Gujarat High Court
Ongc Employees Mazdoor Sabha vs Ongc Limited & on 26 April, 2013
Author: K.S.Jhaveri
Bench: Ks Jhaveri
ONGC EMPLOYEES MAZDOOR SABHA....Petitioner(s)V/SONGC LIMITED C/SCA/2248/2012 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 2248 of 2012 With SPECIAL CIVIL APPLICATION NO. 2813 of 2012 With SPECIAL CIVIL APPLICATION NO. 16777 of 2012 With CIVIL APPLICATION NO. 14144 of 2012 In SPECIAL CIVIL APPLICATION NO. 2813 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ ONGC EMPLOYEES MAZDOOR SABHA....Petitioner(s) Versus ONGC LIMITED & 1....Respondent(s) ================================================================ Appearance: MR MUKUL SINHA, ADVOCATE WITH MR KRISHNA G PILLAI for the Petitioner(s) No. 1 MR KAMAL TRIVEDI, SENIOR COUNSEL WITH MR AJAY R MEHTA, ADVOCATE for the Respondent(s) No. 1-2 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI Date : 26/04/2013 ORAL JUDGMENT
1. Special Civil Application No. 2248 of 2012 was also filed by the ONGC Employees Mazdoor Sabha Union praying for a declaration that all 577 concerned workmen, as per the list enclosed at Annexure A to the petition, were entitled for regular appointment from the date of their initial entry in the Corporation and to direct the Corporation to treat all the 577 concerned workmen as regularly appointed to the posts on which they were initially appointed.
1.1 The challenge in Special Civil Application No. 2813 of 2012 is to the order passed by the Presiding Officer, Industrial Tribunal-cum-Labour Court, Ahmedabad in Reference (ITC) No. 1476 of 2004, whereby the reference was partly allowed. The challenge is based mainly on the ground that the finding of the Tribunal that the engagement of 577 persons on term/tenure basis was untenable in law and in directing the petitioner Corporation to give regular appointment to such remaining term based appointees who were continued on the posts and further restraining the Corporation from importing recruitment from open market by inviting fresh applications for regular posts unless term based appointees are given regular appointment of Class III and Class IV posts.
1.2 On the other hand, Special Civil Application No. 16777 of 2012 was filed by ONGC Employees Mazdoor Sabha Union praying for issuance of a mandamus or writ in the nature of mandamus permanently restraining the respondent ONGC or its agent from recruiting or making any appointment from the open market to any Class III & Class IV post till all the term based employees who are the beneficiaries of the award dated 08.11.2011 are given regular appointment as per the said award.
1.3 Civil Application No. 14144 of 2012 is filed praying to vacate the stay granted by this court vide order dated 27.03.2012 in Special Civil Application No. 2813 of 2012 with Special Civil Application No. 2248 of 2012 whereby this Court had stayed the direction issued by the Tribunal not to import recruitment from open market inviting fresh applications for the regular posts .
2. The facts, in a nutshell, giving rise to the filing of the present petitions are as under:
2.1 The ONGC Employees Mazdoor Sabha (hereinafter referred to as the Union) raised a dispute before the Labour Commissioner (Conciliation Officer) on 21.08.2003 raising several demands including demand -1 for regularizing all time based appointees. In 2004, a failure of conciliation report was sent by the Regional Labour Commissioner to the appropriate Government and ultimately the dispute was referred to the Industrial Tribunal.
2.2 However, during the pendency of the proceedings before the Tribunal, in the year 2010, ONGC Limited (hereinafter referred to as the Corporation ) initiated recruitment for 396 posts of Technicians from the open market which was challenged by the Union before the Tribunal. The Tribunal rejected the application filed under Ex. 93 on the ground that the question of appointment of the concerned workmen would arise only when they succeed in the proceedings.
Thereafter, after hearing, the Tribunal vide award dated 08.11.2011 partially allowed the said reference and issued directions, inter alia, to undertake exercise of giving regular appointment to the remaining term based 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 and IV posts.
2.3 The corporation again issued advertisement for fresh recruitment from open market for 152 posts which, as per the union, was against the directions of the Tribunal. Being aggrieved by the same, the union approached this Court by way of filing Special Civil Application No. 18473 of 2011 wherein this Court granted stay against the said recruitment.
2.4 In the year 2012, the Union challenged the impugned award to the extent of claiming regular appointment of the concerned workmen from the date of their initial entry into the Corporation. The Corporation also challenged the entire award before this Court and prayed for quashing and setting aside the same. Both these petitions came to be heard together and this Court vide interim order directed the Corporation to make payment of regular salary to all the eligible workmen. This Court also kept in abeyance the direction of the Tribunal qua not to import fresh recruitment from the open market etc. 2.5 It is the case of the Union that placing a copy of this interim order, the Corporation got the stay granted earlier vacated and 152 candidates were appointed in the Corporation. The Corporation, thereafter, filed LPA No. 797 of 2012 challenging the interim direction passed by this Court on 27.03.2012 directing the respondents to pay regular salary to the concerned workmen who are beneficiaries of the award of the Tribunal which is pending. In the meantime, the Corporation again issued the impugned advertisements for recruitment of 509 regular workmen from the open market and therefore the Union has filed Special Civil Application No. 16777 of 2012.
3. Mr. Mukul Sinha, learned advocate appearing for the Union at the outset has clarified that the Union has approached this Court by way of the writ petitions for regular appointment and not for regularization of any unclear or irregular vacancy. In order to substantiate the case of the union, Mr. Sinha has raised the following contentions:
3.1 The Tribunal in its award dated 08.11.2011 categorically directed the respondents not to import recruitment from open market inviting fresh applications for the regular posts unless term appointees are given regular appointment for Class III & Class IV posts and therefore the present recruitment is in contravention of the direction of the Tribunal.
3.2 The direction of the Tribunal in para 22(vii) of the award dated 08.11.2011 is still operative and the interim order dated 27.03.2012 passed in Special Civil Application No. 2248 & 2813 of 2012 is under challenge in LPA No. 797 of 2012 filed by the Corporation and therefore the action of recruitment initiated by the Corporation amounts to contempt and hence respondents are required to be constrained.
3.3 In the proceedings before the Tribunal, it was clearly stated that there were 840 vacancies for regular appointment against which these eligible term based employees were appointed. During the pendency and after the award of the Tribunal, a total of 548 employees were recruited from the open market and another 509 workmen are proposed to be recruited through the impugned advertisement. If the Corporation is allowed to proceed with the impugned recruitment, no vacancy would be left against which the concerned workmen in whose favour the award of the Tribunal is passed.
3.4 The appointment of the workmen of the Union was for a particular project which was of perennial and permanent nature. The appointment of the workmen was neither illegal or irregular as the names of the concerned workmen were called from the Employment Exchange.
3.5 Attention has been drawn to the Model Standing Orders For Industrial Establishments Not Being Industrial Establishments In Coal Mines and more particularly the definition under Section 2 of Schedule I of The Industrial Employment (Standing Orders) Act, 1946 which reads as under:
2.
(a) Workmen shall be classified as, (1) permanent, (2) probationers, (3) badlis, (4) temporary, (5) casual, (6) apprentices
(b) 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, including breaks due to sickness, accident, leave, lock-out, strike (not being an illegal strike) or involuntary closure of the establishment.
(c) A "probationer" is a workman who is provisionally employed to fill a permanent vacancy in a post and has not completed three months service therein. If a permanent employee is employed as a probationer in a new post he may, at any time during the probationary period of three months, be reverted to his previous permanent post.
(d) A "badly" is a workman who is appointed in the post of a permanent workman or probationer who is temporarily absent.
(e) 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.
(f) A "casual" workman is a workman whose employment is of a casual nature.
(g) An "apprentice" is a learner who is paid an allowance during the period of his training.
3.6 Since 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 Wester Region and such contract labourers have put in more than 10 to 15 years of service by this time.
3.7 Out of the 577 employees, around 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 Corporation modified R & P Regulation, 1980. According to the custom and usage prevailing in the Corporation, on successful completion of training period in the Corporation s technical training institute, regular and permanent appointment orders are issued whereas in the present case about 313 employees, instead of getting the regular appointment were issued term based appointment orders which means that the Corporation has deviated from the existing custom prevailing though all these persons were appointed on regular and clear vacancies.
3.8 The attention of this Court was drawn to the issues framed by the Central Government Industrial Tribunal cum Labour Court, Ahmedabad in CGITA No. 1476 of 2004 which read as under:
Whether the reference is maintainable?
Have the second party union got valid cause of action in this case?
Whether the term based or tenure based appointment of the workman involved in this case is alike contractual job, or whether they were appointed following all the recruitment rules of the first party ONGC against vacancies?
Whether the demand of the union for giving regular appointment to the workman is like a demand raised for their back door entry in the service?
Whether the management of the ONGC (first party) has legal right to take such plea that since workman accepted their appointment as term base of 4 years, so they are debarred by estoppel by conduct to claim for regular appointment?
Whether the first parties (ONGC) have given true assessment that all the workmen involved were appointed for exploration project and since exploration project is shrinking so there would be no requirement of workmen for further extension of term/tenure after 31.12.2004?
Whether the demand of union (ONGC Employees Mazdoor Sabha) for giving regular appointment to 577 term base appointees (as per list enclosed) is proper and justified?
What orders in this case required?
3.9 The directions which are issued are in consonance with Rules 4, 11, 12, 13(3) and 26 of the Standing Orders and the same clearly establish that it was regular recruitment in consonance with the rules framed by the company itself.
3.10. Attention is drawn to Rule 6 of the Modified Recruitment & Promotion Regulations, 1980 and it is submitted that the corporation has committed unfair labour practice by creating new posts which are not envisaged under the rules and therefore concerned workmen of the petitioner union are required to be declared recruited against a clear vacancy on permanent basis.
3.11 A perusal of the appointment letter would reveal the fact that the appointment contained all the requirements of a regular appointment as per the Recruitment and Promotion Regulations and in fact 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 not for any term based appointment as all the conditions of regular appointment have been made applicable in this case.
3.12 The standing orders shall apply on the facts and circumstances of the present case, however, even if it is assumed that the Rules shall be applicable, then it is required to be noted that the probation period of one year is over in cases of all the concerned workmen and therefore the contention that the workmen are appointed on term based or tenure based is misconceived and the same is an after thought to the demand raised by the petitioner union.
3.13 Attention is also drawn to the cross examination at page 263 and the reply filed by one Ms. Minaxi Krishnan, more particularly para 14, the relevant portion of which reads as under:
... Appoints were made considering the need of the Corporation s various facets as a whole which ultimately would be based upon exploratory works and its results. Without prejudice to the various contentions of the petitioner, the petitioner submits that total vacancies in western region in or around 1990 were 840 of which even as on date more than 232 are not filled in. Thus, merely because vacancies exist can by no stretch of imagination require the petitioner to fill such vacancies only on a permanent basis since that would entail ongoing monumental expenses....
3.14 Considering the same, it is clear that out of 577 vacancies, around 220 vacancies are still required to be filled in which is also evident from the cross examination of the concerned officer at page 559 of the paper book .
4. In support of his submissions, Mr. Sinha has relied upon the following decisions:
4.1 Bharatiya Seva Samaj Trust through President and Another vs. Yogesh Ambalal Patel and Another reported in (2012) 9 SCC 310 wherein para 28 reads as under:
28. A person alleging his own infamy cannot be heard at any forum, what to talk of a Writ Court, as explained by the legal maxim allegans suam turpitudinem non est audiendus'. If a party has committed a wrong, he cannot be permitted to take the benefit of his own wrong. (Vide: G. S. Lamba & Ors. v. Union of India & Ors., AIR 1985 SC 1019; Narender Chadha & Ors. v. Union of India &
Ors., AIR 1986 SC 638; Molly Joseph @ Nish v. George Sebastian @ Joy, AIR 1997 SC 109; Jose v. Alice &
Anr., (1996) 6 SCC 342; and T. Srinivasan v. T. Varalakshmi (Mrs.), AIR 1999 SC 595).
4.2 Unreported decision dated 28.03.2012 passed by this Court in Special Civil Application No. 2416 of 2011 relevant paras of which read as under:
6. Having heard both the sides, the bone of contention is whether the respondent was appointed after following due recruitment procedure or was he a backdoor entrant. It has been strongly pleaded before this Court that the respondent was a ''backdoor entrant and therefore, he is not entitled to get the benefits of regularization and time scale pay in view of the decision in Umadevi's case (supra). The principle rendered in Umadevi's case (supra) is clear and unambiguous. It does not create an embargo on the powers of the Industrial Tribunals or Labour Courts in passing appropriate orders, if it is found that the workman is a victim of unfair labour practice adopted by the employer. The principle rendered in Umadevi's case (supra) has been interpreted in the subsequent decision of the Apex Court in Casteribe Rajya Parivahan Karmchari Sanghtana's case (supra). Thus, by now, it is well settled that Industrial Tribunals or Labour Courts can issue directions for absorption, regularization or permanent continuance if the recruitment is made regularly and in terms of the Constitutional scheme.
xxx xxx xxx 13. From the
above, it is clear that the respondent herein is similarly situated to the workmen concerned in each of the above cases. In the above cases, the concerned workmen were also employed as Casual Labourers in the Ticket Section of different Divisions of the petitioner Corporation. Though appointment was made after following due recruitment procedure, the petitioner Corporation is trying to defend its case by pleading that the respondent workman was a backdoor entrant. The petitioner Corporation, being a public body, ought not to have taken such defence, which, I am sorry to say, points towards the dismal state of affairs of the Corporation. This is nothing but an attempt on the part of the Corporation to take shelter of the decision rendered by the Apex Court in Umadevi's case (supra).
14. It is a matter of fact that the case of the respondent workman would be governed by Clause 20 of the Settlement (Exhibit15) which provides that Casual Labourers (Rojamdars) who have been appointed against sanctioned permanent posts and who have rendered continuous service of 180 days from the date of their appointment are entitled to get the benefit of timescale. In Para 13 of the impugned award, the Industrial Tribunal has narrated the total numbers of days of work put in by the respondent workman in a tabular form on the basis of the Attendance Sheets, which were produced on record vide Exhibits 22 to 53. At this juncture, it would be relevant to note that the petitioner Corporation had not produced the Attendance Sheets / Muster Roll though call for, which speaks for itself. From the said documents, it is evident that the respondent workman had rendered the requisite days of work, which would entitle him to get the benefit of timescale, as provided under Clause20 of the Settlement.
4.3 Chief Conservator of Forests and another vs. Jagannath Maruti Kondhare reported in AIR 1996 SC 2898 wherein para 22 reads as under:
22. We have given our due thought to the aforesaid rival contentions and, according to us, the object of the State Act, inter alia, being prevention of certain unfair labour practices, the same would be thwarted or get frustrated if such a burden is placed on a workman which he cannot reasonably discharge. In our opinion, it would be permissible on facts of a particular case to draw the inference mentioned in the second part of the item, if badlis, casuals or temporaries are continued as such for years. We further state that the present was such a case inasmuch as from the materials on record we are satisifed that the 25 workmen who went to Industrial Court of Pune (and 15 to Industrial Court, Ahmednagar) had been kept as casuals for long years with the primary object of depriving them the status of permanent employees inasmuch as giving of this status would have required the employer to pay the workmen at a rate higher than the one fixed under the Minimum Wages Act. We can think of no other possible object as, it may be remembered that the Pachgaon Parwati Scheme was intended to cater to the recreational and educational aspirations also of the populance, which are not ephemeral objects, but par excellence permanent. We would say the same about environment-pollution-care work of Ahmednagar, whose need is on increase because of increase in pollution. Permanency is thus writ large on the face of both the types of work. If, even in such projects, persons are kept in jobs on casual basis for years the object manifests itself; no scrutiny is required. We, therefore, answer the second question also against the appellants.
4.4 Western India Match Company Ltd. vs. Workmen reported in AIR 1973 SC 2650 wherein para 9 reads as under:
9. The special agreement, in so far as it provides for additional four months of probation, is an act in contravention of the Standing Order. We have already held that. It plainly follows from sections 4, 10 and 13(2) that the inconsistent part of the special agreement cannot pre- vail over the Standing Order. As long as the Standing Order is in force, it is binding on the Company as well as the workmen. To uphold the special agreement would mean giving a go by to the Acts principle of three party participation in the settlement of terms of employment. So we are of opinion that the inconsistent part of the special agreement is ineffective and unenforceable.
4.5 Harjinder Singh vs. Punjab State Warehousing Corporation reported in (2010) 3 SCC 192, para 21 of which reads as under:
21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty-bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43-A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues.
4.6 G.M. ONGC, Shilchar vs. ONGC Contractual Workers Union reported in (2008) 12 SCC 275, more particularly paras 9, 12, & 18 which read as under:
9. Mr. Sanyal, the learned senior counsel has, at the very outset, pointed out that pursuant to the observations of this Court, the ONGC had made an offer for absorption of the workmen by way of an additional affidavit dated 14th February 2001 and the Union had been seriously inclined to accept that offer, but had sought some minor clarifications from the ONGC (which were not forthcoming) and on the contrary, the ONGC had moved I.A. No.7/2007 withdrawing the said offer and suggesting another voluntary retirement scheme which was not acceptable to the members of the Union. It has accordingly been pleaded that it was the ONGC which had been unfair in its dealings and that despite the passage of almost 28 years, the workmen had not been able to get any substantial relief
12. It has further been highlighted that reliance by the appellant on Uma Devi's case was misplaced as this matter had been clarified and explained by this Court in U.P. State Electricity Board vs. Pooran Chandra Pandey,
18. There are several observations which do suggest that a workman who has put in 240 days or is a contractual worker, is not entitled automatically to regularization. We, however, believe that the present case is not one of regularization simpliciter such as in the case of an ad-hoc or casual employee claiming this privilege. The basic issue in the present case is the status of the workmen and whether they were the employees of the ONGC or the contractor and in the event that they were employees of the former, a claim to be treated at par with other such employees. As would be clear from the discussion a little later, this was the basic issue on which the parties went to trial, notwithstanding the confusion created by the ill-worded reference.
The Division Bench has examined the evidence on this aspect and has endorsed the finding of the Industrial Tribunal. We also find that the observations in R.K.Panda's case(supra) are significant:
"7. It is true that with the passage of time and purely with a view to safeguard the interests of workers, many principal employees while renewing the contracts have been insisting that the contractor or the new contractor retains the old employees. In fact, such a condition is incorporated in the contract itself. However, such a clause in the contract which is benevolently inserted in the contract to protect the continuance of the source of livelihood of the contract labour cannot by itself give rise to a right to regularization in the employment of the principal employer. Whether the contract labourers have become the employees of the principal employer in course of time and whether the engagement and employment of labourers through a contractor is a mere camouflage and a smokescreen, as has been urged in this case, is a question of fact and has to be established by the contract labourers on the basis of the requisite material. It is not possible for the High Court or this Court, while exercising writ jurisdiction or jurisdiction under Article 136 to decide such questions, only on the basis of the affidavits. It need not be pointed out that in all such cases, the labourers are initially employed and engaged by the contractors. As such at what point of time a direct link is established between the contract labourers and the principal employer, eliminating the contractor from the scene, is a matter which has to be established on material produced before the court. Normally, the Labour Court and the Industrial Tribunal, under the Industrial Disputes Act are the competent fora to adjudicate such disputes on the basis of the oral and documentary evidence produced before them."
4.7 Mineral Exploration Corporation Employees Union vs. Mineral Exploration Corporation Ltd. and Another reported in 2006 AIR SCW 3865, wherein paras 33 to 37 read as under:
33. Ample material was placed before us to show that the temporary/contingent employees have been doing the work of permanent nature and the temporary employees are required to do work which was used to be done by skilled employees. The Annual Report of the Corporation for the year 1995-96 was also considered by the Tribunal. It appears from the Annual Report and the Magazine of the Corporation that the Corporation has sufficient work and the financial condition of the Corporation is also satisfactory.
34. The Respondent is an industry governed by the provisions of Industrial Disputes Act, 1947 as well as the provisions of the Industrial Employment Standing Orders Act, 1946. The Standing Orders defined temporary and casual employees as under:-
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' `A "CASUAL"
WORKMAN IS A WOKRMAN WHOSE EMPLOYMENT IS OF CASUAL LABOUR'
35. Therefore, it will be clear that, the employees engaged and continued for years together cannot be termed as temporary or casuals.
36. The respondent-management itself effected transfer of employees from one project to another and granted them benefit e.g. T.A., D.A. etc. The term contingent employee is totally unknown to Industrial Law. To deny the benefits available to regular employees, certain employees are termed as contingent workers. Once an employee completes 240 days, he is deemed to be a permanent employee. The term contingent employee is not included in Standing Orders.
37. Usual practice of the Corporation has been to keep contingent workmen for long duration of time and offering regular appointment periodically which abruptly had stopped due to unfair attitude of the Management.
Reduction in work leading to poor physical and financial performance has been a result of incompetent and poor Management which cannot be allowed to play with the future of thousands of employees and their families.
4.8 Mr. Sinha, therefore, submitted that on a perusal of pages 141, 143 and 144 of the paper book which are the memorandums of the corporation it is clear that the findings given by the Tribunal are in favour of the workmen of the petitioner union and after proper appreciation of evidence. It is submitted that the directions issued in clause VI & VIII are required to be modified and it required to be declared that the petitioner are regular employees of the Corporation.
5. Mr. Kamal Trivedi, learned Senior Counsel appearing with Mr. Ajay Mehta for the Corporation has raised the following contentions:
5.1 The reference of Industrial Dispute in question was for regularization of 577 term based appointees and not of absorption of the said 577 term based appointees nor for conferment of permanence upon them in the regular appointment. Under the circumstances, there was never a question of automatic absorption of 577 term based appointees in the employment of ONGC.
5.2 Admittedly, the said 577 term based appointees were recruited in Class III and Class IV categories, not as a result of any public advertisement issued, inviting applications from the open market, but their appointments were made by calling their names through Employment Exchange in the phased manner as under:
Sr. No. Year Number of Persons appointed on term basis 1 1999 37 2 2000 384 3 2001 155 4 2002 1 Total 577 5.3 Article 16 deals with a fundamental right, which ensures equal opportunity to the citizens in the matter of public employment. To fulfill the said spirit of Article 16, it is not only necessary to call for names from the Employment Exchange, but due advertisement of posts in newspapers is also necessary, so that all those who are interested in such employment can have equal opportunity of competing with each other.
Any infraction of this fundamental right, though permissible under the Recruitment Rules will render the appointment irregular.
5.4 Merely because call letters did not specify that the appointment in question was going to be term based appointment, the likely nature of the appointment as discernible from the appointment letter cannot be altered. Appointment letters issued to the said term based appointees clearly stated that appointment was on term basis for a period of four years. Thus no significance should be attached to the call letters which ultimately culminated in the said appointment order.
5.5 As per the classification provided under Schedule 1 to the Industrial Employment (Standing Orders) Central Rules, 1946, the said term based appointees can very well be described as temporary workmen who were appointed initially for a particular work which was expected to be over within a limited period. It is noteworthy that what should be the duration for treating a workman as a temporary workman has not been specified under the standing orders.
5.6 The aforesaid 577 term based appointees came to be appointed for a period of four years. Initially, they were kept on probation for a period of one year so that on expiry of the said period if the work performance is satisfactory, they will be continued for the remainder period of the term but not as regular permanent employees and under the circumstances, it does not lie in the mouth of the Union to contend that on the satisfactory completion of probation period of one year, the said term based appointees should be deemed to have achieved permanent status.
5.7 It was only in the years 2009-10, 2010-11 and 2011-12 that 396, 150 and 509 posts respectively in Class III and Class IV came to be sanctioned for which the recruitment drive was undertaken pursuant to the advertisements dated 12.11.2009, 18.09.2011 and 25.11.2012 inviting applications for regular appointments from the open market including the said 577 tenure based appointees. Out of the said 577 persons, over the passage of time, 111 tenure based appointees have already been regularized, leaving 46 tenure based appointees who are no more available owing to death, resignations etc. In response to the aforesaid public advertisement dated 25.11.2012 with regard to 509 regular sanctioned posts in class III, 284 tenure based appointees out of the remaining 420 have also applied who would be considered with some relaxation.
5.8 The Tribunal s finding in paragraph 17 of the impugned award with regard to there being 840 vacant posts and the tenure based appointees being appointed against the said posts is wholly untenable. Neither in the pleadings of the union nor in the deposition, any such assertion is made. In the absence of either pleading or proof on behalf of the union, the same was not an issue on which any judgement could have been rendered by the Tribunal. The union s reliance in this regard on the affidavit in rejoinder filed in Special Civil Application No. 22456 of 2005 and cross examination of the corporation s witness at Ex. 72 is totally misplaced and cannot be a basis for the said finding. The said finding therefore deserves to be quashed and set aside.
5.9 If the version of the corporation s witnesses Ms. R.S. Narayani at Ex. 72 and Ms. Usha Prabhakar at Ex. 88 is considered in light of the document produced at Ex. 68(2), it becomes clear that any post in ONGC becomes a sanctioned post only if it is approved by the Corporation s Head Quarters as per the Government Directives and if there is a ban on recruitment or if there is a direction to reduce the employment strength, the so-called vacancy and any recruitment in the same without approval of the Corporation s Head Quarters will not convert the said recruitment against the sanctioned post . Therefore, recruitment of 577 term based appointees cannot be considered against the sanctioned posts.
5.10 Direction contained in para 22(vii) of the impugned award of the Central Government Industrial Tribunal cum Labour Court, Ahmedabad in Reference No. CGITA of 1476 of 2004 is against the law relating to regularization of irregularly recruited persons in public appointment as declared by the Constitution Bench of the Apex Court.
5.11 Thus, regularization does not mean automatic absorption , nor does it mean conferment of permanence but it only means an opportunity for being considered to be taken in regular employment with some relaxation as compared to the candidates from open market. In the instant case, the Industrial Tribunal instead of following the Constitution Bench judgement of the Apex Court came out with an embargo on recruitment from the open market until all the tenure based appointees in question are absorbed and given regular appointments in Class III and Class IV posts.
6. Mr. Trivedi, in support of his submissions, has relied upon the following decisions:
6.1 Constitution Bench judgement in the case of Secretary, State of Karnataka and others v. Umadevi and others [(2006) 4 SCC 1] . The important and relevant observations are extracted as under:
2. .....Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that unequals are not treated equals. Thus, any public employment has to be in terms of the constitutional scheme.
3. .....Regular appointment must be the rule.
4. .....The Courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. ..... It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established.
The passing of orders for continuance, tends to defeat the very constitutional scheme of public employment. ......wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment.....
6. The power of a State as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily.........It is recognized that no Government order, notification or circular can be substituted for the statutory rules framed under the authority of law. This is because, following any other course could be disastrous inasmuch as it will deprive the security of tenure and the right of equality conferred on civil servants under the constitutional scheme. ......Therefore, when statutory rules are framed under Article 309 of the Constitution which are exhaustive, the only fair means to adopt is to make appointments based on the rules so framed.
12. .....This right of the Union or of the State Government cannot but be recognized and there is nothing in the Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. .....It is ordinarily not proper for courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme .
13. .....In this context, we have also to bear in mind the exposition of law by a Constitution Bench in State of Punjab v. Jagdip Singh & Ors. [1964 (4) SCR 964]. It was held therein, In our opinion, where a government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give, he will not in law be deemed to have been validly appointed to the post or given the particular status.
14. .......The very divergence in approach in this court, the so-called equitable approach made in some, as against those decision which have insisted on the rules being followed, also justifies a firm decision by this court one way or the other. It is necessary to put an end to uncertainty and clarify the legal position emerging from the constitutional scheme, leaving the High Courts to follow necessarily, the law thus laid down.
15. ......If the appointment itself is in violation of the provisions of the Constitution, illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority, but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment.
19. ......Obviously, the State is also controlled by economic considerations and financial implications of any public employment. .... So, the court ought not to impose a financial burden on the State by such directions, as such directions may turn counter-productive.
33. .....By and large what emerges is that regular recruitment should be insisted upon, only in a contingency an ad-hoc appointment can be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularization.
38. In Union Public Service Commission v. Girish Jayanti Vaghela & Others [(2006)2 SCC 482] this court answered the question, who was a government servant, and stated:-
....A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement, inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would vitiate the guarantee enshrined under Article 16 of the Constitution (See B.S.Minhas v. Indian Statistical Institute and others AIR 1984 SC 363).
39. .....But on survey of authorities, the predominant view is seen to be that such appointments did not confer any right on the appointees and that the court cannot direct their absorption or regularization or re-engagement or making them permanent.
43. ....Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our 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 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 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.
46. ......Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularized in the service though they had not been selected in terms of the rules for appointment.
48. ......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. ...... 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....
49. ..........When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced.....
50. ......... In the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. .....The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. ......It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality.
51. The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. .....The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.
52. .....This classical position continues and a mandamus could not be issued in favour of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.
53. .......There may be cases where irregular appointments (not illegal appointments) as explained in S.V.Narayanappa (supra), R.N.Nanjundappa (supra) and B.N.Nagarjan (supra) and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.
54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.
(emphasis added) 6.2 Official Liquidator vs. Dayanand reported in (2008) 10 SCC 1 wherein paras 90 to 92 read as under:
90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass root will not be able to decide as to which of the judgment lay down the correct law and which one should be followed.
91. We may add that in our constitutional set up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions.
Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the Constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.
92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judges Bench in UP State Electricity Board vs. Pooran Chandra Pandey (supra) should be read as obiter and the same should neither be treated as binding by the High Courts, Tribunals and other judicial foras nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench.
6.3 State of Karnataka vs. G.V. Chandrashekhar reported in (2009) 4 SCC 342 wherein paras 14, 15 & 32 read as under:
14.
Respondents have been working as mazdoors and sought for regularization of their services having completed more than 10 years of service. As their applications for regularization was denied by the appellants, they approached the Karnataka Administrative Tribunal which by its order dated 24.7.2003 directed that the claim of the respondents be examined and decided within 90 days from the date of receipt of the order and in the event of having completed 10 years of service, on any subsequent date, on any day prior to or after the date of filing of the application, the appellants shall consider the claim for regularization.
15. Challenging the order of the Tribunal, appellant State approached the High Court, by way of writ which was rejected by reason of order dated 28.1.2004 and directing it to consider the claim of the respondents following the judgment in State of Karnataka, By Secretary Forest Department, Bangalore and Ors. vs. T.B. Manjunath and Ors. and Premakala Shetty vs. Common Cadre Committee.
32. The Bench noticed several judgments/orders of different Benches taking a view contrary to Uma Devi (3) (supra) to opine that those cases were illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system. It was opined:
90.
We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass root will not be able to decide as to which of the judgments lay down the correct law and which one should be followed.
91. We may add that in our constitutional set up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the Constitutional ideals. This principle is required to be observed with greater vigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.
92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judges Bench in U.P. State Electricity Board v. Pooran Chandra Pandey (supra) should be read as obiter and the same should neither be treated as binding by the High Courts, Tribunals and other judicial foras nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench.
We feel bound by the observations made therein. Initial recruitment of the respondents being wholly illegal and contrary to the constitutional scheme of this country, the impugned judgment of the High Court cannot be upheld. It is set aside accordingly.
6.4 E. Madan Mohan Rao vs. Registrar Kakatiya University, Warangal reported in 1988 Vol. I LLJ 65, para 12 of which reads as under:
12. The first ground urged by Mr. K. Pratap Reddy, learned counsel for the University, is that the petitioner in W.P. No. 1979/85 and the second petitioner in the other writ petition cannot be said to have suffered any prejudice in as much as they did in fact know of the notification and did in fact apply and were also interviewed. It may however be noticed that the present writ petitions were filed even before the interviews commenced. Secondly, as pointed out by the Supreme Court in B. S. Minhas v. Indian Statistical Institute (supra) the fact that these petitioners could apply or that their cases were considered by the Selection Committee is no answer and certainly not a cure for the violation, because other similarly placed persons did never know of it and therefore could not apply for the said posts.
The University is not performing a private function while publishing the notification calling for applications for appointment to teaching posts. It is a public function and having regard to the law relating to the corporation as set out by the Supreme Court in M. Pentiah v. Veeramallappa, (supra) it must be held that the notification so published and all the proceedings taken in pursuance thereof are ultra vires the powers of the University. In such a case, the plea of lack of locus standi cannot be entertained in any event after the decision of the Supreme Court in S. P. Gupta and others v. President of India and others, . The objection on the ground of locus standi looses all its significance where the function is public in nature. The distinction between an act causing private injury and an act causing public injury is pointed out at page 190 of the report. According to the said distinction the violation committed here is prejudicial to public interest, in which case the question of locus standi has no significance. But even assuming that it is a private injury confined to a particular person, a class or group, still as pointed out by the Supreme Court in B. S. Minhas v. Indian Statistical Institute (supra) the act done in violation of bye-laws and constitutional obligation cannot be saved, even though the case of the person complaining of has in fact been considered. When the object is to attract talent from all over the country, it is not enough to say that because sufficient talent is available within the District or within the State, the Ordinances need not be followed. Mr. Pratap Reddy sought to convince me that among the persons applied, there are several highly qualified persons. May be, but it is not for me to judge their merits. Moreover, it may be that better persons are available than those who actually applied and those persons would have applied if a proper publicity as required by the Ordinances had been given in the notification calling for applications. If the intention of the University is to confine the field of choice to this State, nothing prevented it from modifying or amending the Ordinances. But it is not open for the University to keep the Ordinances, as they now stand, and at the same time flout them and act in total disregard of them.
6.5 Ms. Kenjum Riba and Others vs. State of Arunachal Pradesh and Others reported in 2003 Lab IC 585, para 6 is reproduced as under:
6. Our answer to the first question is that if it is admitted that there had been no advertisement and the constitution of the Interview Board was not in accordance with the Government order dated 24.3.1999 then the question of giving any opportunity under the rules of natural justice would not arise. The appointment given under such circumstances are not valid. Is the Deputy Commissioner above all ? Answer is no. It is not understood as to why did he approve the holding of the Interview Board without advertisement. The papers were put up to him on 19.3.2001 and the schools were to close down on account of summer vacation with effect from 17.4.2001. Hence the posts could have easily been advertised. The Deputy Commissioner should have been careful in granting approval to hold the interview without advertisement. Such appointments without giving opportunity to the other desirous candidates would be violative of the Article 16 of the Constitution. So far as the second question is concerned, the approval that may have been accorded by the Deputy Commissioner to the constitution of the Interview Board cannot supersede the Government Order or the notification laying down the constitution of the Board. Admittedly, the Board approved by the Deputy Commissioner was not in consonance with the constitution of the Board as envisaged by the order 24.3.1999 (supra).
6.6 K. Shekhar vs. V. Indiramma and Others reported in AIR 2002 SC 1230, more particularly para 23 which reads as under:
23. If we start with the 'root', - there can be no doubt that the appellant's appointment as Lecturer in 1986 was not in terms of the advertisement pursuant to which he had applied. Before any appointment could be made to the post of Lecturer, the post should have been advertised together with the eligibility criteria in respect thereof. The submission of NIMHANS was that since the post of Lecturer was lower than an Assistant Professor's, it was not necessary to be advertised. If this argument were accepted, it would amount to a violation of Articles 14 and 16. The absence of an advertisement necessarily deprived persons who could have applied for the post, of the opportunity of applying for the post. The clause in the advertisement which enabled the Selection Committee to recommend the candidate for a lower post if the candidate was not found suitable to fill the post applied for, did not give NIMHANS the power to appoint the recommended candidate against an unadvertised post. Significantly, in the other advertisements on record dated 6.12.1986 and 1.6.1989, the post of Assistant Professor and the post of Lecturer were both advertised.
6.7 M.P. State Coop. Bank Ltd., Bhopal vs. Nanuram Yadav and Others reported in (2007) 8 SCC 264, wherein the relevant paras 23 & 24 read as under:
23. In Indian Drugs & Pharmaceuticals Ltd. vs. Workmen, after referring the decision in Uma Devi's case (supra) and other decisions, this Court observed that the appointments made without following the appropriate procedure under the Rules/Government Circulars and without advertisement or inviting application from the open market was held to be in fragrant breach of Arts. 14 & 16 of the Constitution of India. It was further held that the Rules of recruitment cannot be relaxed and the Court/Tribunal cannot direct regularization of temporary appointees de hors the Rules, nor can it direct continuation of service of a temporary employee (whether called a casual, ad hoc or daily-rated employee) or payment of regular salaries to them.
24. It is clear that in the matter of public appointments, the following principles are to be followed:
The appointments made without following the appropriate procedure under the Rules/Government Circulars and without advertisement or inviting applications from the open market would amount to breach of Arts. 14 & 16 of the Constitution of India.
Regularisation cannot be a mode of appointment.
An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization.
Those who come by back door should go through that door.
No regularization is permissible in exercise of the statutory power conferred under Art. 162 of the Constitution of India if the appointments have been made in contravention of the statutory Rules.
The Court should not exercise its jurisdiction on misplaced sympathy.
If the mischief played so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection.
When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside.
6.8 State of Orissa and Another vs. Mamata Mohanty reported in (2011) 3 SCC 436, wherein paras 35 & 36 are as under:
35. At one time this Court had been of the view that calling the names from Employment Exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all 18 eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in Radio and Television as merely calling the names from the Employment Exchange does not meet the requirement of the said Article of the Constitution. (Vide: Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi &
Ors., AIR 1992 SC 789; State of Haryana & Ors. v. Piara Singh & Ors., AIR 1992 SC 2130; Excise Superintendent Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao &
Ors., (1996) 6 SCC 216; Arun Tewari & Ors. v. Zila Mansavi Shikshak Sangh & Ors., AIR 1998 SC 331; Binod Kumar Gupta & Ors. v. Ram Ashray Mahoto & Ors., AIR 2005 SC 2103; National Fertilizers Ltd. & Ors. v. Somvir Singh, AIR 2006 SC 2319; Telecom District Manager & Ors. v. Keshab Deb, (2008) 8 SCC 402; State of Bihar v. Upendra Narayan Singh &
Ors., (2009) 5 SCC 65; and State of Madhya Pradesh & Anr. v. Mohd. Ibrahim, (2009) 15 SCC 214).
36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.
6.9 State of Madhya Pradesh and Another vs. Mohd. Abrahim reported in (2009) 15 SCC 214 relevant paras being 1, 4 to 6 & 12 to 15
1. Leave Granted. The respondent was appointed on the post of driver on daily-wage basis.He was initially appointed for 89 days. His services admittedly had not been regularized. He was not placed in the category of a permanent employee in terms of the Standing Order framed under Madhya Pradesh Industrial Relations Act, 1960 (for short the Act ).
4. An application under Sections 61 and 62 of the Act was filed by the respondent on or about 11.07.1988 praying for his classification in permanent category on the post of driver. By reason of a judgment and order dated 6.10.1997, the Labour Court allowed the said application, opining:
(i) As the appellants had classified Iqbal Singh Tuteja who was junior to him in permanent category, the respondent was discriminated against.
(ii) Having regard to the admission made by the witnesses examined on behalf of the appellants that despite the respondent having been working since 22.09.1980 but denied the benefit of classification on a permanent post only because he was a daily-wage employee, the said action was not justified.
(iii) As the appellants did not produce the records in its possession, an adverse inference should be drawn.
(iv) As there was no difference in work of a driver as a daily wager and a work charged employee or a regular employee, after the death of Iqbal Singh Tuteja, the appellant should have been placed in the permanent category of a driver.
5. It was held:
8. On the basis of the above discussion, it is proved that the appointment of the applicant was prior to the opposite party No. 3 Iqbal Singh Tuteja i.e. prior to 22.9.80. The applicant being regular in the past and from 11.7.86 be given the benefits of pay and benefits of a regular driver.
6. The High Court, by reason of the impugned judgment, dismissed the writ petition filed by the appellants, stating: 4. Respondent No. 3 Iqbal Singh has also died. Service book of the Respondent No. 3 has not been produced by the petitioners before the Labour Court, neither they have specifically stated that what was the date of engagement of the Respondent No. 3. It appears that they have deliberately suppressed this fact before the Court. After analyzing the aforesaid factual position the Labour Court has held that the present respondent in this petition is entitled for the post of regular driver with effect from 11.7.1986. This finding of the Labour has also been upheld by the Industrial Tribunal.
12. Appellant No. 1 is a State within the meaning of Article 12 of the Constitution of India. In making offers of public appointment, it is necessary to follow the constitutional scheme laid down in Articles 14 and 16 of the Constitution of India. For the purpose of legal and valid recruitment, the provisions of the recruitment rules are required to be complied with. An appointment through side door being an appointment in violation of Articles 14 and 16 of the Constitution of India would be illegal. It has been so held by a Constitution Bench of this Court in Secretary, State of Karnataka and Others v. Umadevi (3) and Others [(2006) 4 SCC 1] [See also Official Liquidator v. Dayanand and Others (2008) 10 SCC 1, State of Bihar v. Upendra Narayan Singh & Others, 2009 (4) SCALE 282.
The contention raised on behalf of the appellants is, furthermore directly covered by a decision of this Court in State of M.P. and Others v. Lalit Kumar Verma [(2007) 1 SCC 575]. Respondent therein was appointed on daily wages. His recruitment was not made in terms of the statutory rules. Even no offer of appointment was issued. On the premise that he had worked continuously for a period of more than six months, an award was passed by the Labour Court directing his classification on a permanent basis. The High Court also dismissed the writ petition filed by the appellants.
This Court opined:
12. The question which, thus, arises for consideration, would be:
Is there any distinction between irregular appointment and illegal appointment ? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is State within the meaning of Article 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance with the constitutional scheme as also the rules have been made, the appointment may be irregular in the sense that some provisions of some rules might not have been strictly adhered to.
***
*** ***
The Labour
Court, Industrial Tribunal as also the High Court, therefore, were not correct in directing regularisation of service of the respondent.
Our attention has been further drawn to the fact that by reason of an office order dated 26-4-2004, the award of the Labour Court as also the High Court had been implemented by classifying the respondent as permanent on the basis of daily wages clerk.
15. In view of the aforementioned authoritative pronouncements, the impugned judgment cannot be sustained which is set aside accordingly. However, in the event, if it is found that after the death of Iqbal Singh Tuteja the respondent was otherwise entitled to classification in the permanent category, the appellants shall be well advised to accord him the said status.
6.10 Oil and Natural Gas Corporation Ltd. Vs. Engineering Mazdoor Sangh reported in (2009) 10 SCC 641 relevant pars being 1, 4, 5, 7, 8 & 22.
Relevant paras read as under:
1. The Oil and Natural Gas Corporation Ltd., (hereinafter referred to as `the O.N.G.C.') is a public sector undertaking which carries out geological and geophysical surveys for the exploration of petroleum.
Such work is seasonal and is confined to the period between November each year and the months of April or May of the following year.
The aforesaid Reference was answered in favour of the workmen though the Tribunal made it clear that the Reference was to be restricted to those workmen whose names appeared in the Schedule to the affidavit filed by the O.N.G.C. The Tribunal directed the O.N.G.C. to consider the names of those workmen in the same descending order in which they were mentioned in the Schedule as and when vacancies occurred and to regularize them provided they satisfied the prescribed educational qualifications and had also put in 240 days of work in a year. The O.N.G.C. was also directed to give such workmen who were eligible, age relaxation of one year for every completed 240 days of work in a year.
5. The aforesaid order of the Tribunal was challenged by the Respondent-Sangh before the Gujarat High Court in Special Civil Application No.12850 of 1994. The learned Single Judge hearing the matter observed that though regularization could not be effected in the absence of permanent posts, the availability of permanent posts is a fortuitous circumstance and onsequential confirmation is, therefore, uncertain, but that there was no bar against treating a person to be regular even if a permanent post was not available. The learned Single Judge accordingly modified the order of the Tribunal and directed the respondents to treat the employees who were covered by Standing Order 2(ii) as regular employees.
When the matter was brought to this Court by the O.N.G.C., this Court restored the order of the Tribunal whereby the 153 workmen identified to be eligible for regularization were to be treated at par with the regular employees and their services were to be treated as having been notionally regularized from 1.5.1999. While disposing of the appeal on 20.11.2006, this Court injuncted the respondents from making any recruitment from outside till such time as the 153 workmen were absorbed against regular vacancies in the concerned category. A further direction was given that even in matters of seasonal employment, the said 153 workmen or those who remained after regularization from time to time, were to be considered first for employment before any other workmen were engaged for the same type of work in the field. This Court also directed the O.N.G.C. to make a serious attempt to regularize the services of the workmen concerned in terms of the order passed by the Tribunal as quickly as possible, but preferably within a period of two years from the date of the order.
While the aforesaid judgment was delivered on 20.11.2006, it was only on 23.2.2009 that I.A. No.11 of 2009 was filed and I.A. No.12 of 2009 was, thereafter, filed on 9.4.2009 in Civil Appeal No.6607 of 2005. While I.A. No.11 of 2009 has been filed for a modification of the order passed by this Court on 20.11.2006 in Civil Appeal No.6607 of 2005, I.A. No.12 of 2009 has been filed by the Respondent-Sangh, inter alia, for suitable directions to be issued to the O.N.G.C. to absorb all the remaining workmen on the completion of two years, as directed by this Court in its judgment dated 20.11.2006.
22. From the order dated 20th November, 2006, it is quiet obvious that the intention of this Court was that till such time as the 153 workmen, who were identified after the Award of the Tribunal were not absorbed against regular vacancies in the concerned category, no recruitment from outside could be made by the applicant ONGC in the same or similar posts. Similar provision was also made with regard to the workmen, who were to be employed on a seasonal basis.
6.11 State of M.P and Others vs. Lalit Kumar Verma reported in (2007) 1 SCC 575 wherein the Tribunal on the facts and circumstances of the said case observed that the Labour Court, Industrial Tribunal as also the High Court therefore were not correct in directing regularization of service of the respondent.
6.12 Indian Drugs & Pharmaceuticals Ltd vs. Workmen, Indian Drugs & Pharmaceuticals Ltd. reported in (2007) 1 SCC 408 wherein paras 6, 31 & 45 read as under:
6. From the year 1986 the financial position of the appellant- company became critical as it was running on huge losses and hence its corporate office issued stop/ban order, banning any fresh recruitment/appointments.
The company also applied to the BIFR as it had become sick. The BIFR had also issued directions to the company to reduce its manpower in order to try to revive the company, but despite this situation the union started pressing and agitating for regularization of the aforesaid ten concerned daily rated employees. The failure of talks between the company and the union led to the reference of a dispute under the Industrial Disputes Act before the Labour Court in the year 1992 in the following terms :
"Whether the action of the employer in not regularizing 22 workmen and not granting them wage scales and other benefits given to the regular employees is unjustified and/or illegal"
No doubt, there can be occasions when the State or its instrumentalities employ persons on temporary or daily wage basis in a contingency as additional hands without following the required procedure, but this does not confer any right on such persons to continue in service or get regular pay. Unless the appointments are made by following the rules, such appointees do not have any right to claim permanent absorption in the establishment.
In the aforesaid decision the Supreme Court referred to its own earlier decision in A Umarani vs. Registrar, Cooperative Societies & others, AIR 2004 SC 4504 wherein it was observed:
"Regularization, in our considered opinion, is not and cannot be a mode of recruitment by any "State" within the meaning of Article 12 of the Constitution of India or any body or authority governed by a Statutory Act or the Rules framed thereunder. It is also now well-settled that an appointment made in violation of the mandatory provisions of the Statute and in particular ignoring the minimum educational qualification and other essential qualifications would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization. (See State of H.P. vs. Suresh Kumar Verma and another 1996(7) SCC 562").
This Court in R.N. Nanjundappa vs. T. Thimmiah, 1972 (1) SCC 409 held:
" If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution the illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority but there has been some noncompliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of the rules or it may have the effect of setting at naught the rules.
7. Having heard learned advocates appearing for both the sides at length and having gone through the various documents produced on record by both the sides, the main question which emerges for this Court for consideration is that whether the engagement of 577 persons on term/tenure basis was untenable in law or not. The decisions cited by learned advocates for both the sides are also perused.
7.1 O.N.G.C. Ltd. has originally emanated from the Special Act of Parliament namely Oil & Natural Gas Commission Act, 1956 which was subsequently converted into a Government Company fully managed and controlled by Government of India which at present holds majority of the shares in the Corporation. It goes without saying that the Corporation being mainly engaged in exploration and production of Oil, discharges a very important economic function in the country.
7.2 It is contended on behalf of learned advocate for the respondents that the said 577 term based appointees were recruited in Class III and Class IV categories, not as a result of any public advertisement issued and inviting applications from the open market, but by calling their names through Employment Exchange which violates Article 16 of the Constitution of India.
8. As regards appointment is concerned, as pointed out by learned Advocate for the respondents, there are various decisions laying down the procedures to be followed in case of recruitment. For ensuring that equality of opportunity in matters relating to employment becomes a reality for all, Parliament enacted the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 (for short `the 1959 Act'). Section 4 of that Act casts a duty on the employer in every establishment in public sector in the State or a part thereof to notify every vacancy to the employment exchange before filling up the same. However, in addition and consistent with the principle of fair play, justice and equal opportunity, the appropriate department or establishment should also call for the names by publication in the newspapers having wider circulation, announcement on radio, television and employment news bulletins and consider all the candidates who have applied. This view was taken to afford equal opportunity to all the eligible candidates in the matter of employment and also to prevent illegal appointment and also to curb back door entry. It is in this context that the Hon ble Supreme Court laid down various guidelines in the judgement in the case of Umadevi (Supra) and all other decisions as pointed out hereinabove.
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. 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 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.
9. Now, the question is whether those employees are temporary or casual workmen so as not to continue on the post. In this connection attention is required to be drawn to a decision of the Apex Court in the case of Mineral Exploration Corporation Employees Union Vs. Mineral Exploration Corporation and Another, reported in 2006 AIR SCW 3865. In the said case the Apex Court has considered the terms temporary workman and casual workman . Paragraphs 33 to 37 of the said decision read as under:
33. Ample material was placed before us to show that the temporary/contingent employees have been doing the work of permanent nature and the temporary employees are required to do work which was used to be done by skilled employees. The annual Report of the Corporation for the year 1995-96 was also considered by the tribunal. It appears from the Annual Report and the Magazine of the Corporation that the Corporation has sufficient work and the financial condition of the Corporation is also satisfactory.
34. The Respondent is an industry governed by the provisions of Industrial Disputes Act, 1947 as well as the provisions of the Industrial Employment Standing Orders Act, 1946. The Standing Orders defined temporary and casual employees as under:
A TEMPORARY WORKMAN IS A WORKMAN WHO HAS BEEN ENGAGED FOR WORK WHICH IS OF AN ESSENTIALLY TERMPORARY NATURE LIKELY TO BE FINISHED WITHIN A LIMITED PERIOD .
A CASUAL WORKMAN IS A WORKMAN WHOSE EMPLOYMENT IS OF CASUAL LABOUR .
35. Therefore it will be clear that, the employees engaged and continued for years together cannot be termed as temporary or casuals.
36. The respondent-management itself effected transfer of employees from one project to another and granted them benefit e.g. T.A., D.A., etc. The term contingent employee is totally unknown to Industrial Law. To deny the benefits available to regular employees, certain employees are termed as contingent workers. Once an employee completes 240 days, he is deemed to be a permanent employee. The term contingent employee is not included in Standing Orders.
37. Usual practice of the Corporation has been to keep contingent workmen for long duration of time and offering regular appointment periodically which abruptly had stopped due to unfair attitude of the Management.
Reduction in work leading to poor physical and financial performance has been a result of incompetent and poor Management which cannot be allowed to play with the future of thousands of employees and their families.
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, including breaks due to sickness, accident, leave, lock-out, 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.
10. Now, coming to the question of mode of appointment, the Corporation has called the names of eligible candidates for various posts from Employment Exchange from time to time. It is one of the modes of calling for names of eligible candidates. Therefore, the names were sponsored by Employment Exchange which were referred to the Corporation. It is necessary to note that after receiving the names from Employment Exchange, a call letter to remain present for the skill test was issued by Corporation to the workmen, wherein also, the respective scale of pay on which the candidates were considered was mentioned. The candidates on successful completion of the skill test were called to attend the interview and finally on completion of the same, appointment letters were issued. A medical test of the appointees was also conducted prior to their joining the Corporation. Thus, merely because advertisement was not issued in newspapers the same would not render the appointments illegal. Calling for names from employment exchange is one of the modes followed during earlier period.
It is true that in view of the decision of the Apex Court in the case of Umadevi (supra) the recruitment is required to be made by issuance of public advertisement, but in the present case for 577 posts names were called for from employment exchange and after following regular procedure the petitioners were selected.
10.1 Therefore, it is clear that all the procedures namely calling the names from employment exchange, issuing call letter to remain present for interview and issuing formal appointment order was carried out. There is no other procedure under the statutory Rules other than this which is required to be implemented by the Corporation. Therefore, according to my opinion, the appointment of the workmen is not back door entry. Though no formal public advertisement was issued by the Corporation, it cannot take advantage of its own wrong by claiming that the appointments are illegal. In this regard it is useful to refer to a decision rendered by this Court in Special Civil Application No.2416 of 2001 on 28.03.2012. Paras 13 and 14 read as under:
13. From the above, it is clear that the respondent herein is similarly situated to the workmen concerned in each of the above cases. In the above cases, the concerned workmen wre also employed as Casual Labourers in the Ticket Section of different Divisions of the petitioner Corporation. Though appointment was made after following due recruitment procedure, the petitioner Corporation is trying to defend its case by pleading that the respondent workman was a backdoor entrant. The petitioner Corporation, being a public body, ought not to have taken such defence, which, I am sorry to say, points towards the dismal state of affairs of the Corporation. This is nothing but an attempt on the part of the Corporation to take shelter of the decision rendered by the Apex Court in Umadevi s case (Supra).
14. It is a matter of fact that the case of the respondent workman would be governed by Clause 20 of the Settlement (Exhibit 15) which provides that Casual Labourers (Rojamdars) who have been appointed against sanctioned permanent posts and who have rendered continuous service of 180 days from the date of their appointment are entitled to ge the benefit of timescale. In para 13 of the impugned award, the Industrial Tribunal has narrated the total numbers of days of work put in by the respondent workman in a tabular form on the basis of the Attendance Sheets, which were produced on record vide Exhibits-22 to 53. At this juncture, it would be relevant to note that the petitioner Corporation had not produced the Attendance Sheets/Muster Roll though called for, which speaks for itself. From the said documents, it is evident that the respondent workman had rendered the requisite days of work, which would entitle him to get the benefit of timescale, as provided under Clause 20 of the Settlement.
10.2 Similar is the situation in the case on hand. There were vacancies in the Corporation. The Corporation called for names from the Employment Exchange. They have chosen not to advertise in media. They have invited applications, screened the same, conducted necessary tests and interviews and selected the candidates after following all the procedures. The employees were also put on probation and the employees completed the probation periods and thereafter they were continued for number of years in service. Therefore, as laid down in the aforesaid decision, it is not open to the Corporation to contend that the said employees are backdoor entrants . This is clearly an attempt on the part of the Corporation to take shelter of the decision rendered by the Apex Court in Umadavi s case and also other decisions.
11. A contention has been raised on behalf of the respondent that merely because call letters did not specify that the appointment in question was going to be term based, the likely nature of the appointment as discernible from the appointment letter cannot be altered. It is true that the appointment letters mentioned that the appointment was on term basis for a period of four years which shall be extended subject to certain conditions. It was for the first time that the tenure of four years was mentioned in the appointment letter. It is required to be noted that at no stage of interview procedure, the candidate was informed that the posts are term based. There was also no mention in the appointment letter that the candidate was being appointed against a specific work or project. The evidence on record shows that when the candidates were recruited, the recruitment was against clear vacancies and after following due procedure.
11.1 It is not the case of the Corporation that the concerned workmen were appointed to undertake the work of exploration in the field. Neither is it the case that they were appointed to work for any such short term exploration activities. It was also not made clear either in the call letter or appointment letter at any stage of the interview procedure that the appointment will come to an end on the completion of the project or scheme on a particular date. On the contrary, the term came to be extended periodically and almost all the concerned workmen have been re-engaged for another term of four years thereby appointing them for almost nine years.
11.2 Mr. Sinha, learned advocate, during the course of his submissions, had drawn the attention of this Court to the Model Standing Orders For Industrial Establishments Not Being Industrial Establishments In Coal Mines, more particularly the definition under Section 2 of Schedule I of The Industrial Employment (Standing Orders) Act, 1946 which lays down the classification of workmen as permanent, probationers, badli, temporary, casual and apprentice. There is no mention of any term based or tenure based workmen under the Act. Therefore, it appears that the term based appointment which was made, was only with a view to deprive the workmen of a legitimate permanent post and also to create hurdles in claiming a regular post.
11.3 It is therefore, evident that the workmen were appointed for perennial posts and are required to be absorbed in the Corporation. It is borne out that 577 appointees were recruited in the years 1999, 2000 & 2001 against 840 clear vacancies on four years term base though the 840 clear vacancies were for regular appointments. It will not be out of place to mention that out of the 577 employees, around 313 trainees were specifically trained by the Corporation in the Technical Training Institute of Cambay. These 313 employees instead of getting the regular appointment after successful completion of the training were issued term based appointment orders though all these persons were appointed against regular and clear vacancies 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.
11.4 The term based appointees whose term was to expire were given extension by the Corporation as admitted at Ex. 72 and during the period several appointees involved in these cases were recruited as regular appointees and several were given further extension by way of tenure based appointments. Moreover, from the perusal of the evidence of workmen at Ex. 52 to 66 it is clear that even in 2005, extension was given to the appointees for four years which was to expire in the year 2009 but even thereafter the workmen are continuing on their jobs right from the date of their joining on the same post/rank till date.
11.5 It is also required to be noted that the appointment of the workers involved in these cases were made according to the rules and regulations on pay scale and not on consolidated pay; having benefit of subscribing to contributory provident fund with casual leave and earned leave to be granted as that of regular appointees and also to under go probation period. As mentioned above, the workmen involved in the present cases have also completed probation period of one year like regular appointees.
11.6 The appointment letters provide for the designation, pay scales, probation, medical examination and all the service conditions as applicable to the regular workmen. Even after the appointment, the concerned workmen were placed and treated as permanent workmen by providing and making applicable all the rules and regulations including fringe benefits, duties and obligations as that of permanent workmen. It is required to be noted that vide clause 2
(xiv) and (xv) of the appointment Memorandum, the concerned workmen had been asked to become members of ONGC CSSS Scheme, PRBS Scheme and compulsory ONGC (Territorial Army) training which are meant and strictly formulated for the employees of the Corporation. It can, therefore be inferred that for all intents and purpose the concerned workmen have been presumed and treated as employee of the Corporation .
12. It is also interesting to note that even according to the Corporation, out of 577 persons, over the passage of time, 111 tenure based appointees have already been regularized, leaving 46 tenure based appointees who are no more available owing to death, resignations, etc. Thus, when the Corporation itself regularized 111 tenure based appointees, there was no legitimate reason for depriving other appointees the same benefits. It is also required to be noted that the Corporation has spent a huge amount for giving training to the appointees. After training the appointees become trained employees. A scenario, where some workmen are recruited, given training, placed in service for four years and then their services are terminated for fresh recruitment and fresh training, is clearly absurd inasmuch as public money is wasted by such procedure. Once a workman is appointed and if he is given training it would be in the interest of the Corporation to continue him as an experienced employee rather than going for fresh recruitment and then to give training. It is true that the ratio laid down in the case of Umadevi (supra) will apply in case of the respondent Corporation also. However, as pointed out herein above, the workmen were appointed against clear vacancies after following procedure adopted by the Management which is permissible. At this stage the Management cannot be allowed to take advantage of their own wrong and deprive the benefits to the concerned workmen.
13. Thus, I am of the view that the petitioners workmen could establish that they are not backdoor entrants and that they are regularly recruited workmen/employees. They have been working on the posts in question for a very long period after completion of probation. In these circumstances their request for considering their appointments as regular deserves to be considered. However, the universal prayer made in Special Civil Application No.16777 of 2012 permanently restraining the respondent from recruiting or making any appointment from the open market to any Class III and Class IV post till all the term based employees cannot be granted. In any case, the case of all the workmen is covered in Special Civil Application No.2248 of 2012.
14. At this stage it is required to be noted that the term of reference before the Tribunal was as to whether the demand of the ONGC Employees Mazdoor Sabha, Baroda to give regular appointment to 577 term based appointees is proper and just and if so, what relief the workmen are entitled for and what direction are necessary in the matter. However, while partly allowing the Reference the Tribunal has directed the Corporation to undertake exercise of giving regular appointment to the remaining term based 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 and IV posts. Looking to the term of reference I am of the view that the Tribunal has traveled beyond the term of reference by restraining the respondent Corporation not to import recruitment from open market inviting fresh applications for the regular posts. Such a direction was not tenable. No issues were also framed by the Tribunal with regard to such restriction. The said direction, therefore, deserves to be quashed. Consequently Special Civil Application No.2813 of 2013 deserves to be partly allowed.
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 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 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.
16. The award of the Labour Court is modified accordingly. Special Civil Applications No.2248 of 2012 and No. 2813 of 2012 are partly allowed. Rule is made absolute to the aforesaid extent with no order as to costs. Special Civil Application No.16777 of 2012 is dismissed. Rule is discharged with no order as to costs. In view of the order passed in Special Civil Application No. 2248 & 2813 of 2012, no orders are required to be passed in Civil Application No. 14144 of 2012 and the same is accordingly disposed of.
(K.S.JHAVERI, J.) divya Page 75 of 75