Gujarat High Court
The Executive Director/Basin Manager ... vs Ongc Employees Mazdoor Sabha & 2 on 29 April, 2015
Bench: Jayant Patel, G.B.Shah
C/LPA/797/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 797 of 2013
In
SPECIAL CIVIL APPLICATION NO. 2813 of 2012
With
LETTERS PATENT APPEAL NO. 798 of 2013
In
SPECIAL CIVIL APPLICATION NO. 2248 of 2012
With
LETTERS PATENT APPEAL NO. 290 of 2014
In
SPECIAL CIVIL APPLICATION NO. 2248 of 2012
With
CIVIL APPLICATION NO. 2209 of 2014
In
LETTERS PATENT APPEAL NO. 290 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE G.B.SHAH
====================================
1 Whether Reporters of Local Papers may be allowed to YES
see the judgment?
2 To be referred to the Reporter or not? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the constitution of India,
1950 or any order made thereunder?
Page 1 of 49
C/LPA/797/2013 JUDGMENT
====================================
THE EXECUTIVE DIRECTOR/BASIN MANAGER OIL AND NATURAL
GAS CORPORATION LTD....Appellant(s)
Versus
ONGC EMPLOYEES MAZDOOR SABHA & 2....Respondent(s)
====================================
Appearance:
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MR AJAY R MEHTA,
ADVOCATE for the Appellant(s) No. 1
MR MIHIR JOSHI, SR ADVOCATE with MR RAMNANDAN SINGH,
ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2 3
====================================
CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 29/04/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. As all the appeals arise from the common judgment and order passed by the learned Single Judge, they are being considered simultaneously.
2. We may also record that for the sake of convenience, hereinafter, the employee union shall be referred to as the union/employees and the employer ONGC Ltd. shall be referred to as ONGC/employer.
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C/LPA/797/2013 JUDGMENT
3. The short facts of the case appear to be that ONGC had sanctioned post of about more than 800 in numbers, however, for the mode of recruitment, it appears that ONGC called for the names from the Employment Exchange instead public advertisement in the newspaper. When the names were called for from the Employment Exchange for the posts in question, it was provided for a term of four years. It appears that thereafter, the interview call letters were issued and after conducting the interviews, the Appointment Orders were issued as per the inter se merit of the available candidates. It appears that the terms and conditions at the time of appointment to the employees concerned, were the same as were being provided for the regularly selected candidates. The employees concerned joined the services with the ONGC as per the terms of appointment, they were sent for training, they completed the probation period and they contributed their respective amount towards C.P.F. etc. and they also successfully completed four years' tenure. Thereafter, extension was also given in respect of some of the employees. However, ONGC, while giving extension, considered fresh appointment and further, the attempts were also made to fill up the posts by regular advertisement. It appears that, at that stage, on or about 21/08/2003, a dispute was raised under the Page 3 of 49 C/LPA/797/2013 JUDGMENT Industrial Disputes Act (hereinafter referred to as "the Act"). A charter of demands was submitted which included demand No. 1 for regularization of term based employees. There were no successful conciliation and ultimately, the dispute was referred to the Industrial Tribunal for adjudication with the following demands:
"Whether the demand of the ONGC Employees Majdoor Sabha, Baroda to give regular appointment to 577 term based appointees (list enclosed) is proper or just? If so, what relief the workmen are entitled for and what directions are necessary in the matter?"
4. The said reference was registered as CGITA of 1476 of 2004 before the Industrial Tribunal / Labour Court (hereinafter referred to as "the Tribunal" for the sake of convenience). The Tribunal at the conclusion of the proceedings, passed the following operative order:
"Issue No. 1 & 11:
In view of the findings given to issue No. III, IV, V, VI and VII. I further find and hold that the reference sent by the appropriate government for adjudication by this tribunal is maintainable and the second party union Page 4 of 49 C/LPA/797/2013 JUDGMENT have got valid cause of action in this case to raise demand.
22. Issue No. VIII:
Upon arriving at the findings in the foregoing paragraphs to issue No. I to VII this Tribunal hereby pass the following orders:
(i) Out of 577 term base appointees of 1999, 2000 and 2001 as per list attached to the reference, those who either expired or resigned or terminated or tenure complete or are absent are now out of the court and so those are not entitled to get any relief inspite of raising demand by the union under the reference.
(ii) Out of 577 term base appointees as per list attached to the reference those who have been selected and appointed against regular vacancies so far and those who were also appointed on regular post being dependents of deceased employees (DOD's) so far are not entitled to get any relief in this reference case.
(iii) Out of 577 term base appointees as per list attached to the reference, those who raised dispute for their regularization also on completing 240 days of works in the preceding calendar years and the award passed in their favour and the list of such employees covered under Hon'ble Supreme Court's Judgment in Page 5 of 49 C/LPA/797/2013 JUDGMENT Civil Application No. 6607/2005 regarding filed party workman read with order dated 08.02.2008 in IA No. 10/2007 in Civil Application No. 6607/2005, selected against regular post under order of the Court are, also excluded from getting any relief in this reference, if, there has been no change in the condition of service of any of them by way of removal etc without getting approval/permission from the tribunal and if, condition of service of any one has been changed and any complaint case is pending, then the person if any, shall be entitled to the relief.
(iv) Out of 577 term base appointees as per list attached to the reference, those whose term had not been extended in the year 2004 and filed complaint in this reference case which are pending are entitled to get relief in this case for considering them for regular appointments by the 1st parties.
(v) Out of 577 appointees as per list attached to the reference, 30 persons who are separated as per list of Field Operator furnished by the first parties on 18.07.2011 are not entitled to get any relief.
(vi) Out of the remaining of 577 tern base appointees, who are still continuing on the posts on which they were appointed and are getting extensions of term/tenure are directed to be treated and covered Page 6 of 49 C/LPA/797/2013 JUDGMENT within priority case of consideration zone for giving them regular appointment by the management of ONGC (1st parties). The 1st parties are directed to work out such number of appointees with intimation to the 2nd party union.
(vii) The first parties are directed to undertake exercise of giving regular appointment to the remaining term base appointees calling them for interview if, necessary, and not to import recruitment from open market inviting fresh applications for the regular posts unless term appointees are given regular appointments of class III & IV posts."
4.1 It has been stated that ONGC was aggrieved by abovereferred direction No. (vii) since the Tribunal prohibited recruitment from open market until the exercise for regularization was undertaken in respect of the employees concerned of the union. Hence, the writ petition was preferred by the ONGC. As the Tribunal did not identify a particular date from which the regularization was to be made of the left out employees as referred to in the above referred direction, writ petition was also preferred by the employees' union so far as it related to nongrant of the benefit by the Tribunal. We may also record that another writ petition being Special Civil Application No. 16777 of 2012 was preferred Page 7 of 49 C/LPA/797/2013 JUDGMENT by the union seeking appropriate writ to restrain the ONGC from recruiting any person from open market for class III and IV posts until the term based employees who were beneficiaries of the award, were given regular appointment as per the award of the Tribunal. All the aforesaid three Special Civil Application being Nos. 2248 of 2012, 2813 of 2012 and 16777 of 2012 came to be finally heard by the learned Single Judge and the learned Single Judge vide judgment and order dated 26/04/2013, which is impugned in the present appeals, passed the following order at para 15 of the impugned judgment and order:
"15. In view of the fact that the workmen have already undergone the procedures of recruitment such as examinations and interviews and have been working with the respondent Corporation for years, their case deserves to be considered. However, it is pointed out that some of the employees have undergone fresh interview and were appointed on regular basis. In that view of the matter, in order to avoid any complication with regard to seniority and other aspects, interest of justice would be met by directing the respondent Corporation to treat the concerned workmen on regular employment with effect from 24.1.2005 or the date of first reissuance of appointment order as the case may be, and Page 8 of 49 C/LPA/797/2013 JUDGMENT accordingly grant notional benefits from the said date till 31.3.2013 and to pay them regular pay and allowances with effect from 1.4.2013. Accordingly the following directions are issued:
[I] The concerned workmen involved in these cases are not required to undergo any more recruitment examinations since they have been appointed after following necessary procedure and are working with the corporation since then.
[ii] The respondent Corporation shall treat the concerned workmen on regular employment with effect from 24.1.2005 or the date of first reissuance of appointment order as the case may be.
[iii] Accordingly the respondent Corporation shall grant notional benefits to the concerned workmen from the said date till 31.03.2013 and shall pay them regular pay and allowances with effect from 01.04.2013.
[iv] The direction of the Tribunal not to import recruitment from open market inviting fresh applications for the regular posts unless term appointees are given regular appointments of Class III Page 9 of 49 C/LPA/797/2013 JUDGMENT and IV posts is quashed and set aside.
[v] It shall be open to the respondent Corporation to initiate action for recruitment for remaining vacancies, if any, after absorption of concerned workmen from open market.
[vi] In case the regular salary is being paid to the concerned workmen pursuant to the interim order of this Court, no recovery thereof shall be effected by the Corporation."
4.2 It is under these circumstances, the present appeals before this Court.
5. We have heard Mr. Kamal B. Trivedi, learned Advocate General, appearing for Mr. Ajay R. Mehta, learned counsel for the ONGC. We have also heard Mr. Mihir Joshi, learned senior counsel, for Mr. Ramnandan Singh, learned counsel for the employees' union in the respective appeals. So far as the Presiding Officer of the Tribunal is concerned, he is the formal party. 5.1 The learned counsel for the ONGC mainly relied upon the Page 10 of 49 C/LPA/797/2013 JUDGMENT decision of the Apex Court in case of Secretary, State of Karnataka and Others Vs. Umadevi and Others, reported in (2006) 4 SCC 1 for contending that in the matter of public employment, the constitutional scheme provides that there should be a public advertisement for giving equal opportunity to all qualified persons to apply for the post and if the public advertisement has not been given as per the abovereferred decision of the Apex Court, the recruitment can be said as against the constitutional scheme and illegal. It was submitted that once the recruitment is illegal, the regularization is not permissible, be it industrial Tribunal exercising jurisdiction under the Act or the High Court under Article 226 of the Constitution. He submitted that the principles laid down by the Apex Court in its decision in the case of Umadevi (supra) is being followed in large number of decisions of the Apex Court and it is by now wellsettled that unless the mode of recruitment is by issuing public advertisement and unless the opportunity is given to all eligible persons by issuance of public advertisement, the appointments given otherwise than such mode can be said as illegal and such illegal appointments cannot be regularized under the orders of the Court.
Page 11 of 49
C/LPA/797/2013 JUDGMENT 5.2 In furtherance to the submission, the learned counsel for the ONGC submitted that as per the Appointment Orders issued and which came to be accepted by all the employees, they were on fixed term appointment, popularly known as term based appointment. When the recruitment itself was for term based tenure, the Appointment Orders were issued for a fixed term and when the employees concerned accepted the said fixed term appointment, which has been renewed subsequently from time to time, they cannot be heard to say that all process as were required for the regular recruitment, were undertaken and therefore, they be treated as permanent employees in the regular set up or they be regularized in service. It was submitted that the Tribunal has committed ex facie error in not considering the crucial aspect that the appointment made of all such employees for whom the cause was being exposed by the union were against the constitutional scheme of public employment. The ONGC is an instrumentality of State and therefore, the posts available in ONGC should have been made available to all eligible candidates. Instead that, the Tribunal as well as the learned Single Judge considered the matter that all necessary procedure for the regular appointment Page 12 of 49 C/LPA/797/2013 JUDGMENT has been made and all treatment even after appointment is made at par with regular appointees and therefore, the benefits for regularization are conferred by the Tribunal. It was also submitted that the learned Single Judge has granted larger benefit than granted by the Tribunal which could not have been done, which in the submission of the learned counsel, exceeding the jurisdiction by the learned Single Judge while exercising the powers under Article 227 or 226 of the Constitution and therefore, it was submitted that the judgment and order passed by the learned Single Judge be interfered with and the reference be dismissed as prayed before the learned Single Judge and the Tribunal.
6. Whereas, Mr. Joshi, learned senior counsel for the employees' union, heavily relied upon the recent decision of the Apex Court in the case of ONGC Ltd. Vs. Petroleum Coal Labour Union and Others in Civil Appeal No. 3727 of 2015 decided on April 17, 2015. He contended that more or less, similar facts were there in the matter of Petroleum Coal Labour Union (supra) before the Apex Court. He submitted that the counsel for ONGC did rely upon the decision of the Apex Court in the case of Umadevi (supra) for Page 13 of 49 C/LPA/797/2013 JUDGMENT assailing the directions issued by the Tribunal and its further confirmation by the High Court for regularization of security personnel. He submitted that as per the abovereferred decision of the Apex Court in the case of Petroleum Coal Labour Union, the Tribunal has rightly exercised the powers for regularization. He submitted that the finding recorded by the Tribunal in the present case is that all necessary formalities for recruitment of the regular employees were followed. In the submission of Mr. Joshi, when permanent 840 posts were already available, it was required for the ONGC to give regular appointments more particularly, when all necessary formalities for recruitment for the regular employees for the respective posts were followed. Instead that, term based appointment orders were issued which can be said nothing but unfair labour practice on the part of the ONGC. He submitted that in the decision of the Apex Court in case of Petroleum Coal Labour Union (supra) the Apex Court, after considering the earlier decision of the Apex Court in the case of Umadevi (supra), has found that the approach of the Court or the Tribunal in the matter of employees of an industry or when the matter pertains to resolution of the disputes under the Act, the benefit cannot be denied to the employees by the Page 14 of 49 C/LPA/797/2013 JUDGMENT employer inter alia contending that at the time when the recruitments were made, the public advertisement was not given and therefore, the Tribunal could not issue direction for regularization. In his submission, the finding of facts recorded by the Tribunal have not been interfered with by the learned Single Jude and hence, when on facts it was found that all necessary formalities were followed for filling up all the regular posts in case of the recruitments of the employees concerned in the present case, they would be entitled to the benefit for regular employment from the date on which they have completed requisite period as per the standing order. The denial of such a benefit by the ONGC may be considered as unfair labour practice while considering the matter further arising from the award of the Tribunal and the order of the learned Single Judge. He submitted that as the benefits have not been granted fully by the Tribunal and/or by the learned Single Judge such benefit be conferred in the present appeal to the employees concerned as has been granted by the Apex Court in case of the Petroleum Coal Labour Union (supra). He submitted that, in any case, the benefit already conferred by the learned Single Judge upon completion of first term of four years and further notional benefit, may not be interfered with by this Court in exercise of Page 15 of 49 C/LPA/797/2013 JUDGMENT the appellate powers. In his submission, the Tribunal or the learned Single Judge may have the discretion available for putting the date for conferment of the benefit as that of the regular employees or for regularization but considering the facts and circumstances, the benefit could have been given by the Tribunal from the date of completion of requisite period as per the standing order or in any case, the benefit could have been granted by the learned Single Judge in the petition preferred by the employees' union. He, therefore, submitted that there is a cross appeal preferred by the employees' union, which may be considered by this Court.
7. We may record that the Tribunal in the judgment and order has recorded the following finding of facts:
"After careful consideration of the pleadings of the parties and the evidence adduced both oral and documentary and also considering the arguments of both sides, I am of the considered view that 577 appointees were recruited in the year 1999, 2000, 2001 against the clear vacancy of 840 though it is said on behalf of the first parties that those 840 vacancies were for regular appointment, but the Page 16 of 49 C/LPA/797/2013 JUDGMENT appointees were recruited on 4 year term base. A pertinent question arises that when there were 840 vacancies of regular posts for recruitment then why not management of ONGC resorted to appointment against regular vacancies in the year 1999, 2000 and 2001. The reason given on behalf of the first party does not appear to be convincing that since exploration project was shrinking and having downward tendency so, it was decided to recruit on 4 year terms base. More so, such philosophy given by the first party in its pleading W.S. at Ext. 36 that the exploration have reduced from maximum 93 having downward tendency and coming to zero in the year 2010 does not at all appear to be convincing because the management of first party has taken serious steps for recruitment on the posts of 396 vacancies as per advertisement dated 12.11.2009. More so, the term base appointees whose term was to expire were given extension by the first party facely as admitted by management witness at Ext. 72 and during the period several appointees involved in this reference case were recruited in regular appointment and several were given further extension by way of tenure base appointment all are still continuing. Such action on part of the management of first party go to show that they have not given true assessment that there would be no requirement of the term base appointees after end of December, 2004. But from the perusal of the Page 17 of 49 C/LPA/797/2013 JUDGMENT evidence of the workman from Ext. 52 to 66 and also the evidence of the working president at Ext. 67 attached with the Annexure, it is evident that even in the year 2005 extension was given to the appointees of 4 years which was to be expired in the year 2009. But even thereafter the workmen involved in this case are continuing in their job right from date of their joining on the same post/rank till this date. From the evidence, it is evident that all the appointees were not recruited for exploration project exclusively rather they had been recruited for different jobs and majority of the appointees of so called term base of 4 years were working in different department of the ONGC. It is evident that the exploration project is the small wing of the ONGC and all the appointees were not recruited exclusively for exploration project.
Now coming to this aspect whether the term base appointees of the year 1999, 2000 and 2001 totaling 577 had been recruited on contractual job or daily rated workers or on adhoc basis or temporary basis. Form the evidence discussed above in the fore going paragraphs, I am of the considered opinion that they were recruited after following all the rules and regulations of the ONGC for the recruitment against the vacancy. The appointees having requisite qualification were call for interview wherein there was no mention about their term base appointment of 4 Page 18 of 49 C/LPA/797/2013 JUDGMENT years, the name of the appointees were sponsored by the Employment Exchanges. More so, after joining to their post the appointees were put on probation period of one year to which the appointees were successful in the probation period having got Appraisal Certificate granted by the management of ONGC. It is evident as per Annexures attached with the affidavited evidence of the workman from Ext. 52 to 66. More so, there is evidence on behalf of the second party that majority of the appointees recruited in Technical Job were sent for training at Technical Training Institute, Cambay and they successfully completed the training. This fact has also been admitted by the management witness at Ext. 72 during crossexamination. More so, the appointees involved in this case were also required to subscribe CPF and they were subscribing amount in CPF at par with the regular appointee, the appointees were also undergone Territorial Army Training at par with the regular appointees. Besides this in memorandum of appointment order the appointees were provided a pay scale having with provision of Increments, D.A. and other allowances at par with the regular appointees. More so, the management of first party have continued the jobs of the appointees till this date. Only difference between the memorandum of appointment letter of the term base workman involved in this case and the regular appointees is regarding the superannuation age. That the regular appointees are to be Page 19 of 49 C/LPA/797/2013 JUDGMENT superannuated on reaching the age of 60 whereas no such provision was incorporated in the appointment letter of the terms base appointees. But since the term base appointee have also been recruited through rules and regulations of the ONGC. So, it cannot be said that those appointees were either adhoc or temprary or daily rated workers or contractual workers...."
7.1 The learned Single Judge in the impugned order at Para 8.1 and 8.2 has observed thus:
"8.1 Therefore, the moot question to be considered in the present case is whether the appointment made in the present case is illegal and arbitrary and in total contravention to the ratio laid down by the Hon'ble Supreme Court or not.
8.2 It is required to be noted that since the year 1987 no regular recruitment has taken place in the Corporation in Western Region and from 1987 to 2004 about 30% labour force is reduced due to retirement on account of superannuation or voluntary basis, termination of employment, abandonment of employment etc. Therefore the Corporation has started managing its affairs by deploying contract labour in western region and such contract labourers have put in more than 10 to 15 years of service by this time.Page 20 of 49
C/LPA/797/2013 JUDGMENT The appointments were made after calling the names from employment exchange and after conducting necessary procedures for appointment. A perusal of one of the appointment letters reveals that the appointment contained all the requirements of a regular appointment as per the Recruitment and Promotion Regulations and in fact it is brought to the notice of this Court that it is the practice of the Corporation that, though a condition is mentioned for four years for all intents and purpose, the appointment is treated as regular appointment. There was a probation period of one year, which is usually stipulated in regular appointment only. All the concerned workmen had completed the probation period of one year. It is also pertinent to note that out of the 577 employees, about 313 trainees were specifically trained by the Corporation in the Technical Training Institute of Cambay and were required to be absorbed in the permanent service of Corporation as per Regulation 6(12) of the Oil and Natural Gas Corporation Modified R & P Regulation, 1980. According to the custom and usage prevailing in the Corporation, on successful completion of training period in the Technical Training Institute of the Corporation, regular and permanent appointment orders were issued. However, in the present case about 313 employees, instead of getting regular appointment, were issued term based appointment Page 21 of 49 C/LPA/797/2013 JUDGMENT orders. However, the Corporation could not point out that all these persons were not appointed against regular and clear vacancies. In short, instead of regular appointment, term based appointment orders were issued to the employees."
7.2 The learned Single Judge, thereafter, has observed at Para 9.1 and 9.2 as under:
"9.1 In the present case the workmen have been working on the basis of term based appointment orders for a very long period. They were required to do the work which was used to be done by skilled employees. A 'temporary' workman is a workman who has been engaged for work which is of an essentially temporary nature likely to be finished within a limited period. Such is not the case in the case on hand. The employees were continued on the work for a very long time. They also cannot be termed as 'casual workmen' as stated in the aforesaid judgement. Thus, the employees engaged and continued for years together by the Corporation cannot be termed as temporary or casuals. A 'permanent' workman is a workman who has been engaged on a permanent basis and includes any person who has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial establishment, Page 22 of 49 C/LPA/797/2013 JUDGMENT including breaks due to sickness, accident, leave, lockout, strike (not being an illegal strike) or involuntary closure of the establishment. It is required to be noted that the respondent Corporation itself issued the appointment order with probation period as if the appointment is on a permanent post. The employees were sent for training and on completion of the training they were continued in service.
9.2 I am, therefore, of the view that in the present case the appointment of the employees cannot be termed as 'temporary' or 'casual' so as to terminate their services after a specific period and even the respondent Corporation is not able to take such plea as they continued the employees even after the term period of four years. As held in the case of Mineral Exploration Corporation (Supra), once an employee completes 240 days, he is deemed to be a permanent employee. For the very precise reason, it cannot be said that the employees were 'backdoor' entrants and therefore they cannot claim regularization."
7.3 It is in light of the aforesaid fact situation, we need to further examine the matter as to whether the ground of nonissuance of public advertisement at the time of recruitment would be available to ONGC for denying the benefit which has been so Page 23 of 49 C/LPA/797/2013 JUDGMENT granted by the Tribunal read with the order of the learned Single Judge and further, whether the appointment made of the employees concerned at the relevant point of time could be said as illegal or irregular.
7.4 It is true that the Apex Court in the case of Umadevi (supra) at para 43 after considering the various earlier decisions, observed thus:
"43. Thus, it is clear 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 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold 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. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual Page 24 of 49 C/LPA/797/2013 JUDGMENT basis, the same would come to an end when it is discontinued. 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 of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee Page 25 of 49 C/LPA/797/2013 JUDGMENT approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates."
7.5 We may also record that in the abovereferred decision of the Apex Court, at para 45 and 48, it was also observed by the Apex Court as under:
"45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain - not at arms length - since he might have Page 26 of 49 C/LPA/797/2013 JUDGMENT been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. 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 succor 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 Page 27 of 49 C/LPA/797/2013 JUDGMENT 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. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not (sic) one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution."
"48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed Page 28 of 49 C/LPA/797/2013 JUDGMENT upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled."Page 29 of 49
C/LPA/797/2013 JUDGMENT 7.6 If the aforesaid observations are considered as it is, one may say that in the matter of public advertisement, issuance of public advertisement is a must and the same is read as constitutional scheme by the Apex Court in the abovereferred decision for filling up of any post in the public employment. It can hardly be disputed that the posts available in the ONGC are not the posts which may be required to be filled up other than the mode for public employment for public post. However, the aforesaid decision is to be read with the abovereferred recent decision of the Apex Court in case of Petroleum Coal Labour Union (supra) wherein, the Apex Court had an occasion to consider its own decision in the case of Umadevi (supra). In the decision of the Apex Court in the case of Petroleum Coal Labour Union (supra), the Apex Court at para 22 to 28, after considering the decision of the Apex Court in the case of Umadevi (supra), has observed thus:
"22. Further, it is contended by the learned counsel for the concerned workmen that the Corporation cannot disclaim the legality of its own Certified Standing Orders by stating that it cannot prevail over Uma Devi's case (supra) or Article 14 of the Constitution and that the Standing Orders only confer Page 30 of 49 C/LPA/797/2013 JUDGMENT the right of consideration and not a vested right for regularisation. It is contended by him that for the last 24 years, the Corporation has not considered and in any case will not consider the concerned workmen for regularisation to the post of the Corporation if the same is left to their own discretion. Further, it is urged by him that failure to honour the Standing Orders for so many years is what constitutes "unfair trade practice" on the part of the Corporation in the present case.
23. Rebutting the contention urged on behalf of the Corporation that the concerned workmen are not qualified to be regularized, it has been contended by the learned senior counsel for the concerned workmen that the Tribunal has noted that the concerned workmen are far more qualified than the existing security personnel of the Corporation and that they are qualified to be appointed as security guards and supervisors, except one of them. The learned counsel on behalf of the concerned workmen contended that the Recruitment Rules are not amended prescribing that only the CISF personnel are qualified for guard work.
24. It is further contended by him that in the case of Uma Devi(supra), this Court had the occasion to Page 31 of 49 C/LPA/797/2013 JUDGMENT deal with the issue of "litigious employment".
Admittedly, the concerned workmen were voluntarily appointed by the Corporation initially on term basis. It is by virtue of Section 33 of the Industrial Disputes Act that the Corporation is prevented from terminating the employment of the concerned workmen during the pendency of the industrial dispute. The decision of the Tribunal was rendered on 26.05.1999 and during the period 1990 1999, the concerned workmen did not enjoy any litigious employment but were beneficiaries of a statutorily mandated protection and the Corporation has the right under Section 33(i)(a) of the Act to seek permission from the conciliation officer/Tribunal to remove them from their services but that has not been done by it. Therefore, it would be an improper and misleading contention of the Corporation to describe this scenario as litigious employment, which contention of it does not stand for judicial scrutiny of this Court.
25. We have heard the factual and rival legal contentions urged by the learned senior counsel on behalf of both the parties and answer the same as discussed below.
26. Whether jurisdiction of the Tribunal to Page 32 of 49 C/LPA/797/2013 JUDGMENT direct the Corporation to regularise the services of the concerned workmen in the posts is valid and legal?
The Central Government in exercise of its powers under Section 10 of the Act referred the existing Industrial Dispute between the concerned workmen and the Corporation to the Tribunal which rightly adjudicated point (i) of the dispute (supra) on the basis of the facts, circumstances and evidence on record and passed an award dated 26.5.1999 directing the Corporation that the services of the concerned workmen should be regularised with effect from the date on which all of them completed 480 days, subsequent to their appointment by the memorandum of appointment. The contention urged on behalf of the Corporation that the Tribunal has no power to pass such an award compelling the Corporation to regularise the services of the concerned workmen is wholly untenable in law. Even if we consider the same, the said contention is contrary to the legal principles laid down by this Court in the case of Hari Nandan Prasad & Anr. v. Employer I/R To Management of Food Corporation of India & Anr., wherein the decisions in U.P. Power Corporation v. Bijli Mazdoor Sangh & Ors. and Maharashtra Road Transport Corporation v. Casteribe Rajya Parivahan Karamchari Sanghathana Page 33 of 49 C/LPA/797/2013 JUDGMENT and Uma Devi (all referred to supra) were discussed in detail. The relevant paragraphs are extracted hereunder:
"25. While accepting the submission of the appellant therein viz. U.P. Power Corpn., the Court gave the following reasons: (U.P. Power Corpn. Case, SCC pp. 75859, paras 68) "6. It is true as contended by the learned counsel for the respondent that the question as regards the effect of the industrial adjudicators' powers was not directly in issue in Umadevi case. But the foundational logic in Umadevi case is based on Article 14 of the Constitution of India. Though the industrial adjudicator can vary the terms of the contract of the employment, it cannot do something which is violative of Article 14. If the case is one which is covered by the concept of regularisation, the same cannot be viewed differently.
7. The plea of the learned counsel for the respondent that at the time the High Court decided the matter, decision in Umadevi case was not rendered is really of no consequence. There cannot be a case of regularisation without there being employee employer relationship. As noted above the concept Page 34 of 49 C/LPA/797/2013 JUDGMENT of regularisation is clearly linked with Article 14 of the Constitution. However, if in a case the fact situation is covered by what is stated in para 45 of Umadevi case the industrial adjudicator can modify the relief, but that does not dilute the observations made by this Court in Umadevi case about the regularisation.
8. On facts it is submitted by the learned counsel for the appellants that Respondent 2 himself admitted that he never worked as a pump operator, but was engaged as daily labourer on dailywage basis. He also did not possess the requisite qualification. Looked at from any angle, the direction for regularisation, as given, could not have been given in view of what has been stated in Umadevi case."
It is clear from the above that the Court recognized the underlying message contained in Umadevi case to the effect that regularisation of a dailywager, who has not been appointed after undergoing the proper selection procedure, etc. is impermissible as it was violative of Article 14 of the Constitution of India and this principle predicated on Article 14 would apply to the Industrial Tribunal as well inasmuch as there cannot be any direction to regularise the Page 35 of 49 C/LPA/797/2013 JUDGMENT services of a workman in violation of Article 14 of the Constitution. As we would explain hereinafter, this would mean that the Industrial Court would not issue a direction for 23regularising the services of a dailywage worker in those cases where such regularisation would tantamount to infringing the provisions of Article 14 of the Constitution. But for that, it would not deter the Industrial Tribunals/Labour Courts from issuing such direction, which the industrial adjudicators otherwise possess, having regard to the provisions of the Industrial Disputes Act specifically conferring such powers. This is 24recognized by the Court even in the aforesaid judgment.
XXX XXX XXX
30. Detailed reasons are given in support of the conclusion stating that the MRTU and PULP Act provides for and empowers the Industrial/Labour Courts to decide about the unfair labour practice committed/being committed by any person and to declare a particular practice to be unfair labour practice if it so found and also to direct such person to cease and desist from unfair labour practice. The provisions contained in Section 30 of the MRTU and PULP Act giving such a power to the Industrial and Labour Courts visvis the ratio of Umadevi are Page 36 of 49 C/LPA/797/2013 JUDGMENT explained by the Court in the following terms:
(Maharashtra SRTC case, SCC pp. 57374, paras 32 33 & 36) "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 the MRTU and PULP Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi. 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. Unfair labour practice on the part of the employer in engaging employees as badlis, casuals or temporaries and to Page 37 of 49 C/LPA/797/2013 JUDGMENT 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 the Industrial and Labour Courts under Section 30 of the Act did not fall for adjudication or consideration before the Constitution Bench.
XXX XXX XXX
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 the PULP Act, once unfair labour practice on the part of the employer under Item 6 of Schedule IV is established."
XXX XXX XXX
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33. In this backdrop, the Court in Maharashtra SRTC case was of the opinion that the direction of the Industrial Court to accord permanency to these employees against the posts which were available, was clearly permissible and within the powers, statutorily conferred upon the Industrial/Labour Courts under Section 30(1)(b) of the MRTU and PULP Act, 1971 which enables the industrial adjudicator to take affirmative action against the erring employer and as those powers are of wide amplitude abrogating (sic including) within their fold a direction to accord permanency."
(emphasis laid by this Court)
27. Further, it is very clear from the facts that all the concerned workmen have got the qualifications required for their regularisation, except one of them and have been employed by the Corporation even prior to 1985 in the posts through various irregular means. The Tribunal has got every power to adjudicate an industrial dispute and impose upon the employer new obligations to strike a balance and secure industrial peace and harmony between the employer and workmen and ultimately deliver social justice which is the constitutional mandate as held by the Constitution Bench of this Court in a catena of cases. This above said legal principle has been laid down succinctly by this Court in the case of Page 39 of 49 C/LPA/797/2013 JUDGMENT The Bharat Bank Ltd., Delhi v. The Employees of the Bharat Bank Ltd., Delhi & the Bharat Bank Employee's Union, Delhi, the relevant paragraph of the said case is extracted hereunder:
"61. We would not examine the process by which an Industrial Tribunal comes to its decisions and I have no hesitation in holding that the process employed is not judicial process at all. In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace. An industrial dispute as has been said on many occasions is nothing but a trial of strength between the employers on the one hand and the workmen's organization on the other and the Industrial Tribunal has got to arrive at some equitable arrangement for averting strikes and lockouts which impede production of goods and the industrial development of the country. The Tribunal is not bound by the rigid rules of law. The process it Page 40 of 49 C/LPA/797/2013 JUDGMENT employees is rather an extended form of the process of collective bargaining and is more akin to administrative than to judicial function. In describing the true position of an Industrial Tribunal in dealing with labour disputes, this Court in Western India Automobile Association v. Industrial Tribunal, Bombay, and others [1949] F.C.R. 321 quoted with approval a passage from Ludwig Teller's well known work on the subject, where the learned author observes that:
"industrial arbitration may involve the extension of an existing agreement or the making of a new one or in general the creation of new obligations or modification of old ones, while commercial arbitration generally concerns itself with interpretation of existing obligations and disputes relating to existing agreements."
The views expressed in these observations were adopted in its entirety by this Court. Our conclusion, therefore, is that an Industrial Tribunal formed under the Industrial Disputes Act is not a judicial tribunal and its determination is not a judicial determination in the proper sense of these expressions."
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C/LPA/797/2013 JUDGMENT It has been further held by this Court in the case of Life Insurance Corporation Of India v. D. J. Bahadur & Ors., as follows:
"22. The Industrial Disputes Act is a benign measure, which seeks to preempt industrial tensions, provide the mechanics of dispute resolutions and set up the necessary infrastructure, so that the energies of the partners in production may not be dissipated in counterproductive battles and the assurance of industrial justice may create a climate of goodwill...."
Thus, the powers of an Industrial Tribunal/Labour Court to adjudicate the industrial dispute on the points of dispute referred to it by the appropriate government have been well established by the legal principles laid down by this Court in a catena of cases referred to supra. Therefore, the Tribunal has rightly passed an award directing the Corporation to regularise the services of the concerned workmen.
28. Whether the appointment of the concerned workmen in the services of the Corporation is irregular or illegal?
In the case on hand, the concerned workmen were Page 42 of 49 C/LPA/797/2013 JUDGMENT employed by the Corporation initially through contractors. Thereafter, on issuance of notification dated 08.12.1976 by the Central Government abolishing contract labour for the posts of Watch and Ward, dusting and cleaning jobs in the Corporation under Section 10(1) of the Contract Labour (Abolition and Regulation) Act, 1970, the Corporation and the concerned workmen arrived at a settlement under Section 18(1) of the Act, wherein a Cooperative Society was formed in the name of 'Thai Security Service Priyadarshini Indira Cooperative Society' for their welfare, thus dispensing with intermediary contractors. During the pendency of the sanction from the Central Government of the alleged "Policy decision", the concerned workmen were appointed directly from 13.1.1988 to 29.2.1988 and thereafter, they were employed continuously without written orders by the Corporation. It is the contention of the learned senior counsel on behalf of the Corporation that the services of the concerned workmen cannot be regularised as their appointment was originally and initially through contractors and thereafter, without following any procedure of selection and appointment as per the Recruitment Rules and therefore, the same is illegal by placing reliance on the decision of this Court in para 43 of Uma Devi case (supra). Further, this Court in the case of Ajaypal Singh v. Haryana Warehousing Corporation opined Page 43 of 49 C/LPA/797/2013 JUDGMENT that when a workman is initially appointed in violation of Articles 14 and 16 of the Constitution of India, then the employer at the time of reemployment of the retrenched workman cannot take the plea that the initial appointment was in violation of the abovementioned provisions. The relevant paragraph of the Ajaypal Singh case(supra) is extracted hereunder:
"19. The provisions of Industrial Disputes Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi's case. The issue pertaining to unfair labour practice was neither the subject matter for decision nor was it decided in Umadevi's case."
The plea of the Corporation that the reason for not regularising the concerned workmen under the Certified Standing Orders of the Corporation is allegedly due to the fact that the appointment of the concerned workmen was made without following due procedure under the Recruitment Rules and that their appointments were illegal. This plea cannot be accepted by us in view of the legal principle laid down by this Court in the above decision, wherein it is clearly laid down that the Corporation cannot deny the rights of the workmen by taking the plea that Page 44 of 49 C/LPA/797/2013 JUDGMENT their initial appointment was contrary to Articles 14 and 16 of the Constitution."
(emphasis supplied) 7.7 The aforesaid shows that as per the abovereferred view of the Apex Court in case of Petroleum Coal Labour Union (supra) when the question arises for regularization of the concerned workmen under the Act by the Tribunal, the plea cannot be accepted in view of the legal principle laid down by the Apex Court on the ground that the Corporation cannot deny the rights of the workmen by taking the plea that the initial appointment was contrary to Articles 14 and 16 of the Constitution. 7.8 Further, in view of the aforesaid observations made by the Apex Court it is not possible to accept the contention of the learned counsel for the ONGC that as the public advertisement was not issued at the time when the recruitment had taken place of the employees concerned, the appointment can be said as against the constitutional scheme and therefore, illegal for the purpose of considering the rights of workmen under the Act by the Tribunal. The Apex Court, in the abovereferred decision in Petroleum Coal Labour Union (supra) has observed that such a plea cannot be Page 45 of 49 C/LPA/797/2013 JUDGMENT accepted so as to deny the benefit to the workmen under the Act. 7.9 The attempt was made by the learned counsel for the ONGC to contend that the decision of the Apex Court in Umadevi (supra) is of the Larger Bench of the Apex Court (of 5 Hon'ble Judges) whereas, the subsequent decision of the Apex Court in case of Petroleum Coal Labour Union (supra) is of the bench comprises of 2 Hon'ble Judges of the Apex Court and therefore, this Court may go by the observations of the Apex Court in the case of Umadevi (supra) for holding that the appointments were illegal and therefore, could not be regularized.
7.10 We are afraid that such a contention can be accepted on the face of the subsequent decision of the Apex Court in the case of Petroleum Coal Labour Union (supra). What was intended to be conveyed by the Apex Court in the decision in the case of Umadevi (supra) could better be considered and expressed by the Apex Court itself, which has considered and expressed the view for the ratio of the decision in the case of Umadevi (supra) in its subsequent decision in the case of Petroleum Coal Labour Union (supra). The High Court would be lacking jurisdiction to dilute Page 46 of 49 C/LPA/797/2013 JUDGMENT the effect of the observations made by the Apex Court in the case of Petroleum Coal Labour Union (supra) nor it would be possible for the High Court to take a different view when the Apex Court itself for its earlier decision has already conveyed the ratio and the effect, in the dispute when the matter pertains to conferment of the benefit to the workmen under the Act. Hence, the said attempt of learned counsel for the ONGC cannot be countenanced.
7.11 If the aspect of public advertisement is considered as not a ground to hold the appointment as illegal by denying the plea of the employer as stated above when the matter pertains to conferment of benefits to the workmen under the Act, it can hardly be said that the appointments were illegal. At the most, it may be irregular. If the appointments were irregular as per the abovereferred decision of the Apex Court in the case of Petroleum Coal Labour Union (supra), the power vests in the Tribunal under the Act to grant the relief for regularization. The finding of fact as referred to herein above clearly goes to show that all formalities were followed as that of the recruitment of the regular employees and all terms and conditions were also the same as that of the regular employees. However, while Page 47 of 49 C/LPA/797/2013 JUDGMENT conferring the benefit of the regularization, the discretion has been vested in the Tribunal. Such discretion has been exercised by the Tribunal and in further scrutiny by the learned Single Judge the additional benefits are conferred by the impugned judgment and order. We do not find that the discretion exercised by the learned Single Judge for conferment of the benefits may call for interference in exercise of the appellate intra Court appeal, more particularly when, it cannot be said that the discretion so exercised by the learned Single Judge is perverse to the facts on record.
8. In view of the aforesaid observations and discussion, the appeal preferred by the ONGC viz. Letters Patent Appeal Nos. 797 and 798 of 2013 deserve to be dismissed, hence, dismissed. The appeal preferred by the employees' union being Letters Patent Appeal No. 290 of 2013 can be said as meritless and hence, the same is also dismissed. Considering the facts and circumstances, no order as to costs.
8.1 In view of the order passed in the main appeal, Civil Application No. 2209 of 2014 would not survive and shall stand disposed of. Page 48 of 49
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[ Jayant Patel, J. ]
[ G. B. Shah, J. ]
hiren
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