\ 1. ~ ' , SARVA SHRAMIK SANGH v. INDIAN OIL CORPORATION LTD. (Civil Appeal No. 2423 of 2009) APRIL 13 & Ors.

,to Government of India to refer the dispute raised, to the 'tribunal for adjudication. High Court dismissed the writ petition on the ground that the first writ petition for abolition of contract labour in the canteen in the establishment of IOC, was dismissed for non-prosecution B and attained finality and once having sought the relief of abolition of contract labour, the appellant was estopped from seeking any other relief by contending that the contract was sham and not genuine. The question for consideration in present appeal was c whether in view of the stand taken by the appellant in first writ petition, the appellant was estopped from taking a different stand in the subsequent writ petition and whether the decision of the Central Government refusing reference required interference. Allowing the appeal, the Court HELD:1.1. On an examination of the pleadings in the first and second writ petition, it was found that the issues for consideration, the parties to the cause, the cause of action and t"e reliefs claimed were all different in the two cases. In the first petition, relief was sought for abolition of contract labour system and for absorbing the canteen workers as employees of IOC. In the second petition, relief was sought under the Industrial Disputes Act, 1947 for making a reference under sec. 10(1)(c) to the Industrial Tribunal to decide whether the contract between IOC and the canteen contractor was sham and nominal and whether the canteen workers were the direct employees of IOC. [Para 7] [49-F-H; 50-A-B] D E F G

1.2. The assumption that the appellant had taken inconsistent stands in the two writ petitions was not correct. Even in the first writ petition, the appellant had contended that though the contractors changed from H 42 SUPREME COURT REPORTS \ (2009] 6 S.C.R. A time to time, the workers h't the canteen remained the same with contif\uity of sel"i'ice; that IOC had mala fide and illegally kept thf workers as contract labour in order to keep them in a p'ermanent .state of insecurity and to deny them the wages and 'privileges available to B permanent workers; that IOC waS: actually controllin\g, and supervising the canteen; and tha~ only as a camou·ftage, the contractor was shown as running the cantetm to create a pretence that the workmen of IOC were1 the workers of the contractor, when In fact they were the c employees of IOC.-.Jn short, the appeUant had contended that the contract was sham and nominal, in the first petition. Even in the second writ petition, the contention was that the contract was sham and a camouflagtl to avoid extending benefits of regular employees to the canteen workers. Therefore, the High Court committud a serious error in assuming that in the first writ petition, the appellant had conceded that the contract between the IOC and the canteen contractor was valid and genuine and that in the second writ petition the appellant had taken a contrary stand that the contract was sham a111d a camouflage. [Para 8] [50-B-G] E 0 Avon Services Production Agencies (P) Ltd. v. The lndustria/Tribunal (1979) 1 SCC 1 and Steel Authority of India Ltd. v. National Union Waterfront Workers (2001) (7) SCC 1, referred to. F

1.3. The''stand of the appellant and the workers was always consistent. If the case of the workmen is that the contract between the principal employer and the G contractor was sham and merely a camouflage to deny benefits to the workers, then they co•·ld raise a dispute and approach the industrial adjudicator. The appellant sought a reference of the dispute to the industrial adjudicator, and when such a reference was refused, H rightly approached the High Court by way of second writ ,( / ,. .\_. ._ ~ SARVA SHRAMIK SANGH v. INDIAN OIL CORPORATION LTD. & ORS. 43 petition. This means that the appellant had prayed for a A .. particular relief in the first writ petition, and when such relief was found to be inappropriate on the same fact raised a dispute which was the proper remedy, and as the dispute was not referred to the Industrial Tribunal, approached the High Court seeking a direction to the B Central Government for making a reference. There is thus neither inconsistency nor any estoppel. [Para 9] [51-D-G] D

2. The assumption that there is an absolute bar on inconsistent pleas being taken by a party, is also not c sound. What is impermissible is taking of an inconsistent plea by way of amendment thereby denying the other side, the benefit of an admission contained in the earlier pleading. Mutually repugnant and contradictory pleas, destructive of each other may also not be permitted to be urged simultaneously by a plaintiff/petitioner. But when there is no inconsistency in the facts alleged, a party is not prohibited from taking alternative pleas available in law. Similarly, on the same facts, different or alternative reliefs can also be claimed. When the case of the workers is that the contract was sham and nominal, they could E seek a relief that they should be declared as the direct employees of the principal employer; and if that contention failed and it is found that the contract was valid, then they can seek direction to the Central Government to consider their representation for abolition F of contract labour. Similarly where the workers contend that the contract between principal employer and the contractor was sham and merely a camouflage to deny them the benefits of labour laws, and if their prayer for relief under CLRA Act is rejected, they can then seek relief G under the ID Act. The contention of IOC that on account of the dismissal of the first petition, the second petition for a different relief was barred either by principle of res judicata or by principle of estoppel is liable to be rejected. H 44 SUPREME COURT REPORTS [2009] 6 S.C.R. A When the parties are different, issues are different, reliefs are different, the question of either res judicata, or finality of proceedings, acquiescence or estoppel will not arise. [Paras 10 and 11.4) [51-G-H; 52-A-E; 55-A-B] 8 Steel Authority of India Ltd. v. Union of India (2006) 12 sec 233, held inapplicable.

3. Where, as in the instant case, the dispute is whether the persons raising the dispute are workmen or not, the same cannot be decided by the government in C exercise of its administrative function under section 10(1). When It is found that the dispute should be adjudicated by the Industrial Tribunal and the State Government had persistently declined to make a reference under section 10(1) despite chances given by High Court and Supreme D Court to reconsider the matter, the court would direct the government to make a reference of the dispute to the appropriate industrial tribunal. [Paraa 12.8) [61-F-H; 62-A B] E State of Madras v. C.P.Sarathy (1953) 4 SCR 334; Rohtas lndustriesLtd. v. SD Agarwal AIR (1969) SC 707; Western India Match Co. v.Western India Match Co. Worl<ers' Union (1970) 1 SCC 225; State ofBombay v. K.P. Krishnan (1961) 1 SCR 227; Bombay Union of Journalists & Ors. v. The State of Bombay & Anr. (1964) 6 SCR 22 and F Hochtif Gammon v. State of Orissa (1975) 2 SCC 649, referred to.

4. A writ of mandamus would be issued to the appropriate government to reconsider the refusal to make G a reference, where (i) the refusal is on i!'relevant, irrational or extraneous grounds; (ii) the reiusal is a result of the appropriate government examinir.:J the merits of the dispute and prejudging/adjudicating/determine the dispute; (iii) the refusal is mala fide or dishonest or H actuated by malice; (iv) the refusal ignores the material SARVA SHRAMIK SANGH · v. INDIAN OIL CORPORATION LTD. & ORS. 45 available in the failure report of the Conciliation Officer or A is not supported by any reason. 'The State Government examined the merits of the dispute and has refused to make the r1eference on the ground that the workers were not the employees of IOC, when th~\ very dispute th~i required relference was whether the workers should be B considered as the employees of llOC. The Central Government: is directed to reconsider the matter in the light of the tlbservations above and take an appropriate decision on tlhe request for reference of the dispute to the Industrial adjiudicator. [Paras 13, 14 and 15) [62-B-G] c ..