- (1.) Appellants have filed this appeal challenging the order dated 21. 2. 2007 passed by the learned Single Judge, whereby the writ petition filed by the appellants was dismissed.
(2.) Learned counsel for the appellants has submitted that the learned Single Judge has erred in dismissing the writ petition filed by the appellants. In-fact, from a perusal of the reference order (Annexure-1 of the writ petition), it is evident that it was issued on 16. 4. 2001. As per the statement of claim submitted by the respondents, it was evident that the services of the respondents had been discontinued w. e. f. 1. 9. 1995. Hence, on the day the reference was made to the effect that the workman who had completed ten years or more services be regularized in service, was infructuous. Moreover, as per the case of Secretary, State of Karnataka & Ors. vs. Umadevi & Ors, JT 2006 (4) SC 420, rendered by the Hon'ble Supreme Court, it was clarified that those decisions which run counter to the principles settled in the said decision, or in which directions running counter to what had been held therein, would stand denuded of their status as precedents.
(3.) Since, the workmen were working as contract labourers, they could not be defined to have been employed by the appellants as per law and were not entitled for regularization of their services. Learned counsel in support of his arguments, has placed reliance upon Oshiar Prasad & Ors vs. The Employers in relation to Management of Sudamdih Coal Washery of BCCL, (2015) 4 SCC 71, wherein it was held as under:- "25. It is thus clear that the appropriate Government is empowered to make a reference under Section 10 of the Act only when "Industrial dispute exists" or "is apprehended between the parties". Similarly, it is also clear that the Tribunal while answering the reference has to confine its inquiry to the question(s) referred and has no jurisdiction to travel beyond the question(s) or/and the terms of the reference while answering the reference. A fortiori, no inquiry can be made on those questions, which are not specifically referred to the Tribunal while answering the reference. 26. Coming now to the facts of this case, it is an admitted case that the services of the appellants and those at whose instance the reference was made were terminated long back prior to making of the reference. These workers were, therefore, not in the services of either Contractor or/and BCCL on the date of making the reference in question. Therefore, there was no industrial dispute that "existed" or "apprehended" in relation to appellants' absorption in the services of the BCCL on the date of making the reference. 27. Indeed a dispute regarding the appellants' absorption was capable of being referred to in reference for adjudication, had the appellants been in the services of Contractor or/and BCCL. But as said above, since the appellants' services were discontinued or/and retrenched (whether rightly or wrongly) long back, the question of their absorption or regularization in the services of BCCL, as claimed by them, did not arise and nor this issue could have been gone into on its merits for the reason that it was not legally possible to give any direction to absorb/regularize the appellants so long as they were not in the employment. 28. It is a settled principle of law that absorption and regularization in the service can be claimed or/and granted only when the contract of employment subsists and is in force inter se employee and employer. Once it comes to an end either by efflux of time or as per the terms of the Contract of employment or by 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. 29. In our considered opinion, the only industrial dispute, which existed for being referred to the Industrial Tribunal for adjudication was in relation to termination of appellants' employment and - whether it was legal or not? It is an admitted fact that it was not referred to the Tribunal and, therefore, it attained finality against the appellants. 30. In our considered opinion, therefore, the reference, even if made to examine the issue of absorption of the appellants in the services of BCCL, the same was misconceived. ";