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CASE NO.: Appeal (civil)  6607 of 2005

PETITIONER: OIL & NATURAL GAS CORPN. LTD

RESPONDENT: ENGINEERING MAZDOOR SANGH

DATE OF JUDGMENT: 20/11/2006

BENCH: DR.AR. LAKSHMANAN & ALTAMAS KABIR

JUDGMENT: J U D G M E N T

WITH CONT.PETN. ) NO.164/2006 IN CA 6607/2005

ALTAMAS KABIR, J.  

       When the application being I.A.No.7/06 for revocation of  the  leave granted, filed by the respondent-union, was taken  up for hearing, the appeal itself was taken up for disposal.         The Oil & Natural Gas Corporation Ltd. (hereinafter  referred to as ’the ONGC’ ) is a public sector undertaking  constituted  under the Oil & Natural Gas Commission Act to  provide for production and sale of petroleum and petroleum  products.  In order to achieve these objects, the ONGC carries  out geological and geophysical surveys for the exploration of   petroleum.  Such work of survey is  seasonal and is confined   to the period between November each year and April or May of  the following year.   The workload is  far less during the  monsoon period and is generally referred to as the off season.   Every year when such  survey work or field season begins, the  ONGC starts  recruiting casual/contingent/temporary  workmen for  specified periods and their service are   terminated at the end of the field season.  Such practice  appears to have been continuing from the very inception of the  ONGC in 1956.  While in 1956, the ONGC had  a staff strength  of 450 employees, in  course of  time the number increased to  about 25,000 employees by the year 1979.  It has been stated  that  the strength of the labour force has increased even  further since then.         In view of the aforesaid phenomenon  relating  to   employment of seasonal workers, the Engineering Mazdoor  Sangh   on behalf of  its members who had been recruited as  such casual/contingent/temporary workmen, raised an  industrial  dispute in the form of a demand for regularization  of such workmen.  The dispute was ultimately  referred by the  Government of India to the Industrial Tribunal (Central) at  Vadodra (hereinafter referred to as ’the Tribunal’),  being  Reference (ITC) No.6/1991.  The following issue was referred  to the Tribunal for adjudication:-

"Whether the demand of Engineering  Mazdoor  Sangh, Vadodra that the employees employed  in the ONGC, Western Region, Vadodra who  have completed 240 days or more in the  Commission as casual/contingent/temporary  be regularized as permanent workman from  the date of their engagement in ONGC, with  other consequential benefits, is justified? If

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yes, to what reliefs the said workmen are  entitled?"

While the reference was pending, the union filed a  complaint under Section 33A of the Industrial Disputes Act,  1947 (hereinafter referred to as the ’1947 Act’ ) being  Complaint (ITC) No.5/1993 alleging that the ONGC had  started giving work to contractors in preference to the  casual/contingent/temporary workmen and had thus altered  the terms of service of the workmen and committed breach of  Section 33  of the  1947 Act.  The said complaint was tried by  the Tribunal and by its award dated 30th October, 1993, it  held that it was not permissible for the Tribunal to examine  whether the work of the ONGC was seasonal or not or whether   the ONGC had breached the terms of service of the workmen  by giving the work to contractors in preference to the  casual/contingent/temporary workmen.  By the said order,  the ONGC was also directed to follow the principle of  "last  come first go" in case it wanted to terminate  the services of  the casual/temporary workmen on the ground that they had  no work.  In such case, the ONGC was required to obtain  the  prior permission of the Tribunal under Section 33 (1) (a) of the  1947 Act. Consequent upon such  order, the  ONGC  filed an  application on  25th April, 1994 seeking permission to  terminate the services of the casual/temporary workmen  mentioned in the list enclosed  with the application.  Due  notice of the application was served on the Engineering  Mazdoor Sangh and after hearing both the sides, by order  dated 30th May, 1994,   the Tribunal directed the ONGC to  terminate the services of casual/contingent/temporary  workmen,  except 189 out of 269 workmen who were indicated  in the list filed by the union.   While considering the question as to who would be  eligible to be considered for appointment to the regular posts  and whether the present workmen could be included in such  list and whether the reference should  be restricted  only to  those workmen  who were members of the Engineering  Mazdoor Sangh and whose names appeared in the list filed by  the union, the Tribunal  came to a finding that only a  temporary workman who had put in not less than 240 days of   attendance in a  period of 12 consecutive months  was entitled  to be considered for conversion as regular employee.   The  learned Tribunal took note of the practice of ONGC of  recruiting casual workmen in the beginning of November every  year and terminating their services in April or May every year  as a recurring phenomenon.  But it also observed that keeping  workmen casual/badli or temporary over long spells of time  amounts to unfair labour practice and observed that there had  to be some scheme for regularizing such workmen.  In order to  find a solution to the said problem, the Tribunal took recourse  to the  Certified Standing Orders which govern the parties and   in particular Rule 2 thereof which reads as follows:-

"2  Classification of Workmen     (i)    The contingent employees of the  Commission shall  hereafter be classified as  under:-

(a)     Temporary, and  

(b)     Casual

(ii)    A workman who has been on the rolls  of the Commission and has put in not less

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than 180 days of attendance in any period  of 12 consecutive months shall be a   temporary workman, provided that a  temporary workman who has put in not less  than 240 days of attendance in any  period  of 12 consecutive months and who  possesses the minimum qualifications  prescribed  by the Commission may be  considered for conversion as regular   employee.

(iii) A workman who is neither temporary  nor regular shall be considered as casual  workman."  

On the basis of the above, the  Tribunal held  that a  casual workman who put in attendance of 180  or more days    in 12 consecutive  months automatically became a temporary   workman who could after completion of  240 days  of  attendance in any period of 12 consecutive months and   possessing qualifications be considered for conversion as a  regular employee.  The Tribunal also rejected the list of 269  workmen shown by the Union  who according to the Union  had completed 240 days and  accepted as correct  the list  submitted by the Chief Geophysicist  showing about 189  workmen arranged in descending order as per number of days  put in by each workmen.  Taking such list to be correct and  proceeding on the assumption that the workmen had  completed 240 days in the Commission, the Tribunal ordered  as follows:-

"The present reference  is ordered to be  restricted to the workmen whose names  appear in the Schedule to the affidavit Ex.48 in  the Complaint (ITC) No.5/93 a copy of which is  appended to this award for the sake of  convenience.  The ONGC is directed that as  and when vacancy to the regular post arise,  they shall consider the names of those  workmen in the same descending order in  which they are mentioned in the Schedule and  shall regularize them provided they satisfy the  prescribed educational qualifications and for  each 240 days of work put in by each  workman, the ONGC shall give him age  relaxation of one year.  Ten workmen  mentioned at the bottom of this Schedule are  not entitled to any relief.  It is made  clear  that the workmen have to  compete with other  workmen seeking employment through  Employment Exchange or similar lawful  manner.  The ONGC is warned to ensure that  no officer in their employment resorts to the  unfair labour practice of inducing  any casual  workman to change his name.  Similarly no  workman shall hereinafter change his own  name to conceal his previous employment with  the ONGC.

Lastly, the ONGC is directed to pay a sum of  Rs.5,000/-(Rupees Five Thousand only) as  special cost to the Engineering Mazdoor  Sangh, Vadodra."    

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       The aforesaid order of the Tribunal was challenged by the  respondent-Union before the High Court of Gujarat in Special  Civil Application No.12850/1994.  After considering the  submissions of the respective  parties, the learned Single  Judge observed that though regularization could not be  effected in the absence of  availability of permanent posts, the  availability of   permanent  post is a fortuitous circumstance  and consequential confirmation is, therefore,  uncertain, but  that there was no ban against treating a person to be regular  even if a permanent post was not available.  On the basis of  the aforesaid reasoning, the learned Single Judge modified the  order of the  learned Tribunal in the following manner:-

(i)     "..the relief will not be restricted only  to those workmen whose name 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 Promotions) Regulations,  1980 in accordance with the relevant  Certified Standing Order 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.

(ii)    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 benefit  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.

(iii)   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 workman seeking employment  through Employment Exchange or similar  manner as has been mentioned by the  Industrial Tribunal in the impugned  award, simply does not arise..."    

       The impugned award of the  Tribunal dated 6th June,

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1994, was modified accordingly.         The appellant herein took the matter in appeal to the  Division Bench in Letters Patent Appeal No.759/1999.   While  the appeal was pending, the respondent-Union  gave up its   claim for modification of the award as per the first direction  given by the  learned Single Judge and only pressed for  implementation of the  second direction given by the Tribunal.   Similarly, on behalf  of the ONGC, it was  submitted that it did  not wish to press its challenge in respect of the third direction.   Accordingly, the controversy in the appeal was restricted to  the challenge in respect of the  second direction only.   Going  one step further,  the Division Bench disposed of the appeal by  directing that the workman concerned should be notionally  treated as regularized with effect from 1st May, 1999.  Since  most of the benefits had already been given to the workmen,  a  further direction was given to  give them actual benefits at par  with regular employees,  including all the  perquisites and   applicable allowances, as also regular employment  during  the  year, with effect from  1st May, 2005.    It was made clear that  the aforesaid directions would apply to the surviving  employees out of  the 189 employees who had been accepted  as having acquired temporary status and whose employment  had been  saved by the order  dated  30th May, 1999 in  Complaint (ITC) No.5/1993.         Appearing for the ONGC \026 the appellant herein, Mr.  Harish Salve, learned  senior advocate, while indicating the  aforesaid  facts submitted that by filing the appeal, the  appellant was placed in a more disadvantageous position than  when the learned Single Judge  passed his order on the Writ  Application.  It was submitted that the learned Tribunal had  realized the difficulty of regularizing altogether all the 189  workmen who had acquired temporary status and were eligible  for being considered for conversion.  It had accordingly  directed that they be absorbed against vacancies that may  arise from time to time in terms of seniority.  The learned  Single Judge of the High Court, however, on a completely  erroneous construction of the law that non-availability of a  permanent post is no bar for considering the  employees to be  at par with the regular employees for the purpose of giving  them all the benefits other than the status of a permanent  workman, directed that not only the 189 workmen, but all  employees who had fulfilled the requirements of completion of  240 days  or more and had the  minimum qualification under  the recruitment rules would be treated at par with the other   regular employees and the grant of such benefit would not  wait for the availability of vacancies to regular posts.  The  learned Single Judge, however, also made it clear that in the  absence of vacancies, the concerned workmen would have to  wait  for their turn for being  made permanent as and when  permanent posts became available.         Mr.Salve submitted that not only was such a direction   based on a wrong reasoning, but such a direction would be   impossible to implement given the  nature of work  and the  period of employment.  Mr. Salve submitted that contrary to  the settled law, the Division Bench had even directed that the  workman concerned be notionally treated to have been  regularized with effect from  1st May, 1999  in the appeal  which had been preferred by ONGC against the direction of the  learned Single Judge to treat such employees  at par with the  regular employees.  Mr. Salve urged that the directions given  by the learned Tribunal were more in conformity with the  Certified Standing Orders than the directions given both by  the learned Single Judge as also the Division Bench of the  High Court and  could be  worked out gradually.         Mr. Salve’s  submissions were vehemently opposed on

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behalf  of the Union by Mr.  P.H. Parekh who tried to establish  that the directions given by the High Court, both by the  learned Single Judge as well as  the Division Bench, were just  and reasonable and did not warrant any interference in this  appeal.  Mr. Parekh contended that neither the Single Judge  nor the Division Bench had directed that the service of the  concerned  189 workmen now reduced to 153 workmen be  regularized.  On the other hand, what weighed with the  learned Single Judge as also the Division Bench was the  fact  that these  employees had been working with the appellant  over a long period of time, though on a  periodical basis, and  that they, therefore, deserved to be treated at par with regular  employees as far as  financial benefits were concerned.  Mr.  Parekh pointed out that while the learned Single Judge had  only directed that these workmen be treated at par with the  regular employees, the Division Bench felt that since the said  workmen had worked for even as long as  15  years, though on  a seasonal basis, they deserved to be treated as permanent    employees and accordingly directed that they be treated to  have been notionally regularized with effect from  1st May,  1999, though the actual monetary benefits were to be made  available with effect from 1st May, 2005.         We have carefully considered the submissions made on  behalf of  the respective  parties and  we are unable to agree  with the reasoning both of the learned Single Judge as well as   the Division Bench of the High Court in firstly directing that  the concerned  153  workmen be treated at par with regular  employees as far as all benefits are concerned,  except for  being given  permanent status and the subsequent direction of  the Division Bench directing that they be treated as having  been notionally regularized with effect from 1st May, 1999.    Having regard to the nature of employment and the period  during which these field workers are employed, it would create  various difficulties if the seasonal workmen were to be treated  at par with  regular employees as directed by the learned  Single Judge.  It would  be even more  difficult for the  appellant to adjust the workmen in permanent employment  when the need for them was only seasonal.  Admittedly, these  workmen who are employed for field survey work are employed  for about  six months in a year between November and May.  If  at all they are to be regularized, the appellant will have to find  work for them during the months when their services would  otherwise have not been  required.  As pointed out by Mr.  Salve, previously the appellant  had monopolistic control over   geological survey work for   oil and natural gas but today the  scene had changed and it is just another competitor along  with others, notwithstanding  the fact that they are a  government company.  The appellant is now required to  compete with others in securing exploration work and can only   recruit field workers  as and when required.  Even then   the  learned Tribunal found  a via media in directing that the 153  workmen who had admittedly completed 240 days and had  acquired  a temporary status be regularized against  vacancies  as and when such vacancies became available.         We are of the view that the directions given by the  learned Tribunal are reasonable and should be allowed to  stand as against the directions given by the High Court, firstly  to treat the said 153 workmen at par with the regular  employees and thereafter to treat their services as having been  notionally regularized  from 1st May, 1999.  We can, of course,  add a few further safeguards in order to protect the interests  of the said 153 workmen so that they are  assured of  employment as before.         We, accordingly, dispose of this appeal by setting aside  the judgments and orders of both the learned Single Judge

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and the Division Bench of the High Court  and restoring the  judgment and order passed by the  Tribunal.  We, however,   add that till  such time as these 153 workmen are not    absorbed  against regular vacancies in the concerned category  no recruitment from outside will be made by the appellant.   Furthermore, even in matters of seasonal employment, the  said 153 workmen or the numbers that remain after  regularization from time to time, shall be first considered for  employment before any other workmen are engaged for the  same type of work in the field.  The appellant  should make a  serious  attempt to  regularize the services of the workman  concerned, in terms of the order passed by the Tribunal,  as  quickly  as possible, but preferably within a period of two  years from the date of this  order.  There will be no order as to  costs.         Having regard to this order, no further orders are  required to be passed on the Contempt  Petition which  is  disposed of accordingly.  I.A.Nos.7, 8 and 9 are also disposed  of by this order.