M.D. Iqbal Basha and Others vs Oil and Natural Gas Corporation Ltd.

T. Raja, J.—The petitioners 1 to 27 filed the present writ petition seeking for the issuance of a writ of certiorarified mandamus to call for the

records relating to the order passed by the 3rd respondent, General manager, Oil and Natural Gas Corporation (hereinafter referred to as the

''Corporation''), Chennai, quash the same and further direct respondents 1 to 3 to regularise the service of the petitioners w.e.f. 13th Jan., 1988

with all consequential benefits, including equal pay in the circumstances of the case.

The respondent Corporation is not wholly owned by Government of India, but only 84% of the shares are held by the Government of India and

the remaining shares are held by financial institutions. Therefore, the Corporation is an authority for the purpose of Article 12 of the Constitution of

India.

When the matter was taken up, it was brought to the notice of the court that petitioners 4 and 13 had withdrawn from the proceedings and,

therefore, they are not parties to the writ petition.

The brief facts of the case is that, petitioners 1 to 6 were appointed originally as Security Supervisors at the Corporation''s Regional Office at

Chennai on contract basis; petitioners 7 to 23 were also appointed in the Corporation''s Regional Office at Chennai as Security Guards and

petitioners 24 to 27 were also appointed as Security Guards at the Corporation''s Field Stores, Kumbakonam, Thanjavur District on contract

basis by M/s. Thai Security Services under a valid job contract.

Though the petitioners were initially deployed by M/s.Thai Security Services in the offices, godowns and store yards at various locations at

Chennai and Kumbakonam to provide service as per the scope of work in the contract signed with the respondent Corporation, in the year 1986,

some of the workers deployed by M/s.Thai Security Services filed W.P. No. 7651/86 before this Court under Article 226 of the Constitution of

India seeking regularisation of their services in the Corporation and also simultaneously raised an industrial dispute before the Regional Labour

Commissioner (Central), Chennai, seeking regularisation of their services. After detailed discussions with the respondent Corporation, the

petitioners formed a co-operative society under the name and style ''Priyadarshini Indira Gandhi Cooperative Labour Contract and Service

Society'' and entered into a settlement signed on 16th Dec., 1986, u/s 18(1) of the Industrial Disputes Act, 1947 with the Corporation to provide

services to the Corporation as per its requirement. They also agreed to withdraw the industrial dispute raised before the Assistant Labour

Commissioner (C) and also the above mentioned writ petition.

Thereafter, in the year 1996, some of the employees, who formed themselves as Petroleum Employees Union represented by its General

Secretary, filed W.P. No. 1178/96 against the respondents under Article 226 of the Constitution of India praying for a writ of mandamus to direct

the Government of India and the respondent Corporation to issue orders to the Corporation to absorb those persons, whose names were given in

the annexure on regular basis on the abolition of contract labour, as Radio Operators. This Court, on the basis of the judgment in Air India

Statutory Corporation and Ors. v. United Labour Union and Ors. 1996 (9) SCC 377, by order dated 29th Jan., 1997, allowed the said writ

petition.

Thereafter, the respondent Corporation employed various employees directly on term based employment by issuing various individual orders,

wherein it is specifically mentioned as hereunder:

He will work as SECURITY GUARD/SUPERVISOR at MMDA Bldg., Madras or at any other place as may be directed.

His consolidated monthly wages will be Rs. 1156.80.

His engagement will be effective from 27.08.1991 and will continue till the induction of C.I.S.F.

For the purpose of terminating engagement, the priority list will be followed on the principle that last person in the list will go first.

His engagement is purely temporary.

His engagement shall stand terminated once the communication as per Clause 3 above is issued.

This engagement is purely on the basis of this Memorandum and the Standing Order of ONGC is not applicable.

In token of his consent for the above conditions, the individual shall sign on the duplicate of this Memorandum and hand it over to the

undersigned at the Regional Office or any of it''s Officer authorised in this behalf.

Since the petitioners were all working for a considerably long time with the respondent Corporation, it was submitted by Mr. G. Rajagopalan,

learned senior counsel for the petitioners that they had to make repeated representation to the Corporation to regularise their services and in view

of repeated representations, the Corporation came forward to set up a Committee headed by Mr. Kapoor to go into the requirements of the

security men. The said committee also submitted its report on 15th June, 2001, by strongly recommending for regularisation of the petitioners and

other term based employees. The recommendation of the committee specifically suggests two options. Firstly, the compensation and other benefits

of term based guards may be improved. A package, which is better than the existing compensation, may be negotiated with the term based

personnel, which may tone down their demand for regularisation. It also recommended that the regularisation of the term based personnel, who are

qualified in MRPR 1980 may be considered along with age relaxation in phases. Even thereafter, the respondents failed to come forward to

regularise the service of the petitioners. Therefore, the petitioners were constrained to file W.P. No. 5784/00 before this Court and this Court, by

order dated 6th Jan., 2003, disposed of the abovesaid writ petition by directing the respondents to consider and dispose of the matter on the basis

of the representation given by the petitioners. As per the direction issued by this Court in the abovesaid writ petition, the petitioners have also made

representation dated 27th Jan., 2003 to the respondent Corporation. While considering the abovesaid representation, the respondents, by

impugned order dated 24th March, 2003, rejected the claim of the petitioners. Aggrieved by the said impugned order, the present writ petition has

been filed challenging the same inter alia.

The main thrust of argument advanced by Mr. G. Rajagopalan, learned senior counsel for the petitioners is that the impugned order passed by

the 3rd respondent is violative of Articles 14 and 16 of the Constitution as it is against the principles laid down by the Apex Court in Air India''s

case (supra), wherein the Apex Court, though has categorically held that the principal employer is under statutory obligation to absorb the contract

labour, the respondent Corporation overlooked that ratio. Therefore, the impugned order is liable to be set aside on the basis of the ratio laid

down by the Apex Court in Air India case (supra). The next contention advanced by the learned senior counsel is on the right of regularisation and

equal pay for equal work. Inasmuch as the petitioners are discharging similar duty like the regular employees of the Corporation, they are denied

right to equal pay for equal work. This Court is duty bound to allow the writ petition since many of the similarly placed persons were regularised

while denying the same benefits to the petitioners alone. Learned senior counsel for the petitioners also urged this Court to sympathetically consider

the case of the petitioners in view of the continuous service rendered by the petitioners since 1988. He further contended that even the Apex Court

in Steel Authority of India case reported in 2001 (4) CTC 48 has ruled that contract labour abolition need to be construed liberally in favour of the

petitioners, who are working for more than two decades with the respondent Corporation. Learned senior counsel also relied upon the Supreme

Court decision in UP State Electricity Board v. Pooran Chandra Pandey 2007 (11) SCC 92 and also submitted that the ratio laid down by the

Apex Court in Umadevis''s case cannot be mechanically applied as if it were a Euclids formula without seeing the facts of the particular case and

also further submitted that the case of Umadevi has to be read in conformity with Article 14 of the Constitution and the same cannot be read in a

manner, which will make it in conflict with Article 14 of the Constitution. Since the Constitution is the supreme law of the land and no judgment, not

even the judgment of the Supreme Court, can violate the Constitution. On the above contentions, prayer was made to allow the writ petition.

In reply, Mr. G. Masilamani, learned senior counsel appearing for the respondent Corporation, at the threshold, contended that the case of the

petitioners basing on the judgment of Air India case (supra) cannot be espoused for the simple reason that Air India case (supra) was overruled by

the judgment of the Constitution Bench in Steel Authority of India v. National Union Water Front Workers 2001 (4) CTC 48. He further

contended that the judgment in SAIL case, while setting aside the notification on contract labour, made it clear that it is not necessary for the

establishment to continue with the employees appointed through contract labour system. The petitioners were appointed on term based

employment by specifically mentioning in the letter of appointment the terms and conditions stating further that their employment is purely

temporary and their employment will stand terminated once the respondents inducts CISF personnel and also made it clear that the engagement of

the petitioners is purely on the basis of the said memorandum and the standing order of the Corporation would not be applicable to them. Having

accepted the memorandum with the condition that their engagement is purely temporary and their engagement shall stand terminated once the

personnel from CISF are inducted in the respondent''s Corporation, the petitioners have no legal right to challenge the rejection order passed by

the respondent Corporation. Learned senior counsel for the respondent heavily relied on the judgment of the Apex Court in A. Umarani Vs.

Registrar, Cooperative Societies and Others, as well as the judgment in Secretary, State of Karnataka and Others Vs. Umadevi and Others, ,

wherein the Apex Court has laid down the ratio saying that regularisation cannot be the mode of recruitment by any ""State"" within the meaning of

Article 12 of the Constitution of India or any body or authority governed by a statutory Act or the Rules framed there under. It was further

submitted that regularisation, furthermore, cannot give permanence to an employee whose services are ad hoc in nature. Admittedly, the petitioners

in the present case, having accepted the appointment on the basis of the memorandum, which means that their engagement is purely temporary and

the same shall stand terminated once the personnel from CISF are inducted, makes it clear that the petitioners have no right to come before this

Court by invoking Article 226 of the Constitution, more so in view of the authoritative pronouncement of the Apex Court in Umarani and

Umadevi''s case (supra) and, therefore, it was submitted that the writ petition is liable to be dismissed.

Heard the learned Counsel appearing for the parties and perused the records.

The petitioners were originally employed by the respondent Corporation as Security Supervisors and Security Guards on contract basis, which

is also admitted by both sides. Subsequently, when Air India case (supra) was decided by the Supreme Court, the rights of the persons appointed

on contract basis were clearly crystallised by holding that the persons engaged on contract basis can be absorbed in the same establishment from

the date of their initial engagement and in case of any need for retrenchment, the principle of last-cum-first-go should be applied. It also further

reiterated the power of judicial review under Article 226 that the High Courts are under constitutional duty to enforce the law by appropriate

directions and mould the relief in accordance with law and on that basis directed all the workmen in the respective service working on contract

basis to be absorbed in the respective establishment and further held that the date of their engagement will be the criteria to determine their interse

seniority.

After the aforesaid Air India case (supra), the issue was once again taken up for fresh consideration by a Constitution Bench of the Supreme Court

in Steel Authority of India v. National Union Water Front Workers 2001 (4) CTC 48. The Constitution Bench judgment has completely taken an

opposite view to the one laid down by the Supreme Court in Air India case (supra) by overruling the judgment. As a result of overruling of Air

India case (supra), the SAIL case (supra) laid down the ratio that there is no automatic need for absorbing the contract labour by the principal

employer in their establishment on issuance of notification prohibiting employment of contract labour and also further made it clear that absorption

of contract labour is not concomitant to abolition of notification issued by the appropriate Government u/s 10 of the Contract Labour Act. In view

of the prospective overruling of Air India case (supra), the status of the employees engaged on contract basis was again put to uncertainty in

respect of their regularisation, if their services have not been regularised as on the date of judgment of the Constitution Bench, i.e., 30th Aug.,

2001.

In the present case, the petitioners are all working only on term based employment and the memorandum of appointment appointing the

petitioners clearly mentions as follows:

* * * * * * *

His engagement will be effective from 27.08.1991 and will continue till the induction of C.I.S.F.

* * * * * * *

His engagement is purely temporary.

His engagement shall stand terminated once the communication as per Clause 3 above is issued.

* * * * * * *

When the memorandum of engagement of the petitioners makes the position of their employment very clear, that their engagement is purely

temporary and their engagement shall stand terminated once the respondent inducts personnel from CISF, the petitioners having accepted and

entered in the service of the respondent Corporation accepting and knowing fully well that their services would stand terminated immediately on the

induction of CISF personnel, are not entitled to compel the Corporation to regularise their services as against the commitment and agreement

based on which they have entered in the service of the respondent Corporation.

Secondly, the judgment of the Supreme Court in A. Umarani Vs. Registrar, Cooperative Societies and Others, also comes in the way of

exercising the power of judicial review by this Court under Article 226. The relevant portion from the said judgment governing the present stand of

the petitioners and the respondents may be usefully referred to as under:

We have given unto ourselves a system of governance by rule of law. The role of the Supreme Court is to render justice according to law. As one

jurist put it, the Supreme Court is expected to decide questions of law for the country and not to decide individual cases without reference to such

principles of law. Consistency is a virtue. Passing orders not consistent with its own decisions on law, is bound to send out confusing signals and

usher in judicial chaos. Its role, therefore, is really to interpret the law and decide cases coming before it according to law. Orders which are

inconsistent with the legal conclusions arrived at by the court in the selfsame judgment not only create confusion but also tend to usher in

arbitrariness highlighting the statement, that equity tends to vary with the Chancellor''s foot.

In the name of individualising justice, it is also not possible for the Supreme Court to shut its eyes to the constitutional scheme and the rights of the

numerous as against the few who are before the court. The directive principles of State policy have also to be reconciled with the rights available to

the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens.

The Supreme Court has on occasions issued directions which could not be said to be consistent with the constitutional scheme of public

employment. Such directions are issued presumably on the basis of equitable considerations or individualisation of justice. The question arises,

equity to whom? Equity for the handful of people who have approached the court with a claim, or equity for the teeming millions of this country

seeking employment and seeking a fair opportunity for competing for employment? When one side of the coin is considered, the other side of the

coin has also to be considered and the way open to any court of law or justice is to adhere to the law as laid down by the Constitution and not to

make directions, which at times, even if do not run counter to the constitutional scheme, certainly tend to water down the constitutional

requirements.

This bypassing of the constitutional scheme cannot be perpetuated by the passing of orders without dealing with and deciding the constitutional

validity of the interim and final orders of the Supreme Court and High Courts which have issued directions for regularisation, permanent

continuation or absorption without referring to the legal position obtaining thereby, and which have been relied on by the respondent employees to

claim the same relief. While approaching the questions falling for decision before this Constitution Bench, it is necessary to bear this in mind and to

bring about certainty in the matter of public employment. The claim to a parity of treatment based on such orders also highlights the need for the

Supreme Court to formally lay down the law on the question and ensure certainty in dealings relating to public employment. The very divergence in

approach in the Supreme Court, the so-called equitable approach made in some, as against those decisions which have insisted on the rules being

followed, also justifies a firm decision by the Supreme Court one way or the other. It is necessary to put an end to uncertainty and clarify the legal

position emerging from the constitutional scheme, leaving the High Courts to follow necessarily, the law thus laid down.

Further, the Apex Court in Umadevi''s case (supra) has given clear cut answer to the prayer made by the petitioners herein, which is extracted

hereunder:

Persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, have been approaching

the courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the posts concerned. The courts have

not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some

cases even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called

litigious employment"", has risen like a phoenix seriously impairing the constitutional scheme. While directing that appointments, temporary or

casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some

cases for a considerable length of time. Such an argument fails when tested on the touchstone of constitutionality and equality of opportunity

enshrined in Article 14 of the Constitution. Merely because a temporary employee or a casual wage worker is continued for a time beyond the

term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such

continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to

the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc

employees who by the very nature of their appointment, do not acquire any right.

Therefore, in view of the authoritative pronouncement of law laid down by the Apex Court in Umarani and Umadevi''s case (supra), the contention

of the petitioners that they have worked for long time and, therefore, their services should be regularised, cannot be legally accepted.

By taking support from the Judgment of the Supreme Court in Pooran Chandra Pandey''s case, Mr. Rajagopalan more forcibly pleaded that in

view of his clients continuous working since 1986, the respondent should not mechanically apply the judgment in Umadevi''s case. In fact, the two-

Judge Bench of the Apex Court has distinguished the judgment in Umadevi''s case by observing that the ratio of the judgment cannot be applied to

a case, where the regularization has been sought for in pursuance of Article 14 of the Constitution. But, the later case of Official Liquidator Vs.

Dayanand and Others, , a Bench of three-Hon''ble Judges of the Apex Court, while dealing with a similar argument, has taken exception to the

judgment in Pooran Chandra Pandey''s case and held that the comments and observations made by the two-Judge Bench in U.P. SEB v. Pooran

Chandra Pandey 2007 (11) SCC 92 should be read as Obiter and the same should neither be treated as binding on the High Courts, Tribunals

and other Judicial fora nor they should be relied upon or made the basis for bypassing the principles laid down by the Constitution Bench. Since

the Apex Court has ordained in the said ruling that the comments and observations made by the Bench of two-Judge of Supreme Court in Pooran

Chandra Pandey''s should not be read as obiter and the same should neither be treated as binding on the High Courts, the abovesaid arguments

are not open to the petitioner and, therefore, I do not wish to delve further in this issue as to why the judgment of the Constitution Bench in

Umadevi''s case should not be applied to the petitioner''s case.

The petitioners admittedly accepted the temporary engagement with a condition to leave the job immediately after the respondent Corporation

inducts further more qualified personnel from CISF. After accepting the employment with open eyes, no doubt it is very difficult to leave the job

after continuing for a long time, but on that ground alone it would not be proper to subvert the constitutional scheme of appointment to perpetuate

illegalities and to take the view that a person who is temporarily or casually employed should be directed to continue permanently. If this Court

does so on the ground that they worked for long time, then this Court would be unnecessarily entering into the realm of contract entered between

the petitioners and the respondent Corporation to accommodate the petitioners, which is not permissible under the constitutional scheme and it will

also amount to creating another mode of public employment, which is neither permissible in law nor in consonance with the dictum enunciated by

the Apex Court in Umarani and Umadevi''s case (supra). This Court also does not want to rewrite the contract, which the petitioners and the

respondent Corporation have consciously entered into by applying their mind.

Before parting with the case, it is pertinent to remember another factual aspect. Similarly placed persons in the respondent Corporation had

earlier approached this Court by invoking Article 226 seeking a writ of mandamus to regularise their services. Learned single Judge of this Court,

while dealing with a similar and identical issue, has turned down their request for regularisation on the basis of the judgment in Umarani and

Umadevi''s case (supra). In the present case also, since the Supreme Court in Umarani and Umadevi''s case (supra) has laid down the law that

High Court under Article 226 should not ordinarily issue direction for absorption, regularisation or permanent continuance unless the recruitment

itself was made regularly in terms of the constitutional scheme, this Court is not inclined to accept the argument advanced by the petitioners and,

accordingly, the same is rejected. The writ petition is dismissed. There shall be no order as to costs.