Gauhati High Court
Oil And Natural Gas Corporation Ltd. ... vs Union Of India & 2 Ors on 29 September, 2016
Bench: Hrishikesh Roy, M.R. Pathak
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh)
WRIT APPEAL NO.96 OF 2013
1. Oil & Natural Gas Corporation Ltd. (ONGC),
A company registered under the Companies Act, 1956
having its registered office at New Delhi-110001 and
the Eastern Regional Business Centre Office at Nazira,
Dist.-Sivasagar, Assam, 785640.
2. The Executive Director,
Oil & Natural Gas Corporation Ltd.,
Eastern Regional Business Centre, Nazira,
Dist.-Sivasagar, Assam, 785640.
......Appellants.
-Versus-
1. Union of India,
Represented by the Secretary to the Govt. of India,
Ministry of Labour, Shrama Shakti Bhawan, New Delhi.
2. Presiding Officer,
Industrial Tribunal, Assam,
Guwahati, Uzanbazar, Nawzan Road, Guwahati-1.
3. The General Secretary,
ONGC, DVP Worker's Association,
ONGC, Dhansiri Valley Project, Jorhat.
......Respondents.
Advocate(s) for the Appellants : Mr. S.N. Sarma, Sr. Adv.,
Mr. P.K. Roy,
Mr. S.K. Chakraborty,
Mr. A. Chakraborty,
Mr. M. Dutta,
Mr. N. Anix Singh.
Advocate(s) for the Respondents : Mr. P.K. Tiwari, Sr. Adv.,
Mr. S.K. Ghosh,
Mr. S.P. Choudhury,
Mr. B. Kaushik,
Asstt.S.G.I., Mr. S.C. Keyal.
BEFORE
THE HON'BLE MR. JUSTICE HRISHIKESH ROY
THE HON'BLE MR. JUSTICE M.R. PATHAK
Dates of Hearing & Judgment : 29 th Septem ber, 2016
WA 63/2013 Page 1 of 9
JUDGMENT AND ORDER (ORAL)
[Hrishikesh R oy, J.] Heard Mr. S.N. Sarma, the learned Sr. counsel representing the appellants. Also heard the learned Sr. counsel Mr. P.K. Tiwari representing the Workers' Association, in whose favour the Reference No.1(C) of 1997 was answered on 01.06.2001 by the Central Government Industrial Tribunal-cum- Labour Court (CGIT), Guwahati.
2. The adjudication of the CGIT was sought a 2nd time under Section 10 of the Industrial Disputes Act, on the following reference:-
Whether the action of the management of ONGC, Dhansiri Valley Project, Jorhat in not regularizing the services of Shri Indreswar Saikia and 36 others (as per list enclosed) and denying equal wages for the work is legal and justified? If not, to what relief are these workmen entitled? The CGIT in their award dated 01.06.2001 (page-80) answered the above reference in favour of the workmen and directed regularization of the service of the 33 workmen, if necessary, in a phased manner.
3. The aggrieved management challenged the award through the WP(C) No.6096/2002. The Workers' Association had also filed the WP(C) No.3522/2000 for implementation of the 1st award rendered on 12.03.1991 in the Reference Case No.1(C) of 1989 for 264 employees. Both cases were disposed of analogously by the impugned judgment delivered on 19.07.2012 (Annexure-H) by the learned Single Judge.
PREVIOUS LITIGATION HISTORY
4. The Dhansiri Valley Project, ONGC Workers' Association, hereinafter referred to as the "Worker's Association", is a registered trade union. They raised claim for regularization of 264 casual workers in the Dhansiri Valley Project of the ONGC. The concerned staff were performing different duties as typists, stenographers, drivers, account assistants, etc. but the management didn't accede to their demand for regularization of services. In the resultant industrial dispute, the Government in the 1st round sought adjudication of the CGIT in the Reference No.1(C) of 1989, under Section 10 of the Industrial Disputes Act on the following question:-
WA 63/2013 Page 2 of 9"Whether the actions of the Management of the ONGC, Dhansiri Valley Project, Eastern Business Centre Jorhat, in not regularizing the labourers engaged in different sections of project is justified?"
5. Pleadings were exchanged before the CGIT and it was averred in the Union's affidavit that some 26 members of the association have since been appointed on regular basis and 37 workers have left their job for better prospect. Thus it was stated that regularization in the reference is expected to be made for only 201 casual workers from the original figure of 264 staff. The CGIT found merit in the claim for regularization and accordingly the reference was answered in favour of the workers through the award dated 12.03.1991.
6. The aggrieved management challenged the award through the Civil Rule No.4375/1991 and since another writ petition i.e. Civil Rule No.1907/1988 of the association claiming similar relief was pending from before, both cases were taken up for analogous consideration. The writ court after evaluating the material before the CGIT found no perversity in the judgment dated 05.08.1993 (Annexure-A) recorded in favour of the workers. Thus the award was upheld by dismissing the management's Civil Rule No.4375/1991. Accordingly the Workers' Association's Civil Rule No.1907/1988 was disposed of in the same terms.
7. The decision of the High Court was challenged by the management but their SLP(Civil) No.1303/1994 was dismissed by the Supreme Court on 25.02.1994 (Annexure-B). Following the finality of that litigation, the management regularized all the workmen involved in the first Reference No.1(C) of 1989. The complete implementation of the award was judiciously noticed in the dismissal of the COP(C) No.397/1994, through the Court's order dated 15.07.1996.
8. After the conclusion of the first round, another 37 employees in the Dhansiri Valley Project put forward a claim for regularization of their services and this gave rise to the 2nd reference, which is the subject matter of the present litigation. The pleadings were exchanged in the Reference No.1(C) of 1997 and the CGIT found that the 37 employees of the 2nd reference, were leftover from the earlier group of 264 workmen for whom, the 1st Reference No.1(C) of 1989 was formulated. It was the specific plea of the management that the 37 persons whose names have been referred in the Reference No.1(C) of 1997 were not parties in the earlier Reference No.1(C) of 1989 and it was thus asserted that the WA 63/2013 Page 3 of 9 case of the 2nd group in Reference No.1(C) of 1997 is dissimilar to the workmen, who were granted relief in the 1st Reference No.1(C) of 1989.
9. However, the specific pleading of the management was overlooked and it was erroneously declared that ONGC accepts that the 37 workmen were part of the 264 workmen, who secured relief in the 1st reference. As the award in the 1st reference in favour of those workmen attained finality through dismissal of the SLP, the CGIT without any basis and misreading the evidence concluded that the 2nd group of 37 are on the same footing as the 1st group of 264 workers. Hence the Tribunal declared that the later batch is entitled to similar relief. The reference was accordingly answered against the management and direction was issued to regularize the services of 33 workmen. It is appropriate to clarify here that although the Reference No.1(C) of 1997 originally involved 37 workmen, only 33 remained in the fray by the time the award was passed on 01.06.2001. Therefore the relief was confined to only 33 workmen by the CGIT, through its award dated 01.06.2001 (page-80).
10. The challenge of the management to the award in the 2nd industrial reference was rejected by dismissal of their WP(C) No.6096/2002 and therefore the Court's verdict dated 19.07.2012 (Annexure-H) is challenged by the ONGC in this writ appeal.
CONTENTION OF THE APPELLANTS 11.1 Mr. S.N. Sarma, the learned Sr. counsel submits that the workmen failed to adduce any relevant evidence before the Industrial Tribunal in support of their claim for regularization. In fact, the service status of the workmen, were never proved but the CGIT imprudently declared that the workmen in the 2nd batch, are covered by the decision in the 1st round.
11.2 Referring to the evidence of the WW-1 and WW-2 on behalf of the Workers' Association, Mr. Sarma submits that the concerned 34 workmen were projected to have been working for 240 days in each of the preceding years and thus their claim for regularization was on a different footing under the applicable standing orders and therefore he argues that this group cannot be said to be covered by the decision in the 1st reference.
WA 63/2013 Page 4 of 911.3 The appellants also contend that the Court in the COP(C) No.397/1994 had accepted that everyone entitled to the benefit of the first award dated 12.03.1991 were regularized and therefore it was illogical for the Tribunal to conclude that 33 workmen were the leftover staff from the 1st process.
11.4 The perversity in the award rendered on 01.06.2001 is projected by Mr. Sarma by reading from paragraph 5 of the management's written statement in the Reference No.1(C) of 1997. Here the dissimilarity in the later case of 37 claimants was specifically pleaded but nevertheless just the contrary conclusion was drawn by the Industrial Tribunal which erroneously declared that the management accepts that the 37 claimants were amongst the 264 staff, whose claim is covered by the Reference No.1(C) of 1989.
11.5 The appellants argue that the workmen in the 2nd reference must prove their documents and also produce material in support of their claim. But although they failed to adduce any relevant evidence, the 2nd award was mechanically passed with the erroneous observation that the 37 staff raising the industrial dispute were amongst the 264 workmen, who were benefited by the Reference No.1(C) of 1989.
CONTENTIONS OF THE WORKMEN 12.1 Espousing the interest of the workmen, Mr. P.K. Tiwari, the learned Sr. counsel submits that only because of the in-action of the management, the 37 workers were forced to raise a fresh industrial dispute to claim regularization, as they were part of the original group of 264 workmen who secured benefit in the 1st round. In order to support this contention, the Sr. advocate refers to the evidence of the WW-1 where the witness had testified that the names of the 34 workmen were not regularized on account of technical defect, but they are entitled to be regularized as they were in the group of 264 workmen.
12.2 The Sr. counsel reads the document marked as 'X' to project that this document amply demonstrates the bonafide of the claim of the 2nd group of workmen and therefore it is argued that the award rendered on 01.06.2001 was rightly upheld by the writ court.
12.3 The respondents also submit that the workmen have rendered service for many years and could have their service regularized through the WA 63/2013 Page 5 of 9 Tribunal, after a long legal battle and they wish early conclusion of the litigation process since only 24 claimants now remain to be regularized.
DISCUSSION & CONCLUSION
13. The arguments of the two counsel have received our earnest consideration. The Industrial Disputes Act does not provide any specific remedy or forum to challenge the award passed by the CGIT and therefore the only option for the aggrieved party is challenging the award in a writ proceeding. But it is well settled in certiorari jurisdiction that scrutiny of the writ court cannot be that of an appellate court and only when perversity is noticed or there is wrongful appreciation of evidence, the entertainment of the challenge would be acceptable to the court.
14. If we proceed on the above basis, the first thing that strikes the Court is the incorrect appreciation of the pleading of the management in respect of the applicability of the award dated 12.03.1991 in the 1st round to the 2nd group of claimants. The management was categorical in their stand that the 2nd group of 37 is not part of the 264 workmen whose claim was granted in the Reference No.1(C) of 1989 and yet, the crucial pleading was misread by the Tribunal to garner a contrary impression.
15. The award dated 01.06.2001 reflects that the learned CGIT based its decision on the incorrect assumption of the stand of the management. Moreover the Tribunal failed to appreciate the want of cogent evidence of the claimants in the 2nd reference. The Exhibits-1 to 31 were the documents which certified that the concerned person has the membership of the ONGC's Workers' Association but this surely was inadequate. Most surprisingly, the workmen failed to adduce evidence on the nature of their employment in furtherance of their claim for regularization. Nevertheless only because their claim was assumed to be covered by the decision in the 1st round, relief was granted to the workmen in the Reference No.1(C) of 1997.
16. Notice must be taken also of the fact that even for considering relief under the applicable Standing Orders, relevant evidence must be adduced and relief by way of compensation under Section 25F can then be granted to a deserving workman. But in any case, this burden must be discharged by the WA 63/2013 Page 6 of 9 workman, as has been authoritatively pronounced by the Supreme Court in Surendranagar District Panchayat Vs. Dahyabhai Amarsinh reported in (2005)8 SCC 750.
17. In the context of the arguments it is clear enough that the document marked 'X', which was enclosed as Annexure-10 to the counter affidavit in the Civil Rule No.4375/1991 was never introduced in the Reference No.1(C) of 1997 before the CGIT, but nevertheless document 'X' was heavily relied on by the learned Single Judge to dismiss the management's writ petition. Moreover when the COP(C) No.397/1994 was dismissed with the observation that the 1st award of 12.03.1991 was implemented and all workmen were regularized, it is unrealistic to assume in the face of the COP judgment that any leftover staff from the first is still languishing. But this vital contradiction was not appreciated properly by the writ court is dismissing the challenge to the 2nd award. That apart although the content of document 'X' was discussed earlier by the Court, the observation in the Civil Rule No.4375/1991 was not in the context of the claim now raised by the 37 workmen, which led to formulation of the 2nd reference, for the later group.
18. To substantiate their claim for regularization, the workmen should have adduced reliable evidence pertaining to their service profile, but this was never done in the 2nd reference and yet the reference was answered in favour of the claimants. Thus the award was not based on any relevant evidence. In the absence of material, the Tribunal according to us acted in excess of their jurisdiction and therefore the certiorari jurisdiction should have been invoked here.
19. However, the learned Single Judge rejected the challenge to the Tribunal's jurisdiction despite the absence of relevant and acceptable evidence. In the impugned judgment the court misconstrued the document 'X' to have been proved in the Tribunal which is incorrect and this is fairly acknowledged by Mr. P.K. Tiwari, the learned Sr. counsel. In the 2nd reference the Tribunal based their decision on the earlier round although no evidence was laid on the service status of the claimants.
20. The document 'X' which was annexed to the counter affidavit filed by the Workers' Association was not before the Tribunal as a material evidence and hence the ONGC had no opportunity to raise any objection on the content of the document 'X'. Nevertheless the purported non-objection by the management WA 63/2013 Page 7 of 9 to this document 'X' which contained the particulars of the 37 claimants, influenced the decision of the writ court. This in our respectful understanding justifies intervention with the impugned decision dated 19.07.2012 (page-253).
21. When a reference is made under Section 10 of the Industrial Disputes Act, the Tribunal must decide the referred question on the basis of material evidence but can't travel beyond the referred issue. But here what is noticed is that for the 37 claimants the Tribunal based their answer on the earlier reference involving 264 workmen and that is how it can be said that the Tribunal's decision, without any material to establish the service connection of the claimants with ONGC, was not proper.
22. If anyone from the original group of 264 were left out of the process of regularization that could have been a cause for penalty under Section 29 of the Industrial Disputes Act, but no such action was taken by the 2nd group of 23 if they were indeed covered by the first award of 12.03.1991. Moreover the contempt charge was rejected by this Court by dismissing the COP(C) No.397/1994 where the learned Judge noticed the regularization of the workmen covered by the first award. Thus without correction of this conclusion, the 2nd group of 37 can't be counted in the original group of 264 workmen.
23. But the question is should this leave the claimants without any redressal mechanism. Such result according to us will surely be harsh and be cause of injustice to the claimants. The problem perhaps can be resolved by facilitating a fresh opportunity to the workmen to adduce cogent evidence in a de novo proceeding before the CGIT. Naturally, if any evidence is led on the rebound by the workmen, the management too will have due opportunity to introduce their own evidence in the matter.
24. Having concluded thus, we interfere with the judgment dated 19.07.2012 (Annexure-H) in the WP(C) No.6096/2002 and also quash the award dated 01.06.2001. In consequence, the Reference No.1(C) of 1997 is remanded back to be adjudicated afresh by the Tribunal with due opportunity for both sides. In re-deciding the matter, the CGIT will base their decision on the evidence of the case and not be guided by the decision in the first reference in favour of 264 workmen. Before parting with the records, we may also observe that since the workmen are litigating for last so many years, the CGIT should attempt WA 63/2013 Page 8 of 9 expeditious disposal of the remanded reference preferably within 6(six) months of receipt of intimation of this order. Until the matter is re-decided, the interim direction issued by this Court on 04.06.2013 will continue to operate in respect of the workmen, who are still in service. It is ordered accordingly.
25. The case is thus allowed with the above order by leaving the parties to bear their respective cost.
JUDGE JUDGE
Roy
WA 63/2013 Page 9 of 9