OSHIAR PRASAD AND OTHERSversusTHE EMPLOYERS IN RELATION TO MANAGEMENT OF SUDAMDIH COAL WASHERY OF M/S BCCL, DHANBAD, JHARKHAND

                     [2015] 2 S.C.R. 540



                 OSHIAR PRASAD AND OTHERS                         A

                              v.
THE EMPLOYERS IN RELATION TO MANAGEMENT OF
SUDAMDIH COAL WASHERY OF MIS BCCL, DHANBAD,
                                                                  B
                JHARKHAND

               (Civil Appeal No.1389 of 2015)

                    FEBRUARY 02, 2015
                                                                  c
    [FAKKIR MOHAMED IBRAHIM KALIFULLAAND
           ABHAY MANOHAR SAPRE, JJ.]

Industrial Disputes Act, 1947-s. 10- Reference of disputes
to Boards, Courts or Tribunals by the appropriate                 D
Government- Power of- Held: Appropriate Government is
empowered to make a reference uls. 10 only when 'industrial
dispute exists' or 'is apprehended between the parties' -
Tribunal while answering the reference has to confine its
inquiry only to the question(s) referred - On facts, services     E
of the appellants, at whose instance the reference was made
were terminated long back prior to making of the reference -
Thus, 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 -        F
In view thereof, absorpUon or regularization of appellants in
the services of BCCL, did not arise and nor could be gone
into on its merits - Furthermore, no parity could be sought
with the reference made by the 39 workers in the BCCL wherein         .
                                                                  8
they were absorbed because they were in the service - Thus,
courts below rightly held that the appellants were not entitled
to claim any absorption in the services qua the BCCL -
However, appellants entitled to claim the retrenchment
compensation from the Contractor!BCCL.                            H
                              540
541         SUPREME COURT REPORTS                [2015] 2 S.C.R.


 A           Disposing of the appeal, the Court

           HELD: 1.1 The appropriate Government is
    empowered to make a reference under Section 1Oof the
    Industrial Disputes Act, 1947 only when "industrial
 B dispute exists" or "is apprehended between the parties".
    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.
 C A fortiori, no inquiry can be made on those questions,
  • which are not specifically referred to the tribunal while
    answering the reference. [Para 25] [553-D-F]

      1.2 The services of the appellants and those at whose
 D    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
 E    "existed" or "apprehended" in relation to appellants'
      absorption in the services of the BCCL on the date of
      making the reference. Indeed a dispute regarding the
      appellants' absorption was capable of being referred to
 F    in reference for adjudication, had the appellants been in
      the services of Contractor or/and BCCL. But since the
      appellants' services were discontinued or/and
      retrenched (whether rightly or wrongly) long back, the
      question of their absorption or regularization in the
 G    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. [Paras 26, 27] [553-F-
H     H; 554-A-C]
 OSHIAR PRASAD v. EMPLOYERS', SUDAMDIH COAL                     542
            WASHERY OF MIS BCCL

1.3 The only industrial dispute, which existed for being A
referred to the Industrial Tribunal for adjudication was
in relation to termination of appellant's emp' oyment was
not referred to the tribunal and, therefore, it attained
finality against the appellants. Therefore, the reference,
even if made to examine the issue of absorption of the B
appellants in the services of BCCL, the same was
misconceived. [Paras 29,30] [554-F-G]

1.4 There is no parity in the facts of the earlier reference
made to decide the absorption of 39 workers in the BCCL         C
and the instant case. This could be made because they
were in the service. So far as the instant case is
concerned, the appellants were not in service. Merely
because the workers in both the references were
                                                                D
working in one project by itself was not enough to give
them any right to claim parity with the claim of others.
So long as, the parity was not proved on all the relevant
issues arising in the case, no worker whether individual
or collectively was. entitled to claim the relief only on the   E
basis of similarity in the status qua employer. Thus, the
reference made to examine the issue of appellants'
absorption qua the BCCL was incapable of being
referred to on the said question and in any event, it was
incapable of being answered in favour of the appellants.        F
[Paras 31, 32, 33] [554-H; 555-A-D]

1.5 That apart, when three courts, despite this infirmity,
went into the facts and held that the appellants were not
entitled to claim any absorption in the services qua the G
BCCL, then they were right in holding so and there is no
good ground to go into the factual issues de novo in
appellate jurisdiction. The factual findings recorded by
the three Courts are binding on this Court. Therefore,
                                                           H
543         SUPREME COURT REPORTS               [2015] 2 S.C.R.

 A there is no ground to set aside the impugned order. [Para
   34, 35] [555-E-G]

   1.6 Having regard to the peculiar facts of this case and
   the reasons given below, the appellants are entitled to
 B claim the retrenchment compensation from the
   Contractor/BCCL. Firstly, the respondent in their written
   statement filed before the tribunal offered to pay the
   retrenchment compensation to all such workers in
   accordance with the provisions of Section 25F of the Act.
 C Secondly, no documents were filed by the respondent
   to show that any such compensation was paid to the
   appellants or to any worker till date by the respondent
   and lastly, more than three decades have passed and
   yet the issues of absorption, and/or payment of
 0
   compensation has not attain·ed finality. Following the
   course adopted by this Court in *Pottery Mazdoor
   Panchayatcase, Industrial Tribunal is directed to verify
   the case of the appellants (150 or so) for deciding each
 E worker's claim for payment of retrenchment
   compensation to him/her as per the provisions of Section
   25F and accordingly he/she be paid retrenchment
   compensation. [Paras 36, 37 and 39] [556-A-C; 557-E-F]

 F    *Pottery Mazdoor Panchayat vs. Perfect Pottery Co. Ltd.
      andAnother(1979) 3 SCC 762- relied on.

   Delhi Cloth and General Mills Co. Ltd. vs. The Workmen
   and Others AIR 1967 SC 469: 1967 SCR 882; Mis Firestone
 G Tyre & Rubber Co. of India (P) Ltd. vs. The Workmen
   Employed, represented by Firestone Tyre Employees' Union
   AIR 1981SC1626:1982 (1) SCR 20; National Engineering
   Industries Ltd. vs. State of Rajasthan & Ors. 1999 (5) Suppl.
    SCR 87: (2000) 1 SCC 371; Mukand Ltd. vs. Mukand Staff
 H & Officers' Association 2004 (2) SCR 951: (2004) 10 SCC
 OSHIAR PRASAD v. EMPLOYERS', SUDAMDIH COAL 544
            WASHERY OF M/S BCCL

460; State Bank of Bikaner & Jaipur vs. Om Prakash Sharma         A
2006 (2) Suppl. SCR 701: (2006) 5 SCC 123 - referred to.

                   Case Law Reference

1967 SCR 882                 Referred to           Para 21
                                                                  B
1982 (1)'SCR 20              Referred to           Para 24

1999 (5) Suppl. SCR 87       Referred to           Para 24

2004 (2) SCR 951             Referred to           Para 24        c
2006 (2) Suppl. SCR 701 Referred to                Para 24
             '
(1979) 3 sec 162             Relied on             Para 39

CIVILAPPELLATE JURISDICTION : Civil Appeal No. 1389 of D
2015

From the Judgment and Order dated 17 .06.2011 of the High
Court of Jharkhand at Ranchi in LP.A. No. 447 of2009
                                                                  E
Ramesh P. Bhatt, S. K. Sinha, Kumar Gaurav, B. N. Dubey,
Sajith P. fortheAppellants.

Anupam Lal Das, Ariirush Singh for the Respondent.

       The Judgment of the Court was delivered by                 F

       ABHAY MANOHAR SAPRE, J. 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 G
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.
616of1999(R).
                                                                   H
545        SUPREME COURT REPORTS                    [2015] 2 S.C.R.


A   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.
B
    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
c   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".

D   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
E   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 every thing to make the Washery
    operational. The work included the complete design of the
    Washery, supply of materials required for construction of plant,
F   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
G 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 Section 25 of Industrial Disputes Act, 1947
H (in short "the Act") except 39 skilled workers, who were retained
 OSHIAR PRASAD v. EMPLOYERS', SUDAMDIH COAL 546
WASHERY OF M/S BCCL [ABHAY MANOHAR SAPRE, J.]

to look after the maintenance work of Washery after it was        A
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       B
the BCCL. Since their demands were not accepted, a reference
was made under Section 10 of the Act to Industrial Tribunal
No. 3 Dhanbad vide Reference Case No. 58of1981 to answer
the following question:
                                                                  c
   "Whether the fllanagement of Sudamdih Coal
   Washery of Mis Bharat Coking Coal Ltd., P.O.
   Sudamdih, Dist. Dhanbad are justified in not
   absorbing Sarvashri Gorakh Sharma and 38
                                                                  D
   others as their regular employees? If not, to what
   relief are th.e 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         E
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         F
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 G
project, filed Title Suit No. 51/1980 against the BCCL in the
Court of Munsif 2nd Dhanbad under Order I Rule 11 of the Code
of Civil Procedure, 1908 for declaration that they are entitled
to continue in their services under the BCCL and prayed that
their services be absorbed and regularized in the services of H
547         SUPREME COURT REPORTS                   [2015] 2 S.C.R.


 A    BCCL with all consequential benefits. They also prayed for an
      injunction restraining the BCCL from terminating their services
      pending civil suit.

   10. The Trial Court, however, on contest declined to grantthe
 B temporary injunction to the plaintiffs. It is not in dispute that
   during the pendency of the suit, the services of these workers
   were discontinued. They were, therefore, no more in the
   employment.

 c    11. By judgment and decree dated 27 .05.1983, the trial Court
      decreed the suit and held that the plaintiff's are entitled to
      continue in services of BCCL.

      12. Felt aggrieved, the BCCL filed Title Appeal No. 71of1983
 o before the Appellate Court. The Appellate Court by judgment
      and order dated 16.12.1986 dismissed the appeal and
      confirmed the judgment and decree of the Trial Court.

      13. The BCCL pursued the matter further and filed an appeal
 E    being Second Appeal No.23of1987(R) before the High Court.
      The High Court, by judgment and order dated 05.03.1993
      allowed the Second Appeal and set aside the judgment and
      decree of the two Courts which had decreed the plaintiffs' suit.
      It was held that the suit was not maintainable in the light of
 F    provisions of Labour laws.

   14. Against the aforesaid judgment, the plaintiffs (workers)
   filed Special Leave Petition being Special Leave Petition (C)
   No. 4495of1994 before this Court. By order dated 14.11.1994,
 G this Court, after granting leave, dismissed the appeal (C.A.
   No.8403/1994) with a liberty to the plaintiffs/appellants to
   approach the Industrial Tribunal for claiming any appropriate
   relief, if so advised.

 H    15. It is with this background, the plaintiffs (five workers)
 OSHIAR PRASAD v. EMPLOYERS', SUDAMDIH COAL 548
WASHERY OF M/S BCCL [ABHAY MANOHAR SAPRE, J.]

approached the Central Government under Section 10 of the A
Act and also on behalf of as many as 150 workers espousing
their cause in representative capacity for their absorption and
regularization and prayed for making an industrial reference
to the Industrial Tribunal for its adjudication. The Government
acceded to their request and accordingly made the following B
reference to the Industrial Tribunal to adjudicate:

  "Whether the management of Sudamdih Coal
  Washery of M/s Bharat Coking Coal Ltd., P.O.
  Sudamdih, Dist. Dhanbad are justified in not                    C
  absorbing Ainuel Haque and 150 others (as in the
  list annexed) as their regular employees? If not, to
  what reliefs are the said workmen entitled?"

16. The Industrial-Tribunal by award dated 21.12.1998             D
answered the reference against the workers. It was held that
they were not entitled to seek their absorption in the Services
of BCCL as their regular employees. The workers, felt
aggrieved, filed C.W.J.C.No. 616of1999(R) before the High
Court. The learned single Judge by orders dated 03.09.2009        E
dismissed the writ petition and upheld the award passed by
the Tribunal. The workers pursued the matter and filed intra
Court appeal being LP.A. No. 447 of 2009. The Division
Bench by impugned judgment dismissed the appeal finding           F
no fault in the award. Challenging the said order, the workers
filed this appeal by way of special leave before this Court.

17. While assailing the legality and correctness of the impugned
judgment, Mr. R.P. Bhatt, learned Senior Counsel for the G
appellants mainly urged two points. His first submission was
that the Courts below erred in not answering the reference in
favour of the appellants and thereby Courts below erred in not
granting them the relief for which the reference was made. His
second submission was that since the identical reference H
549         SUPREME COURT REPORTS                   [2015] 2 S.C.R.


A (Reference Case No.58/1981) made at the instance of 39
  workers alike the ~ppellants was answered in workers' favour
  vide award dated 03.03.1983, a fortiori, the present reference
  being identical in nature should also have been answered in
  favour of the appellants to maintain the parity. In other words,
B the submission was that if one set of workers got the benefit
  earlier in point of time from the Court, the other set of workers
  similarly placed too should have been granted the same
  benefits. In the alternative, learned Senior Counsel urged that
C in any event, the appellants were not paid any retrenchment
  compensation, for which otherwise they were entitled to get
  from the Contractor or/and BCCL as per the provisions of
  Section 25 of the Act read with the provisions of Contract
  Labour Prohibition and Regulation Act, 1970 and hence to
D this extent, this Court can still direct either Contractor or the
  BCCL or both, as the case may be, to pay the retrenchment
  compensation to the appellants.

      18. In Contra, learned Counsel for the respondent-BCCL
E     supported the impugned order and contended that no case is
      made out by the appellants to interfere in the impugned order
      and hence the appeal merits dismissal.

      19. Having heard the learned counsel for the parties and on
F     perusal of the record of the case, we find no merit in the main
      submissions of the appellants but find substance in the
      alternative submission.

  20. Before we examine the factual matrix of the case in hand,
G we consider it apposite to take note of law laid down by this
  Court regarding the powers of the appropriate Government in
  making referenc;e under Section 10 of the Act and the
  jurisdiction of the Tribunal while answering the reference.
  Indeed it is well settled and remains no more res integra.
H
 OSHIAR PRASAD v. EMPLOYERS', SUDAMDIH COAL 550
WASHERY OF M/S BCCL [ABHAY MANOHAR SAPRE, J.]

21.    One of the questions which fell for consideration by this A
Court in Delhi Cloth and General Mills Co. Ltd. vs. The
Workmen and Others (AIR 1967 SC 469) was that what are
the powers of the appropriate Government while making a
reference and the scope and jurisdiction of Industrial Tribunal
under Section 10 of the Act.                                     B

22.     Justice Mitter, speaking for the Bench, held as under:

      "(8) ...... Under S. 10{1)(d} of the Act, it is open to
      the appropriate Government when it is of opinion           c
      that any industrial dispute exists to make an
      order in writing referring

      "the dispute or any matter appearing to be
      connected with, or relevantto the dispute, ..... to        D
      a Tribunal for adjudication" under s. 10(4)

      "where in an order referring an industrial dispute
      to a Labour Court, Tribunal or National Tribunal
      under this section or in a subsequent order, the           E
      appropriate Government has specified the
      points of dispute for adjudication, the Labour
      Court oi' the Tribunal or the National Tribunal,
      as the case may be, shall confine its adjudication
      to those points and matters incidental thereto."           F

      (9) From the above it therefore appears that while
      it is open to the appropriate Government to refer
      the dispute or any matter appearing to be
      connected therewith for adjudication, the                  G
      Tribunal must confine its adjudication to the
      points of dispute referred and matters incidental
      thereto. In other words, the Tribunal is not free
      to enlarge the scope of the dispute referred to it
                                                                 H
551       SUPREME COURT REPORTS                 [2015] 2 S.C.R.


 A       but must confine its attention to the points
         specifically mentioned and anything which is
         incidental thereto. The word 'incidental' means
         according to Webster's New World Dictionary :

 B       "happening or likely to happen as a result of or
         in connection with something more important;
         being an incident; casual; hence, secondary or
         minor, but usually associated :"

 C       "Something incidental to a dispute" must
         therefore mean something happening as a result
         of or in connection with the dispute or
         associated with the dispute. The dispute is the
         fundamental thing while something incidental
 D       thereto is an adjunct to it. Something incidental,
         therefore, cannot cut at the root of the main thing
         to which it is an adjunctto it. .... "

   23.    The same issue came up for consideration before three
 E Judge Bench in a case reported in Pottery Mazdoor
   Panchayat vs. Perfect Pottery Co. Ltd. and Another, ( 1979)
   3 SCC 762. Justice Y.V. Chandrachud .- the learned Chief
   Justice speaking for the Court laid down the following
   proposition of law:
 F
         "10. Two questions were argued before the High
         Court: Firstly, whether the tribunals had
         jurisdiction to question the propriety or
         justification of the closure and secondly,
 G       whether they had jurisdiction to go into the
         question of retrenchment compensation. The
         High Court has held on the first question that
         the jurisdiction of the Tribunal in industrial
         disputes is limited to the points specifically
 H
 OSHIAR PRASAD v. EMPLOYERS', SUDAMDIH COAL 552
WASHERY OF M/S BCCL [ABHAY MANOHAR SAPRE, J.]

   referred for its adjudication and to matters         A
   incidental thereto and that the Tribunal cannot
   go beyond the terms of the reference made to
   it. On the second question the High Court has
   accepted the respondent's contention that the
   question of retrenchment compensation has to         B
   be decided under Section 33-C{2) of the Central
   Act.

   11. Having heard a closely thought out argument
   made by Mr. Gupta on behalf of the appellant,        c
   we are of the opinion that the High Court is right
   in its view on the first question. The very terms
   of the references show thatthe point of dispute
   between the parties was not the fact of the
                                                        D
   closure of its business by the respondent but
   the propriety and justification of the
   respondent's decision to close down the
   business. That is why the references were
   expressed to say whether the proposed closure        E
   of the business was proper and justified. In
   other words, by the references, the Tribunals
   were not called upon by the Government to
   adjudicate upon the question as to whether
   there was in fact a closure of business or           F
   whether under the pretence of closing the
   business the workers were locked out by the
   management. The references .being limited to
   the narrow question as to whether the closure
   was proper and justified, the Tribunals by the       G
   very terms of the references, had no jurisdiction
   to go behind the fact of closure and inquire into
   the question whether the business was in fact
   closed down by the management."
                                                        H
553         SUPREME COURT REPORTS                   [2015] 2 S.C.R.


 A    24. The abovesaid principle of law has been consistently
      reiterated in M/s Firestone Tyre & Rubber Co. of India (P)
   Ltd. vs. The Workmen Empoloyed, represented by
   Firestone Tyre employees' Union AIR 1981 SC 1626,
   National Engineering Industries Ltd. vs. State of
 B Rajasthan & Ors., (2000) 1 SCC 371, Mukand Ltd. vs.
   Mukand Staff &Officers' Association, (2004) 10 SCC 460
   and State Bank of Bikaner & Jaipur vs. Om Prakash
   Sharma, (2006) 5 SCC 123.

 C    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
 0
   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
 E 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
 F 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
 G 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.
 H But as said above, since the appellants' services were
 OSHIAR PRASAD v. EMPLOYERS', SUDAMDIH COAL 554
WASHERY OF MIS BCCL [ABHAY MANOHAR SAPRE, J.]

discontinued or/and retrenched (whether rightly or wrongly) long A
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 forthe reason
that it was not legally possible to give any direction to absorb/
regularize the appellants so long as they were not in the B
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 C
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
                                                                0
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'          E
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    F
made to examine the issue of absorption of the appellants in
the services of BCCL, the same was misconceived.

31. Apart from this infirmity noticed in this case, we have also
not been able to find any parity in the facts of the earlier G
reference (R.C.No.58/81) and the case in hand. As noted
above, the earlier reference was made to decide the
absorption of 39 workers in the BCCL. This could be made
because they were in the service. So far as the present case H
555         SUPREME COURT REPORTS                     [2015) 2 S.C.R.


A     is concerned, the appellants were not in service.

      32. It can safely be noted that merely because the workers in
      both the references were working in one project by itself was
      not enough to give them any right to claim parity with the claim
B     of others. So long as, the parity was not proved on all the
      relevant issues arising in the case, no worker whether individual
      or collectively was entitled to claim the relief only on the basis
      of similarity in the status qua employer.

c 33. In the light of foregoing discussion, we are of the considered
      opinion that the reference made to examine the issue of
      appellants' absorption qua the BCC L was incapable of being
      referred to on the said question and in any event, it was
      incapable of being answered in favour of the appellants.
D
      34. That apart, when three Courts, despite this infirmity, went
      into the facts and held that the appellants were not entitled to
      claim any absorption in the services qua the BCCL, then in
      our considered opinion, they were right in ho!ding so and we
E     do not find any good ground to go into the factual issues de
      novo in our appellate jurisdiction. The factual findings recorded
      by the three Courts are binding on this Court.

      35. We, therefore, find no ground to set aside the impugned
F     order and accordingly uphold the same.

  36. This takes us to the next question as to whether the
  appellants are entitled to claim the relief of payment of
  retrenchment compensation. Having given our anxious
G consideration to this issue, we are of the considered view that
  having regard to the peculiar facts of this case and the reasons,
  which we have set out hereinbelow, we are inclined to hold
  that the appellants are entitled to claim the retrenchment
  compensation from the Contractor/BCCL.
H
 OSHIAR PRASAD v. EMPLOYERS', SUDAMDIH COAL 556
WASHERY OF M/S BCCL [ABHAY MANOHAR SAPRE, J.]

37. It is for the reason that firstly, the respondent in their written   A
statement filed before the Tribunal have offered to pay the
retrenchment compensation to all such workers in accordance
with the provisions of Section 25F of the Act. Secondly, no
documents were filed by the respondent to show that any such
compensation was paid to the appellants or to any worker till            B
date by the respondent and lastly, more than three decades
have passed and yet the issues of absorption, and/or payment
of compensation has not attained finality.

38. Indeed, in similar circumstances, this Court in the case of C
Pottery Mazdoor Panchayat's case (supra) had directed
payment of retrenchment compensation to the workers and
made the following pertinent observations in the concluding
paras:
                                                                D
    "17. It is unnecessary to consider the second
    question as regards the payment of retrenchment
    compensation and we will, therefore, express no
    opinion as to whether the Tribunals had
    jurisdiction to go into that question. Happily, the         E
    parties have arrived at a settlement on that
    question under which, the respondent agrees to
    fix within a period of six months from today the
    retrenchment compensation payable to the
                                                                F
    retrenched workers in accordance with the
    provisions of Section 25FFF of the Central Act 0 . ,,
    namely, the Industrial Disputes Act, 1947, without.
    the aid of the proviso to that section. After the
    retrenchment compensation is so fixed; a copy· ·            G
    of the decision fixing the compensation payable ·
    to each of the worker will be sent by the
                     l l \ " ' · " ' :,.·.,'.      ... .
    respondent to the appellant Union. The workers
              'If  '  ~:..-·-        .,,   - "' ..       '
    or their legal representatives, as the case may be,
                                                                         H'
557       SUPREME COURT REPORTS                 [2015] 2 S.C.R.


 A      will then be entitled to receive the retrenchment
        compensation from the respondent, which
        agrees to pay the same to them. The respondent
        will be entitled to set off of the amounts of
        retrenchment compensation already paid to the
 B      workers against the amounts found due to them
        under this settlement. On receiving the
        retrenchment compensation the workers
        concerned shall withdraw the applications, if any,
        filed by them for relief in that behalf.
 c
        18. We would only like to add that the
        compensation which will be paid to the workers
        will be without prejudice to their right, if any, to
        get employment from the respondent in the new
 D
        business as·and when occasion arises."

   39. Following the course adopted by this Court in Pottery
   Mazdoor Panchayat (supra), we directthe Industrial Tribunal
 E to verify the case of the appellants (150 or sO) for deciding
   each worker's claim for payment of retrenchment
   compensation to him/her as per the provisions of Section 25F
   of the Act and accordingly he/she be paid retrenchment
   compensation. In case any worker has expired then his/her
 F compensation amount be paid to his/her legal representative
   after making proper verification of the case.

  40. We, however, make it clear that the respondent would not
  raise any objection about the maintainability of workers' claim
G nor would raise any objection on merits before the Tribunal
  and the inquiry would only confine to determine the quantum of
  retrenchment compensation payable to each worker.

  41. The appellants and respondents would appear before the
H Tribunal on 16.02.2015 and file necessary documents to
 OSHIAR PRASAD v. EMPLOYERS', SUDAMDIH COAL 558
WASHERY OF M/S BCCL [ABHAY MANOHAR SAPRE, J.]

enable the Tribunal to verify the claim of each worker for A
determining the quantum of compensation. The Tribunal would
issue notice to the Contractor to enable them to participate in
the proceedings in the light of provisions of Contract Labour
Prohibition and Regulation Act, 1970. The appellants and all
such workers can be represented through recognized Union B
before the Tribunal.

42. The entire exercise should be completed and payment be
made to the workers within six months.
                                                                  c
43. With these directions, the appeal stands disposed of.

Nidhi Jain                                  Appeal disposed of.


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