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Judgment
Appellants have filed this appeal challenging the order dated 21.2.2007 passed by the learned Single Judge, whereby the writ petition filed by the
appellants was dismissed.
Learned counsel for the appellants has submitted that the learned Single Judge has erred in dismissing the writ petition filed by the appellants. In-fact,
from a perusal of the reference order (Annexure-1 of the writ petition), it is evident that it was issued on 16.4.2001. As per the statement of claim
submitted by the respondents, it was evident that the services of the respondents had been discontinued w.e.f. 1.9.1995. Hence, on the day the
reference was made to the effect that the workman who had completed ten years or more services be regularized in service, was infructuous.
Moreover, as per the case of Secretary, State of Karnataka & Ors. vs. Umadevi & Ors, JT 2006 (4) SC 420, rendered by the Hon'ble Supreme
Court, it was clarified that those decisions which run counter to the principles settled in the said decision, or in which directions running counter to
what had been held therein, would stand denuded of their status as precedents.
Since, the workmen were working as contract labourers, they could not be defined to have been employed by the appellants as per law and were not
entitled for regularization of their services. Learned counsel in support of his arguments, has placed reliance upon Oshiar Prasad & Ors vs. The
Employers in relation to Management of Sudamdih Coal Washery of BCCL, (2015) 4 SCC 71, wherein it was held as under:-
It is thus clear that the appropriate Government is empowered to make a reference under Section 10 of the Act only when ""Industrial dispute
exists"" or ""is apprehended between the parties"". Similarly, it is also clear that the Tribunal while answering the reference has to confine its inquiry to
the question(s) referred and has no jurisdiction to travel beyond the question(s) or/and the terms of the reference while answering the reference. A
fortiori, no inquiry can be made on those questions, which are not specifically referred to the Tribunal while answering the reference.
Coming now to the facts of this case, it is an admitted case that the services of the appellants and those at whose instance the reference was
made were terminated long back prior to making of the reference. These workers were, therefore, not in the services of either Contractor or/and
BCCL on the date of making the reference in question. Therefore, there was no industrial dispute that ""existed"" or ""apprehended"" in relation to
appellants' absorption in the services of the BCCL on the date of making the reference.
Indeed a dispute regarding the appellants' absorption was capable of being referred to in reference for adjudication, had the appellants been in the
services of Contractor or/and BCCL. But as said above, since the appellants' services were discontinued or/and retrenched (whether rightly or
wrongly) long back, the question of their absorption or regularization in the services of BCCL, as claimed by them, did not arise and nor this issue
could have been gone into on its merits for the reason that it was not legally possible to give any direction to absorb/regularize the appellants so long as
they were not in the employment.
It is a settled principle of law that absorption and regularization in the service can be claimed or/and granted only when the contract of employment
subsists and is in force inter se employee and employer. Once it comes to an end either by efflux of time or as per the terms of the Contract of
employment or by its termination by the employer, then in such event, the relationship of employee and employer comes to an end and no longer
subsists except for the limited purpose to examine the legality and correctness of its termination.
In our considered opinion, the only industrial dispute, which existed for being referred to the Industrial Tribunal for adjudication was in relation to
termination of appellants' employment and - whether it was legal or not? It is an admitted fact that it was not referred to the Tribunal and, therefore, it
attained finality against the appellants.
In our considered opinion, therefore, the reference, even if made to examine the issue of absorption of the appellants in the services of BCCL, the
same was misconceived.
Learned counsel for the respondent no.1 has opposed the appeal and has submitted that the respondent Union had earlier approached this Court and it
was ordered by the Division Bench of this Court that the cases of workmen-in-question be considered for regularization of their services in case they
had completed ten years or more service. It was further ordered that in case there was dispute regarding their service period then the workmen would
have to approach the Industrial Tribunal or Labour Court for redressal of their grievance. The decision rendered by the Division Bench of this Court
was upheld by the Hon'ble Supreme Court. The workmen through the Union had approached the Industrial Tribunal - cum - Labour Court thereafter
for redressal of their grievances. Hence, the case of Umadevi (supra) rendered by the Hon'ble Supreme Court was not applicable to the facts of the
present case. The lis between the parties had already been decided by the Division Bench of this Court as upheld by the Hon'ble Supreme Court.
Learned counsel has further submitted that out of thirteen workmen, the Tribunal vide the impugned award had ordered regularization of five contract
labourers.
In the present case, the respondent Union had earlier filed writ petition and the same was dismissed by the Single Bench. Thereafter, appeal was filed
against the decision of Single Bench and the same was disposed of vide order dated 6.3.1995. The operative part of the order reads as under:-
It is left to the corporation to decide for each and every member of the petitioner association whether he has worked on the post of watch and ward
for a period of 10 years or more. It is immaterial whether those persons have worked at the same place or at different places but if they have worked
on watch and ward duty of these micro wave repeators & installations for 10 years or more, then their services be regularised as they have performed
their duties for the I.O.C. only and they be paid salary of class IV employee from 12.2.90 i.e. from the date of filing of the writ petition and arrears be
paid to them after deducting payment already made to them within a period of six months from today. If it is found that a person has not worked with
them continuously for 10 years or more than 10 years, they will not be entitled for regularisation and if anybody disputes this fact, he will have to
approach the Industrial Tribunal or the concerned labour Tribunal for redressal of his grievances because disputed questions cannot be gone into by
this Court while exercising the power under Article 226 of the Constitution of India. The regularisation be done within 6 months from today and the
arrears be also paid within the aforesaid period. The special appeal stands disposed of accordingly on merits and in the result, the Judgment of learned
Single Judge is set aside.
Against the aforesaid decision, the appellants approached the Hon'ble Supreme Court and vide order dated 14.7.1995, the Special Leave Petition was
dismissed. Despite the said fact, the case of the workmen was not considered for regularization. Left with no option, workmen raised an industrial
dispute through their Union and the same was referred for adjudication vide order dated 16.4.2001.
The reference made by the competent authority reads as under:-
Whether the demand of Rajasthan Indian Oil Karamchari Sangh, Danta, Distt. Ajmer regarding regularisation of services of 13 contract labours in
the establishment of Indian Oil Corporation, SMPL Pipe Line w.e.f. 1.9.1995 who have worked for 10 years or more is legal and justified? If so to
what relief is union concerned entitled?
The Tribunal after recording evidence, held as under:-
The reference is answered in the affirmative in favour of the applicant-association and against the non-applicant Corporation and it is held that the
demand of the applicant-association regarding regularization of services of five contract labourers, viz., Manaram, Kairaram, Badri Lal, Bhairo Singh
and Bhagwan Sahai in the establishment of the Corporation w.e.f. 1.9.1995, who have worked for over 10 years is legal and justified. It is further held
that they be paid salary of 4th class employee from 12.2.1990 till the date of their employment and the arrears be paid to them after deducting
payment already made to them as back-wages. Further the management to directed to regularize their services and to pay the arrears of salary within
a period of three months since the date of publication of the Award. The claim of remaining four workmen, viz., Laxman Singh, Malaram, Baney
Singh and Narayan Singh are rejected. An award is passed in these terms accordingly.
Aggrieved against the award dated 8.3.2006 passed by the Tribunal, appellants preferred a writ petition and the same was dismissed by the learned
Single Judge vide impugned order dated 21.2.2007. Learned Single Judge after noticing the above facts, rightly upheld the award passed by the
Tribunal, as the workmen had approached the Tribunal in pursuance to the order passed by this Court. Learned Tribunal has only regularized five
workmen, who had completed ten years or more service with the appellants w.e.f. 1.9.1995 and the case of four workmen was rejected.
Learned Single Judge rightly held that the decision of the Hon'ble Supreme Court in Umadevi's case (supra) was not applicable to the facts of the
present case, as in the present case, the earlier lis between the parties had attained finality and the earlier decision between the parties, which had
attained finality upto Hon'ble Supreme Court was inter se binding between the parties and could not be re-opened for fresh adjudication in the light of
later decision in Umadevi's case (supra).
The workmen had raised the dispute in pursuance to the decision passed by this Court dated 6.3.1995 and therefore, the argument raised by the
learned counsel for the appellants that no industrial dispute was existing at the time when reference was made, is without any force.
It has been noticed by the learned Single Judge that the Tribunal had passed the award after considering all the relevant material on record and there
was no perversity in the findings of the Tribunal. In the facts and circumstances of the present case, we are of the opinion that the learned Single
Judge had rightly dismissed the writ petition filed by the appellants.
The judgment relied by the learned counsel for the appellants in the case of Oshiar Prasad (supra) fails to advance the case of the appellants, as it is
based on different facts.
No ground for interference is made out.
Dismissed.