The challenge in both the cases is to the award dated 31.12.2005 in the Reference No.8(C) of 2000, rendered by the learned Industrial Tribunal, Guwahati. The WP(C) No.2139/2008 is filed by 7 Khalasis, who according to the Presiding Officer, did not deserve reinstatement and regularization. Whereas the WP(C) No.5446/2006 is filed by the management of the Oil and Natural Gas Corporation Ltd. (in short “the ONGC”) to challenge that part of the award, whereby the learned Industrial Tribunal ordered for reinstatement and regularization of the typists, who are arrayed in the proceeding as private respondent Nos. 3-5.

2. The aggrieved Khalasis (hereinafter referred to as ‘the workmen’) in the WP(C) No.2139/2008 are represented by the learned senior counsel Mr. A. Dasgupta. The management of the ONGC in both the cases is represented by the learned senior counsel Mr. G.N. Sahewalla. The private respondent Nos.3-5 in the WP(C) No.5446/2006 are represented by the learned senior Advocate Mr. B.D. Konwar.

3. In the ONGC, the 3 categories of workmen i.e. the Khalasis, the attendants and the typists were initially engaged directly under the employer and subsequently they were engaged under the contractor Tuniram Phukan. The services of the workmen were dispensed with in the year 1995 and accordingly an industrial dispute was raised leading to the following reference:

“Whether the services of the workmen (list enclosed) working directly under ONGC management in the first phase of service and later engaged on contract basis can be reinstated and regularized ?

If so, to what relief they are entitled ?”.

4. Before the learned Industrial Tribunal, Guwahati, evidence was adduced by both parties. In order to claim reinstatement and regularization, the workmen relied on the report dated 5.1.1998 (Annexure-F) of the Asstt. Labour Commissioner (Central), who upon due inquiry concluded that, the service discharged by the workmen were perennial in nature in the ONGC. The direction given by this Court on 24.8.1998 in the Civil Rule No.3366/1995 (Exhibit-G) was also relied upon by the workmen in support of their claim. It was further projected that the labour contractor Tuniram Phukan secured his contractor’s license only on 29.9.1989 (Exhibit-A), under Section 12 of the Contract Labour (Regulation & Abolition) Act, 1970 (hereinafter referred to as ‘the Abolition Act’) and on this basis, attempt was made to prove that the engagement of the workmen was directly under the ONGC and the labour contractor’s role in the matter is nothing but a camouflage to hide the relation of employer and employee, between the ONGC and the workmen.

5. On the other hand, the management contended that the workmen were never employed directly by the ONGC and therefore they can’t be termed as workmen under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the I.D. Act’). The specific case projected by the management is that the workmen were the contractor’s employee and therefore they can’t claim the right of reinstatement/regularization in the ONGC.

6. The management examined the labour contractor Tuniram Phukan as MW.2, who admitted that he secured his license under the Abolition Act only on 29.9.1989 but he claimed that the workmen were engaged between 1987-1995 and the MW.2 paid their salaries. But the contractor could not produce the payment vouchers from 1987-1991, as they were allegedly destroyed by flood. The MW.1 and MW.3 in their testimony stated that the workmen were engaged by the contractor who provided the staff, as per the exigencies of the ONGC.

7. The workmen produced the WW.1 Khirod Ch. Keot, who was one of the three typists engaged under the ONGC. The claimants produced certificate(s) to show that they worked in the ONGC since 1985 till 1993 and they rendered service under the direct payment system from the ONGC till December, 1986. But from January, 1987 onwards, the payment was made through the labour contractor Tuniram Phukan.