Madras High Court
Oil And Natural Gas Corporation Ltd vs The Petroleum Coal Labour Union on 11 August, 2011
Author: T.S.Sivagnanam
Bench: M.Y.Eqbal, T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:11.08.2011 CORAM: The HONOURABLE MR.M.Y.EQBAL THE CHIEF JUSTICE and The HONOURABLE MR. JUSTICE T.S.SIVAGNANAM W.A.No.1006 of 2011 Oil and Natural Gas Corporation Ltd., Cauvery Asset, Neravy Comples, Pondicherry. ... Petitioner Vs. 1.The Petroleum Coal Labour Union, Represented by its General Secretary, No.66, Keezharaja Veedhi, Chennai. 2.The Industrial Tribunal, Chennai. 3.G.Vijayarangan 4.R.Sekar 5.K.G.Kalidoss 6.N.Sivasubramanian 7.M.Chandrakasan 8.G.Venkatesan 9.C.Sivashanmugam 10.G.Moorthy 11.G.Anbazhagan 12.T.S.Rajkumar 13.V.N.Jayakumar 14.M.Sudhakar 15.N.Padmanathan 16.M.Prabakar 17.V.Murugan 18.R.Gunasekaran 19.R.Rathinakumar 20.G.Jayakumar 21.S.Sakthivel 22.K.Vadivel 23.T.Annadurai 24.V.Rajendiran 25.M.Rajaram 26.N.Manohar 27.G.Ashok Kumar 28.D.Jawahar 29.S.Venugopal 30.K.Swaminathan 31.V.Srinivasan 32.C.Govindaraj 33.M.Sekar 34.N.Ramalingam 35.B.Govindaraju 36.N.Kamaraj 37.P.Govindasamy 38.M.Kamaraj 39.R.Selvaraj 40.A.Santhanarajan 41.T.Sekar 42.A.R.Rajendran 43.S.Anbarasan ... Respondents PRAYER : Writ appeals filed under clause 15 of the Letter Patent against the order dated 04.01.2011, made in W.P.No.1846 of 2000. For Petitioner :Mr.G.M.Masilamani Senior counsel for Mr.K.Shanmugakani For Respondents:Mr.N.G.R.Prasad for R1 Mr.S.Ayyathurai for RR3 to 43 JUDGMENT
THE HON'BLE CHIEF JUSTICE & T.S.SIVAGNANAM, J.
This appeal is directed against the judgment and order in W.P.No.1846 of 2000, dated 04.01.2011.
2. The petitioner in the writ petition is the appellant herein, which is a Government company, namely, Oil and Natural Gas Corporation Limited, (hereinafter referred to as the 'ONGC'). The challenge in the writ petition was to an award passed by the Industrial Tribunal, Tamil Nadu, in I.D.No.66 of 1991, dated 26.05.1999, by the said award, the Tribunal held the non-regularization of the workmen concerned in the dispute is not justified and the appellant was directed to regularise the services of all the workmen with effect from 14.01.1990, the date on which all of them completed 480 days.
3. Some factual background would be necessary before we approach the controversy. ONGC has a project in Cauveri Basin, situated in and around Karaikal and about 1050 employees have been regularly employed by the ONGC. The security arrangements for the project was made through contractors. The Government of India, by notification dated 08.12.1976, prohibited the employment of workers on contract basis and the contract labourers, who were engaged by contractors providing security arrangements, demanded that they should be treated as regular employee of the ONGC. A settlement was arrived at between the Trade Union and the Management under Section 18(1) of the Industrial Disputes Act, 1947, (I.D.Act) under which, it was agreed to form a co-operative society for the welfare of such contract labourers. During 1987, ONGC took a decision to induct the Central Industrial Security Force (CISF) for the purpose of providing security to its projects. This was challenged by the trade union by filing a writ petition being W.P.No.9688 of 1987 and also for a consequential direction to absorb the workmen as regular employees. Another writ petition being W.P.No.11969 of 1987 was filed for a direction to the ONGC, to absorb the workers engaged through the cooperative society. The said writ petition was dismissed by this Court, by order dated 05.01.1988.
4. At that stage, ONGC issued an order dated 13.01.1988, in favour of such workmen by appointing them on term basis. As a result of the said order, the employees who were engaged through contractors and those who were members of the cooperative society became employees of ONGC on term basis. Thereafter, the trade union raised a dispute claiming regularization, which was considered by the Central Government and referred to the Industrial Tribunal for adjudication.
5. Two questions were referred to the Tribunal, namely,
i)Whether the management of ONGC is justified in not regularizing the workmen in the instant dispute, if not what relief the workmen is now entitled to?
ii)Whether the management of ONGC is justified in not paying equal wages to the workmen in the dispute on par with the regular worker and if not what relief the workmen are entitled to?
6. The reference was taken on file by the Tribunal as I.D.No.66 of 1991. Before the Tribunal, the Trade Union filed a memo during April 1993, stating that reference no.(ii) has been settled out of Court and no further adjudication is required. Therefore, the Tribunal adjudicated reference no.(i) alone. Primarily two contentions were raised before the Tribunal by stating that the dispute was not maintainable, as the same would not fall within the scope of industrial dispute, as per the provisions of the I.D. Act and since, the appointment of the workmen was not made after following any procedure relating to appointment, they cannot seek for regularization. Oral and documentary evidence were placed before the Tribunal by the workmen as well as the management and ultimately, the Tribunal passed the award, dated 26.05.1999, directing that the services of the workmen should be regularized with effect from the date on which all of them completed 480 days.
7. ONGC challenged the said award by filing the above writ petition and before the learned Single Judge, it was contended that the Tribunal erroneously exercised it jurisdiction and passed an award to direct the ONGC to regularise the temporary employees. The employees, who were originally engaged through contractors, without following any procedure of selection and appointment, their services cannot be regularised. Reliance was placed on the decision of the Hon'ble Supreme Court in Secretary, State of Karnataka and Others vs. Uma Devi (2006) 4 SCC 1.
8. On behalf of the workmen/trade union, it was contended that the dispute falls within the jurisdiction of the industrial Tribunal under the provisions of the I.D.Act and the Tribunal had sufficient jurisdiction to adjudicate the dispute. It was further contended that the workmen have been working on temporary basis from 1988 continuously and keeping them on temporary basis for ever is an unfair labour practice. Therefore, it was contended that the Tribunal was right in directing the workmen to be regularised. Further, it was contended that the law laid down in the case of Uma Devi (supra) has no application to cases of industrial adjudication.
9. The learned Single Judge held that the dispute between the parties regarding non regularization of the workmen falls within the scope of industrial dispute as defined under Section 2(k) of the I.D. Act and further held that the workmen are all victims of unfair labour practice having been employed for several years and though, they were not appointed by following the procedure laid down by ONGC, they were entitled for regularization and their appointment cannot be stated to be illegal. With the above finding and other findings on merits the writ petition was dismissed by the learned Single Judge, by judgment dated 04.01.2011. Challenging the said order, the present appeal has been filed.
10. The learned Senior counsel appearing for the appellant would contend that the learned Single Judge was not right in holding, that though the procedure contemplated in the standing order of ONGC was not followed, when the workmen were appointed on temporary basis are still they are entitled for regularization. It was contended that the very appointment itself having been illegal, no order of regularization could be passed. It was further contended that the security guards were employed at Karaikal and the provisions of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status) Act, 1981, is not applicable to the State of Pondicherry. Further, it was contended that the learned Single Judge placed reliance on a decision relating to the Maharastra Recognition of Trade Union and Unfair Labour Practice Act, 1971 and there is no such similar provision as Section 30 of the said Act in the I.D.Act and therefore, the order passed by the learned Single Judge requires interference. The learned Senior counsel appearing for the petitioner placed heavy reliance on the decision of the Hon'ble Supreme Court in the case of Uma Devi (supra).
11. We have considered the submissions of the learned Senior counsel appearing for the petitioner and perused the materials available on record.
12. The appellant management would term the appointment of the workmen as an illegal appointment as they were appointed to the said post either through a contractor or through the cooperative society, without following the procedure contemplated for selection and appointment in the standing order of ONGC. By placing reliance on the decision of the Hon'ble Supreme Court in Uma Devi (supra), it is contended that such appointees/workmen cannot seek regularization. One vital fact, which cannot be lost sight of is that the workmen have been working on temporary basis from 1988 onwards and they were continuously engaged from the said date and obviously, the management could not have retrenched the said workmen without following the mandatory procedure contained under the I.D. Act. The management's contention that the appointment was an illegal appointment appears to stem out of the observations made by the Hon'ble Supreme Court in the case of Uma Devi (supra). However, the Hon'ble Supreme Court in Maharastra SRTC vs. Casteribe Rajya Parivahan Karmchari Sanghatana [(2009) 3 SCC 556], held that the decision in Uma Devi (supra) does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of the MRTU and PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer and that the said judgment cannot be held to have overridden the powers of the Industrial and Labour Courts in passing appropriate orders.
13. The learned Single Judge after taking note of the decision of the Hon'ble Supreme Court rendered a finding that the Labour Court is not denuded of its jurisdiction. As regards the contention that there is no similar provision as Section 30 of the Maharastra Act, it was held that the provisions of the I.D. Act cannot receive a narrow interpretation to make the industrial Tribunals/Labour as mute spectators. At this stage, we may quote the observations of the learned Single Judge, which is as hereunder:-
"29. Of course, there is no such provision like section 30 of the MRTU & PULP Act in the Industrial Disputes Act. However, as I have already stated, in my considered opinion, the provisions of the Industrial Disputes Act cannot receive such a narrow interpretation to make the Industrial Tribunals/Labour Courts as mute spectators when it is brought before the Industrial Tribunals or Labour Courts that unfair labour practice is being engaged by an employer. Of course, Section 31 of the Act punishes such employer who indulges in unfair labour practice. It is an offence under Section 31 of the Act which needs to be tried only by a Judicial Magistrate. The Labour Courts cannot impose any punishment under Section 31 of the Act on the erring employer. If the Industrial Disputes Act is so interpreted as it is sought to be made by the learned Senior Counsel, then the victims of unfair labour practice shall have no remedy at all under the Act. Surely, that would have been the legislative intent. For the foregoing discussions, I hold that the Industrial Tribunal/Labour Court is empowered to deal with a dispute arising out of the non regularization of the workmen who are the victims of unfair labour practice."
14. Further, the learned Single Judge elaborately examined the question as to whether the workmen are entitled for regularization and whether the award of the Industrial Tribunal was justified. After considering the decision of the Hon'ble Supreme Court in Uma Devi (supra), the learned Single Judge took note of paragraph 44 of the judgment of the Hon'ble Supreme Court, wherein the Hon'ble Supreme Court held that in the matter of irregularly appointed persons, the Union of India and State Government and its instrumentalities should take steps to as a one time measure, regularise the services of irregularly appointed persons.
15. After considering the nature of the evidence, which was placed before the Labour Court, which was appreciated by the learned Single Judge, we are of the firm view that the appointment of the said workmen cannot be termed to be an illegal appointment, but was only a irregular appointment and therefore, they were entitled for regularization, having been employed on temporary basis from 1988 onwards.
16. Hence, for all the above reasons, we find no grounds to interfere with the order passed in the writ petition. Accordingly, the writ appeal fails and it is dismissed. No costs.
pbn