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2008 DIGILAW 747 (GAU)

Food Corporation of India v. Union of India

2008-09-30

B.D.AGARWAL, UTPALENDU BIKAS SAHA

body2008
JUDGMENT U.B. Saha, J. 1. This appeal arises from the judgment and order dated 28.9.2001 passed by the learned Single Judge of this Court in W.P.(C) No. 210 of 1999 whereby and whereunder the learned Single Judge dismissed the writ petition filed by the Appellants herein upholding the award passed by the Industrial Tribunal, Guwahati ('the Tribunal') on 17.2.1998, notified on 14.10.1998 in Reference No. 10(C) of 1993 arising out of a dispute between the Management of the Food Corporation of India ('FCI') and the workmen, represented by the General Secretary, Food Corporation of India Workers' Union. 2. We have heard Mr. P. Chakraborty, learned Counsel for the writ Petitioner-Appellants and Mr. A.K. Bhowmik, learned senior Counsel, assisted by Ms. K. Deb, learned Counsel for the Respondent workmen as well as Mr. D.C. Roy, learned Counsel for the Respondent No. 4. 3. The factual background necessary for the purpose of disposal of this writ appeal and the legal issues involved in this appeal are as under: The 37 workers of the Respondent workmen, FCI Workers' Union though worked actually for the Appellant FCI and were entitled to wages at par with the direct payment system workers of the FCI, they were not paid their wages at par with those direct payment system workers by the Management of the Appellant FCI on the ground that they were not engaged by the Appellant FCI, but by the contractor working under the Central Warehousing Corporation ('CWC'), a Govt. of India undertaking, Respondent No. 4 herein for which the workmen raised their claim. As a dispute arose between the Management of the Appellant FCI and the Respondent workmen and conciliation having failed, by an order dated 27.10.1993, the Central Government referred the dispute to the Tribunal for adjudicating the following points under Section 10 of the Industrial Disputes Act, 1947 ('the Act of 1947'). Whether the claim of wages of 37 workers w.e.f. 1.8.88 to 31.10.89 (15 months) at par with direct payment system workers of Food Corporation of India is Justified? If so, what relief the workers concerned are entitled to? 3a. Written statements were filed by the Appellants herein as well as the Respondent workmen. Whether the claim of wages of 37 workers w.e.f. 1.8.88 to 31.10.89 (15 months) at par with direct payment system workers of Food Corporation of India is Justified? If so, what relief the workers concerned are entitled to? 3a. Written statements were filed by the Appellants herein as well as the Respondent workmen. The case of the writ Petitioner-Appellants before the Tribunal, inter alia, was that the 37 workers were engaged at Hapania by the CWC for the work of loading, unloading, etc., at the Warehouses where the food grains of the Appellants were stored during the period 1.8.1988 to 31.10.1989 and, therefore, the said 37 workers were not entitled to wages at par with direct payment system workers of the Appellant FCI. On the other hand, the case of the Respondent workmen was that the 37 workers were actually the workers of the Appellant FCI and were entitled to wages at par with direct payment system workers of the Appellant FCI. As the Appellants in their written statement pleaded, inter alia, that the 37 workers were engaged by the CWC, the CWC filed a petition before the Tribunal for being impleaded as a party in the dispute, which was allowed by the Tribunal and the CWC also filed its written statement. After taking the evidences adduced by the respective parties in the dispute, the Tribunal by its award dated 17.2.1998, notified on 14.10.1998 held that there existed a relationship of employer and employee between the Appellant FCI and Respondent workmen who had been working for loading and unloading of goods of the Appellant FCI at Hapania and they were legally entitled to have the benefits of wage rates of settlement dated 7/9.11.1988 effective from 1.8.1988 and deprivation of the benefits under the said settlement dated 7/9.11.1988 on the plea that they were not the workers of the Appellant FCI was arbitrary and not legally tenable in the eye of law and directed the Management of the Appellant FCI to pay the wages under the Direct Payment System of settlement of 1988 forthwith to the 37 workers. 3b. 3b. Being aggrieved by the award of the Tribunal, the Appellants herein filed the writ petition for quashing the aforesaid award of the Tribunal on the ground that the Tribunal having no jurisdiction impleaded CWC as a party in the reference in question and the Tribunal exceeded its jurisdiction holding that the deprivation of the benefits under settlement dated 7/9.11.1988 to the 37 workers was arbitrary as there was no reference before it on that point. 3c. Upon hearing the submission of the learned Counsel of the respective parties and considering the relevant law reports cited by the learned Counsel, the learned Single Judge framed questions to be decided in the writ proceedings, which are as follows: (i) Whether the Tribunal had no jurisdiction to implead the CWC as a party to the proceeding? (ii) Whether the finding of the Tribunal that the deprivation of the benefits under settlement dated 7/9.11.1988 to the 37 workers was arbitrary, was in excess of its jurisdiction? (iii) Whether the Tribunal by holding that the 37 workers were legally entitled to the benefits of revised wage rate under the settlement dated 7/9.11.1988 has rewritten the settlement dated 7/9.11.1988 and has exceeded its jurisdiction? 3d. Considering Sub-section (3) of Section 18 of the Act of 1947, the learned Single Judge held that the Tribunal has not exceeded its jurisdiction by impleading the CWC as a party to the proceeding and while deciding the second question, inter alia, that the deprivation of the benefits under settlement dated 7/9.11.1988 to the 37 workers was arbitrary, the learned Single Judge considered the provision of Sub-section (4) of Section 10 of the Act of 1947 as well as the decision of the Apex Court in the case of Bharat Bank v. Employees of Bharat Bank, AIR 1950 SC 188 as cited by the learned Counsel for the writ Petitioners, Appellants herein wherein the Apex Court held- ...Power to adjudicate on such a dispute is given by Section 7 of the statute to an Industrial Tribunal and a duty is cast on it to adjudicate it in accordance with the provisions of the Act. The words underlined (italicized) clearly imply that the dispute has to be adjudicated according to law and not in any other manner. The words underlined (italicized) clearly imply that the dispute has to be adjudicated according to law and not in any other manner. When the dispute has to be adjudicated in accordance with the provisions of the Act, it follows that the tribunal has to adhere to law, though that taw may be different from the law that an ordinary Court of justice administers.... 3e. Keeping in mind the aforecited decision of the Apex Court, the learned Single Judge held, inter alia, that the finding recorded by the Tribunal that deprivation of the benefits under the settlement dated 7/9.11.1988 to the 37 workers was arbitrary, cannot be said to be an adjudication of the dispute contrary to law. The learned Single Judge further held that arbitrariness is the antithesis of law and if the Tribunal decided that the Management of the FCI had acted arbitrarily in depriving the benefits under the settlement dated 7/9.11.1988 to the 37 workers, this Court cannot hold that such adjudication by the Tribunal has not been in accordance with law. 3f. Considering the provision of Sub-section (4) read with Sub-section (3) of Section 18 of the Act of 1947, the learned Single Judge held that the contention of the writ Petitioners, Appellants herein, inter alia, that the Tribunal had no jurisdiction to extend the benefits of the settlement dated 7/9.11.1988 to the 37 workers, who were not included under the said settlement, is misconceived in law meaning thereby the learned Single Judge answered the last question in the negative and ultimately dismissed the writ petition being devoid of merit and vacated the interim order passed by it on 6.5.1999. Being aggrieved by the decision of the learned Single Judge, the writ Petitioners preferred the instant appeal. 4. Mr. Chakraborty, learned Counsel appearing for the Appellants while attacking the decision of the learned Single Judge would contend that the learned Single Judge failed to consider the award of the Tribunal in its proper perspective. The learned Single Judge ought to have come to a finding that the Tribunal proceeded beyond the scope of reference by impleading the CWC as a party as the power of such impleadment in a reference is with the respective Government and in the instant case with the Central Government and the tribunal has no power either to re-write the reference or go beyond it. In support of his aforesaid contention, he placed reliance on the decision of the Apex Court in the case of Bharat Bank (supra). Firestore Tyre and Rubber Co. of India (P.) Ltd. v. Workmen Employed, represented by Firestone Tyre Employees' Union, (1981) 3 SCC 451 and in Gouri Sankar Chatterjee and Ors. v. Texmaco Ltd. and Ors., (2001) 2 SCC 257 in which the Apex Court followed the earlier decision in Firestore Tyre and Rubber Co. of India (P.) Ltd. (supra) on which the appellant FCI placed reliance before the learned Single Judge in the writ proceedings. Mr. Chakraborty also contended that as there was no evidence before the Tribunal regarding the relationship of employer and employee between the appellant FCI and the respondent workmen, the learned Single Judge ought to have come to a conclusion that those 37 workers were the workers of respondent CWC and they were not entitled to the wage at par with the direct payment system workers of the appellant FCI and consequent thereto the award passed by the learned Tribunal was illegal. To buttress his aforesaid submission, Mr. Chakraborty, learned Counsel placed certain documents before this court including the letter dated 19.9.1989 written by the District Manager, FCI, Agartala to the Senior Regional Manager, FCI, Shillong, letter dated 9.1.1990 written by the Deputy Zonal Manager, Zonal Office, Guwahati to the Senior Regional Manager, FCI, Shillong as well as the letter dated 3.9.2002 written by the District Manager, FCI, Agartala to the learned Counsel for the respondent workmen. He finally contended that the Tribunal had rewrite the settlement dated 7/9.11.1988 and on that count also the award of the learned Tribunal was liable to be set aside. 5. In response to the submission of Mr. Chakraborty, learned Counsel for the appellants. Mr. Bhowmik, learned senior Counsel for the respondent workmen submits that the writ court cannot convert it to an appellate forum for interfering with the findings of the Tribunal on jurisdictional facts, which the Tribunal is only competent to decide. The writ court can only interfere with the decision of the Tribunal if such decision or award is passed on no evidence and/or perverse and/or beyond jurisdiction. In support of his aforesaid contention Mr. Bhowmik placed reliance on the decisions of the Apex Court in Indian Overseas Bank v. IOB Staff Canteen Workers Union and Anr. The writ court can only interfere with the decision of the Tribunal if such decision or award is passed on no evidence and/or perverse and/or beyond jurisdiction. In support of his aforesaid contention Mr. Bhowmik placed reliance on the decisions of the Apex Court in Indian Overseas Bank v. IOB Staff Canteen Workers Union and Anr. AIR 2000 SC 1508 , particularly paras 19 and 20 of the judgment and in Workmen of Dodsal (P.) Ltd. v. Dodsal (P.) Ltd., AIR 1979 SC 1072 , particularly Para 3 of the judgment wherein the Apex Court held that the High Court was not justified in reappraising the material and in seeking to give its own interpretation of the earlier award as if the High Court was exercising appellate powers over the Industrial Tribunal. The interpretation of the earlier award was within the competence of the Industrial Tribunal and the High Court was not right in seeking to displace that interpretation merely because another interpretation was also possible. The Apex Court also held that when the High Court was conscious that another interpretation than that placed by them on the award was possible, in those circumstances the High Court ought not to have interfered with the present award of the Industrial Tribunal placing its own interpretation on the earlier award. Mr. Bhowmik further contended that the writ court also not entitled to interfere with the finding of the Tribunal on jurisdictional fact while exercising the jurisdiction under Article 226 of the Constitution and the learned Single Judge rightly did not interfere with the award passed by the Tribunal. In support of his aforesaid submission, he placed reliance on the decision of the Apex Court in the case of Sadhu Ram v. Delhi Transport Corporation, AIR 1984 SC 1467 and in Calcutta Port Shramik Union v. The Calcutta River Transport Association and Ors., AIR 1988 SC 2168 . In support of his aforesaid submission, he placed reliance on the decision of the Apex Court in the case of Sadhu Ram v. Delhi Transport Corporation, AIR 1984 SC 1467 and in Calcutta Port Shramik Union v. The Calcutta River Transport Association and Ors., AIR 1988 SC 2168 . He finally submitted that to deprive the Respondent workmen, from the benefit of direct payment system, the Appellant FCI all along made an endeavour to treat the workmen as labourers supplied by the contractor through CWC though it was known to the Appellant that those 37 workmen were directly controlled by them and were permitted to put their signatures in the acquaintance roll prepared by the Appellant FCI and the workers were arbitrarily denied their due wages and as such the tribunal rightly held that the deprivation of the benefits to those 37 workers under the settlement dated 7/9.11.1988 on the plea that they were not the workers of the Appellant FCI was arbitrary. In Indian Overseas Bank (supra), the Apex Court in Para 19 and 20 held thus- 19. The learned Single Judge seems to have undertaken an exercise, impermissible for him in exercising writ jurisdiction, by liberally reappreciating the evidence and drawing conclusions of his own on pure questions of fact, unmindful, though aware fully, that he is not exercising any appellate jurisdiction over the awards passed by a Tribunal, presided over by a Judicial Officer. The findings of fact recorded by a fact-finding authority duly constituted for the purpose and which ordinarily should be considered to have become final, cannot be disturbed for the mere reason of having been based on materials or evidence not sufficient or credible in the opinion of the writ court to warrant those findings at any rate, as long as they are based upon some material which are relevant for the purpose or even on the ground that there is yet another view which can be reasonably and possibly one taken. The Division Bench was not only justified but well merited in its criticism of the order of the learned Single Judge and in ordering restoration of the Award of the Tribunal. The Division Bench was not only justified but well merited in its criticism of the order of the learned Single Judge and in ordering restoration of the Award of the Tribunal. On being taken through the findings of the Industrial Tribunal ate well as the order of the learned Single Judge and the judgment of the Division Bench, we are of the view that the Industrial Tribunal had overwhelming materials, which constituted ample and sufficient basis for recording its findings, as it, did and the manner of consideration undertaken, the objectivity of approach adopted and reasonableness of 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 this Court, before sustaining the claim of the canteen workmen on the facts found and recorded by the fact-finding authority and not embark upon an exercise of re-assessing the evidence and arriving at findings of ones own, altogether giving a complete go-bye even to the facts specifically found by the Tribunal below. 20. The standards and nature of tests to be applied for finding out the existence of Master and Servant relationship cannot be confined to or concretized into fixed formula(s) for universal application invariably in all class or category of cases. Though some common standards can be devised, the mere availability of anyone or more or their absence in a given case cannot by itself be held to be decisive of the whole issue, since it may depend upon each case and the peculiar device adopted by the employer to get his needs fulfilled without rendering him liable. That being the position, in order to safeguard the welfare of the workmen, the veil may have to be pierced to get at the realities. Therefore, it would be not only impossible but also not desirable to lay down abstract principles or rules to serve as a ready reckoner for all situations and thereby attempt to compartmentalize and peg them into any pigeonhole formulas, to be insisted upon as proof of such relationship. This would only help to perpetuate practicing unfair labour practices than rendering substantial justice, to the class of persons who are invariably exploited on account of their inability to dictate terms relating to conditions of their service. This would only help to perpetuate practicing unfair labour practices than rendering substantial justice, to the class of persons who are invariably exploited on account of their inability to dictate terms relating to conditions of their service. Neither all the tests nor guidelines indicated as having been followed in the decisions noticed above should be invariably insisted upon in every case, nor the mere absence of any one of such of such criteria could be held to be decisive of the matter. A cumulative consideration of a few or more of them, by themselves or in combination with any other relevant aspects, may also, serve to be the safe and effective method to ultimately decide this often agitated question. Expecting similarity or identity of facts in all such variety or class of cases involving different type of establishments can in dealing with different employers would mean seeking for things, which are only impossible to find. 6. Mr. D.C. Roy, learned Counsel appearing for the Respondent No. 4 submits in the same tune of the submission made by Mr. Bhowmik, learned senior Counsel for the Respondent workmen. 7. Now, for proper appreciation of the submission of the learned Counsel for the parties as well as for scrutiny of the impugned judgment, it would be profitable for us first to examine the scheme of the Act of particularly what was the object for enacting such an Act by the Legislature. It appears from the Act that the same was enacted for providing social justice to the workers in industry as well as to the management of the industry so that the workers should not be deprived of from their lawful dues and at the same time, the management can also run their industry without any chaos from the side of the workers and not only that the Legislature in its own wisdom has empowered the labour court and tribunal with all the powers of the civil court for adjudicating industrial dispute. Our aforesaid view gets support from the observation of the Apex Court in Para 8 of The Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke and Ors., AIR 1975 SC 2238 . For better understanding, relevant part of Para 8 of the said judgment is reproduced herein below: 8. Our aforesaid view gets support from the observation of the Apex Court in Para 8 of The Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke and Ors., AIR 1975 SC 2238 . For better understanding, relevant part of Para 8 of the said judgment is reproduced herein below: 8. The object of the Act as its preamble indicates, is to make provision for the investigation and settlement of industrial disputes, which means adjudication of such disputes also. The Act envisages collective bargaining contracts between Union representing the workmen and the management, a matter which is outside the realm of the common law or the Indian Law of contract. ...Since the time of the earliest decisions of the Federal Court and the Supreme Court of India it has been recognized fully weft that the powers of the authorities deciding industrial disputes under the Act are very extensive - much wider than the powers of a civil court while adjudicating a dispute which may be an industrial dispute. The Labour Courts and the Tribunals to whom industrial disputes are referred by the appropriate governments under Section 10 can create new contracts, lay down new industrial policy for industrial peace, order reinstatement of dismissed workmen which ordinarily a civil court could not do.... 8. For proper adjudication of the instant appeal, we thought it fit to reproduce the provisions of Section 10(4) as well as Section 18 of the Act of 1947. 10(4) The arbitrator or arbitrators shall investigate the dispute and submit to the appropriate Government the arbitration award signed by the arbitrator or all the arbitrators, as the case may be. 18. Persons on whom settlement 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 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 [of a Labour Court. [(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 [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 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 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. 9. We have given our anxious consideration to the submission of the learned Counsel for the parties as well as the impugned judgment and order of the learned Single Judge, the award passed by the Tribunal and the law report cited. 10. In Hochtief Gammon (supra), the Apex Court while dealing with Sub-clause (b) of Sub-section (3) of Section 18, Sub-clause (3) of Section 11 and Sub-clause (1) of Section 10 of the Act of 1947, relating to the power of the tribunal, observed that Section 18(b) seems to contemplate that persons other than parties to the industrial dispute may be summoned before the Tribunal and Section 11(3) of the Act also prescribed, inter alia, that the tribunal shall have the same powers as are vested in a civil court under the Code of Civil Procedure, when trying a suit in respect of the matters specified in Clauses (a) to (d); Clause (a) refers to enforcing the attendance of any person and examining him on oath; Clause (b) has reference to the power to compel the production of documents and material objects; Clause (c) is in respect of issuing commissions for the examination of witnesses; and Clause (d) is in respect of such other matters as may be prescribed. It is, thus, clear that the power to add a party to the proceedings pending before a tribunal which may be exercised under the Code of Civil Procedure under Order 1, Rule 10 is not included in Section 11(3), and there is no other section which confers such a power on the Tribunal. Therefore, if Section 18(b)contemplates that persons other than parties to the industrial dispute can be summoned, there is no specific provision conferring power on the Tribunal to summon them, and that inevitably suggests that the power must be read as being implicit in Section 18(b) itself. In the aforesaid judgment, the Apex Court as to the effect of the power which is implied in Section 18(3)(b) of the Act of 1947 also observed that it is clear that this power cannot be exercised by the Tribunal so as to enlarge materially the scope of the reference itself, because basically the jurisdiction of the Tribunal to deal with an industrial dispute is derived solely from the order of reference passed by the appropriate Government under Section 10(1). What the Tribunal can consider in addition to the disputes specified in the order of reference, are only matters incidental to the said disputes; and that naturally suggests certain obvious limitations on the implied power of the Tribunal to add parties to the reference before it, purporting to exercise its implied power under Section 18(3)(b). if it appears to the Tribunal that a party to the industrial dispute named in the order of reference does not completely or adequately represent the interest either on the side of the employer, or on the side of the employee, it may direct that other persons should be joined who would be necessary to represent such interest. If the employer named in a reference does not fully represent the interests of the employer as such, other persons who are interested in the undertaking of the employer may be joined. Similarly, if the unions specified in the reference do not represent all the employees of the undertaking, it may be open to the Tribunal to add such other unions as it may deem necessary. The test always must be is the addition of the party necessary to make adjudication itself effective and enforceable. In other words, the test may well be, would the non-joinder of the party make the arbitration proceedings ineffective and unenforceable. The test always must be is the addition of the party necessary to make adjudication itself effective and enforceable. In other words, the test may well be, would the non-joinder of the party make the arbitration proceedings ineffective and unenforceable. It is in the light of this test that the implied power of the Tribunal to add parties must be held to be limited. 11. From the Schedule of the order of reference as reproduced above, it would appear that the purpose of reference was to ascertain from the tribunal as to whether the claim of wages of 37 workers w.e.f. 1.8.1988 to 31.10.1989 (15 months) as par with the direct payment system workers of the Appellant FCI was justified and if so, what relief the workers concerned were entitled to. The terms of reference though not specifically stated regarding the relationship of employer and employee between the Appellant FCI and the 37 workers of the Respondent workmen, but undoubtedly empowered the tribunal to decide the reference in accordance with law when a duty had been cast upon the tribunal, it cannot be said that the tribunal was debarred from deciding the point regarding the relationship of employer and employee between the Appellant FCI and the 37 workers of the Respondent workmen. Not only that the tribunal having power of the civil court is always empowered to decide the matters incidental thereto even the matter of impleadment of party subject to the tribunal feels that in absence of such parties reference cannot be decided in its proper perspective and for passing such order of impleadment of parties, the power of tribunal to whom the reference was made for adjudicating the dispute is more extensive and wider even than those of civil court as would be evident from a Full Bench decision of Punjab and Haryana High court in Sukhi Ram v. State of Haryana, Chandigarh 1982 Lab IC 1282 wherein the said High Court held, infer alia, "it is now well settled by a string of precedents that the powers of the authorities deciding industrial disputes under the Act are far more extensive and wider than the powers of civil court whilst adjudicating a dispute, which may also be an industrial dispute.... 12. 12. The Appellants took a plea before the tribunal that those 37 workers were not the employee of them, but in fact were the employee of the Respondent CWC and they were performing the work of loading, unloading etc. at the Warehouses where the food grains of the Appellants were stored during the period 1.8.1988 to 31.10.1989. It is also contended that the warehouse owned by CWC at Hapania was hired by the Appellant FCI for storage of their commodities and those 37 workers had been working in Hapania Warehouse since 1979 as workers of Jute Corporation of India ('JCI') as the warehouse was under the possession of JCI and though the FCI intended to engage their own workmen they could not engage because of the protest lodged by those 37 workers and Appellant FCI had no workers of their own working at CWC warehouses at Hapania and those workers were engaged by CWC. Therefore, to decide the question whether those 37 workers were the real employee of the CWC or the employee of the Appellant FCI, the presence of CWC as a party in the reference was necessary and for which the tribunal on the basis of the application filed by the CWC impleaded it as a party. The learned Single Judge for coming to the conclusion that the tribunal had not exceeded its jurisdiction in impleading the CWC as a party to the reference took support from the decision of the Apex Court in the case of Hochtief Gammon (supra) wherein the Apex Court held, thus- Section 10(4) which was also added by the same amending Act provides, inter alia, that the jurisdiction of the Industrial Tribunal would be confined to the points of dispute specified by the order of reference, and adds that the said jurisdiction may take within its sweep matters incidental to the said points. In other words, where certain points of dispute have been referred to the Industrial Tribunal for adjudication, it may, while dealing with the said points, deal with matters incidental thereto, and that means that if, while dealing with such incidental matters, the Tribunal feels that some persons who are not joined to the reference should be brought before it, it may be able to make an order in that behalf under Section 18(3)(b) as it now stands. 13. In the case of Chhaganmall Sarawgi & Sons and Ors. 13. In the case of Chhaganmall Sarawgi & Sons and Ors. v. Presiding Officer, Industrial Tribunal and Ors. AIR 1973 119, a Division Bench of this Court hold- The Tribunal docs not appear to act suo motu in this case regarding addition of parties. It is not that the Tribunal would not have in an appropriate case that power. Section 18(3)(b) would go to show that there is a duty cast upon the Tribunal it self to consider at some stage whether it is necessary to implead cretin parties. Section 10(5) confers a power on the State Government to add parties at or after making of the reference and latest before submission of the award. Once that power is exercised by the Tribunal, the Tribunal under Section 18(3) can add to those parties which are mentioned in the notification as new parties in the case. Apart from this, if the Tribunal comes to a conclusion that for resolving particular dispute referred to by the Government some parties are necessary for an effective determination of the issues and without them it will not be possible to enforce the award, then, it may order for impleading those parties. An order of addition of parties is a very serious matter in an industrial proceeding and as such the Tribunal must apply its mind and consider and decide any objection that may be raised. In the instant case, it is not the Tribunal who summoned the Respondent No. 4 CWC to appear in the reference nor impleaded it as a party in the reference, rather the Respondent CWC itself made an application before the Tribunal for impleading it as a party in the reference, which was allowed by the Tribunal after proper application of mind for lawful adjudication of the referral dispute. 14. In the impugned judgment, the learned Single Judge has discussed the cases of Firestone Tyre Employees' Union (supra) and Gouri Sankar Chatterjee and Ors. (supra) cited by the learned Counsel for the writ Petitioner-Appellants, which have also been discussed here in details. While discussing the above cited cases, the learned Single Judge taking into account all the facts of those cases, came to the conclusion that the facts of those cases are quite different from the case in hand. (supra) cited by the learned Counsel for the writ Petitioner-Appellants, which have also been discussed here in details. While discussing the above cited cases, the learned Single Judge taking into account all the facts of those cases, came to the conclusion that the facts of those cases are quite different from the case in hand. In Firestone Tyre Employees' Union (supra), the Supreme Court held that the Tribunal traveled beyond its jurisdiction in recording a finding of unfair labour practice and discrimination and in the case of Gouri Sankar Chatterjee and Ors. (supra), the award of the Tribunal had been challenged in the High Court and the Division Bench of the High Court held that the main issue referred to the Tribunal was whether Badli workmen should be regularized and for arriving at a just conclusion it was permissible for the Tribunal to consider as to how the workmen had been treated and as to whether they had been subjected to unfair labour practice or not, but while doing so, the Tribunal did not put the Management on notice. The Division Bench of the High Court relied on Firestone Tyre Employees' Union (supra) and held that the Tribunal should consider the matter afresh in accordance with law and set aside the award of the Tribunal within three months from the date of communication of the order and on these facts, the Supreme Court did not interfere with the judgment of the Division Bench of the High Court. In the impugned judgment, the learned Single Judge observed that in paragraphs 6, 7, 8 and 9 of the written statement filed on behalf of the workmen a specific plea had been taken that the concerned 37 workers had been illegally and in a discriminatory manner deprived of the benefits of revised wages fixed under the settlement dated 7/9.11.1988 for other workers of the FCI. The Management of the FCI, therefore, had been put to notice about the aforesaid case of the workmen and the Appellants had due opportunity to lead evidence before the Tribunal on the aforesaid points raised by the workmen in their written statement and, therefore, the question of setting aside the impugned award of the Tribunal and remanding the matter to the Tribunal for a fresh decision does not arise. We do not find any reason to differ with the views expressed by the learned Single Judge. 15. We do not find any reason to differ with the views expressed by the learned Single Judge. 15. In the instant case, the tribunal allowed the prayer of CWC for impleading it as a party to make the adjudication effective and enforceable and according to us, without impleading the CWC as a party in the reference no effective and enforceable adjudication of referral dispute was possible by the tribunal even if other decision was possible then also that would not be effective and lawful adjudication. Hence such impleadment of CWC as party to the proceeding cannot be said to be illega1 and we find no reason to disagree with the findings of the learned Single Judge on that count. 16. Now, question remains whether the writ court can frustrate the jurisdictional fact as decided by the tribunal on the basis of the evidences adduced by the respective parties before it to hold that those 37 workers were not engaged by the Appellant FCI, but by the Respondent CWC through contractor and as such those workers were not the employee of the Appellant FCI and there was no relationship of employer and employee between the Appellant FCI and those 37 worker Respondents. 17. The answer is no longer res integra as it is settled by the Apex Court in various decisions that the writ court cannot convert it as an appellate authority of the Tribunal. It can only interfere with the findings of the Tribunal when the finding is perverse and without jurisdiction. In the instant case, it appears from the record that those 37 workers had been paid wages by the Appellant FCI directly, they had been paid annual bonus and ex gratia from time to time and the rate of their wages had been fixed by settlement between the Management of the Appellant FCI and the Union of those workers and they were doing the work of loading and unloading of goods of Appellant FCI like the workers of the Appellant FCI who were provided with the benefit of direct payment system. The Tribunal for deciding the relationship of employer and employee between the Appellant FCI and Respondent workmen took aid from the decision of the Apex Court in the case of Hussainbhai v. The Alath Factory Tezhilali Union 1978 Lab IC 1264 wherein the Apex Court in para 5 and 6 held, thus- 5. The Tribunal for deciding the relationship of employer and employee between the Appellant FCI and Respondent workmen took aid from the decision of the Apex Court in the case of Hussainbhai v. The Alath Factory Tezhilali Union 1978 Lab IC 1264 wherein the Apex Court in para 5 and 6 held, thus- 5. The true test may, with brevity, be indicated once again. 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, we discern the naked truth, though draped in different perfect paper arrangement, that the real employer is the Management, not the immediate contractor. Myriad devices, half-hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like may be resorted to when labour legislation casts welfare obligations on the real employer, based on Articles 38, 39, 42,43 and 43-A of the Constitution. The court must be astute to avoid the mischief and achieve the purpose of the law and not be misled by the maya of legal appearances. 6. If the livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefit and satisfaction of an enterprise, the absence of direct relationship or the presence of dubious intermediaries or the make-believe trappings of detachment from the Management cannot snap the real-life bond. The story may vary but the inference defies ingenuity. The liability cannot be shaken off. 18. In Sadhu Ram (supra), the Apex Court held that the High Court is not entitled to interfere with the findings on the jurisdictional facts and also to substitute its own judgment over the judgment of the Labour Court for holding that the workmen had raised no demand with the management. The High Court can only interfere with the judgment of the tribunal when the tribunal has snatched at jurisdiction. 19. The High Court can only interfere with the judgment of the tribunal when the tribunal has snatched at jurisdiction. 19. In Calcutta Port Shramik Union (supra) the Apex Court held that whenever a reference is made by a Government to an industrial tribunal it has to be presumed ordinarily that there is a genuine industrial dispute between the parties which requires to be resolved by abdication and in all such cases an attempt should be made by courts exercising powers of judicial review to sustain as far as possible the awards made by industrial tribunals instead of picking holes here and there in the awards on trivial points and ultimately frustrating the entire adjudication process before the tribunals by striking down awards on hyper-technical grounds. 20. The Apex Court in Syed Yakoob v. K.S. Radhakrishnan and Ors., AIR 1964 SC 477 in Para 7 discussed about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 of the Constitution, which is as follows: 7....A writ of certiorari can be issued for correcting errors of Jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, it is in excess of it, or as a result of failure to exercised Jurisdiction. A writ can similarly be issued where in exercise of Jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural Justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however, grave it may appear to be. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however, grave it may appear to be. In regards to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on that High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955 (1) SCR 11004 : AIR 1955 SC 233 ; Nagendra Nath v. Commr. of Hills Division, 1958 SCR 1240 : AIR 1958 SC 398 and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168 . 21. It appears from the record that though the Respondent 37 workmen were not directly employed by the Appellant FCI, but they engaged for the purpose of loading and unloading of goods of the Appellant FCI and not only that the Appellants had economic control over the livelihood of those 37 workmen and non-providing of the benefit of direct payment system to those workmen is an arbitrary action on the part of the Appellant FCI as those 37 workmen were also discharging the same duties like the direct payment system workers. Our aforesaid view gets support from the decision of the Apex Court in the case of Hussainbhai (supra) wherein the Apex Court held that 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. The Apex Court further observed that if the livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefit and satisfaction of an enterprise, the absence of direct relationship or the presence of dubious intermediaries or the make-believe trappings of detachment from the Management cannot snap the real-life bond. 22. Regarding the letters produced by Mr. Chakraborty, learned Counsel for the Appellant FCI as mentioned in the foregoing paragraph of this judgment, we are of the considered opinion that those letters were written after the award was passed by the Tribunal as well as after the decision of the learned Single Judge in the writ proceeding and as such the Tribunal as well as the learned Single Judge did not get the opportunity of considering those documents and as such it would not be proper for us to take notice of those letters in this appellate stage as it would be prejudicial to the Respondent workmen. It is settled by this time that a party should not be permitted to raise entirely a new point before the appellate forum for the first time, which was not canvassed before the courts below. 23. While examining the impugned judgment of the learned Single Judge, it appeared to us that the learned Single Judge has considered the case of the writ Petitioners, Appellants herein in details keeping in mind the law laid down by the Apex Court in the aforementioned law reports. 23. While examining the impugned judgment of the learned Single Judge, it appeared to us that the learned Single Judge has considered the case of the writ Petitioners, Appellants herein in details keeping in mind the law laid down by the Apex Court in the aforementioned law reports. According to us also the case in hand is not a case of no materials, rather a case of some materials on the basis of which a reasonable person can easily come to a conclusion that the findings of the Tribunal was neither perverse nor unreasonable and also not beyond jurisdiction, rather the Tribunal tried to settle the dispute between the parties on the basis of the evidence available before it keeping in mind the object of the Act of 1947 so that the labour unrest can be minimized in the industry and the management of the Appellant FCI can also be happy and the learned Single Judge very rightly dismissed the writ petition and we find no reason to disagree with the findings of the learned Single Judge and interfere with the same. 24. In the result, this writ appeal is dismissed being devoid of any merit. No order as to cost. Appeal dismissed