V.GOPALA GOWDA, CJ & B.N.MAHAPATRA, J. (W.P.(C) NO.8569 OF 2006 (Decided on 20.04.2011) INDIAN OIL CORPORATION LTD. ……… Petitioner. .Vrs. UNION OF INDIA & ORS. …. …… Opp.Parties, CONSTITUTION OF INDIA, 1950 – ART.226. For Petitioner - Mr. Arijeet Choudhury, Sr. Advocate M/s. Sanjit Mohanty, N.C.Sahoo, S.Pattnaik, P.K.Muduli, S.Mohanty & A.Mohapatra. For Opp.Parties - Mr. J. Katikia, Central Govt. Counsel for O.P.No.s1 and 2 M/s. B.P.Tripathy, R.Acharya, S.R.Parija, U.N.Sahoo & S.Hidayatulla(for O.P.No.3) V.GOPALA GOWDA, CJ . The petitioner, Indian Oil Corporation Limited represented by Chief Employee Relations Managers and a Constituted attorney of the Corporation, has filed this writ petition seeking for issuance of a writ of certiorari to quash the impugned order of reference dated 17.4.2006 made by opposite party no.1 in exercise of its power conferred by clause (d) of sub-section (1) and sub-section (2A) of section 10 of the Industrial Disputes, Act,1947 (hereinafter called as the ‘ID Act’ in short) in referring the existing industrial dispute for adjudication to the opposite party no.2 Central Government Industrial Tribunal-cum-Labour Court, Bhubaneswar, to give its award within a specified period of three months and for issuance of a writ of prohibition prohibiting the Tribunal from processing any further with the impugned order of reference and call upon the opposite parties to show as to why any other writ direction and/or order should not be issued giving full relief to the petitioner urging various facts and legal contentions. 2. Brief facts are stated for the purpose of appreciating the rival legal contentions urged on behalf of the parties with a view to find out as to whether the petitioner is entitled to the relief sought to quash the impugned order of reference. It is stated that the petitioner is a Government company within the meaning of section 617 of the Companies Act, 1956 (hereinafter called the Corporation in short). It has undertaken the business of refining and distributing petroleum products. It has got refinery and oil storage department in various parts of India including at Jatni in the district of Khurda in the State of Orissa. Its establishment at Jatni is registered in accordance with the provisions of the Contract Labour (Regulation & Abolition) Act, 1970. The petitioner engages contractor in various areas of its activities at the Jatni Depot. One M/s.Shakti Marketeers, a proprietary firm of S.K.Mohapatra was engaged as handling contractor at its Jatni depot in terms of a contract dated 12.12.2000 which was effective from 17.12.2000 initially for a period of one year. The said contract was subsequently extended till 29.2.2004 on which date it was terminated. The said contractor employed less than ten persons. Therefore, it was not required to take out a licence in accordance with the Contract Labour (Regulation & Abolition) Act. This fact was mentioned in a letter dated 22.12.2000 from Shakti Marketeers to the petitioner vide Annexure-3. It had received a letter dated 14.10.2003 addressed to the Assistant Labour Commissioner (Central), Bhubaneswar by opposite party no.5 (hereinafter called as the Trade Union) raising a dispute regarding refusal of work to opposite party no.3 wherein it is stated that he was an employee of Samarendra Mohapatra, proprietor of M/s. Shakti Marketeers. It is stated that the said Assistant Labour Commissioner initiated conciliation proceedings and wrongly sent a notice dated 3.11.2003 to the petitioner asking it to attend such proceedings in which notice it has been described that the dispute is one “between the management of M/s. Shakti Marketeers, contractor of M/s. IOC Ltd. Vs. AOTLTWU, opposite party no.5 over illegal termination of opposite party no.3. The petitioner attended the proceedings on 18.11.2003 and stated its contention as set out in its letter of the said date addressed to the Assistant Labour Commissioner and also written a letter dated 11.12.2003 to Shakti Marketeers advising it to attend the conciliation proceedings as directed by the Assistant Labour Commissioner and informed the same to the Assistant Labour Commissioner by its letter dated 22.12.2003. Copy of the aforesaid letter is produced as Annexure-7 and the written submission of Shakti Marketeers as contained in their letter filed before the Assistant Labour Commissioner on 27.7.2004 is produced at Annexure-8. As per the said letter Annexure- 8, it is the case of the contractor that opposite party no.3 was his workman. Despite the same, the Assistant Labour Commissioner continued to send notice of the conciliation proceedings to the petitioner unnecessarily to which the Corporation reiterated its stand. Conciliation proceeding ended in failure and failure report was submitted on 28/30.11.2005 by the Assistant Labour Commissioner to opposite party no.1 and opposite party no.1 on the basis of the failure report and perusal of the record of the conciliation officer in exercise of its statutory power under the provisions of clause (d) of sub-section (1) and sub-section (A) of Section 10 of the Industrial Disputes Act, 1947 referred to the Tribunal for adjudication of the existing dispute in relation to opposite party no.3 regarding illegal termination of his service with effect from 17.6.2003 and to submit the award within a period of three months. Correctness of the same is challenged in this writ petition urging the following grounds : 3. It is contended by the learned Counsel that the dispute impleading the petitioner is bad in law as there is no existing dispute between opposite party no.3 and the petitioner-Corporation as opposite party nos.3 and 5 have not raised dispute against the petitioner but they raised the dispute against opposite party no.4. Therefore, it is urged that the Tribunal has no jurisdiction to entertain the dispute and adjudicate the same and pass the award. It is further contended that opposite party no.2 has adjudicated the dispute with regard to relationship between the Corporation and the opp.party no.3 is evident from the Schedule to the reference referred to the Tribunal for adjudication. 4. The correspondence made by opposite party no.5, the claim made by opposite party no.3 and the counter filed by opposite party no.3 would clearly go to show that there is inconsistent and contradictory plea which is a relevant aspect of the matter according to the judgment of the Supreme Court in the Delhi Cloth and General Mills Co.Ltd. V. the Workmen and others, AIR 1967 SC 469 para 16. Further dispute between the Corporation and opposite party no.3 does not exist as the claim made by opposite 2 party nos. 3 and 5 is against opposite party no.4 who is the contractor of the Corporation and, therefore, dispute against the Corporation is not maintainable in law. In support of the above contention, he has placed strong reliance upon the judgment of the Supreme Court in Steel Authority of India Ltd. and others V. National Union Water Front Workers and others, AIR 2001 SC 3527. It is further contended that even assuming for the sake of argument that opposite party no.3 was working under the Corporation through opposite party no.4 as their contractor, the Corporation being a Government of India Undertaking is a State under Article 12 of the Constitution of India and as per the law laid down by the Supreme Court in Steel Authority of India Ltd. V. Union of India and others, AIR 2006 SC 3229, the question of regularization or participation of the workman as contractor employee is not permissible in law. Further placing reliance upon the decision in the case of Secretary, State of Karnataka & Ors. Vs. Umadevi & Ors., reported in (2006) 4 SCC 1 it is contended by the learned Senior Counsel that the opposite party no.3 is not entitled for regularization of his services and therefore the reference made by the Union of India is bad in law. 5. Opposite party no.3 sought to justify the order of reference by filing a detailed statement of counter traversing the petition averments by way of affidavit. It is stated that the writ petition filed by the Corporation is devoid of merit and is liable to be dismissed. It is further stated that opposite party no.3 was allowed to work in the Jatni depot of the Corporation with effect from 17.10.1994 as office boy initially much before the opposite party no.4 contractor was entered in the year 2000. He had worked for more than 8 years continuously and sincerely and his service was terminated illegally with effect from 17.6.2003 in the guise of refusal of employment by both the principal employer and the contractor. In support of this he has placed reliance on the experience certificate issued by the Depot Manager in his favour on 15.4.1997. It is stated that termination of his service with effect from 16.6.2003 is in violation of section 25F of the Industrial Disputes Act and he has been victimized for his trade union activities and membership of opposite party no.5. Therefore, it is contended that the same is a colourable exercise of employer’s right. Industrial dispute was raised which was conciliated upon by he Assistant Labour Commissioner (Central), Bhubaneswar and on account of the adamant attitude of the petitioner-Corporation it ended in failure and reference has been made. It is stated that opposite party no.3 had earlier given a last representation to the Assistant Labour Commissioner (Central), Bhubaneswar describing his bad condition. It is further contended that with a view to avoid liability under the Industrial Disputes Act, Contractor Labour (Regulation and Abolition) Act, 1970, E.P.F., E.S.I. Acts, Minimum Wages Act and to deprive the statutory benefits to it’s employees, the petitioner is continuing the work of regular/permanent and perennial nature of work under the veil of contractor. The petitioner company is the principal employer, therefore, the stand taken in the conciliation proceedings by the petitioner and in this writ petition are wholly untenable in law and the same need not be accepted. 6. With reference to the above said rival legal contentions, following points would arise for consideration: (a) whether the order of reference dated 17.4.2006 is liable to be quashed ? (b) whether the framing of the point in the schedule of the order of reference amounts to adjudication of the dispute ? (c) Whether the claim statement filed by opposite party no.3 is contradictory plea to the pleadings in the claim petition filed by opposite party nos.3 and 5 before the Conciliation Officer and this Court ? (d) What relief ? 3 7. All these points are necessary to be taken together and answered as they are inter-related. It is an undisputed fact that the Corporation is registered under the Contract Labour (Regulation and Abolition) Act, 1970. It is also an undisputed fact that opposite party no.4 was a contractor of the Corporation. It is the case of opposite party no.3 that much prior to the contract was given to opposite party no.4, opposite party no,3 was working under the Corporation’s Jatni depot as office boy with effect from 17.10.1994, but the opposite party no.4 entered as contractor in the year 2000. His service came to be terminated on 17.6.2003 challenging the correctness of the same dispute was raised by opposite party nos.3 and 5 before the Assistant Labour Commissioner Central, Bhubaneswar pursuant to which conciliation proceedings were held. In the notice issued to opposite party no.4 by the Assistant Labour Commissioner the description of the dispute was between the management of opposite party no.3 and opposite party no.4. Factually and legally the Corporation is the principal employer. Therefore, termination of the service of opposite party no.3 made by the contractor since he was working from 1994 till the date of termination prima facie the opposite party no.1 has come to the conclusion on the basis of the pleadings and record made available before the Assistant Labour Commissioner in the conciliation proceeding, the record which is made available for our perusal would clearly indicate that the document Annexure-11 issued by the Corporation’s Marketing Division, Eastern Region evidence the fact that the name of opposite party no.3 is entered in the said document. These are all questions of fact required to be gone into by the Tribunal at the time of adjudication. Therefore, whether opposite party no.3 is an employee of the contractor or the Corporation is a mixed question of fact and law required to be examined for which evidence is required to be adduced by the parties. Therefore, on the basis of the pleadings, this Court can not record a finding that there is no existing industrial dispute between the petitioner and opposite party no.3 for the reason that the claim petition filed by opposite party nos.4 and 5 before the Conciliation Officer and the notice issued by him to the Corporation describe that the dispute is between opposite party no.3 and opposite party no.4. Such technical contention urged by the learned Senior Counsel on behalf of the petitioner can not be accepted in view of the documents available in the records which are produced by the opposite party no1. Further reliance placed upon the judgment of the Supreme Court in the case of Sindhu Resettlement Corporation Ltd. V. Industrial Tribunal, Gujarat and others, AIR 1968 SC 529 paragraph-4 wherein the Supreme Court made observation that in the claims put forward before the Management of the appellant, requested for payment of retrenchment compensation and did not raise any dispute for reinstatement. Since no such dispute about reinstatement was raised by either of the respondents before the management of the appellant, it is clear that the State Government was not competent to refer a question of reinstatement as an industrial dispute for adjudication by the Tribunal. The dispute that the State Government could have referred competently was the dispute relating to payment of retrenchment compensation by the appellant to respondent no.3 which had been refused. In view of the said observation, the stand taken by opposite party nos.3 and 5 in the claim petition before the Conciliation Officer and the affidavit filed by opposite party no.3 in this proceeding that the reference is incompetent and therefore the same is liable to be quashed is wholly untenable in law as the said decision is misplaced not applicable to the fact situation. 8. As could be seen from the pleadings and the failure report submitted by the Assistant Labour Commissioner, the termination of service was done without following 4 the provision of Section 25-F and the conciliation having failed and considering the failure report the appropriate Government exercised its power under section 10 and made the reference to the Industrial Tribunal for adjudication of the existing industrial/Labour Court dispute between the parties. Therefore, the points of dispute formulated in the Schedule is perfectly legal and valid and the appropriate Government is competent to make the reference. Whether it is an industrial dispute or not is a fact to be ascertained by the Tribunal/Labour Court in the enquiry required to be conducted under the I.D. Act. 9. For the reasons stated supra, the various other pleas which are purely technical in nature have no application to the fact situation of the case. Further reliance placed upon Steel Authority of India Ltd. V. Union of India (supra) and Secretary State of Karnataka and others v. Umadevi (3), 2006(4) SCC 1 have no application to the fact- situation, as the points of dispute referred to the Tribunal/Labour Court is not for regularization of the services of opposite party no.3, but the justification of the termination of his services. 10. In view of what has been stated above, none of the grounds urged in this writ petition in support of the case of the Corporation is tenable in law. Therefore, the same can not be accepted. The writ petition is devoid of merit. The petitioner unnecessarily questioned the validity of the order of reference and got the matter stayed for more than four and half years. Therefore, the workman has been put to great hardship in not getting the dispute adjudicated by the Tribunal. Therefore, the writ petition is dismissed with cost of Rs.5000.00. The Tribunal is directed to see that the reference is adjudicated within three months from the date of receipt of copy of this order and the parties shall co-operate. Writ petition dismissed. 5