IN THE HIGH COURT OF GUJARAT AT AHMEDABAD corr. SPECIAL CIVIL APPLICATION No 8840 of 1989 with SPECIAL CIVIL APPLICATION Nos. 8913 of 1989 to 8919 of 1989 For Approval and Signature: Hon'ble MR.JUSTICE M.R.CALLA ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? Yes 2. To be referred to the Reporter or not? Yes J 3. Whether Their Lordships wish to see the fair copy of the judgement? No 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? No 5. Whether it is to be circulated to the Civil Judge? No -------------------------------------------------------------- MM ASHRAFI Versus OIL & NATURAL GAS COMMISSION -------------------------------------------------------------- Appearance: Special Civil Applications Nos.8840, 8913 to 8919 of 1989 Mr.N.R. Shahani, learned counsel for the petitioners. Ms. V.P.Shah, learned senior counsel for the respondent Nos.1 and 2. No one appears for the respondent Nos.3 to 5. -------------------------------------------------------------- CORAM : MR.JUSTICE M.R.CALLA Date of decision: 15/04/96 16-4-96 17-4-96 COMMON JUDGMENT ; 1. This bunch of eight Special Civil Applications is based on identical facts and involve common questions of law and hence all these petitions are decided by this common judgment and order. 2. Initially Special Civil Application No.8840 of 1989 was filed jointly on behalf of 8 petitioners on 27-12-89. On that very day, when the matter came up before the Court, leave was granted to file separate petitions for petitioners Nos.2 to 8 and in terms of Court's order dated 27-12-89, 7 more petitions being Special Civil Applications Nos.8913 to 8919 of 1989 were filed. 3. On 12-10-90 Rule was issued in each of these petitions with the order that they will be heard with Special Civil Application No.3522 of 1989. On the question of interim relief, it was recorded with regard to the petitioners in Special Civil Applications Nos.8914 to 8916 of 1989 that they had already been terminated from the service with effect from 10-2-90 and with regard to the petitioner in Special Civil Application No.8919 of 1989 it was recorded that he had already left the service. For the remaining petitioners, status quo was directed to be continued till further orders and it was also recorded that the contract of Nayan Creative Marketing Consultants was to terminate by 31-12-90 and, therefore, the interim relief was ordered to enure till the time the contract of Nayan Creative Marketing Consultants was to be terminated and that in case the new contractor is engaged, the Commission shall introduce a term in the contract whereby the existing employees shall continue with them and this interim relief was to be available to these petitioners in the respective petitions i.e. Special Civil Application Nos.8840, 8913, 8917 and 8918 of 1989. It was also clarified in the order dated 12-10-90 that in case no new contractor is appointed vice contractor-respondent No.4 i.e. Nayan Creative Marketing Consultants, the question of continuing the interim relief thereafter would not survive. It has been given out by the parties that the contract continued upto 31-3-91 and, therefore, the petitioners in Special Civil Applications Nos.8840, 8913, 8917 and 8918 of 1989 continued till 31-3-91 on the strength of the interim order. It was then given out by Mr. Shahani appearing for the petitioners that M.M. Ashrafi i.e. petitioner in Special Civil Application No.8840 of 1989, M.M. Shaikh- petitioner in Special Civil Application No.8913 of 1989 are out of employment since 31-3-91 as stated above, but Bariya Pratap Ranchhodbhai-petitioner in Special Civil Application No.8917 of 1989 and Mansuri Munaf Mohd. Kasam-petitioner in Special Civil Application No.8918 of 1989 are continued with the Contractor-Panache Associates, Vadodara even at present as they were later on recalled with different Contractors from time to time i.e. with Maruti Electrical, Ankleshwar in May, 1991, Ajay Electronics, Ahmedabad from April 1992 to February 1993, Shri Baba Electricals, Ahmedabad (also known as Dutt Intercom Sales & Services) from March 1993 to March 1995 and Panache Associates, Vadodara from 1-4-95 onwards. But this contract with Panache Associates, Vadodara is scheduled to come to an end on 30-4-96 and,therefore, these two petitioners i.e. Bariya Pratap Ranchhodbhai and Mansuri Munaf Mohd. Kasam are also facing prospects of being rendered unemployed from 30-4-96. 4. It appears from the submissions made in the main Special Civil Application No.8840 of 1989 that certain employees, other than these petitioners, who were engaged through labour contracts, had also filed Special Civil Applications Nos.6659 of 1987, 7767 of 1988 and 3522 of 1989 and in Special Civil Application No.7767 of 1988 an order was passed by the Division Bench on 30-11-88 that the contractor will not terminate the services of the petitioners unless his contract is terminated by the ONGC and in the event of termination of the contract by the ONGC and grant of a fresh contract to any other new contractor, the contract will include a term that the new contractor will employ the petitioners in that petition till further orders and further that this petition i.e. Special Civil Applicationno.7767 of 1988 was ordered to be heard with Special Civil Application No.6659 of 1987. Special Civil Applications Nos. 6659 of 1987 and 7767 of 1988 are still said to be pending while the Special Civil Application No.3522 of 1989 has already been decided and rejected. It appears that although in the order dated 12-10-90, to which reference has been made herein-above, it was categorically ordered that Rule in the present 8 Special Civil Applications shall be heard with Special Civil Application No.3522 of 1989,still these matters were not heard alongwith Special Civil Application No.3522 of 1989. Neverthless the fact remains that the Special Civil Application No.3522 of 1989 was decided by the Division Bench of this Court on 24-2-93 whereby the petition was rejected and the rule was discharged. It was pointed out by the learned senior counsel Ms. V.P.Shah appearing for respondent Nos.1 and 2 that one more identical Special Civil Application No.7965 of 1990 had also been rejected on 23-11-92 by the Division Bench and the notice was discharged with the observation that if the petitioners in that case approach the Regional Commissioner of Labour ( (Central), Ahmedabad for redressal of their grievances, he will consider the grievances and try to redress the same as expeditiously as possible in accordance with law. 5. In the form of pleadings, I have before me (1) the Memo of the petition alongwith the documents including the amendment, which was allowed on 12-10-90, (2) affidavit-in-reply dated 7-2-90, (3) affidavit in rejoinder dated 27-7-90, (4) further affidavit dated 22-2-96 filed by petitioner M. M.Shaikh in Special Civil Application No.8913 of 1989, (5) further afidavit-in-reply dated 8-3-96 and (6) Rejoinder dated 27-3-96 to reply dated 8-3-96 filed by M.M.Mansuri,the petitioner in Special Civil Application No.8918 of 1989. 6. The matters were argued and heard at length and during the course of hearing on 2-4-96 it was submitted by Mr. Shahani, the learned counsel for the petitioners appearing in all these 8 matters, that in view of the subsequent developments which have taken place during the pendency of the petitions, he would press the claim only in respect of the petitioners, M.M.Shaikh, Bariya Pratap Ranchhodbhai and Mansuri Munaf Mohd. Kasam i.e. petitioners in Special Civil Applications Nos.8913, 8917 and 8918 of 1989 respectively. It was also submitted by Mr. Shahani that these three petitioners be continued in employment under the same arrangement which was operating at the time when the interim orders were passed on 12.10.90,till the dispute is decided by the Industrial Adjudicator on reference being made in case any dispute is raised by the petitioners in relation to the subject matter of these petitions. Ms. V.P.Shah appearing for the respondents Nos.1 and 2, therefore,sought time on 2-4-96 to consider the same and for making a definite proposal with regard to each of these three petitioners and the matter was posted to be further heard on 15-4-96 i.e. today. Ms. V.P. Shah appearing for the respondents Nos.1 and 2 today informed that it was not possible for the respondents either to continue the two petitioners, namely, Bariya Pratap Ranchhodbhai and Mansuri Munaf Mohd. Kasam or to keep the petitioner M.M. Shaikh in service now as was suggested by Mr. Shahani and, therefore, both the sides concluded their arguments today. Whereas out of these 8 petitions, only 3 petitions i.e. Special Civil Applications Nos.8913, 8917 and 8918 are being pressed and the rest of the petitions are not pressed by the learned counsel for the petitioners, I will be dealing with the cases of these three petitioners only as the rest of the 5 petitions are to be dismissed as not pressed. 7. The particulars regarding the petitioners have been set out in tabular form in Annexure 'A' at page 20 to 22 of the petition and in Annexure-I page 42 and 43 of the affidavit-in-reply dated 7-2-90. From these two charts it appears that the petitioner M.M. Shaikh and Bariya Pratap Ranchhodbhai were initially appointed with the ONGC on contract basis and petitioner Mansuri Munaf Mohd. Kasam was appointed with Ruhi Agency. M.M. Shaikh is a Graduate holding typing certificate and was appointed as a Telephone Operator and Bariya Pratap Ranchhodbhai is SSC and appointed as Helper/Messenger while Mansuri Munaf Mohd. Kasam is SSC and being a wireman was appointed as a Helper/Messenger. It has been stated in the petition that the petitioners were working in the office of Superintending Engineer (Electrical) of Technical Business Group under Acting General Manager (Co-ordination) and they were working with various labour contractors for quite some time. As per the pleadings contained in para 2, the petitioner M.M. Shaikh had been directly working for respondents Nos.1 and 2 and, thereafter, as a worker of different labour contrtactors and this petitioner-M.M. Shaikh was himself treated as a labour contractor for one year in the name of Ruhi Agency. It is submitted that such contracts were only paper arrangements and such labour contracts were in fact bogus and sham. In order to show that initially appointment was given by ONGC itself, reference has been made to documents Annexure B/1, Annexure B/2. Annexure B/3, Annexure C, Annexure D/1 and Annexure D/2 which have been issued under the signatures of Dy. S.E. (Elect.), ONGC, Ankleshwar/ Executive Engineer (Elect.), Ankleshwar Project of ONGC. All these documents have been issued between the dates 13-1-86 and 6-2-87. Besides these documents showing that initial appointments,as per these orders, were given by the ONGC itself, it has been alleged that the petitioner i.e. M.M.Shaikh was himself treated as a labour contractor, which was a paper arrangement because the supervision and control was directly done by the officers of respondents Nos.1 and 2 i.e. ONGC and Acting General Manager (Co-ordination). M.M.Shaikh was working as a Typist & Telephone Operator before being treated as an independent labour contractor for the period from 1-10-88 to 30-9-89 and while he himself was working as a Telephone Operator, he was only required to distribute salary to other workmen in the name of Ruhi Agency, Ankleshwar as stated in para 9 of the petition. It has been further averred that these devices were absolutely transparent and otherwise the work was under direct control and supervision of the officers of the Commission and otherwise by very nature of work, it was obvious that the petitioners were working in the permanent activities and the situation with regard to the labour contracts was prepared only on the papers and these contracts were in contravention of S.10(2) of the Contract labour Act and the labour contracts, in which the petitioners were engaged, were absolutely illegal, null and void. 8. The petitioners came with the following grievances : "(i) that the Commission is adopting the device of labour contractor only with a view to deny legal rights of the petitioners and that this arrangement is absolutely bogus and respondent Nos.3 and 4 are only a paper-front; (ii) that all the future labour contractors are required to be directed to retain the present petitioners by incorporating such a condition in their contract of labour. This is without prejudice to the submission of the petitioners that their activities of Ofice Clerks, Telephone Operators, Attendant, Radio Operator etc., which is listed in Annexure 'A' cannot be given to a labour contractor at all. (iii) that the respondent Nos.1 and 2 are seeking to exploit the petitioners. The regular pay scale in the Commission for such posts is more than Rs.2000/- while petitioners are being paid meagre amount, which is less than half of the regular pay. The amount is detailed in Annexure 'A'. This inequality of pay is in contravention of Articles 14, 16 and 39(d), statutory condition of licence issued under Section 12 of the Contract labour (R & A) Act, 1970. Respondent No.5 is also under an obligation to take cognizance of this irregularity and it is under legal duty to ensure equality of pay." 9. In support of the petitioners claim for wages to be paid at par with regular employees performing duties as Telephone Operators and other Operators, with regard to the petitioners Bariya Pratap Ranchhodbhai and Mansuri Munaf Mohd. Kasam, clause No.(5) of the of the statutory conditions of licence to the following effect has been made the basis: "(5) In cases where the workman employed by the contractor perform the same or similar kind of work as the workmen directly employed by the principal employer of the establishment the wage rates, holidays, hours of work, and other conditions of service of the workmen of the contractor shall be the same as applicable to the workmen directly employed by the principal employer of the establishment on the same and similar kind of work provided that in the case of any disagreement with regard to the type of work of the same shall be decided by the Chief Labour Commissioner (Central), whose decision shall be final." 10. The prayers made in the petition are as under: '(A) declaring that the petitioners are entitled to be treated as direct employees of the respondent-commission with effect from the dates mentioned in Annexure 'A', as their first date of entry in service and further directing the respondent-commission to pay all arrears of wages as payable to similarly placed regular employees within a fortnight period; (B) directing respondent Nos.1 and 2 to treat the petitioners as direct employees and further declaring that the labour contract given to respondent Nos.3 and 4 is in contravention of Section 10(2) of Contract Labour (R&A) Act,1970; (C) alternatively, directing the respondent Nos.1 and 2 to frame a scheme of absorbing the petitioners in their services and further directing them to absorb all the petitioners who have completed six months of service based on first date of entry mentioned in Annexure 'A'; (D) directing the respondents Nos.1 to 4 to afford full equality of pay and all service conditions compared to other similarly placed regular employees of the commission and further directing them to pay all arrears of wages on this basis with 12 per cent per annum, within fortnight; (E) and/or directing the respondent no.5 to look into the compliance of statutory equality of pay and take further action in accordance of law within one month and also submit a report regarding this to this Hon'ble court; (F) and/or directing the respondent Nos.1 and 2 to stipulate to their future contractors who may replace respondent Nos.3 and 4, that all the petitioners shall be required to be continued in service and further restraining them from altering the present status quo regarding service conditions of the petitioners to their disadvantage in any manner whatsoever; (G) granting such other and further reliefs and passing such other and further orders as the circumstances of the case may require; (H) awarding the costs of this petition.' 11. Respondents Nos.1 and 2 have sought to traverse the claims of the petitioners through the affidavit-in-reply dated 7-2-90 and the further affidavit-in-reply dated 8-3-96 as has already been referred to herein-above. While contesting the allegations made in the petitions, the affidavit-in-reply dated 7-2-90 filed by the ONGC, shows that the respondents have not disputed the genuineness of the documents Annexure B/1, B/2, B/3, C, D/1 and D/2 and all that it says is that these documents indicate that the petitioners were not appointed by the Commission on the regular basis, but they were entrusted the work under the contract as self employed contractors. It is the further case of the respondent-ONGC that the work was of temporary nature and the concerned petitioners had knowingly and voluntarily accepted to work as self employed contractors, petitioners, who had started working through the contractors, were now estopped from contending that they were the employees of the Commission, the Commission had not violated the provisions of any Act and that the petitioners could not be treated as workmen of the Commission, that after the expiry of their contract, the concerned persons had voluntarily joined their services with the concerned contractors and hence there was no question of treating them as direct employees of the Commission, that no sanctioned post in the Commission could be filled up without complying with the statutory procedures as laid down by the Recruitment and Promotion Regulations and the petitioners knew very well that they were given the contract to work for a temporary period for which the Commission was not required to follow any procedure. In short, the case of the respondent-Commission is that the petitioners are not the employees of the Commission and they were engaged by the contractors and hence there is no question of treating them as direct employees of the Commission. 12. Besides this, it was submitted by the learned counsel appearing for the ONGC i.e. respondents Nos.1 and 2 that the identical petition being Special Civil Application No.3522 of 1989 has already been rejected. She has also submitted that the order dated 12-10-90 clearly shows that these petitions were to be heard with Special Civil Application No.3522 of 1989 and, therefore, all these petitions should also be rejected on the strength of the order passed in the Special Civil Application No.3522 of 1989. This batch of the petitions and the Special Civil Application No.3522 of 1989 being identical petitions, all these petitions should also meet the same fate as by Special Civil Application No.3522 of 1989 and the present petitioners should also be relegated to the remedy of raising an industrial dispute in accordance with the provisions of the Industrial Disputes Act and they should not be allowed to agitate their claims in the present petitions. 13. While Mr. Shahani has placed reliance on two unreported decisions rendered by the Division Bench of this Court in Special Civil Application no.1274 of 1990 decided on 30-7-90 and Special Civil Application No.1575 of 1988 decided on 30-3-89 and on AIR 1985 SC 670 (Workmen, Food Corporation of India v. M/s. Food Corporation of India), Ms. V.P. Shah appearing for the respondents Nos.1 and 2, besides the orders in the two unreported decisions dated 23-11-92 passed by the Division Bench in Special Civil Application No.7965 of 1990 and dated 24-2-93 passed in Special Civil Application No.3522 of 1989, has placed reliance on AIR 1992 SC 457 ( Dena Nath v. National Fertilisers Ltd.), AIR 1992 SC 2130 ( State of Haryana v. Piara Singh) and AIR 1995 SC 1893 ( Gujarat Electricity Board, Ukai v. Hind Mazdoor Sabha) Dt: 16-4-96 14. Before I proceed to deal with the submissions made on behalf of both the sides, I may first deal with the submissions made on behalf of the respondent Nos.1 and 2 by Ms. V.P. Shah that these petitions may be straightaway rejected on the basis of the unreported decisions in Special Civil Application No.3522 of 1989 decided on 24-2-93 and Special Civil Application No.7965 of 1990 decided on 23-11-92. May be that on 12-10-90 while issuing Rule, these petitions were ordered to be heard with Special Civil Application No.3522 of 1989, which was later on rejected, in view of the pleadings with regard to the petitioners in the present cases and the documents, which have been annexed with regard to the petitioners in the present set of petitions and the further details, which have come on record in the form of pleadings by way of further affidavits-in-reply and Rejoinders, instead of deciding these petitions so as to meet the same fate as Special Civil Applications Nos.3522 of 1989 and 7965 of 1990, I deem it appropriate to consider the submissions, which have been made at the Bar, in the light of the totality of the pleadings and documents, which have been made available on record of these petitions. Since it was stressed by the learned counsel for the respondents Nos.1 and 2 that the matters are exactly identical, I called for the records of the Special Civil Applications Nos.3522 of 1989 and 7965 of 1990 from the Registry, so as to examine as to whether these petitions are required to be dealt with separately. Having gone through the records of the Special Civil Applications Nos.3522 of 1989 and 7965 of 1990, on the basis of which these petitions are sought to be rejected by the learned counsel for the respondents Nos.1 and 2, I find that the prayers made in these petitions are substantially common, but the case of the three petitioners, which is being pressed by the learned counsel for the petitioners, stands on a little different footing. The factual foundation and the further facts, which have come on record by way of pleadings through additional afidavit-in-replies and Rejoinders etc. require a separate consideration, more particularly because the nature of the documents, which have been annexed as Annexures B/1, B/2,B/3, C, D/1 and D/2, were not there and in the affidavit-in-reply the respondents Nos.1 and 2 have admitted these documents and the arguments, which have been raised by the petitioners on the basis of these documents, as also facts, which have been revealed with regard to the engagement of the employes themselves as the contractors etc. do require a separate consideration and in case such submissions, which have been made on the premise of the averments and documents referred to hereinabove, are not dealt with, it will amount to denying a right to seek adjudication of all the grievances. For the reasons, as aforesaid, I do not consider it appropriate to reject these petitions on the basis of the two unreported decisions in Special Civil Applications Nos.3522 of 1989 and 7965 of 1990, on which reliance has been placed by the learned counsel for the respondents Nos.1 and 2. 15. Petitioner - M.M. Shaikh, according to the respondents themselves, being a Graduate with Typing Certificate, was appointed as a Telephone Operator by the ONGC initially on 1-6-86 as per the details given in Annexure 'A' at page 20 in the petition. But in the statement Annexure "I" filed alongwith the affidavit-in-reply, he has been shown to have entered the service on 1-7-88 with ONGC on contract basis. However, the document annexure 'C' at page 26 is a Certificate issued by the Executive Engineer (Elect.) of the Ankleshwar Project of ONGC, which shows that he had been engaged as a Typist on contract basis for the period from 1-6-86 to 31-8-86 and the genuineness of this document Annexure 'C' hasn't been disputed in the affidavit-in-reply. It is ofcourse a different matter that subsequent to the period of contractual employment with ONGC he has worked with the labour contractors of ONGC in different phases of time and has continued as such upto 31-3-91. 16. Petitioner Briya Pratap Ranchhodbhai, the holder of the qualification of SSC, was appointed as a Helper/Messenger by ONGC itself on contract basis initially on 1-10-88 and later on i.e. on expiry of this contractual employment, he has worked with other contractors of ONGC for different periods and it is the categorical case of this petitioner that he is still continuing in the services of