# ONGCLTD v. PETROLEUM COAL LABOUR UNION & ORS

- **Citation:** [2015] 5 S.C.R. 474
- **Court:** Supreme Court of India
- **Decided:** 2015
- **Case number:** Civil Appeal No. 3727 of 2015
- **Bench:** V. Gopala Gowdaand C. Nagappan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ongcltd-v-petroleum-coal-labour-union-ors-30842
- **Pages:** 51

## Headnote

Industrial Disputes Act, 1947 - Regularisation- Claim for
- Appointment of workmen by Corporation initially through
contractors, subsequently, through Co-operative Society -
Thereafter, policy decision by the Corporation to entrust security
D work to Cl SF to protect their installations - During pendency of
the sanction from Central Government of the policy decision,
Corporation issuing memorandum of appointment directly to each
one of the concerned workmen on term basis and thereafter,
employed continuously without written orders by the Corporation
E - Workmen claiming regularization of services in the Corporation
- Award passed by the tribunal directing the Corporation to
regularize the services of the workmen since they had completed
480 days of work as required - Said award upheld by the High
Court- On appeal, held: Order passed by the High Court is legal
F and valid - Policy decision is neither valid nor applicable- Certified
Standing Order of Corporation apply to the workmen and overrides
the policy decision - Workmen have acquired their right to be
regularised as per the Act as well as the provision of cl 2(ii) of the
G 'Certified Standing Orders since they have rendered more than
240 days of service in a calendar year from the date of the
memorandum of appointment issued- It would be unjust and unfair
to deny them regularisation in their posts for the error committed
by the Corporation in the procedure to appoint them in the postsH Their appointment in their posts and continuing them in their
474
0.N.GC. v. PETROLEUM COAL LABOUR UNION
475
services definitely cannot be termed as illegal, at best it can be A
called irregular- Even though plea is not taken regarding unfair
labour practice being committed by the Corporation, the Labour
Court/High Court have got the power to record the finding of fact
to ensure that there shall be effective adjudication of the industrial
dispute- Thus, the Corporation to regularize the services of the
B
workmen and pay their back wages and other benefits- Certified
Standing Orders for Contingent Employees of the Oil and Natural
Gas Commission.
Dismissing the appeal, the Court
c
HELD: 1.1 The tribunal rightly adjudicated the P.oint
as regards jurisdiction of the tribunal to direct the
Corporation to regularize the services of the con.cerned
workmen in the posts, on the basis of the facts, D
circumstances and evidence on record and passed an award
directing the Corporation that the services of the concerned
workmen should be regularized. The submission that the
tribunal has no power to pass such an award compelling the
Corporation to regularise the services of the concerned E
workmen is wholly untenable in law. [Para 26] [495-C-E]
1.2 The plea of the Corporation t.hat the reason for
not regularising the concerned workmen under the Certified
Standing Orders of the Corporation is allegedly due to the. F
fact that the appointment of the concerned workmen was
made without following due procedure under the
Recruitment Rules and that their appointments were illegal,
cannot be accepted since the Corporation cannot deny the G
rights of the workmen by taking the plea that their initial
appointment was contrary to Articles 14 and 16 of the
Constitution. Though due procedure was not followed by
the Corporation for the appointment of the concerned
workmen, this does not disentitle them of their right to seek H
476
SUPREME COURT REPORTS
(2015] 5 S.C.R.
A regularisation of their services by the Corporation under the
provisions of the Certified Standing Orders, after they have
rendered more than 240 days of service in a calendar year
from the date of the memorandum of appointment issued to
each one of the concerned workmen in the year 1988. The
B alleged "policy decision" to appoint CISF personnel to the
security post is on deputation basis and cannot be called
appointment per se. Whereas, the concerned workmen have
acquired their right to be regularised under the provision of
C Clause 2(ii) of the 'Certif

## Text

_Characters 0–39,824 of 94,070. This is a partial read: ask again with offset=39824 for what follows._

A
B
c
[2015] 5 S.C.R. 474
ONGCLTD.
V.
PETROLEUM COAL LABOUR UNION & ORS.
(Civil Appeal No. 3727 of 2015)
APRIL 17,2015
[V. GOPALA GOWDAAND C. NAGAPPAN, JJ.]
Industrial Disputes Act, 1947 - Regularisation- Claim for
- Appointment of workmen by Corporation initially through
contractors, subsequently, through Co-operative Society -
Thereafter, policy decision by the Corporation to entrust security
D work to Cl SF to protect their installations - During pendency of
the sanction from Central Government of the policy decision,
Corporation issuing memorandum of appointment directly to each
one of the concerned workmen on term basis and thereafter,
employed continuously without written orders by the Corporation
E - Workmen claiming regularization of services in the Corporation
- Award passed by the tribunal directing the Corporation to
regularize the services of the workmen since they had completed
480 days of work as required - Said award upheld by the High
Court- On appeal, held: Order passed by the High Court is legal
F and valid - Policy decision is neither valid nor applicable- Certified
Standing Order of Corporation apply to the workmen and overrides
the policy decision - Workmen have acquired their right to be
regularised as per the Act as well as the provision of cl 2(ii) of the
G 'Certified Standing Orders since they have rendered more than
240 days of service in a calendar year from the date of the
memorandum of appointment issued- It would be unjust and unfair
to deny them regularisation in their posts for the error committed
by the Corporation in the procedure to appoint them in the postsH Their appointment in their posts and continuing them in their
474
0.N.GC. v. PETROLEUM COAL LABOUR UNION
475
services definitely cannot be termed as illegal, at best it can be A
called irregular- Even though plea is not taken regarding unfair
labour practice being committed by the Corporation, the Labour
Court/High Court have got the power to record the finding of fact
to ensure that there shall be effective adjudication of the industrial
dispute- Thus, the Corporation to regularize the services of the
B
workmen and pay their back wages and other benefits- Certified
Standing Orders for Contingent Employees of the Oil and Natural
Gas Commission.
Dismissing the appeal, the Court
c
HELD: 1.1 The tribunal rightly adjudicated the P.oint
as regards jurisdiction of the tribunal to direct the
Corporation to regularize the services of the con.cerned
workmen in the posts, on the basis of the facts, D
circumstances and evidence on record and passed an award
directing the Corporation that the services of the concerned
workmen should be regularized. The submission that the
tribunal has no power to pass such an award compelling the
Corporation to regularise the services of the concerned E
workmen is wholly untenable in law. [Para 26] [495-C-E]
1.2 The plea of the Corporation t.hat the reason for
not regularising the concerned workmen under the Certified
Standing Orders of the Corporation is allegedly due to the. F
fact that the appointment of the concerned workmen was
made without following due procedure under the
Recruitment Rules and that their appointments were illegal,
cannot be accepted since the Corporation cannot deny the G
rights of the workmen by taking the plea that their initial
appointment was contrary to Articles 14 and 16 of the
Constitution. Though due procedure was not followed by
the Corporation for the appointment of the concerned
workmen, this does not disentitle them of their right to seek H
476
SUPREME COURT REPORTS
(2015] 5 S.C.R.
A regularisation of their services by the Corporation under the
provisions of the Certified Standing Orders, after they have
rendered more than 240 days of service in a calendar year
from the date of the memorandum of appointment issued to
each one of the concerned workmen in the year 1988. The
B alleged "policy decision" to appoint CISF personnel to the
security post is on deputation basis and cannot be called
appointment per se. Whereas, the concerned workmen have
acquired their right to be regularised under the provision of
C Clause 2(ii) of the 'Certified Standing Orders for Contingent
Employees of the Oil and Natural Gas Commission'. [Para
28, 29) [503-A-C, E-H]
D
Ajaypa/ Singh v. Haryana Warehousing Corporation 2014
(13) SCALE 636 - relied on.
1.3 For the Corporation to implement a provision which
affects the service conditions of its employees, it is
necessary f9r1fle ~oration to first modify the Certified
Standing Orders by following the procedure provided under
E Section 10 of the Industrial Employment (Standing Orders)
Act, 1946 as the same is a Special enactment and therefore,
prevails over the provisions under the ONGC Act and
Recruitment Rules. The Corporation undisputedly has not
F made any such modification to its Certified Standing Orders
by following the procedure for modification of conditions of
service as per Section 10 of the Industrial Employment
(Standing Orders) Act, 1946. The alleged policy decision
taken to induct the CISG for the purpose of providing security
G to its project by the Corporation under Section 30A of the
ONGC Act does not prevail over the Standing Orders Act
framed under the Industrial Employment (Standing Orders)
Act, 1946, which is the Special Enactment. Therefore, the
alleged "policy decision" taken by the Corporation is neither
H valid in law nor applicable in the case on hand. [Para 32, 33)
[505-E-G; 510-D-E]
O.N.GC. v. PETROLEUMCOALLABOURUNION
477
1.4 The sanction letter by the Central Government is A
• for the creation of temporary posts for the security coverage
of ONGC installation and not to depute CISF specifically into
security posts in the Corporation, therefore, the reliance
placed on the same is misplaced as the same is wholly
untenable in law as the same is not reflected in the sanction B
letter. Further, the stated guidelines cannot be considered
to be the policy of the Central Government as it is not framed
in accordance with the relevant 'Business Transaction Rules'
of the Central Government. [Para 36] [515-D-G]
c
1.5 The Standing Orders of the Corporation certainly
apply to the concerned workmen as they have been rendering
their services in the Corporation even prior to the year 1985,
being appointed through contractors, the Co-operative D
Society and directly thereafter vide memorandum of
appointment in the year 1988 by issuing appointment orders
on different dates during that year on the condition that the
Certified Standing Orders of the ONGC will not be applicable
to them. Such a condition incorporated In the appointment E
orders issued to the concerned workmen is not valid in law
and the same is void for the reason that they are workmen
for the purpose of the Certified Standing Qrders and
therefore, the said condition has to be ignored. When the
concerned workmen were appointed by issuing the F
memorandum of appointment to work in the posts of the
Corporation, providing them with monthly salaries, it cannot
arbitrarily and unilaterally state that the Certified Standing
Orders of the Corporation are not applicable to the
concerned workmen. The concerned workmen cannot be G
denied their legitimate, statutory and fundamental right to
be regularised in their posts as provided under Clause 2 (ii)
of the Certified Standing Orders. It would be unjust and
unfair to deny them regularisation in their posts for the error H
478
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A committed by the Corporation in the procedure to appoint
them in the posts. Further, the Corporation cannot use the
alleged "policy decision" as a veil to justify its action which
includes inaction on its part in not regularising the concerned
workmen in their services under cl 2(ii) of the Certified
B Standing Orders. [Para 38] [517-C-H; 518-A-E]
1.6 The procedure of appointments adopted by the
Corporation with respect to the concerned workmen initially
appointed through contractors, subsequently through the
C Co-operative Society, and then vide memorandum of
appointment issued to each one of the concerned workmen
in the year 1988 and thereafter, continuing them in their
services in the posts by the Corporation without following
0
any procedure which 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
E services is definitely cannot be termed as illegal, at best it
cari be called irregular. Therefore, the Certified Standing
Orders of the Corporation by all means apply to the
concerrn~d workmen. The submission of the Corporation that
the statutory right claimed by the concerned workmen under
F Clause 2(ii) of the Certified Standing Orders of the
Corporation for regularizing them in their posts as regular
employees after rendering 240 days of service in a calendar
is not an absolute right conferred upon them and their right
is only to consider their claim, cannot be accepted since the
G Corporation is bound by law to take its decision to regularise
the services of the concerned workmen as regular
employees as provided under Clause 2(ii) of the Certified
Standing Orders after thair completion of 240 days of service
H in a calendar year as they have acquired valid statutory right.
This should have been positively considered by the
O.N.G.C. v. PETROLEUM COAL LABOUR UNION
479
Corporation and granted the status of regular employees of A
the Corporation for the reason that it cannot act arbitrarily
and unreasonably deny the same especially it being a
Corporate Body owned by the Central Government and an
instrumentality of the State in terms of Article 12 of the
Constitution and therefore, it is governed by Part Ill of the B
Constitution. The Corporation should exercise its power
fairly and reasonably in accordance with law. Therefore, the
concerned workmen have approached the tribunal by raising
an industrial dispute regarding the regularisation of their C
services in the Corporation. The same has been properly
adjudicated by the tribunal based on pleadings, evidence
on record and in accordance with law. Further, all of the
concerned workmen barring just one of the concerned
workmen have all the qualifications required to be o
regularised in the permanent posts of the Corporation as
regular employees. [Para 39, 40][518-F-H; 520-G-H; 521-C-D]
1. 7 The submission that in the absence of any plea
taken by the workmen in their claim statement regarding E
unfair labour practice being committed by the Corporation
against the concerned workmen, the Single Judge and the
Division Bench ought not to have entertained the said plea
since such plea must be pleaded and established by a party
who relies before the tribunal, is wholly untenable in law. F
The workmen have been appointed on term basis vide
memorandum of appointment issued to each .one of the
concerned workmen in the year 1988 by the Corporation who
continued their services. for several years. There.after, they
were denied their legitimate right to be regularised in the G
permanent posts of the Corporation. The said fact was duly
noted by the High Court and held on the basis of facts and
evidence on record that the same attracts entry Item No.10
of Schedule V of the Act, in employing the concerned H
workmen as temporary employees against permanent posts
480
SUPREME COURT REPORTS
(2015] 5 S.C.R.
A who have been doing perennial nature of work and continuing
them as such for number of years. The same is affirmed as it
is a clear case of an unfair labour practice on the part of the
Corporation as defined under Section 2(ra) of the Act, which
is statutorily prohibited under Section 25T of the Act and the
B said action of the Corporation warrants penalty to be imposed
upon it under Section 25U of the Act. In fact, the said finding
of fact has been recorded by both the Single Judge and the
Division Bench of the High Court in the impugned judgment
C on the ground urged on behalf of the Corporation. Even if,
this Court eschews the said finding and reason recorded in
the impugned judgment accepting the hyper technical plea
urged on behalf of the Corporation that there is no plea of
unfair labour practice made in the claim statement, this Court
o in this appeal cannot interfere with the award of the Tribunal
and the impugned judgment and order of the High Court for
the other reasons assigned by them for granting relief to
the concerned workmen. Even in the absence of plea of an
act of unfair labour practice committed by the Corporation
E against the concerned workmen, the Labour Court/High
Court have got the power to record the finding of fact on
the basis of the record of the conciliation officer to ensure
that there shall be effective adjudication of the industrial
dispute to achieve industrial peace and harmony in the
F industry in the larger interest of public, which is the prime
object and intendment of the Industrial Disputes Act. In the
instant case, the commission of an unfair labour practice in
relation to the concerned workmen by the Corporation is
G ex-facie clear from the facts pleaded by both the parties and
therefore, the courts have the power to adjudicate the same
effectively to resolve the dispute between the parties even
in the absence of plea with regard to such an aspect of the
case. [Para 41) [521-E-H; 522-A-H; 523-A-B]
H
O.N.G.C. v. PETROLEUM COAL LABOUR UNION
481
1.8 The judgments and orders of both the Single A
Judge and Division Bench of the High Court in favour of the
concerned workmen are legal and valid. The High Court
rightly dismissed the appeal of the Corporation by affirming
the award passed by the tribunal. Since the industrial dispute
between the parties has been litigated for the last 25 years,
B
the Corporation is directed to comply with the terms and
conditions of the award passed by the Tribunal and regularise
the services of the concerned workmen in their posts and
compute the back-wages, monetary benefits and other C
consequential monetary benefits including terminal benefits
payable to the concerned workmen on the basis of the
periodical revision of pay scales applicable from the date of
their entitlement, namely, by regularizing them in their
services after their completion of 240 days of service in a D
alendar year in the Corporation; and if the Corporation fails
to om ply with the given directions, the back-wages shall be
pai to the concerned workmen with an interest at the rate
of 9° per annum. [Para 42) [523-C-H; 524-A-B)
Air India Statutory Corporation & Ors. v. United Labour Union
& Ors. 1996 (9) Suppl. SCR 579: (1997) 9 SCC 377;
Secretary, State of Karnataka & Ors. v. Uma Devi (3) &
Ors. 2006 (3) SCR 953: (2006) 4 SCC 1; Steel Authority of
India Ltd. & Ors. v. National Union Waterfront Workers &
Ors. 2001 (2) Suppl. SCR 343: (2001) 7 sec 1;
Maharashtra State Road Transport Corporation & Anr. v.
Casteribe Rajya Parivahan Karamchari Sanghatan§J (2009)
8 SCC 556; U.P. Power Corporation Ltd. & Anr. v. Bijli
Mazdoor Sangh & Ors. 2007 (5) SCR 256: (2007) 5 SCC
755; Hari Nandan Prasad & Anr. v. Employer l/R To
Management of Food Corporation of India & Anr. 2014 (2)
SCR 955: (2014)7SCC190; TheBharatBank Ltd., Delhiv.
The Employees of the Bharat Bank Ltd., Delhi & the Bharat
E
F
G
H
482
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A
Bank Employee's Union, DelhiAIR 1950SC 188: 1950 SCR
459; Life Insurance Corporation Of India v. D. J. Bahadur &
Ors. 1981 (1) SCR 1083: (1981) 1SCC315; The U.P. State
Electricity Board & Anr. v. Hari Shankar Jain & Ors. 1979
B
(2) SCR 355: (1978) 4 SCC 16; Sudhir Chandra Sarkar v.
Tata Iron and Steel Co. Ltd. & Ors.1984(3) SCR 325: (1984)
3 SCC 369; Olga Tellis & Ors. v. Bombay Municipal
Corporation and Ors. 1985 (2) Suppl. SCR 51: (1985) 3
SCC 545; Siemens Limited &Anr. v. Siemens Employees
c
Union & Anr. 2Q11 (15) SCR 1157: (2011) 9 SCC 775 -
referred to.
Case Law Reference
1996 (9) Suppl. SCR 579
Referred to
·Para 9
D 2006 (3) SCR 953
· Referred to
Para 10
2001 (2) Suppl. SCR 343
Referred to
Para 16
(2009) 8 sec 556
Referred to
Para 17
2·007 (5) SCR 256
Referred to
Para 17
E
20'14 (2} SCR 955
Referred to
Para26
1950SCR459
Referred to
Para 27
1981(1)SCR1083
Referred to
Para27
F 2014 (13) SCALE 636
Referred to
Para28
1979 (2) SCR 355
Referred to
Para32
1984 (3) SCR 325
Referred to
Para33
G 1985 (2) Suppl. SCR 51
Referred to
Para39
2011 (15) SCR 1157
Referred to
Para 41
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 3727
of2015
H
O.N.G.C. v. PETROLEUM COAL LABOUR UNION
483
Fro~ the Judgment and Order dated 11.08.2011 of the A
High Court of Judicature at Madras in Writ Appeal No. 1006 of
2011
P. P. Rao, V. N. Koura, Aruna Mathur, Paramjeet Benipal,
Yusuf Khan (ForArputh§!mAruna & Co.) for the Appellant.
B
C. U. Singh, V. N. Subramaniam, Dhaval Mehrotra, Rishi
Gautam, Satish Kumar, Santosh Krishnan, Deeptakirti Verma for
the Respondents.
The Judgment of the Court was delivered by
V. GOPALA GOWDA, J. 1. Leave granted.
c
2. The appellant-Corporation has questioned the
correctness of the judgment and order dated 11.08.2011 passed D
by the High Court of Judicature at Madras whereby the High Court
dismissed the Writ Appeal No. 1006 of 2011 filed by the appellantCorporation against the dismissal of their W.P. No. 1846 of 2000
challenging the award dated 26.05.1999 passed by the Industrial
Tribunal, Tamil Nadu, in l.D. No.66of1991, wherein it was held
E
that non-regularisation of the concerned workmen in the dispute
is not justified and directed the appellant-Corporation to regularise
the services of the concerned workmen with effect from
14.01.1990, the date on which all of them completed 480 days.
3. The relevant facts are briefly stated hereunder to
appreciate the rival legal contentions urged on behalf of the parties
in this appeal.
F
The appellant-Corporation is a Public Sector Undertaking G
of the Government of India in the name of Oil and Natural Gas
Corporation Limited (hereinafter referred to as the 'Corporation').
The Corporation has a project in the Cauveri Basin, situated in
and around Karaikal, Union Territory of Puducherry and about 1050 H
484
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A employees have been regularly employed by the Corporation for
its pro.ject. For the purpose of the Corporation's security
requirement for the project, it initially employed the concerned
workmen some of whom are members of the respondent-Union,
as security guards and security supervisors through contractors.
B However, on the notification dated 08.12.1976 issued by the
Government of India under Section 10(1) of the Contract Labour
(Abolition and Regulation) Act, 1970, abolishing contract labour
for watch and ward, dusting and cleaning jobs in the Corporation,
C the concerned workmen were employed as per the settlement
arrived at between the Trade Union and the Management of the
Corporation under Section 18(1) of the Industrial Disputes Act,
1947 (for short 'the Act'), under which it was agreed to form a Cooperative Society in the name of 'Thai Security Service
o Priyadarshini Indira Cooperative Society' (for short 'the Cooperative Society') for the welfare of such erstwhile contract
workmen. The services were utilised by the Corporation through
the Co-operative Society to meet its requirements and for the time
period for which required, thus dispensing with intermediary
E contractors.
4. On 24.11.1982 subject to sanction by the Government
of India, the Corporation passed a resolution by its policy decision
to entrust security work to the Central Industrial Security Force
F (CISF) to protect their installations. The said resolution was
sanctioned by the President of India on 16.12.1985 for creation of
posts for security coverage of the Corporation.
5. This decision of the Corporation was challenged by the
G T.lmilnadu National Industrial and Commercial Employees Union
by filing W.P. No. 9688of1987 and W.P. No. 11964of1987 was
filed by the Petroleum Industrial Casual Contract Labour Union
before the High Court of Madras on the ground of breach of
settlement arrived at under Section 18(1) of the Act and prayed for
H a consequential direction to absorb the workmen as regular
O.N.GC. v. PETROLEUM COAL LABOUR UNION
485
[V. GOPALAGOWDA, J.]
employees. The workmen obtained an interim order dated A
6.10.1987 restraining the Corporation from dispensing with the
services of the workmen. The learned single Judge of the High
Court upheld the policy decision of the Corporation even in the
absence of the copy of the policy framed by the Central
Government and dismissed the aforesaid writ petitions vide order B
dated 5.1.1988 holding that the workers were not entitled for
regularisation and rejected the contentions of the workmen in these
writ petitions.
6. On 8.9.1987, the Corporation sent a letter to the CoC
operative Society to withdraw the services of the security personnel
of the Co-operative Societyw.e.f. 19.10.1987 after handing over
charge of the Corporation Unit to CISF personnel. An order was
passed by the Director General, CISF, releasing 52 posts with D
immediate effect for induction of CISF personnel in the Corporation.
7. Thereafter, since the induction of the CISF personnel
into security posts of the Corporation was still awaiting sanction
from the Central Government, the Corporation issued
memorandum of appointment directly to each one of the concerned
E
workmen appointing them in the posts of 'Watch and Ward Security'
on term basis from 13.1.1988 to 29.2.1988 and also on the
condition that the 'Certified Standing Orders for Contingent
Employees of the Oil and Natural Gas Commission' (for short 'the
F
Certified Standing Orders') will not apply to them. The concerned
workmen were paid a monthly salary of approximately Rs.445/-
per month to security guards and Rs.675/- per month to security
supervisors. After completion of the above mentioned term, the
concerned workmen were continued by the Corporation in their G
respective posts as a stop gap measure without formal written
orders. As a result of which, the concerned workmen who were
engaged through contractors and those who were members of
the Co-operative Society became employees of the Corporation
on temporary basis.
H
486
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A
8. Thereafter, the concerned workmen raised an industrial
dispute claiming regularisation of their services in the Corporation
and on 10.10.1991, the Central Government in exercise of its power
under Section 10 of the Act, 194 7 referred the same to the Industrial
Tribunal, Chennai, Tamil Nadu (for short 'the Tribunal') to adjudicate
B the dispute on the following two questions:
c
D
"(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 l.D.
No.66of1991. On 28.04.1993, the Trade Union filed a memo stating
that question no.(ii) of the dispute had been settled out of Court
and no further adjudication was required in that regard by the
E Tribunal. The Tribunal, adjudicated the industrial dispute on question
no.(i) referred to it on the basis of facts, circumstances and
evidence on record and passed an award dated 26.05.1999,
directing the Corporation to regularise the services of the concerned
workmen by relying on the legal principles laid down by this Court
F in the case of Air India Statutory Corporation & Ors. v. United
Labour Union & Ors.1 and further held that the concerned
workmen were entitled for regularisation of their services since
they had completed 480 days of work as required under Tamil
G Nadu Industrial Establishments (Conferment of Permanent Status
toWorkmen)Act, 1981.
H
10. Aggrieved by the award passed by the Tribunal, the
Corporation challenged the same by filing W.P. No.1846 of 2000
before the learned single Judge, inter alia, contending ttiat the
1 (1997) 9 sec 377
O.N.G.C. v. PETROLEUM COAL LABOUR UNION
487
[V. GOPALAGOWDA, J.]
Tribunal has erroneously exercised its jurisdiction and passed A
an award directing the Corporation to regularise the services of
the concerned workmen. It was further contended by the
Corporation that the concerned workmen were originally engaged
through contractors, without following any procedure of selection
and appointment, therefore, their services cannot be regularised.
8
In support of this contention, reliance was placed on the decision
of this Court in the case of Secretary, State of Karnataka & Ors.
v. Uma Devi (3) & Ors. 2
11. On behalf of the concerned workmen, it was contended C
before the single Judge of the High Court that the dispute falls
within the jurisdiction of the Tribunal under the provisions of the
Act and that the Tribunal had sufficient jurisdiction to adjudicate
the dispute referred to it. It was further contended on behalf of the 0
co1. ::erned workmen that they have been working on temporary
basis from th·e year 1988 and continuing their services on
temporary basis is an unfair labour practice on the part of the
Corporation. Therefore, it was contended that the Tribunal was
right in directing the concerned workmen to be regularized and
E
that the law laid down in the case of Uma Devi (supra) had no
application to cases of industrial adjudication.
12. The learned single Judge on appreciation of the facts,
circumstances and the legal contentions urged on behalf of both
F
the parties held that the dispute between the parties regarding
non-regularisation of the concerned workmen falls within the scope
of industrial dispute as defined under Section 2(k) of the Act. It is
further held that the concerned workmen are all victims of unfair
labour practice having been employed by the Corporation for G
several years on temporary basis and even though they were not
appointed by following the procedure laid down by the Corporation
for recruitment to such posts, they were entitled for regularisation
and that their appointment cannot be stated to be illegal. With the
2 (2006) 4 sec 1
H
488
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A above findings, the writ petition was dismissed on merits by the
learned single Judge of the High Court by its judgment and order
dated 04.01.2011.
13. The said judgment and order of the learned single Judge
B was challenged by the Corporation by filing Writ Appeal No. 1006
of 2011 before the Division Bench of the High Court raising certain
questions of law. After considering the facts, circumstances and
nature of the evidence on record which was placed before the
Tribunal the same was appreciated by the learned single Judge,
C the learned Division Bench of the High Court held that the
appointment of the concerned workmen by the Corporation cannot
bE~ termed as illegal appointment, but was only an irregular
appointment and therefore, they were entitled for regularisation in
D their services having been employed on temporary basis and having
completed more than 240 days in the calendar year subsequent
to 13.1.1988. Therefore, it was held by the learned Division Bench
of the High Court that no justifiable or reasonable grounds were
found for it to interfere with the judgment and order passed by the
E learned single Judge of the High Court, The writ appeal of the
Corporation was dismissed accordingly. Hence, the Corporation
filed this appeal by framing certain substantial questions of law for
consideration of this Court.
F
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 Regulations, 1980 of the Oil and Natural Gas
G Commission. The direction contained in the award of the Tribunal
to regularise the workmen w.e.f. 1.4.1990 is contrary to the law
declared by the Constitution Bench of this Court in Secretary,
State of Karnataka v. Uma Devi (supra) having regard to the
following aspects of the case on hand:
H
O.N.G.C. v. PETROLEUM COAL LABOUR UNION
489
[V. GOPALAGOWDA, J.]
a)
The appointments of workmen were illegal not irregular,
A
as they were made without proper competition among
qualified persons
b}
The concerned workmen do not possess tile
qualifications and training required for discharging
B
duties as security guards against attacks by armed
gangs or terrorists.
c)
They were not working against sanctioned posts.
d)
The sanction obtained subsequently was only for
c
deployment of members of the CISF.
e)
The concerned workmen were, as a stop gap
arrangement, though not qualified but found physically
D
fit, were employed for a short period anticipating the
posting of CISF personnel.
t)
They were not allowed to continue voluntarily by the
management without intervention of any mandatory
E
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 LO.Act 1947 and the interim orders of the learned
single Judge and the Division Bench.
F
g)
The management cannot be compelled by judicial order
to regularise the services of unqualified and untrained
workmen as security guards for discharging duties
which only qualified and trained members of an
G
organised armed force could competently discharge.
15. Further, it has been contended by Mr. Rao that in any event,
since the workmen themselves having sought regularisation only
from 1.4.1991, the Tribunal was not at all justified in directing H
regularisation with effect from 1.4.1990 and the High Court also
490
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A erred in directing regularisation of workmen with retrospective effect
from 1.4.1990.
16. It is further contended by him that the award of the
Tribunal is unsustainable in law by placing reliance on Air India
B Statutory Corporation (supra) which has been subsequently
overruled by the Constitution Bench in Steel Authority of India
Ltd. & Ors. v. National Union Waterfront Workers & Ors. 3. In
fact, the concerned workmen were not contract labourers when
the industrial dispute was referred to the Tribunal for its adjudication.
c
17. It has been further contended by him that the courts
below have erred in holding that though the procedure
contemplated in the Certified Standing Orders of the Corporation
was not followed when the workmen were appointed on temporary
D basis they are still entitled for regularisation in their services by
the Corporation. It is further contended by the learned senior
counsel that the very appointment itself having been illegal, no
order of regularisation of the services of the concerned workmen
could be passed by the Tribunal. The Corporation would term the
E appointment of the concerned workmen as illegal appointment as
they were appointed in the said post either through a contractor or
through the Co-operative Society, without following the procedure
contemplated for selection as per the Recruitment Rules and
F appointments were given to the concerned workmen as per the
Certified Standing Orders of the Corporation. In support of the said
contention reliance was placed on the decision of this Court in the
case of Uma Devi (supra). Further, it has been contended by him
that the law declared in the case of Maharashtra State Road
G Transport Corporation & Anr. v. Casteribe Raj ya Parivahan
Karamchari Sanghatana4 was per incuriam as the same is
inconsistent with the earlier coordinate Bench decision in U.P.
3 (2001) 7 sec 1
H 4 (2009) a sec 556
O.N.G.C. v. PETROLEUM COAL LABOUR UNION
491
[V. GOPALAGOWDA, J.]
Power Corporation Ltd. & Am: v. Bijli Mazdoor Sangh & Ors. 5 A
wherein it was declared that the Tribunal cannot give relief to the
workmen which is violative of Article 14 of the Constitution of India
and the concept of regularisation explained in Uma Devi's case
(supra).
B
18. Further, it has been contended that the Certified Standing
Orders cannot prevail over Uma Devi's case or Article 14 of the
Constitution of India; therefore, the concerned workmen cannot
rely upon such orders to seek regularisation. In any case, the
Certified Standing Orders only confer the right of consideration C
and therefore, it is not a vested right for the concerned workmen
for regularisation in their services. The reliance placed on the
Certified Standing Orders by them is misconceived, hence the
award and judgments are vitiated in law and liable to be set aside 0
by allowing this appeal.
19. On the other hand, Mr. C. U. Singh, the learned senior
counsel on behalf of the concerned workmen has strongly rebutted
each one of the above contentions put forth by Mr. Rao the learned
E
senior counsel on behalf of Corporation, by erroneously placing
reliance on the right of the Corporation to implement the alleged
"policy decision" to induct the CISF personnel in the posts of the
Corporation inter a/ia contending that it is an admitted position
that this opening ground taken by the Corporation was neither F
canvassed before the learned single Judge nor the Division Bench
of the High Court. Nonetheless, it is to be noted that while raising
this ground, the Corporation has not placed on record any
document evidencing the so-called "policy decision" of the Central
Government to induct the CISF personnel in the posts of the G
Corporation.
20. Mr. Santosh Krishnan, the learned counsel also
appearing for the concerned workmen has contended that a "policy
s (2001) s sec 755
H
492
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A decision" cannot alter the Certified Standing Orders of the
Corporation except in terms of Section 10 of the Standing Orders
Act, 1946. Further, it is urged by him that the only relevant document
on record is the letter dated 8.9.1987, which states that the "policy
decision" is of the Central Government and not of the Corporation.
B However, the Corporation did not even amend its Recruitment
Rules or Certified Standing Orders to implement this "policy
decision" only to.recruit the CISF personnel for Watch and Ward
SeNices posts of the Corporation. This has been further affirmed
C by the Tribunal in its findings of fact that the said defence of the
Corporation is only a ruse. The Tribunal has held while answering
the question referred to it in the order of reference that the "policy
decision" taken by the Corporation is a misnomer as the
Corporation may be controlled by the Central Government,
o however, by no means does it enjoy the power or the privilege to
make any policy decisions as understood by the courts below.
Merely by characterising an act or omission as a "policy decision"
does not absolve the Corporation from acting in accordance with
law and regularise the services of the concerned workmen as
E regular workmen as per Clause 2(ii) of the Certified Standing
, Orders of the Corporation.
21. Further, on the contention of the Corporation that the
Judgment and order dated 5.1.1988 in W.P. Nos. 9688 of 1987
F and 11964 of 1987 forecloses the rights of the concerned
workmen, it is rebutted by the learned senior counsel on behalf of
the concerned workmen that the said ground was not canvassed
either before the learned single Judge or the Division Bench of the
High Court. A perusal of judgment and order would reveal that
G none of the concerned workmen, specifically the answering
respondents were party to the aforesaid proceedings and the
Corporation itself claimed that only "some of the respondent
workmen had filed WP No. 9688of1987 for absorption". Further,
H it is urged by him that assuming without conceding that judgment
O.N.G.C. v. PETROLEUM COAL LABOUR UNION
493
[V. GOPALA GOWDA, J.]
and order dated 5.1.1988 in W.P. Nos. 9688of1987 and 11964 of A
1987 related to regularisation of the concerned workmen, a crucial
fact separates those proceedings from the present proceedings
as the Corporation on 13.1.1988 admittedly ordered in favour of
the workmen by appointing them on "term basis". As a result of
such appointment orders issued in favour of each one of the
B
concerned workmen, they became employees of the Corporation
albeit on "term basis", therefore, the industrial dispute raised by
the concerned workmen acquired different rights than the challenge
in W.P. 9688 and 11964of1987. It is further urged thatthe above C
submission can also be seen in the light of the Certified Standing
Orders of the Corporation, wherein the employees such as the
concerned workmen can claim regularisation once they fulfil 240
days of continuous service in twelve calendar months and possess
minimum qualification. The concerned workmen were found to o
have completed 240 days of work in a calendar year subsequent
to 13.1.1988, therefore, the judgment and order dated 5.1.1988 in
W.P. Nos. 9688 of 1987 and 11964 of 1987 do not bear any
relevance to this litigation as the legal status of the parties stood
modified subsequent to the said judgment. Further, the judgment E
rendered by the High Court in W. P. Nos. 9688of1987 and 11964
of 1987 without the policy decisions of the Central Government
being produced and examined in those proceedings, any
observation made in that regard is wholly untenable in law.
F
22. Further, it is contended by the learned counsel for the
concerned workmen that the Corporation cannot disclaim the
legality of its own Certified Standing Orders by stating that it cannot
prevail over Uma Devi's case (supra) or Article 14 of the
Constitution and that the Standing Orders only confer the right of G
consideration and not a vested right for regularisation. It is
contended by him that for the last 24 years, the Corporation has
not considered and in any case will not consider the concerned
workmen for regularisation to the post of the Corporation if the H
494
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A same is left to their own discretion. Further, it is urged by him that
failure to honour the Standing Orders for so many years is what
constitutes "unfair trade practice" on the part of the Corporation in
the present case.
B
23. Rebutting the contention urged on behalf of the
Corporation that the concerned workmen are not qualified to be
regularized, it has been contended by the learned senior counsel
for the concerned workmen that the Tribunal has noted that the
concerned workmen are far more qualified than the existing
C security personnel of the Corporation and that they are qualified to
be appointed as security guards and supervisors, except one of
them. The learned counsel on behalf of the concerned workmen
contended that the Recruitment Rules are not amended
0
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
E voluntarily appointed by the Corporation initially on term basis. It is
by virtue of Section 33 of the Industrial Disputes Act that the
Corporation is prevented from terminating the employment of the
concerned workmen during the pendency of the industrial dispute.
F The decision of the Tribunal was rendered on 26.05.1999 and
during the period 1990-1999, the concerned workmen did not enjoy
any litigious employment but were beneficiaries of a statutorily
mandated protection and the Corporation has the right under
Section 33(i)(a) of the Act to seek permission from the conciliation
G officer/Tribunal to remove them from their services but that has
not been done by it.