1. Heard Sri Rohan Gupta, learned Counsel for the Petitioner; Sri B.P. Singh, learned Senior Advocate, assisted by Sri P.H. Vashishth, learned Counsel appearing for Respondent No.4 and; Sri Brijesh Kumar, learned Counsel appearing for Respondent Nos.1, 2 & 3.
2. Present Writ Petition has been filed against the order of the Deputy Chief Labour Commissioner (Central), Kanpur, dated 26.10.2021 whereby the said authority has acted in exercise of its powers under Section 10(1)(d) of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act') and referred the following dispute for adjudication to the Central Government Industrial Tribunal-cum-Labour Court, Kanpur:
“Whether the action of Management of Indian Institute of Technology, Kanpur in terminating the services of Shri Ghanshyam Pandey S/o. Late Udai Shanker Pandey, Clerk-cum-Typist w.e.f. 9.7.1989, is Legal and justified ? If not, to what relief the Workman is entitled to and from which date ?”
3. Learned Counsel for the Petitioner would submit, the Respondent Workman was engaged as a temporary Lower Division Clerk at the Petitioner institution on 9.1.1987 for a fixed term of one year on fixed payment of Rs. 600 per month. That engagement made against the specified project was later renewed against another project w.e.f. 9.1.1988 to 8.1.1989, against revised fixed payment of Rs. 650 per month. Later, that engagement was extended and it lasted till 8.7.1989, against fixed payment of Rs. 1000 per month. It is not in dispute that Respondent No.4/Workman did not work for any length of time, in any capacity since 9.7.1989. In that regard, the said Respondent-Workman had first approached this Court in Civil Misc. Writ Petition No.12415 of 1989 (Ghanshyam Pandey v. Director, Indian Institute of Technology, Kanpur and another) seeking following relief:
“(i) To issue a Writ, order or direction in the Nature of Mandamus directing the Respondents not to dispense with the service of the Petitioner as Lower Division Clerk and pay the regular salary of Lower Division Clerk as admissible in law.”
That Writ Petition was filed on 4.7.1989. However, on 20.10.1989, an amendment application was filed whereby the following relief was also added by way of amendment:
“(iv) To issue a suitable Writ, directions or order commanding the Respondents to treat the Petitioner in their employment as if he has not been kept out of employment since 8.7.1989 and also to pay him full Wages from 8.7.1989 to the date of his reinstatement together with continuity of service.”
4. After exchange of Affidavits, the aforesaid Writ Petition was decided by Judgment, dated 5.12.1998. Therein, this Court reached the following conclusions:
(i) The Appointment Letter relied upon by the Petitioner, dated 9.1.1987 (copy Annexure CA-1 of the Counter Affidavit) made it clear that it was a temporary engagement against consolidated payment of Rs. 600 per month;
(ii) The engagement could be discontinued without notice;
(iii) The Respondent-Workman could be transferred to any other project, etc;
(iv) The engagement was on a temporary basis for a fixed period;
(v) The Respondent-Workman had applied for regular appointment subsequent to his aforesaid engagement against Advertisement No.3/87, dated 6.2.1987. However, he was unsuccessful;
(vi) The claim of violation of Section 25-F of the Act or 6-N of the U.P. Act was unfounded. The Respondent-Workman was found to have been engaged purely on ad hoc/temporary basis for a fixed term, for project work by the research and development department, of the Petitioner Institution; and
(vii) Upon perusal of the minutes of the selection committee (with respect to the Advertisement, dated 6.2.1987), referred to above, the Writ Court found, the Respondent-Workman was not entitled to any benefit, against plea of certain other junior workman (being continued in engagement), as he had worked on temporary basis or Daily Wage basis under a project for a fixed term. The distinction of status and source of salary payment of two types of Employees was also considered. The Writ Petition was dismissed.
5. Against the above order, the Respondent-Workman preferred Intra-Court Appeal being Special Appeal No.1024 of 2001, which was also dismissed by Order, dated 11.9.2006. A Review Petition was filed by the Respondent-Workman. In that Supplementary Affidavit appears to have been filed (copy Annexure RA-4 of the Rejoinder Affidavit). By means of Paragraph Nos.8 & 9 of that Affidavit, the Respondent-Workman again set up a plea of having been appointed against a regular post.
6. The Review Petition was also rejected by Order, dated 11.1.2011 passed by the Division Bench of this Court. It reads as below:
“The review application was earlier dismissed on 24.10.2009, as the Court found it infructuous in spite of recalling the same. Now, none appears on behalf of the Appellant in spite of repeated calls.
Therefore, there is no other alternative before us but to refuse to modify the order passed by the Division Bench of this Court presided by one of us (Hon'ble Amitava Lala, J.) on 11.9.2006. The order is as follows:
“Upon hearing learned Counsel appearing for the parties, we do not find any justification to keep the special Appeal pending and is disposed of in view of the reasons given herein below. The dispute is mainly with regard to the fact whether the Petitioner was appointed in a sanctioned post and subsequently transferred to a project or he was appointed in a project, which will be completed by the efflux of time.
Upon going through the record we find that the Petitioner's/Appellant's appointment was in the project. Therefore, we do not find any merit to justify to pass any favourable order in favour of the Petitioner. Having so the Special Appeal stands dismissed.
However, no order is passed as to Costs.”
We do not find any merit in the review application.
Therefore, the review application is dismissed on merit, however, without imposing any Cost.”
7. The matter rested there for about nine years. Thereafter, the Respondent-Workman moved an application seeking reference of Industrial Dispute. The said application is dated 25.6.2020. In that application, by means of Paragraph No.3 it was stated, the Petitioner had been regularly selected on the post of LDC-cum-typist on 9.1.1987. Further, on 18.7.2016, he realised, many persons who were appointed with the Petitioner and some who were junior to him, had been given permanent status and would also get retiral benefit. Therefore, it was further alleged that the Affidavits filed by the Petitioner establishment in the earlier Writ Petition were false. Last, violation of Section 25-F, 25-G, 25-H & 25-T of the Act, was pleaded.
8. On its part, the Petitioner establishment objected to the reference sought, relying on the earlier decision of this Court. In such circumstances, the impugned reference has arisen.
9. Learned Counsel for the Petitioner would submit, though the power to make a reference is an administrative power yet, there must be seen to exist an Industrial Dispute before the same may be referred to adjudication. In the instant case, the Respondent-Workman had approached this Court by means of an earlier Writ Petition being Civil Misc. Writ Petition No.12415 of 1989. Therein (upon amendment), he sought relief against dispensation of service and further sought, positive directions for payment of regular salary together with Back Wages upon reinstatement after 8.7.1989. That Writ Petition was dismissed on merits and not on account of alternative remedy. The rights of the Respondent-Workman stood determined and adjudicated finally, upon dismissal of Intra-Court Appeal.
10. Upon firm adjudication made by this Court, the dispute espoused by the Respondent-Workman stood decided. In fact, upon that adjudication it had to be recognized that there did not exist/survive any Industrial Dispute. In this regard, reliance has been placed on a decision of Three-Judge Bench of the Supreme Court in Nedungadi Bank Ltd. v. K.P. Madhavankutty & others, 2000 (2) LLN 21 (SC): 2000 (2) SCC 455; U.P. State Road Transport Corpn. v. Babu Ram, 2006 (5) SCC 433; and Director, Food and Supplies, Punjab and anr. v. Gurmit Singh2007 (5) SCC 727.
11. In short, it has been submitted, it is not the issue of delay in raising the dispute but non-existence thereof that warrants interference by this Court, in exercise of extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.
12. The Writ Petition has been vehemently opposed by learned Senior Advocate appearing for the Respondent. He would submit, it is wrong to say that the Respondent-Workman was first engaged in the year 1987. Referring to the passages of the earlier decision of the learned Single-Judge in Civil Misc Writ Petition No.12415 of 1989, it has been shown, the Respondent Workman had been engaged even prior to 1987 though not against any permanent post or regular sanctioned post. Then, much emphasis has been laid on the Appointment Letter, dated 9.1.1987 issued to the Respondent Workman, to submit the said Respondent-Workman had been engaged after following due selection process for a regular post. For ready reference, the said letter is extracted herein below:
"Indian Institute of Technology Kanpur Research & Development Office
Dr. RN Biswas IIT Post Office
Dean, Research & Development Kanpur-208016
IIT Post Office
Kanpur — 208016
Date: Jan. (SIC).09.1987
Mr. G. Pandey
C/C Mr. SD Singh
Dear Mr. Pandey,
This has reference to your application for the post of LDC-Cum-TYPIST out of the R & D Funds.
I am glad to inform you that it has been decided to appoint you on the post of LDC-CUM-TYPIST in the Project No.DOE/EE(KRS)/86-87/55 on a consolidated salary of 600 per month for a period of one year with effect from the date of your joining on the following terms and conditions.
The appointment is purely temporary and is subject to termination without notice. You may be transferred to any other project or deputed to any section of the Institute for assisting the work pertaining to R & D Office.
You will be entitled to Casual Leave and Annual Leave as admissible under rules.
13. Then, referring to the new facts brought by means of the reference application (noted above), as part of his submissions, it has been stated, the plea of violation of Sections 25-F, 25-G, 25-H & 25-T of the Act first became available to the Respondent-Workman only in the year 2016 and not before. Till then, the Respondent-Workman was labouring under a mistaken impression of fact due to concealment of correct facts by the Petitioner institution. Therefore, adjudication is sought on such new facts with respect to rights not adjudicated in the Writ Petition. The reference order must survive.
14. Second, it has been stated, the conduct of the Petitioner had been fraudulent in not disclosing the correct status of the Respondent-Workman's engagement, at the relevant time. Since that status was concealed from the Court in the earlier adjudication made by it, the Judgment obtained by the Petitioner was based on fraud practised by it. Therefore, the same is stated to be of no legal consequence. In that, reliance has been placed on a decision of the learned Single Judge of this Court in Writ-B No.42060 of 2015 (Shashi Prabha v. Deputy Director of Consolidation Budaun and 3 others.), decided on 13.5.2020.
15. Third, it has been submitted, the delay in approaching the Labour Court may never defeat the reference. In the first place, the Writ Court may remain disinclined to interfere with the reference order at the initial stage as it does not cause any prejudice to any party. The Petitioner would be at liberty to raise all active Defence before the Labour Court including as to any prejudice caused owing to the conduct of the Respondent-Workman. If such plea is established, the relief claimed by the Respondent-Workman may be modified appropriately, by the Tribunal. Here, reliance has been placed on another decision of the learned Single Judge in Ircon International Ltd. through Chairman & Managing Director v. Bipin and others, 2018 (157) FLR 825.
16. Having heard learned Counsel for the parties and having perused the record, in the first place, there can be no dispute to the approach to be adopted by the Writ Court in such matters. As a rule, the Writ Court does not interfere with a reference order for the reason of such order being purely administrative. Such orders, only set in motion, the adjudicatory procedure by making the reference and thus conferring the jurisdiction on the Labour Court to deal with it. Only thereafter, the parties enter into contest by filing their respective Written Statement and Replication statement; issues are framed; evidence led; parties are heard and; award pronounced.
17. Second, again by way of general rule, the Writ Court does not readily quash such administrative orders and thereby prevent/injunct the Industrial Tribunal to enter into adjudication of the Industrial Dispute being claimed to exist, the reference order arises belatedly i.e. after efflux of (what may prima facie appear to be), reasonable time, it is a clearly recognized principle that the Labour Court may at the time of granting relief mould the relief looking into the delay and prejudice it may have caused to the Employer.
18. Third, it is also a fact that industrial law is a piece of welfare legislation — to protect the rights of the weaker of the two parties.
19. That said, there is no embargo on the Writ Court to quash a wholly inappropriate or undesirable or invalid reference order, in case no Industrial Dispute exists. The rule referred to above is a rule of self restraint, exercised by the Writ Court. It exists in the interest of justice.
20. In Management of the Express Newspapers (P) Ltd. Madras v. Workers and others, AIR 1963 SC 569, it was observed as below:
"10. The true legal position in regard to the jurisdiction of the High Court to entertain the Appellant's Petition even at the initial stage of the proceedings proposed to be taken before the Industrial Tribunal, is not in dispute. If the action taken by the Appellant is not a lockout but is a closure, bona fide and genuine, the dispute which the Respondents may raise in respect of such a closure is not an Industrial Dispute at all. On the other hand, if, in fact and in substance, it is a lockout, but the said action has adopted the disguise of a closure, and a dispute is raised in respect of such an action, it would be an Industrial Dispute which industrial adjudication is competent to deal with. The Appellant contends that what it has done is a closure and so, the dispute in respect of it cannot be validly referred for adjudication by an Industrial Tribunal. There is no doubt that in law, the Appellant is entitled to move the High Court even at the initial stage and seek to satisfy it that the dispute is not an Industrial Dispute and so, the Industrial Tribunal has no jurisdiction to embark upon the proposed Enquiry.
11. There is also no doubt that the proceedings before the Industrial Tribunal are in the nature of quasi-judicial proceedings and in respect of them a Writ of Certiorari can issue in a proper case. If the Industrial Tribunal proceeds to assume jurisdiction over a non-industrial dispute, that can be successfully challenged before the High Court by a Petition for an appropriate Writ, and the power of the High Court to issue an appropriate Writ in that behalf cannot be questioned.
15. The High Court undoubtedly has jurisdiction to ask the Industrial Tribunal to stay its hands and to embark upon the preliminary Enquiry itself. The jurisdiction of the High Court to adopt this course cannot be, and is indeed not disputed. But would it be proper for the High Court to adopt such a course unless the ends of justice seem to make is necessary to do so? Normally, the questions of fact, though they may be jurisdictional facts the decision of which depends upon the appreciation of evidence, should be left to be tried by the Special Tribunals constituted for that purpose. If and after the Special Tribunals try the preliminary issue in respect of such jurisdictional facts, it would be, open to the aggrieved party to take that matter before the High Court by a Writ Petition and ask for an appropriate Writ. Speaking generally, it would not be proper or appropriate that the initial jurisdiction of the Special Tribunal to deal with these jurisdictional facts should be circumvented and the decision of such a preliminary issue brought before a High Court in its writ jurisdiction. We wish to point out that in making these observations, we do not propose to lay down any fixed or inflexible Rule; whether or not even the preliminary facts should be tried by a High Court in a Writ Petition, must naturally depend upon the circumstances of each case and upon the nature of the preliminary issue raised between the parties. Having regard to the circumstances of the present dispute, we think the Court of Appeal was right in taking the view that the preliminary issue should more appropriately be dealt with by the Tribunal. The Appeal Court has made it clear that any party, who feels aggrieved by the finding of the Tribunal on this preliminary issue may move the High Court in accordance with law. Therefore, we are not prepared to accept Mr. Sastri's argument that the Appeal Court was wrong in reversing the conclusion of the Trial Judge insofar as the trial Judge proceeded to deal with the question as to whether the action of the Appellant was a closure or a lockout.“(Emphasis supplied)
21. In Western India Match Co. Ltd. v. Western India Match Co. Workers Union and others, 1970 (1) SCC 225, while upholding the reference made, of an Industrial Dispute, the Supreme Court observed has under:
“8. From the words used in Section 4(k) of the Act there can be no doubt that the legislature has left the question of making or refusing to make a reference for adjudication to the discretion of the Government. But the discretion is neither unfettered nor arbitrary for the section clearly provides that there must exist an industrial dispute as defined by the Act or such a dispute must be apprehended when the Government decides to refer it for adjudication. No reference thus can be made unless at the time when the Government decides to make it an Industrial Dispute between the Employer and his Employees either exists or is apprehended. Therefore, the expression 'at any time', though seemingly without any limits, is governed by the context in which it appears. Ordinarily, the question of making a reference would arise after conciliation proceedings have been gone through and the conciliation Officer has made a failure report. But the Government need not wait until such a procedure has been completed. In an urgent case, it can 'at any time' i.e. even when such proceedings have not begun or are still pending, decide to refer the dispute for adjudication. The expression 'at any time' thus takes in such cases as where the Government decides to make a reference without waiting for conciliation proceedings to begin or to be completed. As already stated, the expression 'at any time' in the context in which it is used postulates that a reference can only be made if an Industrial Dispute exists or is apprehended. No reference is contemplated by the Section when the dispute is not an Industrial Dispute, or even if it is so, it no longer exists or is not apprehended, for instance, where it is already adjudicated or in respect of which there is an agreement or a settlement between the parties or where the industry in question is no longer in existence.“(Emphasis supplied)
22. Then, in Nedungadi Bank Ltd. v. K.P. Madhavankutty and others, 2000 (2) LLN 21 (SC): 2000 (2) SCC 455, the Supreme Court cautioned — the power to refer an Industrial Dispute should not be exercised in a mechanical manner. It may not be exercised to revive a settled matter. It was thus held:
“6. Law does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters, which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the Respondent from service. At the time reference was made no Industrial Dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other Employees, who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the Respondent for raising an Industrial Dispute was ex facie bad and incompetent.
7. In the present Appeal it is not the case of the Respondent that the Disciplinary proceedings, which resulted in his dismissal, were in any way illegal or there was even any irregularity. He availed his remedy of Appeal under the rules governing his conditions of service. It could not be said that in the circumstances an Industrial Dispute did arise or was even apprehended after a lapse of about seven years of the dismissal of the Respondent. Whenever a Workman raises some dispute it does not become an Industrial Dispute and the appropriate Government cannot in a mechanical fashion make the reference of the alleged dispute terming it as an Industrial Dispute. The Central Government lacked power to make reference both on the ground of delay in invoking the power under Section 10 of the Act and there being no industrial dispute existing or even apprehended. The purpose of reference is to keep industrial peace in an establishment. The present reference is destructive to the industrial peace and defeats the very object and purpose of the Act. The Bank was justified in thus moving the High Court seeking an order to quash the reference in question.“
23. Again, in National Engineering Industries Ltd. v. State of Rajasthan and others, 1999 (4) LLN 1185 (SC): 2000 (1) SCC 371, the Supreme Court observed:
“24. It will be thus seen that the High Court has jurisdiction to entertain a Writ Petition when there is an allegation that there is no Industrial Dispute and none apprehended which could be the subject-matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its Writ jurisdiction. It is the existence of the Industrial Tribunal (sic dispute) which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no Industrial Dispute in existence or apprehended the appropriate Government lacks power to make any reference.”(Emphasis supplied)
24. Later still, in Sapan Kumar Pandit v. U.P. State Electricity Boad and others, 2001 (3) LLN 861 (SC): 2001 (6) SCC 222, the following conclusion was reached by the Supreme Court, against exercise of administrative power — to refer a non-existent Industrial Dispute.
“8. The above section is almost in tune with Section 10 of the Industrial Disputes Act, 1947, and the difference between these two provisions does not relate to the points at issue in this case. Though no time-limit is fixed for making the reference for a dispute for adjudication, could any State Government revive a dispute which had submerged in stupor by long lapse of time and rekindle by making a reference of it to adjudication? The words 'at any time' as used in the section are prima facie indicator to a period without boundary. But such an interpretation making the power unending would be pedantic. There is inherent evidence in this sub-section itself to indicate that the time has some circumscription. The words 'where the Government is of opinion that any Industrial Dispute exists or is apprehended' have to be read in conjunction with the words 'at any time'. They are, in a way, complementary to each other. The Government's power to refer an Industrial Dispute for adjudication has thus one limitation of time and that is, it can be done only so long as the dispute exists. In other words, the period envisaged by the enduring expression 'at any time' terminates with the eclipse of the Industrial Dispute. It, therefore, means that if the dispute existed on the day when the reference was made by the Government, it is idle (sic ideal) to ascertain the number of years which elapsed since the commencement of the dispute to determine whether the delay would have extinguished the power of the Government to make the reference.
9. Hence, the real test is, was the Industrial Dispute in existence on the date of reference for adjudication? If the answer is in the negative then the Government's power to make a reference would have extinguished. On the other hand, if the answer is in positive terms the Government could have exercised the power whatever be the range of the period which elapsed since the inception of the dispute. That apart, a decision of the Government in this regard cannot be listed (sic) on the possibility of what another party would think, whether any dispute existed or not. The Section indicates that if in the opinion of the Government the dispute existed then the Government could make the reference. The only authority which can form such an opinion is the Government. If the Government decides to make the reference, there is a presumption that in the opinion of the Government, there existed such a dispute." (Emphasis supplied)
25. Most of the above decisions were then noticed in Prabhakar v. Joint Director, Sericulture Department and another, 2015 (4) LLN 16 (SC): 2015 (15) SCC 1. Thereafter, the Supreme Court concluded as below:
"28. The aforesaid case law depicts the following:
28.1. The law of limitation does not apply to the proceedings under the Industrial Disputes Act, 1947.
28.2. The words "at any time" used in Section 10 would support that there is no period of limitation in making an order of reference.
28.3. At the same time, the appropriate Government has to keep in mind as to whether the dispute is still existing or live dispute and has not become a stale claim and if that is so, the reference can be refused.
28.4. Whether dispute is alive or it has become stale/nonexistent at the time when the Workman approaches the appropriate Government is an aspect which would depend upon the facts and circumstances of each case and there cannot be any hard-and-fast rule regarding the time for making the order of reference." (Emphasis supplied)
26. Therefore, it becomes necessary to examine, if the relief sought through the impugned reference, is beyond the scope of powers of the appropriate Government as may call for any interference by this Court. As discussed above, a reference may be made only where a live Industrial Dispute exists. If the dispute is non-existent, the appropriate Government would also remain within its authority to decline such reference.
27. In the present case, what has been referred for adjudication by the appropriate Government is the question of termination of service claimed by the Respondent-Workman on the post of clerk/typist w.e.f. 9.7.1989. In itself, it does suggest — an Industrial Dispute exists, inasmuch as the Petitioner does not dispute the fact, it had engaged the Respondent-Workman. As to the status and the rights arising therefrom, the parties are at variance. However, the basic fact of engagement made is undisputed.
28. Yet, purely on account of the earlier decision of this Court in Civil Misc. Writ Petition No.12415 of 1989, it is also clear that the Respondent-Workman had not only approached this Court with respect to that dispute arising from such engagement but that he had claimed relief effectively to challenge his disengagement from 9.7.1989 onwards. He had further sought relief in the nature of reinstatement with full Back Wages. This much is clear from bare perusal of the prayer made in the Writ Petition.
29. As to the adjudication made by this Court, as noted above (in the arguments advanced by learned Counsel for the Petitioner), it is also clear, this Court had reached fact conclusions that the Respondent-Workman had been engaged on temporary/fixed term post against projects only, on fixed payment basis. The Respondent-Workman could not establish any better rights at that stage though, he did refer to his original Appointment Letter (the contents of which have been extracted above). Then, the Court specifically repelled the claim made by the Respondent-Workman of having worked for 240 days in one calendar year. It negated the claim made under Section 25-F of the Act or Section 6-N of the U.P. Act. As a contract Employee for fixed term on fixed payment, the Respondent-Workman was found ineligible to such a claim. Then, as to the further fact that the persons appointed alongwith and junior to the Respondent-Workman had been continued in service and granted regularization etc., again, this Court considered that issue and decided it against the Respondent-Workman. That conclusion had been reached on the reasoning that different Employees were engaged on two different status — one by the institute i.e. main establishment drawing salary from the (budgeted) funds of the institute and, the other against research projects that derived independent funding from other sources, made available from time to time. The Respondent-Workman having been engaged for project work only, the plea set up were negated.
30. The Respondent-Workman was not satisfied with the decision of the learned Single-Judge. He carried the matter to the division bench in an Intra-Court Appeal. That was also dismissed. The Review Petition filed thereafter was also dismissed. No further challenge was raised. Nine years passed. In the application filed by the Respondent-Workman, seeking reference, besides the fact no other question had been raised as may be found not covered by the earlier decision of this Court, no fact pleading had arisen before the Court, as may create any doubt as to the completeness of the findings recorded by the Writ Court.
31. Merely because the document in the shape of regularization of certain Employees may have come to the hands of the Respondent-Workman, it would not amount to a fresh dispute h
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aving arisen. If at all, such documents are relevant, the remedy available to the Respondent-Workman would lie elsewhere. However, no Industrial Dispute survived upon the decision of the learned Single-Judge as affirmed by the division bench. It attained finality. 32. The plea of fraud set up by the Respondent-Workman does not merit acceptance. It is a plea of convenience rather than one of conviction. It has been raised to create a technical exception to the otherwise binding adjudication by this Court. Merely because fraud may be alleged, the effective adjudication made does not get annulled, therefore. It is only upon fraud being established as a fact, its effect may be examined in subsequent proceedings. At present, it cannot be said on the strength of the document procured by the Respondent-Workman that any fraud had been committed. In view of difference in nature of engagement and status of Petitioner viz-a-viz other Employees of the Petitioner; the plea of fraud is far fetched and unreal. 33. What was pleaded by the Respondent-Workman (in the earlier Petition) was replied to by the Petitioner (in the present Petition) — by means of Counter Affidavit. If the Respondent-Workman was so aggrieved, he ought to have filed an application in those proceedings, at that stage, to compel the present Petitioner to produce any particular document. That not done, sweeping adverse inference sought to be invoked by the Respondent-Workman is not available, at this belated stage. In any case, as noted above, the information received by the Respondent-Workman under Right to Information Act does not give rise to any new fact or plea. 34. The status of the Respondent Workman having been unequivocally adjudicated — as a temporary Employee engaged on fixed term, against fixed payment, against a project requirement, the same does not loose its binding force because, while making the selection, the Petitioner may have followed a procedure akin to that usually followed in regular selection against a sanctioned post. It is a matter of policy that any Employer may follow while engaging fresh hands. Merely because an Employer such as the present Petitioner chose to follow the procedure similar to that followed for regular appointment against sanctioned posts, while engaging temporary hands for fixed term, no better status or rights could ever arose to the Respondent Workman, for that reason. 35. Therefore, there is no doubt that the adjudication made by the Writ Court on the earlier occasion covered within its sweep, the entire scope of reference now sought by means of the impugned Order. The reference/ administrative order cannot seek to undo the judicial pronouncement made by the Court. Such a reference, if allowed, to exist may only give rise to two fact eventualities. One, the Labour Court may plainly follow the earlier adjudication made by this Court. In that case, reference made would be futile. If the Labour Court were to chose to take a different view in face of the findings recorded by the Writ Court (that have attained finality), such adjudication or award would remain in the teeth of the adjudication of this Court. Therefore, that award would remain inherently defective in jurisdiction as may never be allowed to stand upon adherence to principle of judicial discipline. In fact, no Industrial Dispute exists, as on date. 36. Accordingly, the present Writ Petition is allowed. The reference order is quashed. No order as to Costs, as the matter pertains to a Workman.