IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.01.2011 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.P.No.1846 of 2000 Oil and Natural Gas Corporation Limited, Cauvery Project, Neravy Complex, Pondicherry. .. Petitioner vs. 1.The Petroleum Coal Labour Union, Rep. By its General Secretary, 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.GVenkatesan 9.G.Sivashanmugam 10.G.Moorthy 11.G.AQnbazhagan 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 https://hcservices.ecourts.gov.in/hcservices/ 29.S.Venugopal 30.K.Swaminathan 31.V.Srinivasan 32.C.Govindaraju 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 3 to 43 impleaded as per order dated 08.09.2003 in W.P.M.P.No.6522 of 2003] ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari calling for the records the award in I.D.NO.66/91 dated 26.05.1999 on the file of the Industrial Tribunal at Madras and quash the same. For Petitioner : Mr.G.M.Masilamani, Senior Counsel for Mr.K.Shanmugakani For Respondents: Mr.N.G.R.Prasad for M/s.Row & Reddy for R1 Mr.Ayyathurai for RR3 to 43 R2-Tribunal ORDER Challenge in this writ petition is to the award made by the Industrial Tribunal, Tamil Nadu, in Industrial Dispute No.66 of 1991 dated 26.05.1999 wherein, the tribunal, holding that the non regularisation of workmen who are concerned in the industrial dispute is not justified, has directed to regularise the services of the workmen concerned with effect from 14.01.1990, the date on which all of them had completed 480 days of attendance. 2.The facts of the case are as follows:- The petitioner is a Government company namely “Oil and Natural Gas Corporation Limited”, (hereinafter referred to as “ONGC”) which was originally established as a statutory corporation under the ONGC Act, 1959 and later on converted as a company in the year 1994. The ONGC has a project in Cauveri Basin situated in and around Karaikal. There are about 8 drill sites in the said project involving about 1050 regular employees. Due to developmental activities, the said project required security arrangements. Such arrangements were made through contractors. https://hcservices.ecourts.gov.in/hcservices/ 3. While so, the Government of India issued a notification on 08.12.1976 prohibiting the employment of workers on contract basis as watch and ward and for cleaning the buildings in ONGC. In view of the same, the contract labourers who were earlier engaged by the contractors providing security arrangements for Cauveri project started demanding that they should be treated as regular employees of ONGC. The same was not conceded to immediately. However, subsequently, a settlement was arrived at between the trade union and the management under Section 18(1) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”) under which, a co-operative society was formed for the welfare of the such contract labourers. On 08.09.1987, the ONGC passed an order to induct Central Industrial Security Force (hereinafter referred to as CISF) for the purpose of providing security to the ONGC projects. 4. Immediately, thereafter, the trade union filed W.P.No.9688 of 1987 challenging the decision of the ONGC to induct CISF and for a further direction to ONGC to absorb the said workmen as regular employees. Yet another writ petition in W.P.No.11969 of 1987 was filed by the trade union seeking a mandamus to direct the ONGC to absorb the workers engaged through the third respondent co- operative society viz., Priyadarshini Indra Co.opearative Society. The said writ petition was dismissed by order dated 05.01.1988. 5. When things stood thus, the ONGC issued separate orders to such workmen on 13.01.1988 appointing them on term basis. Thus, from 13.01.1988 onwards, such employees who were originally engaged by the contractors and who were also members of the Priyadarshini Indra Co.opearative Society became the employees of ONGC but on term basis. On 10.09.1990, the trade union raised demands for regularisation of the above workers who were appointed on term basis. The matter was considered by the Central Government and the Central Government made an appropriate reference to the Industrial Tribunal, Chennai. 7. The following are the terms of reference:- (i) Whether the management of ONGC is justified in not regularising 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? 8. The said reference was taken as an industrial dispute in I.D.No.66 of 1991 by the Industrial Tribunal. When the said matter was pending before the Tribunal, a memo was filed by the trade union on 28.04.1993 informing the tribunal that reference No.2 had been settled out of Court and therefore, no further adjudication was required. Accordingly, reference No.2 was closed and reference No.1 alone was tried. It was at this stage, in the year 1994, the https://hcservices.ecourts.gov.in/hcservices/ ONGC, which was hitherto a Corporation established under the Act, was converted into a public limited company. 9. Before the tribunal, it was contended by the ONGC that the dispute itself was not maintainable as the same would not fall within the scope of “industrial dispute”, as per the provisions of the Industrial Disputes Act. It was also contended that since the workmen concerned were not appointed by following the procedure relating to appointment, they cannot be regularised. Thus, it was contended that the petitioners were not entitled for regularisation. 10. Before the Industrial Tribunal, on the side of the trade union, 3 witnesses were examined and 25 documents were exhibited. On the side of the management, 3 witnesses were examined and 12 documents were exhibited. Having considered the above materials, the Industrial Tribunal passed award directing the ONGC to regularise the workmen concerned. Aggrieved over the same, the ONGC is now before this Court with this writ petition. 11. I have heard the learned counsel on either side and perused the records carefully. 12. Reiterating the grounds raised in the writ petition, the learned Senior Counsel Mr.G.M.Masilamani appearing for the petitioner would assail the award of the labour Court on the ground that the industrial tribunal lacks jurisdiction under the Industrial Disputes Act to pass an award to direct the ONGC to regularise the temporary employees. He would further submit that if these workmen who were engaged originally by the contractors and who were later on appointed by the ONGC on term basis without following the due procedure in respect of the selection and appointment of the employees of ONGC, are regularised, the same would defeat the equality clause enshrined in Article 14 of the Constitution of India. 13. He would further submit that as held by the Hon’ble Supreme Court in Uma Devi vs. State of Karnataka and others (2006 (4) SCC 1) case, these workmen cannot be regularised as their appointments were not made in accordance with the regulations of ONGC relating to the method of appointment. He would further submit that in two other writ petitions filed before this Court, when a similar relief was sought for by similarly placed workmen, in W.P.No.7906 of 1999 and in W.P.No.870 of 2004, this Court has negatived the said request following the law laid down by the Hon’ble Supreme Court in Uma Devi’s case (cited supra) and in Umarani’v Registrar, Co-operative Societies (2004 (7) SCC 112). Therefore, the learned Senior Counsel would pray for setting aside the award made by the Industrial Tribunal. 14. Mr.N.G.R.Prasad, the learned counsel appearing for the first respondent trade union would stoutly oppose all the above grounds. According to him, the dispute raised before the Industrial Tribunal would very much fall within the jurisdiction of the https://hcservices.ecourts.gov.in/hcservices/ Industrial Tribunal under the provisions of the Industrial Disputes Act and therefore, the award of the Industrial Tribunal cannot be stated to be without jurisdiction. He would further submit that unfair labour practice which is prohibited under Section 33 of the Industrial Disputes Act cannot be allowed to be perpetuated by the ONGC by keeping these workmen on temporary basis for years together. He would further add that these workmen have been working on temporary basis from the year 1988 continuously and keeping them as temporary employees for ever would surely an unfair labour practice and therefore, the Industrial Tribunal was right in issuing a direction for their regularisation. He would further submit that the workmen cannot be retrenched from service without complying with Section 33.A of the Act and without following the procedure for retrenchment. If the workmen are so retrenched, without following the mandatory provision contained in the Industrial Disputes Act, the same shall be void. He would further submit that when an unfair labour practice is being consistently practiced by ONGC, it would not be suffice to impose only a penalty upon the ONGC under Section 31 of the Act. Instead, the power of the Industrial Tribunal should be extended to safeguard the interest of such workmen since the Industrial Disputes Act is a social legislation for the benefit of the workmen. He would further contend that the power of the Industrial Tribunal is wider than that of the power of the Civil Court. When unfair labour practice is practiced by the ONGC, in order to protect the welfare of the workmen, the power of the Industrial Tribunal should appropriately be exercised and that is what the Industrial Tribunal has done in the given case. He would further contend that the law laid down by the Hon’ble Supreme Court in Uma Devi case has got no application at all in respect of the industrial disputes. According to him, Uma Devi case is concerned only with the public employment and with the power of the High Court under Article 226 of the Constitution of India and the power of the Hon’ble Supreme Court under Article 32 of the Constitution of India to issue such a direction for regularisation of illegally appointed employees. He would further point out that Uma Devi case came up for consideration before the Hon’ble Supreme Court in Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana (2009(8) SCC 556) wherein, the Hon’ble Supreme Court has dealt with the scope of Uma Devi case in respect of labour matters. According to him, in the said case, though the employees were appointed irregularly by the Maharashtra SRTC Limited in violation of the Standing Orders, since they were exploited by the corporation for years together by engaging them as piece-rate basis, the Hon'ble Supreme Court held that such employees were entitled for permanent status and if such privilege was not extended to such employees it would tantamount to putting premium on their unlawful act of engaging in unfair labour practice. Taking me through the said judgements, the learned counsel would further contend that the said judgment of the Hon’ble Supreme Court squarely applies to the facts of the present case. 15. He would further contend that in Western India Automobile Association v. Industrial Tribunal, Bombay (AIR (36) 1949 Federal Court 111) the Federal Court has held that the https://hcservices.ecourts.gov.in/hcservices/ Tribunal under the Industrial Disputes Act has jurisdiction to include in award, direction as to re-instatement of dismissed employees. Relying on the same, the learned counsel would submit that the phrase 'any dispute' connected with the 'employment or non employment' should be understood to encompass into its ambit, the non regularisation also. The learned counsel would further contend that the two judgments relied on by the learned Senior Counsel appearing for the petitioner from this High Court in W.P.No.7906 of 1999 and in W.P.No.870 of 2004 have got no application to the facts of the present case. In those cases, the workmen without approaching the Industrial Tribunal directly approached this Court under Article 226 of the Constitution of India. That is the reason why, according to the learned counsel, this Court in those two judgements took the view that such positive direction under Article 226 of the Constitution of India for regularisation cannot be granted in view of the law laid down in Uma Devi case. 16. The learned counsel would further contend that so far as the State of Tamil Nadu is concerned, there is yet another state enactment namely "The Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981" under which, the employees are entitled for permanency. Nextly, the learned counsel would place reliance on the judgment in Hindustan Petroleum Corporation Ltd., v. The Presiding Officer, Central Government Labour Court cum Industrial Tribunal (2008 (4) CTC 819). When a similar question arose in respect of the power of the Industrial Tribunal to issue such a positive direction to regularise the employees, after having taken note of number of judgments of the Hon’ble Supreme Court as well as the said enactment namely, the Tamil Nadu Act 46 of 1981, this Court has held that the Industrial Tribunal has got such power to issue a positive direction for regularisation. The learned counsel would contend that the said judgment squarely applies to the facts of the present case. For these reasons, the learned counsel would pray for dismissal of the writ petition. 17. I have considered the rival submissions. 18. The foremost dispute between the parties in this case is regarding the non regularisation of the workmen. Whether it would fall within the scope of industrial dispute as defined in Section Section 2(k) of the Act is the primary question which would decide the jurisdiction of the Industrial Tribunal. Simply because the Central Government had thought it fit to refer the said dispute to the Industrial Tribunal, it cannot be ipso facto taken that there existed an industrial dispute in terms of Section 2(k) of the Act. It is always open for the ONGC to contend and to establish that there existed no industrial dispute. Therefore, it is to be seen whether the denial of the ONGC to regularise the temporary workmen who have been working on term basis from 31.01.1988 can be termed as an industrial dispute. For this purpose, it would be worthwhile to extract Section 2(k) of the Industrial Disputes Act which reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ “2(k) “industrial dispute” means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any persons;” 19. A close reading of the above provision would make it abundantly clear that if only the dispute is connected with the employment or non employment or the terms of employment or with the conditions of labour, the same shall be an industrial dispute requiring adjudication by the Industrial Tribunal. In this regard, I may refer to Section 25T of the Act which came to be inserted by Act 46 of 1982 with effect from 21.08.1984. The said provision reads as follows:- “25-T. Prohibition of unfair labour practice.-No employer or workman or a trade union, whether registered under the Trade Unions Act, 1926 (16 of 1926), or not, shall commit any unfair labour practice.” 20. What is unfair labour practice is defined in Section 2 (ra) of the Act which states, “unfair labour practice” means any of the practices specified in the Fifth Schedule. Clause 10 of the Fifth Schedule states that, on the part of the employers, “To employ workmen as “badlis”, “casuals” or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.” shall be unfair labour practice. 21. In the case on hand, since these workmen have been employed as temporary workmen from 13.01.1988 that is for about 22 years, undoubtedly, it is an unfair labour practice as defined in Section 2(ra) of the Industrial Disputes Act. If any such unfair labour practice is practiced by any employer, of course, under Section 31 of the Act, such employer can be punished with imprisonment. But, imposition of such punishment will not in any manner come to the rescue of the victims of such unfair labour practice. It is needless to point out that the employer can continue with such unfair labour practice for ever if he is prepared to undergo the punishment to be imposed under Section 31 of the Act. But the Industrial Disputes Act, being a benevolent provision for the workmen, cannot receive such a narrow interpretation. The victims of such unfair labour practice should receive a solace under the Act. Therefore, the crucial question is as to whether, a dispute regarding unfair labour practice is an industrial dispute in terms of Section 2(k) of the Industrial Disputes Act. 22. As pointed out by the learned counsel for the first respondent, the term industrial dispute as defined in Section 2(k) of the Act came to be interpreted by the Federal Court as early as in the year 1949 in Western India Automobile Association v. https://hcservices.ecourts.gov.in/hcservices/ Industrial Tribunal, Bombay (cited supra). In that case, the phrase “employment and non employment” employed in Section 2(k) of the Act came to be considered by the Federal Court. After having made a thorough analysis of the law on the subject, in paragraph No.10 of the said judgment, the Federal Court has held as follows:- “10.................The words of the definition may be paraphrazed thus; “any dispute which has connection with the workmen being in, or out of service or employment”. “Non employment” is the negative of “employment” and would mean that disputes of workmen out of service with their employers are within the ambit of the definition. It is the positive or the negative act of an employer that leads to employment or to non- employment. It may relate to an existing employment or to a contemplated employment, or it may relate to an existing fact of non-employment or a contemplated non-employment. The following for illustrations elucidate this point:(1)An employer has already employed a person and a trade union says ”Please do not employ him”. Such a dispute is a dispute as to employment or in connection with employment. (2) An employer gives notice to a union saying that he wishes to employ two particular persons. The union says “no”. This is a dispute as to employment. It arises out of the desire of the employer to employ certain persons.(3) An employer may dismiss a man, or decline to employ him. This matter raises a dispute as to non-employment (4)An employer contemplates turning out a number of people who are already in his employment. It is a dispute as to contemplated non-employment. “Employment or non-employment” constitutes the subject matter of one class of industrial disputes, the other two classes of disputes being those connected with the terms of employment and the conditions of labour. The failure to employ or the refusal to employ are actions on the part of the employer which would be covered by the term “employment or non-employment”. Reinstatement is connected with non-employment and is therefore within the words of the definition. It will be a curious result if the view is taken that though a person discharged during a dispute is within the definition of the word “workman”, yet if he raises a dispute about dismissal and reinstatement, it would be outside the words of the definition “in connection with employment or non-employment”. It was contended that the words “employment or non- employment” were employed in the same sense, just to remove any ambiguity that might arise if the word” employment” alone was used. In other words, the word “non-employment” has limited the meaning of the word “employment”. To our mind, the result https://hcservices.ecourts.gov.in/hcservices/ is otherwise. The words are of the widest amplitude and have been put in juxtaposition to make the definition thoroughly comprehensive. Mr.Setalvad contended that the expression “in connection with employment or non-employment” excludes the question of non-employment itself which must exist as a fact to supply the nexus with the dispute. The argument is, in our opinion, unsound. The words “in connection with” widen the scope of the dispute and do not restrict it by any means.” 23. In paragraph No.25 of the said judgment, the Federal Court has held as follows:- “25. It was argued that though a dispute as to wrongful dismissal of an employee and as to compensation for the same may be within the ambit of the definition, yet a dispute as to reinstatement was outside its scope. Two consequences naturally flow from a decision that a dismissal was wrongful, (1)that the employee is entitled to damages and (2)that he is entitled to reinstatement. That the dispute regarding one relief is within the jurisdiction of the tribunal, not qua the other seems illogical. If the principal dispute which relates to wrongful dismissal or to a dismissal for an unjust cause or as a result of victimization is within the ambit of the definition, all that flows incidentally and consequentially from such a dispute (even if that consequential matter is by itself a dispute), cannot be held to be outside the scope of the words of the definition “employment or non-employment”. 24. A cursory reading of the said judgment would clearly reveal that if an employer contemplates turning out a number of people who are already in his employment, such contemplated non- employment would surely fall within the ambit of Section 2(k) of the Act. 25. In this case, the workmen are all victims of unfair labour practice. If they are not regularised, at any time, they can be sent out of employment. Further, in my considered opinion, the phrase “in connection with the employment” as employed in Section 2k of the Act would surely fall into its ambit, the dispute relating to the employment which is offended by the unfair labour practice as prohibited under Section 33 of the Act. In such view of the matter, I hold that the dispute relating to employment in defiance of the legislative mandate contained in Section 25-T of the Act is an industrial dispute as defined in 2(k) of the Act falling squarely within the jurisdiction of the Industrial Tribunal. Therefore, I reject the contention of the petitioner that the dispute raised in the given case was outside the scope of an industrial dispute. Thus, I hold that the Industrial Tribunal was right in entertaining the industrial dispute. https://hcservices.ecourts.gov.in/hcservices/ 26. Now turning to the judgment of the Hon’ble Supreme Court in Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana (cited supra) it was a case where the Maharashtra State Transport Corporation which is a state owned corporation had failed to regularise number of employees for a long time. Admittedly, those employees were not appointed as per the Standing Order of the Corporation. In effect, they were all irregularly employed as employees on piece rate basis. When a dispute was raised seeking regularisation, the Industrial Tribunal passed an award directing the employer to regularise their services. Relying on this judgment, it is contended by the learned counsel for the respondents that the said judgment is an authority for the proposition that the Industrial Tribunal has got vide powers to entertain the dispute relating to non-regularisation of workmen. 27. But, the learned Senior Counsel appearing for the petitioner would submit that it was a case relating to the Maharashtra Recognition of Trade Unions and Unfair Labour Practices Act, 1971 (hereinafter referred to as “MRTU Act”) and the same has nothing to do with the Industrial Disputes Act. A perusal of the MRTU Act would go to show that it was an act to define and provide for the prevention of certain unfair labour practices and to constitute Courts for enforcing the provisions relating to unfair labour practices. According to Section 3(16) of the MRTU Act “unfair labour practices” means unfair labour practice as defined in section 26 of the Act. Section 26 of the MRTU Act states that unless the context requires otherwise 'unfair labour practices’ mean any of the practices listed in Schedule II, III and IV. It needs to be noted that this provision is analogues to Section 2(ra) of