By Adv. R. S. Agrawal

 

THROUGH the judgement in the case – Oil & Natural Gas Corporation Ltd. v. Petroleum Employees Union and 24 others and 7 other letters patent appeals, at Mumbai, a Bombay High Court division bench consisting of Justice K R Shriram and Justice Rajesh S Patil, has on June 5, 2023, gave clean chit to the appellant-Corporation with the observation that they do not think it has adopted any method of exploitation of workers. The High Court has stated that in its view, reference to Bhilwara Dugdha Utpadak Sahakari Sanstha Ltd. v. Vinod Kumar Sharma (Dead) by Legal Representatives & Others AIR 2011 SC 3546 by the Single Judge in the paragraph 24 of the impugned order passed by him, was not required in facts and circumstances of this case. In the High Court’s view, both the Central Government Industrial Tribunal as well as the Single Judge, at the High Court erred in arriving at their respective conclusions, hence both are hereby quashed and set aside.

 

The appellant-Corporation has impugned judgement and order of September 8, 2011 by which the Single Judge had dismissed the writ petition filed by the appellant. Through the writ petition, an Award of February 28, 2011 passed by the Presiding Officer, Central Government Industrial Tribunal No. II on Reference CGIT -2/10 of 2003. The Tribunal had by the said Award disposed of the Reference made on February 27, 2003 by the Union Labour Ministry, with the declaration that the contracts between appellant and various contractors in respect of workmen covered by the Reference and particularly in List A and List B are sham, bogus and mere camouflage. The Tribunal had also declared that the workmen in these Lists were absorbed as per the order of this court and they are entitled to appropriate wages and other service benefits on par with permanent workmen of appellant. It was also held that the said workmen were entitled to the benefits of settlement of July 12, 2000. According to the HC division bench, in its view the conclusion arrived at by the Single Judge while confirming the Award passed by the Tribunal are legally unsustainable for the reasons: (a) the conclusions of the Single Judge that the issues framed were in consonance with the order of Reference and those have been answered accordingly, are clearly contrary to the record.

 

(b) The Single Judge has emphasised that the act of absorption had reached finality. This is directly contrary to the decision of the division bench delivered on December 13, 2002, which was binding on the Single Judge. (c) The Single Judge has further held that the appellant has “admitted” that the contractor’s workers were treated as workmen working in direct employment and that therefore, issue No.1 was rightly answered in the affirmative. The fact that this was only due to compliance with the interim orders of this Court has, unfortunately escaped his attention. (d) The Single Judge has referred to the fact that the contractors had changed but the same workers were continued. It appears that the SC’s decision in the case R Panda & Others was not brought to his notice. (e) The Single Judge had further concluded that the work being done by respondent Union workers was regular and perennial. There is no material on record to substantiate this conclusion. Indeed, there is no material to indicate when any of 400 contract labourers were employed and for how long they continued in employment, prior to the interim order. (f) The Single Judge had concluded that there was an admission by appellant’s witness S R Kurup that there was no difference in the working of the direct employees and the contract workers.

 

In coming to this conclusion the Single Judge (SJ) had totally ignored the evidence of same S R Kurup, where he had deposed that these workers were not workers of appellant but had been treated as such due to the order of the High Court. (g) Further, the SJ had completely failed to consider the evidence of appellant’s witness G Rajendran the fact that he had explained in detail the differences in the manner of employment of the contract labour and regular workers. He had also not noted the admitted differences between the two sets of workers as pleaded by the workers themselves in their original writ petition No. 240 of 1996. (h) The SJ had further emphasised the fact that the terms and conditions of contract workers were settled under a MoU with the Unions of the contract workers. Here again, the Single Judge had not noted that this is expressly permissible under section 30(2) of the CLR Act.

(i) The SJ had concluded that the continuation of the contract labour under the direct control of the officers of the Corporation was not merely because of the interim orders passed by this Court, but this was also as a fall out of the Notification abolishing contract labour. This again ignored the conclusion of the Constitution Bench judgement in SAIL one, that abolition of contract labour does not ipso facto give the erstwhile contract labour, a right to be absorbed by erstwhile principal employer. (j) Further, the SJ had recorded that the Reference had been answered by taking into account the pleadings as also evidence. In holding as such the SJ had failed to note that the Tribunal had not even noted appellant’s evidence, documents or pleadings. The SJ had also not noticed the material admissions in the cross-examination of the two witnesses of the workmen.

 

(k) Lastly, the SJ had not considered or substantively dealt with appellant’s submissions as regards the findings of the Tribunal regarding sham and bogus contracts even though the same was specifically argued before him. In holding as above, the SJ had failed to note the perversity which pervades the impugned Award of the Tribunal. In acting as such, the SJ had confirmed the conclusions of the Tribunal, which are ex-facie perverse. Consequently, the impugned judgement is legally unsustainable. The High Court division bench has allowed the appeals and cleared the way for discharging/terminating the workmen in accordance with law. At the same time since many of the workmen have either retired or expired and there are hardly about 150 left, whose employment, in effect, was the subject matter of the appeal, the HC has urged the appellant, if possible, to continue those workmen in the same manner or terms as they are (till date) for a period of three years or until they retire, whichever is earlier, than discharge them/terminate their services. On the request of counsel for the respondents- employees’ unions, the HC agreed to grant status quo for eight weeks from the date of the judgement.