- (1.) Mr. Chaudhuri, learned advocate appears on behalf of petitioner and submits, his client had never appointed private respondents as its employees, either as canteen boys or otherwise. When there was no appointment, there cannot be termination of service. Private respondents and others had sought regularization with his client. They brought this claim to this Court. By order dated 26th July, 2002 [WP 10006 (W) of 2000 [Samar Bose and Ors. vs. The Electro Medical and Allied Industries Limited]. there was direction for regularization of service, inter alia, of private respondents. His client preferred appeal in which said order was set aside. A Special Leave Petition was carried to Supreme Court which by order dated 10th March, 2008 dismissed the same. Text of said order is reproduced below :- "The special leave petition is dismissed as the petition involves large number of disputed facts which require adjudication. However, this order will not come in the way of the workmen raising a dispute under Industrial Disputes Act, if so advised." He seeks interference. Mr. Ghosh, learned advocate appears on behalf of private respondents and submits, by letter dated 25th August, 2004 his clients were absorbed in employment by petitioner. Such absorption was in post of unskilled workmen in terms of said order dated 26th July, 2002. Petitioner-company wrongfully by letter dated 29th December, 2006 terminated his clients' services. Against this termination and pursuant to dismissal of Special Leave Petition, his client raised industrial dispute, which was referred resulting in impugned award. He submits, there should be no interference. In impugned award he relies on the following extract therefrom :- "... ... ... Accordingly this Tribunal is duty bound to direct the company to reinstate the claimants namely Sri Manindra Nath Biswas and Sri Swapan Maity in their original post i.e. canteen boys which they were holding prior to order of absorption on the basis of direction of the Hon'ble High Court. But as regards back wages I am of the view that there would be denial of justice if the company is burdened to make payment of back wages because in Paragraph- 4 of the written statement both the workmen have categorically stated that they were engaged as canteen boy in or around 1978/1984 respectively and they were working continuously on "no work no pay basis". Such being the position I am unable to award back wages in favour of these workmen.... ... "
(2.) Case of private respondents and another in said writ petition was that they were entitled to, being regularized. Said writ petition was dealt with by said order dated 26th July, 2002 and following direction made therein :- "In the result the writ petition succeeds. The writ petitioners be also regularised in service as had been done in the case of the private respondents no. 4 to 6. The respondent authority must complete the process of regularisation with in a period of 4 weeks from the date of communication of this order."
(3.) This order was, thereafter, set aside in appeal by order dated 10th November, 2006. However, in the meantime contempt proceedings had been initiated against petitioner. Petitioner had by letter dated 25th August, 2004, as aforesaid, absorbed private respondents. It is necessary to set out following extract from said letter :- "You are hereby absorbed in the post of Unskilled Workman" in terms of the order dated 26.07.2002 passed by the Hon'ble Mr. Justice Ashim Kumar Banerjee, High Court, Calcutta, in W.P. No. 10006 (W) of 2000 with effect from 25.08.2004 in the Scale of Pay of Rs. 3000-40-3240- 45-3735-50-4335/- plus allowances as admissible under the existing rules of the company. Your Basic Pay is fixed at Rs. 3000/- (Rupees Three Thousand Only) per month, with effect from 25.08.2004. Your absorption will be subject to the final result of the appeal being M.A.T No. 1235 of 2003 and C.A.N. No. 7802 of 2003 passed by the Hon'ble Mr. Justice Altamas Kabir and Hon'ble Mr. Justice Asit Kumar Bisi, High Court Calcutta, on 23.08.2004." On the appeal being allowed by order dated 10th November, 2006, petitioner followed up by letter dated 29th December, 2006 issued to private respondents terminating their services. Private respondents were unsuccessful before Supreme Court in obtaining special leave to appeal. They raised industrial dispute in which issues referred were as follows :- "I s s u e (s) 1. Whether the termination of service of Shri Manindra Nath Biswas w.e.f. 31.12.2006 (A.N.) by the management is justified? 2. What relief, if any, is he entitled to? And 1. Whether the termination of service of Shri Swapan Maity w.e.f. 31.12.2006 (A.N.) by the management is justified? 2.What relief, if any, is he entitled to?" There was no absorption, the absorption having had been pursuant to order dated 26th July, 2002 of learned single Judge with rider that 'absorption will be subject to final result in appeal'. Appeal Court by interim order dated 23rd August, 2004 had said, inter alia, as follows :- ".... .... However, the absorption of the writ petitioners/respondents in terms of the order of the Learned Single Judge under appeal will be subject to the final result of the appeal.... ...." ;