- (1.) Mr. Ghosh learned advocate appearing on behalf of the petitioner urged two points of challenge to the order dated 31st December, 2007 impugned in this writ petition out of three raised initially. The two points are firstly that what was referred to the Industrial Tribunal pre-supposes existence of an industrial dispute regarding whether the 97 contract labour could seek regularization. He submitted the reference was not of a dispute raised by the workmen of his client and, therefore, there is a jurisdictional bar against the Tribunal in adjudicating such dispute. Challenges to jurisdiction to the Tribunal are to be gone into by the High Court and not by the Tribunal itself. His other point is that his client, by the wording of the schedule to the impugned order, has been precluded from raising the defence that the contract in execution of which the contractor had engaged those 97 contract labour, since abolished, was not a sham contract or a camouflage. He referred to Section 10(4) of the Industrial Disputes Act, 1947 which required the Tribunal to confine its adjudication to those points in the order of reference and matters incidental thereto. He submitted, thereby his client would stand precluded from taking a substantial plea in opposing the claims made as referred.
(2.) Mr. Ghosh relied on the decision in the case of National Engineering Industries Ltd. Vs. State of Rajasthan, 2000 1 SCC 371 for the following view expressed therein. "It will be thus seen that the High Court has jurisdiction to entertain a writ petition when there is an allegation that there is no industrial dispute and none apprehended which could be the subject-matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction. It is the existence of the Industrial Tribunal (sic dispute) which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended the appropriate Government lacks power to make any reference."
(3.) He then relied on the cases of UP Power Corporation Ltd. and Anr. vs. Bijli Mazdoor, 2007 5 SCC 755 and Oshiar Prasad vs. Sudamdih Coal Washery, 2015 4 SCC 71 for the proposition of law declared that absorption and regularization in service can be claimed or/and granted only when the contract of employment subsists and is in force inter se employee and the employer. Once it comes to an end either by efflux of time or as per the terms of the contract of employment or 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. He submitted there was no contract of employment between the 97 contract labour and his client.;