ONGC EMPLOYEES MAZDOOR SABHAversusTHE EXECUTIVE DIRECTOR BASIN MANAGER, OIL & NATURAL GAS CORPORATION (INDIA) LTD.

                        [2020] 3 S.C.R. 961                             961


            ONGC EMPLOYEES MAZDOOR SABHA                                A
                                 v.
      THE EXECUTIVE DIRECTOR BASIN MANAGER,
     OIL & NATURAL GAS CORPORATION (INDIA) LTD.
                  (Civil Appeal No. 1570 of 2020)                       B
                       FEBRUARY 13, 2020
         [R. F. NARIMAN, S. RAVINDRA BHAT AND
                V. RAMASUBRAMANIAN, JJ.]
       Industrial Disputes Act, 1947: Regularisation – Entitlement
                                                                        C
of – Names called from employment exchange to fill up sanctioned
posts by respondent – Interview conducted – Issuance of
appointment order as per inter se merit of available candidate –
Thereafter, demand of regular appointment to term based employees
appointed by appellant-Union – Industrial dispute – Tribunal
directed regularisation of some of these workmen – Appellant-Union      D
filed civil application 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 – Single Judge of the High Court directed the respondent
Corporation to treat the concerned workmen on regular employment
                                                                        E
with effect from the date the four year term comes to an end or the
date of first reissuance of appointment order as the case may be –
Letters Patent Appeals, filed thereagainst, dismissed by the Division
Bench – Issue as regards the date to treat the concerned workmen
to be on regular appointment – Held: Corporation must treat the
concerned workmen who have been regularized earlier to be in            F
regular employment on and from the date on which the industrial
dispute was referred and grant all actual benefits from the said
date till the date of decision by Single Judge of the High Court.
      Allowing the appeal, the Court
      HELD: On facts in the instant case, as soon as the four           G
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         H
                                961
962            SUPREME COURT REPORTS                      [2020] 3 S.C.R.


A     Government Industrial Tribunal many years later only on
      08.11.2011. On the facts of this case, therefore, 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
B
      actual benefits from the said date till 01.04.2013. The other
      directions that have been given by the Single Judge will remain
      intact. [Para 14][969-A-C]
            Oil and Natural Gas Corporation Limited v. Petroleum
            Coal Labour Union and Others (2015) 6 SCC 494;
C           Surendra Kumar and Others v. Greater Noida Industrial
            Development Authority and Others (2015) 14 SCC 382
            – distinguished.
            State of Karnataka v. Umadevi (2006) 4 SCC 1;
            Divisional Manager, A.P. SRTC and Others v. P.
D           Lakshmoji Rao and Others, (2004) 2 SC 433 – referred
            to.
                            Case Law Reference
      (2015) 6 SCC 494        distinguished                   Para 9
E     (2015) 14 SCC 382       distinguished                   Para 12
      (2006) 4 SCC 1          referred to                     Para 12
      (2004) 2 SCC 433        referred to                     Para 13
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1570
F     of 2020.
            From the Judgment and Order dated 29.04.2015 of the High Court
      of Gujarat at Ahmedabad in Letters Patent Appeal No. 290 of 2014.
           K.V. Viswanathan, Sr. Adv., V.N. Subramanian, Apoorva Singhal,
      Ms. Madhusmita Bora, Advs. for the Appellant.
G
           K.M. Nataraj, ASG, Sunil Kumar Jain, Abhishek Jain, Ms. Anusha
      Agarwal, Ms. Kririka Bodha, Advs. for the Respondent.



H
ONGC EMPLOYEES MAZDOOR SABHA v. EXECUTIVE DIR.                                 963
       BASIN MANAGER, ONGC (INDIA) LTD.

      The Judgment of the Court was delivered by                               A
      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          B
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         C
given.
        3. The appellant-Union thereafter demanded regular appointments
to 577 term based employees who were appointed by the respondent-
ONGC during 1991 to 2001. The conciliation proceedings which took
place in 2003 failed as a result of which an industrial dispute was referred   D
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?”       E
     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
                                                                               F
      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             G
      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        H
964            SUPREME COURT REPORTS                             [2020] 3 S.C.R.


A           on completing 240 days of works in the preceding calendar years
            and the award passed in their favour and the list of 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
B
            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
C           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
D           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
E           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 (1st parties).
            The 1st parties are directed to work out such number of appointees
F           with intimation to the 2nd party union.
            (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
G           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
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ONGC EMPLOYEES MAZDOOR SABHA v. EXECUTIVE DIR.                                 965
BASIN MANAGER, ONGC (INDIA) LTD. [R. F. NARIMAN, J.]

appointed and/or from the date on which they completed probation. By           A
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,         B
      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                    C
      employment with effect from 24.01.2005 or the date of first
      reissuance of appointment order 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:            D
      [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        E
      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            F
      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.                                       G
      [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.

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966             SUPREME COURT REPORTS                           [2020] 3 S.C.R.


A           [vi] In case the regular salary is being paid to the concerned
            workmen pursuant to the 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
B           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.”
C
             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
D     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
E           with the impugned judgment and order passed by the High Court
            of Gujarat. Accordingly, the special leave petitions are dismissed.”
             The limited question that arises before us today is on what date to
      treat the concerned workmen to be on regular appointment.

F            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
G     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
H     inasmuch as regularization has been given but cannot be given on actuals
ONGC EMPLOYEES MAZDOOR SABHA v. EXECUTIVE DIR.                                  967
BASIN MANAGER, ONGC (INDIA) LTD. [R. F. NARIMAN, J.]

retrospectively. Hence, the date of 24.01.2005 which is the last date on        A
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
                                                                                B
learned Single Judge in exercising powers under Article 226 and 227 of
the Constitution of India.
       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   C
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         D
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,     E
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             F
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 was decided by this judgment has no bearing whatsoever on the
issue that is before us.                                                        G
      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                 H
968             SUPREME COURT REPORTS                            [2020] 3 S.C.R.


A     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
B
      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.
C            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/
D            writ 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
E            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
F            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
G     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
H     regularization from an anterior date i.e. from the date of initial appointment
      as daily-wage employees.
 ONGC EMPLOYEES MAZDOOR SABHA v. EXECUTIVE DIR.                              969
 BASIN MANAGER, ONGC (INDIA) LTD. [R. F. NARIMAN, J.]

       14) On facts in the present case, what is clear is that as soon as    A
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
                                                                             B
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     C
that have been given by the learned Single Judge will remain intact. The
appeal is allowed in the aforesaid terms.


Nidhi Jain                                                 Appeal allowed.
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