ORDER
S FOR CONTINGENT EMPLOYEES OF THE OIL AND NATURAL GAS COMMISSION' in force since 15.7.1962 applied to all workmen called 'contingent employees' employed in various units of the ONGC excluding the regular employees to whom other statutory rules applied. Relevant Clause 2 of those Standing Orders reads as under:
'2. (i) Classification of workmen: The contingent employees of the Commission shall hereafter be classified as:
(a) temporary.
(b) casual.
(ii) A workmen who has been on the rolls of the Commission and has put in not less than 180 days of attendance in any period of 12 consecutive months shall be a temporary workman, provided that a temporary workman who has put in not less than 240 days of attendance in any period of 12 consecutive months and who possesses minimumqualifications prescribed by the Commission may be considered for conversion as regular employee.
(iii) A workman who is neither temporary nor regular shall be considered as 'casual workman'.
The Standing Orders also provide for other conditions of service including termination of service. Clause 14 provides for termination of employment by notice in writing in accordance with the provisions of the Industrial Disputes Act and, where the workman is not entitled to one month's notice under the I.D. Act, for at least seven days notice or payment of wages in lieu thereof. The Standing Orders also contain provisions for attendance and late coming, leave and holidays, absence, stoppage of work, misconduct and disciplinary action, complaints etc.
8.1 As for regular employees, the ONGC had made 'The Oil & Natural Gas Commission (Recruitment and Promotion) Regulations, 1980' in exercise of the powers conferred by Section 32 of the Oil & Natural Gas Commission Act, 1959. Those regulations provided for the method of filling posts, categories of posts, scales of pay, qualifications and other matters connected therewith, age limit for direct recruitment and other matters to be followed while making recruitments and promotions, method for filling of vacancies by direct recruitment and promotions etc. Relevant for the present purpose is Regulation No. 3 which reads as under:
'3. Method of filling posts:
All posts in the Commission would be filled up by:
(a) direct recruitment, or
(b) promotion of employees already in service of the Commission, or
(c) borrowing the services of the persons from the Central Government or the State Governments, or public sector undertakings, or local or other authorities, or
(d) any other method as may be decided by the Commission at a meeting for reasons to be recorded in writing for appointment to any post or persons possessing special merit, qualifications or experience.'
Schedule II to the above regulations provided for 'age limit for direct recruitment' and other conditions to be followed while making direct recruitment and promotions to various posts and Clause 9 provided as under:
'9. The Commission shall be competent to relax the requirement of educational qualifications and experience in respect of the existing employees in the service of the Commission on the date of commencement of these regulations wherever such requirements are higher than those existing prior to the date of such commencement.'
8.2 The Office Order dated 25.4.1980 of the ONGC on the subject of 'fitment of existing employees' and other matters connected therewith consequent upon introduction of the Recruitment and Promotion Regulations, 1980 stipulated in paragraph 1 (iv) that in case of vacancies to be filled in by direct recruitment, departmental candidates fulfilling the requisite qualifications will be given first consideration.
8.3 The phrase 'existing employees' was, however, defined to mean an employee who was holding permanent or temporary appointment in the Commission on the date the regulations came into force and did not include the persons appointed on casual, contingent or ad-hoc basis.
8.4 A conjoint reading of the above relevant statutory provisions shows that the ONGC had practically two separate establishments and set of rules as far as the employees were concerned and the only window for becoming a regular employee from a casual or temporary employee was provided by Standing Order No. 2 (ii) and Regulation No. 3 (d) quoted hereinabove. It is not the case of the ONGC that no casual or temporary employee was ever considered for inclusion as regular employee; nor that the workmen concerned did not possess the minimum qualifications prescribed by the Commission. Viewed in that perspective, it would clearly appear that the industrial dispute arose on account of failure of the ONGC in exercising the discretion vested in it to consider the cases of temporary workmen who had put in not less than 240 days of attendance in a period of 12 consecutive months and the industrial adjudicator was called upon to consider and decide the cases of the workmen for whom regularisation was due. When the award dated 6.6.1994 only directed the ONGC to 'consider and regularise the workmen' subject to the condition of vacancies to the regular posts and competition with other workmen seeking employment through Employment Exchange, the relief became pyrrhic and the impugned judgment sought to grant some real relief in the sense that the said two conditions were removed and a direction to treat the workmen concerned at par with other regular employees was issued.
8.5 It must be noted here that during the entire course of the prolonged proceedings, the ONGC did not take the opportunity of leading any evidence to show that the services of the workmen concerned were not required at all or that their regularisation would cast an unbearable financial burden or that at any point of time they were discharged from service in accordance with law. Nor did the ONGC even seek to establish anywhere that the 'field parties' with which the workmen were attached worked only intermittently. Instead, the evidence of the workmen to the effect that the workmen were employed throughout the year was not contradicted except by showing the number of days on which they had worked during the period from 1981 to 1993.
8.6 It would be advantageous to note in the above context the relevant provisions of the Industrial Disputes Act under which upon completion of continuous service of 240 days in a year, independent of any service rules, regulations or standing orders, the workman acquires certain rights and the employer incurs several obligations. There are prohibitive provisions in Sections 25-F, 25-G, 25-H, 25-M, 25-N and penal provisions under Section 25-Q in respect of retrenchment and lay-off in the I.D. Act. Section 25-T of the I.D.Act proscribes, under pain of penalty under Section 25-U, employment of workmen as casuals or temporaries and continuing them as such for years with the object of depriving them of the status and privileges of permanent workmen. Thus, in short, what the industrial adjudicator was called upon to do was not balancing the rival interests but he had to order what the ONGC was otherwise also required to do and prohibited from not doing, i.e. consideration of the cases of temporary employees of the contingent establishment for their conversion into regular employees which was permissible and envisaged by its service regulations, only subject to the workmen concerned fulfilling the requirements of qualifications and age.
9. The grounds (a) to (z) of this appeal attacks the impugned judgment as a whole in view of the reliefs granted. But, upon the appeal being restricted to direction No. 2 in paragraph 15 of the impugned judgment, the appellant concentrated on the submission that the learned Single Judge had erred in issuing that direction. It was argued that the question of regularisation and treatment at par with other regular employees could arise only after actual absorption of the workmen concerned on the permanent set-up of the ONGC. That, when the posts or vacancies were not available, the direction for regularisation was neither justified nor sustainable. That there was no reason to vary the scheme and direction of the Tribunal in absence of any evidence that there were vacancies. That the impugned direction was inconsistent with the Standing Orders insofar as the discretion vested in the Corporation was exercised by the Court, disregarding the requirements for permanent employment, fulfillment of minimum qualifications and completion of minimum 240 days of attendance in a year. It was also contended that the Recruitment and Promotion Regulations of 1980 were revised in 1996 and, therefore, the workmen concerned could not be ordered to be regularised even if they fulfilled the requirement of qualifications under the old rules since the regulations applicable would be the regulations in force at the time of consideration of the field workers for permanent appointment. It was also contended that the workmen concerned had failed to prove that each of the workmen had put in 240 days of work in 12 consecutive months. In fact no evidence was led in the main reference before the Tribunal and only the evidence led in the complaint (ITC) No. 5 of 1993 was relied upon. It was submitted that the field workers were engaged only for the period of field season and since such work was reduced to only seven months in a year, the principle of 'no work no pay' applied.
10. Learned senior counsel Mr. M.J. Thakore with learned counsel Mr. K.M. Thaker appearing for ONGC relied upon the judgment of the Supreme Court in State of U.P. v. Ajay Kumar [(1997) 4 SCC 88] to submit that there has to be a post in existence and administrative instructions or statutory rules to appoint a person on such post. Appointments on daily wage basis on contingent establishment in which there cannot exist any post cannot be regularised and a direction in such circumstance to regularise service of the respondent to the post as and when vacancy arises and to continue him till then was held to be illegal. Another judgment of the Supreme Court in Delhi Development Horticulture Employees' Union v. Delhi Administration [(1992) 4 SCC 99] relied upon for the appellant, however, denied full employment and equal pay for equal work in the context of Jawahar Rozgar Yojna, a scheme with limited resources for providing employment. Notified Area Counsil v. Bishn C. Bhoi : (2001)10SCC636 was relied upon to submit that when the entire selection process and the appointments were irregular and illegal, sympathies would be misplaced when there was even absence of any sanctioned post. Mahendra L. Jain v. Indore Development Authority : (2005)ILLJ578SC was relied upon to submit that what can be regularised is an irregularity and not an illegality. The constitutional scheme does not contemplate any back-door appointment. A daily-wager in the absence of a statutory provision in that behalf would not be entitled to regularisation. Subedar Singh v. Distt. Judge, Mirzapur [(2001) 1 SCC 37] was relied upon to submit that when the appointment to a post was governed by a set of statutory rules, it was unthinkable that someone should be appointed by manoeuvering. No rule, law or regulation, nor even any administrative order was shown in that case on the basis of which the employee could claim a right to regularisation. Ashwani Kumar v. State of Bihar : (1997)IILLJ856SC was relied upon for the proposition that if the initial entry into service was unauthorised and is not against any sanctioned vacancy, the question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given, it would be an exercise in futility.
10.1 Relying upon the judgment of the Supreme Court in J&K; Public Service Commission and Ors. v. Dr. Narinder Mohan and Ors. : (1994)ILLJ780SC , it was submitted that where recruitment rules prescribed direct recruitment and promotion as the modes of recruitment, a hybrid procedure not contemplated by the recruitment rules and dispensing with open competition would amount to directing disobedience of the Constitution and law. Bashir Ahmed and Ors. v. State of Punjab and Ors. : [1996]3SCR815 was relied upon to submit that only those who possessed the necessary qualifications can be considered for regular recruitment. Union of India v. Mahender Singh and Ors. : (1997)IILLJ795SC was relied upon to submit that merely on the basis of long period of service, the claim of regularisation based on relaxation of age-limit and educational qualifications could not be sustained. M.D., U.P. Land Development Corporation and Anr. v. Amar Singh and Ors. [(2003) 5 SC 388] was relied upon to submit that when the employees were working under a scheme or under a project, they were not entitled to claim regularisation and once the project comes to an end, service of the employee also comes to an end.
10.2 In order to assail the grant of parity of wages and treatment at par with the regular employees, it was submitted that there was no evidence to suggest equality of work, qualifications and responsibilities and hence the principle of 'equal pay for equal work' did not apply. The judgment of the Supreme Court in State of Haryana v. Tilak Raj and Ors. : (2003)IIILLJ487SC was relied upon to submit that a scale of pay is attached to a definite post and a daily-wager does not hold a post. To claim a relief on the basis of equality, it was for the claimant to substantiate a clear cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group. 'Equal pay for equal work' is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scale. The problem about equal pay cannot always be translated into a mathematical formula. As held by the Supreme Court in Union of India and Ors. v. Pradip Kumar Dey : (2000)8SCC580 , there must be sufficient comparative material before the Court for comparison. In the facts of that case, there was no material before the Court for comparison in order to apply the principle of 'equal pay for equal work' between the radio operators of CRPF and those working in the Central Water Commission and the Directorate of Police Wireless and the factual statements contained in the recommendations of a particular department were held to be neither proof per se nor conferring any right to make a claim for writ of mandamus. In State Bank of India and Anr. v. M.R. Ganesh Babu and Ors. : (2002)IILLJ829SC , a three Judge Bench of the Supreme Court has held that equal pay must depend upon the nature of work done and cannot be judged by the mere volume of work since there may be qualitative difference as regards reliability and responsibility. Since the plea of equal pay for equal work has to be examined with reference to Article 14, the burden is upon the petitioners to establish their right to equal pay or the plea of discrimination, as the case may be. In Utkal University and Anr. v. Jyotirmayee Nayak and Ors. : [2003]3SCR344 where the High Court had rejected the claim for regularisation but directed payment of salary at par with similarly placed employees in the University, the direction was set aside by the Supreme Court on the ground that the employees did not have any appointment order on the basis of which they could claim pay scale or regular salary. In the facts of that case, services of the employees concerned were already terminated. In Orissa University of Agriculture & Technology and Anr. v. Manoj K. Mohanty : (2003)IILLJ968SC , the High Court had not kept in mind the implications and impact on the other employees working in the University and no details or material was placed before the High Court for comparison in order to apply the principle of 'equal pay for equal work'. Therefore, in absence of necessary averments and materials, the High Court was held to have erred in directing payment of regular pay scale without examining the relevant factors. A recent judgment of the Supreme Court in Mahendra L. Jain v. Indore Development Authority and Ors. : (2005)ILLJ578SC was also relied upon for the proposition that regularisation cannot be claimed as a matter of right and an illegal appointment cannot be regularised by taking recourse to regularisation. A daily-wager in the absence of a statutory provision in this behalf would not be entitled to regularisation.
11. As against the above arguments and contentions of the appellant, learned senior counsel Mr. Girish Patel with learned counsel Mr. S.N. Mehta appearing for the respondent submitted that the main contention of the appellant before the learned Single Judge was that the powers of the High Court under Article 227 of the Constitution were severely restricted and did not permit modification of the award of the Industrial Tribunal. Now that the petition of the present respondent was allowed and due and detailed directions to do complete justice were issued by the High Court, a Letters Patent Appeal was not maintainable. It was also submitted that in absence of any evidence led by the appellant before the Tribunal, the Tribunal as well as the High Court was justified in relying upon the material on record in the form of rival pleadings, oral depositions of four workmen in the complaint made in the main reference and in granting the appropriate reliefs. He submitted that while broadly each of the workmen concerned had completed more than 15 years of service as temporary or casual 'contingent employee' and has been employed on 'seasonal basis' despite the interim orders prohibiting their termination, it was in the interest of justice and industrial peace that the workmen were regularised and treated at par with the regular employees of the ONGC. It was pointed out that even as the ONGC, a statutory Corporation, was converted into a limited company by the time the award was made, its core function remained geological and geophysical surveys for exploration of petroleum and carrying out drilling and other prospecting operations. It was in that work that the workmen concerned were mainly and consistently employed. Although contingent employees were employed in large numbers during field season, the workmen concerned were employed throughout the year as a part of the core team manned by regular employees and officers. The ONGC reduced their employment to the field seasons after raising of the industrial dispute in order to continue them as casual or temporary employees and deny them the benefits due to the regular employees. The finding of fact that the ONGC had indulged in unfair labour practice has remained unchallenged and the workmen have admittedly continued in service as a second class work-force resulting into obvious injustice and discrimination. It was, therefore, incumbent upon the industrial adjudicator to grant real and substantial reliefs which, ultimately, the High Court had rightly granted, according to the submission.
11.1 The learned counsel relied upon the landmark three-Judge Bench judgment of the Supreme Court in State of Haryana and Ors. v. Piara Singh and Ors. : (1993)IILLJ937SC wherein it is laid down that the main concern of the Court in such matters is to ensure the Rule of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that a person should not be kept in a temporary or ad-hoc status for long. Where a temporary or ad-hoc appointment is continued for long, the Court presumes that there is need and warrant for a regular post and accordingly directs regularisation. There can be no rule of thumb in such matters. Conditions and circumstances of one unit may not be the same as of the other. The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case. It cannot be a mechanical act but a judicious one. It is held that a direction to regularise a back-door entrant would only result in encouragement to such unhealthy practice. There was nothing wrong in prescribing a particular date by which the specific period of service ought to have been put in. The order prescribing that only those employees who had been sponsored by an employment exchange could alone be regularised was held to be reasonable and wholesome requirement designed to curb entry of back-door employees and irregular appointments. Saying a few words concerning the issue of regularisation of ad-hoc/temporary employees in Government service, the Supreme Court has observed as under:
'...Efforts should always be to replace such an ad-hoc/temporary employee by a regularly selected employee as early as possible; temporary employees should not be replaced by another ad-hoc or temporary employee; even where an ad-hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay; if for any reason an ad-hoc/temporary employee is continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. ...So far as the work-charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell say two or three years - a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. ...Each Government or authority has to devise its own criteria or principles for regularisation having regard to all the relevant circumstances, but while doing so, it should bear in mind the observations made herein. ...These directions shall not, however, apply to the Statutory/Public Corporations functioning within the States as are under the control of the Government of India. These Corporations will do well to evolve an appropriate policy of regularisation, in the light of this judgment, if they have not already evolved one, or make their existing policy consistent with this judgment to avoid litigation.'
11.2 Relying upon the above judgment in PIARA SINGH (supra), the Supreme Court ordered in State of Haryana v. Surinder Kumar and Ors. : [1997]2SCR917 that the cases of the employees who were appointed as daily wagers on contract basis to the post of clerk should be considered in accordance with law provided they were otherwise eligible and, if they had become age barred, age may be relaxed for the period they had worked and that on regular appointment they would be entitled to equal pay at par with the regular clerks.
11.3 In Food Corporation of India Workers' Union v. Food Corporation of India and Anr. : (1996)IILLJ920SC , in the factual backdrop of failure of the employer to produce any evidence in the context of employment of the workmen concerned, the Supreme Court examined two illustrative cases and reversed the finding that none of the 287 persons were able to establish that they were employees of the depot concerned of the F.C.I. at the relevant time. It was held that the Tribunal was not a Court and there should be only 'material' and not 'evidence' as required by the Evidence Act. It was also held that although the F.C.I. mentioned certain difficulties in conclusively determining the identity of the persons as per the orders of the Supreme Court, the long lapse of time cannot be ignored and the Supreme Court cannot shirk its responsibility in resolving the issue on the basis of available material, however difficult or arduous it may be. After all, it is a 'human problem' that calls for an urgent decision.
11.4 In DAILY RATED CASUAL LABOUR employed under P&T; Department v. Union of India and Ors. : (1988)ILLJ370SC , the Supreme Court directed payment of wages at the rates equivalent to the minimum pay in the pay scales of regularly employed workers to the casual labourers belonging to the several categories and observed that unless a sense of belonging to the organisation engaged in production arises in a workman, he will not put forward his best effort to produce more. That sense of belonging arises only when he feels that he will not be turned out of employment at the whim of the management. It is for that reason that as far as possible security of work should be assured to the employees so that they may contribute to the maximisation of production. It is again for this reason that managements and the governmental agencies in particular should not allow workers to remain as casual labourers or temporary employees for an unreasonably long period of time. The employees belonging to skilled, semi-skilled and unskilled classes can be shifted from one department to another even if there is no work to be done in a given place. Our wage structure is such that a worker is always paid less than what he produces, and if any worker remains idle on any day, the country loses the wealth that he would have produced during that day. It is against this background that non-regularisation of temporary employees or casual labour for a long period can be said to be not a wise policy. The employer was, therefore, directed to prepare a scheme on a rational basis for absorbing as far as possible the casual labourers who had been continuously working for more than one year.
11.5 In Delhi Municipal Karmachari Ekta Union v. P.L. Singh And Ors. [1988 (Supp) SCC 95], the Supreme Court following the above decision in Daily Rates Casual Labourers (supra), directed the Delhi Municipal Corporation to prepare a scheme for absorbing the Vaccinators/Immunisors employed on daily wages basis for more than eight years and order was made in substitution of the award passed by the Tribunal.
11.6 In Union of India v. Dharma Pal and Ors. : (1996)IILLJ801SC , in absence of any existing rules for regularisation, the scheme devised pursuant to the direction of the Court was approved and the employer was directed to regularise all the workmen who had completed the prescribed period of days, i.e. 240 days against the existing vacancies applying the rules of reservation, in order of seniority in respective categories mentioned in the scheme. Such regularised employees were held to be entitled to all the regular payment at the prescribed scale of pay and those who could not be regularised were directed to be regularised in order of seniority as and when vacancies arose. The daily-wage workers/casual workers who were not regularised and work was taken from them were held to be entitled to minimum of the scale of pay prescribed for the post in addition to 60% of the DA and retrospective effect was given to the directions.
11.7 In Surinder Singh and Anr. v. Engineer-In-Chief, CPWD and Ors. : (1986)ILLJ403SC , the Supreme Court observed as under:
'The Central Government, the State Governments and likewise, all public sector undertakings are expected to function like model and enlightened employers and arguments such as that the principle of equal pay for equal work is an abstract doctrine which cannot be enforced in a court of law should ill come from the mouths of the State and State undertakings...We also record our regret that many employees are kept in service on a temporary daily wage basis without their services being regularised. We hope that the government will take appropriate action to regularise the services of all those who have been in continuous employment for more than six months.'
11.8 In U.P. Income Tax Department Contingent Paid Staff Welfare Association v. Union of India and Ors. [1987 (Supp) SCC 658], the Supreme Court, being not satisfied with the scheme in force and finding that many employees concerned had been working on daily-wage basis for nearly eight years or more, directed payment of wages to the workmen who were employed as the contingent paid staff of the Income Tax Department doing the work of Class IV employees at the rates equivalent to the minimum pay in the pay scale of the regularly employed workers in the corresponding cadres, without any increments with effect from 1.12.1986. The Court further directed preparation of a scheme on a rational basis for absorbing as far as possible the contingent paid staff of the Income Tax Department who had been continuously working for more than one year as Class IV employees.
11.9 In V.M. Chandra v. Union of India and Ors. : (1999)IILLJ497SC , considering the long period of service the appellant had put in and the qualification possessed by her as also the number of occasions she had approached the Tribunal and the authorities for relief, the Supreme Court directed her absorption as Skilled Artisan in Grade III in appropriate scale by giving increment and continuity in service on that basis. It was observed that the view taken by Chairman of Railway Board that there cannot be any designation assigned to a casual employee baffles all logic.
11.10 Recently in Gujarat Agricultural University v. Rathod Labhu Bechar and Ors. : (2001)ILLJ710SC , the Supreme Court held as under:
'17. From the aforesaid, it emerges that the learned Single Judge had concurred with the finding of the Tribunal that the contesting workmen have been working in the appellant University regularly for a long number of years. The existence of permanent nature of work was inferred on this account and also due to the vastness of the appellant's establishment. The regularisation is claimed only in respect of Class IV employees. The main objection which was raised earlier and is raised before us, is that a person could only be regularised on any vacant post and if there be one he should be qualified for the same as per qualifications, if any, prescribed. In fact, the Tribunal has held that on the date of the award, most of the workmen had completed 10 years of their service. It is also well settled, if work is taken by the employer continuously from the daily-wage workers for a long number of years without considering their regularisation for its financial gain as against employees' legitimate claim, has been held by this Court repeatedly as an unfair labour practice. In fact, taking work from a daily-wage worker or an ad-hoc appointee is always viewed to be only for a short period or as a stopgap arrangement, but we find that a new culture is growing to continue with it for a long time, either for financial gain or for controlling its workers more effectively with a sword of Damocles hanging over their heads or to continue with favoured ones in the cases of ad-hoc employees withstalling competent and legitimate claimants. Thus we have no hesitation to denounce this practice. If the work is of such a nature, which has to be taken continuously and in any case when this pattern becomes apparent, why they continue to work for year after year, the only option to the employer is to regularise them. Financial viability, no doubt, is one of the considerations but then such enterprise or institution should not spread its arms longer than its means. The consequent corollary is, where work taken is not for a short period or limited for a season or where work is not of a part-time nature and if pattern shows that work is to be taken continuously year after year, there is no justification to keep such persons hanging as daily-rate workers. In such a situation a legal obligation is cast on an employer; if there be vacant post, to fill it up with such workers in accordance with rules, if any, and where necessary by relaxing qualifications, where long experience could be equitable with such qualifications. If no posts exist then duty is cast to assess the quantum of such work and create such equivalent posts for their absorption.'
The Supreme Court further observed that:
'19. ...The Court does exercise its restrain where facts are such where extent of creation of post create financial disability. But at this juncture we would like to express our note of caution, that this does not give largess to an institution to engage larger number of daily-wage workers for a long number of years without absorbing them or creating posts, which constitutes an unfair labour practice. ...If finances are short, engagement of such daily-wage workers cold only be for a short limited period and if continuous work is required it could only do so by creating permanent posts. If finances are not available, take such work which is within the financial means. Why take advantage out of it at the cost of workers ?'
11.11 In Indian Petrochemicals Corporation Ltd. and Anr. v. Shramik Sena and Ors. : (1999)IILLJ696SC , where initial appointments of the workmen were not in accordance with the rules governing the appointments or the established policy of recruitment of the Management and the employer was an instrumentality of the State, the services of the workmen were held to have been ordered to be regular by the Court not as a matter of right of the workmen arising under any statute, but with a view to eradicate unfair labour practices and in equity to undo social injustice and as a measure of labour welfare, subject to suitable guidelines or conditions.
12. The plethora of precedents referred to in the previous paragraphs might in the first blush appear to be disparate and bewildering; but a closer scrutiny would reveal an underlying theme and an attempt at meting out justice in the given set of facts and within the legal limitations. It could be distinctly observed that the issue of regularization has been addressed by the Courts at two different levels and each precedent emphasizes a particular aspect of the matter. The issue of regularization comes up before higher Courts either after an industrial adjudication or straight away under the constitutional scheme of rights and remedies. Besides the factual variations on account of nature of appointment, employment, work and tenure, the legal treatment and moulding of relief also varies according to the provisions of law applicable to the establishment. However, there is a basic difference in approach when the workmen seek enforcement of constitutional guarantees and when new rights are sought to be created and conditions of services are sought to be improved through an industrial adjudication. When an industrial dispute is raised, it is a commotion to be pacified by dispensing justice. In such adjudication, not just the right to equality and other constitutional guarantees, but the aims and ideals of the Constitution enter into the consideration.
12.1 If we take an overview of the bedrock of our constitutional ideology, the Constitution is, by its very preamble, dedicated to securing to all its citizen, social and economic justice. By virtue of Article 37, the principles contained in Part IV are fundamental in the governance of the country. Dr. Ambedkar said: '...In my judgment the Directive Principles have a great value for they lay down that our ideal is economic democracy. Because we did not want merely a parliamentary form of government to be instituted through the various mechanisms provided in the Constitution without any directions as to what our economic ideal or as to what social order ought to be, we deliberately included the directive principles in our Constitution...' It is the duty of the Courts to apply the directive principles in interpreting the Constitution and the laws. Fundamental Rights should thus be interpreted in light of the Directive Principles and the latter should, whenever and wherever possible, be read into the former. As held by the Supreme Court in U.P. State Electricity Board v. Harishankar Jha [AIR 1979 SC 65], addressed to Courts, the injunction that the Directive Principles are fundamental in the governance of the country, means that while the Courts are not free to direct making of legislation, Courts are bound to evolve, affirm and adopt principles of interpretation which will further and not hinder the goals set out in the Directive Principles of State Policy. This command of the Constitution must be ever present in the minds of the Judges when interpreting statutes which concern themselves directly or indirectly with the matters set out in the Directive Principles.
12.2 Article 38 of the Constitution requires the State to strive to promote welfare of the people by securing and protecting, as effectively as it may, a social order in which social and economic justice may inform all the institutions of the national life and, in particular, to minimize the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities amongst individuals and groups. Article 39 requires the State to direct its policy towards securing for every citizen the right to an adequate means of livelihood and to see that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. Article 41 requires the State within its limitation to make effective provisions for securing the right to work and Article 42 requires making of provisions for securing just and humane conditions of work. Article 43 requires the State to endeavour to secure by suitable legislation or economic organisation or in any other way, to all workers, work, a living wage and conditions of work ensuring a decent standard of life and full enjoyment of leisure.
12.3 Article 51A makes it a fundamental duty of every citizen to abide by the Constitution and to respect its ideals, to follow the noble ideals which inspired our freedom struggle, to promote harmony, to develop humanism and to have compassion for all living creatures. These aims and ideals, coupled with a duty to follow them, are cast in the Constitution to keep them constant and above the vicissitudes of political ideology and economic policy. When an industrial adjudicator having the power to transcend contractual conditions of service entertains an industrial dispute, he exercises the judicial power of the State and endeavours to secure for the industrial workers 'work, a living wage and conditions of work ensuring a decent standard of life and full enjoyment of leisure', within the limitations laid down by law and binding precedents. Thus, the aim and object of adjudication of an industrial dispute is dispensing social and economic justice and translating the fundamental rights as well as the directive principles into some tangible relief. The jurisdiction of an Industrial Tribunal, therefore, is expansive and creative and not restricted to only enforcing or interpreting the contract of service or the extant legal provisions. To quote the following views of a Four Judge Bench of the Supreme Court in Bombay Labour Union v. International Franchises Ltd. [(1966) 1 LLJ 417] voiced by Their Lordhips through Justice Shri K.N. Wanchoo, as early as in 1966, in the above context, may be apposite:
'Then it is urged that the employer was free to impose any condition in the matter of employment when he employs a new workman and that industrial adjudication should not interfere with this right of the employer. All that need be said in this connection is that it is too late in the day now to stress the absolute freedom of an employer to impose any condition which he likes on labour. It is always open to industrial adjudication to consider the conditions of employment of labour and to vary them if it is found necessary, unless the employer can justify an extraordinary condition like this by reasons which carry conviction. In the present case the reasons which the respondent has advanced and which were the basis of the two decisions referred to earlier do not commend themselves to us as sufficient for such a rule. We are therefore of opinion that such a rule should be abrogated in the interest of social justice.'
As held earlier by the then Federal Court of India as early as in 1949 in Western India Automobile Association v. The Industrial Court, Bombay [(1949) LLJ 245], industrial adjudication does not mean adjudication according to strict law of master and servant. The award of the Tribunal may contain provisions for settlement of a dispute which no Court could order if it was bound by ordinary law, but the Tribunal is not fettered in any way by those limitations. The Court approved the view of Ludwig Teller (in Vol.I of Labour Disputes and Collective Bargaining) that industrial arbitration may involve the extension of an existing agreement or the making of a new one, or in general the creation of new obligation or modification of old ones.
12.4 When the demand for regularisation, absorption or permanency in service is raised by workmen employed and continued as casual, temporary, seasonal, daily wager or on such other irregular basis for a fairly long spell and such dispute is referred for adjudication, the resolution thereof will firstly depend upon the legality and propriety of continuation of their services on the same basis. If such employment on irregular basis is in violation of the express provisions of the I.D. Act or if it amounts to unfair labour practice on the part of the employer, such illegality or unfair labour practice must come to an end with the adjudication. No employer can claim the privilege or facility of committing an offence or violating the express provisions of the I.D. Act on the grounds that there are no posts, vacancies, work or funds for employment of the workmen in a legal manner. Where the casual or temporary employment on daily wage basis or otherwise is not in violation of any express provisions of law, the other considerations of availability of work, regular requirement of employees, financial impact, length of service, required qualifications, nature of the undertaking or project etc. will be attracted and the aforesaid principles will be applied. However, an industrial adjudicator is concerned more with the practice of the employer in securing work through temporary employment than with the mode of appointment adopted by the employer. If the practice of employing workmen as casual or temporary or on seasonal basis for years together were permitted either on the ground that there are no vacancies or posts or that there is no work for them for 3 to 5 months every year, or that the workmen are not qualified for regular recruitment, it may ensure for the employer full flexibility and freedom in deployment of labour, but it would amount to licence to exploit and would fly in the face of every constitutional aim, ideal, edict and obligation referred hereinabove. In the facts of the present case, the Industrial Tribunal could not have denied relief to the workmen after recording the finding that the workmen had completed 240 days of service and the employer had indulged in unfair labour practice by not allowing the workmen to complete in the same name even 180 days of service in 12 months so as to deny to them even the status of 'temporary workmen'. After identifying such workmen, numbering 189, who were not permitted to be discharged, as stated in para 2.3 herein, it was baseless and perverse for the Tribunal to observe that, '...It was a fact admitted by both the sides that the work of the ONGC is seasonal'. On the contrary, the record suggested that certain number of casual workers were retained as a part of the core team of the field parties even when majority of casual employees were employed on seasonal basis and permitted by the Tribunal to be discharged. In such circumstances, continuation of employment of the workmen concerned on 'casual' and 'seasonal' basis would amount to continuation of offences and violation of the provisions of the I.D.Act as may be elaborated now.
13. The only escape from the rigors of the 'Special provisions relating to lay-off, retrenchment and closure in certain establishments' contained in Chapter V-B of the Industrial Disputes Act is when an industrial establishment is of a seasonal character or where work is performed intermittently. The premises at which the field parties work and carry out any operation for the purpose of searching for or obtaining minerals, which includes mineral oils, natural gas and petroleum, will be a 'mine' within the meaning of Section 2 (1) (j) of the Mines Act, 1952 and hence an 'industrial establishment' for the purposes of the I.D.Act. In the facts of the present case, no evidence is led and no decision obtained about the establishment of ONGC being of a seasonal character or the one where work is performed intermittently as provided under sub-section (2) of Section 25-K. And, according to the certified Standing Orders, termination of services of all contingent employees is subject to the provisions of the I.D.Act. A workman who has been on the rolls of the Commission and has put in not less than 180 days of attendance in any period of 12 consecutive months automatically becomes a 'temporary workman' by virtue of the provisions of Clause 2 (ii) of the Certified Standing Orders. Therefore, the workmen concerned could not have been treated as 'casual' employees for the purposes of the restrictive and protective provisions of Chapter V-B of the I.D.Act and could not have been laid-off at the end of every 'field season' as appears to have been done by the ONGC even during the prolonged period of litigation. Such illegality coupled with the finding of 'unfair labour practice' legally entitled the workmen to regular employment and the aforesaid Standing Orders obliged the ONGC to consider such workmen for 'conversion' as regular employee no sooner they completed 240 days of attendance in 12 consecutive months provided they possessed the minimum qualifications prescribed by the Commission. Obviously the 'minimum qualifications' prescribed by the Commission can be in respect of particular posts and 'conversion as regular employee' could be on such post for which the employee possesses minimum qualification and experience.
13.1 If the above statutory scheme is viewed and were applied in light of the observations of the Supreme Court in PIARA SINGH (supra) made in 1992, the whole litigation could have been avoided as desired by the Supreme Court. However, even now, in view of the observations made by Their Lordships of the Supreme Court in GUJARAT AGRICULTURAL UNIVERSITY (supra), availability of posts or vacancy thereon cannot be the issue since it was the obligation of the ONGC to regularise the services of the workmen concerned and it is a case of regularisation by 'conversion' or 'absorption' at the appropriate time rather than filling up permanent posts when vacancies arise on the establishment of the ONGC. Therefore, the impugned directions to treat the workmen concerned at par with other regular employees working against the corresponding or equivalent, equated or identical posts, regardless of availability of vacancies, was not only eminently just but legally due to the workmen. A rational and just scheme of regularisation was required to be framed and implemented by the ONGC at least since the year 1992 and it does not lie in its mouth to say that the workmen concerned have to fulfil the requirements of age and minimum qualifications prevalent now or those prescribed in the Rules of 1996 by which year the workmen concerned would have, on an average, rendered services in more than ten 'field seasons' or years.
14. The issue of regularization has two distinct shades of meaning in the peculiar facts of the present case. Generally regularization is sought when appointment of an employee is irregular in the sense that it is not in accordance with the recruitment rules or is arbitrary or is by way of a back-door entry. Regularization also means regular employment of an employee who was intermittently employed on casual, temporary, seasonal or such other irregular basis. In the facts of the present case, it is not the case of the ONGC that the workmen concerned were illegally or arbitrarily recruited, but its objection is that their regularization would violate its recruitment rules made for appointments on permanent posts. As for the intermittent and seasonal nature of employment and work, as against the evidence of continued employment and finding of unfair labour practice, the ONGC has not cared to establish by leading any evidence at any stage the requirement of dispensing with the services of the workmen concerned.Even when an application for permission to terminate the services of casual employees of the field parties was made in the reference pending before the Industrial Tribunal, while granting such permission for others, the services of the workmen concerned were saved. Thereafter, the ONGC never applied for such permission in respect of the workmen concerned but appears to have insisted upon employing them only during winter and summer for not more than 8 to 9 months in a year. Such practice apparently offends the provisions of Chapter V-B of the I.D.Act. And, therefore, 'regularization', in the context of the present case, would mean wages and treatment at par with the regular employees and employment throughout the year.
15. It was necessary to undertake the above exercise of examining the appeal on merits since we were not inclined to uphold the preliminary objection that the appeal was not maintainable for having been preferred from the judgment supposed to have been rendered in exercise of the powers of the High Court under Article 227 of the Constitution. On the one hand the original petition of the respondent invoked both Articles 226 and 227 of the Constitution and, on the other hand, the impugned judgment nowhere specified Article 227 as the source of power in sole exercise of which the award of the Industrial Tribunal was modified. Therefore, under the circumstances, we reject the preliminary objection regarding maintainability of the appeal.
16. The contention of the appellant regarding continuity of service and attendance for requisite number of days in a year, however, requires consideration in moulding of the relief particularly because the impugned direction is supposed to be substituting the award with a direction to issue appropriate orders for all the employees by 30.4.1999. There is some substance in the argument of the appellant that, although no evidence was led before the Tribunal by the ONGC, the evidence led by the Union was sketchy and did not cover the entire period of service of each workman. It, however, appears to be the common ground and it is also evident from the record that the workmen concerned have been continuously and consistently employed by the ONGC in 'field seasons' for not more than 8 to 9 months in each year. Even after the impugned direction of this Court and qualified injunction against its operation expressly excluding 156 specified workmen, they appeared to have been employed as 'seasonal workers' by virtue of the interim orders referred in paragraph 5 hereinabove. The benefits to be granted were given prospective effect even as the Hon'ble Supreme Court in its order dated 16.2.2001 ordered that the benefits granted by the impugned judgment to the field workers should be made available to those 156 persons. That would literally mean grant of all benefits and treatment at par with other regular employees at least from the date of the impugned judgment. However, in fact, the workmen were not regularly employed and were not granted all the remaining benefits braving action under the Contempt of Courts Act. In such circumstances, it has to be decided as to from which date the workmen concerned should be entitled to the relief of treatment at par with the regular employees with all its consequences and ramifications.
16.1 As seen earlier, the workmen concerned appeared to have been working under the ONGC with its core teams and in its essential functions since the years 1981 to 1989. Therefore, they had already completed, by the year 1999, 10 to 15 years of service and they are not a homogenous mass of manual labourers. They are a heterogenous group of male and female qualified, skilled or semi-skilled clerks, typists, stenographers, storekeepers, drivers, peons etc. equivalent to regular employees in Class III and Class IV, as stated at the Bar. It is also a fact that the workmen concerned have actually worked for not more than 6 to 8 months in a year during the pendency of the petition and this appeal and retrospective regularisation cannot bring back the months during which no services were rendered and no payment was made.
17. Therefore, following the long line of judgments of the Apex Court referred in paragraph 11 hereinabove, since the workmen had already completed 10 to 15 years of service, though intermittently, by the year 1999, and in view of the definite judicial direction having been given in the year 1999 only, it would be just to order that the workmen concerned shall be notionally treated as regularised with effect from 1.5.1999. Since most of the benefits are already accorded to the workmen since then and some of the benefits are withheld by the ONGC even as the workmen were continued to be employed on seasonal basis in the field parties under the interim orders, the actual full benefits at par with regular employees including all the perquisites and applicable allowances as also regular employment throughout the year shall start with effect from 1.5.2005. This will not derogate from the earlier interim orders and entitlements of the workmen based on actual employment during field seasons only. For all other purposes, except actual payment of wages and allowances in respect of the days or months during which the workmen did not work, they shall be treated to have been in regular employment of the ONGC since 1.5.1999, and their wages and allowances shall be fixed and paid accordingly with effect from 1.5.2005 The impugned directions in paragraph 15 (2) and the consequent order in paragraph 16 of the impugned judgment shall stand modified to that extent and the direction in paragraph 15 (1) shall stand deleted. The directions as hereby modified shall apply to the surviving 153 employees out of 156 employees in respect of whom the impugned judgment was not stayed during pendency of this appeal and to five other employees who are stated to have been originally included in the list of 189 workmen whose employment was saved by the order dated 30.5.1994 in Complaint (ITC) No. 5 of 1993 and whose names were stated to have been, by mistake, excluded from the list of 156 workmen. Their names, date of entry in service and nature of work are stated to be:
1. Yogendra Prasad Samva Oct.1983 Survey Lineman
2. Bijender Singh Negi 2.4.1984 Storekeeper
3. Pratap Singh Mehra06.11.85 Repairing of seismic accessories
4. Rameshwar S. Sharma 05.11.76 Telecom Tech.
5. Guruvender Singh Chawla 21.9. 87 Survey Lineman.
The appeal is accordingly partly allowed with no order as to costs. Civil Application No. 11658 of 1999 filed in the appeal shall stand disposed as infructuous in view of the final orders in this appeal.
18. Before parting with the judgment, however, it may be apposite to observe that when not just any instrumentality of the State but a giant company with deep pockets, wages a long-drawn war against its own employees with legitimate claims and aspirations, it's managers ought to consult their own conscience and take the opportunity of doing justice themselves rather than adopting the strategy of wearing them out and draining their meagre resources in one after the other legal battles while they may be devoting better part of their lives to the organization. Even in the modern times of free-market economy and globalisation, the precept of recently departed Pope John Paul-II may be noted. His concept of globalisation was, 'to ensure that the winner in this process will be humanity as a whole, not just a wealthy elite that controls science, technology, communication and the planet's resources to the detriment of the vast majority of its people'. And according to Pope Benedict XVI; 'The intrinsic dignity of each person must always be respected in work, in action and in law'. A machine may be used as a more convenient substitute for a workman but a workman cannot be treated or switched on and off like a machine.
Upon the above judgment being pronounced, a request was made on behalf of the appellant that the operation of the judgment and the directions thereunder may be stayed for a period of ten weeks. We do not find any justification for granting such relief. Hence, the request is rejected.