Ranjan Gogoi, J.
1. An order dated October 28, 1998, passed by the respondent No. 2 on behalf of the respondent No. 1, refusing to refer to adjudication what the petitioner Association perceives to be a subsisting industrial dispute, has been put to challenge by means of the present writ application. The case has a somewhat chequered history and therefore an enumeration of the essential facts will be called for at the outset. The petitioner claims to represent a total number of 223 contingent workers, a list of which workers has been enclosed to the writ petition. According to the petitioner Association, the persons at serial No. 1 to 115 of the list enclosed had been working as contingent workers in the ONGC continuously since the year 1994 whereas the persons mentioned at serial No. 116 to 223 of the list have been engaged for varying periods of 7 to 9 months in a year since the year 1990. According to the petitioner Association, the members on whose behalf the writ petition has been filed are entitled to be considered for regularisation in accordance with the standing orders of the respondent Corporation in force and, therefore, a demand in this regard was raised before the management and subsequently before the Regional Labour Commissioner (Central) on the basis of a written notice of demand dated June 21, 1996. On the said question being raised by the petitioner Association, the Regional Labour Commissioner (Central) referred the matter to the Assistant Labour Commissioner (Central) at Dibrugarh for conciliation under the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). In the conciliation proceeding both the parties had submitted their written statements and had put forward their respective cases. The dispute between the parties could not be settled in the conciliation and a report of the failure of the conciliation was submitted by the Assistant Labour Commissioner (Central), Dibrugarh by letter dated October 27, 1997 addressed to the Secretary to the Government of India, Ministry of Labour. While the matter was so situated, the ONGC had published a notice in the local newspapers on November 11, 1997 inviting tenders from experienced contractors for providing seismic job service of Geophysical Field Parties in the Assam Arakan Basin and Cachar Fold Belt for one field season. Contending that the ONGC by issuing the aforesaid tender notice was seeking to introduce contract labour to undertake the work performed by the members of the petitioner Association, a writ petition being Civil Rule No. 5744/1997 was filed before this Court.
2. As the notice inviting tenders and the work proposed in the said notice was time-bound i.e. for a period of one year, by the time this Court could attempt a resolution of the dispute arising in the said writ petition filed, the period of one year had almost expired. This Court, therefore had no occasion to go into the said question raised. However, this Court, in the judgment and Order dated September 15, 1998 disposing of the writ petition, took the view that the real dispute between the parties is with regard to the entitlement of the members of the petitioner Association to regularisation in terms of the certified standing orders of the ONGC in force. As the said claim could only be decided on the basis of certain basic facts, the existence of which was disputed (sic) by and between the parties, this Court expressed its inability to resolve the said question in the writ petition filed. However, taking note of the fact that the matter had gone to conciliation under the provisions of the Industrial Disputes Act and the failure report had been submitted to the Central Government under Section 12(4) of the Act and as no decision had been taken by the Central Government on the said report as required under Section 12(5) of the Act, this Court had directed the Central Government to pass appropriate orders under Section 12(5) of the Act in the light of the report of the failure of the conciliation proceedings as submitted by the Assistant Labour Commissioner (Central) Dibrugarh on October 27, 1997. It is pursuant to the aforesaid order of the Court that the impugned order has been passed on October 28, 1998 refusing to refer the dispute for adjudication by the Industrial Tribunal on the ground that 'The concerned workers are contingent/casual workers, hence their claim to regularise their services is not valid.' Aggrieved, the petitioner Association has instituted the present writ application.
3. I have heard Sri S. Das, learned Counsel appearing for the petitioner, Mr. K. Bandopadhaya, learned senior counsel appearing for the ONGC. None has appeared on behalf of the respondent Nos. 1 and 2.
4. The arguments advanced by Sri Das, learned Counsel for the petitioner, has been short and precise. According to Sri Das, the dispute between the parties is with regard to the entitlement of the members of the petitioner Association to regularisation in service in accordance with the certified standing orders in force. It is submitted that at the stage of the making of the decision as to whether a reference should be made or not, the Central Government cannot decide on the tenability of the claim made which pertains to the area of adjudication which is required to be made by the Industrial Court. In the present case, the Central Government has refused to make reference on the ground that the claim for regularisation is not valid as the concerned workers are contingent/casual workers. The aforesaid conclusion, according to learned Counsel for the petitioner, touches on the merits of the controversy which the Central Government was not authorised to consider at the stage of deciding whether a reference should be made or not. Though a number of decisions have been placed in support of the contentions advanced, specific reference to two decisions of the Apex Court i.e. in the case of M.P. Irrigation Karmachari Sangh v. State of M.P. and Anr., reported in : (1985)ILLJ519SC and in the case of TELCO Convoy Drivers Mazdoor Sangh and Anr. v. State of Bihar and Ors. reported in : (1989)IILLJ558SC would suffice. On the aforesaid basis, the contention advanced is that the impugned order dated October 28, 1998 discloses patent errors of jurisdiction requiring interference by this Court. In conclusion, Sri Das, learned Counsel for the petitioner, has submitted that the claim of the petitioner Association admittedly being with regard to the entitlement of its members to regularisation in accordance with the certified standing orders in force and the existence of an industrial dispute having been virtually admitted by the ONGC in its affidavit filed in the earlier writ proceeding i.e. Civil Rule No. 5744/1997, this Court may proceed to exercise its extended jurisdiction by requiring the respondents No. 1 and 2 to make a reference of the dispute to the Industrial Tribunal for due adjudication.
5. The submissions advanced on behalf of the petitioners have sought to be controverted by Mr. K. Bandopadhaya, learned senior counsel appearing for the ONGC. The claim of the members of the petitioner Association for regularisation is sought to be countered on behalf of the ONGC by contending that what is provided for in the standing orders is a mere right of consideration and that too on fulfilment of certain conditions, particularly, with regard to the length of service rendered as contingent workers which the concerned members of the petitioner Association had not fulfilled. There is no right of automatic regularisation as had been claimed by the petitioner Association in the written notice of demand dated June 21, 1996. Referring to the said document dated June 21, 1996, which has been enclosed as Annexure-B to the writ petition, learned senior counsel for the ONGC has submitted that the petitioner Association having admitted its members to be contingent/temporary/ work-charged workers, in addition to raising a claim of automatic regularisation, no error is disclosed in the impugned order dated October 28, 1998 which was passed by the Central Government on a consideration of the claims as appearing in the written notice of demand dated June 21, 1996. Learned Counsel for the ONGC has further submitted that the jurisdiction of the Central Governments to make a reference of an industrial dispute has to be preceded by a satisfaction that such a dispute exists as is apprehended and therefore a consideration of the tenability or existence of an industrial dispute must necessarily be made by the Central Government even though such consideration has to be on a prima facie view. This is precisely what was done by the Central Government in the instant case by considering the claim raised by the petitioner Association in its written notice of demand dated June 21, 1996 whereafter the conclusions as recorded in the impugned order dated October 28, 1998 were reached. In support, reliance has been placed on a Apex Court judgment in the case of Bombay Union of Journalists and Ors. v. State of Bombay and Anr., reported in : (1964)ILLJ351SC .
6. The ambit of the powers of the Central Government at the stage of deciding whether a reference should be made or not is no longer res integra. While it is correct, as argued by learned senior counsel for the ONGC, that making or refusal of a reference has to be preceded by requisite satisfaction, such satisfaction can only be on a prima facie consideration of the merits and not by entering into a detailed adjudication of the same. The Judgment of the Apex Court in the case of Bombay Union of Journalists and others (supra) relied on by the learned Counsel for the ONGC permits a prima facie consideration of the merits of the dispute by the Central Government at the stage of making of the reference and no further. In fact, in the decision of the Apex Court in the case of M. P. Irrigation Karmachari Sangh (supra) the Apex Court has clearly laid down the law that the powers under Section 10 of the Act would enable the appropriate Government only to determine whether an industrial dispute 'exists or is apprehended' and then refer it for adjudication on merits. At the stage of making of the reference the Central Government would be empowered to consider as to whether the claim made is patently frivolous or a belated one, but in no case the Central Government, at that stage, would be entitled to go into the merits of the dispute which is an area carved out by the statute for the industrial adjudicator to decide. The position has been more succinctly described by the Apex Court in the case of TELCO Convoy Drivers Mazdoor Sangh and another (supra) and it may be appropriate at this stage to quote para 11 of the Apex Court's judgment 1989-I-LLJ-558 at p. 560:
'77. It is true that in considering the question of making a reference under Section 10(1), the Government is entitled to form an opinion as to whether an industrial dispute 'exists or is apprehended', as urged by Mr. Shanti Bhushan. The formation of opinion as to whether an industrial dispute 'exists or is apprehended' is not the same thing as to adjudicate the dispute itself on its merits. In the instant case, as already stated, the dispute is as to whether the convoy drivers are employees or workmen of TELCO, that is to say, whether there is relationship of employer and employees between TELCO and the convoy drivers. In considering the question whether a reference should be made or not, the Deputy Labour Commissioner and/or the Government have held that the convoy drivers are not workmen and, accordingly, no reference can be made. Thus, the dispute has been decided by the Government which is, undoubtedly, not permissible.'
7. Applying the above parameters of the law laid down by the Apex Court to the facts of the present case what is noticeable is that in the impugned order dated October 28, 1998 it has been recorded that as the concerned workers are contingent/casual workers their claim to regularise their services is not valid. Under the standing orders in force contingent workers have been classified into two categories i.e. temporary and casual. A workman in the rolls of the ONGC who has put in not less than 180 days of attendance in any period of 12 consecutive months is to be considered as a temporary workman and a temporary workman who has put in not less than 240 days of attendance in any period of 12 consecutive months and who possess the minimum qualifications as prescribed may be considered for conversion as a regular employee. A workman who is neither temporary nor regular is to be considered as a casual workman. In the written notice of demand dated June 21, 1996 served on the Labour Commissioner by the petitioner Association a clear and categorical statement had been made that a large number of employees working in the ONGC on contingent basis have completed the requisite period of service required for regularisation of their services. In such a situation, merely because what was claimed is regularisation of service and not a right of consideration for regularisation and the workmen have been described as contingent/temporary work-charged, the rights of such employees for due consideration of conversion of their status as regular employees in accordance with the provisions of the standing orders in force, in the considered view of the Court, will not stand obliterated. An inept description of the right claimed, by use of particular words in the demand lodged by the workmen would hardly be conclusive of the matter. What would be of essence is the substance of the claim and if a claim has been made that some of the workmen had completed the requisite period of service under the standing orders in force, the adjudication of such claims must be left to the industrial adjudicator. In the present case, instead, what has been decided is that as the concerned workmen are contingent/casual employees their claim is not valid. If the impugned order dated October 28, 1998 is to be understood to be a refusal on the ground that the claim being for regularisation is ex facie untenable as what has been provided for by the standing orders in force is a mere right of consideration, as has been argued on behalf of the ONGC, it must be held by the Court that the impugned refusal proceeds on a wholly unacceptable basis contrary to the spirit of the Industrial Disputes Act. On the other hand, if the refusal is to be construed to be on the ground that the workmen being contingent/casual employees, they have no right vested in them under the standing orders in force, in that event the impugned order dated October 28, 1998 must be held to have the effect of trenching upon the powers of the Industrial adjudicator to determine what rights, if any, the concerned employees would have under the standing orders in force. This Court, therefore, unhesitatingly takes the view, that, in either event, the impugned order suffers from apparent illegalities which would require the Court to appropriately interfere with the said order.
8. The next question that has to engage the attention of the Court is what further orders, if any, should be passed. The power of the writ Court to direct a reference to be made, though available, must be exercised with care, caution and circumspection. In the present case a long time has elapsed since the claims on behalf of the workmen had been made. This Court in its earlier order dated September 15, 1998 in Civil Rule No. 5744/1997 instead of directing a reference to be made had left it open to the appropriate Government to pass an order under Section 12(5) of the Act as no such order was passed by the authority competent under the Act at that stage. Thereafter the impugned order dated October 28, 1998 has been passed refusing the reference. This Court has already set aside the impugned order dated October 28, 1998 on the grounds assigned. In such a situation, this Court is of the considered view that a further direction to the respondents No. 1 and 2 ought to be passed in the present case directing them to refer the claim of the members of the petitioner Association to regularisation/conversion of their status as regular employees of the ONGC in accordance with the standing orders in force. In making the aforesaid reference the Central Government will naturally confine the reference to the cases of only such workers who are covered by the notice of demand dated June 21, 1996 and the conciliation proceedings that had taken place subsequent thereof ending with the failure report dated October 27, 1997.
9. The writ petition shall, consequently, stand allowed as indicated above.