Dictated Order D.K. Seth, J.: The Award dated 27th of August, 1998 passed in Reference No.1 of 1992 by the learned Central Government Industrial Tribunal at Calcutta, has since been challenged. The learned counsel for the petitioner points out that in the facts and circumstances of this case, the Reference could not be maintained since the case of the workman was not espoused by an Union and as such it was not a dispute within the meaning of section 2(k) of the Industrial Disputes Act. Secondly, he contends that the respondent No.4 was not a workman and as such there cannot be said to be any dispute existing between the parties. At the same time, it was no a case under section 2(a) and thus no dispute can be raised. It was also contended that the ld. Tribunal having found that the workman had failed to prove that he was a peon which the workman had all throughout been claiming to be, still then the ld. Tribunal had granted the reliefs despite the finding that the workman had been appointed as 'Coolie' (porter) or 'Thelawala' (cart-pullar). Therefore, the reliefs could not have been granted. He also relied on several decisions in support of his contention. According to him, the finding is wholly perverse. Since the question goes to the root of jurisdiction, therefore, it is the jurisdictional fact which this court should examine as to whether the ld. Tribunal had jurisdiction to entertain the question. The learned counsel for the petitioner further points out that there was a settlement in a dispute between the workmen and the petitioner pursuant to which there was a scheme for recruitment of badli and casual workers, but the workman had never applied for the same. On the other hand, the workman himself had applied for enhancement of his rates even after the said dispute stood compromised. The compromise was also implemented but the workman had never applied thereunder. Therefore, he cannot come within the purview of the said provisions. That apart, there is a Recruitment Rules or Staff Regulation. The workman had never come through the staff regulation and therefore be cannot be absorbed. 2. Mr. Dasan, learned counsel appearing for the workman, on the other hand, has contended that this court sitting in writ jurisdiction cannot re-appreciate the finding of facts. That apart, there is a Recruitment Rules or Staff Regulation. The workman had never come through the staff regulation and therefore be cannot be absorbed. 2. Mr. Dasan, learned counsel appearing for the workman, on the other hand, has contended that this court sitting in writ jurisdiction cannot re-appreciate the finding of facts. According to him, there are materials to come to a decision or conclusion one way or the other and the ld. Tribunal having reached one conclusion, the same cannot be interfered with by this court. He then contends that this objection as to the maintainability of the reference was never taken either in the writ petition or any where else, neither there was any prayer for deciding this question as a preliminary issue. Therefore, this objection could not be raised at the hearing. He also points out that the petitioner's case is sponsored at least upto the conciliation proceedings and till the reference is made by the Union, therefore, the ground that was taken by the petitioner cannot be sustained. He also contends that since the workman was a casual labourer, therefore, there was a relation of employer and employee and as such the reference was maintainable. He has also pointed out that on the facts there are materials to show that the workman was working with the petitioner-Corporation for a long time and continuously which is of a perennial nature and as such workman should be absorbed and therefore non-absorption has given rise to the dispute which has been rightly allowed by the Tribunal. 3. Mr. Dasan further contends that since all these questions were raised before the Tribunal and the Tribunal had found on fact that respondent No.4 is a workman, therefore this Court cannot interfere with the finding of the ld. Tribunal Mr. Dasan also relied on various decisions in support of his contention. 4. I have heard the submissions of the respective counsel at length. In order to appreciate the situation it would be beneficial to refer to the facts. It appears that the workman is claiming himself to have been appointed as peon. But the said contention could not be proved through evidence. The ld. Tribunal in its award has found that the workman had failed to prove that he was appointed as a peon. It appears that the workman is claiming himself to have been appointed as peon. But the said contention could not be proved through evidence. The ld. Tribunal in its award has found that the workman had failed to prove that he was appointed as a peon. In the pleadings it has been pointed out that the alleged workman was engaged as a 'coolie' or 'thelawala' on no working-no-pay basis, initially on the quantum of work done and then on daily rate. It was also pointed out that he was free to carry other works as thelawala or coolie apart from that of the employer, L.I.C. There was a dispute between the Union and the petitioner Corporation being Reference No. NTB-L/85. In the said Reference No. NTB-L/85 an award was passed on 17th of April, 1986. The ld. Tribunal gave its award interpreting the provisions of the award dated 17th April, 1986 on 26th August, 1988. Against the said order, a special leave petition was filed before the Supreme Court being S.L.P. 14906 of 1988 challenging both the awards. During the pendency of the said S.L.P. a compromise was arrived at. On 1st March, 1989 the S.L.P. was disposed of in terms of the compromise which was implemented. The terms of the compromise may be summarised as follows:- "(vi) In the said terms of compromise, 'Conditions of Eligibility' was agreed upon by the parties to be- Only those workmen who have worked as temporary, badli or part-time employees during the period from 1st January, 1982 to 20th May, 1985 hereinafter referred to as "relevant period" shall be considered for regular appointment, subject to their satisfying the conditions mentioned below: (l) Minimum-period-of-employment:- The minimum period of employment for being eligible for appointment shall be as follows:- (a) In a Class III post- 86 days in a period of any two calendar years during the relevant period. (b) In a Class IV post-70 days in a period of any three calender years during the relevant period. Notes: (i) Calendar years referred to above need not be consecutive years. (II) The number of days worked either prior to 1-1-1982 or subsequent to 20-5-1985 shall not be taken into account. (b) In a Class IV post-70 days in a period of any three calender years during the relevant period. Notes: (i) Calendar years referred to above need not be consecutive years. (II) The number of days worked either prior to 1-1-1982 or subsequent to 20-5-1985 shall not be taken into account. (III) The number of days worked by a workman in different capacities, such as temporary or badli in any of the regular categories, such as Assistant, Typist, Stenographer, Adroma Operator, Telephone Operators, Comptist, Punch Card Operators etc. in Class-III peon, Watchman, Liftman, Driver or Hamal, etc. in Class IV shall be taken into consideration for the purpose of arriving at the total number of days worked by such workman for determining his eligibility in terms of the minimum number of days required; and 'capacity in which worked' is laid down as follows: a) Only the work done in regular categories having regular scales of pay shall be taken into account. b) Workmen engaged as Coolies, Hamals etc. for specific jobs like shifting of furniture, cleaning or destruction of records etc. are not to be considered. c) Workman engaged by Contractors, Tenants' Association, Licensees' Association, Security Guards Board or any outside agency, shall not be considered. d) Employees who are engaged on seasonal work shall also not be considered. e) Self-contractors, electricians, waterman, pump man and work-charged employees shall not be considered. Those cases will be examined separately. And 'The process of selection and formation of posts' was laid down as follows:- 'The Divisional Office shall prepare afresh, the pools of eligible temporary and badli workmen from the applications received by it whether through any Union or directly from the workmen who made applications for regular employment on or before 7 -7 -1986 or those temporary/badli workman whose applications had been received after 7-7-1986 but before 6-3-1987 and had been rejected on account of late submission. The applications will be scrutinised once again after taking into account all the relaxations granted as aforesaid in the conditions of eligibility, i.e. qualifications, age, computation of number of days etc.' " 5. The applications will be scrutinised once again after taking into account all the relaxations granted as aforesaid in the conditions of eligibility, i.e. qualifications, age, computation of number of days etc.' " 5. Thus it appears from the reading of the said terms that only a casual or badli worker who was working against class III or Class IV post for a particular period was entitled to be considered for appointment provided he fulfilled the other eligibility criteria mentioned therein and had made applications within the time stipulated. In the said terms it was pointed out the workmen engaged in coolie or hamals for specific jobs like shifting of furniture or cleaning or destruction of records are not to be considered. 6. Admittedly, there was no post of 'Coolie' or 'thelawala'. When the petitioner himself claimed to have worked as peon, an alternative case could not have been made out by the ld. Tribunal. Even then when there had been no post of 'Coolie' or 'thelawala' it is difficult to expect that the workman was appointed in that post. Unless he is appointed in a post he cannot be taken in except in terms of the said compromise. In the said terms of compromise, it was provided that all applications which were received until 6th of March, 1987 should be considered. But the workman is alleged to have made an application or representation on 12th of June, 1987 for enhancement of his rate of remuneration. But he had never made an application for absorption or regularisation within the period viz: 6th of March, 1987. Thus he cannot claim to be appointed in terms of the terms of the compromise itself. 7. It appears that recruitment of employees in the petitioner-Corporation was governed by the Life Insurance Corporation of India (Staff) Regulation, 1960. Regulation 2 provides that it applies to every whole-time (salaried) employee of the Corporation. In the present case, admittedly, the workman was not a salaried employee and from the evidence itself it appears that he was not continuously working on monthly salary basis. In explanation to Regulation 2 the definition "employee" excludes insurance agents and work charged employees whose salaries are charged through particular property or properties or work or works. However, there is nothing to show that the workmen was a salaried one and that his payment was not charged to a particular work. In explanation to Regulation 2 the definition "employee" excludes insurance agents and work charged employees whose salaries are charged through particular property or properties or work or works. However, there is nothing to show that the workmen was a salaried one and that his payment was not charged to a particular work. Admittedly he was not recruited through the said Staff Regulation. Regulation 7 prescribes that all recruitments are to be made against vacancies in sanctioned posts and such appointment is to be made through selection by the appointing authority provided in sub-regulation (2) of Regulation 7. There is nothing to show that the workman had come through this selection or was appointed by any of the officers mentioned therein. Regulation 8 deals with temporary staff which prescribes that such appointment will not confer any benefit upon such engagement and such appointment or engagement can be made only if he is within the age limit between 18 years and 25 years. On record, there is nothing to show that the workman had come through any of these provisions and has any right. 8. On the other hand, his all attempt to claim himself to be a peon failed and found to have been not established by the ld. Tribunal, which makes his case fatal. The ld. Tribunal could not have made out an alternative case of 'Thelawala' or 'Coolie'. Then again, from the evidence it does not appear that such a conclusion can be arrived at by any prudent man. The evidence on record as was placed before this court clearly indicates that he has never been able to establish that he was either a badli worker or a casual worker. On the other hand, he was a cart puller who used to remove bundle of papers from one officer to other or for removing furniture which comes within the excluded category of 'Coolie' or 'hamals' who could not be considered under the said Terms of Compromise. In any event, the workman having not applied he could not have been engaged in implementation of the said Terms of Compromise. 9. The Industrial Dispute as defined in section 2(k) means any dispute between the employers and workmen which is connected with the employment or non-employment of any person. In any event, the workman having not applied he could not have been engaged in implementation of the said Terms of Compromise. 9. The Industrial Dispute as defined in section 2(k) means any dispute between the employers and workmen which is connected with the employment or non-employment of any person. In the present case, the workman having failed to prove that he was a workman, it cannot be said that there was an industrial dispute existing. The workman has not produced any document of proof to show that he was employed either as a badli worker or casual worker. When his case has failed he cannot survive on a third case which he never made out. If a person makes out a particular case and if he is unable to succeed on the same he cannot make out a third case never pleaded. In any event, there is nothing to show that he was either employed against any post in order to obtain benefits of his being recruited in terms of the said compromise. Even under the staff regulation no one has a right to be regularised de hors the said regulation except within the scope and ambit of the said compromise. If the workman cannot come within the said Terms of Compromise, he cannot claim any other right. Admittedly the workman has not come within the provisions of section 2(a). As such he has to confine his case within section 2(k) and to establish that he comes within section 2(k), that he was an employee or a workman. From the evidence, as has been produced, it appears that he has claimed himself to be a peon. But he has never made out a case that he was a 'thelawala' or a 'coolie' in his examination-in-chief. In cross-examination he has denied that he was employed as 'coolie' (porter) or 'thelawala' (cart-puller). 10. Thus, when the workman had been claiming himself to be a peon and denying to be appointed as 'Coolie' or Carter, the Tribunal cannot make out an alternative or third case of the workman's employment as 'Coolie' or 'Thelawala'. The other witness in support of the workman also' does not say that he was a 'Coolie' or 'Thelawala'. He had also contended that he was a peon. The other witness in support of the workman also' does not say that he was a 'Coolie' or 'Thelawala'. He had also contended that he was a peon. He said that he did not know if Maniram Yadav was employed as 'Coolie' and his duty was to carry goods or 'push carts'. Therefore, this witness also does not make out such a case. If the employer in its defence makes out a case that he was a 'Coolie' or a Carter hired from the open market, in that event, it cannot be said that he was appointed as a 'Coolie' or a 'Thelawala'. Certain documents were also produced to show that he was being paid as a 'Coolie' or 'Thelawala' on vouchers and there was nothing to show that he was paid salaries. Thus, on the basis of such materials, the finding that the workman was employed as a 'Coolie' or a 'Thelawala', if there was no such post, is wholly perverse and cannot be sustained. If he was working as a 'Coolie' or a 'Thelawala' which is admittedly not a post sanctioned in the L.I.C.I., he cannot be said to have been appointed either as badli or as casual employee when the compromise excludes 'Coolies' 'hamals' etc. 11. The Tribunal is not supposed to invent or make out an alternative or third' case for a party when it had never pleaded any alternative case nor had ever attempted to make out or even hinted at any alternative case. Neither, it can be so made out when the suggestion of the alternative case is categorically denied by the party. When a party seeks to establish its case on the basis of the pleadings ,and the evidence, it is open to the defending party to demolish such case in defence. If in defence an alternative case suggested by one of the party is denied by the other categorically then the ld. Tribunal has either to believe or to disbelieve the case or the defence, as the case may be. It can not make out an intermediate alternative case modifying the defence categorically denied by the other party in the absence of any attempt on the part of the latter to hint at any such alternative case. Tribunal is not supposed to modify the defence to make out an alternative or third case for the party categorically denying the defence case. 12. Tribunal is not supposed to modify the defence to make out an alternative or third case for the party categorically denying the defence case. 12. If the workman is unsuccessful in establishing his appointment he can not claim to be a workman. The basis or foundation of industrial dispute as defined in section 2(k) of the Act is the relationship of workman and employer. The absence of this relationship cuts at the root of the dispute and hit at the jurisdiction of the Tribunal. Therefore it is necessary, when assuming jurisdiction, to find out the relationship in order to resolve an industrial dispute which can not exist without such relationship. 13. Though the definition 'industrial dispute' is worded in very wide term as was held in National Association of Local Government Officers vs. Bolton Corporation, (1943) AC 166 (185) (H.L.), yet while citing the above decision with approval of the Federal Court in Western Indian Automobile Association vs. Industrial Tribunal, (1949) LLJ 245 (248) (F.C.), had laid down that the definition may be paraphrased as 'any dispute which has connection with the workman being in or out of service or employment.' Therefore to determine whether a controversy or difference or a dispute is an 'industrial dispute' or not it must first be determined whether the workman concerned satisfy the condition of section 2(s) of the Act. The dispute is limited to the persons mentioned in the definition of section 2(k) of the Act. In N. K. Sen vs. Labour Appellate Tribunal, 1953 (1) LLJ 6(7) (Born) (DB), per chagla C.J. the limitations are confined to a limited class constituted by the expression 'workman' used in the Act and outside the class of 'workman' the Act imposes no liability on the employer. 14. Thus unless one is able to establish himself a workman section 2(k) of the Act can not be attracted, even if it is sponsored by the Union. This relationship is the pivot on which industrial dispute rests. The existence of this dispute is the basis upon which jurisdiction of the Tribunal can be invoked or exerciser. It is the foundation on which the workman is entitled to seek a reference. It is the ground on which claim a relief sought for by the workman is based. The absence of this relationship leads the entire process into void. In this case the ld. It is the foundation on which the workman is entitled to seek a reference. It is the ground on which claim a relief sought for by the workman is based. The absence of this relationship leads the entire process into void. In this case the ld. Tribunal had found that the workman could not establish his case of appointment or working as peon and as such a workman. Thus the absence of this relationship takes away the jurisdiction of the ld. Tribunal to grant any relief in the facts and circumstances of this case by making out an alternative or third case denied by the workman, as discussed above. 15. So far as the question that the petitioner's case was not sponsored by the Union is concerned, it appears that the ld. Tribunal found that his case was sponsored by the Union. Whether he was a member 'of the Union or not is immaterial. His case was sponsored by the Union. Therefore, that finding cannot be interfered with. However, such finding will not help the workman, inasmuch as by reason of such finding, it does not advance the case of the workman as discussed above. 16. Mr. Ginwalla has relied on a decision in the case of Mathura Prasad Sarjoo Jaiswal & Ors. vs. Dossibai NB. Jeejeebhoy, reported in A.I.R. 1971 SC 2355, to contend that a question relating to jurisdiction cannot be deemed to have been finally determined by an erroneous decision of that Court. In the present case, the Tribunal has sought to assume jurisdiction but it could not have assumed jurisdiction in the absence of any dispute within the meaning of section 2(k) of the Act. Therefore, in terms of the Three Bench decision, if on erroneous interpretation of the statute, the court holds that it has no jurisdiction, the question would not operate as res judicata. Similarly, if by an erroneous decision, the court assumes jurisdiction which does not have under the Statute, the question does not operate as res judicata between the parties. Drawing analogy from the said decision, it can be said that even if a finding is arrived at on an erroneous interpretation, in that event, sitting in a writ jurisdiction, the same can be interfered with when it comes to the question of jurisdictional fact. 17. Mr. Drawing analogy from the said decision, it can be said that even if a finding is arrived at on an erroneous interpretation, in that event, sitting in a writ jurisdiction, the same can be interfered with when it comes to the question of jurisdictional fact. 17. Mr. Ginwala has also relied on a decision in the case of State of Uttar Pradesh and Ors. vs. Ajay Kumar, reported in 1997 (l) CLR 656. In the said decision, it was held that the daily wage employee appointed on daily wage basis cannot claim regularisation. The appointment on daily wage basis is obviously in relation to a contingent establishment in which there cannot exist any post even if it continues for a long time. Thus, there was no post and he was appointed on contingencies as a Coolie or a Carter on daily wage basis. He cannot claim any right to regularisation. That apart, in the present case, regularisation can be asked for in terms of the said compromise referred to above and not otherwise. In any event, he has to be appointed against a post; but here, there was no post and as such, the said ratio in the case of Ajay Kumar (supra) supports the view I have taken in this case. 18. Mr. Ginwala has also relied on a decision in the case of R. N. Nanjundappa vs. T. Thimmaiah & Anr., reported in A.I.R. 1972 SC 1767. In the said decision, the question was as to whether a person appointed on a temporary post, could claim regularibation, notwithstanding he claims for appointment. In the said case, the said question was held in the negative since regularisation cannot be made in utter defiance of rules. If the appointment itself is in infraction of the rules it is in violation of the provisions of law and as such, illegal and cannot be regularised. Ratification or regularisation is possible by an Act which is within the power and province of the Authority. 19. If there is non-compliance with the procedure or manner which does not go to the root of the appointment, then the regularisation cannot be said to be bad; but when it violates all rules, then it cannot be accepted. The ratio decided therein' applies in full force in the present case as discussed hereinbefore. 20. Mr. 19. If there is non-compliance with the procedure or manner which does not go to the root of the appointment, then the regularisation cannot be said to be bad; but when it violates all rules, then it cannot be accepted. The ratio decided therein' applies in full force in the present case as discussed hereinbefore. 20. Mr. Ginwala had also relied on a decision in the case of L.1.C.l. vs. Mrs. Asha Ramchhandra Amberkar and Anr., reported in FLR 1994 (68) 791. In the said decision, it was held that the court cannot give appointment on compassionate grounds, neither it can confer benediction impelled by sympathetic consideration. In fact, in this case, the Tribunal had proceeded on the basis of sympathetic consideration and had attempted to confer benediction on the alleged workman. 21. Mr. Dasan has relied on the decision in the case of Calcutta Port Shramik Union vs. The Calcutta River Transport Association & Ors., reported in AIR 1988 SC 2168 . He relied on paragraph 10. In the said paragraph, it was held that the Industrial Tribunals are created with the object of bringing about industrial peace. When a reference is made it has to be presumed to be genuine ordinarily that there is a dispute between the parties. In all such cases attempts should be made by the courts exercising power of judicial review to sustain as far as possible the awards made by the Industrial Tribunals instead of picking holes here and there in the awards on trivial points and ultimately frustrating the entire adjudication process before the Tribunal by striking down the awards on hypertechnical grounds. In the present case, the grounds as discussed above are not hypertechnical. Neither any hole is being picked up here and there on trivial points. The discussion clearly shows that it goes to the root of jurisdiction and the finding- is wholly perverse as discussed above. Therefore, this decision does not help Mr. Dasan in the present case. 22. Mr. Dasan then relied on a decision in the case of Workman of English Electric Company of India Ltd., Madras vs. Industrial Tribunal, Madras, and Anr., reported in 1990 (I) LLN 124 (SC). He relied on paragraph 8 of the said decision. Therefore, this decision does not help Mr. Dasan in the present case. 22. Mr. Dasan then relied on a decision in the case of Workman of English Electric Company of India Ltd., Madras vs. Industrial Tribunal, Madras, and Anr., reported in 1990 (I) LLN 124 (SC). He relied on paragraph 8 of the said decision. In the said case, it was held that the quantum of evidence or appreciation thereof for recording findings of fact would not come within the purview of the High Court's Extraordinary jurisdiction under Article 226 of the Constitution of India. This proposition is well settled. In the present case, as discussed above, when it relates to the jurisdictional fact it has to be examined as to whether it is perverse or not or it gives jurisdication to the Tribunal. Therefore the ratio decided has no manner of application in the facts and circumstances of this case. 23. Mr. Dasan next relied upon the decision in the case of Indian Overseas Bank vs. I.O.B. Staff Canteen Workers' Union and Anr., reported in (2000) 4 SCC 245 . He relied on paragraph 17 of the said decision wherein it was held that the evidence should not be lightly interfered with. If one or other view is reasonably possible, in that event it should not be re-apreciated. In the said case, on facts it was found that there overwhelming materials which constituted ample and sufficient basis for the recording of the findings as it did and the manner of consideration undertaken. The objectivity of the approach adopted and reasonableness of the findings recorded seem to be unexceptionable. The only course, therefore, open to the Writ Judge was to find out the satisfaction or otherwise of the relevant criteria laid down by the Apex Court before sustaining the claim of the Canteen Workmen on facts. As discussed above, in the present case, the finding as to the 'Coolie' or 'Thelawala' though is correct but in the absence of any post or in the absence of any material that he was ever appointed as such, there is nothing to show that the finding was supported by materials. At the same time, the workman had never claimed himself to be a 'Coolie' or 'Thelawala'. At the same time, the workman had never claimed himself to be a 'Coolie' or 'Thelawala'. Therefore, when something was put forth by the defence to defeat the claim of the workman, such proof cannot be used adversely against the employer and stated that the workman was employed as such when it was not the claim of the workman at all. Therefore, the sad decision also does not help Mr. Dasan in the present facts and circumstances of this case. 24. Mr. Dasan had then relied on a decision in the case of Divisional Manager, Arasu Rubber Corpn. Ltd. Chithar vs. Thangamuthu & Anr., reported in 1998 (1) CLR 364, to contend that since the petitioner, L.I.C.I., has proceeded with vexatious proceedings, therefore, the workman is entitled to cost. This decision has no manner of application in the present case. 25. Mr. Dasan has also relied on the decision in the case of Swam Singh and Anr. vs. State of Punjab and Ors., reported in A.I.R. 1976 SC 232, to contend that this Court cannot enter into the question of finding of facts when it has been so found by the Tribunal on the basis of materials placed before it and that the finding was based on relevant and existing ground. Even if there are some irrelevant and non-existing grounds, still then it cannot be interfered with. But the present case is distinguishable from the facts involved in the said case. In the present case, as discussed above, the entire finding as to the petitioner's appointment as 'Coolie' or 'Thelawala' is wholly based on irrelevant and non-existing grounds and, as such, the same can very well be interfered with. Therefore, this decision also does not help Mr. Dasan. For all these reasons it appears that the Award cannot be sustained and is, accordingly, quashed. The writ petition succeeds and is allowed. Mr. Ginwala contends that the petitioner has paid a sum of Rs. 20,000/- to the workman in order to obtain stay. However, I am not inclined to ask the workman to refund the said amount. The L.I.C.I. shall not be entitled to recover the said amount from the respondent. However, if the workman is still engaged as 'Coolie' or 'Carter', he may continue to be engaged as such on the same conditions or as may be agreed without claiming any other benefits. The L.I.C.I. shall not be entitled to recover the said amount from the respondent. However, if the workman is still engaged as 'Coolie' or 'Carter', he may continue to be engaged as such on the same conditions or as may be agreed without claiming any other benefits. There will be no order as to costs. All parties concerned are to act on a xeroxed signed copy of the Dictated Order on the usual undertaking.