1. Appeals against High Court judgments regarding the regularisation of workmen under the Industrial Disputes Act and Certified Standing Orders. (Para 1 , 2 , 3 )
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2020 Supreme(SC) 120
SUPREME COURT OF INDIA
DHANANJAYA Y CHANDRACHUD, AJAY RASTOGI, JJ.
Oil and Natural Gas Corporation – Appellant
Versus
Krishan Gopal & Ors – Respondents
Civil Appeal No. 1878 of 2016, 934-939, 669-696 of 2020 (SLP(C) Nos. 10478-10480 of 2016, 30854-30855 of 2017, 16455 of 2018, 15971-15998 of 2018)
Decided On : 07-02-2020
Important Points
The Supreme Court referred the decision in PCLU to a larger Bench to reconsider whether completing 240 days of service confers a right to regularisation, the definition of unfair labour practice under the ID Act, and the limits of industrial courts' power to order regularisation without sanctioned posts.
Subject
Labour Law - Regularisation of Services
Act Referred
Headnote
(a) Labour law - Regularisation - Clause 2(ii), Standing Orders - Workers completing 240 days in a calendar year - “May be considered for conversion as regular employee” - PCLU holding that this clause gives a statutory right to workers for regularization - Decision against express language of the provision - Also not considering constitution Bench judgment in Engineering Mazdoor Sangh and other judgments - PCLU needs reconsideration. (Para 17)
(b) Industrial Disputes Act, 1947 - Item 10, Schedule V r/w section 2(ra) and 25(T) - Unfair labour practices - Engaging workmen as badlis, temporaries or casuals, and continuing them for years, with the object of depriving them of the benefits payable to permanent workmen - Constitutes unfair labour practice. (Para 23)
(c) Labour law - Regularisation - Applicability of Uma Devi to industrial workers - Labour forums cannot order regularization which would offend Article 14, Constitution of India - Relief to workmen including status of permanency can be granted in case of unfair labour practice by employer - Granting regularization in absence of posts impermissible - Courts cannot create posts - Employer cannot discriminate between workers in matter of regularization. (Para 23)
(d) Interpretation of judgment - Reconsideration - PCLU requiring reconsideration for its interpretation of clause 2(ii) of Certified Standing Orders; unfair labour practice and limitations on power of labour forums to order regularization in absence of sanctioned posts. (Para 24)
Facts of the case:
This batch of appeals arises from the judgments of the High Courts of Andhra Pradesh, Delhi, Madras and Uttarakhand. Relying on Oil and Natural Gas Corporation Limited v Petroleum Coal Labour Union, (2015) 6 SCC 494 the High Courts have come to the conclusion that the workmen were entitled to regularisation in service.
Finding of the Court:
PCLU needs reconsideration.
Result: Matter referred to larger Bench.
Legal Category Hierarchy
Advocates Appeared:
For the Appellant(s) : Dr. Lalit Bhasin, Adv. Ms. Nina Gupta, Adv. Ms. Palak Chadha, Adv. Ms. Ruchika Joshi, Adv. Mr. Mudit Sharma, AOR Mr. S. Guru Krishna Kumar, Sr. Adv. Mr. V.N. Subramaniam, Adv. Ms. Shruta Gopalan, Adv. Ms. Madhusmita Bora, AOR Mr. V.N. Koura, Adv. Ms. Aruna Mathur, Adv. Mr. Shirish Kumar, Adv. Ms. Paramjeet Benipal, Adv. Ms. Anuradha Arputham, Adv. For M/S. Arputham Aruna And Co Mr. Abhishek Puri, Adv. Mr. V. Siddharth, Adv. Mr. P. N. Puri, AOR
For the Respondent(s): Ms. Asha Jain Madan, AOR Mr. Mukesh Jain, AOR Ms. Alka Aggarwal, Adv. Mr. R.R. Rajesh, Adv. Mr. Raj Bahadur, Adv. Mr. S. Guru Krishna Kumar, Sr. Adv. Mr. V.N. Subramanian, Adv. Ms. Shruta Gopalan, Adv. Mr. Anzu. K. Varkey, AOR Mr. D. Mahesh Babu, AOR Ms. Suchitra Hrangkhawl, Adv. Mr. Ganesan Subbian, Adv. Mr. Parnam Prabhakar, Adv. Mr. Venkateswara Rao Anumolu, AOR Mr. Santosh Krishnan, AOR Mr. V.N. Koura, Adv. Ms. Aruna Mathur, Adv. Mr. Shirish Kumar, Adv. Ms. Paramjeet Benipal, Adv. Ms. Anuradha Arputham, Adv. For M/S. Arputham Aruna And Co Mr. Ayush Negi, Adv. Mr. Himanshu Tyagi, Adv. Mr. Ankur Yadav, AOR Mr. P. Venkat Reddy, Adv. Mr. Prashant Tyagi, Adv. Mr. P. Srinivas Reddy, Adv.
For the Appellant(s) : Dr. Lalit Bhasin, Adv. Ms. Nina Gupta, Adv. Ms. Palak Chadha, Adv. Ms. Ruchika Joshi, Adv. Mr. Mudit Sharma, AOR Mr. S. Guru Krishna Kumar, Sr. Adv. Mr. V.N. Subramaniam, Adv. Ms. Shruta Gopalan, Adv. Ms. Madhusmita Bora, AOR Mr. V.N. Koura, Adv. Ms. Aruna Mathur, Adv. Mr. Shirish Kumar, Adv. Ms. Paramjeet Benipal, Adv. Ms. Anuradha Arputham, Adv. For M/S. Arputham Aruna And Co Mr. Abhishek Puri, Adv. Mr. V. Siddharth, Adv. Mr. P. N. Puri, AOR
For the Respondent(s): Ms. Asha Jain Madan, AOR Mr. Mukesh Jain, AOR Ms. Alka Aggarwal, Adv. Mr. R.R. Rajesh, Adv. Mr. Raj Bahadur, Adv. Mr. S. Guru Krishna Kumar, Sr. Adv. Mr. V.N. Subramanian, Adv. Ms. Shruta Gopalan, Adv. Mr. Anzu. K. Varkey, AOR Mr. D. Mahesh Babu, AOR Ms. Suchitra Hrangkhawl, Adv. Mr. Ganesan Subbian, Adv. Mr. Parnam Prabhakar, Adv. Mr. Venkateswara Rao Anumolu, AOR Mr. Santosh Krishnan, AOR Mr. V.N. Koura, Adv. Ms. Aruna Mathur, Adv. Mr. Shirish Kumar, Adv. Ms. Paramjeet Benipal, Adv. Ms. Anuradha Arputham, Adv. For M/S. Arputham Aruna And Co Mr. Ayush Negi, Adv. Mr. Himanshu Tyagi, Adv. Mr. Ankur Yadav, AOR Mr. P. Venkat Reddy, Adv. Mr. Prashant Tyagi, Adv. Mr. P. Srinivas Reddy, Adv.
Table of Contents
2. Whether a specific precedent is per incuriam, whether Standing Orders confer absolute regularisation rights, and the applicability of constitutional principles to labour adjudication. (Para 4 )
3. The court identified conflicts between precedents regarding the right to regularisation, the definition of unfair labour practices, and the requirement of sanctioned posts. (Para 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 )
4. The legal position on regularisation rights under Standing Orders and the scope of industrial courts' powers to order permanency requires reconsideration by a larger Bench. (Para 17 , 24 )
5. The matter is referred to the Chief Justice of India for placement before an appropriate larger Bench. (Para 25 )
6. Does completion of 240 days of service under Certified Standing Orders confer an absolute right to regularisation?
The court noted that the interpretation suggesting an absolute right upon completing 240 days requires reconsideration based on the express language of the provisions and earlier precedents. (Para 12 , 17 , 24 )
7. What constitutes an unfair labour practice under Item 10 of the Fifth Schedule of the Industrial Disputes Act?
It occurs when an employer employs workmen as badlis, temporaries, or casuals and continues them for years with the object of depriving them of the status and privileges of permanent workmen. (Para 5 , 16 , 23 )
8. How does the Constitution Bench decision in Umadevi affect the powers of Industrial Tribunals and Labour Courts?
While the foundational logic of Article 14 in Umadevi applies, Industrial Courts retain statutory powers to order permanency in cases of established unfair labour practices, provided sanctioned posts exist. (Para 18 , 19 , 20 , 21 , 23 )
9. Can a court order regularisation of service in the absence of sanctioned posts?
No, the creation of posts is an executive function. Regularisation cannot be granted merely on the basis of years of service if no sanctioned posts are available. (Para 15 , 20 , 21 , 23 , 24 )
JUDGMENT :
DHANANJAYA Y. CHANDRACHUD, J.
1. This batch of appeals arises from the judgments of the High Courts of Andhra Pradesh, Delhi, Madras and Uttarakhand. A judgment of a two judge Bench of this Court in Oil and Natural Gas Corporation Limited v Petroleum Coal Labour Union, (2015) 6 SCC 494 (“PCLU”) has assumed focus since the decisions of the High Courts in four of the present appeals have relied on the judgment of this Court in coming to the conclusion that the workmen were entitled to regularisation in service. In one of the five appeals, however where the prayer for regularisation was rejected, the decision in PCLU has been distinguished. Hence on either end of the spectrum, the judgment in PCLU has a significant bearing on the outcome of the appeals.
2. The manner in which the present appeals arise is indicated, for convenience of reference, in the following tabulation:
| Sl. Nos. | Particulars | Remarks |
| 1 | Civil Appeals @ SLP (C) Nos. 15971-15998/2018 ONGC & Ors. v ONGC Field Operators Union & Ors. | The appeals arise out of a judgment dated 5 January 2018 of the Andhra Pradesh High Court in 24 Writ Appeals and 4 Writ Petitions. The High Court directed regularisation of 450 workmen who moved the High Court under Article 226 of the Constitution without seeking a reference before the Industrial Tribunal under the Industrial Disputes Act 1947(“ID Act”). The judgment of the High Court has relied upon the decision of this Court in PCLU (supra). |
| 2 | Civil Appeal @ SLP (C) No. 4/2016 Renumbered as C.A. 1878/2016 ONGC v Krishan Gopal & Ors. | The appeal arises out of a judgment dated 12 December 2015 of the High Court of Delhi. Allowing a Letters Patent Appeal, the High Court directed regularisation of 24 workmen who had instituted proceedings under Article 226 without seeking a reference to the Industrial Tribunal under the Industrial Disputes Act 1947. The High Court relied upon the decision of this Court in PCLU (supra). |
| 3 | Civil Appeal @ SLP (C) No. 10478/2016 M Rajan & Ors. v | The appeal arises from a judgment of the Madras High Court dated 20 November 2015 in Writ Appeals. The High Court ONGC & Ors. rejected the prayer for regularisation made by the workmen who had instituted proceedings under Article 226. The High Court held that the remedy under the Industrial Disputes Act 1947 could not be bypassed. The High Court distinguished the decision of this Court in PCLU (supra). |
| 4 | Civil Appeal @ SLP (C) No. 30854/2017 ONGC v Tel AVM Prakartik Gas Karmchari Sangh | The appeal arises from a decision of the High Court of Uttarakhand dated 3 August 2017 in writ proceedings under Article 226, as a consequence of which, nine workmen have been directed to be regularised. The High Court set aside the award of the Industrial Tribunal which had held in favour of ONGC, the employer. The High Court relied on the decisions of this Court in PCLU and in State of Haryana v Piara Singh, (1992) 4 SCC 118 (“Piara Singh”). (The decision in Piara Singh has been overruled by the Constitution Bench of this Court in Secretary, State of Karnataka v Umadevi, (2006) 4 SCC 1). |
| 5 | Civil Appeal @ SLP (C) No. 16455/2018 The Management of ONGC v Petroleum Employees Union | The appeal arises from the judgment of the Madras High Court dated 29 January 2018 by which the services of fourteen messengers and three sanitary cleaners have been regularised by the High Court. The award of the Industrial Tribunal has been set aside. The High Court has relied on the judgment of this Court in PCLU (supra). |
3. In the appeals which are listed out at serial Nos. 1, 2, 4 and 5 of the table, ONGC, as the appellant seeks to challenge the judgments of the High Courts directing or, as the case may be, upholding the plea for regularisation on the basis of the decision in PCLU. In the appeal at serial No 3, the workmen are before this Court
