1. The writ petition is directed against the particular reference made by the Government of Assam in the Labour and Employment Department and the proceedings thereof. The reference is as to whether the petitioner No. 1 is justified in not taking back the workmen and staff in question from the earlier composite Tea Estate which was later on bifurcated and divided into two Tea Estates- one represented by the petitioners and the other represented by the respondent No. 4. Background facts 2. The petitioner No. 1 is a company incorporated under the Companies Act, 1956 having its registered office at Borgang Tea Estate in the District of Sonitpur, Assam and the petitioner No. 2 is one of the Directors of the said company. 3. The erstwhile composite Tea Estate, namely, M/s. Kettela Tea Company (P.) Ltd. (KTCPL), was incorporated on and about 30.10.1969. The KTCPL was the owner of the Kettela Tea Estate which had two diviions, namely Kettela Division and Borgang Division both situated in the District of Sonitpur. Both the Divisions had separate labour and staff strength with separate wage register, provident fund register, etc. In other words, they were two separate and distinct Tea Estates owned by KTCPL. 4. In the year 1994 some disputes arose between the two groups of family members in managing the affairs of KTCPL and consequently an application was filed by one group before the CLB under sections 397, 398, 399, 402, 403, 406 and 409 of the Company Act alleging mismanagement of the company. The said application was registered and numbered as CP No. 70/96. The Company Law Board by its order dated 10.1.1997 issued direction that both the groups should bid for the shares of the company and whichever offers the highest bid, shall take the control of the company. 5. The aforesaid order dated 10.1.1997 was put to challenge before this court in OJ (Company Appeal) No. 42/97. Two other appeals being OJ (Company Appeal) Nos. 44/97 and 45/97 were also filed by other group. All the appeals were heard by this court and by judgment and order dated 18.3.1998 dismissed the appeals preferred by both the groups. Direction was issued to both the groups to submit their respective bid in sealed cover as per the direction of the Company Law Board. 6. 44/97 and 45/97 were also filed by other group. All the appeals were heard by this court and by judgment and order dated 18.3.1998 dismissed the appeals preferred by both the groups. Direction was issued to both the groups to submit their respective bid in sealed cover as per the direction of the Company Law Board. 6. After the aforesaid developments, both the groups of KTCPL in order to amicably settle and resolve their dispute arrived at a settlement by entering into a memorandum of understanding ('MoU') on 3.7.1998. In terms of such MoU, the assets of erstwhile KTCPL, namely Kettela Tea Estate and Borgang Tea Estate and a Bunglow at New Delhi were grouped into two blocks. Block-I consists of Kettela Tea Estate and Block-II consists of Borgang Tea Estate and the said Bunglow in New Delhi. It was also agreed upon that new company would be incorporated in due course which would be the owner of Block-II assets. In the result KTCPL shall continue to be the owner of Kettela Tea Estate and the new company would be the owner of Borgang Tea Estate and both the groups would be the owner of one company each. 7. M/s. Borgang Tea Estate Pvt. Ltd., the petitioner No. 1 was thereafter incorporated on 30.11.1998 and it was mutually agreed upon between the aforesaid two groups that the present respondent No. 4 would be the owner of M/s. Kettela Tea Company (P.) Ltd. The terms of settlement and the compromise were given effect to. A scheme of arrangement was entered into between the petitioner No. 1 and the respondent No. 4 and the respective share holders on 1.4.1999. The said scheme of arrangement detailed as to how the assets and liabilities of erstwhile KTCPL would be divided amongst the two companies, i.e., the petitioner No. 1 and the respondent No. 4. Clause W of the scheme of arrangement laid down the terms and conditions with regard to engagement of workers in the two Tea Estates. The petitioner No. 1 undertook engagement of those persons who were in service in Borgang Tea Estate under the erstwhile KTCPL. 8. After such developments the petitioner No. 1 and the respondent No. 4 tiled an application before this court under sections 391(2) and 394 of the Companies Act, 1956 praying for approval/sanction to the aforesaid scheme of arrangement. The petitioner No. 1 undertook engagement of those persons who were in service in Borgang Tea Estate under the erstwhile KTCPL. 8. After such developments the petitioner No. 1 and the respondent No. 4 tiled an application before this court under sections 391(2) and 394 of the Companies Act, 1956 praying for approval/sanction to the aforesaid scheme of arrangement. The application which was registered and numbered as Company Petition No. 7/99 in Company Appeal No. 31/98 had the following prayers : "(a) The scheme of Arrangement mentioned in paragraph 1 of this petition being Annexure 'A' hereto be sanctioned by this hon'ble Court to be binding with effect from the 1st day of April, 1999 or from such other date as this hon'ble Court may fix on Borgang Tea Company (P.) Ltd., Kettela Tea Company (P.) Ltd. and their shareholders and all concerned; (b) all the property, rights and power of Kettela Tea Company (P.) Ltd. relating to the Borgang Tea Estate including those mentioned in the schedule of assets filed herein, be transferred without further act or deed to Borgang Tea Company (P.) Ltd. accordingly the same shall pursuant to section 394 (2) of the Companies Act, 1956 be transferred to and vest on Borgang Tea Company (P.) Ltd. for all the estate and interest of Kettela Tea Company (P.) Ltd. therein free from all charges effecting the same; (c) all the debts, liabilities, duties and obligation of Kettela Tea Company (P.) Ltd., in/or relating to the Borgang Tea Estate transferred without further act or deed to Borgang Tea Company (P.) Ltd. and accordingly the same shall, pursuant to section 394(2) of the Companies Act, 1956, be transferred to and become the debts liabilities, duties and obligations of Borgang Tea Company (P.) Ltd.; (d) all proceedings and/or suits and/or appeals now pending by or against Kettela Tea Company (P.) Ltd. in respect of the Borgang Tea Estate be continued by or against Borgang Tea Company (P.) Ltd.; (e) Borgang Tea Company (P.) Ltd. and allot to the shareholders of Kettela Tea Company (P.) Ltd. the shares in Borgang Tea Company (P.) Ltd. to which they are entitled under clause 10 of the said scheme of Arrangement; (f) leave to be granted to the petitioner to file the schedule of assets of Borgang Estate of Kettela Tea Company (P.) Ltd. stated in paragraph 20 of the petition within three weeks from the date of the order to be made herein; (g) Borgang Tea Company (P.) Ltd. and Kettela Tea Company (P.) Ltd. do within 30 (thirty) days after the date of the order to be made herein cause a certified copy thereof to be delivered to the Registrar of Companies, Assam and Meghalaya, etc., for registration; (h) any person interested shall be at liberty to apply to this hon'ble court in the above matter for such direction as may be necessary; (i) such further orders or orders be made and/or directions be given as this hon'ble court may deem fit and proper." 9. This court by order dated 18.11.1999 granted approval sanction to the said scheme of arrangement. It was ordered that there shall be orders in terms of the aforesaid prayers. Thereafter, the respondent No. 4 by its Annexure III letter dated 25.1.2001 forwarded 189 numbers of transfer forms in triplicate which were relating to permanent and temporary employees of the petitioner No. 1 for transfer of net credit of provident fund balance. The list of said 189 employees were enclosed with the letter. According to the petitioner although the MoU dated 3.7.1998 contained the facts and figure regarding the size, number of the employees etc. (Schedule II), but those figures were only approximate and the actual details of the employees and the staff working in Kettela and Borgang divisions of the erstwhile KTCPL were available with the Manager of the respondent No. 4. By the aforesaid letter dated 25.1.2001, the petitioner No. 1 was informed that there were 189 permanent and temporary employees engaged in Borgang division and accordingly were transferred to the petitioner-company. It is in this context, it is the case of the petitioners that as per the own demand of the respondent No. 4, the petitioner No. 1 was required to absorb 189 permanent and temporary employees, which has been done by the petitioner No. 1. It is their case that there is no further obligation to absorb any more employees of the respondent No. 4. 10. The respondent No. 4 filed an application under section 9 of the Arbitration and Conciliation Act, 1996 before the Calcutta High Court which was registered and numbered as AP No. 15/2001 with the following prayers : "(a) Leave under clause 12 of the Letters Patent. (b) An injunction to issue restraining the respondents and/or each of them, their servants and/or agents from selling and/or supplying any of the Green Leaf production of the respondent No. 1 to any third parties whatsoever. (c) A Receiver be appointed over the entire production of Green Leaf of the respondent No. 1 for the purpose of taking possession thereof and selling and/or supplying and/or handing over the same to the petitioner No. 1, petitioners in terms of the clause 7 of the Memorandum of Understanding dated 3rd July, 1998. (c) A Receiver be appointed over the entire production of Green Leaf of the respondent No. 1 for the purpose of taking possession thereof and selling and/or supplying and/or handing over the same to the petitioner No. 1, petitioners in terms of the clause 7 of the Memorandum of Understanding dated 3rd July, 1998. (d) The Receiver so appointed be directed to ensure that both the petitioners' and the respondents act in terms of clause 7 of the Memorandum of Understanding dated 3rd July, 1998. (e) The Receiver so appointed be directed to collect a sum of Rs. 3.50 per month from the respondents and hand over the same to the petitioners for the purpose of paying the wage and/or maintaining 148 permanent labour force and 5 permanent staff of the petitioner No. 1 who were meant to be absorbed into the respondent No. 1 in terms of the Memorandum of Understanding dated 3rd July, 1998. (f) The respondent be directed to furnish a sum of Rs. 50 lakhs by way of security to the receiver in terms of Clause 2.4 and 5 of the Memorandum of Understanding which sum is to be invested by Receiver in a sort terms fixed deposit till the disposal of the Arbitration Proceeding. (g) Injunction do issue restarting the respondents from withdrawing any money from respondent No. 1 and/or making any payment to any third party before paying the said sum of Rs. 50 lakhs. (h) Ad interim orders in terms of payers above; (i) Costs; (j) Such further and/or other order or orders be passed and/or direction or directions be given as to this hon'ble court may deem fit and proper." 11. After filing of the aforesaid application with the prayers mentioned above, both the parties, i.e., the petitioner No. 1 and the respondent No. 4, entered into a settlement, incorporating the terms and conditions of which an application was filed before the said court. Pursuant to such settlement, the Calcutta High Court by its order dated 29.3.2001 recorded that the terms of settlement which was signed by both the parties and their respective Advocates were bona fide and accordingly the matter was disposed of in terms of the said settlement. The order was passed on 29.3.2001 (Annexure IV) which is quoted below : "A.P. NO. The order was passed on 29.3.2001 (Annexure IV) which is quoted below : "A.P. NO. 15 OF 2001 IN THE HIGH COURT AT CALCUTTA ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL SIDE Plaintiff/Petitioner/Appellant: KETTELATEA COMPANY (P.) LTD. ANDORS. Versus Defendant/Respondent: BORGANG TEA COMPANY (P.) LTD. and ORS. BEFORE The Hon'ble Justice D.K. Seth Date : 29th March, 2001 DICTATED ORDER THE COURT : It is contended on behalf of the respondents that the matter has since been settled out of court. Accordingly a Terms of Settlement has been filed. The said terms of Settlement appears to have been signed by the respective parties and their Advocates-on-record. The Terms of Settlement appears to be bona fide. In the circumstances, let the suit be decreed in terms of the Terms of Settlement and the Terms of Settlement do form part of the decree. All parties including the Department are to act on a Xerox signed copy of this dictated order on the usual undertaking. Sd/-" Plea of the petitioners 12. In the aforesaid background facts, it is the case of the petitioner that the aforesaid terms of settlement which has become a decree of the court is binding on both the parties, i.e., the petitioners and the respondent No. 4. Be it stated here that the aforesaid order has not been challenged in any competent court of law and, thus, according to the petitioners same has attained its finality and is binding on the parties. It is the further stand of the petitioner that as per clause 2 of the Terms of Settlement, the MoU dated 3.7.1998 stood fully implemented by and between the parties. As per clause 6, the respective company has engaged permanent labour and staff in accordance with the scheme of arrangement. Clause 6 also recites that the parties agree not to raise any further dispute with regard to their reciprocal obligations, if any under or in connection with the MoU dated 3rd July, 1998. For a ready reference clauses 2 and 6 are quoted below. "2. It is recorded that the Memorandum of Understanding dated 3rd July, 1998 (MoU) stands fully implemented by and between the parties. 6. It is recorded that the respective Companies have engaged permanent labourer and staff in accordance with the scheme of arrangement filed before and sanctioned by the hon'ble Gauhati High Court. "2. It is recorded that the Memorandum of Understanding dated 3rd July, 1998 (MoU) stands fully implemented by and between the parties. 6. It is recorded that the respective Companies have engaged permanent labourer and staff in accordance with the scheme of arrangement filed before and sanctioned by the hon'ble Gauhati High Court. The parties agree not to raise any further dispute in regard to their reciprocal obligations, if any under or in connection with the MoU dated 3rd July, 1998." 13. According to the petitioners, although all the disputes by and between the parties have been settled amicably, the respondent No. 4 in a most illegal and arbitrary manner has been trying to saddle the petitioner No. 1 with the liability of 151 workers and 8 staff who are in the employment of the respondent No. 4. It is the stand of the petitioners that after the aforesaid order dated 29.3.2001 passed by the Calcutta High Court in the form of a decree incorporating the terms of settlement and the parties thereto having already engaged their respective workmen and staff and the scheme of arrangement having been approved by this court and further the MoU dated 3.7.1998 having completely been complied with, there cannot be any further dispute relating to employment of workmen and staff. 14. According to the petitioners, the respondent No. 4 in gross violation of the aforesaid order/decree dated 29.3.2001 passed by Calcutta High Court and in collusion with the respondent No. 5 raised a dispute contending inter alia that the petitioner No. 1 had violated the terms and conditions of the MoU dated 3.7.1998 and the scheme of arrangement which was sanctioned/approved by this court. Such dispute having been raised, a conciliation proceeding was held and the same resulted in failure. The Impugned Reference 15. In view of the failure of the conciliation proceeding, the Government of Assam in the Labour and Employment Department issued Annexure V notification dated 13.8.2007 in purported exercise of power conferred by clause C (i) of section 10 of the Industrial Disputes Act, 1947. The Schedule of reference is as follows : "SCHEDULE (1) whether the management of M/s. Borgang T.E. is justified by not taking 151 and 8 Nos. of workers and staff respectively from the M/s. Kettela T.E. (2) If not, what relief M/s. Kettela T.E. is entitled to. The Schedule of reference is as follows : "SCHEDULE (1) whether the management of M/s. Borgang T.E. is justified by not taking 151 and 8 Nos. of workers and staff respectively from the M/s. Kettela T.E. (2) If not, what relief M/s. Kettela T.E. is entitled to. (3) Which management will take responsibility of 151 and 8 Nos. of labourers and staff respectively. This cancels the earlier notification issued vide No. CLR 200/2005/54 dated 21.2.2007." 16. On receipt of the aforesaid reference, the Labour court registered Reference Case No. 1/08 and vide Annexure VI notice dated 7.1.2008 directed the respective parties to file written statement. Stand of the petitioner in respect of the reference 17. Although the Annexure VI notice shows the alleged dispute to be one between the petitioner and the respondent No. 4 and the workmen, but the purported dispute is between the petitioner No. 1 and the respondent No. 4, more particularly when the reference notification dated 13.8.2007 clearly speaks of the reference being made at the behest of the respondent No. 4. It is the stand of the petitioners that the workers themselves have not claimed any relief against the petitioner No. 1 and it is the respondent No. 4 who in a most illegal manner is trying to thrust upon the petitioners with the liability of 151 workers and 8 numbers of staff who are in employment of the said respondent No. 4. In fact, the respondent No. 4 by its application dated 5.4.2008 filed before the learned Labour court clearly admitted that the alleged dispute was between the management of Kettela Tea Estate and the Management of Borgang Tea Estate regarding absorption of 151 workers and 8 numbers of staff who are in employment of the respondent No. 4. 18. According to the petitioners, in view of the background facts stated above there cannot be any dispute between the parties so as to make a reference out of the same. Referring to the provisions of the Industrial Disputes Act, it is the stand of the petitioners that the terms of reference do not constitute any Industrial dispute so as to be tried by the Labour Court. Counter Affidavits/Rejoinder Affidavits 19. Referring to the provisions of the Industrial Disputes Act, it is the stand of the petitioners that the terms of reference do not constitute any Industrial dispute so as to be tried by the Labour Court. Counter Affidavits/Rejoinder Affidavits 19. A number of affidavits have been filed by the parties as affidavit in opposition, affidavit in reply and additional/supplementary affidavit referring to the terms of MoU dated 3.7.1998, it is the stand of the respondent No. 4 that the petitioner No. 1 has absorbed only 174 permanent labourer and 4 number of permanent staff leaving aside the remaining 151 workers and 8 numbers of staff who are presently engaged with the respondent No. 4. According to the said respondent, the petitioners by not absorbing the said workmen and staff have violated the MoU causing additional burden on the respondent No. 4 20. The respondent No. 5 representing the workmen supporting the reference has contended that the services of the workmen are not dependent upon certain understanding, terms of settlement etc. entered into by and between the parties, i.e., the petitioner No. 1 and the respondent No. 4. According to them as per the terms of settlement, the workmen and staff in question stood transferred to the petitioner No. 1 and the petitioner No. 1 is duty bound to accept them. It is their stand that they have been rendered jobless due to inaction on the part of the petitioner No. 1 in violation of the MoU. Argument 21. Learned counsel for the parties reefing to the background facts, relevant documents and catena of decisions made their elaborate arguments. Mr. A.K. Bhattacharyya, learned senior counsel assisted by Mr. N. Deka, learned counsel appearing for the petitioners submitted that the issue relating to the transfer and absorption of workmen and staff having been resolved as per the terms of settlement, the respondent No. 4 could not have resiled back from that position even to the extent of raising a dispute in respect of the same issue. Referring to the provisions of the Industrial Disputes Act, he submitted that leaving aside the legal position as per the terms of settlement, no dispute could have been raised by the respondent No. 4. Even otherwise also the reference itself is vitiated being not within the purview of section 10 of the Act. 22. Mr. Referring to the provisions of the Industrial Disputes Act, he submitted that leaving aside the legal position as per the terms of settlement, no dispute could have been raised by the respondent No. 4. Even otherwise also the reference itself is vitiated being not within the purview of section 10 of the Act. 22. Mr. N. Dutta, learned senior counsel opening the argument on behalf of the respondent No. 4 insisted on dismissal of the writ petition without entering into the merit of the case on the ground that the issues which has been raised in this proceeding could be gone into by the labour court if raised by the petitioners. He submitted that having regard to the facts and circumstances involved in the case, this court will be reluctant to go into the disputed questions of fact so as to answer the question as to whether the particular reference in the given fact situation is bad in law. Touching on merit of the case he submitted that the aforesaid order of the Calcutta High Court cannot be construed to be a decree which is also a nullity and consequently can be challenged in any proceeding even collaterally. Referring to the terms of the settlement, MoU etc., he submitted that the dispute which the petitioners have asserted to have attained finality, is incorrect. 23. Mr. D. Baruah, learned counsel representing the respondent No. 5 Union submitted that it is the apprehension of the workmen and the staff in quest ion that there is collusion between the petitioner and the respondent No. 4. According to him the respondent No. 5 being not a party to the proceeding mentioned in the background facts, any amount of settlement, MoU and the order of court cannot bind the said workmen and staff. He submitted that the workmen and the staff in question cannot be denied employment in view of the dispute between the petitioner No. 1 and the respondent No. 4 and that what the workmen and the staff want is employment and it is immaterial as to under whom they are engaged. 24. Learned counsel for the parties have referred to numerous decisions to bring home their points of argument. 24. Learned counsel for the parties have referred to numerous decisions to bring home their points of argument. The decisions are on the interpretation of the principles relating to raising of Industrial disputes, employer and employee relationship, consequence of a decree being a nullity, jurisdiction and competence of the Labour Court, jurisdiction of the writ court in disputed questions of fact, collusive litigation raising of dispute in a matter etc. The decisions on which the learned counsel for the parties have placed reliance are as follows : Decisions referred to On behalf of the Petitioners (1) Odeon Cinema v. Workers: of Sagar Talkies, 1954 (2) LLJ 314. (2) Workers of Sagar Talkies v. Odeon Cinema, 1957 (1)LJ 639. (3) Bongaigaon Refinery and Petrochemicals Ltd. v. Samijuddin Ahmed, (2001) 9 SCC 557. (4) Workmen of Nilgiri Coop. Mkt. Society Ltd. v. State of T.N. and Others, (2004)3 SCC 514 . (5) Mukand Ltd. v. Mukand Staff and Officers'Association, (2004) 10 SCC 460. (6) Sunder Dass v. Ram Prakash, (1977) 2 SCC 662 . (7) Official Trustee, West Bengal and Others v. Sachindra Nath Chatterjee and Another, AIR 1969 SC 823 . (8) Bhuiyalal Girdharilal Shrivastava v. Tlkaram Udaichand Jain, AIR 1970 MP 237 . (9) State of Rajasthan and Others v. Bharat Construction Co. and Others, 1998 (3) RAJ 7 (Raj). (10) Nagubai Animal and Others v. B. Shama Rao and Others, AIR 1956 SC 593 . (11) Commissioner of Income Tax madras v. The Commissioner of Income-tax Madras, AIR 1965 SC 1216 . (12) Official Trustee, West Bengal and Others v. Sachindra Nath Chatterjee and Another, AIR 1969 SC 823 . (13) Ittyavira Mathai v. Varkey Varkey and Another, AIR 1964 SC 907 . (14) Bhaiyalal Girdharilal Shrivastava v. Tikaram Udaichand Jain, AIR 1970 MP 237 . (15) Abaninda Kumar Maity and Another v. A.K. Majumdar and Other, AIR 1956 Cal. 273 . (16) R. Krishnamiirthy v. S. Parthasarathy and Another, AIR 1949 Mad. 780. On behalf of the respondent No. 4 (1) National Council for Cement and Building Materials v. State of Haryana, (1996) 3 SCC 206 . (2) Workmen Employed by Hindustan Lever Ltd. v. Hindustan Lever Ltd., (1984) 4 SC392. (3) Management of Express Newspapers (P.) Ltd., Madras v. The Workers and Others, AIR 1963 SC 569 . (4) The Cooper Engineering Ltd. v. Shri P.P. Mundhe, (1975) 2 SCC 661 . (2) Workmen Employed by Hindustan Lever Ltd. v. Hindustan Lever Ltd., (1984) 4 SC392. (3) Management of Express Newspapers (P.) Ltd., Madras v. The Workers and Others, AIR 1963 SC 569 . (4) The Cooper Engineering Ltd. v. Shri P.P. Mundhe, (1975) 2 SCC 661 . (5) S.K. Verma v. Mahesh Chandra and Another, (1983)4 SCC 214 . (6) D.P. Maheshwari v. Delhi Administration and Others, (1983)4 SCC 293 . (7) National Engineering Industries Ltd. v. State of Rajasthan and Others, (2000) 1 SCC 371 . (8) Nedungadi Bank Ltd v. K.P. Madhavankutty and Other, (2000) 2 SCC 455 . (9) Firm Ashok Traders and Another v. Gurumukh Das Saluja and Others, (2004)3 SCC 155 . (10) Kiran Singh and Others v. Chaman Paswan and Others, AIR 1954 SC 340 . (11) Hari Lal Patni v. Shri Kali Nath, AIR 1962 SC 199 . (12) Sunder Dass v. Ram Prakash, AIR 1977 SC 1201 . (13) M.S. Associates v. Union of India, 2007 (4) GLT 176. On behalf of the respondent No. 5 (1) Smt. Promila Devi and Others v. Peoples Bank of Northern India Ltd., AIR 1938 PC 284. (2) Mis. J.K. Bombay (P.) Ltd. v. Mis. New Kaiser-I-Hind Spinning and Weaving Co. Ltd., 1970 SC 1041. (3) Kays Constructions Co. (P.)Ltd. v. Its Workmen, AIR 1959 SC 208 . (4) A.P. Foods v. S. Samuel and Others, (2006) 5 SCC 469 . Consideration of submissions 25. I have considered the submissions made by the learned counsel for the parties. I have also gone through the materials on record and the decisions on which the learned counsel for the parties have placed reliance. Mr. (4) A.P. Foods v. S. Samuel and Others, (2006) 5 SCC 469 . Consideration of submissions 25. I have considered the submissions made by the learned counsel for the parties. I have also gone through the materials on record and the decisions on which the learned counsel for the parties have placed reliance. Mr. Dutta, learned senior counsel for the respondent No. 4 has placed reliance on the decisions of the Apex Court in Hindustan Lever Ltd. (supra); National Council for Cement (supra); M.S. Associates (supra); S.K. Verma (supra); Cooperative Engineering Ltd. (supra) and Manager Express Newspaper (supra), so as to contend that the issues which has been raised in this proceeding could also be raised by the petitioners in the proceeding before the Labour Court and that the writ court will be reluctant to give indulgence to the kind of pleas touching the very root of the reference even before adjudication of the same by the competent court of law, i.e., Labour Court, In Hindustan lever Ltd. (supra), the Apex Court placing reliance on earlier decisions disapproved the practice of raising frivolous preliminary objections at the instance of the employer to delay and defeat the outcome of the dispute. It was observed that such recourse to preliminary objection regarding raising of dispute itself was most unfortunate. It was held to be a dilatory practice often adopted by the management. Similar view was expressed in National Council for Cement (supra). In the fact situation of that case, the Apex Court approved the approach of the High Court in refusing to entertain the writ petition under article 226 of the Constitution of India in an interlocutory order of the tribunal and which was to delay the adjudication. The decision of M.S. Associates (supra) has been referred to so as to contend that whether the reference in dispute is founded on any legal premises is a jufisdictional issue and can even be urged by the petitioners before the Labour court and the said court can adjudicate such issues. 26. The aforesaid decisions will have to be tested in the touchtone of the factual background of the case referred to above and the principles of law underlying, more so, when a case is only an authority for what it actually decides, and not what logically follows from it. 26. The aforesaid decisions will have to be tested in the touchtone of the factual background of the case referred to above and the principles of law underlying, more so, when a case is only an authority for what it actually decides, and not what logically follows from it. The ratio of any decision must be understood in the background of facts of that case Ambika Quarry Works v. State of Gujarat, AIR 1987 SC 1073 . Applying this test it will have to be seen as to whether in the instant case the said decisions are applicable or not in the factual background of the case. 27. In the MoU dated 3.7.1998 clause 13 provided that until conditions specified in the MoU were implemented to the satisfaction of both the "groups", the "groups" may enter into further agreement/arrangement or understanding, if need be and agreed to, sign such papers, documents and petitions to comply with the terms and conditions in the MoU. In Schedule-II of the MoU, the permanent labour strength of the respondent No. 4 and the petitioner No. 1 was shown as 400 and 325 and that of permanent staff as 19 and 8 respectively. The figures were indicated to be approximate. The MoU was followed by another dated 18.11.1999 passed in Company Petition No. 7/99 and 31/98 involving both the parties. The order was passed on the basis of the petition filed under sections 391(2) and 394 of the Companies Act, 1956. The prayer made to the court was for approval/sanction to the scheme of arrangement annexed to the application as Annexure A. The prayers made in the application have been quoted above and the court by its aforesaid order dated 18.11.1989 granted the approval/sanction. 28. Annexure A to the petition is the Schedule A to the scheme of arrangement between the parties involved. As per clause C to the said Schedule, the effective date means the last of the date on which the certified copy of the orders passed by the Gauhati High Court sanctioning the scheme of arrangement are filed with the Registrar of the Companies, Assam and Meghalaya, etc., by both the petitioner No. 1 and the respondent No. 4. As per clause C to the said Schedule, the effective date means the last of the date on which the certified copy of the orders passed by the Gauhati High Court sanctioning the scheme of arrangement are filed with the Registrar of the Companies, Assam and Meghalaya, etc., by both the petitioner No. 1 and the respondent No. 4. Clause 6(a) provides that the petitioner No. 1 would engage all persons who are in the employment of the respondent No. 4 in respect of petitioner No. 1 as on the effective date on the same terms and conditions on which they are engaged by respondent No. 4 as on the effective date without any interruption of service as a result of the transfer. For a ready reference clause (C) and (6) are reproduced below : C. The effective date manes the last of the date on which the certified copies of the orders passed by the hon'ble court at Guwahati sanctioning this Scheme of Arrangement are filed with the Registrars of the Companies, Assam & Meghalaya, etc., by both KTPL and BTPL. (6)(a) BTPL undertake to engage all persons who are in the employment of KTPL in respect of the Borgang Tea Estate as on the effective date on the same terms and conditions on which they are engaged by KTPL as on the effective date without any interruption of service as a result of the transfer. BTPL agrees that the services of all such employees with KTPL up to the effective date shall be taken into account for purpose of all benefits to which the said person may be eligible including for the purpose of payment of any retrenchment compensation gratuity and other terminal benefits. (b) BTPL shall take necessary steps to establish separate provident and gratuity funds and clause the same to be recognized by the concerned authority. The accumulated balances if any standing to the credit of the employees of KTPL whose services would be taken over by Borgang in the provident and gratuity funds established by KTPL will be transferred to such new funds to set up by BTPL. Pending the establishment and recognition of the new Provident and Gratuity funds by BTPL the provident and gratuity dues of the said employees would be continued to be deposited in the provident and gratuity funds respectively of KTPL. 29. Pending the establishment and recognition of the new Provident and Gratuity funds by BTPL the provident and gratuity dues of the said employees would be continued to be deposited in the provident and gratuity funds respectively of KTPL. 29. The aforesaid scheme of arrangement was followed by Annexure III letter dated 25.3.2001 issued by the respondent No. 4 to the respondent No. 1. By the said letter 189 copies of transfer forms in triplicate relating to the petitioner's permanent and temporary employees for transferring net credit provident fund balance as on the date of transfer (4.7.2000) were sent. The letter also contained the names of 189 employees indicating their status, their provident fund numbers and the balance carried over. As to what followed thereafter, are noted above. 30. It was the respondent No. 4 who was instrumental in raising some dispute by A.P. No. 15/2001. The application was filed under section 9 of the Arbitration and Conciliation Act, 1996. The prayers made therein have been quoted above. After filing the application both the parties entered into a settlement, terms and conditions of which were incorporated in an application and the same was filed before the Calcutta into a little later. The terms of settlement on the basis of which the order dated 29.3.2001 was passed contain the above quoted clause 2 and 6. As per clause 2, the MoU dated 3.7.1998 stood fully implemented by and between the parties, while clause 6 recorded engagement of permanent labour and staff in accordance with the scheme of arrangement filed and sanctioned by this court by the aforesaid order dated 18.11.1999 in Company Petition Nos. 7/99 and 31/98. 31. Once the scheme of arrangement was approved/sanctioned by this court in the aforesaid Company petition Nos. 7/99 and 31/98 in terms of Anncxure A referred to above and the Calcutta High Court passed the order dated 29.3.2001 on the basis of the terms of settlement by and between the pai'ties which included clause 2 and 6 pertaining to the issue at hand, the question necessarily arises as to whether on the same issue there could have been a dispute between the parties so as to be referred to the Labour Court by the State Government. 32. 32. It is in the aforesaid circumstances, the writ petition will have to be considered appreciating the legal principles on which the learned counsel for the parties have advanced their elaborate arguments. In Odeon Cinema (supra), Madras High Court observed that a dispute within the meaning of section 2(k) of the Industrial Dispute Act between the employers and the workmen would include disputes between the employers and their present workmen, between the employers and their ex-workmen, but not between the employers and their would be or future workmen. It was held that where a dispute between the persons agreed to be taken in employment but subsequently not employed and person who agree to employ them cannot be held to be an industrial dispute and a reference of such dispute under section 10 must be held to be bad in law for want of jurisdiction. 33. The aforesaid decision was carried on appeal and the Division by its aforesaid judgment 1957 (1) LLJ 639, upheld the same holding that a reference under section 10 of the Industrial Dispute Act of a dispute regarding non-employment of persons who were promised employment, as an industrial dispute between such persons and the management must be held to be without jurisdiction and invalid. 34. In Samijuddin Ahmed (supra), dealing with the expression "any person" under section 2(k) of the Act, the Apex Court held that "any person" cannot be read without limitation and a person in respect of which the employer-employee relationship never existed and can never be possibly exist, cannot be the subject-matter of dispute between the employers and workmen. 35. In Mukand Ltd. (supra), it was held that the expression “any person” in section 2(k) and 18 of the Act, held that the same does not include "non-workmen". Section 2(k) and section 18 are reproduced below : "2(k) "Industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any persons. 18. Persons on whom settlements and awards are binding. - (1) A settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement. 18. Persons on whom settlements and awards are binding. - (1) A settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement. (2) Subject to the provisions of sub-section (3), an arbitration award 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 IDA or an award of a Labour Court. Tribunal or National Tribunal 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 establishment to which the dispute relates; (d) where a party referred to in clause (a) or clause (b) is composed of workmen, all person 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." 36. It was submitted that the phrase "any person" in section 2(k) and section 18 of the Act includes a non-workman who was a workman, but has retired, resigned or otherwise left the services of the employer during the pendency of the dispute under reference. It was further contended that it also includes a person who was not a workman when the dispute was referred for adjudication but joined the service of the employer as a workman during the pendency of the proceeding. It was pointed out that the phrase "any person" in section 2(k) and 18 covers non-workmen, was not accepted in Narendra Kumar Sen and Others v. All India Industrial Dispute Tribunal, AIR 1953 Bom. It was pointed out that the phrase "any person" in section 2(k) and 18 covers non-workmen, was not accepted in Narendra Kumar Sen and Others v. All India Industrial Dispute Tribunal, AIR 1953 Bom. 325 , Workmen v. Dimakushi Tea Estate, AIR 1953 SC 353, All India Reserve Bank Employees Association v. Reserve Bank of India, AIR 1963 SC 305 and Workmen v. Greaves Cotton Company Ltd., (1971)2 SCC 658 . It was pointed out that the Apex Court in those cases also rejected the contention rerecording "community of interest" between the workmen and non-workmen. 87. In the instant case, the respondent No. 4 in paragraph 3.8 of its counter affidavit has stated that after the demerger of BTPL, i.e., the petitioner No. 1, till date has only absorbed 174 permanent labourers and 4 permanent staff and as a result of which the rest of 151 and 4 numbers of workers and staff continued to work in KTPL, i.e., the respondent No. 4 instead of BTPL, i.e., the petitioner No. 1. It will have to be borne in mind that the respondent No. 5 itself did not raise any dispute and for that matter the workmen and the staff involved did not themselves raised any demand for their absorption in petitioner No. 1 company. They never raised any dispute in respect of their absorption and/or employment under the petitioner No. 1 and in fact have been continuing in the employment roll of the respondent No. 4. 38. The definition of the term "industrial dispute" in section 2(k) of the Industrial Act, 1947 means a dispute or difference between the employer and employee or between the employer and workmen or between the workmen and workmen, which is connected with employment or non-employment or with the terms of "employment or with the conditions with the labour, of any person. Said definition means that a dispute or difference, for it to constitute an industrial dispute must be connected with the employment between the parties but in the instant case, it is the case of the petitioners that there is and never had any relationship of employer and employee between the workers in question and the petitioner No. 1. It has also been contended that the term "any person" as given in the said section may not be construed to mean any person in the world. It has also been contended that the term "any person" as given in the said section may not be construed to mean any person in the world. Such person must have a reasonable nexus or connection with the parties. According to the petitioners, 151 workers and 8 staff have no manner of connection with the petitioner No. 1 and there never existed any employer and employee relationship between them. That being the position, it has been contended that the reference in question is bad in law. 39. According to the petitioners, the aforementioned workers and staff do not come within the purview of the definition of the term "workman" as given in section 2(s) of the Act, so far as the petitioner No. 1 is concerned, in view of the fact that they were never the employees of the petitioner No. 1 and there never existed any employer and employee relationship between the two. From the materials on record including the affidavit filed on 20.5.2009, the petitioners have shown that the said workers and staff are absolutely strangers to the petitioner No. 1 and they have no connection with the petitioner-company and therefore, the impugned reference is bad in law. The definition "Industrial Dispute" refers firstly to the factum of real and substantive dispute, secondly, to the parties to the dispute and thirdly, the subject-matter of the dispute which must be connected with the employment or non-employment or the terms of the employment or with the conditions of labour or of any person. It was submitted that in the instant case, the alleged dispute referred to does not come within the purview, scope and ambit of the said definition. 40. It is in the above context, the decision in Odeon Cinema (supra) has been referred to. The High Court of adjudicature at Madras posing the question that can there be an Industrial Dispute between an employer and a person who merely desires to get employment in the former or a person who has been promised employment and take note of the position where the employment has not started at all, opined that it would be straining the language of section 2(k) to say that in the said case the Industrial Dispute exists. It was further observed that a mere contract to employ the workers which is in substance the basis of the present award does not constitute the person who is agreed to be taken into employ a workman within the meaning of section 2(s). It was further observed as follows : "In my judgment, a dispute between employers and their workmen would include disputes between employers and their present workmen : between the employers and their ex-workmen but not between employers and would be or future workmen. The mere existence of a contract to employ does not constitute a relationship of master and servant between the employer and the person who has been promised employment. Until this contract is performed and the servant is actually employed, the relationship of employer and workmen is not constituted with the result that any differences between the parties to the contract must be resolved in the ordinary courts by a suit for damages and does not give rise to an Industrial Dispute. Accepting, therefore, the finding of the tribunal as on a question of fact, that there was an understanding between the petitioners and the workers under the lessors that the later would be employed in the business of the former, the staff are not converted into workers under the lessees under section 2(s), nor can there be any Industrial Dispute between them and these workers under section 2(k). I, therefore, hold that there was no Industrial Dispute within the meaning of the Industrial Disputes Act which could have been referred to a tribunal for adjudication: nor could the tribunal have jurisdiction to adjudicate upon such a dispute." 41. The aforesaid decision in Odeon Cinema of the Single Bench was affirmed by the Division Bench which has been referred to above. It was held that the reference under section 10 of the Industrial Dispute Act, of a dispute regarding the non-employment of persons who were promised employment is an Industrial Dispute between such persons and the management must be held to be without jurisdiction and invalid. It was noticed that the staff of the "old Sugar Tokies" were never employed by the management of the "Odeon Cinema". It was noticed that the staff of the "old Sugar Tokies" were never employed by the management of the "Odeon Cinema". The Division Bench also referred to the decision of the Apex Court in Dhrangadhra Chemical Workers v. State of Shaurastra, 1957 (1) LLJ 477 wherein it was held that the essential condition for a person being a workman within the terms of the definition in the Industrial Disputes Act is that he should be in the employment of his employers and that there should be the relationship between the employer and him as between master and servant. It may be that when such a relationship had existed at one time and there was a termination subsequently of that relationship, the person who was once in employment would come within the definition of "workman". But when as in this case the persons concerned were never employed by the employer, such persons cannot be deemed to be workmen. 42. It was further observed that a mere contract by itself would not bring out the relationship of employer and employee, employer and workmen. Agreeing with the judgment of the learned Single Judge, it was observed, thus : "the mere existence of a contract to employ does not constitute a relationship of master and servant between the employer and the person who has been promised employment, and, until the contract is performed and the servant is actually employed, the relationship of employer and workman is not constituted." 43. In view of the above, the Division Bench was of the opinion that the learned Single Judge was right in holding that there was no Industrial Dispute within the meaning of Industrial Disputes Act which could have been validly referred to a Tribunal for adjudication. As noted above, in Samijuddin Ahmed (supra), the Apex Court observed that any person" does not include the person who was offered appointment but was not allowed to join service by not accepting his joining report. Acceptance of employer and employee relationship was emphasized. In paragraph 7 of the judgment, it was observed, thus : "7. The learned counsel for the respondent relied on Workmen v. Dimakuchi Tea Estate to submit that in view of section 2(k) of the LD Act a dispute raised by "any person", even if not a "workman" stricto sensu is competent. But we are not impressed. In paragraph 7 of the judgment, it was observed, thus : "7. The learned counsel for the respondent relied on Workmen v. Dimakuchi Tea Estate to submit that in view of section 2(k) of the LD Act a dispute raised by "any person", even if not a "workman" stricto sensu is competent. But we are not impressed. In the above-noted case, "any person" was an employee appointed on probation and it was doubtful whether he was a workman or not. The case did not relate to a person never employed and yet claiming to be a workman. It was held that "any person" cannot be read without limitation and a person in respect of which the employer-employee relationship never existed and can never possibly exist cannot be the submit matter of dispute between employers and workmen. The present case does not satisfy the test laid down vide para 21 of the decision cited so as to warrant the validity of reference being upheld." Conclusion and Findings 44. In the instant case admittedly 151 workmen and 8 staff in question were never in employment of the petitioner No. 1. There was also no employer and employee relationship. They are totally strangers to the petitioner No. 1. Taking note of the principles of law discussed above, it cannot be said to be a case of Industrial Dispute and consequently the impugned reference, in my considered view, is not sustainable. 45. This now leads us to the second equally important issue which is as contended by the petitioner, that the issue having been settled by the competent court of jurisdiction, whether on the same set of facts and the issue there could have been any dispute so as to refer the same under the impugned reference. 46. The basic facts have been noted above. Clause 4 of the MoU dated 3.7.1998 (Annexure I) provided that the KTCPL shall continue to own Kettela Division. As per clause 13 of the MoU, provision was made that until the conditions specified in the MoU were implemented to the satisfaction of both the groups, they may enter into further agreements, arrangements or understanding. Clause 4 of the MoU dated 3.7.1998 (Annexure I) provided that the KTCPL shall continue to own Kettela Division. As per clause 13 of the MoU, provision was made that until the conditions specified in the MoU were implemented to the satisfaction of both the groups, they may enter into further agreements, arrangements or understanding. It is true that in the MoU, Schedule II specified that while the permanent labour and staff for both the divisions would be 400/19 and 325/08 respectfully, but the said figures were with a rider "approximate" and as noted subject to further agreements, arrangements or understanding. 47. The Company Petitions No. 7/99 and 31/98 were disposed of by order dated 18.11.1999 (Annexure II) on the basis of the prayer made for approval/sanction to the scheme of arrangement (Annexure A) to the petition. Accordingly the court granted the prayer for approval/sanction in terms of the prayers made in the petition affirming the scheme of arrangements specifying that there would be orders in terms of the prayers (a) to (i) quoted above. Clause 6 of Annexure A to the writ petition has been quoted above. The said clause did mention about the BTPL's undertaking to engage all persons who were in the employment of KTPL instead of Borgang Tea Estate as on the specified effective date, but there was no mention of any number of such persons and, thus, the number of persons to be engaged by the petitioner No. 1 company was never specified. However, submission was made on behalf of the respondents that as per the said clause, the petitioner No. 1-company was bound to accept the workmen and the staff in question. Apart from the fact that no number was specified, the submission will also have to be tested taking note of the further developments in the matter. 48. By Annexure III letter dated 25.1.2001, the authority of Kettela Tea Estate, i.e., the respondent No. 4, sent the copies of 189 transfer forms in triplicate to the petitioner No. 1 company, both permanent and temporary. Same was relating to the matter of transfer of net credit provident fund balance as on 4.7.2000. By the said letter request was made to send the documents directly to the Fund Control Officer under ATTPF and PF scheme. 49. Same was relating to the matter of transfer of net credit provident fund balance as on 4.7.2000. By the said letter request was made to send the documents directly to the Fund Control Officer under ATTPF and PF scheme. 49. By Annexure IV order dated 29.3.2001, the Arbitration Petition (AP No. 15/2001) filed by the respondent No. 4 was disposed of. The order has been quoted above. There has been much debate about the nature of the order so passed by the Calcutta High Court. While Mr. Dutta, learned counsel for the respondent No. 4 submitted that the order is not a decree as recited in the order and that merely by reciting that "Let the suit be decreed in terms of the Terms of Settlement and the Terms of settlement do form part of the decree" cannot give the colour of decree to the order, Mr. A.K. Bhattacharyya, learned counsel for the petitioners submitted that the respondent No. 4 cannot be allowed to play with the demand of the situation and that the said respondent cannot disown the order to which it was a party which has also attained its finality. 50. The aforesaid order dated 29.3.2001 was passed on the basis of the petition containing the terms of settlement filed with the consent of both the parties by which the prayer made was to dispose of the matter as per the terms and condition of the settlement. Not only the terms of settlement referred to clause VI of the MoU dated 3.7.1998, but also contained the categorical statements about the engagement of permanent labour and staff in accordance with the aforementioned scheme of arrangement approved by this court. It was also resolved not to raise any further dispute in regard to the reciprocal obligation of the parties. 51. Clause 10 of the terms of settlement recorded the agreement that in terms of the terms of settlement, the parties would write to the nominated Arbitrator intimating him about the settlement. It was further agreed that with the writing and intimation, the reference before the Arbitrator would stand dispose of. 52. The AP No. 15/2001 was filed by the respondent No. 4 against the petitioner No. 1 under section 9 of the Arbitration and Conciliation Act, 1996. It was further agreed that with the writing and intimation, the reference before the Arbitrator would stand dispose of. 52. The AP No. 15/2001 was filed by the respondent No. 4 against the petitioner No. 1 under section 9 of the Arbitration and Conciliation Act, 1996. In paragraph 10 of the application it was stated that the completion of the division of the assets came into effect on or after 1st July, 2000 and that the entire efforts of such division was to bring an equitable distribution of assets between both the groups. By the aforementioned Annexure III letter dated 25.1.2001 the respondent No. 4 had sent 189 copies of transfer forms in triplicate relating to the share of the petitioner No. 1 company both permanent and temporary for transferring net credit provident fund balance as on 4.7.2000. However, in paragraph 18 of the application it was contended that the petitioner No. 1 company was required to absorb further 149 permanent labour force and 5 permanent staff of the respondent No. 4 in terms of the MoU. One of the prayers made in the application was to appoint a receiver to collect a sum of Rs. 3.50 per month from the petitioner No. 1 company and to hand over the same to the respondent No. 4 for the purpose of due wages and/or maintaining 148 permanent labour force and 5 permanent staff of the respondent No. 4 who were allegedly meant to be absorbed in the petitioner company in terms of the MoU dated 3.7.1998. 53. It is with the aforesaid stand in the arbitration petition, the respondent No. 4 approached the High Court and as to what transpired thereafter has been noted above. The proceeding initiated by the respondent No. 4 came to an end when they themselves agreed for a settlement out of the court. After having agreed to, that the respective companies had engaged permanent labour and staff in accordance with the scheme of arrangement filed before this court and further agreeing not to raise further dispute, it was not open for them to raise a further dispute which has given rise to the impugned reference. It is in this context, Mr. A.K. Bharracharyya, learned counsel for the petitioners submitted that the respondent No. 4 cannot be allowed to play with the orders of the court and thereby to offend the very sanctity of the court. It is in this context, Mr. A.K. Bharracharyya, learned counsel for the petitioners submitted that the respondent No. 4 cannot be allowed to play with the orders of the court and thereby to offend the very sanctity of the court. It is also in this context, he has referred to the decisions underlying the principle in not allowing the party to approbate and reprobate. 54. It would be appropriate at this stage to deal with the plea of Mr. N. Dutta, learned senior counsel for the respondent No. 4 that the order dated 29.3.2001 (Annexure IV) passed by the Calcutta High Court in A.P. No. 15/2001 was not a decree and, thus, not binding and that it could be challenged even collaterally in any proceeding. 55. Placing reliance on Sunder Dass (supra), Mr. Dutta has argued that when the aforesaid order of Calcutta High Court is a nullity, its invalidity can be set up in an execution proceeding and even whenever and wherever it is sought to be enforced or relined upon and even in collateral proceeding. In paragraph 3 of the judgment, the Apex Court has observed, thus : "3. Now, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an executing proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any court in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all. The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all. Vide Kiran Singh v. Chaman Paswan and Seth Hiralal Patni v. Sri Kali Nath. It is, therefore, obvious that in the present case, it was competent to the executing court to examine whether the decree for eviction was a nullity on the ground that the civil court had no inherent jurisdiction to entertain the suit in which the decree for eviction was passed. If the decree for eviction was a nullity, the executing court could declare it to be such and decline to execute it against the respondent." 56. The A.P. No. 15/2001 was filed under section 9 of the Arbitration and Conciliation Act, 1996. Section 9 makes provision under which a party may, before or during arbitral proceedings or at any time after making of the arbitral award but before it is enforced in accordance with section 36, apply to a court amongst others for a an interim measure of protection in respect of any of the matters specified therein which includes interim injunction or the appointment of a receiver. Section 9 empowers the court for making orders as it has for the purpose of, and in relation to, any proceedings before it. Under section 2(c) of the Act "arbitral award" includes an interim award. Section 30 makes provision for settlement under which it is not incompatible with an arbitration agreement for an arbitral tribunal to encourage settlement of the dispute and, with the agreement of the parties, the arbitral tribunal may use mediation, conciliation or other procedures at any time during the arbitral proceedings to encourage settlement. It further provides that if, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings, and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms. Section 37 provides for appeal under which an appeal shall lie in respect of the orders specified therein which includes orders passed under section 9. 57. Section 37 provides for appeal under which an appeal shall lie in respect of the orders specified therein which includes orders passed under section 9. 57. The Calcutta High Court passed the aforesaid order dated 29.3.2001 in terms of the terms of settlement. Clause 10 of the terms of settlement clearly provided that pursuant to filing of the terms of settlement, the parties shall write to the nominated Arbitrator, namely Shri K.L. Singhee, and intimate to him about the settlement. It was also agreed that simultaneously with the writing and intimation, the reference before the Arbitrator as contemplated in he MoU shall stand disposed of. As noted above. Section 30 of the Arbitration Act encourages settlement of disputes with the agreement of the parties. When the respondent No. 4 agreed in the terms of settlement that the parties simultaneously with the filing of the terms of settlement, shall write to the nominated arbitrator and intimate him about the settlement, and that with such intimation the reference before the Arbitrator shall stand disposed of, and in terms of such an agreement A.P. No. 15/2001 was disposed of by the above quoted order dated 29.3.2001, I see no reason as to why and as to how it could be contended that the said order describing it to be a decree, is a nullity. 58. Section 9 of the Act while providing for interim measure by the court, also provides that the court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceeding before it. If the Arbitral Tribunal, in terms of the provision of section 30 of the Act has a power to pass order for settlement of dispute with the agreement of the parties, I am unable to understand as to why the Calcutta High Court could not have passed the order when the parties to the arbitration under reference agreed for settlement and reduced in writing such terms of settlement, filed the same before the court prayed for disposal of the matter in terms of the terms of settlement. Thus, the said order cannot be said to be a nullity. Thus, the said order cannot be said to be a nullity. The decisions in Nagubai Aintnal and Others (supra); Commissioner of Income-tax (supra); Official Trustee, West Bengal (supra); Ittyavira Mathai (supra); Bhaiyalal Girdharilal Shrivastava (supra); Abhanindra Kumar Maity and Another (supra) and R. Krishnamurthy (supra) have been pressed into service by Mr. Bhattacharyya, learned counsel for the petitioners so as to contend that the respondent No. 4 cannot be permitted to approbate and reprobate. It is on the principle that a person may not approbate and reprobate, a specie of estoppel has arisen. 59. The aforesaid decisions also deal with the kind of a situation in which a party after taking recourse to a particular procedure cannot be permitted to turn round the same so as the question the validity of the said proceeding. It is not a case in which the Calcutta High Court acted absolutely without any jurisdiction. If the said court had jurisdiction to entertain the application under section 9 of the Arbitration and Conciliation Act, going by the aforesaid provisions of the Act it had also the jurisdiction to pass the order dated 29.3.2001 about which much have been debated. In the decision in Sunder Dass (supra) what the Apex Court held is that although an executing court cannot go behind the decree nor can it question its legality or correctness, but if a decree is a nullity for lack of inherent jurisdiction of the court passing it, its invalidity can be set up in an execution proceeding. Same was not the case with the Calcutta High Court. It did not lack inherent jurisdiction. Section 9 empowers it to pass interim award. Taking note of the other provisions discussed above and more particularly when the Arbitral Tribunal and/or Arbitrator is empowered under section 30 of the Act to encourage settlement of disputes, I see no reasons as to why the Calcutta High Court would lack such jurisdiction. This is more so when the respondent No. 4 itself agreed to intimate the Arbitrator, before whom the reference was pending, about the settlement and to close the proceeding before him. 60. Although Mr. This is more so when the respondent No. 4 itself agreed to intimate the Arbitrator, before whom the reference was pending, about the settlement and to close the proceeding before him. 60. Although Mr. D. Baruah, learned counsel for the respondent No. 5 representing the workmen and the staff in question, submitted that the said workmen and staff have been rendered jobless in view of the differences and disputes, but on being asked, during the course of hearing the material particulars of being rendered jobless, no answer was forthcoming. On the other hand, the petitioners by filing additional affidavit have brought on record the existence of the said workmen and staff with the respondent No. 4-company to which there is no denial either on the part of the respondent No. 4 or the respondent No. 5. In paragraph 3 of Annexure VII of the writ petition which is the copy of the application filed by the respondent No. 4 before the learned labour court, it has been clearly admitted that 151 workers and 8 staff in question are presently in employment of the respondent No. 4. Thus, the plea of the respondent No, 5 that the said workers and staff have been rendered jobless is not only incorrect but also misleading. However, Mr. Baruah, learned counsel for the respondent No. 5 fairly admitted that it is immaterial for the said workers and staff as to under whom they work, but he contended that their employment should be guaranteed. From the materials on record, what has transpired is that the said workmen and staff are very much in employment of the respondent No. 4, a fact which the said respondents itself has admitted in the application filed before the learned labour court. It is in this context, learned counsel for the petitioners submitted that the whole design of the respondent No. 4 is to thrust the liability of the said workmen and staff upon the petitioner No. 1-company unmindful of the fact that the said workers and staff, by virtue of the earlier proceeding which have since attained finality, are the workers and staff of the respondent No. 4. 61. 61. Apart from the additional affidavit filed by the petitioners clearly pointing out that workers and the staff in question are in the employment roll of the respondent No. 4, the learned counsel for the petitioners has also drawn my attention to the documents annexed to the additional/supplementary affidavit filed by the petitioners which will also go to show that the said workers and the staff are in the employment roll of the respondent No. 4. 62. With the aforesaid factual as well as legal positions let me now deal with the preliminary objection raised by Mr. N. Dutta, learned counsel representing the respondent No. 4. The preliminary objection regarding maintainability of the writ petition is that the jurisdictional issue as has been raised by the petitioners, could also be raised before the Labour court and that the writ court will be reluctant to entertain the writ petition at the threshold of the adjudication of the reference. Tracing back the history of such nature of cases decided by the Apex Court, he submitted that in the facts and circumstances involved in the case, this court will be reluctant to entertain the writ petition. 63. In Management of Express Newspaper (P.) Ltd., (supra), the Apex Court dealing with the legal position of jurisdiction of the High Court to entertain writ petition even in the initial stage of the proceeding proposed to be taken before the Industrial Tribunal, held that the jurisdiction of the High Court is not in dispute. Posing the question as to whether the dispute referred to the tribunal is an Industrial Dispute or not, the Apex Court observed that such question would depend upon the view which the Tribunal may take. However, such observation was in respect of strike of the workers and working journalists. While holding that the High Court undoubtedly has jurisdiction to ask the Industrial Tribunal to stay its hands and to embark upon the preliminary, enquiry itself, it was observed that it would be appropriate for the High Court to adopt such a course unless the ends of justice seems to make it necessary to do so. In S.K. Verma (supra) and D.P. Maheswary (supra), the Apex Court depicting the practice of questioning the very maintainability of the reference on flimsy grounds, observed that the High Court's jurisdiction under article 226 of the Constitution of India may not be allowed to be exploited. In S.K. Verma (supra) and D.P. Maheswary (supra), the Apex Court depicting the practice of questioning the very maintainability of the reference on flimsy grounds, observed that the High Court's jurisdiction under article 226 of the Constitution of India may not be allowed to be exploited. In P.P. Munthee (supra) also similar observation was made. Other cases on this point have been referred to above. 64. The aforesaid decisions cannot be said to be the authority to argue that whenever jurisdiction of this court under article 226 of the Constitution of India is invoked at the very threshold of the reference of this nature, same is not to be exercised. Needless to say that although the jurisdiction of the High Court under article 226 of the Constitution of India in this nature of dispute is to be exercised cautiously, but it will be too much to say that the jurisdiction is altogether barred. In National Engineering Industries Ltd. (supra), the Apex Court observed, thus : "24. It will be, thus, seen that the High Court has jurisdiction to entertain a writ petition when there is an allegation that thee is no Industrial Dispute and none-apprehended which could be the subject-matter of reference for adjudication to the Industrial Tribunal under section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction. It is the existence of the Industrial Tribunal (sic dispute) which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no Industrial Dispute in existence or apprehended the appropriate government lacks power to make any reference. 27. The Industrial Tribunal is the creation of a scatue and it gets jurisdiction on the basis of reference, it cannot go into the question on validity of the reference." 65. In the aforesaid decision, the cases of Express Newspaper (P.) Ltd. (supra) and Hindustan Lever Ltd. (supra) have also been relied upon. 66. 27. The Industrial Tribunal is the creation of a scatue and it gets jurisdiction on the basis of reference, it cannot go into the question on validity of the reference." 65. In the aforesaid decision, the cases of Express Newspaper (P.) Ltd. (supra) and Hindustan Lever Ltd. (supra) have also been relied upon. 66. In the case of Nedungadi Bank Ltd. v. K.P. Madhavankutty and Others, (2000) 2 SCC 455 , the Apex Court rejecting the plea of the respondents that once a reference has been made under section 10 of the Act, the Labour Court has to decide the same and the High Court in writ jurisdiction cannot interfere in the proceedings of the Labour Court held that the same is not correct proposition. It was observed that the administrative order which does not take into consideration the statutory requirements or travels outside, that is certainly subject to judicial review, limited though it might be. It further observed that the High Court can exercise its powers under article 226 of the Constitution to consider the question of the very jurisdiction of the Labour Court. 67. When the jurisdiction of the High Court under article 226 of the Constitution of India was taken away with the establishment of the Central Administrative Tribunal under the Administrative Tribunal Act, 1985, the Full Bench of the Apex Court in L. Chandra Kumar v. Union of India, 1997 (1) GLT 1 (SC), held that the jurisdiction of the High Court under article 226 of the Constitution cannot be diluted under any circumstances. Thus, it cannot be said that under no circumstances, the High Court exercising its power of juridical review under article 226 cannot try a jurisdictional issue or examine t lie true nature of the dispute/reference at the very threshold and that tfie matter should be left out to be decided by the Tribunal/Labour Court. 68. In National Engineering Ltd. (supra), it is the categorical finding of the Apex Court that the Industrial Tribunal being the creation of a statute deriving jurisdiction on the basis of the reference, it cannot go into the question on the validity of the reference. In the instant case, what is the challenged is the validity of the reference and the notice issued by the Labour Court on the basis of the said reference. In the instant case, what is the challenged is the validity of the reference and the notice issued by the Labour Court on the basis of the said reference. Thus, the jurisdictional issue raised by the learned counsel for the respondent No. 4 is not the one relating to issuance of a show-cause notice etc. requiring the notice to respond to the same in which the jurisdiction to issue the notice can also be raised. Unlike the said situation, in the instant case it is the reference itself which is under challenge and the Labour Court being the creature of a Statute deriving jurisdiction on the basis of the reference cannot go into the question on the validity of the reference itself. As in the case of National Engineering Ltd. (supra), the question before this court is the very jurisdiction of the Labour Court which obviously cannot be gone into by the Labour Court itself. That being the situation coupled with the fact and the legal position discussed above, the preliminary objection raised by the learned counsel for the respondent No. 4 does not merit acceptance and accordingly it is rejected. 69. A little discussion about the decisions referred by Mr. D. Baruah, learned counsel for the respondent No. 5 is made here. In Kiran Singh (supra) as in the case of Sunder Dass (supra), the Apex Court held that the decree passed without jurisdiction is a nullity. In A.P. Foods (supra), the Apex Court observed in the similar line as that of the decisions on which Mr. Dutta, learned counsel for the respondent No. 4 placed reliance on the maintainability of the writ petition. 70. The decisions in Smt. Premila Devy (supra), Mis. J.K. (Bombay) (P.) Ltd. (supra) and Hindustan Lever Employees Union (supra) are on the contention that the scheme sanctioned by the court being binding on the company, its the shareholders and the creditors, anything done contrary to its provisions, is ultra vires of the company. It was observed that the scheme cannot have the effect of creating a new debt, it simply make the original debt payable in the manner and to the extent provided in the scheme. It is not understood as to how this decision can help the case of the respondent No. 5. It was also contended by Mr. It was observed that the scheme cannot have the effect of creating a new debt, it simply make the original debt payable in the manner and to the extent provided in the scheme. It is not understood as to how this decision can help the case of the respondent No. 5. It was also contended by Mr. Baruah, learned counsel for the respondent No. 5 that if at all any agreement was arrived at by and between the parties, same is not binding on the said respondent. This plea is not only to be rejected inasmuch as if the employees and the staff in question were/are in the employment of the respondent No. 4, the agreement by and between the said respondents and the petitioner No. 1 as in the case of bipartite settlement arrived at by and between the management and the workmen, will be binding on them. This plea will also have to be considered taking note of the fact that the said workmen and the staff are not out is the employment, but are continuing with the respondent No. 4 and their service interest is well protected. It is immaterial as to whether they are working with the respondent No. 4 or with the petitioner No. 1-company, a fact which has been fairly admitted by Mr. D. Baruah, learned counsel for the respondent No. 5. 71. In S. Samuel (supra), the Apex Court observed that a writ petition should not be entertained, when a statutory remedy is available. That was a case relating to a dispute covered under section 22 of the Payment of Bonus Act, 1956. Unlike the said case, as discussed above, we are concerned with the very jurisdiction of the Labour Court on the aforementioned factual and legal provisions. In Kays Construction (P.) Ltd. (supra), it was observed that the definition of the expression "Industrial Dispute" is wide enough to take into its fold a dispute of non-employment. There is no quarrel with the proposition, but then the present case, as discussed above, is entirely on a different footing. 72. In Kays Construction (P.) Ltd. (supra), it was observed that the definition of the expression "Industrial Dispute" is wide enough to take into its fold a dispute of non-employment. There is no quarrel with the proposition, but then the present case, as discussed above, is entirely on a different footing. 72. The Apex Court in the case of ANZ Grindlays Bank Ltd. v. Union of India and Others, (2005) 12 SCC 738 dealing with the question of setting aside a settlement at the instance of non-parties and its impermissibility, held that one of the factors to be considered in determining whether settlement is liable to be set aside is the enforceability of the likely award in favour of non-parties and expected prejudice to employer. In this case also as in the earner cases referred to on the question of jurisdiction, the Apex Court dealing with the plea that the writ petition was premature as the appellant had the remedy before the tribunal to show that the reference was either bad in law or uncalled for, held that the said plea was unacceptable. As in the instant case, in that case also the Apex Court found the futility of the reference made by the Central Government as could be demonstrated from a bare reading of the terms of the reference and the admitted facts. It was held that in such circumstance, the validity of the reference made by the Central Government can be examined in a proceeding under article 226 of the Constitution as no evidence is required to be considered for examining the issue raised. 73. For the aforesaid reasons the plea of the petitioners regarding non-maintainability of the reference and the proceeding before the tribunal merits acceptance and accordingly the writ petition is allowed by setting aside and quashing the impugned notification dated 13.8.2007 (Annexure V) issued by the Government of Assam in the Labour and Employment Department and so also the proceeding before the learned Labour Court at Guwahati in reference Case No. 1/2008 arising out of the said reference. 74. The writ petition is allowed. There shall be no order as to costs.