IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 759 of 1999 in SPECIAL CIVIL APPLICATION No 12850 of 1994 with CIVIL APPLICATION No 11658 of 1999 For Approval and Signature: HON'BLE MR.JUSTICE M.S.SHAH Sd/- and HON'BLE MR.JUSTICE D.H.WAGHELA Sd/- ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? 1 & 2 YES; 3 to 5 NO -------------------------------------------------------------- OIL AND NATURAL GAS CORPN LTD Versus ENGINEERING MAJDOOR SANGH -------------------------------------------------------------- Appearance: 1. LETTERS PATENT APPEAL No. 759 of 1999 MR MJ THAKORE Senior Advocate with MR K.M. THAKER Advocate for M/S TRIVEDI & GUPTA for Appellant MR GIRISH PATEL Senior Advocate with MR SHALIN N MEHTA Advocate for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE M.S.SHAH and HON'BLE MR.JUSTICE D.H.WAGHELA Date of decision: 12/05/2005 C.A.V. JUDGEMENT (Per: HON'BLE MR.JUSTICE D.H.WAGHELA for the Court:) 1. By this appeal under Clause 15 of the Letters Patent, the appellant ("ONGC" for short) has challenged the judgement dated 15/16.2.1999 of the learned Single Judge of this Court, whereby, after an elaborate discussion, reliefs as under were granted to the workmen concerned represented by the respondent trade union herein: "15. The upshot of the aforesaid adjudication is that this Court finds that the impugned award dated 6th June, 1994 passed by the Industrial Tribunal (Central) at Vadodara, is required to be modified and the same is hereby modified as under: (1) The relief will not be restricted only to those workmen whose names appear in the Schedule to the affidavit at Exh.48 which was filed by the ONGC before the Industrial Tribunal in the Complaint (ITC) 5 of 1993, but it will be available to all the employees who fulfil the requirements of completion of 240 days or more and the minimum qualifications under the ONGC (Recruitment and Promotion) Regulations, 1980 in accordance with the relevant Certified Standing Orders and in case they fulfil these requirements, all of them shall be considered at par with regular employees for the benefits which are given to regular employees, whether their names are there in the Schedule or not, whether they are members of the petitioner Sangh or not from the due date. (2) All such employees who are found to be covered by the preceding para of the relief as modified by this Court, shall be treated at par with the other regular employees working against the corresponding or equivalent/equated or identical posts and grant of such benefits shall not wait for the availability of the vacancies on the regular posts, of course, they will have to wait according to their turn for being made permanent as and when the permanent posts become available for this purpose, the age requirement shall be seen with reference to the point of time when such employees were initially employed instead of the relaxation as has been directed by the Industrial Tribunal in the impugned award. (3) Whereas the status of regular appointee is to be given to the employees who are covered by the Standing Order No.2 (ii) as above on the basis of conversion, the requirement to compete with other workmen seeking employment through Employment Exchange or similar manner as has been mentioned by the Industrial Tribunal in the impugned award, simply does not arise. 16. This Special Civil Application accordingly succeeds in part and the impugned award dated 6th June, 1994 passed by the Industrial Tribunal (Central), at Vadodara, in Reference (ITC) No.6 of 1991 is modified in the terms as aforesaid and these modified terms would govern the rights and obligations of the parties. The respondent ONGC would take appropriate steps in accordance with the modified terms as aforesaid and issue appropriate orders for all the employees who are covered by these terms at the earliest possible opportunity, but in no case, later than 30th April 1999." 1.1 According to the order dated 16.12.2004 in this appeal, the respondent Union (original petitioner) has given up its claim for modification of the award in terms of direction No.1 in paragraph 15 quoted hereinabove, but pressed for implementation of directions No.2 and 3 (in respect of 156 employees who were covered by protective interim order of this Court). On the other hand, the learned Solicitor General stated that the ONGC, appellant herein, did not press its challenge to direction No.3. In that view, the controversy and the appeal is now restricted to challenging direction No.2 only. 2. Tracing the journey of this litigation spreading over 25 years, it appears that the appellant, a giant Corporation which started with the staff strength of 450 employees in 1956, had, by the year 1979, 25000 employees. In the year 1991, the respondent Trade Union agitated the demands of their members who were recruited as "casual/contingent/temporary" workmen seeking regularisation of their services and their industrial dispute was referred to the Industrial Tribunal on 18.7.1991 by the Ministry of Labour, Government of India, for adjudication of the following issue: "Whether the demand of Engineering Mazdoor Sangh, Vadodara that the employees employed in the ONGC, Western Region, Vadodara, who have completed 240 days or more in the Commission as casual/contingent/temporary be regularised as permanent workmen from the date of their engagement in ONGC, with other consequential benefits, is justified ? If yes, to what reliefs the said workmen are entitled ?" 2.1 It was the case of the Union before the Tribunal that the ONGC was recruiting casual/contingent/ temporary workmen on a large scale in their "field parties" during the field season and when the work was reduced during the off-season, while many workmen were discharged, some were continued in service but were required to change their names under threats, not to allow them 240 days of work as "casual/contingent/ temporary" workmen and that they were required to be regularised. The case of the ONGC before the Tribunal was that, for the purpose of carrying out seismic survey and other prospecting operations and for carrying out geological and geophysical surveys for the exploration of petroleum, 13 field parties worked in the western region of the Commission. Such field parties normally worked during winter and summer approximately for nine months and they closed their work during monsoon. Each field party needed about 150-200 "casual/contingent/temporary" workmen during the field season which the chief of the party was authorised to recruit for a specified period only and such casual workmen had no right to regular posts. 2.2 According to the ONGC, there were relevant rules in the form of "ONGC (Recruitment and Promotion) Regulations, 1980 for making regular appointments and there are Certified Standing Orders which govern the service conditions of the workmen. All the vacancies to the regular posts were required to be notified to the Employment Exchange under the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959. The chiefs of the field parties made recruitments without regard to the requirements of age and educational qualifications and, therefore, if such workmen were to be considered for regular recruitment, the aforesaid Rules may be violated. It was also contended before the Tribunal that if such workmen who had completed 240 days of work as casual/contingent/ temporary workmen were to be made permanent as a matter of course, that would violate Articles 14 and 16 of the Constitution. The contract of employment of such workmen came to an end when the term for which they were appointed expired and they could not claim even the benefit of Section 25-F of the Industrial Disputes Act, 1947 ("the Act" for short). Since such workmen were paid the minimum wages as provided under the Minimum Wages Act and also 25% extra, there was no exploitation, according to the appellant. 2.3 During the pendency of the proceeding before the Tribunal, the Union had, on 28.4.1993, filed a complaint under Section 33-A of the Act to voice the grievance that the ONGC had started giving work to contractors in preference to employing "casual/ contingent/temporary" workmen and, by order dated 30.10.1993 in the said Complaint (ITC) 5 of 1993, it was held that it was not permissible for the Tribunal to examine whether the work of the ONGC was seasonal or not. And the ONGC was directed to follow the principle of "Last come first go" in case it wanted to terminate the service of such workmen on the ground that they had no work as also to obtain prior permission of the Tribunal under Section 33 (1) (a) of the Act. Then the ONGC made an application seeking permission to terminate the services of 2217 such "casual/contingent/temporary" workmen. By order dated 30.5.1994, the Tribunal permitted termination of the services of such workmen except 189 of them and the ONGC was given an option to examine the witnesses to show that actually there was no work for those 189 workmen. When evidence was recorded in the said Complaint (ITC) 5 of 1993, the ONGC did not lead any oral evidence. Nor was any oral evidence led by either party in the main reference itself, but it appears that the parties relied upon the evidence led in Complaint (ITC) 5 of 1993 which complaint was filed in the main reference. 2.4 On the basis of earlier finding in Complaint (ITC) 5 of 1993, it was recorded in the award that: "......It was a fact admitted by both the sides that the work of the ONGC is seasonal. Thus, the ONGC recruiting casual workmen in the beginning of November every year and terminating their services in April or May every year is a recurring phenomenon. But keeping workmen casual, badli or temporary over long spells of time amounts to an unfair labour practice. Therefore, there has to be some scheme of regularising such workmen. An answer is to be found in the Certified Standing Orders which govern the parties......" 2.5 As for the factual controversy regarding the workmen concerned, i.e. those excepted 189 workmen who were not permitted to be discharged, the Tribunal relied upon the list annexed as schedule to the affidavit of Shri Gautam Sen, Chief Geophysicist, Exh.48, for the number of days worked by each workman concerned. Discarding the list of 269 workmen produced by the Union along with Exh.14, the Tribunal proceeded on the assumption that the workmen shown in the schedule to Exh.48, except the last ten workmen, had completed 240 days of service in the Commission. The ONGC had shown in that schedule the number of days put in by each workman in the years 1989-90, 1990-91, 1991-92 and 1992-93. The ONGC had shown the number of days put in by each workman during the span of about eight years from 1981 to 1989 and the maximum number of days put in by the workmen for this span of time was 869 days. Thus, though at the beginning of every field season, the ONGC recruited about 2000-2500 workmen as "casual workmen" and terminated their services in April or May every year, according to the Tribunal's reading of the schedule to Exh.48, not a single workman could complete 240 days in consecutive 12 months over a span of about 12 years. That anomaly and the root cause of simmering discontent was not explained by the ONGC by leading any evidence, but the evidence produced by the Union and lack of cross-examination on the critical issue led the Tribunal to arrive at the finding of fact that officers of the ONGC had resorted to unfair labour practice of requiring the casual workmen to often change their names with a view to depriving them of their right to become temporary and in course of time to be eligible to be considered for becoming regular employees. 2.6 Accordingly, even though some of the workmen had completed 180 days in 12 consecutive months and some of them had not, relying on Clause 2 (ii) of the Certified Standing Orders, it was held that all the workmen enumerated in the schedule to the affidavit at Exh.48 (except 10 at the bottom of the list) should be treated as "temporary" in view of the sharp practice practised on them by the ONGC. In view of this finding of fact as also the fact that the workmen were "at the doors of the ONGC now for more than 12 years" and it was "palpable injustice to them", the ONGC was directed to consider, as and when vacancies to the regular posts arose, the names of those workmen in the same descending order in which they were mentioned in the schedule and to regularise them provided they had the prescribed educational qualifications and for each 240 days of work put in by each workman, the ONGC was ordered to give him age relaxation of one year. It was clarified that the workmen concerned shall have to compete with other workmen seeking employment through Employment Exchange or in similar lawful manner. The ONGC was warned to ensure that no officer in their employment resorted to unfair labour practice of inducing any casual workman to change his name and the workmen concerned were ordered not to change their own names to conceal previous employment with the ONGC. Thus, the award dated 6.6.1994 sought to resolve the industrial dispute with the above directions and awarded Rs.5000/= to the Union by way of costs. 3. It was not the ONGC which challenged the above award or the findings of fact recorded therein, but it was the Union who approached the High Court under Articles 226 and 227 of the Constitution with the grievance that the Tribunal had not directed the ONGC to regularise the service of the concerned workmen in a time-frame and had not granted the relief of consequential benefits after completion of 240 days of service. The learned Single Judge of this Court, in the impugned judgment, took the view that there was no question of limiting the scope of the reference to the names included in the schedule and once a workman had acquired the status of a temporary workman on completion of 180 days of attendance in any period of 12 consecutive months, he became entitled to be considered for conversion as a regular employee after putting in 240 days of attendance in any period of 12 consecutive months, according to the Standing Orders of the ONGC. It was observed that, for regular appointment, it was not necessary that there must be a permanent post; that regular appointment was possible against a temporary post also; that there was no impediment against the employees who had been continuing for a number of years, in certain cases for 12 years or more, in considering them at par with the regular employees; that the Standing Orders permitted such conversion and treatment at par with regular employees; that completion of 240 days as provided in the Standing Orders and the possession of minimum qualification with reference to the post against which the employee concerned has been discharging his duties would be sufficient and the benefit of treating such employees at par with regular employees could not be avoided on the basis that they have to wait till availability of permanent post. The learned Single Judge observed that there was no question of giving regular appointment as such, but the question was to give effect to the terms of the Standing Orders according to which the status of regular appointee was to be considered by way of conversion of a temporary employee into a regular employee when he completed 240 days or more of service continuously in one year and fulfilled the requirement of minimum qualification. The following observations in the impugned judgment need to be quoted: "13. True it is, that the regularisation as permanent workman cannot be given in absence of availability of a permanent post as the law is settled that permanent appointment cannot be given in absence of the permanent post, but it is equally settled that the availability of a permanent post is a fortuitous circumstance and consequential confirmation of any employee is a known inglorious uncertainty in the service career and therefore, the regularisation as permanent workman may depend upon the availability of a permanent post. However, it is also trite law that regular appointment can be given even against a temporary post and therefore, there is no ban against treating a person to be regular even if the permanent post is not available. In view of this position of law, I am inclined to hold that regularisation as a permanent employee cannot be given unless there is a permanent post, but at the same time, an employee who has been working for years together can certainly be considered at par with other regular employees for the purpose of all other benefits and so far as the Standing Order 2 (ii) to which the reference is made hereinabove is concerned, it is very clear that it speaks of consideration for conversion as regular employee. The consideration for conversion as regular employee cannot be compared with regularisation as permanent workman and for the purpose of conversion of workman as regular employee, what is to be seen is the completion of 240 days and the minimum qualifications prescribed by the Commission. It is, therefore, not a case of giving a regular appointment but a case of conversion as regular employee as contemplated by the Standing Orders........" "....It is, therefore, transparently clear that if a workman had completed 180 days in 12 consecutive months, he ceases to be a casual employee and becomes a temporary employee and if such temporary employee completes 240 days in 12 consecutive months and he also becomes eligible to be converted as regular employee and the ONGC was not willing to confer this status to temporary workman or the entitlement for consideration as regular employee by conversion and therefore the employees had to seek employment in different names after completing 180 days......" 3.1 Out of the reliefs granted on the above basis, only the direction to treat the temporary employees at par with the regular employees and to relax the age requirement is left to be considered as the subject-matter of this appeal. The objection and insistence of the ONGC, in effect, is that the workmen concerned, by now only 153 in number (some having been already absorbed and some having left for their heavenly abode) should be allowed to be continued as seasonal and casual employees away from the security of job, pay-scales and perquisites available to the regular employees of the ONGC mainly on the grounds that they are not regularly recruited employees against permanent posts and their work in the field parties continues to be seasonal, and in view of the prospect of shrinking requirement of permanent staff in the changing environment of free-market economy, de-nationalization and globalization. 4. Before dealing in detail with the grounds and contentions of the appellant, it would be pertinent to advert to certain developments which took place during the pendency of the proceedings. Even before the industrial dispute was raised and referred, three groups of total 269 workmen of the ONGC had filed three petitions in the High Court being SCA No.1378, 3190 and 4165 of 1990 wherein direction to raise an industrial dispute was issued. Upon raising the industrial dispute and failure report of the Conciliation Officer being submitted in March 1991, the industrial dispute was referred by the Central Government in July 1991. During the pendency of the reference, an ex-parte order directing the ONGC to maintain status quo till further orders was passed on 2.4.1992 and that order being not vacated, the ONGC had challenged that order by SCA No.3152 of 1992 which petition was rejected by this Court on 6.5.1992. The ONGC had, therefore, preferred S.L.P. (Civil) No.8383 of 1992 wherein an interim stay against the order dated 6.5.1992 was granted. While disposing that appeal on 16.10.1992, the Supreme Court had recorded the statement of the learned senior advocate appearing for the ONGC that all the employees involved in the reference would be given employment with effect from 1.11.1992 in connection with the field party work. The aforesaid order of the High Court was, therefore, vacated and the Industrial Tribunal was directed to dispose of the reference as expeditiously as possible and preferably within four months. 4.1 On 28.4.1993, when the Union filed Complaint (ITC) No.5 of 1993 under Section 33-A of the Act, the Tribunal made an order on 30.10.1993 directing the ONGC to prepare seniority list of temporary workmen who had worked for more than 240 days and to observe the principle of "Last come first go" if retrenchment was to be made, as also to take prior permission of the Tribunal before retrenching such workmen. On 30.5.1994, the Tribunal permitted termination of services of other "casual/contingent/temporary" workmen excepting the batch of 189 workmen who were at that time in employment of the ONGC and declared that the case of those 189 workmen was liable to be reviewed if the ONGC offered evidence on the question as to whether work existed for them or not. Such evidence does not appear to have ever been led by the ONGC. Therefore, those workmen were required to be continued in service without any break. 4.2 After the aforesaid order dated 30.5.1994 becoming final upon rejection of the petition preferred therefrom, the ONGC made an application in the Tribunal praying that it was not permissible for the Tribunal to proceed with the enquiry contemplated in the earlier orders and no further proceedings were required to be done. Upon that application being rejected, the ONGC preferred a writ petition being SCA No.10460 of 1994 which was allowed and by order dated 16.9.1994, the orders dated 8.8.1994 and 9.8.1994 directing payment of wages for the months of June, July and August, 1994 passed by the Industrial Tribunal in Application (ITC) 1 of 1994 in Complaint (ITC) 5 of 1993 were quashed. 4.3 Thus, in short, during the pendency of the reference before the Tribunal, the injunction against termination of services of the workmen concerned continued and enquiry as to whether the work existed for the workmen came to be closed at the instance of the ONGC. And the ONGC continued to employ the workmen on seasonal and casual basis. 4.4 During pendency of SCA No.12850 of 1994 in which the judgment under appeal was rendered, it was alleged by the Union that the ONGC had stopped marking presence of the workmen concerned from 1.6.1994 and not paid wages for the period from 1.6.1994 to 16.10.1994. In reply to that the ONGC stated on affidavit that, "there was no work to be offered to the said people and that, therefore, there was no question of marking their presence or making payment of wages from 1.6.1994 to 16.10.1994". While admitting the petition on 30.11.1994, the Court found that no interim order was necessary but liberty was given to the parties for moving for early hearing and the Court declared that any step to be taken by the respondent affecting interests of the petitioner would be subject to the result of the petition. In the four years of pendency of the petition, it appears to have been contested mainly on factual grounds and the legal objection that, it having been preferred from and after an adjudication, it essentially invoked Article 227 of the Constitution under which the powers of the Court were severely restricted. It is not clear as to which conditions of service prevailed during the period of pendency of the petition. 5. During the pendency of this appeal, by order dated 28.1.2000, the order passed by the learned Single Judge was stayed except