KALPATARU PROJECTS INTERNATIONAL LIMITED vs GUJARAT MAZDOOR SABHA

C/SCA/11206/2026 CAV JUDGMENT DATED: 04/11/2026
(GJHC240563152026)
Reserved On : 08/10/2026
Pronounced On : 04/11/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11206 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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Approved for Reporting Yes No
- √
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KALPATARU PROJECTS INTERNATIONAL LIMITED
Versus
GUJARAT MAZDOOR SABHA & ORS.
=======================================================
Appearance:
MR MIHIR JOSHI, Sr. Adv. with MR KEYUR GANDHI with MR
NISARG DESAI with MS PRAVALIKHA BATTHINI for GANDHI LAW
ASSOCIATES(12275) for the Petitioner(s) No. 1
MR AMRESH N PATEL(2277) with MR HARSH K RAVAL for the
Respondent(s) No. 1
=======================================================
CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

CAV JUDGMENT
1. With the consent of learned advocates appearing
for the parties, the present petition is taken up
for final disposal.
2. By way of filing present petition under Articles
226 and 227 of the Constitution of India as well
as under the provision of the Industrial Disputes
Act, 1947 (hereinafter referred to as “ID Act” for
short) as well as under the Industrial Relations
Code, 2020, the petitioner has challenged the
legality and validity of the order dated
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10.07.2026 passed below application, Exh.10 by the
learned Industrial Tribunal, Kalol in Reference
(IT) No.55/2025 (Old Reference (IT) No.26/2024)
produced at Annexure-A.
3. Heard learned Senior Counsel, Mr. Mihir Joshi
assisted by learned advocate, Mr. Keyur Gandhi
with learned advocate, Mr. Nisarg Desai with
learned advocate, Ms. Pravalikha Batthini for
Gandhi Law Associates for the petitioner and
learned advocate, Mr. Amresh Patel with learned
advocate, Mr. Harsh K. Raval for the respondent
no.1.
4. Learned Senior Counsel, Mr. Joshi appearing for
the petitioner submitted that the petitioner is a
Company viz., Kalpataru Projects International
Ltd., registered under the provision of the
Companies Act, 1956 and is incorporated in the
year 1981, which is one of the India’s largest
listed/ diversified engineering and construction
companies engaged in Power Transmission &
Distribution, Building and Factories, Water Supply
and Irrigation, Railways, Oil and Gas Pipelines,
Urban Mobility (Flyovers and Metro Railway)
(Highway and Airport), whereas the respondent no.1
is a Union and the respondent nos.2 to 8 are the
Contractors, who have been granted licenses under
the provision of the Contract Labour (Regulation &
Abolition) Act, 1970 (hereinafter referred to as
“CLRA” for short) and the said Contractors have
executed contract with the petitioner – Company to
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supply workmen as per the said contract.
5. Learned Senior Counsel, Mr. Joshi submitted that
as such the respondents are not the employees of
the petitioner – Company and there is serious
dispute about the relationship of the Employer and
Employee between the petitioner and the
respondents. He submitted that in fact, the
respondent no.1 – Union is the employees of the
Contractors with whom the petitioner – Company has
executed contract for the supply of the workers/
labourers. He submitted that since beginning, the
relationship of Employer and Employee had been
disputed at the time of submission of charter of
draft before the Government despite the fact that
the Reference was forwarded to the Industrial
Tribunal specifically stating that the contract
executed between the Employer and the Contractor
is bogus, sham and mere paper arrangement only and
at the time of forwarding the Reference to the
Industrial Tribunal, the language employed in the
Reference is not properly worded and the issue
raised by the petitioner – Company have not been
considered, therefore, writ petition being Special
Civil Application No.12023/2024 was filed before
this Hon’ble Court, which was allowed by this
Hon’ble Court with a specific direction to the
Industrial Tribunal, as a threshold issue, first
to adjudicate as to whether the contract system in
question is a sham, bogus and mere paper
arrangement only and thereafter commence
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proceedings to decide the remaining demands of the
employees of the respondent no.1 – Union. He
submitted that as per the direction issued by this
Hon’ble Court, fresh Reference had been prepared
by the Government and forwarded to the Industrial
Tribunal, however, there were some errors in the
said Reference, which led to filing of another
writ petition before this Hon’ble Court, however,
the said writ petition had not been entertained by
this Hon’ble Court and the reasons assigned by
this Court in the said decision have already
attained finality as none of the parties had
challenged the said order before higher forum. He
submitted that in fact, at the time of disposing
of those writ petitions being Special Civil
Application Nos.10436 & 10438 of 2025 by an order
dated 16.09.2025, this Hon’ble Court had
emphasized upon the core issue involved in the
matter and by giving specific direction to
consider core issue involved in the matter about
the relationship between the petitioner and the
respondent as Employer and Employee and the said
issue requires to be decided first and thereafter,
other issues concerned with the said Reference are
required to be decided and in support of this
submission, he has relied on Paragraph Nos.15, 16
and 21 of the said decision and by emphasizing
upon the same, he submitted that this Hon’ble
Court by giving direction to decide the Reference
in a particular manner, has set aside earlier
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terms of the Reference and directed the Government
to re-frame the terms of Reference in light of the
observations made therein.
6. Learned Senior Counsel, Mr. Joshi submitted that
therefore an application, Exh.43 was preferred by
the petitioner – Company to re-cast the issue and
decide it first as mentioned in Demand Nos.1 & 2
that the contract executed between the principal
Employer and the Contractor is bogus, sham and
mere paper arrangement only or not and in the said
proceedings, the statements of claim had been
filed by the petitioner as well as the respondents
and, thereafter, direction was also given to the
concerned parties to lead evidence to prove the
issue raised in Demand Nos.1 & 2. He submitted
that after considering and appreciating the
material available on record, the Industrial
Tribunal passed an order below said application on
03.11.2025 specifically stating that the said
issue is required to be decided first as per the
direction of this Hon’ble Court and the language
employed in the said decision is precise, very
clear and unambiguous, therefore, considering
other issues involved in the Reference, the issue
raised in application, Exh.43 ought to have been
decided first. He further submitted that the order
dated 03.11.2025 passed by the concerned Court has
attained finality as none of the parties had
challenged it before higher forum. He submitted
that during the pendency of the Reference, an
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application, Exh.10 with a prayer to grant salary,
increment and other financial benefits w.e.f.
01.04.2023 in terms of settlement dated 12.03.2024
arrived at as per Section 2(p) of the ID Act with
another Union i.e. Akhil Gujarat General Mazdoor
Sangh and its Workers. He submitted that in the
said application, the respondent no.1 had prayed
for passing Part-1 award in respect of its Demand
No.1 as well as for interim relief under Demand
No.15, however, the said application was objected
by the petitioner – Company specifically stating
that as per the direction given by this Hon’ble
Court, the issue as to whether the contract is
bogus, sham and paper arrangement or not? as
Demand Nos.1 & 2 mentioned in the terms of
Reference is required to be decided first as
Demand Nos.1 & 2 did not contain any demand for
interim relief interim relief, which is part of
Demand No.15 as the issue pertaining to
relationship of Employer and Employee could not
have been yet decided by the Court, therefore, the
said application cannot be entertained before
deciding the said issue and liability cannot be
thrown/saddled on the head of principal Employer
without deciding the core issue of relationship of
an Employer and Employee (Workman).
7. Learned Senior Counsel, Mr. Joshi submitted that
at the time of disposing of writ petitions being
Special Civil Application Nos.10436 & 10438 of
2025, this Hon’ble Court has reiterated the said
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issue as to whether the contract system, which is
in existence, is bogus, sham or mere paper
arrangement is required to be decided first and
only thereafter, remaining demands are required to
be adjudicated by the Industrial Tribunal,
therefore, the Industrial Tribunal did not decide
the said issue first, otherwise, it will amount to
pre-adjudicate the issue of relationship of
Employer and Employee. He submitted that when
specific directions have been issued in an express
terms and those particulars have already been
brought to the notice of the Industrial Tribunal
and during interregnum period, based upon the said
decision delivered by this Hon’ble Court,
application, Exh.43 had not been entertained by
giving specific direction in the above said
petition, first issue pertains to Demand Nos.1 & 2
in the charter of demand (Reference made by the
Government) is required to be decided, despite the
fact that the Industrial Tribunal has proceeded
further with the matter and ultimately, partly
allowed the said application by granting interim
relief in favour of the respondent directing the
petitioner – Company to pay Rs.10,000/- w.e.f.
01.04.2023, however, the said decision delivered
by the Industrial Tribunal prima facie shows
judicial indiscipline and impropriety at the hands
of the Industrial Tribunal and the said order is
contrary to the settled legal proposition of law
as laid down by the Hon’ble Supreme Court in
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numerous case laws.
8. Learned Senior Counsel, Mr. Joshi further
submitted that the grant of interim relief in the
nature of direction to pay wages and benefits to
the petitioner – Company at par with a settlement
applicable to a different and better placed
category of contract workmen necessarily pre
adjudicates that the contract labour system is not
genuine, however, the said issue is squarely the
subject matter of Demand Nos.1 & 2, which are yet
to be decided by the Industrial Tribunal as per
the directions issued by this Hon’ble Court. He
submitted that in fact, the impugned order
directing the petitioner – Company to make the
payment of settlement benefits, therefore,
effectively pre-judges the very issue, which this
Hon’ble Court has directed the Industrial Tribunal
to decide first. He submitted that if the Hon’ble
Court would make cursory glance upon the findings
given and conclusion arrived at by the Industrial
Tribunal while passing impugned order, in that
event, it is found out that as such, there is no
whisper of discussion or does not contain any
single finding on any material as to the
existence of the relationship of the Employer and
Employee and as per the observations made by the
Industrial Tribunal, the parties are yet to lead
evidence on this issue and in absence of any such
relationship having been established, the
petitioner – Company could not have been directed
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to make any payment to the concerned workmen. He
submitted that in fact, it is the specific case of
the petitioner – Company that the petitioners are
using and utilizing the services of the respondent
nos.2 and 8 and the respondent no.1 – Union are
the employees of the respondent nos.2 to 8 and all
the wages, salary are being paid to them by the
respective Contractors. He submitted that at the
time of disposing the writ petition, the Hon’ble
Court has given direction to the Industrial
Tribunal to decide the issue in a particular
manner, which is very clear, precise and
unambiguous, therefore, the judicial propriety and
discipline demands that the order passed by the
higher court is a mandate and the concerned trial
court has to comply it in a stricto sensu manner.
He submitted that in fact, while deciding the
application, Exh.43, the said issue was already
considered by the predecessor of the Industrial
Tribunal and despite pin-pointing and bringing to
the notice of the the Industrial Tribunal, an
application, Exh.10 has been allowed in complete
disregard of the direction of this Hon’ble Court,
therefore, the said order requires to be quashed
and set aside.
9. Learned Senior Counsel, Mr. Joshi submitted that
if the Hon’ble Court would make cursory glance
upon the contents of the application, Exh.10, in
that event, it is found out that except the
petitioner – Company, rest of the Contractors have
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not been made party, they have also not challenged
the said application by way of filing any written
statement as such the issue involved in the matter
relating to the relationship of the Employer and
Employee. It is admitted position of fact that the
respondent no.1 – Union have been engaged by the
respondent nos.2 to 8 by executing contract and,
thereafter, the disputes have been cropped up
between the parties and at that relevant point of
time, settlement was arrived at between the
Contractor and the members of the Union, however,
the members of the respondent no.1 – Union did not
agreeable with the said terms and conditions and
could not become part of the said deed of
agreement, wherein the petitioner – Company has
signed the said document only as confirming party
and the members of the Union, who have agreed to
accept the pay revision as per the deed of
document, are entitled to get the benefits of pay
wages and accordingly, pay wages have been paid by
the Contractors to the said members of the Union,
however, certain workmen had not signed the said
agreement with the Contractor and they are seeking
pay wages at par with the workmen of the Union,
who had entered into contract, in short, they are
not ready and agree with the terms and conditions
of the contract and did not enter into execution
of deed, on one hand and on the other hand, they
used to seek hike in pay wages as per the terms of
the contract executed by other workmen Union at
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the time of execution of deed of document, the
Union of other workmen have accepted the
conditions that they are the workmen of the
Contractor and salary is being paid to them by the
Contractor, without accepting such particular
phrase and terminology (terms and conditions of
agreement) mentioned in the said contract, they
would like to get same benefit by raising dispute
about the relationship of Employer and Employee by
keeping pending Reference and, therefore the said
core issue is utmost important issue, which
requires to be decided first before saddling any
monetary liability on the head of principal
Employer, therefore, unless and until such issue
is decided by the Industrial Tribunal, they are
not entitled to get any benefit to pay rise at
part with the workmen union, who had executed
contract with the respondent nos.2 to 8 and they
have not joined party in the present petition at
the time of preferring an application, Exh.10, in
which, the petitioner – Company had been made
party, therefore indirectly they are trying to
seek benefit of pay wages under the guise of
interim relief, which cannot be entertained solely
on the count that the relief, which is granted at
the time of adjudication of the Reference finally
and cannot be entertained at the stage of interim
application. He submitted that in fact, for the
purpose of deciding the said issue, the Industrial
Tribunal has to give specific reasons to the
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effect that the contract system is bogus, sham and
paper arrangement only. He submitted that inspite
of deciding the same, the Industrial Tribunal held
that the said process is a time consuming exercise
and it would take considerable long period of time
and till then, the Workers cannot be deprived from
their legitimate rights, therefore, before
deciding the said issue, the application, Exh.10
is required to be decided solely on the count that
the due to rise in the price of the commodity and
high price raised index of the members of the
Society, it would be very difficult for the
workman to sustain in the present condition of
price soaring index of essential commodities,
articles and components of daily needs. He further
submitted that as per the ratio laid down by the
Hon’ble Supreme Court as well as this Hon’ble
Court in numerous case laws, the members of the
respondent no.1 – Union are entitled for equal
work equal pay, however, the said aspect has not
been considered by the Industrial Tribunal while
passing impugned order.
10. Learned Senior Counsel, Mr. Joshi submitted that
it is an admitted position of fact that the
benefit under the settlement dated 12.03.2024 are
required to be paid only to those workmen, who
have signed the said settlement and not otherwise,
therefore, the direction issued in the impugned
order to pay those benefits to the workmen of the
respondent no.1 – Union, who have never signed the
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settlement, effectively circumvents the
requirement of signing the settlement, which is
necessary under Section 2(p) of the ID Act to
obtain benefits under the settlement and such
settlement will be binding only to those workmen,
who have signed the settlement. It is, therefore,
urged that considering the above facts of the
case, the present petition may be allowed.
11. Per contra, learned advocate, Mr. Patel for the
respondent no.1 – Union submitted that the
impugned order passed by the Industrial Tribunal
is just, legal, reasonable and does not require
interference at the hands of this Hon’ble Court as
no error of fact and/or law could be said to have
been committed by the Industrial Tribunal. He
submitted that in fact, as such, there was no
restriction imposed upon the Industrial Court at
the time of disposing of writ petition being
Special Civil Application No.12023/2024 by
expressly giving any direction not to entertain
the interim application. He referred to Paragraph
No.15 of the impugned order and submitted that as
such, the said part of the judgment is not
operative part of the decision, which would
preclude the Industrial Tribunal from conducting
the interim relief. He submitted that the
preliminary issue qua relationship of the Employer
and Employee needs to be examined and all
ancillary benefit of wage revision is to be given
to all employees of the establishment after such
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determination. He submitted that in fact, the
application pertaining to seeking interim relief
has no barring with such demand and irrespective
of any such terms, the Industrial Tribunal has got
all valuable right to decide Demand No.15 before
the determination of relationship of the Employer
and Employee as this Hon’ble Court had not
restricted or restrained the Industrial Tribunal
not to examine such aspect of interim relief. He
submitted that at the time of disposing of the
application, this Hon’ble Court has specifically
observed that “The Court must attempt to construe
the terms of reference not in a pedantic or
mechanical manner, but fairly and reasonable. The
learned Tribunal, in any case, would have the
powers as well as the duty to ascertain the real
dispute referred to it and to adjudicate upon the
same”. He submitted that the Industrial Tribunal
was well within the judicial discipline while
examining the real dispute, whereby unfair system
was created against the interest of the workmen,
who are fighting for their right to be considered
as employee of the Company. He submitted that it
is an admitted position of fact that the issue
pertaining to the determination of the
relationship of Employer and Employee will consume
much more time and during interregnum period,
Demand No.15 cannot be put in abeyance, otherwise,
it would be treated as futile exercise and if
Demand No.15 is not determined at this stage then,
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there will be no occasion for the determination of
the said issue.
12. Learned advocate, Mr. Patel submitted that it is
an admitted position of fact that an application,
Exh.10 had been preferred in the pending
Reference, which was already served to all the
parties with a request that the workman cannot be
deprived of from the said benefits given to other
similarly situated employees engaged by the
principal Employer through Contractor by executing
contract. He submitted that the settlement carried
out by the Management sponsored Union and the
Contractor and the principal Employer would have
given assurance to the Contractors to rise hike of
salary of workmen because at the end of day, on
the strength of the execution of the deed of
agreement to hike the payment of salary and other
ancillary benefits of salary given to the workers
would go from the pocket of principal Employer
through Contractors and, therefore, the Principal
Employer would be liable to pay the benefits of
wage rise to the workmen without getting approval/
receipt of the payment from the principal
Employer. He further submitted that if the Hon’ble
Court would make cursory glance upon the said
contract executed by the Management sponsored
Union and the Contractor, which was affirmed by
the principal Employer, wherein Condition No.30
states that it is open for the Union to extend
benefit to other employees if they choose to be
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part of the said Union, which was party to the
settlement as per Section 2(p) of the ID Act with
the Employer, in that event, it is evident that
unfair practice has been adopted by the Contractor
and by way of executing said deed, they had
created two different distinct classes of the
workmen, who are performing the same work but are
not the member of one Union, therefore, the said
findings and reason given by the Industrial
Tribunal are just and fair and thereby directed
the petitioner – Company to grant same benefits to
the members of the respondent no.1 – Union.
13. Learned advocate, Mr. Patel submitted that it is
an admitted position of fact that the impugned
order is against all the agencies including the
Contractors, who are the main aggrieved persons
and executed the deed of agreement with the Union
of Workers, however, they have accepted the order
and not challenged the same, therefore, as per the
order of the Industrial Tribunal, amount of pay
wages is required to be paid by the Contractor to
the workmen. He submitted that the settlement
executed by and between the Employer – Contractor
and the Management sponsored Union has no binding
effect on the respondent no.1 – Union. He
submitted that with a sole intent to maintain the
industrial peace and tranquility, an application
in the form of interim relief had been preferred
to remove the disparity of the income from which
the workmen of the Reference was deprived of
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without any just cause and that too, for the
purpose of excluding them from the purview of the
Reference. He submitted that the Employer cannot
proceed on the premises that the order is
operative against them only because it applies to
all the Contractors, who have engaged the
employees of the respondent no.1 – Union as well
as principal Employer under whose instructions,
the settlement was entered into with the third
party Union. He submitted that the Contractor, who
are the first party of the bogus, sham and paper
arrangement system only and they had provided the
benefit to one set of workmen, who are part of the
management sponsored Union and not to other
employees, who are not represented by the
respondent – Union, therefore, it is fair enough
to grant the equal benefits at part with the
employees of the Contractors, who are beneficiary
to the 2(p) settlement.
14. Learned advocate, Mr. Patel submitted that the
present petition is preferred under Articles 226
and 227 of the Constitution of India, wherein this
Court is exercising its supervisory jurisdiction,
however considering the conduct of the petitioner
– Company as also an attempt to prolong the
Reference and thereby depriving the workmen from
their rights, this Hon’ble Court may exercise the
discretion in favour of the petitioner, otherwise,
great prejudice would be caused to the members of
the respondent no.1 – Union. In support of this
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submission, he has referred to and relied upon the
decision delivered by the Division Bench of this
Hon’ble Court in case of Valsad District Central
Co.Op. Bank Ltd. Vs. Valsad District Co.Op. Bank
Employees Union delivered in Special Civil
Application No.808/2011 on 13.12.2013. He,
therefore, submitted that the present petition
requires to be rejected.
15. In view of the submissions canvassed by learned
advocates appearing for the rival parties, the
moot question, which has arisen for consideration
of this Court, is as to whether the concerned
Industrial Court was justified in deciding the
interim application, Exh.10 preferred by the
respondent no.1 first ignoring the orders and
directions issued by this Hon’ble Court while
passing an order dated 26.03.2025 in Special Civil
Application No.12023/2024 as contended by learned
Senior Counsel, Mr. Joshi for the petitioner and
as to whether such order can be interfered with
within the limited scope of Article 227 of the
Constitution of India.
16. What would be a jurisdictional fact has been
decided by the Hon’ble Supreme Court in case of
Arun Kumar & Others Vs. Union of India & Others
[JT 2006 (12) SC 121], wherein it has been
observed as under,
"A "jurisdictional fact" is a fact which must
exist before a Court, Tribunal or an
Authority assumes jurisdiction over a
particular matter. A jurisdictional fact is
one on existence or non- existence of which
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depends jurisdiction of a court, a tribunal
or an authority. It is the fact upon which an
administrative agency's power to act depends.
If the jurisdictional fact does not exist,
the court, authority or officer cannot act.
If a Court or authority wrongly assumes the
existence of such fact, the order can be
questioned by a writ of certiorari. The
underlying principle is that by erroneously
assuming existence of such jurisdictional
fact, no authority can confer upon itself
jurisdiction which it otherwise does not
posses."
17. It is further observed,
"it is clear that existence of
'jurisdictional fact' is sine qua non for the
exercise of power. If the jurisdictional fact
exists, the authority can proceed with the
case and take an appropriate decision in
accordance with law. Once the authority has
jurisdiction in the matter on existence of
'jurisdictional fact', it can decide the
'fact in issue' or 'adjudicatory fact'. A
wrong decision on 'fact in issue' or on
'adjudicatory fact' would not make the
decision of the authority without
jurisdiction or vulnerable provided essential
or fundamental fact as to existence of
jurisdiction is present."
18. It has emerged from the facts of the case that the
petitioner is a Company registered under the
Companies Act, whereas the respondent no.1 is a
Union and the respondent nos.2 to 8 are the
Contractors and in the petitioner – Company, the
members of the respondent no.1. It has emerged
from the facts of the case that some dispute
related to the relationship between the Employer
and Employee had been arisen and the employees had
also raised their demand, wherein the concerned
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Industrial Court had passed an order, against
which, writ petitions had been preferred, however
as stated above, while disposing of the said writ
petition, it is directed to frame the relevant
issues of reference carefully and the questions,
which are intended to be tried by the Industrial
Tribunal so as to avoid ambiguity or controversy.
Therefore pending Reference, an application,
Exh.43 came to be preferred by the petitioner –
Company to re-cast the issue and decide it first
as mentioned in Demand Nos.1 & 2 that the contract
being bogus, sham and mere paper arrangement only,
wherein the respondents have also filed written
statement and, thereafter, the Industrial Tribunal
passed an order on 03.11.2025 specifically stating
that the said issue is required to be decided
first as per the direction of this Hon’ble Court
and the said order has attained finality as none
of the parties had challenged it before higher
forum. However thereafter during the pendency of
the Reference, an application, Exh.10 with a
prayer to grant salary, increment and other
financial benefits at par w.e.f. 01.04.2023 in
terms of settlement arrived on 12.03.2024 at as
per Section 2(p) of the ID Act by and between the
Contractors and with another Union i.e. Akhil
Gujarat General Mazdoor Sangh, wherein the
principal Employer had also agreed upon by signing
it as a confirming party, which was objected by
the principal Employer - petitioner – Company
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specifically stating that as per the direction
given by this Hon’ble Court, the issue pertaining
to the contract is bogus, sham and paper
arrangement only requires to be decided first and
the application pertaining to the grant of interim
benefit of pay benefit at par with Workers of
other Union cannot be entertained before deciding
the said issue, however, after considering the
facts of the case, the Industrial Court has passed
impugned order allowing the application, Exh.10
and the said order has been assailed by the
petitioner – Company by filing present petition.
19. Thus in view of above, the contention raised by
learned Senior Counsel, Mr. Joshi with regard to
deciding the interim application, Exh.10 first
instead of deciding Demand Nos.1 & 2 is required
to be considered together with the submission
canvassed by learned advocate, Mr. Patel for the
respondent no.1 – Union with regard to depriving
of legitimate rights of the members of the
respondent no.1 – Union and the fact that the
Industrial Tribunal has got all valuable rights to
decide Demand No.15 before the determination of
relationship of the Employer and Employee as there
is no restriction imposed by this Court while
passing an order in Special Civil Application
No.12023/2024.
20. On examining the submissions canvassed by learned
Senior Counsel, Mr. Joshi, it appears that he
emphasized upon the exercise of power by the
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Industrial Court despite the order of this Hon’ble
Court. However having considered the findings
given by the Industrial Court, it appears that the
Industrial Tribunal has considered the settlement
arrived in in Reference IT Case No.9/2020
preferred by the respondent no.1 – Union against
different Companies produced at Mark – 11/13 to
11/16 and it has been observed that the members of
the respondent no.1 – Union has not been granted
benefits, which are granted to other employees and
thus, there is discrepancies in the salary of the
employees and the members of the respondent no.1 –
Union are getting less salary than other employees
and thus, their legitimate rights are being
affected just because of the fact that they were
not the party of the said settlement. Not only
that, the Industrial Court has also considered the
pay slips of one of the members of the respondent
no.1 – Union viz., Vishal B. Bihola of February,
2026 in comparison to one Harsh Upadhyay of
February, 2026, which clearly goes on to show that
the said Harsh Upadhyay is having much higher
salary than the said Vishal Bihola. Even the
Industrial Court has also taken into consideration
the comparison chart of the salary produced at
Exh.65 and observed that there is vast difference
in the salary of the Workmen. It is also observed
by the Industrial Tribunal after examining the
salary of two employees of one Contractor viz.,
Vishal Bihola and Pinkal Patel that for the two
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employees of one Contractor, there is huge
difference in the receipt of salary.
21. In Paragraph No.10 of the impugned order, it is
also observed that if the decision in relation to
Demand Nos.1 & 2 may come against the petitioner –
Company, in that event, the members of the
respondent no.1 – Union cannot be deprived of the
benefits of the settlement arrived at with the
petitioner – Company by other Contractors and the
said settlement had been arrived at by the
petitioner – Company with their own will and wish,
therefore, the petitioner – Company cannot deny
the benefits to the members of the respondent no.1
– Union, which are granted to other employees of
other Contractor, therefore, principle of estoppel
comes in the way of the petitioner – Company.
22. Thus in view of above discussion, if the
submission canvassed by learned Senior Counsel,
Mr. Joshi with regard to exercise of power by the
Industrial Court is examined, in that event, I am
of the opinion that by passing impugned order, the
Industrial Court has tried to strike balance
between the parties. It is required to be noted
that a court is meant to do justice, no doubt,
within the confines of law and principles which
are settled from time to time. A court is intended
to be an effective adjudicator of disputes. If the
court is to be an effective adjudicator of
disputes, it must inevitably be clothed with
necessary power to deal with situations which may
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arise where the court must have power to strike
off defence so that the people will continue to
repose faith in the system and resort to lawful
means which are provided by the courts. It is
required to be mentioned at this stage that there
is no dispute about the issuance of direction by
this Hon’ble Court to decide the issue with regard
to the relationship between the petitioner and the
respondent as Employer and Employee and before
deciding it, the Industrial Court has decided the
application, Exh.10, which the Industrial Court
ought not to have done so. However since the said
application is already adjudicated and the
Reference is still pending, I am not making any
comment at this stage. It is, therefore, required
to be noted that as and when the direction is
issued by the higher court upon the concerned
court and/or authority to decide the matter in a
particular manner, in that event, it is the duty
of the concerned court and/or authority to adhere
with the said direction. However in the facts of
the case, as discussed above, I am of the
considered opinion that it can be said that the
Industrial Court has not committed any error of
law and/or facts as contended by learned Senior
Counsel, Mr. Joshi and the impugned order seems to
be just, legal and proper, that too, a well
reasoned order.
23. It is also settled by catena of judicial
pronouncements of the Hon’ble Supreme Court as
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well as this Hon’ble Court that in order to claim
benefit of 'Equal Pay for Equal Work' an incumbent
has to bring out evidence or proof to indicate
that there is any similarity in the nature of
work, quantum of work, quality of work similarity
in qualification and nature of duties and despite
that, equal pay has not been given to them. The
Hon’ble Supreme Court has held that the onus of
proof of parity lies on the person who claims it.
Here in the present case on hand, the claim is
made by the members of the respondent no.1 –
Union, who are the workers working in the
petitioner – Company and while making claim, they
have produced on record sufficient material and
evidence including their salary slip along with
the salary slip of the workers, who have arrived
at settlement with the petitioner – Company and
after having considered the same, the Industrial
Court has jumped to a conclusion that there is
difference in the salary of Workmen and,
thereafter, passed impugned order, which is well-
reasoned order assigning just, proper and reasons,
which in my considered opinion, do no require any
interference at the hands of this Court.
24. It appears that the principle of "equal pay for
equal work" is not a debatable issue in view of
the decision of the Hon’ble Supreme Court in case
of State Of Punjab & Ors., Vs. Jagjit Singh &
Ors., reported in (2017) 1 SCC 148, wherein the
decision in case of State Of Haryana Vs. Haryana
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Civil Secretariat Personal Staff Association,
reported in (2002) 6 SCC 72 is also considered.
The Hon'ble Supreme Court while considering the
principle of "equal pay for equal work" is also
equally applicable to the temporary employees
discharging similar duties of work place as
regular employees, in the case of Jagjit Singh
(Supra) has summarized the principle for "equal
pay for equal work" and observed as under,
"(i) The 'onus of proof', of parity in the duties
and responsibilities of the subject post with
the reference post, under the principle of
'equal pay for equal work', lies on the
person who claims it. He who approaches the
Court has to establish, that the subject post
occupied by him, requires him to discharge
equal work of equal value, as the reference
post (see - the Orissa University of
Agriculture & Technology case10, Union
Territory Administration, Chandigarh v. Manju
Mathur, the Steel Authority of India Limited
case, and the National Aluminum Company
Limited case).
(ii) The mere fact that the subject post occupied
by the claimant, is in a "different
department" vis-a-vis the reference post,
does not have any bearing on the
determination of a claim, under the principle
of 'equal pay for equal work'. Persons
discharging identical duties, cannot be
treated differently, in the matter of their
pay, merely because they belong to different
departments of Government (see - the Randhir
Singh case1, and the D.S. Nakara case).
(iii) The principle of 'equal pay for equal
work', applies to cases of unequal scales of
pay, based on no classification or irrational
classification (see - the Randhir Singh
case). For equal pay, the concerned employees
with whom equation is sought, should be
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performing work, which besides being
functionally equal, should be of the same
quality and sensitivity (see - the Federation
of All India Customs and Central Excise
Stenographers (Recognized) case, the Mewa Ram
Kanojia case5, the Grih Kalyan Kendra
Workers' Union case and the S.C. Chandra
case).
(iv) Persons holding the same rank/designation (in
different departments), but having dissimilar
powers, duties and responsibilities, can be
placed in different scales of pay, and cannot
claim the benefit of the principle of 'equal
pay for equal work' (see - the Randhir Singh
case1, State of Haryana v. Haryana Civil
Secretariat Personal Staff Association, and
the Hukum Chand Gupta case). Therefore, the
principle would not be automatically invoked,
merely because the subject and reference
posts have the same nomenclature.
(v) In determining equality of functions and
responsibilities, under the principle of
'equal pay for equal work', it is necessary
to keep in mind, that the duties of the two
posts should be of equal sensitivity, and
also, qualitatively similar. Differentiation
of pay-scales for posts with difference in
degree of responsibility, reliability and
confidentiality, would fall within the realm
of valid classification, and therefore, pay
differentiation would be legitimate and
permissible (see - the Federation of All
India Customs and Central Excise
Stenographers (Recognized) case and the State
Bank of India case). The nature of work of
the subject post should be the same and not
less onerous than the reference post. Even
the volume of work should be the same. And so
also, the level of responsibility. If these
parameters are not met, parity cannot be
claimed under the principle of 'equal pay for
equal work' (see - State of U.P. v. J.P.
Chaurasia, and the Grih Kalyan Kendra
Workers' Union case).
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(vi) For placement in a regular pay scale, the
claimant has to be a regular appointee. The
claimant should have been selected, on the
basis of a regular process of recruitment. An
employee appointed on a temporary basis,
cannot claim to be placed in the regular
payscale (see - the Orissa University of
Agriculture & Technology case).
(vii) Persons performing the same or similar
functions, duties and responsibilities, can
also be placed in different pay-scales. Such
as - 'selection grade', in the same post. But
this difference must emerge out of a
legitimate foundation, such as - merit, or
seniority, or some other relevant criteria
(see - State of U.P. v. J.P. Chaurasia).
(viii) If the qualifications for recruitment to
the subject post vis-avis the reference post
are different, it may be difficult to
conclude, that the duties and
responsibilities of the posts are
qualitatively similar or comparable (see -
the Mewa Ram Kanojia case, and Government of
W.B. v. Tarun K. Roy). In such a cause, the
principle of 'equal pay for equal work',
cannot be invoked.
(ix) The reference post, with which parity is
claimed, under the principle of 'equal pay
for equal work', has to be at the same
hierarchy in the service, as the subject
post. Pay-scales of posts may be different,
if the hierarchy of the posts in question,
and their channels of promotion, are
different. Even if the duties and
responsibilities are same, parity would not
be permissible, as against a superior post,
such as a promotional post (see - Union of
India v. Pradip Kumar Dey, and the Hukum
Chand Gupta case).
(x) A comparison between the subject post and the
reference post, under the principle of 'equal
pay for equal work', cannot be made, where
the subject post and the reference post are
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in different establishments, having a
different management. Or even, where the
establishments are in different geographical
locations, though owned by the same master
(see - the Harbans Lal case). Persons engaged
differently, and being paid out of different
funds, would not be entitled to pay parity
(see - Official Liquidator v. Dayanand).
(xi) Different pay-scales, in certain
eventualities, would be permissible even for
posts clubbed together at the same hierarchy
in the cadre. As for instance, if the duties
and responsibilities of one of the posts are
more onerous, or are exposed to higher nature
of operational work/risk, the principle of
'equal pay for equal work' would not be
applicable. And also when, the reference post
includes the responsibility to take crucial
decisions, and that is not so for the subject
post (see - the State Bank of India case).
(xii) The priority given to different types of
posts, under the prevailing policies of the
Government, can also be a relevant factor for
placing different posts under different pay-
scales. Herein also, the principle of 'equal
pay for equal work' would not be applicable
(see - State of Haryana v. Haryana Civil
Secretariat Personal Staff Association).
(xiii) The parity in pay, under the principle
of 'equal pay for equal work', cannot be
claimed, merely on the ground, that at an
earlier point of time, the subject post and
the reference post, were placed in the same
pay- scale. The principle of 'equal pay for
equal work' is applicable only when it is
shown, that the incumbents of the subject
post and the reference post, discharge
similar duties and responsibilities (see -
State of West Bengal v. West Bengal Minimum
Wages Inspectors Association).
(xiv) For parity in pay-scales, under the
principle of 'equal pay for equal work',
equation in the nature of duties, is of
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paramount importance. If the principal nature
of duties of one post is teaching, whereas
that of the other is non-teaching, the
principle would not be applicable. If the
dominant nature of duties of one post is of
control and management, whereas the subject
post has no such duties, the principle would
not be applicable. Likewise, if the central
nature of duties of one post is of quality
control, whereas the subject post has minimal
duties of quality control, the principle
would not be applicable (see - Union
Territory Administration, Chandigarh v. Manju
Mathur).
(xv) There can be a valid classification in the
matter of pay-scales, between employees even
holding posts with the same nomenclature
i.e., between those discharging duties at the
headquarters, and others working at the
institutional/ sub-office level (see - the
Hukum Chand Gupta case), when the duties are
qualitatively dissimilar.
(xvi) The principle of 'equal pay for equal
work' would not be applicable, where a
differential higher pay-scale is extended to
persons discharging the same duties and
holding the same designation, with the
objective of ameliorating stagnation, or on
account of lack of promotional avenues (see -
the Hukum Chand Gupta case).
(xvii) Where there is no comparison between one
set of employees of one organization, and
another set of employees of a different
organization, there can be no question of
equation of pay-scales, under the principle
of 'equal pay for equal work', even if two
organizations have a common employer.
Likewise, if the management and control of
two organizations, is with different
entities, which are independent of one
another, the principle of 'equal pay for
equal work' would not apply (see - the S.C.
Chandra case, and the National Aluminum
Company Limited case)."
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25. In view of above ratio laid down in the decision
of the Hon’ble Supreme Court for applying the
principle of "equal pay for equal work", in the
facts of the present case, it is not in dispute
that members of the respondent no.1 – Union are
discharging same duties on different posts as that
of similarly situated employees, who are working
with the petitioner – Company, therefore, the
members of the respondent no.1 – Union are
entitled to get same benefits as that of the
employees of other Contractors, who have entered
into settlement with the petitioner – Company and
the said aspect has been rightly considered by the
Industrial Court while passing impugned order.
26. It is now settled law that even in a statutory
appeal against an order of discretionary relief,
the appellate authority interferes not because a
different conclusion can be arrived at by the
appellate authority on the selfsame materials but
it interferes only when the order impugned is
clearly a wrong order and in arriving at the
conclusion, the concerned authority did not
consider the well-settled principles which
requires to be followed. In the case before me, it
appears that the Industrial Court took into
consideration the detailed arguments advanced by
the learned Counsel for the parties from various
angles and, thereafter, arrived at just and fair
conclusion. Not only that, while arriving at such
conclusion, the Industrial Court has discussed
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every aspect of the matter and also given findings
as to why the said application is to be decided
and decision thereof would not affect the final
decision of the Reference as also while deciding
Demand Nos.1 & 2. Therefore in my considered
opinion, such conclusion is quite justified and in
exercise of our powers under Article 227 of the
Constitution of India, I do not have to interfere.
27. At this stage, it would be profitable to refer to
and rely upon the decision of the Hon’ble Supreme
Court in case of Dena Bank Vs. D.V. Kundadia,
reported in (2011) 15 SCC 690, which has been
relied upon by learned advocate, Mr. Patel for the
respondent no.1 – Union, wherein the Hon’ble
Supreme Court has held that no writ should be
entertained against an interim order of the
learned labour Court or by the Industrial
Tribunal. However, it is to be noted that there is
no bar to prefer writ petition against the interim
order and it can be entertained provided the order
under challenge suffers from serious legal
infirmities. However in the facts on hand, having
considered the findings given and conclusion
arrived at by the Industrial Court, I am of the
considered opinion that no error of facts and/or
law could be said to have been committed while
passing impugned order, which requires
interference at the hands of this Hon’ble Court.
28. A useful reference can be made to the judgment of
the Hon’ble Supreme Court in case of Oil & Natural
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Gas Corporation Ltd. Vs. President, Oil Field
Employees Association & Ors., reported in (2022)
20 SCC 505, upon which reliance has been placed by
learned advocate, Mr. Patel for the respondent
no.1 Union. In the said decision, the Hon’ble
Supreme Court has held that "the dispute out of
which the present appeal arises relates to the
question as to whether the workmen engaged by the
contractors would be entitled to pay at par with
other workmen of the employer and demand to that
effect was raised with the appellants only.” Head
Note – A of the said decision reads as under,
“Demand of respondent workers Unions to have
uniform policies for all workmen irrespective
of contractors – Settlement dt. 19-9-2016
between appellant ONGC and Unions
representing majority of contract workmen
(over 77%) extending Fair Wage Policy (“FWP”)
to all contract labourers of OBGC – Held ,
does not bar respondent minority Unions from
raising industrial dispute claiming to be
workmen directly under principal employer –
Besides, said settlement was essentially
between contractors and workmen employed by
them, and appellants were only consenting
parties to same – Industrial dispute
pertained to issue as to whether workmen
employed by contractors would, be entitled to
pay and allowances on a par with other
workmen of employer and demand to that effect
was raised with appellants only – Nature of
demand was thus, different, particularly as
regards their status – Thus, settlement dt.
19-9-2016 in which employers were contractors
cannot bind subject – dispute where appellant
was found to be employer on basis of evidence
produced – Impugned judgment granting relief
to respondent Unions not interfered with.
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29. A useful reference can also be made to the
decision of the Coordinate Bench of this Court in
the case of Tata Chemicals Ltd. Vs. Tata Chemicals
Mazdoor Sangh (BMS) and Ors. delivered in Special
Civil Application No. 9698 and 9699 of 2012,
wherein the Coordinate Bench has observed in
Paragraph No. 25 as under:
“25. As the References are still pending
adjudication, no opinion can be expressed on
merits. Suffice to say that the Tribunal has
directed the petitioner to produce certain
documents after considering the lengthy rival
submissions regarding the relevance of the
documents. The contentions now being raised
by the petitioner before this Court regarding
relevance of the documents and the exercise
being a roving and fishing inquiry have
already been raised before the Tribunal,
which has examined them and found them to be
unworthy. A direction to the petitioner to
produce the documents does not mean that the
Tribunal has accepted them. The evidentiary
value of the documents would be examined by
the Tribunal at the appropriate stage in the
References. Moreover, the petitioner is not
estopped from raising all contentions in this
regard at that point of time. One of the
reasons for opposing the production of
documents advanced by the petitioner is that
they are voluminous and pertain to several
years and their production would consume a
great deal of time. Merely because the
documents are voluminous and may relate to
several years does not, by itself, mean that
they may not be relevant for the decision of
the pending References. Besides, no prejudice
would be caused to the petitioner if the
documents are produced. It was not the case
of the petitioner before the Tribunal and nor
has it been stated before this Court, that
prejudice would be caused to the petitioner
by production of the said documents."
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30. The Hon'ble Supreme Court in a decision in the
case of D.P. Maheshwari Vs. Delhi Administration &
Ors., reported in (1983) 4 SCC 293 has observed as
under:
"It was just the other day that we were
bemoaning the unbecoming devices adopted by
certain employers to avoid decision of
industrial disputes on merits. We noticed how
they would raise various preliminary
objections, invite decision on those
objections in the first instance, carry the
matter to the High Court under Article 226
of the Constitution and to this Court under
Article 136 of the Constitution and delay a
decision of the real dispute for years,
sometimes for over a decade. Industrial
peace, one presumes, hangs in the balance in
the meanwhile. We have now before us a case
where a dispute originating in 1969 and
referred for adjudication by the Government
to the Labour Court in 1970 is still at the
stage of decision on a preliminary objection.
There was a time when it was thought prudent
and wise policy to decide preliminary issues
first. But the time appears to have arrived
for a reversal of that policy. We think it is
better that tribunals, particularly those
entrusted with the task of adjudicating
labour disputes where delay may lead to
misery and jeopardise industrial peace,
should decide all issues in dispute at the
same time without trying some of them as
preliminary issues. Nor should High Courts in
the exercise of their jurisdiction under
Article 226 of the Constitution stop
proceedings before a Tribunal so that a
preliminary issue may be decided by them.
Neither the jurisdiction of the High Court
under Article 226 of the Constitution nor the
jurisdiction of this Court under Article 136
may be allowed to be exploited by those who
can well afford to wait to the detriment of
those who can ill afford to wait by dragging
the latter from court to court for
adjudication of peripheral issues, avoiding
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C/SCA/11206/2026 CAV JUDGMENT DATED: 04/11/2026
(GJHC240563152026)
decision on issues more vital to them.
Article 226 and Article 136 are not meant to
be used to break the resistance of workmen in
this fashion. Tribunals and courts who are
requested to decide preliminary questions
must therefore ask themselves whether such
threshold part-adjudication is really
necessary and whether it will not lead to
other woeful consequences. After all
tribunals like industrial tribunals are
constituted to decide expeditiously special
kinds of disputes and their jurisdiction to
so decide is not to be stifled by all manner
of preliminary objections journeyings up and
down. It is also worthwhile remembering that
the nature of the jurisdiction under Article
226 is supervisory and not appellate while
that under Article 136 is primarily
supervisory but the Court may exercise all
necessary appellate powers to do substantial
justice. In the exercise of such jurisdiction
neither the High Court nor this Court is
required to be too astute to interfere with
the exercise of jurisdiction by special
tribunals at interlocutory stages and on
preliminary issues."
31. Thus in view of the above facts of the case and in
view of the above proposition of law, if the facts
of the present case are examined, in that event,
it is evident that the petitioner – Company has
challenged the interim order passed by the
Industrial Court, whereby the Industrial Court has
considered the request of the members of the
respondent no.1 – Union for the grant of salary at
par with other similarly situated employees of
other Contractors working with the petitioner –
Company, who have entered into settlement with the
petitioner – Company, therefore, yet the main
Reference is pending for its adjudication and
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(GJHC240563152026)
final decision. Therefore, the petitioner –
Company is having opportunity to agitate its
grievance and lead evidence at the time of hearing
of the main Reference. However in my considered
opinion, at this stage, the impugned order does
not require interference, however, it is open for
the petitioner – Company to make a request for
expeditious disposal of the application, Exh.40
and/or main Reference.
32. Thus in view of the above observations and
directions, the present petition is devoid of
merits and is hereby rejected. Notice is
discharged. Interim relief stands vacated.
Sd/-
(DIVYESH A. JOSHI, J.)
FURTHER ORDER
After the pronouncement of the Judgment,
learned advocate, Mr. Nisarg Shah appearing for
Gandhi Law Associates for the petitioner submits
that the implementation, execution and operation
of this judgment may be stayed for a period of
four weeks so as to enable them to approach higher
forum.
Considering the facts of the case, the
request is acceded to. The present judgment is
hereby stayed for a period of four weeks.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
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