O.N.G.C.
Ltd. Vs. Engineering Mazdoor Sangh [2009] INSC 1601 (17 September 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION I.A. NOS. 11 AND 12 OF 2009
IN CIVIL APPEAL NO.6607 OF 2005 O.N.G.C. Ltd. ... Appellants Engineering
Mazdoor Sangh ... Respondent
O R D E R
ALTAMAS
KABIR, J.
1.
The Oil and Natural Gas Corporation Ltd., (hereinafter referred to
as `the O.N.G.C.') is a public sector undertaking which carries out geological
and geophysical surveys for the exploration of petroleum. Such work is seasonal
and is confined to the period between November each year and the months of
April or May of the following year. Every year, at 2 the commencement of the
new season, the O.N.G.C. starts recruiting casual/contingent/temporary workmen
for specified periods and their services are terminated at the end of the field
season. Having regard to the nature of the work involved, such practice is said
to have been in existence from 1956 when the O.N.G.C. was incorporated.
2.
With the increase in the workforce over the years, the aforesaid
practice came to be questioned by the Engineering Mazdoor Sangh, the respondent
herein, on behalf of its members who had been employed as such
casual/contingent or temporary workmen and an industrial dispute was raised 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
Vadodara by way of Reference (ITC) No.6 of 1991 to decide whether the demand of
the Respondent-Sangh for regularisation of such employees and for other
consequential benefits, was justified and if the answer to the said question
was yes, to what relief would the workmen be entitled.
3.
The aforesaid Reference was answered in favour of the workmen
though the Tribunal made it clear that the Reference was to be restricted to
those workmen whose names appeared in the Schedule to the affidavit filed by
the O.N.G.C. The Tribunal directed the O.N.G.C. to consider the names of those
workmen in the same descending order in which they were mentioned in the
Schedule as and when vacancies occurred and to regularize them provided they
satisfied the prescribed educational qualifications and had also put in 240
days of work in a year. The O.N.G.C. was also directed to give such workmen who
were eligible, age relaxation of one year for every completed 240 days of work
in a year.
4.
The aforesaid order of the Tribunal was challenged by the
Respondent-Sangh before the Gujarat High Court in Special Civil Application
No.12850 of 1994. The learned Single Judge hearing the matter observed that though
regularization could not be effected in the absence of permanent posts, the
availability of permanent posts is a fortuitous circumstance and 4
consequential confirmation is, therefore, uncertain, but that there was no bar
against treating a person to be regular even if a permanent post was not
available.
The
learned Single Judge accordingly modified the order of the Tribunal and
directed the respondents to treat the employees who were covered by Standing
Order 2(ii) as regular employees.
5.
The matter was taken by the O.N.G.C. to the Division Bench in
Letters Patent Appeal No.729 of 1999. During the pendency of the Appeal, the
Respondent-Sangh gave-up its claim with regard to the first direction given by
the learned Single Judge and only pressed for implementation of the second
direction. Similarly, the O.N.G.C. gave up 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. While granting such relief to the parties to the appeal,
the Division Bench also directed that the workmen concerned should be
notionally treated as regularized with effect from 1.5.1999. It was clarified
that the directions given 5 would apply to the surviving employees within the
189 employees who had been accepted as having acquired temporary status and
whose employment had been saved by the order dated 30.5.1999 in Complaint (ITC)
No.5 of 1993.
6.
When the matter was brought to this Court by the O.N.G.C., this
Court restored the order of the Tribunal whereby the 153 workmen identified to
be eligible for regularization were to be treated at par with the regular
employees and their services were to be treated as having been notionally
regularized from 1.5.1999. While disposing of the appeal on 20.11.2006, this
Court injuncted the respondents from making any recruitment from outside till
such time as the 153 workmen were absorbed against regular vacancies in the
concerned category. A further direction was given that even in matters of
seasonal employment, the said 153 workmen or those who remained after
regularization from time to time, were to be considered first for employment
before any other workmen were engaged for the same type of work in the field.
This Court also directed the O.N.G.C. to make a serious attempt to 6 regularize
the services of the workmen 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 the order.
7.
While the aforesaid judgment was delivered on 20.11.2006, it was
only on 23.2.2009 that I.A. No.11 of 2009 was filed and I.A. No.12 of 2009 was,
thereafter, filed on 9.4.2009 in Civil Appeal No.6607 of 2005. While I.A. No.11
of 2009 has been filed for a modification of the order passed by this Court on
20.11.2006 in Civil Appeal No.6607 of 2005, I.A. No.12 of 2009 has been filed
by the Respondent-Sangh, inter alia, for suitable directions to be issued to
the O.N.G.C. to absorb all the remaining workmen on the completion of two
years, as directed by this Court in its judgment dated 20.11.2006.
8.
When the applications were taken up for consideration, Mr. Raju
Ramachandran, learned Senior Advocate, who appeared for the O.N.G.C., submitted
that while implementing the aforesaid directions given by this Court, the
O.N.G.C. was faced with an 7 industrial dispute from candidates who were also
waiting for appointment from the compassionate appointment category. Mr.
Ramachandran submitted that no person from the said category could be appointed
over the last 9 years having regard to the pendency of the proceedings before
the Court and that apart from the 153 workmen, who were before the Court, the
Court should also allow O.N.G.C. to make appointments from the compassionate
appointment category.
9.
Mr. Ramachandran also urged that, in fact, 138 workmen were
admittedly covered by the Award of the Industrial Tribunal. In order to
implement the Award, as also the judgment of this Court, the said 138 workmen
were invited by the O.N.G.C. to attend the selection process strictly in
accordance with the directions issued by this Court. Mr. Ramachandran submitted
that 137 workmen attended the selection process and only 77 of the said workmen
were found qualified and eligible for being empanelled for jobs in different
categories. Learned counsel urged that 60 workmen were found to be unfit for
regular 8 employment. He also submitted that out of the 77 workmen found to be
eligible, 58 workmen had been given appointment while 19 workmen were kept on a
panel and were still left to be absorbed against regular vacancies. He urged
that having regard to the complexity of the matter, serious thought had been
given as to how the controversy could be resolved.
Mr.
Ramachandran submitted that one of the proposed methods to resolve the issue
was to offer a settlement package to the 19 workmen, who were yet to be
absorbed against regular vacancies, in lieu of absorption, and to permit
appointment of dependents of deceased employees on compassionate grounds. The
compensation package is as follows :- "COMPENSATION PACKAGE
1. Amount
equivalent to two month's wages for each completed year of service in ONGC or
amount equivalent to wages of left over period upto 60 years of age, whichever
is less.
2.
Provident Fund.
3. Amount
of wages for balance period of leave at credit."
10.
Mr. Ramchandran submitted that on account of the ban imposed by
this Court on recruitment before the 153 employees could be absorbed, no fresh
appointments 9 could be given in the category of compassionate appointment,
which has created growing resentment among other categories of workmen who were
waiting for appointment in similar posts.
11.
The relief prayed for by the O.N.G.C. for leave to offer the
compensation package in lieu of appointment was opposed on behalf of the said
workmen, as also the prayer made for leave to appoint persons from the
compassionate appointment category without absorbing all the workmen, who were
yet to be absorbed.
12.
Mr. Ranjit Kumar, learned Senior Advocate, appearing for the
Sangh, submitted that the order passed by this Court on 20.11.2006, and
subsequently clarified on 8.2.2008 was very clear and unambiguous.
Learned
counsel submitted that the rights of the 153 workmen identified before the
Tribunal had crystallized in the order of the Tribunal, which was subsequently
upheld by this Court and till such time as they were absorbed, no fresh
appointments could be given from any other category, notwithstanding the 10
fact that there were other candidates waiting to be appointed on compassionate
grounds. Mr. Ranjit Kumar also submitted that as far as Mr. Ramchandran's
contention that 60 workmen were found to be ineligible for appointment, the
same could not be accepted having regard to the fact that the Award of the
Tribunal and the order passed by this Court clearly indicated that the
Reference was to be restricted to the workmen, whose names appeared in the
schedule to the affidavit, which was ultimately identified as far as 153
workmen are concerned. Mr. Ranjit Kumar pointed out that ONGC was directed that
as and when vacancies to the regular posts arose, they would be required to
consider the names of those workmen in the same descending order in which they
were mentioned in the schedule and that they would be regularized provided they
satisfied the specific prescribed educational qualifications. It was also
indicated that for each 240 days work in a year put in by each workmen, ONGC
would give such workmen, age relaxation of one year. Mr. Ranjit Kumar submitted
that on account of the ban imposed by this Court on 11 recruitment before the
153 employees were absorbed, no fresh appointments could be given in the
category of compassionate appointment, which has created growing resentment
amongst other categories of workmen, who were also waiting for appointment for
similar posts.
13.
The relief brought for by the ONGC for leave to offer the
compensation package in lieu of the appointment was opposed on behalf of the
said workmen, as also the prayer made for leave to appoint persons from the
compassionate appointment category without absorbing all the workmen, who were
yet to be absorbed.
14.
Mr. Ranjit Kumar, learned Senior advocate, appearing for the
Sangh, submitted that the order passed by this Court on 20th November, 2006 and
subsequently, clarified on 08/02/2008, was very clear and unambiguous. Learned
counsel submitted that the rights of the 153 workmen identified before the
Tribunal had crystallised in the order of the Tribunal, which was subsequently
upheld by this Court and till such time as they were absorbed, no fresh
appointments could be given from any other category, 12 notwithstanding the
fact that there were other candidates waiting to be appointed on compassionate
grounds. Mr. Ranjit Kumar also submitted that as far as Mr. Ramachandran's
contention that 60 workmen who were found to be ineligible for appointment were
concerned, the same could not be accepted having regard to the fact that the
Award of the Tribunal and the order passed by this Court clearly indicated that
the Reference was to be restricted to the workmen whose names appeared in the
schedule to the affidavit comprising 153 workmen. Mr. Ranjit Kumar also
referred to paragraph 16 of our judgment dated 20th November, 2006, wherein we
had categorically indicated that till such time as 153 workmen were not
absorbed against the regular categories in the category concerned, no
recruitment from outside would be made by the appellant.
15.
Mr. Ranjit Kumar urged that the submission now being made on
behalf of the ONGC runs counter to the directions contained in the Award of the
Tribunal, as upheld by this Court and also contrary to the directions given by
this Court in support thereof.
16.
From the order dated 20th November, 2006, it is quiet obvious that
the intention of this Court was that till such time as the 153 workmen, who
were identified after the Award of the Tribunal were not absorbed against
regular vacancies in the concerned category, no recruitment from outside could
be made by the applicant ONGC in the same or similar posts.
Similar
provision was also made with regard to the workmen, who were to be employed on
a seasonal basis.
However,
we must also record Mr. Ramachandran's submissions at this stage that out of
the 153 persons whose names were available, 15 persons were found to be not
eligible for consideration, leaving 138 persons who were eligible for
consideration in terms of the Award of the learned Tribunal and the judgment of
this Court.
17.
Accordingly, at least the case of the 138 workmen, who had, in
fact, been found to be eligible for appointment had to be considered.
18.
However, the picture, as portrayed by Mr. Ramchandran, is not as
grave as has been made out by him since all the persons concerned, namely, the
14 candidates, who are yet to be absorbed in regular vacancies in terms of the
Tribunal's order, as upheld by this Court on 20th November, 2006, and those
waiting for compassionate appointment, have been provided with employment, as
contingent staff.
There
should not have been any difficulty for the ONGC to implement the Tribunal's
Award in respect of the 137 workmen, who were found eligible by ONGC within the
period of two years after the passing of the Award. Apart from the orders
passed by the Tribunal and this Court, equity demands that the workmen who have
been in continuous employment as contingent workmen from 1992, should be considered
first for regularisation before those, who come in at a later stage.
19.
At this juncture, we may also refer to the submission which had
been made on behalf of one of the intervenors from the compassionate
appointment category that there were large number of vacancies available in
which all could be accommodated. Mr. Ramachandran has denied such submission
and in the affidavit filed with regard to the copy of the 15 Minutes of the
71st meeting of the Joint Committee, it has been pointed out that the number of
vacancies indicated represented vacancies in various departments and
particularly of a technical nature and did not necessarily include the
vacancies against which appointments were to be made as far as the concerned
workmen and the compassionate appointees were concerned.
20.
From the order dated 20.11.2006 it was clearly the intention of
this Court that till such time as the 153 workmen were not absorbed against
regular vacancies in the concerned category, no recruitment could be made by the
applicant. Similar provision was also made with regard to the workmen who were
employed on seasonal basis.
21.
Having considered the submissions made on behalf of the O.N.G.C.
and the Mazdoor Sangh, we are not inclined to grant the prayer made on behalf
of the O.N.G.C. for leave to appoint candidates from the compassionate category
group before all the 16 workmen who were identified after the Award of the
Tribunal to be eligible for appointment, are absorbed, as that would not only
go against the order passed by us on 20th November, 2006, but would also amount
to modifying the same.
22.
While rejecting the prayer made on behalf of the ONGC, we,
however, make it clear that such rejection would not prevent the ONGC from
offering the compensation package either to those workmen from amongst the 137
workmen, who are yet to be absorbed or those waiting for appointment from the
compassionate appointment category. If such package is accepted by any of those
candidates, both the ONGC as well as such candidate will be at liberty to act
on the basis of such acceptance and shall not be fettered in any way by the
directions given either by the Tribunal or this Court on 29th November, 2006.
23.
This order shall dispose of I.A. Nos.11 and 12 of 2009, but we
also make it clear that we are not passing any orders in terms of prayer (b) of
17 I.A. No.12 of 2009.
................................................J. (ALTAMAS KABIR)
...................................................J. (CYRIAC
JOSEPH)
New Delhi
September 17, 2009.
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION I.A. NOS. 11 AND 12 OF 2009
IN CIVIL APPEAL NO.6607 OF 2005 O.N.G.C. Ltd. ... Appellants Engineering
Mazdoor Sangh ... Respondent
O R D E R
ALTAMAS
KABIR, J.
In the
reportable order dated 17/09/2009, paragraphs 13 and 14 stand deleted and
paragraph Nos.15 to 23 are re-numbered as paragraph Nos. 13 to 21.
The
Registry is directed to issue Corrigendum accordingly.
................................................J. (ALTAMAS KABIR)
...................................................J. (CYRIAC
JOSEPH)
New Delhi
November 13, 2009.
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