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The creation of posts does not lie within the domain of judicial functions “which obviously pertains

Oil and Natural Gas Corporation vs. Krishnan Gopal and Ors., Civil Appeal No. 1878 of 2016 – Febraury 07, 2020.

The Supreme Court Bench comprising of Justice Dr. Dhanajaya Y Chandrachaud and Justice Ajay Rastogi pronounced the judgment.

ONGC had a project in Cauvery Basin, Karaikal in the Union Territory of Puducherry. It employed contract workmen as security guards and supervisors. On 8 December 1976, contract labour was abolished for watch and ward, dusting and cleaning jobs by the Government of India under Section 10(1) of the Contract Labour (Regulation and Abolition) Act 1970. Under an agreement with the trade unions, the management of ONGC utilized the services of the erstwhile contract workmen through a labour cooperative society which was formed for the welfare of the contract workmen. Subsequently, security work was entrusted to the Central Industrial Security Force to protect the installations. The workmen were later on appointed as part of watch and ward security on a term basis subject to the condition that the Certified Standing Orders would not apply to them. On a demand by the workmen, a reference was made to the Industrial Tribunal to adjudicate on whether the management was justified in not regularising the workmen and in failing to pay equal wages to the workmen, at par with the regular workmen. The dispute about the payment of equal wages was resolved by a settlement. The Industrial Tribunal made an award directing ONGC to regularise the services of the workmen. This was challenged by ONGC before the High Court in writ proceedings on the ground that there was no selection procedure. The workmen claimed that ONGC was involved in unfair labour practice and so the writ was dismissed by a learned Single Judge. The Division Bench has also dismissed the said appeal and so ONGC have moved to this Court.

The Court held that all the employees possess the qualification for regularisation and they have been employed before 1985 in the posts through irregular means. The Court held that the Industrial Tribunal had the jurisdiction to adjudicate upon the dispute and had rightly passed the award directing regularisation of the workmen.

The Court also directed ONGC to regularise the service of the workmen on completing their 240 days od service in a calendar year and to grant regular pay scale and absorption against regular posts.

It is evident that the Standing Orders has been construed to confer a right to regularisation on the completion of 240 days of service in a calendar year.

The decision in PCLU holds that the workmen upon completion of 240 days‟ service in a period of 12 calendar months “are entitled for regularisation of their services into permanent posts of the corporation”. The Court further held that under clause 2(ii), upon the completion of 240 days of service in a calendar year, the workmen have “acquired valid statutory right” and ought to have been “granted the status of regular employees” of the corporation on the ground that the corporation which is an instrumentality of the State under Article 12 cannot act arbitrarily or unreasonably.

The present appeals are placed in this Bench for consideration in context of industrial adjudication. In Umadevi, the Constitution Bench made a distinction between appointments or selection which are merely irregular and illegal.

The Court concluded that the powers of the Labour Court and the Industrial Court cannot extend to a direction to order regularisation is such a direction would offend the provisions of Article 14 of the Constitution.

The Court also stated that The statutory power of the Labour Court or Industrial Court to grant relief to workmen including the status of permanency continues to exist in circumstances where the employer has indulged in an unfair labour practice by not filling up permanent posts even though such posts are available and by continuing to employ workmen as temporary or daily wage employees despite their performing the same work as regular workmen on lower wages.

The Court however clarified that there is no doubt that the creation of posts does not lie within the domain of judicial functions “which obviously pertains to the executive” and the status of permanency cannot be granted by the Court where no posts exist. In Maharashtra SRTC, the two judge Bench was construing the provisions of the MRTU and PULP Act 1971. In holding that the creation of posts could not be directed by courts, the judgment in Maharashtra SRTC relied upon the decisions in Mahatma Phule Agricultural University and State of Maharashtra v R S Bhonde.

It is also found that the grant to regularisation would be impermissible on the basis of number of years of service alone if no posts are available and the powers to create permanent or sanctioned posts remains outside the judicial domain.  It is also open for the workmen who were deprived of the benefit at par with other workmen. Various conclusions being made in the judgment, the Court placed the batch of appeals before the Chief Justice of India.

– Vydurya Selvi Baskaran

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