Decided on January 03,2019

Shyamal Chandra Bhowmik Appellant


- (1.)This action under Article 226 of the Constitution of India seeks the judicial review of the judgment and award dated 31.07.2013 delivered in Reference Case No.12 of 2006 by the Central Government Industrial Tribunal-cum-Labour Court Guwahati, Assam. The industrial dispute, within the meaning of Section 2 (k) of the Industrial Disputes Act, 1947 herein after referred to as the Act, as raised by the petitioner herein against the respondent, the Ministry of Labour and Employment by their order No. L-30015/4/2006-IR(M) dated 20.02.2006 referred the said dispute to the Tribunal. The reference as made reads as under:
"Whether the claim of the workman Shri Shyamal Chandra Bhowmik that he had worked continuously for more than 240 days with the management of ONGC correct? Whether the settlement arrived at on 27/28-1-2001 is biding on the workman? If so, to what relief the workman is entitled?"

(2.)The Tribunal after recording the evidence as advanced by the petitioner and the respondent to support their respective claims has observed in order to answer the reference as under:
22. From my discussion on the Issue No.1 it is clear that the workman has not been able to prove that he has worked for 240 days in 12 consecutive months in any year. As such, it can safely be held that the workman was within the category of 180 days of works at the relevant time of settlement and he has failed to substantiate his plea that he was not one of the members of 180 days category workers and that he was not present at the time of conciliation held in presence of the Unions, Management and the Conciliation Officer. In view of my above discussion and having regard to the submission of learned Advocates for both the parties as well as the decision of the Hon'ble Supreme Court as mentioned to above. I am of the opinion that the workman Shyamal Chandra Bhowmik is bound by the Tripartite Settlement arrived at on 27/28-01- 2001 held between the Management, Unions and the Conciliation Officer.

23. Accordingly, this issue is decided in affirmative against the workman. Under the above circumstances it is held that the workman Shyamal Chandra Bhowmik is not entitled to any relief as claimed.

(3.)This finding as reproduced has been challenged by this action. This case has a chequered history. Before the reference, the petitioner approached the Gauhati High Court for a direction to absorb him in the vacant post subject to qualification, eligibility etc. as prescribed by the recruitment rules, by filing a writ petition being Civil Rule No.144 of 1992. By the judgment and order dated 06.09.2001, Gauhati High Court had directed to absorb the petitioner in the vacant post subject to qualification and eligibility etc in terms of the recruitment rule as the petitioner had completed 240 days serving as the contingent worker under the respondent, the ONGC. The said judgment and order dated 06.09.2001 was challenged by the ONGC by filing an intra court appeal being Writ Appeal No. 26 of 2002. By the judgment and order dated 06.10.2004, the appeal filed by the ONGC was dismissed having observed that in view of the materials placed in the record, the view taken by the learned Single Judge that the Writ petitioner was one of the workmen who had put in 240 days of continuous service in a given year and hence his case was not covered by the Industrial settlement that was arrived between the recognized trade union and the management of ONGC in respect of retrenchment on a package of compensation will not bind the petitioner. The settlement that was arrived in the year 2001 is in the memorandum of the settlement which was duly singed by the participating parties. The said settlement was for the workmen who had put in service for 180 days and below 240 days. Even though the petitioner had admittedly put more than 180 days in a year but he did not give in to the said settlement and challenged the same. The petitioner had further urged for his regularization in view of his service of more than 240 days in the 12 consecutive months. To have the perspective abundantly clear it would be apposite to extract the following observation as made in the judgment dated 06.10.2004:
24. By referring to a common judgment dated 31.07.2000, passed by the Division Bench of this Court, in a bench of cases, viz., Civil Rule Nos. 7 of 1993, 31 of 1993, 240 of 1993 and 163 of 1995, the learned Single Judge, in the present Civil Rule, observed and held as follows:-

"11. In the aforesaid decided cased, this court directed the respondent ONGC to make an exercise for absorbing the petitioners of those cases subject to availability of sanctioned vacancies, of course, having regard to the qualification and other eligibility required under the related service rules and it was further ordered in those cases that till the services of the petitioners of those cases are regularized, their contingent/casual employment should be allowed to continue and no fresh recruitment should be made against any sanctioned vacancy for which one or other of the petitioners of those cases are found to be eligible.

12. Under the aforesaid factual and legal position, I am of the considered opinion to hold that the petitioner acquired a right not to be terminated without following the mandatory provision of Section 25-F of the Industrial Disputes Act, 1947 and in case of availability of sanctioned vacancy the petitioners absorption must be considered against the said vacant post, of course, subject to qualification eligibility as prescribed by the related service law/Recruitment Rules."


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