LASIBEN AMTAJI Vs. OIL AND NATURAL GAS COMMISSION

JUDGEMENT

(1.) Learned advocate Shri A.K.Clerk is appearing for the petitioner-workman. Learned advocate Shri R.H.Mehta is appearing for the respondent-Oil and Natural Gas Commission ("the Commission" for short). The facts of the present case, in short, are that the petitioner joined the services of the respondent corporation on 1.6.1969 as a contingent employee and on completion of the 11 years' period of service, the petitioner's services were regularized on the post of Khalasi with effect from 6.8.1980. According to the case of the petitioner, in the seniority list of contingent/work charged unskilled employees having completed 240 days of service, the name of the petitioner appears at sr.no. 240; that there are other persons working in similar posts in the respondent Commission as the petitioner namely Sarasvashri Chhotaji Varsanji, Popatji Madhurji and Mangaji Ataji who are junior to the petitioner and who are at sr.no. 241 to 243 in the said seniority list are said to have joined the service as contingent employees on 1.6.69 whereas they were regularized on 3.12.1977, 3.1.1975 and 3.1.1975 respectively. According to the petitioner, though the petitioner was senior to the said three persons on the basis of engagement as contingent employee and is shown to be senior in the seniority list, the action of the respondent authorities in regularizing her only on 6.8.1980 is clearly arbitrary, capricious, discriminatory, in breach of the ONGC Terms of Conditions of Appointment and Service Regulation, ,1975, illegal and null and void. According to the petitioner, Circular No. 17(II)/80-Reg/EP dated 11.3.1980 provides that in case of contingent employees, the inter se seniority of the candidates, brought on the regular establishment on the same date will be decided on the basis of the date of their continuous employment on contingent basis prior to such regularization. The petitioner submits that on the basis of continuous engagement as contingent employee, she has been shown to be senior to the persons placed at sr. no. 241 to 243 and, therefore, it is evident that she ought to have been regularized prior to or at least from the date from which her juniors were regularized i.e. 3.1.1975. The petitioner, therefore, wrote a letter to the Dy. General Manager, ONGC, Ahmedabad on 29.8.80 seeking to review her case and the Administrative Officer (P. and A.) addressed a letter to the Dy. General Manager, Ahmedabad Project on 31.3.1989 that as per the office memorandum dated 28.3.88, persons who have joined subsequent to 1.1.1979 in class IV are superannuated after attaining the age of 58 years. The Dy. General Manager, Ahmedabad Project sent a memorandum to the petitioner dated 6.4.1989 informing her that she is due for retirement on 30.9.89 after noon on attaining the age of 58 years. Thereafter, the petitioner wrote a letter to the Regional Director, ONGC, Baroda stating that the office memorandum annexure "C" is not applicable to her and that she should be retired only on her reaching the age of sixty years. Inspite of the said letter, the petitioner was served with an office order dated 1.9.1989 stating inter alia that on her attaining the age of 58 years, she will be superannuated from service of the COmmission with effect from 30.9.1989 after noon and accordingly, her name would be deleted from the muster rolls. Thus, in short, the petitioner claimed the benefit of retirement at the age of sixty years instead of superannuation on her reaching the age of 58 years. The petitioner is relying on Regulation 25(2) of the said ONGC Terms and Conditions of Appointment in Service Regulation, 1975 which is reproduced hereinbelow as under:

(2.) According to the case of the petitioner, she is entitled to have the age of superannuation as sixty years because she was appointed on 1.6.69 and, therefore, the petitioner has submitted that even assuming while denying that the petitioner is to superannuate at the age of 58 years, the respondent Commission ought to have exercised the power to extend her service for a period of two years according to the executive instructions in the matter of retirement. During the pendency of the petition, the petition was amended by the petitioner and according to the amendment granted by this court, the action of the respondents in striking off the name of the petitioner from the muster rolls of the Commission is violative of section 25G of the Industrial Disputes Act, 1947 ("the ID Act" for short) in as much as the persons junior to the petitioner are retained in service whereas the services of the petitioner is being sought to be terminated. It has been further contended that the word "appointed" used in Regulation 25(2) of the said Regulations ought to have been interpreted to include the appointment on contingent basis and it does not specify that it only mean appointment on regular basis. The petitioner was appointed as contingent employee on 1.6.69 and was working as such for 11 years and that her service as contingent employee ought to have been taken into consideration and that she ought to have been treated as appointed in the services of the commission on 1.6.69 and, therefore, she cannot be said to be appointed after 1.1.1979.The action of the respondent authorities in treating her as appointed on 6.8.1980 is, therefore, absolutely illegal, null and void. The petitioner ought to have been treated to have been appointed in service of the commission from 1.6.1969 and the regulation 25(2) would not be applicable to the petitioner. The action of the respondent authorities is, therefore, absolutely illegal, null and void. In view of the said amendment, the prayer was amended by prayer clause 15(aa) that the respondent authorities be directed to treat the petitioner as regularized in service of the commission on and with effect from 3.1.1975 and further direct the respondent authorities to grant all consequential benefits like salary, seniority etc. on that basis.

(3.) The petition has been contested by the respondent Commission by filing affidavit in reply filed by one M.P.Parmar, Administrative Officer working in the P. & A. Department, ONGC, Ahmedabad Project, Ahmedabad. Mainly, it has been contended that there was delay in filing the petition challenging the action of the respondent and on merits, it was pointed out that the selection committee met in 1974 to consider and regularize more than 100 contingent workers who have completed 240 days of service. It is further contended by the deponent in the affidavit in reply that the criteria of the selection committee was that the workers must be of good physique and aged thirty years. For regularizing the services of the persons at serial no. 242, 243 and 244, it has been contended that since they were falling within the age limit of thirty years, their service was regularized. It has been also contended that the employee at sr.no. 241 was not regularized at that time as he was over aged by eight months. It is also contended that in the year 1977, service of the person at Sr.. no. 241 was regularized and the petitioner and others' services were not regularized since they were very much over aged. It is further contended that the the petitioner and others as named in paragraph 2 of the affidavit in reply were regularized in 1980 by giving age relaxation. It is also denied that Regulation 25(2) as amended is discriminatory and violative of Articles 14 and 16 of the Constitution. Additional affidavit in reply was also filed by the said deponent on behalf of the Commission on 21/04/1990 and pointed out the same factual data against the petition and main contention is about the age limit of thirty years for regularization of service and the petitioner was beyond the age of thirty years and, therefore, her case was not considered in the year 1975 but the same was considered in the year 1980 according to the office memorandum dated 29/07/1967 for regularization of contingent hands which was produced on record by annexure-II page 47 by the respondent Commission. The respondent has also denied the interpretation as sought to be made by the petitioner in regulation 25(2) that the word "appointed" cannot be considered to be the appointment on contingent basis as alleged by the petitioner.