Madras High Court
Oil And Natural Gas vs The Petroleum Coal Labour on 4 January, 2011
Author: S.Nagamuthu
Bench: S.Nagamuthu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.01.2011
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
W.P.No.1846 of 2000
Oil and Natural Gas
Corporation Limited,
Cauvery Project,
Neravy Complex,
Pondicherry. ... Petitioner
vs.
1.The Petroleum Coal Labour
Union, Rep. By its
General Secretary,
66, Keezharaja Veedhi,
Chennai.
2.The Industrial Tribunal,
Chennai.
3.G.Vijayarangan
4.R.Sekar
5.K.G.Kalidoss
6.N.Sivasubramanian
7.M.Chandrakasan
8.GVenkatesan
9.G.Sivashanmugam
10.G.Moorthy
11.G.AQnbazhagan
12.T.S.RAjkumar
13.V.N.Jayakumar
14.M.Sudhakar
15.N.Padmanathan
16.M.Prabakar
17.V.Murugan
18.R.Gunasekaran
19.R.Rathinakumar
20.G.Jayakumar
21.S.Sakthivel
22.K.Vadivel
23.T.Annadurai
24.V.RAjendiran
25.M.Rajaram
26.N.manohar
27.G.AShok Kumar
28.D.Jawahar
29.S.Venugopal
30.K.Swaminathan
31.V.Srinivasan
32.C.Govindaraj
33.M.Sekar
34.N.Ramalingam
35.B.Govindaraj
36.N.kamaraj
37.P.Govindasamy
38.M.Kamaraj
39.R.SElvaraj
40.A.Santhanarajan
41.T.Sekar
42.A.R.Rajendran
43.S.Anbarasan
[ Respondents 3 to 43 impleaded as per order dated 08.09.2003 in W.P.M.P.No.6522 of 2003]
... Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari calling for the records the award in I.D.NO.66/91 dated 26.05.1999 on the file of the Industrial Tribunal at Madras and quash the same.
For Petitioner : Mr.G.M.Masilamani,
Senior Counsel for
Mr.K.Shanmugakani
For Respondents: Mr.N.G.R.Prasad
for M/s.Row & Reddy for R1 Mr.Ayyathurai for RR3 to 43
R2-Tribunal
ORDER
Challenge in this writ petition is to the award made by the Industrial Tribunal, Tamil Nadu, in Industrial Dispute No.66 of 1991 dated 26.05.1999 wherein, the tribunal, holding that the non regularisation of workmen who are concerned in the industrial dispute is not justified, has directed to regularise the services of the workmen concerned with effect from 14.01.1990, the date on which all of them had completed 480 days of attendance.
2.The facts of the case are as follows:-
The petitioner is a Government company namely Oil and Natural Gas Corporation Limited, (hereinafter referred to as ONGC) which was originally established as a statutory corporation under the ONGC Act, 1959 and later on converted as a company in the year 1994. The ONGC has a project in Cauveri Basin situated in and around Karaikal. There are about 8 drill sites in the said project involving about 1050 regular employees. Due to developmental activities, the said project required security arrangements. Such arrangements were made through contractors.
3. While so, the Government of India issued a notification on 08.12.1976 prohibiting the employment of workers on contract basis as watch and ward and for cleaning the buildings in ONGC. In view of the same, the contract labourers who were earlier engaged by the contractors providing security arrangements for Cauveri project started demanding that they should be treated as regular employees of ONGC. The same was not conceded to immediately. However, subsequently, a settlement was arrived at between the trade union and the management under Section 18(1) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) under which, a co-operative society was formed for the welfare of the such contract labourers. On 08.09.1987, the ONGC passed an order to induct Central Industrial Security Force (hereinafter referred to as CISF) for the purpose of providing security to the ONGC projects.
4. Immediately, thereafter, the trade union filed W.P.No.9688 of 1987 challenging the decision of the ONGC to induct CISF and for a further direction to ONGC to absorb the said workmen as regular employees. Yet another writ petition in W.P.No.11969 of 1987 was filed by the trade union seeking a mandamus to direct the ONGC to absorb the workers engaged through the third respondent co-operative society viz., Priyadarshini Indra Co.opearative Society. The said writ petition was dismissed by order dated 05.01.1988.
5. When things stood thus, the ONGC issued separate orders to such workmen on 13.01.1988 appointing them on term basis. Thus, from 13.01.1988 onwards, such employees who were originally engaged by the contractors and who were also members of the Priyadarshini Indra Co.opearative Society became the employees of ONGC but on term basis. On 10.09.1990, the trade union raised demands for regularisation of the above workers who were appointed on term basis. The matter was considered by the Central Government and the Central Government made an appropriate reference to the Industrial Tribunal, Chennai.
7. The following are the terms of reference:-
(i) Whether the management of ONGC is justified in not regularising the workmen in the instant dispute, if not what relief the workmen is now entitled to?
(ii) Whether the management of ONGC is justified in not paying equal wages to the workmen in the dispute on par with the regular worker and if not what relief the workmen are entitled to?
8. The said reference was taken as an industrial dispute in I.D.No.66 of 1991 by the Industrial Tribunal. When the said matter was pending before the Tribunal, a memo was filed by the trade union on 28.04.1993 informing the tribunal that reference No.2 had been settled out of Court and therefore, no further adjudication was required. Accordingly, reference No.2 was closed and reference No.1 alone was tried. It was at this stage, in the year 1994, the ONGC, which was hitherto a Corporation established under the Act, was converted into a public limited company.
9. Before the tribunal, it was contended by the ONGC that the dispute itself was not maintainable as the same would not fall within the scope of industrial dispute, as per the provisions of the Industrial Disputes Act. It was also contended that since the workmen concerned were not appointed by following the procedure relating to appointment, they cannot be regularised. Thus, it was contended that the petitioners were not entitled for regularisation.
10. Before the Industrial Tribunal, on the side of the trade union, 3 witnesses were examined and 25 documents were exhibited. On the side of the management, 3 witnesses were examined and 12 documents were exhibited. Having considered the above materials, the Industrial Tribunal passed award directing the ONGC to regularise the workmen concerned. Aggrieved over the same, the ONGC is now before this Court with this writ petition.
11. I have heard the learned counsel on either side and perused the records carefully.
12. Reiterating the grounds raised in the writ petition, the learned Senior Counsel Mr.G.M.Masilamani appearing for the petitioner would assail the award of the labour Court on the ground that the industrial tribunal lacks jurisdiction under the Industrial Disputes Act to pass an award to direct the ONGC to regularise the temporary employees. He would further submit that if these workmen who were engaged originally by the contractors and who were later on appointed by the ONGC on term basis without following the due procedure in respect of the selection and appointment of the employees of ONGC, are regularised, the same would defeat the equality clause enshrined in Article 14 of the Constitution of India.
13. He would further submit that as held by the Honble Supreme Court in Uma Devi vs. State of Karnataka and others (2006(4) SCC 1) case, these workmen cannot be regularised as their appointments were not made in accordance with the regulations of ONGC relating to the method of appointment. He would further submit that in two other writ petitions filed before this Court, when a similar relief was sought for by similarly placed workmen, in W.P.No.7906 of 1999 and in W.P.No.870 of 2004, this Court has negatived the said request following the law laid down by the Honble Supreme Court in Uma Devis case (cited supra) and in Umaraniv Registrar, Co-operative Societies (2004 (7) SCC 112). Therefore, the learned Senior Counsel would pray for setting aside the award made by the Industrial Tribunal.
14. Mr.N.G.R.Prasad, the learned counsel appearing for the first respondent trade union would stoutly oppose all the above grounds. According to him, the dispute raised before the Industrial Tribunal would very much fall within the jurisdiction of the Industrial Tribunal under the provisions of the Industrial Disputes Act and therefore, the award of the Industrial Tribunal cannot be stated to be without jurisdiction. He would further submit that unfair labour practice which is prohibited under Section 33 of the Industrial Disputes Act cannot be allowed to be perpetuated by the ONGC by keeping these workmen on temporary basis for years together. He would further add that these workmen have been working on temporary basis from the year 1988 continuously and keeping them as temporary employees for ever would surely an unfair labour practice and therefore, the Industrial Tribunal was right in issuing a direction for their regularisation. He would further submit that the workmen cannot be retrenched from service without complying with Section 33.A of the Act and without following the procedure for retrenchment. If the workmen are so retrenched, without following the mandatory provision contained in the Industrial Disputes Act, the same shall be void. He would further submit that when an unfair labour practice is being consistently practiced by ONGC, it would not be suffice to impose only a penalty upon the ONGC under Section 31 of the Act. Instead, the power of the Industrial Tribunal should be extended to safeguard the interest of such workmen since the Industrial Disputes Act is a social legislation for the benefit of the workmen. He would further contend that the power of the Industrial Tribunal is wider than that of the power of the Civil Court. When unfair labour practice is practiced by the ONGC, in order to protect the welfare of the workmen, the power of the Industrial Tribunal should appropriately be exercised and that is what the Industrial Tribunal has done in the given case. He would further contend that the law laid down by the Honble Supreme Court in Uma Devi case has got no application at all in respect of the industrial disputes. According to him, Uma Devi case is concerned only with the public employment and with the power of the High Court under Article 226 of the Constitution of India and the power of the Honble Supreme Court under Article 32 of the Constitution of India to issue such a direction for regularisation of illegally appointed employees. He would further point out that Uma Devi case came up for consideration before the Honble Supreme Court in Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana (2009(8) SCC 556) wherein, the Honble Supreme Court has dealt with the scope of Uma Devi case in respect of labour matters. According to him, in the said case, though the employees were appointed irregularly by the Maharashtra SRTC Limited in violation of the Standing Orders, since they were exploited by the corporation for years together by engaging them as piece-rate basis, the Hon'ble Supreme Court held that such employees were entitled for permanent status and if such privilege was not extended to such employees it would tantamount to putting premium on their unlawful act of engaging in unfair labour practice. Taking me through the said judgements, the learned counsel would further contend that the said judgment of the Honble Supreme Court squarely applies to the facts of the present case.
15. He would further contend that in Western India Automobile Association v. Industrial Tribunal, Bombay (AIR (36) 1949 Federal Court 111) the Federal Court has held that the Tribunal under the Industrial Disputes Act has jurisdiction to include in award, direction as to re-instatement of dismissed employees. Relying on the same, the learned counsel would submit that the phrase 'any dispute' connected with the 'employment or non employment' should be understood to encompass into its ambit, the non regularisation also. The learned counsel would further contend that the two judgments relied on by the learned Senior Counsel appearing for the petitioner from this High Court in W.P.No.7906 of 1999 and in W.P.No.870 of 2004 have got no application to the facts of the present case. In those cases, the workmen without approaching the Industrial Tribunal directly approached this Court under Article 226 of the Constitution of India. That is the reason why, according to the learned counsel, this Court in those two judgements took the view that such positive direction under Article 226 of the Constitution of India for regularisation cannot be granted in view of the law laid down in Uma Devi case.
16. The learned counsel would further contend that so far as the State of Tamil Nadu is concerned, there is yet another state enactment namely "The Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981" under which, the employees are entitled for permanency. Nextly, the learned counsel would place reliance on the judgment in Hindustan Petroleum Corporation Ltd., v. The Presiding Officer, Central Government Labour Court cum Industrial Tribunal (2008 (4) CTC 819). When a similar question arose in respect of the power of the Industrial Tribunal to issue such a positive direction to regularise the employees, after having taken note of number of judgments of the Honble Supreme Court as well as the said enactment namely, the Tamil Nadu Act 46 of 1981, this Court has held that the Industrial Tribunal has got such power to issue a positive direction for regularisation. The learned counsel would contend that the said judgment squarely applies to the facts of the present case. For these reasons, the learned counsel would pray for dismissal of the writ petition.
17. I have considered the rival submissions.
18. The foremost dispute between the parties in this case is regarding the non regularisation of the workmen. Whether it would fall within the scope of industrial dispute as defined in Section Section 2(k) of the Act is the primary question which would decide the jurisdiction of the Industrial Tribunal. Simply because the Central Government had thought it fit to refer the said dispute to the Industrial Tribunal, it cannot be ipso facto taken that there existed an industrial dispute in terms of Section 2(k) of the Act. It is always open for the ONGC to contend and to establish that there existed no industrial dispute. Therefore, it is to be seen whether the denial of the ONGC to regularise the temporary workmen who have been working on term basis from 31.01.1988 can be termed as an industrial dispute. For this purpose, it would be worthwhile to extract Section 2(k) of the Industrial Disputes Act which reads as follows:-
2(k) industrial dispute means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any persons;
19. A close reading of the above provision would make it abundantly clear that if only the dispute is connected with the employment or non employment or the terms of employment or with the conditions of labour, the same shall be an industrial dispute requiring adjudication by the Industrial Tribunal. In this regard, I may refer to Section 25T of the Act which came to be inserted by Act 46 of 1982 with effect from 21.08.1984. The said provision reads as follows:-
25-T. Prohibition of unfair labour practice.-No employer or workman or a trade union, whether registered under the Trade Unions Act, 1926 (16 of 1926), or not, shall commit any unfair labour practice.
20. What is unfair labour practice is defined in Section 2(ra) of the Act which states, unfair labour practice means any of the practices specified in the Fifth Schedule. Clause 10 of the Fifth Schedule states that, on the part of the employers, To employ workmen as badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen. shall be unfair labour practice.
21. In the case on hand, since these workmen have been employed as temporary workmen from 13.01.1988 that is for about 22 years, undoubtedly, it is an unfair labour practice as defined in Section 2(ra) of the Industrial Disputes Act. If any such unfair labour practice is practiced by any employer, of course, under Section 31 of the Act, such employer can be punished with imprisonment. But, imposition of such punishment will not in any manner come to the rescue of the victims of such unfair labour practice. It is needless to point out that the employer can continue with such unfair labour practice for ever if he is prepared to undergo the punishment to be imposed under Section 31 of the Act. But the Industrial Disputes Act, being a benevolent provision for the workmen, cannot receive such a narrow interpretation. The victims of such unfair labour practice should receive a solace under the Act. Therefore, the crucial question is as to whether, a dispute regarding unfair labour practice is an industrial dispute in terms of Section 2(k) of the Industrial Disputes Act.
22. As pointed out by the learned counsel for the first respondent, the term industrial dispute as defined in Section 2(k) of the Act came to be interpreted by the Federal Court as early as in the year 1949 in Western India Automobile Association v. Industrial Tribunal, Bombay (cited supra). In that case, the phrase employment and non employment employed in Section 2(k) of the Act came to be considered by the Federal Court. After having made a thorough analysis of the law on the subject, in paragraph No.10 of the said judgment, the Federal Court has held as follows:-
10.................The words of the definition may be paraphrazed thus; any dispute which has connection with the workmen being in, or out of service or employment. Non employment is the negative of employment and would mean that disputes of workmen out of service with their employers are within the ambit of the definition. It is the positive or the negative act of an employer that leads to employment or to non-employment. It may relate to an existing employment or to a contemplated employment, or it may relate to an existing fact of non-employment or a contemplated non-employment. The following for illustrations elucidate this point:(1)An employer has already employed a person and a trade union says Please do not employ him. Such a dispute is a dispute as to employment or in connection with employment. (2) An employer gives notice to a union saying that he wishes to employ two particular persons. The union says no. This is a dispute as to employment. It arises out of the desire of the employer to employ certain persons.(3) An employer may dismiss a man, or decline to employ him. This matter raises a dispute as to non-employment (4)An employer contemplates turning out a number of people who are already in his employment. It is a dispute as to contemplated non-employment. Employment or non-employment constitutes the subject matter of one class of industrial disputes, the other two classes of disputes being those connected with the terms of employment and the conditions of labour. The failure to employ or the refusal to employ are actions on the part of the employer which would be covered by the term employment or non-employment. Reinstatement is connected with non-employment and is therefore within the words of the definition. It will be a curious result if the view is taken that though a person discharged during a dispute is within the definition of the word workman, yet if he raises a dispute about dismissal and reinstatement, it would be outside the words of the definition in connection with employment or non-employment. It was contended that the words employment or non-employment were employed in the same sense, just to remove any ambiguity that might arise if the word employment alone was used. In other words, the word non-employment has limited the meaning of the word employment. To our mind, the result is otherwise. The words are of the widest amplitude and have been put in juxtaposition to make the definition thoroughly comprehensive. Mr.Setalvad contended that the expression in connection with employment or non-employment excludes the question of non-employment itself which must exist as a fact to supply the nexus with the dispute. The argument is, in our opinion, unsound. The words in connection with widen the scope of the dispute and do not restrict it by any means.
23. In paragraph No.25 of the said judgment, the Federal Court has held as follows:-
25. It was argued that though a dispute as to wrongful dismissal of an employee and as to compensation for the same may be within the ambit of the definition, yet a dispute as to reinstatement was outside its scope. Two consequences naturally flow from a decision that a dismissal was wrongful, (1)that the employee is entitled to damages and (2)that he is entitled to reinstatement. That the dispute regarding one relief is within the jurisdiction of the tribunal, not qua the other seems illogical. If the principal dispute which relates to wrongful dismissal or to a dismissal for an unjust cause or as a result of victimization is within the ambit of the definition, all that flows incidentally and consequentially from such a dispute (even if that consequential matter is by itself a dispute), cannot be held to be outside the scope of the words of the definition employment or non-employment.
24. A cursory reading of the said judgment would clearly reveal that if an employer contemplates turning out a number of people who are already in his employment, such contemplated non-employment would surely fall within the ambit of Section 2(k) of the Act.
25. In this case, the workmen are all victims of unfair labour practice. If they are not regularised, at any time, they can be sent out of employment. Further, in my considered opinion, the phrase in connection with the employment as employed in Section 2k of the Act would surely fall into its ambit, the dispute relating to the employment which is offended by the unfair labour practice as prohibited under Section 33 of the Act. In such view of the matter, I hold that the dispute relating to employment in defiance of the legislative mandate contained in Section 25-T of the Act is an industrial dispute as defined in 2(k) of the Act falling squarely within the jurisdiction of the Industrial Tribunal. Therefore, I reject the contention of the petitioner that the dispute raised in the given case was outside the scope of an industrial dispute. Thus, I hold that the Industrial Tribunal was right in entertaining the industrial dispute.
26. Now turning to the judgment of the Honble Supreme Court in Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana (cited supra) it was a case where the Maharashtra State Transport Corporation which is a state owned corporation had failed to regularise number of employees for a long time. Admittedly, those employees were not appointed as per the Standing Order of the Corporation. In effect, they were all irregularly employed as employees on piece rate basis. When a dispute was raised seeking regularisation, the Industrial Tribunal passed an award directing the employer to regularise their services. Relying on this judgment, it is contended by the learned counsel for the respondents that the said judgment is an authority for the proposition that the Industrial Tribunal has got vide powers to entertain the dispute relating to non-regularisation of workmen.
27. But, the learned Senior Counsel appearing for the petitioner would submit that it was a case relating to the Maharashtra Recognition of Trade Unions and Unfair Labour Practices Act, 1971 (hereinafter referred to as MRTU Act) and the same has nothing to do with the Industrial Disputes Act. A perusal of the MRTU Act would go to show that it was an act to define and provide for the prevention of certain unfair labour practices and to constitute Courts for enforcing the provisions relating to unfair labour practices. According to Section 3(16) of the MRTU Act unfair labour practices means unfair labour practice as defined in section 26 of the Act. Section 26 of the MRTU Act states that unless the context requires otherwise 'unfair labour practices mean any of the practices listed in Schedule II, III and IV. It needs to be noted that this provision is analogues to Section 2(ra) of the Industrial Disputes Act.
28. It is in this context, according to the learned Senior Counsel appearing for the petitioner, in Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana (cited supra) the Honble Supreme Court has held that the Industrial Tribunal / Labour Courts have got power not only to prohibit the unfair labour practice but also to take such affirmative action such as to regularise such employees. But, I am unable to persuade myself to accept the said contention for, in paragraph 36 of the said judgment, it has been held as follows:-
36. Umadevi does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of the MRTU and PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under Item 6 of Schedule IV where the posts on which they have been working exist. Umadevi cannot be held to have overridden the powers of the Industrial and Labour Courts in passing appropriate order under Section 30 of the MRTU and PULP Act, once unfair labour practice on the part of the employer under Item 6 of Schedule IV is established.
29. Of course, there is no such provision like Section 30 of the MRTU & PULP Act in the Industrial Disputes Act. However, as I have already stated, in my considered opinion, the provisions of the Industrial Disputes Act cannot receive such a narrow interpretation to make the Industrial Tribunals/Labour Courts as mute spectators when it is brought before the Industrial Tribunals or Labour Courts that unfair labour practice is being engaged by an employer. Of course, Section 31 of the Act punishes such employer who indulges in unfair labour practice. It is an offence under Section 31 of the Act which needs to be tried only by a Judicial Magistrate. The Labour Court cannot impose any punishment under Section 31 of the Act on the erring employer. If the Industrial Disputes Act is so interpreted as it is sought to be made by the learned Senior Counsel, then the victims of unfair labour practice shall have no remedy at all under the Act. Surely, that would have been the legislative intent. For the foregoing discussions, I hold that the Industrial Tribunal/Labour Court is empowered to deal with a dispute arising out of the non regularisation of the workmen who are the victims of unfair labour practice.
30. Now, let me move on to the next question as to whether the workmen concerned in this case are entitled for regularisation and whether the Industrial Tribunal was right in ordering for such regularisation in the context of the law laid down by the Constitution Bench in Umadevi case. A close reading of Umadevi's case would go to show that the Hon'ble Supreme Court reiterated the legal position that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 r/w Article 16 of the Constitution. The Hon'ble Supreme Court further went on to say that consistently with the scheme for public employment, it has to be necessarily held that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. In para 43 of the said judgement, the Hon'ble Supreme Court while dealing with the temporary employees has held as follows:-
43. ...... Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. ........
31. In para 45 of the judgement [ Umadevi's (3) case ], the Hon'ble Supreme Court has held as follows:-
45. ............A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. ....................
32. In para 47 of the judgement, the Hon'ble Supreme Court has held as follows:-
47. .....When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. ......
33. From the above judgement of the Hon'ble Supreme Court, it is crystal clear that the constitution Bench of the Hon'ble Supreme Court was more concerned with back door entries i.e., by overlooking the regular process of selection and appointment in the matter of public employments. The persons, who claim that they are eligible for such posts, should be allowed to participate in the contest and there must be a proper selection based on merits as per the relevant service regulations and then only such appointments could be made. No doubt, the Hon'ble Supreme Court has further held that in the event of illegally appointed temporary employees being made permanent, the same will surely offend Articles 14 and 16 of the Constitution because the other duly qualified persons are kept out of the contest for the said posts. However, in para 53 of the judgement , the Hon'ble Supreme Court has held that in the matter of irregularly appointed persons, the Union of India and the State Governments and their instrumentalities should take steps to regularise, as a one time measure, the services of such irregularly appointed persons. In para 53 of the judgement, the Hon'ble Supreme Court has held as follows:-
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [AIR 1967 SC 1071], R.N. Nanjundappa [1972) 1 SCC 409] and B.N. Nagarajan [1979 (4) SCC 507] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."
34. Therefore, it is crystal clear that while declaring the law that temporary employees cannot claim for absorption as regular employees, as of right, the Hon'ble Supreme Court has carved out an exception in respect of irregularly appointed temporary employees [not illegally appointed temporary employees]. After having elaborately discussed the law laid down in Umadevi's case, in Maharashtra State Road Transport Corporation and another v. Casteribe Rajya Parivahan Karmchari Sanghatana, (2009) 8 SCC 556, in paragraphs 32, 33 and 36, the Hon'ble Supreme Court has held as follows:-
32. The power given to the Industrial and Labour Courts under Section 30 is very wide and the affirmative action mentioned therein is inclusive and not exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer.
33. The provisions of MRTU & PULP Act and the powers of Industrial and Labour Courts provided therein were not at all under consideration in Umadevi (3). As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred to, considered or decided in Umadevi (3). Unfair labour practice on the part of the employer in engaging employees as badlis, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in item 6 of Schedule IV and the power of Industrial and Labour Courts under Section 30 of the Act did not fall for adjudication or consideration before the Constitution Bench.
... ... ... ... ... ... ... ...
36. Umadevi (3) does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of MRTU & PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under item 6 of Schedule IV where the posts on which they have been working exists. Umadevi (3) cannot be held to have overridden the powers of Industrial and Labour Courts in passing appropriate order under Section 30 of MRTU & PULP Act, once unfair labour practice on the part of the employer under item 6 of Schedule IV is established.
35. As I have already stated, the learned senior counsel appearing for the petitioner would try to persuade that the above observations made in Maharashtra State Road Transport Corporation's case cannot have bearing to the facts of the present case. Of course, there appears to be some force in the said argument, but I do not find any substance. Though it is true that in Section 30 of the MRTU & PULP Act, the Industrial Tribunals/Labour Courts have been given statutory power to pass appropriate orders, if once unfair labour practice by the employer is noticed. Admittedly, there is no similar specific provision contained in the Industrial Disputes Act. But, it is of no importance. As I have already held in the earlier paragraphs, though there is no such specific provision in the Industrial Disputes Act analogous to Section 30 of the MRTU and PULP Act, the Industrial Tribunals / Labour Courts constituted under the Industrial Disputes Act have got such power to give relief to the victims of the unfair labour practice. In Maharashtra State Road Transport Corporation' case, the Hon'ble Supreme Court has held that that the Industrial Tribunals / Labour Courts have got power to issue such a positive direction to regularise the temporary employees who were working for a number of years. In my considered opinion, though there is no such provision like Section 30 of the MRTU and PULP Act in the Industrial Disputes Act still, the existing provisions of the Industrial Disputes Act are sufficient for the Industrial Tribunals / Labour Courts to issue such an affirmative direction to the employer to regularise the services of the workmen who are the victims of unfair labour practice since such a dispute regarding non regularisation of employees who are the victims of unfair labour practice itself is an industrial dispute in terms of Section 2(k) of the Industrial Disputes Act.
36. A question would now arise as to whether the workmen in this writ petition were all illegally appointed. The answer is an emphatic no. They were all only irregularly appointed workmen. It is not the case that they did not possess necessary qualifications. Further, for these posts appointment need not be made by getting the names of the qualified candidates from the employment exchange. Though the procedure contemplated in the Standing Order of the ONGC was not followed when these workmen were appointed on temporary basis in the year 1988, still, I am of the view, they are entitled for regularisation. For this proposition, I may usefully refer to paragraph 46 of the Maharashtra State Road Transport Corporation's case which reads thus:-
46. We find merit in the submission of Mr.Shekhar Naphade, learned Senior Counsel for the employees that Standing Orders are contractual in nature and do not have a statutory force and breach of Standing Orders by the Corporation is itself an unfair labour practice. The concerned employees having been exploited by the Corporation for years together by engaging them on piece- rate basis, it is too late in the day for them to urge that procedure laid down in Standing Order No. 503 having not been followed, these employees could not be given status and principles of permanency. The argument of the Corporation, if accepted, would tantamount to putting premium on their unlawful act of engaging in unfair labour practice.
37. A reading of the above would make it clear that the Hon'ble Supreme Court was aware of the fact that the employees concerned in that case were also not appointed as per the procedures laid down in the Standing Orders pertaining to Maharashtra State Road Transport Corporation. But, the Hon'ble Supreme Court, after having taken note of the law laid down by the Hon'ble Supreme Court in Umadevi's case and having taken a particular note of the fact that the workmen therein were not appointed as per the procedures laid down in the Standing Orders, held that they are entitled for permanency. The Hon'ble Supreme Court was of the view that denial of permanency to such workmen would tantamount to putting premium on their unlawful act of engaging in unfair labour practice. In this case also , as I have already stated, since these workmen are all the victims of unfair labour practice for several years though they were not appointed by following the procedures laid down by the ONGC still, they are entitled for regularisation as their appointment cannot be stated to be illegal.
38. Now, coming to the judgements of this Court in [M.Rajan and others v. ONGC] W.P.No.906 of 1999 dated 04.01.2010 and [M.D.Iqbal Basha and others v. ONGC and two others] W.P.No.870 of 2004 dated 23.02.2010, as pointed out by the learned counsel appearing for the workmen, those are the cases where the workmen, instead of raising an industrial dispute, straightaway approached the High Court by way of writ petitions under Article 226 of the Constitution. It was in those circumstances, this Court in those cases, took the view that as held in Umadevi's case as well as in Umarani's case, the power under Article 226 of the Constitution cannot be exercised to issue a direction for regularisation. But, in the case on hand, the 1st respondent union has raised an appropriate industrial dispute and the same was referred under Section 10 of the Industrial Disputes Act by the Central Government. The reference was not challenged by the petitioner. As I have already stated, the Industrial Tribunal/Labour Court has got power to adjudicate upon the said issue. But, such power to adjudicate upon the industrial dispute cannot be exercised by the High Courts under Article 226 of the Constitution. That was precisely the reason why, in the aforesaid two cases, this Court declined to exercise its power under Article 226 of the Constitution so as to issue a direction for regularisation.
39. Very recently, yet another judge of this Court [Hon'ble Mr.Justice K.Chandru] had an occasion to deal with an identical issue in Hindustan Petroleum Corporation Limited and another v. The Presiding Officer, Central Government Labour Court-cum-Industrial Tribunal, Chennai and others, 2008 (4) CTC 819. In that case, the learned Judge, having considered Umadevi, Umarani as well as the Maharashtra State Road Transport Corporation's cases, in para 33 has held as follows:-
33. Therefore, the present issue will have to be decided in the light of the parameters indicated by the latest decision of the Supreme Court in O.N.G.C. Case (cited supra) which had taken note of all the contentions raised by the learned Advocate General. The sum and substance of the decisions are that if it is established that the workmen were employed directly by HPCL, even on temporary basis, they are eligible for regularisation provided it is shown that they have not come through any back door. One such back door entry as indicated in the decisions of the Supreme Court in Uma Rani and Uma Devi (3)'s cases (cited supra) is not getting the names sponsored through the Employment Exchange.
40. The learned Judge has also taken note of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 [Tamil Nadu Act 46 of 1981]. The said Tamil Nadu Act 46 of 1981 was upheld by the Hon'ble Supreme Court in State of Tamil Nadu v. Nellai Cotton Mills Limited, 1990 (2) SCC 518.
41. A deep reading of the said Act would go to show that it does not distinguish between regularly appointed temporary employees and irregularly appointed temporary employees. It is an affirmative Act in favour of the temporary employees who have worked for more than 480 days in a period of two calender years to get regularised in their service. To repeat, it is immaterial as to whether such employees were regularly appointed by following the procedure for selection and appointment or irregularly appointed. When the said Act has been upheld by the Hon'ble Supreme Court, in my considered opinion too, there can be no gain saying in contending that the Industrial Tribunal / Labour Court cannot issue a positive direction to regularise irregularly appointed temporary employees who had worked for a period of more than 480 days in two calendar years. This is, exactly, the view taken by the learned single Judge [Justice K.Chandru] of this Court in paragraph 38 of the Judgement which runs as follows:-
38. Once there is a valid State enactment providing for relief to such of those workmen deemed permanency to those who had completed 480 days' of service within a period of two calendar years then, such workmen getting permanent status cannot be questioned by any Management. Such conferment of permanent status to the workmen cannot be labelled as violation of Articles 14 and 16 of the Constitution. The effect of a local enactment conferring permanent status to workmen was never considered by any Court so far.
42. Coming to the factual matrix, as I have already stated, there is no dispute that these petitioners were appointed on temporary basis in the year 1988 and they have been continuously working [i.e.,] for more than 480 days in two calendar years. Of course, their appointments are all irregular, even then they are entitled for regularisation, in view of the law laid down by the Hon'ble Supreme Court in Maharashtra Road Transport Corporation's case and followed by this Court in Hindustan Petroleum Corporation Limited v. The Presiding Officer, Central Government Labour Court-cum-Industrial Tribunal, 2008 (4) CTC 819. Thus, I do not find any infirmity in the award passed by the Industrial Tribunal warranting interference at the hands of this Court.
43. In the result, the writ petition fails and the same is accordingly dismissed. No costs.
Index : yes 04.01.2011
Internet : yes
kmk
To
1.The Industrial Tribunal, Chennai.
S.NAGAMUTHU. J.,
jbm / kmk
Pre Delivery Order
in
W.P.No.1846 of 2000
04.01.2011