OIL AND NATURAL GAS CORPORATION LTD.versusTHE PRESIDENT, OIL FIELD EMPLOYEES ASSOCIATION & ORS.

376                      [2022]REPORTS
               SUPREME COURT   19 S.C.R. 376              [2022] 19 S.C.R.


A             OIL AND NATURAL GAS CORPORATION LTD.
                                       v.
        THE PRESIDENT, OIL FIELD EMPLOYEES ASSOCIATION
                              & ORS.
B                       (Civil Appeal No. 1033 of 2022)
                             FEBRUARY 04, 2022
         [L. NAGESWARA RAO AND ANIRUDDHA BOSE, JJ.]
             Industrial Disputes Act, 1947: If irregularity or illegality
      committed by a Tribunal touches upon the jurisdiction to try and
C
      determine over a subject dispute is altogether beyond its purview,
      that question would go to the root of the matter and it would be
      within the jurisdiction of the superior court to correct such error –
      In the facts of the present case, it is not the question of inherent
      lack of jurisdiction on the part of the Tribunal – The question of
D     jurisdiction, as held by the High Court, was a mixed question of
      fact and law – In the instant case, the settlement of 19th September,
      2016 was a settlement essentially between the contractors and
      workmen engaged by the former – The appellants were only
      consenting parties to the settlement – The dispute related to the
      question as to whether the workmen engaged by the contractors
E
      would be entitled to pay at par with other workmen of the employer
      and demand to that effect was raised with the appellants only – The
      respondent Unions claimed to be, in reality, employees of ONGC
      and the demand was raised upon the latter, and not on their
      contractors – The nature of their demand was thus different
F     particularly as regards the status of the workmen, i.e., their claim
      to be workmen of ONGC – Thus, the settlement of 19th September,
      2016, in which the employers were the contractors cannot bind the
      subject-dispute, where the appellants have been found to be the
      employer on the basis of materials considered by the High Court –
      Engagement by the contractors cannot be the sole basis for
G
      determining status as workmen of contractors – The High Court
      rightly affirmed the findings of the Industrial Tribunal that the
      settlement of 19th September, 2016 did not bind the workmen whose
      cause the respondent Unions were espousing – The finding of the
      Tribunal that the settlement involving implementation of the Fair
H     Wage Policy (FWP) was not just and fair, which finding has been
                                       376
 OILAND NATURAL GAS CORPORATION LTD. v. THE PRESIDENT, OIL              377
              FIELD EMPLOYEES ASSOCIATION


sustained by the High Court, is essentially a finding on facts based    A
on appreciation of evidence – Such finding not tainted by any
element of perversity – The scope of jurisdiction of the Industrial
Court is wide and in appropriate cases it has the jurisdiction even
to make a contract – Directives issued by the Tribunal, as modified
by the High Court are reasonable and cannot be termed as perverse.
                                                                        B
      Dismissing the appeal, the Court
       HELD:1.1 If irregularity or illegality committed by a Tribunal
touches upon the jurisdiction to try and determine over a subject
dispute is altogether beyond its purview, that question would go
to the root of the matter and it would be within the jurisdiction of    C
the superior court to correct such error. In the facts of the present
case, it is not the question of inherent lack of jurisdiction on the
part of the Tribunal. The question of jurisdiction, as held by the
High Court, was a mixed question of fact and law. [Para 15][391-
E-G]
                                                                        D
        1.2 The dispute out of which the present appeal arises
relates to the question as to whether the workmen engaged by
the contractors would be entitled to pay at par with other workmen
of the employer and demand to that effect was raised with the
appellants only. The respondent Unions claimed to be, in reality,
employees of ONGC and the demand was raised upon the latter,            E
and not on their contractors. The nature of their demand was
thus different particularly as regards the status of the workmen,
i.e., their claim to be workmen of ONGC. Thus, the settlement
of 19th September, 2016, in which the employers were the
contractors cannot bind the subject-dispute, where the appellants       F
have been found to be the employer on the basis of materials
considered by the High Court. Their engagement by the
contractors cannot be the sole basis for determining their status
as workmen of contractors. [Para 23][398-D-F]
     1.3. The High Court rightly affirmed the findings of the           G
Tribunal that the settlement of 19th September, 2016 did not bind
the workmen whose cause the respondent Unions are espousing.
The finding of the Tribunal that the settlement involving
implementation of the FWP was not just and fair, which finding

                                                                        H
378            SUPREME COURT REPORTS                     [2022] 19 S.C.R.


A     has been sustained by the High Court, is essentially a finding on
      facts based on appreciation of evidence. [Para 24][398-F-G]
            1.3. The scope of jurisdiction of the Industrial Court is wide
      and in appropriate cases it has the jurisdiction even to make a
      contract. The directives issued by the Tribunal, as modified by
B     the High Court are reasonable and cannot be termed as perverse.
      [Para 25][399-A-B]
            ITC Ltd. Workers’ Welfare Association & Anr. v.
            Management of ITC Ltd. & Anr. (2002) 3 SCC 411:
            [2002] 1 SCR 711 – held inapplicable.
C           Workmen of the Food Corporation of India v. Food
            Corporation of India (1985) 2 SCC 136; Parimal
            Chandra Raha & Ors. v. Life Insurance Corporation
            of India and Ors. (1995) 2 Supp SCC 611 : [1995] 3
            SCR 34; Indian Petrochemicals Corporation Ltd. and
D           Anr. v. Shramik Sena & Ors. (1996) 6 SCC 439 : [1999]
            1 Suppl. SCR 47; Steel Authority of India Ltd. & Ors.
            v. National Union Waterfront Workers & Ors. (2001) 7
            SCC 1 : [2001] 2 Suppl. SCR 343; Secretary, State of
            Karnataka & Ors. v. Uma Devi & Ors. (2006) 4 SCC 1
            : [2006] 3 SCR 953; Steel Authority of India Limited
E           vs. Union of India & Ors. (2006) 12 SCC 233 : [2006]
            6 Suppl. SCR 663; Mukand Ltd. v. Mukand Staff and
            Officers’ Association (2004) 10 SCC 460 : [2004] 2
            SCR 951; Rattan Lal Sharma v. Managing Committee,
            Dr. Hari Ram (Co-Education) Higher Secondary School
F           & Ors. (1993) 4 SCC 10 : [1993] 3 SCR 863; Secretary
            to Govt. of India and Others v. Shivram Mahadu
            Gaikwad (1995) 3 Supp SCC 231; Kalyani Sharp India
            Ltd. v. Labour Court No.1, Gwalior & Anr. (2002) 9
            SCC 655; National Engineering Industries Limited v.
            State of Rajasthan & Ors. (2000) 1 SCC 371 : [1999] 5
G           Suppl. SCR 87; Ramnagar Cane and Sugar Company
            Ltd. v. Jatin Chakravorty & Ors. (1960) 3 SCR 968 :
            [1960] 3 SCR 968; General Manager, Security Paper
            Mill, Hoshangabad v. R.S. Sharma and Others (1986)
            2 SCC 151 : [1986] 1 SCR 281; Associated Cement
H
 OILAND NATURAL GAS CORPORATION LTD. v. THE PRESIDENT, OIL    379
              FIELD EMPLOYEES ASSOCIATION


     Companies Ltd., Porbandar v. Workmen (1960) AIR          A
     777: [1960] 3 SCR 157; Barauni Refinery Pragatisheel
     Shramik Parishad v. Indian Oil Corporation Ltd. (1991)
     1 SCC 4 : [1990] 3 SCR 282; ANZ Grindlays Bank
     Ltd. v. Union of India & Ors. (2005) 12 SCC 738 :
     [2005] 5 Suppl. SCR 63; Tata Engineering and
                                                              B
     Locomotive Co. Ltd. v. Their Workmen (1981) 4 SCC
     627 : [1982] 1 SCR 929; Jhagrakhan Collieries (P)
     Ltd. v. G.C. Agarwal, Presiding Officer, Central
     Government Industrial Tribunal-cum-Labour Court,
     Jabalpur (1975) 3 SCC 613 : [1975] 2 SCR 873; Tata
     Chemicals Ltd. v. Workmen (1978) 3 SCC 42 : [1978] 3     C
     SCR 535 - referred to.
                     Case Law Reference
[1999] 1 Suppl. SCR 47     referred to          Para 12
[2006] 3 SCR 953           referred to          Para 12       D
[1995] 3 SCR 34            referred to          Para 12
[2001] 2 Suppl. SCR 343    referred to          Para 12
[2006] 6 Suppl. SCR 663    referred to          Para 12
[2004] 2 SCR 951           referred to          Para 13       E
[1993] 3 SCR 863           referred to          Para 15
[1999] 5 Suppl. SCR 87     referred to          Para 15
[1960] 3 SCR 968           referred to          Para 17
[1986] 1 SCR 281           referred to          Para 17       F
[1960] 3 SCR 157           referred to          Para 17
[1990] 3 SCR 282           referred to          Para 17
[2005] 5 Suppl. SCR 63     referred to          Para 18
[1982] 1 SCR 929           referred to          Para 20       G

[1975] 2 SCR 873           referred to          Para 20
[1978] 3 SCR 535           referred to          Para 20
[2002] 1 SCR 711           held inapplicable    Para 21
                                                              H
380             SUPREME COURT REPORTS                          [2022] 19 S.C.R.


A           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1033
      of 2022.
           From the Judgment and Order dated 30.01.2020 of the High Court
      of Bombay in WP No. 13015 of 2019.
          J. P. Cama, Sr. Adv., G.D. Talreja, Akshay Amritanshu, Ankit
B     Kumar Lal, Advs. for the Appellant.
           Pallav Shishodia, Sr. Adv., Dr. Vinod Kumar Tewari, Pramod
      Tiwari, Vivek Tiwari, Priyanka Dubey, D N Dubey, Advs. for the
      Respondents.

C           Respondent-in-person.
            The Judgment of the Court was delivered by
            ANIRUDDHA BOSE, J.
            Leave granted.
D            2. The appellants before us are Oil and Natural Gas Corporation
      Limited (in short “ONGC”), a public sector undertaking engaged in the
      business of exploration and production of oil and gas. In this appeal, they
      assail a judgment of the Bombay High Court delivered on 30th January,
      2020 in Writ Petition No. 13015 of 2019 in which the claims of workmen
      to be entitled to fixation of pay and other allowances as per an award of
E     the Central Government Industrial Tribunal No. II, (“Tribunal”) Mumbai
      has been upheld with certain modification in the implementation part of
      that award. The controversy involved in this proceeding originates from
      a Direct Action notice raised by a Union (Oil Field Employees Association
      represented by their President-respondent no.1 in the present appeal)
F     on 26th August, 2016. The workmen, whose cause the said Union were
      espousing, were engaged by and getting their salaries paid through different
      contractors appointed by the ONGC. ONGC’s stand all along has been
      that these were contractors’ workmen – and not workmen of ONGC.
      In fact, ONGC’s case is that another settlement has been reached with
      the Unions representing majority of the contractors’ workmen (over 77%)
G     and that settlement arrived at on 19th September, 2016 is binding on all
      similar workmen including those represented by the respondent Unions.
      We shall address this issue later in this judgment. Earlier, there were
      three memoranda of understanding reached in the years 1992, 1995 and
      2000 involving ONGC and different Unions representing the contract
H     workmen working with the ONGC. These memoranda covered wages,
 OILAND NATURAL GAS CORPORATION LTD. v. THE PRESIDENT, OIL                    381
     FIELD EMPLOYEES ASSOCIATION [ANIRUDDHA BOSE, J.]


allowances and other facilities to be provided by the contractors to the      A
“contract labour”. Copies of these memoranda of understanding have
been annexed at pages 93, 102 and 113 of the paperbook. The 2000
MoU had lapsed on 31st December, 2007.
       3. There had been certain parallel developments on the industrial
front involving ONGC and Unions espousing the cause of workmen                B
engaged by their contractors, which cast a shadow on the dispute giving
rise to this appeal. Six Unions representing workmen engaged by
contractors had submitted a charter of 28 demands against ONGC and
57 of their contractors. This was admitted for conciliation. ONGC wanted
to introduce a Fair Wage Policy (“FWP”) to cover contract employees.
Negotiation in that regard had started among the parties. A Memorandum        C
of Settlement was signed on 19th September, 2016 (to which we have
already referred) under which the FWP extended to contract labourers
of Western Offshore Unit, Mumbai was agreed to be implemented at all
work-centers of ONGC. This settlement, according to the appellants,
was in terms of Section 12(3) read with Section 18(3)(d) of the Industrial    D
Disputes Act, 1947 (the Act) and entailed upward revision of wages as
also certain other measures of social protection including job security.
The signatories to this settlement were contractors’ representatives and
representatives of six Unions “In the presence of and representing
principal employers” as also the Conciliation Officer. The representatives
of ONGC signed in the capacity of representatives of the principal            E
employer. The Tribunal and the High Court, however, held that the
aforesaid arrangement was not settlement within the meaning of Section
18(3)(d) of the Act and was not binding on the workmen involved in the
subject dispute. The Tribunal had also referred to certain order of status
quo passed by the High Court to sustain its finding on this count. We         F
shall however address this issue on merit, testing the reasoning of the
High Court given in the impugned judgment.
       4. The respondent-Oil Field Employees Association (the actual
party-respondent no. 1 is the President of the Oil Field Employees
Association) issued the Direct Action Notice on 26 th August, 2016 to the     G
appellants. This Union was registered in the year 2014 and claims to
represent workmen engaged by contractors of the ONGC. On 19th
September, 2016 itself, one P.D. Sunny, Conciliation Officer called the
appellants and the first respondent for conciliation of dispute arising out
of the notice for direct action of 26th August, 2016. On 26th September,
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382             SUPREME COURT REPORTS                          [2022] 19 S.C.R.


A     2016, a Charter of Demands was submitted before the Conciliation
      Officer with a copy to the appellants. The main demand of the respondent
      no.1 was that wages and service conditions of the workmen engaged by
      the contractor should be at par with the regular employees of ONGC.
              5. Thereafter, in course of conciliation proceeding the FWP was
B     brought on record and the respondent no. 1 questioned the legitimacy of
      the FWP. The conciliation records subsequently were transferred from
      said P.D. Sunny to one Dr. S. Gunahari, Conciliation Officer & Regional
      Labour Commissioner (C), Mumbai. The latter recorded failure of
      conciliation and forwarded the failure report to the Central Government.
      The dispute then was referred by the Central Government to the Tribunal
C     and it was registered as Ref. CGIT No.2/40 of 2017. The reference
      order was made by the Central Government on 18th September, 2017 in
      terms of Section 10(2A) (1) (d) of the Act. The order of reference was
      in the following terms:-
            “Whether the following demands of The President, Oil Field
D           Employees Association are legal and justified?
            1. To have uniform policies for all the workers irrespective of
               the contracts in the establishment of ONGC.
            2. To get the MOU renewed with pay Revisions w.e.f. 1.1.2008.
E           3. To advise M/s. ONGC Management to release an advance of
               Rs.50,000/- per worker and to adjust it with the arrears after
               implementation of the Pay Revisions. If not, to what relief the
               workmen are entitled to?”
             6. ONGC questioned the legality of the order of reference in a
F     writ petition filed in the High Court of Bombay (registered as Writ Petition
      No. 5045 of 2018). This writ petition was not entertained by a Division
      Bench of the High Court and was rejected by an Order passed on
      29th January, 2019. It was, inter-alia, held in this order:-
            “8) It is further to be noted that in pursuance to the communication
G           addressed by the Petitioner to the Chief Labour Commissioner, a
            Conciliation Officer vide his notice dated 15 th September 2016
            kept the matter for conciliation on 19th September, 2016 at 12:30
            hrs. Perusal of the minutes would reveal that in the said meeting,
            the representative of the Petitioner as well as the Respondent
            No.3 were directed to do certain compliances. However, it
H
 OILAND NATURAL GAS CORPORATION LTD. v. THE PRESIDENT, OIL                      383
     FIELD EMPLOYEES ASSOCIATION [ANIRUDDHA BOSE, J.]


      appears that on same day i.e. 19th September 2016 at 15:00 hrs.,          A
      settlement was entered into by the representatives of the certain
      Union and ONGC and 57 contractors of the ONGC. It is to be
      noted that though the said settlement was to be arrived on the
      same day, the Petitioner neither informed the Conciliation Officer
      in the present proceedings about such a settlement being arrived
                                                                                B
      at. The conduct of the Petitioner in not bringing to the notice of the
      Conciliation Officer in the present proceedings, the settlement
      which was to arrive within hours with representative of certain
      Unions before some other Conciliation Officer, in our considered
      view is not a conduct befitting the employer who is an organ of
      State and State within the meaning of Article 12 of the                   C
      Constitution of India.
      9) It is further to be noted that though the Respondent No.3 and
      the Petitioner have completed their pleadings before the learned
      CGIT and though there were rounds of litigations, which reached
      upto this Court arising out of the interlocutory orders, the Petitioner   D
      has chosen to move this Court for ad-interim orders only after the
      matter was kept for their evidence. We are of the considered
      view that having consciously submitted to the jurisdiction of the
      learned CGIT, it is not now open for the Petitioner to complain at
      such a belated stage that the reference was not warranted.
                                                                                E
      10) Apart from that the question as to whether the settlement
      arrived at between some of the Unions at one hand and the
      Petitioner’s contractors on the other hand is binding on the
      Respondent No.3 and intervenors, can be very well looked into
      by the learned Tribunal in the proceedings before it.
                                                                                F
      11) In that view of the matter, we are not inclined to entertain
      the present Petition in its extraordinary jurisdiction under Article
      226 of the Constitution of India. The Writ Petition is therefore
      rejected.”
      7. In the reference, two other Unions participated and were               G
impleaded as parties therein on the basis of their applications. These
two Unions are Maharashtra Sanghatit Asanghatit Kamgar Sabha
(respondent no.2) and Maharashtra Employees Union (respondent no.3).
      8. The Tribunal by its Order passed on 17th July, 2019 in substance
allowed the claim of the workmen articulated through the Unions and
                                                                                H
ordered:-
384               SUPREME COURT REPORTS                         [2022] 19 S.C.R.


A           “1.     The reference is allowed.
            2.      It is declared that the demands of the union to have uniform
                    policies for all the workers irrespective of contracts in the
                    establishment of ONGC and to get the MOU renewed with
                    pay revision w.e.f. 1.1.2008 are legal & justified.
B           3.      First party management is directed to enter into MOU with
                    second party unions with pay revision w.e.f. 1.1.2008 and
                    implement the same within 2 months from the date of order.
            4.      On renewal of MOU the first party management is directed
                    to pay arrears arising out of implementation of MOUs within
C                   2 months from the date of order failing which concerned
                    workmen would be entitled to interest @ 6% per annum on
                    the arrears and other benefits to which they are entitled to
                    on implementation of MOU.”
             9. The High Court sustained the award in the writ petition brought
D     by ONGC on substantive issues but partly allowed the petition challenging
      the legality thereof, inter-alia, holding:-
            “20. Coming now to the reliefs formulated by it, it is but apparent
            that the tribunal does not appear to have applied its mind to individual
            revisions that may have to be made. As we have noted above,
E           there is no infirmity in the conclusion of the tribunal that wage
            revisions had to be on the lines of MbPT settlement for the relevant
            period, but then based on related MbPT settlements, the court
            had to work out individual wage revisions for different categories
            of workmen, whose cause was espoused by the second party
F           unions in the present case. The tribunal, firstly, had to work out
            individual revised wage scales and allowances for workmen at 12
            Victoria Dock and Nhava Supply Base; it, then, had to formulate
            reasonable consolidated wages for workmen other than those
            working in 12 Victoria Dock and Nhava Supply Base. This the
            tribunal appears to have clearly failed to do. It left it to the parties
G           to work out the individual revisions. That I am afraid is not
            possible. It is one thing to say that the basis of wage revision is
            available in a document and quite another to apply that basis to
            the individual facts of the case. For example, it is one thing to say
            that workmen other than those working in 12VD and Nhava Supply
            Base were to be paid wages, that is, consolidated wages, worked
H
OILAND NATURAL GAS CORPORATION LTD. v. THE PRESIDENT, OIL                  385
    FIELD EMPLOYEES ASSOCIATION [ANIRUDDHA BOSE, J.]


    out on the basis of minimum basic wages of the concerned               A
    categories of MbPT workers plus adjustments towards allowances,
    and quite another to actually provide for and stipulate such
    consolidated wages so calculated and adjusted. This was obviously
    for the tribunal to do and not for the parties to work out. The
    tribunal appears to have clearly missed this point. To that extent,
                                                                           B
    the matter must go back to CGIT for determination of actual wage
    scales/allowances of workmen working in 12VD and Nhava
    Supply Base (based on MbPT scales/allowances) as well as other
    workmen covered by the reference (for consolidated wages based
    on MbPT scales and allowances).
    21. The question then is of interim relief to be granted to these      C
    workmen pending consideration of the matter on remand by CGIT.
    It is a matter of fact, and probably a sad commentary on the times
    that we live in, that the last wage revision of these workmen
    occurred as far back as in 2000. That wage revision was applicable
    only till 31 December 2007 and till date, there has been no further    D
    revision in sight, though at least three revision periods have gone
    by. On these facts, this court is of a considered view that it would
    be in the interest of justice to at least direct ONGC to pay wages
    to the workmen concerned on the basis of what was agreed in
    the settlement of 19 September 2016 minus its condition of
    withdrawal of proceedings against ONGC. These would indeed             E
    be minimum wages that might in any case be payable to the
    concerned workmen, that is to say, even if the unions were wrong
    in the matter of calculation of wages in accordance with the
    particulars submitted with the statement of claim. If, on the other
    hand, they were right that the workmen were entitled to get wages      F
    in accordance with the particulars submitted by them, these interim
    revised wages could then be adjusted against such wages.
    22. The writ petition is, accordingly, disposed of by setting aside
    the operative order passed by CGIT and remitting the reference,
    being Reference No.CGIT-2/40 of 2017, to CGIT-2, Mumbai for            G
    a fresh decision on (i) individual wage scales and (ii) consolidated
    wages payable, respectively, to the contract workmen of ONGC
    working at (i) 12 Victoria Dock and Nhava Supply Base and (ii)
    the other workmen covered by the reference. It is made clear
    that such determination must be in the light of what has been
                                                                           H
386            SUPREME COURT REPORTS                        [2022] 19 S.C.R.


A           observed above, in particular that the wage revision/s of these
            workmen has/have to be on the lines of the wage revision/s
            applicable to workmen of MbPT, which are placed before the
            court (i.e. MbPT settlements applicable for the periods from 2007
            to 2011 and from 2012 to 2016).
B           23. The tribunal is requested to accord top priority to this
            determination and dispose of the reference as expeditiously as
            possible and preferably within a period of eight months from the
            date this order is pointed out to the tribunal. To that end, either
            party may appear before the tribunal with notice to the other side
            and produce an authenticated copy of this order. The tribunal may
C           thereupon fix the schedule of hearings and decide the reference
            accordingly.
            24. Pending hearing and final disposal of the reference on remand,
            interim wages shall be paid to the concerned workmen by ONGC
            for the whole of the period of revision in accordance with MoS of
D           19 September 2016 and also prospectively from the month of
            March 2020.
            25. Since the operative part of the award of CGIT has been set
            aside, pending criminal proceedings for non-implementation of the
            award shall not be proceeded with.”
E
              10. The workmen, whose cause the three Unions espouse were
      those who were inducted by contractors and were getting their salaries
      paid through the contractors only. The main claim of the workmen was
      for having a uniform policy for all workmen, irrespective of contracts
      under which they were engaged in the matter of wages and allowances.
F     Last of the memoranda of understanding signed in the years 1992, 1995
      and 2000 was executed on 29th December, 2000. The wage revision
      provided for in the last memorandum of December, 2000 was to operate
      till 31st December, 2007. Primarily, signatories to these memoranda are
      the appellants-employer and the Unions. The respective contractors were
G     not signatories to these memoranda. One of the major characteristics of
      the terms contained therein, though not specifically spelt out in the
      memoranda themselves, is that the wages and allowances agreed upon
      therein were linked to the lines of settlement signed between Mumbai
      Port Trust (earlier Bombay Port Trust) and their workmen. We shall
      henceforth refer to that settlement as MbPT Settlement. These
H
 OILAND NATURAL GAS CORPORATION LTD. v. THE PRESIDENT, OIL                   387
     FIELD EMPLOYEES ASSOCIATION [ANIRUDDHA BOSE, J.]


memoranda classified contract employees in two categories, one set           A
working for Victoria Dock 12 and Nhava Supply base and the other set
working at various other locations including Mumbai and Uran. There
was variance in pay and allowance between these two categories of
workmen. This was in the case of 1992 settlement whereas the 1995
settlement followed similar line of categorisation, but included workmen
                                                                             B
engaged in Panvel to Mumbai and Uran. The same form of categorisation
was there in the “2000 Settlement.”
       11. Appearing on behalf of the appellants Mr. Cama, learned senior
counsel, has primarily argued on two points. His first submission has
been that the reference itself was not maintainable as none of the
workmen the Unions were representing or espousing the causes of were         C
employed by the appellants. He has pointed out the definition of workmen
in Section 2(s) of the Act in this behalf. The other point on which
submission was advanced by him was that the Settlement arrived at on
19 th September, 2016 covered all the employees of contractors,
considering the provisions of Section 18(3)(d). The Unions have been         D
represented by Mr. Pallav Shishodia, learned senior counsel and Mr.
Shaligram G. Mishra, respondent no. 1 appearing in person. The stand of
the Unions on the other hand has been that the concerned workmen
were actually employees of the appellants and before the Tribunal itself,
it was their case that their engagement by the contractor would not by
itself make them contractors’ employees. It is also their stand that the     E
settlement of 19th September, 2016 could not be treated to be one under
Section 18(3)(d) of the Act to bind the workmen represented by the
three Unions in this appeal. First, it has been contended that the said
settlement has not taken final shape as certain procedural aspects for
conclusion thereof is yet to be taken. It has also been argued on their      F
behalf that the said settlement related to contractors’ workmen only
whereas the workmen involved in the present proceeding were not
employees of the contractors who had signed the said settlement. On
the other hand, the workers represented by the Union are working in the
establishment of the appellants for a long period of time and they claimed
to be entitled to the service benefits directly from ONGC.                   G

      12. The Tribunal rejected the objection on jurisdictional ground
taken on the point that the concerned workmen were not employees of
the appellants and hence no dispute could lie with ONGC. The Tribunal
has also given the finding that the FWP could not be treated as fair
                                                                             H
388             SUPREME COURT REPORTS                           [2022] 19 S.C.R.


A     settlement as it entailed withdrawal of the proceedings lodged by individual
      workmen or Unions. It has been urged on behalf of the respondents that
      many of these proceedings were for regularization or absorption directly
      into the appellant company, a dispute which has intricate link with the
      controversy involved in the present proceeding. Mr. Cama has asserted
      that the finding of the High Court on facts was perverse, and, on that
B
      count, he invited interference by this Court in exercise of its jurisdiction
      under Article 136 of the Constitution of India. He has relied on the
      decisions of this Court in the cases of Workmen of the Food
      Corporation of India vs. Food Corporation of India [(1985) 2 SCC
      136], Parimal Chandra Raha & Ors. vs. Life Insurance
C     Corporation of India and Ors. [(1995) Supp (2) SCC 611], Indian
      Petrochemicals Corporation Ltd. and Anr. vs. Shramik Sena &
      Ors. [(1996) 6 SCC 439] and Steel Authority of India Ltd. & Ors.
      vs. National Union Waterfront Workers & Ors. [(2001) 7 SCC 1]
      in support of his submission that the workmen of the contractor would
      not become the workmen of the principal employer. He has also cited
D
      the case of Secretary, State of Karnataka & Ors. vs. Uma Devi &
      Ors. [(2006) 4 SCC 1] to contend that there could not be backdoor
      entry of contractors’ employees directly into the establishment of the
      principal employer. This genre of cases has been cited mainly in support
      of two propositions of law urged on behalf of the appellants. First is that
E     there must be a jural relationship brought about by an agreement to
      establish employer-employee relationship between contractors’
      employees and that of the principal employer. Secondly, abolition of
      contract labour in certain industries does not result in automatic absorption
      of the workmen engaged by them in the concerned establishment. In the
      case of Parimal Chandra Raha (supra), however, it has been held that
F
      where there was statutory requirement of maintaining of canteens and
      the canteens of the respondent corporation had become part of the
      establishment, the contractors engaged from time to time in reality were
      agencies of the corporation and were only a veil between the corporation
      and canteen workers. In the case of Steel Authority of India Limited
G     of 2001 (supra), it has been held that abolition of contract labour in certain
      in any part of an establishment by a notification under Section 10(1) of
      the Contract Labour (Regularization and Abolition) Act, 1970 (1970 Act)
      automatically does not lead to absorption of contract labour working in
      those parts directly in the establishment concerned. The case of Indian
      Petrochemicals (supra) mainly follows the ratio laid down in the case
H
 OILAND NATURAL GAS CORPORATION LTD. v. THE PRESIDENT, OIL                     389
     FIELD EMPLOYEES ASSOCIATION [ANIRUDDHA BOSE, J.]


of Parimal Chandra Raha (supra). The proposition of law laid down in           A
the case of Steel Authority of India Limited vs. Union of India &
Ors. reported in [(2006) 12 SCC 233] is that mutually destructive plea
that the employees were of contractor and the principal employer could
not be taken. The ratio of the decision of Uma Devi (supra) also would
not apply in the facts of the present case. Here, the issue is not of
                                                                               B
backdoor entry into an establishment but finding out subsisting status of
a set of workmen on the question as to who is their actual employer. For
determination of the fate of the dispute raised by Unions, adjudication of
the former question becomes inevitable.
       13. Mr. Cama has emphasised on the ratio of the case of Mukand
Ltd. vs. Mukand Staff and Officers’ Association [(2004) 10 SCC                 C
460]. In this judgment it has been held:-
      “23. We have already referred to the order of reference dated
      17-2-1993 in paragraph supra. The dispute referred to by the order
      of reference is only in respect of workmen employed by the
      appellant Company. It is, therefore, clear that the Tribunal, being      D
      a creature of the reference, cannot adjudicate matters not within
      the purview of the dispute actually referred to it by the order of
      reference. In the facts and circumstances of the present case,
      the Tribunal could not have adjudicated the issue of salaries of the
      employees who are not workmen under the Act nor could it have            E
      covered such employees by its award. Even assuming, without
      admitting, that the reference covered the non-workmen, the
      Tribunal, acting within its jurisdiction under the Act, could not have
      adjudicated the dispute insofar as it related to the “non-workmen.”
       14. As regards the lack of jurisdiction of the Tribunal to determine    F
or adjudicate the dispute between the appellants and the workmen
represented by the three Unions, perusal of the award does not reveal
that this point was pressed before the Tribunal by the employer. We
accept that the Tribunal could not go beyond the disputes that were
referred to it, as held in the case of Mukand Ltd. (supra). But legality
of the order of reference was challenged by ONGC in Writ Petition(C)           G
No. 5045 of 2018. In the judgment of the Division Bench, which we
have already quoted, it was opined on the aspect of jurisdiction of the
Tribunal, that it was not open for the petitioner to complain at such a
belated stage that the reference was not warranted. In the judgment of
                                                                               H
390            SUPREME COURT REPORTS                          [2022] 19 S.C.R.


A     the High Court under challenge before us, this question was dealt with
      and it was held :-
            “5. Apropos the first objection of Mr. Talsania, which, according
            to him, goes to the root of the matter, it must be noted at the very
            outset that the jurisdiction of the tribunal in the present case to
B           adjudicate the reference was never questioned by ONGC on the
            ground that the workmen represented by the second party were
            not ‘workmen’ within the meaning of section 2(s) of the Act,
            particularly, because they were employees of contractors and not
            of ONGC. If this issue was not part of the lis before the reference
            court, there was no way it could be raised before the writ court.
C           The issue is, after all, a mixed issue of law and facts; it would
            have to be adjudicated first before the trial court upon foundational
            pleadings in that behalf being led before it, before the writ court,
            in its scrutiny of the order of the trial court, could be asked to go
            into it.
D           6. Mr. Talsania, however, submits that the fact that these workmen
            were employees of contractors is not really in dispute; the
            reference itself termed them as workmen engaged through
            contractors. The question is not whether the workmen were
            engaged through contractors. That may indeed be an apparent
E           position. The question is whether, by reason of perennial nature
            of the work at the premises of the principal employer, and having
            regard to the circumstances bearing on their service and service
            conditions, whether the workmen could be said to be in reality
            employees of the principal employer despite the apparent position
            that they were engaged through contractors. Indeed, there was a
F           clear statement on the part of the workmen in the statement of
            claim of the second party that they were in fact and in reality
            workmen of ONGC and not of the contractors. No doubt, in its
            written statement, ONGC contested this position, and in their
            rejoinder second party No.2 union reiterated its statement that
G           the contract/s was/were sham and bogus. It is apparent from the
            impugned award of the tribunal, however, that this issue was not
            pressed by ONGC at the hearing. The issue anyway reflected on
            the jurisdiction of CGIT to adjudicate the reference and ONGC
            did not choose to contest the jurisdiction on the issue. Had the
            issue been pressed by ONGC before the reference court, the
H
 OILAND NATURAL GAS CORPORATION LTD. v. THE PRESIDENT, OIL                     391
     FIELD EMPLOYEES ASSOCIATION [ANIRUDDHA BOSE, J.]


      second party would have led appropriate evidence in support of           A
      its case in this behalf. It obviously chose not to do so, because this
      question was not debated by ONGC before the reference court.
      Could the second party be then visited with the consequence of
      having to deal with this issue merely on the basis of the material
      available before this court at the stage of a scrutiny under Articles
                                                                               B
      226 or 227 of the Constitution of India. The answer would be an
      emphatic “no”. The second party would most certainly be seriously
      inconvenienced if it were now required to sustain its plea in the
      statement of claim of the workmen being in reality employees of
      ONGC, without having had an opportunity to lead evidence in
      support of such case before trial court. For whatever reasons,           C
      ONGC found it worth its while not to contest the jurisdiction of
      the tribunal in the reference and this court, sitting as a writ court,
      must leave the matter at that and not scrutinize it any further.”
       15. On the question of raising issue of lack of jurisdiction before
the Tribunal, the cases of Rattan Lal Sharma vs. Managing                      D
Committee, Dr. Hari Ram (Co-Education) Higher Secondary
School & Ors. [(1993) 4 SCC 10], Secretary to Govt. of India and
Others vs. Shivram Mahadu Gaikwad [(1995) Supp (3) SCC 231]
and Kalyani Sharp India Ltd. vs. Labour Court No.1, Gwalior &
Anr. [(2002) 9 SCC 655] were relied upon by the appellants. We accept,
as a proposition of law, that if irregularity or illegality committed by a     E
Tribunal touches upon the jurisdiction to try and determine over a subject
dispute is altogether beyond its purview, that question would go to the
root of the matter and it would be within the jurisdiction of the superior
court to correct such error. In the case of Kalyani Sharp India Ltd.
(supra) raising a plea on application of law was found permissible at the      F
appellate stage before this Court, but in that case no fresh investigation
of fact was required. But in the facts of the present case, it is not the
question of inherent lack of jurisdiction on the part of the Tribunal. The
question of jurisdiction, as held by the High Court was a mixed question
of fact and law. Both the cases of Rattan Lal Sharma (supra) and
Kalyani Sharp India Ltd. (supra) arose out of admitted fact. In the            G
case of Shivram Mahadu Gaikwad (supra) it was the limitation question
which went to the root of the matter. This case arose out of a proceeding
before the Central Administrative Tribunal. Point was taken before the
Tribunal by the Union of India but was not addressed to in the judgment
of the Tribunal. So far as the present proceeding is concerned, as reflected   H
392            SUPREME COURT REPORTS                         [2022] 19 S.C.R.


A     in the judgment under appeal, there was a clear statement on the part of
      the workmen in the statement of the second party (Union) before the
      Tribunal that in fact and reality, the concerned workmen were employees
      of ONGC and were not of the contractors. This was denied by the
      ONGC but in their rejoinder the said Union reiterated their stand that the
      contracts were sham and bogus. In the award, certain other reference
B
      orders were cited which involved adjudication of the question as to
      whether contracts between ONGC’s contractors and workmen engaged
      by them were sham and bogus. (Ref. No. CGIT I 16, 17, 18 and 19/
      2005) or not and if the said workmen in reality were ONGC’s workmen
      only. In the case of Steel Authority of India of 2001 (supra), it has
C     been laid down that in cases where plea is raised that a contract is found
      to be sham and nominal, a camouflage to suppress the actual status of a
      workman vis-à-vis who his employer is, the veil could be pierced to find
      out the such status. If to this perspective is added the fact that earlier
      three MoUs were entered into directly by ONGC with the Unions
      representing contractors’ workmen, this question does not remain a
D
      question of law alone, to be sustained with the aid of the ratio of the
      cases of Rattan Lal Sharma (supra), Shivram Mahadu Gaikwad
      (supra) and Kalyani Sharp India Ltd. (supra). Signatories to the earlier
      MoUs were the appellants and the Unions and Section 30(2) of the
      Contract Labour (Regulation and Abolition) Act, 1970 permits contract
E     labourers to enter into agreements with principal employers. Thus, by
      themselves, the aforesaid MoUs would not establish that the contract
      workmen are workmen of the principal employer. But the circumstances
      which we have narrated clearly point to the relationship between the
      appellants and the workmen represented by the respondent Unions in
      that direction. The stand that the concerned workmen were employees
F
      of the principal employer were not specifically outlined in the reference,
      but was implicit therein. In the reference order the dispute therein was
      between ONGC and the Union. The Charter of Demand was also raised
      against ONGC. The Tribunal examined the issue and returned its finding
      which was upheld by the High Court. This was a finding of fact. In the
G     case of National Engineering Industries Limited vs. State of
      Rajasthan & Ors. [(2000) 1 SCC 371] it has been held that the Industrial
      Tribunal is the creation of statute and it cannot go into the question on
      validity of the reference. That issue ought to be considered by the High
      Court, according to the appellants. So far as the present proceeding is
      concerned, the High Court has considered that question and we do not
H
 OILAND NATURAL GAS CORPORATION LTD. v. THE PRESIDENT, OIL                      393
     FIELD EMPLOYEES ASSOCIATION [ANIRUDDHA BOSE, J.]


find any error in the approach of the High Court in deciding the jurisdiction   A
question against the appellants.
      16. Next comes the issue as to whether the settlement of 19th
September, 2016 was binding on the Unions who are before us as
respondents, having regard to the provisions of Section 18(3) (d) of the
Act. Section 18 of the Act stipulates:-                                         B
      “18. Persons on whom settlements and awards are binding.-
      (1) A settlement arrived at by agreement between the employer
      and workman otherwise than in the course of conciliation
      proceeding shall be binding on the parties to the agreement.
      (2) Subject to the provisions of sub-section (3), an arbitration award    C
      which has become enforceable shall be binding on the parties to
      the agreement who referred the dispute to arbitration.
      (3) A settlement arrived at in the course of conciliation proceedings
      under this Act or an arbitration award in a case where a notification
      has been issued under sub-section (3A) of section 10A or an award         D
      of a Labour Court, Tribunal or National Tribunal which has become
      enforceable shall be binding on—
      (a) all parties to the industrial dispute;
      (b) all other parties summoned to appear in the proceedings as
                                                                                E
      parties to the dispute, unless the Board, arbitrator, Labour Court,
      Tribunal or National Tribunal, as the case may be, records the
      opinion that they were so summoned without proper cause;
      (c) where a party referred to in clause (a) or clause (b) is an
      employer, his heirs, successors or assigns in respect of the
                                                                                F
      establishment to which the dispute relates;
      (d) where a party referred to in clause (a) or clause (b) is composed
      of workmen, all persons who were employed in the establishment
      or part of the establishment, as the case may be, to which the
      dispute relates on the date of the dispute and all persons who
      subsequently become employed in that establishment or part.”              G

       17. In the case of Ramnagar Cane and Sugar Company Ltd.
vs. Jatin Chakravorty & Ors. [(1960) 3 SCR, 968], the binding nature
of a settlement on all persons employed in an establishment has been
explained, having regard to Section 18(3)(d) of the Act. This principle
                                                                                H
394            SUPREME COURT REPORTS                          [2022] 19 S.C.R.


A     was reaffirmed in the case of General Manager, Security Paper Mill,
      Hoshangabad vs. R.S. Sharma and Others [(1986) 2 SCC 151]. It
      has been laid down in the case of Ramnagar Cane and Sugar Company
      Ltd. (supra):-
            “5. In appreciating the merits of the rival contentions thus raised
B           in this appeal it is necessary to bear in mind the scheme of the
            Act. It is now well settled that an industrial dispute can be raised
            in regard to any matter only when it is sponsored by a body of
            workmen acting through a union or otherwise. When an industrial
            dispute is thus raised and is decided either by settlement or by an
            award the scope and effect of its operation is prescribed by Section
C           18 of the Act. Section 18(1) provides that a settlement arrived at
            by agreement between the employer and the workman otherwise
            than in the course of conciliation proceeding shall be binding on
            the parties to the agreement; whereas Section 18(3) provides that
            a settlement arrived at in the course of conciliation proceedings
D           which has become enforceable shall be binding on all the parties
            specified in clauses (a), (b), (c) and (d) of sub-section (3). Section
            18(3)(d) makes it clear that, where a party referred to in clauses
            (a) or (b) is composed of workmen, all persons who were employed
            in the establishment or part of the establishment, as the case may
            be, to which the dispute relates on the date of the dispute and all
E           persons who subsequently become employed in that establishment
            or part, would be bound by the settlement. In other words, there
            can be no doubt that the settlement arrived at between the appellant
            and the Employees’ Union during the course of conciliation
            proceedings on February 25, 1954, would bind not only the members
F           of the said Union but all workmen employed in the establishment
            of the appellant at that date. That inevitably means that the
            respondents would be bound by the said settlement even though
            they may belong to the rival Union. In order to bind the workmen
            it is not necessary to show that the said workmen belong to the
            Union which was a party to the dispute before the conciliator.
G           The whole policy of Section 18 appears to be to give an extended
            operation to the settlement arrived at in the course of conciliation
            proceedings, and that is the object with which the four categories
            of persons bound by such settlement are specified in Section 18,
            sub-section (3). In this connection we may refer to two recent
H           decisions of this Court where similar questions under Section 19(6)
 OILAND NATURAL GAS CORPORATION LTD. v. THE PRESIDENT, OIL                       395
     FIELD EMPLOYEES ASSOCIATION [ANIRUDDHA BOSE, J.]


       and Section 33(1)(a) of the Act have been considered. (Vide:              A
       Associated Cement Companies Ltd., Porbandar v. Workmen [
       Civil Appeal No. 404 of 1958 decided on 3.3.1960] and New India
       Motors (P.) Ltd. v. K.T. Morris.”
      Same proposition of law was reiterated in the case of Barauni
Refinery Pragatisheel Shramik Parishad vs. Indian Oil Corporation                B
Ltd. [(1991) 1 SCC 4].
      18. In the case of ANZ Grindlays Bank Ltd. vs. Union of
India & Ors. [(2005) 12 SCC 738], this Court, while testing a reference
found no subsisting industrial dispute and the reference was set aside.
This authority also does not assist the appellants in the facts of the present   C
case.
       19. Now we shall test the appellants’ arguments on binding effect
of the settlement dated 19th September, 2016 on the workmen whose
cause the respondent Unions are espousing before us. The High Court
dealt with this question in the following manner:-                               D
       “13. That brings us to the question as to whether the MoS of 19
       September 2016, even if it were to be termed as a settlement in
       the course of a conciliation proceeding, could be said to be a fair
       settlement so as to bind workmen who were not party to it. The
       tribunal, in the present case, has arrived at an unequivocal finding      E
       that the settlement could not be termed as fair. It, particularly, has
       taken into account the fact that the MoS of 19 September 2016
       required the workmen concerned to withdraw their legitimate
       disputes and complaints on the issues of regularization, etc. as a
       condition of settlement. It is important to bear in mind in this behalf
       that when the reference was made, there were about 1300                   F
       workmen, covered by the earlier MoU 29 December 2000, who
       were originally sought to be protected as against about 2000 of
       total number of contract employees with ONGC working in
       Mumbai, Panvel, Uran and Nhava. The other employees were
       not covered by the MoUs executed earlier by ONGC with the                 G
       unions. If these other workmen and their union/s were to agree to
       a fair wage policy, which is not on the basis of the earlier MoUs
       executed between ONGC and the unions, such policy, on the basis
       of such agreement, cannot be termed as a fair policy for the
       workmen covered by the earlier MoUs and whose references or
                                                                                 H
396             SUPREME COURT REPORTS                         [2022] 19 S.C.R.


A           complaints for their legitimate demands were pending before
            various industrial adjudicators. Anyway, on the facts available
            before this court, the conclusion of the Tribunal that the MoS of
            19 September 2016 could not be termed as a fair settlement,
            particularly, for the workmen covered by the earlier MoUs, cannot
            be termed as perverse. This court cannot bring itself to hold that
B
            no reasonable person could have given any such finding. The
            finding is clearly supported by some evidence; it does take into
            account all relevant and germane circumstances and materials;
            and it does not consider any non-germane or irrelevant
            circumstance or material. It must, in that case, pass muster as a
C           possible conclusion, which is not amenable to judicial scrutiny either
            under Article 226 or 227 of the Constitution of India.”
             20. The appellants’ case is that Unions representing above 77
      percent of the workmen engaged by the contractors had agreed to that
      settlement. In the case of Tata Engineering and Locomotive Co.
D     Ltd. vs. Their Workmen [(1981) 4 SCC 627], this Court permitted a
      settlement to be binding which was assailed by a set of workmen. In
      that case, one set of Unions had entered into a settlement which had
      been assented to by 564 out of 635 daily-rated workmen. The finding of
      the Tribunal was that the settlement was not just and fair. This Court,
      however, allowed the appeal of the employer and set aside the award.
E     But this judgment is not an authority for the proposition that a different
      set of workmen cannot raise an industrial dispute claiming to be workmen
      directly under the principal employer. Recognition of such right of minority
      workmen would be apparent from paragraph 12 of the said report [(1981)
      4 SCC 627], which reads:-
F           “12. There is no quarrel with the argument addressed to us on
            behalf of the workers that mere acquiescence in a settlement or
            its acceptance by a worker would not make him a party to the
            settlement for the purpose of Section 18 of the Act [vide
            Jhagrakhan Collieries (P) Ltd. v.G.C. Agarwal, Presiding
G           Officer, Central Government Industrial Tribunal-cum-Labour
            Court, Jabalpur [(1975) 3 SCC 613 : 1975 SCC (L&S) 63 : AIR
            1975 SC 171 : (1975) 2 SCR 873] ]. It is further unquestionable
            that a minority union of workers may raise an industrial dispute
            even if another union which consists of the majority of them enters
            into a settlement with the employer (vide Tata Chemicals Ltd. v.
H
 OILAND NATURAL GAS CORPORATION LTD. v. THE PRESIDENT, OIL                      397
     FIELD EMPLOYEES ASSOCIATION [ANIRUDDHA BOSE, J.]


      Workmen [(1978) 3 SCC 42 : 1978 SCC (L&S) 418 : AIR 1978                  A
      SC 828 : (1978) 3 SCR 535] ). But then here the Company is not
      raising a plea that the 564 workers became parties to the settlement
      by reason of their acquiescence in or acceptance of a settlement
      already arrived at or a plea that the reference is not maintainable
      because the Telco Union represents only a minority of workers.
                                                                                B
      On the other hand the only two contentions raised by the Company
      are:
         “(i) that the settlement is binding on all members of the
         Sanghatana including the 564 mentioned above because the
         Sanghatana was a party to it, and
                                                                                C
         (ii) that the reference is liable to be answered in accordance
         with the settlement because the same is just and fair.”
       21. In the case of ITC Ltd. Workers’ Welfare Association &
Anr. vs. Management of ITC Ltd. & Anr. [(2002) 3 SSC 411], it has
been, inter-alia, held:-                                                        D
      “14. In answering the reference the industrial adjudicator has to
      keep in the forefront of his mind the settlement reached under
      Section 12(3) of the Industrial Disputes Act. Once it is found that
      the terms of the settlement operate in respect of the dispute raised
      before it, it is not upon to the Industrial Tribunal to ignore the        E
      settlement or even belittle its effect by applying its mind independent
      of the settlement unless the settlement is found to be contrary to
      the mandatory provisions of the Act or unless it is found that there
      is non-conformance to the norms by which the settlement could
      be subjected to limited judicial scrutiny….”
                                                                                F
      22. In the instant case we do not find the settlement of 19th
September, 2016 to be one which would be binding on the minority Union.
That was a settlement essentially between the contractors and workmen
engaged by the former. The appellants were only consenting parties to
the settlement. This position of the appellants is apparent from the
description of the parties to the said settlement, which records:-              G
      “MEMORANDUM OF SETTLEMENT ARRIVED AT UNDER
      SECTION 12(3) OF THE INDUSTRIAL DISPUTES ACT, 1947
      BEFORE SHRI B.B. BHATNAGAR, CONCILIATION
      OFFICER & DY. CLC(C), AS A RESULT OF AND IN THE
      COURSE OF CONCILIATION PROCEEDINGS HELD ON                                H
398            SUPREME COURT REPORTS                        [2022] 19 S.C.R.


A           19.09.2016 AND SIGNED BY THE CONTRACTORS,
            EMPLOYERS OF CONTRACT WORKERS DEPLOYED
            FOR PERFORMANCE OF CONTRACTS IN ONGC
            LIMITED, WESTERN OFFSHORE UNIT MUMBAI
            INCLUDING PANVEL, URAN AND NHAVA, AND
            CONTRACT WORKERS REPRESENTED THROUGH
B
            TRANSPORT & DOCK WORKERS UNION-MUMBAI,
            ONGC     (BOP)   KARMACHARI    SANGHATANA
            PETROLEUM EMPLOYEES UNION, GENERAL
            EMPLOYEES ASSOCIATION, ONGC GENERAL KAMGAR
            SANGHATANA AND NHAVA SHEVA PORT & GENERAL
C           WORKERS UNION, AS MENTIONED BELOW OVER
            CHARTER OF DEMANDS, INCLUDING REVISION OF
            WAGES AND OTHER SERVICE CONDITIONS OF
            CONTRACT WORKERS IN WESTERN OFFSHORE UNIT.”
             23. The dispute out of which the present appeal arises relates to
D     the question as to whether the workmen engaged by the contractors
      would be entitled to pay at par with other workmen of the employer and
      demand to that effect was raised with the appellants only. The respondent
      Unions claimed to be, in reality, employees of ONGC and the demand
      was raised upon the latter, and not on their contractors. The nature of
      their demand was thus different particularly as regards the status of the
E     workmen, i.e., their claim to be workmen of ONGC. Thus, the settlement
      of 19th September, 2016, in which the employers were the contractors
      cannot bind the subject-dispute, where the appellants have been found
      to be the employer on the basis of materials considered by the High
      Court. Their engagement by the contractors cannot be the sole basis for
F     determining their status as workmen of contractors.
             24. For these reasons, we accept the High Court’s affirmation of
      Tribunal’s finding that the settlement of 19th September, 2016 did not
      bind the workmen whose cause the respondent Unions are espousing.
      The finding of the Tribunal that the settlement involving implementation
G     of the FWP was not just and fair, which finding has been sustained by
      the High Court is essentially a finding on facts based on appreciation of
      evidence. We are of the opinion that such finding is not tainted by any
      element of perversity. The ratio of the decision in the case of ITC Ltd.
      Workers’ Welfare Association (supra) would not apply in the facts of
      the present case.
H
 OILAND NATURAL GAS CORPORATION LTD. v. THE PRESIDENT, OIL                      399
     FIELD EMPLOYEES ASSOCIATION [ANIRUDDHA BOSE, J.]


       25. Having held so, we would not like to interfere with the relief       A
directed to be given by the High Court. The scope of jurisdiction of the
Industrial Court is wide and in appropriate cases it has the jurisdiction
even to make a contract. In our opinion, the directives issued by the
Tribunal, as modified by the High Court are reasonable and cannot be
termed as perverse. In the case of Steel Authority of India of 2006
                                                                                B
(supra), referring to the Contract Labour (Regulation & Abolition) Act,
1970 it was opined:-
       “20. The 1970 Act is a complete code by itself. It not only provides
       for regulation of contract labour but also abolition thereof.
       Relationship of employer and employee is essentially a question
       of fact. Determination of the said question would depend upon a          C
       large number of factors. Ordinarily, a writ court would not go into
       such a question.”
       So far as the judgment under appeal is concerned, the High Court
has taken a similar approach and we do not intend to take a different
view. The principle of limited interference would apply to a proceeding         D
of this nature under the 1947 Act.
       26. The appeal is accordingly dismissed and the impugned judgment
is sustained. Interim order, if any, shall stand dissolved.
       27. Other applications, if any, stand disposed of.                       E
       28. There shall be no order as to costs.

Bibhuti Bhushan Bose and Amarendra Kumar                    Appeal dismissed.
(Assisted by : Iram Jan, LCRA)
                                                                                F




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