Sri Subhasish Sarkar vs The Oil And Natural Gas Corporation Ltd.

In the year 2010, through a selection process, the petitioner was engaged as Field Operator on tenure basis for a term of 4 years. After every 4 years, his such tenure was extended for further term of 4 years and lastly, he was engaged on 10.02.2022 for a further period till 02.02.2025. In the engagement letter dated 10.02.2022 it is mentioned that the engagement of the petitioner would automatically will come to an end on 02.02.2025 upon his attaining age of 50 years. During his such tenure appointment, once he was entrusted with the Election duty as Micro-Observer in General Election of Lok Sabha, 2024.

[2] According to Ms. R. Purkayastha, learned Legal Aid Counsel, in some of the cases, the High Court of Andhra Pradesh directed the ONGC authority to regularize the services of Field Operators and many of such cases are still pending in different High Courts, but despite the same, the service of the petitioner has not been regularized. It is also submitted that though he was discharging similar/identical duties at par with other regular employees, yet a meagre amount of Rs.40,000/- was being paid to him per month as salary. Another grievance of the petitioner is that his engagement as Field Operator has been limited only up to 50 years of age in place of 60 years which is highly irrational and arbitrary. With such grievances, he has lodged this writ petition for a direction to the respondents to regularize his service as Field Operator with retrospective effect from 13.01.2010 with necessary financial benefit and also for providing him regular pay scale meant for the post of Field Operator.

[3] Ms. R. Purkayastha, learned legal aid counsel argues that the petitioner has been serving for 14 years with an artificial break of one day after every 4 years and the petitioner rendered his service for more than 240 days in every year as a full-time worker. In this regard, learned counsel also refers to the definition of continuous service as provided in Section 25B of Industrial Disputes Act, 1947 (for short- I.D. Act). It is also submitted that the petitioner was engaged through oral interview by issuing advertisement through a selection process and though post of Field Operator is not there in ONGC but the employees are regularized against the post of „permanent labourer‟ and in one judgment, the High Court of Andhra Pradesh directed to regularize the services of such tenure employees by creating post of Field Operator. Ms. Purkayastha, learned counsel further submits that it is a case of unequal bargaining between the employer and the employee and therefore, the petitioner was compelled to accept the engagement letter every time without going for any bargaining with the employer and the service rendered by him was perennial in nature.

[4] Learned counsel also relies on some decisions like i)ONGC Field Operators Union vs. ONGC Ltd., Writ Petition No.29116 of 2014 decided on 11.03.2016 of High Court of Andhra Pradesh, ii) Vasapu L. Kumar vs. ONGC Field Operators Union, Writ Appeal No.285 of 2017 decided on 05.01.2018 of High Court of Andhra Pradesh, iii) the General Secretary, ONGC All Employees Union and others vs. the Assistant Manager, ONGC Limited and another, W.P. No.23799 of 2022 decided on 12.02.2025 of Madras High Court, iv) Jaggo vs. Union of India and others, Civil Appeal No………. of 2024 arising out of SLP (C) No.5580 of 2024 decided on 20.12.2024 of Hon’ble Supreme Court and v) State of Karnataka and others vs. M.L. Kesari and others, (2010) 9 SCC 247 of Hon’ble Supreme Court.

[5] Mr. S.M. Chakraborty, learned senior counsel for the respondents argues that the petitioner was engaged temporarily as Field Operator purely on ad-hoc basis, firstly in the year 2010 for a fixed term of 4 years ending on 04.02.2014 or the date on which the petitioner will attain the age of 45 years whichever occurs earlier. Similarly, the petitioner was engaged again as Field Operator on 24.01.2014 with similar terms but with modification of the upper age limit making it 50 years in place of 45 years. He was again re-engaged vide letter dated 29.01.2018 and again vide letter dated 10.02.2022 with span of 4 years of tenure service on each occasion and even he also executed an undertaking that he would not move any Court or Authority seeking regularization based on such tenure engagement. It is also submitted referring to the counter affidavit of respondents that as per decision of Andhra Pradesh High Court, no petitioner has yet been absorbed rather, the matter is now pending before the Hon‟ble Supreme Court for decision.

[6] Learned senior counsel also argues that the salary of the petitioner was not Rs.40,000/- per month rather it was Rs.45,000/-. The maintainability of the writ petition is also questioned by learned senior counsel on the ground of delay and laches as in his first engagement letter, there was specific mention of date of retirement, but despite so many years have passed away meanwhile, he has not approached any Court or other authority seeking permanency of his service or for increasing the upper age limit. Learned senior counsel also contends that the petitioner has consciously accepted the last offer in the year 2022 and sat idle and therefore, now he is estopped from challenging the same. Next point of argument as advanced by Mr. Chakraborty, learned senior counsel is that there is no scheme for regularization of any Field Operator in ONGC and therefore, service of the petitioner cannot be regularized. The last two points as raised by Mr. Chakraborty, learned senior counsel are that ONGC is covered by the provisions of the I.D. Act and without approaching the Labour Tribunal/Court, he has directly approached the writ jurisdiction of the High Court and as such, the writ petition is not tenable on this ground too, and that the petitioner himself is also no longer in the service from 2025, therefore the writ petition is infructuous.

[7] Learned senior counsel also relies on a decision of Hon‟ble Supreme Court in case of Director General, Doordarshan Prasar Bharti Corporation of India and another vs. Magi H Desai, equivalent citation 2023 AIR SC 1623.

[8] In reply to the contention of Mr. Chakraboty, Ms. Purkayastha, learned counsel submits that the so called undertaking obtained from the petitioner by ONGC is illegal, inasmuch as no employer can bind down an employee prohibiting him from approaching the Court.

[9] In ONGC Field Operators Union case, as relied on by Ms. Purkayastha, learned counsel, the petitioners were working as Field Operators at Rajamundry Asset of ONGC. They possessed requisite technical qualification. Initially they were engaged through private contractors on contract basis prior to 1998. After prolonged demand and discussions, ONGC agreed to form societies with the petitioners and other similarly situated persons and to engage them through respective co-operative societies. An agreement in this regard was also executed between the petitioners and ONGC in the year 1997 AD. The agreement worked for 10 years and thereafter an undertaking was arrived at in the year 2003 to continue the benefit of engaging the petitioners through co-operative societies for more 5 years. It was further agreed that the corporation would create and fill up 60 posts to meet the operational requirements and would start the process of recruitment immediately and similarly 60 posts in every year would be filled up to make a total of 300 posts in 5 years. It was also agreed that the members of the societies who were eligible would be considered for such appointments by granting relaxation of age.

The petitioners meanwhile completed a tenure of more than 20 years against the posts which were permanent in nature. As their demand for regularisation was not considered, strike notice was also issued in 2007 which was resolved through conciliation before Regional Commissioner of Labour and the ONGC agreed to consider to provide term based employment to 280 society workers. But later on in deviation therefrom, ONGC proceeded to conduct open general recruitment and conducted written examination for 280 society workers followed by oral interview and medical examination. Some of the workers came out successful and they were engaged for four years on tenure basis. After completion of four years, again they were subjected to such tests and examination and thereafter again they were engaged for more 4 years as Field Operators. But despite the same, the ONGC again invited applications for filling up the posts of Field Operators through open selection process in the year 2014. Then the petitioners approached the writ jurisdiction of the High Court.

Learned Single Judge of Andhra Pradesh High Court while deciding the issued, relies on Clause 2(ii) of the Certified Standing Orders for Contingent Employees of ONGC which reads –“ A workman, who has been on the rolls of the Commission and has put in not less than 180 days of attendance in any period of 12 consecutive months shall be a temporary workman, provided that a temporary workman who has put in not less than 240 days and who possesses the minimum qualification prescribed by the Commission may be considered for conversion as regular employee.” Said notification is not relied on by the present petitioner in the case in hand. Anyway, finally the High Court in that context observes that petitioners in said case were working for more than 25 years as Field Operators and their appointments were neither irregular nor illegal and as their services were taken for more than two decades, so it could be presumed that such services were absolutely necessary. They were also subjected to open recruitment process. They were also eligible for many of the posts which were advertised under the notification. Therefore, the High Court directed regularisation of their services as Field Operators.

[10] In Vasapu L. Kumar’s case also factual foundation was almost similar like ONGC Field Operators Union’s case. The petitioners in said cases were also originally engaged through private contractors on contract basis in the year 1994/1995. Raising certain demands on behalf of contract labourers, the ONGC Contract Workers Union went to strike leading to a meeting being organized between the representatives of the management and the Union Authority and the Local Member of Parliament and MLA. As per resolution in the meeting, Cooperative Societies were formed and it was agreed that the workers would be engaged through said Societies. The agreement was decided to remain operative for 5 years. After initial 5 years, another meeting was also held and it was agreed that existing contracts with some of those Cooperative Societies would be terminated and fresh contracts would be entered into between the societies and the ONGC for further period of 5 years. The members of the societies who were qualified academically and technically might be taken up for consideration from existing semi-skilled to skilled categories. It was also agreed that ONGC would create and fill up 60 posts every year totalling 300 posts in a period of 5 years to meet operational requirements.

Again when the term of 5 years under the Memorandum of Understanding was about to come to an end, the Union served strike notice and a conciliation took place at the intervention of the Assistant Commissioner (Labour) and during that process, the management agreed to provide term based employment to those society workers, who were technically qualified, subject to verification of their certificates. Management also agreed that those society workers, who did not possess technical qualifications would be taken for term based employment upon their acquiring technical qualifications within 3 years and till then they would continue as society workers. Thereafter, Management conducted written examination followed by oral interview and medical examination and the society workers, who came out successful, were issued with the orders of appointment as Field Operators on tenure basis for 4 years. Upon the expiry of the first period of 4 years, they were granted a second renewal for a further period of 4 years.

Meanwhile, the management issued a circular inviting applications for filling up different posts and fearing a breach of the agreement, the ONGC Field Operators Union and some others filed writ petitions seeking regularization of their services. Learned Single Judge directed that those of the writ petitioners who have been given term based appointments and who have completed 240 days in the period of 12 months after their respective appointments on term basis in 2008 shall be regularized by the ONGC.

On challenge of said decision before the Division Bench, the Division Bench observes that there are differences between service law jurisprudence and labour law jurisprudence and the cases of the persons relating to labour law jurisprudence are required to be tested based on such jurisprudence. It is also observed that the questions relating to the nature of duties performed by the respondents (writ petitioners) and the posts to which these duties are attached, may hardly be of significance, while dealing with a demand for permanency made by a workman category employee in an industrial establishment.

Court further taking note of the sequence of events as indicated above observes that the management appeared to have gained expertise in dousing the fire of labour unrest once in five years, without actually conceding to their demand for more than 20 years from 1996 and it is in that circumstances the workmen have taken recourse to the Constitutional remedy, since their right to life and livelihood guaranteed under Article 21, has been made a mincemeat by the management. A challenge was also made from the side of management before the High Court that having raised an industrial dispute leading to the initiation of conciliation proceedings, it was not open to the workers to invoke the writ jurisdiction of this Court, and the unfair labour practice prohibited by the Industrial Disputes Act should normally be allowed to be adjudicated only by the mechanism provided under the I.D. Act itself.

In that contexts, the Division Bench observes that in the light of the above said circumstances and history of the long drawn out litigation, it is not a case that the workers had a better alternative in proceeding through the industrial disputes route. It is also observed that earlier identically placed persons of another region adopted the industrial disputes route even in the first instance and eventually got the award passed by the Industrial Tribunal confirmed by the Supreme Court in its decision in Oil and Natural Gas Corporation Limited vs. Petroleum Coal Labour Union and others, (2015) 6 SCC 494. It is also not a case that the management was very charitable to the workers who went through the industrial disputes route. After fighting their case before the Industrial Tribunal, the Management prosecuted the dispute before a learned Single Judge of the High Court, then to a Division Bench and thereafter before the Supreme Court and therefore, the contention that the respondents ought to have pursued their remedy through the industrial disputes route, is not borne out of the noble intentions. It is also noted that right from the year 1997, the plight of these workers and the act of the management in retaining them for long number of years as temporaries was brought to the notice of the appropriate Government, but the Government did not take any action for preventing this unfair labour practice for which the workers approached the Writ Court and therefore, the petitions are maintainable and considering all these aspects, the Division Bench also upheld the judgment of learned Single Judge.

However, incidentally, it is also observed that the case of Secretary, State of Karnataka and others vs. Umadevi (3) and others; (2006) 4 SCC 1, did not cover the cases under Industrial law rather said decision was confined only to the persons employed in the Government service or those employed in institutions that fall within the expression of State under Article 12 of the Constitution.

[11] In the General Secretary, ONGC All Employees Union’s case, the petitioners were originally engaged on a tenure basis for the post of Field Operators for 4 years in three batches in the years 2008, 2009 and 2013 respectively. After expiry of first 4 years, their tenure was extended for a further period of 4 years and again thereafter they were re-engaged for every four years till 30.07.2024. The petitioners claimed regularization and that was the origin of the industrial dispute. Labour Court observed that the petitioners were engaged on ad hoc basis and their services were engaged and re-engaged on tenure basis. They were also allowed to apply as departmental candidates and appear for written examination for the purpose of regularization of their services in regular post. The candidates who were found successful in the written examination and who satisfied the eligible criteria in respect of the required posts, were already regularized and those employees who were not successful in that exercise, could not claim that they had suffered unfair labour practice. With the above said observations, the Labour Court held that there was no unfair labour practice and the claim of the petitioners for regularization was negatived.

The matter was challenged before the learned Single Bench of the Madras High Court. Learned Writ Court also refers to said Clause 2(ii) of the Certified Standing Orders for Contingent Employees of ONGC and also takes into consideration different provisions of the Mines Act of 1952, Factories Act, 1948, Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981, ONGC Modified Recruitment and Promotion Regulations, 1980. The Court observes that the petitioners were subjected to thorough selection process like regular employees, in which reservations was also been given as per the Government norms. They have been re-engaged for repeated tenures and on the whole their services were utilized nearly for 15 to 20 years. They were given rigorous training and as per the role assigned to the Field Operators, they were expected to meet the specific work requirement in the field of oil exploration alone and their services were also utilized in other areas as well.

The trained persons among the petitioners were also utilized to impart training, when regular appointments were made to the posts of Rigman and Topman and even they were asked to give training to newly recruited staff to the higher post, when they were denied absorption as against those posts and for the regular recruitment, they were given age relaxation during the period when they had discharged the duties as Rigman. Even when there was acute shortage of Topman at some point of time, at that time, the services of the Field Operators were utilized to fill up the gap in those services of the Topmen. The Court also observes that as the recruitment process of the petitioners were made only by adopting a thorough selection process, their absorption as permanent employees cannot be called as back door entry. They had put their long tenure of service and spent their prime life time under the respondent company and therefore, their cases cannot be equated with those person who might wait for any notification or announcement for direct recruitment for regular posts and then apply. Finally, learned Single Judge allowed the writ petition partly and the management was directed to formulate a scheme in order to regularize the petitioners by creating regular posts suiting to their qualification and experience by giving age relaxation wherever needed and also to give effect to such regularization on and from the date on which the last candidate similar to the petitioners who got selected in the last direct recruitment and joined as against the regular post.

[12] The decision of Andhra Pradesh High Court in Vasapu L. Kumar (supra) along with some other judgments of different High Courts are ultimately challenged before the Hon‟ble Supreme Court in case of Oil and Natural Gas Corporation vs. Krishan Gopal and others; Civil Appeal No.1878 of 2016, wherein two important questions are raised. Firstly, whether the view of the Andhra Pradesh High Court in Vasapu L. Kumar (supra) that the principles enunciated in the judgment of the Constitution Bench in Umadevi (supra) are not applicable in labour law jurisprudence, is correct and secondly, whether finding of an unfair labour practice can be rendered in a proceeding under Article 226 of Constitution without the workmen leading evidence with reference to ID Act. In said decision, Hon‟ble Supreme Court has also taken note of said clause 2(ii) of Certified Standing Orders for Contingent Employees of ONGC which was referred in above said decisions of Petroleum Coal Labour Union (supra), for short „PCLU‟ and Vasapu L. Kumar (supra). As observed in above said case of Krishna Gopal (supra), in PCLU, clause 2(ii) of said Certified Standing Orders for Contingent Employees of ONGC was construed to confer a right to regularization on the completion of 240 days of service in a calendar year whereas while construing the provisions of clause 2(ii), an earlier decision of a two judge Bench of Hon‟ble Supreme Court in Oil & Natural Gas Corpn. Ltd. vs. Engg. Mazdoor Sangh, (2007) 1 SCC 250, was evidently not brought to the notice of the Court. Said Engg. Mazdoor Sangh’s case construed clause 2 specifically in the context of ONGC itself wherein the Labour Tribunal allowed the ONGC to terminate some of the workmen who already completed 240 days of service and directed ONGC to regularize other workmen as and when the vacancy arose in the regular post, subject to their completing 240 days‟ work and possessing the minimum qualification. The High Court modified the award of the Industrial Tribunal by directing that all the employees who completed 240 days and possessed the minimum qualifications would be considered at par with regular employees.

In appeal, Hon‟ble Supreme Court in Engg. Mazdoor Sangh’s case observed that regularizing the services of all the seasonal workmen would create various difficulties and hence the Tribunal had found a via media in directing that 153 workmen who had admittedly completed 240 days and had acquired a temporary status to be regularized against the vacancies as and when such vacancies became available, be regularized. Hon‟ble Supreme Court in said case, found that the directions of the Tribunal were reasonable and should prevail over the directions of the High Court. The Hon‟ble Supreme Court further in said Krishan Gopal’s case observed that the decision in PCLU (supra) has placed a construction on the provisions of said clause 2(ii) of the Certified Standing Orders which prima facie did not appear to be correct as it did not notice the earlier judgment in Engg. Mazdoor Sangh’s case. Hon‟ble Supreme Court in said case also took note of another decision in U.P. Power Corporation Ltd. and another vs. Bijli Mazdoor Sangh and others; (2007) 5 SCC 755 wherein the Court held that the law propounded in Umadevi (supra) was applicable also to Industrial Tribunals and Labour Courts. Finally, Hon‟ble Supreme Court in Krishan Gopal’s case referred the matter to the larger Bench for decision on the following points:

The matter is now pending before the larger Bench and the decision is yet to arrive.

[13] In Jaggo’s case as relied on by Ms. Purkayastha, learned counsel, the petitioners were originally engaged by the Central Water Commission on part-time, ad-hoc terms as Safaiwali in the year 1993, 1998 and 1999 respectively. Petitioner Nos.1, 2 and 3 were primarily responsible for cleaning and maintaining the office premises under the CWC. Petitioner No.5 was appointed in the year 2004 as Khallasi and was also discharging his duties akin to a Mali and was entrusted with the tasks such as gardening, dusting, and other ancillary maintenance work. Throughout their engagement, these individuals performed essential housekeeping and support functions at CWC establishments. Initially, they sought regularization of their services by filing application before the Tribunal and they relied on applicable government instructions and the principle that long-serving employees, engaged against work of perennial nature, deserve fair consideration for regularization, provided their appointments were not illegal or clandestine. The Tribunal dismissed their plea. Within 10 days of dismissal of their application, their services were abruptly terminated by the respondents without issuance of any show-cause notice. The writ petitioners then approached the High Court. The High Court observed that the petitioners were part-time workers who had not been appointed against sanctioned posts, nor they had performed full-time service for a sufficient duration to satisfy the criteria for regularization. The High Court also observed that they did not possess the minimum educational qualifications ordinarily required for regular appointments and employer had sufficiently outsourced the relevant housekeeping and maintenance activities. In that context, Hon‟ble Supreme Court observed the followings at paragraph No.27 and directed regularization of their services:

[14] In M.L. Kesari’s case, the followings were observed by the Hon‟ble Supreme Court in paragraph No.11:

[15] In Director General’s case, as relied on by Mr. Chakraborty, learned senior counsel, the respondent was engaged as a General Assistant on contract/casual basis in the year 1985 which was extended from time to time however with break of few days. He, thereafter filed an application before the Central Administrative Tribunal, Ahmedabad Bench which was disposed of with a direction to the department to pay her the same salary and allowances that were being paid to the regular employees.

Thereafter, pursuant to the decision of the Principal Bench of the Central Administrative Tribunal, New Delhi to regularize causal employees by way of framing of scheme, the service of the respondent (writ petitioner) came to be regularized as Lower Division Clerk in the year 1995 and she was given the regular scale of LDC from the date of regularization. Thereafter, the respondent again filed the application before the Tribunal seeking consideration of her past service which was dismissed. High Court thereafter allowed her to submit representation to the department which was turned down later on by the department. The respondent then again approached the Tribunal and the Tribunal again dismissed the claim with observation that services rendered by the respondent as contractual/casual cannot be treated and/or considered as temporary service and therefore services rendered as such shall not be counted for the purpose of retiral benefits. Ultimately, Division Bench of the High Court on challenge to said order held that the services in temporary capacity will include the classes of temporary servants such as casual or even contractual and directed that the services of the respondent rendered as contractual/casual shall be liable to be counted as temporary service for the purposes of calculating qualifying service. Hon‟ble Supreme Court finally observes that Doordarshan Prasar Bharti Corporation of India is an autonomous independent body and neither the rule nor the regularization scheme provide that services rendered as casual/contractual shall be treated as temporary service or same shall be counted for the purpose of pensionary benefits and accordingly, set aside the judgment of the High Court. This judgment as relied on from the side of present respondents has been rendered in different contexts and is not much relevant for the dispute involved in the present writ petition.

[16] Taking note of the pleadings of the parties and the submissions made by both sides, it appears that the present writ petition is bereft of certain material particulars. The petitioner in this case was engaged through oral interview whereas, as per the decision of High Court of Andhra Pradesh in both the cases as discussed above, the petitioners therein were engaged through written examination. What are the requisite qualification(s) for a Field Operator is also not disclosed herein. It is also not stated by the petitioner clearly whether he possesses the requisite qualification for the said post or not. No service rules guiding the recruitment procedure of Field Operator is also submitted. Rather, according to Ms. Purkayastha, learned counsel, there is no post of Field Officer at all in ONGC. If there is no sanctioned post, it means he was not engaged against any sanctioned post unlike the case of Andhra Pradesh High Court. During his entire tenure of service from 2010, he never raised any grievance regarding nature of his appointment and never claimed any regularization and consciously he accepted his last engagement issued vide engagement letter dated 10.02.2022 containing several terms and conditions mentioned therein and continued with his such engagement. It is only when he could realise that his tenure is not going to be extended further, he approached the writ jurisdiction of this Court.

[17] The decisions relied on by the petitioners were rendered on different set of facts and contexts as discussed. Certain other vital issues such as the validity of PCLU case, interpretation of Clause 2(ii) of the Certified Standing Order, the meaning and interpretation of unfair labour practice under I.D. Act and the power and limitation of the Labour and Industrial Courts in the matter of regularization of service in absence of any sanctioned posts are now sub judice before the Hon‟ble Supreme Court in larger Bench.

[18] Considering all these aspects, the Court is not inclined to allow the writ petition. Accordingly, the same is dismissed. However, this order will not stand as a bar for the petitioner, if he approaches the Labour Tribunal /Court on any occasion in accordance with law ventilating his grievances there and, in that case, the said authority will decide the matter without being influenced by this decision inasmuch as one of the prime ground of dismissal of this writ petition is absence of material particulars to decide the involved issues.

With such observations, the writ petition is disposed of.

Pending application(s), if any, shall also stand disposed of.