Supreme Court of India
ONGC LTD.versusPETROLEUM COAL LABOUR UNION & ORS.
- Citation
- 2015 INSC 338
- Decided
- 17 April 2015
- Disposal
- Dismissed
- Bench
- V GOPALA GOWDA
Holding
The Industrial Tribunal validly directed ONGC to regularise the workmen, whose irregular but not illegal appointments entitle them to regularisation under the Certified Standing Orders, and the corporation’s policy decision cannot override the special enactment.
Summary
The Oil and Natural Gas Corporation (ONGC) appointed security workmen through contractors, a cooperative society and later by direct memorandum, without following its recruitment rules. The workmen claimed regularisation after completing more than 240 days of service, alleging an unfair labour practice. The Industrial Tribunal directed ONGC to regularise them, a decision upheld by the High Court. ONGC appealed, arguing that the appointments were illegal, that a policy decision to deploy CISF personnel overrode the Certified Standing Orders, and that the tribunal lacked jurisdiction. The Supreme Court held that the tribunal had jurisdiction, the workmen’s appointments were irregular but not illegal, and that the Certified Standing Orders, a special enactment, prevail over the policy decision and ONGC’s internal rules, entitling the workmen to regularisation and back wages. The Court dismissed the appeal and affirmed the lower courts' orders.
Issues considered
- The jurisdiction of the Industrial Tribunal to direct regularisation of the workmen.
- Whether the workmen’s appointments, made without following recruitment rules, were illegal or merely irregular and thus affect their right to regularisation.
- Whether the corporation’s policy decision to induct CISF personnel overrides the Certified Standing Orders.
- Whether the workmen are entitled to regularisation under Clause 2(ii) of the Certified Standing Orders after completing 240 days of service.
- Whether an unfair labour practice can be found and remedied even without an explicit plea in the claim.
- Whether the Industrial Employment (Standing Orders) Act, 1946 prevails over the ONGC Act and internal recruitment rules.
Legislation cited
- Contract Labour (Abolition and Regulation) Act, 1970s. 10(1)
- Industrial Disputes Act, 1947s. 25T, s. 25U, s. 2(k), s. 2(ra), s. 30, s. 33
- Industrial Employment (Standing Orders) Act, 1946s. 10, s. 13-B
- Oil and Natural Gas Commission Act, 1959s. 30A
Subjects
regularisationindustrial disputecertified standing ordersunfair labour practicetribunal jurisdictioncontract labourpolicy decisionCISFONGCtemporary appointmentArticle 14Article 16standing orders act
Judgment
[2015] 5 S.C.R. 474
A ONGCLTD.
V.
PETROLEUM COAL LABOUR UNION & ORS.
B (Civil Appeal No. 3727 of 2015)
APRIL 17,2015
[V. GOPALA GOWDAAND C. NAGAPPAN, JJ.]
c Industrial Disputes Act, 1947 - Regularisation- Claim for
- Appointment of workmen by Corporation initially through
contractors, subsequently, through Co-operative Society -
Thereafter, policy decision by the Corporation to entrust security
D work to Cl SF to protect their installations - During pendency of
the sanction from Central Government of the policy decision,
Corporation issuing memorandum of appointment directly to each
one of the concerned workmen on term basis and thereafter,
employed continuously without written orders by the Corporation
E - Workmen claiming regularization of services in the Corporation
- Award passed by the tribunal directing the Corporation to
regularize the services of the workmen since they had completed
480 days of work as required - Said award upheld by the High
Court- On appeal, held: Order passed by the High Court is legal
F and valid - Policy decision is neither valid nor applicable- Certified
Standing Order of Corporation apply to the workmen and overrides
the policy decision - Workmen have acquired their right to be
regularised as per the Act as well as the provision of cl 2(ii) of the
G 'Certified Standing Orders since they have rendered more than
240 days of service in a calendar year from the date of the
memorandum of appointment issued- 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-
H Their appointment in their posts and continuing them in their
474
0.N.GC. v. PETROLEUM COAL LABOUR UNION 475
services definitely cannot be termed as illegal, at best it can be A
called irregular- Even though plea is not taken regarding unfair
labour practice being committed by the Corporation, the Labour
Court/High Court have got the power to record the finding of fact
to ensure that there shall be effective adjudication of the industrial
dispute- Thus, the Corporation to regularize the services of the B
workmen and pay their back wages and other benefits- Certified
Standing Orders for Contingent Employees of the Oil and Natural
Gas Commission.
Dismissing the appeal, the Court c
HELD: 1.1 The tribunal rightly adjudicated the P.oint
as regards jurisdiction of the tribunal to direct the
Corporation to regularize the services of the con.cerned
workmen in the posts, on the basis of the facts, D
circumstances and evidence on record and passed an award
directing the Corporation that the services of the concerned
workmen should be regularized. The submission that the
tribunal has no power to pass such an award compelling the
Corporation to regularise the services of the concerned E
workmen is wholly untenable in law. [Para 26] [495-C-E]
1.2 The plea of the Corporation t.hat the reason for
not regularising the concerned workmen under the Certified
Standing Orders of the Corporation is allegedly due to the. F
fact that the appointment of the concerned workmen was
made without following due procedure under the
Recruitment Rules and that their appointments were illegal,
cannot be accepted since the Corporation cannot deny the G
rights of the workmen by taking the plea that their initial
appointment was contrary to Articles 14 and 16 of the
Constitution. 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 H
476 SUPREME COURT REPORTS (2015] 5 S.C.R.
A 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
B 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
C Clause 2(ii) of the 'Certified Standing Orders for Contingent
Employees of the Oil and Natural Gas Commission'. [Para
28, 29) [503-A-C, E-H]
Ajaypa/ Singh v. Haryana Warehousing Corporation 2014
(13) SCALE 636 - relied on.
D
1.3 For the Corporation to implement a provision which
affects the service conditions of its employees, it is
necessary f9r1fle ~oration to first modify the Certified
Standing Orders by following the procedure provided under
E Section 10 of the Industrial Employment (Standing Orders)
Act, 1946 as the same is a Special enactment and therefore,
prevails over the provisions under the ONGC Act and
Recruitment Rules. The Corporation undisputedly has not
F made any such modification to its Certified Standing Orders
by following the procedure for modification of conditions of
service as per Section 10 of the Industrial Employment
(Standing Orders) Act, 1946. The alleged policy decision
taken to induct the CISG for the purpose of providing security
G to its project by the Corporation under Section 30A of the
ONGC Act does not prevail over the Standing Orders Act
framed under the Industrial Employment (Standing Orders)
Act, 1946, which is the Special Enactment. Therefore, the
alleged "policy decision" taken by the Corporation is neither
H valid in law nor applicable in the case on hand. [Para 32, 33)
[505-E-G; 510-D-E]
O.N.GC. v. PETROLEUMCOALLABOURUNION 477
1.4 The sanction letter by the Central Government is A
• for the creation of temporary posts for the security coverage
of ONGC installation and not to depute CISF specifically into
security posts in the Corporation, therefore, the reliance
placed on the same is misplaced as the same is wholly
untenable in law as the same is not reflected in the sanction B
letter. Further, the stated guidelines cannot be considered
to be the policy of the Central Government as it is not framed
in accordance with the relevant 'Business Transaction Rules'
of the Central Government. [Para 36] [515-D-G]
c
1.5 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 Co-operative D
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 E
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 Qrders and
therefore, the said condition has to be ignored. When the
concerned workmen were appointed by issuing the F
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 G
denied their legitimate, statutory and fundamental right to
be regularised in their posts as provided under Clause 2 (ii)
of the Certified Standing Orders. It would be unjust and
unfair to deny them regularisation in their posts for the error H
478 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 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
includes inaction on its part in not regularising the concerned
workmen in their services under cl 2(ii) of the Certified
B Standing Orders. [Para 38] [517-C-H; 518-A-E]
1.6 The procedure of appointments adopted by the
Corporation with respect to the concerned workmen initially
appointed through contractors, subsequently through the
C 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 which is untenable in law and their
0
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
E services is definitely cannot be termed as illegal, at best it
cari be called irregular. Therefore, the Certified Standing
Orders of the Corporation by all means apply to the
concerrn~d workmen. The submission of the Corporation that
the statutory right claimed by the concerned workmen under
F 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, cannot be accepted since the
G 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 thair completion of 240 days of service
H in a calendar year as they have acquired valid statutory right.
This should have been positively considered by the
O.N.G.C. v. PETROLEUM COAL LABOUR UNION 479
Corporation and granted the status of regular employees of A
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 Ill of the B
Constitution. The Corporation should exercise its power
fairly and reasonably in accordance with law. Therefore, the
concerned workmen have approached the tribunal by raising
an industrial dispute regarding the regularisation of their C
services in the Corporation. The same has been properly
adjudicated by the tribunal based on pleadings, evidence
on record and in accordance with law. Further, all of the
concerned workmen barring just one of the concerned
workmen have all the qualifications required to be o
regularised in the permanent posts of the Corporation as
regular employees. [Para 39, 40][518-F-H; 520-G-H; 521-C-D]
1. 7 The submission that in the absence of any plea
taken by the workmen in their claim statement regarding E
unfair labour practice being committed by the Corporation
against the concerned workmen, the Single Judge and the
Division Bench ought not to have entertained the said plea
since such plea must be pleaded and established by a party
who relies before the tribunal, is wholly untenable in law. F
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. There.after, they
were denied their legitimate right to be regularised in the G
permanent posts of the Corporation. The said fact was duly
noted by the High Court 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 H
workmen as temporary employees against permanent posts
480 SUPREME COURT REPORTS (2015] 5 S.C.R.
A who have been doing perennial nature of work and continuing
them as such for number of years. The same is affirmed 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
B 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 Single Judge and the
Division Bench of the High Court in the impugned judgment
C 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
o 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
E 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
F industry in the larger interest of public, which is the prime
object and intendment of the Industrial Disputes Act. In the
instant case, the commission of an unfair labour practice in
relation to the concerned workmen by the Corporation is
G 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. [Para 41) [521-E-H; 522-A-H; 523-A-B]
H
O.N.G.C. v. PETROLEUM COAL LABOUR UNION 481
1.8 The judgments and orders of both the Single A
Judge and Division Bench of the High Court in favour of the
concerned workmen are legal and valid. The High Court
rightly dismissed the appeal of the Corporation by affirming
the award passed by the tribunal. Since the industrial dispute
between the parties has been litigated for the last 25 years, B
the Corporation is directed to comply with the terms and
conditions of the award passed by the Tribunal and regularise
the services of the concerned workmen in their posts and
compute the back-wages, monetary benefits and other C
consequential monetary benefits including terminal benefits
payable to the concerned workmen on the basis of the
periodical revision of pay scales applicable from the date of
their entitlement, namely, by regularizing them in their
services after their completion of 240 days of service in a D
alendar year in the Corporation; and if the Corporation fails
to om ply with the given directions, the back-wages shall be
pai to the concerned workmen with an interest at the rate
of 9° per annum. [Para 42) [523-C-H; 524-A-B)
E
Air India Statutory Corporation & Ors. v. United Labour Union
& Ors. 1996 (9) Suppl. SCR 579: (1997) 9 SCC 377;
Secretary, State of Karnataka & Ors. v. Uma Devi (3) &
Ors. 2006 (3) SCR 953: (2006) 4 SCC 1; Steel Authority of
India Ltd. & Ors. v. National Union Waterfront Workers & F
Ors. 2001 (2) Suppl. SCR 343: (2001) 7 sec 1;
Maharashtra State Road Transport Corporation & Anr. v.
Casteribe Rajya Parivahan Karamchari Sanghatan§J (2009)
8 SCC 556; U.P. Power Corporation Ltd. & Anr. v. Bijli
Mazdoor Sangh & Ors. 2007 (5) SCR 256: (2007) 5 SCC G
755; Hari Nandan Prasad & Anr. v. Employer l/R To
Management of Food Corporation of India & Anr. 2014 (2)
SCR 955: (2014)7SCC190; TheBharatBank Ltd., Delhiv.
The Employees of the Bharat Bank Ltd., Delhi & the Bharat
H
482 SUPREME COURT REPORTS [2015] 5 S.C.R.
A Bank Employee's Union, DelhiAIR 1950SC 188: 1950 SCR
459; Life Insurance Corporation Of India v. D. J. Bahadur &
Ors. 1981 (1) SCR 1083: (1981) 1SCC315; The U.P. State
Electricity Board & Anr. v. Hari Shankar Jain & Ors. 1979
(2) SCR 355: (1978) 4 SCC 16; Sudhir Chandra Sarkar v.
B Tata Iron and Steel Co. Ltd. & Ors.1984(3) SCR 325: (1984)
3 SCC 369; Olga Tellis & Ors. v. Bombay Municipal
Corporation and Ors. 1985 (2) Suppl. SCR 51: (1985) 3
SCC 545; Siemens Limited &Anr. v. Siemens Employees
Union & Anr. 2Q11 (15) SCR 1157: (2011) 9 SCC 775 -
c referred to.
Case Law Reference
1996 (9) Suppl. SCR 579 Referred to ·Para 9
D 2006 (3) SCR 953 · Referred to Para 10
2001 (2) Suppl. SCR 343 Referred to Para 16
(2009) 8 sec 556 Referred to Para 17
2·007 (5) SCR 256 Referred to Para 17
E
20'14 (2} SCR 955 Referred to Para26
1950SCR459 Referred to Para 27
1981(1)SCR1083 Referred to Para27
F 2014 (13) SCALE 636 Referred to Para28
1979 (2) SCR 355 Referred to Para32
1984 (3) SCR 325 Referred to Para33
1985 (2) Suppl. SCR 51 Referred to Para39
G
2011 (15) SCR 1157 Referred to Para 41
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 3727
of2015
H
O.N.G.C. v. PETROLEUM COAL LABOUR UNION 483
Fro~ the Judgment and Order dated 11.08.2011 of the A
High Court of Judicature at Madras in Writ Appeal No. 1006 of
2011
P. P. Rao, V. N. Koura, Aruna Mathur, Paramjeet Benipal,
Yusuf Khan (ForArputh§!mAruna & Co.) for the Appellant. B
C. U. Singh, V. N. Subramaniam, Dhaval Mehrotra, Rishi
Gautam, Satish Kumar, Santosh Krishnan, Deeptakirti Verma for
the Respondents.
c
The Judgment of the Court was delivered by
V. GOPALA GOWDA, J. 1. Leave granted.
2. The appellant-Corporation has questioned the
correctness of the judgment and order dated 11.08.2011 passed D
by the High Court of Judicature at Madras whereby the High Court
dismissed the Writ Appeal No. 1006 of 2011 filed by the appellant-
Corporation against the dismissal of their W.P. No. 1846 of 2000
challenging the award dated 26.05.1999 passed by the Industrial
Tribunal, Tamil Nadu, in l.D. No.66of1991, wherein it was held E
that non-regularisation of the concerned workmen in the dispute
is not justified and directed the appellant-Corporation to regularise
the services of the concerned workmen with effect from
14.01.1990, the date on which all of them completed 480 days.
F
3. The relevant facts are briefly stated hereunder to
appreciate the rival legal contentions urged on behalf of the parties
in this appeal.
The appellant-Corporation is a Public Sector Undertaking G
of the Government of India in the name of Oil and Natural Gas
Corporation Limited (hereinafter referred to as the 'Corporation').
The Corporation has a project in the Cauveri Basin, situated in
and around Karaikal, Union Territory of Puducherry and about 1050 H
484 SUPREME COURT REPORTS [2015] 5 S.C.R.
A employees have been regularly employed by the Corporation for
its pro.ject. For the purpose of the Corporation's security
requirement for the project, it initially employed the concerned
workmen some of whom are members of the respondent-Union,
as security guards and security supervisors through contractors.
B However, on the 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 Corporation,
C the concerned workmen were employed as per the settlement
arrived at between the Trade Union and the Management of the
Corporation under Section 18(1) of the Industrial Disputes Act,
1947 (for short 'the Act'), under which it was agreed to form a Co-
operative Society in the name of 'Thai Security Service
o Priyadarshini Indira Cooperative Society' (for short 'the Co-
operative Society') for the welfare of such erstwhile contract
workmen. The services were utilised by the Corporation through
the Co-operative Society to meet its requirements and for the time
period for which required, thus dispensing with intermediary
E contractors.
4. On 24.11.1982 subject to sanction by the Government
of India, the Corporation passed a resolution by its policy decision
to entrust security work to the Central Industrial Security Force
F (CISF) to protect their installations. The said resolution was
sanctioned by the President of India on 16.12.1985 for creation of
posts for security coverage of the Corporation.
5. This decision of the Corporation was challenged by the
G T.lmilnadu National Industrial and Commercial Employees Union
by filing W.P. No. 9688of1987 and W.P. No. 11964of1987 was
filed by the Petroleum Industrial Casual Contract Labour Union
before the High Court of Madras on the ground of breach of
settlement arrived at under Section 18(1) of the Act and prayed for
H a consequential direction to absorb the workmen as regular
O.N.GC. v. PETROLEUM COAL LABOUR UNION 485
[V. GOPALAGOWDA, J.]
employees. The workmen obtained an interim order dated A
6.10.1987 restraining the Corporation from dispensing with the
services of the workmen. The learned single Judge of the High
Court upheld the policy decision of the Corporation even in the
absence of the copy of the policy framed by the Central
Government and dismissed the aforesaid writ petitions vide order B
dated 5.1.1988 holding that the workers were not entitled for
regularisation and rejected the contentions of the workmen in these
writ petitions.
6. On 8.9.1987, the Corporation sent a letter to the Co- C
operative Society to withdraw the services of the security personnel
of the Co-operative Societyw.e.f. 19.10.1987 after handing over
charge of the Corporation Unit to CISF personnel. An order was
passed by the Director General, CISF, releasing 52 posts with D
immediate effect for induction of CISF personnel in the Corporation.
7. Thereafter, since the induction of the CISF personnel
into security posts of the Corporation was still awaiting sanction
from the Central Government, the Corporation issued
memorandum of appointment directly to each one of the concerned E
workmen appointing them in 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 the Oil and Natural Gas Commission' (for short 'the F
Certified Standing Orders') will not apply to them. The concerned
workmen were paid a monthly salary of approximately Rs.445/-
per month to security guards and Rs.675/- per month to security
supervisors. After completion of the above mentioned term, the
concerned workmen were continued by the Corporation in their G
respective posts as a stop gap measure without formal written
orders. As a result of which, the concerned workmen who were
engaged through contractors and those who were members of
the Co-operative Society became employees of the Corporation
on temporary basis. H
486 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 8. Thereafter, the concerned workmen raised an industrial
dispute claiming regularisation of their services in the Corporation
and on 10.10.1991, the Central Government in exercise of its power
under Section 10 of the Act, 1947 referred the same to the Industrial
Tribunal, Chennai, Tamil Nadu (for short 'the Tribunal') to adjudicate
B 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?
c
(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?"
D
9. The reference was taken on file by the Tribunal as l.D.
No.66of1991. On 28.04.1993, the Trade Union filed a memo stating
that question no.(ii) of the dispute had been settled out of Court
and no further adjudication was required in that regard by the
E Tribunal. The Tribunal, adjudicated the industrial dispute on question
no.(i) referred to it on the basis of facts, circumstances and
evidence on record and passed an award dated 26.05.1999,
directing the Corporation to regularise the services of the concerned
workmen by relying on the legal principles laid down by this Court
F in the case of Air India Statutory Corporation & Ors. v. United
Labour Union & Ors. 1 and further held that the concerned
workmen were entitled for regularisation of their services since
they had completed 480 days of work as required under Tamil
G Nadu Industrial Establishments (Conferment of Permanent Status
toWorkmen)Act, 1981.
10. Aggrieved by the award passed by the Tribunal, the
Corporation challenged the same by filing W.P. No.1846 of 2000
before the learned single Judge, inter alia, contending ttiat the
H
1 (1997) 9 sec 377
O.N.G.C. v. PETROLEUM COAL LABOUR UNION 487
[V. GOPALAGOWDA, J.]
Tribunal has erroneously exercised its jurisdiction and passed A
an award directing the Corporation to regularise the services of
the concerned workmen. It was further contended by the
Corporation that the concerned workmen were originally engaged
through contractors, without following any procedure of selection
and appointment, therefore, their services cannot be regularised. 8
In support of this contention, reliance was placed on the decision
of this Court in the case of Secretary, State of Karnataka & Ors.
v. Uma Devi (3) & Ors. 2
11. On behalf of the concerned workmen, it was contended C
before the single Judge of the High Court that the dispute falls
within the jurisdiction of the Tribunal under the provisions of the
Act and that the Tribunal had sufficient jurisdiction to adjudicate
the dispute referred to it. It was further contended on behalf of the
0
co1. ::erned workmen that they have been working on temporary
basis from th·e year 1988 and continuing their services on
temporary basis is an unfair labour practice on the part of the
Corporation. Therefore, it was contended that the Tribunal was
right in directing the concerned workmen to be regularized and E
that the law laid down in the case of Uma Devi (supra) had no
application to cases of industrial adjudication.
12. The learned single Judge on appreciation of the facts,
circumstances and the legal contentions urged on behalf of both F
the parties held that the dispute between the parties regarding
non-regularisation of the concerned workmen falls within the scope
of industrial dispute as defined under Section 2(k) of the Act. It is
further held that the concerned workmen are all victims of unfair
labour practice having been employed by the Corporation for G
several years on temporary basis and even though they were not
appointed by following the procedure laid down by the Corporation
for recruitment to such posts, they were entitled for regularisation
and that their appointment cannot be stated to be illegal. With the
H
2 (2006) 4 sec 1
488 SUPREME COURT REPORTS [2015] 5 S.C.R.
A above findings, the writ petition was dismissed on merits by the
learned single Judge of the High Court by its judgment and order
dated 04.01.2011.
13. The said judgment and order of the learned single Judge
B was challenged by the Corporation by filing Writ Appeal No. 1006
of 2011 before the Division Bench of the High Court raising certain
questions of law. After considering the facts, circumstances and
nature of the evidence on record which was placed before the
Tribunal the same was appreciated by the learned single Judge,
C the learned Division Bench of the High Court held that the
appointment of the concerned workmen by the Corporation cannot
bE~ termed as illegal appointment, but was only an irregular
appointment and therefore, they were entitled for regularisation in
D their services having been employed on temporary basis and having
completed more than 240 days in the calendar year subsequent
to 13.1.1988. Therefore, it was held by the learned Division Bench
of the High Court that no justifiable or reasonable grounds were
found for it to interfere with the judgment and order passed by the
E learned single Judge of the High Court, The writ appeal of the
Corporation was dismissed accordingly. Hence, the Corporation
filed this appeal by framing certain substantial questions of law for
consideration of this Court.
14. It has been contended by Mr. P.P. Rao, the learned senior
F
counsel for the Corporation that the concerned workmen have no
right to be regularised as they have been appointed on term basis
without following due procedure as per the Recruitment and
Promotion Regulations, 1980 of the Oil and Natural Gas
G Commission. The direction contained in the award of the Tribunal
to regularise the workmen w.e.f. 1.4.1990 is contrary to the law
declared by the Constitution Bench of this Court in Secretary,
State of Karnataka v. Uma Devi (supra) having regard to the
following aspects of the case on hand:
H
O.N.G.C. v. PETROLEUM COAL LABOUR UNION 489
[V. GOPALAGOWDA, J.]
a) The appointments of workmen were illegal not irregular, A
as they were made without proper competition among
qualified persons
b} The concerned workmen do not possess tile
qualifications and training required for discharging B
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
c
deployment of members of the CISF.
e) The concerned workmen were, as a stop gap
arrangement, though not qualified but found physically
D
fit, were employed for a short period anticipating the
posting of CISF personnel.
t) 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 E
could not be discharged and had to be allowed to
continue only on account of legal compulsion, i.e. 33(1)
of the LO.Act 1947 and the interim orders of the learned
single Judge and the Division Bench. F
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
G
organised armed force could competently discharge.
15. Further, it has been contended by Mr. Rao that in any event,
since the workmen themselves having sought regularisation only
from 1.4.1991, the Tribunal was not at all justified in directing
H
regularisation with effect from 1.4.1990 and the High Court also
490 SUPREME COURT REPORTS [2015] 5 S.C.R.
A erred in directing regularisation of workmen with retrospective effect
from 1.4.1990.
16. It is further contended by him that the award of the
Tribunal is unsustainable in law by placing reliance on Air India
B Statutory Corporation (supra) which has been subsequently
overruled by the Constitution Bench in Steel Authority of India
Ltd. & Ors. v. National Union Waterfront Workers & Ors. 3 . In
fact, the concerned workmen were not contract labourers when
the industrial dispute was referred to the Tribunal for its adjudication.
c
17. It has been further contended by him that the courts
below have erred in holding that though the procedure
contemplated in the Certified Standing Orders of the Corporation
was not followed when the workmen were appointed on temporary
D basis they are still entitled for regularisation in their services by
the Corporation. It is further contended by the learned senior
counsel that the very appointment itself having been illegal, no
order of regularisation of the services of the concerned workmen
could be passed by the Tribunal. The Corporation would term the
E appointment of the concerned workmen as illegal appointment as
they were appointed in the said post either through a contractor or
through the Co-operative Society, without following the procedure
contemplated for selection as per the Recruitment Rules and
F appointments were given to the concerned workmen as per the
Certified Standing Orders of the Corporation. In support of the said
contention reliance was placed on the decision of this Court in the
case of Uma Devi (supra). Further, it has been contended by him
that the law declared in the case of Maharashtra State Road
G Transport Corporation & Anr. v. Casteribe Rajya Parivahan
Karamchari Sanghatana4 was per incuriam as the same is
inconsistent with the earlier coordinate Bench decision in U.P.
3 (2001) 7 sec 1
H 4 (2009) a sec 556
O.N.G.C. v. PETROLEUM COAL LABOUR UNION 491
[V. GOPALAGOWDA, J.]
Power Corporation Ltd. &Am: v. Bijli Mazdoor Sangh &Ors. 5 A
wherein it was declared that the Tribunal cannot give relief to the
workmen which is violative of Article 14 of the Constitution of India
and the concept of regularisation explained in Uma Devi's case
(supra).
B
18. Further, it has been contended that the Certified Standing
Orders cannot prevail over Uma Devi's case or Article 14 of the
Constitution of India; therefore, the concerned workmen cannot
rely upon such orders to seek regularisation. In any case, the
Certified Standing Orders only confer the right of consideration C
and therefore, it is not a vested right for the concerned workmen
for regularisation in their services. The reliance placed on the
Certified Standing Orders by them is misconceived, hence the
award and judgments are vitiated in law and liable to be set aside
0
by allowing this appeal.
19. On the other hand, Mr. C. U. Singh, the learned senior
counsel on behalf of the concerned workmen has strongly rebutted
each one of the above contentions put forth by Mr. Rao the learned E
senior counsel on behalf of Corporation, by erroneously placing
reliance on the right of the Corporation to implement the alleged
"policy decision" to induct the CISF personnel in the posts of the
Corporation inter a/ia contending that it is an admitted position
that this opening ground taken by the Corporation was neither F
canvassed before the learned single Judge nor the Division Bench
of the High Court. Nonetheless, it is to be noted that while raising
this ground, the Corporation has not placed on record any
document evidencing the so-called "policy decision" of the Central
Government to induct the CISF personnel in the posts of the G
Corporation.
20. Mr. Santosh Krishnan, the learned counsel also
appearing for the concerned workmen has contended that a "policy
s (2001) s sec 755 H
492 SUPREME COURT REPORTS [2015] 5 S.C.R.
A decision" cannot alter the Certified Standing Orders of the
Corporation except in terms of Section 10 of the Standing Orders
Act, 1946. Further, it is urged by him that the only relevant document
on record is the letter dated 8.9.1987, which states that the "policy
decision" is of the Central Government and not of the Corporation.
B However, the Corporation did not even amend its Recruitment
Rules or Certified Standing Orders to implement this "policy
decision" only to.recruit the CISF personnel for Watch and Ward
SeNices posts of the Corporation. This has been further affirmed
C by the Tribunal in its findings of fact that the said defence of the
Corporation is only a ruse. The Tribunal has held while answering
the question referred to it in the order of reference that the "policy
decision" taken by the Corporation is a misnomer as the
Corporation may be controlled by the Central Government,
o however, by no means does it enjoy the power or the privilege to
make any policy decisions as understood by the courts below.
Merely by characterising an act or omission as a "policy decision"
does not absolve the Corporation from acting in accordance with
law and regularise the services of the concerned workmen as
E regular workmen as per Clause 2(ii) of the Certified Standing
, Orders of the Corporation.
21. Further, on the contention of the Corporation that the
Judgment and order dated 5.1.1988 in W.P. Nos. 9688 of 1987
F and 11964 of 1987 forecloses the rights of the concerned
workmen, it is rebutted by the learned senior counsel on behalf of
the concerned workmen that the said ground was not canvassed
either before the learned single Judge or the Division Bench of the
High Court. A perusal of judgment and order would reveal that
G none of the concerned workmen, specifically the answering
respondents were party to the aforesaid proceedings and the
Corporation itself claimed that only "some of the respondent
workmen had filed WP No. 9688of1987 for absorption". Further,
H it is urged by him that assuming without conceding that judgment
O.N.G.C. v. PETROLEUM COAL LABOUR UNION 493
[V. GOPALA GOWDA, J.]
and order dated 5.1.1988 in W.P. Nos. 9688of1987 and 11964 of A
1987 related to regularisation of the concerned workmen, a crucial
fact separates those proceedings from the present proceedings
as the Corporation on 13.1.1988 admittedly ordered in favour of
the workmen by appointing them on "term basis". As a result of
such appointment orders issued in favour of each one of the B
concerned workmen, they became employees of the Corporation
albeit on "term basis", therefore, the industrial dispute raised by
the concerned workmen acquired different rights than the challenge
in W.P. 9688 and 11964of1987. It is further urged thatthe above C
submission can also be seen in the light of the Certified Standing
Orders of the Corporation, wherein the employees such as the
concerned workmen can claim regularisation once they fulfil 240
days of continuous service in twelve calendar months and possess
minimum qualification. The concerned workmen were found to o
have completed 240 days of work in a calendar year subsequent
to 13.1.1988, therefore, the judgment and order dated 5.1.1988 in
W.P. Nos. 9688 of 1987 and 11964 of 1987 do not bear any
relevance to this litigation as the legal status of the parties stood
modified subsequent to the said judgment. Further, the judgment E
rendered by the High Court in W. P. Nos. 9688of1987 and 11964
of 1987 without the policy decisions of the Central Government
being produced and examined in those proceedings, any
observation made in that regard is wholly untenable in law.
F
22. Further, it is contended by the learned counsel for the
concerned workmen that the Corporation cannot disclaim the
legality of its own Certified Standing Orders by stating that it cannot
prevail over Uma Devi's case (supra) or Article 14 of the
Constitution and that the Standing Orders only confer the right of G
consideration and not a vested right for regularisation. It is
contended by him that for the last 24 years, the Corporation has
not considered and in any case will not consider the concerned
workmen for regularisation to the post of the Corporation if the H
494 SUPREME COURT REPORTS [2015] 5 S.C.R.
A same is left to their own discretion. Further, it is urged by him that
failure to honour the Standing Orders for so many years is what
constitutes "unfair trade practice" on the part of the Corporation in
the present case.
B 23. Rebutting the contention urged on behalf of the
Corporation that the concerned workmen are not qualified to be
regularized, it has been contended by the learned senior counsel
for the concerned workmen that the Tribunal has noted that the
concerned workmen are far more qualified than the existing
C security personnel of the Corporation and that they are qualified to
be appointed as security guards and supervisors, except one of
them. The learned counsel on behalf of the concerned workmen
contended that the Recruitment Rules are not amended
prescribing that only the CISF personnel are qualified for guard
0
work.
24. It is further contended by him that in the case of Uma
Devi (supra), this Court had the occasion to deal with the issue of
"litigious employment". Admittedly, the concerned workmen were
E voluntarily appointed by the Corporation initially on term basis. It is
by virtue of Section 33 of the Industrial Disputes Act that the
Corporation is prevented from terminating the employment of the
concerned workmen during the pendency of the industrial dispute.
F The decision of the Tribunal was rendered on 26.05.1999 and
during the period 1990-1999, the concerned workmen did not enjoy
any litigious employment but were beneficiaries of a statutorily
mandated protection and the Corporation has the right under
Section 33(i)(a) of the Act to seek permission from the conciliation
G officer/Tribunal to remove them from their services but that has
not been done by it. Therefore, it would be an improper and
misleading contention of the Corporation to describe this scenario
as litigious employment, which contention of it does not stand for
judicial scrutiny of this Court.
H
O.N.G.C. v. PETROLEUM COAL LABOUR UNION 495
[V. GOPALAGOWDA, J.]
25. We have heard the factual and rival legal contentions A
urged by the learned senior counsel on behalf of both the parties
and answer the same as discussed below.
26. Whether jurisdiction of the Tribunal to direct the
Corporation to regularise the services of the concerned workmen B
in the posts is valid and legal?
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 c
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 D
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 we consider the same, the said contention E
is contrary to the legal principles laid down by this Court in the
case of Hari Nandan Prasad & Anr. v. Employer llR To
Management of Food Corporation of India & Anr. 6, wherein
the decisions in U.P. Power Corporation v. Bijli Mazdoor Sangh F
& Ors. 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:
"25. While accepting the submission of the appellant therein G
viz. U.P. Power Corpn., the Court gave the following reasons:
(UP PowerCorpn. Case, SCC pp. 758-59, paras 6-8)
"6. It is true as contended by the learned counsel for the
H
6 c2014) 7 sec 1so
496 SUPREME COURT REPORTS [2015] 5 S.C.R.
A respondent that the question as regards the effect of the
industrial adjudicators' powers was not directly in issue
in Umadevi case. But the foundational logic in Umadevi
case is based on Article 14 of the Constitution of India.
Though the industrial adjudicator can vary the terms of
8 the contract of the employment, it cannot do something
which is violative of Article 14. If the case is one which is
covered by the concept of regularisation, the same cannot
be viewed differently.
c 7. The plea of the learned counsel for the respondent
that at the time the High Court decided the matter, decision
in Umadevi case was not rendered is really of no
consequence. There cannot be a case of .regularisation
without there being employee-employer relationship. As
D noted above the concept of regularisation is clearly linked
with Article 14 of the Constitution. However, if in a case
the fact situation is covered by what is stated in para 45
of Umadevi case the industrial adjudicator can modify
the relief, but that does not dilute the observations made
E
by this Court in Umadevi case about the regularisation.
8. On facts it is submitted by the learned counsel for the
appellants that Respondent 2 himself admitted that he
never worked as a pump operator, but was engaged as
F daily labourer on daily-wage basis. He also did not
possess the requisite qualification. Looked at from any
angle, the direction for regularisation, as given, could not
have been given in view of what has been stated in
G Umadevi case."
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 proper selection procedure,
H
O.N.G.C. v. PETROLEUM COAL LABOUR UNION 497
[V. GOPALAGOWDA, J.]
etc. is impermissible as it was violative of Article 14 of the A
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 B
Industrial Court would not issue a direction for 23regularising
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 tha!.J1
c
would not deter the Industrial Tribunals/Labour Courts from
issuing such direction. which the industrial adjudicators
otherwise possess. having regard to the provisions of the
Industrial Disputes Act specifically conferring suc1:ill9wers.
This is 24recognized by the Court even in the aforesaid o
judgment.
xxx xxx xxx
30. Detailed reasons are given in support of the conclusion
stating that the MRTU and PULP Act provides for and E
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
F
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-a-vis
the ratio of Umadevi are explained by the Court in the following
terms: (Maharashtra SRTC case, SCC pp. 573-74, paras G
32-33 &36)
"32. 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.
H
498 SUPREME COURT REPORTS (2015] 5 S.C.R.
A Employing bad Iis, 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
B 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 erring
employer.
c 33. The provisions of the MRTU and PULP Act and the
powers of the Industrial and Labour Courts provided
therein were not at all under consideration in Umadevi.
As a matter of fact, the issue like the present one
pertaining to unfair labour practice was not at all referred
D
to, considered or decided in Umadevi. 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
E depriving them of the status and privileges of permanent
employees as provided in Item 6 of Schedule IV and the
power of the Industrial and Labour Courts under Section
30 of the Act did not fall for adjudication or consideration
before the Constitution Bench.
F
xxx xxx xxx
36. Umadevi 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
G
of the wor1<ers who have 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.
Umadevi cannot be held to have overridden the powers of
H the Industrial and Labour Courts in passing appropriate order
O.N.GC. v. PETROLEUM COAL LABOUR UNION 499
[V. GOPALAGOWDA, J.]
under Section 30 of the MRTU and the PULP Act, once unfair A
labour practice on the part of the employer under Item 6 of
Schedule IV is established."
xxx xxx xxx
B
33. In this backdrop, the Court in Maharashtra SRTC case
was of the opinion that the direction of the Industrial Court to
accord permanency to these employees against the posts
which were available, was clearly permissible and within
the powers, statutorily conferred upon the Industrial/Labour c
Courts under Section 30(1)(b) of the MRTU and PULP Act,
1971 which enables the industrial adjudicator to take
affirmative action against the erring employer and as those
powers are of wide amplitude abrogating (sic including) within
their fold a direction to accord permanency." D
(emphasis laid by this Court)
27. Further, it is very clear from the facts that all the
concerned workmen have got the qualifications required for their E
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 F
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 G
Employees of the Bharat Bank Ltd., Delhi & the Bharat
Bank Employee's Union, De/hf, the relevant paragraph of the
said case is extracted hereunder:
7 AIR 1950 SC 188
H
500 SUPREME COURT REPORTS [2015] 5 S.C.R.
A "61.We would not examine the process by which an Industrial
Tribunal comes to its decisions and I have no hesitation in
holding that the process employed is not judicial process at
all. In settling the disputes between the employers and the
workmen, the function of the Tribunal is not confined to
B 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
c parties. It can create new rights and obligations between
them which it considers essential for keeping industrial
p13ace. An industrial dispute as has been said on many
occasions is nothing but a trial of strength between the
D employers on the one hand and the workmen's organization
on the other and the Industrial Tribunal has got to arrive at
some equitable arrangement for averting strikes and lock-
outs which impede production of goods and the industrial
development of the country. The Tribunal is not bound by
E the rigid rules of law. The process it employees is rather an
extended form of the process of collective bargaining and is
more akin to administrative than to judicial function. In
describing the true position of an Industrial Tribunal in dealing
with labour disputes, this Court in Western India Automobile
F Association v. Industrial Tribunal, Bombay, and others[1949]
F.C.R. 321 quoted with approval a passage from Ludwig
Teller's well known work on the subject, where the learned
author observes that
G "industrial arbitration may involve the extension of an
existing agreement or the making of a new one or in
general the creation of new obligations or modification of
old ones, while commercial arbitration generally concerns
H
O.N.G.C. v. PETROLEUM COAL LABOUR UNION 501
[V. GOPALAGOWDA, J.]
itself with interpretation of existing obligations and disputes A
relating to existing agreements."
The views expressed in these observations were adopted
in its entirety by this Court. Our conclusion, therefore, is that
an Industrial Tribunal formed under the Industrial Disputes 8
Act is not a judicial tribunal and its determination is not a
judicial determination in the proper sense of these
expressions."
It has been further held by this Court in the case of Life c
Insurance Corporation Of India v. D. J. Bahadur & Ors. 8 , as
follows:
"22. The Industrial Disputes Act is a benign measure, which
seeks to pre-empt industrial tensions, provide the mechanics o
of dispute resolutions and set up the necessary
infrastructure, so that the energies of the partners in
production may not be dissipated in counter-productive
battles and the assurance of industrial justice may create a
climate of goodwill .... " E
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 F
referred to supra. Therefore, the Tribunal has rightly passed an
award directing the Corporation to regularise the services of the
concerned workmen.
28. Whether the appointment of the concerned workmen in G
the services of the Corporation is irregular or illegal?
In the case on hand, the concerned workmen were employed
by the Corporation initially through contractors. Thereafter, on
H
s (1981) 1 sec 315
502 SUPREME COURT REPORTS [2015] 5 S.C.R.
A issuance of notification dated 08.12.1976 by the Central
Government abolishing contract labour for the posts of Watch and
Ward, dusting and cleaning jobs in the Corporation under Section
10(1) of the Contract Labour (Abolition and Regulation) Act, 1970,
the Corporation and the concerned workmen arrived at a settlement
B under Section 18(1) of the Act, wherein a Co-operative Society
was formed in the name of 'Thai Security Service Priyadarshini
Indira Cooperative Society' for their welfare, thus dispensing with
intem1ediary contractors. During the pendency of the sanction from
C the Central Government of the alleged "Policy decision", the
concerned workmen were appointed directly from 13.1.1988 to
29.2.1988 and thereafter, they were employed continuously without
written orders by the Corporation. It is the contention of the learned
senior counsel on behalf of the Corporation that the services of
o the concerned workmen cannot be regularised as their appointment
was originally and initially through contractors and thereafter, without
following any procedure of selection and appointment as per the
Recruitment Rules and therefore, the same is illegal by placing
reliance on the decision of this Court in para 43 of Uma Devi
E case (supra). Further, this Court in the case of Ajaypa/ Singh
v. Hatyana Warehousing Corporation 9 opined that when a
workman is initially appointed in violation of Articles 14 and 16 of
the Constitution of India, then the employer at the time of re-
employment of the retrenched workman cannot take the plea that
F the initial appointment was in violation of the abovementioned
provisions. The relevant paragraph of the Ajaypal Singh
case( supra) is extracted hereunder:
"19. The provisions of Industrial Disputes Act and the powers
G of the Industrial and Labour Courts provided therein were
not at all under consideration in Umadevi's case. The issue
pertaining to unfair labour practice was neither the subject
matter for decision nor was it decided in Umadevi's case."
H 9 2014(13)SCALE636
O.N.G.C. v. PETROLEUM COAL LABOUR UNION 503
[V. GOPALAGOWDA, J.]
The plea of the Corporation that the reason for not A
regularising the concerned workmen under the Certified Standing
Orders of the Corporation is allegedly due to the fact that the
appointment of the concerned workmen was made without
following due procedure under the Recruitment Rules and that
their appointments were illegal. This plea cannot be accepted by 8
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 14and16 of the Constitution. C
29. 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
0
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 learned senior counsel for the Corporation cannot be E
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 F
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. G
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:
H
504 SUPREME COURT REPORTS [2015) 5 S.C.R.
A "2. (i) Classification of workmen.
The contingent employees of the Commission shall hereafter
be classified as :-
8 a) Temporary, and
b) Casual
(ii) A workman who has been on the rolls of the
c 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
~riod of 12 consecutive months and who possesses the
D minimum qualifications prescribed by Commission may be
considered for conversion as regular employee.
(iii) A workman who is neither temporary nor regular
shall be considered as casual workman."
E
30. 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
F 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, ifthe workman, during a period
of twelve calend.ar months preceding the date with reference to
which calculation is to be made, has actually worked under the
G 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
H 240 days of services subsequent to the memorandum of
O.N.GC. v. PETROLEUM COAL LABOUR UNION 505
[V. GOPALAGOWDA, J.]
appointment issued by the Corporation in the year 1988 in a period A
of twelve calendar months, therefore, they are entitled for
regularisation of their services into permanent posts of the
Corporation as pertheActas well as the Certified Standing Orders
of the Corporation. B
31. It is the contention of the learned senior counsel on
behalf of the Corporation that the policy decision to induct the CISF
for the purpose of providing security to its projects passed by the
Corporation is an act by the Central Government under Section c
30A of the Oil and Natural Gas Commission Act, 1959 (for short
'the ONGC Act'), which the Parliament by way of enactment No.23
of 1977 inserted after Section 30 of the principle Act. The said
provision states that the Corporation shall be bound by such
directions, including directions regarding reservation of posts for D
Scheduled Castes and the Scheduled Tribes, as the Central
Government may from time to time, for reasons to be recorded in
writing, give to the Corporation in respect of its affairs.
32. For the Corporation to implement such a provision which E
affects the service conditions of its employees, it is necessary for
the Corporation to first 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 under the F
ONGCAct and Recruitment Rules. The Corporation undisputedly
has not made any such modification to its Certified Standing
Orders by following the procedure for modification of conditions
of service as per Section 10 of the Industrial Employment (Standing G
Orders) Act, 1946. The scope of the said act has been succinctly
laid down by this Court in the case of The U.P. State Electricity
Board & Anr. v. Hari Shankar Jain & Ors. 10, upon which decision
the learned senior counsel Mr. C.U. Singh has rightly placed
10 (1978)4 sec 16
H
506 SUPREME COURT REPORTS [2015) 5 S.C.R.
A reliance, the relevant paragraphs of the said case are extracted
hereunder:
6. Let us now examine the various statutory provisions in
their proper context with a view to resolve the problem before
B us. First, the Industrial Employment (Standing Orders) Act,
1946. Before the passing of the Act, conditions of service
of industrial employees were invariably ill-defined and
were hardly ever known with even a slight degree of
precision to the employees. There was no uniformity of
c conditions of service for employees discharging identical
duties in the same establishment. Conditions of service
were generally ad-hoc and the result of oral arrangements
which left the employees at the mercy of the employer.
With the growth of the trade union movement and the
D
right of collective bargaining, employees started putting
forth their demands to end this sad and confusing state
of affairs. Recognising the rough deal that was being
given to workers by employers who would not define their
E conditions of service and the inevitability of industrial strife
in such a situation, the legislature intervened and enacted
the Industrial Employment (Standing Orders) Act. It was
stated in the statement of objects and reasons:
"Experience has shown that 'Standing Orders',
F
defining the conditions of recruitment, discharge,
disciplinary action, holidays, leave etc., go a long way
towards minimising friction between the management
and workers in industrial undertakings. Discussion on
G the subject at the tripartite Indian Labour Conferences
revealed a consensus of opinion in favour of
legislation. The Bill accordingly seeks to provide for
the framing of 'Standing Orders' in all industrial
establishments employing one hundred and more
H workers."
0.N.GC. v. PETROLEUM COAL LABOUR UNION 507
[V. GOPALAGOWDA, J.]
It was, therefore, considered, as stated in the preamble A
"expedient to require employers in industrial
establishments to define with sufficient precision the
conditions of employment under them and to make the
said conditions known to workmen employed by them".
The scheme of the Act, as amended in 1956 and as it B
now stands, requires every employer of an industrial
establishment as defined in the Act to submit to the
Certifying Officer draft Standing Orders, that is, "Rules
relating to matters set out in the Schedule", proposed by
him for adoption in his industrial establishment. This is
c
mandatory. It has to be done within six months after the
commencement of the Act. Failure to do so is punishable
and is further made a continuing offence. The draft
Standing Orders are required to cover every matter set D
out in the schedule. The Schedule enumerates the matters
to be provided in the Standing Orders and they include
classification of workmen, shift working, attendance and
late coming, leave and holidays, termination of
employment, suspension or dismissal for misconduct, E
means of redress for wronged workmen etc. Item 11 of
the Schedule is "Any other matter which may be
prescribed". By a notification dated November 17, 1959
the Government of Uttar Pradesh has prescribed "Age
of superannuation or retirement, rate of pension or any F
other facility which the employer may like to extend or
may be agreed upon between the parties" as a matter
requiring to be provided in the Standing Orders. On
receipt of the draft Standing Orders from the employee,
G
the Certifying Officer is required to forward a copy of the
same to the trade union concerned or the workmen
inviting them to prefer objections, if any. Thereafter the
Certifying Officer is required to give a hearing to the
employer and the trade union or workmen as the case H
508 SUPREME COURT REPORTS [2015) 5 S.C.R.
A may be and to decide "whether or not any modification
of or addition to the draft submitted by the employer is
necessary to render the draft Standing Orders certifiable
under the Act". Standing Orders are certifiable under the
Act only if provision is made therein for every matter set
B out in the schedule, if they are in conformity with the
provisions of the Act and if the Certifying Officer
adjudicates them as fair and reasonable. The Certifying
Officer is invested with the powers of a civil court 'for the
purposes of receiving evidence, administering oaths,
c enforcing the attendance of witnesses etc. etc. The order of
the Certifying Officer is subject to an appeal to the prescribed
Appellate Authority. The $t?.nding Orders as finally certified
are required to be entered in a register maintained by the
D Certifying Officer. The employer is required to prominently
post the Certified Standing Orders on special boards
maintained for that purpose. This is the broad scheme of
the Act. The Act also provides for exemptions. About that,
later. The Act, as originally enacted, precluded the Certifying
E Officer from adjudicating upon the fairness or
reasonableness of the Draft Standing Orders submitted by
the employer but an amendment introduced in 1956 now
casts a duty upon the Certifying Officer to adjudicate upon
the fairness or reasonableness of the draft Standing Orders.
F The scheme of the Act has been sufficiently explained by
this Court in Associated Cement Co. Ltd. v.P.D. Vyas~.
Rohtak Hissar District Electricity Supply Co. Ltd. v. State of
U.P., and Western India Match Co. Ltd. v. Workmen. The
Industrial Employment (Standing Orders) Act is thus seen
G
to be an Act specially designed to define the terms of
employment of workmen in industrial establishments, to give
the workmen a collective voice in defining the terms of
employment and to subject the terms of employment to the
H scrutiny of quasi-judicial authorities by the application of the
O.N.G.C. v. PETROLEUM COAL LABOUR UNION 509
[V. GOPALAGOWDA, J.]
test of fairness and reasonableness. It is an Act giving A
recognition and form to hard-won and precious rights of
workmen. We have no hesitation in saying that it is a special
Act expressly and exclusively dealing with the schedule-
enumerated conditions of service of workmen in industrial
establishments. B
xxx xxx xxx
10. We have already shown that the Industrial Employment
(Standing Orders) Act is a special Act dealing with a c
specific subject, namely the conditions of service,
enumerated in the schedule, of workmen in industrial
establishments. It is impossible to conceive that
Parliament sought to abrogate the provisions of the
Industrial Employment (Standing Orders) Act embodying D
as they do hard-won and precious rights of workmen and
prescribing as they do an elaborate procedure, including
a quasi-judicial determination, by a general, incidental
provision like Section 79(c) of the Electricity (Supply) Act.
It is obvious that Parliament did not have before it the E
Standing Orders Act when it passed the Electricity Supply
Act and Parliament never meant that the Standing Orders
Act should stand pro tanto repealed by Section 79(c) of
the Electricity Supply Act. We are clearly of the view that F
the provisions of the Standing Orders Act must prevail
over Section 79(c) of the Electricity Supply Act. in regard
to matters to which the Standing Orders Act applies.
xxx xxx xxx G
13. Next. we turn to the submission based on the
notification made under Section 13-B of the Standing
Orders Act. Section 13-B reads as follows:
H
510 SUPREME COURT REPORTS [2015] 5 S.C.R.
A "13-B. Nothing m this Act shall apply to an industrial
establishment in so far as the workmen employed therein
are persons to whom the Fundamental and
Supplementary Rules. Civil Services (Classification.
Control and Appeal) Rules. Civil Services (Temporary
B Service) Rules. Revised Leave Rules. Civil Service
Regulations. Civilians in Defence Service (Classification.
Control and Appeal) Rules or the Indian Railway
Establishment Code or any other rules or regulations that
may be notified in this behalf by the appropriate
c Government in the Official Gazette. apply."
(emphasis laid by this Court)
33. In view of the legal principles laid down by this Court in
D the above said case, the alleged policy decision taken under
Section 30A of the ONGC Act does not prevail over the Standing
Orders Act framed under the Industrial Employment (Standing
Orders) Act, 1946, which is the Special Enactment. Therefore,
the alleged "policy decision" taken by the Corporation is neither
E valid in law nor applicable in the case on hand. The legal principle
la~d down in the case of The U.P. State Electricity Board &Anr.
v. Hari Shankar Jain were reiterated by this Court in the case of
Sudhir Chandra Sarkarv. Tata Iron and Steel Co. Ltd. & Ors. 11,
F wherein it was held thus:
"The Parliament enacted the Industrial Employment
(Standing Orders) Act, 1946 ('1946 Act' for short). The long
title of the Act provides that it was an act to require employers
in industrial establishments formdy to define conditions of
G
employment under them. The preamble of the Act provides
that it is expedient to require employers in industrial
establishments to define with sufficient precision the
conditions of employment under them and to make the said
H 11 (1984) 3 sec 369
O.N.G.C. v. PETROLEUM COAL LABOUR UNION 511
[V. GOPALAGOWDA, J.]
conditions known to workmen employed by them. By A
Section ~. a duty was cast on the employer governed by the
Act to submit to the Certifying Officer draft standing orders
proposed by him for adoption in his industrial establishment.
After going through the procedure prescribed in the Act, the
Certifying Officer has to certify the draft standing orders. B
Section § requires the Certifying Officer to keep a copy of
standing orders as finally certified under the Act in a register
to be maintained for the purpose. Sub-section 2 of
Section 13 imposes a penalty on employer who does any
act in contravention of the standing orders finally certified
c
under the Act. The act was a legislative response to the
laissez fairs rule of hire and fire at sweet will. It was an attempt
at imposing a statutory contract of service between two
parties unequal to negotiate, on the footing of equality. This D
was vividly noticed by this Court in Western India Match
Company Ltd. v. Workmen as under:
In the sunny days of the market economy theory people
sincerely believed that the economic law of.demand and E
supply in the labour market would settle a mutually
beneficial bargain between the employer and the
workmen. Such a bargain they took it for granted, would,
secure fair terms and conditions of employment to the
workman. This law they venerated as natural law. They F
had an abiding faith in the verity of this law. But the
experience of the working of this law over a long period
has belied their faith.
The intendment-underlying the Act and the provisions of the G
Act enacted to give effect to the intendment and the scheme
of the Act leave no room for doubt that the Standing Orders
certified under the 1946 Act become part of the statutory
terms and conditions of service between the employer and
H
512 SUPREME COURT REPORTS [2015] 5 S.C.R.
A his employee and they govern the relationship between the
parties. Workmen of Messrs Firestone Tyre & Rubber Co.
of India (P) Ltd. v. Management and Ors. Workmen in
Buckinghan and Carnatic Mills Madras v. Buckingham and
Carnatic Mills and Mis. Glaxo Laboratories (I) Ltd. v. The
B Presiding Officer. Labour Court. Meerut and Ors."
(emphasis laid by this Court)
34. Further, on the direction of this Court after concluding
c the submissions made in this appeal, the learned counsel on behalf
of the Corporation was directed to submit a copy of the Policy of
the Government of India for the year 1982 along with the affidavit
of the responsible officer of the Corporation. The learned counsel
has according!Y produced the 'Government Policies and Guidelines
D for Public Sector Enterprises and Perceptions on Public Sector
of PSE Chiefs & the Scope (Vol. I) compiled by Dr. Raj Nigam'
containing a gist of BPE O.M. No. 2(97)/72-BPE(GM-I) dated
5th December, 1972 and BPE O.M. No. 2(38)/75-BPE(GM-I)
dated 17th May 1975 in Guideline Nos. 421 and 422
E respectively, as per the direction of this Court vide order dated
25.03.2015. In this regard, to examine the tenability of the
submission of the learned senior counsel on behalf of the
Corporation the relevant portion of the above mentioned
F document is extracted hereunder to consider the contention
urged in this regard:
"421. Security Arrangements in Public Enterprises:
Ministries etc. are aware that a force called the Central
G/ Industrial Security Force has been constituted under the
Ministry of Home Affairs for the security of industrial
undertakings of the Central Government.
The question of evolving a uniform procedure in regard
H to the deployment of the Force and in providing security
O.N.GC. v. PETROLEUM COAL LABOUR UNION 513
[V. GOPALAGOWDA, J.]
arrangements in the various undertakings has been A
under consideration of the Government particularly with
a view to ensuring better coordination between the
l.G.C.l.S.F. and the administrative Ministries/Public
Enterprises. It has been decided that the following steps
should be taken in this regard: B
(i) There should be close Association between CISF
and a Public Enterprise, right from its inception. In other
words as soon as a new Enterprise is sanctioned,
information about such sanction should be sent c
automatically to the l.G.,C.l.S.F. so that he can start
liaison from the very outset, with the concerned officials
in the Ministry concerned and the Chief Executive of
the project as soon as he is appointed.
D
(ii) No new Enterprise should appoint its own Watch
and Ward Security staff, even during construction
stage unless a clearance has been obtained from the
l.G.,C.l.S.F. that he is not in a position to take over the
E
security functions of the Enterprise from the very
beginning.
(iii) Whenever an investment decision is cleared at
the level of the Public Investment Board an intimation
that such a project has been cleared, should be sent F
to l.G.,C.l.S.F.
Ministries etc. are to take necessary action accordingly.
422. Security Arrangements in Public Enterprises: G
The DIG CISF in a recent communmation to the Bureau
of Public Enterprises has pointed out ~t a number of
undertaking have been employing their oWl\ Watch and
H
514 SUPREME COURT REPORTS [2015] 5 S.C.R.
A Ward personnel without obtaining clearance from CISF
Hqrs., in contravention of the Guidelines issued vide BPE
O.M. No.2(97)/72-BPE(GM-I) dated 5th December, 1972.
B It is once again reiterated that it is the statutory duty not
only of the CISF but also of the Public Sector
Undertakings to induct CISF for better protection and
security of the industrial undertakings.
The administrative Ministries may impress upon the
c public units under their administrative control not covered
in the enclosed list (not given here), the need for the early
induction of the CISF force in the units provide better
security arrangements. The units may be advised to
D contact IG, CISF, 183 Jor Bagh, New Delhi without any
further delay for finalising the arrangements"
35. Further, the learned counsel on record for the
Corporation has also submitted the Sanction letter for creation
E of temporary posts for the security coverage of ONGC
installation by Central Government, the relevant portion of which
is extracted hereunder:
"To
F The Director General,
Central Industrial Security Force,
13-CGO's Complex,
Lodhi Road,
New Delhi-110003.
G
Subject-Creation of temporary posts for the security
coverage ·of ONGC installations at Madras,
Visakhapatnam and Nursapur & Razole Area.
With reference to your U.O. No. 29013/6/85-lnd-I
H
dated31.10.1985.lamdirected to convey the sanction
O.N.G.C. v. PETROLEUM COAL LABOUR UNION 515
[V. GOPALAGOWDA, J.]
of the President to the creation of the following temporary A
posts for the security coverage of ONGC Installations at
Madras, Vishakapatnam and Nursapur & Razole Area
in the existing pay scales with usual allowances from the
date(s) and the post(s) are filled in till the 28 1h
February, ........ . B
This issue with the concurrence of Integrated Finance
Division vide their Dy. No.3057/85-Fin. Ill (D-1) dated c
12.12.1985.
Yours faithfully,
(N.B.Kumar)
Under Secretary to the Government of India"
D
36. We have perused the above two documents. The
above mentioned sanction letter by the Central Government
is for the creation of temporary posts for the security coverage
of ONGC installation and not to depute CISF specifically into
security posts in the Corporation, therefore, the reliance placed E
on .the same in support of the contention urged by the learned
senior counsel on behalf of the Corporation is misplaced as
the same is wholly untenable in law as the same is not reflected
in the sanction letter referred to supra. Further, the above
mentioned guidelines cannot be considered to be the policy F
of the Central Government as it is not framed in accordance
with the relevant 'Business Transaction Rules' of the Central
Government. Therefore, we are of the considered view that
even if for the sake of argument, the decision to employ the G
CISF personnel into security posts of the Corporation is
considered as the policy decision of the Corporation, the
provision under Clause 2(ii) of Certified Standing Orders surely
overrides the policy decision, as the said clause is not
amended by following the provisions of the Act of 1946 and H
• 516 SUPREME COURT REPORTS [2015] 5 S.C.R.
A therefore, the said argument does not hold water as the
Certified Standing Orders of the Corporation as per the
Judgments of this Court referred to supra and the principle of
law laid down in those cases are aptly applicable to the fact
situation of the concerned workmen for their regularisation in
B the security posts of the Corporation.
37. As we have already stated that the alleged policy
documents produced by the Corporation as per the direction
of this Court is traceable to Section 30A of the ONGC Act
C enacted by the Parliament as per the contention urged on
behalf of the Corporation. Therefore, the contention that the
said Policy is binding upon the Corporation and the concerned
workmen is wholly untenable in law for more than one reason
which we have stated above. The said document cannot be
0
said to be the Policy framed by the Central Government
represented by the Ministry of Petroleum and Natural Gas,
which is an independent ministry having the power to formulate
and administer various Central laws rel8ting to Petroleum and
E Natural Gas, however, the same must be executed in the name
of the President of India and shall be authenticated in such a
manner as specified in the relevant 'Business Transaction
Rules'. In the instant case, the alleged Policy formulated by
the Central Government has not been issued by following the
F due procedure as provided under the 'Business Transaction
Rules'. For this reason also, the said document produced by
the learned counsel for the Corporation to justify the alleged
Policy being applicable to the concerned workmen cannot be
called as tt:le policy document passed under Section 30A of
G the Act by the Central Government and moreover, the same
, was not incorporated by way of an amendment to the Certified
Standing Orders of the Corporation by following the procedure
as provided under Section 10 of the Industrial Employment
H (Standing Orders) Act, 1946.
O.N.G.C. v. PETROLEUM COAL LABOUR UNION 517
[V. GOPALAGOWDA, J.]
The reliance placed upon these documents by the A
Corporation in justification of their claim that the concerned
workmen are not entitled to be regularised in their services as
permanent employees in their posts as per the award passed
by the Tribunal is misplaced and wholly untenable in law.
Therefore, the same cannot be accepted by this Court. Hence, B
the said contention is liable to be rejected and is accordingly
rejected.
38. Further, it was contended by the learned senior
counsel that the Certified Standing Orders of the Corporation C
do not apply to the concerned workmen to claim regularisation
in their posts as regular employees as provided under Clause
2(ii) of the Certified Standing Orders of the Corporation. The
said contention is wholly untenable in law as the Standing
0
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 Co-operative Society and directly
thereafter vide memorandum of ~ppointment in the year 1988 It
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 F
for the reason that they are workmen for the purpose of the
Certified Standing Orders and th&refore, the above said
condition has to be ignored. When the concerned workmen
were appointed by issuing the memorandum of appointme111t
to work in the posts of the Corporation, providing them with G
monthly salaries, it cam1ot 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 H
518 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 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
8 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
C 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
D 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
E 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.
39. In light of the above said discussion and legal
F 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
G 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
H counsel on behalf of the Corporation whose contention is
O.N.G.C. v. PETROLEUM COAL LABOUR UNION 519
[V. GOPALAGOWDA, J.]
untenable in law and their appointment can be said as irregular A
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 B
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 und~r/Clause 2(ii) of the Certified Standing Orders C
of the Corpor.ltion 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 o
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 comp!Eition of 240 days of service
~n a calendar year as they have acquired valid statutory right. E
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 ar:id
unreasonably deny the same especially it being a Corporate
Body owned by the Central Government and an instrumentality F
of the State in terms of Article 12 of the Constitution and
therefore, it is governed by Part lfl of the Constitution. The
Corporation should exercise its power fairly and reasonably
in,A(ccordance with law. This has not been done by the G
Corporation as per the law laid down by this Court in the case
of Olga Tellis & Ors. v. Bombay Municipal Corporation and
Ors. 12 wherein it was held as under:-
12 (1985)3 sec 545 H
520 SUPREME COURT REPORTS [2015] 5 S.C.R.
A "40. Just as a mala fide act has no existence in the eye
of law, even so, unreasonableness vitiates law and
procedure ·alike. It is therefore essential that the
procedure prescribed by law for depriving a person of
his fundamental right, in this case the right to life, must
B conform to the norms of justice and fairplay. Procedure,
which is unjust or unfair in the circumstances of a case,
attracts the vice of unreasonableness, thereby vitiating
the law which prescribes that procedure and
consequently, the action taken under it. Any action taken
c by a public authority which is invested with statutory
powers has. therefore, to be tested by the application of
two standards: the action must be within the scope of
the authority conferred by law and secondly, it must be
D reasonable. If any action, within the scope of the authority
conferred by law, is found to be unreasonable, it must
mean that the procedure established by law under which
that action is taken is itself unreasonable. The substance
of the law cannot be divorced from the procedure which
E it prescribes for, how reasonable the law is, depends
upon how fair is the procedure prescribed by it. Sir
Raymond Evershed says that, "from the point of view of
the ordinary citizen, it is the procedure that will most
strongly weigh with him. He will tend to form his judgment
F of the excellence or otherwise of the legal system from
his personal knowledge and experience in seeing the
legal machine at work". Therefore, "He that takes the
procedural sword shall perish with the sword."
G Therefore, the concerned workmen have approached the
Tribunal by raising an industrial dispute regarding the
regularisation of their services in the Corporation. The same
has been properly adjudicated by the Tribunal based on
H pleadings, evidence on record and in accordance with law.
O.N.GC. v. PETROLEUMCOALLABOURUNION 521
[V. GOPALAGOWDA, J.]
Therefore, the same cannot be found fault with by this Court in A
this appeal.
40. Further, the contention urged on behalf of the
Corporation that the concerned workmen do not possess the
required qualifications for their respective posts, in this regard, B
we have gone through the facts recorded by the Courts below
in comparison with the 'Recruitment and Promotion
Regulations, 1980 of the Oil and Natural Gas Commission'
framed and published with previous approval of the Central
Government in exercise of the powers conferred upon it under C
Section 32 of the Oil and Natural Gas Commission Act, 1959,
and we are fully satisfied that all of the concerned workmen
barring just one of the concerned workmen have all the
qualifications required to be regularised in the permanent posts
0
of the Corporation as regular employees.
41. 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 E
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 weU settled principle of law
that such plea must be pleaded and established by a party F
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 & Anr. v. Siemens Employees
Union & Anr. 13
G
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
13 (2011) s sec 775
H
522 ~UPREME COURT REPORTS [2015] 5 S.C.R.
·A 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
8 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
C 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
o 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
E 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
F 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
G 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
H peace and harmony in the industry in the larger interest of
O.N.G.C. v. PETROLEUM COAL LABOUR UNION 523
[V. GOPALAGOWDA, J.]
public, which is the prime object and intendment of the Industrial A
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 B
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.
42. For the reasons recorded in this judgment, we hold C
that the judgments and orders of both the learned single Judge
and Division Bench of the High Court in favouroftbe concerned
workmen are legal and valid. The High Court has rightly
dismissed the appeal of the Corporation by affirming the award
0
passed by the Tribunal.
Therefore, this appeal must fail and accordingly, the same
is dismissed. Since the industrial dispute between the parties
has been litigated for the last 25 years, it would be just and E
proper for this Court to give directions as hereunder:
(i) The Corporation is directed to comply with the terms
and conditions of the award passed by the Tribunal and
regularise the services of the concerned workmen in their
posts and compute the back-wages, monetary benefits F
and other consequential monetary benefits including
terminal benefits payable to the concerned workmen on
the basis of the periodical revision of pay scales
applicable from the date of their entitlement, namely, by
G
regularizing them in their services after their completion
of 240 days of service in a calendar year in the
Corporation as provided under Clause 2 (ii) of the
Certified Standing Orders, within eight weeks from the
date of receipt of the copy of this Judgment; H
524 SUPREME COURT REPORTS [2Q,15] 5 S. C.R.
A (ii) If the Corporation fails to comply with the above given
directions, the back-wages shall be paid to the
concerned workmen with an interest at the rate of 9%
per annum. The Corporation is further directed to submit
the compliance report for perusal of this Court after the
B expiry of the said eight weeks. There shall be no order
as to costs.
Nidhi Jain Appeal dismissed.
c
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "regularisation"Sign in to search