Oil and Natural Gas Corpn.Ltd v. U.P.Bhutpurva Sainik Kalyan N

S. RAVINDRA BHAT, J

NAJMI WAZIRI, J MAY 01, 2013 'sn'

Page 7

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI DECIDED ON: 01th May, 2013 LPA 1164/2005 OIL AND NATURAL GAS CORPN. LTD. ..... Appellant Through: None. versus U.P.BHUTPURVA SAINIK KALYAN N. ...... Respondents Through : Mr. Mukesh Jain for Ms. Asha Jain R-2 to 26. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI % MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) 1. When the matter was called out from the list of 'Regular Hearing Matters', there is no appearance on behalf of the appellant. The appellant had not caused appearance before the learned Single Judge. 2. The appellant – Indian Oil and Natural Gas Corporation Limited (ONGC) impugned the judgment and order of a learned Single Judge dated 22nd March, 2005 whereby the respondent Central Government Industrial Tribunal, was directed to make an appropriate order referring the dispute sought to be raised by the writ petitioners (respondents in this appeal). The said respondents had argued that they were employees of the appellant Oil and Natural Gas Corporation (ONGC); they were Page 2 working as Security Guards continuously without a break for many years. They claimed that even though they were engaged for discharging functions and work of ONGC, the employment was through camouflage, contrived mainly towards depriving them security of tenure and other benefits of services. The said respondents had also urged that the contractor was a name lender and that the work done by them was wholly for the benefit of the ONGC. It was also urged that their work was directly controlled and supervised by the ONGC. 3. The petitioners relied upon the authority of the Constitution Bench judgment of the Supreme Court in Steel Authority of India Limited & others versus National Union Waterfront Workmen and others, (JT) 2001 (7) SC 268. The learned Single Judge after considering the submissions of the parties and the contentions of the respondents directed that Central Government should make reference, in terms of the law and directions of the Supreme Court in the Steel Authority of India Limited's case (supra), particularly, in the following paragraphs: "121.(5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce Page 3 any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance of various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularize the services of the contract labour in the concerned establishment subject to conditions as may be specified by it for that purpose in the light of para 6 hereunder. (6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the concerned establishment has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications. 122. We have used the exp