Bombay High Court
Bharat Petroleum Corporation Ltd vs Petroleum Employees Union And Anr on 1 August, 2024
2024:BHC-AS:31286
Neeta Sawant WP-7167-2005 & 5301-2006-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7167 OF 2005
Bharat Petroleum Corporation Ltd. .... Petitioners
Versus
Petroleum Employees Union and another .... Respondent
WITH
WRIT PETITION NO. 5301 OF 2006
Shri. H. K. Verma ... Petitioners
Versus
Bharat Petroleum Corporation Ltd. ... Respondent
____________
Mr. P.B. Shah with Mr. Kayval P. Shah, for Petitioner in
WP/5301/2006 & for Respondent No. in WP/7167/2005.
Mr. J. P. Cama, Senior Advocate with Mr. Vrushabh Vig i/b
Crawford Bayley & Co., for Petitioner in WP/7167/2005 and for
Respondent in WP/5301/2006
____________
CORAM : SANDEEP V. MARNE, J.
DATED : 1 August 2024.
JUDGMENT:
1. These are cross petitions filed by the employer and the
workman challenging the Award dated 7 April 2005 passed by the
1 August 2024
Neeta Sawant WP-7167-2005 & 5301-2006-FC
Industrial Tribunal, Pune by which Reference (IT) No. 4/2002 has
been answered in the affirmative directing regularization of service
of the workman-Hariprakash K. Varma from the date of publication
of the Award. Employer-BPCL has filed Writ Petition No. 7167 of
2005 challenging the direction for regularisation, whereas the
workman has filed Writ Petition No. 5301 of 2006 to the extent of
denial of relief of permanency from the date of completion of 240
days of service.
2. The workman-Hariprakash K. Varma had registered his
name with the Employment Exchange. It appears that the BPCL was
in need of drivers to take care of exigencies of absenteeism of regular
drivers. Accordingly, the Employment Exchange sponsored the
name of the workman and BPCL sent letter dated 6 June 1988 to him
stating that his name was sponsored by the Employment Exchange
for Heavy Vehicle Driver/General Workmen on casual basis/daily
wage basis in the event of absenteeism of BPCL's regular employees.
The workman was called upon to attend the office for interview on
10 June 1988 with relevant certificates. This is how the workman
came to be engaged on daily wage basis by BPCL and was offered to
work as and when there was need for his services since 21 September
1988. It appears that on account of demand was raised by the
workman alongwith Chandrakant Pandit Baraskar for grant of
permanency in service, their services were terminated. They
approached the Assistant Labour Commissioner (C), Pune for
intervention and settlement took place between the said workman
and BPCL on 29 June 1995, under which BPCL agreed to continue to
1 August 2024
Neeta Sawant WP-7167-2005 & 5301-2006-FC
offer employment to them as Driver or General Workmen as and
when the work was available. Both the workmen were directed to
complete 3 days' Training Course of Petroleum and Hazardous
Material Driving, at HPCL Training Centre.
3. On 29 November 1999, a demand was raised by General
Secretary of the Union complaining that BPCL was providing work
for only 15 days a month to the workman- Hariprakash K. Varma
and demanded his absorption in service. The conciliation
proceedings ended in failure and accordingly a Reference was made
to the Industrial Court, Pune which was registered as Reference (IT)
No.4/2002. The workman filed his Statement of Claim seeking a
declaration that he was in continuous service of BPCL since 1988 and
that his demand for regularization/absorption was just and legal.
Direction was sought for regularization/absorption of service of the
workman alongwith consequential benefits since the year 1988. The
Statement of Claim was resisted by BPCL by filing written statement.
Both the parties led evidence. After considering the pleadings,
documentary and oral evidence, the Industrial Court delivered
Award dated 7 April 20095 directing BPCL to regularize the services
of the Workman-Hariprakash from the date of publication of Award.
Employer-BPCL has filed this Writ Petition No. 7167 of 2005
challenging the Award dated 7 April 2005. Writ Petition No. 7167 of
2005 came to be admitted by order dated 1 September 2006. Stay was
granted to the impugned Award to the extent of direction for
regularization subject to the condition of provision of work. The
workman has filed Writ Petition No. 5301 of 2006 challenging the
1 August 2024
Neeta Sawant WP-7167-2005 & 5301-2006-FC
Award dated 7 April 2005 seeking relief of permanency from the
date of completion of 240 days of service. Writ Petition No. 5301 of
2006 came to be admitted by order dated 1 September 2006.
4. Mr. Cama, the learned senior advocate appearing for the
employer-BPCL would submit that the Industrial Court has erred in
granting regularization to the workman ignoring the fact that his
initial engagement was only against leave vacancy and that he was
never meant to be employed continuously in the services of BPCL.
That his services were utilized only during absence of regular
employees and that therefore there was no question of offering him
work of continuous nature. Inviting my attention to the
Memorandum of Settlement, he would submit it contains a specific
direction that the Workman had not completed 240 days of services
in any other 12 consecutive months. Relying on the demand letter
dated 29 November 1999, Mr. Cama would submit that a same also
contains a specific admission of provision of work only for 15 days in
a month. That BPCL being a Public Sector Undertaking, no
appointment can be made on its establishment in absence of
sanctioned vacant posts. That mere completion of 240 days of service
cannot be a reason enough for directing regularization on
establishment of Government undertaking in absence of availability
of post, recruitment through selection process and satisfaction of
eligibility criteria. He would submit that the Industrial Tribunal has
granted the relief of permanency only on sympathy and against the
spirit of law. He would pray for setting aside the impugned award.
So far as Writ Petition No. 5301 of 2006 is concerned, Mr. Cama
1 August 2024
Neeta Sawant WP-7167-2005 & 5301-2006-FC
would submit that there is no question of granting absorption to the
workman from the date of completion of 240 days of service. That
infact there is no material available on record to prove that workman
had completed 240 days of service in any calendar year. He would
pray for dismissal of Writ Petition No. 5301 of 2006.
5. Per-contra, Mr. Shah, the learned counsel appearing for
the workman would oppose the petition filed by BPCL submitting
that the workman was not only engaged in service through proper
channel of Employment Exchange, he was also subjected to
interviews. That there is no dispute about his services since the year
1988. There is enough evidence on record to indicate that sufficient
work was available, but BPCL deliberately used to avoid allotting
work to the workman and the same has been noticed by the
Industrial Tribunal. That this course of action was deliberately
adopted to exploit the services of workman and to avoid grant of
benefit of permanency. That BPCL being a Public Sector
Undertaking, it cannot engage itself into unfair labour practices and
deliberately using services of a workman for 15 days in a month with
a view to avoid liability arising out of labour legislations. He would
submit that the Industrial Tribunal has rightly held that deliberate
artificial breaks were given to the workman despite availability of
work. That the finding of the Industrial Tribunal about continuous
employment of the workman with BPCL since September 1988 does
not warrant any interference. Mr. Shah would submit that BPCL has
violated the interim order dated 1 September 2006 passed in Writ
Petition No. 7165 of 2005 in which stay to the Award was granted
1 August 2024
Neeta Sawant WP-7167-2005 & 5301-2006-FC
subject to the condition of the workman being provided work. That
after admission of petition, BPCL arbitrarily stopped giving work to
him. That the workman is now 60 years old and is awaiting justice
for a long period of time. He would therefor pray for dismissal of
Writ Petition No. 7167 of 2005. So far as Writ Petition No. 5301 of
2006 is concerned, Mr. Shah would contend that the Industrial
Tribunal has erred in not granting the benefit of permanency from
the date of completion of 240 days of service. That once the Industrial
Tribunal decided to grant the relief of regularization on account of
completion of 240 days of service, the relief ought to have been
granted on the day on which 240 days were completed. He would
therefore pray for modification of the impugned Award to the extent
of date of regularization and would pray for grant of regularization
for completion of 240 days of service. In support of the submissions,
Mr. Shah would rely upon judgment of this Court in Burroughs
Welcome (I) Ltd. V/s. D.H. Ghosle & Ors. 1 and Life Insurance
Corporation V/s. Western Zone, Insurance Employees Association
and others2. He would also rely upon judgment of the Apex Court in
Hindustan Machine Tools and Ors. V/s. M. Rangareddy and others3.
6. I have considered the submissions canvassed by the
learned counsel appearing for the parties and have gone through the
impugned Award, as well as the relevant documents placed on
record.
1 2000 (12) LJSoft 126
2 2002 Lab I.C. 3204
3 2000 (4) L.L.N. 548
1 August 2024
Neeta Sawant WP-7167-2005 & 5301-2006-FC
7. The letter by which the Workman was initially called for
engagement reads thus:
Ref : LONI/8/88 Date : 06/06/88
To,
Mr. Hariprakash K.Varma
Lonikalbhor,
Tal-Haveli, Dist-Pune.
SUB : INTERVIEW FOR CASUAL HVD/GW (DAILY WAGES)
Dear Sir,
Kindly note that your name has been sponsored by the
Employment Exchange for Heavy Vehicle Driver/General
Workmen on casual basis (i.e. Daily Wages basis) in event of
abesentism of our regular employees.
Please call on the undersigned on 10th June 1998, Friday at 10.00
AM. at the above address with relevant certificate.
Thanking You,
Yours faithfully,
For BHARAT PETROLEUM CORPN. LTD.
Sd/-
C.DAVID
Dy. Mamager (Dist)
Loni DU
8. Thus, though the workman was sponsored through
Employment Exchange and though he was subjected to interview at
the time of his initial engagement, it was specifically made clear that
the engagement was only on casual basis/daily wage basis and ' in
the event of absenteeism of our regular employees '. Thus, the
workman was to be engaged only against leave vacancy due to
absenteeism of regular Heavy Vehicle Driver/General Workman. It
appears that in pursuance of letter dated 6 June 1988, the Workman
1 August 2024
Neeta Sawant WP-7167-2005 & 5301-2006-FC
was engaged vide letter dated 16 June 1988 and he joined the services
on 21 September 1988. This the dates are borne out from the
Memorandum of Settlement. The workman demanded permanency,
on account of which, his services were terminated. The exact date of
termination is not disclosed. However, it appears that the Union
took up the matter before the Assistant Labour Commissioner (C),
Pune and conciliation proceedings took place in which it was found
that the workman had not completed 240 days of service in the
period of 12 consecutive months. The Assistant Labour
Commissioner however observed that BPCL was willing to provide
work to the workman as and when the same was available without
conceding to the demand for permanency. Accordingly,
Memorandum of Settlement dated 29 June 1995 as signed. The
recitals of the Memorandum of Settlement read thus:
SHORT RECITAL OF THE CASE
Shri Chandrakant Pandit Baraskar and Hariprakash K. Varma vide
their letter dated 5.8.94 followed with letter dated 8.8.94, 20.8.94,
28.8.94 to ALC (c) Pune represented that they were employed at
Loni Depatch unit of M/s. Bharat Petroleum Corpn. Ltd. as casual
driver through Technical Employment Exchange, pimpri, pune
vide letters no.pT/878/86 dt. 16.9.88 since 21.9.88 and they were
utilised at driver / general workmen on casual basis as and when
there was work. After having worked for the said corporation for a
sufficient length of time, they started representing for being made
permanent in service but, instead of being made permanent, their
services were terminated rendering them unemployed and
therefore the Asst. Labour Commissioner (C) Pune should
intervene and render them justice the workmen added. At the
instance of the ALC (C) Pune the management informed vide their
letter no. B. Per COOCL.CON dated 12.9.94 that Shri Baraskar and
Varma were employed as casual workmen on purely casual work
and on day to day basis with their employment beginning and
terminating on each stay of employment and therefore the question
of 19.8.1991 as alleged by the workmen did not arise. Thus an
industrial dispute was found existing between the workmen and
1 August 2024
Neeta Sawant WP-7167-2005 & 5301-2006-FC
management which was seized in conciliation. The merits of case
were assessed with reference to the details of the number of days
worked by the workmen as submitted by the management the
views of the parties and other evidence produced by the workmen.
It was found that on one hand the workman had not completed 240
days in any period of 12 consecutive months and on the other hand
the management were still willing to offer employment to these
workmen as and when the work was available with them without
conceding to the workmen's demand of being made permanent in
service.
9. Following terms of settlement were agreed.
1. The management shall continue to offer employment to
the workmen as driver or general operators whenever the
workmen present themselves for work, and as and when
such work is available. However, the workmen have to
complete 3 days traning course of Petroleum and Hardous
Material Driving Training course for which they will be
sponsored by the management to HPCL training centre at
Loni at the earliest opportunity.
2. On being sponsored by the management the workmen
shall complete the said training course by paying the
requisite fee and obtaining a necessary endorsement on the
licence and report to management for the work.
3. The workmen will continue to be casual workmen being
employed on the same terms and conditions on which they
were being employed earlier without conferring any
additional privileges or status.
4. The workmen shall without all references / claims /
lititation on the subject covered under this settlement which
might be pending before any other authority.
5. The settlement fully and finally resolves the dispute in
question including all issues incidental and related thereto.
6. The parties shall submit a report to ALC (C), pune on
implementation of the settlement within one month hereof
failing which the settlement shall be deemed to have been
implemented its totality.
1 August 2024
Neeta Sawant WP-7167-2005 & 5301-2006-FC
10. Thus the Memorandum of Settlement itself makes it clear
that upto 29 June 1995, the workman worked periodically without
completing 240 days of service in any of the block period of 12
consecutive months. Four years later, demand was raised on behalf
of workman by the Union, in which again specific admission was
given that he was being engaged for only 15 days in a month. The
relevant statements in the demand letter dated 29 November 1999
read thus:
Thereafter management of BPCL is indulged in an unfair labour
practice by providing work for only for 15 days in a month to
circumvent legal provisions and deny any right for permanent
employment.
There is sufficient work available in the entire month. But
management give work only for 15 days in a month and other
fifteen days the same work is given to other workers.
11. Thus, right from 1988 till 29 November 1999, the
workman himself admitted the position that he never completed 240
days of service and he was being utilized only for 15 days in a
month. The Industrial Tribunal did not have any documentary
evidence before it to arrive at a definitive conclusion that the
workman had completed 240 days of service. In fact, the findings
recorded by the Industrial Tribunal clearly indicated that even as on
the date of passing of the Award on 7 April 2005, the workman did
not complete 240 days of service in any calendar year. The relevant
findings recorded by the Industrial Tribunal in this regard read thus:
I am unable to accept this submission only on the ground that the
1 August 2024
Neeta Sawant WP-7167-2005 & 5301-2006-FC
first party has taken very wise precaution by giving 15 days work
to a casual worker since 1988 till today and therefore, certainly, this
conduct on their part amounts to unfair labour practice, with a
view to deprive the benefit of permanency. Mrs. Wachasunder has
further submitted that the workman Shri Verma has not completed
240 days continuous service in a year and therefore. He has no
right to calim benefit of permanency. I am unable to accept this
submission, as from the record, it appears that even though the
work was available, the first party has not alloted the same and
therefore, the conduct of the first party amounts to artificial break.
12. Despite not arriving at a definitive conclusion about
completion of 240 days of service by the workman, the Industrial
Tribunal proceeded to award the relief of regularization to him by
recording following findings :
As regards Issue No.2, in view of finding on Issue No.1, coupled
with the conduct of the first party that they have only given 15
days work in a month to Shri Verma since 1988 till today and even
though the work was available, first party has not alloted the same
to Shri Varma, amounts to artificial break and so, the workman
Shri Verma is entitled to regularisation in service of BPCL.
13. In my view, the Industrial Tribunal has completely
misdirected itself while granting the relief of regularization to the
workman in absence of any definitive conclusion that he completed
240 days of service in any block period of 12 consecutive months.
14. Employer-BPCL is a Public Sector Undertaking and an
Instrumentality of State. The issue of grant of permanency to casual
employees of State Instrumentalities in Clause-4C of the Model
Standing Orders formulated under the provisions of Industrial
Employment (Standing Orders) Act, 1946 is decided by the Division
Bench of this Court in Municipal Council, Tirora V/s. Tulsidas
1 August 2024
Neeta Sawant WP-7167-2005 & 5301-2006-FC
Baliram Bhindade4 in which it is held that industrial adjudicator
cannot grant relief of permanency/regularization to casual employee
only on account of completion of 240 days of service in absence of
any post being available on the establishment. Therefore, even if the
workman was to prove completion of 240 days of service in any
calendar year, still relief of permanency could not have been granted
to him.
15. The law relating to regularisation in government services
is now well settled by a landmark judgment in Secretary, State of
Karnataka V/s. Umadevi and Ors. 5 which marks a watershed
moment on the law relating to regularisation of services. The Apex
Court has held that mere continuance of casual / ad-hoc /
temporary /contract employees in service for long time does not
create a right in their favour to seek regularization. An exception is
carved out by the Apex Court in para-53 of the judgment, under
which irregularly employed casual/ ad-hoc/contract/ temporary
employees against sanctioned posts, who continue to remain in
service for more than 10 years could be regularized as a one-time
measure. The judgment of the Apex Court in Maharashtra State
Road Transport Corporation & Anr. V/s. Casteribe Rajya P.
Karmachari Sanghatana6 and Harinandan Prasad V/s. Employer I/R
to Management of FCI & Anr7 are often quoted to suggest as if
industrial adjudicator is not bound by the principles enunciated by
4 2016(6) Mh.L.J. 867.
5 (2006) 4 SCC 1.
6 2000 III CLR 262.
7 (2014) 7 SCC 190
1 August 2024
Neeta Sawant WP-7167-2005 & 5301-2006-FC
the Apex Court in Umadevi. However, both the judgments cannot
be cited in support of an absolute proposition that in the matter of
public employment, regularisation can be granted even by industrial
adjudicator in complete ignorance of the law expounded by the Apex
Court in Umadevi. The only exception carved out in Harinandan
Prasad is where regularization of similarly placed employees or
existence of scheme for regularization is noticed for the purpose of
granting regularization by following the principle of equality
enshrined under Article 14 of the Constitution of India. In the
present case, there is nothing on record to indicate that any similarly
placed workman is regularized in service so as to attract the principle
enunciated by the Apex Court in Harinandan Prasad.
16. After considering the overall conspectus of the case, I am
of the view that neither the workman was successful in
demonstrating completion of 240 days of services nor he had any
right to seek regularization in services of BPCL on the strength of his
intermittent service for 15 days a month. In fact, his engagement for
15 days a month is clearly indicative of absence of any regular posts
against which he rendered his services. The workman therefore did
not make out any case for grant of relief of regularization in service.
Reliance by Mr. Shah on the judgments of this Court in Burroughs
Welcome (I) Ltd. and Life Insurance Corporation and of the Apex
Court in Hindustan Machine Tools (supra) does not assist the case of
the workman, as all those judgments are rendered prior to the
Constitution Bench judgment in Umadevi, which is later interpreted
in respect of industrial adjudication in MSRTC V/s. Casteribe and
1 August 2024
Neeta Sawant WP-7167-2005 & 5301-2006-FC
Harinandan Prasad.
17. The impugned Award dated 7 April 2005 passed by the
Industrial Tribunal is therefore liable to be set aside. Since the Award
itself is being set aside, nothing would survive in Writ Petition No.
5301 of 2006 filed by the workman for grant of regularization from
the date of completion of 240 days of service.
18. Accordingly, Writ Petition No. 7167/2005 is allowed by
setting aside the Award dated 7 April 2005 passed by the Industrial
Tribunal in Reference IT No. 4/2002. Rule is accordingly made
absolute.
19. Writ Petition No. 5301 of 2006 is dismissed and Rule is
discharged. There shall be no order as to costs.
Digitally
signed by
NEETA
NEETA SHAILESH
[SANDEEP V. MARNE, J.]
SHAILESH SAWANT
SAWANT Date:
2024.08.07
10:54:03
+0530
1 August 2024
