1

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

 I.A. NOS. 11 AND 12 OF 2009

IN CIVIL APPEAL NO.6607 OF 2005

O.N.G.C. Ltd.                   … Appellants        Vs.

Engineering Mazdoor Sangh               … Respondent

O R D E R

ALTAMAS KABIR, J.

1.   The  Oil  and  Natural  Gas  Corporation  Ltd.,  (hereinafter  referred  to  as  ‘the  O.N.G.C.’)  is  a  public sector undertaking which carries out geological  and  geophysical  surveys  for  the  exploration  of  petroleum.  Such work is seasonal and is confined to  the period between November each year and the months  of April or May of the following year.  Every year, at

2

the  commencement  of  the  new  season,  the  O.N.G.C.  starts recruiting casual/contingent/temporary workmen  for  specified  periods  and  their  services  are  terminated at the end of the field season.  Having  regard  to  the  nature  of  the  work  involved,  such  practice is said to have been in existence from 1956  when the O.N.G.C. was incorporated.   

2. With the increase in the workforce over the years,  the aforesaid practice came to be questioned by the  Engineering Mazdoor Sangh, the respondent herein, on  behalf of its members who had been employed as such  casual/contingent  or  temporary  workmen  and  an  industrial dispute was raised 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 Vadodara by way of  Reference (ITC) No.6 of 1991 to decide whether the  demand of the Respondent-Sangh for regularisation of  such employees and for other consequential benefits,  was justified and if the answer to the said question  was  yes,  to  what  relief  would   the  workmen    be  entitled.  

3

3.  The aforesaid Reference was answered in favour of  the workmen though the Tribunal made it clear that the  Reference was to be restricted to those workmen whose  names appeared in the Schedule to the affidavit filed  by the O.N.G.C.  The Tribunal directed the O.N.G.C. to  consider  the  names  of  those  workmen  in  the  same  descending order in which they were mentioned in the  Schedule  as  and  when  vacancies  occurred  and  to  regularize them provided they satisfied the prescribed  educational  qualifications  and  had  also  put  in  240  days  of  work  in  a  year.   The  O.N.G.C.  was  also  directed to give such workmen who were eligible, age  relaxation of one year for every completed 240 days of  work in a year.    

4. The aforesaid order of the Tribunal was challenged  by the Respondent-Sangh before the Gujarat High Court  in Special Civil Application No.12850 of 1994.  The  learned Single Judge hearing the matter observed that  though  regularization  could  not  be  effected  in  the  absence  of  permanent  posts,  the  availability  of  permanent  posts  is  a  fortuitous  circumstance  and

4

consequential confirmation is, therefore, uncertain,  but that there was no bar against treating a person to  be regular even if a permanent post was not available.  The  learned  Single  Judge  accordingly  modified  the  order of the Tribunal and directed the respondents to  treat the employees who were covered by Standing Order  2(ii) as regular employees.   

5.   The  matter  was  taken  by  the  O.N.G.C.  to  the  Division  Bench  in  Letters  Patent  Appeal  No.729  of  1999.  During  the  pendency  of  the  Appeal,  the  Respondent-Sangh gave-up its claim with regard to the  first direction given by the learned Single Judge and  only  pressed  for  implementation  of  the  second  direction.   Similarly,  the  O.N.G.C.  gave  up  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.  While  granting  such  relief  to  the  parties  to  the  appeal,  the  Division  Bench  also  directed  that  the  workmen  concerned  should  be  notionally  treated  as  regularized  with  effect  from  1.5.1999.  It was clarified that the directions given

5

would apply to the surviving employees within the 189  employees  who  had  been  accepted  as  having  acquired  temporary status and whose employment had been saved  by the order dated 30.5.1999 in Complaint (ITC) No.5  of 1993.    

6. When the matter was brought to this Court by the  O.N.G.C.,  this  Court  restored  the  order  of  the  Tribunal  whereby  the  153  workmen  identified  to  be  eligible for regularization were to be treated at par  with the regular employees and their services were to  be treated as having been notionally regularized from  1.5.1999. While disposing of the appeal on 20.11.2006,  this Court injuncted the respondents from making any  recruitment from outside till such time as the 153  workmen were   absorbed against regular vacancies in  the concerned category.  A further direction was given  that even in matters of seasonal employment, the said  153 workmen or those who remained after regularization  from time to time, were to be considered first for  employment before any other workmen were engaged for  the same type of work in the field.  This Court also  directed the   O.N.G.C. to make a serious attempt to

6

regularize the services of the workmen 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 the order.   

7.   While the aforesaid judgment was delivered on  20.11.2006, it was only on 23.2.2009 that I.A. No.11  of  2009  was  filed  and  I.A.  No.12  of  2009  was,  thereafter, filed on 9.4.2009 in Civil Appeal No.6607  of 2005.   While I.A. No.11 of 2009 has been filed for  a modification of the order passed by this Court on  20.11.2006 in Civil Appeal No.6607 of 2005, I.A. No.12  of 2009 has been filed by the Respondent-Sangh, inter  alia,  for  suitable  directions  to  be  issued  to  the  O.N.G.C. to absorb all the remaining workmen on the  completion of two years, as directed by this Court in  its judgment dated 20.11.2006.

8.  When  the  applications  were  taken  up  for  consideration, Mr. Raju Ramachandran, learned Senior  Advocate,  who  appeared  for  the  O.N.G.C.,  submitted  that while implementing the aforesaid directions given  by  this  Court,  the  O.N.G.C.  was  faced  with  an

7

industrial  dispute  from  candidates  who  were  also  waiting  for  appointment  from  the  compassionate  appointment  category.    Mr.  Ramachandran  submitted  that  no  person  from  the  said  category  could  be  appointed over the last 9 years having regard to the  pendency of the proceedings before the Court and that  apart from the 153 workmen, who were before the Court,  the  Court  should  also  allow  O.N.G.C.  to  make  appointments  from  the  compassionate  appointment  category.

9.  Mr. Ramachandran also urged that, in fact, 138  workmen were admittedly covered by the Award of the  Industrial Tribunal.  In order to implement the Award,  as  also  the  judgment  of  this  Court,  the  said  138  workmen were invited by the O.N.G.C. to attend the  selection  process  strictly  in  accordance  with  the  directions  issued  by  this  Court.   Mr.  Ramachandran  submitted  that  137  workmen  attended  the  selection  process and only 77 of the said workmen were found  qualified and eligible for being empanelled for jobs  in different categories.  Learned counsel urged that  60  workmen  were  found  to  be  unfit  for  regular

8

employment.  He also submitted that out of the 77  workmen  found  to  be  eligible,  58  workmen  had  been  given  appointment  while  19  workmen  were  kept  on  a  panel  and  were  still  left  to  be  absorbed  against  regular vacancies.   He urged that having regard to  the complexity of the matter, serious thought had been  given as to how the controversy could be resolved.  Mr. Ramachandran submitted that one of the proposed  methods  to  resolve  the  issue  was  to  offer   a  settlement package to the 19 workmen, who were yet to  be  absorbed  against  regular  vacancies,  in  lieu  of  absorption, and to permit appointment of dependents of  deceased  employees  on  compassionate  grounds.    The  compensation package  is as follows :-

“COMPENSATION PACKAGE 1. Amount equivalent to two month’s wages for  

each completed year of service in ONGC or  amount  equivalent  to  wages  of  left  over  period upto 60 years of age, whichever is  less.

2. Provident Fund. 3. Amount of wages for balance period of leave  

at credit.” 10. Mr. Ramchandran submitted that on account of the  ban imposed by this Court on recruitment before the  153 employees could be absorbed, no fresh appointments

9

could  be  given  in  the  category  of  compassionate  appointment,  which  has  created  growing  resentment  among other categories of workmen who were waiting for  appointment in similar posts.  

11.  The relief prayed for by the O.N.G.C. for leave  to  offer  the  compensation  package  in  lieu  of  appointment was opposed on behalf of the said workmen,  as also the prayer made for leave to appoint persons  from  the  compassionate  appointment  category  without  absorbing  all  the  workmen,  who  were  yet  to  be  absorbed.    

12. Mr.  Ranjit  Kumar,  learned  Senior  Advocate,  appearing  for  the  Sangh,  submitted  that  the  order  passed by this Court on 20.11.2006, and subsequently  clarified on 8.2.2008 was very clear and unambiguous.  Learned counsel submitted that the rights of the 153  workmen  identified  before  the  Tribunal  had  crystallized in the order of the Tribunal, which was  subsequently upheld by this Court and till such time  as they were absorbed, no fresh appointments could be  given  from  any  other  category,  notwithstanding  the

10

fact that there were other candidates waiting to be  appointed on compassionate grounds.  Mr. Ranjit Kumar  also  submitted  that  as  far  as  Mr.  Ramchandran’s  contention that 60 workmen were found to be ineligible  for appointment,   the same could not be accepted  having  regard  to  the  fact  that  the  Award  of  the  Tribunal and the order passed by this Court clearly  indicated that the Reference was to be restricted to  the workmen, whose names appeared in the schedule to  the affidavit,  which was ultimately identified as far  as  153  workmen  are  concerned.   Mr.  Ranjit  Kumar  pointed out that ONGC was directed that as and when  vacancies to the regular posts arose, they would be  required to consider the names of those workmen in the  same descending order in which they were mentioned in  the  schedule  and  that  they  would  be  regularized  provided   they  satisfied  the  specific  prescribed  educational  qualifications.   It  was  also  indicated  that for each 240 days work in a year put in by each  workmen, ONGC would give such workmen, age relaxation  of one year.     Mr. Ranjit Kumar submitted that on  account  of  the  ban  imposed  by  this  Court  on

11

recruitment before the 153 employees were absorbed, no  fresh appointments could be given in the category of  compassionate appointment, which has created growing  resentment amongst other categories of workmen, who  were also waiting for appointment for similar posts. 13. The relief brought for by the ONGC for leave to  offer  the  compensation  package  in  lieu  of  the  appointment was opposed on behalf of the said workmen,  as also the prayer made for leave to appoint persons  from  the  compassionate  appointment  category  without  absorbing  all  the  workmen,  who  were  yet  to  be  absorbed. 14. Mr.  Ranjit  Kumar,  learned  Senior  advocate,  appearing  for  the  Sangh,  submitted  that  the  order  passed  by  this  Court  on  20th November,  2006  and  subsequently, clarified on 08/02/2008, was very clear  and unambiguous.  Learned counsel submitted that the  rights  of  the  153  workmen  identified  before  the  Tribunal  had  crystallised  in  the  order  of  the  Tribunal, which was subsequently upheld by this Court  and till such  time as they were absorbed, no fresh  appointments could be given from any other category,

12

notwithstanding  the  fact  that  there  were  other  candidates waiting to be appointed on compassionate  grounds.  Mr. Ranjit Kumar also submitted that as far  as Mr. Ramachandran's contention that 60 workmen who  were  found  to  be  ineligible  for  appointment  were  concerned,   the  same  could  not  be  accepted  having  regard to the fact that the Award of the Tribunal and  the order passed by this Court clearly indicated that  the  Reference  was  to  be  restricted  to  the  workmen  whose names appeared in the schedule to the affidavit  comprising  153  workmen.   Mr.  Ranjit  Kumar  also  referred to paragraph 16 of our judgment dated 20th  

November, 2006, wherein we had categorically indicated  that till such time as 153 workmen were not absorbed  against  the  regular  categories  in  the  category  concerned, no recruitment from outside would be made  by the appellant. 15. Mr. Ranjit Kumar urged that the submission now  being made on behalf of the ONGC runs counter to the  directions contained in the Award of the Tribunal, as  upheld  by  this  Court  and  also  contrary  to  the  directions given by this Court in support thereof.

13

16. From the order dated 20th November, 2006, it is  quiet obvious that the intention of this Court was  that  till  such  time  as  the  153  workmen,  who  were  identified after the Award of the Tribunal were not  absorbed against regular vacancies in the concerned  category, no recruitment from outside could be made by  the  applicant  ONGC  in  the  same  or  similar  posts.  Similar provision was also made with regard to the  workmen, who were to be employed on a seasonal basis.  However,  we  must  also  record  Mr.  Ramachandran's  submissions at this stage that out of the 153 persons  whose names were available, 15 persons were found to  be not eligible for consideration, leaving 138 persons  who were eligible for consideration in terms of the  Award of the learned Tribunal and the judgment of this  Court. 17. Accordingly,   at  least  the  case  of  the  138  workmen, who had, in fact, been found to be eligible  for appointment had to be considered. 18. However,  the  picture,  as  portrayed  by  Mr.  Ramchandran, is not as grave as has been made out by  him  since  all  the  persons  concerned,  namely,  the

14

candidates, who are yet to be absorbed in regular  vacancies  in  terms  of  the  Tribunal's  order,  as  upheld  by  this  Court  on  20th November,  2006,  and  those  waiting  for  compassionate  appointment,  have  been provided with employment, as contingent staff.  There should not have been any difficulty for the  ONGC to implement the Tribunal's Award in respect of  the 137  workmen, who  were found  eligible by  ONGC  within the period of two years after the passing of  the  Award.   Apart  from  the  orders  passed  by  the  Tribunal  and  this  Court,  equity  demands  that  the  workmen who have been in continuous employment as  contingent workmen from 1992, should be considered  first for regularisation before those, who come in  at a later stage. 19.    At this juncture, we may also refer to the  submission which had been made on behalf of one of  the  intervenors from the compassionate appointment  category that there were large number of vacancies  available in which all could be accommodated.  Mr.  Ramachandran has denied such submission and in the  affidavit  filed  with  regard  to  the  copy  of  the

15

Minutes of the 71st meeting of the Joint Committee, it  has been pointed out that the number of vacancies  indicated  represented  vacancies  in  various  departments and particularly of a technical nature  and did not necessarily include the vacancies against  which  appointments were  to be  made as  far as  the  concerned  workmen  and  the  compassionate  appointees  were concerned.     

20. From the order dated 20.11.2006 it was clearly  the intention of this Court that till such time as the  153  workmen  were  not  absorbed  against  regular  vacancies in the concerned category, no recruitment  could be made by the applicant.  Similar provision was  also made with regard to the workmen who were employed  on seasonal basis.  

 21. Having  considered  the  submissions  made  on  behalf of the O.N.G.C. and the Mazdoor Sangh, we are  not inclined to grant the prayer made on behalf of  the O.N.G.C. for leave to appoint candidates from  the  compassionate  category  group  before  all  the

16

workmen who were identified after the Award of the  Tribunal  to  be  eligible  for  appointment,  are  absorbed,  as  that  would  not  only  go  against  the  order passed by us on 20th November, 2006, but would  also amount to modifying the same.   22.     While rejecting the prayer made on behalf  of the ONGC, we, however, make it clear that such  rejection would not prevent the ONGC from offering  the compensation package either to those workmen  from amongst the 137 workmen, who are yet to be  absorbed  or  those  waiting  for  appointment  from  the compassionate appointment category.  If such  package is accepted by any of those candidates,  both the ONGC as well as such candidate will be at  liberty to act on the basis of such acceptance and  shall not be fettered in any way by the directions  given either by the Tribunal or this Court on 29th  November, 2006.

23. This order shall dispose of I.A. Nos.11 and  12 of 2009, but we also make it clear that we are  not passing any orders in terms of prayer (b) of

17

I.A. No.12 of 2009.     

…………………………………………J. (ALTAMAS KABIR)

……………………………………………J. (CYRIAC JOSEPH)

New Delhi September 17, 2009.

18

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION  I.A. NOS. 11 AND 12 OF 2009

IN CIVIL APPEAL NO.6607 OF 2005

O.N.G.C. Ltd.                   … Appellants        Vs.

Engineering Mazdoor Sangh               … Respondent

O R D E R ALTAMAS KABIR, J.

In  the  reportable  order  dated  17/09/2009,  paragraphs 13 and 14 stand deleted and paragraph  Nos.15 to 23 are re-numbered as paragraph Nos. 13  to 21.   

The Registry is directed to issue Corrigendum  accordingly.

…………………………………………J. (ALTAMAS KABIR)

……………………………………………J. (CYRIAC JOSEPH)

19

New Delhi November 13, 2009.