LexG.M. ONGC, SHILCHAR versus ONGC CONTRACTUAL WORKERS UNION
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[2008] 8 S.C.R. 1223 .., G.M. ONGC, SHILCHAR A v. ONGC CONTRACTUAL WORKERS UNION (Civil Appeal No. 4755 of 2001) MAY 16,2008 B [TARUN CHATTERJEE AND HARJIT SINGH BEDI, JJ.] ~ Labour Laws - Industrial dispute - Employees claiming regularization - reference to Industrial tribunal on the ques- tion of regularization - Tribunal holding that the employees c being the direct employees of the principal employer and not that of the contractor; entitled to regularization - Single Judge of High Court holding that workmen were employees of con- tractor; hence not entitled to regularization - Division Bench of High Court upholding the order of tribunal - On appeal, • held: Workmen were entitled to regularization - Decision of D the tribunal was not beyond the reference, as the real issue was status of workmen and not regularization simpliciter- Tri- bunal and Division Bench of High Court were justified in lift- ing the veil in order to determine the nature of employment- Contract Labour (Regularization and Abolition) Act, 1970. E .. The respondent-Union raised a dispute demanding regularization of the services of its members. The demand was opposed by the appellant-employer. Government 4' made a reference to Industrial Tribunal. Tribunal held that the members of the Union were the employees of the ap- F pellant and hence their services were liable to be regular- ized. Appellant challenged the award. Single Judge of High Court held that the appellant was not obliged to regu- larize the services as the members of the Union were em- ~ ployees of the contractor and not of the appellant; and fur- G , ther held that the tribunal exceeded its jurisdiction by de- ciding beyond the reference. In writ appeal, Division Bench of High Court, setting aside the order of Single Judge up- held that of the Tribunal. Hence the present appeal. 1223 H 1224 SUPREME COURT REPORTS [2008] 8 S.C.R. A Dismissing the appeal, the Court HELD: 1.1 In the light of the facts that have come on record there is no perversity or patent illegality in the Award of the Industrial Tribunal and on the contrary the Tribunal has minutely examined the evidence in arriving 8 at its decision. In this view of the matter, it was inappro- priate for the Single Judge of High Court to have re-ap- praised the evidence and come to a different conclusion. [Para 9] [1232-C,D] c 1.2 There are several observations which do sug- gest that a workman who has put in 240 days or is a con- tractual worker, is not entitled automatically to regulariza- tion. However, the present case is not one of regulariza- tion simpliciter such as in the case of an ad-hoc or casual 0 employee claiming this privilege. The basic issue in the present case is the status of the workmen and whether they were the employees of the ONGC or the contractor and in the event that they were employees of the former, claim to be treated at par with other such employees. This was the basic issue on which the parties went to trial, E notwithstanding the confusion created by the ill-worded reference. The Division Bench has examined the evidence on this aspect and has endorsed the finding of the Indus- trial Tribunal. (Para 10] [1232-F-H, 1233-A,B] F 1.3 The real issue was as to the status of the work- men as employees of the ONGC or of the contractor, and it having been found that the workmen were the employ- ees of the ONGC they would ipso-facto be entitled to all benefits available in that capacity, and the issue of regu- G larization would, therefore, pale into insignificance. In this situation, the Industrial Tribunal and the Division Bench of the High Court were justified in lifting the veil in order to determine as to the nature of employment. [Para 13] [1236-G, 1237 ·A] H • G.M. ONGC, SHILCHAR v. ONGC CONTRACTUAL 1225 WORKERS UNION 1.4 Even the ONGC had admitted that since 1988, A there was no licensed contractor and that the wages were being paid through one of the leaders of the Union and one such contractor has been named. The Tribunal then opined that it appeared from the record that the named contractor himself was a workman and not a contractor, B as he too was shown in the qcquittance roll to have re- ceived wages. [Para 13] [1236-E,F] 1.5 It is true that the reference prima facie does give the impression that it presupposes that the workmen were contractual employees and the only dispute was with re- C gard to the regularization o
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