ONGC EMPLOYEES MAZDOOR SABHA versus THE EXECUTIVE DIRECTOR BASIN MANAGER, OIL & NATURAL GAS CORPORATION (INDIA) LTD. on 13 February 2020

1. Leave granted.

2. Between 1999 and 2001, the respondent-Oil & Natural GasCorporation (India) Ltd. (for short ‘the ONGC’) called for names fromthe Employment Exchange to fill up sanctioned posts (Class III & IV)of about 800 persons on a term basis i.e. for 4 years. Interview callletters were issued and after conducting interviews, appointment ordersfor the said period was issued as per inter se merit of the availablecandidates. It must be stated that the only error in this order ofemployment is that no public advertisement in the newspapers was firstgiven.

3. The appellant-Union thereafter demanded regular appointmentsto 577 term based employees who were appointed by the respondent-ONGC during 1991 to 2001. The conciliation proceedings which tookplace in 2003 failed as a result of which an industrial dispute was referredto the Industrial Tribunal at Ahmedabad in the following terms:

“Whether the demand of the ONGC Employees Majdoor Sabha,Baroda to give regular appointment to 577 term based appointees(list enclosed) is proper or just? If so, what relief the workmenare entitled for and what directions are necessary in the matter?”

4. By an Award dated 08.11.2011, the Industrial Tribunal,Ahmedabad partly allowed the reference and directed regularization ofsome of the services of these 577 workmen in the following terms:

(i) Out of 577 term based appointees of 1999, 2000 and 2001 asper list attached to the reference, those who either expired orresigned or terminated or tenure completed or are absent are nowout of the court and so those are not entitled to get any reliefinspite of raising demand by the union under the reference.

(ii) Out of 577 term based appointees as per list attached to thereference those who have been selected and appointed againstregular vacancies so far and those who were also appointed onregular post being dependants of deceased employees (DOD’s)so far are not entitled to get any relief in this reference case.

(iii) Out of 577 term based appointees as per list attached to thereference, those who raised dispute for their regularization also A

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Aon completing 240 days of works in the preceding calendar yearsand the award passed in their favour and the list of such employeescovered under Hon’ble Supreme Court’s Judgment in CivilApplication No. C607/2005 regarding field party workman readwith order dated 08.02.2008 in IA No. 10/2007 in Civil ApplicationNo. 6607/2005, selected against regular post under order of theBCourt are, also excluded from getting any relief in this reference,if, (here has been no change in condition of service of any ofthem by way of removal etc. without getting approval/permissionfrom the tribunal and if, condition of service of any one has beenchanged and any complaint case is pending, then the person ifCany, shall be entitled to the relief.

(iv) Out of 577 term based appointees as per list attached to thereference, those whose term had not been extended in the year2004 and filed complaint in this reference case which are pendingare entitled to get relief in this case for considering them for regularDappointments by the 1[st] parties.

(v) Out of 577 appointees as per list attached to the reference, 30persons who are separated as per list of Field Operator furnishedby the first parties on 18.07.2011 are not entitled to get any relief.

(vi) Out of the remaining of 577 term based appointees, who areEstill continuing on the posts on which they were appointed and aregetting extensions of term/tenure are directed to be treated andcovered within priority case of consideration zone for given themregular appointment by the management of ONGC (1[st] parties).The 1[st] parties are directed to work out such number of appointeesFwith intimation to the 2[nd] party union.

(vii) The first parties are directed to undertake exercise of givingregular appointment to the remaining term based appointees callingthem for interview if, necessary, and not to import recruitmentfrom open market inviting fresh applications for the regular postsGunless term appointees are given regular appointments of classIII & IV posts.”

5. The appellant-Employees Union being aggrieved by this Awardapproached, by way of a Special Civil Application, the High Court ofGujarat to the extent that the Tribunal had not granted appointment tothe workmen with effect from the date on which they had been initiallyH

ONGC EMPLOYEES MAZDOOR SABHA v. EXECUTIVE DIR.BASIN MANAGER, ONGC (INDIA) LTD. [R. F. NARIMAN, J.]

appointed and/or from the date on which they completed probation. Bya judgment dated 26.04.2013, a learned Single Judge of the Gujarat HighCourt allowed this writ petition in part stating:

“15. In view of the fact that the workmen have already undergonethe procedures of recruitment such as examinations and interviewsand have been working with the respondent Corporation for years,their case deserves to be considered. However, it is pointed outthat some of the employees have undergone fresh interview andwere appointed on regular basis. In that view of the matter, inorder to avoid any complication with regard to seniority and otheraspects, interest of justice would be met by directing the respondentCorporation to treat the concerned workmen on regularemployment with effect from 24.01.2005 or the date of firstreissuance of appointment order as the case may be, andaccordingly grant notional benefits from the said date till 31.03.2013and to pay them regular pay and allowances with effect from01.04.2013. Accordingly, the following directions are issued:

[i] The concerned workmen involved in these cases are notrequired to undergo any more recruitment examinations since theyhave been appointed after following necessary procedure and areworking with the corporation since then.

[ii] The respondent Corporation shall treat the concerned workmenon regular employment with effect from 24.01.2005 or the dateof first reissuance of appointment order as the case may be.

[iii] Accordingly the respondent Corporation shall grant notionalbenefits to the concerned workmen from the said date till31.03.2013 and shall pay them regular pay and allowances witheffect from 01.04.2013.

[iv] The direction of the Tribunal not to import recruitment fromopen market inviting fresh applications for the regular posts unlessterm appointees are given regular appointments of Class III andIV posts is quashed and set aside.

[v] It shall be open to the respondent Corporation to initiate actionfor recruitment for remaining vacancies, if any, after absorptionof concerned workmen from open market.

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A[vi] In case the regular salary is being paid to the concernedworkmen pursuant to the interim order of this Court, no recoverythereof shall be effected by the Corporation.

16. The award of the Labour Court is modified accordingly. SpecialCivil Applications No. 2248 of 2012 and No. 2813 of 2012 areBpartly allowed. Rule is made absolute to the aforesaid extent withno order as to costs. Special Civil Application No. 16777 of 2012is dismissed. Rule is discharged with no order as to costs. In viewof the order passed in Special Civil Application No. 2248 & 2813of 2012, no orders are required to be passed in Civil ApplicationNo. 14144 of 2012 and the same is accordingly disposed of.”C

6) Two Letters Patent Appeals from this judgment that were filedwere both dismissed, one by the Workers Union, and one by the ONGCby the impugned judgment dated 29.04.2015. What was held by thejudgments of the learned Single Judge and the Division Bench is that atthe highest the initial appointment of the members of the appellant-UnionDcould be termed to be irregular but not illegal. The ONGC appealedfrom the Division Bench judgment dated 29.04.2015, which was dismissedby this Court’s order dated 17.08.2015 stating as follows:

“Taking into consideration the peculiar facts and circumstancesof these special leave petitions, we are not inclined to interfereEwith the impugned judgment and order passed by the High Courtof Gujarat. Accordingly, the special leave petitions are dismissed.”

The limited question that arises before us today is on what date totreat the concerned workmen to be on regular appointment.F7) Mr. K.V. Viswanathan, learned Senior Advocate appearing onbehalf of the appellant-Union has taken us through the record and hasstated that his clients ought to be regularized from the date of the initialappointment/completion of probation and that the learned Single Judgein confining relief only from 24.01.2005 or the date of first reissuance ofthe appointment order as the case may be and granting notional insteadGof actual benefits from the said date is wholly incorrect and ought to beset aside by this Court.

8) Mr. K.M. Nataraj, learned Additional Solicitor Generalappearing for the respondent, on the other hand, points that that whathas been done by the learned Single Judge is absolutely correct in lawHinasmuch as regularization has been given but cannot be given on actuals retrospectively. Hence, the date of 24.01.2005 which is the last date onwhich the four year term comes to an end is a date which is just andcould well have been given. Regular pay and allowances, therefore, aswas correctly given to the employees union from 01.04.2013 (that is thedate of the month in which the learned Single Judge decided the SpecialCivil Application) was also something well within the jurisdiction of thelearned Single Judge in exercising powers under Article 226 and 227 ofthe Constitution of India.

9) Mr. K.V. Viswanathan has strongly relied uponOil and NaturalGas Corporation Limitedvs. Petroleum Coal Labour Union andOthers, (2015) 6 SCC 494, which, according to the learned senioradvocate applies clearly to the facts of this case, this Court having grantedregularization to similarly placed employees from the date of theirentitlement i.e. after completion of 240 days of service in a calendaryear in the Corporation as was provided in the Certified Standing Ordersthat were relied upon in that case.

10) On the other hand, Mr. K.M. Nataraj, learned ASG has pointedout that this judgment is distinguishable on facts in that the Award passedby the Industrial Tribunal in that case itself directed the appellant-Corporation to regularize services of the workmen concerned with effectfrom the date on which they completed 480 days. Also, since this wasexpressly provided for in the Certified Standing Orders of the Corporation,the case is completely distinguishable. We have also been informed thatthis judgment is pending consideration of a larger Bench by a referenceorder dated 07.02.2020.

11) The learned ASG appears to be correct in that the judgmentreported in Oil and Natural Gas Corporation Limited (supra), in anycase, does not lay down any law with respect to the entitlement of theworkers to regularization in that case. It was a case which dependedentirely on its own facts and was dependent upon a reading of CertifiedStanding Orders of the Corporation in this behalf. The question of lawthat was decided by this judgment has no bearing whatsoever on theissue that is before us.

12) The Learned ASG then cited Surendra Kumar and Othersvs. Greater Noida Industrial Development Authority and Others(2015) 14 SCC 382, which, on facts, concerned a policy decision toregularize the services of 27 contractual employees of the respondenttaken in 2003 which was approved by the Government in 2008, the AB

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Aappellants being appointed only on 06.08.2010. On the facts of that case,it was held that when vacancies were initially advertised the appellantshad no substantive right against the notified vacancies and applying theprinciples contained in State of Karnatakavs. Umadevi(2006) 4 SCC1, this Court stated that the appellants cannot seek regularization withretrospective effect from 2002 as the regularization policy itself was notBin vogue at that time. This judgment again is far removed from the factsof this case and is wholly distinguishable in that in the present case theonly irregularity in the appointment was the lack of a public advertisementapart from which each and every other condition for employment ismet.C13) The learned ASG then cited Divisional Manager, A.P. SRTCand Othersvs. P. Lakshmoji Rao and Others, (2004) 2 SC 433 and, inparticular, relied upon para 16 of the said judgment which reads as follows:- “16. In the light of the above discussion, we are of the view thatthe law laid down or the directions given in various writ petitions/Dwrit appeals are not legally sustainable for more than one reason.Firstly, wrong criterion based on Section 25-B of the ID Act wasapplied in case after case. Secondly, the respondents and othersimilarly situated employees approached the Court under Article226 long after their regularization, thereby unsettling the settledEposition. Thirdly, on the facts of these cases, it is evident that theservices of the employees who were recruited as conductors wereregularized within a reasonable time. The respondent employeeswere therefore treated fairly. No service rule or regulation or anyother principle of law has been pressed into service by therespondents to claim regularization from an anterior date i.e. rightFfrom the date of their initial appointment as daily-wage employees.”

On a perusal of para 16, it is clear that that case turned upon themis-application of Section 25-B of the Industrial Disputes Act in caseafter case. Secondly, it was also mentioned that the respondents andother similarly situated employees approached the Court long afterGregularization thereby unsettling the settled position and, (presumably)affecting the rights of other employees as well. Thirdly, on facts it wasalso found that the persons who are recruited as conductors wereregularized within a reasonable time. Based on these three factors itwas finally held that it would be unjust on the facts of that case to grantHregularization from an anterior date i.e. from the date of initial appointmentas daily-wage employees.

ONGC EMPLOYEES MAZDOOR SABHA v. EXECUTIVE DIR.BASIN MANAGER, ONGC (INDIA) LTD. [R. F. NARIMAN, J.]

14) On facts in the present case, what is clear is that as soon asthe four year period got over, the employees collectively through theirUnion approached the Central Government and the Central Governmentin exercise of its powers under the Industrial Disputes Act referred anindustrial dispute immediately on 21.12.2004. This dispute was ultimatelyanswered by the Central Government Industrial Tribunal many yearslater only on 08.11.2011. On the facts of this case, therefore, we are ofthe view that the Corporation must treat the concerned workmen whichincludes 111 out of these 577 employees who have been regularizedearlier to be in regular employment on and from the date on which theindustrial dispute was referred i.e. 21.12.2004 and accordingly grant allactual benefits from the said date till 01.04.2013. The other directionsthat have been given by the learned Single Judge will remain intact. Theappeal is allowed in the aforesaid terms.

Nidhi Jain

Appeal allowed.

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