Page No.# 1/12 GAHC010236552015 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/434/2015 JAGADISH CHANDRA CHANDA SON OF LT. JATINDRA MOHAN CHANDA, UDAYAN COMPLEX, PANCHAYAT ROAD, NATIONAL HIGHWAY SIDE, BYE LANE NO. 1, P.O. SILCHAR, PIN 788005, DIST. CACHAR, ASSAM. VERSUS THE GENERAL MANAGER OIL AND NATURAL GAS CORPORATION LIMITED, CACHAR FORWARD BASE, CACHAR PROJECT, POST OFFICE. SIRIKONA, PIN 788026, DISTRICT. CACHAR, ASSAM Advocate for the Petitioner : MR.D J KAPIL, MR.R BORPUJARI Advocate for the Respondent : MR.R SHARMAR, MR.G N SAHEWALLA(R-2),MR.B K DAS(R-2) BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA JUDGMENT 15-07-2025 Heard Mr. R. Borpujari, learned counsel for the petitioner also heard Mr. GN Sahewalla, learned Senior Counsel assisted by Mr. BK Das, learned counsel for the respondent no.2. Page No.# 2/12 2] The petitioner was a workman under the Oil and Natural Gas Corporation Limited (hereinafter referred to as the ‘ONGC’) and engaged in the Cachar Forward Base of the ONGC. With respect to the regularization of the contractual workers in ONGC, disputes arose between the ONGC and the Workers Union, a reference was therefore made by the Government of India, Ministry of Labour, New Delhi, on 20.08.1990 to the Industrial Tribunal, Guwahati, Reference Case being Reference Case No. 6 (c) of 1990 was registered and notices were issued to the parties for their appearances before the Tribunal. The employees/workers was represented by the Union. The parties filed their respective written statements. The reference before the Tribunal was “whether the demand of ONGC Contractual Workmen Union, Silchar on the management of ONGC, Cachar Project, Silchar for regularization of the services of the contractual workers is justified. If so, what relief are the workmen concerned entitled to?” 3] The Tribunal upon considering the arguments and the evidence laid, by award dated 11.07.1994 held that the reference is maintainable. The Tribunal held that the management of ONGC, in Cachar Project, Silchar is not justified in not regularizing the services of the concerned workmen. The Tribunal held that the employees union represented the interests of the workmen and therefore the services of all concerned workers were directed to be regularized by the ONGC phase wise with pay and other allowances paid to the regular employees. This order came to be challenged by the ONGC in Civil Rule No. 3785 of 1994, which came to be disposed of on 8thof September, 1998. The writ petition was allowed holding that the Tribunal acted illegally and exceeded its jurisdiction, by deciding the issues beyond the terms of reference. Page No.# 3/12 4] The Judgment and Order dated 08.09.1998 passed in Civil Rule No. 3785 of 1994 again came to be assailed by the ONGC Contractual Workers Union by filling Writ Appeal No. 269 of 1998 and by Judgment and Order dated 24.12.1999 the judgment passed by the Coordinate Bench was overturned by the Division Bench by restoring the award passed by the Industrial Tribunal. The matter travelled to the Apex Court and the Apex Court also dismissed the appeal being Civil Appeal No.4755/2001 by order dated 16.05.2008 preferred by the ONGC and upheld the judgment passed by the Division Bench of the Gauhati High Court. 5] Since the award of the Tribunal was upheld by the Division Bench of this Court and which order stood confirmed by dismissal of the SLP, was not implemented, some of the workmen filed Contempt Petition before the Apex Court. However, the same stood withdrawn with liberty given by the Apex Court to avail appropriate remedies before the Industrial Tribunal. During the pendency of the appeal filed by the ONGC before the Apex Court, the parties arrived at an amicable settlement and executed a Memorandum of Understanding (MoU) dated 24.01.2007. The MoU was executed on 24.01.2007 between the ONGC, Silchar and the ONGC Contractual Workers Union, Silchar and by the said MOU a financial package was agreed upon to be paid to the contractual workers whose claims come within the purview of the award dated 11.07.1994 passed by the Industrial Tribunal, Guwahati in Reference Case No. 6 (c) of 1990. 6] Learned counsel for the petitioner submits that in view of the liberty being granted by the Apex Court in Contempt Petition No.312/2011 by order dated 16.09.2011, the petitioner approached the Tribunal by filing an application being Page No.# 4/12 Misc. Case No.2 of 2013 under section 33C (2) of the Industrial Disputes Act, 1947 praying for determination of the amount of money and other benefits to which the petitioner is entitled and the amount capable of being paid to the petitioner with effect from 11.07.1994 in terms of the award dated the 11.07.1994 passed by the Industrial Tribunal in Reference Case No. 6 (c) of 1990. This application, however, came to be rejected by order dated 21.10.2014 on the ground that the petitioner has not been able to substantiate his contention adducing supporting testimony in order to establish his claim. Being aggrieved, the present petition has been filed assailing the order dated 11.07.1994 passed by the Tribunal in Misc. Case No.2 of 2013. 7] Learned Senior Counsel for the respondents disputes the submissions made by the petitioner and submits that the petitioner remained absent from duties and is entitled to the financial package as the MoU as, in terms of the MoU dated 24.01.2007 executed between the ONGC and the ONGC Contractual Workers Union, the financial package was to be issued to all workers who are found to be regular employees only. The petitioner having remained absent without any reasons and having stopped attending to his duties, his case does not come under the MoU executed by and between the ONGC and the ONGC Contractual Workers Union. According to the respondents, the petitioner did not attend to his duties for the period from 07.12.2006 to 07.02.2007 on medical grounds and he failed to prove his absence on such medical grounds by adducing supporting documents. Therefore, the benefits under the financial package was declined to be released to the petitioner. 8] Learned counsel for the petitioner in rejoinder reiterates his submissions made earlier. He submits that the petitioner was absent for the period of Page No.# 5/12 07.12.2006 to 07.02.2007 on medical grounds and which information was duly communicated to the ONGC Authorities. However, the ONGC authorities, while refusing to grant the benefits to the petitioner, declined the prayers made by the petitioner for permitting him to rejoin his duties after his health improved. It is submitted by the learned counsel for the petitioner that the award dated 11.07.1994 passed by the Industrial Tribunal in Reference Case No. 6 (c) of 1990 has been upheld by this Court and the judgment of the Division Bench of this Court rendered in Writ Appeal No. 269 of 1998 by Judgment and Order dated 24.12.1999 stood upheld in view of the dismissal of the SLP filed by the petitioner. It is during the pendency of the SLP that the MoU was executed which in turn agreed to pay financial benefits to all persons employed in the ONGC, including the petitioner. Therefore, the denial of the claim of financial benefits by the petitioner was untenable and as a consequence thereof, the application filed before the Tribunal for computation of the financial benefits payable to the petitioner and which application came to be dismissed calls for interference by this Court. 9] Learned counsel for the parties have been heard. Pleadings available on record have been carefully perused. The award passed by the Tribunal as also the impugned order dated 21.07.2014 of the Tribunal and the judgment and order of this Court in Writ Appeal No.269/1998 and the orders passed by the Apex Court have also been carefully perused. 10] In the impugned order dated 21.07.2014 the Tribunal had returned the finding that the petitioner did not lead any evidence in his support that from 07.12.2006 to 07.02.2007 he was on leave on medical grounds. In spite of Page No.# 6/12 opportunities being granted, he had failed to adduce evidence before the Tribunal in support his claims that he was medically unwell and therefore, could not attend to his duties for the said period. There is no dispute on the facts that the award of the Tribunal dated 11.07.1994 passed in Reference Case No. 6 (c) of 1990 has not been interfered with by the Apex Court. On the contrary, during the pendency of the case before the Apex Court the MoU was executed and on that basis the proceedings were closed including subsequent Contempt Petitions filed before the Apex Court. The respondent authorities have declined to entertain the claim of the petitioner on the ground that he remained absent for the period from 07.12.2006 to 07.02.2007, and thereafter declined to join in the services and was, therefore, not included in terms of the MoU. Also there is no dispute that the Industrial Tribunal by award dated 11.07.1994 passed in Reference Case No. 6 (c) of 1990 had clearly upheld the claims of the Union towards payment of the dues to all the contractual employees and it is also not in dispute that the petitioner is also one of the contractual employees. Although an attempt has been made before this Court by the respondent authorities to persuade the Court that the petitioner is a member of a different association and not the employees’ association or union who was before the Industrial Tribunal, this objection, however, has to be overruled in view of the fact that the ground for rejection of the claims of the petitioner was not on that ground, but only for the reason that the Tribunal held that the petitioner remained absent for the period from 07.12.2006 to 07.02.2007. However, this is not the ground on which the impugned order dated 21.10.2014 has been passed rejecting the Misc. Case No.2 of 2013 filed by the petitioner. The fact remains that the award dated 11.07.1994 passed by the Tribunal in refence case No. 6(C) of 1990 was not altered or modified. The Tribunal vide its award dated 21.07.2014 upheld Page No.# 7/12 the claims of the Union. It had directed regularization of the contractual workers with pay and allowances of regular employees upheld the claims of the Union. Upon careful perusal of the said order it is observed that no such grounds of objections were raised before the Tribunal. It is also seen that there is no denial that the petitioner was never in the service of the ONGC. 11] It is not in dispute that the petitioner was an employee on contractual basis under the respondent. There is no material brought before the Court to show that the contract period of the petitioner was not extended or terminated by any speaking order in view of the absence of the petitioner for the period from 07.12.2006 to 07.02.2007. It is also not in dispute that on the basis of the MoU executed by and between the respondent and the employees union, the respondents had committed to offer financial packages to all such employees on contractual basis. The relevant clauses of the MoU dated 24.01.2007 is also extracted below for ready reference:. “Terms & Conditions of GPS: 1) The Goodwill Package Scheme (GPS) shall apply to all those Contract Labour actually and physically deployed on job contracts as on 31.01.2007 in ONGC. Silchar. In case of deceased Contract Labour, the reckoning will be limited to their date of death and in case of those who crossed 60 years of age, the reckoning will be limited to 60 years of age. 2) It shall not apply to those who have not been deployed/worked during the three months preceding 31.01.2007. 3) The Contract Labour concerned desiring to opt for the GPS may submit their applications for acceptance to the Union concerned which after endorsing the same, Page No.# 8/12 may forward the said application to the Sectional Head concerned for the job contract for onward transmission. The application format in enclosed (Porforma 'C'), along with Declaration/Undertaking and application for withdrawal of Court case. The Declaration/Undertaking and application for withdrawal of Court case are an integral part of the Application. These together must reach the 1/c.HR/ER, CFB, ONGC, Silchar on or before the closure of the GPS. 4) The GPS under this MoU shall remain in force for a period of one month from the date of its announcement in the Notice Board. Thereafter it will automatically cease to be in force, unless extended by ONGC at its discretion. The GPS/MOU, hall hall be put on the Notice Board within three days from the signing of the MoU. 5) The payment under GPS shall be made only through Cheque drawn in favour of the individual worker. In case of a deceased worker payment shall be made to his legal heir(s) on production of documentary proof to the satisfaction of ONGC. A lump sum, one time all inclusive ex-gratia payment equal to a specified, negotiated amount in terms of experience will be paid as set out in Annexure 'A' to this Memorandum of Understanding. The period of experience of six or more months in a calendar year will be included as one year completed and the period less than six months will be ignored for calculation. Sl No. Category Lump-sum all inclusive ex-gratia in terms of years of experience. Total ex-gratia= Ex- gratia in terms of years of experience X Total years of experience. 6) The workers applying for GPS must produce date of birth certificate issued by the Competent Authority or a Certificate from the school last studied. In case both are not available, he must produce an Affidavit sworn before a Magistrate indicating the date of birth. ONGC reserves the right to accept the same or adopt such means to verify the same to its satisfaction and effect payment thereafter. Page No.# 9/12 7) Those who opt for the GPS within the first seven days of its announcement shall be paid an additional Rs.25,000/- (Twenty five thousand only) as early bird incentive. 8) If the application cum acceptance for GPS is made and is accepted, the said acceptance shall be final and shall not be permitted to withdraw the same Cessation of any or alleged relations with ONGC shall be effective from 28.02.2007, even though payment is made later on/after withdrawal of the Court case. After acceptance, there will not be any redeployment. 9) The workers accepting and availing the benefit of GPS under this MOU, and their Unions, shall be deemed to have withdrawn themselves, from any and all Court cases against ONGC and shall further be deemed to have withdrawn their claims for regularization, revision of wages and any other claims or facility of whatsoever nature for which they have raised a demand on ONGC. In order to enable acceptance of application of the workers for the GPS the workers, having full understanding that acceptance of GPS by them. They have to undertake that such acceptance will have the effect of full and final settlement of all past, present or future conceivable claims, actions, demands and proceedings whatsoever arising out of or relating to litigious employment or under any law against ONGC, real or perceived. Accordingly, they will execute a written affidavit-cum-undertaking in the behalf, duly signed by them and their union in Proforma 'A' for the deletion of their names from the cause title of the Court case and enclose the same with their application for GPS. The Unions where they are a party to the Court case, will also execute a, similar affidavit in the Proforma 'B'. 10) Upon such submission of the written affidavits, proforma 'A' and 'B' to 1/c HR/ER, ONGC Silchar or such other formats as may be suggested by ONGC, 50% of the GPS due shall be released within 15 days from the date of the application cum acceptance for GPS, and the balance 50% of the GPS payment shall be made within 15 days from the date of withdrawal of the Court case or deletion of the name of the applicant is allowed by the Court. The applicant Payee will give a receipt as per Proforma 'D' enclosed. Page No.# 10/12 11) It is further agreed that the Unions representing the applicant contract labour and the contact labourers shall not raise, agitate and pursue any such and/or similar or disputes, claims and/or demands of whatsoever nature in future against ONGC before any Authority/Court/Tribunal and any other parson having any interest of any sort in this matter. 12) This GPS is offered without prejudice to ONGC's rights and contentions. It is expressly agreed and understood between all the Union represented in the MoU and the unions representing Contract Labour and the Contract Labour in the Court case that this GPS shall not be used for any purpose in any Court/Proceedings or take any advantage as this MOU is arrived at the Peculiar facts and circumstances of the case and would not be binding as a precedent in any litigation, pending or future of similar nature or otherwise. 13) It is further agreed that the situation subsequent to GPS in respect of outsourced activities and the processes connected thereof would be amenable to rationalization by ONGC in terms of its requirement market conditions, technological changes, etc. and ONGC will be at full liberty to meet such situation by following procedure as prescribed. 14) It is further agreed that in case of any ambiguity, perceived or real, on any issue under this MoU, the decision of ED-Chief, ER, ONGC Dehradun would be final.” 12] Upon considering the submissions of the counsel for parties before this Court and also the award dated 11.07.1994 passed by the Industrial Tribunal in Reference Case No. 6 (c) of 1990, the Judgment and Order dated 24.12.1999 passed in Writ Appeal No. 269 of 1998 by the Division Bench of this Court and Judgment and Order dated 16.05.2008 passed in Civil Appeal No.4755/2001 by the Apex Court, it is seen that the respondents have committed to release the financial benefits of the workers like the writ petitioner and such an undertaking was given before the Apex Court. Page No.# 11/12 13] In that view of the matter, the respondents cannot be permitted to resile from their commitment and deprive the petitioner towards release of his payments in the absence of any supporting materials to show that besides the period from 07.12.2006 to 07.02.2007 during which the petitioner was absent purportedly on medical grounds, he had declined or refused to join in his duties thereafter, and thereby he ceased to be in contractual employment under the respondents. No materials are placed before the Court by the respondents to show that they had declined to grant him leave or that appropriate action was undertaken against the petitioner for termination of his service and/or the contract. Since no such steps or any procedure was undertaken by the respondents, it has to be held that till the time, the contract subsists and the petitioner is entitled to be paid all his dues in terms of the MoU. 14] Whether the petitioner was able to bring materials before the Tribunal to justify his claims for absence on medical ground cannot foreclose the claims of the petitioner in terms of the award dated 11.07.1994 read with the MoU dated 24.01.2007 and also taking into consideration the undertaking given before the Apex Court by the respondents that financial benefit packages will be offered to all such employees, the conclusion arrived at by the Tribunal in Misc. Case No.2 of 2013 to deny the claim on the protection petition cannot be accepted. 15] The writ petition, therefore, is allowed to the extent that the respondent authority will examine the claims of the petitioner and release the amount payable to the petitioner in terms of the provisions of the MoU dated 24.01.2007 read with the award dated 11.07.1994 passed by the Industrial Tribunal, Page No.# 12/12 Guwahati which stood upheld by the Judgment and Order dated 24.12.1999 passed in Writ Appeal No. 269 of 1998 by the Division Bench of this Court. The impugned order dated 21.10.2014 passed in Misc. Case No.2/2013 by the Central govt. Industrial Tribunal-cum-Labour Court, Guwahati, therefore, stands modified to that extent. Writ petition stands allowed to that extent. The directions contained in this order shall be completed within a period of 60 (sixty) days from the date of receipt of the certified copy of this order. In the event, any order passed is by the respondent Authority, a copy thereof shall be served on the writ petitioner. In the event the respondent authorities requires any particular documents from the petitioner, then the same shall be called for from the petitioner by giving his adequate opportunity to place the same before the respondent Authorities. 16] With the above observations and directions, the writ petition stands disposed of. No order as to cost. JUDGE Comparing Assistant