Judgment:
Permod Kohli, J.
1. Through the medium of this Letters Patent Appeal, we have been called upon to examine the sustainability of the judgment dated 23.3.2006 passed by learned Single Judge in writ petition being C.W.J.C. No. 576 of 2001. By the impugned judgment, the award dated 27.12.1999 passed by the Labour Court, Dhanbad for reinstatement of the workmen with full back wages has been set aside.
2. The short facts leading to the filing of the writ petition are that appellants herein were allegedly engaged by the then Chairman of Mineral Area Development Authority in the year 1983 and later terminated in January, 1984 allegedly without any reasons. Termination order was challenged by some of the appellants along with others in C.W.J.C. No. 158 of 1984(R) before this Court. This writ petition was dismissed vide judgment dated 4.4.1984. While upholding the termination, this Court asked the Board to scrutinize the cases of such of the employees who claim their initial appointment to be regular and review their cases. It is stated that their cases were not reviewed and having failed to seek any relief the workmen approached conciliation authority. On failure of the conciliation, reference was sought under Section 10 of the Industrial Disputes Act, 1947 and the Government of Bihar i.e. the appropriate Government vide its notification dated 20.7.1996 referred the dispute to the Labour Court, Dhanbad which came to be registered as Reference Case No. 6/96. The Labour Court vide its award dated 27.12.1999, pronounced on 17.10.2000, set aside the termination and ordered for reinstatement of the workmen with full back wages. This award of the Labour Court again became subject matter of challenge in C.W.J.C. No. 576 of 2001. This writ petition was allowed by the learned Single Judge; hence, this appeal before us.
3. Learned Counsel appearing for the appellants-workmen has challenged the impugned judgment on three counts- (1) that the termination of any kind otherwise than as a punishment by way of disciplinary action amounts to retrenchment in terms of Section 2(oo) of the Industrial Disputes Act (2) retrenchment in violation of Section 25G is not sustainable in law and (3) persons similarly situated and junior to the petitioners having been retained and regularized in service action against the appellants is violative of principles of equality.
4. To support his contentions, it is stated that under Section 2(oo) of the Industrial Disputes Act any kind of termination of workmen other than by way of punishment is retrenchment. According to learned Counsel appearing for the appellants, whenever retrenchment is to be made principles of 'First Come Last go' incorporated under Section 25G has to be followed and in the present case appellants have been terminated without following this principle. It is stated that large number of juniors engaged in the same manner have been retained in service and regularized whereas appellants have been shown the door and thus findings of learned Single Judge are liable to be set aside and award of the Labour Court is to be restored.
5. We have perused the judgment impugned as also the award of the Labour Court. Learned Single Judge has held that the engagement of the appellants was void ab initio. The engagement was temporary in nature against no vacancy and even engagement was made without following any procedure i.e. by inviting applications from the eligible persons or even calling names from the Employment Exchange. Appointment order itself provide for dispensing with such an engagement without notice. In such a situation, the principles of 'First Come Last go' has no application. Learned Single Judge has also held that all the workmen except 2 and 7 have earlier filed C.W.J.C. No. 158 of 1984(R) challenging their termination and the said writ petition was dismissed vide judgment dated 4.4.1984 upholding the termination and Board was asked to scrutinize the grievance of the individual employees and if it was satisfied that some of the appointments had been made in regular manner then it will be open to the Board to review such cases.
6. We have also perused the judgment passed in C.W.J.C. No. 158 of 1984(R). This direction was issued on the plea raised by the workmen that their appointment was not irregular. Otherwise Division Bench of this Court clearly upheld the termination on the ground that appointment itself was illegal and without any vacancy. It also noticed that the appointments being temporary could be terminated without any prior notice. As regards the question of discrimination is concerned, the Court also did not agree with the plea of the writ petitioners (workmen) that there has been discrimination in view of the fact that the counsel appearing for the Board gave undertaking to the Court that irregular appointments made by the Chairman shall be terminated within one month. This judgment has attained finality and most of the appellants except two were parties to the earlier writ application. The Labour Court though noticed this judgment but answered the reference on the ground that the High Court had allowed the Mineral Area Development Authority (MADA) to scrutinize the cases. Labour Court, however, committed a glaring illegality in reexamining the entire issue. Labour Court noticed these observations and without returning any finding that any of the engagement of any of the workman was regular, answered the reference in favour of the workmen. As a matter of fact, in absence of there being any finding by the MADA that any of the appointment was regular or any such finding by the Labour Court itself, the judgment of the Division Bench of this Court was binding upon the Labour Court and rather operates as res judicata in respect to such of the workmen who were parties before the writ court in C.W.J.C. No. 158 of 1984(R).
7. Learned Single Judge has rightly observed that in view of the findings of the Division Bench in C.W.J.C. No. 158 of 1984(R) award is not sustainable. The question of discrimination has also not been accepted by the learned Single Judge and on valid grounds. It has been argued on behalf of the appellants that respondents though gave an undertaking before the Division Bench of this Court that all the similarly situated persons will be terminated but to the contrary most of the employees have been retained in service and regularized. We may say that this ground is also not available to the appellants for a simple reason that discrimination or equality enshrined under Article 14 of the Constitution of India is a positive concept. Right of equality is available if the appointments are legal. No equality can be claimed in respect to illegal action. Otherwise also if any of the person has been retained in service and regularized in contravention of the undertaking given to the High Court the issue cannot be re-agitated in a second writ petition. Remedy is available only to seek implementation of the judgment or initiate contempt proceedings.
8. Learned Counsel appearing for the respondents has also pointed out to us that finding of the Labour Court is primarily based upon an earlier award dated 28.2.1994 passed in Reference Case No. 13 of 1989. From the judgment of the Labour Court, it is evident that Labour Court answered the reference and ordered for reinstatement of the workmen with full back wages on the basis of this award earlier passed by the Labour Court which according to Labour Court was upheld by the High Court. This finding is absolutely wrong and contrary to the record. Learned Counsel appearing for respondent has taken to us to the judgment passed in C.W.J.C. No. 2381 of 1994, wherein, the learned Single Judge by judgment dated 9th September, 2002 having noticed the relevant facts, set aside the award dated 28.2.1994 and Letters Patent Appeal preferred therefrom also came to be dismissed. Therefore, the award in favour of the workmen itself was passed on wrong premises. Learned Single Judge has noticed this fact also. Learned Counsel appearing for the appellants has also fairly accepted this position. It has also been brought to our notice that workmen remained engaged between 18 to 75 days only and their services were terminated in January, 1984 whereas reference was made to the Labour Court in the year 1996 i.e. after a period of 12 years and the Labour Court has allowed the reinstatement with full back wages. We are unable to convince counsel on this score also.
9. In view of the above circumstances, we uphold the judgment of the learned Single Judge and dismiss this appeal, however, without any order as to costs.