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Supreme Court of India
Ongc Employees Mazdoor Sabha vs The Executive Director Basin … on 13 February, 2020Author: Rohinton Fali Nariman
Bench: Rohinton Fali Nariman, S. Ravindra Bhat, V. Ramasubramanian
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1570 OF 2020
(Arising out of Special Leave Petition (C) No. 14475/2016)
ONGC EMPLOYEES MAZDOOR SABHA Appellant(s)
VERSUS
THE EXECUTIVE DIRECTOR BASIN MANAGER,
OIL & NATURAL GAS CORPORATION (INDIA) LTD. Respondent(s)
J U D G M E N T
R.F. Nariman, J.
1) Leave granted.
2) Between 1999 and 2001, the respondent-Oil & Natural Gas
Corporation (India) Ltd. (for short ‘the ONGC’) called for
names from the Employment Exchange to fill up sanctioned posts
(Class III & IV) of about 800 persons on a term basis i.e. for
4 years. Interview call letters were issued and after
conducting interviews, appointment orders for the said period
was issued as per inter se merit of the available candidates.
It must be stated that the only error in this order of
employment is that no public advertisement in the newspapers
was first given.
Signature Not Verified
Digitally signed by
SUSHMA KUMARI
BAJAJ
Date: 2020.02.20
3) The appellant-Union thereafter demanded regular
17:30:34 IST
Reason:
appointments to 577 term based employees who were appointed by
the respondent-ONGC during 1991 to 2001. The conciliation
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proceedings which took place in 2003 failed as a result of
which an industrial dispute was referred to the Industrial
Tribunal at Ahmedabad in the following terms:
“Whether the demand of the ONGC Employees Majdoor
Sabha, Baroda to give regular appointment to 577
term based appointees (list enclosed) is proper
or just? If so, what relief the workmen are
entitled for and what directions are necessary in
the matter?”
4) By an Award dated 08.11.2011, the Industrial Tribunal,
Ahmedabad partly allowed the reference and directed
regularization of some of the services of these 577 workmen in
the following terms:
(i) Out of 577 term based appointees of 1999, 2000
and 2001 as per list attached to the reference,
those who either expired or resigned or terminated
or tenure completed or are absent are now out of
the court and so those are not entitled to get any
relief inspite of raising demand by the union under
the reference.
(ii) Out of 577 term based appointees as per list
attached to the reference those who have been
selected and appointed against regular vacancies so
far and those who were also appointed on regular
post being dependants of deceased employees (DOD’s)
so far are not entitled to get any relief in this
reference case.
(iii) Out of 577 term based appointees as per list
attached to the reference, those who raised dispute
for their regularization also on completing 240
days of works in the preceding calendar years and
the award passed in their favour and the list of
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such employees covered under Hon’ble Supreme
Court’s Judgment in Civil Application No. C607/2005
regarding field party workman read with order dated
08.02.2008 in IA No. 10/2007 in Civil Application
No. 6607/2005, selected against regular post under
order of the Court are, also excluded from getting
any relief in this reference, if, (here has been no
change in condition of service of any of them by
way of removal etc. without getting
approval/permission from the tribunal and if,
condition of service of any one has been changed
and any complaint case is pending, then the person
if any, shall be entitled to the relief.
(iv) Out of 577 term based appointees as per list
attached to the reference, those whose term had not
been extended in the year 2004 and filed complaint
in this reference case which are pending are
entitled to get relief in this case for considering
them for regular appointments by the 1st parties.
(v) Out of 577 appointees as per list attached to
the reference, 30 persons who are separated as per
list of Field Operator furnished by the first
parties on 18.07.2011 are not entitled to get any
relief.
(vi) Out of the remaining of 577 term based
appointees, who are still continuing on the posts
on which they were appointed and are getting
extensions of term/tenure are directed to be
treated and covered within priority case of
consideration zone for given them regular
appointment by the management of ONGC (1 st parties).
The 1st parties are directed to work out such number
of appointees with intimation to the 2nd party
union.
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(vii) The first parties are directed to undertake
exercise of giving regular appointment to the
remaining term based appointees calling them for
interview if, necessary, and not to import
recruitment from open market inviting fresh
applications for the regular posts unless term
appointees are given regular appointments of class
III & IV posts.”
5) The appellant-Employees Union being aggrieved by this
Award approached, by way of a Special Civil Application, the
High Court of Gujarat to the extent that the Tribunal had not
granted appointment to the workmen with effect from the date
on which they had been initially appointed and/or from the
date on which they completed probation. By a judgment dated
26.04.2013, a learned Single Judge of the Gujarat High Court
allowed this writ petition in part stating:
“15. In view of the fact that the workmen have
already undergone the procedures of recruitment
such as examinations and interviews and have
been working with the respondent Corporation
for years, their case deserves to be
considered. However, it is pointed out that
some of the employees have undergone fresh
interview and were appointed on regular basis.
In that view of the matter, in order to avoid
any complication with regard to seniority and
other aspects, interest of justice would be met
by directing the respondent Corporation to
treat the concerned workmen on regular
employment with effect from 24.01.2005 or the
date of first reissuance of appointment order
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as the case may be, and accordingly grant
notional benefits from the said date till
31.03.2013 and to pay them regular pay and
allowances with effect from 01.04.2013.
Accordingly, the following directions are
issued:
[i] The concerned workmen involved in these
cases are not required to undergo any more
recruitment examinations since they have been
appointed after following necessary procedure
and are working with the corporation since
then.
[ii] The respondent Corporation shall treat the
concerned workmen on regular employment with
effect from 24.01.2005 or the date of first
reissuance of appointment order as the case may
be.
[iii] Accordingly the respondent Corporation
shall grant notional benefits to the concerned
workmen from the said date till 31.03.2013 and
shall pay them regular pay and allowances with
effect from 01.04.2013.
[iv] The direction of the Tribunal not to
import recruitment from open market inviting
fresh applications for the regular posts unless
term appointees are given regular appointments
of Class III and IV posts is quashed and set
aside.
[v] It shall be open to the respondent
Corporation to initiate action for recruitment
for remaining vacancies, if any, after
absorption of concerned workmen from open
market.
[vi] In case the regular salary is being paid
to the concerned workmen pursuant to the
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interim order of this Court, no recovery
thereof shall be effected by the Corporation.
16. The award of the Labour Court is modified
accordingly. Special Civil Applications No.
2248 of 2012 and No. 2813 of 2012 are partly
allowed. Rule is made absolute to the
aforesaid extent with no order as to costs.
Special Civil Application No. 16777 of 2012 is
dismissed. Rule is discharged with no order as
to costs. In view of the order passed in
Special Civil Application No. 2248 & 2813 of
2012, no orders are required to be passed in
Civil Application No. 14144 of 2012 and the
same is accordingly disposed of.”
6) Two Letters Patent Appeals from this judgment that were
filed were both dismissed, one by the Workers Union, and one
by the ONGC by the impugned judgment dated 29.04.2015. What
was held by the judgments of the learned Single Judge and the
Division Bench is that at the highest the initial appointment
of the members of the appellant-Union could be termed to be
irregular but not illegal. The ONGC appealed from the
Division Bench judgment dated 29.04.2015, which was dismissed
by this Court’s order dated 17.08.2015 stating as follows:
“Taking into consideration the peculiar
facts and circumstances of these special
leave petitions, we are not inclined to
interfere with the impugned judgment and
order passed by the High Court of Gujarat.
Accordingly, the special leave petitions
are dismissed.”
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The limited question that arises before us today is on what
date to treat the concerned workmen to be on regular
appointment.
7) Mr. K.V. Viswanathan, learned Senior Advocate appearing
on behalf of the appellant-Union has taken us through the
record and has stated that his clients ought to be
regularized from the date of the initial
appointment/completion of probation and that the learned
Single Judge in confining relief only from 24.01.2005 or the
date of first reissuance of the appointment order as the case
may be and granting notional instead of actual benefits from
the said date is wholly incorrect and ought to be set aside
by this Court.
8) Mr. K.M. Nataraj, learned Additional Solicitor General
appearing for the respondent, on the other hand, points that
that what has been done by the learned Single Judge is
absolutely correct in law inasmuch as regularization has been
given but cannot be given on actuals retrospectively.
Hence, the date of 24.01.2005 which is the last date on which
the four year term comes to an end is a date which is just
and could well have been given. Regular pay and allowances,
therefore, as was correctly given to the employees union from
01.04.2013 (that is the date of the month in which the
learned Single Judge decided the Special Civil Application)
was also something well within the jurisdiction of the
learned Single Judge in exercising powers under Article 226
and 227 of the Constitution of India.
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9) Mr. K.V. Viswanathan has strongly relied upon Oil and
Natural Gas Corporation Limited vs. Petroleum Coal Labour
Union and Others, (2015) 6 SCC 494, which, according to the
learned senior advocate applies clearly to the facts of this
case, this Court having granted regularization to similarly
placed employees from the date of their entitlement i.e.
after completion of 240 days of service in a calendar year in
the Corporation as was provided in the Certified Standing
Orders that were relied upon in that case.
10) On the other hand, Mr. K.M. Nataraj, learned ASG has
pointed out that this judgment is distinguishable on facts in
that the Award passed by the Industrial Tribunal in that case
itself directed the appellant-Corporation to regularize
services of the workmen concerned with effect from the date
on which they completed 480 days. Also, since this was
expressly provided for in the Certified Standing Orders of
the Corporation, the case is completely distinguishable. We
have also been informed that this judgment is pending
consideration of a larger Bench by a reference order dated
07.02.2020.
11) The learned ASG appears to be correct in that the
judgment reported in Oil and Natural Gas Corporation Limited
(supra), in any case, does not lay down any law with respect
to the entitlement of the workers to regularization in that
case. It was a case which depended entirely on its own facts
and was dependent upon a reading of Certified Standing Orders
of the Corporation in this behalf. The question of law that
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was decided by this judgment has no bearing whatsoever on the
issue that is before us.
12) The Learned ASG then cited Surendra Kumar and Others vs.
Greater Noida Industrial Development Authority and Others
(2015) 14 SCC 382, which, on facts, concerned a policy
decision to regularize the services of 27 contractual
employees of the respondent taken in 2003 which was approved
by the Government in 2008, the appellants being appointed
only on 06.08.2010. On the facts of that case, it was held
that when vacancies were initially advertised the appellants
had no substantive right against the notified vacancies and
applying the principles contained in State of Karnataka vs.
Umadevi (2006) 4 SCC 1, this Court stated that the appellants
cannot seek regularization with retrospective effect from
2002 as the regularization policy itself was not in vogue at
that time. This judgment again is far removed from the facts
of this case and is wholly distinguishable in that in the
present case the only irregularity in the appointment was the
lack of a public advertisement apart from which each and
every other condition for employment is met.
13) The learned ASG then cited Divisional Manager, A.P. SRTC
and Others vs. P. Lakshmoji Rao and Others, (2004) 2 SC 433
and, in particular, relied upon para 16 of the said judgment
which reads as follows:-
“16. In the light of the above discussion, we
are of the view that the law laid down or the
directions given in various writ petitions/writ
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appeals are not legally sustainable for more
than one reason. Firstly, wrong criterion
based on Section 25-B of the ID Act was applied
in case after case. Secondly, the respondents
and other similarly situated employees
approached the Court under Article 226 long
after their regularization, thereby unsettling
the settled position. Thirdly, on the facts of
these cases, it is evident that the services of
the employees who were recruited as conductors
were regularized within a reasonable time. The
respondent employees were therefore treated
fairly. No service rule or regulation or any
other principle of law has been pressed into
service by the respondents to claim
regularization from an anterior date i.e. right
from the date of their initial appointment as
daily-wage employees.”
On a perusal of para 16, it is clear that that case turned
upon the mis-application of Section 25-B of the Industrial
Disputes Act in case after case. Secondly, it was also
mentioned that the respondents and other similarly situated
employees approached the Court long after regularization
thereby unsettling the settled position and, (presumably)
affecting the rights of other employees as well. Thirdly, on
facts it was also found that the persons who are recruited as
conductors were regularized within a reasonable time. Based
on these three factors it was finally held that it would be
unjust on the facts of that case to grant regularization from
an anterior date i.e. from the date of initial appointment as
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daily-wage employees.
14) On facts in the present case, what is clear is that as
soon as the four year period got over, the employees
collectively through their Union approached the Central
Government and the Central Government in exercise of its
powers under the Industrial Disputes Act referred an
industrial dispute immediately on 21.12.2004. This dispute
was ultimately answered by the Central Government Industrial
Tribunal many years later only on 08.11.2011. On the facts of
this case, therefore, we are of the view that the Corporation
must treat the concerned workmen which includes 111 out of
these 577 employees who have been regularized earlier to be in
regular employment on and from the date on which the
industrial dispute was referred i.e. 21.12.2004 and
accordingly grant all actual benefits from the said date till
01.04.2013. The other directions that have been given by the
learned Single Judge will remain intact. The appeal is
allowed in the aforesaid terms.
…………………….. J.
(ROHINTON FALI NARIMAN)
…………………….. J.
(S. RAVINDRA BHAT)
…………………….. J.
(V. RAMASUBRAMANIAN)
New Delhi;
February 13, 2020.
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