1.0 The challenge in Special Civil Application No.2813 of 2012 is to the order passed by Presiding Officer, Industrial Tribunal-cum-Labour Court, Ahmedabad in Reference (ITC) No.1476/2004 whereby the reference was partly allowed. The challenge is based mainly on the ground that the finding of the Tribunal that the engagement of 577 persons on term/tenure basis was untenable in law and in directing the petitioner Corporation to give regular appointment to such remaining term based appointees who were continued on the posts and further restraining the petitioner corporation from importing recruitment from open market by inviting fresh applications for regular posts unless term based appointees are given regular appointment of Class III and Class IV posts.
2.0 It is also contended that the Tribunal failed to appreciate the fact that the term/tenure based engagement of the persons whose cause was responded by the respondent No.1 had come to an end in or around December 2003 and subsequent thereto fresh interviews were held after which persons were given fresh appointment for a period of four years in the month of January 2005. It is therefore contended that even the cause of action had come to an end.
3.0 Special Civil Application No.2248 of 2012 has been filed by ONGC Employees Mazdoor Sabha praying for a declaration that all 577 concerned workman as per the list enclosed at Annexure-A were entitled for regular appointment from the date of their initial entry in the respondent Corporation and to direct the respondent Corporation to treat all the 577 concerned workman regularly appointed to the posts to which they were initially appointed.
4.0 In support of the contention Mr. Kamal Trivedi, learned Senior Advocate appearing with Mr. Ajay R. Mehta, learned advocate for the petitioner for ONGC has relied upon a decision of the Hon'ble Supreme Court in case of Secretary, State of Karnataka and others versus Umadevi (3) and others reported in (2006) 4 SCC 1 , wherein in para 55 it is held as under:
"......In view of our conclusion, that the courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularization. We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in CAs Nos. 3595-612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of exercise of power by this Court under Article 142 of the Constitution to do justice to them."
4.1 Mr.
Trivedi, learned Senior Advocate, has next relied upon the decision of the Hon'ble Apex Court in case of Official Liquidator versus Dayanand and others reported in (2008) 10 SCC 1. Paragraphs 76 to 79 are reproduced hereunder:
"76.
The facts of U.P. SEB vs. Pooran Chand Pandey (supra) were that the respondents (34 in number) were employed as daily wage employees by the Cooperative Electricity Supply Society in 1985. The Society was taken over by Uttar Pradesh Electricity Supply Board in 1997 along with daily wage employees. Earlier to this, the Electricity Board had taken a policy decision on 28.11.1996 to regularize the services of its employees working on daily wages from before 4.5.1990, subject to their passing the examination. The respondents moved the High Court claiming benefit of the policy decision dated 28.11.1996. The learned Single Judge of the High Court held that once the employees of the society became employees of the Electricity Board, there was no valid ground to discriminate them in the matter of regularization of service. The Division Bench approved the order of the Single Bench. A two-Judges Bench of this Court dismissed the appeal of the Electricity Board. In para 11 of its judgment, the two-Judges Bench distinguished Secretary, State of Karnataka vs. Uma Devi (supra) by observing that the ratio of that judgment cannot be applied to a case where regularization has been sought for in pursuance of Article 14 of the Constitution. The two-Judges Bench then referred to State of Orissa vs. Sudhanshu Sekhar Misra , Ambica Quarry Works vs State of Gujarat Bhavnagar University vs. Palitana Sugar Mill Pvt. Ltd., Bharat Petroleum Ltd. vs. N.R. Viramani and observed: ( Pooran Chandra Pandey case SCC pp 98-99 pars 16 and 18)
16. "We are constrained to refer to the above decisions and principles contained therein because we find that often Umadevi (3) case is being applied by courts mechanically as if it were a Euclid's formula without seeing the facts of a particular case. As observed by this Court in Bhavnagar University and Bharat Petroleum Corpn. Ltd. a little difference in facts or even one additional fact may make a lot of difference in the precedential value of a decision. Hence, in our opinion, Umadevi (3) case cannot be applied mechanically without seeing the facts of a particular case, as a little difference i n facts can make U madevi (3) case inapplicable to the facts of that case."
18. "We may further point out that a seven-Judge Bench decision of this Court in Maneka Gandhi vs. Union of India has held that reasonableness and non-arbitrariness is part of Article 14 of the Constitution. It follows that the Government must act in a reasonable and non-arbitrary manner otherwise Article 14 of the Constitution would be violated. Maneka Gandhi case is a decision of a seven-Judge Bench, whereas Umadevi (3) case is a decision of a five-Judge Bench of this Court. It is well settled that a smaller Bench decision cannot override a larger Bench decision of the Court. No doubt, Maneka Gandhi case does not specifically deal with the question of regularization of government employees, but the principle of reasonableness in executive action and the law which it has laid down, in our opinion, is of general application."
[ Emphasis supplied] 77 We have carefully analyzed the judgment of the two-Judges Bench and are of the considered view that the above reproduced observations were not called for. The only issue which fell for consideration by two-Judges Bench was whether the daily wage employees of the society, the establishment of which was taken over by the Electricity Board along with the employees, were entitled to be regularized in terms of the policy decision taken by the Board and whether the High Court committed an error by invoking Article 14 of the Constitution for granting relief to the writ petitioners. The question whether the Electricity Board could frame such a policy was neither raised nor considered by the High Court and this Court. The High Court simply adverted to the facts of the case and held that once the daily wage employees of the society became employees of the Electricity Board, they could not be discriminated in the matter of implementation of the policy of regularization. Therefore, the two-Judges Bench had no occasion to make any adverse comment on the binding character of the Constitution Bench judgment in Secretary, State of Karnataka vs. Uma Devi (supra).
78. There have been several instances of different Benches of the High Courts not following the judgments/orders of coordinate and even larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this Court without any tangible reason. Likewise, there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the larger Benches including the Constitution Benches. These cases are illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system. In Mahadeolal Kanodia vs. Administrator General of W.B. [1960 (3) SCR 578], this Court observed: "If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another's decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another Single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know how to advise their clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court."
79. In Lala Shri Bhagwan vs. Ram Chandra [AIR 1965 SC 1767], Gajendragadkar, C.J.observed :
18...."It is hardly necessary to emphasize that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger bench to examine the question. That is the proper and traditional way to deal with such mattes and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned Single Judge departed from this traditional way in the present case and chose to examine the question himself."
4.2 Mr.
Trivedi, leaned Senior Advocate has further relied upon the judgement of the Supreme Court in case of U.P. State Electricity Board versus Pooran Chandra Pandey and others reported in (2007) 11 SCC 92 wherein in para 19 it is held as under:
?19. In the present case many of the writ petitioners have been working from 1985 i.e they have put in about 22 years' service and it will surely not be reasonable if their main claim for regularization is denied even after such a long period of service. Hence, apart from discrimination, Article 14 of the Constitution will also be violated on the ground of arbitrariness and unreasonableness if employees who have put in such a long service are denied the benefit of regularization and are made to face same selection which fresh recruits have to face."
4.3 In the light of the above, Mr. Trivedi, learned Senior Advocate for the petitioner Corporation further contended that direction issued by the Tribunal in clause (viii) directing not to import recruitment from open market inviting fresh applications for the regular posts unless term appointees are given regular appointments of class III and IV posts is arbitrary and unjust.
5.0 Mr.
Sinha, learned Advocate with Mr Pillai, learned Advocate appearing for ONGC Employees Mazdoor Sabha has supported the order and submitted that all the 577 concerned employees are entitled to be regularly appointed to the posts to which they were initially appointed. He placed reliance on the decision of the Hon'ble Supreme Court in case of Maharashtra State Road Transport Corporation and Another versus Casteribe Rajya Parivahan Karmchari Sanghatana reported in (2009) 8 SCC 556 wherein in para 34, 35, and 36. it is held as under:
"34.
It is true that Dharwad Distt. PWD Literate Daily Wages Employees' Assn. Arising out of industrial adjudication has been considered in Umadevi (3) and that decision has been held to be not laying down the correct law but a careful and complete reading of the decision in Umaddevi (3) leaves no manner of doubt that what this Court was concerned in Umadevi (3) was the exercise of power by the High Courts under Article 226 and this Court under Article 32 of the Constitution of India in the matters of public employment where the employees have been engaged as contractual, temporary or casual workers not based on proper selection as recognized by the rules or procedure and yet orders of their regularization and conferring them status of permanency have been passed.
35. Umadevi (3) is an authoritative pronouncement for the proposition that the Supreme Court ( Article 32) and the High Court ( Article
226) should not issue directions of absorption, regularization or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees unless the recruitment itself was made regularly in terms of the constitutional scheme.
36. Umadevi (3) does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of the MRTU and PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under Item 6 of Schedule IV where the posts on which they have been working exists. Umadevi (3) cannot be held to have overriden the powers of the Industrial and Labour Courts in passing appropriate order under Section 30 of the MRTU and PULP Act, once unfair labour practice on the part of the employer under Item 6 of Schedule IV is established."
6.0 Mr.
Sinha, learned Advocate submitted that the findings in para 16 and 17 of the Tribunal is that the appointment was in accordance with rules/regulations of the organization and regular procedure was followed. Hence he submitted that the ratio laid down in the case of Umadevi will not apply to the facts of the present case especially in view of the subsequent decisions of the Hon'ble Supreme Court.
7.0 I have heard learned advocates for the parties.
8.0 Rule returnable on 19.06.2012. Both the petitions shall be heard together. Both the parties will complete their pleadings on or before 08.06.2012.
8.0 Mr.
Trivedi, learned Senior Advocate makes statement that out of 577 appointees, 105 appointees were already absorbed and 63 persons have already left the duty. The same is not accepted by Mr. Sinha, learned advocate appearing for the ONGC Employees Mazdoor Sabha. In that view of the matter the following directions are issued:
[i] The direction issued by the Tribunal to the effect: "not to import recruitment from open market inviting fresh applications for the regular posts unless term appointees are given regular appointments of class III and IV posts" is put under abeyance.
[ii] The petitioner-ONGC shall take into consideration the case of remaining 389 employees or working at present with ONGC will be considered along with other candidates pursuant to advertisement/s of any other mode.
[iii] The petitioner-ONGC will make payment of regular salary of regular employee from publication of award i.e. from 01.01.2012 i.e one month from publication of award.
[iv] Any appointments which will be made hereinafter will be subject to the result of this petition and same will be referred in appointment order.
(K.S.JHAVERI, J.) niru* Top