Delhi High Court
Ongc Diploma Engineers Technical ... vs Oil And Natural Gas Corporation ... on 23 March, 2021
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 23rd March, 2021
+ W.P.(C) 10482/2019, CM Nos. 43342/2019 & 29274/2020
ONGC DIPLOMA ENGINEERS TECHNICAL ASSOCIATION
(DETA) THROUGH: ITS PRESIDENT AND ORS.
..... Petitioners
Through: Dr. Menaka Guruswamy, Sr. Adv.
with Mr. Prashant R. Dahat,
Ms. Aishwarya Murali and
Ms. Shreyas Gacchi, Advs.
versus
OIL AND NATURAL GAS CORPORATION LTD. AND ORS.
..... Respondents
Through: Mr. Tushar Mehta, Solicitor General of
India with Mr. Abhishek Gupta, Adv.
with Ms. Ikshita Singh,
Mr. Raushal Kumar, Mr. Sunil Dutt
Mishra and Mr. Neeraj Kumar, Adv.
for ONGC
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
V. KAMESWAR RAO, J. (ORAL)
CM No. 29274/2020
1. By this order I shall decide this application filed by the
petitioners. The prayers in the application are the following:
"In view of the facts and circumstances stated above, it
is most respectfully prayed that this Hon'ble Court may
be pleased to:-
A) Allow present Application for Direction;
B) Direct the Respondent No. 1, 2 & 3 to maintain
parity and extend modified promotional benefits
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:23.03.2021
12:48:29
provided under Memorandum of Settlement (MOS)
dated 6.2.2020 to all Petitioners of present Writ Petition
during the pendency of Writ Petition and;
C) Direct the Respondent No. 1, 2 & 3 to relax condition
mentioned in clause 3(VI) of Memorandum of Settlement
MOS dated 6.2.2020 which says "the benefits arising
this settlement will be extended to the eligible employees
who have not filed disputes and/ or cases before
tribunals/Court(s). However, Employees who have filed
disputes and/ or cases before tribunal/Court would have
to withdraw the same and submit the relevant order of
the Authority/Court along with affidavit within a period
of 60 days from the date of issue of Order to avail the
benefit under this settlement" with regards to the
present Petitioners during the pendency of the present
Writ Petition.
D) Pass any other or further orders as this Hon'ble
Court may deem fit, just and proper in the facts and
circumstances of the present case."
2. The writ petition has been filed by the petitioners seeking
implementation of Oil and Natural Gas Commission (Recruitment
and Promotion) Regulation 1980 ('R&P 1980' for short) and
Modified Recruitment & Promotion Regulation 1997 ('Regulation
of 1997', for short) and for quashing and setting aside the
Memorandum of Understanding of 2004 (MoU) with regard to the
recruitment and promotion policy of the Diploma holders who are
inducted at A-II level after 2004.
3. Some of facts as noted from the record are that the members
of the petitioner No.1/ association are the Diploma holder who have
been appointed in terms of the policy under the MoU dated August
19, 2004. Suffice to state that the R&P 1980 were framed on April
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:23.03.2021
12:48:29
25, 1980. Under the said regulations, Diploma holders were
promoted to the executive cadre EO / AE after four years. The said
regulation has been modified on March 14, 1997. However, the
appointment and promotion policy of Diploma holders remained as
it was in 1980 Regulation. The impugned MoU was signed
between the ONGC and recognized unions of ONGC primarily for
modifying R&P 1980. The MoU came into effect on January 01,
2004. In 133rd Board meeting held on October 28, 2004, the
proposal for review of R & P policy was accepted.
4. It is the case of the respondents that the petitioner
association is not a recognized association and not a part of
collective bargaining process.
5. The writ petition was filed on September 17, 2019. During
the pendency of the writ petition a Memorandum of Settlement
dated February 06, 2020 ('MoS', for short) was signed between the
ONGC and recognized Unions of ONGC before the Conciliation
Officer under Section 18(3) (b) and (d) of the Industrial Disputes
Act, 1947 ('ID Act' for short) . It is noted from the record that out
of 12 recognised unions, 11 unions consented to the settlement. Be
that as it may, the submission of Dr.Menaka Guruswamy, learned
Senior Counsel appearing for the petitioner is that, in terms of the
MoU recruitment is made at A-II level instead of Junior Engineer
level and the further grades are A-III and A-IV level. From A-IV
level, Diploma Engineer is promoted to EO level. The total years of
service required to be promoted to EO level was increased from 4 to
18 years (A-II + six years, A-III + six years, A-IV + six years EO).
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:23.03.2021
12:48:29
The position remained the same till 2020 when with the execution
of the MoU, the period has been reduced from 18 years to 12 years
i.e. (4+4+4 years).
6. She submitted that the ONGC being a 'State' under Article
12 of the Constitution of India is bound to act reasonably and fairly
and in consonance with the Constitution. The impugned MoU and
the MoS are in violation of Article 14 rights of the Diploma holders,
inasmuch as the MoU increased the promotion span of the
petitioners to the post of EO / AE from four years to 18 years. It
has been reduced to 12 years in 2020.
7. According to her, an artificial discrimination is made
between the Diploma holders having identical qualification, joined
before and after 2004. According to her, there is no intelligible
differentia between Diploma holders appointed post 2004 and prior
to 2004 as they have similar educational qualifications. Those who
joined post 2004, were downgraded to A-II level where the
requirement of minimum qualification is of matriculation with
Board certificate and fitting and mechanic trade under R & P 1980
as opposed to the level of Junior Engineer with eligibility of
Diploma holders in engineering or equivalent. This downgradation
is unfair, illegal and arbitrary. There is also downgradation in the
pay scale from Rs.16,000/- to Rs.12,000/-, as per the revised rates of
2000. She submitted, the petitioners' right to be considered for
promotion has been deprived by the impugned MoU and MoS as
they have been downgraded into different categories, from which
they would be promoted only after a span of 12 years which was
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:23.03.2021
12:48:29
previously four years. Therefore, this difference of eight long years
deprives the petitioners, their right to be considered for promotion.
She states that securing a promotion is an essential element of
Article 16 of the Constitution of India. Therefore, respondents
increased the span of promotion from 4 years to 18 years and then
12 years have denied the petitioners the avenues for promotion.
8. On the plea of waiver of the respondents, she stated that
even though the petitioners were appointed under the impugned
MoU, the principle of estoppel or waiver would not apply as the
respondents have a constitution obligation to create promotional
avenues. She also submitted that this Court in exercise of its
powers under Article 226 can create promotional avenues. In
support of her submissions she has relied upon the judgment in the
case of ONGC v. Petroleum Coal Labour Union and Ors. (2015) 6
SCC 494 that ONGC being instrumentality of State is covered
under Article 12 of the Constitution of India and M.P. Junior
Engineers' Assn. & Sangarsh Samiti v. State of M.P. 1990 Supp.
SCC 229, wherein the Supreme Court while examining the
subsequent amended rules which reduced the chances of the
petitioners getting promoted, held that order was discriminatory to
the people who were being promoted after the amendment came
into being.
9. She has also relied upon the judgment of the Supreme Court
in Ajit Singh (II) v. State of Punjab (1999) 7 SCC 209 in support
of her submission that right to be considered for promotion is
recognised as a fundamental right. Similarly, she has relied upon
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:23.03.2021
12:48:29
the judgment of the Supreme Court in State of Tripura v. K.K. Roy
(2004) 9 SCC 65, to contend while dealing with promotions, being
a condition of service, the State has a duty to provide avenues for
promotion.
10. Similarly, she has also relied upon the judgment in Food
Corporation of India v. Parashotam Das Bansal, (2008) 5 SCC
100 in support of her submission that the employees who have been
denied promotion for long years can seek a direction from the Court
in that regard.
11. On the other hand, Mr.Tushar Mehta, learned Solicitor
General of India would contend that this writ petition under Article
226 is not maintainable in view of other efficacious remedy
available to the writ petitioners under the Industrial Disputes Act,
1947. According to him, the service conditions of the employees
are governed by the Industrial Disputes Act, 1947 ('ID Act', for
short) and have to be adjudicated only by the forums created under
the said Statute and not otherwise. According to him, the writ
petitioners are admittedly workmen within the meaning of the ID
Act and their service conditions including recruitment and
promotions are governed under the R&P Regulations as amended
from time to time including any settlements signed between the
respondents and various unions under the provisions of the ID Act.
In other words, any alleged change of condition in respect of
workmen vide a settlement or agreement, can only be challenged
before the Industrial Tribunal and not before this Court in a writ
jurisdiction. Therefore, the petitioners are liable to first exhaust the
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:23.03.2021
12:48:29
remedy provided under the ID Act. In this regard, he has relied
upon various judgments of this Court and the Supreme Court
wherein it has been held that only remedy in respect of an industrial
dispute for enforcement of a right or obligation under the ID Act, is
to get adjudication under the Act. He has referred to the judgments
in the case of Premier Automobiles Ltd. V. Kamlekar Shantaram
Wadke of Bombay, (1976) 1 SCC 496, State of Uttar Pradesh v.
Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti,
(2008) 12 SCC 675.
12. He also stated that the petition is not maintainable for non-
joinder of parties, inasmuch as the recognised unions who signed
the impugned MoU, 2004 which is a statutorily enforceable
settlement, have not been made a party in the present writ petition.
He stated that the petitioners / Association were not party to the
aforesaid MoU, as it is not a recognized Union and was admittedly
formed only in the year 2013. However, all the workmen were
represented through recognized Unions who executed the MoU,
2004. In view of this, the prayer with regard to setting aside the
MoU 2004, cannot be granted unless the recognized Unions who are
signatory to the aforesaid MoU, 2004 have been made party in the
present writ petition.
13. In this regard, he has relied upon the judgment of the
Supreme Court in State of Orissa v. Madan Gopal Rungta,
reported in 1952 SCR 28. Even on merit he contested the plea of
Dr. Menaka Guruswamy by stating that right of promotion is in
terms policy alone. If the policy contemplates a particular
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:23.03.2021
12:48:29
procedure for promotion, the promotion can be effected only in such
a manner and in no other manner. The matters relating to
recruitment and promotion policy falls within the exclusive domain
of the executive and this Court ought not to sit over the executive
wisdom. The service conditions of the petitioners / association are
governed under R&P, 1980 along with subsequent modification
vide modified R&P, 1980 in the year 1997, MoU dated August 19,
2004 and now the MoS dated February 06, 2020. The petitioners
who were appointed subsequent to the execution of the MoU, 2004,
were well aware of the same at the time of induction. They have
participated in the appointment process under the impugned MoU,
2004, and have also been promoted under the same. After 15 years
of the impugned MoU being in force, the petitioners are estopped
from challenging the policy under which they were inducted and
promoted.
14. Mr. Mehta also submitted that the right to be considered for
promotion is a condition of service but not a promotion itself. The
rules which merely affects the chances of promotion cannot be
regarded as varying a condition of service and thus, the impugned
MoU, 2004 does not suffer from any arbitrariness. In this regard, he
has relied upon the judgment in the case of State of Mysore & Anr.
v. G.B. Purohit & Ors., 1967 SLR 753.
15. He also stated that all the petitioners herein were appointed
under the 2004 MoU, out of them 106 petitioners have already been
promoted to A-III level under the said MoU. The petitioners having
been appointed under the impugned MoU and having taken the
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:23.03.2021
12:48:29
benefit under the same, are governed by the terms and conditions of
the MoU and as such they are estopped from challenging the same.
In this regard, he has referred to the judgment in the case of Union
of India v. N. Chandrasekharan, 1998 (3) SCC 694. He also relied
upon the judgment of the Supreme Court in the case of Ashok
Kumar v. State of Bihar, (2017) 4 SCC 357. On merit, it is his
submission that the petitioners cannot seek parity with the Diploma
holders recruited prior to MoU, 2004, who were recruited in a
different post i.e. JE under a different Recruitment and promotion
policy. The aforesaid post of JE was neither advertised, nor did the
petitioners applied, competed or selected against the said post. The
employees possessing similar or same qualification but inducted in
different posts at different point of time under different Recruitment
and Promotion policies cannot be compared.
16. He stated that Article 14 has no applicability in the instant
case, inasmuch as the Diploma holders recruited prior to and post
MoU, 2004 form distinct categories in a class of service on account
of the variance in their nature, mode and manner of recruitment,
nature and character of the posts and promotional avenues and terms
and conditions of service. He has relied upon the judgment in the
case of Air India v. Nergesh Meerza, (1981) 4 SCC 335 and Dilip
Kumar Garg v. State of U.P., (2009) 4 SCC 753.
17. That apart, he stated that mere possession of any
qualification does not give entitlement for induction at a particular
level. The promotion policy is for those inducted in a particular post
and not merely on possessing a qualification.
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:23.03.2021
12:48:29
18. On the extending modified promotional benefit provided
under the MoS dated February 06, 2020 to the writ petitioners is
concerned, the clause 3(VI) categorically provides that the benefits
under the aforesaid MoS can only be extended to such eligible
employees who fulfill terms and conditions as agreed upon in the
aforesaid MoS, including the withdrawal of disputes / court case(s)
by the employees filed before different forums and the same having
been entered upon before the Conciliation officer under Section
12(3) & 18 of the ID Act, between the recognized unions
representing the workmen of ONGC and the ONGC management
and the same is a legally binding document qua all the workmen
including the writ petitioners herein, represented via various
recognized Unions.
19. That apart, the petitioners have not challenged the entire
settlement but have challenged only one clause in isolation which is
impermissible. He seeks the dismissal of the application filed by
the petitioners in the writ petition.
20. Having heard the learned counsel for the parties and perused
the record, the prayers made in the application by the petitioners are
for seeking a direction to respondent Nos.1 to 3 to maintain parity
and extend modified promotional benefits provided under the MoS
to all the petitioners.
21. I may state here that on November 27, 2020 while issuing
notice on this application under consideration an oral observation
was made by this Court not to take coercive steps against the
petitioners.
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:23.03.2021
12:48:29
22. Suffice to state that on February 23, 2021, Mr.Mehta on
instructions has submitted before the Court that the order dated
November 27, 2020 by which the respondents were proceeding to
make promotions, shall be kept in abeyance till the next date of
hearing. The said statement continued thereafter.
23. Having said that the first submission of Mr. Mehta on the
application is that in the present petition the petitioners impugns the
MoU dated August 19, 2004 which has been executed by the ONGC
with the recognised unions and even the subsequent MoS dated
February 06, 2020 was entered between the management of the
ONGC and 11 recognised unions before the Conciliation Officer
under the provisions of the ID Act and the remedy for the
petitioners is to challenge the MoU / MoS under the provisions of
ID Act by raising an industrial dispute. This submission of Mr.
Mehta is appealing.
24. A perusal of prayer clause reveal that the petitioners are
seeking quashing and setting aside of the MoU dated August 19,
2004 and also the minutes of the Board meeting held on October 28,
2004 with regard to recruitment and promotion policy of the
Diploma holders.
25. That apart, I find from the submissions filed on behalf of the
petitioners, they are also challenging the MoS dated February 06,
2020 to contend that the same has deprived the petitioners
promotion after four years by increasing the span to 12 years. It is
the stand of the respondents that even the MoS dated February 06,
2020 was entered between the ONGC and 11 recognised unions
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:23.03.2021
12:48:29
before the Conciliation Officer under the provisions of Section
12(3) & 18 of the ID Act. Surely, there is a dispute between the
ONGC and the petitioners (employer and workmen) or between
unions on one hand and the petitioners (workmen and workmen) on
the other hand, which falls within the definition of industrial dispute
as defined under Section 2(k) of the ID Act, and such a dispute need
to be decided by an Industrial Tribunal under the provisions of ID
Act, on the petitioners raising an industrial dispute. It is also
conceded position that the petitioners are workmen within the
meaning of ID Act.
26. The Supreme Court in the case of State of Uttaranchal v.
Jagpal Singh Tyagi, (2005) 8 SCC 49, has in paragraphs 4 and 5
held as under:
"4. We find that the approach of both the Labour
Court and the High Court is clearly on wrong
premises. If there was dispute on the question as to
whether the settlement was bona fide or was
obtained by fraud, misrepresentation or
concealment of facts, the same can only be the
subject-matter of another industrial dispute. To
substantiate the averments that such settlement
could not have been arrived at, nothing was brought
on record by the respondent employee to show that
there was any pressure exercised or that he was
subjected to undue influence. There is also no
material to show that the settlement was intended to
frustrate the order passed by the High Court. At no
point of time, the respondent employee raised any
dispute as regards the fairness of the settlement.
Having obtained the benefit, it was not open to him
to turn down without justifiable reasons to contend
that the settlement was not fair.
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:23.03.2021
12:48:29
5. In National Engg. Industries Ltd. v. State of
Rajasthan it was observed as follows: (SCC p. 24,
para 393)
"Settlement is arrived at by the free will of the
parties and is a pointer to there being goodwill
between them. When there is a dispute that the
settlement is not bona fide in nature or that it
has been arrived at on account of fraud,
misrepresentation or concealment of facts or
even corruption and other inducements it could
be the subject-matter of yet another industrial
dispute which an appropriate Government may
refer for adjudication after examining the
allegations as there is an underlying assumption
that the settlement reached with the help of the
Conciliation Officer must be fair and
reasonable."
(Emphasis supplied)
27. Even a Coordinate Bench of this Court in the case of PTI
Employees Union v. Press Trust of India Ltd., 2020 SCC OnLine
Del 1216 has in para 39 to 45 held as under:
"39. The petitioners have challenged the retrenchment of
297 employees by the respondent on 29th September, 2018.
However, 78 out of 297 retrenched employees have
accepted their retrenchment and have applied for
withdrawal of their statutory benefits including gratuity etc.
during the pendency of these writ petitions.
40. The retrenched employees have a statutory remedy to
raise an industrial dispute under the Industrial Disputes
Act. The petitioners have based their claims on the alleged
violation of the provisions of the Industrial Disputes Act.
There are no exceptional circumstances for exercise of the
writ jurisdiction under Article 226 of the Constitution in
these writ petitions.
41. This case is squarely covered by the principles laid
down by the Supreme Court in U.P. State Bridge
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:23.03.2021
12:48:29
Corporation Ltd. v. U.P. Rajya Setu Nigam Karamchari
Sangh (supra) in which the High Court allowed a writ
petition of the Trade Union to challenge the termination of a
workman. The Supreme Court held that the High Court
erred in entertaining the writ petition since the disputes
related to the enforcement of a right/obligation under the
Industrial Disputes Act and the specific remedy was
provided under the Industrial Disputes Act. Relevant
portion of the judgment is reproduced hereunder:
"11. We are of the firm opinion that the High Court
erred in entertaining the writ petition of the respondent
Union at all. The dispute was an industrial dispute both
within the meaning of the Industrial Disputes Act, 1947
as well as U.P. IDA, 1947. The rights and obligations
sought to be enforced by the respondent Union in the
writ petition are those created by the Industrial
Disputes Act.
42. This case is also covered by A.P. Foods v. S.
Samuel (supra) in which the High Court allowed the writ
petition against stoppage of ex-gratia/bonus by the
management. The Supreme Court reiterated the principles
laid down in U.P. State Bridge Corporation Ltd. (supra)
and catena of other judgments and held that the writ
petition under Article 226 of the Constitution should not be
entertained when the statutory remedy is available under
the Act unless exceptional circumstances are made out.
Para 6 of the judgment is reproduced hereunder:
"6. In a catena of decisions it has been held that a writ
petition under Article 226 of the Constitution of India
should not be entertained when the statutory remedy is
available under the Act, unless exceptional
circumstances are made out.
43. This case is also covered by State of Uttar
Pradesh v. Uttar Pradesh Rajya Khanij Vikas Nigam
Sangharsh Samiti (supra) in which the writ petition to
challenge retrenchment of 460 employees was allowed by
the Allahabad High Court and various interim orders were
passed in favour of the employees. The Supreme Court held
that the High Court should not have entertained the writ
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:23.03.2021
12:48:29
petition in view of statutory remedy to the employees under
the Industrial Disputes Act. The Supreme Court dismissed
the writ petition with liberty to the employees to approach
the Tribunal in accordance with law. Relevant portion of the
said judgment is reproduced as under:
"50. In our considered view, however, all such
actions could be examined by an appropriate
court/tribunal under the industrial law and not by a
writ court exercising power of judicial review under
Article 226 of the Constitution. If the impugned
action of the Corporation of retrenchment of several
employees is not in consonance with law, the
employees are certainly entitled to relief from an
appropriate authority."
44. This case is also covered by Transport and Dock
Workers Union v. Mumbai Port Trust (supra) in which the
Bombay High Court allowed the writ petition in respect of
an industrial dispute. The Supreme Court held that the High
Court should have dismissed the writ petition on the ground
of existence of alternative remedy under the Industrial
Disputes Act. The Supreme Court further observed that an
over liberal approach was unnecessarily adding to their
load of arrears instead of observing judicial discipline in
following settled legal principles. Relevant portion of the
judgment is reproduced hereunder:
"14. In our opinion the writ petition filed by the
appellants should have been dismissed by the High
Court on the ground of existence of an alternative
remedy under the Industrial Disputes Act. It is well
settled that writ jurisdiction is discretionary
jurisdiction, and the discretion should not ordinarily
be exercised if there is an alternative remedy
available to the appellant. In this case there was a
clear alternative remedy available to the appellants
by raising an industrial dispute and hence we fail to
understand why the High Court entertained the writ
petition. It seems to us that some High Courts by
adopting an over liberal approach are unnecessarily
adding to their load of arrears instead of observing
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:23.03.2021
12:48:29
judicial discipline in following settled legal
principles. However, we may also consider the case
on merits."
45. According to the learned senior counsel for the
petitioner, the writ jurisdiction should be exercised because
two years have passed after the filing of this writ petition.
There is no merit in this contention as the respondent raised
the preliminary objections to the maintainability of the writ
petition at the very threshold of the commencement of
arguments and these cases were pending due to lengthy
arguments of learned counsels for both the parties. The
petitioners themselves have filed CM. Appl. 41299/2018 in
W.P.(C) 10596/2018 and CM. Appl. 41305/2018 in W.P.(C)
10605/2018 seeking adjudication on the maintainability of
writ petitions. That apart, delay by itself has been held by
the Supreme Court not to be a sufficient ground to exercise
the writ jurisdiction. In U.P. State Bridge Corporation
Ltd. v. UP. Rajya Setu Nigam Karamchari Sangh (supra),
the issue of delay on the part of the High Court in disposing
of the dispute was raised before the Supreme Court. The
Supreme Court rejected this plea and held that even when
there is a delay, High Court should not have short-circuited
the process. The Supreme Court dismissed the writ petition
with liberty to the workman to raise an industrial dispute.
Relevant portion of the said judgment is reproduced
hereunder:
"17. The only reason given by the High Court to
finally dispose of the issues in its writ jurisdiction
which appears to be sustainable, is the factor of
delay, on the part of the High Court in disposing of
the dispute. Doubtless the issue of alternative remedy
should be raised and decided at the earliest
opportunity so that a litigant is not prejudiced by the
action of the Court since the objection is one in the
nature of a demurrer. Nevertheless even when there
has been such a delay where the issue raised requires
the resolution of factual controversies, the High
Court should not, even when there is a delay, short-
circuit the process for effectively determining the
facts."
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:23.03.2021
12:48:29
28. The plea of maintainability of the petition has been taken by
the respondents in their counter affidavit (at page 9). No rejoinder
to the counter affidavit has been filed. Even the submissions made
by Mr. Mehta during hearing have not been controverted or dealt
with by the petitioners in their written submissions.
29. The submissions made by Dr. Menaka Guruswamy were by
referring to the judgments in the case of ONGC (supra) to contend
that ONGC is a State within the meaning of Article 12 of the
Constitution of India; M.P. Junior Engineers' Assn. & Sangarsh
Samiti (supra) that the subsequent amended rules which reduced
the chances of promotion held to be discriminatory; Ajit Singh (II)
(supra) that right to be considered for promotion is a fundamental
right; State of Tripura (supra) that a State has a duty to provide
avenues for promotion; Food Corporation of India (supra) when
employee is denied promotion, the Court is within its jurisdiction
to issue necessary direction.
30. The judgments are on the merit of the dispute whether the
MoU / MoS can deprive the promotion to the petitioners by
increasing the span from four years to 18/12 years. Since, I have
accepted the submission made by Mr. Mehta that the remedy for
the petitioners is to approach the Industrial Tribunal by raising
industrial dispute, I refrain from answering those submissions, as
the same need to be urged and considered by the Industrial
Tribunal and any conclusion / finding will have a bearing on the
final outcome of the industrial dispute to be raised by the
petitioners.
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:23.03.2021
12:48:29
31. Accordingly, it is seen that, the MoU / MoS has been
entered by ONGC with the recognised unions, one of which is
before the Conciliation Officer under Section 12(3) & 18 of the ID
Act and statutory remedy is available for the petitioners to raise
dispute under the ID Act. Hence, it must be held that the
appropriate remedy for the petitioners is to raise an industrial
dispute and proceed thereof in accordance with law.
32. I am conscious that this order has been passed on the
application filed by the petitioners for certain reliefs but the issue
raised by Mr. Mehta goes to the root on the maintainability of the
petition in view of the statutory remedy available to the
petitioners.
33. Accordingly, the petition and the application(s) are
dismissed.
V. KAMESWAR RAO, J
MARCH 23, 2020/aky
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:23.03.2021
12:48:29
