Indian Oil Corporation Limited vs Presiding Officer And Others

K.R.Mohapatra, J

This matter is taken up through hybrid mode.

The Management of Indian Oil Corporation Limited (IOCL) has filed this writ petition assailing the award dated 7th March, 2018 (Annexure-7) passed by learned Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Bhubaneswar (for brevity, ‘learned Tribunal’) in Industrial Dispute Case No.266 of 2001 directing reinstatement of the Workman/Opposite Party No.2 with 50% of back wages within two months of publication of the award failing which the Workman would be entitled to full back wages from the date of award along with interest at the rate of 8% per annum on the back wages and the wages accrued to him from the date of the award.

2.1 The industrial dispute came up before learned Tribunal for adjudication on being referred by the appropriate Government in exercise of power under Section 10 (1) (d) of the Industrial Disputes Act, 1947 (for brevity, ‘the Act’). The term of reference for adjudication was as follows:-

“Whether Sri Manas Kumar Patra is a Workman of M/s Indian Oil Corporation Limited? If yes, whether the action of the Management in retrenching his services is proper or justified; if not, what relief the Workman is entitled to?”

Initially, the matter was referred to Industrial Tribunal, Bhubaneswar and was registered as ID Case No.80 of 1999. Subsequently, it was transferred to the learned Tribunal and was registered as Tr.ID Case No.266 of 2001.

For convenience of discussion, the parties are described as per their status before learned Tribunal. The Petitioner-Indian Oil Corporation Limited was the 1st Party-Management and the Opposite Party No.2-Sri Manas Kumar Patra was the 2nd Party-Workman before the learned Tribunal.

The 2nd Party Workman filed his statement of claim, inter alia, stating that he was engaged under the 1st Party Management for Paradip Depot by the Deputy Manager, Paradip with effect from 20th August, 1994. After working for some days at Paradip Depot, the Management sent him to Paradip Phosphate Limited (for brevity, ‘PPL’) site with effect from 31st August, 1994. He was entrusted with the duty of coordinating the work for early unloading of petroleum product from the tankers supplied to the IOCL, Paradip. It is stated that the Workman was designated as Liaison Worker and his wage was fixed at Rs.750/-per month. He performed his duties continuously up to 12th December, 1996 for about two years and four months. For entry into the PPL premises, the Central Industrial Security Force (CISF) was required to issue gate pass. On the recommendation of the Management, the Workman was being issued with gate passes by the CISF personnel. The CISF suddenly stopped issuing gate pass on 13th December, 1996 on the plea that verbal request was made by the Management not to issue gate pass in favour of the Workman. The Workman was also not paid his wages from July, 1996 to 12th December, 1996. As the Workman was claiming enhancement of wages in terms of Minimum Wages Act, he was terminated from service. Before his termination, mandatory provision of Section 25 F of the Act was not complied with by the Management. Neither any charge sheet was issued nor was the Workman afforded with opportunity of being heard before termination of his services. Hence, the Workman was constrained to approach the Conciliation Officer, who submitted a failure report to the appropriate Government. Accordingly, the industrial dispute was referred for adjudication. Hence, the Workman claimed reinstatement in service with full back wages along with other service benefits.

The 1st Party Management-IOCL filed its written statement stating that there was no employer and employee relationship between the Petitioner-Management and the Opposite Party No.2-Workman. The Workman was not employed under the Management. The Management had a Depot at Paradip from which the petroleum products of IOCL were being supplied to the customers. The crew members of the tankers containing the petroleum products were facing difficulties in getting the acknowledgement invoices in support of delivery of product. They had to wait for considerable time to get the acknowledgement invoice. Thus, the frequency of supply was seriously disrupted. To get rid of the same, the Management engaged a Contractor, namely, M/s Port Service Station to ensure smooth generation of invoice to be supplied to the crew members of the tankers. In order to look after the same, the Contractor, namely, Port Service Station engaged the Workman, namely, Sri Manas Kumar Patra-Opposite Party No.2. The wages of said Workman was being paid by the said Contractor. The Workman worked under the supervision and control of the Contractor for which he was being paid Rs.750/- per month by the Contractor. The said consignment/work was neither permanent nor perennial in nature. During September, 1996, PPL reorganized the system of acknowledgement of the invoices. In view of the above, the engagement of M/s Port Service Station was no more required and accordingly it was discontinued. Since the Workman was engaged through the Contractor, his services also brought to an end by the Contractor on cessation of the contract. The Workman being aggrieved raised a dispute before the Labour Enforcement Officer (Central), Paradip, Jagatsinghpur on 15th May, 1997 stating that he was working as Liaison Worker being engaged by the Deputy Manager (MO) IOCL, Paradip. After working for about two years and four months continuously, he was refused employment without any prior notice. The conciliation ended in failure and accordingly report was submitted by the Assistant Labour Commissioner (Central), Bhubaneswar to the appropriate Government in exercise of power conferred under Sections 12 (4) of the Act. The Management therefore contended that the reference for adjudication of the Industrial Dispute was not maintainable.

On the basis of the rival pleadings of the parties, learned Tribunal framed as many as four issues, which are as under:-

i) Whether the reference made by the appropriate Government is maintainable?

ii) Whether Sri Manas Kumar Patra is a Workman of M/s Indian Oil Corporation Limited?

iii) Whether the action of the Management in retrenching his services is proper or justified?

iv) To what relief the Workman is entitled?

6.1 In support of their respective cases, both the Management and the Workman examined one witness each. The Workman examined himself as WW-1 and filed copies of the gate passes (Exts. 1 to 1/b), copy of letter dated 20th August, 1994 issued by the Deputy Manager, IOCL (Ext.2), copies of letter issued by the Management on different dates to issue gate pass to the Workman (Ext.2/a to 2/h); copies of letter dated 15th July, 1997 issued by the Management to the Labour Enforcement Officer (Central), Paradip (Ext.3). Likewise, the Management examined one witness, namely, Sri Prabodh Kumar, DGM (Operation) as MW-1 and filed copies of bills (salary slips) dated 9th March, 1996 (Ext.A) and 20th April, 1996 (Ext.B) of M/s Port Service Station towards payment of wages to Workman, copy of reply dated 15th July, 1997 (Ext.C) and copy of letter dated 4th May, 1998 of IOCL (Ext.D) to Assistant Labour Commissioner, Bhubaneswar.

Learned Tribunal discussing the evidence on record, directed for reinstatement of the Workman with 50% of the back wages. Hence, the Management being aggrieved has filed this Writ Petition.

Mr. Padhi, learned Senior Advocate appearing for the Management, narrating the facts argued that learned Tribunal has committed material irregularity in answering the reference in favour of the Workman. The award is based on presumption and surmises.

Learned Tribunal tried to make out a third case to answer the reference in favour of the Workman.

8.1 It was his submission that save and except the gate passes issued in favour of the Workman, no other document is available to connect the Workman with the Management. The gate passes were being issued by the CISF personnel and cannot be treated to be the conclusive proof to establish that Sri Patra was a Workman of Indian Oil Corporation, the Management. The Workman did not produce or exhibit the letter of appointment and salary slip etc. to prove that he was engaged by the 1st Party Management. On the other hand, the Management produced Exts. ‘A’ and ‘B’ which established that the Workman was engaged and was being paid by the Contractor, namely, Port Service Station. It was submitted that the Workman was not in the pay roll of the 1st Party Management at any point of time.

8.2 It was further submitted that learned Tribunal had shifted the burden on the Management and erroneously held that the 1st Party Management failed to produce the salary register of casual workers for the relevant period. Mr. Padhi, learned Senior Advocate strenuously argued that when no prayer was made by the Workman, there was no occasion on the part of the Management to produce the salary register. Further, the Workman being not in the pay roll of the Management, production of salary registers relating to the Workman did not arise at all.

8.3 Mr. Padhi, learned Senior Advocate further submitted that the burden is on the Workman to prove that he had worked for 240 days in a calendar year to get the benefit under Section 25F of the Act. Neither any oral nor documentary evidence was adduced by the Workman to establish that he had worked for 240 days continuously in a calendar year. Learned Tribunal also miserably failed to consider Ext. ‘A’ and Ext. ‘B’ filed by the Management, which clearly established that the 2nd Party Workman was being paid salary of Rs.750/- per month by M/s Port Service Station, the Contractor and the same was endorsed by the Workman on the said documents. The documents were marked on admission. The gate passes issued by the CISF personnel of PPL had no evidentiary value as the same were not authored or created by the 1st Party Management.

8.4 It was also submitted by Mr. Padhi, learned Senior Advocate that on the request of M/s Port Service Station, the IOCL requested the Deputy Commandant of CISF to issue gate pass in favour of the 2nd Party Workman so that he could enter into the restricted area, as IOCL was in business with PPL.

8.5 It was further submitted that learned Tribunal failed to appreciate the settled principle of law that retrenchment means and includes termination of the service of a Workman by the employer for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include termination of service of a Workman as a result of non-renewal of the contract of employment between the employer and Workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein. In the instant case, the 2nd Party Workman was never engaged/employed by the 1st Party Management. The 1st Party Management engaged the Contractor, namely, M/s Port Service Station to facilitate smooth loading and unloading of petroleum product by the crew members of the tankers carrying petroleum product of IOCL. M/s Port Service Station engaged the 2nd Party Workman on its behalf. As such, the 1st Party Management has nothing to do with either engagement or termination of the Workman. These material aspects were lost sight of by the learned Tribunal while answering the reference. Hence, the impugned award is not sustainable and is liable to be set aside.

8.6 It is further submitted by Mr. Padhi, learned Senior Advocate that in the interim order dated 5th February, 2020, this Court directed to give the enhanced amount over and above the last pay drawn, under Section 17-B of the Act following the principle in the case of M/s Dena Bank Vs. Ghanashyam; (2001) 5 SCC 169, which shall be refunded by the Workman, in case he could not succeed in the writ petition. The Management has already paid a sum of Rs.10,56,848/- as on 9th September, 2025, whereas the Workman would have been entitled to Rs.63,000/- only. Thus, an additional amount of Rs.9,93,848/- has already been paid to the Workman.

8.7 In support of his submission, Mr. Padhi, learned Senior Advocate appearing for the Petitioner-Management also relied upon the following case laws: -

i) Dhampur Sugar Mills Limited Vs. Bhola Singh; (2005) 2 SCC 470,

ii) Karnataka Handloom Development Corporation Limited Vs. Sri Mahadeva Laxman Raval; (2006) 13 SCC 15,

iii) Bhavanagar Municipal Corporation Vs. Salimbhai Umarbhai Mansuri; (2013) 14 SCC 456,

iv) Batala Cooperative Sugar Mills Limited Vs. Sowaran Singh; (2005) 8 SCC 481,

v) Range Forest Officer Vs. St. Hadimani; 2002 SCC (L and S) 367,

vi) M.P. Electricity Board Vs. Hariram; (2004) 8 SCC 246,

vii) Essen Deinki Vs.Rajiv Kumar; (2002) 8 SCC 400

Mr. Mishra, learned counsel appearing for the 2nd Party Workman, on the other hand, vehemently objected to the submission of Mr. Padhi, learned Senior Advocate. It is strenuously argued by Mr. Mishra, learned counsel that the Workman was engaged by the Petitioner-Management for Paradip Depot by its Deputy Manager, Paradip with effect from 20th August, 1994. Due to his satisfactory performance, the Workman was sent to PPL site with effect from 30th August, 1994 and was entrusted with the duty to coordinate the work of early unloading of tankers. He was working as Liaison Worker on a monthly wage of Rs.750/-, which was being paid by the IOCL Depot. The Workman performed his duties continuously till 12th December, 1996, i.e., for a period about two years and four months. The CISF issued get passes to the Workman on the recommendation of IOCL to enter into the premises of PPL. The CISF personnel suddenly stopped issuing gate pass to the Workman with effect from 13th December, 1996. The Workman was also not paid his wages from July, 1996 to 12th December, 1996. Services of the Workman were terminated without following mandatory provisions of the Act. Neither any charge was framed against the Workman nor was any domestic enquiry held prior to termination of the Workman. The principle of natural justice was also not followed while terminating services of the Workman.

9.1 Mr. Mishra, learned counsel further submitted that the so-called Contractor, namely, M/s Port Service Station was neither registered under the Contract Labour (Regulation and Abolition) Act, 1970 nor there is any document to show that the Management had ever engaged such Contractor. Mr. Mishra, learned counsel also drew attention of this Court to the relevant portion of the impugned award to substantiate his submission that the Management had failed to bring home the allegation made against the Workman.

9.2 It is categorically submitted by Mr. Mishra, learned counsel for the Workman that the Management had neither pleaded nor adduced any evidence before learned Tribunal that the Workman had not worked for 240 days continuously in a calendar year before his termination, i.e., 13th December, 1996. In the letter of the Management issued to the Labour Enforcement Officer and Assistant Labour Commissioner, there was no mention that the Workman was engaged through a Contractor, namely, M/s Port Service Station. Ext. ‘A’ and Ext. ‘B’ were marked with objection as the Workman disputed his signature on Ext. ‘A’ and Ext. ‘B’. The MW-1 had admitted that Ext.2/C to Ext.2/G were the letters on behalf of the Management requesting the Commandant of CISF to allow the Opposite Party No.2/Workman to work inside the premises of PPL to look after the unloading of tankers and lorries. No document was filed by the Management to show that on the request of the Contractor, namely, M/s Port Service Station, a requisition was made to the Commandant, CISF to issue gate pass in favour of the Workman. Thus, it is clear that the Management at their own accord requested for issuance of gate passes to the Workman. Although it was admitted by the witnesses of the Management that the payment register may be available in the office of the Management showing payment of wages to casual labourers, but the same was not produced before learned Tribunal. The gate passes under Ext.1 to Ext.1(b) reveal the name of the Contractor as IOCL. Thus, the Management is trying to adopt unfair labour practice both by terminating service of the Workman and refusing to reinstate him. The Opposite Party No.2 is a Workman within the meaning of Section 2(s) of the Act. As such, Mr. Mishra, learned counsel for Opposite Party No.2/Workman prayed for dismissal of the Writ Petition.

9.3 Mr. Mishra, learned counsel for the Opposite Party No.2/Workman relied upon the following case laws in support of his contentions.

i) Syed Yakoob Vs. K.S.Radhakrishnan and others; AIR 1964 SC 477,

ii) The Scientist in-charge, Regional Museum of Natural History Vs. Sri Gangadhar Das [W.P.(C) No.22599 of 2017, disposed of on 28th January, 2020],

iii) Surya Dev Rai Vs. Ram Chander Rai and others; (2003) 6 SCC 675,

iv) Radhey Shyam and another Vs. Chhabi Nath and others; (2015) 5 SCC 423,

v) Director, Fisheries Terminal Division Vs. Bhikubhai Meghajibhai Chavda; (2010) 1 SCC 47,

vi) R.M.Yellatti Vs. the Assistant Executive Engineer; (2006) 1 SCC 106

We have heard learned counsel for the parties at length; perused the case record and documents placed before us, as well.

The Workman came up with a specific plea before learned Tribunal that he was engaged by the Deputy Manager, IOCL-Management on monthly wage of 750/-. He was engaged on 20th August, 1994 to work as Liaison Worker to supervise unloading of petroleum products from the tankers and raising of acknowledgement invoices in favour of the crew members of the tankers at PPL site. He was also assigned with other duties. In his cross-examination, the Workman has specifically deposed that “I was cleaning and sweeping the office of 1st Party-Management and supervising the unloading of tank-lorries belonging to the Management in the factory premises of Paradip Phosphate Limited. I was issued with an appointment letter by the Deputy Manager of the Management, IOCL, Paradip. I had filed the same.” On scrutiny of the documents filed by the Workman, it is apparent that he had not filed any letter in support of his appointment by the Deputy Manager, IOCL. On the other hand, the Workman had filed the gate passes as Exts.1 to 1/b issued by the Commandant of CISF personnel deployed at PPL premises. He had also filed Ext.2, the letter dated 20th August, 1994 issued by the Deputy Manager, IOCL. On perusal of Ext.2, it does not appear to be an appointment order/letter. The said document (Ext.2) is a letter issued by the Deputy Manager, IOCL on 20th August, 1994 to the Deputy Commandant, CISF, PPL, Paradip to issue gate pass in favour of the Workman ‘on behalf of IOCL’ for the Contractor’s TTS. Thus, Ext.2 cannot be said to be an order of appointment at all as submitted by Mr. Mishra, learned counsel for the Workman. The said document further reveals that a request was made therein by the Deputy Manager, IOCL to the Deputy Commandant, CISF to issue gate pass to the Workman who was working as Liaison Worker on behalf of the IOCL for the Contractor. Further, Ext. ‘A’ and Ext. ‘B’, the salary slips (Bills) issued by the Port Service Station, the Contractor on 9th March, 1996 and 20th April, 1996 are in token of payment of service charges to the Workman/Opposite Party No.2, which is acknowledged/endorsed by the Workman himself. The said documents are marked on admission. Thus, submission of Mr. Mishra, learned counsel for Opposite Party No.2- Workman that Ext. ‘A’ and Ext. ‘B’ were marked with objection, is not acceptable.

Learned Tribunal though referred to Ext. ‘A’ and Ext. ‘B’ in the impugned award, but failed to record any finding with regard acceptability of the same. It appears that learned Tribunal ignored the evidentiary value of Ext. ‘A’ and Ext. ‘B’ on the plea that no document was filed by the Management to prove that M/s Port Service Station, the Contractor, was ever engaged as a Contractor to look after loading, transportation and unloading of furnace oil at PPL premises. Thus, the finding that the Workman was engaged by the Management is without any basis, inasmuch as it is not the case of any of the parties that M/s Port Service Station was not engaged as a Contractor on behalf of the Management to look after loading and unloading of petroleum products. Thus, learned Tribunal tried to make out a third case to answer the reference in favour of the Workman. The Workman, of course, in his cross-examination by the Management, had disputed his signature in Ext. ‘A’ and Ext. ‘B’. Be that as it may, when the documents, namely, Ext. ‘A’ and Ext. ‘B’ are marked on admission, mere denial of signature by the Workman in the said documents would not affect its evidentiary value and acceptability. Thus, the finding of learned Tribunal that the Workman was engaged by the Management has resulted in serious miscarriage of justice.

Mr. Mishra, learned counsel for the Workman strenuously argued that the Exts.2(a) and 2 (b) series are the letters issued by IOCL requesting the Deputy Commandant, CISF to issue gate pass to the Workman describing that he was negotiating on behalf of tank-truck Contractors of IOCL for TTS plying between Paradip Depot to PPL township. He, therefore, contended that the Workman was working as Liaison Worker on behalf of IOCL, the Management and not for any Contractor. Ext.2 series might give an impression that the Workman was negotiating on behalf of IOCL. But a close reading of the said documents clearly reveal that the Workman was negotiating on behalf of the Contractor. No where the Management is described as a Contractor. On the other hand, IOCL has been described by the Workman himself to be the principal employer in his deposition. Thus, the IOCL cannot be treated as a Contractor, as alleged by Mr. Mishra, learned counsel in the fact and circumstances of the case. Law is well-settled that reappreciation of evidence by the High Court is not permissible while entertaining a writ petition under Articles 226 and 227 of the Constitution of Inda, as explained in the case of Syed Yakoob (supra) relied upon by Mr. Mishra, learned counsel for the Workman, wherein the Hon’ble Supreme Court held as follows:-

The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. 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, or in excess of it, or as a result of failure to exercise jurisdictions. 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 a 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. In regard 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 the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmed Ishaque ), Nagendra Nath Bora v. The Commissioner of Hills Division and Appeals, Assam ([1958] S.C.R. 1240.), and Kaushalya Devi v. Bachittar Singh.”

Thus, this Court in exercise of power under Articles 226 and 227 of the Constitution is not entitled to act as an appellate Court. The finding of facts arrived at by the inferior Court or Tribunal as a result of appreciation of evidence cannot be reopened or questioned in writ proceedings. However, an error of law which is apparent can always be corrected by a writ Court, but not an error of fact, however grave it may appear to be.

In the instant case, learned Tribunal failed to take into consideration the documents, i.e., Ext. ‘A’ and Ext. ‘B’, which are marked on admission. Thus, non-consideration of materials on record relevant for adjudication of the case is an error of law and can be interfered with by this Court. Mr. Mishra, learned counsel for the Workman relied upon the case of The Scientist in-charge, Regional Museum of Natural History (supra) in which, this Court relying upon Syed Yakoob (supra) held as under:-

“Keeping in view the aforesaid settled principles of law, this Court is of the opinion that the factual aspects of the case cannot be considered in a proceeding involving writ of certiorari.

In the case of Surya Dev Rai vs. Ram Chander Rai and Others, (2003) 6 SCC 675, the same matter was also considered. Though we are aware that the ratio as far as maintainability of writ application against the order passed by the Civil Court is overruled by later decision of the Hon'ble Supreme Court in the case of Radhey Shyam and Another vs. Chhabi Nath and Others, (2015) 5 SCC 423, the distinction between the jurisdiction of the High Court under Article 226 and Article 227 of the Constitution is approved by the said later decision. The Hon'ble Supreme Court in the case of Surya Dev Rai Ram Chander Rai and Others (supra) has very categorically held that Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted

(i) without jurisdiction - by assuming jurisdiction where there exists none, or

(ii) in excess of its jurisdiction- by overstepping or crossing the limits of jurisdiction, or

(iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.”

In the instant case, by not discussing Ext. ‘A’ and Ext. ‘B’, learned Tribunal has failed to exercise jurisdiction vested in it in flagrant disregard to law and the Rules of procedures. Thus, this Court has jurisdiction to entertain the writ petition.

Mr. Padhi, learned Senior Advocate argued that the Management from the very inception has taken a stand that there is no employer and employee relationship between the Management and the Workman. It is also the specific plea of the Management that the Workman was never engaged/employed by the Management. He referred to the reply of the Management dated 15th July, 1997 (Ext. ‘C’) and 4th May, 1998 (Ext. ‘D’). The letters were issued to the Assistant Labour Officer (ALO) and Assistant Labour Commissioner by the Management in reply to the complaint lodged by the Workman. Of course, those documents were marked with objection by the Workman. Mr. Mishra, learned counsel for the Workman relied upon the letter dated 15th July, 1997 (Ext.3). In the said letter under Ext.3, though it is not stated that the Workman was engaged by a Contractor, but a specific plea was taken by the Management that there was no employer and employee relationship between the Management and the Workman. In the written statement filed by the Management, it has been specifically stated that the Workman was engaged by M/s Port Service Station, the Contractor, which was looking after the loading and unloading of petroleum products of IOCL. It is also stated in the written statement that the Contractor, namely, M/s Port Service Station had engaged the Workman as Liaison Worker to facilitate smooth unloading of petroleum product at PPL site and raising of invoices.

Though not specifically stated by the Management under Ext.3, but it appears that from the very beginning, the Management had been taking specific stand that the Workman was never engaged by the Management.

Mr. Padhi, learned Senior Advocate submitted that the Workman had not produced any document to show that he had worked for 240 days in a calendar year before termination. Mr. Mishra, learned counsel for the Workman, however, seriously objected to it and contended that the Management had never objected to the case of the Workman that he had worked for 240 days in a calendar year. Thus, it was not required on the part of the Workman to establish the same to get the benefit under Section 25F of the Act. On perusal of the case record more particularly the written statement filed by the Management, it is clear that no specific objection was raised by it to the stand taken by the Workman that he had worked continuously for 240 days in a calendar year. The learned Tribunal also rightly held that the Workman had worked for 240 days in a calendar year. Thus, the contention of Mr. Padhi, learned Senior Advocate to that effect is not acceptable. But the question arises as to whether the Workman was working under the Management or not. No document is available on record to show that the Workman had worked for 240 days in a calendar year under the Management. Of course, MW-1 in his deposition has stated that “payment register may be available in the office of the 1st Party-Management which can show payment of wages to the casual labourers engaged directly by the Party-Management in the year 1994 and the said register can disclose whether the 2nd party was receiving wages directly from the Management.” It is alleged by Mr. Mishra, learned counsel for the Workman that payment register for the casual labourers for the year 1994 was suppressed by the Management and was never produced to reveal the truth. Admittedly, no prayer was made by the Workman for production of the payment register of casual labourers of the year 1994 before the Tribunal. When Ext. ‘A’ and Ext. ‘B’, which were marked on admission clearly reveal that the wages of the Workman was being paid by the M/s Port Service Station, it cannot be said that the Management had suppressed relevant register with regard to payment of wages to the Workman. In absence of prayer, if any, by the Workman for production of the said payment register no adverse inference can be drawn against the Management, which is the settled principle of law. In absence of any document to the contrary with regard to payment of wages to the Workman, learned Tribunal ought to have discussed Ext. ‘A’ and Ext. ‘B’ to record a finding with regard to payment of wages to the Workman. No finding has been recorded by learned Tribunal with regard to payment of wages to the Workman in the impugned award. Thus, merely because the Workman had worked for 240 days and his service was dispensed with without complying with Section 25F of the Act, a direction cannot be made for his reinstatement with the Management in absence of any material to the effect that the Workman was engaged by the Management. Thus, the direction for his reinstatement with the Management is per se illegal and is not sustainable. Consequently, payment of 50% back wages is equally not sustainable.

There is no dispute to the ratio in the case laws relied upon by Mr. Padhi, learned Senior Advocate in support of his submission, but in view of the discussion made above, it is not felt necessary to discuss the same in detail.

In view of the discussions made above and in the fact and circumstances of the case, we are of the considered opinion that the impugned award under Annexure-7 is not sustainable and is accordingly set aside. The Management may take steps for realization of the excess amount paid to the Workman in terms of Dena Bank (supra) and Municipal Corporation of Delhi Vs. Ramkishan and another; (2001) ILLJ 1411, Delhi.

The writ petition is allowed to the extent stated above. In the facts and circumstances of the case, there shall be no order as to costs.

Interim orders dated 28th July, 2011 and 30th November, 2011 stand vacated.