1999 Supreme(Guj) 46

Gujarat High Court
Judgename :M.R.CALLA
ENGINEERING MAZDOOR SANGH - Appellant
Versus
OIL AND NATURAL GAS COMMISSION - Respondent
S.C.A. 12850 of 1994
Decided On : 02/16/1999

Headnote:(a) Industrial dispute - Relief on reference - Can not be restricted to the workmen whose names appear in the Schedule to the affidavit Exh. 48 in the complaint (ITC) No. 5/93 - Reference was with regard to the employees employed in the ONGC who had completed 240 days or more with the Commission - There is no question of limiting the scope of reference to the names included in the Schedule by the union - Names included in the Schedule are merely illustrative and reference before Tribunal can not be to the exclusion of those who are similarly situated - It is therefore, held, that the other employees who had also completed 240 days and were similarly situated are also entitled to same relief.

       The touch stone for giving the relief was the completion of 240 days or more in the Commission, from the date of their engagement in ONGC. Consequently, notwithstanding the inclusion of the name of such an employee in the Schedule to the affidavit Exh. 48 as was given by the Union, the workmen who were similarly situated to those employees who were included in the Schedule would also be entitled to the identical treatment. The Tribunals direction to restrict the relief only to the workmen included in the Schedule to affidavit Exh. 48 in the Complaint (ITC) No. 5 of 1993, therefore, cannot be sustained and it is held that the other employees who had also completed 240 days and who were otherwise similarly situated to those employees are also entitled to the same relief.

       [Para 8]

       (b) Labour Law - Award - Direction for considering regularisation contingent to availability of vacancies modified and ordered that all such employees who fulfil the requirements of completion of 240 days or more and possess minimum qualifications under the ONGC (Recruitment and Promotions) Regulations, 1980 in accordance with relevant certified standing order shall be treated at par with other regular employees - Such benefit will not wait till availability of the vacancies on regular posts - However, they shall have to wait for their turn for being permanent - Age requirement of such employee will be considered with reference to their initial appointment with the Commission - Direction under the award to complete with the open market candidates seeking employment through Employment Exchange is also not sustainable because matter is not related to substantive appointment but it is only for conversion as regular employees who are already in employment.

       Court do not find that there is any legal impediment against the employees who have been continuing for number of years in certain cases for 12 years or more so as to consider them at par with the regular employees and as a matter of fact, the Standing Order itself suggests the permissbility of such conversion and for the purpose of treating them at par with the regular employees, it cannot be pleaded that existence of permanent posts is a condition precedent or pre-requisite. In this context, it is clear that on fulfilment of the two conditions, namely, completion of 240 days as provided in the Standing Order and the possession of the minimum qualifications with reference to the post against which the concerned employee has been discharging his duties will be the sufficient requirement and the benefit of treating such employees at par with the regular employees cannot be avoided on the basis that they have to wait till the availability of a permanent post.

       [Para 10]

       True it is, that the regularisation as permanent workman cannot be given in absence of availability of a permanent post as the law is settled that permanent appointment cannot be given in absence of the permanent post, but it is equally settled that the availability of a permanent post is a fortuitous circumstance and consequential confirmation of any employee is a known inglorious uncertainty in the service career and therefore, the regularisation as permanent workman may depend upon the availability of a permanent post. However, it is also trite law that regular appointment can be given even against a temporary post and therefore, there is no ban against treating a person to be regular even if the permanent post is not available. In view of this position of law, I am inclined to hold that regularisation as a permanent employee cannot be given unless there is a permanent post, but at the same time, an employee who has been working for years together can certainly be considered at par with other regular employees for the purpose of all other benefits and so far as the Standing Order 2(II) to which the reference is made hereinabove is concerned, it is very clear that it speaks of consideration for conversion as regular employee. The consideration for conversion as regular employee cannot be compared with regularisation as permanent workman and for the purpose of conversion of workman as regular employee, what is to be seen is the completion of 240 days and the minimum qualifications prescribed by the Commission. It is, therefore, not a case of giving a regular appointment but a case of conversion as regular employee as contemplated by the Standing Orders.

       It has been given out by the learned Counsel for the Union that each and every employee who is sought to be treated at par with the regular employees fulfills the minimum qualifications prescribed for the post on which he or she has been working in terms of the ONGC (Recruitment and Promotion) Regulations, 1980. It has been pointed out that such employees have been working as Clerks, Typists, Stenographers, Store Keepers, Drivers, Peons, and other posts in Class-III and Class-IV and they do fulfil the qualifications which are prescribed for each of such posts in terms of the Regulations of 1980 and therefore, the objection with regard to the requirement of minimum qualifications is no hurdle against any of them for the purpose of treating them at par with the other regular employees holding identical posts.

       If a workman had completed 180 days in 12 consecutive months, he ceases to be casual employee and becomes a temporary employee and if such temporary employee completes 240 days in 12 consecutive months and he also becomes eligible to be converted as regular employee and the ONGC was not willing to confer this status to temporary workman or the entitlement for consideration as regular employee by conversion and therefore, the employees had to seek employment in different names after completing 180 days. Thus, the workman who has continued for a period of 180 days or more than 240 days is the same. All that has happened is that he has continued under different names although ONGC as well as the employees both have been party to this device, the employee had no choice and they preferred to change their names to earn their bread, lest they would have been deprived of their wages. But the fact remains that the ONGC deprived these very employees of the status which otherwise they would have attained after 180 days or 240 days and certainly this is a case of unfair labour practice and the benefit of continuity of service by 180 to 240 days should have been given to such employees who had worked under different names and merely because they were working under different names, it cannot be pleaded that they had not completed 240 days and, therefore, even if an employee has worked for more than 240 days under different names, he will not be deprived of the consequential status in terms of the Standing Orders and the benefits which would have otherwise enured to him would not be denied to him and the unfair labour practice of the ONGC will be no bar against their claim for being considered for conversion as regular employees or for being treated at par with the other regular employees.

       [Para 13]

       Whereas it is a case of consideration for conversion as regular employees and not a case of substantive appointment against the permanent post, for the purpose of consideration for conversion as such, it does not appear to be necessary in terms of the Standing Orders for these employees to compete with the open market candidates and, therefore, this direction as has been given by the Tribunal that they will have to compete with other workmen seeking employment through Employment Exchange, appears to be unwarranted and uncalled for.

       [Para 14]