Oil And Natural Gas Corporation ... vs Santosh Kumar Sharma & Ors
2010 Latest Caselaw 878 Del

                    *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              CM(M) No.815/2007

%                                                Date of decision: 16th February, 2010

OIL AND NATURAL GAS CORPORATION LTD.                ..... Petitioner
              Through:  Mr. V.N. Kaura with Ms. Paramjit Benipal & Mr.
                        Munindra Divedi, Advocates.

                                           Versus

SANTOSH KUMAR SHARMA & ORS.                                        ..... Respondents

                        Through:       Mr. J.S. Bhasin with Ms. Rashmi Priya, Advocates.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.      Whether reporters of Local papers may               No
        be allowed to see the judgment?

2.      To be referred to the reporter or not?              No

3.      Whether the judgment should be reported             No
        in the Digest?

RAJIV SAHAI ENDLAW, J.

1. This petition under Article 227 of the Constitution of India has been preferred

with respect to the order dated 16th April, 2007 of the Central Government Industrial

Tribunal No.1 (CGIT), New Delhi giving interim protection to the respondents during the

pendency of the reference before the CGIT and restraining the petitioner from

terminating or discharging the services of the respondents without obtaining approval

therefor from CGIT.

2. The respondents No.1 to 52 workmen are direct employees of the respondents

No.55 & 56 who had entered into an agreement/contract with the petitioner for providing

services of security and of allied nature. The said workmen are informed to have filed

writ petitions in this Court claiming to be employed as contract labourers on perennial

jobs with the petitioner and further claiming to be entitled to be regularized and absorbed

in the permanent cadre of the petitioner. Though the said writ petitions were dismissed

but liberty was granted to the said workmen to avail of other legal remedies if entitled to

in law. During the pendency of the said writ petitions since 1997 and till the disposal

thereof in 2001-02 there was an order of interim protection in favour of the workmen.

The said interim protection was further continued for six weeks even after dismissal of

the writ petitions to enable the workmen to avail of appropriate remedy. Thereafter the

workmen raised an industrial dispute and on which a reference was made to CGIT in the

following terms:

"Whether the action of the management of ONGC, New Delhi in not regularizing the services of the 50 workmen (as per list) from the date of their initial appointment is just, fair and legal? If not, what relief the 50 workmen are entitled to, and from what date?"

3. It is informed that another round of writ petitions were filed by the workmen in

2003 seeking a direction to the petitioner not to remove/terminate the services of the

workman and not to choose a security agency of its own choice leading to termination of

service of the workmen. There was an interim order in the said writ petition also directing

maintenance of status quo. In the meanwhile, the workmen filed an application before the

CGIT to whom reference as aforesaid had been made, seeking the same interim relief

during the pendency of the reference. The writ petitions filed by workmen in 2003 were

also dismissed in 2005 with a direction to the CGIT to expeditiously take a decision on

the application of the workmen for interim relief. Thus it will be seen that the interim

protection of the workmen has continued since 1997.

4. The contention of the counsel for the petitioner is that the CGIT, functioning

under the provisions of the Industrial Disputes Act, 1947 has no power to grant any

interim relief. He refers to Delhi Cloth and General Mills Co. Ltd.

Vs. Shri Rameshwar Dyal AIR 1961 SC 689 laying down that when a tribunal is

considering a complaint under Section 33-A, it is not open to the tribunal to order

reinstatement or full wages in case the employer did not take back the workman in his

service as a interim relief, for that would be giving the workman the very relief which he

could get only if on trial of the complaint the employer failed to justify the order of

dismissal. He however fairly informs that the Supreme Court vide order dated 8th March,

2006 in Civil Appeal No.1007/2004 titled Goa MRF Employees' Union Vs. M/s MRF

Ltd. has referred the question of the power of the Labour Tribunal to grant interim relief

under Section 33-A of the Act to a Larger Bench and the said reference is still pending.

Though the counsel has also relied on other judgments on the merits of not granting such

relief but it is not relevant to refer thereto inasmuch as that question would arise only

upon holding that such power exists.

5. Per contra, the counsel for the respondent has referred to The Management of

Hotel Imperial, New Delhi Vs. Hotel Workers' Union AIR 1959 SC 1342, generally

perceived as laying down that the labour court/tribunal has power to grant interim relief

and to a judgment of the single judge of the Bombay High Court in ONGC Ltd. Vs.

Transport & Dock Workers Union 2007 LLR 538 holding that the Labour Court has

such a power to grant interim relief. He has also referred to Lokmat Newspapers Pvt. Ltd.

Vs. Shankar Prasad (1999) 6 SCC 275 to contend that the Labour Tribunal/Court has

such a power.

6. Though none of the counsels referred to the same, but I find that a single judge of

this court in Airport Authority of India Vs. Pyare Lal MANU/DE/3838/2006 in near

identical facts held that such interim relief cannot be granted. In that case also the

workmen were seeking regularization of their service with the Airport Authority from the

date of their joining of service and which dispute had been referred to the CGIT and the

workmen had sought interim relief restraining Airport Authority from removing the

workmen from their services. The CGIT had granted an order of status quo. This Court

after considering the several judgments of the various courts reached at a conclusion that

the consistent judicial view is that although an Industrial Tribunal/Labour Court can in

certain situations pass an interim award, it has no jurisdiction to pass an order of

injunction of the nature which a civil court can pass under provisions of Order 39 of the

CPC. It was further held that the interim injunction granted by the CGIT virtually granted

the final relief to the workmen inasmuch as the workmen had been secured in the service

of Airport Authority despite its plea that it was not at all the employer of the said

workmen. This Court had accordingly allowed the writ petition and quashed the interim

order of status quo granted by the CGIT.

7. Judicial propriety binds me to the aforesaid view. Even if I was to hold and

opinion different therefrom, the reference to a Larger Bench of this Court would not be

necessary since the question is already pending adjudication before the Supreme Court.

8. This petition accordingly has to succeed. However, since the

respondents/workmen have enjoyed interim protection as noticed above since the year

1997 and will in all likelihood prefer to agitate this matter further before the Supreme

Court in appeal, to prevent any hardship to them, it is deemed expedient that the interim

protection which the workmen have enjoyed for so long, is continued for another three

months.

9. The petition is therefore allowed. The interim order of the CGIT impugned in this

petition is set aside and quashed for the reason of the CGIT having no power to grant

such interim injunction. However for the reasons aforesaid, the order vacating the said

interim injunction shall come into force after a period of three months from today.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) February 16th, 2010 pp