Oil And Natural Gas Corporation ... vs Transport And Dock Workers Union ...
2007 Latest Caselaw 215 Bom

ORDER

R.M.S. Khandeparkar, J.

Page 0622

1. Since common question of law and facts arise in the above petitions, they were heard together and are being disposed of by this common order.

2. The above petitions arise from the impugned order dated 17th August, 2006 passed by the Central Government Industrial Tribunal, Mumbai, whereby the parties are directed to maintain status quo till disposal of the references.

3. The impugned order is sought to be challenged mainly on three grounds, namely, that the Industrial Tribunal failed to consider that there is no employer employee relationship between the parties, and therefore, the Industrial Tribunal had no jurisdiction to grant reliefs asked for. Secondly, that the Industrial Tribunal was very much influenced by the directions which were issued earlier by this Court in respect of the parties to the proceeding. And thirdly, that the Industrial Tribunal has no jurisdiction to grant interim relief.

4. The impugned order has been passed in the references pending before the Industrial Tribunal on three points, namely, (i) whether the contract between Oil and Natural Gas Corporation Limited (ONGC) and the existing contractor is a sham and bogus one and is a camouflage to deprive the concerned employees represented by the concerned labour union of benefits available to the permanent workmen of ONGC ? and (ii) whether the workmen represented by the said union employed through the contractor by ONGC should be declared as permanent workmen of ONGC? and (iii) what should be the wages and other consequential benefits to be paid to the concerned employees ?

5. The said references have been made pursuant to the long drawn dispute between the parties commencing from 1991. Since 1991, undisputedly, the Page 0623 workmen continued to be employed by ONGC, albeit, duly protected by various orders passed by the Courts including the Apex Court and this Court. Equally it is true that the Apex Court, while dismissing the Special Leave Petition by its order dated 28th February, 2005, had directed the Industrial Tribunal to hear and dispose of the application for interim relief. The Industrial Tribunal was not expected to be in any manner influenced by any of the observations made by this Court in the order dated 13th July, 2004 while deciding the application for interim relief.

6. As regards the first ground of challenge is concerned, undisputedly, a controversy between the parties relates to the capacity in which the workmen are working and their dates of joining the employment with the ONGC, and thus, the controversy between the parties is pending since 1991 and references in that regard have been made under Section 10 of the Industrial Disputes Act, 1947 by an order of the Government dated 15th April, 2004. During all these times, the workmen have been enjoying the protection under the orders passed by this Court of by the Apex Court or the Industrial Tribunal. Besides, it is also not in dispute that there were Memorandum of Understanding (MOUs) signed between the parties without intervention of a contractor and without contractor being made by the party to such MOUs in the year 1990 and similar MOUs were executed in the years 1992, 1995 and 2000. It is also a matter of record that the ONGC had offered and given Rs.10,000/-ex gratia payment to the workmen during Diwali, 2005 and many of the workmen were also given VRS package directly by ONGC without intervention of the contractor. The Industrial Tribunal, after taking into consideration all these factors, has obviously found prima facie case being made out for grant of interim relief.

7. It is true that in paragraph 9 of the impugned order, the Industrial Tribunal has made an observation to the effect that "it is admitted position that the workers under reference are in employment for the last about 20 years. Hence, they have all right of employment irrespective of the fact as to who employs them." Repeatedly, referring to the said observation, it was sought to be argued that the Industrial Tribunal erred in granting interim relief ignoring the fact that in the absence of employer-employee relationship between the ONGC and the concerned workmen, there could not have been any direction for maintenance of status quo in relation to their employment with the ONGC. It is to be noted that the Industrial Tribunal has taken into consideration, as already observed above, various factors before arriving at the finding about a prima facie case being made out for grant of interim relief and not merely by observing that the workmen are entitled for protection irrespective of the fact as to who had employed them. Undoubtedly, the said finding was unwarranted. However, merely because the said finding being unwarranted, that by itself will not be a justification for interference in the impugned order for more than one reason referred to above. The workmen are in the employment for numerous years. The acts on the part of the petitioner prima facie disclose relationship of employer-employee between the parties and the acts on the part of the petitioner which would reveal conduct of an employer Page 0624 towards the workmen concerned. At the same time, though it cannot be disputed that the Industrial Tribunal will have to deal with the issue which has been raised by the petitioner about absence of employer-employee relationship between the parties while dealing with the matter on merits, as far as interim relief is concerned, there being a prima facie case made out, no fault can be found with the impugned order for rejecting the contention on the part of the petitioner about the alleged absence of relationship of employer-employee between the parties.

8. As regards the second ground of challenge, i.e. the Industrial Tribunal was very much influenced by the directions which were issued earlier by this Court in respect of the parties to the proceeding, it is true that the impugned order refers to an order of this Court which was passed by dismissing the review petition, that by itself cannot be said that the entire order has been passed solely on the basis of observations by this Court in its earlier orders. Before arriving at the finding about prima facie case being made out, the Industrial Tribunal, as already observed above, after taking into consideration the various factors including corroborative factors, has made a reference to the orders passed by this Court. But it cannot be said that the orders passed by this Court have been the basis for the Industrial Court to grant of interim relief.

9. As regards third ground of challenge is concerned, i.e. the Industrial Tribunal has no jurisdiction to grant interim relief, it has been strenuously argued on behalf of the petitioner that the Division Bench of this Court in MRF Ltd., Goa v. Goa MRF Employees' Union, Goa and Anr. reported in 2004 I LLJ 394, has held that the reference Court has no jurisdiction to grant interim relief under Section 11(4) of the Industrial Disputes Act, 1947. It has also been further submitted that the matter therein has been carried to the Apex Court wherein the Apex Court has referred the issue as to whether any interim relief could be granted in view of the use of the expression "matters incidental thereto" under Section 10(4) to a larger bench, and therefore, considering the decision of the Division Bench in MRF Ltd.'s case (supra), which has not been stayed, it is to be held that the decision is binding and the Industrial Tribunal could not have granted any interim relief.

10. At the outset, it is to be noted that the decision of the Division Bench in MRF Ltd.'s case (supra) was in relation to a complaint under Section 33A of the Industrial Disputes Act. Besides, the Apex Court in The Management Hotel Imperial, New Delhi and Ors. v. Hotel Workers' Union had held that "thus interim relief where it is admissible can be granted as a matter incidental to the main question referred to he tribunal without being itself referred in express terms", and while delivering the said ruling, the Apex Court had taken note of the difference between interim award and interim relief and held thus:

It is also open to the tribunal to make an award about some of the matters referred to it whilst some others still remain to be decided. This Page 0625 will be an interim determination of any question relating thereto. In either case it will have to be published as required by Section 17 Such awards are however not in the nature of interim relief for they decide the industrial dispute or some question relating thereto. Interim relief, on the other hand, is granted under the power conferred on the tribunal under Section 10(4) with respect to matters incidental to the points of dispute for adjudication.

Similarly, in Lokmat Newspapers Pvt. Ltd. v. Shankarprasad , the Apex Court after taking note of Section 10 of the Industrial Disputes Act had held that the competent Court had power to stay an impugned retrenchment order by way of interim relief and to direct the maintenance of status quo, and it was ruled that:

It is also necessary to note that in such references received by the competent Court under the I.D. Act in appropriate cases, the Court to which such references are made has ample jurisdiction to pass interim orders and if the Court had found that the impugned retrenchment order was required to be stayed even though it had been passed after conciliation proceedings were over and when there was no prohibitory order from any authority such retrenchment order could have been stayed. Further implementation of the impugned change could have been stayed.

11. The law on the point of jurisdiction of the Industrial Tribunal to grant interim relief, as it stands today, therefore, is the one which has been laid down in The Management Hotel Imperial and M/s. Lokmat Newspapers Pvt. Ltd.'s cases (supra). The decision of Division Bench in MRF Ltd.'s case (supra) in no way helps the petitioner. Being so, as the law stands today, the decision of the Apex Court being binding, no fault can be found with the power exercised by the Industrial Tribunal for grant of interim relief. It is also to be noted that such a power has been exercised by the Industrial Tribunal consequent to the specific directions issued by the Apex Court in its order dated 28th February, 2005 to hear and decide the application for interim relief.

12. Added to the above factors, it is also revealed from the record that the workmen have completed 240 days of continuous service in the previous year within the meaning of the said expression under the Industrial Disputes Act.

13. Taking into consideration all the above factors, which prima facie make out a case for grant of interim relief, as rightly observed by the Industrial Tribunal, no fault can be found with the impugned order granting interim Page 0626 relief. The petitioner, however, is justified in contending that since the controversy is pending from 1991, it is necessary in the interest of both the parties to dispose of the matters on merits as expeditiously as possible and the Industrial Tribunal should endeavour to dispose of the matters finally on merits as early as possible and by all probabilities by 31st December, 2007.

14. With the above observations, the petitions are rejected.