ONGC LTD. Vs PETROLEUM COAL LABOUR UNION .
Bench: V. GOPALA GOWDA,C. NAGAPPAN
Case number: C.A. No.-003727-003727 / 2015
Diary number: 38948 / 2011
Advocates: ARPUTHAM ARUNA AND CO Vs
S. R. SETIA
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3727 OF 2015
(Arising out of SLP (C) No. 5532 of 2012)
ONGC LTD. ....APPELLANT VERSUS
PETROLEUM COAL LABOUR UNION & ORS. ...RESPONDENTS
J U D G M E N T
V. GOPALA GOWDA, J.
Leave granted.
2. The appellant-Corporation has questioned the
correctness of the judgment and order dated 11.08.2011
passed 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
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challenging the award dated 26.05.1999 passed by the
Industrial Tribunal, Tamil Nadu, in I.D. No.66 of 1991,
wherein it was held 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.
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 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
employees have been regularly employed by the
Corporation for its project. 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
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and security supervisors through contractors. 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, 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 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 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 (CISF) to
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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 Tamilnadu National Industrial and Commercial
Employees Union by filing W.P. No. 9688 of 1987 and
W.P. No. 11964 of 1987 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 a consequential direction to absorb the workmen as
regular employees. The workmen obtained an interim
order dated 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 dated 5.1.1988 holding that the workers were
not entitled for regularisation and rejected the
contentions of the workmen in these writ petitions.
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6. On 8.9.1987, the Corporation sent a letter to the
Co-operative Society to withdraw the services of the
security personnel of the Co-operative Society w.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
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 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 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
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mentioned term, the concerned workmen were continued by
the Corporation in their 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.
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 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? (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?”
9. The reference was taken on file by the Tribunal as
I.D. No.66 of 1991. On 28.04.1993, the Trade Union
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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
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 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 Nadu
Industrial Establishments (Conferment of Permanent
Status to Workmen) 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 that the Tribunal has erroneously exercised
its jurisdiction and passed an award directing
the Corporation to regularise the services of the concerned
workmen. It was further contended by the Corporation 1 (1997) 9 SCC 377
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that the concerned workmen were originally engaged
through contractors, without following any procedure of
selection and appointment, therefore, their services
cannot be regularised. 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 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 concerned workmen that they have been
working on temporary basis from the 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 that the law laid down in the case of Uma Devi
(supra) had no application to cases of industrial
adjudication. 2 (2006) 4 SCC 1
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12. The learned single Judge on appreciation of the
facts, circumstances and the legal contentions urged on
behalf of both 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 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 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 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
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the same was appreciated by the learned single Judge,
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 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
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 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
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Regulations, 1980 of the Oil and Natural Gas
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:
a) The appointments of workmen were illegal not irregular, as they were made without proper competition among qualified persons
b) The concerned workmen do not possess the qualifications and training required for discharging 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 deployment of members of the CISF.
e) The concerned workmen were, as a stop gap arrangement, though not qualified but found physically fit, were employed for a short period anticipating the posting of CISF personnel.
f) 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 could not be discharged and had to be allowed to continue only on account of legal compulsion, i.e. 33(1) of the I.D. Act 1947 and the interim orders of the learned single Judge and the Division Bench.
g) The management cannot be compelled by judicial order to regularise the services of
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unqualified and untrained workmen as security guards for discharging duties which only qualified and trained members of an 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 regularisation with
effect from 1.4.1990 and the High Court also 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 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.
17. It has been further contended by him that the
courts below have erred in holding that though the
3 (2001) 7 SCC 1
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procedure contemplated in the Certified Standing Orders
of the Corporation was not followed when the workmen
were appointed on temporary 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
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
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
Transport Corporation & Anr. v. Casteribe Rajya
Parivahan Karamchari Sanghatana4 was per incuriam as
4 (2009) 8 SCC 556
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the same is inconsistent with the earlier coordinate
Bench decision in U.P. Power Corporation Ltd. & Anr. v.
Bijli Mazdoor Sangh & Ors.5 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).
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 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 by allowing
this appeal.
19. On the other hand, Mr. C.U. Singh, the learned
senior counsel on behalf of the concerned workmen has
5 (2007) 5 SCC 755
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strongly rebutted each one of the above contentions put
forth by Mr. Rao the learned 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 alia contending that it
is an admitted position that this opening ground taken
by the Corporation was neither 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 Corporation.
20. Mr. Santosh Krishnan, the learned counsel also
appearing for the concerned workmen has contended that
a “policy 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
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Corporation. 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 Services
posts of the Corporation. This has been further
affirmed 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, 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 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
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of 1987 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 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 W.P. No.9688 of 1987 for
absorption”. Further, it is urged by him that assuming
without conceding that judgment and order dated
5.1.1988 in W.P. Nos. 9688 of 1987 and 11964 of 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
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.
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9688 and 11964 of 1987. It is further urged that the
above 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 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 rendered by the High Court in W.P. Nos. 9688
of 1987 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.
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
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Devi’s case (supra) or Article 14 of the Constitution
and that the Standing Orders only confer the right of
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
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.
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 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
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Recruitment Rules are not amended prescribing that only
the CISF personnel are qualified for guard 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 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. 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 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.
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25. We have heard the factual and rival legal
contentions 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 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 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
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
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we consider the same, the said contention is contrary
to the legal principles laid down by this Court in the
case of Hari Nandan Prasad & Anr. v. Employer I/R To
Management of Food Corporation of India & Anr.6,
wherein the decisions in U.P. Power Corporation v.
Bijli Mazdoor Sangh & 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 viz. U.P. Power Corpn., the Court gave the following reasons: (U.P. Power Corpn. Case, SCC pp. 758-59, paras 6-8)
“6. It is true as contended by the learned counsel for the 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 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.
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.
6 (2014) 7 SCC 190
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There cannot be a case of regularisation without there being employee-employer relationship. As 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 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 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 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, etc. is impermissible as it was violative of Article 14 of the 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 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 that, it would not deter the Industrial Tribunals/Labour Courts from issuing such direction, which the industrial adjudicators otherwise possess, having
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regard to the provisions of the Industrial Disputes Act specifically conferring such powers. This is 24 recognized by the Court even in the aforesaid judgment.
XXX XXX XXX
30. Detailed reasons are given in support of the conclusion stating that the MRTU and PULP Act provides for and 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 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-à-vis the ratio of Umadevi are explained by the Court in the following terms: (Maharashtra SRTC case, SCC pp. 573-74, paras 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. Employing badlis, 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 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.
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
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pertaining to unfair labour practice was not at all referred 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 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.
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 of the workers 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 the Industrial and Labour Courts in passing appropriate order under Section 30 of the MRTU and the PULP Act, once unfair labour practice on the part of the employer under Item 6 of Schedule IV is established.”
XXX XXX XXX
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 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
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powers are of wide amplitude abrogating (sic including) within their fold a direction to accord permanency.”
(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 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 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 Employees of the
Bharat Bank Ltd., Delhi & the Bharat Bank Employee’s
Union, Delhi7, the relevant paragraph of the said case
is extracted hereunder:
“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
7 AIR 1950 SC 188
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all. In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to 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 parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace. An industrial dispute as has been said on many occasions is nothing but a trial of strength between the 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 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 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
"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 itself with interpretation of existing obligations and disputes relating to existing agreements."
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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 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 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 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….”
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 referred to
supra. Therefore, the Tribunal has rightly passed an
award directing the Corporation to regularise the
services of the concerned workmen.
8 (1981) 1 SCC 315
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28. Whether the appointment of the concerned workmen
in 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 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 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 intermediary contractors.
During the pendency of the sanction from 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
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senior counsel on behalf of the Corporation that the
services of 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 case (supra). Further,
this Court in the case of Ajaypal Singh v. Haryana
Warehousing Corporation9 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 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 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.”
9 2014(13)SCALE636
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The plea of the Corporation that the reason for not
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 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 14 and 16 of the Constitution.
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 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
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learned senior counsel for the Corporation cannot be
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 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. 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:
“2. (i) Classification of workmen.
The contingent employees of the Commission shall hereafter be classified as :-
a)Temporary, and b)Casual
(ii) A workman who has been on the rolls
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of the 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 period of 12 consecutive months and who possesses the 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.”
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 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, if the
workman, during a period of twelve calendar months
preceding the date with reference to which calculation
is to be made, has actually worked under the 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
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clearly completed more than 240 days of services
subsequent to the memorandum of appointment issued by
the Corporation in the year 1988 in a period of twelve
calendar months, therefore, they are entitled for
regularisation of their services into permanent posts
of the Corporation as per the Act as well as the
Certified Standing Orders of the Corporation.
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 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 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.
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32. For the Corporation to implement such a provision
which 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 ONGC Act 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 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 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 us. First, the Industrial Employment (Standing Orders) Act, 1946. Before the passing of the Act, conditions
10 (1978) 4 SCC 16
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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 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 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 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’, 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 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 workers.”
It was, therefore, considered, as stated in the preamble “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 now stands, requires every employer of an
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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 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 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, means of redress for wronged workmen etc. Item11 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 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, 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 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 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
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purposes of receiving evidence, administering oaths, enforcing the attendance of witnesses etc. etc. The order of the Certifying Officer is subject to an appeal to the prescribed Appellate Authority. The Standing Orders as finally certified are required to be entered in a register maintained by the 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 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. The scheme of the Act has been sufficiently explained by this Court in Associated Cement Co. Ltd. v.P.D. Vyas3, 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 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 scrutiny of quasi-judicial authorities by the application of the test of fairness and reasonableness. It is an Act giving 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.
XXX XXX XXX
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10. We have already shown that the Industrial Employment (Standing Orders) Act is a special Act dealing with a 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 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 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 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
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:
“ 13-B. Nothing in 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 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
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40
that may be notified in this behalf by the appropriate Government in the Official Gazette, apply.”
(emphasis laid by this Court)
33. In view of the legal principles laid down by this
Court in 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
valid in law nor applicable in the case on hand. The
legal principle laid 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 Sarkar v. Tata Iron and Steel Co. Ltd. &
Ors.11, 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 formally to define conditions of 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 conditions known to workmen employed by them. By Section 3, a duty
11 (1984) 3 SCC 369
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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. Section 8 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 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 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 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 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 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 his employee and they govern the relationship between the parties. Workmen of Messrs Firestone Tyre & Rubber Co.
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of India (P) Ltd. v. Management and Ors. Workmen in Buckinghan and Carnatic Mills Madras v. Buckingham and Carnatic Mills and M/s. Glaxo Laboratories (I) Ltd. v. The Presiding Officer, Labour Court, Meerut and Ors.”
(emphasis laid by this Court)
34. Further, on the direction of this Court after
concluding 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 accordingly
produced the ‘Government Policies and Guidelines 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 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 document is
extracted hereunder to consider the contention urged in
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this regard:
“421. Security Arrangements in Public Enterprises: Ministries etc. are aware that a force called the Central 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 to the deployment of the Force and in providing security arrangements in the various undertakings has been under consideration of the Government particularly with a view to ensuring better coordination between the I.G.C.I.S.F. and the administrative Ministries/Public Enterprises. It has been decided that the following steps should be taken in this regard:
(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 automatically to the I.G.,C.I.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.
(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 I.G.,C.I.S.F. that he is not in a position to take over the security functions of the Enterprise from the very beginning.
(iii) Whenever an investment decision is cleared at the level of the
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Public Investment Board an intimation that such a project has been cleared, should be sent to I.G.,C.I.S.F.
Ministries etc. are to take necessary action accordingly.
422. Security Arrangements in Public Enterprises: The DIG CISF in a recent communication to the Bureau of Public Enterprises has pointed out that a number of undertaking have been employing their own Watch and 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.
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 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 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 of temporary posts for the security coverage
of ONGC installation by Central Government, the
relevant portion of which is extracted hereunder:
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“To
The Director General, Central Industrial Security Force, 13-CGO’s Complex, Lodhi Road, New Delhi-110003.
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-Ind-I dated 31.10.1985.I am directed to convey the sanction of the
President to the creation of the following temporary 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 28th February,……… ………
This issue with the concurrence of Integrated Finance Division vide their Dy. No.3057/85- Fin. III (D-I) dated 12.12.1985.
Yours faithfully, (N.B.Kumar)
Under Secretary to the Government of India”
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,
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46
therefore, the reliance placed 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 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
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
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 the security posts
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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 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
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
relating to Petroleum and 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 due procedure as provided under the ‘Business
Transaction Rules’. For this reason also, the said
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document produced by the learned counsel for the
Corporation to justify the alleged Policy being
applicable to the concerned workmen cannot be called as
the policy document passed under Section 30A of 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 (Standing Orders) Act, 1946.
The reliance placed upon these documents by the
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, 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 do not apply to the concerned workmen to
claim regularisation in their posts as regular
employees as provided under Clause 2(ii) of the
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Certified Standing Orders of the Corporation. The said
contention is wholly untenable in law as 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 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 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 Orders and
therefore, the above said condition has to be ignored.
When the concerned workmen were appointed by issuing
the 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 denied their legitimate, statutory
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and 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
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 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 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 to
justify its action which included inaction on its part
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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
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
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 counsel on behalf of
the Corporation whose contention is untenable in law
and their 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 services is
definitely cannot be termed as illegal, at best it can
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be called irregular. Therefore, the Certified Standing
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 under 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. This plea of the
learned senior counsel cannot again be accepted by us
for the reason that 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 completion of 240 days of service in a
calendar year as they have acquired valid statutory
right. 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 and unreasonably deny the same
especially it being a Corporate Body owned by the
Central Government and an instrumentality of the State
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in terms of Article 12 of the Constitution and
therefore, it is governed by Part III of the
Constitution. The Corporation should exercise its power
fairly and reasonably in accordance with law. This has
not been done by the 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:-
“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 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 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 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 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
12 (1985)3 SCC 545
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the ordinary citizen, it is the procedure that will most strongly weigh with him. He will tend to form his judgment 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.”
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 pleadings, evidence on record and in
accordance with law. Therefore, the same cannot be
found fault with by this Court in 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, 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 Section 32 of the Oil
and Natural Gas Commission Act, 1959, and we are fully
satisfied that all of the concerned workmen barring
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just one of the concerned workmen have all the
qualifications required to be regularised in the
permanent posts 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 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 well settled principle of law that such plea must
be pleaded and established by a party 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
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
13 (2011) 9 SCC 775
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that 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.
Thereafter, they were denied their legitimate right to
be regularised in the permanent posts of the
Corporation. The 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
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 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 on the ground urged on
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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 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 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
industry in the larger interest of public, which is the
prime object and intendment of the Industrial 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
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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.
42. For the reasons recorded in this judgment, we hold
that the judgments and orders of both the learned
single Judge and Division Bench of the High Court in
favour of the concerned workmen are legal and valid.
The High Court has rightly dismissed the appeal of the
Corporation by affirming the award 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 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
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benefits 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
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;
(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 expiry of the said eight weeks.
There shall be no order as to costs.
………………………………………………J. [V.GOPALA GOWDA]
………………………………………………J.
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[C. NAGAPPAN] New Delhi, April 17, 2015
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ITEM NO.1A-For Judgment COURT NO.11 SECTION XV S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No(s)........../2015 @ SLP(C) No. 5532/2012 ONGC LTD. Appellant(s) VERSUS PETROLEUM COAL LABOUR UNION & ORS. Respondent(s) Date : 17/04/2015 This matter was called on for pronouncement of JUDGMENT today. For Appellant(s) M/s Arputham Aruna & Co. For Respondent(s) Mr. V.N. Subramaniam, Adv. Mr. Satish Kumar,Adv.
Mr. Santosh Krishnan, Adv. Mrs. Sonam Anand, Adv.
Mr. Deeptakirti Verma,Adv.
Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice C. Nagappan.
Leave granted. The appeal is dismissed in terms of the signed
Reportable Judgment.
(VINOD KR.JHA) (MALA KUMARI SHARMA) COURT MASTER COURT MASTER
(Signed Reportable Judgment is placed on the file)