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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. NOS. 11 AND 12 OF 2009
IN
CIVIL APPEAL NO.6607 OF 2005
O.N.G.C. Ltd. ... Appellants
Vs.
Engineering Mazdoor Sangh ... Respondent
O R D E R
ALTAMAS KABIR, J.
1. The Oil and Natural Gas Corporation Ltd.,
(hereinafter referred to as `the O.N.G.C.’) is a
public sector undertaking which carries out geological
and geophysical surveys for the exploration of
petroleum. Such work is seasonal and is confined to
the period between November each year and the months
of April or May of the following year. Every year, at
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the commencement of the new season, the O.N.G.C.
starts recruiting casual/contingent/temporary workmen
for specified periods and their services are
terminated at the end of the field season. Having
regard to the nature of the work involved, such
practice is said to have been in existence from 1956
when the O.N.G.C. was incorporated.
2. With the increase in the workforce over the years,
the aforesaid practice came to be questioned by the
Engineering Mazdoor Sangh, the respondent herein, on
behalf of its members who had been employed as such
casual/contingent or temporary workmen and an
industrial dispute was raised in the form of a demand
for regularization of such workmen. The dispute was
ultimately referred by the Government of India to the
Industrial Tribunal (Central) at Vadodara by way of
Reference (ITC) No.6 of 1991 to decide whether the
demand of the Respondent-Sangh for regularisation of
such employees and for other consequential benefits,
was justified and if the answer to the said question
was yes, to what relief would the workmen be
entitled.
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3. The aforesaid Reference was answered in favour of
the workmen though the Tribunal made it clear that the
Reference was to be restricted to those workmen whose
names appeared in the Schedule to the affidavit filed
by the O.N.G.C. The Tribunal directed the O.N.G.C. to
consider the names of those workmen in the same
descending order in which they were mentioned in the
Schedule as and when vacancies occurred and to
regularize them provided they satisfied the prescribed
educational qualifications and had also put in 240
days of work in a year. The O.N.G.C. was also
directed to give such workmen who were eligible, age
relaxation of one year for every completed 240 days of
work in a year.
4. The aforesaid order of the Tribunal was challenged
by the Respondent-Sangh before the Gujarat High Court
in Special Civil Application No.12850 of 1994. The
learned Single Judge hearing the matter observed that
though regularization could not be effected in the
absence of permanent posts, the availability of
permanent posts is a fortuitous circumstance and
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consequential confirmation is, therefore, uncertain,
but that there was no bar against treating a person to
be regular even if a permanent post was not available.
The learned Single Judge accordingly modified the
order of the Tribunal and directed the respondents to
treat the employees who were covered by Standing Order
2(ii) as regular employees.
5. The matter was taken by the O.N.G.C. to the
Division Bench in Letters Patent Appeal No.729 of
1999. During the pendency of the Appeal, the
Respondent-Sangh gave-up its claim with regard to the
first direction given by the learned Single Judge and
only pressed for implementation of the second
direction. Similarly, the O.N.G.C. gave up its
challenge in respect of the third direction.
Accordingly, the controversy in the appeal was
restricted to the challenge in respect of the second
direction only. While granting such relief to the
parties to the appeal, the Division Bench also
directed that the workmen concerned should be
notionally treated as regularized with effect from
1.5.1999. It was clarified that the directions given
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would apply to the surviving employees within the 189
employees who had been accepted as having acquired
temporary status and whose employment had been saved
by the order dated 30.5.1999 in Complaint (ITC) No.5
of 1993.
6. When the matter was brought to this Court by the
O.N.G.C., this Court restored the order of the
Tribunal whereby the 153 workmen identified to be
eligible for regularization were to be treated at par
with the regular employees and their services were to
be treated as having been notionally regularized from
1.5.1999. While disposing of the appeal on 20.11.2006,
this Court injuncted the respondents from making any
recruitment from outside till such time as the 153
workmen were absorbed against regular vacancies in
the concerned category. A further direction was given
that even in matters of seasonal employment, the said
153 workmen or those who remained after regularization
from time to time, were to be considered first for
employment before any other workmen were engaged for
the same type of work in the field. This Court also
directed the O.N.G.C. to make a serious attempt to
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regularize the services of the workmen concerned in
terms of the order passed by the Tribunal as quickly
as possible, but preferably within a period of two
years from the date of the order.
7. While the aforesaid judgment was delivered on
20.11.2006, it was only on 23.2.2009 that I.A. No.11
of 2009 was filed and I.A. No.12 of 2009 was,
thereafter, filed on 9.4.2009 in Civil Appeal No.6607
of 2005. While I.A. No.11 of 2009 has been filed for
a modification of the order passed by this Court on
20.11.2006 in Civil Appeal No.6607 of 2005, I.A. No.12
of 2009 has been filed by the Respondent-Sangh, inter
alia, for suitable directions to be issued to the
O.N.G.C. to absorb all the remaining workmen on the
completion of two years, as directed by this Court in
its judgment dated 20.11.2006.
8. When the applications were taken up for
consideration, Mr. Raju Ramachandran, learned Senior
Advocate, who appeared for the O.N.G.C., submitted
that while implementing the aforesaid directions given
by this Court, the O.N.G.C. was faced with an
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industrial dispute from candidates who were also
waiting for appointment from the compassionate
appointment category. Mr. Ramachandran submitted
that no person from the said category could be
appointed over the last 9 years having regard to the
pendency of the proceedings before the Court and that
apart from the 153 workmen, who were before the Court,
the Court should also allow O.N.G.C. to make
appointments from the compassionate appointment
category.
9. Mr. Ramachandran also urged that, in fact, 138
workmen were admittedly covered by the Award of the
Industrial Tribunal. In order to implement the Award,
as also the judgment of this Court, the said 138
workmen were invited by the O.N.G.C. to attend the
selection process strictly in accordance with the
directions issued by this Court. Mr. Ramachandran
submitted that 137 workmen attended the selection
process and only 77 of the said workmen were found
qualified and eligible for being empanelled for jobs
in different categories. Learned counsel urged that
60 workmen were found to be unfit for regular
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employment. He also submitted that out of the 77
workmen found to be eligible, 58 workmen had been
given appointment while 19 workmen were kept on a
panel and were still left to be absorbed against
regular vacancies. He urged that having regard to
the complexity of the matter, serious thought had been
given as to how the controversy could be resolved.
Mr. Ramachandran submitted that one of the proposed
methods to resolve the issue was to offer a
settlement package to the 19 workmen, who were yet to
be absorbed against regular vacancies, in lieu of
absorption, and to permit appointment of dependents of
deceased employees on compassionate grounds. The
compensation package is as follows :-
“COMPENSATION PACKAGE
1. Amount equivalent to two month’s wages for
each completed year of service in ONGC or
amount equivalent to wages of left over
period upto 60 years of age, whichever is
less.
2. Provident Fund.
3. Amount of wages for balance period of leave
at credit.”
10. Mr. Ramchandran submitted that on account of the
ban imposed by this Court on recruitment before the
153 employees could be absorbed, no fresh appointments
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could be given in the category of compassionate
appointment, which has created growing resentment
among other categories of workmen who were waiting for
appointment in similar posts.
11. The relief prayed for by the O.N.G.C. for leave
to offer the compensation package in lieu of
appointment was opposed on behalf of the said workmen,
as also the prayer made for leave to appoint persons
from the compassionate appointment category without
absorbing all the workmen, who were yet to be
absorbed.
12. Mr. Ranjit Kumar, learned Senior Advocate,
appearing for the Sangh, submitted that the order
passed by this Court on 20.11.2006, and subsequently
clarified on 8.2.2008 was very clear and unambiguous.
Learned counsel submitted that the rights of the 153
workmen identified before the Tribunal had
crystallized in the order of the Tribunal, which was
subsequently upheld by this Court and till such time
as they were absorbed, no fresh appointments could be
given from any other category, notwithstanding the
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fact that there were other candidates waiting to be
appointed on compassionate grounds. Mr. Ranjit Kumar
also submitted that as far as Mr. Ramchandran’s
contention that 60 workmen were found to be ineligible
for appointment, the same could not be accepted
having regard to the fact that the Award of the
Tribunal and the order passed by this Court clearly
indicated that the Reference was to be restricted to
the workmen, whose names appeared in the schedule to
the affidavit, which was ultimately identified as far
as 153 workmen are concerned. Mr. Ranjit Kumar
pointed out that ONGC was directed that as and when
vacancies to the regular posts arose, they would be
required to consider the names of those workmen in the
same descending order in which they were mentioned in
the schedule and that they would be regularized
provided they satisfied the specific prescribed
educational qualifications. It was also indicated
that for each 240 days work in a year put in by each
workmen, ONGC would give such workmen, age relaxation
of one year. Mr. Ranjit Kumar submitted that on
account of the ban imposed by this Court on
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recruitment before the 153 employees were absorbed, no
fresh appointments could be given in the category of
compassionate appointment, which has created growing
resentment amongst other categories of workmen, who
were also waiting for appointment for similar posts.
13. The relief brought for by the ONGC for leave to
offer the compensation package in lieu of the
appointment was opposed on behalf of the said workmen,
as also the prayer made for leave to appoint persons
from the compassionate appointment category without
absorbing all the workmen, who were yet to be
absorbed.
14. Mr. Ranjit Kumar, learned Senior advocate,
appearing for the Sangh, submitted that the order
passed by this Court on 20th November, 2006 and
subsequently, clarified on 08/02/2008, was very clear
and unambiguous. Learned counsel submitted that the
rights of the 153 workmen identified before the
Tribunal had crystallised in the order of the
Tribunal, which was subsequently upheld by this Court
and till such time as they were absorbed, no fresh
appointments could be given from any other category,
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notwithstanding the fact that there were other
candidates waiting to be appointed on compassionate
grounds. Mr. Ranjit Kumar also submitted that as far
as Mr. Ramachandran’s contention that 60 workmen who
were found to be ineligible for appointment were
concerned, the same could not be accepted having
regard to the fact that the Award of the Tribunal and
the order passed by this Court clearly indicated that
the Reference was to be restricted to the workmen
whose names appeared in the schedule to the affidavit
comprising 153 workmen. Mr. Ranjit Kumar also
referred to paragraph 16 of our judgment dated 20th
November, 2006, wherein we had categorically indicated
that till such time as 153 workmen were not absorbed
against the regular categories in the category
concerned, no recruitment from outside would be made
by the appellant.
15. Mr. Ranjit Kumar urged that the submission now
being made on behalf of the ONGC runs counter to the
directions contained in the Award of the Tribunal, as
upheld by this Court and also contrary to the
directions given by this Court in support thereof.
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16. From the order dated 20th November, 2006, it is
quiet obvious that the intention of this Court was
that till such time as the 153 workmen, who were
identified after the Award of the Tribunal were not
absorbed against regular vacancies in the concerned
category, no recruitment from outside could be made by
the applicant ONGC in the same or similar posts.
Similar provision was also made with regard to the
workmen, who were to be employed on a seasonal basis.
However, we must also record Mr. Ramachandran’s
submissions at this stage that out of the 153 persons
whose names were available, 15 persons were found to
be not eligible for consideration, leaving 138 persons
who were eligible for consideration in terms of the
Award of the learned Tribunal and the judgment of this
Court.
17. Accordingly, at least the case of the 138
workmen, who had, in fact, been found to be eligible
for appointment had to be considered.
18. However, the picture, as portrayed by Mr.
Ramchandran, is not as grave as has been made out by
him since all the persons concerned, namely, the
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candidates, who are yet to be absorbed in regular
vacancies in terms of the Tribunal’s order, as
upheld by this Court on 20th November, 2006, and
those waiting for compassionate appointment, have
been provided with employment, as contingent staff.
There should not have been any difficulty for the
ONGC to implement the Tribunal’s Award in respect of
the 137 workmen, who were found eligible by ONGC
within the period of two years after the passing of
the Award. Apart from the orders passed by the
Tribunal and this Court, equity demands that the
workmen who have been in continuous employment as
contingent workmen from 1992, should be considered
first for regularisation before those, who come in
at a later stage.
19. At this juncture, we may also refer to the
submission which had been made on behalf of one of
the intervenors from the compassionate appointment
category that there were large number of vacancies
available in which all could be accommodated. Mr.
Ramachandran has denied such submission and in the
affidavit filed with regard to the copy of the
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Minutes of the 71st meeting of the Joint Committee, it
has been pointed out that the number of vacancies
indicated represented vacancies in various
departments and particularly of a technical nature
and did not necessarily include the vacancies against
which appointments were to be made as far as the
concerned workmen and the compassionate appointees
were concerned.
20. From the order dated 20.11.2006 it was clearly
the intention of this Court that till such time as the
153 workmen were not absorbed against regular
vacancies in the concerned category, no recruitment
could be made by the applicant. Similar provision was
also made with regard to the workmen who were employed
on seasonal basis.
21. Having considered the submissions made on
behalf of the O.N.G.C. and the Mazdoor Sangh, we are
not inclined to grant the prayer made on behalf of
the O.N.G.C. for leave to appoint candidates from
the compassionate category group before all the
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workmen who were identified after the Award of the
Tribunal to be eligible for appointment, are
absorbed, as that would not only go against the
order passed by us on 20th November, 2006, but would
also amount to modifying the same.
22. While rejecting the prayer made on behalf
of the ONGC, we, however, make it clear that such
rejection would not prevent the ONGC from offering
the compensation package either to those workmen
from amongst the 137 workmen, who are yet to be
absorbed or those waiting for appointment from
the compassionate appointment category. If such
package is accepted by any of those candidates,
both the ONGC as well as such candidate will be at
liberty to act on the basis of such acceptance and
shall not be fettered in any way by the directions
given either by the Tribunal or this Court on 29th
November, 2006.
23. This order shall dispose of I.A. Nos.11 and
12 of 2009, but we also make it clear that we are
not passing any orders in terms of prayer (b) of
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I.A. No.12 of 2009.
…………………………………………J.
(ALTAMAS KABIR)
……………………………………………J.
(CYRIAC JOSEPH)
New Delhi
September 17, 2009.
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. NOS. 11 AND 12 OF 2009
IN
CIVIL APPEAL NO.6607 OF 2005
O.N.G.C. Ltd. … Appellants
Vs.
Engineering Mazdoor Sangh … Respondent
O R D E R
ALTAMAS KABIR, J.
In the reportable order dated 17/09/2009,
paragraphs 13 and 14 stand deleted and paragraph
Nos.15 to 23 are re-numbered as paragraph Nos. 13
to 21.
The Registry is directed to issue Corrigendum
accordingly.
…………………………………………J.
(ALTAMAS KABIR)
……………………………………………J.
(CYRIAC JOSEPH)
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New Delhi
November 13, 2009.