Absorption claims under the Industrial Disputes Act require existing employment; retrenchment compensation claims can still be valid if evidence of non-payment exists.

1. Leave granted.

2. This civil appeal is filed by the unsuccessful writ petitioners against the judgment and order dated 17.06.2011 passed by the High Court of Jharkhand at Ranchi in L.P.A. No. 447 of 2009 which arises out of the order dated 03.09.2009 passed by the learned single Judge of the High Court in C.W.J.C. No. 616 of 1999(R).

3. By impugned judgment, the Division Bench dismissed the appellants' intra court appeal and upheld the order of the writ court, which had dismissed the appellants' writ petition and in consequence upheld the award dated 21.12.1998 passed by the Labour Court in Reference Case No. 75 of 1995.

4. In order to appreciate the controversy involved in this appeal, it is necessary to set out the facts in detail.

5. The respondent - M/s Bharat Coking Coal Ltd (hereinafter referred to as "the BCCL") is a Government of India undertaking. It is engaged in the business of manufacture and sale of various kinds of coal. It has a colliery at Dhanbad, Jharkhand known as "Sudamdih Coal Washery".

6. 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. (hereinafter referred to as "the Contractor"). An agreement was accordingly executed between the BCCL and the Contractor on 29.01.1976. Since the execution of the work was to be done on turnkey basis, the Contractor was required to do everything to make the Washery operational. The work included the complete design of the Washery, supply of materials required for construction of plant, building, installation of machinery, all kinds of construction of the structures of Washery etc.

7. Pursuant to the contract, 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 S.25 of Industrial Disputes Act, 1947 (in short "the Act") except 39 skilled workers, who were retained to look after the maintenance work of Washery after it was made operationalized. 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. Since their demands were not accepted, a reference was made under S.10 of the Act to Industrial Tribunal No. 3 Dhanbad vide Reference Case No. 58 of 1981 to answer the following question:
"Whether the management of Sudamdih Coal Washery of M/s Bharat Coking Coal Ltd., P.O. Sudamdih, Dist. Dhanbad are justified in not absorbing Sarvashri Gorakh Sharma and 38 others as their regular employees? If not, to what relief are the said workmen entitled?"

8. The Industrial Tribunal by its award dated 03.03.1983 answered the reference in workers' favour and 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.

9. It may be mentioned that five workers (including the appellants herein), who claimed to be working in the same project, filed Title Suit No. 51/1980 against the BCCL in the Court of Munsif 2nd Dhanbad under Order I R.11 of the Code of Civil Procedure, 1908 for declaration that they are entitled to continue in their servic