JUDGMENT R.M. Sahai, J. - Employees, of National Thermal Power Corporation, a Public Sector Undertaking, engaged through Contractor as Office Assistants, and Attendant, being aggrieved by opposite - parties refusal to treat them as regular employees even though they had completed 240 days of continuous service, filed this petition for direction not to terminate their services and further to treat them as regular employees of the Corporation. 2. Law appears to be well-settled Both on the meaning of continuous service for 240 days under Industrial Disputes Act, its effect on employment Status of a person employed through the agency of a contractor. In Mohan Lal v. Manager, Bharat Electronic Ltd., AIR 1981 SC 1253 , it was held by Supreme Court that a person employed for a period of 240 days even with break is in continuous service if in a period of 12 calendar months just preceding the date of retrenchment he has rendered service for a period of 240 days. The effect of completion of 240 days is given in Section 25 - F of Industrial Disputes Act. In Santosh Gupta v. State Bank of Patiala, AIR 1980 SC 1218 , the Supreme Court held that termination of such employee was retrenchment which could not be done without notice. 3. Could a person engaged through agency of contractor be excluded from definition of workman in the Act which is couched in widest terms extending to any person employed in any industry ? The answer was given in negative by Supreme Court as far back as 1955. In Shiv Nandan Sharma v. Punjab National Bank Ltd., AIR 1955 SC 404 , it was held that to decide whether a person employed through the agency of a contractor was the employee of a concern, the crucial test was as to who was entitled to tell the employee the way he is to do the work for which he is engaged. The principle has never been deviated rather affirmed in every subsequent decision of the Supreme Court. In Punjab National Bank v. Gulam Dastgir, AIR 1978 SC 481 , it was held that there is no doubt that the proposition laid down in 'Shiv Nandan Sharma's case is unexceptionable law and the crucial test in most cases is as to who exercised control and the supervision over the workman'. In Punjab National Bank v. Gulam Dastgir, AIR 1978 SC 481 , it was held that there is no doubt that the proposition laid down in 'Shiv Nandan Sharma's case is unexceptionable law and the crucial test in most cases is as to who exercised control and the supervision over the workman'. In Husain Bhai v. Alath Factory Tezhelai Union, AIR 1978 SC 1410 , the Supreme Court held as under "The true test made, with brevity, be indicated once again. Where a worker or group of workers labours to produce goods of services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the workers' subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contracts is of no consequence when, on lifting the veil or looking at the consepectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that the real employer is the Management, not the immediate contractor." 4. What, therefore, has to be seen in light of these decisions of Supreme Court is if it was the contractor who was having economic control over petitioners subsistence, skill and employment or it was the corporation who was the real employer but it is hiding the naked truth under paper arrangement. In counter affidavit filed by Sri Chakraverty, it is admitted that Corporation started its office in April, 1981. As no Staff was a bailable for such staff could be recruited according to rules the Corporation directed the contractor to recruit services of some educated persons. And petitioners were employed through one M/s. Tewari and Brother, registered as contractor under provisions of Contract Labour (Abolition and Regulation) Act. Therefore, they were not employees of Corporation and no relation of Master and Servant existed. Although petitioner No. 1 appears to have been appointed initially by the Corporation and was placed on Muster roll but later on all the petitioners were engaged through Contractor and they continued to work as office assistant or attendant. In May, 1983 when rate of wages of Labourers engaged through contractor were enhanced, the Deputy Manager of Corporation proposed enhancement of wages of petitioners as well. In May, 1983 when rate of wages of Labourers engaged through contractor were enhanced, the Deputy Manager of Corporation proposed enhancement of wages of petitioners as well. The Manager, however, did not agree and wrote back in June, 1983 to discontinue their services. On 11th June the Chief of Transmission expressed his surprise on the direction and Sent a telegram on 11th June and requested for maintaining Status quo on 24th June, a letter was sent from Allahabad office giving justification for engagement of Contract Labour at Allahabad in Transmission Line and their permanency or regularisation. The letter in detail gives out their duties date of their employment and mentions in end, 'the performance of the labourers has been found very good and they have also been found to be hard working. These persons are registered with the local Employment Exchange. In the recent past, Personnel Department, Nothern Region had requisitioned Attendants, Office Assistant and Drivers to the Allahabad Employment Exchange. The Employment Exchange, Allahabad sent the names of the candidates other than the persons engaged by us in view of seniority as per their registers, even though the persons engaged by us are registered with them. Incidentally it may be mentioned here that on the request from National Hudro Electric Power Corporation, Northern Region' Personnel Department had conducted direct interview of their temporary Lineman (Engaged by NHPC on Muster roll) without approaching the local Employment Exchange and have selected the NHPC. Linemen.These NHPC Linemen have been issued the appointment orders and they have since joined NHPC. In this way, Northern Region Personnel Department can also arrange interview of our contract labourers directly along with the candidates sponsored by the Local Employment Exchange, if requisitioned. Further a circular may also be displayed at Transmission Office, Allahabad to enable our temporary personnel to apply against the vacancy notified.' Letters have been exchanged thereafter between Allahabad and Delhi Office the former insisting for their continuation and latter against it. Finally in August, 1983 the Delhi Office sent the letter which reads as under :- "N.T.P.C. National Thermal Power Corporation Ltd. (A Govt. of India Enterprise) Northern Region S.S.V S.R. Charyulu, Dy. Finally in August, 1983 the Delhi Office sent the letter which reads as under :- "N.T.P.C. National Thermal Power Corporation Ltd. (A Govt. of India Enterprise) Northern Region S.S.V S.R. Charyulu, Dy. Manager (P. & A.) Dear Sri Nandi, Having been informed that you had talked to E.D. yesterday regarding consideration of the persons deployed through Labour Contractor in the interviews on the 3rd and 4th instant, I have discussed the matter with C.O.T. and E.D. today. It has finally been decided by E.D. that, since their names have not been sponsored by Employment Exchange, we will not be able to consider them in the Interviews. With regards, Yours sincerely, Sd. S.S.V.S.R. Charyulu Sri D.K. Nandi, Manager (T.L.) 9, Panna Lal Road, Allahabad. Therefore, except that petitioners were engaged through contractors it does not appear that they were under control or supervision of the Contractor. Except for one month and that also for petitioner No. 1, there is no material to establish that their wages were paid by Corporation to the Contractor. In fact they were treated as employees of the Corporation who were paid their wages month by month computed on daily basis. Various documents filed alongwith rejoinder affidavit show that payments of emoluments, advance etc. was paid by Corporation to petitioner No. 1 Copy of a bill has been filed by petitioner No. 1 to show that it has claimed expenditure made by it towards entertainment from Corporation. Leave etc. used to be granted by Corporation only. In Annexure 7 filed with petition the duties of Office Assistant, Account Assistant and attendant are mentioned as under :- 1. Office Assistant. - The O fee Assistant has been entrusted with manifold duties. He does the receipt and despatch of Dak, operates the Telex Machine, operates the Blue Print, Amonia Machine. The person also does a number of Jobs of Misc. nature like booking of Air/Rail tickets, booking of suites in various Government/State Government Guest Houses/Hotels for various visiting officials. He also does the work of franking on the letters being despatched. In case of emergency, he has to himself carry the letter being despatched. 2. Accounts Assistant. - The Office/Accounts Assistant is also required to carry out manifold duties. In the absence of adequate manpower in F. & A. wing of Transmission Office, Allahabad, and in view of centralised payment. In case of emergency, he has to himself carry the letter being despatched. 2. Accounts Assistant. - The Office/Accounts Assistant is also required to carry out manifold duties. In the absence of adequate manpower in F. & A. wing of Transmission Office, Allahabad, and in view of centralised payment. The individual does the followed works : (a) Establishment payment (T.A. Medical Claims, Contingent Claims. Conveyance Payment etc.). (b) Posting in Ledgers/Journals. (c) Preparation on summary of Cash Book and Bank Book. (d) Imprest Account. (e) Filing of Papers/Maintenance of records of F. & A. Wing. 3. Office Attendant-cum-Record Keeper. - The Office Attendant-cum-Record Keeper does the work of all filing and keeping of the files/ records. Apart from this, he operates the Cyclostyling Machine. Basically he attends to the Manager, Deputy Manager, Accounts Officer, Sr. Engineers, and also during the need of the hour, he prepares Tea for the officials of various agencies and Corporation Office Visiting Officers etc. He also does the cleaning job of office tables, chairs, racks, supplies water to the stall' etc. In the same letter petitioner No. 1 is shown as Office Assistant, petitioner No. 2 as Account Assistant and petitioner No. 3, Attendant-cum-Record Keeper. Nature of duties performed by them leaves no Semblance of doubt that they were employees of Corporation and it was the Corporation which exercised control over them. Their employment through Contractor was only for convenience of finding out suitable persons. The claim of opposite-parties, therefore, that since petitioners were employed through agency of Contractor they were not employees of Corporation does not appear to be based on and Sound footing. In fact it was the Corporation which was exercising its control over petitioners and there existed no link between petitioners and Tewari brothers. The Husain Bhai's case if read closely it demonstrates beyond doubt the anxiety of the Court to protect the interest of a workman. In that case the workmen were not only engaged by the Contractor but they were hired by contractors who executed agreement with the factory to make ropes, on material supplied by them in their premises. Even the Hon'ble Court upheld the claim of workmen as they were broadly under control or Management. In case of petitioners control was complete. In that case the workmen were not only engaged by the Contractor but they were hired by contractors who executed agreement with the factory to make ropes, on material supplied by them in their premises. Even the Hon'ble Court upheld the claim of workmen as they were broadly under control or Management. In case of petitioners control was complete. In Punjab National Bank's case {supra) the claim of driver of Manager of Bank was repelled because he was employed privately by the Manager from the allowances paid to him. The Hon'ble Court observed that if there would have been least evidence to show that he was employee of Bank the relief could have been granted. It has and Similarity with present case. What is decisive is control and Supervision. That over petitioners certainly was of Corporation. To argue, therefore, that petitioners were not employees of the Corporation is a fakery. 5. Much was attempted to be made out of the Employment Exchange Act, and the provisions contained in Section 4 of the Act, that an employee in a Public Sector Corporation should be engaged only on the recommendation made by Employment Exchange. Reliance was also placed on paragraph 7-2 of Recruitment Policy and Procedure of the Corporation providing for recruitment to non - executive posts carrying a minimum basic pay of Rs. 1,250/ - p.m. or below could be done after notifying the vacancy to the Employment Exchange. The submission appears to have no Substance, it is not disputed that petitioners were and are registered with Employment Exchange. What appears that the Corporation instead of notifying the vacancy appointed petitioners directly. The default if any was of the Officials of Corporation and not petitioners. The penalty for non - notifying under Section 7 of the Act as been provided. But the failure to notify does not make appointment bad as Sub-section (4) of Section 4 does not make recommendation of exchange binding on Corporation. It is under no obligation to recruit a person through Employment Exchange only because vacancy has been notified. Therefore, if the vacancy was not notified to the Employment Exchange it could not render the employment as invalid or void. It could result in prosecution of the employer under Section 7. Moreover, petitioners were employed by the employer through the agency of contractor. Therefore, if the vacancy was not notified to the Employment Exchange it could not render the employment as invalid or void. It could result in prosecution of the employer under Section 7. Moreover, petitioners were employed by the employer through the agency of contractor. They themselves being party cannot take advantage of their own mistake in not notifying the vacancy to the Employment Exc hang e and claim that the appointment made by them was null and void. Further as is clear from extract of letter dated 29th June, the office did write to Employment Exchange but it did not recommend name of petitioners because of seniority a id registration rules. The defect of not notifying vacancy stood cured subsequently. And as provided in Sub-section (4) of the Corporation was not bound to accept recommendation. 6. Realising the difficulty in which the opposite-party was, Learned Counsel for opposite - party urged that the remedy of petitioners was to approach the Labour Court, and not this Court by way of writ petition. Reliance was placed on B.H.E.L. Workers Association v. Union of India, AIR 1985 SC 409 It was urged that in a case arising out of Central Labour (Regulation and Abolition) Act, it was held that the Code was complete, therefore, the Eligh Court or Supreme Court could not interfere. Learned Counsel urged that on same party Industrial Disputes Act being complete Code the petitioners should be directed to seek their remedy before Labour Court. The law appears to be well - settled. The Court in exercise of its jurisdiction under Article 226 should not entertain a petition if it involves investigation of fact. On that there appears no dispute. Moreover, three years elapsed since petition was filed and admitted. Directing petitioners to go and Seek a reference before the Labour Court when they are out of employment and facts do not appear to be disputed, would be to harsh and unjust. In Prem Narain and others v. Assistant Personnel Officer, 1984 UPLBEC 657, this Court quashed termination order of workmen for failure to proceed under Section 25-F of Industrial Disputes Act under Article 226. In Dr. Surendra Kumar Shukla v. Union of India, 1985 UPLBEC 789, a Division Bench of this Court repelled the contention of non - maintainability of writ petition where the employer disputed status of employees as workman. In Dr. Surendra Kumar Shukla v. Union of India, 1985 UPLBEC 789, a Division Bench of this Court repelled the contention of non - maintainability of writ petition where the employer disputed status of employees as workman. It was also held that since right of livelihood was protected under Article 21 the employees could approach this Court under Article 226. Therefore, reliance placed by Learned Counsel for opposite - party on Dinesh Prasad and others v. State of Bihar, 1985 IF and LR 287 (FB) is not very opposite. 7. Emphasis was also laid on the relief sought in the petition. It was urged that this Court could not grant any declaration in writ jurisdiction. In approaching the Court under Article 226 the petitioners are not seeking any declaration but a direction to opposite parties to give them the benefits which have accrued to them by their continuous service for 240 days. 8. Dispute was also raised regarding qualification of petitioners. Although it is disputed but even assuming that was so the petitioners could have been removed from service under Section 2-F of the Industrial Disputes Act, after following the procedure in accordance law. In Santosh Gupta v. State Bank of Patiala, AIR 1980 SC 1219 and order terminating Services of a workmen because she could not pass a test which could have enabled her to be confirmed was held as retrenchment which could not have been without following the procedure provided under law. Therefore, even assuming that petitioners were not qualified the opposite-parties could not have dispensed with their services except in accordance with law. 9. In Mohan Lal case [supra), it has been held that where the order terminating Services of an employee is illegal it is an ineffective order of retrenchment, then the order is void ab initio and the employee is entitled to reinstatement with consequential benefit namely, back wages with full other benefits. At one Stage there were talks of compromise and petitioners had agreed to be absorbed without claiming their back wages. The talks, however, failed on very this issue namely, the insistence of opposite-parties to reinstate them in same capacity and on the same terms and conditions as existed in 1983, that is, without recognising them as regular employees. 10. For the reason Stated above the petition succeeds and is allowed. The talks, however, failed on very this issue namely, the insistence of opposite-parties to reinstate them in same capacity and on the same terms and conditions as existed in 1983, that is, without recognising them as regular employees. 10. For the reason Stated above the petition succeeds and is allowed. A direction is issued to opposite - parties to treat petitioners in service without any break with consequential benefits from the date they were not permitted to perform their duties. Since grant of back wages needs investigation, if petitioners were employed in this period or not and if they were what was their wages it is not appropriate to grant any relief. It shall, however, remain open for petitioners to agitate for their claim before competent authority. The petitioners shall be entitled to their costs.