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2018 SCC OnLine Mad 13522 : (2018) 3 CLR 789

In the High Court of Madras

(BEFORE M. SATHYANARAYANAN AND M. SUNDAR, JJ.)

Petroleum Employees' Union, Rep. by its Deputy General Secretary,

V. Gopmathan .…. Petitioner;
Versus
Management of Oil & Natural Gas Corporation Ltd., SRBC, CMDA
Buildings and Another .…. Respondents.
W.P. No. 35119 of 2007
Decided on January 29, 2018, [Reserved on: 14.12.2017]
Advocates who appeared in this case :
For Petitioner: Mr. N.G.R. Prasad, for Mr. K. Srinivasamurthy
For Respondents: Mr. Anand Gopalan for M/s. T.S. Gopalan & Co.
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for
issuance of a Writ of Certiorarified Mandamus calling for the records relating to the
Impugned Award dated 17.05.2007 made in I.D. No. 27 of 2005 passed by the Central
nd
Government Industrial Tribunal-cum-Labour Court, Chennai, the 2 respondent herein
and quash the same and direct the first respondent to make the petitioner/employees as
permanent from the date they have completed 480 days of continuous service in 24
calendar months.
The Order of the Court was delivered by
M. SATHYANARAYANAN, J.:— The Petroleum Employees' Union of Oil and Natural Gas
Corporation Limited [in short “ONGC”] is the writ petitioner. The Ministry of Labour,
Central Government, vide order No. 3001 1/83/2004-IR(M) dated 25.01.2005 has
referred the following dispute to the Central Government Industrial Tribunal-cum-Labour
Court, Chennai [in short “Tnbunal-cum-Labour Court] for adjudication:
“Whether the action of the management of ONGC in not regularizing the services of
S/Shri K. Selvam and 16 others is legal and justified? If not, to what relief the
workmen concerned are entitled?
2. The Tribunal-cum-Labour Court, vide impugned award dated 17.05.2007, came to
the conclusion that action of the respondent/Management of ONGC in not regularizing the
services of 17 workmen is not illegal and that the workmen concerned in the said dispute
are not entitled to any relief. The Tribunal-cum-Labour Court also gave a direction to the
respondent/Management to absorb the concerned workmen in the dispute, who had
admittedly completed 480 days in a continuous period of 24 calendar months and be
regularized as and when such vacancies become available. The petitioner/Employees'
Union, aggrieved by the answering of the reference by the Tribunal-cum-Labour Court,
has filed this writ petition.
3. Facts leading to the filing of this writ petition, briefly narrated, necessary for the
disposal of this writ petition, are as follows:
2.1. Mr. V. Gopmathan, Deputy General Secretary, Petroleum Employees' Union of
ONGC Ltd., SRBC, Chennai-8, submitted a claim statement in I.D. No. 27 of 2005,
stating among other things that out of 17 workmen, who raised the Industrial Dispute
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for adjudication, 14 of them are Messengers and 3 of them are Sanitary Cleaners by
designation and they are working in the respondent/Management from the year 1988
in the same category. It is further stated in the claim petition that in the earlier years,
i.e., 1985 - 1986, the said workmen were engaged through contractors and from the
year 1988 onwards, they were employed directly by the respondent/Management and
they have been given designation called “Term-Based Employees” and they were paid
directly by the respondent on monthly basis, calculated @ Rs. 190/- per day.
2.2. The petitioner Union took a stand that neither in the Industrial Employment
Standing Orders Act nor in the Service Rules of the respondent/Management, there is
a designation called “Term-Based Employee” and in order to defeat the provisions of
Labour Laws, which extend various benefits to the workmen, the respondents coined a
new designation called “Term-Based Employees”. The petitioner Union would further
aver that in the Industrial Employment Standing Orders Act, only the following
designations are named:
a. Permanent Employee
b. Temporary Employee
c. Probationers
d. Casuals
e. Contract Employee.
Therefore, the said designation coined/created by the respondent/Management viz.,
“Term-Based Employees” is legally also unsustainable. The petitioner Union also took a
stand that in order to invoke Section 2-OO(bb) of the Industrial Disputes Act, 1947,
the respondent had innovated the designation called “Term-Based Employees”.
2.3. It is also contended in the claim petition that there are several employees
employed on regular basis for the same category of work as permanent employees and
are paid regular Scale of Pay of Rs. 10,887/- per month and that apart, they are also
paid with various allowances such as Dearness Allowance, House Rent Allowance,
Conveyance Allowance, Drilling Allowance and Production Bonus etc. and though the
above said workmen are performing the same work as that of regular employees, the
benefit of “Equal Pay for Equal Work” has been unjustly denied. It is also the
categorical stand of the petitioner Union that the said 17 workmen are fully qualified
for the post and possess the same educational qualification as possessed by regular
employees.
2.4. 37 workmen, who were not regularized, filed W.P. No. 777 of 1997 and when it
was taken up for disposal, 27 workmen were regularized, 14 were left out and one
expired. This Court, while disposing of the said writ petition, vide order dated
14.10.2000, granted liberty to the workmen/petitioners therin to raise appropriate
industrial dispute before the appropriate manner provided under the provisions of the
Industrial Disputes Act and therefore, the present dispute is raised.
2.5. The petitioner Union also took a stand that though the provisions of the Tamil
Nadu Shops and Establishment Act, 1947 is not applicable to the Central Government
undertakings but for the purpose of definition, the said Act has been taken as a
guideline and that the provisions of the Tamil Nadu Industrial Establishments
(Conferment of Permanent Status to Workmen) Act, 1981 [in short “Permanent Status
Act”] is applicable to the respondent organization and hence, prayed for an award
regularizing their services from the date, these employees have completed 480 days of
service in 24 calendar months and extend to them the regular scale of pay, other
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allowances and fringe benefits as applicable to the permanent employees.

2.6. The respondent/Management of ONGC filed counter statement refuting the
averments made in the claim petition and stated that the Oil and Natural Gas
Commission Act, 1959 [Central Act No. 43 of 1959] provides for establishment of a
Commission for the development of petroleum resources, production and sale of
petroleum and petroleum products produced by it and for matters connected therewith
and accordingly, ONGC came to be established. The said Commission set up Regional
Offices, one of which is the Southern Regional Office, came to be located in Chennai at
the relevant point of time and it was controlling the activities in Andhra Pradesh, Tamil
Nadu, Poncidherry and Andaman and it was engaged in exploration of oil resources
and natural gas in Cauvery Basin in Tamil Nadu, Krishna and Godavari Basin in Andhra
Pradesh.
2.7. The respondent/ONGC, in respect of works which are not directly related to
exploration and production, was outsourcing it's manpower requirement for certain
jobs such as Watch and Ward, House Keeping and Courier Service and it also had 7
offices in Chennai. It is further stated by the respondent that the Southern Regional
Office was placing it's indent for manpower for Watch and Ward, House Keeping and
Courier Service on some of the external agencies who used to deploy their men for
attending to these jobs and there were three such agencies viz., Thai Security Services
(P) Ltd., M/s. Dialtone and M/s. Industnal Maintenance Services (P) Ltd.
2.8. During the year 1986, National Industrial Commercial Employees Union filed
W.P. No. 7651 of 1986, praying for regularization/absorption of contract labour and
during the pendency of the same, based on an understanding reached with contract
labour, it was agreed to have a single agency which could be entrusted with the task
of supplying manpower for carrying out these jobs, for which contracts were awarded.
A settlement also came into being on 16.12.1986 between the respondent and
contract workmen, by which, it was agreed to form a Cooperative Society in order to
bring out improvement in the working conditions and welfare of the contract workers
working in the Southern Regional Office at Chennai. In the light of the said
development, W.P. No. 7651 of 1986 was dismissed as withdrawn, vide order dated
16.03.1987 and accordingly, a Society in the name of Priyadharshini Indira Gandhi
Cooperative Labour Contract and Society Limited came to be formed and the said
Society was mainly supplying contract labour for Watch and Ward, House Keeping and
Sanitary Workers.
2.9. The Respondent/ONGC would further state that by notification dated
09.11.1976 issued under Section 10 of the Contract Labour (Regulation and Abolition)
Act, the Government of India prohibited employment of contract labour for Sweeping,
Cleaning, Dusting and Watching of building owned and occupied by the establishment,
in respect of which appropriate authority is the Central Government and also took a
policy decision that Central Industrial Security Force (CISF) alone be engaged for
protection of various vital installations and therefore, the above said Society was asked
not to deploy security personnel for ONGC area in the harbour.
2.10. The Tamil Nadu National Industrial Commercial Employees Union filed W.P.
No. 9688 of 1987, seeking to restrain the respondent from utilizing the services of
CISF and for continuing to utilize the service of Priyadharshini Indira Gandhi
Cooperative Labour Contract and Society Limited and an interim order of Status Quo
was directed to be maintained, vide order dated 06.10.1987. The said Writ Petition
was disposed of 05.01.1988, holding that the settlement dated 16.12.1986 permitting
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the formation of Cooperative Society for supply of manpower cannot be sustained, in

the light of the notification dated 09.12.1976 prohibiting employment of contract
labour and the request made by the said Union for regularizing the employees of the
said Society was also negatived.
2.11. Accordingly, the respondent/ONGC had terminated the contract entered into
with the said Society with effect from 13.01.1988 and in the light of the same, policy
decision was taken to employ workmen of the Society on “Fixed Term Basis” and
accordingly, applications were collected from willing employees of the Society and on
21.01.1988, they were all issued with letters of Term Based Employment, confirming
temporary employment from 13.01.1988 to 29.02.1988. Thereafter, the said mode of
appointment was extended with the approval of the Competent Authority on adhoc
basis pending decision about disbanding of the work force and it was also suggested
whether a separate Society similar to the Society can be formed for undertaking the
Courier Service. In this regard, W.P. No. 11683 of 1988 was filed, complaining that the
Term Based appointees/Messengers were compelled to form Society, but it was
dismissed on 21.04.1989.
2.12. It was further averred by the respondent/ONGC that in the year 1991, it
moved its own premises and many of the offices located in different places in Chennai
were all closed and activities of those offices were shifted to it's own premises and
even the need for service of Sanitary Cleaners were also declined. The
respondent/ONGC also in-turn wanted to carry out comprehensive study about it's
manpower requirements and based on such study, posts were created and thus “Term
Based Employees” were to be considered for such additional posts.
2.13. It was also stated by the respondents that between 1991 and 1997, major
changes took place and instead of being a statutory body, a Company was formed in
the name of Oil and Natural Corporation Limited (ONGC) and it came to be registered
on 23.06.1993 under the provisions of the Indian Companies Act, 1956 and workers,
who were appointed on Term Basis, were also being periodically rationalised and their
number also got considerably reduced.
2.14. 37 Workmen, who worked as Messengers, filed W.P. No. 777 of 1997, to
regularize their service from the date of their initial appointment and it came to be
disposed of, granting liberty to them to work out their remedy under the provisions of
the Industrial Disputes Act. The Competent Authority, on 18.12.1998, has accorded
sanction for creation and appointment of 11 posts of Junior Attendants and 5 posts of
Junior Sanitary Cleaners and out of 36 Term Based appointees, who were working as
Messengers, 11 who met the prescribed criteria were appointed as Junior Attendants
and similarly, 5 Term Based appointees were made in Mach 1999. Again, in the year
2000, the Competent Authority gave sanction for creation and appointment of 11 posts
of Junior Attendants and 3 posts of Junior Sanitary Cleaners and 11 term based
appointees, who were working as Messengers and who met the prescribed criteria,
were appointed as Junior Attendants and 3 Sanitary Cleaners on Term Basis were
appointed as Junior Sanitary Cleaners.
2.15. Out of 37 Messengers, who were parties to W.P. No. 777 of 1997, one Thiru.
Balakrishnan expired and the remaining 14 Term Based appointees were being
retained in view of pendency of the writ petition. The respondent, by placing reliance
upon the rule position, submitted that any appointment can be made only against
sanctioned post and no person can make a claim for appointment without a vacancy
existing in the sanctioned post and since 2000, no new post has been created in the
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cadre of Junior Attendant and Junior Sanitary Cleaner and no vacancy arisen in the
sanctioned posts and as such, the remaining 13 employees could not be considered for
regularization in the absence of sanctioned posts.
2.16. The respondent also took a stand that the cause of 17 workmen was not
espoused by a substantial section of the workmen of the Southern Regional Office of
the respondent and there is no valid industrial dispute regarding the demand for
regulanzation of 17 “Term Based Employees” and therefore, the order of reference
itself is not valid in law and therefore, the respondent/Management prayed for
rejection of the claim of the petitioner Union.
2.17. During the course of enquiry of the said Industrial Dispute, three witnesses
were examined on behalf of the petitioner Union and sole witness was examined on
behalf of the respondent/Management. The petitioner Union marked W1 to W8 and the
respondent/Management marked M1 to M25.
2.18. The Tribunal-cum-Labour Court, after taking into consideration the materials
placed, gave a finding that the workmen have failed to establish that they have been
appointed in the sanctioned posts and in the absence of the same, order for
regularization cannot be passed. However, the Tribunal had also issued a direction to
the respondent/Management to absorb the 17 workmen concerned in the dispute, who
had admittedly completed 48 days in a continuous period of 24 calendar months, be
regularized as and when such vacancies become available and thus, answered the
reference accordingly, vide award dated 17.05.2007.
2.19. The petitioner Union, challenging the legality of the said Award, had filed the
present Writ Petition.
4. The Writ Petition was admitted on 16.11.2007. Pending disposal of the same, M.P.
Nos. 1 and 2 of 2008, praying for interim orders were also filed and this Court, vide order
dated 13.09.2008, granted an order of ad-interim direction restraining the first
respondent from terminating the services of the petitioner till 30.06.2009 and
accordingly, their services are retained. When the Writ Petition was listed for hearing on
21.08.2013, it was represented by the learned counsel for the respondents that the
question as to whether the Tamil Nadu Industrial Establishment (Conferment of
Permanent Status to Workmen) Act, 1981 is applicable to a company owned by the
Central Government has already been referred to a Division Bench and the matter is
pending before the Division Bench and therefore, the learned Judge, taking note of the
said submission, has directed the Registry to tag this writ petition along with W.P. No.
5156 of 2005 and list the same before the concerned Division Bench, after getting
necessary orders. Therefore, this Writ Petition was tagged along with W.P. No. 5156 of
2005, which was filed by the Management of Madras Aluminium Company Limited
[MALCO]. Prior to that, vide order dated 25.06.2013 made in W.P. No. 5156 of 2005, the
learned Judge formulated four questions and referred the same to the Division Bench for
answering the Reference.
5. Both the writ petitions were listed before the present Division Bench on 21.08.2017
and the four points of reference were re-casted as follows:
Whether the first respondent before us i.e., Deputy Chief Inspector of
Factories, Salem, has adjudicatory powers?
6. The learned counsel for the respondent/ONGC had also made a plea that the
present writ petition is to be taken up separately and therefore, vide order dated
21.08.2017, apart from recasting the reference, directed the Registry to list both the writ
petitions separately.
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7. Counter Affidavit and Additional Counter affidavit of the respondent/ONGC has also
been filed in the main writ petition and it is relevant to extract paras 9 to 11 of the
Additional Counter Affidavit:
“9. I state that the 17 persons involved in the dispute applied for the recruitment
process held in the year 2000. I state that out of 17 persons, three of them applied for
the post of Junior Sanitary Cleaner. They were called for interview. However, they did
not quality as they scored much lesser than those who had participated along with
them, in the recruitment process. [R. Babu (SC) - 85.4 marks, G. Raghu (SC)-84.6
marks and A. Abraham (OBC)-79.4 marks].
10. The remaining 14 persons had applied for the post of Junior Attendant. Of the
14 persons, 13 persons did not possess the requisite education qualification of Xth
Standard Pass. Hence they were not considered. Mr. S.T. Yehappan was considered as
a General Category candidate. He scored only 70 marks. Whereas the successful
person had scored 89.4 marks. Hence he was not selected.
11. I state that the 17 person were called for interview and were subjected to the
recruitment process but they did not qualify as they did not possess the requisite
educational qualification or as they scored marks lesser than the successful candidate.”
8. Mr. N.G.R. Prasad, learned counsel appearing for the petitioner Union, would
contend that 17 Workmen were employed through Contract Labour and subsequently, the
Society came to be formed in order to get over the notification issued by the Government
of India abolishing the employment of Contract Labour and they were employed on Term
Basis and from 13.01.1988 onwards, the respondent started paying them wages directly
till 29.02.1988 and their services are continued to be engaged as on date and in that
process, each workmen have put in nearly 30 years of service. It is further submitted by
the learned counsel appearing for the petitioner Union that W.P. No. 777 of 1997 was
filed by 37 workmen and pendency of the said writ petition, it was represented by the
respondent that services of 22 workmen were regularized, out of which 11 were
regularized as Junior Attendants and 3 as Sanitary Cleaners. The said writ petition was
disposed of on 14.10.2003, granting liberty to the petitioners to workout their remedy by
raising an Industrial Dispute and accordingly, the present Industrial Dispute came to be
raised. The learned counsel for the petitioner, by placing reliance upon the decision of the
Hon'ble Supreme Court in ONGC Ltd. v. Petroleum Coal Labour Union [(2015) 6 SCC
494], would submit that in the light of the said judgment, the concerned workmen are
entitled for regularization as per ONGC Act as well as certified Standing Orders Act and
the procedure adopted by the respondent/Management is to recruit them initially through
Labour Contract and consequently engaging their services as “Term Based Employees” is
per se an Unfair Labour Practice. The learned counsel appearing for the petitioner Union
further submitted that admittedly, each of the petitioners had completed 240 days of
employment and they were engaged right from the year 1988 and under the guise of non
-availability of sanctioned posts, their right to get permanency is unjustly denied.
9. The learned counsel appearing for the petitioner by placing upon the decision in
Nihal Singh v. State of Punjab [(2013) 14 SCC 65 : 2013 (5) LLN109 (SC)] and would
submit that in the light of the ratio laid down in the above cited decision, the primordial
stand taken by ONGC as to the non-availability of sanctioned post to absorb the workers
cannot stand and prays for appropriate orders to regularize the services of the concerned
workmen from the date of their appointment and grant them service and other monetary
benefits.
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10. Per contra, Mr. Anand Gopalan, learned counsel representing Mr. T.S. Gopalan and
Co., learned counsel appearing for the respondent/Management of ONGC has drawn the
attention of this Court to the materials placed in the form of typed set of documents and
would submit that the workmen concerned herein are continuing only by virtue of interim
orders passed by this Court and in the light of the said fact, it is not open to them to
contend that they are continuously employed without any break. It is further contended
by the learned counsel appearing for the respondent/Management that admittedly, the
petitioners services were engaged through Labour Contractor, namely Thai Security
Services (P) Ltd. and M/s. Dialtone and Industrial Maintenance Services (P) Ltd. and in
the light of the notification issued by the Central Government dated 09.11.1976, banning
the employment of Contract Labour for Sweeping, Cleaning, Dusting and Watching of
buildings owned and occupied by the establishment in respect of which the appropriate
authority is the Central Government, terminated the workmen and had formed a
Cooperative Society, namely Priyadharshini Indira Gandhi Cooperative Labour Contract
and Society Limited and it was supplying Contract Labour for Watch and Ward, House
Keeping, Messengers and Sanitary Workers. In the interregnum, a direction was issued to
engage the services of CISF for security purposes and it was put to challenge in W.P. No.
9688 of 1987 and while disposing of the same, this Court held that the settlement dated
16.12.1986 permitting formation of Cooperative Society for supply of manpower cannot
be sustained in the light of the notification dated 09.12.1976, prohibiting employment of
contract labour and declined the prayer for regularization and absorption.
11. The learned counsel appearing for the respondent/Management further submitted
that from 12.01.1988 onwards, ONGC entered into contract with the said Society and
took policy decision to employ the workmen of the said Society on Fixed Term basis and
accordingly, applications were collected from willing employees of the Society and letters
of Term Based appointment were issued conforming the temporary employment from
13.01.1988 to 29.02.1988. It is also the submission of the learned counsel appearing for
the respondent/Management that as per the major policy decision, a Company came to
be formed, namely Oil and Natural Gas Corporation Limited and as a consequence,
number of Term Based Employees got reduced. The learned counsel appearing for the
respondent/Management further submitted that the Competent Authority periodically
gave sanction for creation and appointment of 11 posts of Junior Attendants and 5 posts
of Junior Sanitary Cleaners and out of 36 term based appointees, who were working as
Messengers, 11, who met the prescribed criteria were appointed as Junior Attendants and
similarly, 5 term based appointees were appointed as Junior Sanitary Cleaners and the
said appointments were made in March 1999 and the workmen who are concerned herein
had also participated and became unsuccessful and also took a stand that even assuming
without admitting that they are entitled for regularization, they cannot be regularized
right from the year 1988, but only from the year 2000 and would further add that in the
absence of sanctioned posts, appointment cannot be made and by virtue of interim
orders passed by this Court, concerned workmen continue to remain in service. Lastly it is
contended by the learned counsel appearing for the respondent/Management that this
Court, in exercise of it's jurisdiction under Article 226 of the Constitution of India, may
not act as an appellate body/forum to test the impugned order passed by the Tribunal
and since the findings of the Tribunal came to be rendered based on proper adjudication
of oral and documentary evidence, the said findings may not be interfered with and prays
for dismissal of this Writ Petition. The learned counsel appearing for the
respondent/Management, in support of his submissions, relied on the following
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judgments:
(i) State of Gujarat v. Karshanbhai K. Rabari [2006 (3) LLJ 359]
(ii) Accounts Officer (A&I), APSRTC v. K.V. Ramana [2007 (1) LLJ 1042]
(iii) Oil & Natural Gas Corporation Ltd. v. Engineering Mazdoor Sangh [(2007) 1 SCC
250]
(iv) R. Rathakrishnan v. Deputy Registrar of Cooperative Societies, Dindigul [2007 (4)
LLN 868]
(v) Divisional Manager, Aravali Gold Club v. Chander Hass [(2008) 1 SCC 683].
12. This Court paid it's best attention to the rival submissions and also perused the
entire materials placed before it and also considered the decisions relied on by the
respective learned counsel appearing for the parties.
13. The following questions arise for consideration in this writ petition:
(i) Whether the findings of the Central Government Industrial Tribunal cum
Labour Court, Chennai in I.D. No. 27 of 2005, holding that for want of
sanctioned posts, regularization cannot be done, is sustainable?
(ii) To what other relief, workmen are entitled to?
14. Workmen concerned herein were originally 17 in number and out of them, one
Thiru. A. Abraham, CPF No. 82816, who was working as Cleaner, died and one Thiru. S.T.
Yehappan, CPF No. 73694, who was working as Messenger, retired from service. It is
relevant to extract the service particulars of the workmen including the above two of
them, one who retired and another died:
Sl. CPF Name Designation Date of Educational Community
No. No. Joining Qualification
1 73662 K. Selvam Messenger 13.01.1988 10
th
Pass SC
2 73663 P. Vasudevan Messenger 13.01.1988 10th Fail OC
3 73667 N. Mani Messenger 13.01.1988 10
th
Pass SC
4 73670 T. Messenger 13.01.1988 10th Pass OC
Radhakrishnan
5 73671 M. Subramani Messenger 13.01.1988 8th Pass SC
6 73680 S. Messenger 13.01.1988 10
th
Pass SC
Sundarababu
7 73682 K. Messenger 13.01.1988 10
th
Pass MBC
Janarthanan
8 73683 P. Ravi, Messenger 13.01.1988 10
th
Fail OC

9 73686 K. Sabapathy Messenger 13.01.1988 10th Pass SC

10 73689 M. Jabbar Messenger 13.01.1988 10
th
Pass BC
11 73690i K. Vijayasekar Messenger 13.01.1988 4th Pass SC
12 73691 B. Srinivasan Messenger 13.01.1988 10
th
Pass MBC
13 73694 S.T. Yehappan Messenger 13.01.1988; Retired OC
14 73695 E. Murthy Messenger 13.01.1988 8 th
Pass MBC
15 82815 R. Babu Cleaner 13.01.1988 5
th
Pass SC
16 82816 A. Abraham Cleaner 13.01.1988 Expired SC
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17 82819 G. Raghu Cleaner 13.01.1988 8th Pass SC

15. Facts relating to initial engagement of workmen through manpower agencies and
their subsequent engagement as Term Based Employees, are not in serious dispute.
16. Dunng the course of arguments, it was brought to the knowledge of this Court by
the learned counsel appearing for the respective parties that though some documents
remain part of the records, due to inadvertence those documents have not been marked
and therefore, by consent of either side, the following documents were marked as Court
Exhibits, vide order dated 14.12.2017:
Exhibits Details
Ex.C1 Approval for continuing engagement of
Term Based Messengers and Term Based
Cleaners at RO, Chennai for one year from
01.04.2000 dated 23.03.2000
Ex.C2 Working Paper (NP-61) dated 13.08.2004
Ex.C3 Working Paper (NP-68) dated 25.02.2005
17. Materials/Exhibits have also been appended in the typed of documents filed along
with this writ petition. A perusal and consideration of the said exhibits would disclose
that a note order dated 28.05.1988 was put up by Deputy Director (Industrial Relations)
of the respondent stating among other things that the Headquarters had advised them to
engage Housekeeping and Messenger Services through Cooperative Societies and the
said formation and engagement of Cooperative Society for House Keeping would still
attract Section 10 of the Contract Labour Act and therefore, it was proposed that
Housekeeping personnel may be allowed to continue till such time they form a separate
society and it has not been done so and hence, a proposal was mooted out to continue
their services till they form a separate Cooperative Society. As per the final endorsement
made, approval has been granted for continuing of 60 workmen (37 Messengers + 21
Sanitary Cleaners + 2 Cleaning Supervisors) for a period of three months i.e., from
01.04.1996 to 30.06.1996, under Ex.M20. Under Ex.M21, their services were extended
for a further period of nine months from 01.07.1996 to 31.03.1997 or till such time a
permanent arrangement is made. Under Ex.M22, it is indicated that since the creation of
12 posts is expected to take some more time and in the meanwhile, SRBC has continued
to engage the services of 21 Sanitary Cleaners, 2 Supervisors and 37 Messengers on the
same terms and conditions for the period beyond 31.03.1997, gave a positive
recommendation for engagement of 60 Term Based personnel on the existing terms and
conditions. It is also indicated that the proposal for creation of 12 posts as recommended
by GM (HRG) will thereafter be re-submitted for obtaining the approval of Director
(Finance) and CMD. In the running page in the note order dated 20.05.1999 put up by
the Manager (IE) -HRG, it has been stated that “A comprehensive manpower assessment
study for Regional and associated offices at Chennai is under progress being conducted
by Regional IE Cell in association with HRG and the requirement of Messengers may be
reviewed after the total manpower, particularly the strength of officers, is known, but this
study is likely to take some more time”. The said official, vide note order dated
20.05.1999, prayed for according approval for engagement of 25 Messengers and 6
Cleaners on Term-Base for a year from 01.04.1999 to 31.3.2000, as requested by the
Region.
18. Under Ex.C1, approval was sought to continue the engagement of the existing 14
Term Based Messengers and 3 Term Based Cleaners for a further period from 01.04.2000
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to 31.03.2001 and it was accorded. Under Ex.C2, working papers was put up with regard
to the case pertaining to 14 Messengers and 3 Cleaners and it has been indicated that 14
Messengers have raised a dispute before ALC(C) in view of the Court's directive and the
Union also has raised the dispute in respect of 3 Cleaners before ALC(C) and therefore, all
the 17 persons are covered under Industrial Dispute and Status-Quo is to be maintained
in respect of them. A recommendation has also been made for engaging those 17 persons
in the Regional Office at Chennai for a period of one year from 01.04.2004 to 31.03.2005
or vacation of the stay, whichever is earlier and it was also accorded. Under Ex.C3, their
services were extended from 01.04.2005 to 31.03.2006.
19. In the counter affidavit filed before the Tribunal, the Management/ONGC took a
stand in paragraphs 20 and 21 as to the creation and filling up of posts and it is relevant
to extract the same:
“20. On 15.12.1997, the Competent Authority gave sanction for creation and filling
up of 12 posts of Junior Sanitary Cleaners for the Regional Office at Chennai. The two
supervisors and 21 cleaners who were on term appointment basis were called for
interview and 12 of them who met the prescribed criteria were appointed after
observing the reservation policy of the Government of India.
21. On 18.12.1998 the Competent Authority gave approval for creation and
appointment of 11 posts of Junior Attendants and 5 posts of Junior Sanitary Cleaners.
Out of 36 term appointees, who were working as Messengers, 11 who met the
prescribed criteria were appointed as Junior Attendants. Similarly 5 term appointees
were appointed as Junior Sanitary Cleaners. The appointments were made in March
1999. Again in the year 2000, the Competent Authority gave sanction for creation and
appointment of 11 posts of Junior Attendants and 3 posts of Junior Sanitary Cleaners.
11 term appointees who were working as Messengers and who met the prescribed
criteria were appointed as Junior Attendants and 3 Sanitary Cleaners on term basis
were appointed as Junior Sanitary Cleaners. Out of the 37 Messengers, who were
parties to W.P. No. 777/1997, on Balakrishnan expired. The remaining 14 term
appointees were being retained in view of the pendency of the writ petition.”
20. Thus, it appears that the need to employ them is subsisting and the primordial
contention put forward by the respondent/Management is that in the absence of
sanctioned posts, the concerned workmen cannot be accommodated.
21. Oil and Natural Gas Corporation Limited, Cauvery Project, Pondicherry had filed
W.P. No. 1846 of 2000 against the Petroleum Coal Labour Union, represented by its
General Secretary and others, praying for issuance of a Writ of Certiorari calling for the
records pertaining to the award in I.D. No. 66/91 dated 26.05.1999, on the file of the
Industrial Tribunal at Chennai, wherein certain directions have been issued to regularize
the services of the workmen concerned with effect from 14.01.1990, the date on which all
of them had completed 480 days of attendance. The learned Judge, in the said writ
petition, taking into consideration the various decisions including the judgment in Uma
Devi v. State of Karnataka [(2006) 4 SCC 1], posed a question as to whether workmen
concerned in the writ petition were illegally appointed and in paras 41 and 42 of the said
decision, observed as follows:
“41. A deep reading of the said Act would go to show that it does not distinguish
between regularly appointed temporary employees and irregularly appointed
temporary employees. It is an affirmative Act in favour of the temporary employees
who have worked for more than 480 days in a period of two calender years to get
regularised in their service. To repeat, it is immaterial as to whether such employees
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were regularly appointed by following the procedure for selection and appointment or
irregularly appointed. When the said Act has been upheld by the Hon'ble Supreme
Court, in my considered opinion too, there can be no gain saying in contending that
the Industrial Tribunal/Labour Court cannot issue a positive direction to regularise
irregularly appointed temporary employees who had worked for a period of more than
480 days in two calendar years. This is, exactly, the view taken by the learned single
Judge [Justice K. Chandru] of this Court in paragraph 38 of the Judgement which runs
as follows:—
38. Once there is a valid State enactment providing for relief to such of those
workmen deemed permanency to those who had completed 480 days' of service
within a period of two calendar years then, such workmen getting permanent status
cannot be questioned by any Management. Such conferment of permanent status to
the workmen cannot be labelled as violation of Articles 14 and 16 of the
Constitution. The effect of a local enactment conferring permanent status to
workmen was never considered by any Court so far.
42. Coming to the factual matrix, as I have already stated, there is no dispute that
these petitioners were appointed on temporary basis in the year 1988 and they have
been continuously working [i.e.,] for more than 480 days in two calendar years. Of
course, their appointments are all irregular, even then they are entitled for
regularisation, in view of the law laid down by the Hon'ble Supreme Court in
Maharashtra Road Transport Corporation's case and followed by this Court in Hindustan
Petroleum Corporation Limited v. The Presiding Officer, Central Government Labour
Court-cum-Industrial Tribunal, 2008 (4) CTC 819. Thus, I do not find any infirmity in
the award passed by the Industrial Tribunal warranting interference at the hands of
this Court.”
22. The learned Judge, citing the said reasons, had dismissed the Writ Petition, vide
order dated 04.01.2011.
23. The above said order was put to challenge in W.A. No. 1006 of 2011 and during
the course of arguments in the said Writ Appeal, it was submitted by the learned counsel
appearing for ONGC that appointment of workmen is an illegal one as they were
appointed to the said post either through a contractor or through the Cooperative Society,
without following the procedure contemplated for selection and appointment in the
standing order of ONGC and in the light of the judgment in Uma Devi case (cited supra),
such appointees/workmen cannot seek for regularization. The Division Bench, after taking
into consideration the rival submissions, in para 15 observed as under:
“15. After considering the nature of the evidence, which was placed before the
Labour Court, which was appreciated by the learned Single Judge, we are of the firm
view that the appointment of the said workmen cannot be termed to be an illegal
appointment but was only a irregular appointment and therefore, they were entitled
for regularization, having been employed on temporary basis from 1988 onwards.”
24. Thus, the Division Bench, had dismissed the Writ Appeal, vide judgment dated
11.08.2011.
25. The learned counsel for the petitioner placed heavy reliance upon the decision in
Oil and Natural Gas Corporation Limited v. Petroleum Coal Labour Union [(2015) 6 SCC
494], which was filed against the judgment dated 11.08.2011 made in W.A. No. 1006 of
2011, which in-turn confirmed the order dated 04.01.2011 made in W.P. No. 1846 of
2000. The appellant/ONGC put forward the following submissions before the Hon'ble
Supreme Court of India, praying for interference and it is relevant to extract para 14 of
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the said judgment:

“14…(a) The appointments of workmen were illegal not irregular, as they were made
without proper competition among qualified persons
(b) The concerned workmen do not possess the qualifications and training
required for discharging duties as security guards against attacks by armed gangs
or terrorists.
(c) They were not working against sanctioned posts.
(d) The sanction obtained subsequently was only for deployment of members of
the CISF.
(e) The concerned workmen were, as a stop gap arrangement, though not
qualified but found physically fit, were employed for a short period anticipating the
posting of CISF personnel.
(f) They were not allowed to continue voluntarily by the management without
intervention of any mandatory provision of law or orders of Tribunal and Courts.
They could not be discharged and had to be allowed to continue only on account of
legal compulsion, i.e. 33(1) of the ID. Act 1947 and the interim orders of the
learned single Judge and the Division Bench.
(g) The management cannot be compelled by judicial order to regularise the
services of unqualified and untrained workmen as security guards for discharging
duties which only qualified and trained members of an organised armed force could
competently discharge.”
26. It was also contended that the workmen concerned were not contract labourers
and referred the matter to the Industrial Tribunal for adjudication. The appellant also took
a stand that when the very appointment itself is illegal, no order regularizing the services
of the workmen can be passed by the Tribunal. A legal plea was also taken that Certified
Standing Orders cannot prevail over Uma Devi (3) case (cited supra) or Article 14 of the
Constitution of India and therefore, the workmen cannot seek for regularization. However,
the said submission was refuted by the learned Senior Counsel for the private
respondents/workmen. The Hon'ble Supreme Court of India, formulated the following
questions for consideration:
“Whether the jurisdiction of the Tribunal to direct the Corporation to
regularize the services of the workmen concerned in the posts is valid and
legal?
Whether the appointment of the workmen concerned in the services of the
Corporation is irregular or illegal?
27. The Hon'ble Supreme Court of India found that all the workmen concerned have
got the qualifications required for regularization and the Tribunal has got every power to
adjudicate an industrial dispute and impose upon the employer new obligations to strike
a balance and secure industrial peace and harmony between the employer and workmen
and ultimately deliver social justice which is the constitutional mandate as held by it in
catena of decisions, especially in the decision in Bharat Bank Ltd. v. Employees [1950
SCC 470 : AIR 1950 SC 188]. The Hon'ble Supreme Court of India, while answering the
first question held that the Tribunal has rightly passed an award directing the Corporation
to regularize the services of the workmen concerned. As regards, second question, the
Hon'ble Supreme Court of India, taking note of the notification dated 08.12.1976 issued
by the Central Government, abolishing employment of contract labour for the posts of
Watch and Ward, Dusting and Cleaning jobs in the Corporation under Section 10(1) of
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the Contract Labour (Regulation and Abolition) Act, 1970 and the formation of
Cooperative Society, namely “Thai Security Service, Priyadarshini Indira
Cooperative Society”, have dispensed with the intermediary contractors. A plea was
also made by the appellant/ONGC that the reason for not regularizing the workmen
concerned under the Certified Standing Orders of the Corporation is allegedly due to the
fact that the appointment of the workmen concerned was made without following the due
procedure and therefore, appointments were illegal. However, the said submission was
repelled by the Hon'ble Supreme Court of India by observing in para 31 that “This Plea
cannot be accepted by us in view of the legal principle laid down by this Court in the
above decision, wherein it is clearly laid down that the Corporation cannot deny the rights
of the workmen by taking the plea that their initial appointment was contrary to Articles
14 and 16 of the Constitution”.
28. In para 32 of the said judgment, the Hon'ble Supreme Court further observed that
“even though due procedure was not followed by the Corporation for the appointment of
the workmen concerned, this does not entitle them of their right to seek regularization of
their services by the Corporation under th provisions of the Certified Standing Orders,
after they have rendered more than 240 days of service in a calendar year from the date
of the memorandum of appointment issued to each one of the workmen concerned in the
year 1988. The Hon'ble Supreme Court has referred to Clause 2 of the Certified Standing
Orders for Contingent Employees of ONGC which classifies contingent employees as (a)
Temporary and (b) Casual and Clause 2(ii) states that a temporary workmen who has put
in not less than 240 days of attendance in any calendar period of 12 consecutive months
and who possess the minimum qualifications prescribed by Commission may be
considered for conversion as regular employee. In para 33 of the said judgment, the
Hon'ble Supreme Court observed that “It is clear that the workmen concerned have
clearly completed more than 240 days of services subsequent to the memorandum of
appointment issued by the Corporation in the year 1988 in a period of twelve calendar
months, therefore, they are entitled for regularization of their services into permanent
posts of the Corporation as per the Act as well as the Certified Standing Orders of the
Corporation”.
29. In para 35 of the said judgment, the Hon'ble Supreme Court of India observed
that it is necessary for ONGC to first to modify the Certified Standing Orders by following
the procedure provided under Section 10 of the Industrial Employment (Standing Orders)
Act, 1946 as the same is a special enactment and therefore, prevails over the provisions
of the ONGC Act and the Recruitment Rules. In para 36 of the said judgment, the Hon'ble
Supreme Court of India held that the alleged policy decision taken under Section 30-A of
the ONGC Act does not prevail over the Standing Orders framed under the Industrial
Employment (Standing Orders) Act, 1946, which is a special enactment and therefore,
held that the policy decision taken by ONGC is neither valid in law nor applicable to the
case on hand.
30. It is also very relevant to extract paras 44, 48 and 49 of the said judgment:
“44. In light of the above said discussion and legal principles laid down by this
Court in the cases referred to supra, we are of the considered view that the procedure
of appointments adopted by the Corporation with respect to the concerned workmen
initially appointed through contractors, subsequently through the Co-operative
Society, and then vide memorandum of appointment issued to each one of the
concerned workmen in the year 1988 and thereafter, continuing them in their services
in the posts by the Corporation without following any procedure as contended by the
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learned senior counsel on behalf of the Corporation whose contention is untenable in

law and their appointment can be said as irregular appointments but not as illegal as
the same was not objected to by any other Authority of the Corporation at any point of
time. But their appointment in their posts and continuing them in their services is
definitely cannot be termed as illegal, at best it can be called irregular. Therefore, the
Certified Standing Orders of the Corporation by all means apply to the concerned
workmen.
48. Further, it has been contended by the learned senior counsel on behalf of the
Corporation that in the absence of any plea taken by the workmen in their claim
statement regarding unfair labour practice being committed by the Corporation against
the concerned workmen, the learned single Judge and the Division Bench ought not to
have entertained the said plea as it is a well settled principle of law that such plea
must be pleaded and established by a party who relies before the Tribunal. In support
of the above contention reliance was placed by him on the decision of this Court in
Siemens Limited v. Siemens Employees Union [(2011) 9 SCC 775].
49. The said contention of the learned senior counsel on behalf of the Corporation is
wholly untenable in law and the reliance placed on the aforesaid case is misplaced for
the reason that it is an undisputed fact that the workmen have been appointed on
term basis vide memorandum of appointment issued to each one of the concerned
workmen in the year 1988 by the Corporation who continued their services for several
years. Thereafter, they were denied their legitimate right to be regularised in the
permanent posts of the Corporation. The said fact was duly noted by the High Court as
per the contention urged on behalf of the Corporation and held on the basis of facts
and evidence on record that the same attracts entry Item No. 10 of Schedule V of the
Act, in employing the concerned workmen as temporary employees against permanent
posts who have been doing perennial nature of work and continuing them as such for
number of years. We affirm the same as it is a clear case of an unfair labour practice
on the part of the Corporation as defined under Section 2(ra) of the Act, which is
statutorily prohibited under Section 25T of the Act and the said action of the
Corporation warrants penalty to be imposed upon it under Section 25U of the Act. In
fact, the said finding of fact has been recorded by both the learned single Judge and
the Division Bench of the High Court in the impugned judgment on the ground urged
on behalf of the Corporation. Even if, this Court eschews the said finding and reason
recorded in the impugned judgment accepting the hyper technical plea urged on
behalf of the Corporation that there is no plea of unfair labour practice made in the
claim statement, this Court in this appeal cannot interfere with the award of the
Tribunal and the impugned judgment and order of the High Court for the other reasons
assigned by them for granting relief to the concerned workmen. Even in the absence of
plea of an act of unfair labour practice committed by the Corporation against the
concerned workmen, the Labour Court/High Court have got the power to record the
finding of fact on the basis of the record of the conciliation officer to ensure that there
shall be effective adjudication of the industrial dispute to achieve industrial peace and
harmony in the industry in the larger interest of public, which is the prime object and
intendment of the Industrial Disputes Act. This principle of law has been well
established in a catena of cases of this Court. In the instant case, the commission of
an unfair labour practice in relation to the concerned workmen by the Corporation is ex
-facie clear from the facts pleaded by both the parties and therefore, the courts have
the power to adjudicate the same effectively to resolve the dispute between the
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parties even in the absence of plea with regard to such an aspect of the case.”
31. Ultimately, the Hon'ble Supreme Court of India has confirmed the judgment
passed by the Division Bench dated 11.08.2011 made in W.A. No. 1006 of 2011.
32. Now this Court considers the decision relied on by the learned counsel appearing
for the respondent/Management.
33. In Oil and Natural Gas Corporation Ltd. v. Engineering Mazdoor Sangh [(2007) 1
SCC 250], an industrial dispute was raised by the respondent Sangh for regularization of
the services of workmen who worked as casual/contingent/temporary workmen. The
Union filed a complaint under Section 33-A of the Industrial Disputes Act, 1947 alleging
that pending reference, ONGC has started giving work to contractors in preference to the
casual/contingent/temporary workmen and thereby altered the terms of service of the
workmen and committed breach of Section 33 of the said Act. The Tribunal, vide award
dated 30.10.1993, held that it was not permissible for the Tribunal to examine whether
the work of ONGC was seasonal or not or whether ONGC had committed breach of terms
of service of the workmen by giving the work to contractors and the Tribunal directed
ONGC to follow the principle of “Last Come First Go” in case it wanted to terminate the
services of casual/temporary workmen on the ground that they had not worked and
therefore, ONGC was required to obtain prior permission of the Tribunal under Section 33
(1)(a) of the I.D. Act. The Tribunal, after taking notice of Rule 2 of the Certain Standing
Orders held that a casual workman who put in attendance of 180 days or more days in 12
consecutive months automatically became a temporary workman who would 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.
34. The said order was put to challenge before the High Court of Gujarat, which
modified the award holding that the employees who fulfill the requirement of 240 days or
more and the minimum qualifications under the ONGC (Recruitment and Promotions)
Regulations, 1980 in accordance with the relevant Certified Standing Orders shall be
considered on par with regular employees for the benefits which are given to regular
employees and they will have to wait according to their turn for being made permanent
as and when permanent posts become available. The said order was put to challenge by
filing an appeal before a Division Bench, which disposed of the appeal by directing that
the workman concerned should be notionally treated as regularized with effect from
01.05.1999. Aggrieved by the same, the ONGC/Management has filed SLP before the
Hon'ble Supreme Court and it was converted as Civil Appeal.
35. The Hon'ble Supreme Court disposed of the appeal by setting aside the judgments
passed the learned Single Judge and the Division Bench and found that the directions
given by the Tribunal are allowed to stand.
36. The primordial submission made by the learned counsel appearing for the
respondent/Management is that as per ONGC - Modified Recruitment & Promotion
Regulations, 1980, the existing employees with qualification below standard VIII will be
treated as under qualified including Sanitary Cleaner and Mali recruited under MRPR 1980
and for the post of Junior Attendant, the minimum education qualification prescribed is a
Matriculate. Since the concerned workmen did not fulfill the necessary qualifications, they
cannot be considered for regularization. The learned counsel appearing for the
respondent/Management has drawn the attention of this Court to the decision in
Accounts Officer (A&I), APSRTC v. K.V. Ramana [2007 (1) LLJ 1042 (SC)], wherein it has
been held that long period of service is not a ground for regularization and regularization
of contractual or casual employees dehors rules not to be granted by Courts.
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37. The learned counsel appearing for the respondent/Management also relied upon
the decision of the Hon'ble Supreme Court in Divisional Manager, Aravali Golf Club v.
Chander Hass [(2008) 1 SCC 683] and would submit that in the absence of any
sanctioned post, Court cannot pass an order of direction for regularization and it is the
stand of the respondent/Management throughout that no sanctioned posts are available
to accommodate the concerned workmen and that apart, they did not fulfill the minimum
educational qualification and as such, their services cannot be regularized.
38. The learned counsel appearing for the respondent/ONGC also placed reliance upon
the decision in International Airport Authority of India and International Air Cargo
Workers' Union [2009 LLR 923], which dealt with the issue relating to non-absorption of
workmen and would submit that in the above said decision, it was held that the workmen
therein are not entitled to absorption as they were regular employees of Air Freight and
that IAAI had no obligation to absorb or employ them and admittedly the workers were
contract employees of the respondent/ONGC and on formation of the Society, being
members of the Society, continue to work as Messengers and Sanitary Workers etc., and
as such, they are not entitled for regularization.
39. Lastly it is contended by the learned counsel appearing for the
respondent/Management that there cannot be any positive direction to the
respondent/ONGC to regularize the services of the workmen, if they were appointed in
violation of the rules and regulations and drawn the attention of this Court to the Full
Bench decision of this Court in R. Rathakrishnan v. Deputy Registrar of Cooperative
Societies, Dindigul [2007 (4) L.L.N. 868] and also reiterated his submissions by placing
reliance upon the decision in State of Gujarat v. Karshanbhai K. Rabari [2006 (3) L.L.J.
359], which laid down the proposition that regularization cannot be a mode of
recruitment, through which permanence can be given to adhoc employee.
40. In sum and substance, it is the submission of the learned counsel appearing for
the respondent/Management that in the absence of any sanctioned posts and also on
account of non-fulfillment of minimum qualification prescribed under ONGC Modified
Recruitment & Promotion Regulations, 1980, the concerned workmen are not entitled for
regularization and further that during the year 1997-1998, persons similarly placed were
accommodated on account of the Competent Authority giving approval for appointment
and though the workmen had participated in the said process, were unsuccessful and
even for the sake of arguments that they are entitled for regulanzation, it cannot be done
from the date of their initial appointment and hence, prays for dismissal of this writ
petition.
41. A perusal and consideration of the materials placed before it would indicate that
the respondent/ONGC has engaged the services of external agencies viz. M/s. Thai
Security Services (P) Ltd. and M/s. Dialtone and Industrial Maintenance Services (P) Ltd.
for doing menial jobs and on account of the notification dated 09.11.1976 issued by the
Government of India, abolishing the employment of contract labour coupled with the fact
that a policy decision has been taken to deploy CISF for security purposes and M/s.
Pnyadharshmi Indira Gandhi Cooperative Labour Contract and Security Limited came to
be formed in which the concerned workmen became members and the concept of “Term
Based Employees” came into being and contract awarded to the members of the Society
for doing menial jobs and on account of policy decision, terminated their services to
employ them on Fixed Term Basis. During the year 1997-98, the Competent Authority
has given sanction for filling up of sanctioned posts of Sanitary Cleaners, Junior
Attendants etc., and the concerned workmen numbering 11, who met the prescribed
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criteria were appointed as Junior Attendants and the remaining 14 term appointees were
retained in the light of pendency of W.P. No. 777 of 1997.
42. A perusal and analysis of Exs.M14, M20 to M22, C1 to C3 would also indicate that
periodical approval has been granted to engage the services of 17 workmen and the said
exhibits would also indicate that the need to employ them is also perpetual and required
one.
43. The Respondent/Management also took a plea as to the lack of prescribed
qualification. Admittedly, the job being undertaken by the workmen are menial jobs and
their services have been engaged from the year 1985 onwards through contractors and
later on, through a Cooperative Society and subsequently, they continued to be employed
on Term Basis and though pursuant to various interim orders passed by this Court
pendency of the writ petition, they continue to work in that capacity, the fact remains
that their requirement to the said job is continuous and required one. No doubt, pursuant
to creation and filling up of posts accorded by the Competent Authority on 15.12.1997
and 18.12.1998 respectively and during 2000, the posts of Junior Attendants and
Sanitary Cleaners were filled up. Though in the exhibits referred to above, especially in
Ex.M23, it has been indicated as to the comprehensive manpower assessment study for
the regional office and associated at Chennai is under progress and being conducted by
Regional IE Cell in association with HRG, the result of the same has not been made
known by the respondent/ONGC.
44. In the considered opinion of the Court, the judgment rendered by the Hon'ble
Apex Court in ONGC v. Petroleum Coal Labour Union [(2015) 6 SCC 494] is squarely
applicable to the facts of this case and as such, the workmen in Sl. Nos. 1 to 15, 17 of
the tabulation extracted above in paragraph 12 are entitled for regularization and
absorption in respect of posts held by them. Insofar as the date of regularization is
concerned, admittedly they had also participated in the process to accommodate which
took place on 15.12.1997, 18.12.1998 as well as in the year 2000 and they became
unsuccessful and in the light of the said fact and also taking into consideration of the fact
that they continue to work pursuant to various interim orders passed by this Court, they
can be regularized from the date on which 11 Term Based appointees were appointed as
Junior Attendants and so also 3 Sanitary Cleaners.
45. In the result, this Writ Petition is allowed and the impugned Award dated
17.05.2007 made in I.D. No. 27 of 2005 passed by the Central Government Industrial
Tribunal-cum-Labour Court, Chennai is set aside and the employees/workmen/Term
Based Workers in Sl. Nos. 1 to 15 and 17 in the tabulation extracted above in paragraph
12 are entitled for regularization as Messengers and Sanitary Cleaners with effect from
the date of appointment of 11 Junior Attendants and 3 Sanitary Cleaners, as per the
sanction accorded by the Competent Authority in the year 2000 [para 21 of the counter
statement of the respondent dated 09.06.2005 filed in I.D. No. 27 of 2005]. Insofar as
the workmen in Sl. No. 16, who died during pendency of the Writ Petition, his legal
representatives, subject to the production of authenticated documents, is entitled to the
benefits of his deemed regularization.
46. In the light of this order, the respondent/Management is also directed to accord
consequential attendant benefit to the workmen/list annexed in Sl. Nos. 1 to 15 and 17
as well as to the legal representative of the workman in Sl. No. 16 viz., Mr. A. Abraham
[CPF No. 82816], within a period of twelve weeks from the date of receipt of a copy of
this order and also send necessary communications to them. No costs.
———
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2017 SCC OnLine Utt 1933

In the High Court of Uttarakhand at Nainital

(BEFORE SHARAD KUMAR SHARMA, J.)

Tel Evam Prakartik Gas Ayog .…. Petitioner;

v.
Central Government Industrial Tribunal .….
Respondent.
MCC No. 976 of 2017
In
WPMS No. 138 of 2008
Decided on October 25, 2017
Advocate who appeared in this case :
Mr. Dinesh Gahtori, Advocate for the respondents.
The Judgment of the Court was delivered by
SHARAD KUMAR SHARMA, J.:— The petitioners have challenged the
arbitrary attitude of the respondents for not granting them
regularization despite of the fact that the employees appointed
subsequently, who were junior to the petitioners have been regularized.
2. The writ petition after giving due opportunities to the parties was
allowed. Now review has been sought of the judgment passed by this
Court dated 03.08.2017.
3. I do not find any plausible reasons or the grounds mentioned in
the memorandum of review. There is no apparent error on the face of
the judgment.
4. Thus the Review Application (MCC No. 976 of 2017) is rejected.
———
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2015 SCC OnLine Mad 12815

In the High Court of Madras

(BEFORE SANJAY KISHAN KAUL, C.J. AND T.S. SIVAGNANAM, J.)

W.A. No. 299 of 2010

1. M. Rajan
2. R Venkatesan
3. L. Sekar
4. R Gnanaoli
5. G Muthukrishnan
6. S Parthiban
7. B. Rajkumar
8. T Kumaresan
9. R. Mohanaselvam
10. S Thalaiah
11. K.P. Kumar
12. S. Arulraj
13. M. Sundaramurthy
14. K. Pithcaipillai
15. V. Ganapaandithan
16. G.A. Nadheswaran .…. Appellants
v.
1. Oil and Natural Gas Commissione Rep. by its Regional Director
Southern Region Cmda Tower Egmore Chennai-8.
2. G. Murugavel
3. A Kalimullah
4. T Devaraj
5. R Gurumurthy
6. R Pushparaj
7. E Rajagopal
8. D Mahendran
9. R Arjunan
10. K Ravikumar
11. W Sowshadh
12. P Mani
13. J. Ravisankar .…. Respondents
With
W.A. No. 1289 of 2010
1. M.D. Iqbal Basha
2. K. Arulselvan
3. B. Pachiappan
4. L. Janarthanam
5. S.B. Manoharan
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6. D. Ernest Thyagarajan
7. K. Narayana
8. K. Kotilingam
9. V. Govindaraj
10. R. Vadivelu
11. E. Nagarajan
12. T.S. Ravikumar
13. S. Selvakumar
14. G. Sankarasubramaniam
15. K. Venkateswarlu
16. S. Jeevanandam
17. S. Ramamoorthy
18. K. Radhakrishnan Nair
19. Anil Kumar Singh
20. C.H.B. Koteeswara Rao
21. P.D. Prasad Rao
22. A.S. Chanda Rao
23. K. Sivudu
24. I. Minason
25. G. Kaliamurthy
26. R. Chellapandian
27. V. Krishnan .…. Appellants
v.
1. Oil and Natural Gas Corporation Ltdrep by Chairman Cum
Managing Director Jeevan Bharathi Tower-II 124 Connaught
Circus New Delhi 110 001.
2. Regional Director Souther Region Oil and Natural Gas
Corporation Ltd. Thalamuthu Natarajan Maligai (CMDA Towers)
3. G.M. Head Regional Officer Oil Regional Officer Ongc.
Thalamuthu Natarajan Maligai (CMDA Towers) No. 1. Gandhi
Irwin Road Egmore Chennai 600 008 .…. Respondents
And
W.A. No. 1473 of 2010
1. A. Kalimullah
2. T. Devaraj
3. R. Gurumurthy
4. R. Pushparaj
5. R. Arjunan
6. K. Ravikumar
7. W. Nowshadh
8. J. Ravi Shankar .…. Appellants
v.
1. Oil and Natural Gas Commission Rep. by its Regional Director
Presently Known As Basin Manager Southern Region Cmda
Tower Egmore Chennai 600 008.
2. M. Rajan
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3. G. Murugavel
4. R. Venkatesan
5. L. Sekar
6. R. Gnana Oli
7. G. Muthukrishnan
8. S. Parthiban
9. B. Rajkumar
10. T. Kumaresan
11. E. Rajagopal (Retd)
12. R. Mohanaselvam
13. S. Thalaiah
14. K.P. Kumar
15. S. Arulraj
16. M. Sundaramurthy
17. K. Pichaipillai
18. V. Gnanapandithan
19. G.A. Nandheeswaran .…. Respondents
For Appellant: Mr. R. Krishnaswamy and Mr. V. Ajoy Khose in W.A. No. 299/2010
Mr. T.R. Rajagopalan Senior counsel for Mr. C.V. Vijayakumar in W.A. No. 1289 &
1473 of 2010
For Respondents: Mr. G. Masilamani Senior counsel for Mr. M. Vijayan for M/s. King
& Partridge for all W.As.,
Prayer in W.A. No. 299 of 2010:-Writ Appeal filed under Section 15 of the Letters
patent against the order dated 04.01.2010 passed by learned single Judge in W.P.
No. 7906 of 1999.
Prayer in W.A. No. 1289 of 2010:-Writ Appeal filed under Section 15 of the Letters
patent against the order dated 23.02.2010 passed by learned single Judge in W.P.
No. 870 of 2004.
Prayer in W.A. No. 1473 of 2010:-Writ Appeal filed under Section 15 of the Letters
patent against the order dated 04.01.2010 passed by learned single Judge in W.P.
No. 7906 of 1999.
W.A. Nos. 299, 1289 & 1473 of 2010
Decided on November 20, 2015
The Judgment of the Court was delivered by
T.S. SIVAGNANAM, J.:— These Appeals are directed against the order dated
04.01.2010 in W.P. No. 7906 of 1999 and W.P. No. 870 of 2004, dated 23.02.2010.
2. W.A. Nos. 299 & 1473 of 2010 are against the same order in W.P. No. 7906 of
1999, dated 04.01.2010 and in W.A. No. 1473 of 2010, the Appellants are the
petitioners 3, 5, 6, 13, 21, 22, 24, 28 in W.P. No. 7906 of 1999, and in W.A. No. 299
of 2010, the Appellants are the petitioners 1, 7 to 12, 15 to 17, 19, 20, 23, 25 to 27.
The issue involved in all these Appeals are common, they were heard together and are
disposed of by this common judgment.
3. W.P. No. 7906 of 1999 was filed by 28 Security Guards, who have been engaged
by the respondent and they sought for a direction to regularise their services on
completion of two years of service and for payment of consequential monetary
benefits.
4. W.P. No. 870 of 2004 was filed by the 27 petitioners, who were also engaged as
Security Personnel by the respondent and they sought for issuance of a Writ of
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Certiorarified Mandamus to quash the order dated 24.03.2003, passed by the General
Manager of the respondent organisation and for a direction to regularise their services
with effect from 13.01.1988 with all consequential benefits. By the order impugned in
the said Writ Petition, the respondent rejected the demand made by the petitioners for
regularisation of their services. Both the Writ Petitions were dismissed primarily on the
ground that the High Court under Article 226 of the Constitution should not ordinarily
issue direction for absorption, regularisation or permanent continuance unless the
recruitment itself was made regularly in terms of the constitutional scheme. W.P. No.
7906 of 1999 was also dismissed on the same lines, however, the Court observed that
it is open to the petitioners therein to approach the statutory Authorities to redress
their grievances.
5. The case of the appellants in W.A. Nos. 299 & 1473 of 2010, arising out of the
order passed in W.P. No. 7906 of 1999 is that the respondent has been engaging them
directly for more than a decade as Security Guards without regularising their services.
The appellants are stated to be engaged as Security Guards at the Regional Office,
Chennai, Harbour Stores inside Chennai Port, Madhavaram Tape Library and residences
of the Regional Director, Deputy General Manager (Security) and General Manager
(Security) and Stores at Kumbakonam. It is submitted that totally there are 64 term
based Security Guards including the appellants, in the Southern Region of which 45
employees are in Chennai. The appellants were initially employed through a private
contractor and after contract labour system was abolished, the respondent continued
to engage the contract labour through the agency called ‘Priyadarshni Indira Gandhi
Co-operative Labour Contract and Society’. At that juncture, a Writ Petition was filed
by an Employees Union in W.P. No. 7651 of 1986 for regularisation of contract
labourers. The said Writ Petition was withdrawn in the light of a settlement, dated
16.12.1986, providing for engagement of contract labourers through a co-operative
society and thereafter the said organisation was registered under the Tamil Nadu Co-
operative Societies Act, 1993. During 1987, the respondent decided to utilize the
services of the Central Industrial Security Force (CISF), which was challenged by the
Employees Union in W.P. No. 9688 of 1987, stating that having agreed to engage the
services of the appellants through a co-operative society, the respondent should not
employ CISF personnel. Further relief of absorption as permanent employees was also
sought for. The said Writ Petition was dismissed. The appellants contended that in the
light of the decision of the Hon'ble Supreme Court in the case of Air India Statutory
Corporation v. United Labour Union, reported in (1997) 9 SCC 377 : AIR 1997 SC 645,
erst while contract labourers should not be placed in a worse position of losing their
employment, which they had and that the contract labourers are to be absorbed.
6. It was further submitted that with effect from 13.01.1988, the appellants were
made as a direct employees of the respondent and they have been continued as such.
The appellants contended that they were paid consolidated wage of Rs. 98/- per day
and were denied other benefits. With these facts, the appellants contended that they
are entitled for being regularised in service and retaining them as a term based
employee is an unfair labour practice and the respondent being a “State” under Article
12 of the Constitution of India should function as a model employer. It was further
submitted that the appellants are entitled for regularisation as per the provisions of
the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to
Workmen) Act, 1981, (hereinafter referred to as the ‘Act’) and should have been made
permanent on completion of 480 days of service in two years, more particularly when
the work done by the appellants is permanent in nature and it is also an essential
service.
7. The appellants in W.A. No. 1289 of 2010, the petitioners in W.P. No. 870 of
2004, were working as Security Supervisors, Security Guards at the Regional Office at
Chennai and some of them are Security Guards at the Field Stores at Kumbakonam.
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The appellants contended that they were originally employed through an agency called
as “Thai Security Service” and after the abolition of the contract labour system, they
were employed directly under the respondent. It was further submitted that the
Cleaners and Messengers were also employed by the respondent through a contract
labour agent called “Dial Tone” and after the abolition of the contract labour system,
they were absorbed by the respondent. It is further submitted that the appellants and
other term based employees submitted representations to the respondents for
regularisation of their service and a committee was constituted under the
Chairmanship of Mr. Kapoor and the Committee submitted its report on 15.06.2001,
recommending regularisation of the appellants and the other term based employees.
Further, the respondent by office memorandum, dated 29.07.1967, recommended
regularisation of the contingent workers like the appellants on certain terms. It is
therefore submitted that the action of the respondent is arbitrary, unreasonable and
discriminatory.
8. The respondent resisted the Writ Petition filing counter affidavit contending that
the Writ Petition is not maintainable as the appellants were not appointed into the
service of the respondent in terms of the Recruitment and Promotion Rules, 1980 as
amended and such a dispute cannot be resolved in a Writ Petition that too filed after
inordinate delay and latches and liable to be dismissed. It was further contended that
the respondent on account of exigency engaged ad hoc Security Guards/Security
Supervisor through an agency as an interim arrangement, as they were taking active
steps to permanently engage the CISF and at that juncture, W.P. No. 7651 of 1986
was filed seeking regularisation of their services and an agreement was entered into
on 16.12.1986, by which it was agreed that the Security Guards/Supervisors would
form a co-operative society and meet the requirement of the respondent whenever
necessary and from time to time. Ultimately, the Writ Petition was dismissed as not
pressed. Thereafter, during 1987, another Writ Petition was filed in W.P. No. 9688 of
1987 after the first batch of CISF was deployed. In the said Writ Petition, this Court
permitted the CISF to be inducted without any reduction of manpower availed from
the co-operative societies. However, the relief of regularisation of such personnel was
negatived by order dated 15.01.1988 and the matter attained finality. The term based
engagement of the appellants was purely temporary for a specific period and the
Standing Orders of ONGC are not applicable to the appellants. The appellants
unequivocally accepted these conditions and are now estopped from contending to the
contrary. It is submitted that these facts have not been placed before this Court and
have been suppressed. Further, it is submitted that since there is no drilling operation
in and around Chennai ever since 1988, there is no requirement of Security
Guards/Supervisors and the appellants are continuing under Court orders. It was
further contended that all the appellants have been paid other allowances and
contributions apart from the wages paid to them. Further, it is stated that the decision
in the case of Air India Statutory Corporation v. United Labour Union, (supra), was
overruled by the Constitution Bench in the case of Steel Authority of India v. National
Union Water Front Workers, reported in (2001) 7 SCC 1. It was further submitted that
regular Security Personnel are recruited following the procedure under the Recruitment
and Promotion Rules, 1980, which provides for requisite qualification, physical
standards and the performance is assessed by interview. Further, it was submitted
that the appellants are not governed by the CDA Regulations of ONGC and cannot be
entrusted with any responsibility and having been deployed only in the offices and not
in the installations and drilling rigs, for which they do not possess the qualifications.
Further, it is submitted that the provisions of the Tamil Nadu Industrial
Establishments (Conferment of Permanent Status to Workmen Act, is not applicable to
the facts and circumstances of the case.
9. With regard to “M/s. Dial Tone”, it is submitted that they were contractors who
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provided House Keeping and Messenger services prior to the formation of

Priyadharshini Co-operative Society and in the light of the orders passed in W.P. No.
9688 of 1987, they were offered term based engagement as term based Messenger
and term based Sanitary Cleaners. The Office Memorandum referred to by the
appellants dated 29.06.1967, has no connection with the facts of the present case, as
several subsequent events have taken place. It was further submitted that regular
vacancies should be filled up as per the ONGC Recruitment and Promotion Regulation,
1980, (“R&P Regulations”). As per clause 3 of the R&P Regulations, all posts in ONGC
should be filled up through direct recruitment or promotion of employees who are
already in service of the Corporation or borrowing the services of persons from Central
Government or State Government or Public Sector undertaking or any other method as
may be decided by the Corporation for reasons to be recorded in writing. Clause 6 of
the R&P Regulations governs the procedure of filling up the vacancies by direct
recruitment. As per Clause 6(12)(c) of the R&P Regulations, priority will be given to
contingent casual labourers. Since the appellants are not appointed as regular
employees in accordance with the rules and regulations governing the service
conditions of the employees of ONGC, the appellants are not entitled for regularisation.
On the above grounds, the respondents prayed for dismissal of the Writ Petition.
10. Both the Writ Petitions were dismissed by separate orders, dated 04.01.2010
and 23.02.2010. There are three Writ Appeals because out of the 28 petitioners in
W.P. No. 7906 of 1999, all of them have not filed a single Writ Appeal, but have
preferred two Writ Appeals namely, W.A. Nos. 299 & 1473 of 2010.
11. Mr. T.R. Rajagopalan, learned Senior counsel appearing for the appellants and
Mr. V. Ajoy Khose reiterated the factual averments set out above and submitted that
the legal issue involved in this case is squarely covered by the decision of the Hon'ble
Supreme Court in the case relating to the respondent corporation and pertaining to
employees similarly placed like that of the appellants. The said decision in the case of
ONGC v. Petroleum Coal Labour Union, reported in (2015) 6 SCC 494, (hereinafter
referred to as ‘PCLU case’) squarely covers the issue. In this regard, the learned Senior
counsel referred to the paragraphs 28, 36 & 37 of the judgment. Therefore, it is the
submission on behalf of the appellant, the issue having been already decided by the
Hon'ble Supreme Court, the necessity of approaching the Labour Court for relief does
not arise and the appellants are entitled to the relief prayed for. The learned Senior
counsel submitted that though the appellants were not parties to the award passed by
the Industrial Tribunal in I.D. No. 66 of 1991, which was affirmed by the Hon'ble
Supreme Court in the case of PCLU (supra) in the light of Section 18(3)(d) of the
Industrial Disputes Act (I.D. Act), all workmen who are employed in the establishment
or subsequently become employed in that said establishment, would be bound by the
award made by the Industrial Tribunal as the management as also the workmen were
parties to the award and the respondent cannot state that the award was not binding
on them only because they were not parties. In support of such contentions, reliance
was placed on the decisions of the Hon'ble Supreme Court in the case of Punjab
National Bank v. Manjeet Singh reported in (2006) 8 SCC 647.
12. Mr. V. Ajoy Khose, learned counsel appearing for the appellants submitted that
out of 28 Petitioners in W.P. No. 7906 of 1999, 16 have filed W.A. No. 299 of 2010 and
the remaining Petitioners have filed W.A. No. 1473 of 2010. The appellants are
employed by ONGC both in Chennai and Karaikal Region as Security Guards and
Security Supervisors. The appellants are qualified and they have passed 8th standard
and some of them have higher qualification except one person as held by the Tribunal
in the earlier case as per the recruitment Rule, which was in force at the time of their
appointments. Further it is submitted that in terms of the order passed by the
respondent, dated 02.09.2010, there are 68 vacancies/sanctioned posts in Chennai, so
as to regularise all the appellants in the three Writ Appeals. It is further submitted
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that the only impediment pointed out by the respondent to term the appointments of
the appellants as illegal is that they were not appointed through the employment
exchange. Referring to the decision of the Division Bench of this Court in the case of
The School Committee, Tilak Vidya Higher Secondary School v. District Educational
Officer, reported in 1991-1-TLNJ-1, it is submitted that non-sponsorship from the
employment exchange cannot be termed to be illegal. It is further submitted that at
the most the appointments of the appellants could be termed as irregular
appointments and in terms of the decision in Uma Devi (supra), they are entitled to
regularisation since they have been directly employed for about 27 years i.e., from
1988. Therefore, it is submitted that the main part of the decision in Uma Devi
(supra), is not applicable to the appellants as their appointments are not illegal.
13. Further, it is submitted that the same contention was considered and rejected
by the Hon'ble Supreme Court in the case of PCLU (supra), and the judgment is
binding on the respondent. It is further submitted that the respondent cannot take a
stand that regularising the appellants would be contrary to the judgments in Uma Devi
and Uma Rani (supra), when they have accepted the judgment in PCLU (supra), and
the respondent cannot be selective and grant regularisation to one set of workmen and
deny the same to the others, who are similarly placed and this would arbitrary and
discriminatory. In support of such contention, reliance has been placed on the
decisions of the Hon'ble Supreme Court in the case of Indira Paul Yadava v. UOI
reported in (1985) 2 SCC 648, and Harinanthan Prasad v. Food Corporation of India,
reported in (2014) 7 SCC 190. Referring to paragraph 39 in Harinanthan Prasad
(supra), it is submitted that when there is unfair labour practice, the Labour Court or
Tribunal can grant relief of regularisation and wherever it is found that similarly
situated workmen are regularised by the employer themselves by a scheme or
otherwise and the workmen, who approached the Tribunal or Labour Court are similarly
placed to them, direction for regularisation in such case would be legally justified and
otherwise non-regularisation of such left out worker itself would amount to invidious
discrimination qua them in such cases and it would be violative of Article 14 of the
Constitution. Therefore, it is submitted that the respondent cannot apply Uma Devi
and Uma Rani (supra), selectively and deny benefit to the appellants. Further, by
referring to paragraph 5 of Indira Paul Yadava (supra), it is submitted that the Hon'ble
Supreme Court held that those who do not come to Court need not be at a
comparative disadvantage to those, who rush to Court and they are entitled for similar
treatment. Thus, the scheme of regularisation framed by the Tribunal having been
upheld by this Court and the Hon'ble Supreme Court and implemented by the
respondent should also be extended to the appellants as they are similarly placed. It is
further submitted that there is no factual dispute between the workmen, who were
covered in the award of the Industrial Tribunal which has been upheld by the Hon'ble
Supreme Court and the appellants and by applying the said decision, the appellants
are to be regularised and there is no need to drive the appellants to take recourse to
alternate remedy.
14. It is further submitted that the respondent cannot contend that Standing
Orders are not applicable to them, as they are working in Chennai, when their own
Standing Order says it is applicable to all Units including their Chennai Units and
incorporating a clause in their term based appointment order stating that Standing
Order will not apply is only to deny them the benefit of regularisation. It is further
submitted that the appellants are workmen as defined under Section 2(s) of the I.D.
Act and when this fact was not disputed, the appellants would automatically be
workmen within the meaning of Section 2(i) of the Industrial Employment (Standing
Orders) Act and therefore, they are covered by the Standing Orders of the respondent
and entitled to the benefit of regularisation under clause 2(1)(ii) of the Standing
Orders of the respondent, which was extended to the other 240 Security Guards. It is
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further submitted that even assuming without admitting the Standing Orders are not
applicable to the appellants, the relief given to 240 Security Guards in the other case
can be extended, since the employment of the appellants for more than 24 years and
to retain them as temporary term based employees is an unfair labour practice. It is
further submitted that all the three enactments namely, the I.D. Act, Standing Orders
Act and the Tamil Nadu Act 46 of 81, does not make any distinction in the definition of
workmen based on mode of payment, status, mode of recruitment. When the workmen
in private employment are entitled to the benefits of permanence without reference to
mode or method of employment, the same would apply to the respondent, a private
sector undertaking. In support of such contention, reliance has been placed on the
decision of the Hon'ble Supreme Court in the case of Ajay Pal Singh v. Haryana
Warehousing Corporation reported in (2015) 6 SCC 321, and the decision of a Division
Bench of this Court in the case of Superintending Engineer, Nagapattinam Electricity
Distribution Circle v. Inspector of Labour reported in 2009-4-MLJ-472, and the decision
of the Division Bench in the case of R. Lakshmi v. Chief Engineer (Personnel), TNEB,
reported in 2012-6-MLJ-480. It is further submitted that the appellants do not rely
upon the judgment in Air India Statutory Corporation, (supra), and hence overruling of
the decision in the case of Steel Authority (supra), will not affect the right of the
appellants to get permanence on par with the other similarly placed persons.
15. Further, it is submitted that there is no conflict between the three enactments
and the Constitution of India in providing permanence/regularisation. Further, the
validity of Tamil Nadu Act 46 of 81 has been upheld by the Hon'ble Supreme Court in
the case of State of Tamil Nadu v. Nellai Cotton Mills Ltd., reported in (1990) 2 SCC
518, referring to the decision of the Hon'ble Supreme Court in the case of General
Manager, ONGC v. ONGC Contractual Workers Union, reported in 2008-2-LLJ-1071
(SC), it is submitted that the Hon'ble Supreme Court in the said case held that the the
employees were direct employees of ONGC and not contract labourers and entitled for
regularisation without reference to Uma Devi (supra). Thus, it is submitted that the
decision in the case of Uma Devi (supra), cannot be taken as euclid's formula in every
case. It is further submitted that there are no disputed questions of fact requiring any
factual adjudication and the present case requires only application of the three
enactments based on the admitted facts. Therefore, the appellants need not be driven
to seek alternate remedy as contended by the respondent particularly after about 16
years after filing of the Writ Petition and the appellants having crossed the age of 50
years or more. Reliance was also placed on the decision in the case of Manager ONGC
v. G. Radhakrishnan reported in 2005-2-LLJ-881, where similarly placed Security
Supervisors was held to have acquired a valuable right and should be treated as a
regular employee and entitled to continue upto 60 years as in cases of regular
employees of the respondent. Further, it is submitted that alternate remedy is not a
bar to entertain a Writ Petition, since it is only a Rule of continence and not a Rule of
law. To support such contention, reliance has been made to the decision of this Court
in Arasu Viraivu Pokkuvarathu Oozhiyar Sangam v. State Express Transport
Corporation Ltd., Chennai, reported in 2006-3-LLJ-245, it is submitted that the High
Court under Article 226 and the Hon'ble Supreme Court under Article 136 can grant
the same relief as the one which was granted by the Labour Court and reliance has
been placed on the decision of the Hon'ble Supreme Court in the case of Gujarat
Steels Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, reported in 1980-1-LLJ-137.
It is submitted that though the Hon'ble Supreme Court in the case of Official
Liquidator v. Dayananth (supra), held that the judgment in the case of U.P. SEB v.
Pooran Chandra Pandey, reported in (2007) 11 SCC 92, is contrary to the Constitution
Bench judgment in Uma Devi (supra), the said decision does not deal with the power
of the Labour Court and Tribunal to grant the relief of regularisation particularly in case
of unfair labour practice. Hence, it is submitted that the judgments which have been
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referred to by the Hon'ble Supreme Court in the case of PCLU (supra), regarding the
power of the Labour Courts and Tribunals to grant the relief of regularisation alone will
apply to the case of the appellants and Uma Devi & Uma Rani (supra) have no
application to their case.
16. Mr. G. Masilamani, learned Senior counsel appearing for the respondent
submitted that the Writ Petitions were filed by the appellants without approaching the
Industrial Tribunal and there is no order of reference to decide a dispute and the Writ
Petitions were filed after delay of nearly nine years. The Writ Petitions were dismissed
by relying upon the decision of the Hon'ble Supreme Court in the case of State of
Karnataka v. Uma Devi reported in (2006) 4 SCC 1, and four of the
petitioners/appellants did not file any Writ Appeal against the said order. Reliance has
been placed on the decisions of the Hon'ble Supreme Court in the cases of ACC Ltd. v.
Their Workmen, reported in AIR 1961 SC 777, Ram Nagar Cane and Sugar Company
v. Jatin reported in AIR 60 SC 1012 and the decision in the case of BNC Mills
Employees Union v. Commissioner of Labour, reported in 1964-2-MLJ-357.
17. With regard to W.P. No. 870 of 2004, two of the petitioners withdrew their Writ
Petitions and as such were not parties to W.A. No. 1289 of 2010. It is further
submitted that the Writ Petition was filed based on the decision of the Hon'ble
Supreme Court in the case of Air India Statutory Corporation, (supra), and the said
decision has been overruled by the Constitution Bench of the Hon'ble Supreme Court
in the case of Steel Authority of India, (supra). Further, it is submitted that the
contention that the appellants are entitled to rely upon the provisions of the Act is not
tenable, since the Hon'ble Supreme Court in the case of Uma Rani v. Registrar of Co-
operatives reported in (2004) 7 SCC 112, held that the said enactment cannot be
pressed into service by those who got appointment dehorse the Rules. Relying upon
paragraph 34 of the decision in the case of Uma Devi (supra), it is submitted that
when appointments were made in contravention of mandatory provisions of the Act
and statutory Rules framed thereunder and by ignoring essential qualifications, the
appointments would be illegal and cannot be regularised by the State and that
regularisation is not and cannot be a mode of recruitment by any State under Article
12 of the Constitution and regularisation cannot give permanence to the employee
whose services are ad hoc in nature and merely because some persons are working for
a long time would not mean that they acquired a right for regularisation. It is further
submitted that the continuation of the appellants' employment is a litigious
employment which has been deprecated by the Hon'ble Supreme Court in the case of
Uma Devi (supra).
18. It is further submitted that in all the three Writ Appeals' arguments were
advanced only by placing reliance on the decision of the two Judges Bench of the
Hon'ble Supreme Court in the case of PCLU case. It is submitted that the said
judgment is not applicable to the facts of the case. Elaborating on the said
submission, it is stated that the question before the Hon'ble Supreme Court was
whether the award passed by the Industrial Tribunal can be interfered or not? The
Hon'ble Supreme Court relied upon an earlier decision in the case of Bharat Bank Ltd.
v. Employees reported in 1950 SCC 470 : AIR 1950 SC 188, wherein it was held that
the adjudication of the Tribunal is an extended form of collective bargaining and is
more akin to administrative than to judicial function and that the Tribunal can confer
the rights and privileges on either party, which it considers reasonable and proper,
though they may not be within the terms of any existing agreement. It is submitted
that in the cases on hand, there is no award passed in favour of the appellants and the
decision in the case of PCLU (supra), is not applicable to the present cases, more
particularly when both this Court as well as the Hon'ble Supreme Court decided that
there was no error in the award passed by the Industrial Tribunal. It is further
submitted that this Court is bound by the decision of the Constitution Bench of the
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Hon'ble Supreme Court in the case of Uma Devi (supra), wherein it was clarified that
those decisions, which run counter to the principles settled in Uma Devi's case or in
which directions running counter to the decision in Uma Devi (supra), will stand
denuded of their status as precedents. Therefore, a judgment contrary to the law laid
down in the case of Uma Devi (supra), cannot be considered as a binding precedent.
On facts, it is submitted that the appellants are working in the administrative office,
residence at Chennai and stores at Kumbakonam as Security Guards and not working
in an industrial establishment, unlike those concerned in the decision of the Hon'ble
Supreme Court in the case of PCLU (supra), since those employees were working in
Karaikal asset of ONGC which is an industrial establishment and therefore, the
Industrial Standing Orders shall not apply to the appellants which was strongly relied
upon in PCLU case.
19. It is further submitted that the two Judges Bench decision of the Hon'ble
Supreme Court in the case of PCLU (supra), is contrary to Uma Rani (supra), Uma Devi
(supra), and in the case of Official Liquidator v. Dayanand, reported in (2008) 10 SCC
1, (three Judges Bench) and hence, the decision can at the most be considered as a
judgment on facts of the said case. It is further submitted that Uma Devi's case, was
decided on the premise of equality of opportunity and non-discrimination under Article
14 of the Constitution of India. However, in PCLU case, a distinction is sought to be
made to the effect that employment in industrial establishment shall not be governed
by Uma Devi's case. Therefore, it is submitted that Article 14 shall apply to all citizens
and hence employment in Industrial Establishment cannot be carved outside Article
14 and no law including the I.D. Act, cannot be held to be outside the sweep of Article
14 and the Industrial Tribunal is also amenable to Article 14. It is further submitted
that the decision in the case of PCLU (supra), should be read as obiter and not as a
binding precedent. In support of such contention, reliance has been placed on the
decision in the case of Official Liquidator (supra).
20. The learned Senior counsel also referred to the decision of the Hon'ble Supreme
Court in the case of Indian Drugs & Pharmaceuticals Ltd. v. Workmen, reported in
(2007) 1 SCC 408, and the said decision has dealt with all the contentions raised with
regard to the regularisation. Therefore, it is submitted that the relief claimed by the
appellants in the Writ Petition is clearly violative of Article 14 and 16 of the
Constitution of India and no such relief can be granted in violation of the
Constitutional provisions and the appeals are liable to be dismissed.
21. We have elaborately heard the learned counsels appearing for the parties and
have carefully perused the materials placed on record and the decisions cited at the
bar.
22. We have set out the factual matrix in the opening part of this judgment and we
find that some of the facts are admitted and what would be relevant is that all the
appellants were engaged by the respondent Corporation as term based employees
after the contract labour system was abolished, wherein the services of the appellants
were utilized through a labour contract society. One more aspect which is clear is that
none of the appellants were subjected to a process of recruitment conducted by the
respondent for the post, which they hold at present. The respondent organisation is a
Government of India enterprise, which has framed its own service Rules and there are
also certified Standing Orders which bind the Industrial Establishments of the
respondent Corporation. Though several contentions were raised in the Writ Petition, in
these appeals the learned counsel appearing for the appellants after referring to the
factual details rested their entire arguments on the decision of the Hon'ble Supreme
Court in the case of PCLU (supra). The other contentions raised are supplemental to
this contention. It is their contention that the decision cover the cases on hand and
there is no difference or distinction between the employees who were subject matter
of said litigation and the appellants.
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23. Before going into the factual aspect, which was dealt with by the Hon'ble
Supreme Court in the case of PCLU (supra), we may note the submission of the
learned Senior counsel appearing for the respondent that the decision should be read
as obiter and not as a binding precedent and at best, it could be considered a
judgment on facts of the said case.
24. One of the contentions raised by the appellants at the time of filing the Writ
Petition is that their services are to be regularised following the decision in the case of
Air India Statutory Corporation v. United Labour Union, (supra). This contention has to
necessarily fail in the light of the fact that the said decision was overruled by the
Constitution Bench of the Hon'ble Supreme Court in the case of Steel Authority of
India, (supra), wherein the Hon'ble Supreme Court held as follows:-
125(4). We overrule the judgment of this Court in Air India case [((1997) 9 SCC
377], prospectively and declare that any direction issued by any industrial
adjudicator/any court including the High Court, for absorption of contract labour
following the judgment in Air India case [((1997) 9 SCC 377], shall hold good and
that the same shall not be set aside, altered or modified on the basis of this
judgment in cases where such a direction has been given effect to and it has
become final.
25. Mr. V. Ajoy Khose, learned counsel appearing for the appellants concedes to the
point and submits that they do not rely upon the judgment in Air India Statutory
Corporation (supra).
26. In Uma Rani v. Registrar of Co-operatives (supra), the primal question decided
was whether the State has requisite authority to direct regularisation of the services of
the employees of co-operative society by reason of a Government Order by which the
Government of Tamil Nadu sought to regularise the appointments made in Co-
operative Societies without notifying the employment exchange in respect of those
employees who had completed 480 days of service in two years purported to be in
terms of the Act. The said question was answered on the following terms:-
39. Regularisation, in our considered opinion, is not and cannot be the mode of
recruitment by any “State” within the meaning of Article 12 of the Constitution of
India or any body or authority governed by a statutory Act or the Rules framed
thereunder. It is also now well settled that an appointment made in violation of the
mandatory provisions of the statute and in particular, ignoring the minimum
educational qualification and other essential qualification would be wholly illegal.
Such illegality cannot be cured by taking recourse to regularisation. (See State of
H.P. v. Suresh Kumar Verma reported in (1996) 7 SCC 562)
40. It is equally well settled that those who come by back door should go
through that door. (See State of U.P. v. U.P. State Law Officers Assn., reported in
(1994) 2 SCC 204)
41. Regularisation furthermore cannot give permanence to an employee whose
services are ad hoc in nature.
42. The question came up for consideration before this Court as far back in 1967
in State of Mysore v. S.V. Narayanappa reported in (1967) 1 SCR 128, wherein this
Court observed:
“Before we proceed to consider the construction placed by the High Court on
the provisions of the said order we may mention that in the High Court both the
parties appear to have proceeded on an assumption that regularisation meant
permanence. Consequently it was never contended before the High Court that
the effect of the application of the said order would mean only regularising the
appointment and no more and that regularisation would not mean that the
appointment would have to be considered to be permanent as an appointment to
be permanent would still require confirmation. It seems that on account of this
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assumption on the part of both the parties the High Court equated regularisation
with permanence.”
43. This Court yet again in R.N. Nanjundappa v. T. Thimmiah [(1972) 2 SCR
799], it was held:
“If the appointment itself is in infraction of the rules or if it is in violation of
the provisions of the Constitution illegality cannot be regularised. Ratification or
regularisation is possible of an act which is within the power and province of the
authority but there has been some non-compliance with procedure or manner
which does not go to the root of the appointment. Regularisation cannot be said
to be a mode of recruitment. To accede to such a proposition would be to
introduce a new head of appointment in defiance of rules or it may have the
effect of setting at naught the rules.”
44. The said decisions of this Court have received approval of a three-Judge
Bench of this Court in B.N. Nagarajan v. State of Karnataka wherein it was held that
the procedures for appointment as contained in the Rules framed under Article 309
of the Constitution of India must be complied with.
45. No regularisation is, thus, permissible in exercise of the statutory power
conferred under Article 162 of the Constitution if the appointments have been made
in contravention of the statutory rules.
27. In terms of the above decision, an appointment made in violation of the
mandatory provisions of the statute and in particular ignoring the minimum
educational qualification and other essential qualification would be wholly illegal and
such illegality cannot be cured by taking recourse to regularisation; Regularisation
cannot give permanence to an employee whose services are ad hoc in nature;
procedures for appointment as contained in the Rules framed under Article 309 of the
Constitution of India must be complied with; no regularisation is permissible in
exercise of statutory power conferred under Article 162 of the Constitution, if the
appointments have been made in contravention of the statutory rules.
28. The decision of the Hon'ble Supreme Court in the case of State of Karnataka v.
Uma Devi, (supra), held as follows:-
In A. Umarani v. Registrar, Coop. Societies a three-Judge Bench made a survey
of the authorities and held that when appointments were made in contravention of
mandatory provisions of the Act and statutory rules framed thereunder and by
ignoring essential qualifications, the appointments would be illegal and cannot be
regularised by the State. The State could not invoke its power under Article 162 of
the Constitution to regularise such appointments. This Court also held that
regularisation is not and cannot be a mode of recruitment by any State within the
meaning of Article 12 of the Constitution or any body or authority governed by a
statutory Act or the rules framed thereunder. Regularisation furthermore cannot
give permanence to an employee whose services are ad hoc in nature. It was also
held that the fact that some persons had been working for a long time would not
mean that they had acquired a right for regularisation.
29. The learned Senior counsel appearing for the respondents submitted that the
decision of the Hon'ble Supreme Court in the case of PCLU (supra), should be read as
obiter and not a binding precedent in the light of the decisions in the cases of Uma
Rani (supra) and Uma Devi (supra), at the most the decision could be considered as a
judgment on facts of the said case. This submission is emphasised by referring to the
observations made by the Hon'ble Supreme Court in the case of Uma Devi (supra), in
paragraph 54, wherein it was held that those decisions which run counter to the
principles settled in the said case or in which, directions running counter to what has
been held therein, will stand denuded of their status as precedent. The observations
made by the Hon'ble Supreme Court in the case of Official Liquidator (supra), is also
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pressed into service to support the contention that the decision in PCLU case is obiter.
30. The learned Senior counsel appearing for the appellants heavily relied upon the
decision in the case of PCLU (supra), contending that the employees who were parties
to the said litigation are similarly placed as that of the appellants herein and those
employees whose cases were subject matter of consideration in the said decision
where also initially engaged through the labour co-operative societies and thereafter,
they were brought under the respondent as term based employees.
31. In the light of the above submissions two questions would fall for consideration
firstly whether the case of PCLU (supra), is identical to that of the cases of the
appellants herein and the cases are covered by the said decision. If the answer to this
question is in affirmative, then we would be required to answer the second question as
to whether the decision in PCLU (supra), is a binding precedent or to be read as obiter
or at the most considered as the judgment of the facts of the case. Thus, the necessity
to decide the second question would largely depend upon the answer or conclusion
which we may arrive at on the first question.
32. The workmen whose case was canvassed by their labour union namely PCLU,
were employed by the respondent Corporation as Security Personnel for their project
and initially they were employed as Security Guards and Security Supervisors through
contractors. Consequent upon abolition of the contract labour by notification, dated
08.12.1976 issued by the Government of India under Section 10(1) of the Contract
Labour (Abolition and Regulation) Act, 1970, abolishing contract labour for watch and
ward, dusting and cleaning jobs in the respondent Corporation, the workmen
concerned were employed as per the settlement arrived at between the Trade Union
and the Management of the respondent under Section 18(1) of the I.D., Act, under
which it was agreed to form a Co-operative Society for the welfare of the erstwhile
contract workmen and their services be utilised by the respondent Corporation through
the Co-operative Society to meet its requirements for the time period for which
required, thus dispensing intermediary contractors. Decision was taken by the
respondent on 24.11.1982, to entrust security work to CISF to protect their
installations subject to sanction by the Government of India and this policy decision
taken by the respondent corporation was sanctioned by the President of India on
16.12.1985 for creation of posts for security coverage of the respondent corporation.
After induction of the CISF personnel into security force of the respondent Corporation,
the contract employees were issued memorandum of appointment directly to each one
of the workmen concerned appointing them to the posts of ‘Watch and Ward Security’
on term basis from 13.1.1988 to 29.2.1988 and also on the condition that the Certified
Standing Orders for Contingent Employees of ONGC will not apply to them. After
completion of the above mentioned term, the workmen concerned were continued by
the respondent Corporation in their respective posts as a stop gap measure without
formal written orders, as a result of which, the workmen concerned who were engaged
through contractors and those who were members of the Co-operative Society became
employees of the respondent Corporation on temporary basis. Those workmen raised
an industrial dispute claiming regularisation of their services in the respondent
Corporation and on 10.10.1991, the Central Government in exercise of its power under
Section 10 of the I.D. Act referred the dispute to the Industrial Tribunal, Chennai to
adjudicate the dispute on the following two questions:-
“(i) whether the management of ONGC is justified in not regularising the workmen
in the instant dispute, and, if not, to what relief the workmen are entitled to?
(ii) whether the management of ONGC is justified in not paying equal wages to the
workmen in the instant dispute on par with that of the regular workmen and, if
not, to what relief the workmen are entitled to?”
33. Before the Industrial Tribunal, the Trade Union filed a memo stating that
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question No. (ii) above had been settled out of Court and no further adjudication was
required by the Tribunal. The Tribunal proceeded to adjudicate question No. (i) on the
facts and circumstances and evidence placed on record and passed an award dated
26.05.1999, directing the respondent Corporation to regularise the services of those
workmen by relying on the legal principles laid down by the Hon'ble Supreme Court in
the case of Air India Statutory Corporation, (supra), and further held that the workmen
concerned were entitled for regularisation of their services, since they had completed
480 days of work as required under the Tamil Nadu Industrial Establishments
(Conferment of Permanent Status to Workmen Act, 1981. Aggrieved by the award of
the Tribunal, the respondent Corporation filed a Writ Petition before this Court in W.P.
No. 1846 of 2000, raising several contentions and placing reliance on the decision of
the Hon'ble Supreme Court in the case of Uma Devi (supra). The Workmen submitted
that the dispute falls within the jurisdiction of the Industrial Tribunal under the
provisions of the I.D. Act and the Tribunal had sufficient jurisdiction to adjudicate the
dispute referred to it and to continue their services on temporary basis from 1988 is
an unfair labour practice on the part of the respondent Corporation. Therefore, it was
contended that the Industrial Tribunal was right in directing the workmen concerned
to be regularised and the law laid down in the case of Uma Devi (supra) had no
application to the cases of industrial adjudication. The learned Single Judge who heard
the Writ Petition on appreciation of the facts, circumstances and the legal contentions
urged by both parties, held that the dispute between the parties regarding non-
regularisation of the workmen concerned falls within the scope of industrial dispute as
defined under Section 2(k) of the I.D. Act. Consequently, the Writ Petition was
dismissed by judgment and order dated 04.01.2011. Aggrieved by the same, the
respondent Corporation filed Writ Appeal before the Division Bench of this Court in
W.A. No. 1006 of 2011. The Division Bench after considering the facts, circumstances
and nature of the evidence on record, which was placed before the Tribunal and
appreciated by the learned Single Judge, dismissed the appeal holding that the
appointment of those workmen cannot be termed as illegal appointment, but was only
an irregular appointment and therefore, entitled for regularisation in their services
having been employed on temporary basis and having completed more than 240 days
in the calender year subsequent to 13.01.1988. Challenging the said order, the
respondent Corporation preferred appeal before the Hon'ble Supreme Court which
ultimately lead to the decision in the case of PCLU (supra). From the above facts, it is
clear that the workmen therein raised an industrial dispute in 1991. The Central
Government on being satisfied that there exists a dispute, exercised its power under
Section 10 of the I.D. Act and referred the matter to the Industrial Tribunal for
adjudication. Thereupon the Tribunal adjudicated the dispute considered the facts of
the case, the circumstances and the evidence on record and passed the award on
26.05.1999.
34. It is not in dispute that the appellants herein did not raise a dispute along with
the other workmen who raised the dispute as early as in the year 1991. It is only in
April 1999, some of the appellants approached this Court and filed the Writ Petition in
W.P. No. 7906 of 1999, the other Writ Petition in W.P. No. 870 of 2004, was filed only
during January 2004, at which point of time, the Writ Petition filed by the respondent
Corporation challenging the award of the Tribunal in I.D. No. 66 of 1991, was pending
before this Court. The delay of nine years in approaching this Court for the first time
i.e., during 1999, by one set of Appellants remain unexplained. Equally the delay in
approaching this Court while filing the second Writ Petition in 2004, has also not been
explained.
35. The Hon'ble Supreme Court in the case of PCLU (supra), framed two questions
for consideration namely,
(i) whether jurisdiction of the Tribunal to direct the Corporation to regularise the
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services of the workmen concerned in the posts is valid and legal?

(ii) whether the appointment of the workmen concerned in the services of the
Corporation is irregular or illegal?
36. Thus, we find both these questions, which were taken up for consideration by
the Hon'ble Supreme Court revolve on the facts of the said case. In other words, the
Hon'ble Supreme Court examined as to whether the Industrial Tribunal on facts,
properly adjudicated the case and whether the ultimate conclusion culminating in the
award dated 26.05.1999, was just and proper. The evidence placed before the Tribunal
was taken note of and the Hon'ble Supreme Court has given reasons to come to the
conclusion that the award passed by the Industrial Tribunal as confirmed by this Court
is just and proper and the reasons recorded in the judgment of this Court are legal and
valid. Further, the Hon'ble Supreme Court proceeded to issue certain directions as the
industrial dispute between the parties has been litigated for 25 years. Therefore, the
Hon'ble Supreme Court considering the facts of the said case examined the
correctness of the decision of the Industrial Tribunal and the decision of the Industrial
Tribunal was based on the facts and the evidence placed before it.
37. On a perusal of the award dated 26.05.1999, in I.D. No. 66 of 1991, we find
that witnesses were examined both on the side of the workmen as well as the
management and the workmen exhibited 25 documents and on the side of the
management 12 documents were exhibited. On appreciation of the entire facts, the
award came to be passed. In such circumstances, we have very little doubt in our
mind that the appellants herein cannot bye-pass the procedure, which they ought to
have followed as that of the workmen in the said case and straightaway could not have
approached this Court and sought regularisation, which is being opposed on several
grounds and also on the ground of delay and latches.
38. In the preceding paragraphs, we have noted the submissions of the learned
counsel appearing for the appellants contending that their appointments are not
illegal, but may amount to be an irregular appointment and merely because their
names were not sponsored by the employment exchange cannot be a reason to term
their employment as illegal. Based on such contention, it is submitted that the main
part of the judgment in the case of Uma Devi (supra) is not applicable to their cases.
We are unable to accept the said contention, since the proper method to understand
and interpret any judgment is to read the judgment as a whole. Whether an
appointment was irregular or illegal could be decided based on the facts of each case.
A distinction is sought to be drawn by the respondent regarding the nature of
appointment of the appellants. It is their contention that the appellants are not
workmen covered by the Standing Order of the respondent. The appellants do not
dispute that their orders of appointment as term based employees specifically states
that Standing Orders are not applicable to them. This is sought to be got over by
contending that the respondent inserted such a condition in the offer of appointment
only with a view to deny the benefit of permanence. Another contention raised by the
respondent is that the appellants never worked in an industrial establishment for
being entitled to the benefit of the statutes, as they were employed in the Offices and
other places in and around Chennai. In the background of these facts, it has to be
seen as to whether this Court exercising powers under Article 226 could adjudicate
such disputes as done by the Industrial Tribunal in the case of PCLU (supra), where
oral and documentary evidence were placed before the Tribunal. The definite and only
answer shall be in the negative, as these aspects require examination of facts coupled
with oral and documentary evidence. Therefore, we cannot give a finding as to whether
the appointments of the appellants were irregular and not illegal solely based on the
decision in the case of PCLU (supra), which was rendered after the Tribunal recorded a
finding of fact on such issue.
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39. The appellants have claimed that they are continuing as term based employees
for over two decades and most of them have crossed the age of 50 years and it would
be harsh to drive them to resort to alternate remedy. At the first blush, the argument
appears to be convincing, but we cannot ignore the objection raised by the respondent
stating that the appellants for the first time approached this Court only during 1999
and there was a delay of more than 9 years. Another set of appellants came much
later when the award was to be pronounced by the Tribunal. This factor also requires
to be considered, as to whether this delay by itself would disentitle the appellants to
any relief, this again is a question to be adjudicated and not in a summary manner
under Article 226. The Hon'ble Supreme Court in the case of Harinanthan Prasad
(supra), pointed out that in the absence of any unfair labour practice, the Labour Court
would not give direction for regularisation only because a worker has continued as
daily wage worker/adhoc/temporary worker for number of years and giving direction to
regularise such a person only on the basis of number of years put in by such a worker
as a daily wager, etc., may amount to back door entry into service which is an
anathema to Article 14 of the Constitution. Further, such a direction would not be
given when the worker concerned does not meet the eligibility requirement of the post
in question as per the Recruitment Rules. It was further pointed out that wherever it is
found that similarly situated workmen are regularised by the employer itself under
some schemes and workmen who have approached the Labour Court are on par with
them, direction of regularisation in such cases may be legally justified.
40. Thus, the question would be whether the appellants are back door entrants,
whether they fulfilled the eligibility requirement of the post as per the Recruitment
Rules of the respondent and whether they are identically and similarly placed as that
of the workmen, who were granted relief by the Industrial Tribunal or questions of fact
to be determined not for the High Court, but by the Tribunal. It is to be noted that the
decision in the case of Harinanthan Prasad (supra), arose out of an award passed by
the Central Government Industrial Tribunal.
41. It is reiterated by the learned counsel appearing for the appellants that all the
appellants are entitled to the relief granted to the 240 Security Guards, who were
covered by the award of the Industrial Tribunal, which was confirmed by the Hon'ble
Supreme Court. We do not propose to convert our jurisdiction into one that could be
exercised by the Tribunal to render a factual finding as regards the similarity of the
terms and conditions of employment. This exercise has to be necessarily done by a
forum created under the Industrial Disputes Act which remedy those 240 Security
Guards availed of at the earliest point of time. They raised an industrial dispute,
conciliation having been failed, failure report was considered by the Government and
the Government on being satisfied there exists an industrial tribunal made an order of
reference to the Tribunal to adjudicate the same.
42. As pointed out earlier, two issues were referred for adjudication of which one
issue was settled out of Court and a memorandum to the said effect was recorded by
the Tribunal. The sole issue with regard to the right of regularisation was adjudicated
by the Tribunal both on facts as well as on law and an award was passed. Therefore,
the appellants have to necessarily avail the remedy provided under the Act not only for
seeking regularisation of the services, but also to establish that there is no difference
between them and the 240 Security Guards, who were granted relief by the Tribunal in
the earlier litigation.
43. The decision in the case of Gujarat Steel Tubes (supra), arose out of an award
passed by the Labour Court wherein the workmen were discharge simplicitor on the
ground that their strike was illegal and unjustified. While testing the correctness of the
award, one of the questions was regarding the “sweep” of Article 226 of the
Constitution in which a contention was raised that the High Court could not under
Article 226 of the Constitution direct reinstatement, and even if it is felt that the
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Arbitrator had gone wrong in refusing reinstatement, the Court could only demolish
the order and direct the Arbitrator to reconsider the issue. It was further contended
that what belonged as a discretionary power to a Tribunal or other adjudicatory body
could not be wrested by the Writ Court. Thus, it was argued that relief of
reinstatement could be granted by the Arbitrator, but not the High Court. While
considering the said submission, the Hon'ble Supreme Court pointed out that without
examining the correctness of the traditional limitations woven around high prerogative
writs, they disregard it because while Article 226 has been inspired by the royal writs,
its sweep and scope exceed high-bound British processes of yore. So broad are the
expressive expressions designedly used in Article 226 that any order which should
have been made by the lower authority could be made by the High Court.
44. In the light of the above, it is doubtful as to how the observations made in the
said decision would advance the case of the petitioner, when the Writ Petition was not
one challenging the award of the Tribunal, but for issuance of a Writ of Mandamus to
direct the respondents to regularise their services. One more factor, which we should
note is that on the date when the first Writ Petition was filed, the dispute raised by the
other set of workmen was on the verge of being finally disposed of. The first Writ
Petition being W.P. No. 7906 of 1999, was filed during April/May, 1999, the exact date
of filing is not readily available, but the affidavit filed in support of Writ Petition is
dated 29.04.1999, the award in I.D. No. 66 of 1991, was passed on 26.05.1999. Thus
presumably the appellants were inspired to approach this Court directly in the light of
the proceedings before the Industrial Tribunal which had by then culminated. The
prayer in the Writ Petition was not to extend the benefit of the award of the Tribunal to
them, but for a positive direction to direct regularisation. This is all the more a reason
why this Court cannot entertain the Writ Petition and embark upon an exercise and
convert itself into an adjudicator and exercise power, exerciseable by the Tribunal. In
the light of the above conclusion, there would be no necessity to refer to the other
decisions cited at the bar.
45. It was argued by the learned Senior counsel that in terms of 18(3)(d) of the
I.D. Act, the award passed by the Tribunal binds all parties in the industrial dispute
and all persons who were employed in the establishment or part of the establishment
and therefore, the benefit would automatically accrue to the appellants. Though couple
of decisions were referred on this point, it would suffice to take note of the decision in
the case of Ram Nagar Cane and Sugar Company v. Jatin, (supra). The question that
was decided by the Hon'ble Supreme Court was regarding the construction and effect
of the provisions of Section 22(1)(d) of the I.D. Act. The appellants therein was
declared as a public utility concern by a notification issued by the Government.
Majority of the workmen employed belonged to a particular union and a minority
belong to a rival union. The majority workers union presented a charter of demands to
the management and a similar charter of demand was also presented by the minority
workers union. The majority workers union served a notice of strike on the
management and a meeting was held before the Conciliation Officer which was
attended by the minority workers union also. Ultimately, the Conciliation Officer
submitted his failure report with regard to the Conciliation with the majority workers
union and the management arrived at a settlement with the minority union which was
recorded. Meanwhile, the majority workers union commenced strike and it resulted in
criminal prosecution being initiated and the workmen were acquitted of the criminal
charge. The management challenged the order of acquittal before the Calcutta High
Court which was dismissed holding that the strike was not illegal, agreeing with the
conclusion of the Trial Magistrate and on Special Leave, the only point which was
raised by the management before the Hon'ble Supreme Court is that in coming to the
conclusion that the strike in question was not illegal, the Courts below have
misconstrued the provision of 22(1)(d) of the I.D. Act. While considering such
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question, the Hon'ble Supreme Court considered the scope of Section 18(3)(d) and
held that the said provision makes it clear that where a party referred to in clauses (a)
or (b) is composed of workmen, all persons who were employed in the establishment
or part of the establishment, as the case may be, to which the dispute relates on the
date of the dispute and all persons, who subsequently, become employed in that
establishment or part, would be bound by the settlement. It was further pointed out
that in order to bind the workmen, it is not necessary to show that the said workmen
belong to the Union which was a party to the dispute before the Conciliator. The whole
policy of Section 18 is to give an extended operation to the settlement arrived at in
the course of Conciliation proceedings and that is the object with which the four
categories of persons bound by such settlement or specified in Section 18 sub-section
(3). In the said decision of the Hon'ble Supreme Court there was no dispute as to
whether the two sets of workmen, those, who had entered into a settlement with the
management and those who had gone on strike resulting in criminal prosecution being
initiated against them were similarly placed and while deciding the correctness of the
judgment of the Trial Magistrate acquitting the workmen of the criminal charge, the
Hon'ble Supreme Court considered the effect of the settlement between the
management and the minority employees union. However in the case on hand, the
fundamental issue would be whether the appellants are similarly placed to that of the
workmen, who have the benefit of the award of the Industrial Tribunal.
46. In the light of the submissions made on either side, as observed earlier we do
not propose to assume the role of an adjudicator and it is best left to the authority
under the Industrial Disputes Act to decide the said question on facts and based on
evidence available. Therefore, the contention advanced by the learned Senior counsel
by placing reliance on Section 8(3)(d) of the I.D. Act does not in any manner advance
the case of the appellants.
47. As pointed out by the Hon'ble Supreme Court in the case of Uma Devi (supra),
it would not be just and proper to pass an order in exercise of jurisdiction under Article
226 of the Constitution permitting those persons engaged, to be absorbed or to be
made permanent, based on their appointments or engagements. Further, it was held
that the High Court acting under Article 226 of the Constitution, should not ordinarily
issue directions for absorption, regularization, or permanent continuance unless the
recruitment itself was made regular and in terms of the constitutional scheme. Merely
because, an employee had continued under cover of an order of Court, which was
described as ‘litigious employment’, he would not be entitled to any right to be
absorbed or made permanent in service. Thus in our view, the appellants would not be
justified in seeking for issuance of a Writ of Mandamus to regularise their services.
48. In the light of the above discussion, we hold that the decision rendered by the
Hon'ble Supreme Court in the case of PCLU (supra), was rendered while testing the
correctness of the award passed by the Industrial Tribunal as affirmed by this Court.
Therefore, the said decision cannot ipso facto apply to these facts of these case and no
Writ of Mandamus, could be issued as prayed for by the appellants. Accordingly,
Question No. 1 framed by us is answered against the appellants. In the light of the
conclusion we have arrived at on Question No. 1, there would be no necessity to
decide the second question as to whether the decision in the case of PCLU (supra), is
obiter and not a binding precedent or to be considered as a judgment on the facts of
the case, as we have concluded that the decision was rendered while examining the
correctness of an award passed by the Industrial Tribunal which was based on facts
and circumstances and evidence placed before the Tribunal and not as one claimed by
the appellants herein.
49. In the result, the appellants have not made out any case for interference with
the orders passed in the Writ Petitions. Accordingly, the Writ Appeals fail and they are
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dismissed.
50. While dismissing the Writ Petition in W.P. No. 7906 of 1999, by order dated
04.01.2010, an observation was made that it is open to the appellants/petitioners to
approach the statutory authority to redress their grievances. However, this liberty was
not extended while dismissing the Writ Petition in W.P. No. 870 of 2004. We preserve
the liberty granted to the appellants who were the petitioners in W.P. No. 7906 of
1999, leaving it open to them to approach the statutory authorities to redress their
grievance and extend such liberty to the appellants who were the petitioners in W.P.
No. 870 of 2004 also. The appellants are directed to approach the statutory authority
within a period of three months from the date of receipt of a copy of this order and the
status quo as regards service conditions of the appellants shall be maintained by the
respondent for the said period. No costs. Consequently, connected Miscellaneous
Petitions are closed.
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2015 SCC OnLine Del 12709 : (2015) 223 DLT 596 (DB) : (2015)
153 DRJ 128 (DB)

In the High Court of Delhi

(BEFORE PRADEEP NANDRAJOG AND MUKTA GUPTA, JJ.)

Krishan Gopal & Ors. .…. Appellants

Ms. Asha Jain Madan, Advocate
Versus
ONGC & Anr. .…. Respondents
Mr. Sanjay Jain, ASG instructed by Ms. Bhavan Dhami, Ms. Shreya
Sinha and Mr. Shrushth Jain, Advocates
LPA 654/2010
Decided on October 12, 2015

A. Practice and Procedure — Cause of action — Meaning and scope of —

Held, incidental facts, which may be explanatory of the material facts, have
to be overlooked — Facts pleaded for purposes of cause of action must have
a nexus on the basis whereof a prayer can be granted — Those facts which
have nothing to do with the prayer made therein are not a part of a cause of
action — A right to sue accruing has not to be confused with the cause of
action — Wrong alleged, when committed, infringing upon a right would give
rise to a right to sue — Thus, entire bundle of facts attracting the relevant
law which need to be proved, upon being traversed by the opposite party,
would be the bundle of facts constituting the cause of action
(Paras 39 to 41)
B. Labour Law — Casual Labour/Daily Wager/Temporary Employee —
Contingent employees employed in various units of ONGC — Held, in the
instant case, unfair labour practices were committed by ONGC, thus,
appellants-employees are entitled to regularization of their services
(Paras 48 to 53)

Hari Nandan Prasad v. Food Corpn. of India, (2014) 7 SCC 190 : (2014) 2 SCC
(L&S) 408; ONGC Ltd. v. Petroleum Coal Labour Union, (2015) 6 SCC 494 :
(2015) 2 SCC (L&S) 290, relied on

PRADEEP NANDRAJOG, J.:— The controversy involved in the present

intra-court appeal relates to regularization of services of (fifteen)
‘contingent employees’ engaged by Oil & Natural Gas Commission
(hereinafter referred to as the ‘ONGC’).
2. ONGC issued Standing Orders on July 15, 1962 concerning
contingent employees employed in various units of ONGC, the relevant
portion whereof reads as under : -
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“1. Application and date of commencement : These orders shall

come into force on 15.7.1962 and shall apply to all workmen
called contingent employees employed in the various units of the
Oil and Natural Gas Commission (hereinafter referred to as the
Commission). They shall not apply to regular employee of the
Commission to whom Fundamental and Supplementary Rules,
Central Civil Services (Classification, Control and Appeal) Rules,
Central Civil Services (Temporary Services) Rules, Revised Leave
Rules and Civil Service Regulations have been extended.
2.(i) Classification of Workmen : The contingent employee of the
Commission shall hereafter be classified as : -
(a) Temporary; and
(b) Casual.
ii. A workman who has been on the rolls of the Commission and has
put in not less than 180 days of attendance in any period of 12
consecutive months shall be temporary workman, provided that a
temporary workman who has put in not less than 240 days and
who possesses the minimum qualification 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.” (Emphasis Supplied)
3. ONGC engaged large number of persons between the years 1984
to 1986 as contingent employees to render services as Helper, Security
Guard, Storekeeper, Khalasi, Attendant, Mechanic, Operator, Gardener
etc. (essentially Class III and IV posts) at Jwalamukhi Project
undertaken by ONGC in the State of Himachal Pradesh.
4. In view of the fact that Jwalamukhi Project undertaken by ONGC
was to end in the year 1993 a decision was taken by ONGC to
disengage the said contingent employees. Faced with the threat of their
services being disengaged, thirty-nine contingent employees filed a
writ petition, being CWP No. 1516/1989 before High Court of Himachal
Pradesh at Shimla; essentially seeking regularization of their services.
5. Vide order dated September 21, 1993 the High Court of Himachal
Pradesh dismissed the said writ petition filed by the contingent
employees, which order reads as under : -
“We need not go into the detailed facts of this case. Suffice it to
say that the petitioners have not only claimed equal wages for equal
work, but also regularization of their services by the respondents.
The respondents have denied the case of the petitioner for
regularization alleging that the petitioners belong to contingent staff
of the respondents and their services were likely to end with the
closure of the project. Therefore, for such a staff, regularization is not
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possible. As to equal wages for equal work, the plea of respondents

is that the petitioners are not entitled to the same.
During the pendency of this writ petition, this Court directed the
respondents to consider the case of the petitioners for equal wages
for equal work in the light of numerous Apex Court's decisions
recorded in this Court's order dated 6.1.1988. Accordingly, the
matter was considered and petitioners were paid equal to their
counter-parts right from the date of this order. Thereafter, CMP 1541
of 1992 was moved, claiming revision in the wages. This application
was decided on 18.11.1992 and the respondents were directed to
pay the revised wages to the petitioners as well. As a matter of fact,
these wages were paid from the date of the order and note dated
1.10.1991 as claimed.
In the application of the petitioners, we directed the respondents
not only to retain the services of the petitioners but also directed
that their service conditions will not be changed. This order is in
existence till date.
We have heard the learned counsel for the parties.
Shri K.D. Sood, learned counsel for the petitioners vehemently
contended that the respondents want to retrench their services,
since they moved this Court, claiming certain reliefs. Therefore, it is
punitive and the respondents should be directed not only to retain
the services of the petitioners but also to regularize their services
and pay them wages, equal to others who are regular. S/Sh. Chhabil
Dass and I.S. Singhu, learned counsel for the respondents have
explained to us the exact position about the engagement of the
petitioners only on the basis of this Court order, since, otherwise
there is no work available with the respondents to continue the
service of the petitioners. It was also contended that information was
sought from other regions also where the petitioners could be re-
engaged, but it has been found that this cannot be done. Finally, it
was submitted by the learned counsel for the respondents that it
would make a list of the workers being retrenched by the
respondents and if work is available, the same would be offered to
the petitioners according to their seniority and qualifications/skill, as
per the requirement of the respondents.
We made earnest efforts to find out whether the services of the
petitioners could be retained either at the present place of posting or
anywhere also, but we are fully satisfied with the explanation offered
by the respondents that it is not possible to do so, since the project
is being wound up and all efforts to locate hydrocarbon failed many
times. It is also pointed out that on possibly be engaged in outside
projects where locals are to be preferred. In these circumstances, it
is not justifiable to compel the respondents to retain the services of
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the petitioners, especially when they have no work available to

engage the petitioners. Paying them without doing any work would
cause not only loss to the respondents but also to the nation
ultimately.
Therefore, the petition is dismissed and all interim orders are
vacated.
Before parting with the case, we may observe that the
respondents would consider the case of the petitioners for re-
engagement as and when some kind of work is available, as per the
statement given above. We repeat here the assurance of the learned
counsel for the respondents that if ever work is available with the
respondents in northern region and the petitioners are qualified for
the same, preference would be given to them according to their
seniority and job requirement. The respondents would decide the
case of the petitioners for revised pay from 1.10.1991 to 17.11.1992
within a period of two months and same to the petitioners.
Shri K.D. Sood submits that the respondents be asked to give the
petitioners experience certificate. Learned counsel for the
respondents see no difficulty in doing this.
The writ petition is disposed of in the aforesaid terms, with no
order as to costs.
A copy of this order be placed in Civil Writ Petition No. 891 of
1993 Ram Asra v. O.N.G.C. which also stands decided by this order.
(Emphasis Supplied)
6. In the year 1993 thirty-two contingent employees whose services
were engaged by ONGC for its project in the State of Punjab filed a writ
petition, being CWP No. 7673/1993 before the High Court of Punjab
and Haryana at Chandigarh essentially seeking regularization of their
services and the same was dismissed vide order dated September 27,
1993.
7. Aggrieved by the orders dated September 21, 1993 and
September 27, 1993 passed by the High Courts of Himachal Pradesh
and Punjab and Haryana respectively, declining prayer for regularization
of services, the contingent employees filed Petitions for Special Leave to
Appeal before the Supreme Court which were registered as SLP (C)
Nos. 17359/1993 and 17360-61/1993, which were dismissed vide
order(s) dated November 19, 1993.
8. Thereafter a few contingent employees, (including some
employees who were parties in the writ petitions filed before the High
Court of Himachal Pradesh and Punjab and Haryana) filed a writ petition
before the Supreme Court which was registered as W.P. (C) No.
D7385/2001 seeking regularization of their services which petition was
dismissed as withdrawn vide order dated May 08, 2001. Being relevant,
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we note that order dated May 08, 2001 reads as under : -

“Mr. R.K. Jain, learned senior counsel appearing for the petitioners
prays to withdraw the petition. Such prayer is granted. The writ
petition is dismissed as withdrawn. This order will not preclude Mr.
Jain's clients, however, to move afresh before the Delhi High
Court.” (Emphasis Supplied)
9. In these circumstances, twenty-four contingent employees filed a
writ petition under Article 226 of Constitution of India in this Court
which was registered as W.P. (C) No. 6562/2001. The necessary details
of twenty four contingent employees who filed W.P. (C) No. 6562/2001
would be as under : -
S. No. Name of Whether Whether Whether Whether
petitioner party in party in party in party in
writ writ writ present
petition petition petition intra-
filed filed filed court
before before before appeal
High High Supreme
Court of Court of Court
Himachal Punjab
Pradesh and
Haryana
1. Prem No Yes Yes No
Nath
2. Krishan No Yes Yes Yes
Gopal
3. Bir- No Yes Yes No
Bahadur
4. Sushil Yes No Yes Yes
Kumar
5. Babu Yes No Yes Yes
Ram
6. Vijay No Yes Yes Yes
Kumar
7. Dharam No Yes Yes Yes
Pal
8. Surinder No Yes Yes Yes
Kumar
9. Gunadhar No Yes Yes Yes
Dutta
10. Sohan No Yes Yes Yes
Singh
11. Mohinder Yes No Yes No
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Singh
12. Mengha No Yes Yes No
Singh
13. Mali Ram No Yes Yes No
14. Kamal No Yes Yes No
Singh
15. Manohar Yes No Yes No
Lal
16. Madan Lal Yes No Yes No
17. Makhan Yes No Yes No
Lal
18. Shakti Yes No Yes Yes
Chand
19. Ajit No Yes Yes Yes
Kumar
20. Surinder No Yes Yes Yes
Kumar
21. Jagdev Yes No Yes Yes
Singh
22. Mohan Lal No Yes Yes Yes
23. Tara No Yes Yes Yes
Chand
24. Prem No Yes Yes Yes
Chand

10. In a nutshell, the case pleaded by the said twenty-four

contingent employees in the writ petition filed in this Court could be
summarized : -
(a) Petitioners have rendered more than fifteen years of
(unblemished) service in ONGC and thus are entitled for
regularization of their services.
(b) Petitioners are entitled for regularization of their services in view
of provisions clause 2(ii) of Standing Order dated July 15, 1962
dealing with contingent employees since the petitioners have put
in more than 240 days of service in a period of twelve consecutive
months and also possess minimum qualifications prescribed by
ONGC for the jobs (class IV posts) performed by them.
(c) Petitioners are entitled for regularization of their services on
account of permanent and perennial nature of jobs performed by
them.
(d) ONGC did not disengage petitioners and continued with services
of petitioners at its various projects at Jammu and Madhopur
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(Punjab) even after passing of orders dated September 21, 1993

and September 27, 1993 by the High Courts of Himachal Pradesh
and Punjab and Haryana respectively.
(e) On May 29, 1989 a settlement was arrived between ONGC and
31 contingent employees (including some of the petitioners) to
the effect that the services of eight contingent employees were
regularized and ‘remaining twenty three contingent employees
(including some of the petitioners) will be given preference at the
time of recruitment for appointment for the post of class III and
class IV provided they fulfill the requisite qualification and
experience as laid down under R & P Regulations of ONGC and
recruitment action will be initiated as and when vacancies arise
and in an expeditious manner.’
(f) ONGC regularized services of such contingent employees who had
worked 240 days or more in a year in ONGC at Dehra Dun on
October 13, 1989. Thus, ONGC had meted discriminatory
treatment to petitioner i.e. contingent employees posted at
Jwalamukhi, Jammu and Madhopur vis-à-vis the contingent
employees who were posted at Dehra Dun.
(g) The statement made by ONGC before High Court of Himachal
Pradesh that no work is available with ONGC to continue with the
services of the petitioners was fallacious.
(h) The Central Government issued a notification on September 08,
1994 prohibiting employment of contract labour to perform the
jobs in ONGC which were being performed by the petitioners
which conclusively establishes that jobs performed by petitioners
were of permanent and perennial nature.
11. Before proceeding further, we note that petitioners placed
reliance upon (two) Office Notings dated May 27, 1998, Working Paper
dated May 27, 1998 prepared by Head, Jammu Project, ONGC, Office
Noting dated April 16, 1999 prepared by Head, Jammu Office, ONGC
and an Office Note dated January 17, 2000 prepared by General
Manager (E&S), ONGC and Working Paper dated August 11, 2000
prepared by Manager (IE), ONGC.
12. The relevant portion of the first Office Noting dated May 27,
1998 reads as under : -
“Eight nos of contingent hands are employed at NRBC, Jammu
pieces 1986 and working as attendant. Details of employment are as
under : -
….
As the requirement is still persist, the above mentioned
contingent hands are required for the daily jobs.
The approval of Chairman and Managing Director is required for
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the extension of above mentioned contingent hands.”

13. The relevant portion of the second Office Noting dated May 27,
1998 reads as under : -
“Since 1986, Jammu Project has been utilizing services of 8
contingent hands for miscellaneous jobs in the office complex and in
Transit Accommodation. Since then, there has been no change in
exploratory/drilling activities at Jammu and such requirement will
persist as long as Project Office is maintained at Jammu.
2. As per IX Plan (1997-2002), we propose to sequire around 440
GLK of seismic data and drilling of one location depending upon the
leads. Keeping in view the exploration scenario, administrative
approval of CMD for extension of services of 8 contingent hands for
one year i.e. from 1.4.98 to 31.3.99 is solicited.”
14. The relevant portion of the Working Paper dated July 24, 1998
prepared by Head, Jammu Project, ONGC reads as under : -
“CONCLUSION & RECOMMENDATIONS
i) There are total 76 contingent workers employed at Dehradun Head
Office (including 41 contingent workers in question).
ii) As per the report of HRG (placed at Annexure-7) the present total
strength as assessed by HRG for Class IV category at Hq.
Dehradun is 407 against which the available regular employees
are 252. As per this assessment the gap between requirement
assessed and availability of regular employees is 155. The said
gap is met at present by deploying 76 numbers of contingent
workers including 41 contingent workers under review and
through the contracts being awarded from time to time.
iii) As per the legal requirement of Section 25 N of Industrial
Disputes Act and more particularly of ‘Form of notice’ for seeking
permission for retrenchment of workmen, the reasons for
retrenchment have to be stated in the ‘Form of notice’.
Accordingly, in the first instance, as per procedure, the persons
sought to be retrenched are required to be declared by the
Organization.
In view of the material record available, the Committee feels that
in order to retrench as per the legal requirement, condition
precedents for such retrenchment would be declaration of 41
contingent workers as surplus which cannot be met in the instant
case.
RECOMMENDATIONS
In view of the fact that there is requirement of 407 workers in the
category of Class IV employees at Hqrs. Dehradun including the
Institutes as per assessment of HRG and the available position of the
work force against this number of 252 regular and 76 contingent,
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there still remains a gap of a further requirement of 79, which is met

at the moment through job contract system. Accordingly, since the
conditions precedent of resorting to retrenchment i.e. declaration of
surplus, is not being met at this juncture, the retrenchment of the
contingent employees under review may not be possible and
therefore their services may not be dispensed with. Further the
Committee recommends that these workers (41) be redeployed for
gainful use of their services keeping in view the work assessment by
HRG.” (Emphasis Supplied)
15. The relevant portion of the Office Noting dated April 16, 1999
prepared by Head, Jammu Office, ONGC reads as under : -
“The case pertaining to extension of the services of eight
contingent hands working at Jammu from 1.4.1999 to 31.__.2000.
Earlier sanction which was accorded by Director (Personnel)
recommendations of DGM (E)/Head Jammu Project's expired on
31.2.1999.
There is no change in status of the set up and the same
justification stands as on today.
….
b) As stated above, numerical analysis is not feasible for various
reasons. The continent bonus who were deployed about 12-13 years
ago are being assigned jobs keeping in view their capabilities and to
effect economy in expenditure on the interest of the Corporation. As
detailed earlier, two contingent hand continue to work in the Guest
House, where these contingents deployed for Guest House in shift
wise to look after the guests earlier we had workers in Guest House
through a contractor. Similarly, the was contract for operation of the
Generator but was cancelled by deploying a contingent hand.
c) 3 (three) contingents, one each in P&A, TBG & F & A are
deployed for distribution among the different section, and other
miscellaneous office works arising off an ____. In addition, one more
contingent is deployed in finance to handle the Diary - Dispatch of
their section.”
16. The relevant portion of the Office Order dated January 17, 2000
prepared by General Manager (E&S), ONGC reads as under : -
“Subject : Exploratory Drilling at Sundernagar (H.P.)
In the 179th Meeting of Executive Committee held on 6th January,
2000, it has been decided to undertake exploratory drilling in
Sundernagar area of Himachal Pradesh by rig E-2000-8 for which
land acquisition and civil works have to be undertaken as proposed
in the agenda (a copy of minutes 179 : 09 enclosed.
….
It is requested that necessary action may kindly be taken by all
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concerned for the implementation of the decision.”

17. The Working Paper dated August 11, 2000 prepared by the
Manager (IE), ONGC reads as under : -
“WORKING PAPER
As desired, the case has been reviewed and following is
submitted : -
(i) The case pertains to approval for continuance of 10 contingent
workers in Madhopur stores for a period of 9 months w.e.f.
1.7.2000 to 31.3.2001. The approval for their continuation upto
30.6.2000 exists at N/P-51.
(ii) Consequent to start of work for drilling activities for Sunder
Nagar location, the workload at Madhopur storeyard has
increased. The storeyard is working as forward base rail head
stores for Sundernagar.
(iii) The details of present utilization and assessment are given at
N/S-64. The utilization details indicate increased utilization
trend for material handling workload & vehicle utilization. The
contingents are also being utilized for DG set maintenance &
pump house operation which was earlier being done through
contract. There are no such category regular personnel in
Jammu who could be redeployed for these jobs.
(iv) Keeping above in view and the likely increase of activities in
Jammu region, the continuance of contingent workers for a
period of 9 months w.e.f. 1.7.2000 as proposed prepage may
be agreed to.”
18. Per contra, the stand taken by the respondents to the writ
petition filed by the contingent workers in this Court could be
summarized as under : -
(a) The writ petition filed by the petitioners seeking relief of
regularization of their services with ONGC deserves to be
dismissed for the reason the earlier writ petition(s) filed by
petitioners before the High Courts of Himachal Pradesh and
Punjab and Haryana seeking same relief of regularization of their
services and based on same cause of action were dismissed, more
particularly when the order(s) of dismissal of earlier petitions had
attained finality inasmuch as Special Leave to Appeal(s) filed by
the petitioners assailing legality of said (dismissal) orders stood
dismissed by the Supreme Court.
(b) Petitioners were employed by ONGC in connection with its works
at Northern Region; the work of ONGC in Northern Region was
mainly exploratory and thus temporary in nature and governed by
Petroleum Exploration License (PEL) granted to ONGC by the
Government. The only establishments of ONGC in Northern Region
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are : - (i) establishment at Jammu and Kashmir; (ii)

establishment at Himachal Pradesh; and (iii) store yard at
Madhopur, Punjab. The PEL granted to ONGC in Jammu and
Kashmir and Himachal Pradesh expired in the years 2002 and
2003 respectively and efforts were re-grant of same did not
fructify. The store yard at Madhopur was also required to be
wound up owing to works in Jammu and Kashmir and Himachal
Pradesh coming to an end. In these circumstances, ONGC could
not have considered regularization of services of petitioners due to
non-availability of vacancy in northern region for availability of
vacancy is sine qua non for conversion of contingent employee
into a regular one under the Standing Orders dealing with
contingent employees issued by ONGC.
(c) Petitioners being contingent employees cannot claim
regularization of their services in view of the law laid down by the
Constitution Bench of Supreme Court in the decision reported as
(2006) 4 SCC 1 Secretary, State of Karnataka v. Uma Devi.
(d) The petitioners are not entitled for regularization of their services
in view of clear prescription contained in Office Order dated July
16, 1991 issued by ONGC dealing with contingent employees that
‘no right shall accrue to contingent workers for any regular job in
ONGC’.
19. Before proceeding further, it would be apposite to note the
following portion of Office Order dated July 16, 1991 : -
“1. Appointment:
1.1 Appointment of contingent employees should be made on
‘term appointment’ basis, i.e. from one specified date to another
specified date. A specimen copy of the appointment letter is
enclosed for information and guidance at Annexure ‘I’.
In the appointment letter it should be specifically mentioned
that appointment will stand terminated on the expiry of the expiry
of the period mentioned in the appointment letter. No extension,
in any case, without the specific written approval of the
competent authority. Any violation of the instructions by an officer
will render him liable for disciplinary action.
1.5 For temporary & intermittent work:
Since the appointment of contingent workers is made for a
work of temporary and intermittent nature, no right shall accrue
to him for any regular job in ONGC. Management may, however,
consider his regularization subject to availability of vacancies
provided further that such contingent employee possess the
prescribed qualifications, experience, age requirement and other
requirements laid down in the ONGC R & P Regulations/orders as
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applicable from time through a valid selection process.

4. Regularization of services:
4.1 The service conditions of contingent employees, by and
large, are governed by the provisions of Certified Standing Orders
for contingent employees. Under Certified Standing Orders, the
contingent employees have been classified as under : -
i) Casual - means those contingent employees who have put in
attendance upto 179 days in 12 consecutive months.
ii) Temporary - means those contingent employees who have
been on the rolls of the Commission and have put in not less
than 180 days of attendance in any period of 12 consecutive
months provided that a temporary workman who has put in
not less than 240 days and possesses the minimum
qualifications prescribed by the Commission, may be
considered for conversion as a regular employee.
4.4 Such of the contingent employees can be absorbed against
regular posts provided they fulfill the following criteria : -
i) they have completed 240 working days' service in the
commission in the 12 consecutive months
ii) they are registered with the Employment Exchange;
iii) they are held against regular posts;
iv) they possess requisite qualifications and experience etc. laid
down in the ONGC (R&P) Regulations;
v) no extra post will be created for absorption of the contingent
workers and no relaxation in the qualification will be accorded;
vi) relaxation in the age limits upto 35 years for technical cadres
and 30 years for non-technical cadres may be
accorded.” (Emphasis Supplied)
20. During pendency of the writ petition, as directed by the learned
Single Judge of this Court before whom the writ petition was listed,
ONGC filed lists of contingent workers employed by it at Jammu and
Madhopur as on January 01, 1987.
21. Being relevant, we note following portion of the list of contingent
workers employed at Madhopur, filed by ONGC : -
“LIST OF CONTINGENT WORKERS AT MADHOPUR AS ON
01.01.1987
SL. NO. S/SHRI DATE OF ENGAGEMENT
NAME
1. Prem (Petitioner No. 1) 14.12.1984
Nath
2. Nand Kishore 14.12.1984
3. Vijay Kumar 14.12.1984
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4. Mali Ram (Petitioner No. 1.8.1985

13)
5. Bir Bahadur (Petitioner No. 25.10.1985
3)
6. Krishan Gopal (Petitioner 25.10.1985
No. 2)
7. Babu Ram (Petitioner No. 2.11.1985
5)
8. Nihal Sing 8.11.1985
9. Manohar Lal (Petitioner No. 1.1.1985
15)
10. Jagir Chand (Regularized 13.01.1986
as per petitioners)
11. Vijay Kumar 5.2.1986
12. Mahesh Chander 7.2.1986
13. Mandhir Verma 16.2.1986
14. Dharam Pal 3.3.1986
15. Des Raj 10.3.1986
16. Chet Ram 22.3.1986
17. Surinder Singh 22.4.1986
18. Surinder Kumar Duttana 22.4.1986
19. Tilak Raj 1.5.1986
20. Guna Dhar Dutta 1.5.1986
21. Gurbax Singh 15.5.1986
22. Ashok Kumar 3.8.1986
23. Sohan Singh 10.8.1986
24. Mohinder Singh 1.9.1986
25. Hans Raj 15.9.1986
26. Ram Pal 01.11.1986
27. Kamlesh Chander 01.11.1986
28. Kanshi Ram 14.11.1986”

22. Being relevant, we note the following portion of list of contingent

workers employed at Jammu, filed by ONGC. It reads as under : -
“LIST OF CONTINGENT WORKERS AT JAMMU AS ON
01.01.1987
SL. NO. NAME S/SHRI DATE OF ENGAGEMENT
1. Mehnga Singh (Petitioner 23.07.85
No. 12)
2. Prem Sagar (Regularized 23.07.85
as per petitioners)
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3. Om Chand (Regularized as 05.08.85

per petitioners)
4. Kamal Singh (Petitioner 10.09.85
No. 14)
5. A.K. Jha (Regularized as 29.09.85
per petitioners)
6. Manoj Kumar (Regularized 01.10.85
as per petitioners)
7. R.K. Pokhriyal (Regularized Nov. 85
as per petitioners)
8. Maya Ram Balodi Nov. 85
9. Satish Chander Nov. 85
10 R.M. Pandey (Regularized Nov. 85
as per petitioners)
11. S.C. Pant (Regularized as Nov. 85
per petitioners)
12. D.C. Pandey (Regularized Nov. 85
as per petitioners)
13. N.K. Nautiyal (Regularized 21.01.85
as per petitioners)
14. A.S. Shukla (Regularized Dec. 85
as per petitioners)
15. Ajit Kumar (Petitioner No. 20.02.85
9)
16. Surinder Kumar (Petitioner 01.01.86
No. 8)
17. Raj Kumar Sharma 01.01.86
(Regularized as per
petitioners)
18. Johan 01.01.86
19. Jagdev Singh (Petitioner 01.01.86
No. 21)
20. Ram Adhar (Regularized as 25.01.86
per petitioners)
21. Shyam Lal 26.01.86
22. Rajesh Kaboo (Regularized 05.02.86
as per petitioners)
23. Miss Sarita Devi 10.02.86
(Regularized as per
petitioners)
24. Gurdeep Singh 10.02.86
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25. Mohan Lal (Petitioner No. 15.02.86

22)
26. Kishore Kumar petitioners)
(Regularized as per
15.02.86
27. Sher Singh 18.02.86
28. Madan Lal (Petitioner No. 18.02.86
16)
29. Ram Lok 02.03.86
30. Kuldip Singh (Regularized 01.04.86
as per petitioners)
31. Kashmira Singh 01.05.86
32. Des Raj Rana 01.05.86
33. Tara Chand (Petitioner No. 01.05.86
23)
34. Prem Chand (Petitioner No. 01.08.86
14)
35. Bodh Raj Sharma 01.08.86”

23. On July 16, 2004 the petitioners filed an affidavit before the
learned Single Judge with respect to afore-noted (two) lists of
contingent workers filed by ONGC, the relevant portion whereof reads
as under : -
“1. That I am one of the Petitioners in the above case and I am
well acquainted with the facts and circumstances of the case. I am
authorized to file the present reply affidavit on behalf of other
Petitioners also. I say that I have gone through the two lists of the
contingent workers working at Madhopur and Jammu as on 1.1.87. I
say that we are unable to judge the authenticity of the said lists at
our end as the lists are actually maintained in the office of the
respondent ONGC. Presuming the said lists to be correct I submit
that those junior to the petitioners have already been regularized by
the respondent ONGC. I submit that workers at serial numbers 2-3,
5-8, 10-17, 20, 22, 23, 26, 30 in the list pertaining to the contingent
workers working at Jammu, have already been regularized by the
respondent ONGC. Similarly the worker at serial number 10 in the
list of contingent workers pertaining to Madhopur has also been
regularized. A perusal of the said lists would indicate that the
petitioner workers are senior to most of the said employees who
have already been regularized. However the petitioners have been
ignored and not regularized till date. As regards the jammu list I
submit that the workers at Sl Nos. 1, 4, 15, 16, 19 and 25 are the
petitioners in the case who are senior to the workers who have
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already been regularized. As regards the Madhopur list I submit that

the workers at Sl Nos. 1, 4-7 and 9 are the petitioners in the case
who are senior to the worker at serial No. 10 i.e. Jagir Chand who
has already been regularized.”
(Emphasis Supplied)
24. In the year 2006, ONGC filed an affidavit in response to the
affidavit dated July 16, 2004 filed by the petitioners, the relevant
portion whereof reads as under : -
“3. It is denied that the workers at serial nos. 2-3, 5-8, 10-17, 20,
22, 23, 26, 30 in the list pertaining to contingent workers working at
Jammu and sl. no. 10 in the list of Madhopur, have already been
regularized by the respondent ONGC as alleged. It is submitted that
the said workmen have not been regularized but had participated in
the recruitment exercises carried out for various categories other
than in Class IV. These workmen have participated and have been
selected and recruited to the post of storekeeper (Grade III) or
Assistant (Grade III)
4. As regards the Jammu list it is denied that these workers at sl.
no. 1, 4, 15, 16, 19 and 25 have already been regularized as alleged.
It is submitted that Shri Jagir Chand was also not regularized. It is
further submitted that the said workers have not been regularized
but recruited for vacancies advertised through Employment
Exchange from time to time after participation in the selection
process. It is further submitted that Shri Jagir Chand (Sl. No. 10)
has been recruited as storekeeper (Grade III).” (Emphasis
Supplied)
25. During pendency of the writ petition, on July 01, 2004, ONGC
transferred petitioners Nos. 4, 8, 9, 12, 13, 14, 17 and 18 from Jammu
to Frontier Basin, Jammu.
26. To complete factual narratives, we note that on February 06,
2006 a decision was taken by ONGC to retrench sixteen petitioners;
eleven of whom were deployed at Madhopur and five of whom were at
Dehradun.
27. Immediately thereafter the petitioners filed an application before
the learned Single Judge of this Court seeking stay on their (proposed)
retrenchment. Significantly, the petitioners had filed copies of Working
Papers dated June 10, 2005 and January 03, 2006 prepared by DCLA,
ONGC respectively HR Department, ONGC to demonstrate that the
petitioners deployed at Dehradun are being illegally retrenched on the
alleged ground of they being surplus at Frontier Basin, Dehradun,
inasmuch as ONGC has the requirement of contingent employees at
Jhirna, a site in Frontier Basin, Dehradun.
28. The relevant extract of Working Paper dated June 10, 2005 of
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ONGC relied upon by the petitioners reads as under : -

“WORKING PAPER
This is with reference to the note of Incharge HR/ER on prepage
seeking the advice on the course of action to be taken against the
contingent workers of Frontier Basin.
Copy of various correspondence from various files placed opposite
and the approval of Director (HR) approval 18.5.04 for redeployment
by way of interim measure, the following facts are emerged:
1. The period of redeployment of surplus contingent workers at
Dehradun who were idling at Jammu is not indicated in the file.
In this context, it is brought to the notice of Basin and others that
the court case CWP No. 6562/01 Prem Nath v. ONGC pending before
High Court Delhi filed by the contingent workers of Jammu wherein
following directions were sought:
1. ONGC to regularize the service with consequential benefits.
2. Restraining respondents ONGC from terminating the services of
workmen.
3. Payment of equal wages and other service benefits as are being
given to other regular employees performing similar work.
4. Any other relief deemed fit by this Court.
The case is pending since Nov. 2001 (illegible)
Since the work and requirement of contingent workers at Jammu,
it is becoming difficult to contest the case in court when there is
decreasing requirement/no requirement by Frontier Basin of the
above said contingent workers and they are being carried
forward/deployed and more so when Jammu Office has also been
closed.
In the light of above facts and circumstances, an administrative
decision/review is required to be taken regarding the
continuation/redeployment of the contingent workers when the
Jammu Office is already closed. Any delay in taking the decision will
adversely affect the case which is coming up for hearing on 25th July,
2005. The course of action will be decided after administrative
decision is taken to the Frontier Basin regarding the
continuation/redeployment of the contingent workers keeping in
view the fact that the Jammu Office is closed.”
29. The relevant extract of the Working Paper dated January 03,
2006 prepared by HR Department, ONGC reads as under : -
“The new Drill site at Jhirna has been released. As per letter dt.
25.7.05 from HDS, Requirements of 21 unskilled labour per day is
required. The categories requirements is as under : -
Mud labour - 04 nos. per shift (8 hrs shift) × 3 = 12 nos. (for
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loading/unloading mixing/filling of chemicals. Cleaning tanks,

cutting removal etc.)
Drilling contingent - 0 (illegible) nos. for three shifts (for
mechanical & electrical maintenance, housekeeping,
casting/tubular cleaning etc.)
Semi-skilled contingent - 01 no. per shift (8 hrs shift) × 3 = 03
nos. (for operation & maintenance on SA gen-set & water pump)
As such 21 man days (illegible hrs shift per day) will be
required for drilling and geology, at present 18 no. of man days as
8 hrs. shift per day is operative…..”
30. Vide order dated February 14, 2006 the Single Jude directed
status quo with respect to employment of petitioners with ONGC.
31. Vide impugned judgment and order dated June 01, 2010 the
learned Single Judge has dismissed the writ petition filed by the
petitioners.
32. Briefly stated the reasons given by the learned Single Judge are
as under : -
(a) Petitioners cannot be allowed to re-litigate their claim for
regularization of services when such claim was rejected by High
Courts of Himachal Pradesh and Punjab and Haryana in the earlier
writ petitions filed by the petitioners, more so when the orders
dismissing the earlier writ petitions filed by the petitioners was
affirmed by the Supreme Court.
(b) The fact that the Central Government issued a notification dated
September 08, 1994 prohibiting employment of contract labour to
perform the jobs in ONGC as being performed by petitioners is of
no avail to the petitioners for said notification ipso facto does not
regularize the services of contract labour.
(c) Nothing turns upon the fact that ONGC continued to engage the
petitioners even after dismissal of earlier writ petitions filed by
them before the High Courts of Himachal Pradesh and Punjab and
Haryana.
(d) Mere grant of liberty by the Supreme Court to the petitioners to
approach the High Court of Delhi did not entitle the petitioners to
re-litigate their claim for regularization of services, because the
Supreme Court had granted said liberty without going into the
maintainability or otherwise of the writ petition.
(e) The working Paper dated July 24, 1998 relied upon by the
petitioners does not appear to indicate that ONGC did not have
work for the petitioners in the year 1998 and therefore it would be
of no avail to the petitioners if the recommendations contained in
said paper were accepted by the competent authority and
additionally for the reason that it appeared that the same was not
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accepted by the competent authority.

(f) The relief of regularization of services cannot be granted to the
petitioners in view of the dictum of law laid down by the
Constitution Bench of the Supreme Court in Uma Devi's case
(supra) because : - (i) courts have no power to grant the relief of
regularization of services of persons engaged temporarily and on
daily wages and without complying with the recruitment rules and
regulations; and (ii) courts, out of considerations of sympathy or
injustice or equity, cannot impose illegally appointed casual
workmen on the organization through the backdoor of initial
causal employment and in breach of recruitment rules and
regulations of the organization, howsoever long workmen may
have worked with the organization.
(g) The very nomenclature of the employment of the petitioners i.e.
contingent employment shows that the employment of the
petitioners was subject to the contingency. The petitioners only
have a right to be considered for conversion as a regular employee
under relevant Standing Orders, which conversion is subject to
possibility of a post/vacancy. It was unequivocally held in the
orders dismissing earlier writ petitions filed by the petitioners that
there was no post or vacancy at that time on/in which the
petitioners could be accommodated. Save and except Working
Paper dated July 24, 1998, nothing has been shown by the
petitioners in the present petition that there is any post/vacancy
on/in which the petitioners can be absorbed. On the contrary, it is
borne out of the counter affidavit filed by ONGC as also judgments
relied upon by ONGC that work of ONGC in Northern Region has
been dwindling; ONGC is overstaffed and resorting to voluntary
retirement schemes. In such circumstances, the petitioners
cannot be imposed upon ONGC when ONGC has no job or work for
the petitioners.
(h) The argument advanced by the petitioners that bar of
regularization of services of workmen contained in Umadevi's case
(supra) does not apply in cases the courts finds the circumstances
to be extraordinary or an unfair labour practice being followed by
employer is not tenable.
(i) The reliance placed by the petitioners upon Standing Order dated
June 15, 1962 to claim regularization of their services is wholly
misplaced for the reason said Standing Order was also in
existence at the time when the earlier writ petition filed by the
petitioners seeking same relief of regularization of their services
were dismissed by High Court of Himachal Pradesh and Punjab
and Haryana.
(j) Nothing turns upon settlement dated September 23, 1989 arrived
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between ONGC and some of the petitioners for the reason the
petitioners have not been able to demonstrate that there has been
any violation/contravention of any of the terms of said settlement
by ONGC.
30. Aggrieved by the aforesaid decision some of the petitioners
before the learned Single Judge have filed the present Letters Patent
Appeal. (The details of the petitioners who have filed the present
appeal have already been given by us in the table drawn by us in the
foregoing paragraphs).
32. In the present appeal, the appellants (petitioners before the
learned Single Judge) as also ONGC have reiterated their respective
stands taken by them before the learned Single Judge.
33. From the aforesaid conspectus of facts, it is evident that
following two questions arise for consideration in the present appeal : -
I Whether the appellants were precluded from instituting the writ
petition in question before of this Court owing to the fact that
earlier writ petitions filed by them seeking same relief of
regularization of services as claimed in the petition instituted in
this Court were dismissed by High Courts of Himachal Pradesh
and Punjab and Haryana, particularly when said dismissal orders
had attained finality?
II Whether the appellants are entitled to relief of regularization of
their services claimed by them?
In Re : Question I
34. The legal position as to when a decision on an issue of law will
be res-judicata in a subsequent proceeding between the same parties
has been succinctly stated by the Supreme Court in the decision
reported as JT 1995 (7) SC 69 Nand Kishore v. State of Punjab in the
following terms : -
“On another facet of res judicata, this Court in Mathura Prasad
Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy [1970 (3) SCR 830] had
the occasion to observe as under:“A pure question of law unrelated
to facts which give rise to a right, cannot be deemed to be a matter
in issue……. A decision on an issue of law will be res judicata in a
subsequent proceeding between the same parties, if the cause of
action of the subsequent proceeding be the same as in the previous
proceedings, but not when the cause of action is different, nor when
the law has since the earlier decision been altered by a competent
authority, nor when the decision relates to the jurisdiction of the
Court to try the earlier proceeding, nor when the earlier decision
declares valid a transaction which is prohibited by law.” (Emphasis
Supplied)
35. From the aforesaid decision, it is clear that a decision on an
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issue of law will not operate as res-judicata in a subsequent proceeding

between the same parties in following two situations : -
(a) When the cause of action in subsequent proceeding is different
from the cause of action in previous proceeding; and
(b) When the law has since the earlier decision has been altered by a
competent authority.
36. The expressions ‘cause of action’ is neither defined in the
Constitution nor has it been defined in the Code of Civil Procedure.
Mulla, in the commentary on the Code of Civil Procedure Vol. 1 (15th
Edition) at page 251 has stated:‘A cause of action means every fact,
which, if traversed, it would be necessary for the plaintiff to prove in
order to support his right to a judgment of the court. In other words it
is the bundle of facts which taken with the law applicable to them gives
the plaintiff a right to relief against the defendant. It must include
some act done by the defendant since in the absence of such an act no
cause of action can possibly accrue. It is not limited to the actual
infringement of the right sued on but includes all the material facts on
which it is founded.’
37. The classic definition of a cause of action was given by Brett, J.
in the decision reported as (1873) LR A CP 107 Cooke v. Gill:‘Cause of
action has been held from the earliest time to mean every fact which is
material to be proved to entitle the plaintiff to succeed - every fact
which the defendant would have a right to traverse.’
38. A different facet thereof, but in our opinion a guiding star, could
be the opinion of Diplock LJ. in the decision reported as (1964) 2 All ER
929 Letang v. Cooper:‘a cause of action is simply a factual situation the
existence of which entitles one person to obtain from the court a
remedy against another person.’
39. The words used by the two learned Judges may be different, but
bring out that only those facts which are material to be proved are to
be taken into account ignoring pleadings of unnecessary allegations or
the addition of further instances with reference to better particulars. To
put it differently, one may say that incidental facts, which may be
explanatory of the material facts, have to be overlooked. The facts
pleaded for purposes of cause of action must have a nexus on the basis
whereof a prayer can be granted. Those facts which have nothing to do
with the prayer made therein are not a part of a cause of action.
40. But the problem lies because the selection of the material facts
to define the cause of action has to be made at the highest level of
abstraction.
41. A right to sue accruing has not to be confused with the cause of
action. The wrong alleged, when committed, infringing upon a right
would give rise to a right to sue. The entire bundle of facts attracting
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the relevant law which need to be proved, upon being traversed by the
opposite party, would be the bundle of facts constituting the cause of
action.
42. As already noted hereinabove, in the year 1993 some of the
appellants had filed writ petitions seeking relief of regularization of their
services before the High Court of Himachal Pradesh and some before
High Court of Punjab and Haryana. At that time i.e. in the year 1993,
the appellants were facing imminent threat of retrenchment of their
services as Jwalamukhi project undertaken by ONGC for which
appellants were initially engaged came to an end constraining the
appellants to file writ petitions before High Courts of Himachal Pradesh
and Punjab and Haryana.
43. Vide judgment dated September 21, 1993 the High Court of
Himachal Pradesh dismissed the petition filed by the appellants with
the directions that ‘ONGC would consider the case of the appellants for
re-engagement as and when some kind of work is available with ONGC
in northern region and that preference would be given to appellants
according to their seniority and job requirement’. While so dismissing,
High Court of Himachal Pradesh noted the stand of ONGC that ONGC is
preparing a list of workers which are being retrenched and that no work
is available with ONGC to continue with the services of the appellants.
44. Vide order dated September 27, 1993 the High Court of Punjab
and Haryana also dismissed the petition filed by some of the
appellants.
45. What happened thereafter is most significant.
46. The appellants, who were initially engaged for Jwalamukhi
Project were not retrenched by ONGC even after Jwalamukhi Project
coming to an end. On the contrary, ONGC continued to engage the
appellants at its various locations viz. Jammu, Madhopur and Dehradun
even after dismissal of their writ petitions by the High Courts of
Himachal Pradesh and Punjab and Haryana. Most significantly, the
aforesaid act of ONGC of continuing with the services of appellants even
after dismissal of their writ petitions by High Courts of Himachal
Pradesh and Punjab and Haryana falsified the stand taken by ONGC
before High Court of Himachal Pradesh that it is in the process of
retrenching with the services of appellants and that no work is available
with ONGC to continue with the services of the appellants. Had that
been the case, ONGC would have discontinued engaging the appellants
immediately after dismissal of their writ petitions by High Courts of
Himachal Pradesh and Punjab and Haryana.
47. In these circumstances, in the year 2001 (when the petition was
filed by the appellants in this Court) a fresh cause of action accrued to
the appellants when ONGC did not retrench the appellants and
continued to engage them at its various locations even after lapse of
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about eight long years after dismissal of earlier writ petitions filed by
appellants by High Courts of Himachal Pradesh and Punjab and
Haryana. As a necessary corollary thereof, the appellants were not
precluded from instituting (second) writ petition before this Court
based on different cause on action vis-a-vis the first petition filed by
them in view of the law laid down by the Supreme Court in Nand
Kishore's case (supra). (We also note here that even position of law
relating to regularization of services of casual/contingent workmen has
undergone a sea change after dismissal of the earlier writ petitions filed
by the appellants before the High Courts of Himachal Pradesh and
Punjab and Haryana, and the same would entitle the appellants to
institute a second writ petition in view of law laid down by the Supreme
Court in Nand Kishore's case (supra) but we shall be dwelling on this
aspect of the matter in the later part of this judgment.)
In Re : Question II
48. The second question posed by us has to be answered with
reference to decision of Supreme Court reported as (2014) 7 SCC 190
Hari Nandan Prasad v. Employer I/R to Management of Food
Corporation
49. In Hari Nandan's case (supra), taking note of the decision of the
Constitution Bench of the Supreme Court reported as (2006) 4 SCC 1
State of Karnatka v. Uma Devi, the Supreme Court held that what was
perceived to be a conflict in the law declared by the Supreme Court in
the decision reported as (2007) 5 SCC 755 U.P. Power Corporation Ltd.
v. Bijli Majdoor Singh and the decision reported as (2009) 8 SCC 556
Maharashtra SRTC v. Casteribe Rajya Parivahan Karamchari
Sanghatana, was an incorrect perception and that a Labour Court or an
Industrial Tribunal could direct regularization upon proof that:‘employer
has indulged in unfair labour practice by not filling up permanent posts
even when available and continuing to employ workers on
temporary/daily-wage basis and taking the same work from them and
making them do some purpose which was being performed by the
regular workers but paying them much less wages.’ The observations of
the Supreme Court in paragraphs 34 to 39 of the said decision need to
be noted. They read as under : -
“34. A close scrutiny of the two cases, thus, would reveal that the
law laid down in those cases is not contradictory to each other. In
U.P. Power Corporation, this Court has recognized the powers of the
Labour Court and at the same time emphasized that the Labour
Court is to keep in mind that there should not be any direction of
regularization if this offends the provisions of Art.14 of the
Constitution, on which judgment in Umadevi is primarily founded.
On the other hand, in Bhonde case, the Court has recognized the
principle that having regard to statutory powers conferred upon the
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Labour Court/Industrial Court to grant certain reliefs to the workmen,

which includes the relief of giving the status of permanency to the
contract employees, such statutory power does not get denuded by
the judgment in Umadevi's case.
It is clear from the reading of this judgment that such a power is
to be exercised when the employer has indulged in unfair labour
practice by not filling up the permanent post even when available
and continuing to workers on temporary/daily wage basis and taking
the same work from them and making them some purpose which
were performed by the regular workers but paying them much less
wages. It is only when a particular practice is found to be unfair
labour practice as enumerated in Schedule IV of MRTP and PULP Act
and it necessitates giving direction under Section 30 of the said Act,
that the Court would give such a direction.
35. We are conscious of the fact that the aforesaid judgment is
rendered under MRTP and PULP Act and the specific provisions of
that Act were considered to ascertain the powers conferred upon the
Industrial Tribunal/Labour Court by the said Act. At the same time, it
also hardly needs to be emphasized the powers of the industrial
adjudicator under the Industrial Disputes Act are equally wide. The
Act deals with industrial disputes, provides for conciliation,
adjudication and settlements, and regulates the rights of the parties
and the enforcement of the awards and settlements. Thus, by
empowering the adjudicator authorities under the Act, to give reliefs
such as a reinstatement of wrongfully dismissed or discharged
workmen, which may not be permissible in common law or justified
under the terms of the contract between the employer and such
workmen, the legislature has attempted to frustrate the unfair labour
practices and secure the policy of collective bargaining as a road to
industrial peace.
36. In the language of Krishna Iyer, J. The Industrial Disputes Act
is a benign measure, which seeks to pre-empt industrial tensions,
provide for the mechanics of dispute resolutions and set up the
necessary infrastructure, so that the energies of the partners in
production may not be dissipated in counterproductive battles and
the assurance of industrial justice may create a climate of
goodwill.” (Life Insurance Corpn. Of India v. D.J. Bahadur 1980 Lab
IC 1218, 1226 (SC), per Krishna Iyer, J.).
In order to achieve the aforesaid objectives, the Labour
Courts/Industrial Tribunals are given wide powers not only to enforce
the rights but even to create new rights, with the underlying
objective to achieve social justice. Way back in the year 1950 i.e.
immediately after the enactment of Industrial Disputes Act, in one of
its first and celebrated judgment in the case of Bharat Bank Ltd. v.
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Employees of Bharat Bank Ltd. [1950] LLJ 921, 948-49 (SC) this
aspect was highlighted by the Court observing as under:
“In settling the disputes between the employers and the
workmen, the function of the tribunal is not confined to
administration of justice in accordance with law. It can confer
rights and privileges on either party which it considers reasonable
and proper, though they may not be within the terms of any
existing agreement. It has not merely to interpret or give effect to
the contractual rights and obligations of the parties. It can create
new rights and obligations between them which it considers
essential for keeping industrial peace.”
37. At the same time, the aforesaid sweeping power conferred
upon the Tribunal is not unbridled and is circumscribed by this Court
in the case of New Maneckchowk Spinning & Weaving Co. Ltd. v.
Textile Labour Association [1961] 1 LLJ 521, 526 (SC) in the
following words:
“This, however, does not mean that an industrial court can do
anything and everything when dealing with an industrial dispute.
This power is conditioned by the subject matter with which it is
dealing and also by the existing industrial law and it would not be
open to it while dealing with a particular matter before it to
overlook the industrial law relating to the matter as laid down by
the legislature or by this Court.”
38. It is, thus, this fine balancing which is required to be achieved
while adjudicating a particular dispute, keeping in mind that the
industrial disputes are settled by industrial adjudication on principle
of fair play and justice.
39. On harmonious reading of the two judgments discussed in
detail above, we are of the opinion that when there are posts
available, in the absence of any unfair labour practice the Labour
Court would not give direction for regularization only because a
worker has continued as daily wage worker/adhoc/temporary worker
for number of years. Further, if there are no posts available, such a
direction for regularization would be impermissible. In the aforesaid
circumstances giving of direction to regularize such a person, only on
the basis of number of years put in by such a worker as daily wager
etc. may amount to backdoor entry into the service which is an
anathema to Art.14 of the Constitution. Further, such a direction
would not be given when the concerned worker does not meet the
eligibility requirement of the post in question as per the Recruitment
Rules However, wherever it is found that similarly situated workmen
are regularized by the employer itself under some scheme or
otherwise and the workmen in question who have approached
Industrial/Labour Court are at par with them, direction of
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regularization in such cases may be legally justified, otherwise, non-

regularization of the left over workers itself would amount to
invidious discrimination qua them in such cases and would be
violative of Art.14 of the Constitution. Thus, the Industrial
adjudicator would be achieving the equality by upholding Art. 14,
rather than violating this constitutional provision.
40. The aforesaid examples are only illustrated. It would depend
on the facts of each case as to whether order of regularization is
necessitated to advance justice or it has to be denied if giving of
such a direction infringes upon the employer's rights.” (Emphasis
Supplied)
50. In the decision reported as (2015) 5 SCALE 353 ONGC Ltd. v.
Petroleum Coal Labour Union, wherein the Supreme Court was
specifically dealing with regularization of services of some temporary
workmen employed by ONGC, after examining the relevant facts and
case law on the point, including Standing Orders issued by ONGC
dealing with temporary workmen, the Supreme Court directed ONGC to
regularize the services of temporary workmen. The relevant
observations made by the Supreme Court are as under : -
“The Central Government in exercise of its powers under Section
10 of the Act referred the existing Industrial Dispute between the
concerned workmen and the Corporation to the Tribunal which
rightly adjudicated point (i) of the dispute (supra) on the basis of
the facts, circumstances and evidence on record and passed an
award dated 26.5.1999 directing the Corporation that the services of
the concerned workmen should be regularised with effect from the
date on which all of them completed 480 days, subsequent to their
appointment by the memorandum of appointment. The contention
urged on behalf of the Corporation that the Tribunal has no power to
pass such an award compelling the Corporation to regularise the
services of the concerned workmen is wholly untenable in law. Even
if Page 22 22 we consider the same, the said contention is contrary
to the legal principles laid down by this Court in the case of Hari
Nandan Prasad v. Employer I/R To Management of Food Corporation
of India, wherein the decisions in U.P. Power Corporation v. Bijli
Mazdoor Sangh and Maharashtra Road Transport Corporation v.
Casteribe Rajya Parivahan Karamchari Sanghathana and Uma Devi
(all referred to supra) were discussed in detail. The relevant
paragraphs are extracted hereunder:
….
It is clear from the above that the Court recognized the underlying
message contained in Umadevi case to the effect that regularisation
of a daily-wager, who has not been appointed after undergoing the
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proper selection procedure, etc. is impermissible as it was violative

of Article 14 of the Constitution of India and this principle predicated
on Article 14 would apply to the Industrial Tribunal as well inasmuch
as there cannot be any direction to regularise the services of a
workman in violation of Article 14 of the Constitution. As we would
explain hereinafter, this would mean that the Industrial Court would
not issue a direction for 23 regularising the services of a daily-wage
worker in those cases where such regularisation would tantamount to
infringing the provisions of Article 14 of the Constitution. But for
that, it would not deter the Industrial Tribunals/Labour Courts from
issuing such direction, which the industrial adjudicators otherwise
possess, having Page 24 24 regard to the provisions of the Industrial
Disputes Act specifically conferring such powers. This is recognized
by the Court even in the aforesaid judgment.
…..
Detailed reasons are given in support of the conclusion stating
that the MRTU and PULP Act provides for and empowers the
Industrial/Labour Courts to decide about the unfair labour practice
committed/being committed by any person and to declare a
particular practice to be unfair labour practice if it so found and also
to direct such person to cease and desist from unfair labour practice.
The provisions contained in Section 30 of the MRTU and PULP Act
giving such a power to the Industrial and Labour Courts vis-à-vis the
ratio of Umadevi are explained by the Court in the following terms:
(Maharashtra SRTC case, SCC pp. 573-74, paras 32-33 & 36) …..
Further, it is very clear from the facts that all the concerned
workmen have got the qualifications required for their regularisation,
except one of them and have been employed by the Corporation
even prior to 1985 in the posts through various irregular means. The
Tribunal has got every power to adjudicate an industrial dispute and
impose upon the employer new obligations to strike a balance and
secure industrial peace and harmony between the employer and
workmen and ultimately deliver social justice which is the
constitutional mandate as held by the Constitution Bench of this
Court in a catena of cases. This above said legal principle has been
laid down succinctly by this Court in the case of The Bharat Bank
Ltd., Delhi v. The Employees of the Bharat Bank Ltd., Delhi & the
Bharat Bank Employee's Union, Delhi, the relevant paragraph of the
said case is extracted hereunder:
….
Thus, the powers of an Industrial Tribunal/Labour Court to
adjudicate the industrial dispute on the points of dispute referred to
it by the appropriate government have been well established by the
legal principles laid down by this Court in a catena of cases referred
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to supra. Therefore, the Tribunal has rightly passed an award

directing the Corporation to regularise the services of the concerned
workmen.
….
It is also contended on behalf of the Corporation that the right to
be considered for regularisation by the Corporation as provided
under Clause 2(ii) of the Certified Standing Orders of the Corporation
does not mean right to regularisation and the discretion to regularise
the workmen is with the Corporation as the same has to be exercised
keeping in mind the interest of the organization by implementing the
alleged “policy decision” of appointing the CISF personnel to the
security posts. This contention urged on behalf of the Page 32 32
learned senior counsel for the Corporation cannot be accepted by us
for the reason that even though due procedure was not followed by
the Corporation for the appointment of the concerned workmen, this
does not disentitle them of their right to seek regularisation of their
services by the Corporation under the provisions of the Certified
Standing Orders, after they have rendered more than 240 days of
service in a calendar year from the date of the memorandum of
appointment issued to each one of the concerned workmen in the
year 1988. The alleged “policy decision” to appoint CISF personnel to
the security post is on deputation basis and cannot be called
appointment per se. Whereas, the concerned workmen have acquired
their right to be regularised under the provision of Clause 2(ii) of the
‘Certified Standing Orders for Contingent Employees of the Oil and
Natural Gas Commission’, which states thus:
….
The above emphasised portion of Clause 2(ii) of the Certified
Standing Orders states that a temporary workman who has put in
not less than 240 days of attendance in any calendar period of 12
consecutive months, which is actually contrary to the provision
under Section 25B(2) a of the Act, which states that a workman
shall be deemed to be in continuous service under an employer
for a period of one year, if the workman, during a period of twelve
calendar months preceding the date with reference to which
calculation is to be made, has actually worked under the employer
for not less than one hundred and ninety days in the case of a
workman employed below ground in a mine and two hundred and
forty days in any other case. In any case, it is clear that the
concerned workmen have clearly completed more than 240 days
of services subsequent to the memorandum of appointment
issued by the Corporation in the year 1988 in a period of twelve
calendar months, therefore, they are entitled for regularisation of
their services into permanent posts of the Corporation as per the
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Act as well as the Certified Standing Orders of the Corporation.

…..
Further, it was contended by the learned senior counsel that the
Certified Standing Orders of the Corporation do not apply to the
concerned workmen to claim regularisation in their posts as regular
employees as provided under Clause 2(ii) of the Page 49 49 Certified
Standing Orders of the Corporation. The said contention is wholly
untenable in law as the Standing Orders of the Corporation certainly
apply to the concerned workmen as they have been rendering their
services in the Corporation even prior to the year 1985, being
appointed through contractors, the Cooperative Society and directly
thereafter vide memorandum of appointment in the year 1988 by
issuing appointment orders on different dates during that year on
the condition that the Certified Standing Orders of the ONGC will not
be applicable to them. Such a condition incorporated in the
appointment orders issued to the concerned workmen is not valid in
law and the same is void for the reason that they are workmen for
the purpose of the Certified Standing Orders and therefore, the
above said condition has to be ignored. When the concerned
workmen were appointed by issuing the memorandum of
appointment to work in the posts of the Corporation, providing them
with monthly salaries, it cannot arbitrarily and unilaterally state that
the Certified Standing Orders of the Corporation are not applicable to
the concerned workmen. The concerned workmen cannot be denied
their legitimate, statutory and fundamental right to be regularised in
their posts as provided under Clause 2 (ii) of the Certified Standing
Orders on the basis of the above said contention urged on their
behalf and also because the Corporation did not follow the due
procedure as provided under the Appointment and Recruitment
Rules for appointment of the concerned workmen in the Corporation.
The said contention urged by the learned senior counsel on behalf of
the Corporation is an afterthought to justify their irregular act of
appointing them as temporary workmen and continuing them as
such for a number of years though they are entitled for regularisation
under Clause 2(ii) of the Standing Orders of the Corporation, which
action of it amounts to an unfair labour practice as defined under
Section 2(ra) of the Act, read with the provisions of Sections 25T and
25U of the Act, which prohibits such employment in the Corporation.
It would be unjust and unfair to deny them regularisation in their
posts for the error committed by the Corporation in the procedure to
appoint them in the posts. Further, the Corporation cannot use the
alleged “policy decision” as a veil to justify its action which included
inaction on its part in not regularising the concerned workmen in
their services under Clause 2(ii) of the Certified Standing Orders.
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39. In light of the above said discussion and legal principles laid
down by this Court in the cases referred to supra, we are of the
considered view that the procedure of appointments adopted by the
Corporation with respect to the concerned workmen initially
appointed through contractors, subsequently through the Co-
operative Society, and then vide memorandum of appointment
issued to each one of the concerned workmen in the year 1988 and
thereafter, continuing them in their services in the posts by the
Corporation without following any procedure as contended by the
learned senior counsel on behalf of the Corporation whose contention
is untenable in law and their appointment can be said as irregular
appointments but not as illegal as the same was not objected to by
any other Authority of the Corporation at any point of time. But their
appointment in their posts and continuing them in their services is
definitely cannot be termed as illegal, at best it can be called
irregular. Therefore, the Certified Standing Orders of the Corporation
by all means apply to the concerned workmen. The legal contention
urged on behalf of the Corporation that the statutory right claimed
by the concerned workmen under Clause 2(ii) of the Certified
Standing Orders of the Corporation for regularizing them in their
posts as regular employees after rendering 240 days of service in a
calendar is not an absolute right conferred upon them and their right
is only to consider their claim. This plea of the learned senior counsel
cannot again be accepted by us for the reason that the Corporation is
bound by law to take its decision to regularise the services of the
concerned workmen as regular employees as provided under Clause
2(ii) of the Certified Standing Orders after their completion of 240
days of service in a calendar year as they have acquired valid
statutory right. This should have been positively considered by the
Corporation and granted the status of regular employees of the
Corporation for the reason that it cannot act arbitrarily and
unreasonably deny the same especially it being a Corporate Body
owned by the Central Government and an instrumentality of the
State in terms of Article 12 of the Constitution and therefore, it is
governed by Part III of the Constitution. The Corporation should
exercise its power fairly and reasonably in accordance with law. This
has not been done by the Corporation as per the law laid down by
this Court in the case of Olga Tellis v. Bombay Municipal Corporation
wherein it was held as under : -
…..
….The said contention of the learned senior counsel on behalf of
the Corporation is wholly untenable in law and the reliance placed
on the aforesaid case is misplaced for the reason that it is an
undisputed fact 13 (2011) 9 SCC 775 that the workmen have
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been appointed on term basis vide memorandum of appointment

issued to each one of the concerned workmen in the year 1988 by
the Corporation who continued their services for several years.
Thereafter, they were denied their legitimate right to be
regularised in the permanent posts of the Corporation. The said
fact was duly noted by the High Court as per the contention urged
on behalf of the Corporation and held on the basis of facts and
evidence on record that the same attracts entry Item No. 10 of
Schedule V of the Act, in employing the concerned workmen as
temporary employees against permanent posts who have been
doing perennial nature of work and continuing them as such for
number of years. We affirm the same as it is a clear case of an
unfair labour practice on the part of the Corporation as defined
under Section 2(ra) of the Act, which is statutorily prohibited
under Section 25T of the Act and the said action of the
Corporation warrants penalty to be imposed upon it under Section
25U of the Act. In fact, the said finding of fact has been recorded
by both the learned single Judge and the Division Bench of the
High Court in the impugned judgment on the ground urged on
behalf of the Corporation. Even if, this Court eschews the said
finding and reason recorded in the impugned judgment accepting
the hyper technical plea urged on behalf of the Corporation that
there is no plea of unfair labour practice made in the claim
statement, this Court in this appeal cannot interfere with the
award of the Tribunal and the impugned judgment and order of
the High Court for the other reasons assigned by them for
granting relief to the concerned workmen. Even in the absence of
plea of an act of unfair labour practice committed by the
Corporation against the concerned workmen, the Labour
Court/High Court have got the power to record the finding of fact
on the basis of the record of the conciliation officer to ensure that
there shall be effective adjudication of the industrial dispute to
achieve industrial peace and harmony in the industry in the larger
interest of public, which is the prime object and intendment of the
Industrial Disputes Act. This principle of law has been well
established in a catena of cases of this Court. In the instant case,
the commission of an unfair labour practice in relation to the
concerned workmen by the Corporation is ex-facie clear from the
facts pleaded by both the parties and therefore, the courts have
the power to adjudicate the same effectively to resolve the
dispute between the parties even in the absence of plea with
regard to such an aspect of the case.” (Emphasis Supplied)
51. A close perusal of the facts of the instant case shows that
following unfair labour practices have been committed by ONGC with
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respect to the appellants : -

(a) ONGC continued to engage the appellants for several years after
Jwalamukhi project for which petitioners were initially engaged
came to an end.
(b) The stand taken by ONGC before Himachal Pradesh High Court to
deny relief of regularization of their services claimed by ONGC
that ONGC is in the process of retrenching the appellants and no
work is available with ONGC to continue with services of
appellants was most fallacious inasmuch as ONGC continued to
engage the appellants even several years after the dismissal of
earlier petitions filed by appellants by High Court of Himachal
Pradesh. Further, sufficient work was available with ONGC to
continue with the services of appellants is also evidenced from
various Working Papers, office notings and office orders etc. relied
upon by the appellants, particularly from the Working Paper dated
July 24, 1998 noted by us in the foregoing paras.
(c) ONGC was tossing the appellants from its one location to another
as per its requirement. (Initially the appellants were employed in
connection with Jwalamukhi project and were later transferred to
Jammu and Madhopur when Jwalamukhi project came to end.
Subsequently in the year 2004 some of the appellants were
transferred to Dehradun).
(d) The availability of permanent posts against which the appellants
could be regularized stands admitted by ONGC in the affidavit
filed by it in response to affidavit dated July 16, 2004 filed by
appellants wherein it has been stated by ONGC that contingent
employees who were junior to the appellants were permanently
recruited in ONGC. The aforesaid act of ONGC of permanently
recruiting juniors of appellants was patently illegal in view of
Standing Orders issued by ONGC prescribing consideration of
contingent employees who had put in more than 240 days of
service in twelve consecutive months for regularization on
occurrence of a vacancy and settlement dated September 23,
1989 arrived between some of the appellants and ONGC as per
which ONGC was to give preference to appellants at the time of
making recruitment to class III and IV posts in ONGC. (In ONGC's
case (supra), it was categorically held by Supreme Court that
Standing Orders issued by ONGC dealing with regularization of
casual/contingent workers cannot be thrown to winds by ONGC).
(e) A conjunctive reading of Working Papers dated June 10, 2005
and January 03, 2006 noted herein above brings out that in the
year 2004 ONGC transferred some of the appellants from Jammu
to Frontier Basin, Dehradun and subsequently sought to retrench
said appellants on the ground that they i.e. appellants are surplus
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at Dehradun. However, at the same time the work was available

with ONGC at Jharna, a site in Frontier Basin at Dehradun.
52. In view of above unfair labour practices committed by ONGC, the
appellants are entitled to regularization of their services in view of law
laid down by Supreme Court in Hari Nandan and ONGC's cases (supra).
53. We therefore allow the appeal and set aside the impugned
judgment and order dated June 01, 2010. We allow the writ petition
filed by the appellant with a direction to ONGC to regularize the
services of the appellant in terms of standing order dated July 15,
1962.
54. We leave the parties to bear their own costs all throughout.
———
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2011 SCC OnLine Mad 2862 : (2011) 3 LLJ 497

In the High Court of Madras

(BEFORE S. NAGAMUTHU, J.)

Oil and Natural Gas Corporation Limited

Versus
Petroleum Coal Labour Union and Others
W.P. No. 1846/2000
Decided on January 4, 2011

Page: 498

ORDER
1. Challenge in this writ petition is to the award made by the Industrial Tribunal,
Tamil Nadu, in Industrial Dispute No. 66/1991 dated May 26, 1999 wherein, the
Tribunal, holding that the non regularisation of workmen who are concerned in the
industrial dispute is not justified, has directed to regularise the services of the
workmen concerned with effect from January 14, 1990, the date on which all of them
had completed 480 days of attendance.
2. The facts of the case are as follows:— The petitioner is a Government company
namely Oil and Natural Gas Corporation Limited, (hereinafter referred to as ONGC)
which was originally established as a statutory corporation under the ONGC Act, 1959
and later on converted as a company in the year 1994. The ONGC has a project in
Cauveri Basin situated in and around Karaikal. There are about 8 drill sites in the said
project involving about 1050 regular employees. Due to developmental activities, the
said project required security arrangements. Such arrangements were made through
contractors. While so, the Government of India issued a notification on December 8,
1976 prohibiting the employment of workers on contract basis as watch and ward and
for cleaning the buildings in ONGC. In view of the same, the contract labourers who
were earlier engaged by the contractors providing security arrangements for Cauveri
project started demanding that they should be treated as regular employees of ONGC.
The same was not conceded to immediately. However, subsequently, a settlement was
arrived at between the trade union and the management under Section 18(1) of the
Industrial Disputes

Page: 499

Act, 1947 (hereinafter referred to as the Act) under which, a co-operative society was
formed for the welfare of the such contract labourers. On September 8, 1987, the
ONGC passed an order to induct Central Industrial Security Force (hereinafter referred
to as CISF) for the purpose of providing security to the ONGC projects.

3. Immediately, thereafter, the trade union filed W.P. No. 9688/1987 challenging
the decision of the ONGC to induct CISF and for a further direction to ONGC to absorb
the said workmen as regular employees. Yet another writ petition in W.P. No.
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11969/1987 was filed by the trade union seeking a mandamus to direct the ONGC to
absorb the workers engaged through the third respondent co-operative society viz.,
Priyadarshini Indra Co-operative Society. The said writ petition was dismissed by order
dated January 5, 1988.
4. When things stood thus, the ONGC issued separate orders to such workmen on
January 13, 1988 appointing them on term basis. Thus, from January 13, 1988
onwards, such employees who were originally engaged by the contractors and who
were also members of the Priyadarshini Indra Co-operative Society became the
employees of ONGC but on term basis. On September 10, 1990, the trade union raised
demands for regularisation of the above workers who were appointed on term basis.
The matter was considered by the Central Government and the Central Government
made an appropriate reference to the Industrial Tribunal, Chennai.
5. The following are the terms of reference:—
(i) Whether the management of ONGC is justified in not regularising the workmen
in the instant dispute, if not what relief the workmen is now entitled to?
(ii) Whether the management of ONGC is justified in not paying equal wages to the
workmen in the dispute on par with the regular worker and if not what relief the
workmen are entitled to?
6. The said reference was taken as an industrial dispute in I.D. No. 66/1991 by the
Industrial Tribunal. When the said matter was pending before the Tribunal, a memo
was filed by the trade union on April 28, 193 informing the Tribunal that reference No.
2 had been settled out of Court and therefore, no further adjudication was required.
Accordingly, reference No. 2 was closed and reference No. 1 alone was tried. It was at
this stage, in the year 1994, the ONGC, which was hitherto a Corporation established
under the Act, was converted into a public limited company.
7. Before the Tribunal, it was contended by the ONGC that the dispute itself was
not maintainable as the same would not fall within the scope of industrial dispute, as
per the provisions of the Industrial Disputes Act. It was also contended that since the
workmen concerned were not appointed by following the procedure relating to
appointment, they cannot be regularised. Thus, it was contended that the petitioners
were not entitled for regularisation.
8. Before the Industrial Tribunal, on the side of the trade union, 3 witnesses were
examined and 25 documents were exhibited. On the side of the management, 3
witnesses were examined and 12 documents were exhibited. Having considered the
above materials, the Industrial Tribunal passed award directing the ONGC to regularise
the workmen concerned. Aggrieved over the same, the ONGC is now before this Court
with this writ petition.
9. I have heard the learned counsel on either side and perused the records
carefully.
10. Reiterating the grounds raised in the writ petition, the learned senior counsel
Mr. G.M. Masilamani appearing for the petitioner would assail the award of the labour
Court on the ground that the Industrial Tribunal lacks jurisdiction under the Industrial
Disputes Act to pass an award to direct the ONGC to regularise the temporary
employees. He would further submit that if these workmen who were engaged
originally by the contractors and who were later on appointed by the ONGC on term
basis without following the due procedure in

Page: 500

respect of the selection and appointment of the employees of ONGC, are regularised,
the same would defeat the equality clause enshrined in Article 14 of the Constitution
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of India.

11. He would further submit that as held by the Honble Supreme Court in
Secretary, State of Karnataka v. Uma Devi, AIR 2006 SC 1806 : (2006) 4 SCC 1 :
(2006) 2 MLJ 326 : 2006-II-LLJ-722 case, these workmen cannot be regularised as
their appointments were not made in accordance with the regulations of ONGC relating
to the method of appointment. He would further submit that in two other writ petitions
filed before this Court, when a similar relief was sought for by similarly placed
workmen, in W.P. No. 7906/1999 and in W.P. No. 870/2004, this Court has negatived
the said request following the law laid down by the Honble Supreme Court in
Secretary, State of Karnataka v. Uma Devi, (supra) and in A. Umarani v. Registrar, Co-
operative Societies, AIR 2004 SC 4504 : (2004) 7 SCC 112 : (2005) 1 MLJ 6 : 2004-
III-LLJ-780. Therefore, the learned senior counsel would pray for setting aside the
award made by the Industrial Tribunal.
12. Mr. N.G.R. Prasad, the learned counsel appearing for the first respondent trade
union would stoutly oppose all the above grounds. According to him, the dispute
raised before the Industrial Tribunal would very much fall within the jurisdiction of the
Industrial Tribunal under the provisions of the Industrial Disputes Act and therefore,
the award of the Industrial Tribunal cannot be stated to be without jurisdiction. He
would further submit that unfair labour practice which is prohibited under Section 33
ofthe Industrial Disputes Act cannot be allowed to be perpetuated by the ONGC by
keeping these workmen on temporary basis for years together. He would further add
that these workmen have been working on temporary basis from the year 1988
continuously and keeping them as temporary employees for ever would surely be an
unfair labour practice and therefore, the Industrial Tribunal was right in issuing a
direction for their regularisation. He would further submit that the workmen cannot be
retrenched from service without complying with Section 33-A of the Act and without
following the procedure for retrenchment. If the workmen are so retrenched, without
following the mandatory provision contained in the Industrial Disputes Act, the same
shall be void. He would further submit that when an unfair labour practice is being
consistently practiced by ONGC, it would not be suffice to impose only a penalty upon
the ONGC under Section 131 of the Act. Instead, the power of the Industrial Tribunal
should be extended to safeguard the interest of such workmen since the Industrial
Disputes Act is a social legislation for the benefit of the workmen. He would further
contend that the power of the Industrial Tribunal is wider than that of the power of the
Civil Court. When unfair labour practice is practiced by the ONGC, in order to protect
the welfare of the workmen, the power of the Industrial Tribunal should appropriately
be exercised and that is what the Industrial Tribunal has done in the given case. He
would further contend that the law laid down by the Honble Supreme Court in
Secretary, State of Karnataka v. Uma Devi (supra) case has got no application at all in
respect of the industrial disputes. According to him, Secretary, State of Karnataka v.
Uma Devi (supra) case is concerned only with the public employment and with the
power of the High Court under Article 226 of the Constitution of India and the power of
the Honble Supreme Court under Article 32 of the Constitution of India to issue such a
direction for regularisation of illegally appointed employees. He would further point out
that Secretary, State of Karnataka v. Uma Devi, (supra) case came up for
consideration before the Honble Supreme Court in Maharashtra SRTC v. Casteribe
Rajya Parivahan Karmchari Sanghatana, (2009) 8 SCC 556 : 2009-IV-LLJ-286
wherein, the Honble Supreme Court has dealt with the scope of Secretary, State of
Karnataka v. Uma Devi (supra) in respect of labour matters. According to him, in the
said case, though the employees were appointed irregularly by the Maharashtra SRTC
Limited in violation of the Standing Orders, since they were exploited by the
corporation for years together by engaging them as piece-rate basis, the Hon'ble
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Supreme

Page: 501

Court held that such employees were entitled for permanent status and if such
privilege was not extended to such employees it would tantamount to putting
premium on their unlawful act of engaging in unfair labour practice. Taking me
through the said judgments, the learned counsel would further contend that the said
judgment of the Honble Supreme Court squarely applies to the facts of the present
case.

13. He would further contend that in Western India Automobile Association v.

Industrial Tribunal, Bombay, AIR (36) 1949 Federal Court 111 : 1949-I-LLJ-245 the
Federal Court has held that the Tribunal under the Industrial Disputes Act has
jurisdiction to include in award, direction as to re instatement of dismissed employees.
Relying on the same, the learned counsel would submit that the phrase ‘any dispute’
connected with the ‘employment or non employment’ should be understood to
encompass into its ambit, the non regularisation also. The learned counsel would
further contend that the two judgments relied on by the learned senior counsel
appearing for the petitioner from this High Court in W.P. No. 7906/1999 and in W.P.
No. 870/2004 have got no application to the facts of the present case. In those cases,
the workmen without approaching the Industrial Tribunal directly approached this
Court under Article 226 of the Constitution of India. That is the reason why, according
to the learned counsel, this Court in those two judgments took the view that such
positive direction under Article 226 of the Constitution of India for regularisation
cannot be granted in view of the law laid down in Secretary, State of Karnataka v. Uma
Devi, (supra) case.
14. The learned counsel would further contend that so far as the State of Tamil
Nadu is concerned, there is yet another state enactment namely “The Tamil Nadu
Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981”
under which, the employees are entitled for permanency. Nextly, the learned counsel
would place reliance on the judgment in Hindustan Petroleum Corporation Ltd. v.
Presiding Officer, Central Government Labour Court cum Industrial Tribunal, (2009) 1
MLJ 1115 : 2008 (4) CTC 819. When a similar question arose in respect of the power
of the Industrial Tribunal to issue such a positive direction to regularise the
employees, after having taken note of number of judgments of the Honble Supreme
Court as well as the said enactment namely, the Tamil Nadu Act 46 of 1981, this Court
has held that the Industrial Tribunal has got such power to issue a positive direction
for regularisation. The learned counsel would contend that the said judgment squarely
applies to the facts of the present case. For these reasons, the learned counsel would
pray for dismissal of the writ petition.
15. I have considered the rival submissions,
16. The foremost dispute between the parties in this case is regarding the non
regularisation of the workmen. Whether it would fall within the scope of industrial
dispute as defined in Section 2(k) of the Act is the primary question which would
decide the jurisdiction of the Industrial Tribunal. Simply because the Central
Government had thought it fit to refer the said dispute to the Industrial Tribunal, it
cannot be ipso facto taken that there existed an industrial dispute in terms of Section
2(k) of the Act. It is always open for the ONGC to contend and to establish that there
existed no industrial dispute. Therefore, it is to be seen whether the denial of the
ONGC to regularise the temporary workmen who have been working on term basis
from January 31, 1988 can be termed as an industrial dispute. For this purpose, it
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would be worthwhile to extract Section 2(k) of the Industrial Disputes Act which reads
as follows:
“2(k) “industrial dispute” means any dispute or difference between employers
and employers, or between employers and workmen, or between workmen and
workmen, which is connected with the employment or non-employment or the
terms of employment or with the conditions of labour, of any persons;”

Page: 502

17. A close reading of the above provision would make it abundantly clear that if
only the dispute is connected with the employment or non employment or the terms of
employment or with the conditions of labour, the same shall be an industrial dispute
requiring adjudication by the Industrial Tribunal. In this regard, I may refer to Section
25T of the Act which came to be inserted by Act 46 of 1982 with effect from August
21, 1984. The said provision reads as follows:
“25-T. Prohibition of unfair labour practice.- No employer or workman or a trade
union, whether registered under the Trade Unions Act, 1926 (16 of 1926), or not,
shall commit any unfair labour practice.”
18. What is unfair labour practice is defined in Section 2(ra) of the Act which
states, unfair labour practice means any of the practices specified in the Fifth
Schedule. Clause 10 of the Fifth Schedule states that, on the part of the employers,
“To employ workmen as badiis, casuals or temporaries and to continue them as such
for years, with the object of depriving them of the status and privileges of permanent
workmen” shall be unfair labour practice.
19. In the case on hand, since these workmen have been employed as temporary
workmen from January 13, 1988 that is for about 22 years, undoubtedly, it is an unfair
labour practice as defined in Section 2(ra) of the Industrial Disputes Act. If any such
unfair labour practice is practiced by any employer, of course, under Section 31 of the
Act, such employer can be punished with imprisonment. But, imposition of such
punishment will not in any manner come to the rescue of the victims of such unfair
labour practice. It is needless to point out that the employer can continue with such
unfair labour practice for ever if he is prepared to undergo the punishment to be
imposed under Section 31 of the Act. But the Industrial Disputes Act, being a
benevolent provision for the workmen, cannot receive such a narrow interpretation.
The victims of such unfair labour practice should receive a solace under the Act.
Therefore, the crucial question is as to whether, a dispute regarding unfair labour
practice is an industrial dispute in terms of Section 2(k) of the Industrial Disputes Act.
20. As pointed out by the learned counsel for the first respondent, the term
industrial dispute as defined in Section 2(k) of the Act came to be interpreted by the
Federal Court as early as in the year 1949 in Western India Automobile Association v.
Industrial Tribunal, Bombay, (supra). In that case, the phrase employment and non
employment employed in Section 2(k) of the Act came to be considered by the Federal
Court. After having made a thorough analysis of the law on the subject, in paragraph
No. 10 of the said judgment, the Federal Court has held as follows 1949-I-LLJ-245 at
p. 248:
“……… The words of the definition may be paraphrazed thus; “any dispute which
has connection with the workmen being in, or out of service or employment.” “Non
employment” is the negative of “employment” and would mean that disputes of
workmen out of service with their employers are within the ambit of the definition.
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It is the positive or the negative act of an employer that leads to employment or to

non-employment. It may relate to an existing employment or to a contemplated
employment, or it may relate to an existing fact of non-employment or a
contemplated non-employment. The following four illustrations elucidate this point :
(1) An employer has already employed a person and a trade union says “Please do
not employ him.” Such a dispute is a dispute as to employment or in connection
with employment. (2) An employer gives notice to a union saying that he wishes to
employ two particular persons. The union says “no”. This is a dispute as to
employment. It arises out of the desire of the employer to employ certain persons.
(3) An employer may dismiss a man, or decline to employ him. This matter raises a
dispute as to non-employment. (4) An employer contemplates turning out a
number of people who are already in his employment. It is a dispute as to
contemplated non-employment. “Employment or non-employment” constitutes the
subject

Page: 503

matter of one class of industrial disputes, the other two classes of disputes being
those connected with the terms of employment and the conditions of labour. The
failure to employ or the refusal to employ are actions on the part of the employer
which would be covered by the term “employment or non-employment.”
Reinstatement is connected with non-employment and is therefore within the words of
the definition. It will be a curious result if the view is taken that though a person
discharged during a dispute is within the definition of the word “workman”, yet if he
raises a dispute about dismissal and reinstatement, it would be outside the words of
the definition “in connection with employment or non-employment.” It was contended
that the words “employment or non-employment” were employed in the same sense,
just to remove any ambiguity that might arise if the word “employment” alone was
used. In other words, the word “non-employment” has limited the meaning of the
word employment”. To our mind, the result is otherwise. The words are of the widest
amplitude and have been put in juxtaposition to make the definition thoroughly
comprehensive. Mr. Setalvad contended that the expression “in connection with
employment or non-employment” excludes the question of non-employment itself
which must exist as a fact to supply the nexus with the dispute. The argument is, in
our opinion, unsound. The words “in connection with” widen the scope of the dispute
and do not restrict it by any means.”

21. In paragraph No. 25 of the said judgment, the Federal Court has held as follows
1949-I-LLJ-245 at p. 256:
“It was argued that though a dispute as to wrongful dismissal of an employee
and as to compensation for the same may be within the ambit of the definition, yet
a dispute as-to reinstatement was outside its scope. Two consequences naturally
flow from a decision that a dismissal was wrongful, (1) that the employee is entitled
to damages and (2) that he is entitled to reinstatement. That the dispute regarding
one relief is within the jurisdiction of the Tribunal, not qua the other seems illogical.
If the principal dispute which relates to wrongful dismissal or to a dismissal for an
unjust cause or as a result of victimization is within the ambit of the definition, all
that flows incidentally and consequentially from such a dispute (even if that
consequential matter is by itself a dispute), cannot be held to be outside the scope
of the words of the definition “employment or non-employment.”
22. A cursory reading of the said judgment would clearly reveal that if an employer
contemplates turning out a number of people who are already in his employment, such
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contemplated non-employment would surely fall within the ambit of Section 2(k) of
the Act.
23. In this case, the workmen are all victims of unfair labour practice. If they are
not regularised, at any time, they can be sent out of employment. Further, in my
considered opinion, the phrase “in connection with the employment” as employed in
Section 2k of the Act would surely fall into its ambit, the dispute relating to the
employment which is offended by the unfair labour practice as prohibited under
Section 33 of the Act. In such view of the matter, hold that the dispute relating to
employment in defiance of the legislative mandate contained in Section 25-T of the
Act is an industrial dispute as defined in 2(k) of the Act falling squarely within the
jurisdiction of the Industrial Tribunal. Therefore, I reject the contention of the
petitioner that the dispute raised in the given case was outside the scope of an
industrial dispute. Thus, I hold that the Industrial Tribunal was right in entertaining
the industrial dispute.
24. Now turning to the judgment of the Hon'ble Supreme Court in Maharashtra
SRTC v. Casteribe Rajya Parivahan Karmchari, (supra) it was a case where the
Maharashtra State Transport Corporation which is a state owned corporation had failed
to regularise Humber of employees for a long time Admittedly, those employees were
not appointed as per the Standing Order of the Corporation. In effect, they were all
irregularly

Page: 504

employed as employees on piece rate basis. When a dispute was raised seeking
regularisation, the Industrial Tribunal passed an award directing the employer to
regularise their services. Relying on this judgment, it is contended by the learned
counsel for the respondents that the said judgment is an authority for the proposition
that the Industrial Tribunal has got vide powers to entertain the dispute relating to
non-regularisation of workmen.

25. But, the learned senior counsel appearing for the petitioner would submit that it
was a case relating to the Maharashtra Recognition of Trade Unions and Unfair Labour
Practices Act, 1971 (hereinafter referred to as MRTU Act) and the same has nothing to
do with the Industrial Disputes Act. A perusal of the MRTU Act would go to show that
it was an act to define and provide for the prevention of certain unfair labour practices
and to constitute Courts for enforcing the provisions relating to unfair labour practices.
According to Section 3(16) of the MRTU Act unfair labour practices means unfair labour
practice as defined in Section 26 of the Act. Section 26 of the MRTU Act states that
unless the context requires otherwise ‘unfair labour practices mean any of the
practices listed in Schedule II, III and IV. It needs to be noted that this provision is
analogues to Section 2(ra) of the Industrial Disputes Act.
26. It is in this context, according to the learned senior counsel appearing for the
petitioner, in Maharashtra SRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana,
(supra) the Hon'ble Supreme Court has held that the Industrial Tribunal/Labour Courts
have got power not only to prohibit the unfair labour practice but also to take such
affirmative action such as to regularise such employees. But, I am unable to persuade
myself to accept the said contention for, in paragraph 26 of the said judgment, it has
been held as follows 2009-IV-LLJ-286 at p. 298:
“26. Secretary, State of Karnataka v. Uma Devi, (supra) does not denude the
Industrial and Labour Courts of their statutory power under Section 30 read with
Section 32 of the MRTU and PULP Act to order permanency of the workers who have
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been victims of unfair labour practice on the part of the employer under Item 6 of
Schedule IV where the posts on which they have been working exist. Secretary,
State of Karnataka v. Uma Devi (supra) cannot be held to have overridden the
powers of the Industrial and Labour Courts in passing appropriate order under
Section 30 of the MRTU and PULP Act, once unfair labour practice on the part of the
employer under Item 6 of Schedule IV is established.”
27. Of course, there is no such provision like Section 30 of the MRTU & PULP Act in
the Industrial Disputes Act. However, as I have already stated, in my considered
opinion, the provisions of the Industrial Disputes Act cannot receive such a narrow
interpretation to make the Industrial Tribunals/Labour Courts as mute spectators when
it is brought before the Industrial Tribunals or Labour Courts that unfair labour practice
is being engaged by an employer. Of course, Section 31 of the Act punishes such
employer who indulges in unfair labour practice. It is an offence under Section 31 of
the Act which needs to be tried only by a Judicial Magistrate. The Labour Court cannot
impose any punishment under Section 31 of the Act on the erring employer. If the
Industrial Disputes Act is so interpreted as it is sought to be made by the learned
senior counsel, then the victims of unfair labour practice shall have no remedy at all
under the Act. Surely, that would have been the legislative intent. For the foregoing
discussions, I hold that the Industrial Tribunal/Labour Court is empowered to deal with
a dispute arising out of the non regularisation of the workmen who are the victims of
unfair labour practice.
28. Now, let me move on to the next question as to whether the workmen
concerned in this case are entitled for regularisation and whether the Industrial
Tribunal was right in ordering for such regularisation in the context of the law laid
down by the Constitution Bench in Secretary, State of Karnataka v. Uma Devi, (supra)
case. A close reading of

Page: 505

Secretary, State of Karnataka v. Uma Devi (supra) case would go to show that the
Hon'ble Supreme Court reiterated the legal position that adherence to the rule of
equality in public employment is a basic feature of our Constitution and since the rule
of law is the core of our Constitution, a Court would certainly be disabled from passing
an order upholding a violation of Article 14 or in ordering the overlooking of the need
to comply with the requirements of Article 14 read with Article 16 of the Constitution.
The Hon'ble, Supreme Court further went on to say that consistently with the scheme
for public employment, it has to be necessarily held that unless the appointment is in
terms of the relevant rules and after a proper competition among, qualified persons,
the same would not confer any right on the appointee. In the said judgment, the
Hon'ble Supreme Court while dealing with the temporary employees has held as
follows 2006-II-LLJ-722 at p. 738:

“34…… Similarly, a temporary employee could not claim to be made permanent

on the expiry of his term of appointment. It has also to be clarified that merely
because a temporary employee or a casual wage worker is continued for a time
beyond the term of his appointment, he would not be entitled to be absorbed in
regulan service or made permanent, merely on the strength of such continuance, if
the original appointment was not made by following a due process of selection as
envisaged by the relevant rules. It is not open to the Court to prevent regular
recruitment at the instance of temporary employees whose period of employment
has come to an end or of ad hoc employees who by the very nature of their
appointment, do not acquire any right. The High Courts acting under Article 226 of
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the Constitution, should not ordinarily issue directions for absorption, regularisation,
or permanent continuance unless the recruitment itself was made regularly and in
terms of the constitutional scheme……
29. In the judgment (Secretary, State of Karnataka v. Uma Devi, (supra), the
Hon'ble Supreme Court has held as follows 2006-II-LLJ-722 at p. 739:
“36……A total embargo on such casual or temporary employment is not possible,
given the exigencies of administration and if imposed, would only mean that some
people who at least get employment temporarily, contractually or casually, would
not be getting even that employment when securing of such employment brings at
least some succour to them. After all, innumerable citizens of our vast country are
in search of employment and one is not compelled to accept a casual or temporary
employment if one is not inclined to go in for such an employment. It is in that
context that one has to proceed on the basis that the employment was accepted
fully knowing the nature of it and the consequences flowing from it. In other words,
even while accepting the employment, the person concerned knows the nature of
his employment. It is not an appointment to a post in the real sense of the term.
The claim acquired by him in the post in which he is temporarily employed or the
interest in that post cannot be considered to be of such a magnitude as to enable
the giving up of the procedure established, for making regular appointments to
available posts in the services of the State……………….”
30. In para 38 of the judgment, the Hon'ble Supreme Court has held as follows
2006-II-LLJ-722 at p. 740:
“38. When a person enters a temporary employment or gets engagement as a
contractual or casual worker and the engagement is not based on a proper selection
as recognised by the relevant rules or procedure, he is aware of the consequences
of the appointment being temporary, casual or contractual in nature. Such a person
cannot invoke the theory of legitimate expectation for being confirmed in the post
when an appointment to the post could be made only by following a proper
procedure for selection and in cases concerned, in consultation with the Public
Service Commission. Therefore, the theory of legitimate expectation cannot be
successfully advanced by temporary, contractual or casual employees……”

Page: 506

31. From the above judgment of the Hon'ble Supreme Court, it is crystal clear that
the constitution Bench of the Hon'ble Supreme Court was more concerned with back
door entries i.e., by overlooking the regular process of selection and appointment in
the matter of public employments. The persons, who claim that they are eligible for
such posts, should be allowed to participate in the contest and there must be a proper
selection based on merits as per the relevant service regulations and then only such
appointments could be made. No doubt, the Hon'ble Supreme Court has further held
that in the event of illegally appointed temporary employees being made permanent,
the same will surely offend Articles Hand 16of the Constitution because the other duly
qualified persons are kept out of the contest for the said posts. However, in para 44 of
the judgment, the Hon'ble Supreme Court has held that in the matter of irregularly
appointed persons, the Union of India and the State Governments and their
instrumentalities should take steps to regularise, as a one time measure, the services
of such irregularly appointed persons. In para 44 of the judgment, the Hon'ble
Supreme Court has held as follows 2006-II-LLJ-722 at p. 742:
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“44. One aspect needs to be clarified. There may be cases where irregular
appointments (not illegal appointments) as explained in S.V. Narayanappa, AIR
1967 SC 1071, RN. Nanjundappa, (1972) 1 SCC 409 and B.N. Nagarajan, (1979) 4
SCC 507 and referred to in para 15 above, of duly qualified persons in duly
sanctioned vacant posts might have been made and the employees have continued
to work for ten years or more but without the intervention of orders of the Courts or
of Tribunals. The question of regularisation of the services of such employees may
have to be considered on merits in the light of the principles settled by this Court in
the cases above referred to and in the light of this judgment. In that context, the
Union of India, the State Governments and their instrumentalities should take steps
to regularise as a one-time measure, the services of such irregularly appointed, who
have worked for ten years or more in duly sanctioned posts but not under cover of
orders of the Courts or of Tribunals and should further ensure that regular
recruitments are undertaken to fill those vacant sanctioned posts that require to be
filled up, in cases where temporary employees or daily wagers are being now
employed. The process must be set in motion within six months from this date. We
also clarify that regularisation, if any already made, but not sub judice, need not be
reopened based on this judgment, but there should be no further bypassing of the
constitutional requirement and regularising or making permanent, those not duly
appointed as per the constitutional scheme.”
32. Therefore, it is crystal clear that while declaring the law that temporary
employees cannot claim for absorption as regular employees, as of right, the Hon'ble
Supreme Court has carved out an exception in respect of irregularly appointed
temporary employees (not illegally appointed temporary employees). After having
elaborately discussed the law laid down in Secretary, State of Karnataka v. Uma Devi
(supra) case, in Maharashtra State Road Transport Corporation v. Casteribe Rajya
Parivahan Karmchari Sanghatana (supra), the Hon'ble Supreme Court has held as
follows 2009-IV-LLJ-286 at p. 297:
“26…… The power given to the Industrial and Labour Courts under Section 30 is
very wide and the affirmative action mentioned therein is inclusive and not
exhaustive. Employing badlis, casuals or temporaries and to continue them as such
for years, with the object of depriving them of the status and privileges of
permanent employees is an unfair labour practice on the part of the employer under
item 6 of Schedule IV. Once such unfair labour practice on the part of the employer
is established in the complaint, the Industrial and Labour Courts are empowered to
issue preventive as well as positive direction to an erringemployer. The provisions of
MRTU & PULP Act and the powers of Industrial and Labour Courts provided therein
were not at all under consideration in

Page: 507

Secretary, State of Karnataka v. Uma Devi, (supra). As a matter of fact, the issue like
the present one pertaining to unfair labour practice was not at all referred to,
considered or decided in Secretary, State of Karnataka v. Uma Devi, (supra). Unfair
labour practice on the part of the employer in engaging employees as badlis, casuals
or temporaries and to continue them as such for years with the object of depriving
them of the status and privileges of permanent employees as provided in item 6 of
Schedule IV and the power of Industrial and Labour Courts under Section 30 of the Act
did not fall for adjudication or consideration before the Constitution Bench. Secretary,
State of Karnataka v. Uma Devi, (supra) does not denude the Industrial and Labour
Courts of their statutory power under Section 30 read with Section 32 of MRTU & PULP
Act to order permanency of the workers who have been victims of unfair labour
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practice on the part of the employer under item 6 of Schedule IV where the posts on
which they have been working exists. Secretary, State of Karnataka v. Uma Devi,
(supra) cannot be held to have overridden the powers of Industrial and Labour Courts
in passing appropriate order under Section 30 of MRTU & PULP Act, once unfair labour
practice on the part of the employer under item 6 of Schedule IV is established.”

33. As I have already stated, the learned senior counsel appearing for the petitioner
would try to persuade that the above observations made in Maharashtra State Road
Transport Corporation v. Casteribe Rajya Parivahan Karmchari Sanghatana (supra)
case cannot have bearing to the facts of the present case. Of course, there appears to
be some force in the said argument, but I do not find any substance. Though it is true
that in Section 30 of the MRTU & PULP Act, the Industrial Tribunals/Labour Courts have
been given statutory power to pass appropriate orders, if once unfair labour practice
by the employer is noticed. Admittedly, there is no similar specific provision contained
in the Industrial Disputes Act. But, it is of no importance. As I have already held in the
earlier paragraphs, though there is no such specific provision in the Industrial Disputes
Act analogous to Section 30 of the MRTU and PULP Act, the Industrial Tribunals/Labour
Courts constituted under the Industrial Disputes Act have got such power to give relief
to the victims of the unfair labour practice. In Maharashtra State Road Transport
Corporation v. Casteribe Rajya Parivah Karmachar Sanghtan, (supra), the Hon'ble
Supreme Court has held that that the Industrial Tribunals/Labour Courts have got
power to issue such a positive direction to regularise the temporary employees who
were working for a number of years. In my considered opinion, though there is no
such provision like Section 30 of the MRTU and PULP Act in the Industrial Disputes Act
still, the existing provisions of the Industrial Disputes Act are sufficient for the
Industrial Tribunals/Labour Courts to issue such an affirmative direction to the
employer to regularise the services of the workmen who are the victims of unfair
labour practice since such a dispute regarding non regularisation of employees who are
the victims of unfair labour practice itself is an industrial dispute in terms of Section 2
(k) of the Industrial Disputes Act.
34. A question would now arise as to whether the workmen in this writ petition
were all illegally appointed. The answer is an emphatic no. They were all only
irregularly appointed workmen. It is not the case that they did not possess necessary
qualifications. Further, for these posts appointment need not be made by getting the
names of the qualified candidates from the employment exchange. Though the
procedure contemplated in the Standing Order of the ONGC was not followed when
these workmen were appointed on temporary basis in the year 1988, still, I am of the
view, they are entitled for regularisation. For this proposition, I may usefully refer the
Maharashtra State Road Transport Corporation v. Casteribe Rajya Parivahan Karmchari
Sanghatana, (supra) case which reads thus 2009-IV-LLJ-286 at p. 301:
“34. We find merit in the submission of Mr. Shekhar Naphade, learned senior
counsel

Page: 508

for the employees that Standing Orders are contractual in nature and do not have a
statutory force and breach of Standing Orders by the Corporation is itself an unfair
labour practice. The concerned employees having been exploited by the Corporation
for years together by engaging them on piece-rate basis, it is too late in the day for
them to urge that procedure laid down in Standing Order No. 503 having not been
followed, these employees could not be given status and principles of permanency.
The argument of the Corporation, if accepted, would tantamount to putting premium
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on their unlawful act of engaging in unfair labour practice….”

35. A reading of the above would make it clear that the Hon'ble Supreme Court was
aware of the fact that the employees concerned in that case were also not appointed
as per the procedures laid down in the Standing Orders pertaining to Maharashtra
State Road Transport Corporation. But, the Hon'ble Supreme Court, after having taken
note of the law laid down by the Hon'ble Supreme Court in Secretary, State of
Karnataka v. Uma Devi, (supra) case and having taken a particular note of the fact
that the workmen therein were not appointed as per the procedures laid down in the
Standing Orders, held that they are entitled for permanency. The Hon'ble Supreme
Court was of the view that denial of permanency to such workmen would tantamount
to putting premium on their unlawful act of engaging in unfair labour practice. In this
case also, as I have already stated, since these workmen are all the victims of unfair
labour practice for several years though they were not appointed by following the
procedures laid down by the ONGC still, they are entitled for regularisation as their
appointment cannot be stated to be illegal.
36. Now, coming to the judgments of this Court in M. Rajan v. ONGC, W.P. No.
906/1999 dated January 4, 2010 and M.D. Iqbal Basha v. ONGC, W.P. No. 870/2004
dated February 23, 2010, as pointed out by the learned counsel appearing for the
workmen, those are the cases where the workmen, instead of raising an industrial
dispute, straightaway approached the High Court by way of writ petitions under Article
226 of the Constitution. It was in those circumstances, this Court in those cases, took
the view that as held in Secretary, State of Karnataka v. Uma Devi (supra) case as well
as in A. Umarani v. Registrar, Co-operative Societies, (supra) case, the power under
Article 226 of the Constitution cannot be exercised to issue a direction for
regularisation. But, in the case on hand, the 1st respondent union has raised an
appropriate industrial dispute and the same was referred under Section 10 of the
Industrial Disputes Act by the Central Government. The reference was not challenged
by the petitioner. As I have already stated, the Industrial Tribunal/Labour Court has
got power to adjudicate upon the said issue. But, such power to adjudicate upon the
industrial dispute cannot be exercised by the High Courts under Article 226 of the
Constitution. That was precisely the reason why, in the aforesaid two cases, this Court
declined to exercise its power under Article 226 of the Constitution so as to issue a
direction for regularisation.
37. Very recently, yet another Judge of this Court (Hon'ble Mr. Justice K. Chandru)
had an occasion to deal with an identical issue in Hindustan Petroleum Corporation
Limited v. Presiding Officer, Central Government Labour Court-cum-Industrial Tribunal,
Chennai, (supra). In that case, the learned Judge, having considered Secretary, State
of Karnataka v. Uma Devi, (supra), A. Umarani v. Registrar, Co-operative Societies,
(supra) as well as the Maharashtra State Road Transport Corporation v. Casteribe
Rajya Parivahan Karmchari Sanghatana, (supra) cases, in para 33 has held as follows:
“33. Therefore, the present issue will have to be decided in the light of the
parameters indicated by the latest decision of the Supreme Court in O.N.G.C. Case
(cited supra) which had taken note of all the contentions raised by the learned
Advocate General. The sum and substance of the decisions are that if it is
established that the

Page: 509

workmen were employed directly by HPCL, even on temporary Ibasis, they are eligible
for regularisation provided it is shown that they have not come through any back door.
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One such back door entry as indicated in the decisions of the Su prem e Court in Uma
Rani and Uma Devi (3)s cases (cited supra) is not getting the names sponsored
through the Employment Exchange.”

38. The learned Judge has also taken note of the Tamil Nadu Industrial
Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (Tamil Nadu
Act 46 of 1981). The said Tamil Nadu Act 46 of 1981 was upheld by the Hon'ble
Supreme Court in State of Tamil Nadu v. Nellai Cotton Mills Limited, (1990) 2 SCC
518 : 1991-I-LLJ-35. A deep reading of the said Act would go to show that it does not
distinguish between regularly appointed temporary employees and irregularly
appointed temporary employees. It is an affirmative Act in favour of the temporary
employees who have worked for more than 480 days in a period of two calender years
to get regularised in their service. To repeat, it is immaterial as to whether such
employees were regularly appointed by following the procedure for selection and
appointment or irregularly appointed. When the said Act has been upheld by the
Hon'ble Supreme Court, in my considered opinion too, there can be no gain saying in
contending that the Industrial Tribunal/Labour Court cannot issue a positive direction
to regularise irregularly appointed temporary employees who had worked for a period
of more than 480 days in two calendar years. This is, exactly, the view taken by the
learned single Judge (Justice K. Chandru) of this Court in paragraph 38 of the
Judgement which runs as follows:
“38. Once there is a valid State enactment, providing for relief to such of those
workmen deemed permanency to those who had completed 480 days’ of service
within a period of two calendar years then, such workmen getting permanent status
cannot be questioned by any Management. Such conferment of permanent status to
the workmen cannot be labelled as violation of Articles 14 and 16 of the
Constitution. The effect of a local enactment conferring permanent status to
workmen was never considered by any Court so far.”
39. Coming to the factual matrix, as I have already stated, there is no dispute that
these petitioners were appointed on temporary basis in the year 1988 and they have
been continuously working (i.e.,) for more than 480 days in two calendar years. Of
course, their appointments are all irregular, even then they 5 are entitled for
regularisation, in view of the law laid down by the Hon'ble Supreme Court in
Maharashtra State Road Transport Corporation v. Casteribe Rajya Parivahan Karmchari
Sanghatana, (supra) 8 case and followed by this Court in Hindustan Petroleum
Corporation Limited v. Presiding Officer, Central Government Labour Court-cum-
Industrial Tribunal, (supra). Thus, I do not find any infirmity in the award passed by
the Industrial Tribunal warranting interference at the hands of this Court.
40. In the result, the writ petition fails and the same is accordingly dismissed. No
costs.
———
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W.A. No. 1006 of 2011

Oil and Natural Gas Corporation Ltd. v. Petroleum Coal Labour Union

2011 SCC OnLine Mad 1150

(BEFORE M.Y. EQBAL, C.J. AND T.S. SIVAGNANAM, J.)

Oil and Natural Gas Corporation Ltd., Cauvery Asset, Neravy

Comples, Pondicherry .…. Petitioner
v.
1. The Petroleum Coal Labour Union, Represented by its General
Secretary, No. 66, Keezharaja Veedhi, Chennai.
2. The Industrial Tribunal, Chennai.
3. G. Vijayarangan
4. R. Sekar
5. K.G. Kalidoss
6. N. Sivasubramanian
7. M. Chandrakasan
8. G. Venkatesan
9. C. Sivashanmugam
10. G. Moorthy
11. G. Anbazhagan
12. T.S. Rajkumar
13. V.N. Jayakumar
14. M. Sudhakar
15. N. Padmanathan
16. M. Prabakar
17. V. Murugan
18. R. Gunasekaran
19. R. Rathinakumar
20. G. Jayakumar
21. S. Sakthivel
22. K. Vadivel
23. T. Annadurai
24. V. Rajendiran
25. M. Rajaram
26. N. Manohar
27. G. Ashok Kumar
28. D. Jawahar
29. S. Venugopal
30. K. Swaminathan
31. V. Srinivasan
32. C. Govindaraj
33. M. Sekar
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34. N. Ramalingam
35. B. Govindaraju
36. N. Kamaraj
37. P. Govindasamy
38. M. Kamaraj
39. R. Selvaraj
40. A. Santhanarajan
41. T. Sekar
42. A.R. Rajendran
43. S. Anbarasan .…. Respondents
For Petitioner: Mr. G.M. Masilamani Senior counsel for Mr. K. Shanmugakani
For Respondents: Mr. N.G.R. Prasad for R1, Mr. S. Ayyathurai for RR3 to 43
W.A. No. 1006 of 2011
Decided on August 11, 2011

PRAYER: Writ appeals filed under clause 15 of the Letter Patent against the order
dated 04.01.2011, made in W.P. No. 1846 of 2000.

JUDGMENT

THE HON'BLE CHIEF JUSTICE & T.S. SIVAGNANAM, J.

This appeal is directed against the judgment and order in W.P. No. 1846 of 2000,
dated 04.01.2011.

2. The petitioner in the writ petition is the appellant herein, which is a Government
company, namely, Oil and Natural Gas Corporation Limited, (hereinafter referred to as
the ‘ONGC’). The challenge in the writ petition was to an award passed by the
Industrial Tribunal, Tamil Nadu, in I.D. No. 66 of 1991, dated 26.05.1999, by the said
award, the Tribunal held the non-regularization of the workmen concerned in the
dispute is not justified and the appellant was directed to regularise the services of all
the workmen with effect from 14.01.1990, the date on which all of them completed
480 days.

3. Some factual background would be necessary before we approach the controversy.

ONGC has a project in Cauveri Basin, situated in and around Karaikal and about 1050
employees have been regularly employed by the ONGC. The security arrangements for
the project was made through contractors. The Government of India, by notification
dated 08.12.1976, prohibited the employment of workers on contract basis and the
contract labourers, who were engaged by contractors providing security arrangements,
demanded that they should be treated as regular employee of the ONGC. A settlement
was arrived at between the Trade Union and the Management under Section 18(1) of
the Industrial Disputes Act, 1947, (I.D. Act) under which, it was agreed to form a co-
operative society for the welfare of such contract labourers. During 1987, ONGC took a
decision to induct the Central Industrial Security Force (CISF) for the purpose of
providing security to its projects. This was challenged by the trade union by filing a
writ petition being W.P. No. 9688 of 1987 and also for a consequential direction to
absorb the workmen as regular employees. Another writ petition being W.P. No. 11969
of 1987 was filed for a direction to the ONGC, to absorb the workers engaged through
the cooperative society. The said writ petition was dismissed by this Court, by order
dated 05.01.1988.
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4. At that stage, ONGC issued an order dated 13.01.1988, in favour of such workmen
by appointing them on term basis. As a result of the said order, the employees who
were engaged through contractors and those who were members of the cooperative
society became employees of ONGC on term basis. Thereafter, the trade union raised a
dispute claiming regularization, which was considered by the Central Government and
referred to the Industrial Tribunal for adjudication.

5. Two questions were referred to the Tribunal, namely,

i) Whether the management of ONGC is justified in not regularizing the workmen in

the instant dispute, if not what relief the workmen is now entitled to?

ii) Whether the management of ONGC is justified in not paying equal wages to the
workmen in the dispute on par with the regular worker and if not what relief the
workmen are entitled to?

6. The reference was taken on file by the Tribunal as I.D. No. 66 of 1991. Before the
Tribunal, the Trade Union filed a memo during April 1993, stating that reference no.
(ii) has been settled out of Court and no further adjudication is required. Therefore,
the Tribunal adjudicated reference no. (i) alone. Primarily two contentions were raised
before the Tribunal by stating that the dispute was not maintainable, as the same
would not fall within the scope of industrial dispute, as per the provisions of the I.D.
Act and since, the appointment of the workmen was not made after following any
procedure relating to appointment, they cannot seek for regularization. Oral and
documentary evidence were placed before the Tribunal by the workmen as well as the
management and ultimately, the Tribunal passed the award, dated 26.05.1999,
directing that the services of the workmen should be regularized with effect from the
date on which all of them completed 480 days.

7. ONGC challenged the said award by filing the above writ petition and before the
learned Single Judge, it was contended that the Tribunal erroneously exercised it
jurisdiction and passed an award to direct the ONGC to regularise the temporary
employees. The employees, who were originally engaged through contractors, without
following any procedure of selection and appointment, their services cannot be
regularised. Reliance was placed on the decision of the Hon'ble Supreme Court in
Secretary, State of Karnataka v. Uma Devi (2006) 4 SCC 1.

8. On behalf of the workmen/trade union, it was contended that the dispute falls
within the jurisdiction of the industrial Tribunal under the provisions of the I.D. Act
and the Tribunal had sufficient jurisdiction to adjudicate the dispute. It was further
contended that the workmen have been working on temporary basis from 1988
continuously and keeping them on temporary basis for ever is an unfair labour
practice. Therefore, it was contended that the Tribunal was right in directing the
workmen to be regularised. Further, it was contended that the law laid down in the
case of Uma Devi (supra) has no application to cases of industrial adjudication.

9. The learned Single Judge held that the dispute between the parties regarding non
regularization of the workmen falls within the scope of industrial dispute as defined
under Section 2(k) of the I.D. Act and further held that the workmen are all victims of
unfair labour practice having been employed for several years and though, they were
not appointed by following the procedure laid down by ONGC, they were entitled for
regularization and their appointment cannot be stated to be illegal. With the above
finding and other findings on merits the writ petition was dismissed by the learned
Single Judge, by judgment dated 04.01.2011. Challenging the said order, the present
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appeal has been filed.

10. The learned Senior counsel appearing for the appellant would contend that the
learned Single Judge was not right in holding, that though the procedure
contemplated in the standing order of ONGC was not followed, when the workmen
were appointed on temporary basis are still they are entitled for regularization. It was
contended that the very appointment itself having been illegal, no order of
regularization could be passed. It was further contended that the security guards were
employed at Karaikal and the provisions of the Tamil Nadu Industrial Establishment
(Conferment of Permanent Status) Act, 1981, is not applicable to the State of
Pondicherry. Further, it was contended that the learned Single Judge placed reliance
on a decision relating to the Maharastra Recognition of Trade Union and Unfair Labour
Practice Act, 1971 and there is no such similar provision as Section 30 of the said Act
in the I.D. Act and therefore, the order passed by the learned Single Judge requires
interference. The learned Senior counsel appearing for the petitioner placed heavy
reliance on the decision of the Hon'ble Supreme Court in the case of Uma Devi (supra).

11. We have considered the submissions of the learned Senior counsel appearing for
the petitioner and perused the materials available on record.

12. The appellant management would term the appointment of the workmen as an
illegal appointment as they were appointed to the said post either through a contractor
or through the cooperative society, without following the procedure contemplated for
selection and appointment in the standing order of ONGC. By placing reliance on the
decision of the Hon'ble Supreme Court in Uma Devi (supra), it is contended that such
appointees/workmen cannot seek regularization. One vital fact, which cannot be lost
sight of is that the workmen have been working on temporary basis from 1988
onwards and they were continuously engaged from the said date and obviously, the
management could not have retrenched the said workmen without following the
mandatory procedure contained under the I.D. Act. The management's contention that
the appointment was an illegal appointment appears to stem out of the observations
made by the Hon'ble Supreme Court in the case of Uma Devi (supra). However, the
Hon'ble Supreme Court in Maharastra SRTC v. Casteribe Rajya Parivahan Karmchari
Sanghatana [(2009) 3 SCC 556], held that the decision in Uma Devi (supra) does not
denude the Industrial and Labour Courts of their statutory power under Section 30
read with Section 32 of the MRTU and PULP Act to order permanency of the workers
who have been victims of unfair labour practice on the part of the employer and that
the said judgment cannot be held to have overridden the powers of the Industrial and
Labour Courts in passing appropriate orders.

13. The learned Single Judge after taking note of the decision of the Hon'ble Supreme
Court rendered a finding that the Labour Court is not denuded of its jurisdiction. As
regards the contention that there is no similar provision as Section 30 of the
Maharastra Act, it was held that the provisions of the I.D. Act cannot receive a narrow
interpretation to make the industrial Tribunals/Labour as mute spectators. At this
stage, we may quote the observations of the learned Single Judge, which is as
hereunder:-

“29. Of course, there is no such provision like section 30 of the MRTU & PULP Act in the
Industrial Disputes Act. However, as I have already stated, in my considered opinion,
the provisions of the Industrial Disputes Act cannot receive such a narrow
interpretation to make the Industrial Tribunals/Labour Courts as mute spectators when
it is brought before the Industrial Tribunals or Labour Courts that unfair labour practice
is being engaged by an employer. Of course, Section 31 of the Act punishes such
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employer who indulges in unfair labour practice. It is an offence under Section 31 of

the Act which needs to be tried only by a Judicial Magistrate. The Labour Courts cannot
impose any punishment under Section 31 of the Act on the erring employer. If the
Industrial Disputes Act is so interpreted as it is sought to be made by the learned
Senior Counsel, then the victims of unfair labour practice shall have no remedy at all
under the Act. Surely, that would have been the legislative intent. For the foregoing
discussions, I hold that the Industrial Tribunal/Labour Court is empowered to deal with
a dispute arising out of the non regularization of the workmen who are the victims of
unfair labour practice.”

14. Further, the learned Single Judge elaborately examined the question as to whether
the workmen are entitled for regularization and whether the award of the Industrial
Tribunal was justified. After considering the decision of the Hon'ble Supreme Court in
Uma Devi (supra), the learned Single Judge took note of paragraph 44 of the
judgment of the Hon'ble Supreme Court, wherein the Hon'ble Supreme Court held that
in the matter of irregularly appointed persons, the Union of India and State
Government and its instrumentalities should take steps to as a one time measure,
regularise the services of irregularly appointed persons.

15. After considering the nature of the evidence, which was placed before the Labour
Court, which was appreciated by the learned Single Judge, we are of the firm view that
the appointment of the said workmen cannot be termed to be an illegal appointment,
but was only a irregular appointment and therefore, they were entitled for
regularization, having been employed on temporary basis from 1988 onwards.

16. Hence, for all the above reasons, we find no grounds to interfere with the order
passed in the writ petition. Accordingly, the writ appeal fails and it is dismissed. No
costs.

———
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2005 SCC OnLine Guj 89 : (2005) 2 GLH 703 : (2005) 46 (3) GLR 2152 : (2006)
1 LLJ 587

Gujarat High Court

(BEFORE M.S. SHAH AND D.H. WAGHELA, JJ.)

Oil and Natural Gas Corpn. Ltd … Petitioners;

Versus
Engineering Majdoor Sangh … Respondents.
In Special Civil Application No. 12850 of 1994 with Civil Application No. 11658 of
1999*
Letters Patent Appeal No. 759 of 1999
Decided on May 12, 2005

Page: 705

The Judgment of the Court was delivered by

D.H. WAGHELA, J.:— 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

Page: 706

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
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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 oilier 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.”
2. 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 Genera] 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. 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 ?”
3. 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

Page: 707

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
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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.

4. 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.
5. 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.
6. 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

Page: 708

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….”
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7. As for the factual controversy regarding the workmen concerned, i.e. those
excepted 189 workmen who were not permitted ro 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.
8. 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.
9. 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

Page: 709

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
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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 regularisalion 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

Page: 710

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
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by conversion and therefore the employees had to seek employment in different

names after completing 180 days…….”

10. 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.
11. 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 Nos. 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.
12. 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

Page: 711

the ONGC. Therefore, those workmen were required to be continued in service without
any break.

13. After the aforesaid order dated 30.5.1994 becoming final upon rejection of the
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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.
14. 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.
15. 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.
16. During the pendency of this appeal, by order dated 28.1.2000, the order passed
by the learned Single Judge was stayed except for 156 workmen whose names
appeared in the list at. pages 523-526 of the L.P.A. and those 156 persons were
directed to be employed prospectively in the field work known as “field party”. The
petition for Special Leave to Appeal (Civil) No. 6753 of 2000 preferred from the said
order was withdrawn on 16.10.2000. Upon the ONGC seeking clarification of the
aforesaid order dated 28.1.2000, it was conceded on behalf of the workmen that the
workmen concerned were to be employed as “seasonal workers”. as they were being
employed and it was clarified that the benefits to be granted to the workmen under
the impugned judgment were to be granted prospectively. Upon that order being
carried in appeal to the Supreme Court, it was observed as under by the Hon'ble
Supreme Court in its order dated 16.2.2001:
“……It is unnecessary to further clarify the order here. The benefits given to field
workers which are granted by the learned Single Judge should be made available to
those 156 persons pending disposal of the appeal. The appeal is accordingly
disposed of.”
“We observe that having regard to the controversy involved in this appeal, it
would be appropriate for the High Court to

Page: 712

dispose of the appeal as expeditiously as possible, preferably within three months

from today. No costs.”
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(Emphasis added.)
17. Thereafter, several civil applications and miscellaneous civil applications have
been filed in this Court, pending appeal, voicing mainly the grievance of the Union that
the workmen were not granted the benefits which were ordered to be granted by the
learned Single Judge despite the above injunction’ and direction of the Supreme
Court. This Court, therefore, vide order dated 5.11.2004, directed the ONGC to grant
“all the remaining benefits permissible under its Rules, Regulations, Settlements or
Schemes to the workmen concerned in this application at par with the regular
employees except only those which can legitimately be denied to the
regular:employees on account of their not working throughout the year or on account
of not fulfilling necessary conditions for grant of such benefits”. The arrears and the
dues on account of such additional benefits were ordered to be paid to the workmen
concerned by 1.12.2004 with the observation that any violation of the order dated
16.2.2001 of the Hon'ble Supreme Court could be treated as contempt of the Court.
18. The above order having been carried in appeal by the ONGC, the Supreme
Court ordered on 1.12.2004 as under:
“In view of the fact that the matter has been fixed for hearing on 16.12.2004
before the High Court and in view of the fact that learned counsel appearing on
behalf of the respondent states that his client will not press for implementation of
the order of the Division Bench impugned before us, no ad-interim order is passed.
It is expected that the High Court, having fixed 16.12.2004 as the date of
hearing, will hear and dispose of the matter as expeditiously as possible and will
not further adjourn the matter.”
19. Thereafter, during the course of hearing of this appeal, learned Solicitor General
appearing for the ONGC, stated that the ONGC would endeavour to give its “without
prejudice” proposal to the respondent-Union and to explore the possibility of an
amicable settlement as suggested by the Court in view of the Union giving up its claim
against modification of the direction No. 1 in paragraph 15 of the impugned judgment
and the ONGC having decided not to press challenge to the direction No. 3 thereof.
Thereafter, the ONGC sought time for finalizing their proposal till the learned counsel
for the Union objected on the ground that the ONGC was seeking to give a proposal
which was a mere eye-wash, while, on the other hand, the Union representatives were
called to accept termination of services of the workmen concerned and their fresh
engagement on contract basis, after more than 20 years of their services.
20. The important points which stand out from the above narration of facts and the
record and proceedings of the case may be summarised as under:
(a) The industrial dispute and the direction under challenge are now restricted to
regularisation of. 156 workmen, out of whom 3 have expired and to whom 5 may
have to be added as having been left out by mistake; thus bringing the figure of
the workmen concerned to 158 employees. Their dates of initial entry into service
fall in the years 1981 to 1989 and such dates as well as the nature of duties that
they have been discharging are easily ascertainable by the ONGC To quote the
unchallenged observations as under in the impugned judgment may be apposite:
“It has been pointed out that such employees have been working as clerks.

Page: 713

typists, stenographers, drivers, peons and other posts in Class III and Class IV and
they do fulfil the qualifications which are prescribed for each of such posts in terms of
the Regulations of 1980.”
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(b) The ONGC has not even during the pendency of the petition of the Union,
challenged the findings of fact recorded by the Tribunal to the effect that the
workmen concerned had completed 240 days of service under the ONGC though
not in consecutive 12 months and that officers of the ONGC had resorted to
unfair labour practice of requiring the casual workmen to change their names
often with a view to depriving them of their right to become temporary
employees and in course of time to be eligible to be considered for becoming
regular employees. The Union has however, challenged the finding regarding the
workmen not completing 240 days in consecutive 12 months and pointed to the
uncontradicted evidence of the workmen stating that the workmen concerned
were working throughout the year, even during off-season period, though at
different places in different capacity or in different name.
(c) It would appear from the evidence on record and paragraph 6 of the written
statement of the ONGC itself that the field parties in which the workmen
concerned were employed worked normally during winter and monsoon
approximately for nine months. That each of the field parties needed to engage
150-200 persons for rendering assistance in its work of seismic survey and
geological and geophysical surveys for exploration of petroleum.
(d) By virtue of or despite the prohibitory orders against termination, the workmen
concerned appear to have been employed for not more than 8-9 months in a year
since raising of industrial dispute in the year 1991. By now, by virtue of the
impugned judgment and interim orders, the workmen concerned are already
allowed, since January 2000, wages and some benefits at par with the regular
employees excepting the perquisites and allowances which the regular
employees are allowed on account of their working throughout the year.
(e) During the marathon legal proceedings running for 25 years, almost every
single order, interim or final, has been carried in appeal, mostly by the ONGC. As
it is obvious and as submitted on behalf of the Union, the litigation has cast an
impossible burden upon the workmen which inspired them to accept a
settlement if the ONGC offered a reasonable scheme of regularisation. In the
alternative, they insisted upon full regularisation with all the consequential
benefits with effect from the date of the award which also would be, on an
average, after ten years of regular service on casual or temporary basis.
(f) The ONGC has dithered and not fully complied with the direction to treat the
workmen at par with the regular employees despite clear orders and clarifications
by this Court and the Supreme Court during the pendency for five years of this
appeal.
21. The original award of the Tribunal as also the impugned judgment have relied
upon the Standing Orders of the ONGC for the grant of relief. Those “Certified
Standing Orders for Contingent Employees of the Oil and Natural Gas Commission” in
force since 15.7.1962 applied to all workmen called “contingent employees” employed
in various units of the ONGC excluding the regular employees to whom other statutory
rules applied. Relevant Clause 2 of those Standing Orders reads as under:
“2. (i) Classification of workmen:The contingent employees of the ommission
shall hereafter be clarified as:—

Page: 714

(a) temporary.
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(b) casual.
(ii) A workmen who has been on the rolls of the Commission and has put in not
less 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 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”.
The Standing Orders also provide for; other conditions of service including
termination of service. Clause 14 provides for termination of employment by notice
in writing in accordance with the provisions of the Industrial Disputes Act and,
where the workman is not entitled to one month's notice under the I.D. Act, for at
least seven days notice or payment of wages in lieu thereof, The Standing Orders
also contain provisions for attendance and late coming, leave and holidays,
absence, stoppage of work, misconduct and disciplinary action, complaints, etc.
22. As for regular employees, the ONGC had made “The Oil & Natural Gas
Commission (Recruitment and Promotion) Regulations, 1980” in exercise of the
powers conferred by Section 32 of the Oil & Natural Gas Commission Act, 1959. Those
regulations provided for the method of filling posts, categories of posts, scales of pay,
qualifications and other matters connected therewith, age limit for direct recruitment
and other matters to be followed while making recruitments and promotions, method
for filling of vacancies by direct recruitment and promotions etc. Relevant for the
present purpose is Regulation No. 3 which reads as under:
“3. Method of filling posts:
All posts in the Commission would be filled up by:—
(a) direct recruitment, or
(b) promotion of employees already in service of the Commission, or
(c) borrowing the services of the persons from the Central Government or the
State Governments, or public sector undertakings, or local or other authorities,
or
(d) any other method as may be decided by the Commission at a meeting for
reasons to be recorded in writing for appointment to any post or persons
possessing special merit, qualifications or experience.”
Schedule II to the above regulations provided for “age limit for direct
recruitment” and other conditions to be followed while making direct recruitment
and promotions to various posts and Clause 9 provided as under:
“9. The Commission shall be competent to relax the requirement of
educational qualifications and experience in respect of the existing employees in
the service of the Commission on the date of commencement of these
regulations wherever such requirements are higher than those existing prior to
the date of such commencement.”
23. The Office Order dated 25.4.1980 of the ONGC on the subject of “fitment of
existing employees” and other matters connected therewith consequent upon
introduction of the Recruitment and Promotion Regulations, 1980 stipulated in
paragraph 1 (iv) that in case of vacancies to be filled in by direct recruitment,
departmental candidates fulfilling the requisite qualifications will be given first
consideration.

Page: 715
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24. The phrase “existing employees” was, however, defined to mean an employee
who was holding permanent or temporary appointment in the Commission on the date
the regulations came into force and did not include the persons appointed on casual,
contingent or ad-hoc basis.
25. A conjoint reading of the above relevant statutory provisions shows that the
ONGC had practically two separate establishments and set of rules as far as the
employees were concerned and the only window for becoming a regular employee from
a casual or temporary employee was provided by Standing Order No. 2 (ii) and
Regulation No. 3 (d) quoted hereinabove. It is not the case of the ONGC that no casual
or temporary employee was ever considered for inclusion as regular employee; nor
that the workmen concerned did not possess the minimum qualifications prescribed by
the Commission. Viewed in that perspective, it would clearly appear that the industrial
dispute arose on account of failure of the ONGC in exercising the discretion vested in it
to consider the cases of temporary workmen who had put in not less than 240 days of
attendance in a period of 12 consecutive months and the industrial adjudicator was
called upon to consider and decide the cases of the workmen for whom regularisation
was due. When the award dated 66.1994 only directed the ONGC to “consider and
regularise the workmen” subject to the condition of vacancies to the regular posts and
competition with other workmen seeking employment through Employment Exchange,
the relief became pyrrhic and the impugned judgment sought to grant some real relief
in the sense that the said two conditions were removed and a direction to treat the
workmen concerned at par with other regular employees was issued.
26. It must be noted here that during the entire course of the prolonged
proceedings, the ONGC did not take the opportunity of leading any evidence to show
that the services of the workmen concerned were not required at all or that their
regularisation would cast an unbearable financial burden or that at any point of time
they were discharged from service in accordance with law. Nor did the ONGC even
seek to establish anywhere that the “field parties” with which the workmen were
attached worked only intermittently. Instead, the evidence of the workmen to the
effect that the workmen were employed throughout the year was not contradicted
except by showing the number of days on which they had worked during the period
from 1981 to 1993.
27. It would be advantageous to note in the above context the relevant provisions
of the Industrial Disputes Act under which upon completion of continuous service of
240 days in a year, independent of any service rules, regulations or standing orders,
the workman acquires certain rights and the employer incurs several obligations. There
are prohibitive provisions in Sections 25-F, 25-G, 25-H, 25-M, 25-N and penal
provisions under Section 25-Q in respect of retrenchment and lay-off in the I.D. Act.
Section 25-T of the I.D. Act proscribes, under pain of penalty under Section 25-U,
employment of workmen as casuals or temporaries and continuing them as such for
years with the object of depriving them of the status and privileges of permanent
workmen. Thus, in short, what the industrial adjudicator was called upon to do was not
balancing the rival interests but he had to order what the ONGC was otherwise also
required to do and prohibited from not doing, i.e. consideration of the cases of
temporary employees of the contingent-establishment for their conversion into regular
employees which was permissible and envisaged by its service regulations, only
subject to the workmen concerned fulfilling the requirements of qualifications and age.
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Page: 716

28. The grounds (a) to (z) of this appeal attacks the impugned judgment as a
whole in view of the reliefs granted. But, upon the appeal being restricted to direction
No. 2 in paragraph 15 of the impugned judgment, the appellant concentrated on the
submission that the learned Single Judge had erred in issuing that direction. It was
argued that the question of regularisation and treatment at par with other regular
employees could arise only after actual absorption of the workmen concerned on the
permanent set-up of the ONGC. That, when the posts or vacancies were not available,
the direction for regularisation was neither justified nor sustainable. That there was no
reason to vary the scheme and direction of the Tribunal in absence of any evidence
that there were vacancies. That the impugned direction was inconsistent with the
Standing Orders insofar as the discretion vested in the Corporation was exercised by
the Court, disregarding the requirements for permanent employment, fulfilment of
minimum qualifications and completion of minimum 240 days of attendance in a year.
It was also contended that the Recruitment and Promotion Regulations of 1980 were
revised in 1996 and, therefore, the workmen concerned; could not be ordered to be
regularised even if they fulfilled the requirement of qualifications under the old rules
since the regulations applicable would be the regulations in force at the time of
consideration of the field workers for permanent appointment. It was also contended
that the workmen concerned had failed to prove that each of the workmen had put in
240 days of work in 12 consecutive months. In fact no evidence was led in the main
reference before the Tribunal and only the evidence led in the complaint (ITC) No. 5 of
1993 was relied upon. It was submitted that the field workers were engaged only for
the period of field season and since such work was reduced to only seven months in a
year, the principle of “no work no pay” applied.
29. Learned senior counsel Mr. M.J. Thakore with learned counsel Mr. K.M. Thaker
appearing for ONGC relied upon the judgment of the Supreme Court in State of U.P. v.
Ajay Kumar [(1997) 4 SCC 88] to submit that there has to be a post in existence and
administrative instructions or statutory rules to appoint a person on such post.
Appointments on daily wage basis on contingent establishment in which there cannot
exist any post cannot be regularised and a direction in such circumstance to regularise
service of the respondent to the post as and when vacancy arises and to continue him
till then was held to be illegal. Another judgment of the Supreme Court in Delhi
Development Horticulture Employees' Union v. Delhi Administration [(1992) 4 SCC 99]
relied upon for the appellant, however, denied full employment and equal pay for
equal work in the context of Jawahar Rozgar Yojna. a scheme with limited resources
for providing employment. Notified Area Counsil v. Bishn C. Bhol [(2001) 10 SCC 636]
was relied upon to submit that when the entire selection process and the
appointments were irregular and illegal, sympathies would be misplaced when there
was even absence of any sanctioned post. Mahendra L. Jain v. Indore Development
Authority [(2005) 1 SCC 639] was relied upon to submit that what can be regularised
is an irregularity and not an illegality. The constitutional scheme does not contemplate
any back-door appointment. A daily-wager in the absence of a statutory provision in
that behalf would not be entitled to regularisation. Subedar Singh v. Distt. Judge,
Mirzapur [(2001) 1 SCC 37] was relied upon to submit that when the appointment to
a post was governed by a set of statutory rules, it was unthinkable that someone
should be appointed by manoeuvring. No rule, law or regulation, nor even any
administrative order was shown in that case on the basis of which the employee could
claim a right to regularisation. Ashwani Kumar v. State of
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Page: 717

Bihar [(1997) 2 SCC 1 was relied upon for the proposition (hat if the initial entry into
service was unauthorised and is not against any sanctioned vacancy, the question of
regularising the incumbent on such a non-existing vacancy would never survive for
consideration and even if such purported regularisation or confirmation is given, it
would be an exercise in futility.

30. Relying upon the judgment of the Supreme Court in J & K Public Service
Commission v. Dr. Narinder Mohan [(1994) 2 SCC 630], it was submitted that where
recruitment rules prescribed direct recruitment and promotion as the modes of
recruitment, a hybrid procedure not contemplated by the recruitment rules and
dispensing with open competition would amount to directing disobedience of the
Constitution and law. Bashir Ahmed v. State of Punjab [(3996) 8 SCC 697] was relied
upon to submit that only those who possessed the necessary qualifications can be
considered for regular recruitment. Union of India v. Mahender Singh [(1997) 1 SCC
245] was relied upon to submit that merely on the basis of long period of service, the
claim of regularisation based on relaxation of age-limit and educational qualifications
could not be sustained. M.D., U.P. Land Development Corporation v. Amar Singh
[(2003) 5 SCC 388] was relied upon to submit that when the employees were working
under a scheme or under a project, they were not entitled to claim regularisation and
once the project comes to an end, service of the employee also comes to an end.
31. In order to assail the grant of purity of wages and treatment at par with the
regular employees, it was submitted that there was no evidence to suggest equality of
work, qualifications and responsibilities and hence the principle of “equal pay for equal
work” did not apply. “The judgment of the Supreme Court in State of Haryana v. Tilak
Raj [(2003) 6 SCC 123 : AIR 2003 SC 2658] was relied upon to submit that a scale of
pay is attached to a definite post and a daily-wager does not hold a post. To claim a
relief on the basis of equality, it was for the claimant to substantiate a clear-cut basis
of equivalence and a resultant hostile discrimination before becoming eligible to claim
rights on a par with the other group. “Equal pay for equal work” is a concept which
requires for its applicability complete and wholesale identity between a group of
employees claiming identical pay scales and the other group of employees who have
already earned such pay scale. The problem about equal pay cannot always be
translated into a mathematical formula. As held by the Supreme Court in Union of
India v. Pradip Kumar Dev [(2000) 8 SCC 580], there must be sufficient comparative
material before the Court for comparison. In the facts of that case, there was no
material before the Court for comparison in order to apply the principle of “equal pay
for equal work” between the radio operators of CRPF and those working in the Central
Water Commission and the Directorate of Police Wireless and the factual statements
contained in the recommendations of a particular department were held to be neither
proof per se nor conferring any right to make a claim for writ of mandamus. In State
Bank of India v. M.R. Ganesh Bahu [(2002) 4 SCC 556], a three-Judge Bench of the
Supreme Court has held (hat equal pay must depend upon the nature of work done
and cannot be judged by the mere volume of work since there may be qualitative
difference as regards reliability and responsibility. Since the plea of equal pay for equal
work has to be examined with reference to Article 14, the burden is upon the
petitioners to establish their right to equal pay or the plea of discrimination, as the
case may be. In Utkal University v. Jyotirmayee Nayak [(2003) 4 SCC 760] where the
High Court

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had rejected the claim for regularisation but directed payment of salary at par with
similarly placed employees in the University, the direction was set aside by the
Supreme Court on the ground that the employees did not have any appointment order
on the basis of which they could claim pay scale or regular salary. In the facts of that
case, services of the employees concerned were already terminated. In Orissa
University of Agriculture & Technology v. Manoj K. Mohanty [(2003) 5 SCC 188], the
High Court had not kept in mind the implications and impact on the other employees
working in the University and no details or material was placed before the High Court
for comparison in order to apply the principle of “equal pay for equal work”. Therefore,
in absence of necessary averments and materials, the High Court was held to have
erred in directing payment of regular pay scale without examining the relevant factors.
A recent judgment of the Supreme Court in Mahendra L. Jain v. Indore. Development
Authority [(2005) 1 SCC 639] was also relied upon for the proposition that
regularisation cannot be claimed as a matter of right and an illegal appointment
cannot be regularised by taking recourse to regularisation. A daily-wager in the
absence of a statutory provision in this behalf would not be entitled to regularisation.

32. As against the above arguments and contentions of the appellant, learned
senior counsel Mr. Girish Patel with learned counsel Mr. S.N. Mehta appearing for the
respondent submitted that the main contention of the appellant before the learned
Single Judge was that the powers of the High Court under Article 227 of the
Constitution were severely restricted and did not permit modification of the award of
the Industrial Tribunal. Now that the petition of the present respondent was allowed
and due and detailed directions to do complete justice were issued by the High Court,
a Letters Patent Appeal was not maintainable. It was also submitted that in absence of
any evidence led by the appellant before the Tribunal, the Tribunal as well as the High
Court was justified in relying upon the material on record in the form of rival
pleadings, oral depositions of four workmen in the complaint made in the main
reference and in granting the appropriate reliefs. He submitted that while broadly each
of the workmen concerned had completed more than 15 years of service as temporary
or casual “contingent employee” and has been employed on “seasonal basis” despite
the interim orders prohibiting their termination, it was in the interest of justice and
industrial peace that the workmen were regularised and treated at par with the regular
employees of the ONGC. It was pointed out that even as the ONGC, a statutory
Corporation, was converted into a limited company by the time the award was made,
its core function remained geological and geophysical surveys for exploration of
petroleum and carrying out drilling and other prospecting operations. It was in that
work that the workmen concerned were mainly and consistently employed. Although
contingent o employees were employed in large numbers during field season, the
workmen concerned were employed throughout the year as a part of the core team
manned by regular employees and officers. The ONGC reduced their employment to
the field seasons after raising of the industrial dispute in order to continue them as
casual or temporary employees and deny them the benefits due to the regular
employees. The finding of fact that the ONGC had indulged in unfair labour practice
has remained unchallenged and the workmen have admittedly continued in service as
a second class work-force resulting into obvious injustice and discrimination. It was,
therefore, incumbent upon the industrial adjudicator to grant real and substantial
reliefs which, ultimately, the High Court had rightly granted, according to the

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submission.

33. The learned counsel relied upon the landmark three-Judge Bench judgment of
the Supreme Court in State of Haryana v. Piara Singh [(1992) 4 SCC 118 : AIR 1992
SC 2130] wherein it is laid down that the main concern of the Court in such matters is
to ensure the Rule of law and to see that the executive acts fairly and gives a fair deal
to its employees consistent with requirements of Articles 14 and 16. It also means
that the State should not exploit its employees nor should it seek to take advantage of
the helplessness and misery of either the unemployed persons or the employees, as
the case may be. As is often said, the State must be a model employer. It is for this
reason, it is held that a person should not be kept in a temporary or ad-hoc status for
long. Where a temporary or ad-hoc appointment is continued for long, the Court
presumes that there is need and warrant for a regular post and accordingly directs
regularisation. There can be no rule of thumb in such matters. Conditions and
circumstances of one unit may not be the same as of the other. The relief must be
moulded in each case having regard to all the relevant facts and circumstances of that
case. It cannot be a mechanical act but a judicious one. It is held that a direction to
regularise a back-door entrant would only result in encouragement to such unhealthy
practice. There was nothing wrong in prescribing a particular date by which the
specific period of service ought to have been put in. The order prescribing that only
those employees who had been sponsored by an employment exchange could alone be
regularised was held to be reasonable and wholesome requirement designed to curb
entry of back-door employees and irregular appointments. Saying a few words
concerning the issue of regularisation of ad-hoc/temporary employees in Government
service, the Supreme Court has observed as under:
“………Efforts should always be to replace such an ad-hoc/temporary employee by
a regularly selected employee as early as possible; temporary employees should not
be replaced by another ad-hoc or temporary employee; even where an ad-hoc or
temporary employment is necessitated on account of the exigencies of
administration, he should ordinarily be drawn from the employment exchange
unless it cannot brook delay; if for any reason an ad-hoc/temporary employee is
continued for a fairly long spell, the authorities must consider his case for
regularisation provided she is eligible and qualified according to rules and his
service record is satisfactory and his appointment does not run counter to the
reservation policy of the State. ………So far as the work-charged employees and
casual labour are concerned, the effort must be to regularise them as far as possible
and as early as possible subject to their fulfilling the qualifications, if any,
prescribed for the post and subject also to availability of work. If a casual labourer
is continued for a fairly long spell say two or three years-a presumption may arise
that there is regular need for his services. In such a situation, it becomes obligatory
for the concerned authority to examine the feasibility of his regularisation. While
doing so, the authorities ought to adopt a positive approach coupled with an
empathy for the person……. Each Government or authority has to devise its own
criteria or principles for regularisation having regard to all the relevant
circumstances, but while doing so, it should bear in mind the observations made
herein………These directions shall not, however, apply to the Statutory/Public
Corporations functioning within the States as are under the control of the
Government of India. These Corporations will do well to evolve an appropriate policy
of regularisation, in the light of this judgment, if they have not already evolved one,
or make their existing policy consistent with this judgment to avoid litigation.”
(Emphasis supplied.)
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34. Relying upon the above judgment in Piara Singh (supra), the Supreme Court
ordered in State of Haryana v. Surinder Kumar [(1997) 3 SCC 633] that the cases of
the employees who were appointed as daily wagers on contract basis to the post of
clerk should be considered in accordance with law provided they were otherwise
eligible and, if they had become age barred, age may be relaxed for the period they
had worked and that on regular appointment they would be entitled to equal pay at
par with the regular clerks.
35. In Food Corporation of India Workers' Union v. Food Corporation of India
[(1996) 9 SCC 439], in the factual backdrop of failure of the employer to produce any
evidence in the context of employment of the workmen; concerned, the Supreme
Court examined two illustrative cases and reversed the landing that none of the 287
persons were able to establish that they were employees of the depot concerned of the
F.C.I. at the relevant time. It was held that the Tribunal was not a Court and there
should be only “material” and not “evidence” as required by the Evidence Act. It was
also held that although the F.C.I. mentioned certain difficulties in conclusively
determining the identity of the persons as per the orders of the Supreme Court, the
long lapse of time cannot be ignored and the Supreme Court cannot shirk its
responsibility in resolving the issue on the basis of available material, however difficult
or arduous it may be. After all, it is a “human problem” that calls for an urgent
decision.
36. In Daily Rated Casual Labour employed under P & T. Department v. Union of
India [(1988) 1 SCC 122], the Supreme Court directed payment of wages at the rates
equivalent to the minimum pay in the pay scales of regularly employed workers to the
casual labourers belonging to the several categories and observed that unless a sense
of belonging to the organisation engaged in production arises in a workman, he will
not put forward his best effort to produce more. That sense of belonging arises only
when he feels that he will not be turned out of employment at the whim of the
management. It is for that reason that as far as possible security of work should be
assured to the employees so that they may 1 contribute to the maximisation of
production. It is again for this reason that managements and the governmental
agencies in particular should not allow workers to remain as casual labourers or
temporary employees for an unreasonably long period of time. The employees
belonging to skilled, semi-skilled and unskilled classes can be shifted from one
department to another even if there is no work to be done in a given place. Our wage
structure is such that a worker is always paid less than what he produces, and if any
worker remains idle on any day, the country loses the wealth that he would have
produced during that day. It is against this background that non-regularisation of
temporary employees or casual labour for a long period can be said to be not a wise
policy. The employer was, therefore, directed to prepare a scheme on a rational basis
for absorbing as far as possible the casual labourers who had been continuously
working for more than one year.
37. In Delhi Municipal karmachari Ekta Union v. P.L. Singh [1988 (Supp) SCC 95],
the Supreme Court following the above decision in Daily Rates Casual Labourers
(supra), directed the Delhi Municipal Corporation to prepare a scheme for absorbing
the Vaccinators/Immunisors employed on daily wages basis for more than eight years
and order was made in substitution of the award passed by the Tribunal.
38. In Union of India v. Dharma Pal [(1996) 4 SCC 195], in absence
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of any existing rules for regularisation, the scheme devised pursuant to the direction of
the Court. was, approved and the employer was directed to regularise all the workmen
who had completed the prescribed period of days, i.e. 240 days against the existing
vacancies applying the rules of reservation, in order of seniority in respective
categories mentioned in the scheme. Such regularised employees were held to be
entitled to all the regular payment at the prescribed scale of pay and those who could
not be regularised were directed to be regularised in order of seniority as and when
vacancies arose. The daily-wage workers/casual workers who were not regularised and
work was taken from them were held to be entitled to minimum of the scale of pay
prescribed for the post in addition to 60% of the DA and retrospective effect was given
to the directions.

39. In Surinder Singh v. Engineer-In-Chief CPWD [(1986) 1 SCC 639], the

Supreme Court observed as under:
“The Central Government, the State Governments and likewise, all public sector
undertakings are expected to function like model and enlightened employers and
arguments such as that the principle of equal pay for equal work is an abstract
doctrine which cannot be enforced in a court of law should ill come from the mouths
of the State and State undertakings. ……We also record our regret that many
employees are kept in service on a temporary daily wage basis without their
services being regularised. We hope that the government will take appropriate
action to regularise the services of all those who have been in continuous
employment for more than six months.”
40. In U.P. Income-Tax Department Contingent Paid Staff of Welfare Association v.
Union of India [1987 (Supp) SCC 658], the Supreme Court, being not satisfied with
the scheme in force and finding that many employees concerned had been working on
daily-wage basis for nearly eight years or more, directed payment of wages to the
workmen who were employed as the contingent paid staff of the Income Tax
Department doing the work of Class IV employees at the rates equivalent to the
minimum pay in the pay scale of the regularly employed workers in the corresponding
cadres, without any increments with effect from 1.12. 1986. The Court further directed
preparation of a scheme on a rational basis for absorbing as far as possible the
contingent paid staff of the Income Tax Department who had been continuously
working for more than one year as Class IV employees.
41. In V. M. Chandra v. Union of India [(1999) 4 SCC 62], considering the long
period of service the appellant had put in and the qualification possessed by her as
also the number of occasions she had approached the Tribunal and the authorities for
relief, the Supreme Court directed her absorption as Skilled Artisan in Grade III in
appropriate scale by giving increment and continuity in service on that basis. It was
observed that the view taken by Chairman of Railway Board that there cannot be any
designation assigned to a casual employee baffles all logic.
42. Recently in Gujarat Agricultural University v. Rathod Labhu Bechar [(2001) 3
SCC 574], the Supreme Court held as under:
“17. From the aforesaid, it emerges that the learned Single Judge had concurred
with the finding of the Tribunal that the contesting workmen have been working in
the appellant University regularly for a long number of years. The existence of
permanent nature of work was inferred on this account and also due to the vastness
of the appellant's establishment. The regularisation is claimed only in respect of
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Class IV employees. The main objection which was raised earlier and is raised before
us, is that a person could only be regularised on any vacant post and if there be one
he should be qualified for the same as per qualifications, if any, prescribed. In fact,
the Tribunal has held that on the date of the award, most of the workmen had
completed 10 years of their service. It is also well settled, if work is taken by the
employer continuously from the daily-wage workers for a long number of years without
considering their regularisation for its financial gain as against employees' legitimate
claim, has been held by this Court repeatedly as an unfair labour practice. In fact,
taking work from a daily-wage worker or an ad-hoc appointee is always viewed to be
only for a short period or as a stopgap arrangement, but we find that a new culture is
growing to continue with it for a long time, either for financial gain or for controlling its
workers more effectively with a sword of Damocles hanging over their heads or to
continue with favoured ones in the cases of ad-hoc employees withstalling competent
and legitimate claimants. Thus we have no hesitation to denounce this practice. If the
work is of such a nature, which has to be; taken continuously and in any case when
this pattern becomes apparent, why they continue to work for year after year, the only
option to the employer is to regularise them. Financial viability, no doubt, is one of the
considerations but then such enterprise or institution should not spread its arms
longer than its means. The consequent corollary is, where work taken is not for a short
period or limited for a season or where work is not of a part-time nature and if pattern
shows that work is to be taken continuously year after year, there is no justification to
keep such persons hanging as daily-rate workers. In such a situation a legal obligation
is cast on an employer; if there be vacant post, to fill it up with such workers in
accordance with rules, if any, and where necessary by relaxing qualifications, where
long experience could be equitable with such qualifications. If no posts exist then duty
is cast to assess the quantum of such work and create such equivalent posts for their
absorption.”

(Emphasis added.)
The Supreme Court further observed that:
“19. ……The Court does exercise its restrain where facts are such where extent
of creation of post create financial disability. But at this juncture we would like to
express our note of caution, that this does not give largess to an institution to
engage larger number of daily-wage workers for a long number of years without
absorbing them or creating posts, which constitutes an unfair labour
practice…….If finances are short, engagement of such daily-wage workers cold
only be for a short limited period and if continuous work is required it could only
do so by creating permanent posts. If finances are not available, take such work
which is within the financial means. Why take advantage out of it at the cost of
workers?”
43. In Indian Petrochemicals Corporation Ltd. v. Shramik Sena [(1999) 6 SCC 439],
where initial appointments of the workmen were not in accordance with the rules
governing the appointments of the established policy of recruitment of the
Management and the employer was an instrumentality of the State, the services of the
workmen were held to have been ordered to be regular by the Court not as a matter of
right of the workmen arising under any statute, but with a view to eradicate unfair
labour practices and in equity to undo social injustice and as a measure of labour
welfare, subject to suitable guidelines or conditions.
44. The plethora of precedents referred to in the previous paragraphs might in the
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first blush appear to be disparate and bewildering; but a closer scrutiny would reveal
an underlying theme and an attempt at meting out justice in the given set of facts and
within the legal limitations. It could be distinctly observed that the issue of
regularization has been addressed by the Courts at two different levels and each
precedent emphasizes a particular aspect of the matter. The issue of regularization
comes up before higher Courts either after an industrial adjudication or straightaway
under the constitutional scheme of rights and remedies. Besides the factual variations
on account of nature of appointment, employment, work and tenure, the legal
treatment and moulding of relief also varies according to the provisions of law
applicable to the establishment. However, there is a basic difference in approach when
the workmen seek enforcement of constitutional guarantees and when new rights are
sought to be created and conditions of services are sought to be improved through an
industrial; adjudication. When an industrial dispute is raised, it is a commotion to be
pacified by dispensing justice. In such adjudication, not just the right to equality and
other constitutional guarantees, but the aims and ideals of the Constitution enter into
the consideration.

45. If we take an overview of the bedrock of our constitutional ideology, the

Constitution is, by its very preamble, dedicated to securing to all its citizen, social and
economic justice. By virtue of Article 37, the principles contained in Part IV are
fundamental in the governance of the country. Dr. Ambedkar said:“…In my judgment
the Directive Principles have a great value for they lay down that our ideal is economic
democracy. Because we did not want merely a parliamentary form of government to
be instituted through the various mechanisms provided in the Constitution without
any directions as to what our economic ideal or as to what social order ought to be, we
deliberately included the directive principles in our Constitution…”. It is the duty of the
Courts to apply the directive principles in interpreting the Constitution and the laws.
Fundamental Rights should thus be interpreted in light of the Directive Principles and
the latter should, whenever and wherever possible, be read into the former. As held by
the Supreme Court in U.P. State Electricity v. Harishankar Jha [(1978) 4 SCC 16 : AIR
1979 SC 65], addressed to Courts, the injunction that the Directive Principles are
fundamental in the governance of the country, means that while the Courts are not
free to direct making of legislation, Courts are bound to evolve, affirm and adopt
principles of interpretation which will further and not hinder the goals set out in the
Directive Principles of State Policy. This command of the Constitution must be ever
present in the minds of the Judges when interpreting statutes which concern
themselves directly or indirectly with the matters set out in the Directive Principles.
46. Article 38 of the Constitution requires the State to strive to promote welfare of
the people by securing and protecting, as effectively as it may, a social order in which
social and economic justice may inform all the institutions of the national life and, in
particular, to minimize the inequalities in income and endeavour to eliminate
inequalities in status, facilities and opportunities amongst individuals and groups.
Article 39 requires the State to direct its policy towards securing for every citizen the
right to an adequate means of livelihood and to see that the operation of the economic
system does not result in the concentration of wealth and means of production to the
common detriment. Article 41 requires the State within its limitation to make effective
provisions for securing the right to work and Article 42 requires making of provisions
for securing just and humane conditions of work. Article 43 requires the State to
endeavour to secure
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by suitable legislation or economic organisation or in any other way, to all workers,

work a living wage and conditions of work ensuring a decent standard of life and full
enjoyment of leisure.

47. Article 51-A makes it a fundamental duty of every citizen to abide by the
Constitution and to respect its ideals, to follow the noble ideals which inspired our
freedom struggle, to promote harmony, to develop humanism and to have compassion
for all living creatures. These aims and ideals, coupled with a duty to follow them, are
cast in the Constitution to keep them constant and above the vicissitudes of political
ideology and economic policy. When an industrial adjudicator having the power to
transcend contractual conditions of service entertains an industrial dispute, he
exercises the judicial power of the State and endeavours to secure for the industrial
workers “work, a living wage and conditions of work ensuring a decent standard of life
and full enjoyment of leisure”, within the limitations laid down by law and binding
precedents. Thus, the aim and object of adjudication of an industrial dispute is
dispensing social:and economic justice and translating the fundamental rights as well
as the directive principles into some tangible relief. The jurisdiction of an Industrial
Tribunal, therefore, is expansive and creative and not restricted to only enforcing or
interpreting the contract of service or the extant legal provisions. To quote the
following views of a Four-Judge Bench of the Supreme Court in Bombay Labour Union
v. International Franchises Ltd. [(1966) 1 LLJ 417] voiced by Their Lordhips through
Justice Shri K.N. Wanchoo, as early as in 1966, in the above context, may be apposite:
“Then it is urged that the employer was free to impose any condition in the
matter of employment when he employs a new workman and that industrial
adjudication should not interfere with this right of the employer. All that need be
said in this connection is that it is too late in the day now to stress the absolute
freedom of an employer to impose any condition which he likes on labour. It is
always open to industrial adjudication to consider the conditions of employment of
labour and to vary them if it is found necessary, unless the employer can justify an
extraordinary condition like this by reasons which carry conviction. In the present
case the reasons which the respondent has advanced and which were the basis of
the two decisions referred to earlier do not commend themselves to us as sufficient
for such a rule. We are therefore of opinion that such a rule should be abrogated in
the interest of social justice.”
As held earlier by the then Federal Court of India as early as in 1949 in Western
India Automobile Association v. The Industrial Court, Bombay [(1949) LLJ 245],
industrial adjudication does not mean adjudication according to strict law of master
and servant. The award of the Tribunal may contain provisions for settlement of a
dispute which no Court could order if it was bound by ordinary law, but the Tribunal
is not fettered in any way by those limitations. The Court approved the view of
Ludwig Teller (in Vol. 1 of Labour Disputes and Collective Bargaining ) that
industrial arbitration may involve the extension of an existing agreement or the
making of a new one, or in general the creation of new obligation or modification of
old ones.
48. When the demand for regularisation, absorption or permanency in service is
raised by workmen employed and continued as casual, temporary, seasonal, daily
wager or on such other irregular basis for a fairly long spell and such dispute is
referred for adjudication, the resolution thereof will firstly depend upon the legality
and propriety of continuation of their
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services on the same basis. If such employment on irregular basis is in violation of the
express provisions of the I.D. Act or if it amounts to unfair labour practice on the part
of the employer, such illegality or unfair labour practice must come to an end with the
adjudication. No employer can claim the privilege or facility of committing an offence
or violating the express provisions of the I.D. Act on the grounds that there are no
posts, vacancies, work or funds for employment of the workmen in a legal manner.
Where the casual or temporary employment on daily wage basis or otherwise is not in
violation of any express provisions of law, the other considerations of availability of
work, regular requirement of employees, financial impact, length of service, required
qualifications, nature of the undertaking or project, etc. will be attracted and the
aforesaid principles will be applied. However, an industrial adjudicator is concerned
more with the practice of the employer in securing work through temporary
employment than with the mode of appointment adopted by the employer. If the
practice of employing workmen as casual or temporary or on seasonal basis for years
together were permitted either on the ground that there are no vacancies or posts or
that there is no work for them for 3 to 5 months every year, or that the workmen are
not qualified for regular recruitment, it may ensure for the employer full flexibility and
freedom in deployment of labour, but it would amount to licence to exploit and would
fly in the face of every constitutional aim, ideal, edict and obligation referred
hereinabove. In the facts of the present case, the Industrial Tribunal could not have
denied relief to the workmen after recording the finding that the workmen had
completed 240 days of service and the employer had indulged in unfair labour practice
by not allowing the workmen to complete in the same name even 180 days of service
in 12 months so as to deny to them even the status of “temporary workmen”. After
identifying such workmen, numbering 189, who were not permitted to be discharged,
as stated in para 2.3 herein, it was baseless and perverse for the Tribunal to observe
that, “……It was a fact admitted by both the sides that the work of the ONGC is
seasonal”. On the contrary, the record suggested that certain number of casual
workers were retained as a part of the core team of the field parties even when
majority of casual employees were employed on seasonal basis and permitted by the
Tribunal to be discharged. In such circumstances, continuation of employment of the
workmen concerned on “casual” and “seasonal” basis would amount to continuation of
offences and violation of the provisions of the I.D. Act as may be elaborated now.

49. The only escape from the rigours of the “Special provisions relating to lay-off,
retrenchment and closure in certain establishments” contained in Chapter V-B of the
Industrial Disputes Act is when an industrial establishment is of a seasonal character
or where work is performed intermittently. The premises at which the field parties
work and carry out any operation for the purpose of searching for or obtaining
minerals, which includes mineral oils, natural gas and petroleum, will be a “mine”
within the meaning of Section 2 (1) (j) of the Mines Act, 1952 and hence an
“industrial establishment” for the purposes of the I.D. Act. In the facts of the present
case, no evidence is led and no decision obtained about the establishment of ONGC
being of a seasonal character or the one where work is performed intermittently as
provided under sub-section (2) of Section 25-K. And, according to the certified
Standing Orders, termination of services of all contingent employees is subject to the
provisions of the I.D. Act. A workman who has been on the rolls of the Commission
and has put in not less than 180 days of attendance in any period of 12 consecutive
months automatically becomes
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a “temporary workman” by virtue of the provisions of Clause 2 (ii) of the Certified

Standing Orders. Therefore, the workmen concerned could not have been treated as
“casual” employees for the purposes of the restrictive and protective provisions of
Chapter V-B of the I.D. Act and could not have been laid-off at the end of every “field
season” as appears to have been done by the ONGC even during the prolonged period
of litigation. Such illegality coupled with the finding of “unfair labour practice” legally
entitled the workmen to regular employment and the aforesaid Standing Orders
obliged the ONGC to consider such workmen for “conversion” as regular employee no
sooner they completed 240 days of attendance in 12 consecutive months provided
they possessed the minimum qualifications prescribed by the Commission. Obviously
the “minimum qualifications” prescribed by the Commission can be in respect of
particular posts and “conversion as regular employee” could be on such post for which
the:employee possesses minimum qualification and experience.

50. If the above statutory scheme is viewed and were applied in light of the
observations of the Supreme Court in Piara Singh (supra) made in 1992, the whole
litigation could have been avoided as desired by the Supreme Court. However, even
now in view of the observations made by Their Lordships of the Supreme Court in
Gujarat Agricultural University (supra), availability of posts or vacancy thereon cannot
be the issue since it was the obligation of the ONGC to regularise the services of the
workmen concerned and it is a case of regularisation by “conversion” or “absorption” at
the appropriate time rather than filling up permanent posts when vacancies arise on
the establishment of the ONGC. Therefore, the impugned directions to treat the
workmen concerned at par with other regular employees working against the
corresponding or equivalent, equated or identical posts, regardless of availability of
vacancies, was not only eminently just but legally due to the workmen. A rational and
just scheme of regularisation was required to be framed and implemented by the
ONGC at least since the year 1992 and it does not lie in its mouth to say that the
workmen concerned have to fulfil the requirements of age and minimum qualifications
prevalent now or those prescribed in the Rules of 1996 by which year the workmen
concerned would have, on an average, rendered services in more than ten “field
seasons” or years.
51. The issue of regularization has two distinct shades of meaning in the peculiar
facts of the present case Generally regularization is sought when appointment of an
employee is irregular in the sense that it is not in accordance with the recruitment
rules or is arbitrary or is by way of a backdoor entry. Regularization also means regular
employment of an employee who was intermittently employed on casual, temporary,
seasonal or such other irregular basis. In the facts of the present case, it is not the
case of the ONGC that the workmen concerned were illegally or arbitrarily recruited,
but its objection is that their regularization would violate its recruitment rules made
for appointments on permanent posts. As for the intermittent and seasonal nature of
employment and work, as against the evidence of continued employment and finding
of unfair labour practice, the ONGC has not cared to establish by leading any evidence
at any stage the requirement of dispensing with the services of the workmen
concerned. Even when an application for permission to terminate the services of casual
employees of the field parties was made in the reference pending before the Industrial
Tribunal, while granting such permission for others, the services of the workmen
concerned were saved. Thereafter, the ONGC never applied for such permission in
respect of the workmen concerned but appears to have
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insisted upon employing them only during winter and summer for not more than 8 to
9 months in a year. Such practice apparently offends the provisions of Chapter V-B of
the I.D. Act. And, therefore, “regularizalion”, in the context of the present case, would
mean wages and treatment at par with the regular employees and employment
throughout the year.

52. It was necessary to undertake the above exercise of examining the appeal on
merits since we were not inclined to uphold the preliminary objection that the appeal
was not maintainable for having been preferred from the judgment supposed to have
been rendered in exercise of the powers of the High Court under Article 227 of the
Constitution. On the one hand the original petition of the respondent invoked both
Articles 226 and 227 of the Constitution and, on the other hand, the impugned
judgment nowhere specified Article 227 as the source of power in sole exercise of
which the award of the Industrial Tribunal was modified. Therefore, under the
circumstances, we reject the preliminary objection regarding maintainability of the
appeal.
53. The contention of the appellant regarding continuity of service and attendance
for requisite number of days in a year, however, requires consideration in moulding of
the relief particularly because the impugned direction is supposed to be substituting
the award with a direction to issue appropriate orders for all the employees by
30.4.1999. There is some substance in the argument of the appellant that, although
no evidence was led before the Tribunal by the ONGC, the evidence led by the Union
was sketchy and did not cover the entire period of service of each workman. It,
however, appears to be the common ground and it is also evident from the record that
the workmen concerned have been continuously and consistently employed by the
ONGC in “field seasons” for not more than 8 to 9 months in each year. Even after the
impugned direction of this Court and qualified injunction against its operation
expressly excluding 156 specified workmen, they appeared to have been employed as
“seasonal workers” by virtue of the interim orders referred in paragraph 5 hereinabove.
The benefits to be granted were given prospective effect even as the Hon'ble Supreme
Court in its order dated 16.2.2001 ordered that the benefits granted by the impugned
judgment to the field workers should be made available to those 1.56 persons. That
would literally mean grant of all benefits and treatment at par with other regular
employees at least from the date of the impugned judgment. However, in fact, the
workmen were not regularly employed and were not granted all the remaining benefits
braving action under the Contempt of Courts Act. In such circumstances, it has to be
decided as to from which date the workmen concerned should be entitled to the relief
of treatment at par with the regular employees with all its consequences and
ramifications.
54. As seen earlier, the workmen concerned appeared to have been working under
the ONGC with its core teams and in its essential functions since the years 1981 to
1989. Therefore, they had already completed, by the year 1999, 10 to 15 years of
service and they are not a homogeneous mass of manual labourers. They are a
heterogeneous group of male and female qualified, skilled or semi-skilled clerks,
typists, stenographers, storekeepers, drivers, peons, etc, equivalent to regular
employees in Class III and Class IV, as stated at the Bar. It is also a fact that the
workmen concerned have actually worked for not more than 6 to 8 months in a year
during the pendency of the petition and this appeal and retrospective regularisation
cannot bring back the months during which no services were rendered and no
payment was made.
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55. Therefore, following the long line of judgments of the Apex Court referred in
paragraph 11 hereinabove, since the workmen had already completed 10 to 15 years
of service, though intermittently, by the year 1999, and in view of the definite judicial
direction having been given in the year 1999 only, it would be just to order that the
workmen concerned shall be notionally treated as regularised with effect from
1.5.1999. Since most of the benefits are already accorded to the workmen since then
and some of the benefits are withheld by the ONGC even, as the workmen were
continued to be employed on seasonal basis in the field parties under the interim
orders, the actual full benefits at par with regular employees including all the
perquisites and applicable allowances as also regular employment throughout the year
shall start with effect from 1.5.2005, This will not derogate from the earlier interim
orders and entitlements of the workmen based on actual employment during field
seasons only. For all other purposes, except actual payment of wages and allowances
in respect of the days or months during which the workmen did not work, they shall be
treated to have been in regular employment of the ONGC since 1.5.1999, and their
wages and allowances shall be fixed and paid accordingly with effect from 1.5.2005.
The impugned directions in paragraph 15 (2) and the consequent order in paragraph
16 of the impugned judgment shall stand modified to that extent and the direction in
paragraph 15 (1) shall stand deleted. The directions as hereby modified shall apply to
the surviving 153 employees out of 156 employees in respect of whom the impugned
judgment was not stayed during pendency of this appeal and to five other employees
who are stated to have been originally included in the list of 189 workmen whose
employment was saved by the order dated 30.5.1994 in Complaint (ITC) No. 5 of
1993 and whose names were stated to have been, by mistake, excluded from the list
of 156 workmen. Their names, date of entry in service and nature of work are stated to
be:
1. Yogendra Prasad Samva Oct. 1983 Survey Lineman
2. Bijender Singh Negi 2.4.1984 Storekeeper
3. Pratap Singh Mehra 06.11.85 Repairing of seismic accessories
4. Rameshwar S. Sharma 05.11.76 Telecom Tech.
5. Guruvender Singh Chawla 21.9. 87 Survey Lineman.
The appeal is accordingly partly allowed with no order as to costs. Civil
Application No. 11658 of 1999 filed in the appeal shall stand disposed as
infructuous in view of the final orders in this appeal.
56. Before parting with the judgment, however, it may be apposite to observe that
when not just any instrumentality of the State but a giant company with deep
pockets, wages a long-drawn war against its own employees with legitimate claims
and aspirations, its managers ought to consult their own conscience and take the
opportunity of doing justice themselves rather than adopting the strategy of wearing
them out and draining their meagre resources in one after the other legal battles while
they may be devoting better part of their lives to the organization.
57. Even in the modern times of free-market economy and globalisation, the
precept of recently departed Pope John Paul-II may be noted. His concept of
globalisation was, “to ensure that the winner in this process will be humanity as a
whole, not just a wealthy elite that controls science, technology, communication and
the planet's resources to the detriment of the vast majority of its people”. And
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according to Pope Benedict XVI; “The intrinsic dignity of each person must always be
respected in work, in action and in law”. A machine may be used as a more convenient
substitute for a workman but a workman cannot be treated or

Page: 729

switched on and off like a machine.

(DC)
Petition partly allowed.
———
*
Letters Patent Appeal under C/15 challenging the Judgment and order of Single Judge in a petition challenging
Judgment and order of Industrial Tribunal ITC (S) of 1993

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2003 SCC OnLine All 481 : (2003) 4 AWC 2661 : (2003) 99 FLR (Sum 11) 4

Allahabad High Court

(BEFORE ANJANI KUMAR, J.)

U.P. State Electricity Board and others

Versus
Presiding Officer, Industrial Tribunal-I, Allahabad and another
C.M.W.P. No. 4324 of 1991
Decided on April 28, 2003

Page: 2662

The Judgment of the Court was delivered by

ANJANI KUMAR, J.:— This writ petition was heard by this Court and after hearing
learned counsel for the parties, it was dismissed on 28th April, 2003, for the reasons
to be recorded later on. Now here are the reasons for dismissing the aforesaid petition.
2. By means of present writ petition under Article 226 of the Constitution of India,
the petitioners—employers U.P. State Electricity Board (now U.P. Power Corporation
Limited) have challenged the Impugned award dated 3rd September, 1990, passed by
the Industrial Tribunal-I, U.P. Allahabad (hereinafter referred to as the ‘Tribunal’) in
Adjudication Case No. 168 of 1980, copy whereof is annexed as Annexure-1 to the writ
petition.
3. From the narration of fact, it appears that the respondent workman Mohd. Jamil
was employed in September, 1977 as a muster roll employee on daily wages. The
services of the workmen were terminated in the year 1979, therefore, an industrial
dispute was raised in which two questions were required to be answered by the
Tribunal. The Tribunal after going through the pleadings and the evidence adduced by
the parties while deciding the point No. 1 have found that the termination of services
of concerned workmen, namely, Mohd. Jamil and Nand Lal, were illegal and therefore,
directed for re-instatement of the workmen concerned.
4. The point No. 2, i.e., whether the workmen are entitled for
regularisation/confirmation, which was framed in such a manner that the need of its
decision will arise only if point No. 1 was decided in favour of workmen, namely, Mohd.
Jamil and Nand Lal, i.e., whether the termination of the two workmen were legal or
Justified, if not the Industrial Tribunal was to decide as to whether the workmen have
become regular/permanent employees. The Tribunal answered the point No. 1 in
favour of the workmen, therefore, there was no justification to have let point No. 2 to
be decided. Aggrieved thereby, the workmen concerned have approached this Court
and filed Civil Misc. Writ Petition No. 15509 of 1983. This Court vide its order dated
19th February, 1990, allowed the writ petition set aside the order dated 30th August,
1983, to the extent that it does not require any decision on the second question and
directed the Tribunal to decide the second question relating to
confirmation/permanency of the two workmen named in the reference. The operative
portion of the judgment and order dated 19th February, 1990, runs as under:
“The writ petition, as such, is liable to be allowed. The order dated 30.8.1983
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(Annexure-10 to the writ petition) is quashed and Industrial Tribunal-I.U.P. at

Allahabad is directed to decide the second question relating to
confirmation/permanency of the two workmen, named in the reference, within a
period of three months' from the date of receipt of certified copy of this judgment.
The writ petition is accordingly allowed with costs.”
5. As a consequence of the Writ Petition No. 15509 of 1990 being allowed, the
matter was taken up by the Tribunal and the Tribunal after hearing learned counsel for
both the parties have decided the second question in favour of the workmen by the
award impugned in the present writ petition. The labour court have considered the
intervening facts, which have been vehemently argued by learned counsel for the
petitioners in the following manner:
“It was held that Mohd. Jamil shall be deemed to be in unbroken continuous
service for a period of 8 years. However, on point No. 2 regarding his permanency
the Court simply held that it is well warranted in a case like this that the employers
even on human consideration should examine the possibilities of absorbing the
workman Mohd. Jameel on a job of regular nature. Against this award also Civil
Misc. Writ Petition No. 17727 of 1985 has been filed. It was connected

Page: 2663

with earlier Writ Petition No. 15509 of 1983 and ultimately in Writ petition No. 15509
of 1983, his Court passed the order directing this Tribunal to decide the point No. 2
raised in Adjudication Case No. 168 of 1980.”

6. The labour court after considering the aforesaid fact, which have been repeated
by learned counsel for the petitioners before this Court have recorded findings, which
ran as under. “I, therefore, repelled the contentions raised on behalf of the employers
and proceed to decide the matter which has been directed by this Court in writ
petition filed by the workmen, therefore, the labour court considered the case and
found that a perusal of the earlier award as well as after hearing learned counsel for
the parties, the workmen concerned will be deemed to have been regularised under
law with effect from the date the services were terminated.” Learned counsel for the
petitioners-employers have contended that in between because of the several
litigations between the parties, the findings recorded by the Tribunal suffer from the
manifest error of law, which is contrary to the evidence on record and contrary to the
assertion/admission made by the workmen themselves. On questioning as to what is
the contrary evidence on record, learned counsel have referred to several interim
orders, which were passed between the parties and tried to assail these findings to the
extent that these findings suffer from the manifest error of law. It is also admitted
case of the parties that litigations which were relied upon by the learned counsel have
become final, and also that the direction issued by this Court in Writ Petition No.
15509 of 1983 has become final between the parties. So far as this aspect of the
workmen is concerned, the labour court have suitably dealt with and, in my opinion,
the same do not warrant any further interference by this Court under Article 226 of the
Constitution of India.
7. Learned counsel appearing on behalf of the petitioners-employers then argued
that on the very nature of the appointment of the workmen concerned, they were
appointed on daily wage basis and the project in which they were appointed and
working have come to an end, therefore they relied upon several decisions of the Apex
Court as well as by this Court that the Tribunal has committed manifest error of law in
directing the regularisation/confirmation to these workmen. In my opinion, the
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decisions relied upon by the learned counsel for the petitioners-employers do not
apply to the facts of the present case. It will not be out of place to mention here that
this Court has dismissed the Writ Petition No. 17727 of 1985 filed by the petitioners
employers and the consequence of the Writ Petition No. 15509 of 1983 filed by the
workmen was allowed, whereby the Tribunal have held that the workmen's termination
was contrary to law and the remand order passed by this Court in Writ Petition No.
15509 of 1983 directing the Tribunal to decide the question of regularisation makes
this case distinguish on the facts than the case relied upon by the learned counsel for
the petitioners. In view of the findings recorded by the Tribunal, which as already
held, do not warrant any interference by this Court in exercise of its powers under
Article 226 of the Constitution of India. This writ petition therefore, has no merit and
deserves to be dismissed.
8. In view of what has been stated above, this writ petition is dismissed. The
interim order, if any, stands vacated.
———
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1997 SCC OnLine Bom 791 : 1997 LLR 1136

In the High Court of Bombay

(BEFORE ASHOK A. DESAI AND S.S. PARKAR, JJ.)

Mahatma Phule Agricultural University and Others

Versus
Nasik Zilla Shet Kamgar Union and Others
Writ Petition No. 721 to 723 of 1990
Decided on September 16, 1997

Page: 1137

The Judgment of the Court was delivered by

ASHOK A. DESAI, J.:— The Industrial Court in various proceedings initiated under
Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair
Labour Practices Act, held that the Krishi Vidyapeeth since continued the workers on
temporary basis though they completed more than 240 days, has engaged in an unfair
labour practice covered by Item 6 of Schedule IV of the Act and further directed the
Vidyapeeth to confirm them and also to pay them the benefits of permanent
employee. By various petitions Vidyapeeth has questioned the correctness of the order
whereas the employees by another set of petitions have prayed before us for
appropriate writ or directions to implement the order passed by the Industrial Court.
All these petitions are grouped and heard together.
2. The main contention of Mr. Swant, the learned Counsel appearing for the
Vidyapeeth is that the Government has sanctioned only limited number of posts for
the manual workers. The Vidyapeeth is not at liberty to sanction the post, according to
discretion.
3. The learned counsel invited our attention to section 54 of the Maharashtra
Agricultural Universities (Krishi Vidyapeeth) Act, 1983 and made a submission that
the Government exercise a complete control in the matter of financial implication and
as such there was no deliberate act on the part of the Vidyapeeth not to absorb these
employees against the permanent posts, inviting our attention to Item No. 6 of
Schedule IV the learned counsel urged that the act of the employer, unless as
motivated by definite design or objectives to deprive the temporary or badli workers
either the status or the benefit of the permanent employee, it could not be an unfair
labour practice as envisaged by the Act.
4. In support of the submission Mr. Sawant the learned Counsel invited our
attention to decision of the Supreme Court in SLP No. 4658 of 1993 and SLP No. 5717
of 1993 Gram Sevak Prashtkshan Kendra v. The workmen employed under them. The
Supreme Court has observed, by virtue of continuing for 240 days and more,
employees do not acquire a permanent status to be absorbed as regular employees.
For absorption as regular employees, existence of posts is mandatory.
5. Mr. Sawant, therefore, canvassed that since the sanctioned posts are limited and
such sanctioning is controlled by the Government, in view of Section 54 of the
Vidyapeeth Act, the employees cannot legitimately canvass a grievance in complaint
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under Section 28 of the Act or any unfair labour practice.

6. Mr. Grover and Ms. Sarnaik for quite sometime agitated about the applicability of
the Act to the present case. According to them the case before the Supreme Court
arose out of a charter of demand for absorbing against the permanent post. That was a
reference by the Labour Commissioner. It being under Section 12(5) of the Industrial
Dispute Act, the ratio has no application. One of the limbs of the submission is that
sanction order envisaged that after completing the stipulated period the employee
immediately assumes a status of the permanent employee. This aspect was not
considered by the Supreme Court. We heard the Learned counsel for the parties at
length. However, we do not propose to enter into debate about the applicability.
7. Undisputedly the workers covered by various complaints are working in various
projects of the Vidyapeeth on a temporary basis. They are working as such for
considerable period. It is not disputed before us

Page: 1138

that these workers so covered have also completed 240 days. What is apparent is that
the Vidyapeeth is continuously extracting work from them. Not granting status of a
permanent employee has certainly deprived them of the benefit. Such inaction on the
part of the Government of not sanctioning posts could not be innocuous. When the
result of inaction is definite and explicit the object of to doing it can be safely inferred.
As such the act is squarely covered by Item 6 of Schedule IV of the MRTU & PULP Act.

8. In view of the above decision of the Supreme Court, even if the employee is so
covered may not be entitled to status of a permanent employee, however, they cannot
be deprived of the privileges and benefits of the permanent employee as envisaged by
the Item 6 of Schedule IV. They are, therefore, entitled to wages and other benefits
applicable to the permanent employee. In view of this, we are not in a position to
sustain the order of the Industrial court directing the Vidyapeeth to confirm these
employees within a stipulated period. Order to that extent is modified. As observed,
however, the employees so covered by various complaints are entitled to the benefits
including wages applicable to the permanent workman. It is reported that the
employees are struggling for this legitimate demand since long. Some of the petitions
filed by the employees are also for the implementation of the order of the Industrial
Court. In view of this, subject to modification as indicated above, we confirm the
orders of the Industrial Court and direct the Respondent-Vidyapeeth to clear all the
dues of the workers who are eligible and covered by various complaints within a period
of six weeks from today. The amount due and payable to the workers shall carry an
interest at the rate of 6% from the date of the order of the Industrial Court.
9. Mr. Sawant appearing for Vidyapeeth orally prayed for the stay of this order.
However, in view of our order granting six weeks for compliance we find it not
expedient to stay the order further. Prayer is, therefore, rejected.
10. Certified copy is expedited.
———
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1966 SCC OnLine SC 23 : AIR 1967 SC 1071 : (1967) 1 SCR 128 :

(1967) 1 SCJ 463

In the Supreme Court of India

(BEFORE K. SUBBA RAO, C.J. AND J.M. SHELAT, J.)

STATE OF MYSORE
Versus
S.V. NARAYANAPPA
Civil Appeal No. 1420 of 1966, decided on August 22, 1966
The Judgment of the Court was delivered by
J.M. S HELAT, J.— This appeal by special leave is against the
Judgment and Order of the High Court of Mysore quashing the
memorandum, dated 4-7-1963 whereby the State Government
terminated the service of the respondent. The only question arising in
this appeal is one of interpretation of the Government Order No. GAD
46 SRR, dated 22-9-1961.
2. The respondent entered Government service as an officiating
computor in the Government Press on 11-3-1958 and continued in that
post until 1-9-1958. He was thereafter appointed from

Page: 1072

time to time in officiating capacity in different posts though in the same

department until 3-12-1959 when he was appointed as a proof
examiner. He continued in that post until 28-2-1961. According to the
appellants there was break in his service on 1-3-1961 as his service
was terminated on 28-2-1961 and he was once again appointed on 2-3
-1961 as a second division clerk (Industrial). He continued in that post
until 4-7-1961 when the impugned order terminating his service was
passed. The first of March, 1961 on which it was said there was break in
his service, was a holiday.

3. There is no dispute that the respondent was throughout working

in officiating capacity and was a “local candidate” like several other
such employees appointed by direct recruitment by Government
instead of regular recruitment by the Public Service Commission of the
State as required by the Rules of Recruitment.
4. Rule 8(27A) of the Mysore, Civil Service Rules, 1958 defines a
“local candidate” as meaning a temporary Government servant not
appointed regularly in accordance with the Rules of Recruitment to that
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service. Rule 1(A) of the Mysore Government Servants' (Seniority)

Rules, 1957 provides that those rules do not apply to a person
appointed as a local candidate so long as he is treated as such. It
further provides that where his appointment is treated as regularised
from any date, his seniority in the service shall be determined in
accordance with these rules as if he had been appointed regularly in
accordance with the Rules of Recruitment to the post held by him on
that day. Since the appointment of local candidates as in the case of
the respondent was not made by or through the Public Service
Commission as required by the Rules, the State Government with a
view to regularise such appointments passed the said order, dated 22-9
-1961.
5. The material portion of the said order runs as follows:
“2. * * *
(i) All appointments to Class III Direct Recruitment Posts made
by the local appointing authorities, both in the old Mysore area
(including Bellary District) and in the other integrating areas
up to 31-12-1959 (inclusive) may be regularised subject to the
condition that the candidates were within the prescribed age
limits and had the requisite qualifications at the time of their
initial appointments;
(ii) The services of local candidates shall be regularised with effect
from the date of their appointment, from which their service is
continuous provided they were in service on 1-1-1960 and
continue to be in service at the time their services are
regularised.
(iii) The local service will count for purposes of leave, pension and
increments # but not for purposes of seniority; only the service
from the date of regularisation of their appointments in the
particular department will count for seniority;
(iv) Breaks in service will not be condoned even if such breaks are
only for short periods.”
6. In the Writ Petition filed by the respondent against the impugned
order, dated 4-7-1963 terminating his service the respondent raised
two points:— (i) that though he was a local candidate appointed from
time to time to the aforesaid posts he was entitled to have his service
regularised under the said order, and (ii) that as he was entitled to be
so regularised he was also entitled to the protection of Article 311(2) of
the Constitution. Consequently, his service could not be terminated in
the manner it was done by the impugned order. The contention of the
State Government on the other hand was that the order of
regularisation did not apply to the respondent as his service was not
continuous as required by the said order and, therefore, there was no
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question of Article 311 being applicable to his case and the State
Government was entitled, therefore, to terminate his service by the said
order of 4-7-1963.
7. The High Court on an interpretation of the Order, dated 22-9-
1961 repelled the Government's contentions and held that the
respondent was entitled to have his service regularised with effect from
the date his service was continuous prior to 31-12-1959 and that being
so, the order terminating his service on the erroneous basis that he was
a temporary Government servant not entitled to the benefit of the
aforesaid regularisation order was violative of Article 311. This
interpretation meant that the appointment and service of the
respondent were not only to be regularised but as a result of such
regularisation the respondent had to be treated as a permanent servant
being entitled to the protection of Article 311(2). The High Court
arrived at this result on the interpretation it gave to the portion of the
said Order which we have set out above. The High Court observed that
sub-clause (2) of Clause 2 of the said Order provided for the fixation of
the date with effect from which the appointment was deemed to have
been made permanent and that the second part of that sub-clause laid
down the conditions which if satisfied entitled

Page: 1073

the respondent for regularisation. According to the High Court the

necessary conditions for such regularisation were:— (a) that the local
candidate should be in service on 1-1-1960, and (b) that he should
continue to be in service at the time his service was to be regularised.
The High Court further observed that what sub-clause (2) required was
“not continuity of service but that the services be continued at the time
of the regularisation” and that the intention of the Government was not
to lay down the condition of continuous service between 31-12-1959
and the date of the said Government order. It then observed:—

“When the Government order by a fiction of the law provided for

regularisation of services with effect from a date anterior to 31-12-
1959, the local candidates who satisfy the qualifications and
conditions prescribed by sub-paras (i) and (ii) are deemed to have
been permanently appointed with effect from a date anterior to 31-
12-1959. Where the local candidate possesses the qualifications
prescribed in sub-para (i) of Para 2, if his initial appointment was
made before 31-12-1959, he is entitled to have his appointment
regularised provided he was in service on 1-1-1960 and is continued
in service at the time of the G.O., notwithstanding any break in
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service between 31-12-1959 and 22-9-1961”

The High Court also held that sub-clause (iv) on which reliance
was placed by the Government had reference to break in service
before 31-12-1959 and not during the period subsequent to that
date. Thus, according to the High Court if a local candidate was
initially appointed prior to 31-12-1959 and was in service on 1-1-
1960 and also on 22-9-1961 he was entitled to the benefit of the
regularisation order. So long as he was in service on the two termini
his service would have to be regularised irrespective of whether his
service during the interval was continuous or not. The High Court
also equated regularisation with permanence of service and,
therefore, held that once a local candidate's service was regularised
he had to be treated as a permanent servant.
8. Before we proceed to consider the construction placed by the High
Court on the provisions of the said order we may mention that in the
High Court both the parties appear to have proceeded on an
assumption that regularisation meant permanence. Consequently it was
never contended before the High Court that the effect of the application
of the said order would mean only regularising the appointment and no
more and that regularisation would not mean that the appointment
would have to be considered to be permanent as an appointment to be
permanent would still require confirmation. It seems that on account of
this assumption on the part of both the parties the High Court equated
regularisation with permanence.
9. We are, however, not called upon in this appeal to decide and we
do not decide that question as Mr Desai on behalf of the State
Government assured us that the Government had come in appeal only
in its anxiety to have the order interpreted by this Court as the
construction placed by the High Court on the said order, if upheld,
would have considerable repurcussions on the prospects of other State
employees. He also assured us on behalf of the State Government that
since the break in the service of the respondent during the material
time was only of one day, viz., 1-3-1961, assuming there was such a
break, the Government would not do anything to adversely affect his
service and would not take away the benefit which he acquired as a
result of the High Court's judgment, even if we were to disagree with
the interpretation placed by the High Court on the said Order.
10. Coming now to the Order, sub-clause (i) of Clause 2 provides
that all appointments to Class III posts by direct recruitment made
upto 31-12-1959 should be regularised provided the candidates
satisfied the conditions as to age and qualifications at the time of their
initial appointment. The controversy arises on the construction of sub-
clause (ii). That sub-clause provides that the services of such
candidates shall be regularised with effect from the date of their
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appointment from which their services are continuous provided they

were in service on 1-1-1960 and continue to be in service at the time of
their services are regularised. It is clear from the express words used in
this sub-clause that continuity of service from 1-1-1960 until the date
of the order is a condition prescribed for regularisation. In other words,
a candidate claiming the benefit of this order has to satisfy that he was
initially appointed prior to 31-12-1959, that he was in service on 1-1-
1960 and continued in that service till the date of the order, i.e., 22-9-
1961. This construction finds support from sub-clause (iii) which
provides that local service prior to regularisation would be counted for
the purposes of leave, pension and increments though not for seniority
as seniority was to be fixed from the length of service calculated from
the date of regularisation. It is manifest that unless the

Page: 1074

local service was continuous such service could not be taken into
account for the purposes, in particular of pension and increments. How
would increments, for example, be granted unless the service prior to
such increments was continuous? The same consideration would also
apply in the case of pension. It had, therefore, to be provided as has
been done in sub-clause (iv) that a break in service would not be
condoned for a period howsoever short. Continuity of service is thus a
condition for both sub-clauses 2 and 3. The High Court was, therefore,
in error when it said that sub-clause (iv) did not relate to
considerations under sub-clause (ii) or that it had reference only to a
break in service before 31-12-1959. The High Court was also in error
when it construed sub-clause (ii) to mean that the only thing it
required was that the candidate had to be appointed initially prior to 31
-12-1959 and that he had to be in service on the two dates, viz., 1-1-
1960 and 22-9-1961 and that the service during the interval need not
be continuous. If that construction were to be upheld it would result in
injustice, for local candidates, not recruited regularly and not in
continuous service provided they were in service on the two relevant
dates, viz., 1-1-1960 and 22-9-1961, would get seniority over
candidates regularly appointed after 31-12-1959 and whose service is
continuous. Such a result would manifestly be both unjust and
improper and could hardly have been contemplated. Therefore, the
proper interpretation would be that in order that the regularisation
order may apply to a particular case the local candidate must be
initially appointed prior to 31-12-1959, he must be in service on 1-1-
1960 and continue to be in service without any break till the date of the
said order. If his service is regularised, his service from the date of
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such regularisation would be counted for seniority as against others

who were recruited properly under the Rules of Recruitment. Under sub
-clause (iii), however, if the service is continuous from 1-1-1960 to 22-
9-1961, such service is to be taken into account for purposes of leave,
pension and increments but not for purposes of seniority. The
construction which we are inclined to adopt thus harmonises all the
provisions of the Order and besides results in fairness to all the local
candidates appointed by direct recruitment whether regularly or
otherwise. For the reasons aforesaid the construction placed by the
High Court cannot be sustained.

11. Though the construction which we are inclined to adopt is in

support of the stand taken by the State Government, in view of the
assurance given by counsel on behalf of the Government that this
construction should not affect the regularisation of the respondent's
service and its having been considered by the High Court as
permanent, it is not necessary to interfere with the order passed by the
High Court. The appeal consequently is dismissed. There will, however,
be no order as to costs.
Appeal dismissed.
———
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