IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.20943 of 2019

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General Manager, Barauni Thermal Power Station, at and P.O.-Barauni,

District-Begusarai.

... ... Petitioner/s

Versus

1.The State of Bihar, through the Secretary, Department of Labour and

Employment, New Secretariat, Patna-1.

2.The Presiding Officer, Labour Court, Begusarai.

3.The General Secretary, Bihar Vidyut Kamgar Sangh, Patel Nagar, Patna-3.

4.Bhibhu Shankar Sharma, Son of Late S.N. Sharma, Resident of Village and

Post-Chintamani Chak, Mokama, District-Patna-803302.

5.Mahendra Mallick, Son of Late Bipat Mallick, Resident of Village-Dih, P.S.-

Birpur, District-Begusarai.

... ... Respondent/s

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Appearance :

For the Petitioner/s: Mr. Vijoy Nandan Sahay, Advocate

For the State : Mr. Parijat Saurav, AC to Ex AAG 10

For the Respondent : Dr. Kumar Binode Bariar, Advocate

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CORAM: HONOURABLE JUSTICE SMT. G. ANUPAMA CHAKRAVARTHY

ORAL JUDGMENT

Date : 12-02-2026

1. The petitioners have filed the Writ

petition for the following relief:

“ For quashing the Award

dated 27.06.2018 passed in Reference

Case No.23 of 1994 by the Presiding

Officer, Labour Court, Begusarai,

Respondent no.2 by which the Court

reinstated two workmen out of six in

service with back wages committing an

error that the College run by the

petitioner in the Barauni Thermal

premises which was closed for last so

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many years and there was no post on

which the workman was reinstated in

service and directed to be re-appointed

in closed establishment the dispute was

raised in a closed establishment which

can not be an Industrial Dispute under

the Act.”

2. It is the second round of litigation. At the

outset, the petitioner has filed CWJC No. 8790 of

2008 assailing the award dated 18.12.2007 passed

by the Presiding Officer, Labour Court Begusarai in

Reference Case No. 23 of 1994 by which

termination of service of respondent nos. 4 and 5,

namely Bibhu Shankar Sharma and Mahendra

Mallick has been held to be improper and

unjustified and it has been held that both the

workmen are fit to be adjusted with all

consequential benefits in any other branch of the

Management. This Court on considering the

contentions and merits of both the parties has

passed a detailed order dated 29.03.2018 in CWJC

No. 8790 of 2008. The relevant part of the

judgment is quoted herein below for better

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appreciation:

“9. Without going into merits of

the submissions made on behalf of the

parties, I would straightway come to the

operative part of the impugned award

dated 18.12.2007 passed by the learned

Presiding Officer of the Labour Court,

Begusarai. The first part of the award

states that the termination of the

workmen, namely, Bibhu Shankar Sharma

and Mahendra Mallick by the Management

was unjustified and illegal. The second

part of the award is that both the

workmen are fit to be taken back into

services but because the college run by

the Management in which they were

employed has been closed, they were fit

to be employed with all consequential

benefits in any other branch of the

Management.

10. The question is as to whether

the award passed by the Labour Court can

be termed to be a valid award. In order to

find out the answer, it would be essential

to see what an award is? The award in a

quasi judicial proceeding is the end

product of the adjudication process.

11. Section 2(b) of the I.D. Act

stipulates “award” means an interim or a

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final determination of any industrial

dispute or of any question relating thereto

by any Labour Court, Industrial Tribunal or

National Industrial Tribunal and includes

an arbitration award made under Section

10-A.

12. Thus, an order shall be

deemed to be an award in terms of

Section 2(b) of the I.D. Act under the

following circumstances:-(a) it is an

interim or final determination of an

industrial dispute or (b) it is an interim or

final determination of any question

relating to such dispute and (c) such

interim or final determination is made by

a Labour Court, an Industrial Tribunal or a

National Tribunal, or (d) it is an arbitration

award under Section 10-A.

13. The first part of the definition

of the award specifies the determination

final or interim. The second part pertains

to determination of any question relating

to dispute.

14. Leaving some issues to be

settled by the parties themselves without

determination by the Labour Court cannot

be termed to be a valid award. The

expression „determination of any dispute‟

means an adjudication of the dispute on

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relevant materials.

15. The Supreme Court in Cox and

Kings Ltd. vs. Workmen [1977(1) LLJ 471

SC] laid down twofold tests for a decision

of the tribunal to fall within the definition

of award. First, it must be adjudication of

a question or point relating to industrial

dispute, which has been specified in the

order of reference or is incidental thereto;

and secondly, such adjudication must be

on merits.

16. The determination also implies

that the adjudicator has to adjudicate

upon the whole dispute as referred to him.

An adjudicator cannot determine only the

part of the dispute by leaving rest to be

determined by the parties. The award

must be certain, in the sense that the

parties must know what they are required

to do in terms of the award. In an award,

there should finally be directions

necessary for proper implementation of

the award.

17. In the present case, as seen

above, two issues were referred before

the Labour Court. The first was as to

whether the termination of services of the

respondent nos. 4 and 5 was proper and

justified and the second was if termination

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of services of the respondent nos. 4 and 5

was not proper and justified, then what

relief they were entitled to. So far as the

first issue is concerned, the Labour Court

had definitely held that the termination of

respondent nos. 4 and 5 was improper

and unjustified, but so far as the second

issue regarding the relief to which they

were entitled to is concerned, the Labour

Court had left the matter open to the

discretion of the parties after holding that

they are fit to be engaged in any other

running branch of the Management.

18. In the opinion of this Court,

such an award cannot be termed to be a

valid award. There is no final

determination of the second issue referred

to the Labour Court. The Labour Court

could not have determined only part of

the dispute by leaving the rest to be

determined by the parties themselves.

The error committed by the Labour Court

is certainly an apparent error of law.

19. In that view of the matter, the

award dated 18.12.2007 passed by the

learned Presiding Officer, Labour Court,

Begusarai in Reference Case No. 23 of

1994 is set aside. The matter is remanded

back to the Labour Court, Begusarai to

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decide the case afresh on the basis of the

evidences already led before it after

hearing the oral and written submissions

which may be made on behalf of the

parties.

20. Registry is directed to send

back the record to the Labour Court

forthwith through special messenger

along with a copy of this judgment. Since

the parties are being represented through

their respective counsel, no notice shall

be required to be issued by the Labour

Court. The Labour Court shall fix a date of

hearing on 16th April 2018 and shall

decide the reference made to it within two

months from the date of first hearing.

21. With the aforesaid

observations and directions, the writ

petition stands disposed of.”

3. Upon the judgment dated 29.03.2018

passed in CWJC No. 8790 of 2008, the Presiding

Officer, Labour Court, Begusarai, vide order dated

27.06.2018 has passed the Award in Reference

Case No. 23/1994, which is presently challenged

before this Court. By order dated 27.06.2018, the

Presiding Officer has observed that while passing

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the award in the case, it is determined that the

termination of service of the workers Upendra

Mahto, Gena Prasad Yadav, Md. Akhlaq, Mahesh

Mahto and Mantu Pal by the management is fair

and legal and they are not entitled to get any relief

but the termination of service of workers Vibhu

Shankar and Mahendra Mallick by the

management is unfair and illegal. Both these

workers are entitled to be re-appointed to their

posts along with arrears. Since the College of

Management had already been closed, in such a

situation, the Management should appoint them in

its establishment with all the benefits due to them

at that time.

4. The case of the workmen respondent

nos. 4 and 5 before the Labour Court was that

respondent no. 4 Bibhu Shankar was engaged in

December, 1983 by the Management of BTPS and

was terminated in June, 1991 whereas respondent

no. 5 Mahendra Mallick was engaged in 1982 and

was terminated in July, 1992. Their contention was

that they were working as contingent workers and

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were directly controlled by the BTPS and paid

directly at the departmental cash counter. The

matter of their regularization was taken up with

the Chairman of the BTPS, but their claim was

never resolved. Thereafter, their claim for

regularization was taken up with the General

Manager of the BTPS. A representation in this

regard was also given to the Deputy Labour

Commissioner, Begusarai. During discussion, the

local Management assured to regularize their

services in conciliation proceeding held on

17.10.1989 before the Deputy Labour

Commissioner, Begusarai and it was agreed by the

Management that the issue of regularization would

be finalized within a month, but when the matter

still remained pending, conciliation proceeding was

held by the Labour Superintendent, Begusarai on

13.05.1991. However, instead of regularizing the

services of respondent nos. 4 and 5, the

Management terminated their services during

pendency of the conciliation proceeding. They

contended that the termination was wholly illegal,

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unjustified and unsustainable as no notice in terms

of Section 25-F of the Industrial Dispute Act was

given to them prior to order of termination.

5. The Learned counsel for the petitioner

contended that the impugned Award is illegal,

perverse, and unsustainable in law, as t he

respondent Nos. 4 and 5 were never employees of

Bihar State Electricity Board or Barauni Thermal

Power Station (BTPS). There existed no employer–

employee relationship. It is further submitted that

the workmen were engaged purely on

contractual/daily wage basis through contractors

for ancillary works such as cleaning and sweeping

in the Intermediate College run at BTPS premises.

It is further contended that the Intermediate

College was closed with effect from 24.09.1991

pursuant to Board’s Office Order No. IXA-Sch.

2002/90 (P.F.) EB-6133, and consequently all

contractual arrangements came to an end, by

efflux of time. Since the termination occurred due

to closure of establishment, it does not amount to

retrenchment under Section 2(oo) of the Industrial

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Disputes Act, 1947, and therefore Section 25-F is

not applicable. No individual appointment orders

were issued in the names of the workmen; funds

were sanctioned for contractual work and not

against specific posts.

6. The Learned counsel for the petitioner

submitted that the services of the workmen were

never regularized, and appointments in other units

of BTPS were made only through proper selection

processes. The industrial dispute was raised after

closure of the establishment , rendering the

reference itself invalid in law. The dispute was

raised by an unrecognized and unregistered union,

namely Bihar Vidyut Kamgar Sangh.

7. The Learned counsel for the petitioner

submitted that the Respondent no. 4 had earlier

filed a writ petition seeking regularization and had

admitted therein that his engagement was

contractual and had come to an end. It is further

submitted that Reinstatement in a closed

establishment is impermissible in law, and at best

the workmen could only be entitled to closure

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compensation.

8. It is contended that the Labour Court

committed a serious error in holding that teaching

staff fall within the definition of “workman” under

the Act.

9. The Learned counsel for the petitioner

lastly submitted that the impugned Award amounts

to granting relief contrary to statutory provisions,

particularly Sections 2(oo) and 25-F of the

Industrial Disputes Act. The Labour Court ignored

the settled law that contractual termination on

closure does not constitute retrenchment . The

direction for reinstatement in an establishment

which had ceased to exist is ex facie illegal. The

Award is liable to be quashed as the Labour Court

exceeded its jurisdiction and ignored material

evidence.

10. The Learned counsel for the petitioner

submits that respondent nos. 4 and 5 were never

regular employees of the petitioner-Management

and were engaged on a contractual/daily wage

basis. It is contended that the Intermediate

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College, where they were engaged, stood closed

with effect from 24.09.1991, and therefore the

question of reinstatement does not arise. It is

further argued that the termination was on account

of closure and would not amount to retrenchment

under Section 2(oo) of the Industrial Disputes Act,

1947, and hence Section 25-F would have no

application.

11. The Intermediate College stood closed

with effect from 24.09.1991 pursuant to Office

Order No. IXA-Sch. 2002/90 (P.F.) EB-6133, and

consequently all contractual arrangements came

to an end by efflux of time. The termination was on

account of closure of the establishment and,

therefore, does not amount to retrenchment within

the meaning of Section 2(oo) of the Act.

Consequently, Section 25-F has no application.

12. It is further argued that reinstatement

in a closed establishment is impermissible in law.

At best, the workmen could claim closure

compensation. The industrial dispute was raised

after closure of the establishment and through an

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unrecognized union.

13. It is submitted that the Labour Court

exceeded its jurisdiction in directing appointment

in another establishment of the Management. The

direction for reinstatement with back wages in a

non-existent establishment is ex facie illegal and

unsustainable.

14. A counter affidavit was filed on behalf

of the respondent State. The Learned counsel

appearing for the State submits that upon failure of

conciliation, the competent authority of the Labour

Resources Department rightly referred the dispute

for adjudication under Section 10 of the Industrial

Disputes Act. It is further submitted that the

Labour Court adjudicated the dispute after issuing

notices to the parties and appreciating oral and

documentary evidence. The State has no role in

examining the legality of the Award, and is only a

formal party to the proceedings. It is further stated

that no specific allegations have been made

against the State in the writ petition as such the

State is only a formal party-respondent in the

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present case.

15. The respondent Nos. 4 and 5 have also

filed counter affidavit. The Learned counsel for

respondent nos. 4 and 5 submitted that

Respondent nos. 4 and 5 are “workmen” within the

meaning of Section 2(s) of the Industrial Disputes

Act, and the petitioner is an “industry” under

Section 2(j). The dispute regarding termination

squarely falls within the definition of “industrial

dispute” under Section 2(k).

16. It is further submitted that the Labour

Court has, upon remand by this Court, finally

adjudicated both issues—legality of termination

and relief—strictly in accordance with the

directions issued on 29.03.2018. The termination

was effected during pendency of conciliation

proceedings, without compliance of mandatory

provisions of Section 25-F, rendering the same void

ab initio. The plea of contractual termination under

Section 2(oo)(bb) was never pleaded or proved by

the Management before the Labour Court.

17. It is further submitted that the Labour

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Court is the final court of facts, and its findings

cannot be interfered with in writ jurisdiction unless

it is shown to be perverse or illegal. It is contended

that the writ petition has been filed after more

than one year of the Award, without reinstating the

workmen or paying back wages. The petitioner has

consistently violated Section 17-B of the Industrial

Disputes Act, during pendency of litigation,

compelling the workmen to initiate contempt

proceedings.

18. The Learned counsel further submitted

that under the Bihar Power Generation Undertaking

Transfer Scheme, 2018, liability for execution of

awards passed prior to 15.12.2018 remains with

BTPS, and not NTPC.

19. The Learned counsel appearing for

respondent nos. 4 and 5 submits that the Labour

Court, upon appreciation of oral and documentary

evidence, recorded a categorical finding that the

workmen were working under the direct

supervision and control of the Management and

had completed continuous service. It is contended

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that their termination was effected without

compliance of Section 25-F of the Act and during

the pendency of conciliation proceedings,

rendering the same void ab initio. It is further

submitted that the scope of interference under

Article 226 of the Constitution of India with an

Award of the Labour Court is limited.

20. The Learned counsel has also placed

Reliance on judgments of the Hon’ble Supreme

Court reported in AIR 1964 SC 477 : Syed

Yakoob v. K.S. Radhakrishnan and (2014) 11

SCC 85 : Bhuvnesh Kumar Dwivedi v.

Hindalco Industries Ltd.

21. Having heard learned counsel for the

parties and perused the materials on record, the

following issues arise for consideration:

(i) Whether reinstatement can be directed

when the establishment itself has ceased to exist?

(ii) Whether back wages can be awarded in

respect of a closed establishment?

(iii) Whether the Labour Court exceeded its

jurisdiction in directing appointment in another

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establishment?

22. It is undisputed that the Intermediate

College, where respondent nos. 4 and 5 were

engaged, was closed with effect from 24.09.1991.

The closure of the College has not been set aside

by any competent authority. Once the

establishment itself has ceased to exist, the

question of reinstatement therein does not arise.

23. Reinstatement presupposes the

existence of a post and a running establishment. In

absence thereof, such a direction becomes

incapable of compliance and legally unsustainable.

The Labour Court, while directing reinstatement,

simultaneously acknowledged that the College was

closed and then proceeded to direct appointment

in another establishment of the Management. Such

direction travels beyond the terms of reference

and amounts to creating a new contract of

employment.

24. This Court is of the considered opinion

that once the College was closed, reinstatement

was legally impossible. Consequently, the direction

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to pay back wages also cannot survive, as there

was no subsisting establishment in which the

workmen could have worked.

25. The Award, therefore, suffers from

patent illegality insofar as it grants reinstatement

and back wages in respect of a closed

establishment and further directs adjustment in

other units of the Management.

26. While it is true that the scope of

interference under Article 226 is limited, this Court

can interfere where the Award is contrary to law or

incapable of implementation. The present Award

falls within that category.

27. In view of the discussions made

hereinabove, this Court holds that since the

Intermediate College was closed with effect from

24.09.1991, reinstatement of respondent nos. 4

and 5 is legally impermissible. The direction for

appointment in another establishment of the

Management is beyond jurisdiction and the

consequential direction for payment of back wages

is unsustainable.

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28. Accordingly, the Award dated

27.06.2018 passed by the Presiding Officer, Labour

Court, Begusarai in Reference Case No. 23 of 1994,

insofar as it relates to respondent nos. 4 and 5, is

hereby quashed and set aside.

29. The writ petition stands allowed.

30. Interlocutory Application(s), if any,

shall stand disposed of.

Spd/-

(G. Anupama Chakravarthy, J)

AFR/NAFR NAFR

CAV DATE NA

Uploading Date 13.02.2026

Transmission Date