B I ACHARYA Vs. ONGC LIMITED

JUDGEMENT

(1.) Notice of this petition was issued on December 7, 2000 making it returnable on December 20, 2000. The respondents are served. Counter Affidavit has been filed by the respondent No. 1 opposing the admission of the writ petition. No counter affidavit has been filed by the respondent No. 2.

(2.) Shri A.K. Clerk, learned counsel for the petitioner and Shri Rajni H. Mehta, learned counsel for the respondent No. 1 were heard on admission of this petition.

(3.) The contention of Shri A.K. Clerk has been that the petitioners were working as Boiler Operators and by virtue of notification dated September 8, 1994 from the Government of India, Ministry of Labour, Boiler Operators, in the respondent No. 1, Oil & Natural Gas, Commission, were inter alia in prohibited employment of contract labour as Boiler Operators and as such the petitioners have become direct employees of the respondent No. 1 and since they are working for a period of about 9 years as Boiler Operators they should be absorbed by the respondent No. 1 and that direction be also issued to the respondent No. 2 the Contractor to continue the petitioners in Service. Shri Mehta, however, contended that the petitioners are not working with the respondent No. 2 as Boiler Operators and as such they cannot be placed in the category of prohibited labourers under the Contract Labour (Regulation and Abolition) Act, 1970. Shri Clerk has also relied upon the Apex Court's verdict in Air India Statutory Corporation v. United Labour Union & Ors. reported in AIR 1997 SC 645 : 1997 (9) SCC 377 : 1997-I-LLJ-1113. In this case the Apex Court observed that abolition of contract labour system ensures right to the workmen for regularisation of them as employees in the establishment in which they were hitherto working as contract labour through the contractor. The contractor stands removed from the regulation under the Act and direct relationship of "employer and employee" is created between the principal employer and workmen. There can be no escape but to follow the aforesaid verdict of the Apex Court. However, it has to be seen whether the petitioners fall within the prohibited category as laid down by the Apex Court and also as mentioned in the notification referred to above. In the counter affidavit of the respondent No. 1 it is deposed in Para 10 that the petitioners are not working as Boiler Operators as alleged or at all. It is further deposed that the petitioners are the employees of the contractor who possesses requisite statutory licence. It is further deposed that Boiler operation requires competence of operation by highly qualified engineers and such engineers are regular employees of ONGC. It is further deposed that the contract awarded to the contractors by ONGC is given to carry out jobs for assisting ONGC officers and cover low-tech areas of sophisticated and state of the art boilers owned by ONGC in the said boiler operation. It is thus clear from this deposition that according to the respondent No. 1 Boiler Operators are highly qualified engineers employed by the ONGC and the petitioners were employed by the Contractors from time to time to assist highly qualified engineers working as Boiler Operators. This involves decision on disputed question of fact whether the petitioners are working as Boiler Operators or they are simply assisting highly qualified engineers working as Boiler Operators. Shri Clerk has referred to list of Boiler Operators at Page 7 of the compilation. However, Grade I & II in this list has been scored off and only Boiler Operators has been mentioned against the name and designation of the petitioners. Page 8 of the compilation is the entry pass of one of the petitioners. Here also the purpose is shown as M.P. Boiler Work and not as Boiler Operators. So is the case with Paper No. 9 employment card where the name of the work and location of the work is shown as D.P.S. of M.P. Boilers. Here also it is not mentioned that one of the petitioners is working as Boiler Operator. Such disputed question of fact cannot be decided without proper evidence and such exercise cannot be done in exercise of writ jurisdiction under Article 226 of the Constitution of India.