Gujarat High Court
Engineering Mazdoor Sangh vs Oil And Natural Gas Corporation Ltd. on 15 February, 1999
JUDGMENT M.R. Calla, J.
1. This Special Civil Application is directed against the award dated 6th June 1994 passed by the Industrial Tribunal (Central), at Vadodara in Reference (ITC) No. 6 of 1991 between the Regional Director, ONGC and Engineering Mazdoor Sangh. The operative part of the order passed by the Industrial Tribunal reads as under:
"ORDER The present reference is ordered to be restricted to the workmen whose names appear in the Schedule to the affidavit Exh.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 vacancies to the regular posts arise, they shall consider the names of those workmen in the same descending order in which they are mentioned in the Schedule and shall regularise 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 that the workmen shall 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 hereafter 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, Vadodara.
Dt/- 6th June, 1994. Sd/- (Illegible) Industrial Tribunal (Central) V A D O D A R A"
2. The Engineering Mazdoor Sangh on behalf of its members who were recruited by Oil & Natural Gas Commission (ONGC) as casual/contingent/ temporary workmen raised an industrial dispute in the form of demand for regularisation of these workmen. The Ministry of Labour, Govt. of India, by its order dated 18th July 1991 made the reference for adjudication by the Industrial Tribunal (Central), at Vadodara, in the following terms:
"Whether the demand of Engineering Mazdoor Sangh, Vadodara that the employees employed in the ONGC, Western Region, Vadodara, who have completed 240 days or more in the Commission as casual/ contingent/temporary be regularised as permanent workmen from the date of their engagement in ONGC, with other consequential benefits, is justified. If yes, to what reliefs the said workmen are entitled?"
3. The case of the petitioner Sangh before the Tribunal was that several field parties on behalf of the ONGC start working during the field season and recruit casual/contingent/temporary workmen on large scale. Each party recruits about 200 such workmen. The work is reduced during off season and therefore, the services of the casual/contingent/temporary workmen are terminated. It was also the case of the petitioner Sangh before the Tribunal that the ONGC is engaged in an unfair labour practice to employ the same workman under a different name so that the benefits of the provisions of the Standing Orders and other relevant provisions of Industrial Law are not available to them and the employees are just forced and left with no option but to accept the employment under different names. In any case, the demand was that those employees who had completed 240 days of the work as casual/contingent/ temporary workmen should be regularised. As against it, the case of the ONGC was that for the purpose of carrying out seismic survey and other prospective operations and for carrying out geological and geophysical surveys for the exploration of petroleum, 13 field parties were at work in Western Region of the Commission. It was also pointed out that these field parties carry out seismic investigation at different areas and these parties were normally working during winter and summer for about nine months and when the monsoon is in the offing, the field parties close their work. Each field party needs about 150-200 casual/contingent/temporary workmen during the field season and the Chief of each such party is authorised to recruit such casual/contingent/temporary workmen for a specified period only and no more. According to ONGC, such casual workmen have no right to regular posts. It was also the stand of the ONGC that it had framed ONGC (Recruitment and Promotions) Regulations, 1980 for making appointment to the regular posts and further that there are certified Standing Orders which also govern the recruitment procedure. That the vacancies on the regular posts are required to be notified in the Employment Exchange under the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 and it is not permissible for the ONGC to overlook the names of those who are recommended for recruitment through the Employment Exchange. It was also held out that the party chiefs while making recruitment of the casual/contingent/temporary workmen, do not give due regard to the age requirement and educational qualifications laid down in the Rules and, therefore, such employees cannot be regularised merely because they have completed 240 days and that if such employees are made permanent as a matter of course, it would entail violation of Articles 14 and 16 of the Constitution of India as the candidates coming through Employment Exchange would not get any opportunity to compete for such posts. It was also pointed out that unless it was established that regular posts are vacant on which such casual/contingent/temporary workmen could be appointed, their regularisation was out of question. That the Commission takes only unskilled manual work from casual/ temporary workmen and pays them minimum wages as provided for by the Minimum Wages Act and also 25% extra and, therefore, there is no exploitation of labour by them.
4. The impugned award shows that on 21.7.1992, the Union gave an application Exh.14 enclosing therewith a list of 269 workmen who had completed 240 days' work in ONGC as casual/contingent/temporary workmen. During the pendency of this reference for adjudication before the Tribunal, on 28th April 1993, the Union filed a complaint under Section 33A of the Act being Complaint (ITC) No. 5 of 1993 alleging that the ONGC had started giving work to contractors in preference to the casual/contingent/ temporary workmen and had thus altered the conditions of service of the workmen in breach of Section 33(1)(a) of the Industrial Disputes Act. On 30th October 1993, the Tribunal held that it was not permissible for the Tribunal to examine whether the work of the ONGC was seasonal or not and that the ONGC had committed breach of any conditions of the service of the workmen by giving work to contractors in preference to the casual/ contingent/temporary workmen. By this very order dated 30th October 1993, the Tribunal also directed the ONGC to follow the principle of "Last come - First go" in case they wanted to terminate the services of casual/temporary workmen on the ground that they had no work and that in such case, the ONGC must obtain express permission in writing from the Tribunal under Section 33(1)(a) of the Act. On 25th April 1994, the ONGC sought permission to terminate the services of casual/temporary workmen as per the list enclosed with such application at Exh.32 in Complaint (ITC) No.5 of 1993. On 27th April 1994, the ONGC gave a corrected list of workmen whom they wanted to terminate and the number of such workmen who were sought to be terminated was pointed out to be 2217. The notice of this application was served upon the Engineering Mazdoor Sangh and after hearing both the sides, by an order dated 30th May 1994, passed on Exh.32, the Tribunal permitted the ONGC to terminate the services of casual/contingent/ temporary workmen except 189 out of 269 workmen who were shown by the Union in the list along with Exh.14. The figure of 189 workmen was arrived at because, 74 workmen had not responded to the call of the ONGC to come for work and six workmen had already been regularised. The Tribunal gave an option to the ONGC to examine witnesses to show that actually it had no work which these 189 workmen were capable of doing. In this Complaint (ITC) No.5 of 1993 while the Union examined four workmen to prove that the ONGC was resorting to any unfair labour practices and had started giving work to contractors in preference to the casual/contingent/ temporary workmen. The ONGC did not lead any oral evidence in the said complaint.
5. In the main Reference, i.e. Reference (ITC) No.6 of 1991 itself, neither party led any oral evidence. The Tribunal, therefore, proceeded to consider the dispute in the Reference with regard to 189 workmen for whom the permission for termination had been granted by the Tribunal and for this purpose, the Tribunal addressed itself to the ONGC (Recruitment and Promotion) Regulations, 1980 and the Certified Standing Orders. The Tribunal framed the following three Issues:
"(i) Who are eligible to be considered for appointment to the regular posts and whether the present workmen can be included in such workmen?
(ii) Whether the present reference should be restricted to above workmen who are members of the Engineering Mazdoor Sangh and whose names appear in the list along with Ex.14?
(iii) What relief can be granted and what final order?
With regard to Issue No.(i), the Tribunal held that only a temporary workman who has put in not less than 240 days attendance in a period of 12 consecutive months will be entitled to be considered for conversion as regular employee, but the temporary workmen as shown in the list mentioned in the Schedule to the affidavit Exh.48 in the Complaint (ITC) No.5 of 1993 have been found for the reasons discussed in the award and, therefore, they should be considered for conversion as regular employees as per the principles indicated in the body of the award. Issue No.(ii) was answered in affirmative meaning thereby that the reference was restricted to those workmen who are members of the Engineering Mazdoor Sangh and whose names appeared in the list along with Exh.14 on the basis of the findings on the aforesaid Issues No.(i) and (ii), the final order as quoted in the earlier part of this order was passed.
6. I do not consider it necessary to make reference to other points because the pointed question for consideration in this case is about the validity of the directions as have been issued by the Tribunal vide the impugned award dated 6th June 1994. The petitioner Union's challenge to the directions of the Tribunal is based on the following grounds:
(i) The Tribunal should not have kept the relief restricted only to the workmen whose names appeared in the Schedule to the Affidavit Exh.48 in the Complaint (ITC) No.5 of 1993.The reliefs should have been given to each and every employee who had completed 240 days of service in terms of the Standing Orders.
(ii) The direction for consideration against regular posts should not have been made to be contingent to the availability of the vacancies and it should not have been imposed the condition of fulfillment of prescribed educational qualifications.
(iii) That instead of giving age relaxation of one year in respect of a spell of 240 days of work, the age requirement should have been directed to be seen at the time of the initial entry or the initial appointment as casual/contingent/ temporary workmen.
(iv) The condition that the workmen shall have to compete with the other workmen seeking employment through Employment Exchange was wholly unwarranted because, the claim for regularisation in the instant case was based on completion of 240 days in accordance with the Standing Orders.
7. As against it, the award of the Tribunal is sought to be defended by the ONGC on the basis that the reliefs could not be given to those workmen whose names had not been included by the Union in the Schedule, there was no question of giving regular appointment unless the vacancies were available, those who were sought to be regularised have to fulfil the prescribed educational qualifications and age requirements in terms of the Regulations framed by the ONGC and for the purpose of regular appointment, such workmen have to compete in the process of recruitment under the Regulations along with other candidates seeking employment.
8. I have heard learned Counsel for both the sides and have gone through the impugned award and other relevant record available before this Court. So far as the first ground of challenge that the relief should not have been restricted to the workmen whose names were included in the Schedule to the affidavit Exh.48 in the Complaint (ITC) No.5 of 1993, it may be observed at the very outset that the reference as was made before the Tribunal by the Central Government shows that it was with regard to the employees employed in the ONGC who had completed 240 days or more in the Commission as casual/ contingent/temporary workmen and therefore, there is no question of limiting the scope of this reference to the names included in the Schedule by the Union. The names as were included by the Union in the Schedule, could at the most, be treated to be illustrative by the Tribunal for the purpose of considering the question which was involved in the case, but by no means, this list could be taken to be exhaustive. True it is, that a Union while raising the dispute would give the particulars only with regard to its members because, the data of such members is readily available with it, but when a dispute comes for adjudication by way of reference before the Tribunal, the cases of those who are similarly situated to such employees whose case is sought to be espoused by the Union cannot be excluded and the parity has to be maintained. The terms of the reference itself show that the reference was to be answered as to whether the employees in the ONGC who had completed 240 days or more in the Commission as casual/contingent/temporary be regularised as permanent workmen from the date of their engagement in the ONGC. Therefore, the touch stone for giving the relief was the completion of 240 days or more in the Commission, from the date of their engagement in ONGC. Consequently, notwithstanding the inclusion of the name of such an employee in the Schedule to the affidavit Exh.48 as was given by the Union, the workmen who were similarly situated to those employees who were included in the Schedule would also be entitled to the identical treatment. The Tribunal's direction to restrict the relief only to the workmen included in the Schedule to affidavit Exh.48 in the Complaint (ITC) No.5 of 1993, therefore, cannot be sustained and it is held that the other employees who had also completed 240 days and who were otherwise similarly situated to those employees are also entitled to the same relief.
9. So far as the question of regularisation is concerned, I find that this question of regularisation deserves to be examined in two contexts. One is that the question of regularisation as permanent workman and other is to treat such employees at par with the regular employees for the various benefits. The terms of the reference as it was made show that the question referred was as to whether the employees who had completed 240 days or more as casual/contingent/temporary be regularised as permanent workmen from the date of their engagement in the ONGC. The Standing Orders are framed under the Industrial Disputes Act, 1947 and the Certified Standing Orders for employees of the ONGC came into force on 15th July 1962. These Standing Orders provide the classification of workmen. Standing Order No.2(ii) is reproduced as under:
"2.(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".
According to Standing Order 2(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. This Standing Order, therefore, clearly postulates that once a workman has acquired the status of a temporary workman on completion of 180 days of attendance in any period of 12 consecutive months, he becomes entitled to be considered for conversion as a regular employee after putting in 240 days of attendance in any period of 12 consecutive months. Thus, putting in 240 days of attendance in any period of 12 consecutive months is a condition precedent or prerequisite so as to claim the consideration for conversion as regular employee, provided he possesses the minimum qualification prescribed by the Commission. Thus, there is a twin requirement to claim consideration for conversion as regular employee; one is of his completion of 240 days of attendance in any period of 12 consecutive months and the other is possessing the minimum qualification prescribed by the Commission. In this context, while applying this Standing Order with regard to those workmen who have completed 240 days of attendance in any period of 12 consecutive months and who also possess the minimum qualifications, the question arises that the requirement of minimum qualifications has to be seen with reference to each post because, it has been given out by learned Counsel for ONGC that the employees who have been working as casual/contingent/temporary workmen have been working as employees in general and it cannot be said that they are working against any particular post and, therefore, the argument raised on behalf of the ONGC is two-fold. One is that such employees do not hold any post with reference to which the question of minimum qualifications can be examined in the light of the ONGC (Recruitment and Promotion) Regulations, 1980 and the other is that in absence of availability of any permanent post, there is no question of consideration of giving regular appointment against the permanent post.
10. Mr.J.S.Yadav, on behalf of the petitioner Union has placed reliance on AIR 1977 SC 2051 in the case of S.B.Patwardhan and anr. v. State of Maharashtra and ors. The Supreme Court has very clearly observed in paragraph 39 at page 2065 that, confirmation is one of the inglorious uncertainties of Government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The aforesaid observation was made by the Supreme Court in the context of the factual position that officiating Deputy Engineers were not confirmed even though substantive vacancies were available in which they could have been confirmed. It was further observed by the Supreme Court that confirmation does not have to conform to any set rules and whether an employee should be confirmed or not depends on the sweet will and pleasure of the Government. In Baleshwar Dass and ors. v. State of U.P. and ors., reported in AIR 1981 SC 41, the Supreme Court has held in paragraph 29 of the judgment that substantive capacity is a flexible expression which cannot be frozen by current officialese, nor by the conditions that obtained in the remote past when the rules were framed. On the contrary, its meaning must be consistent with Art.16 and must avoid the pitfalls of arbitrariness and irrational injustice. It was further held that the appointment need not necessarily be to a permanent post. It is sufficient even if it is to a temporary post of long duration. In a Department which had permanent posts and temporary posts of a quasi-permanent nature, there is not much to distinguish the quality of service as between the two. In this paragraph, the Supreme Court has also made reference to Patwardhan's case (supra) and has noted the observations made in Patwardhan's case (supra) that there is no universal rule either that a cadre cannot consist of both permanent and temporary employees or that it must consist of both and further that, the fact that the permanent strength of the cadre was determined on the basis of permanent posts at any given time, cannot detract from the position that even temporary posts were treated as additions. Therefore, this Court's view is fortified by the decisions rendered by the Supreme Court on the point that for regular appointment, it is not necessary that there must be a permanent post, the regular appointment is possible against a temporary post also. In the instant case, the employees who are covered by the terms of the Reference are only required to be treated as at par with the regular employees by way of conversion subject to two conditions as mentioned in the Standing Orders and in view of the discussion as aforesaid, I do not find that there is any legal impediment against the employees who have been continuing for number of years in certain cases for 12 years or more so as to consider them at par with the regular employees and as a matter of fact, the Standing Order itself suggests the permissibility of such conversion and for the purpose of treating them at par with the regular employees, it cannot be pleaded that existence of permanent posts is a condition precedent or pre-requisite. In this context, it is clear that on fulfilment of the two conditions, namely, completion of 240 days as provided in the Standing Order and the possession of the minimum qualifications with reference to the post against which the concerned employee has been discharging his duties will be the sufficient requirement and the benefit of treating such employees at par with the regular employees cannot be avoided on the basis that they have to wait till the availability of a permanent post. Mr.Yadav has submitted that even those workmen who did not possess initially the minimum prescribed qualifications at the time of appointment, the regularisation cannot be refused to them if they have gained sufficient experience after many years of service and the benefit of regularisation cannot be denied or refused to them on the ground that they did not possess the requisite qualifications. In support of his argument, he has placed reliance on AIR 1990 SC 371, in the case of Bhagwati Prasad v. Delhi State Mineral Development Corporation. The relevant portion of this judgment as contained in paragraph 6 is reproduced as under:
"The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed between the period 1983 and 1986 and ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack prescribed educational qualifications. In our view, three years' experience, ignoring artificial break in service for short period/periods created by the respondent, in the circumstances, would be sufficient for confirmation. If there is a gap of more than three months between the period of termination and re-appointment, that period may be excluded in the computation of the three years period. Since the petitioners before us satisfy the requirement of three years' service as calculated above, we direct that 40 of the senior-most workmen should be regularised with immediate effect and the remaining 118 petitioners should be regularised in a phased manner, before April 1991 and promoted to the next higher post according to the Standing Orders. All the petitioners are entitled to equal pay at par with the persons appointed on regular basis to the similar post or discharge similar duties, and are entitled to the scale of pay and all allowances revised from time to time for the said posts. We further direct that 16 of the petitioners who are ousted from the service pending the writ petition should be reinstated immediately. Suitable promotional avenues should be created and the respondent should consider the eligible candidates for being promoted to such posts."
11. In the case of State of Haryana and ors. v. Piara Singh and ors., reported in AIR 1992 SC 2130, the Supreme Court has laid down various principles with regard to the regularisation of services in different types of cases. The Supreme Court has ruled that the Court comes into the picture only to ensure observance of fundamental rights, statutory provisions, Rules and other instructions, if any, governing the conditions of service and the main concern of the Court in such matters is to ensure the Rule of Law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees as the case may be. As is often said, the State must be a model employer. It is for this reason that it is said that a person should not be kept in a temporary or ad-hoc status for long. Where a temporary or ad-hoc appointment is continued for long, the Court presumes that there is need and warrant for a regular post and accordingly directs regularisation. While laying down the guidelines as aforesaid, in paragraph 14, the Supreme Court has also noticed the prescribed requirement that the employees must have possessed the prescribed qualifications for the post at the time of his appointment on ad-hoc basis and that it is equally a valid condition. In paragraph 25 of the very same judgment, the observations have been made concerning issue of regularisation of ad-hoc/temporary employees. It has been observed that if for any reason an ad-hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to Rules and so far as work-charged employees and casual labourers are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to the availability of the work. If a casual labourer is continued for a fairly long spell, say two or three years, a presumption may arise that there is a regular need for his services. In such a situation, it becomes obligatory on the part of the concerned authority to examine the feasibility of his regular appointment. While doing so, the authorities ought to adopt the positive approach coupled with their sympathy for the person. As has been repeatedly stressed by the Supreme Court, security of tenure is necessary for an employee to give his best to the job. All these observations have been made by the Supreme Court in the context of the facts which were available before the Court in that case, nevertheless, the principles as have been laid down are certainly relevant as guidelines in the matters of considering the question of regularisation.
12. Mr.Thakore has cited the case of Mohd. Yunus v. Mohd. Mustaqim and ors., reported in AIR 1984 SC 38 in which the scope of the supervisory jurisdiction of the High Court under Article 227 has been decided. In yet another case of Vithalbhai Babaldas Patel v. Chairman, Oil & Natural Gas Commission, Dehradun & ors., reported in 87(2) GLR 1308, it has been held that the regular appointments in organisation like the Commission have to be made in accordance with the settled law or Rules or Regulations governing such appointments and prescribed procedure and on the strength of this decision, Mr.Thakore has supported the impugned order. There cannot be any quarrel with the proposition of law as has been laid down in the case of Mohd. Yunus (supra) with regard to the scope of Article 227 of the Constitution of India. So far as the case of Vithalbhai Babaldas Patel (supra) is concerned, it may be straightway observed that this case proceeds on the question of giving regular appointments. It has already been dealt with in the earlier part of this order that in the facts of the present case, there is no question of giving a regular appointment as such, the question is to give effect to the terms of the Standing Orders according to which the status of regular appointee is to be considered by way of conversion of a temporary employee when he completes 240 days or more of service continuously in one year and he fulfils the minimum qualifications. Therefore, this decision of the Single Bench of this Court hardly comes in the way of the employees concerned in this case with regard to their claim for being treated at par with other regular employees. In the case of Dr.Arundhati Ajit Pargaonkar v. State of Maharashtra and anr., reported in JT 1994 (5) SC 378, it has been held that the eligibility and continuous working for howsoever long periods should not be permitted to over-reach the law; the requirement of Rules on selection through the Commission cannot be substituted by humane considerations. In the facts of the present case, if the qualifications were possessed at the time of initial entry and even now if the qualifications as were laid down in the ONGC (Recruitment and Promotions) Regulations, 1980 are invoked for the purpose of applying the benefit as contemplated under the Standing Orders, it cannot be said that it is a case of over-reaching the law or that anything is being directed on humane considerations. Therefore, this decision is of no avail to the respondent in the facts of the present case. On the contrary, it is noticed that it would be a fair enforcement of what is contemplated under the Standing Orders if the temporary employee who had completed 240 days and who possessed the minimum requirements are considered at par with the regular employees by way of conversion as contemplated by the Standing Orders and hence, there is no question of over-reaching the process of law. In the case of Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi & ors., reported in JT 1992 (1) SC 394 on which the reliance has been placed by Mr.Thakore on behalf of the ONGC, the Supreme Court considered that the petitioners who were employees on daily wage basis under Jawahar Yojna under DRDA, the scheme was meant for rural and poor persons and not to provide the right to work. The scheme was meant for rural and poor persons and it was found that the right to regularisation would frustrate the scheme and, therefore, the Supreme Court considered that those who were employees under a particular scheme could not ask for more than what the scheme intended to give them; to get an employment under such scheme and to claim on the basis of the said employment, a right to regularisation, was to frustrate the scheme itself; no Court can be a party to such exercise and it is wrong to approach the problems of those employed under such schemes with a view to providing them with full employment and guaranteeing equal pay for equal work. Such a fact situation is clearly wanting in the case at hand. It is not a case in which the employees were taken in employment under any particular scheme. The schemes have been going on in the ONGC for the purpose for which the Commission exists and for that purpose if the services of the employees have been utilised for a period over a decade and the question comes up with regard to their being treated at par with the regular employees and the consequential regularisation in that sense, the grievance of such employees cannot be termed as if they had been appointed under a particular scheme. In fact, the Supreme Court itself has observed in this very judgment that the employee is given first appointment for temporary periods with technical breaks to circumvent the relevant Rules even if he has continued for 240 days or more with a view to deny them the benefit of regularisation, knowing the judicial trend that those who have completed 240 days or more may claim entitlement for regularisation. In the instant case, there is no such circumventing Rules at any point of time. On the contrary, the concerned employees have worked for number of years and it is found that if they fulfills the conditions prescribed in the Standing Orders, they cannot be denied the benefits to which they are otherwise entitled. In the case of Bashir Ahmad & ors. v. State of Punjab and ors., reported in 1996 (4) JT SC 285, it was held that the Rule prescribing the qualifications cannot be read down and the appellants not fulfilling the criteria cannot be considered for recruitment. One fails to understand as to how this judgment can be of any avail to the respondent in the facts of the present case when the qualifications prescribed under the Regulations of 1980 as the same were in force at the relevant time are to be adhered to, the same are not to be read down and when it has been submitted that there is no employee who lacks the minimum qualifications in terms of the Regulations of 1980. On the contrary, it has been stated by the learned Counsel for the petitioner that certain employees are Graduates and Post Graduates and there is no question of lack of qualifications.
13. True it is, that the regularisation as permanent workman cannot be given in absence of availability of a permanent post as the law is settled that permanent appointment cannot be given in absence of the permanent post, but it is equally settled that the availability of a permanent post is a fortuitous circumstance and consequential confirmation of any employee is a known inglorious uncertainty in the service career and therefore, the regularisation as permanent workman may depend upon the availability of a permanent post. However, it is also trite law that regular appointment can be given even against a temporary post and therefore, there is no ban against treating a person to be regular even if the permanent post is not available. In view of this position of law, I am inclined to hold that regularisation as a permanent employee cannot be given unless there is a permanent post, but at the same time, an employee who has been working for years together can certainly be considered at par with other regular employees for the purpose of all other benefits and so far as the Standing Order 2(II) to which the reference is made hereinabove is concerned, it is very clear that it speaks of consideration for conversion as regular employee. The consideration for conversion as regular employee cannot be compared with regularisation as permanent workman and for the purpose of conversion of workman as regular employee, what is to be seen is the completion of 240 days and the minimum qualifications prescribed by the Commission. It is, therefore, not a case of giving a regular appointment but a case of conversion as regular employee as contemplated by the Standing Orders. It appears that the Tribunal has adverted itself to the considerations of giving regularisation as a permanent workman which are different than those which are meant for treating an employee as a regular employee subject to the fulfilment of the conditions contemplated under the Standing Orders. The conversion as a regular employee and the appointment as a regular employee are two different and distinct terms. For the purpose of seeking a regular appointment against a permanent post, the conditions which have been imposed by the Tribunal may be necessary, namely, to compete with the open market candidates subject to the availability of the permanent post. But, for the conversion of a temporary employee to be regular employee on completion of 240 days subject to his fulfilling the minimum qualifications has nothing to do with the claim for a permanent appointment. The other objection which has been taken by the learned Counsel for ONGC is with regard to the minimum qualification and it has been submitted that the minimum qualification is to be seen with reference to the post against which the employee is to be treated as a regular employee and it has been argued that unless a post becomes available against which he is to be treated as a regular employee, the question of minimum qualification cannot be considered. This submission, in the opinion of this Court, is highly presumptive, rather preposterous for the simple reason that the Tribunal itself has proceeded on the basis of the Schedule with the affidavit Exh.48 as has been filed by the ONGC and as per this Schedule, some workmen have been working from 1981 and some workmen have been working since 1989. As has been mentioned in the body of the award, running page 30, internal page 9 of the paper book of the Special Civil Application, at running page 33 and internal page 12, it has been noted that some of the workmen are at the service of the ONGC now for more than 12 years. If the employees have been working for such a long period, apparently, if at all their qualifications are to be examined for the purpose of treating them at par with the regular employees, the qualifications have to be seen with reference to the post against which they have been working and against which they are sought to be treated as regular employees. It has been given out by the learned Counsel for the Union that each and every employee who is sought to be treated at par with the regular employees fulfills the minimum qualifications prescribed for the post on which he or she has been working in terms of the ONGC (Recruitment and Promotion) Regulations, 1980. It has been pointed out that such employees have been working as Clerks, Typists, Stenographers, Store Keepers, Drivers, Peons, and other posts in Class-III and Class-IV and they do fulfil the qualifications which are prescribed for each of such posts in terms of the Regulations of 1980 and therefore, the objection with regard to the requirement of minimum qualifications is no hurdle against any of them for the purpose of treating them at par with the other regular employees holding identical posts. There is also no dispute that at least about 179 employees have completed 240 days within the meaning of the Standing Orders for the purpose of being considered for conversion as regular employees, 10 had not completed 240 days as agreed by the Union itself and out of the remaining 259, 74 employees did not respond and six employees had already been regularised. Thus, 259 - 80 = 179. For these 179 employees, there is no dispute of their completion of more than 240 days and the record shows that the employees for whom the relief for regularisation is claimed have been working for number of years ranging upto 12 years and even more than that. In this view of the matter, their minimum qualifications are to be seen with reference to the post against which they are working at present, in accordance with the ONGC (Recruitment and Promotion) Regulations, 1980. Thus, non-availability of a permanent post is no bar against the consideration of these employees to be at par with the regular employees for the purpose of giving them all the benefits at par with the regular employees except the status of a permanent workman. For this purpose, there is no question of giving them relaxation in age of one year by treating completed set of 240 days for each year as has been directed by the Tribunal because, the age requirement is to be seen in respect of these employees at the time when they initially joined and, therefore, in case any of these employees who has completed 240 days was within the age limit at the time of initial entry, there is no question of depriving him of the relief now on the ground that he has become over age and/or that he is entitled to the benefit of one year's relaxation only for each completed set of 240 days. Aging is a process which no one can stop and merely because they were not considered for conversion as regular employees or for the purpose of giving the benefits at par with the regular employees and the same has to be considered on the basis of the award given by the Tribunal or as a result of any order passed between the litigating parties at any subsequent stage, the relief cannot be denied/curtailed/ truncated on the ground of age and the age requirement is to be seen at the time when they had made the initial entry with the ONGC.
While making a reference to the requirement of 240 days, it may be mentioned that the Tribunal itself has recorded a finding of fact against the respondent Commission that it is engaged in unfair labour practice inasmuch as the ONGC had shown in the Schedule the number of days put in by each workman in the years 1989-90, 1990-91, 1991-92 and 1992-93. The Tribunal noticed that if these figures are taken to be correct, not a single workman could compete 240 days in a single lot of 12 consecutive months in these four years. The ONGC then showed number of days put in by each workman during the span of about eight years, i.e. 1981 to 1989 and tried to show that maximum number of days put in by one workman for this span of time is 869 days and thereafter dividing this figure by eight, it was shown that even this workmen who had completed 869 days, could not complete 240 days in consecutive 12 months. It is rather a strange way of showing the impossibility of working for 240 days in consecutive 12 months. It was not a case in which the average of eight years was to be found so that against total working days of eight years divided by eight, it does not come out to be as such and, therefore, 240 days have not been completed. The Tribunal rightly noted that if this test is strictly applied as per Rule 2 of the Certified Standing Orders, not a single casual workman could become temporary workman so as to be eligible to be considered for conversion as regular employee. In paragraph 13 of the impugned award, the Tribunal also noted the deposition made by the workmen as witnesses. While referring to deposition of Bapu Laxman, witness no.1 Exh.7, it has been recorded that he joined the service of ONGC as a contingent labourer in 1986 and was given employment intermittently. On 1.3.1988, the controlling officer told him that a contingent workman could not be kept in employment for more than 180 days and therefore, he was forced to assume a false name, "Sanjay" from 1.3.1988 to 20.6.1988. The same person was yet obliged to assume another name, "Mukesh" for some time. This witness admitted in his cross examination that whether his name was given out as "Bapu" or "Sanjay" or "Mukesh", the wages were received by him as he was the same person who worked in three different names, as otherwise, he would have been jobless and ONGC would not have given the appointment, but for the change of his name. This part of his deposition was not challenged in the cross-examination. Yet another witness of the Union, Prabhunath Ramnarayan Mishra, in his deposition at Exh.12 says that occasionally he used to change his name such as,"Birendrakumar Harshnarayan Mishra", "Ramakant Ramnarayan Mishra", "Shivsagar" etc. He was also subjected to cross-examination at length by ONGC, but no suggestion was made to him that why did he assume such different names. The fourth witness Avadeshkumar Ramvilas Upadhyay, in his deposition at Exh.24 stated in his examination-in-chief that he had to change the name at the instance of party Chief K.S. Kalyan. He further stated that another party Chief K.N.Rao also required him to change his name. This witness was not subjected to cross-examination at all. The Tribunal has also referred to the photographs of witness Bapu Laxman on his application for employment which bear different names and it clearly shows that this workman did assume different names although on his applications the photograph was the same. It is, therefore, transparently clear that if a workman had completed 180 days in 12 consecutive months, he ceases to be casual employee and becomes a temporary employee and if such temporary employee completes 240 days in 12 consecutive months and he also becomes eligible to be converted as regular employee and the ONGC was not willing to confer this status to temporary workman or the entitlement for consideration as regular employee by conversion and therefore, the employees had to seek employment in different names after completing 180 days. Thus, the workman who has continued for a period of 180 days or more than 240 days is the same. All that has happened is that he has continued under different names although ONGC as well as the employees both have been party to this device, the employees had no choice and they preferred to change their names to earn their bread, lest, they would have been deprived of their wages. But the fact remains that the ONGC deprived these very employees of the status which otherwise they would have attained after 180 days or 240 days and certainly this is a case of unfair labour practice and the benefit of continuity of service by 180 to 240 days should have been given to such employees who had worked under different names and merely because they were working under different names, it cannot be pleaded that they had not completed 240 days and, therefore, even if an employee has worked for more than 240 days under different names, he will not be deprived of the consequential status in terms of the Standing Orders and the benefits which would have otherwise enured to him would not be denied to him and the unfair labour practice of the ONGC will be no bar against their claim for being considered for conversion as regular employees or for being treated at par with the other regular employees.
14. Whereas it is a case of consideration for conversion as regular employees and not a case of substantive appointment against the permanent post, for the purpose of consideration for conversion as such, it does not appear to be necessary in terms of the Standing Orders for these employees to compete with the open market candidates and, therefore, this direction as has been given by the Tribunal that they will have to compete with other workmen seeking employment through Employment Exchange, appears to be unwarranted and uncalled for.
15. The upshot of the aforesaid adjudication is that this Court finds that the impugned award dated 6th June 1994 passed by the Industrial Tribunal (Central), at Vadodara, is required to be modified and the same is hereby modified as under:
(1) The relief will not be restricted only to those workmen whose names 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 Orders 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.
(2) 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 benefits 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.
(3) 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 workmen seeking employment through Employment Exchange or similar manner as has been mentioned by the Industrial Tribunal in the impugned award, simply does not arise.
16. This Special Civil Application accordingly succeeds in part and the impugned award dated 6th June 1994 passed by the Industrial Tribunal (Central), at Vadodara, in Reference (ITC) No. 6 of 1991 is modified in the terms as aforesaid and these modified terms would govern the rights and obligations of the parties. The respondent ONGC would take appropriate steps in accordance with the modified terms as aforesaid and issue appropriate orders for all the employees who are covered by these terms at the earliest possible opportunity, but in no case, later than 30th April 1999.
17. This Special Civil Application is allowed in part as above and the Rule is made absolute in the terms as aforesaid. No order as to costs.