ORDER
1. These writ petitions raise common questions of fact and law and hence they are heard together and are being disposed of by this common order.
2. WP No.26455 of 1998 is filed by 13 persons who claim to be the contract workers working as drivers, accountant, attender, telephone operator, clerk and helpers, WP No.35981 of 1998 is filed by ten persons who claim to be working as helpers and WP No.35996 of 1998 is filed by seven persons working as helpers, in the Oil and Natural Gas Corporation Limited therein after referred to as 'the Corporation'), through the contractors at ONGC, Krishna Godavari Project.
3. They filed the above writ petitions seeking directions to the respondents to enforce forthwith the notification of the Government of India bearing No.U-23013/ 4/92-LW, dated 8-9-1994 by which contract labour in various works was prohibited and consequently direct the respondents to absorb all the petitioners.
4. It is their common case that they are qualified for the posts for which they have been engaged by the contractors and their nature of work is perennial in nature and permanent one and is very much essential for running of the respondent-Corporation. They allege that they are working in the prohibitory categories. The respondent-Corporation is a public sector undertaking and it has monopoly over the operation concerning prospecting, exploring and extracting the crude oil and natural gas in India. It is stated that at present under the control of respondents 2 and 3 there are more than 50 establishments operating in the districts of Vijayawada,Guntur, East Godavari and West Godavari. The petitioners state that they are continuously working in ONGC., Krishna-Godavari Project as contract workers in various departments of field installation along with the regular employees.
5. It is further alleged that the Government of India referred the matter to the Central Advisory Contract Labour Board constituted under Section 3 of the Contract Labour (Regulation and Abolition) Act, 1970, (hereinafter called 'the Act'), and the said Board in its meeting held at New Delhi on 3-11-1993 recommended for abolition of contract labour in 13 different categories. The Government of India accordingly issued notification, in exercise of the powers under Section 10(1) of the Act, prohibiting the employment of the contract labour in various works in the establishments of the respondents, which are extracted hereunder:
'Schedule
1. Fire Fighting (Fire Supervisor, Fireman, Fire Technician).
2. Typists.
3. Clerks (including Accounts Clerks).
4. Steno Typists/Stenographers.
5. Data Operators.
6. Computer Operators.
7. Store Keepers.
8. Boiler Operators.
9. Telephone Operators.
10. Attendants/Helpers/Peons.
11. Installation Technician & Helpers.
12. Radio Operators.
13. Drivers (wherever driving work is not done in hiring vehicles on contract but by vehicles owned by the Oil and Natural Gas Commission).
6. It is their case that in view of the above notification issued by the Central Government published in the Gazette of India extraordinary on 8-9-1994 and in view of the law declared by the Supreme Court in the case of AIR India Statutory Corporation v. United Labour Union, : (1997)ILLJ1113SC , after abolition of contract labour system, relationship of master and servant exists and thus they are entitled to be absorbed and regularised in the respondent-Corporation. It is further stated that they pursued the remedies by approaching the conciliation by seeking necessary reliefs. Ultimately, due to non co-operative approach of the management, the conciliation failed and it submitted failure of conciliation proceedings on 15-11-1996. Thereafter, the matter was referred to by the Government under Section 10 of the Industrial Disputes Act to the Industrial Tribunal, Visakhapatnam and finally a nil award was passed. It is further alleged that inspite of the notification dated 8-9-1994 issued by the Central Government, the respondents are continuing the petitioners as contract labour.
7. While the matters stood thus, the contract labour including the petitioners went on strike from 4-11-1997 to 28-11-1997, and to restore peace and harmony a memorandum-of understanding, (for short 'MoU'), was reached in presence of the then Hon'ble Member of Parliament Sri K. Subbarayudu on 11-12-1997. The said MoU, inter alia provides that contract labour shall be continued to be engaged and such contract labour shall be engaged through co-operative societies. The MoU also provides that contract labour should be paid increased wages with effect from 1-1-1998 and that all the parties to the MoU filed a joint memo before all the authorities and that the MoU shall be enforced for a period of five years with effect from 1-1-1998. Itis stated that after the prohibitory notification the respondents are not permitted to engage contract labourers and the petitioners shall be deemed to be the regular employees of the corporation. The petitioners accordingly sought for regularisation of their services in the respondents corporation.
8. The respondents filed common counter-affidavits in the above writ petitions. It is stated in the counter-affidavit that the writ petition is not maintainable since the petilioncrs have chosen the remedy provided under the Industrial Dispute Act by raising an Industrial Dispute. It is further slated that in view of the dispute raised by the Union representing the workers including the petitioners herein, the Assistant Labour Commissioner (Central), Visakhapatnam conducted the conciliation proceedings and submitted the 'FOC' to the Central Government. The Central Government referred the dispute to the Industrial Tribunal. Visakhapatnam for adjudication. It is further stated that the petitioners cannot be permitted to file this writ petition as parallel proceedings. The petitioners through their Union and Co-operative Societies, in which they are all members, have entered into MoU, tor settling their disputes. The said settlement, which was reduced into writing as MoU dated 11-12-1997, was signed by all the parties and is binding on the members of the Union and the Co-operative Society including the petitioners herein. It is alleged that the petitioners are working in prohibited categories of works is false and that MoU was signed by all on 11-1-2-1997 for rendering contractual works on certain agreed terms and conditions. On that basis, the Industrial Tribunal, Visakhapatnam passed nil award. The 13 petitioners were working with the erstwhile contractors M/s. Poornima Agencies and M/s. Delta Industrial and Tech. Service Co-operative Society within the scope of contract entered into by ONGC and the contractors. It is further stated that the job description asper the agreement does not fall under any one of the prohibited categories as notified by the Government and that there is no ban to engage contract labour under the provisions of the Act. It is also stated that the respondent-corporation is manning its core activities by its permanent employees and any intermittent support services are taken care of by deploying contract labour. Hence, question of absorption of petitioners does not arise and that the qualifications which they possess is subject to verification and that the regular employees are doing different types of jobs with degree of responsibility and accountability, which cannot be compared with the jobs performed by the contraclual workers. The terms and conditions and nature of work of regular employees are different from the work being done by contract labour. It is further stated that in case of any dispute regarding payment of wages and other benefits to contract labour, the Chief Labour Commissioner (Central) Government of India is the Competent Authority to examine the issue and to give his findings. l is stilted that MoU which was signed on 11-12-1997, the members of M/s. Chaitanya Industrial Services Co-operative Society opted the membership in the society on their own and the same is binding on the petitioners. It is stated that the respondent moved the Government of India seeking to invoke the exemption under Section 31 of the Act and the same is pending consideration. It is also stated that decision of the Supreme Court in AIR India's case (supra) which is the sole basis on which the petitioners arc seeking relief has been referred to the Larger Bench and in any view of the matter, the law declared in the said decision is not applicable to the facts of this case as petitioners are not engaged in prohibited category of works and that the judgment rendered by this Court in WP No.13551 of 1997 and Batch dated 24-9-1998 has become final is not correct and in any event the judgment rendered in WP No.13551 of 1997 and Batch is notconnected with the present writ petitions. It is also stated that MoU was jointly signed in Form No.II and has been sent to all the concerned authorities under Section 58 of the Industrial Disputes Rules, 1957, framed under the Industrial Disputes Act, 1947. It is further stated that having enjoyed the benefits of MoU, it is not proper on the part of the petitioners to approach this Hon'ble Court in violation of the terms of MoU and that the MoU entered into for settlement of disputes is binding on all the parties under Section 18(1) of the Industrial Disputes Act, 1947 and that the petitioners, who are the members of the society, cannot come within the definition of 'contract labour'. Since the respondent-corporation being a public sector undertaking offered employment to possible persons as per the recruitment and promotion rules subject to availability of vacancies and that the relief as prayed for amounts to seeking employment in a public Corporation through back door entry which has been disapproved by the Hon'ble Supreme Court in a number of cases.
9. Sri Vedula Venkatramana, learned Counsel appearing for the petitioners contended that this Court in similar circumstances in WP No.13551 of 1997 and Batch dated 24-9-1998 had already adjudicated the issues raised in the present writ petitions and the same were confirmed by the Division Bench of this Court and that the contention of the respondents that the Supreme Court has referred the decision in AIR India Statutory Corporation's case (supra) to a Larger Bench does not come in the way to grant the relief. In support ofhis contention he relied upon judgment of this Court in AIR India Statutory Corporation's case (supra) wherein the decision of the Supreme Court Gujarat Electricity Board, Ukai v. Hind Mazdoor Sabha, : (1995)IILLJ790SC , was partly overruled by observing that there is no limitation or fetters on the powers of thisCourt to grant relief under Article 226 of the Constitution of India. He further contended that in the instant case industrial adjudication is not proper and adequate forum and thus leaving the workmen in the lurch and that Section 30 of the Act has overriding effect. Further, the MoU is not signed by the individual writ petitioners, the petitioners cannot be traceable to Section 18(1) of the Industrial Disputes Act and that the same is binding only on the persons who signed it. He submitted that the writ petitioners are working prior to the notification and that this Court can grant the relief in accordance with law particularly in view of the orders prohibiting the contract labour under Section 10(1) of the Act and that the contract labourer is not a workman as defined under Section 2(s) of the I.D. Act. He ultimately argued that industrial adjudication is not proper remedy in respect of claim of regularisation. In the similar matters this Court adjudicated the issues and passed the orders and that the management appointed some of the contract labourers on 6-11-1999 as regular employees. Learned Counsel for the petitioners has drawn my attention to Para 58 in AIR India Statutory Corporation's case (supra). The relevant portion of the judgment reads that:
'The contractor is an intermediary between the workmen and the principal employer. The moment the contract labour system stands prohibited under Section 10(1), the embargo to continue as a contract labour is put an end to and direct relationship has been provided between the workmen and the principal employer. Thereby, the principal employer directly becomes responsible for taking the services of the workmen hitherto regulated through the contractor. The object of the penal provisions was to prevent the prohibition of the employer to commit breach of the provisions of the Act and put an end to exploitation ofthe labour and to deter him from acting in violation of the constitutional right of the workmen to his decent standard of life, living, wages, right to health etc.'
.....
Like wise the learned Counsel also drew my attention to Paragraphs 66 and 69 of the judgment which considers the impact of prohibition of contract labour system. The relevant portion of the paragraphs reads as under:
..... The workmen, who on abolition of contract labour system have no right to seek reference under Section 10 of ID Act. Moreover, the workmen immediately are kept out of job to endlessly keep waiting for award and thereafter resulting in further litigation and delay in enforcement. The management would always keep them at bay for absorption. It would be difficult for them to work out their right. Moreover, it is a tardy and time-consuming process and years would roll by. Without wages, they cannot keep fighting the litigation endlessly. The right and remedy would be a teasing illusion and would be rendered otiose and practically compelling the workmen , at the mercy of the principal employer'.
'.....the scheme envisaged in the Gujarat Electricity Board's case 1995 AIR SCW 2942, is not workable as the existing workmen may not espouse the cause of erstwhile contract workmen who were aspiring to get employment on regular basis and even if they espouse their cause the litigation itself would be spread over a number of years and in the meantime the erstwhile contract labourers and their dependants would starve'.
The remedy of writ proceedings suggested in Gujarat Electricity Board's case (supra) was thus found to be unsatisfactory and it was partly overruled in this case.
10. Sri E. Manoher, learned senior Counsel, appearing for the respondents, on the other hand, contended that neither the decision of the Apex Court in AIR India Statutory Corporation's case (supra) nor the judgment delivered in WPNo.13551 of 1997 and Batch dated 24-9-1998 is applicable to the present case and contended that the writ petition is not maintainable since the petitioners having chosen a forum and entered into memorandum of understanding MoU by agreeing to form a society and for increase of wages. He further stated that since the petitioners are not working in prohibited categories and the settlement reached by them has become law, the writ petition is not the forum to investigate the question of facts. He further stated that the basic requirements of AIR India Statutory Corporation's case (supra) are lacking in this case. In support of his contention he relied upon the judgments of the Apex Court reported in Gujarat Electricity Board, Ukai's case (supra) and in The Sirsilk Ltd. and Ors. v. Government of Andhra Pradesh, : (1963)IILLJ647SC . He also contended that since the MoU has not been challenged, the petitioners cannot invoke the equitable jurisdiction of this Court and that the reference of the Industrial Labour Court is permissible and Section 30 of the Contract Labour Act is not attracted.
11. In Sirsilk Limited's case (supra) the Apex Court has held as follows:
'... Where a settlement is arrived at between the parties to a dispute before the Tribunal after the award has been submitted to Government but before its publication, there is in fact no dispute left to be resolved by the publication of the award. In such a case, the award sent to Government may very well beconsidered to have become infructuous and so the Government should refrain from publishing such an award because no dispute remains to be resolved by it'.
On the same analogy, the learned senior Counsel for the respondent contends that in view of the settlement arrived at between the parties, no dispute is subsisting and that the petitioners are bound by the MoU. He contends that as there is no inconsistency Section 30 is not attracted.
12. In view of the controversy involved, it is necessary to refer to Section 30 of the Act which reads as follows:
30. Effect of laws and agreements inconsistent with this Act :--(1) the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any agreement or contract of service, or in any standing orders applicable to the establishment whether made before or after the commencement of this Act.
Proviso to Section 30 of the Act says that, provided that where under any such agreement, contract of service or standing orders the contract labour employed in the establishment are entitled to benefits in respect of any matter which arc more faovurable to them than those to which they would be entitled under this Act. The contract labour shall continued to be entitled to the more favourable benefits in respect of the matter notwithstanding that they receive benefits in respect of other matters under this Act. Sub-section (2) of Section 30 of the Act permit to enter into agreement with the principal employer or the contractor, as the case may be, for granting them rights or privileges in respect of any matter which are more faovurable to them than those to which they would be entitled under this Act.
13. The Apex Court in AIR India Statutory Corporation's case (supra) observed that this Court under Article 226 of the Constitution of India can grant the relief to the petitioners since the judicial review is the basic structure of the Constitution. The Apex Court, having considered the effect and impact of abolition of contract labour system and the scheme of the Act particularly the preamble of the Act, observed that abolition of contract labour system ensures, right to the workmen for regularisation as employees in the establishment in which they were hitherto working as contract labour through the contractor and the contractor slands removed from the regulation under the Act and direct relationship of 'employer and employees' is created between the principal employer and the workmen and that the object of the Act is to prevent exploitation of the Act. Since Section 30 of the Act has an overriding effect over such agreements the MoU is inconsistent with the Act. The contention that the reference is incompetent in my view is not correct. Except abolition of the contract labour system which is the exclusive domain of the appropriate Government, other factual aspects have to be agitated and tried by adducing evidence. However, this Court in similarly situated circumstances in WP No. 13551 of 1997 and Batch dated 24-9-1998, observed that the dispute raised in all the writ petitions as to the nature of the job, a particular petitioner was discharging, would be a matter, prima facie this Court cannot decide in a writ jurisdiction. It is stated that the petitioners in those writ petitions also raised a dispute before the Industrial Tribunal and subsequently they withdrew them and consequently the Industrial Tribunal passed a nil award. Learned Judge observed that these writ petitions involve disputed questions of fact, and in those circumstances, by following the judgment of the Gujarat High Court dated 3-9-1997 in Civil Application No.2573 of 1997 and Batchdirected the Regional Labour Commissioner (Central), Ahmedabad to verify with regard to different set of employees concerned, whether they were covered by the categories of the employees which were abolished by the Contract Labour Act, with a liberty to both the parties to take appropriate proceedings against the orders of the Regional Labour Commissioner if they arc aggrieved by the same.
14. In the circumstances, following the judgment of this Court in WP No.13551 of 1997 and Batch dated 24-9-1998, and in view of Rule 25 of the Contract Labour (Regulation and Abolition) Cenlral Rules, 1971, I dispose of the writ petitions as under:
The Regional Labour Commissioner (Central), Hyderabad is directed to proceed accordingly to verify the case of the concerned employees as to whether they belong to or they do not belong to categories, of which the Contract Labour Act abolished vide notification dated 8-9-1994, keeping in view the following guidelines:
I. Separate list shall be prepared by him regarding those (1) appointed prior to 8-9-1994 notification under (a) on prohibited category and (b) on a category not prohibited and (2) those who were appointed after the notification dated 8-9-1994 under (a) on prohibited category and (b) on category not prohibited, and notification, if any, issued subsequently.
II. The respondent-Corporation shall make available the records in respect of all these concerned employees and other relevant papers on the basis of which it may be determined as to whether the employees sought to be absorbed in ONGC are covered or not by the categories for which contract labour has been abolished vide notification dated 8-9-1994.
III. It will he open for the Regional Labour Commissioner (Central, Hyderabad to follow any procedure for this purpose which he deems fit to arrive at the conclusion and it will also be open for the parties to produce material before the Regional Labour Commissioner (Central), Hyderabad, in support of their cases in this regard.
IV. The Regional Labour Commissioner (Central), Hyderabad shall hear the petitioners as well as ONGC before preparing its final report in this regard and it will be open for both the sides to raise all just and reasonable objections before him.
V. The Regional Labour Commissioner (Central), Hyderabad shall send copy of this report to ONGC as well the employees and such report shall be prepared and communicated by him at the earliest, but in no case later than 15-11-2000.
VI. On the basis of the report of the Regional Labour Commissioner (Central), Hyderabad those employees who are found to be covered by the categories under the notification dated 8-9-1994 shall be taken up for absorption by ONGC having due regard to the requirements of eligibility under the Rules and Regulations of ONGC and appropriate orders shall be passed and served upon concernd employees on or before 15-11-2000. In case the ONGC decides to challenge the report of the Regional Labour Commissioner (Central), Hyderabad, it will be open for the ONGC to indicate in such orders as above that these orders are subject to the result of such challenge.
VII. It will also be open for the concerned employees and the petitioners tochallenge the decision of the ONGC on the question of eligibility with reference to service regulations in case any employee found to be covered by the notification dated 8-9-1994 is aggrieved and is denied absorption by ONGC.
VIII. As regards the employees who are not found to be covered by the notification dated 8-9-1994 for the purpose of absorption in ONGC on account of abolition of contract labour it will be open for the concerned petitioners or such employees to challenge that part of the report of the Regional Labour Commissioner (Central). Hyderabad in appropriate forum in accordance with law.
IX. Till the report is made by the Regional Labour Commissioner (Central), Hyderabad and thereupon the action is taken and appropriate orders are issued by the ONGC with regard to absorption or otherwise, and thereafter for a period of one month, no action shall be taken, till 15-12-2000 and no order shall be passed to (he prejudice of the employees who are not absorbed and who are not found to be covered by the notification dated 8-9-1994 or by any subsequent notification by the Regional Labour Commissioner (Central), Hyderabad their position and status as on today shall be maintained till 15-12-2000. Except in case of misconduct or indiscipline.
X. After 15-12-2000 also if at all services of any employees are sought to be terminated, the same shall not be done except in accordance with law'.
The contentions of both the parties are kept open. The parties shall bear their own costs.