Prem Nath & Others vs Oil And Natural Gas Corporation & ...
2010 Latest Caselaw 2868 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) 6562/2001

%                                            Date of decision: 1st June, 2010

PREM NATH & OTHERS                         ..... Petitioners
                Through: Ms. Asha Jain Madan, Mr. Mukesh
                         Jain and Mr. Sachin Sharma,
                         Advocates.

                                    Versus

OIL AND NATURAL GAS CORPORATION & ORS... Respondents
                 Through: Mr. Gourab Banerji, ASG with Ms.
                           Shreya Sharma, Mr. Syed Abdul
                           Haseeb and Ms. Ratna Dhingra,
                           Advocates for R-1/ONGC.
                           Mr. Atul Nanda, Ms. Rameeza
                           Hakeem, Ms. Sugandha and Mr.
                           Gaurav Gupta, Advocates for R-
                           3/UOI.

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

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. The 24 petitioners seek the relief of regularization of their services

with the respondent ONGC with all consequential benefits and an order

restraining the respondent ONGC from terminating their services and

further a direction for payment to them equal wages as being paid by the

respondent ONGC to the other regular employees. During the pendency of

the petition, CM.No.1817/2006 was filed by the petitioners and by interim

order dated 14th February, 2006 thereon, status quo was directed to be

maintained in respect of the petitioners' employment. The said order has

continued in force till now.

2. The petitioners joined service of respondent ONGC in the year 1984-

86 at the Jwalamukhi Project of the respondent ONGC. It is the case of the

petitioners that inspite of permanent and perennial nature of the work being

taken from them, the respondent ONGC engaged them on daily wage basis,

as contingent employees. Reference is made to the Certified Standing

Orders of the respondent ONGC with respect to the contingent workmen,

providing that a workman who has put in not less than 180 days of

attendance in any period of 12 consecutive months is required to be treated

as a temporary workman and a temporary workman who has put in not less

than 240 days and who possesses minimum qualification is "may be

considered" for conversion as a regular employee. It is the case of the

petitioners that in breach of the said Standing Orders, the respondent

ONGC has neither treated the petitioners as temporary employees nor

regularized their services. The petitioners claim to be having the requisite

qualifications under the recruitment regulations of the respondent ONGC.

It is further the case of the petitioners that the respondent ONGC was

taking from the petitioners the same quantity and quality of work with

same responsibilities, as being done by the regular employees, but not

giving equal wages to the petitioners.

3. The respondent ONGC in the year 1987 also had attempted to

terminate the services of the petitioners. A writ petition was then filed by

some of the petitioners in the year 1987 in the High Court of Himachal

Pradesh at Simla. In that writ petition also the relief claimed was of

regularization of services and for equal wages as being paid to the regular

employees of the respondent ONGC. Thus, the relief claimed by the

petitioners in the earlier writ petition was the same as claimed in this writ

petition.

4. Some of the petitioners and others similarly situated as them had in

or about the year 1987 also raised an industrial dispute for grant of regular

status to them. In the said industrial dispute a settlement was arrived at and

whereunder the services of some of the others similarly situated as the

petitioners were regularized and for the remaining it was agreed that they

would be given preference at the time of recruitment for appointment

against class III and IV post in an expeditious manner.

5. The Jwalamukhi Project in which the petitioners were initially

engaged was completed in the year 1993.

6. Yet, some of the other petitioners who were then working at the

Madhopur works of respondent ONGC, in or about 1993, fearing their

termination, filed a writ petition in the High Court at Punjab and Haryana

at Chandigarh. In the said writ petition also the relief of regularization of

services was claimed.

7. The respondent ONGC opposed the writ petitions at Simla as well as

at Chandigarh. The writ petition at Simla was disposed of vide order dated

21st September, 1993. It is recorded in the said order that it was the stand

of the respondent ONGC that it had no work available to continue the

petitioners; that it had sought information from other regions where the

petitioners could be re-engaged but the same was not found possible. The

High Court also noted that efforts had been made to explore whether the

petitioners could be retained either at the present place of posting or

anywhere else but the court was satisfied with the explanation of

respondent ONGC that it was not so possible. The writ petition was

therefore dismissed and interim orders in the writ petition under which the

petitioners were continuing vacated. It was however observed that if ever

work was available with the respondent ONGC in northern region and the

petitioners were found qualified for the same, preference would be given to

them according to their seniority and job requirement.

8. The writ petition in the High Court at Chandigarh was also similarly

dismissed. The petitioners preferred Special Leave Petitions to the

Supreme Court which were also dismissed on 19th November, 1993.

9. It is the case of the petitioners that after the dismissal of the Special

Leave Petitions, the appropriate Government on 8th September, 1994 issued

notification under Section 10 of the Contract Labour (Regulation and

Abolition) Act, 1970 prohibiting the employment of contract labour in

certain works in the establishments of ONGC. It is the case of the

petitioners that the issuance of the said notification conclusively proves that

the jobs being performed by the petitioners are of permanent and perennial

nature required to be got done through regular workers.

10. It is further the plea of the petitioners that though it was represented

by the respondent ONGC before the High Court at Simla that there was no

work available for the petitioners but the respondent ONGC continued to

engage the petitioners without any break till the filing of the present

petition, however as contingent worker only. It is thus contended that the

defence taken before the Simla High Court of the respondent ONGC not

having any work for the petitioners was false, taken with the malafide

intention to defeat the petitioners' claims for regularization. The counsel

for the petitioners has contended that the Simla High Court dismissed the

writ petition solely on the ground that no work was available for the

petitioners.

11. The petitioners first filed WP(C) D7385/2001 before the Supreme

Court on 21st April, 2001. However, the said writ petition was dismissed as

withdrawn on 8th May, 2001 with liberty to the petitioners to move this

court. Thereafter, the present petition came to be filed.

12. The petitioners citing the aforesaid two developments, since the

dismissal of earlier two writ petitions, filed the present writ petition. It is

also pleaded that the petitioners are being transferred from one place to

another as regular employees. Notice of the writ petition was issued.

Though the writ petition was also accompanied with an application for

interim relief for restraining the respondent ONGC from terminating the

services of the petitioners but no interim relief was granted to the

petitioners till 14th February, 2006 as aforesaid. The writ petition remains

at the stage of show cause notice only.

13. The respondent ONGC in the counter affidavit has inter alia stated

that the petitioners have been engaged and deployed only in the Northern

Region for doing work on contingent basis. It is denied that the workmen

were transferred as alleged. It is informed that re-deployment of the

contingent workers from Madhopur to Jammu was only to provide an

alternative job, otherwise their services are not inter transferable from one

work centre of respondent ONGC to another and only an opportunity in

special circumstances is given to work elsewhere. It is also denied that the

work taken from the petitioners is of a permanent and perennial nature. It is

pleaded that the petitioners were not engaged in accordance with

regulations of the respondent ONGC; that in accordance with the

settlement aforesaid as well as the Standing Order of the respondent

ONGC, the contingent employees are considered for regular employment

as and when vacancies arise in the Northern region. The respondent

ONGC disputes that the petitioners are performing the same or equal work

as the regular employees. It is pleaded that the work in the Northern region

was mainly exploratory and thus temporary in nature and governed by the

Petroleum Exploration License (PEL) granted to the respondent ONGC by

the Government; the said licence for work in Jammu and Kashmir has

lapsed in January, 2002 and the efforts for its re-grant have also not

fructified; that the licence for Himachal Pradesh has expired in 2003; that

besides the establishments in Jammu and Kashmir and Himachal Pradesh,

the only other establishment in the Northern region is the store yard at

Madhopur and which also is required to be wound up owing to the works in

Jammu and Kashmir and Himachal Pradesh coming to an end. It is

contended that the work of the respondent ONGC in the said region cannot

be said to be of a perennial nature.

14. The first question which arises for adjudication is the maintainability

of this writ petition in the face of the dismissal, of the earlier writ petitions

claiming the same reliefs and of the SLP preferred to the Supreme Court

against the orders of dismissal of earlier writ petitions. It is not in dispute

that all the facts and circumstances except the two factors noted

hereinabove were the same at the time of filing of the earlier writ petitions

also. Thus, the only question remaining to be considered is whether the

said two factors entitle the petitioners to re-litigate which otherwise has

been held to be an abuse of the process of court.

15. One of the factors pleaded is the issuance of the notification under

the Contract Labour (Regulation and Abolition) Act. No arguments on the

said aspect have been addressed. Even otherwise the issuance of the said

notification would not entitle the petitioners to re-litigate. The petitioners

are not contract labour and in any case the only effect of such a notification

is to prohibit the employment of contract labour in the operations

mentioned therein. The said notification ipso facto does not regularize the

services of the contract labour (see Municipal Corporation of Greater

Bombay Vs. K.V. Shramik Sangh AIR 2002 SC 1815).

16. The second factor urged for re-litigation is the factum of the

respondent ONGC, even after the dismissal of the earlier writ petitions and

the SLP, continuing to engage the petitioners. There is no denial of the

said fact in the counter affidavit of the respondent ONGC. The only thing

pleaded is that the licence for exploration was valid till the year 2002 and

2003 as aforesaid. From the same it appears that since the exploration

licence of the respondent ONGC was renewed after the dismissal of the

earlier writ petitions/SLPs in 1993-94, the respondent ONGC continued to

engage the petitioners as contingent workers.

17. The petitioners have placed before this court only the order of the

High Court at Simla (and not the order dismissing the writ petition filed

before the Chandigarh High Court). From a reading of the said order it

cannot be said that the writ petition was dismissed only on the

representation of the respondent ONGC of having no work for the

petitioners. A reading of the said order conveys that the High Court then

did not find any case for regularization in favour of the petitioners but on

compassionate ground attempted absorption of the petitioners in the

respondent ONGC but the said attempt was also given up on the court

being satisfied of the respondent ONGC having no vacancy. The case then

made out by the petitioners for regularization was the same as is being

made now. When no case for regularization was found to have been made

out then, no case for such regularization can be made out now. Moreover,

if it is the case of the petitioners that the respondent ONGC had obtained

the order of dismissal of the earlier writ petition by misrepresentation, the

appropriate court to approach in this regard was the court to which

misrepresentation had been made. This court cannot allow the petitioners to

re-litigate on the said ground.

18. The counsel for the petitioners in this regard has drawn attention to

the order in the writ petition filed by the petitioners directly in the Supreme

Court and in which order liberty was given to the petitioners to approach

the Delhi High Court. The said liberty appears to have been given only on

the basis of the statement of the counsel for the petitioners. Otherwise there

does not appear to be any reason for the Supreme Court to of its own direct

the petitioners to approach this court.

19. The counsel for the petitioners has also sought to urge that the

second round of writ petition is maintainable owing to the order aforesaid

of the Supreme Court. I am unable to agree. From the order dated 8 th May,

2001 of the Supreme Court dismissing the writ petition of the petitioners it

is clear that the Supreme Court was not inclined to entertain the writ

petition; the petitioners rather than facing the dismissal sought to withdraw

the petition with liberty to approach this court and which was granted. The

respondent ONGC was not even represented then before the Supreme

Court. The Supreme Court merely granted liberty, without going into the

maintainability or otherwise of the proposed writ petition.

20. The counsel for the petitioners has sought to rely heavily on the

report of the recommendation dated 24th July, 1998 of the Committee

constituted by the respondent ONGC to go into the problems of the

petitioners. The said Committee found requirement in the category of

Class IV employees at the headquarter in Dehradun and ruled out

retrenchment of the contingent employees. Though the aforesaid report

does appear to indicate that in 1998 the respondent ONGC did have work

for the petitioners and the contingency for discharging the services of the

petitioners had then not occurred but the fact remains that the same is but a

report of the Committee. The authorities concerned of the ONGC do not

appear to have accepted the said report. The decision to accept or not to

accept the report was of the said authority and the report of the Committee

was not final. The said fact also thus does not prevail upon me to hold the

petitioners entitled to re-litigate.

21. There is yet another important aspect. The Constitution Bench of the

Supreme Court has since in Secretary, State of Karnataka Vs. Uma Devi

AIR 2006 SC 1806 dealt authoritatively with the powers of the court for

regularization of employment. It has been held that the courts have no

power to so grant the relief of regularization of services of persons engaged

temporarily and on daily wage and without complying with the recruitment

rules and regulations. The Supreme Court has further held that the courts,

out of considerations of sympathy or injustice or inequity cannot impose

such casual workmen on an organization through the backdoor of initial

casual employment and in breach of the recruitment regulations of the

organization, for howsoever long they may have worked with the

organization.

22. It was as such enquired from the counsel for the petitioners at the

outset only as to how in view of the dicta of the Constitution Bench, this

writ petition seeking relief of regularization is maintainable. Though the

counsel for the petitioners sought to draw the attention to several dicta pre

Umadevi (supra), but the same are of no avail in view of the Constitution

Bench having been constituted and adjudicated the matter. The counsel for

the petitioners then invited the attention to Oil and Natural Gas Corpn.

Ltd. v. Engineering Mazdoor Sangh (2007) 1 SCC 250. However, the

said judgment was pronounced shortly after the Constitution Bench

judgment in Umadevi and does not consider the judgment in Umadevi and

thus no reliance can be placed thereon.

23. The counsel then drew attention to Maharashtra State Road

Transport Corporation Vs. Casteribe Rajya P. Karmchari

Sanghatana 2009 (12) SCALE 25. The Supreme Court in the said

judgment has held that Umadevi did not consider the powers of the

industrial adjudicator under the Industrial Disputes Act. The petitioners

who have opted not to approach the industrial adjudicator and are seeking

relief directly from this court cannot for this reason rely on the said

judgment also which deals exclusively with the powers of the industrial

adjudicator.

24. The counsel for the petitioners next drew attention to Mineral

Exploration Corporation Employees' Union v. Mineral Exploration

Corporation Limited (2006) 6 SCC 310. The said judgment though post

Umadevi is not found to help the petitioners. The Supreme Court merely

remanded the matter to the Industrial Tribunal for decision in accordance

with Umadevi. Of course, while so remanding it was observed that the

term "contingent employee" is unknown to industrial law and in that case

was also not included in the Standing Orders and that it will be "proper to

regularize the services of the workmen who have worked for several

years". I may however add that subsequently in Official Liquidator Vs.

Dayanand (2008) 10 SCC 1, while noticing that certain judgments had

attempted to dilute the ambit of Umadevi, the Supreme Court held that it is

not permissible.

25. The counsel for the petitioners also contends that Umadevi does not

create an absolute bar. The argument is that the Constitution Bench of the

Supreme Court has held the courts to be not entitled to regularize

temporary/casual/daily wage workers "ordinarily" or "normally". It is

contended that wherever the court finds the circumstances to be

extraordinary or an unfair labour practice having been followed, the bar of

Umadevi would not come into play. It is contended that the respondent

ONGC has nowhere disclosed as to what, if any, is the procedure for

regular employment of the workmen in Class III and Class IV categories in

which the petitioners were taken as contingent workers. Reference is made

to Section 3(d) of the Employment Exchanges (Compulsory Notification of

Vacancies) Act, 1959 to contend that the same does not apply to

employment to do unskilled office work as defined in Section 2(i) of the

said Act; thus it is not as if regular employment in the categories in which

the petitioners have been taken as contingent employees has to be

necessarily through employment exchange. It is further contended that the

requirement even if any that the office order dated 16 th July, 1991 imposes,

of prohibiting fresh contingent employment from open market without

being sponsored by the Employment Exchange cannot override the

Standing Orders aforesaid of the respondent ONGC. Alternatively it is

argued that the same prohibits fresh employment only, the petitioners are

employed from much earlier. It is also contended that the petitioners are

claiming their rights under the Standing Orders aforesaid of the respondent

ONGC and for this reason also the judgment in Umadevi is not applicable.

It is urged that though in terms of the Settlement in the industrial dispute

(supra) and the order of the Simla High Court as well as the stand in the

counter affidavit in the present writ petition, the petitioners were to be

absorbed / regularized whenever vacancy occurs and the vacancy exists as

per the report (supra) of the Committee, but the petitioners have not been

regularized. The argument is that all the said facts clearly show the unfair

labour practice adopted by the respondent ONGC and which element has

not been considered by Umadevi. It is contended that the case of

exploitation of the petitioners workmen by the respondent ONGC has been

made out, and the same is sufficient to take the present case out of the

"ordinarily" and "normally" of Umadevi. It is contended that the initial

engagement of the petitioners being in accordance with the Standing

Orders of the respondent ONGC and which also entitles the petitioners to

be considered for regularization, cannot be said to be an illegal

employment and thus no case of backdoor entry is made out. Reference is

also made to Kishore K Pati Vs. District Inspector of Schools (2000) 9

SCC 405 and Kehar Singh Vs. Electronics Corporation of India 43 (1991)

DLT 13 (SN) (DB) to contend that for absorption/regularization of those

already employed/working, the route of employment exchange is not

required to be followed. It is further urged that the conversion from

contingent to regular employees does not come within the mischief of

Umadevi.

26. The learned ASG appearing for the respondent ONGC has per

contra contended that this second round of litigation on the same cause of

action is not maintainable. It is assured that in terms of the Settlement

arrived at and the order of the Simla High Court, as and when the vacancies

are occurring, the petitioners are being considered for regularization and

will continue to be so considered in future also; no case has been made out

of the respondent ONGC having acted in contravention of the said

settlement/order. It is urged that merely because some of the petitioners, in

an attempt to be retained were transferred wherever possible cannot be held

against the respondent ONGC. The difficulties in engaging the petitioners

in other regions, the unions wherein prohibit bringing of workers from

outside the region are explained. Otherwise it is contended that there is no

change from the time of dismissal of the earlier writ petitions and the SLPs.

27. It is also contended that in Oil and Natural Gas Corpn. Ltd. v.

Engineering Mazdoor Sangh (2007) 1 SCC 250 (supra) the industrial

adjudicator had only directed ONGC to consider the workman as and when

the vacancies to the regular post arise; the Single Judge and the Division

bench of the High Court had however directed regularization and which

order was set aside by the Supreme Court. Attention is also invited to the

paragraphs of the said judgment in which the Supreme Court noticed the

nature of employment and the needs of ONGC and the dwindling

exploration licences of the ONGC. Reliance is also placed on Satya

Prakash Vs. State of Bihar 2010 (2) SCALE 131 in this regard. The

petitioners in Satya Prakash (supra), who had also been employed as daily

wagers for over ten years, sought to claim regularization by enforcement of

paragraph 53 of Umadevi judgment. The Supreme Court however clarified

the distinction between illegal and irregular employment. An irregular

employment within the meaning of para 53 was defined as one in

accordance with the selection procedure, against a vacant post but suffering

from want of compliance of one of the elements in the process of selection

which does not go to the root of the process.

28. The counsel for the petitioners in rejoinder has urged that the

petitioners now after 25 years cannot be terminated and are ready to work

anywhere in India for the respondent ONGC. It is contended that the

petitioners are entitled to the second round of litigation because they are

still working for the respondent ONGC. It is stated that Umadevi is a case

of illegal appointment while the petitioners have been appointed in

accordance with the standing orders of the respondent ONGC. Attention is

invited to certain other judgments, though of the pre Umadevi period, but

holding work for ten years itself to be a sufficient qualification for

regularization.

29. The petitioners cannot now be heard to urge that their initial

appointment was regular. The Standing Orders for contingent employees

of ONGC, on which reliance is placed by the petitioners provide that the

same do not apply to regular employees to whom Fundamental and

Supplementary Rules, Central Civil Services (Classification, Control and

Appeal) Rules, 1965 etc have been extended. The very nomenclature of

employment of the petitioners i.e. as contingent employees shows that the

employment of the petitioners was subject to the contingency. The right of

absorption / regularization of the petitioners in terms of the said Standing

Orders also is only to be considered for conversion as a regular employee.

The question of such conversion can arise only subject to the possibility of

a post/vacancy. In the earlier writ petitions preferred by the petitioners it

has been unequivocally held that there was then no post or vacancy in

which the petitioners could be accommodated. Save for the report aforesaid

of the Committee, now also it is not borne out that there is any post or

vacancy in which the petitioners can be absorbed. On the contrary, it is

mentioned in the counter affidavit of the respondent ONGC and also borne

out from the cited judgments that the work of the respondent ONGC in the

Northern Region has been dwindling and the respondent ONGC is actually

over staffed and is resorting to voluntary retirement schemes to remedy the

same. In such circumstances, when the respondent ONGC has no job or

work for the petitioners, the petitioners cannot be imposed on the

respondent ONGC.

30. The Constitution Bench judgment in Umadevi cannot be

distinguished on factors as urged. It is quite clear from the prayer clause of

the writ petition itself that the relief claimed in the writ petition flies in the

teeth of the judgment in Umadevi. The expression "ordinarily" and

"normally" in the judgment cannot be so stretched to set the judgment at

naught. The consideration in this regard urged are such which would be

found in most of the cases of regularization. In Satya Prakash (supra) also

the workmen had been continuing for over ten years. If such

considerations are permitted to circumvent the Constitution Bench

judgment, it would perpetuate the malady which the Constitution Bench in

Umadevi intended to remedy. As far as the entitlement of the petitioners

under the Settlement already arrived at and/or the order of the Simla High

Court is concerned, though the Learned ASG appearing for the respondent

ONGC has assured that the respondent ONGC stands by the same, neither

is it the pleaded case of the petitioners that the respondents have acted in

contravention of the same nor have the petitioners been able to give a

single instance of such a violation. The argument that the petitioners have

a right because of the Standing Orders is also not an argument to permit the

petitioners to re-litigate. The said standing orders were in existence even at

the time of the earlier writ petitions.

31. This court therefore does not find the petitioners to have made out

any case for grant of the relief prayed for in the writ petition. The writ

petition is dismissed. However, since the petitioners have now for the last

about four years enjoyed the interim protection of this court and the

petitioners are likely to prefer their remedies against this order also, to

prevent the situation from being precipitated further, it is directed that

notwithstanding the dismissal of this writ petition, the interim order of

status quo earlier granted therein shall continue for a further period of

eight weeks from today. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 1st June, 2010 M