Are we making a U-turn? In the post Bhagavati-Krishna Iyer era, we suddenly saw constitutional courts take an ultra-right view. Times came where the word ‘Trade Unionism’ was a negative word.
During the emergency, the government saw strikes as anti-national and the lines blurred between anti-government and anti-national. This thought caught on and we saw judicial pronouncements that went about declaring strikes by various sections of our society as illegal.
Resultantly, there came a time when government employees could not go on strike, political parties could not, doctors could not, lawyers could not and the list got long.
In this seemingly discouraging scenario, a recent verdict of the High Court comes as a pleasant surprise. Just as the courts were pulling down the curtains for the Sankranti vacation, a division bench of the court dealt with the right of workers to be regularised in the services of ONGC.
The bench of Justice V Ramasubramanian and Justice Ganga Rao rejected a batch of writ appeals filed by ONGC on the question of whether persons who had worked for a long period of time were entitled to regularisation or whether they should necessarily take the ‘labour court’ route for such a claim.
While the dead letter of the law would suffice to place the law in perspective, it is necessary to put a skeletal set of facts to flesh the ruling against the proper backdrop.
Persons hitherto engaged as field officers from 1994-1995 or so sought regularisation. When their demands were not accepted, strike notices were issued. After cycles of claims agreements, conciliation and alleged violations, when ONGC proceeded to issue a fresh notification, a writ petition seeking regularisation of their services and challenging the notification for recruitment from the open market was filed.
A single judge allowed the writ petition and directed the services to be regularised. In appeal, ONGC contended that the petitioners ought to have moved the labour courts for redressal of their grievances.
It is in this context that Justice Ramasubramanian‘s expert treatise comes in. The question as to the nature of the duties performed by the respondents and the question as to the existence of posts to which such duties are assigned in the organisation, are all questions that may be relevant, from the point of view of service jurisprudence.
But these questions have no relevance to industrial or labour law jurisprudence. Unfortunately, the dichotomy between service law and labour law is lost sight of many a time and the principles applicable in one branch are applied wrongly in the other.
Here lies the distinction that stood blurred for decades? The bench details it saying — the service conditions of persons appointed to civil posts or the Civil Services of the State are governed by statutory rules issued in exercise of the power conferred by the proviso to Article 309 of the Constitution.
In contrast, the verdict points out that “the engagement of a person in an industry or factory or other establishment is not one of status. It could be one of contract, but the management and the workmen are not entitled to contract out of the statutes such as Factories Act, Industrial Disputes Act, ESI Act, EPF Act, Industrial Employment (Standing Orders) Act, Payment of Wages Act, Payment of Gratuity Act, Maternity Benefit Act etc.”
Dealing with the point from when the rights accrue, Justice Ramasubramanian pointed out: “a workman category employee in an industrial establishment acquires statutory rights, only after appointment and that too after completing a particular period of service. On the contrary, every person qualified for appointment to a civil post or to the Civil Services of the State, acquires a Constitutional right, even before appointment, for consideration of his case for appointment in accordance with the Constitutional scheme.”
Chronicling the long march of the event and the sustained claims Vs denial mode, the bench observed: “every time the workmen served a strike notice leading to the initiation of conciliation proceedings, some kind of sops were given by the management for a temporary period of time to avert the danger of the drilling operations coming to a grinding halt. But even the undertaking given by the management before the Regional Labour Commissioner (Central) does not appear to have been fulfilled. The management appears to have gained an expertise in dousing the fire of labour unrest once in five years, without actually conceding to the demand made by the workers for more than 20 years from 1996. It is in these circumstances that the workmen have taken recourse to the constitutional remedy, since their right to life and livelihood guaranteed under Article 21, has been made a mincemeat by the management.”
In what should be seen as a serious condemnation of unfair practice by a state-owned corporation, the bench said: Right from the year 1997, the plight of these workers and the act of the management in retaining them for a long number of years as temporaries have been brought to the notice of the appropriate government. But the government did not take any action for preventing this unfair labour practice. Therefore, all that the workers did was to bring to the notice of the learned Judge that what has been done for the past 20 years on admitted facts constituted an unfair labour practice.
Hopefully, this could be a sense of relief to the workmen. Will it? The ball may well roll to the apex court.
(The author is a senior designated lawyer)