
a clause in the contract which is benevolently inserted in the contract to
protect the continuance of the source of livelihood of the contract labour
cannot by itself give rise to a right to regularization in the employment of
the principal employer. Whether the contract labourers have become the
employees of the principal employer in course of time and whether the
engagement and employment of labourers through a contractor is a mere
camouflage and a smokescreen, as has been urged in this case, is a question of
fact and has to be established by the contract labourers on the basis of the
requisite material. It is not possible for the High Court or this Court, while
exercising writ jurisdiction or jurisdiction under Article 136 to decide such
questions, only on the basis of the affidavits. It need not be pointed out that
in all such cases, the labourers are initially employed and engaged by the
contractors. As such at what point of time a direct link is established between
the contract labourers and the principal employer, eliminating the contractor
from the scene, is a matter which has to be established on material produced
before the court. Normally, the Labour Court and the Industrial Tribunal, under
the Industrial Disputes Act are the competent fora to adjudicate such disputes
on the basis of the oral and documentary evidence produced before them."
15 Likewise in Steel Authority of
India's case (supra) this is what the Court had to say:
"An analysis of the cases,
discussed above, shows that they fall in three classes: (i) where contract
labour is engaged in or in connection with the work of an establishment and
employment of contract labour is prohibited either because the industrial
adjudication/court ordered abolition of contract labour or because the appropriate
Government issued notification under Section 10(1) of the CLRA Act, no
automatic absorption of the contract labour working in the establishment was
ordered; (ii) where the contract was found to be a sham and nominal, rather a
camouflage, in which case the contract labour working in the establishment of
the principal employer were held, in fact and in reality, the employees of the
principal employer himself. Indeed, such cases do not relate to abolition of
contract labour but present instances wherein the Court pierced the veil and
declared the correct position as a fact at the stage after employment of
contract labour stood prohibited; (iii) where in discharge of a statutory
obligation of maintaining a canteen in an establishment the principal employer
availed the services of a contractor the courts have held that the contract
labour would indeed be the employees of the principal employer."
10. It was contended by Mr. Dave
that this Court in Uma Devi's case (supra) has clearly opined that the contract
or casual labour could not claim regularization and he has in particular
emphasized that in the light of the admitted 16 position that at some stage,
the workmen were indeed contract employees the ratio of the aforesaid was
clearly applicable to the facts of the case. We, however, observe that the
aforesaid decision was considered by another Bench of this Court in Pandey's
case (supra) wherein it has been held that the ratio of any decision must be
understood in the background of the facts of that case and that the case is
only an authority for what it logically decides and what logically flows from
it. In Pandey's case (supra) the question was as to whether casual employees
working in the Electricity Board were entitled to regularization of their
services. This is what the Division Bench had to say in paragraphs 16 and 17:
"We are constrained to refer
to the above decisions and principles contained therein because we find that
often Uma Devi's case (supra) is being applied by Courts mechanically as if it
were a Euclid's formula without seeing the facts of a particular case.
As observed by this Court in
Bhavnagar University's case (supra) and Bharat Petroleum Corporation Ltd.'s
case (supra), a little difference in the precedential value of a decision.
Hence, in our opinion, Uma Devi's case (supra) cannot be applied mechanically
without seeing the facts of a particular case, as a little difference in facts
can make Uma 17 Devi's case (supra) inapplicable to the facts of that case.
In the present case the writ petitioners
(respondents herein) only wish that they should not be discriminated against
vis-`-vis the original employees of the Electricity Board since they have been
taken over by the Electricity Board "in the same manner and
position".
Thus, the writ petitioners have to
be deemed to have been appointed in the service of the Electricity Board from
the date of their original appointments in the Society. Since they were all
appointed in the society because 4.5.1990 they cannot be denied the benefit of
the decision of the Electricity Board dated 28.11.1996 permitting
regularization of the employees of the Electricity Board who were working from
before 4.5.1990. To take a contrary view would violate Article 14 of the
Constitution. We have to read Uma Devi's case (supra) in conformity with
Article 14 of the Constitution, and we cannot read it in a manner which will
make it in conflict with Article 14. The Constitution is the supreme law of the
land, and any judgment, not even of the Supreme Court, can violate the Constitution."
11. It will be seen therefore that
each case has to be examined to a very large extent on its specific facts, and
a universal yardstick should not be attempted.
18
12. In the instant case, on a
consideration of material produced before it, the Tribunal came to the
following conclusions:
-
That there
existed a relationship of master and servant.
-
That there was no contractor
appointed by ONGC.
-
That the ONGC used to
supervise and allot works to individual workers.
-
That the ONGC took
disciplinary action and called for explanations from the workers.
-
The workers were paid wages
though they did not attend their duties due to Cachar Bandh and due to flood.
-
The wages were paid direct to
the workers by the ONGC and the acquaintance roll was prepared by the
Management to make payment to the workmen".
13. It has also been observed that
even the ONGC had admitted that since 1988, there was no licensed contractor
and that the wages were being paid through one of the leaders of the Union and
one such contractor, Manik has been named.
The Tribunal then opined that it
appeared from the record 19 that Manik himself was a workman and not a
contractor as he too was shown in the acquaintance roll to have received wages.
We find that the real issue was as to the status of the workmen as employees of
the ONGC or of the contractor, and it having been found that the workmen were
the employees of the ONGC they would ipso-facto be entitled to all benefits
available in that capacity, and the issue of regularization would, therefore,
pale into insignificance. We find that in this situation, the Industrial
Tribunal and the Division Bench of the High Court were justified in lifting the
veil in order to determine as to the nature of employment in the light of the
judgments quoted above. We, therefore, find that the ratio of the judgment in
Uma Devi's case (supra) would not be applicable and that the facts of Pandey's
case are on the contrary more akin to the facts of the present one.
14. We are therefore of the
opinion that in the light of the aforesaid observations, Mr. Dave's argument
that the workmen being on a contractual, were not entitled to any relief,
cannot be accepted and the large number of judgments 20 cited by Mr. Dave, on
this aspect, cannot be applied to the facts of the case.
15. We have also considered Mr.
Dave's argument with regard to the nature of the reference. We re-produce the
reference as made:
"Whether the demand of the
ONGC `Contractual Workers' Union, Silchar on the management of ONGC, Cachar
Project, Silchar for regularization of the services of the contractual workers
is justified. If so, what relief are the workmen concerned entitled to?"
16. It is true that the underlined
portion of the reference prima facie does give the impression that it
presupposes that the workmen were contractual employees and the only dispute
was with regard to the regularization of their services. It is equally true
that the reference appears to have been rather loosely worded but as observed
by the Industrial Tribunal and the Division Bench, both parties were aware of
the real issues involved in the light of the protracted litigation and the
efforts made during conciliation proceedings. The Division Bench has, thus,
rightly observed that it was open to the Industrial 21 Tribunal to have lifted
the veil so as to determine the nature of the employment and the dispute
between the parties and for that purpose to look into the pleadings and
evidence produced before it.
17. In Delhi Cloth & General
Mils Co. Ltd. vs. The workmen & Others AIR 1967 SC 469, this is what the
Court had to say:
"In our opinion, the Tribunal
must, in any event, look to the pleadings of the parties to find out the exact
nature of the dispute, because in most cases the order of reference is so
cryptic that it is impossible to cull out therefrom the various points about
which the parties were at variance leading to the trouble. In this case, the
order of reference was based on the report of the Conciliation Officer and it
was certainly open to the Management to show that the dispute which had been
referred was not an industrial dispute at all so as to attract jurisdiction
under the Industrial Disputes Act. But the parties cannot be allowed to go a
stage further and contend that the foundation of the dispute mentioned in the
order of reference was non-existent and that the true dispute was something
else".
18. The pleadings in the present
matter would show that the core issue before the Tribunal was with regard to
the status of the employees as employees of the ONGC or of the contractor 22
and that it was this issue simpliciter on which the parties went to trial. Mr.
Dave's argument with regard to the decision of the Tribunal being beyond the
reference, is to our mind, and in the circumstances, hyper technical. In this
background, we feel that the judgments cited by Mr. Dave pertaining to
regularization of contract labour are not applicable to the facts of the case.
19. We, thus, find no merit in the
appeal, which is accordingly dismissed. In view of the judgment made in Civil
Appeal No.4755/2001, these Transfer Petitions are rendered infructuous.
..................................J.
( TARUN CHATTERJEE )
.................................J.
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