D.K. Seth, J. - (1.) The Award dated August 27, 1998 passed in Reference No. 1 of 1992 by the learned Central Government Industrial Tribunal at Calcutta, has since been challenged. The Learned Counsel for the Petitioner points out that in the facts and circumstances of this case, the Reference could not be maintained since the case of the workman was not espoused by any Union and as such it was not a dispute within the meaning of Sec. 2(K) of the Industrial Disputes Act. Secondly, he contends that the Respondent No. 4 was not a workman and as such there cannot be said to be any dispute existing between the parties. At the same time, K was not a case under Sec. 2A and thus no dispute can be raised. It was also contended that the learned Tribunal heaving found that the workman had failed to prove that he was a peon which the workman had all throughout been claiming to be, still then the learned Tribunal had granted the reliefs despite the finding that the workman had been appointed as 'Coolie' (porter) or 'Thelawala' (Cart -pullar). Therefore, the reliefs could not have been granted. He also relied on several decisions in support of his contention. According to him, the finding is wholly perverse. Since the question goes to the root of jurisdiction, therefore, it is the jurisdictional fact which this Court should examine as to whether the Learned Tribunal had jurisdiction to entertain the question. The Learned Counsel for the Petitioner further points out that there was a settlement in a dispute between the workmen and the Petitioner pursuant to which there was a scheme for recruitment of badli and casual workers, but the workman had never applied for the same. On the other hand, the workman himself had applied for enhancement of his rates even after the said dispute stood compromised. The compromise was also implemented but the workman had never applied thereunder. Therefore, he cannot come within the purview of the said provisions. That apart, there is a Recruitment Rules, or Staff regulation. The workman had never come through the staff regulation and therefore he cannot be absorved.
(2.) Mr. Dasan, Learned Counsel appearing for the workman, on the other hand, has contended that this Court sitting in writ jurisdiction cannot re -appreciate the finding of facts. According to him, there are materials to come to a decision or conclusion one way or the other and the learned Tribunal reached one conclusion, the same cannot be interfered with by this Court. He then contends that this objection as to the maintainability of the reference was never taken either in the writ petition or anywhere else, neither there was any prayer for deciding this question as a preliminary issue. Therefore, this objection could not be raised at the hearing. He also points out that the Petitioner's case is sponsored at least upto the conciliation proceedings and till the reference is made by the Union, therefore, the ground that was taken by the Petitioner cannot be sustained. He also contends that since the workman was a casual labourer, therefore, there was a relation of employer and employee and as such the reference was maintainable. He has also pointed out that on the facts there are materials to show that the workman was working with the Petitioner -Corporation for a long time and continuously which is of a perennial nature and as such the workman should be absorbed and therefore non -absorption has given rise to the dispute which has been rightly allowed by the Tribunal.
(3.) Mr. Dasan further contends that since all these questions were raised before the Tribunal and the Tribunal had found on fact that Respondent No. 4 is a workman, therefore this Court cannot interfere with the finding of the learned Tribunal. Mr. Dasan also relied on various decisions in support of his contention.;