IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8124 of 2002 1. SHEKHAR KUMAR SINGH @ SHEKHAR KUMAR, SON OF SRI SHIV JEE SINGH, RESIDENT OF VILLAGE- SIMRI, P.O.- KESHAVPUR VIA CHANDAN PATTI, DISTRICT- MUZAFFARPUR. 2. PRAMOD KUMAR PRASAD, SON OF CHATTOO PRASAD, RESIDENT OF VILLAGE- SAMARDIH, P.O.- SOHARHOLA, DISTRICT- SIWAN. 3. AJIT KUMAR SINGH, SON OF RAMESH CHANDRA SINGH, RESIDENT OF VILLAGE- JAYANAGAR (NEAR REGISTRY OFFICE), P.O.- JAYANAGAR, DISTRICT- MADHUBANI. 4. SHIVA KANT PANDEY, SON OF BABU PRASAD PANDEY, RESIDENT OF VILLAGE- SUGAR CHAP., P.O.- RAMPARSUANA, DISTRICT- EAST CHAMPARAN. 5. RAMDEO PRASAD, SON OF LATE DODHA MAHTO, RESIDENT OF VILLAGE- RAMKARWA, P.O.- HARNATAND, DISTRICT- WEST CHAMPARAN. 6. LAL PRASAD, SON OF RAMYADHYA SAH, RESIDENT OF VILLAGE- BARYA KHURD, P.O.- HARNATANDA, DISTRICT- WEST CHAMPARAN. 7. RAMESH SINGH, SON OF LATE SATYANARAYAN SINGH, RESIDENT OF VILLAGE- KARMOPAR (PURANATOLA), P.O.- NAWANAGAR BAZAR, DISTRICT- VAISHALI. 8. DEVENDRA KUMAR @ DEVENDRA KUMAR SINGH, SON OF JAGDISH SINGH, RESIDENT OF VILLAGE- BHARKURLA, P.O.- DARIHAT, DISTRICT- ROHTAS. 9. KANHAIYA SAH @ KANHAIYA PRASAD, SON OF LATE TAPESHWAR SAH, RESIDENT OF VILLAGE- HARNATAND, P.O.- HARNATAND, DISTRICT- CHAMPARAN. 10. SITA RAM SAH, SON OF JUGAL SAH, RESIDENT OF VILLAGE- BAIRIYA KHURD, P.O.- HARNATAND, DISTRICT- WEST CHAMPARAN. 11. BABULAL GUPTA, SON OF MAHADEO GUPTA, RESIDENT OF VILLAGE- BAIRIYA KHURD, P.O.- HARNATAND, DISTRICT- WEST CHAMPARAN. 12. PURAN SHARMA, SON OF JAGDISH SHARMA, RESIDENT OF VILLAGE- BARIYA, P.O.- HARNATAND, DISTRICT- WEST CHAMPARAN. 13. DASHRATH SHARMA, SON OF JAGDISH SHARMA, RESIDENT OF VILLAGE- BARIYA, P.O.- HARNATAND, DISTRICT- WEST CHAMPARAN. 14. RAJA RAM SAH @ RAJA RAM GUPTA, SON OF THAKUR SAH, RESIDENT OF VILLAGE- BARIYA, P.O.- HARNATAND, DISTRICT- WEST CHAMPARAN. 15. MANBAHALI PRASAD, SON OF BHULAN MAHTO, RESIDENT OF VILLAGE- MOHUA, P.O.- HARNATAND, DISTRICT- WEST CHAMPARAN. 16. SHARVAN KUMAR BISWAKARMA, SON OF RADHEY SHYAM BISWARKARMA, RESIDENT OF VILLAGE- HARNATAND, P.O.- HARNATAND, DISTRICT- WEST CHAMPARAN. 17. AMAR KUMAR, SON OF SHEVAJEE SINGH, RESIDENT OF VILLAGE- SIMRI, P.O.- KASHOPURA, P.S.- SAKRA, DISTRICT- MUZAFFARPUR. 18. BIDYA KANT PANDEY, SON OF BABU PRASAD PANDEY, RESIDENT OF VILLAGE- SUGAR CHHAP, P.O.- RAMPURSAUNI, DISTRICT- WEST CHAMPARAN. 19. BIRENDRA KUMAR @ BIRENDRA KUMAR SRIVASTAV, SON OF CHATTHEO PRASAD, RESIDENT OF VILLAGE- SAMARDAH, P.O.- SAHARKOTA, DISTRICT- SIWAN :---- PETITIONERS. Versus 1. THE OIL AND NATURAL GAS COMMISSION, THROUGH ITS CHAIRMAN, TEL BHAWAN, DEHRADUN. 2. THE MEMBER (PERSONNEL), OIL AND NATURAL GAS COMMISSION, TEL BHAWAN, DEHRADUN. 3. THE REGIONAL DIRECTOR, OIL AND NATURAL GAS COMMISSION, 41 CHOWRANGEE ROAD, CALCUTTA-71. - 2 - 4. THE PROJECT CO-ORDINATOR, OIL AND NATURAL GAS COMMISSION, ALANKAR PLACE, 5TH FLOOR, BORING ROAD, PATNA-1. 5. THE SUPERINTENDING ENGINEER, OIL AND NATURAL GAS COMMISSION, ALANKAR PLACE, 5TH FLOOR, BORING ROAD, PATNA-1. :--- RESPONDENTS. 6. SURESH YADAV, SON OF JAGANNATH YADAV, RESIDENT OF VILLAGE- PATH KHAULI, P.O.- PATILAR, DISTRICT- WEST CHAMPARAN :---- PERFORMA RESPONDENT. ----------- FOR THE PETITIONERS : M/S AKASHDEEP & SHYAMESHWAR KUMAR SINGH, ADVOCATES. FOR THE ONGC : M/S K.N.GUPTA & SATYENDRA KRISHNA PRASAD, ADVOCATES. ************** 16. 27 /07/2010 Petitioners are aggrieved by the Award dated 27th March, 2002 passed by the Central Government, Industrial Tribunal No.-1, Dhanbad in Reference No. 89 of 1995, whereunder reference made to it to examine the request of the petitioners for regularization by the Oil and Natural Gas Commission (hereinafter referred to as the “ONGC”), Gandak Deep Drilling Project, Patna has been answered in negative holding that there does not exist any employer- employees relationship between the petitioners and the ONGC. 2. Learned counsel for the petitioners assailed the Award on the ground that ignoring the oral/documentary evidence the Tribunal has erroneously recorded the following findings :- (a). In paragraph-7 the Tribunal has concluded that the statement of the witnesses of the workers are not consistent with the statement made in the written statement filed on their behalf wherein it has been disclosed that the engagement of the concerned workmen was under different work orders/job contract. (b). In the same paragraph-7 with reference to Exhibit- - 3 - W-1 series, the work orders for job contract, Exhibit-W-4 series, the Job Contract Bills, Ext.- W-5 and W-5/1, payment vouchers, Ext.- W-6, W-6/1 and W-6/2, the Pass Book of the three contractors, the Tribunal held that it is apparent that in the light of the work orders/job contract bills were submitted by the three contractors and payments were credited in the account of the three contractors, as is evident from their pass-books and the engagement of the petitioners was through and by the contractor and not by the ONGC. (c) In the same paragraph further it has been held at the bottom that there is no dispute that 20 workmen including the petitioners worked at the Ganauly, Kadmaha sites of ONGC from 1988 till March, 1993 under contract agreement executed by and between one of the workmen on the one side as contractor and the authorized/representative of the ONGC. (d). Having considered the submission of the workmen raised in paragraph-8 that existence of contractor was a mere camouflage the Tribunal in paragraph-9 of the Award examined the oral testimony of the witnesses of the parties. (e). In paragraph-10 the contents of the documentary evidence produced by the parties was examined and it was concluded with reference to Exhibit-M-25 that the tender notice notifying tender for the maintenance work at the aforesaid two sites was issued from time to time in response whereto quotations, Exts. M-15, M-16, M-17, M-19, M-21 (copies of quotations) were submitted and having considered the quotations vide Ext.- M- - 4 - 7,M-8,M-9,M-10, Contract Sanction order was issued and agreement signed by Contractor Ramdeo Prasad and Shekhar Kumar Singh who also worked as workers. Exts.- M-52,M-63,M- 66,M-77,M-84, M-94,M-99 are the contract sanction orders in the name of the contractor. It is also held in the same paragraph that nature of the maintenance job which was to be performed by the contractor is indicated in the work order. With reference to Exts.- M-11, M-12, M-14, M-23, M-24, M-26, M-27, M-32, M-33, M- 34, M-36, M-41, M-43, M-46, M-50, M-56, M-57, M-59, M-64, M-67, M-68, M-70, M-71, M-73, M-80, M-82, M-85, M-87, M- 89, M-90, M-91, M-97, M-100, M-102, M-105, M-108, M-110 and M-114, the copies of job contract bill submitted by the contractor Ramdeo Prasad and Shekhar Kumar Singh it is held that having executed the contract the contractor Ramdeo Prasad and Shekhar Kumar Singh submitted the bill at the prescribed rate which was considered by the authorized representative of the Principal employer and payments were credited in the account of the contractors vide Exts.- M-35, M-39, M-42, M-45, M-48, M- 54, M-58, M-60, M-65, M-69, M-72, M-76, M-79, M-81, M-83, M-86, M-88, M-92, M-93, M-96, M-98, M-101, M-103, M-105, M-109, M-112 and M-115( the Bank Payment Vouchers in the name of the two contractors Ramdeo Prasad and Shekhar Kumar Singh). M-40 is the receipt of cheque granted by contractor Ram Deo Prasad. In the same paragraph with reference to M-3 series (the payment vouchers) it is held that the contractors were paid on monthly basis from August, 1990 till the month of March, 1993. - 5 - With reference to Exts. M-4,M-5,M-6,M-13,M-49 and M- 61(copies of the agreement) it was concluded that the agreement was signed by and between Ramdeo Prasad and Shekhar Kumar Singh as contractor and the representative of the ONGC. (f). In paragraph-11 it was concluded with reference to the documents discussed in earlier paragraphs that as and when the necessity arose for getting specified job done the ONGC issued tender and invited quotation and having considered and accepted the quotation agreement executed by and between the contractor Ramdeo Prasad or Shekhar Kumar Singh and the authorized representative of the ONGC for getting the specified work executed by the contractor. The contractor having executed the job submitted bills which was passed and payment made through account payee cheque credited in the account of the contractor. (g). It is also held in the same paragraph that nothing is available on the record to take a contrary view that the workmen engaged at the two sites were not the workers of the contractor and had direct relationship of workmen with the ONGC. (h). In paragraph-12 of the Award the Tribunal has concluded that petitioners are the workers of the contractor or the contractor themselves and there is no relationship of master and servant between the petitioners and the ONGC, the contract agreement executed by and between the contractor and the representative of the ONGC is not sham. (i). In paragraph-13 the Tribunal has considered the - 6 - effect of the failure of the contractor and the Principal Employer (ONGC) to obtain the licence under the Contract Labour (Regulation & Abolition) Act, 1970 and has concluded that for failure to obtain the licence the contractor and the Principal Employer are liable for prosecution but failure to obtain licence does not mean that the workers are the workers of the Principal Employer entitled for absorption. (j). In paragraph-14 of the Award the Tribunal has concluded that the oil having not been struck at the two drilling sites the sites have been closed and the workers of the contractor cannot claim regularization from the Principal Employer (ONGC). (k). In Paragraph-15 the Tribunal has considered the certificates granted in favour of the petitioners by the Executive Engineer Electrical of the ONGC and has held that the certificate only indicates that the petitioners were co-operative and rendered good service as the workers of the contractor but such certificate cannot entitle them to seek regularization with the principal employer. (l). In paragraph-16 the Tribunal has held that the reference is not maintainable as the same was not made by the Union and the dispute raised does not come within the purview of Section 2(A) of the Industrial Disputes Act. 3. Aforesaid findings recorded by the Tribunal is questioned by the counsel for the petitioners as contrary to the contents of the work order(s), agreements, payment vouchers - 7 - generated by the parties from time to time to establish that the petitioners may have been initially engaged by the contractor but thereafter they served at the two drilling sites of the ONGC under the direct supervision of the ONGC and not under the contractor. In this connection, reliance is also placed on the list of documents dated 09.12.1996, Annexure-9 filed by the respondent ONGC before the Industrial Tribunal to submit that payment vouchers showing payment to the workers by the contractor having been produced by the ONGC is a strong evidence to establish that payment to the workmen was being made by the ONGC directly. Further, reliance is being placed by the counsel for the petitioners on Clause 8, 8.1 and 8.2 of the office order of the ONGC dated 16th July, 1991, Annexure-1 to submit that maintenance work at the two drilling sites being perennial in nature or of sufficient longer duration as the operation at the drilling sites continued for about five years should not have been allotted to a contractor as there is clear prohibition to engage contract labourer from performing work of perennial nature or of sufficient longer duration. In support of the aforesaid submission, learned counsel for the petitioners has relied on the judgment of the Hon’ble Supreme Court in the case of Steel Authority of India Ltd. and others V. National Union Water Front Workers and others, reported in A.I.R. 2001 Supreme Court 3527, paragraphs- 69,70,71,75,76,86,96,97,101,105,115,116 and 122, Oil and Natural Gas Corpn. Ltd. V. Engineering Mazdoor Sangh, reported - 8 - in A.I.R. 2007 S.C. 920 and General Manager, Oil and Natural Gas Commission, Silchar Vs. Oil and Natural Gas Commission Contractual Workers Union, reported in A.I.R. (2008) 12 SCC 275. 4. In order to consider the submissions noted above, it is necessary to notice the contents of the work order(s), agreement(s), payment voucher(s) generated by the parties from time to time and said to have been produced before the Tribunal by the ONGC under list of document dated 09.12.1996, Annexure-9 as also of the contents of the office order of the ONGC dated 16th July, 1991, Annexure-1. 5. Perusal of the work orders indicate that the same has been issued in response to the quotation submitted by the contractor directing the contractor to carry out the specified job of material handling, cleaning of equipments, maintenance of water/electricity supply, Air conditioners by engaging men to assist the regular employees of the ONGC serving in the electrical and mechanical sections at the two drilling sites on the terms and conditions noted in the work order that the contractor shall be responsible for the execution of the job contract, safety of his men and that the work order was liable to be terminated at the discretion of the authority issuing the work order and was also subject to the agreement signed by and between the contractor and the representative of the ONGC. Perusal of the agreement executed by and between the contractor and the authorized signatory of the ONGC indicate that under the agreement it was - 9 - the contractor who was entrusted with the duty to ensure the execution of the contract for which the agreement was signed as also to ensure compliance of the provisions of the laws, rules, orders and regulations. If the services rendered by the contractor was not found satisfactory by the ONGC, the contract was liable to be cancelled. On successful execution of the works payment was to be made to the contractor whose responsibility was to make payment to the men engaged by him to execute the works. Payment vouchers indicate that contractor has made payment to the workers including himself for the specified job carried out at the two drilling sites. Such payment was made by the contractor to the workers after the contractor received payment through cheque pursuant to the bills submitted by the contractor after the bill was examined and passed by the competent authority of the ONGC with certificate that the job contract was carried out within the specified period. From perusal of list of documents dated 09.12.1996, Annexure-9 it is evident that the payment vouchers were produced by the ONGC before the Tribunal. Learned counsel for the ONGC submitted that ONGC had taken copy of the payment vouchers from the contractor for keeping in their record so as to establish before the authorities as and when required that workers were being paid wages by the contractor as per the Minimum Wages Act and that the production of the copy of the payment vouchers showing payment made by the contractor to the workers does not establish that payment was being made by the principal employer to the workers. - 10 - 6. From the contents of the work order, agreement signed by and between the contractor and the authorized representative of the ONGC, contents of the bill and the payment vouchers it is quite evident that the material handling, maintenance contract was being carried out at the two drilling sites of the ONGC by the contractor after engaging men (workers) whose safety and payment was the responsibility of the contractor and the ONGC had no supervision or control over the men (workers). The ONGC in terms of the work order/contract agreement was authorized to make payment to the contractor after satisfactory completion of the contract as also empowered to cancel and terminate the contract but hardly exercised any control over the men (workers) as the engagement and the safety of the men (workers) was at the risk of the contractor who besides being the contractor, was also serving as a worker. The office order dated 16th July, 1991, Annexure-1 restrained the ONGC from engaging contract labourer to perform work of perennial nature or of sufficient longer duration. At the two drilling sites oil exploration work was undertaken by the ONGC and the authorities were not aware as to how long the exploration work would continue. In the circumstances, they engaged contractors to carry out specified job contract concerning maintenance work to assist the regular employees of the ONGC for specified period of one month and renewed the job contract in favour of the contractor from time to time, as the ONGC was not aware as to how long the exploration work would continue. In case - 11 - petitioners were aggrieved by the conduct of the ONGC, who have assigned the maintenance work to the contractor and has renewed the contract from time to time, they should have opposed such renewal by representing before the authorities of the ONGC or by resorting to other legal proceedings. After closure of the two drilling sites in the year 1993 there was no justification for the petitioners for raising the industrial dispute and reference thereof to the Tribunal in the year 1995 and the contention that the job contract is sham does not appear to be correct. 7. For the reasons indicated above, I do not find that the findings recorded by the Tribunal is erroneous and perverse. In the circumstances, I am not inclined to interfere with the Award dated 27th March, 2002 and the writ application is dismissed. A.F.R. P.K.P. (V.N.Sinha,J.)