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TMI Blog2008 (5) TMI 758X X X X Extracts X X X X X X X X Extracts X X X X ..... ciliation proceedings, the State Government made a reference to the Industrial Tribunal. 3. The parties before the Industrial Tribunal filed their pleadings and also recorded their evidence. The Tribunal in its award dated 11th July 1994, held that the members of the Union were indeed the employees of the ONGC and a direction was accordingly issued that their services be regularized in a phased manner with pay and other allowances, as permissible to regular employees. This award was challenged by the ONGC in the High Court on the ground that the members of the Union were employees of the contractors and not of the ONGC and as such there was no obligation on the part of the ONGC to regularize their services. The learned Single Judge accepted this submission and further observing that the Tribunal had exceeded its jurisdiction by deciding beyond the reference, allowed the writ petition. A Writ appeal was thereafter taken by the Union before the Division Bench of the High Court which, vide the impugned judgment dated 24th December 1999, reversed the findings of the learned Single Judge observing that the powers of the High Court while examining an award of a subordinate tribunal were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs which now totalled about seven crore although no work was being performed by them. It has been submitted that as a result of another Memorandum of Understanding signed on 24th January 2007, another 176 workmen or their legal heirs out of the 290 aforementioned, had opted out of the appeal and accepted voluntary retirement with the result that as of today, only about 70 or 80 workmen were associated with the Union in pursuing this appeal. It has accordingly been pleaded that to meet the latest situation and in the light of the above facts, the earlier scheme formulated by the ONGC for absorption of its workmen set out in the additional affidavit filed on 14th February 2001, be treated as withdrawn, though the offer with regard to the voluntary retirement scheme which has been accepted by the 176 workmen was still open to the present members of the Union. On facts, it has been argued that the findings of the Industrial Tribunal were erroneous and the learned Single Judge was, therefore, fully justified in setting aside the award pursuant to its writ jurisdiction under Article 226 of the Constitution of India. Reliance for this argument has been placed on Ahmedabad Municipal Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making a re-assessment on facts. For this argument, the learned Counsel has relied on R.K. Panda and Ors. v. Steel Authority of India and Ors. [1994] 3 SCR 1034 and Steel Authority of India Ltd. (supra). It has also been contended that the reference made undoubtedly did give an impression that the Union had accepted their status as contractual workers and were merely seeking regularization of their services but in the light of the pleadings of the parties, the evidence led before the Industrial Tribunal and the arguments raised by the learned Counsel in all the fora, it was clear that the examination was not limited to this investigation but the broader question as to whether the members of Union were employees of the ONGC or of the contractors was the core issue and as the parties were fully aware of this basic fact, it was not open to the ONGC to contend that the reference was bad. It has further been highlighted that reliance by the appellant on Uma Devi's case was misplaced as this matter had been clarified and explained by this Court in U.P. State Electricity Board v. Pooran Chandra Pandey (2008) ILLJ 1021 SC . 6. We first take up Mr. Dave's arguments with regard to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cised with great circumspection. It is not for the High Court to constitute itself into an appellate court over tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to re-adjudicate upon questions of fact decided by those tribunals. That the questions decided pertain to jurisdictional facts does not entitle the High Court to interfere with the findings on jurisdictional facts which the Tribunal is well competent to decide. Where the circumstances indicate that the Tribunal has snatched at jurisdiction, the High Court may be justified in interfering. But where the tribunal gets jurisdiction only if a reference is made and it is therefore impossible ever to say that the Tribunal has clutched at jurisdiction, we do not think that it was proper for the High Court to substitute its judgment for that of the Labour Court and hold that the workman had raised no demand with the management. 9. We are therefore of the opinion that in the light of the facts that have come on record we find no perversity or patent illegality in the Award of the Industrial Tribunal and on the contrary must appreciate that it has m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yer. Whether the contract labourers have become the employees of the principal employer in course of time and whether the engagement and employment of labourers through a contractor is a mere camouflage and a smokescreen, as has been urged in this case, is a question of fact and has to be established by the contract labourers on the basis of the requisite material. It is not possible for the High Court or this Court, while exercising writ jurisdiction or jurisdiction under Article 136 to decide such questions, only on the basis of the affidavits. It need not be pointed out that in all such cases, the labourers are initially employed and engaged by the contractors. As such at what point of time a direct link is established between the contract labourers and the principal employer, eliminating the contractor from the scene, is a matter which has to be established on material produced before the court. Normally, the Labour Court and the Industrial Tribunal, under the Industrial Disputes Act are the competent fora to adjudicate such disputes on the basis of the oral and documentary evidence produced before them. Likewise in Steel Authority of India's case (supra) this is what the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were a Euclid's formula without seeing the facts of a particular case. As observed by this Court in Bhavnagar University's case (supra) and Bharat Petroleum Corporation Ltd.'s case (supra) , a little difference in the precedential value of a decision. Hence, in our opinion, Uma Devi's case (supra) cannot be applied mechanically without seeing the facts of a particular case, as a little difference in facts can make Uma Devi's case (supra) inapplicable to the facts of that case. In the present case the writ petitioners (respondents herein) only wish that they should not be discriminated against vis-a-vis the original employees of the Electricity Board since they have been taken over by the Electricity Board in the same manner and position . Thus, the writ petitioners have to be deemed to have been appointed in the service of the Electricity Board from the date of their original appointments in the Society. Since they were all appointed in the society because 4.5.1990 they cannot be denied the benefit of the decision of the Electricity Board dated 28.11.1996 permitting regularization of the employees of the Electricity Board who were working from before 4.5.1990. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore of the opinion that in the light of the aforesaid observations, Mr. Dave's argument that the workmen being on a contractual, were not entitled to any relief, cannot be accepted and the large number of judgments cited by Mr. Dave, on this aspect, cannot be applied to the facts of the case. 16. We have also considered Mr. Dave's argument with regard to the nature of the reference. We re-produce the reference as made: Whether the demand of the ONGC `Contractual Workers' Union, Silchar on the management of ONGC, Cachar Project, Silchar for regularization of the services of the contractual workers is justified. If so, what relief are the workmen concerned entitled to? 17. It is true that the underlined portion of the reference prima facie does give the impression that it presupposes that the workmen were contractual employees and the only dispute was with regard to the regularization of their services. It is equally true that the reference appears to have been rather loosely worded but as observed by the Industrial Tribunal and the Division Bench, both parties were aware of the real issues involved in the light of the protracted litigation and the efforts made during co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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