Oil And Natural Gas Commission vs Delhi Multi Storeyed Building ...
2005 Latest Caselaw 1800 Del

JUDGMENT

Markandeya Katju, C.J.

1 .These Writ Appeals have been filed against the Judgment and Order of the learned Single Judge dated 29.09.1997.

2. We have heard learned counsel for the parties and perused the record.

3. The writ petitioners (respondents in this appeal) filed the writ petition praying for quashing of the letter dated 27.03.1995, which is a notice for termination of the contracts of communication operators at ONGC, New Delhi sent by the U.P. Bhootpurva Sainik Kalyan Nigam Ltd. to the in charge Telecom Operator Team. It was also prayed for a mandamus to be issued restraining the respondents from terminating the services of the workers mentioned in Annexure I to the writ petition and to absorb the workers.

4. The grievances, as mentioned in the writ petition, related to those members/workers who were working for the ONGC, which is a Public Sector Undertaking, and employed through a contractor M/s. U.P. Bhootpurva Sainik Kalyan Nigam Ltd., respondent No. 4. It is alleged in the writ petition the names of the workers were sponsored by the Directorate General, Resettlement, Ministry of defense, respondent No. 3, which also sponsors the names of the contractor. It is alleged in the writ petition that since these workers were performing permanent and perennial nature of job and since their employment through the contractor deprived them of security of service, the workers made representations to the Government to make their job secure.

5.The Director General (Labour Welfare), Ministry of Labour, issued a notification dated 08.09.1994 under sub-section (1) of Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 (37 of 1970) prohibiting employment of contract labour in the work mentioned in the schedule, a true copy of which is Annexure H to the writ petition.

6. It is alleged by the petitioners that wrongly interpreting the said notification the respondent No. 2, ONGC, threatened to throw out the typists, peons, etc, who were also covered by the said notification. Hence, the workers moved a writ petition (CWP.4732/1994) in this Court, which vide orders dated 05.12.1994 restrained the respondents from terminating the services of the workers.

7. Counter affidavit was filed by the ONGC and we have perused the same. 8. In para 5 of the counter affidavit, it is stated that the alleged members of the petitioner shown in Annexure-I, are not employees of the ONGC and are not performing similar or the same duties as other regular employees of the ONGC. The said members of the petitioner are contract labourers and stand on an entirely different footing from that of the regular employees and they are not subject to the discipline of the ONGC. The ONGC has no control on the contract labourers and they are free to engage themselves at their discretion whenever and wherever they please or desire. There is no relationship of employer and employee between the ONGC and the contract labourers. It is stated that the writ petition raises disputed questions of facts which cannot be gone into in a writ petition. 9. In para 6 of the counter affidavit, it is alleged that another set of fellow contract labourers working with the ONGC had also filed a Writ Petition No. 1820/1993 Baliram and Ors. v. Union of India and Ors. in which regularization of services of the petitioners therein and equal pay and benefits as given to regular employees of the ONGC was prayed for. However, the same was dismissed by this Hon'ble Court on 29.10.1993 by the following order:-

Whether the petitioners are employees of ONGC as claimed by the petitioners or they are employees of the contractor as claimed by the respondents is a question of fact which has to be determined by taking oral and documentary evidence and the writ petition is not appropriate remedy. On this ground alone the writ is dismissed.

10. In para 7, it is stated that the members of the petitioner do not get salary from the ONGC and there is no privity of contract between the ONGC and the said contract labourers.

11. It is alleged in para 8 that the contract labourers are the workmen of the contractor and there is an alternative remedy available to them under the Industrial Dispute Act.

12. In para 10, it is alleged that the Ministry of Labour, Government of India, has issued a notification dated 08.09.1994, Annexure-H to the writ petition prohibiting employment of contract labour in the establishment of ONGC, hence the services of the petitioners was terminated.

13. The Learned Single Judge relied on a decision of Supreme Court reported as Air India Statutory Corporation etc. v. United Labour Union and Others 1996(9) SCALE 70. That judgment has since then been reversed by a Constitution Bench of the Supreme Court in Steel Authority of India v. National Union, (2001) 7 SCC 1. The Supreme Court in Steel Authority of India (supra) has held that the proper authority to go into the disputed question of fact would be the Industrial Tribunal/Court and not the High Court in writ jurisdiction.

14. In view of the decision of the Supreme Court in Steel Authority of India (supra), the judgment of the learned Single Judge which is based on the overruled judgment in Air India case (supra), cannot be sustained and is hereby set aside. Appeals are allowed. There is no order as to costs.

15. It may be mentioned here that by a common interim order dated 27th July, 1998 the Division Bench of this Court, while admitting the appeals was pleased to direct that those workers who qualify the eligibility criteria as per Rules and Regulations prevalent when they joined shall be absorbed in terms of the decision of the learned Single Judge, subject to the result of the appeals. Accordingly, all the labourers/workers were appointed by the ONGC pursuant to the said interim directions on the express understanding that such appointments were subject to the outcome of the present appeals. Since these appeals have been allowed, such appointments which were also subject to the outcome of these appeals are set aside and such the workers can seek such remedy as available to them in accordance with the law.