Oil and Natural Gas Corporation Ltd. and anr. Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
- - according to the workmen they have been working as temporary security guards in the ongc since the year 1986-87 and as the management had failed to regularise their services, the concerned workmen had raised the claim for regularisation which was sought to be settled by means of conciliation. as the conciliation proceeding had failed, the instant dispute was referred for adjudication by the industrial tribunal by notification dated 21.11.1996. in the written statement filed by the management, the claims made on behalf of the workmen were denied. whereas the workmen concerned had exhibited the records of the different rounds of discussions that had taken place between the management, the workmen and the district authorities with regard to their engagement in the ongc, the management..... ranjan gogoi, j.1. an award dated 30.11.2000 passed by the learned presiding officer, industrial tribunal, guwahati in reference case no. 3(c)/1996 has been put to challenge in the present writ application. by the aforesaid award dated 30.11.2000, the learned tribunal after holding the concerned workmen to be the direct employees of the ongc, has directed the appellant employee to regularise their services.2. the facts, in brief, may be noted at the outset.by the notification dated 21.11.1996 issued under section 10 of the industrial disputes act, 1947, the following question was referred for adjudication by the learned tribunal.'whether the demand for regularisation by management of oil and natural gas corporation, nazira and equal wages at par with their direct counterparts by shri.....

Judgment:

Ranjan Gogoi, J.

1. An award dated 30.11.2000 passed by the learned Presiding Officer, Industrial Tribunal, Guwahati in reference case No. 3(c)/1996 has been put to challenge in the present writ application. By the aforesaid award dated 30.11.2000, the learned Tribunal after holding the concerned workmen to be the direct employees of the ONGC, has directed the appellant employee to regularise their services.

2. The facts, in brief, may be noted at the outset.

By the notification dated 21.11.1996 issued Under Section 10 of the Industrial Disputes Act, 1947, the following question was referred for adjudication by the learned Tribunal.

'Whether the demand for regularisation by management of Oil and Natural Gas Corporation, Nazira and equal wages at par with their direct counterparts by Shri Jhatin Kr. Nath, Md. Safiratdin Ahmed, Shri Baba Kanta Das, Shri S.K. Nburmahammad Ali, Sriprasad Das, Sk. K. Nasiratdin Ahmed, Anil Ch. Das, Bijen Kakaty, Pranab Borah, Parag Phukan, Prafulla Das, Bhadra Kanta Das, Rupam Kr. Das, Bipul Borah, Sunil Dey, Atul Chandra Das, Md. Rafiqul Hussain and Bijit Nath is legal and justified. If so, to what relief are those workmen entitled?'

On receipt of the reference, Case No. 3(c)/96 was registered by the learned Tribunal, and notices were issued to the contesting parties to file their respective written statements. Both parties to the dispute had filed their respective written statements.

In the written statement filed by the workmen, it was stated that the 17 workmen, covered by the reference made, whose land was required by the ONGC for exploration of the oil sometime in the year 1986, were given an assurance by the ONGC to the effect that at least one member of each of the affected families will be provided employment by the ONGC. As the management of the ONGC did not comply with the aforesaid assurance, discussions were held between the Management of ONGC, the workmen concerned and the District authorities and after prolonged discussions and negotiations, the concerned workmen were engaged in the year 1986-87 as temporary Security guards. According to the workmen they have been working as temporary Security guards in the ONGC since the year 1986-87 and as the management had failed to regularise their services, the concerned workmen had raised the claim for regularisation which was sought to be settled by means of conciliation. As the conciliation proceeding had failed, the instant dispute was referred for adjudication by the Industrial Tribunal by notification dated 21.11.1996.

In the written statement filed by the management, the claims made on behalf of the workmen were denied. According to the management six of the workmen whose cases were referred for adjudication i.e. 1. Shri Safiratddin Ahmed, 2. Shri Jastin Kumar Nath, 3. Sk. Ali 4. Shri Atul Chandra Das, 5. Md. Rafikul Hussain and 6. Shri Parag Phukan were engaged by the ONGC as Contractors for providing Security Guards to guard the ONGC properties and specific contract agreements were executed by and between the ONGC and aforesaid six persons. Such contracts/agreements were extended from time to time and it is under these agreements that the aforesaid six persons had brought in the other persons covered by the reference as Contract employees. As some of the persons covered by the Reference were the contractors themselves and the others were the employees of such contractors, the management in the written statement has contended that there is no employer-employee relationship between the ONGC and the concerned workmen. As no notification Under Section 10 of the Contract Labour (Regulation and Abolition Act) 1970 had been issued by the appropriate Govt. prohibiting employment of contract employee by the ONGC, the reference was contended to be not maintainable. That part, in the written statement filed, it was contended by the ONGC that regularisations of services in the ONGC is governed by specific Rules and Regulation in force and the workmen concerned are not entitled to be regularised except in accordance with the Rules and norms in force.

Elaborate oral and documentary evidence was laid before the learned Industrial Tribunal by the respective parties in support their cases. Two witnesses, i.e. Safirutdin Ahmed and Noor Mohammad Ali were examined by the workmen in support of their case, whereas the management had examined one Ashok Kumar Hazarika and Shri Nabin Chandra Deka, who were employed as Assistant Security Officer and the Chief Security Officer of the ONGC respectively at the relevant point of time. Whereas the workmen concerned had exhibited the records of the different rounds of discussions that had taken place between the management, the workmen and the district authorities with regard to their engagement in the ONGC, the management in support of its case had exhibited the contract agreements executed between the ONGC and contractors for supply of contract labour as well as the bills which were paid to such contractors for engagement of contract labour.

The learned Tribunal on a consideration of the oral and documentary evidence on record came to the finding that there was an inherent contradiction in the case pleaded by the management inasmuch as, on one hand, it was claimed by the ONGC that the workmen concerned themselves were the contractors whereas on the other hand, the case projected was that the concerned workmen were contract employees. Proceeding on the basis that there was an inherent contradiction in the case of the management, the learned Tribunal after recording the fact that the management had not examined any contractors to prove the engagement of the workmen concerned by such contractors as contract labour, as also the fact that the management had not exhibited any licence of the contractors to employ contract labour, came to the conclusion that all the workmen concerned were direct employees of the ONGC and therefore, would be entitled to regularisation of their service. Accordingly, the directions for regularisation were issued by the learned Tribunal. Aggrieved, the instant writ application has been filed.

3. I have heard Mr. P.B. Dutta Choudhury, learned counsel for the petitioners and Mr. B. Chakraborty, learned counsel appearing on behalf of the respondents.

4. Mr. Choudhury, learned counsel for the petitioners has submitted that the learned Tribunal below has misconstrued and misinterpreted the true meaning of the case that was projected by the management in the written statement filed. There is no inherent contradiction in the case of the management as pleaded in the written statement filed. According to the learned counsel, a plain reading of the written statement would go to show that what was stated therein is that 6 of the 17 persons, whose cases were referred for adjudication by the Industrial Tribunal, had been engaged by the ONGC as contractors for supply of contract labour to guard the ONGC properties and installations. The remaining 11 workmen covered by the reference were contract labour engaged by the aforesaid 6 persons. According to the learned counsel, specific agreements executed by and between the ONGC and the contractors in question, from time to time, for supply of contract labour, had been proved and exhibited before the learned Tribunal. The witnesses examined by the workmen had themselves admitted execution of Agreements for supply of contact labour and receipt of payment by means of the bills exhibited. In such a situation, the findings recorded that all the workmen concerned whose cases were referred for adjudication are direct employees of the ONGC is plainly not tenable. It is submitted that the learned Tribunal has misconstrued and misinterpreted the evidence on record, and the findings of the learned Tribunal recorded being contrary to the evidence and materials on record, would require appropriate interference of this Court.

5. Controverting the arguments advanced on behalf of the writ petitioner, Mr. B. Chkraborty, learned counsel for the respondents, has submitted that the minutes of the various rounds of discussions that had taken place between the management and the workmen in the year 1986-87, would clearly establish that the workmen concerned were engaged as early as in 1986-87 with the promise that they would be regularised in due course i.e. as and when vacancies become available. The agreements for supply of contract labour, on which reliance has been placed by the management, are subsequent agreements and the same have been executed merely to camouflage the earlier engagement of the workmen by ONGC. Further, it is submitted that, in any case even if it is assumed that the 6 persons whose cases were referred for adjudication were the contractors themselves, in so far as the other workmen are concerned, no materials have been laid by the management to show that the aforesaid 11 persons were contract employees. According to the learned counsel for the respondents, the learned Tribunal on an elaborate consideration of the materials on record has come to the finding that the workmen concerned were engaged by ONGC 1986-87 and each one of them having served for over 10 years with minimum service of more than 240 days in a year the workmen were, therefore, entitled to regularisation as per prevailing Rules/norms and the ONGC and the said entitlement was rightly recognised and enforced by the learned Tribunal.

6. The submissions advanced on behalf of the rival parties have received the most anxious consideration of the Court. In an industrial adjudication when two contesting parties come forward with two conflicting versions and adduce oral and documentary evidence in support of the respective cases, it must be the endeavour of the industrial adjudicator to find out which of the two conflicting versions is more plausible and acceptable having regard to the materials available on record. In the instant case, that six of the workmen whose cases were referred for adjudication were the contractors employed by the management of the ONGG to supply contract labour for guarding ONGC properties and installations, is beyond doubt. The agreements executed by the ONGC with the aforesaid six persons, from time to time, including the contract agreements executed in the year 2000 are available on record. Two of the aforesaid six persons who were examined by the workmen have admitted execution of the agreements in question. For the services rendered by the aforesaid six persons as contractors, they were paid remuneration as per contract agreement and the bills on the basis of which such payments were made have been admitted by the witnesses examined on behalf of the workmen. In such a situation there can be little hesitation in holding that the aforesaid six persons were contractors engaged by the ONGC for supply of contract labour and no direction with regard to regularisation of the said persons could have been made as the said persons are the contractors themselves.

7. In so far as the remaining 11 persons are concerned, the ONGC has not adduced any material to show that the aforesaid 11 persons or any of them had been engaged as contract labour by the contractors appointed by the ONGC. Even no cross-examination of the two witnesses of the workmen examined on the aforesaid point is discernible.

While no material has been forthcoming on the part of the management to satisfy the Court that the workmen concerned were employees of the contractors, at the same time, there is hardly any material on behalf of the workmen to enable the Court to be satisfied that the workmen concerned were the direct employees under the employer. The minutes of the various rounds of discussions exhibited by the workmen would not be conclusive of the issue inasmuch as subsequent thereto, agreements had been executed for engagement of contractors to provide security guards on contract basis. Two of such contractors have been examined as witnessed on behalf of the workmen. Neither of the witnesses examined on behalf of the workmen, have deposed that they had not engaged any of the remaining 11 persons as their employees. In fact, the tenor of the testimony of the aforesaid two witnesses of the workmen is to the effect that they themselves are the direct employees of the ONGC workmen, a claim that this Court has found to be unacceptable.

8. This Court, therefore, is not satisified with the findings reached by the learned Tribunal and the consequential direction issued. The evidence and materials available on record, in the considered view of the Court, were inadequate to correctly answer the question referred to the learned Tribunal, except in the cases of the six persons as noted above. This Court, therefore, while interfering with the award dated 30.11.2000 passed by the Industrial Tribunal, Guwahati in reference Case No. 3(C) 1996, considers it appropriate to remand the matter back to Industrial Tribunal, Guwahati for a fresh decision on the basis of such additional evidence that the parties may adduce. The de novo adjudication will naturally be confined to the cases of the remaining 11 persons excluding the six who have been found to be the contractors engaged by the ONGC. The learned Industrial Tribunal is requested to complete the de novo adjudication as expeditiously as possible, for which purpose both the parties are directed to appear before the learned Tribunal on 14.6.2004.

9. With the aforesaid observations and directions this writ petition shall stand allowed to the extent indicated above.