IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH) WP (C) No. 3522/2000 1. Dhansiri Valley Project Oil and Natural Gas Commission Workers Association (D.V.P.O.N.G.C. Workers Association) having its Head Office at Kakotigaon, Torajan, Jorhat, District Jorhat. 2. Shri Pradip Kumar Saikia, President of D.V.P. ONGC Workers Association, Torajan, Jorhat, son of Shri Khagendra Nath Saikia, Kenduguri, Jorhat, Assam. -Vs-..Petitioners 1. Oil and Natural Gas Corporation Ltd., a statutory body, having its Head Office at Dehradun, Uttar Pradesh. 2. Chairman-cum-Managing Director, Oil and Natural Gas Corporation Ltd., Jiban Bharati Tower, New Delhi. 3. The Regional Director, Oil and Natural Gas Corporation Ltd., Eastern Region, Nazira, Dist. Sibsagar. 4. The General Manager, Oil and Natural Gas Corporation Ltd., Dhansiri Valley project, Bishnu Bhawan, Jorhat. 5. Regional Labour Commissioner(C), Government of India, Ministry of Labour, Rajgarh Road, Chandmari, Guwahati-3. 6. Union of India, represented by the Ministry of petroleum and Chemical, Government of India, New Delhi...Respondents For the petitioners : For the respondents : Mr. R.P. Kakati, Sr. Adv. Mr. A.K. Dutta, Adv. Mr. P.K. Roy, Adv. WP(C) No. 3522 of 2000 & 6096 of 2002 Page 1 of 14
WP(C) No. 6096/2002 1. Oil & Natural Gas Corporation Ltd. (ONGC) a company Registered under the Companies Act, 1956 having its registered office at New Delhi and the Eastern Regional Business Centre / Office at Nazira, District Sibsagar, Assam-785 640. 2. Executive Director, ONGC, ERBC, Nazira, Pin- 785640. Petitioners -Vs- 1. Union of India, service through the Secretary, Government of India, Ministry of Labour, Sharama Shakti Bhawan, New Delhi. 2. Presiding Officer, Industrial Tribunal, Assam at Guwahati, Uzan Bazar, Nawzan Road, Guwahati- 1. 3. The General Secretary, ONGC, DVP Workers Association, ONGC, Dhansiri Valley Project, Jorhat..Respondents For the petitioners : For the respondents : Mr. P.K. Roy, Adv. Mr. N. Choudhury, Adv. for R/3. BEFORE THE HON BLE MR. JUSTICE B.K. SHARMA. Date of hearing and judgement : 19.7.2012. JUDGEMENT AND ORDER ( ORAL ) Sharma, J Both the writ petitions being inter-connected, have been heard together and are being disposed of by this common judgement and order. While in WP(C) No. 3522/2000 (referred to as the first WP(C) No. 3522 of 2000 & 6096 of 2002 Page 2 of 14
writ petition), the petitioner D.V.P.O.W. Association, represented by its President, has prayed for a direction to the respondents No.1 to 4 to fully implement the award passed by the learned Industrial Tribunal, Guwahati in reference case No. 1(C) / 1989, in WP(C) No. 6096/2002 (hereinafter referred to as 2 nd writ petition), filed by the Oil and Natural Gas Corporation (hereinafter referred to as ONGC), represented by its Executive Director, has prayed for setting aside and quashing of the award dated 1.6.2001 passed by the learned Industrial Tribunal, Guwahati in reference case No. 1(C)/1997. In both the awards passed by the learned Tribunal, there is direction for regularisation of the services of the workmen involved. So far as the first award dated 12.3.1991 passed in reference case No. 1(C) / 1989 involved in WP(C) No. 3522/2000 is concerned, the same has been implemented, although disputes have been raised in the writ petition questioning the manner and method of such implementation. The second award dated 1.6.2001 passed in reference case No. 1 (C)/1997 is yet to be implemented and presently under challenge in the second writ petition. 2. I have heard Mr. A.K. Dutta, learned counsel led by Mr. R.P. Kakati, learned senior counsel appearing in the first writ petition as well as Mr. P.K. Roy, learned counsel appearing in the second writ petition. I have also heard Mr. N. Choudhury, learned counsel representing the respondent No.3 i.e. the ONGC Workers Association represented by its General Secretary, representing 37 workmen / beneficiaries of the second award dated 1.6.2001. I have also perused the entire materials on record including the records received from the learned Tribunal. 3. So far as the first writ petition is concerned, the reference that was passed on 12.3.1991 in reference Case No. 1(C)/1989 has attained its finality. The award was put to challenge by a writ petition being Civil Rule No. 4375/1991 filed by the management of the ONGC. At the time of passing the order in the said Writ Petition and their writ petition being Civil Rule No. 1907/1988 filed by the ONGC Workers Association, was already pending. By the said writ WP(C) No. 3522 of 2000 & 6096 of 2002 Page 3 of 14
petition, the Association had prayed for regularisation of 264 Workers who had been serving in the ONGC as Casual Workers. Both the writ petitions were disposed of by judgement and order dated 5/8/1993 upholding the award dated 12.3.1991 passed in reference case No. 1(C)/1989. Operative part of the judgement is reproduced below :- 8. I have perused the original documents in order to satisfy myself that there is no perversity in the findings of the Tribunal and hold that these workers are casual workers and not contractual labourers. 9. That from the perusal of the materials on record and after having heard the advocates of the parties, I am not inclined to interfere with the impugned award inasmuch as I do not find that there is any perversity and / or any error apparent on the face of the record. Accordingly, this writ application (CR No. 4375/1991) is dismissed. CR No. 1907/1988 stands disposed of in terms of this order. 4. Being no satisfied with the aforesaid judgement and order, the ONGC preferred a Special Leave Petition (SLP) challenging the same. The SLP bearing No. 1303/1994 was dismissed by order dated 25.2.1994. It appears that a contempt proceeding was also initiated alleging non-implementation of the award, that was affirmed by this Court and the Apex Court. The said contempt petition filed by the Workers Association was registered and numbered as COP(C) No. 397/1994. By order dated 15.7.1996, the contempt petition was closed with the following observations :- 3. The award having been maintained by the learned Single Judge of this Court, it is the non-implementation of the award which has been made the subject matter of this contempt proceedings. The conemners in their affidavit have categorically stated and clarified the position as to how the award passed by the Industrial Tribunal has been implemented by them. The implementation of the award of the Industrial Tribunal is apparent from the following statement. WP(C) No. 3522 of 2000 & 6096 of 2002 Page 4 of 14
(a) Number of labourers appointed in 35 normal recruitment process during the pendency of cases before the Tribunal and High Court (b) Number of labourers who left service 72 or died (c) Number of labourers appointed to implement the Award of the Tribunal 153 in additional to the 35 already appointed (d) One labourer (Shri Horon Saikia Sl. No. 1 59) who did not respond to the offer of appointment (e) Missing serial number (Sl No. 232) 1 (f) Repetition of name (Sri Benu Bhengra, Sl. No. 64 & 124, Sri Pulin Ch. Dutta, Sl. No. 113 & 136) 2 164 4. In view of the explanation offered by the contemners, no case of willful disobedience of the award, as passed by the Tribunal, is made out. The petition is, therefore, dismissed. Notices of contempt, issued against the contemners, are discharged. 5. Pursuant to the aforesaid developments, the management of the ONGC has regularised the services of 189 Workers by issuing different orders. While some of the orders were passed in 1994 pursuant to the aforesaid award and judgement, some orders had been passed even before that. Be that as it may, the fact of the matter is that altogether 189 workers had been regularised in their services. However, the petitioner in the first writ petition have questioned the methodology adopted in regularising the services of the workmen. According to the association, the services of the workmen ought to have been regularised with retrospective effect. Further, their claim is for regularisation of services against the posts which they had been holding at the time of passing the award. 6. After the aforesaid process of regularisation of services, the 37 workers involved in the second writ petition, started agitating their grievance in respect of non-regularisation of services. According to WP(C) No. 3522 of 2000 & 6096 of 2002 Page 5 of 14
the association representing the said 37 workers, the award dated 12.3.1991 passed in reference case No. 1 (C)/1989 duly covered the 37 workers and thus there was no escape from the liability of the management of the ONGC to regularise their services at par with the other 189 workers. 7. Mr. N. Choudhury, learned counsel representing the respondent No. 3 in the second writ petition submits that because of inaction on the part of the ONGC management, the said 37 workers were forced to raise a dispute which eventually culminated in the second reference being reference No. 1(C)/1997, which has been answered in favour of the 37 workers by the impugned award dated 1.6.2001. Referring to the Annexure-10 of the Counter affidavit filed by the association in the earlier writ petition being Civil Rule No. 4375/1991, he submits that the said annexure-10 did contain the names of all the workers including the 37 workers involved in the second writ petition. According to him, the earlier judgement and order dated 5.8.1993 by which the said writ petition was disposed off along with Civil Rule No. 1907/1988 having taken note of the said annexure-10 document containing the names of all the workers involved in the second writ petition, there was no escape from the liability of the ONGC management to regularise the services of the said workers at par with other 189 workers. 8. Countering the above argument, Mr. P.K. Roy, learned counsel appearing for the ONGC submits that the 37 workers cannot claim regularisation of service as a matter of force. He contends that after the judgement and order passed by this Court in COP(C) No. 397/1994 holding that there was no willful disobedience of the order, the association representing the 37 workmen cannot reopen the matter by raising a dispute. He submits that the learned Tribunal ought to have considered that aspect of the matter instead of mechanically passing the order directing the ONGC to regularise their services. Referring to the provisions of the Contact Labour Abolition and Regulation, 1970, he submits that the 37 workmen being the employees of the contractor engaged by the ONGC, they are not the WP(C) No. 3522 of 2000 & 6096 of 2002 Page 6 of 14
direct employees of the ONGC and consequently they are not entitled to claim regularisation of their services. He has also questioned the findings recorded in the impugned award which according to him is contrary to the stands taken in the proceeding by the ONGC. 10. Mr. Dutta, learned counsel representing the petitioner in the second writ petition submits that since in the first award the direction was to regularise the services of the workmen in their respective post, the ONGC authority ought to have regularised their services against the said posts. He submits that the management of the ONGC could not have regularised their services by way of giving fresh appointment and that too not against the posts to which they had been holding at the time of passing the award. 11. Mr. P.K. Roy, learned counsel for the OGNC has submitted that the ONGC has regularised the services of the concerned workmen in the posts commensurating to their educational qualification. As regards the plea of retrospective regularisation, he submits that in absence of any direction in the award, the workmen cannot claim retrospective regularisation of their services. 12. I first deal with the aforesaid prayer of the petitioner involved in the first writ petition. In the award passed by the learned Tribunal, there was direction to regularise the services of the workmen without indicating any particular date. For a ready reference, the operative part of the said award is quoted below :- According to management witnesses, these workmen are serving in different capacities in Dhansiri Valley Project, Jorhat since 1988. According to union witness these workmen are serving since 1981. From the evidence of these witnesses it is an established fact that workmen are serving for more than 7 years continuously in different capacities in Dhansiri Valley Project. In view of their continuous service for long years having all the requisite qualification and experience all the workmen are entitled to regularisation of their services in their respective posts as per clause (2) of certified standing order for contingent employees of the Oil and Natural Gas Commission. WP(C) No. 3522 of 2000 & 6096 of 2002 Page 7 of 14
Therefore I find management of ONGC Dhansiri Valley Project Jorhat is not justified in not regularising the services of all the concerned workmen. Services of all the 264 workers are to be regularised by ONGC Dhansiri Valley Project, Jorhat. I give this AWARD on this 12 th day of march, 1991 at Guwahati under my hand and seal. 13. While it is true that in the above direction it was observed that all the workmen were entitled to regularisation of their services in their respective post as per Clause-II(2) of the Certified Standing Order for Contingent Employees of the ONGC but the same will have to be understood in the context in which the award was passed. The reference that was made to the Tribunal for adjudication was Whether the action of the management of Oil & Natural Gas Commission, Dhansiri Valley Project, Eastern Regional Business Centre, Jorhat in not regularising the services of 264 casual labourers engaged in different sections of the Project is justified. If not, what relief the concerned workmen are entitled to. 15. In the reference, there was no indication of any particular posts being held by the workmen. The reference confined to the issue relating to regularisation of the services of 264 Casual Labourers engaged in different sections of the particular project in the ONGC. In Clause-II of the Standing order, classification on workmen as (i) Temporary and (ii) Casual. As per Clause-II(3), the workmen putting in 240 days of service and who possess the minimum qualification prescribed by the Commission, may considered for conversion as regular employees. Thus, the standing order itself provides for consideration of a temporary workman after putting in 240 days of service for conversion as regular employee. However, the same clause also speaks of possession of minimum qualification. In such circumstances, if the OGNC decided to regularise the services of the workmen considering their qualification and the job requirement in different posts, it cannot be said that it has acted in derogation of the award in question. WP(C) No. 3522 of 2000 & 6096 of 2002 Page 8 of 14
16. Mr. N. Choudhury, learned counsel for respondent No.3 has drawn my attention to certain provisions of the Industrial Disputes Act. Section-2 defines Unfair Labour Practice. Unfair Labour Practice means any of the practices specified in the 5 th schedule. The 5 th Schedule to the Industrial Disputes Act, 1947 dealing with the Unfair Labour Practices provides under Clause-X to employ workmen as badlis, casual or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen, would constitute Unfair Labour Practice. The provisions made in Clause 2 of the Certified Standing Orders itself having provided for consideration for regularisation of services of the workmen, who has put in not less then 240 days of service, there was no escape from the liability of the ONGC to consider regularisation of the workmen involved numbering 264. 17. The plea of the ONGC that the concerned workmen were not their direct employees under direct payment system, did not find favour of the learned Tribunal. The first award dated 12.3.1991 passed in reference No. 1(C)/1989 having attained its finality, the only question left to be decided is as to whether the said award had been implemented by the ONGC in its true spirit or not. Although, as noted above, it is the case of the petitioner in the first writ petition that the award in question had not been fully implemented and as noted above, the ONGC had regularised services of some of the workmen even before the award and the aforesaid judgement dated 5.8.1993 was passed. After the said award and the judgement also, the ONGC has regularised the services of some others. It is submitted that their services had been regularised taking note of the job requirements and their educational qualifications. The standing order itself having provided for regularisation of services of the workmen in reference to their qualification, etc, it cannot be said that the workmen ought to have been regularised in the assignment / post, which the workmen had been holding at the time of passing the award. WP(C) No. 3522 of 2000 & 6096 of 2002 Page 9 of 14
18. The workmen may have been engaged in different works with different nomenclatures but they were all under the same category i.e. Casual Labourer. The ONGC had engaged the workmen as casual Labourer and their services were utlised in different jobs. However, when the question of regularisation came into being, they had to consider the same in reference to their education qualification, experience and job requirement etc. In the process, if the workmen have been regularised in different posts commensurating to their educational qualification, etc, no fault can be attributed to the ONGC. 19. As regards the question of retrospective regularisation of service is concerned, apart from the fact that in the award there was no direction to regularise the services of 264 workmen with retrospective effect, even otherwise also, regularisation normally takes effect prospectively unless it is specifically provided otherwise. In the instant case, the award did not provide for retrospective regularisation and thus it cannot be said that the workmen had been deprived of the retrospective regularisation. 20. This now leads us to the issue raised in the second writ petition which is validity or otherwise of the impugned award dated 1.6.2001 passed in Reference No. 1(C) / 1997. While Mr. P.K. Roy, learned counsel for the petitioner submits that the impugned award is not sustainable in law in view of the evidence on record, Mr. N. Choudhury, learned counsel representing the respondent No.3 submits that the impugned award dated 1.6.2001 only reiteraes the case of 37 workers whose services were required to be regularised at par with 189 workers. 21. It is on record that Annexure-10 to the counter affidavit filed by the respondent No.3 association in Civil Rule No. 4375/1991 did contain the names of the 37 workers. Nothing has come on record that any dispute was raised by the ONGC in respect of the veracity or otherwise of the names of the workmen mentioned in the said document which included the 37 workers being represented by the WP(C) No. 3522 of 2000 & 6096 of 2002 Page 10 of 14
respondent No.3 association. In fact, in the judgement and order dated 5.8.1993 passed in both the writ petitions being Civil Rule No. 4375/1991 and Civil Rule No. 1907/1988, there is a reference to the said document. While quoting the relevant portion of the counter affidavit filed by the association, it was indicated that the name, designation, verification and date of appointment of the workers was at Annexure-10 to the counter affidavit. From the said Annexure-10 to the counter affidavit forming part of the records, it has been shown that in the said list, 37 workers represented by the respondent No.3, had been indicated along with other workers. 22. Mr. P.K. Roy, learned counsel for the petitioner involved in the second writ petition has argued in reference to the judgment and order dated 15.7.96 passed in COP(C) No. 397/1994, that by the said order, the allegation of disobedience of the orders by not implementing the order in its true spirit having been rejected, there is no question of agitating the same grievance by way of another reference but what I find is that in the said judgement and order, the contempt proceeding was closed taking note of the stand of the alleged contemnors. Apart from the fact that an order passed in contempt proceeding cannot conclusively decide the rights and contentions of the parties, the contempt jurisdiction is as to whether there is willful and deliberate violation of the order in question. In the said order, the particular plea of the alleged contemnors had been noted. As per the said order, the award followed by the judgement and order was to be implemented and in the process certain figures had been indicated, so as to contend that the judgment was implemented. It was held that no case of willful disobedience of the award was made out. 23. Irrespective of the above findings recorded in the contempt proceeding, it was within the jurisdiction of the respondent No.3 Association to agitate their grievance regarding non-implementation of the impugned award in its later and spirit and also the exclusion of the 37 workers from the purview of the award. WP(C) No. 3522 of 2000 & 6096 of 2002 Page 11 of 14
24. As noted above, when the award was put under challenge b y the filing Civil Rule No. 4375/1991, the writ petition that was already filed by the Association being Civil Rule No. 1907/1988 was already pending. By the said writ petition, the Association had prayed for regularisation of the services of all the 264 workers. It will have to be borne in mind that the judgement and order dated 5.8.1993 was the common judgement in both the writ petitions. By the said judgement, this Court held that there was no infirmity in the impugned order and consequently while the writ petition being Civil Rule No 4375/1991 was dismissed, the other writ petition being Civil Rule No. 1907/1988 filed by the Association was disposed of upholding the award. 25. Although, referring to the position that 37 workers had left the ONGC, much have been emphasized that those 37 workers represented by the respondent No.3 association are not entitled to regularisation but the said aspect of the matter will have to be considered taking note of all the attending facts and circumstances. It is not the case of the ONGC that the said 37 workers are no longer in the services of the ONGC, be it under direct payment system or under the contractor. In fact, in the writ petition, the plea of the ONGC management is that the said 37 workers are not their employees and that they are under contractor. It will also have to borne in mind that apart from the fact that the names of the 37 workers which find mention in the Annexure-10 to the counter affidavit referred to above, their names also featured in the term of second reference, which has been answered by the impugned award dated 1.6.2001 in reference No. 1(C)/1997. 26. I have very carefully considered the impugned award dated 1.6.2001, by which direction has been issued to regularise the services of the 37 workers. The second reference on the basis of which the dispute raised on behalf of the 37 workmen, came to be issued when inspite of the aforesaid factual and legal position of their services were not regularised by the ONGC. The 37 workmen represented by their association i.e. the respondent No.3 were WP(C) No. 3522 of 2000 & 6096 of 2002 Page 12 of 14
forced once again to agitate their grievance by raising a dispute which eventually was referred to for adjudication to the learned Tribunal. The learned Tribunal taking cognizance of the said reference issued notices to both the parties. In due course, they submitted their respective written statement. Thereafter, the learned Tribunal taking note of evidence on record passed the impugned award dated 1.6.2001. 27. On verification of the records received from the Tribunal, it is found that although the association had prayed for production of the original records pertaining to the appointment of the 37 workmen but there was failure on the part of the management of the ONGC to cause production of the same. It was in such circumstances, the association proved the documents in their possession by duly exhibiting the same before the learned Tribunal. The Tribunal taking note of the entire evidence on record passed the impugned award dated 1.6.2001. It appears that in the proceeding before the Tribunal, a plea was taken by the management of the ONGC that the services of the 37 workmen could not be regularised in terms of the award as their names did not figure in the award. However, the said plea did not find favour of the learned Tribunal and rightly so in view of the fact that their names were included in Annexure-10 to the counter affidavit filed by the association before this Court in the earlier round of litigation referred to above. In the judgement and order dated 12.3.1991, the two writ petitions being Civil Rule No. 4375/1991 and Civil Rule No. 1907/1988, there is mention of the said document and thus there is also no escape from the liability of the ONGC to regularise the services of the 37 workers as well, along with other 189 workmen. 28. It is also on record that the ONGC had brought an amendment to their written statement so as to incorporate another ground to resist the reference. The said ground was that upon a Men Power Survey conducted by the management, it was found that there was no further requirement of any worker, not to speak of regularisation of their services. The said plea of the ONGC also did not find favour WP(C) No. 3522 of 2000 & 6096 of 2002 Page 13 of 14
of the learned Tribunal and rightly so in view of the provisions in the Standing order as well as the provisions of the Industrial Disputes Act, referred to above. 29. All the workmen including the 37 workmen with which this proceeding is concerned had been working under the ONGC for the last more than 30 years, deserving regularisation of their services. In fact, the second proceeding would not have arisen but for the particular stand of the ONGC which was against the provisions of the Industrial Disputes Act, referred to above and so also against their own Standing orders. 30. Considering all the above I do not find any infirmity in the impugned award dated 1.6.2001 passed in reference No. 1 (C)/1997. Consequently, the 37 workers will be entitled to get regularisation of their services from the due dates with all consequential benefits. Thus, the second writ petition is dismissed. 31. Both the writ petitions are answered in the above manner, without however, any order as to costs. Registry shall send down the LCR immediately. JUDGE Sukhamay WP(C) No. 3522 of 2000 & 6096 of 2002 Page 14 of 14