RASTRIYA MAZDOOR UNION Vs. UNION OF INDIA

JUDGEMENT

(1.) Learned advocate Dr. Mukul Sinha is appearing on behalf of the petitioner. Learned advocate Mr.M.R. Shah is appearing on behalf of Respondent No.1. Learned advocate Mr. K.M. Thakkar for M/s. Trivedi and Gupta Advocates is appearing on behalf of Respondent No. 2. In the present petition, Rule was already issued and interim relief was granted by this court on 21st September, 1999. On behalf of Respondent No.2, affidavit-in-reply has been filed against the petition on 25th February, 2000. With the consent of both the learned advocates, the present petition has been heard finally today.

(2.) In the present petition, the petitioner Union has challenged the order of Respondent No.1 dated 18th August, 1999 wherein it has been decided by the Respondent No.1 not to refer the industrial dispute, which was raised by the petitioner Union, for adjudication to the Industrial Tribunal. The brief facts of the present petition is that the Respondent ONGC carries out an establishment at Hazira, near Surat where it processes L.P.G, Kerosene, N.G.L. etc. and markets these products. For marketing purposes, loading of the products in trucks, railway etc. is needed and for this purpose, the respondent ONGC employed a large number of employees under the guise of contract labour. The Central Government had abolished contract labour in the establishments of Respondent ONGC in various operations. The petitioner Union had approached this Hon'ble Court by way of filing Special CA 7520 of 1997 and Special CA 4508 of 1997. In both the petitions, this Court (Coram: Mr. Justice R. Balia) had passed an order dated 9th February, 1999 wherein a similar grievance was raised by the petitioner Union before this court. In the earlier two petitions also, there was a demand of the workers of different categories represented by the petitioner Union about the abolition of labour contract system with the respondent company, Oil and Natural Gas Corporation. In the two petitions, this court had passed an order directing the petitioner Union to invoke machinery under the provisions of Industrial Disputes Act and for that, necessary direction had been issued by this court. In pursuance to the order passed by this court on 9th February, 1999 in Special CA 7520 of 1997 and Special CA 4508 of 1997, the petitioner Union has raised industrial dispute by letter dated 23rd June, 1999 addressed to Respondent No.2 and 3 alongwith the list of concerned workmen. Thereafter, the conciliation proceedings were initiated by the Conciliation Officer at Baroda and the petitioner Union had submitted justification in support of their demand on 12th July, 1999. Thereafter, the Conciliation Officer had come to the conclusion that there is no possibility of any settlement and therefore he submitted the Failure Report under Section 12 Sub-clause (H) of the Industrial Disputes Act, 1947 by letter dated 30th July, 1999. After receiving the Failure Report from the Conciliation Officer, the Respondent No.1 had decided by order dated 18th August, 1999 under Section 12 Sub-clause 5 of the ID Act, 1947 and come to the conclusion that prima facie this Ministry does not consider this dispute fit for the following reasons. The reasons are as under:-

(3.) Mr. Mukul Sinha appearing on behalf of the petitioner has pointed out that the Respondent No.1 has committed error in relying upon the decision of this court in different petitions which have no connection with the present case. Not only that, the said decision of Respondent No.1 is directly having conflict with the decision of this court dated 09.02.1999 in Special CA 7520 of 1997 and Special CA 4508 of 1997. He submitted that this court had directed the petitioner Union to raise an industrial dispute and for that, the industrial dispute has been raised by the petitioner Union which ultimately decided not to refer it for adjudication. He submitted that the approach of Respondent No.1 amounts to total non-application of mind in as much as the appropriate Government is required to scrutinise whether an industrial dispute exists or not as per the decision of the Apex Court in the case of Air India Statutory Corporation and in the case of Gujarat Electricity Board vs. their workmen. He also pointed out that contract system which has been entered into by the Respondent No.2 and 3 are purely a paper adjustment sham and camouflage. This was the grievance of the petitioner Union before this court when the earlier two petitions were filed by the petitioner Union and therefore considering these grievances of the petitioner Union, this court had directed the petitioner Union to approach under the machinery of Industrial Disputes Act, 1947. He also submitted that in the earlier petitions which were considered by Respondent No.1 wherein the petitioner Union was not a party to the said proceedings nor the concerned workmen were parties to the aforesaid proceedings, whatever be the decisions of Regional Labour Commissioner they have no binding effect on the present set of workmen. In any case, the Regional Labour Commissioner is not a competent authority to decide on this issue. He also submitted that the decision which has been taken by Respondent No.1 on merits and on having an opinion that the job of loading and unloading of LPG at ONGC, Hazira is not covered by the Notification dated 09.12.1976 or 08.09.1994. He also submitted that it is not open for the appropriate Government to suggest that the Union can raise the issue only under the Contract Labour Act, 1970 for the abolition of contract system. He also submitted that as per the ratio laid down in case of Gujarat Electricity Board vs. Hind Mazdoor Sabha reported in 1995 (2) LLJ Page 790 wherein it is decided that it is for the workmen to decide as to which of the two forums they wish to choose in view of the facts and circumstances of their own case and therefore, Respondent No.1 have no authority in law to have final opinion on the industrial dispute raised by the Union. Therefore, it is an illegal and erroneous order passed by Respondent No.1. He also submitted that in case of TELCO reported in AIR 1989 SC Page 1565, the Respondent No.1 had no authority and had no power to adjudicate the industrial dispute which had been raised by the petitioner Union. Mr. Thakkar denied that the job activity for which the Respondent Corporation has entered into contract with the concerned contractor is of a permanent and perennial nature and the same is an integral part of the business of the respondent Corporation. He also disputed that the present contract is camouflage, sham and bogus. He also disputed that the Notification dated 08.09.1994 is applicable to the facts of the present case. He submitted that the applicability of the Notification dated 08.09.1994 is purely a question of fact which depends upon actual nature of job activities performed by the contractor and the same can be ascertained in greater detail only on the basis of leading of oral as well as documentary evidence by the parties before the competent authority. He also submitted that the petitioner Union have an alternative remedy of raising demand for abolishing contract and therefore Respondent no.1 is right in refusing to refer the matter for adjudication. He also submitted that there is no relationship between the Corporation and its employees as an employer and an employee and therefore he submitted that the order passed by Respondent No.1 is legal and valid and according to the scheme of Contract Labour Act, 1970.