DIPAK PRAKASH KUNDU, J. ( 1 ) WHETHER the management of M/s. N. D. Mazumder and Co. Contractor (Principal Employer : M/s. Indian Iron and Steel Co. Ltd. , Burnpur, Dist : Burdwan) are justified in retrenching the following workmen : (1) Shri Haradhan Paul, (2) Sri Arjun Mishra (3) Sri Rahamatullaha, (4) Sri Thakar Prasad, (5) Sri Ram Kumar, (6) Sri Ainal Haque, (7) Sri Sultan Khan. ( 2 ) IT appears that both the workmen and the writ petitioner filed respective written statements before the Tribunal. Witnesses were examined before the Tribunal. It appears from paragraph 9 of the award that the following questions were; raised before the Tribunal. (1) The Tribunal to decide first whether these seven concerned workmen belonged to HSCO or to this Contractor Firm. (2) the claim of the Union is a stale one as it was referred after a long lapse of time, and cannot be an Industrial Dispute now. (3) The contesting union did not espouse the case of these 7 workmen nor they are members of the said union. (4) The claim of the union is not at all bona fide. (5) The present dispute is hit by double jeopardy and lastly. (6) As the workmen did not claim any relief in their written statements, so they are not entitled to get any relief. ( 3 ) THE same points were argued before this Court also by the learned Advocate for the petitioner in course of this argument. Re : Point No. I. It appears from paragraph 12 of the award that the Tribunal dealt with point No. 1 in the said paragraph. The paragraph 12 of the award is quoted hereinbelow :"carefully and anxiously considered the submissions of both sides and perused carefully the materials on record. I find from the original reference that the Government described M/s. N. D. Mazumder and Co. as employer of these 7 concerned workmen and I was asked to adjudicate whether the said employer was justified in retrenching the services of these workmen. So, as the Government did not make any issue for adjudication whether the IISCO or M/s. N. D. Mazumder and Co. are the Employer of those concerned workmen. as employer of these 7 concerned workmen and I was asked to adjudicate whether the said employer was justified in retrenching the services of these workmen. So, as the Government did not make any issue for adjudication whether the IISCO or M/s. N. D. Mazumder and Co. are the Employer of those concerned workmen. I am not in a position to make such issue and to adjudicate it because it was not at all incidental issue of the original one and it was not at all a question before the Government at the time of making this reference. I also do agree with the learned representative of the workmen that the employer M/s. N. D. Mazumder and Co. did not raise in their written statement such point. There is also no such whisper in the evidence of the witness on behalf of the employer. So, the referred decision Hussain Bhai's case as referred by the learned Advocate of the employer has got no application here. The Government made the reference treating that these concerned workmen are the employees of M/s. N. D. Mazumder and Co. I am unable to go behind the said reference. Thus the first objection as taken by the Learned Advocate of the employer has got no force at all. " ( 4 ) THE learned advocate for the petitioner in course of his argument submitted that in paragraph 2 of the written statement filed on behalf of the writ petitioner before the Tribunal, the writ petitioner stated as follows :"that the order of reference ex-fade discloses that the Principal Employer of the establishment in question in M/s. Indian Iron and Steel Co. Ltd. and that being the admitted position the said company is a necessary party to this proceeding and no effective adjudication can be made in the absence of the said company. "the leaned Advocate for the petitioner also drew the attention of the Court to paragraph 11 of the written statement which reads as follows : "the Union is called upon to prove the allegation made in Para 4 of their written statement and it is denied by the contractor that they had any necessity for giving any opportunity to Sri. Paul or to any other person in the manner cherished. Paul or to any other person in the manner cherished. " relating upon these two paragraphs of the written statement, the learned Advocate for the petitioner argued that the Tribunal ought to have come to the conclusion that M/s. Indian Iron and Steel Co. Ltd. , the respondent No. 4 in this writ proceeding is the real employer of the workmen concerned. It appears from the paragraph 2 of the written statement that the writ petitioner alleged that M/s. Indian Iron and Steel Co. was the principal employer. However, it appears from the award that by an Order No. 38 dated December 23, 1983 passed by the Industrial Tribunal, the Indian Iron and Steel Co. ,was added as a party as the said Company was mentioned in the original reference as principal employer. The learned Advocate for the petitioner referred to Hussainbhai v. Alath Factory Tozhilali Union and Ors. reported in (1978-II-LLJ-397) (SC ). The learned Advocate for the petitioner referred to the said decision which reads as follows :"where a worker or group of workers labours to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the workers' subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contractu is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, it is found, though draped in different perfect paper arrangement, that the real employer is the Management not, the immediate contractor, followed. " ( 5 ) IT is important to note here that in the written statement filed by the writ petitioner before the Tribunal, it has not been stated that the concerned workmen were engaged to produce goods or services and those goods or services were for the business for Indian Iron and Steel Company Limited and that HSCO was, in fact, the employer. It was not stated in the written statement filed by the writ petitioner that HSCO had control over the workers' subsistence, skill and continued employment. It was not stated in the written statement filed by the writ petitioner that HSCO had control over the workers' subsistence, skill and continued employment. It was not stated in the written statement filed by the writ petitioner before the Tribunal that if IISCO for any reason had chocked of, then the workers would have, virtually laid off. On the other hand, it appears from the evidence of one Shri Shyamapada Das Gupta, who happened to be the Office Superintendent of the writ petitioner that in his deposition, he, inter alia, stated as follows :"i am the office superintendent in M/s. N. D. Mazumder and Co. Our Company is a contractor under the IISCO at Burnpur for fabrication, labour supply, wagon repairing job and other works, for each job there is separate contract, although named as a company it is in fact a proprietorship firm. Contract is for one year--but the IISCO as informs us from time to time the specific jobs to be performed. We are doing wagon repairing job for the last 25 years. (To Tribunal)'wagon repairing job is done at the wagon repair shop site of the IISCO by us through our men who are not in the pay roll of IISCO. " ( 6 ) THERE is no evidence on record that the workmen were supplied by the writ petitioner as labour to IISCO. The definite statement has been made before the Tribunal in evidence that for each job there is separate contract. It was categorically stated that wagon repairing was done at the repair site of IISCO by the writ petitioner through their own men who were not in the pay roll of IISCO. ( 7 ) IN view of the discussion hereinabove, I am of the view that the finding of the Tribunal in respect of the Point No. 1 is legal and valid and cannot be interfered with by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India. 8. Re Point No. 2. In connection with the point No. 2, the Tribunal in paragraph 15 of the award held as follows :"after due consideration of the submissions of both sides I am of opinion of this point that there is no period of limitation prescribed in the Act, for making a reference Under Section 10 (1) of Industrial Disputes Act. In connection with the point No. 2, the Tribunal in paragraph 15 of the award held as follows :"after due consideration of the submissions of both sides I am of opinion of this point that there is no period of limitation prescribed in the Act, for making a reference Under Section 10 (1) of Industrial Disputes Act. It is for the appropriate Government to consider whether it is expedient or not to make the reference. Of course, the policy of Industrial adjudication is that very stale claims should not be generally encouraged or allowed unless there is a satisfactory explanation for delay because apart from the obvious risk to industrial peace from the entertainment of claims after long lapse of time, it is necessary also to take into account the unsettling effect which it is likely to have on the employees financial arrangement and to avoid dislocating of industry. In Western India Match Company's Case reported in (1970-II-LLJ-256), Supreme Court held that a reference made 6 years after previous refusal to make the reference, was not stale one. Delhi High Court in that of Motor Transport (P) Limited's case reported in (1974-II-LLJ-243) held that a reference made even after 18 years of the cause of dispute arose was not stale one. "the learned Advocate for the petitioner could not assail the finding of the Tribunal in connection with the Point No. 2. The learned Advocate for the petitioner argued that the workmen are not entitled to wages for the period from 1971 to 1981. I am of the view that the finding of the learned Tribunal in respect of Point No. 2 is legal and valid. I am also of the view that if the retrenchment is illegal then workmen are entitled to the benefits even for the period from 1971 to 1981. It is also to be recorded, here that the learned Advocate for the petitioner did not cite any other decision except one reported in (1978-II-LLJ-397) (SC) referred to in the earlier part of this judgment. ( 8 ) RE : Point No. 3. It is also to be recorded, here that the learned Advocate for the petitioner did not cite any other decision except one reported in (1978-II-LLJ-397) (SC) referred to in the earlier part of this judgment. ( 8 ) RE : Point No. 3. In connection with Point No. 3, the Tribunal in paragraph 19 of the award held as follows :"in reply to it the Learned Advocate of the union rightly submitted that the employer did not take such plea in their written statement, so at present the employer is unable to take this plea for the first time and thus to make surprise the other side. I have carefully gone through the written statement of the employer and find no such objection in the pleadings. So, in view of the principle of law as observed by their Lordships of Supreme Court in Sankar Chakroborty 's case reported in (1979-II-LLJ-194) that where a party seeks to establish a contention, which if proved would be sufficient, to deny relief to the opposite, such a contention has to be specifically pleaded and proved. If there is no pleading, there is no question of proving something which is not pleaded. In other words, a contention which is not pleaded even if there is evidence in support of it, cannot be examined because the other side has no notice of it and if entertained, it would tantamount to granting unfair advantage to the party who relies on such point, not pleaded in the pleadings. So, as this point was not pleaded in the written statement by the employer I am unable to al low the said party to rely on this point now and argue on it. Therefore, this objection of the Learned Advocate of the employer has also got no leg to stand upon. "this finding of the Tribunal in respect of Point No. 3 was not challenged by the learned Advocate for the petitioner in course of his argument. However, after perusing the reasons given by the Tribunal, I am of the view that the reasons given by the Tribunal are legal and valid and cannot be interfered with by this Court under the writ jurisdiction. ( 9 ) RE: Point No. 4. However, after perusing the reasons given by the Tribunal, I am of the view that the reasons given by the Tribunal are legal and valid and cannot be interfered with by this Court under the writ jurisdiction. ( 9 ) RE: Point No. 4. In connection with the Point No. 4, the Tribunal in paragraph 21 of the award held as follows :"carefully and anxiously considered the submissions of both sides on this point. It is true that the employer did not take this plea of double jeopardy in their written statement. So the employer is debarred from taking this plea at this stage of argument in view of the Supreme Court decision in Sankar Chakraborty 's case reported in (1979-II-LLJ-194 ). Apart from this, the said principle of double jeopardy is not applicable here before this Tribunal. The Rule against double jeopardy is incorporated in Article 20 (2) of the Constitution of India. This is based on the principle, "neme debet bis vexari" (No one should be twice vexed ). Article 20 (2) provides that no person shall be prosecuted and punished for the same offence more than one. Two conditions are also necessary for its application. First, a person shall be prosecuted. Secondly, he should he punished. The use of word 'and' is conjunctive here. But in the present case before this Tribunal there is no question of prosecution and punishment. Furthermore, the same; reference was never made before this Tribunal in previous occasion. Therefore, the principle of double jeopardy is not at ail helpful to the Learned Advocate of the employer. Furthermore, it is a well settled principle of law that Government can make a reference of a dispute which was previously turned down by the Government. What more this point was exhaustively discussed by Learned predecessor in order No. 38 dated December 23, 1983 at the time of disposing of the preliminary issue. Therefore, the said objection of the Learned Advocate of the employer has also got no force at all. "the learned Advocate for the petitioner in course of his argument also did not question the illegality of the finding of the Tribunal in respect of Point No. 4. However, I have gone through the reasons given by the Tribunal and I find that the reasons given are legal and valid and cannot be interfered with by this Court in the writ jurisdiction. However, I have gone through the reasons given by the Tribunal and I find that the reasons given are legal and valid and cannot be interfered with by this Court in the writ jurisdiction. ( 10 ) RE : Point No. 5. In connection with the Point No. 5, the Tribunal in paragraph 22 of the award held as follows :"the next objection of the Employer's side is that as the workmen did not claim any relief in this written statement and as the reference also did not ask this Tribunal to decide what relief the workmen are entitled to get, so they are not entitled to get any relief from this Tribunal. In reply to it, it may be said that, true, the Tribunal was not asked in the reference to decide what relief these workmen are entitled to get nor the workmen in their written statement did claim any relief, but if the Tribunal finds that the impugned retrenchment is illegal and so declares accordingly as per reference that the consequences wilt follow. When retrenchment becomes illegal then it becomes void ab initio and in that case only the workmen are deemed to be in continuous service. I get support of my such findings from the principle of law as observed in a reported decision of Supreme Court in Mohanlal 's case reported in 1981 Lab I. C. 80g (Supreme Court) (at paragraph 16 ). The same view was also shared by our Hon'ble High Court in R. M. Gupta 's case reported in (1979-I-LLJ-168 ). So, not praying any relief by the workmen nor asking this Tribunal to decide what relief these workmen are entitled to, it will not effect the case of the workmen in any way if this Tribunal declares finally in favour of the Union that the said retrenchment was illegal. "the learned Advocate for the petitioner in course of his argument did not challenge the findings of the learned Court in connection with the Point No. 5. No argument was advanced. However, I have gone through the reasons and I find that the reasons given are legal and val id and cannot be interfered with by this Court in the writ jurisdiction. ( 11 ) RE Point No. 6. No argument was advanced. However, I have gone through the reasons and I find that the reasons given are legal and val id and cannot be interfered with by this Court in the writ jurisdiction. ( 11 ) RE Point No. 6. In connection with Point No. 6, the Tribunal in paragraph 25, of award held as follows :"carefully and anxiously considered the submissions of both sides and also perused the materials on record. Sri Shayamapada Dasgupta deposed on behalf of the employer on February 26, 1985. When he deposed on that date he was the Manager of the said employer. At paragraph 4 of his evidence, he stated. "we had retrenched 16 of our workmen who were in the helper category. These 16 included the 7 workmen named in the present reference". So, these concerned workmen were the workmen of M/s. N. D. Mazumder and Co. is admitted. It is also admitted by this witness that they were retrenched. At paragraph 6 of his evidence he admitted that retrenchment benefit was given to the retrenched workers who came to the employer one by one. At paragraph 12 of his cross examination he admitted the retrenchment letter (Ext. A), addressing to a concerned workman Sri Haradhan Pal where Sri Pal was asked to collect one month's pay in lieu of one month's notice for his such retrenchment. In the said paragraph of his evidence this witness further admitted that such letters were issued to all those concerned workmen. So, the admitted position is that these 7 concerned workmen were retrenched by this employer and they worked continuously at least for a year otherwise they were not asked to take one month's salary in lieu of one month's notice such retrenchment. Now, the only question is left whether the retrenchment benefit was actually paid to those workmen. On behalf of the workmen the evidence adduced that they were not paid the said amount, whereas the Employer's witness said that they were so duly paid, so, there is oath against oath. No document is produced from the side of the employer to show that such payment was actually made. So, the question is whom should I believe? Though the employer was the actual custodian of those documents, those were not produced. No document is produced from the side of the employer to show that such payment was actually made. So, the question is whom should I believe? Though the employer was the actual custodian of those documents, those were not produced. It was submitted from the side of the employer that it was not possible to retain those documents after a long lapse of 14 years. It may be relevant are not traceable now but what prevented the employer to bring in the dock the said person as witness who actually made such payment. No explanation was given why the employer failed to bring such person on the dock to prove that actually such payment was made to the concerned workmen after the said retrenchment. Sri Shayamapada Dasgupta did not speak anywhere that he. personally paid to the said retirement benefit to the concerned workmen. He also did not say in his evidence that in his presence the said payment was made. So, the actual payment or the actual tender of such retrenchment benefit is not proved, either by documentary evidences or by positive oral evidences. These circumstances I am bound to believe theirs (sic) and in view of this I am of the opinion that the retrenchment of these 7 concerned workmen were not justified and the claim of these concerned workmen are bona fide. "the learned Advocate for the petitioner did not challenge the findings of the Tribunal in connection with Point No. 6. No argument was advanced. However, I have gone through the reasons given by the Tribunal and I find that the reasons given are legal (sic) and valid and the findings of the Tribunal cannot be interferred with by this Court in exercise of its writ jurisdiction. In paragraph 26 of the award, the Tribunal held as follows : "so the finding of this Tribunal in respect of the referred issue is in negative. It is hereby declared by this Tribunal that such retrenchment of the 7 concerned workmen by M/s. N. D. Mazumder and Company are not justified. This is the award of this Tribunal. " in view of the discussions made hereinabove, I am of the view that this Court in exercise of its writ jurisdiction cannot interfere with findings of the Tribunal. In my opinion, the findings of the Tribunal is legal and valid. This is the award of this Tribunal. " in view of the discussions made hereinabove, I am of the view that this Court in exercise of its writ jurisdiction cannot interfere with findings of the Tribunal. In my opinion, the findings of the Tribunal is legal and valid. As a result, the writ petition fails and the same is dismissed. All interim orders are vacated. However, there shall be no order as to costs.