- (1.) Leave granted.
(2.) Challenge in this appeal is to the judgment of a Division Bench of the Calcutta High Court dismissing the writ petition filed by the appellants. Challenge was to the reference made by the Government of West Bengal of a purported industrial dispute under Section 7-A of the Industrial Disputes Act, 1947 (in short the 'Act'). According to the appellants, the reference was incompetent in view of what has been stated by this Court in Steel Authority of India Ltd. v. National Union Waterfront Workers (2001 (7) SCC 1).
(3.) Factual scenario as projected by the appellants in the present appeal and the writ petition is as follows: Respondent No.4 i.e. National Union of Water Front Worker (in short the 'Union') made a representation to Regional Labour Commissioner (Central) on 21.4.1987 seeking conciliation of proceeding for regularization of services of members of its Union who were working as contract labours with M/s Bardhan and Co. under principal employers i.e. the present appellants. Another representation was made on 4.6.1987 to the Labour Commissioner claiming the status of the workers as contract labours of aforesaid M/s Bardhan and Co. under present appellants and for regularization. The State of West Bengal issued Notification on 15.7.1989 prohibiting employment of contract labours in the 4 stockyards. The aforesaid notification was kept in abeyance from time to time and ultimately was extended till March 1994. Some workers belonging to the Union filed Writ Petition before the Calcutta High Court seeking absorption in view of Notification dated 15.7.1989. It was inter-alia stated that they were working as contract labours. Learned Single Judge of the Calcutta High Court by order dated 25.4.1994 held that the writ petitioners were entitled to absorption and regularisation from 15.7.1989 when the contract labour was abolished. The present appellants were directed to absorb and regularize the writ petitioners in any establishment under their control and the absorption was to be made according to suitability and experience for a particular job. An appeal was filed by the present appellants which was dismissed by a Division Bench. Thereafter Special Leave Petitions Nos. 12657-58 of 1998 were filed before this Court. The matter was referred to the Constitution Bench. The appeal was disposed of inter-alia with the following observations and directions given, in SAIL's case (supra): "127. The order of the High Court at Calcutta under challenged insofar as it relates to holding that the West Bengal Government is the appropriate Government within the meaning of the CLRA Act, is confirmed but the direction that the contract labour shall be absorbed and treated on par with the regular employees of the appellants, is set aside. The appeals are accordingly allowed in part". Workers raised a dispute under Section 10(1) of the Act in October 2001 and January 2002. On 18.11.2003, as noted above, the reference was made to the Industrial Tribunal which was challenged before the High Court by filing a writ petition. The primary stand taken was that in view of the accepted position by the Union and the employees at different points of time that the workers were contract labours, and having at no point of time pleaded that the agreement with the contractors was sham and bogus, after long lapse of time it was impermissible to raise such a dispute purportedly in view of certain observations in SAIL's case (supra). The High Court rejected the plea and as noted above dismissed the writ petition. The learned counsel for the appellants have submitted that in para 125 of SAIL's judgment it was categorically held that the direction to absorb as given by the High Court was not sustainable and there is no question of any fresh absorption. It is pointed out that at all points of time the Union and the workers categorically admitted that the workers were contract labours. Earlier a writ petition was filed under Article 32 of the Constitution of India, 1950 (in short the 'Constitution') which was disposed of on 14.11.1988. Even at that point of time there was no plea that the agreement with the contractors was bogus or sham. It is pointed out that on a representation made by the appellants, the Government issued a Notification dated 15.7.1989. Even earlier in the writ petition filed there was no plea regarding the agreement being sham or bogus. The prayer was only for absorption and to quash the Notification keeping in abeyance the Notification dated 15.7.1989. In the writ petition it was categorically stated that the contractors were agents of the principal employer. The direction given in the earlier writ petition filed by the respondents regarding absorption and regularization from 15.7.1989 was set aside. Therefore, for the first time the belated plea with unsupportable material should not have been accepted by the High Court.;