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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1570 OF 2020 (Arising out of Special Leave Petition (C) No. 14475/2016)

ONGC EMPLOYEES MAZDOOR SABHA     Appellant(s)

                               VERSUS

THE EXECUTIVE DIRECTOR BASIN MANAGER, OIL & NATURAL GAS CORPORATION (INDIA) LTD.     Respondent(s)

J U D G M E N T

R.F. Nariman, J.

1) Leave granted.

2) Between 1999 and 2001, the respondent-Oil & Natural Gas

Corporation (India) Ltd. (for short ‘the ONGC’) called for

names from the Employment Exchange to fill up sanctioned posts

(Class III & IV) of about 800 persons on a term basis i.e. for

4  years.   Interview  call  letters  were  issued  and  after

conducting interviews, appointment orders for the said period

was issued as per inter se merit of the available candidates.

It  must  be  stated  that  the  only  error  in  this  order  of

employment is that no public advertisement in the newspapers

was first given.

3) The  appellant-Union  thereafter  demanded  regular

appointments to 577 term based employees who were appointed by

the respondent-ONGC during 1991 to 2001.  The conciliation

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proceedings which took place in 2003 failed as a result of

which an industrial dispute was referred to the Industrial

Tribunal at Ahmedabad in the following terms:

“Whether the demand of the ONGC Employees Majdoor

Sabha, Baroda to give regular appointment to 577

term based appointees (list enclosed) is proper

or  just?  If  so,  what  relief  the  workmen  are

entitled for and what directions are necessary in

the matter?”  

4) By an Award dated 08.11.2011, the Industrial Tribunal,

Ahmedabad  partly  allowed  the  reference  and  directed

regularization of some of the services of these 577 workmen in

the following terms:

(i) Out of 577 term based appointees of 1999, 2000

and 2001 as per list attached to the reference,

those who either expired or resigned or terminated

or tenure completed or are absent are now out of

the court and so those are not entitled to get any

relief inspite of raising demand by the union under

the reference.

(ii) Out of 577 term based appointees as per list

attached  to  the  reference  those  who  have  been

selected and appointed against regular vacancies so

far and those who were also appointed on regular

post being dependants of deceased employees (DOD’s)

so far are not entitled to get any relief in this

reference case.

(iii) Out of 577 term based appointees as per list

attached to the reference, those who raised dispute

for  their  regularization  also  on  completing  240

days of works in the preceding calendar years and

the award passed in their favour and the list of

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such  employees  covered  under  Hon’ble  Supreme

Court’s Judgment in Civil Application No. C607/2005

regarding field party workman read with order dated

08.02.2008 in IA No. 10/2007 in Civil Application

No. 6607/2005, selected against regular post under

order of the Court are, also excluded from getting

any relief in this reference, if, (here has been no

change in condition of service of any of them by

way  of  removal  etc.  without  getting

approval/permission  from  the  tribunal  and  if,

condition of service of any one has been changed

and any complaint case is pending, then the person

if any, shall be entitled to the relief.       

(iv) Out of 577 term based appointees as per list

attached to the reference, those whose term had not

been extended in the year 2004 and filed complaint

in  this  reference  case  which  are  pending  are

entitled to get relief in this case for considering

them for regular appointments by the 1st parties.

(v) Out of 577 appointees as per list attached to

the reference, 30 persons who are separated as per

list  of  Field  Operator  furnished  by  the  first

parties on 18.07.2011 are not entitled to get any

relief.

(vi) Out  of  the  remaining  of  577  term  based

appointees, who are still continuing on the posts

on  which  they  were  appointed  and  are  getting

extensions  of  term/tenure  are  directed  to  be

treated  and  covered  within  priority  case  of

consideration  zone  for  given  them  regular

appointment by the management of ONGC (1st parties).

The 1st parties are directed to work out such number

of  appointees  with  intimation  to  the  2nd party

union.

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(vii) The first parties are directed to undertake

exercise  of  giving  regular  appointment  to  the

remaining term based appointees calling them for

interview  if,  necessary,  and  not  to  import

recruitment  from   open  market  inviting  fresh

applications  for  the  regular  posts  unless  term

appointees are given regular appointments of class

III & IV posts.”

5) The  appellant-Employees  Union  being  aggrieved  by  this

Award approached, by way of a Special Civil Application, the

High Court of Gujarat to the extent that the Tribunal had not

granted appointment to the workmen with effect from the date

on which they had been initially appointed and/or from the

date on which they completed probation.  By a judgment dated

26.04.2013, a learned Single Judge of the Gujarat High Court

allowed this writ petition in part stating:

“15. In view of the fact that the workmen have

already undergone the procedures of recruitment

such as examinations and interviews and have

been  working  with  the  respondent  Corporation

for  years,  their  case  deserves  to  be

considered.  However, it is pointed out that

some  of  the  employees  have  undergone  fresh

interview and were appointed on regular basis.

In that view of the matter, in order to avoid

any complication with regard to seniority and

other aspects, interest of justice would be met

by  directing  the  respondent  Corporation  to

treat  the  concerned  workmen  on  regular

employment with effect from 24.01.2005 or the

date of first reissuance of appointment order

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as  the  case  may  be,  and  accordingly  grant

notional  benefits  from  the  said  date  till

31.03.2013  and  to  pay  them  regular  pay  and

allowances  with  effect  from  01.04.2013.

Accordingly,  the  following  directions  are

issued:  

[i]  The  concerned  workmen  involved  in  these

cases  are  not  required  to  undergo  any  more

recruitment examinations since they have been

appointed after following necessary procedure

and  are  working  with  the  corporation  since

then.

[ii] The respondent Corporation shall treat the

concerned  workmen  on  regular  employment  with

effect from 24.01.2005 or the date of first

reissuance of appointment order as the case may

be.

[iii]  Accordingly  the  respondent  Corporation

shall grant notional benefits to the concerned

workmen from the said date till 31.03.2013 and

shall pay them regular pay and allowances with

effect from 01.04.2013.

[iv]  The  direction  of  the  Tribunal  not  to

import  recruitment  from  open  market  inviting

fresh applications for the regular posts unless

term appointees are given regular appointments

of Class III and IV posts is quashed and set

aside.

[v]  It  shall  be  open  to  the  respondent

Corporation to initiate action for recruitment

for  remaining  vacancies,  if  any,  after

absorption  of  concerned  workmen  from  open

market.

[vi] In case the regular salary is being paid

to  the  concerned  workmen  pursuant  to  the

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interim  order  of  this  Court,  no  recovery

thereof shall be effected by the Corporation.

16.  The award of the Labour Court is modified

accordingly.   Special  Civil  Applications  No.

2248 of 2012 and No. 2813 of 2012 are partly

allowed.   Rule  is  made  absolute  to  the

aforesaid extent with no order as to costs.

Special Civil Application No. 16777 of 2012 is

dismissed.  Rule is discharged with no order as

to  costs.   In  view  of  the  order  passed  in

Special Civil Application No. 2248 & 2813 of

2012, no orders are required to be passed in

Civil Application No. 14144 of 2012 and the

same is accordingly disposed of.”

6) Two Letters Patent Appeals from this judgment that were

filed were both dismissed, one by the Workers Union, and one

by the ONGC by the impugned judgment dated 29.04.2015.  What

was held by the judgments of the learned Single Judge and the

Division Bench is that at the highest the initial appointment

of the members of the appellant-Union could be termed to be

irregular  but  not  illegal.  The  ONGC  appealed  from  the

Division Bench judgment dated 29.04.2015, which was dismissed

by this Court’s order dated 17.08.2015 stating as follows:

“Taking  into  consideration  the  peculiar

facts  and  circumstances  of  these  special

leave  petitions,  we  are  not  inclined  to

interfere  with  the  impugned  judgment  and

order passed by the High Court of Gujarat.

Accordingly,  the  special  leave  petitions

are dismissed.”

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The limited question that arises before us today is on what

date  to  treat  the  concerned  workmen  to  be  on  regular

appointment.  

7) Mr. K.V. Viswanathan, learned Senior Advocate appearing

on behalf of the appellant-Union has taken us through the

record  and  has  stated  that  his  clients  ought  to  be

regularized  from  the  date  of  the  initial

appointment/completion  of  probation  and  that  the  learned

Single Judge in confining relief only from 24.01.2005 or the

date of first reissuance of the appointment order as the case

may be and granting notional instead of actual benefits from

the said date is wholly incorrect and ought to be set aside

by this Court.  

8) Mr.  K.M.  Nataraj,  learned  Additional  Solicitor  General

appearing for the respondent, on the other hand, points that

that  what  has  been  done  by  the  learned  Single  Judge  is

absolutely correct in law inasmuch as regularization has been

given  but  cannot  be  given  on  actuals  retrospectively.

Hence, the date of 24.01.2005 which is the last date on which

the four year term comes to an end is a date which is just

and could well have been given.  Regular pay and allowances,

therefore, as was correctly given to the employees union from

01.04.2013  (that  is  the  date  of  the  month  in  which  the

learned Single Judge decided the Special Civil Application)

was  also  something  well  within  the  jurisdiction  of  the

learned Single Judge in exercising powers under Article 226

and 227 of the Constitution of India.

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9) Mr. K.V. Viswanathan has strongly relied upon  Oil and

Natural Gas Corporation Limited vs.  Petroleum Coal Labour

Union and Others, (2015) 6 SCC 494, which, according to the

learned senior advocate applies clearly to the facts of this

case, this Court having granted regularization to similarly

placed  employees  from  the  date  of  their  entitlement  i.e.

after completion of 240 days of service in a calendar year in

the Corporation as was provided in the Certified Standing

Orders that were relied upon in that case.  

10) On  the  other  hand,  Mr.  K.M.  Nataraj,  learned  ASG  has

pointed out that this judgment is distinguishable on facts in

that the Award passed by the Industrial Tribunal in that case

itself  directed  the  appellant-Corporation  to  regularize

services of the workmen concerned with effect from the date

on  which  they  completed  480  days.   Also,  since  this  was

expressly provided for in the Certified Standing Orders of

the Corporation, the case is completely distinguishable.  We

have  also  been  informed  that  this  judgment  is  pending

consideration of a larger Bench by a reference order dated

07.02.2020.

11) The  learned  ASG  appears  to  be  correct  in  that  the

judgment reported in Oil and Natural Gas Corporation Limited

(supra), in any case, does not lay down any law with respect

to the entitlement of the workers to regularization in that

case.  It was a case which depended entirely on its own facts

and was dependent upon a reading of Certified Standing Orders

of the Corporation in this behalf.  The question of law that

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was decided by this judgment has no bearing whatsoever on the

issue that is before us.

12) The Learned ASG then cited Surendra Kumar and Others vs.

Greater  Noida  Industrial  Development  Authority  and  Others

(2015)  14  SCC  382,  which,  on  facts,  concerned  a  policy

decision  to  regularize  the  services  of  27  contractual

employees of the respondent taken in 2003 which was approved

by the Government in 2008, the appellants being appointed

only on 06.08.2010.  On the facts of that case, it was held

that when vacancies were initially advertised the appellants

had no substantive right against the notified vacancies and

applying the principles contained in State of Karnataka vs.

Umadevi (2006) 4 SCC 1, this Court stated that the appellants

cannot  seek  regularization  with  retrospective  effect  from

2002 as the regularization policy itself was not in vogue at

that time.  This judgment again is far removed from the facts

of this case and is wholly distinguishable in that in the

present case the only irregularity in the appointment was the

lack of a public advertisement apart from which each and

every other condition for employment is met.

13) The learned ASG then cited Divisional Manager, A.P. SRTC

and Others vs. P. Lakshmoji Rao and Others, (2004) 2 SC 433

and, in particular, relied upon para 16 of the said judgment

which reads as follows:-

“16. In the light of the above discussion, we

are of the view that the law laid down or the

directions given in various writ petitions/writ

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appeals are not legally sustainable for more

than  one  reason.   Firstly,  wrong  criterion

based on Section 25-B of the ID Act was applied

in case after case.  Secondly, the respondents

and  other  similarly  situated  employees

approached  the  Court  under  Article  226  long

after their regularization, thereby unsettling

the settled position.  Thirdly, on the facts of

these cases, it is evident that the services of

the employees who were recruited as conductors

were regularized within a reasonable time.  The

respondent  employees  were  therefore  treated

fairly.  No service rule or regulation or any

other principle of law has been pressed into

service  by  the  respondents  to  claim

regularization from an anterior date i.e. right

from the date of their initial appointment as

daily-wage employees.”

On a perusal of para 16, it is clear that that case turned

upon the mis-application of Section 25-B of the Industrial

Disputes  Act  in  case  after  case.   Secondly,  it  was  also

mentioned that the respondents and other similarly situated

employees  approached  the  Court  long  after  regularization

thereby  unsettling  the  settled  position  and,  (presumably)

affecting the rights of other employees as well.  Thirdly, on

facts it was also found that the persons who are recruited as

conductors were regularized within a reasonable time.  Based

on these three factors it was finally held that it would be

unjust on the facts of that case to grant regularization from

an anterior date i.e. from the date of initial appointment as

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daily-wage employees.

14) On facts in the present case, what is clear is that as

soon  as  the  four  year  period  got  over,  the  employees

collectively  through  their  Union  approached  the  Central

Government  and  the  Central  Government  in  exercise  of  its

powers  under  the  Industrial  Disputes  Act  referred  an

industrial dispute immediately on 21.12.2004.  This dispute

was ultimately answered by the Central Government Industrial

Tribunal many years later only on 08.11.2011.  On the facts of

this case, therefore, we are of the view that the Corporation

must treat the concerned workmen which includes 111 out of

these 577 employees who have been regularized earlier to be in

regular  employment  on  and  from  the  date  on  which  the

industrial  dispute  was  referred  i.e.  21.12.2004  and

accordingly grant all actual benefits from the said date till

01.04.2013.  The other directions that have been given by the

learned  Single  Judge  will  remain  intact.   The  appeal  is

allowed in the aforesaid terms.

   .......................... J.

       (ROHINTON FALI NARIMAN)

                     .......................... J.   (S. RAVINDRA BHAT)

                     .......................... J.   (V. RAMASUBRAMANIAN)

New Delhi; February 13, 2020.