2015 Supreme(SC) 78

SUPREME COURT OF INDIA
FAKKIR MOHAMED IBRAHIM KALIFULLA, ABHAY MANOHAR SAPRE, JJ.
Oshiar Prasad and Others – Appellants
VERSUS
The Employers in relation to Management of Sudamdih Coal Washery of M/s BCCL, Dhanbad, Jharkhand – Respondents
CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 1389 OF 2015 (Arising out of SLP(C) No.33509/2011)
Decided On : 02-02-2015

IMPORTANT POINTS
A Reference can be made only when an industrial dispute exists or is apprehended.
The Tribunal has to confine to the question(s) referred and has no jurisdiction to travel beyond.
Question of absorption/regularisation arise only when employment subsists. Cannot be claimed after employer-employee relationship comes to an end.
After cessation of service question of regularisation/absorption cannot be referred. Only the question of legality of termination can then be referred.
Case of appellants being factually from earlier case, parity cannot be claimed.
It is not proper to interfere with concurrent findings and conclusions of three courts below.

Headnote:(a) Industrial Disputes Act, 1947 – Section 10 – Appropriate Government can make a Reference only when an industrial dispute exists or is apprehended – Similarly, the Tribunal has to confine to the question(s) referred and has no jurisdiction to travel beyond. (Para 25)

       AIR 1967 SC 469; (1979) 3 SCC 762; AIR 1981 SC 1626; (2000) 1 SCC 371; (2004) 10 SCC 460; (2006) 5 SCC 123 – Relied upon

       (b) Industrial Disputes Act, 1947 – Section 10 and 11-A – Appellants were terminated much prior to making of reference – On relevant time they were neither in service of BCCL nor the contractor – Therefore, there was no industrial dispute "existing" or "apprehended" in relation to appellants’ absorption in the services of the BCCL on the date of making the reference – Question of their absorption in BCCL did not arise – Tribunal could not have gone into merits of such question. (Para 26, 27)

       (c) Labour law – Regularisation/absorption – Question of absorption/regularisation arise only when employment subsists – Cannot be claimed after employer-employee relationship comes to an end. (Para 28)

       (d) Industrial Disputes Act, 1947 – Section 10 and 11-A – Reference and adjudication – Regularisation – Appellants having terminated much prior to reference, question of regularisation/absorption could not be referred – Only question that could be referred was legality of termination which was not referred and thus attained finality. (Para 29)

       (e) Labour law – Regularisation – Parity with earlier batch – Earlier batch raised dispute while in service – Instant appellants raised the disputes long after termination of service – Cannot claim parity for absorption. (Para 32)

       (f) Administration of Justice – Judicial propriety – Three courts below returning concurrent findings and conclusions – Not proper to interfere. (Para 34)

       Facts of the case:

       On 24.07.1974, the BCCL invited tenders for construction of Washery on Turnkey basis for running the colliery. The contract was awarded to one Company -M/s MC Nelly, Bharat Engineering Company Ltd.

       The Contractor started the work in 1977 by employing several skilled and unskilled workers and completed the same by December 1979. After completion of the work, the Contractor terminated the employment of all the workers and offered them retrenchment compensation as per the provisions of Section 25 of Industrial Disputes Act, 1947 except 39 skilled workers, who were retained to look after the maintenance work of Washery after it was made operational. These 39 workers continued to work. After retaining their services for about one year, the Management terminated the services of these 39 employees in January, 1981. These 39 employees raised a dispute demanding their absorption and continuation in service with the BCCL.

       The Industrial Tribunal directed that 39 workers be absorbed by the BCCL in their employment as their regular employees and they be given all such consequential benefits to which they were entitled to claim due to their regularization in the services of BCCL. The BCCL did not challenge the award and implemented the directions by absorbing and regularizing these 39 workers in their employment.

       Another batch of five workers (including the appellants herein), who claimed to be working in the same project, filed Title Suit for declaration that they are entitled to continue in their services under the BCCL and prayed that their services be absorbed and regularized in the services of BCCL with all consequential benefits. They also prayed for an injunction restraining the BCCL from terminating their services pending civil suit.

       That matter was ultimately held to fall within jurisdiction of Labour court hence a reference was mad to the Industrial Tribunal.

       The Industrial Tribunal answered the reference against the workers.

       The workers filed writ petition which was dismissed.

       The appeal was also dismissed.

       Finding of the Court:

       The reference made to examine the issue of appellants’ absorption qua the BCCL was incapable of being referred to on the said question and in any event, it was incapable of being answered in favour of the appellants.

       Result: Appeal dismissed.