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2002 DIGILAW 1906 (ALL)

SANDEEP VERMA v. UNION OF INDIA

2002-12-13

ASHOK BHUSHAN

body2002
ASHOK BHUSHAN, J. ( 1 ) HEARD Dr. R. G. Padia, senior advocate with Sri Prakash Padia, Sri V. K. Shukla, Sri Ashish mohan for the petitioners, Sri A. K. Mishra and Sri Y. K. Saxena for the respondents. Pleadings on behalf of both the parties are complete and as agreed by counsel for both the parties, these writ petitions are being finally decided. ( 2 ) ALL these writ petitions are based on common facts and questions of law, hence they are being decided together by this common judgment, Writ Petition No. 370 of 2000 is being treated as leading case in which elaborate arguments have been made by both the parties. Since facts and grounds raised in all the writ petitions are common, it is sufficient to refer to the facts of the Writ petition No. 370 of 2000 for deciding the controversy between the parties. ( 3 ) BRIEF facts which emerge from the pleadings of the parties in Writ Petition No. 370 of 2000 are : by this writ petition, the petitioners have prayed for a writ of mandamus commanding the respondent Nos. 1 to 3 to regularise the services of the petitioners by directly absorbing them. A further mandamus has been sought commanding the respondent Nos. 1 to 3 to reinstate the petitioners in the services in the office of respondent No. 3 as principal employer. A further prayer has been made for commanding the respondents to pay monthly salary as per the minimum Wages Act or as being paid to the regular employees. In paragraph 2 of the writ petition, it has been stated that the writ petition is being filed claiming regularisation of their services against the principal employer, i. e. . The Central Board of Secondary Education, New delhi. The claim of regularisation of services is based on judgment of the Apex Court in secretary, Haryana State Electricity Board v. Suresh and Ors. , JT 1999 (2) SC 435. Petitioner nos. 1 to 4 claim to be working as Junior Assistant (Clerks), Petitioner Nos. 5 to 7 as peons, petitioner No. 8 as Electrician, petitioner No. 9 as Sweeper, Petitioner No. 10 as Security supervisor and petitioner No. 11 as Security Guard with the respondent No. 3 through the contractor respondent No. 4. , JT 1999 (2) SC 435. Petitioner nos. 1 to 4 claim to be working as Junior Assistant (Clerks), Petitioner Nos. 5 to 7 as peons, petitioner No. 8 as Electrician, petitioner No. 9 as Sweeper, Petitioner No. 10 as Security supervisor and petitioner No. 11 as Security Guard with the respondent No. 3 through the contractor respondent No. 4. It is claimed that the petitioners are working continuously as per chart (Annexure-1 to the writ petition) with respondent No. 3 through the Contractor M/s. Man power Services and Security. Annexure- 1 to the writ petition shows that all the petitioners are claiming their working from different dates from 1996, 1997, 1998, 1999 up to 30th December, 1999/31. 12. 1999. It is pleaded that the petitioners were not permitted to function with effect from 3rd January, 2000. It is further pleaded that the job being performed by the petitioners is of perennial and permanent nature. Reference has also been made to the letter dated 29th september, 1999, written by the Joint Secretary of respondent No. 3 to the Head Office, New delhi, requesting for appointment of regular staff on twenty seven posts of Junior Assistant and 14 posts of peon. Petitioners claimed that on the basis of judgment of the Apex Court in secretary, Haryana State Electricity Board, the services of the petitioners are liable to be regularised and they are entitled to be absorbed in regular service by principal employer. Petitioners have also filed copy of Attendance Sheet along with the writ petition to show their working. Certain documents to show their working with General Board of Secondary Education, regional Office, Allahabad, has also been attached along with the writ petition. " ( 4 ) COUNTER-AFFIDAVIT has been filed by the Central Board of Secondary Education sworn by Sri pitam Singh, Joint Secretary of the Board. It is submitted that the Central Board of Secondary education is registered under the Society Registration Act, 1860 and is an autonomous organisation. The Board is conducting class Xth and XIIth Examination of affiliated institutions. Board is not getting any financial grant from the Government of India and there is no deep and pervasive State control. It is stated that the Regional Office of the Board was transferred at allahabad in the year, 1992. The Board is conducting class Xth and XIIth Examination of affiliated institutions. Board is not getting any financial grant from the Government of India and there is no deep and pervasive State control. It is stated that the Regional Office of the Board was transferred at allahabad in the year, 1992. As the Board required services of certain employees for activities relating to security and other miscellaneous activities, therefore, the services of respondent No. 4 were engaged. A copy of agreement entered with respondent No. 4, i. e. , Man Power Services and security dated 1. 1. 1999, has been annexed as Annexure-C. A. 1 containing conditions of contract. It is claimed that the Board has been paying to respondent No. 4 for services provided to the Board. It was claimed that it is respondent No. 4 which used to pay wages to its employees. It is pleaded that the employer of the petitioners is respondent No. 4. It is claimed that there are no rules providing for regularisation of daily wage employees. Recruitment for regional Office of the Board is made by the Head Office, New Delhi and power to make appointment vests with the Head Office. It is further pleaded that the petitioners were never appointed nor were engaged by the Head Office nor their engagement was ever approved by the head Office. It was further pleaded that the engagement of the respondent No. 4 was done by the regional Office without obtaining any permission from the Board in order to meet local exigencies. The working of the petitioners for more than 240 days in the calendar year was denied. It was further stated that the petitioners are not employees of the Board and have no legal right to claim regularisation. The attendance register filed along with the writ petition was not admitted. It is stated that no notification under Section 10 (1) of the Contract Labour (Regulation and Abolition) Act, 1970, has been issued prohibiting employment of contract labours in the board. Petitioners have filed rejoinder-affidavit and the supplementary rejoinder-affidavit reiterating the allegations made in the writ petition. It has been further claimed that certain allowances have been directly paid by the respondent No. 3 to the petitioners. Petitioners further claimed to discharge several confidential work. It is further claimed that the contractor was not genuine and contract was sham. Petitioners have filed rejoinder-affidavit and the supplementary rejoinder-affidavit reiterating the allegations made in the writ petition. It has been further claimed that certain allowances have been directly paid by the respondent No. 3 to the petitioners. Petitioners further claimed to discharge several confidential work. It is further claimed that the contractor was not genuine and contract was sham. Certain documents regarding proving the working of the petitioners in the regional office have been filed with supplementary rejoinder-affidavit. ( 5 ) DR. R. G. Padla on behalf of the petitioners in support of the writ petition raised following submissions : (1) Petitioners are working with respondent No. 3 and having discharged more than 240 days in a calendar year, are entitled to be absorbed in service of the respondent No. 3 on the principle laid down by the Apex Court in Secretary, Haryana State Electricity Board v. Suresh and Ors. , jt 1999 (2) SC 435. The absorption of even daily wagers in an establishment is special philosophy and object of constitutional provisions. (2) The respondents in paragraph 3 (f) of the counter-affidavit have sated that the engagement of respondent No. 4 was not done with the permission of the Board. The engagement of respondent no. 4, i. e. , contractor becomes void and the petitioners automatically become employees of the respondent No. 3 and cannot be treated to be employees of the contractor and thus are entitled to be absorbed. (3) The respondent No. 4 through whom the petitioners are claimed to be engaged is a sham contract and behind the sham contract, it is the respondent No. 3 in reality and this Court may remove the smoke screen created by the sham contract and treat the petitioners direct employees of the respondent No. 3. (4) Petitioners having worked for more than 240 days in the calendar year, their non-continuance is clearly in breach of provisions of Industrial Dispute Act, 1947 and this Court may direct for reinstatement of petitioners on their respective posts. Reliance have been placed on Apex Courts judgment in Krishna Kumar Dubey v. V. P. Food and Essential Commodities Corporation and anr. , 1989 ACJ 136. ( 6 ) SRI V. K. Shukla, appearing in Writ Petition No. 23591 of 1999, Bhaiya Lal v. Union of India and Ors. , after adopting the submission made by Dr. Reliance have been placed on Apex Courts judgment in Krishna Kumar Dubey v. V. P. Food and Essential Commodities Corporation and anr. , 1989 ACJ 136. ( 6 ) SRI V. K. Shukla, appearing in Writ Petition No. 23591 of 1999, Bhaiya Lal v. Union of India and Ors. , after adopting the submission made by Dr. Padia further contended that even in Service regulations of Board, there is provision of appointment on contract basis. Sri V. K. Shukla referred to the Central Board of Secondary Education Service Rules, 1985. Rule 1. 8 (v) which provides recruitment by method of contract for specified period. ( 7 ) SRI Ashish Mohan, appearing in Writ Petition No. 516428 of 1999 further contended that the contract was only for security supervisor and guard and in fact mali, peons were also engaged, which shows that contract was only a smoke screen. He further contended that attendance register was countersigned by officials of respondent No. 3, which shows that the petitioners were directly under employment of the respondent No. 3. ( 8 ) SRI A. K. Mishra, learned counsel appearing for the respondent No. 3 refuted the submissions raised on behalf of the counsel for the petitioners, Sri Mishra contended that no notification has been issued under Section 10 (1) of the Contract Labour (Regulation and Abolition) Act, 1970, hence there was no prohibition on the respondent to engage contract labours. Sri Mishra, referring to various paragraphs of the counter-affidavit, contended that the petitioners were engaged through contractor under the terms and conditions of agreement dated 1. 1. 1999, entered with the respondent No. 4. Sri Mishra contended that wages are being paid by the respondent no. 4 and there is no direct relationship of employer and employees between the petitioners and the respondent No. 3. Sri Mishra referred to paragraphs 4 and 6 of the writ petition as well as annexure-1 to the Writ Petition No. 370 of 2000 to show that the petitioners themselves claimed that they are working with respondent No. 3 through the contractor, i. e. , Man Power Services and Security. Sri Mishra further contended that it is admission of the petitioners that they are working through the respondent No. 4. Sri Mishra denied that the contract with respondent No. 4 is either sham or smoke screen. Sri Mishra further contended that it is admission of the petitioners that they are working through the respondent No. 4. Sri Mishra denied that the contract with respondent No. 4 is either sham or smoke screen. He submitted that for adjudication of the question that contract is sham the petitioners have to raise an industrial dispute which can adjudicate the question of fact. Sri Mishra further submitted that the law laid down by the Apex Court in the case of Secretary, haryana State Electricity Board v. Suresh and Ors. , (supra) is no longer good law in view of the constitution Bench judgment of the Apex Court in Steel Authority of India Ltd. and others v. National Union Waterfront Workers and Ors. , 2001 (7) SCC 1 . Sri Mishra further placed reliance on Dena Nath and Ors. v. National Fertilisers Ltd. and Ors. , 1992 (1) SCC 695 ; R. K. Panda and ors. v. Steel Authority of India and Ors. , 1994 (2) SCC 304 ; Municipal Corporation of Greater mumbai v. K. V. Shramik Sangh and Ors. , 2002 (4) SCC 609 ; Nitin Kumar Nathalal Joshi and ors. v. Oil and Natural Gas Corporation Ltd. and Ors. JT 2002 (3) SC 71, and the judgment of the learned single Judge of this Court in Writ Petition No. 3851 of 2000, Jharkhande and Ors. v. Steel Authority of India Ltd. Stock Yard, Naini Allahabad and Ors. , decided on 27. 11. 2000. It was submitted that the claim of the petitioners working for more than 240 days in calendar year is not admitted and has been denied. It was lastly submitted that the contract with respondent No. 4 by which the petitioners were sent, has come to an end on 31st December, 1999 and all the petitioners approached the Court except in one writ petition after expiry of the period of contract. Sri Y. K. Saxena appearing for respondent No. 4 Man Power Services and Security, referred to counter-affidavit filed on behalf of the respondent No. 4 in Writ Petition No. 51642 of 1999 and submitted that it is wrong to suggest that the petitioners are being paid less amount. The allegations of petitioners working for more than 240 days in the calendar year have been denied. The claim of the petitioners for regularisation has been refuted. The allegations of petitioners working for more than 240 days in the calendar year have been denied. The claim of the petitioners for regularisation has been refuted. It was stated that the amount received by the respondent No. 4 is being paid to the contract labours except after deduction of certain necessary charges. ( 9 ) FROM the submissions and the pleadings of both the parties, the main issue which have arisen in these writ petitions is as to whether the petitioners have right to be absorbed in service of the respondent No. 3 and whether there is relationship of employer and employee between the petitioners and respondent No. 3. ( 10 ) FOR the first submission, Dr. R. G. Padia, counsel for the petitioners placed reliance on the judgment of the Apex Court in Secretary, Haryana State Electricity Board v. Suresh and others, (supra ). From the facts brought on the record of the writ petitions, it is clear that the petitioners claim their engagements in the office of the respondent No. 3 through the Contractor, i. e, respondent No. 4. There is no pleading or any material to prove that the petitioners were ever engaged by the respondent No. 3 directly. The petitioners themselves have not claimed any regular recruitment with respondent No. 3 nor they were engaged in the office of the respondent no. 3 after following any process of recruitment. There is no dispute that all the petitioners were brought before the respondent No. 3 for working through the respondent No. 4. It is respondent no. 4, who has engaged and sent the petitioners for working on different posts with respondent no. 3. The principle of absorption in regular service/ regularisation of daily wage employees/ad hoc employees are well-settled. Any person engaged by an employer either as daily wager or ad hoc employee can claim regularisation if his claim is based on any statutory rule or any other scheme framed by the employer. In the present case, petitioners are not claiming their absorption with respondent No. 3 on basis of any statutory rule governing the respondent No. 3 nor any scheme has been referred to or relied by the petitioners for their absorption. The counsel for the petitioners in their submissions have not based their claim on any rule or Regulation or scheme for regularisation. The counsel for the petitioners in their submissions have not based their claim on any rule or Regulation or scheme for regularisation. Reliance have been placed on the Contract Labour (Regulation and Abolition)Act, 1970 (hereinafter to be referred as the Act, 1970) and the judgment of the Apex Court in secretary, Haryana State Electricity Board v. Suresh and Ors. , (supra ). The counsel for the petitioners elaborating his submission had contended that the Legislature intended in the aforesaid Act, 1970, abolition of contract labour and when the Legislature intended to abolish the contract labour, they clearly intended that all such contract labourers should be absorbed. It has further been contended that the Apex Court considering the aforesaid provision of Act, 1970, as well as the constitutional provisions have laid down that by abolition of contract labour, the principal employer is under obligation to absorb the contract labourers. The Apex Court in secretary, Haryana State Electricity Board v. Suresh and Ors. , (supra) has relied earlier judgment of the Apex Court in Air India Statutory Corporation v. United Labour Union and Ors. , 1997 scc 377 . Following was held in paragraph 18 by the Apex Court in Secretary, Haryana State electricity Board v. Suresh and others (supra) : "reliance on the decision in the case of Denanath and Ors. v. National Fertilisers Ltd. and Ors. , jt 1991 (4) SC 413, in support of the Boards contention, however, stands diluted by reason of the decisions of this Court in Gujarat Electricity Board v. Hind Mazdoor Sabha and Ors. , JT 1995 (4) SC 264 and Air India Statutory Corporation etc. v. U. L. U. and Ors. etc. , JT 1996 11 SC 109. The ratio as has been decided in Air Indias case appears to have softened the edges of dinanaths ratio. While dealing with this issue in Air Indias case (supra) this Court has, as a matter of fact taken note of more or less the entire catena of cases pertaining to contract labour and we do thus feel it wholly unnecessary to deal with the same in extenso excepting however, recording some observations of this Court in Air Indias case (supra) as below : "in this behalf, it is necessary to recapitulate that an abolition of the contract labour system, by necessary implication, the principal employer is under statutory obligation to absorb the contract labour. The linkage between the contractor and the employee stood snapped and direct relationship stood restored between principal employer and the contract labour as its employees. Considered from this perspective, all the workmen in the respective services working on contract labour are required to be absorbed in the establishment of the appellant. " Section 10 of the Act, 1970, is with regard to prohibition of employment of contract labours. The power to issue notification prohibiting employment of the contract labour in an establishment is vested with appropriate Government. Section 10 of the Act is quoted as below :"10. Prohibition of employment of contract labour.-- (1) Notwithstanding anything contained in this Act, the appropriate Government may, after consultation with the Central Board or, as the case may be, a State Board, prohibit, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment. (2) Before issuing any notification under Sub-section (1) in relation to an establishment, the appropriate Government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors, such as : (a) whether the process, operation or other work is incidental to ; or necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment ; (b) whether, it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment; (c) whether, it is done ordinarily through regular workmen in that establishment or an establishment similar thereto ; (d) whether, it is sufficient to employ considerable number of whole-time workmen. Explanation.--If a question arises whether any process or operation or other work is of perennial nature, the decision of the appropriate Government thereon shall be final. In the present case there is no dispute between the parties that no notification has been issued under Section 10 of the Act, 1970. The appropriate Government has not prohibited engagement of the contract labours in the establishment of the respondent Nos. 2 and 3. Apart from the aforesaid power of prohibiting the employment of contract labours, The provisions of the Act relates to regulation of contract labours, the engagement of contract labours has not been abolished by the Act, 1970. The appropriate Government has not prohibited engagement of the contract labours in the establishment of the respondent Nos. 2 and 3. Apart from the aforesaid power of prohibiting the employment of contract labours, The provisions of the Act relates to regulation of contract labours, the engagement of contract labours has not been abolished by the Act, 1970. Act, 1970 only provides machinery for issuing prohibitory order by the appropriate Government in accordance with Section 10. The rest of the provision relates to regulation of contract labour, several provisions regarding welfare and health of the contract labours, penalty and procedure for violating provisions. From the provisions of 1970 Act it is clear that in those establishment where the contract labour has not been abolished there is no prohibition from engaging contract labour. However, the engagement and working of contract labour has to be in accordance with the Act, 1970. The Apex Court in paragraph 11 in Secretary, haryana State Electricity Board v. Suresh and Ors. , (supra) has held : "incidentally, however, be it noted that the Legislature did not feel it expedient to do away with the contract labour altogether, since there are several fields of employment where it is not otherwise possible to have continuous employment and as such, regard being had to the necessities of the situation, the Act of 1970 provides for continuation of contract labour. As a matter of fact the Legislature in the enactment, has itself provided various provisions pertaining to the working conditions of contract labour, provided however, engagement of contract labour becoming invariable or necessary in the interest of the concerned industry. The legislation, therefore, subserves twin purpose, to wit : (i) to abolish the contract labour ; and (ii) to regulate the working conditions of contract labour wherever such employment is required in the interest of the industry. " ( 11 ) IN Secretary, Haryana State Electricity Board v. Suresh and Ors. , (supra), the claim of workers of absorption was referred by State Government to the labour court which decided in favour of workmen that they are entitled for reinstatement. The order of the labour court was affirmed by the High Court subject to modification that they were not entitled for back wages. , (supra), the claim of workers of absorption was referred by State Government to the labour court which decided in favour of workmen that they are entitled for reinstatement. The order of the labour court was affirmed by the High Court subject to modification that they were not entitled for back wages. In the aforesaid case, the High Court has returned the finding that there existed relationship of employer and the workmen between the contesting parties and intermediary was just an eye-wash. ( 12 ) LEARNED counsel for the respondents has placed reliance on R. K. Panda and Ors. v. Steel authority of India and Ors. , 1994 (5) SCC 304 . In the case of R. K. Panda and Ors. , the Apex court has held that whether the contract labours have become employees of the principal employer and whether the engagement and employment, of the labourers through the contractor is mere a camouflage, are questions of fact which cannot be decided in writ jurisdiction. It was held in paragraph 7 of the aforesaid judgment : "7. It is true that with the passage of time and purely with a view to safeguard the interests of workers, many principal employers while renewing the contracts have been insisting that the contractor or the new contractor retains the old employees. In fact such a condition is incorporated in the contract itself. However, such a clause in the contract which is benevolently inserted in the contract to protect the continuance of the source of livelihood of the contract labour cannot by itself-give rise to a right to regularisation in the employment of the principal employer. Whether the contract labourers have become the employees of the principal employer in course of time and whether the engagement and employment of labourers through a contractor is a mere camouflage and a smoke screen, as has been urged in this case, is a question of fact and has to be established by the contract labours on the basis of the requisite material. It is not possible for the High Court or this Court, while exercising writ jurisdiction or jurisdiction under article 136 to decide such questions, only on the basis of the affidavits. It need not be pointed out that in all such cases, the labourers are initially employed and engaged by the contractors. It is not possible for the High Court or this Court, while exercising writ jurisdiction or jurisdiction under article 136 to decide such questions, only on the basis of the affidavits. It need not be pointed out that in all such cases, the labourers are initially employed and engaged by the contractors. As such at what point of time a direct link is established between the contract labourers and the principal employer eliminating the contractor from the scene, is a matter which has to be established on material produced before the Court. Normally, the labour court and Industrial tribunal, under the Industrial Dispute Act are the competent for a and to adjudicate such dispute on the basis of the oral and documentary evidence produced before them. " ( 13 ) THE Constitution Bench judgment of this Court in Steel Authority of India Ltd. and others v. National Union Waterfront Workers and others, (supra) has reviewed the entire law pertaining to right of contract labours in the light of Act, 1970, including their claim of absorption with principal employer. The Apex Court in the aforesaid judgment has held that it cannot be accepted that the Legislature intended absorption of contract labours on issue of abolition notification under Section 10 (1) of 1970 Act. The Apex Court further held that neither Section 10 nor any other provision in the Act provide for automatic absorption of contract labours. It has further been held by the Apex Court that the provisions of the Act of 1970 neither contemplate creation of direct relationship of master and servant between the principal employer and the contract labours nor can such relationship be implied from the provisions of the Act. It is useful to quote relevant paragraphs of the Constitution Bench judgment, in this respect, paragraphs 105, 120, 125 (3) and 126 are excerpted below : "105. The principle that a beneficial legislation needs to be construed liberally in favour of the class for whose benefit it is intended, does not extend to reading in the provisions of the Act what the Legislature has not provided whether expressly or by necessary implication, or substituting remedy or benefits for that provided by the Legislature. The principle that a beneficial legislation needs to be construed liberally in favour of the class for whose benefit it is intended, does not extend to reading in the provisions of the Act what the Legislature has not provided whether expressly or by necessary implication, or substituting remedy or benefits for that provided by the Legislature. We have already noticed above the intendment of the C. L. R. A. Act that it regulates the conditions of service of the contract labour and authorises in Section 10 (1) prohibition of contract labour system by the appropriate Government on consideration of factors enumerated in Sub-section (2) of Section 10 of the Act among other relevant factors. But, the presence of some or all those factors, in our view, provides no ground for absorption of contract labour on issuing notification under sub-section (1) of Section 10. Admittedly, when the concept of automatic absorption of contract labour as a consequence of issuing notification under Section 10 (1) by the appropriate government, is not alluded to either in Section 10 or at any other place in the Act and the consequence of violation of Sections 7 and 12 of the C. L. R. A. Act is explicitly provided in sections 23 and 25 of the C. L. R. A. Act, it is not for the High Courts or this Court to read in some unspecified remedy in Section 10 or substitute for penal consequences specified in sections 23 and 25 a different sequel, be it absorption of contract labour in the establishment of principal employer or a lessor or a harsher punishment. Such an interpretation of the provisions of the statute will be far beyond the principle of ironing out the creases and the scope of interpretative legislation and as such, clearly impermissible. We have already held above, on consideration of various aspects, that it is difficult to accept that Parliament intended absorption of contract labour on issue of abolition notification under Section 10 (1) of the C. L. R. A. Act. " "120. We have also perused all the Rules and forms prescribed thereunder. It is clear that at various stages there is involvement of the principal employer. " "120. We have also perused all the Rules and forms prescribed thereunder. It is clear that at various stages there is involvement of the principal employer. On an exhaustive consideration of the provisions of the C. L. R. A. Act we have held above that neither they contemplate creation of direct relationship of master and servant between the principal employer and the contract labour nor can such relationship be implied from the provisions of the Act on issuing notification under section 10 (1) of the C. L. R. A. Act, a fortiori much less can such a relationship be found to exit from the rules and the forms made thereunder. " "125 (3 ). Neither Section 10 of the C. L. R. A. Act nor any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by the appropriate Government under Sub-section (1) of Section 10, prohibiting employment of contract labour, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the contract labour working in the establishment concerned. 126. We have used the expression "industrial adjudicator as determination of the questions aforementioned requires enquiry into disputed questions of facts which cannot conveniently be made by High Courts in exercise of Jurisdiction under Article 226 of the Constitution. Therefore, in such cases the appropriate authority to go into those issues will be the Industrial Tribunal/ court whose determination will be amenable to juridical review. " ( 14 ) THE above judgment of the Constitution Bench clearly lays down that even where prohibition notification has been issued under Section 10 of the Act, 1976, there is no right of absorption of the contract labours and further enquiry into question of fact cannot be made in exercise of jurisdiction under Article 226 of Constitution of India and in such case, the appropriate forum to go into these issues is the Industrial Tribunal. ( 15 ) THE Constitution Bench judgment specifically overruled the earlier judgment of the Apex court in Air India Statutory Corporation v. United Labour Union and Ors. (supra ). Although the judgment of Secretary, Haryana State Electricity Board v. Suresh and Ors. ( 15 ) THE Constitution Bench judgment specifically overruled the earlier judgment of the Apex court in Air India Statutory Corporation v. United Labour Union and Ors. (supra ). Although the judgment of Secretary, Haryana State Electricity Board v. Suresh and Ors. (supra) has not been specifically noted by the Constitution Bench judgment but the Apex Court has specifically noted the Air India Statutory Corporation case and overruled it. The Secretary, Haryana Electricity board v. Suresh and Ors. , (supra) case has relied on Air India Statutory Corporations case (supra) for holding that the contract labours are entitled for absorption. In view of specific overruling of the Air India Statutory Corporations case (supra) by the Constitution Bench, the judgment of Haryana State Electricity Board cannot help the petitioners in the present case. ( 16 ) IN view of the aforesaid discussion, it is clear that the petitioners claim for being absorbed on the basis of Apex Court judgment in Secretary, Haryana Electricity Board v. Suresh and Ors. , (supra) cannot be accepted and submission of the counsel for the petitioners is liable to be rejected in view of the Constitution Bench judgment in Steel Authority of India Ltd. and Ors. v. National Union Waterfront Workers and Ors. , (supra ). ( 17 ) THE second and third submissions of Dr. Padia being interconnected are taken together. Referring to paragraph 3 (f) of the counter-affidavit, Dr. Padia contended that since the respondents themselves have submitted that the engagement of respondent No. 4 was without approval of Headquarter, the contract with respondent No. 4 becomes void ; and the petitioners became direct employees of the respondent No. 3. ( 18 ) BEFORE considering the submissions further, it is appropriate to refer to pleadings in paragraph 3 (f) of the counter-affidavit. In paragraph 3 (f) of the counter-affidavit the respondents stated : "3 (f) That recruitment by the answering respondents is made by the Head Office situated at delhi and the power of appointment vests with the Head Office alone. The petitioners were neither appointed nor engaged by the Head Office. Nor their engagement was even approved by the Head Office. Even the engagement of respondent No. 4 was done by the regional office without obtaining any permission from the Board in order to meet local exigencies. The petitioners were neither appointed nor engaged by the Head Office. Nor their engagement was even approved by the Head Office. Even the engagement of respondent No. 4 was done by the regional office without obtaining any permission from the Board in order to meet local exigencies. " ( 19 ) FROM reading of the aforesaid paragraph, it is clear that what was pleaded by the respondents in the paragraph is that the recruitment is to be made by the Head Office of the Board at Delhi and the petitioners were neither appointed nor engaged by the Head Office. It has been stated that even the engagement of the respondent No. 4 was done by the regional office without obtaining permission from the Board in order to meet local exigencies. By the aforesaid pleading, the respondent No. 4 wanted to emphasise that the engagement of the respondent No. 4 was not with permission of the Head Office and the same was done to meet local exigencies. In this paragraph, the respondent has not said that the contract with respondent No. 4 was void. From the aforesaid pleadings, it cannot be read that the respondent No. 3 have declared their contract void, with respondent No. 4 or held that the engagement of the petitioners through the respondent No. 4, was not on basis of any valid contract. The respondents have emphasised in the aforesaid paragraph that the engagement of the petitioners cannot be treated to be engagement in any manner with approval of the Head Office which is authority competent to make recruitment. With the counter-affidavit, a copy of the contract dated 31. 1. 1999 has been annexed which noted the terms of engagement of petitioners. A perusal of the contract clearly suggests that it is the respondent No. 4 which pays wages to the petitioners and all the obligations regarding terms and conditions of service are fully under administrative and financial control of Man Power Services and Security. Paragraph 13 of the agreement being relevant is extracted below : "13. Man Power Services and Security, shall continue to be responsible to security guards and supervisor (or any other person employed by it) in respect of the terms and conditions of their services, payments, attendance, medical care, disciplinary matters etc. Paragraph 13 of the agreement being relevant is extracted below : "13. Man Power Services and Security, shall continue to be responsible to security guards and supervisor (or any other person employed by it) in respect of the terms and conditions of their services, payments, attendance, medical care, disciplinary matters etc. of such security guards and supervisor and other such persons, who shall remain fully under the administrative and financial control and supervision of Man Power Services and Security, save and expect that the board shall be the sole Arbitrator in respect of nature of the duties to be entrusted to and the manner of performance of their duties exclusively for the purposes of this Agreement, to be given in writing and may notify Man Power Services and Security, regarding the Boards requirements which shall fully and promptly be implemented by Man Power Services and security. The guards, supervisors and other staff shall at no time be treated as the employees of the Board. ( 20 ) THE submission of counsel for the petitioners that the contract with respondent No. 4 is sham and only a smoke screen, cannot be accepted on the basis of material brought in the present writ petition. The respondent No. 4 has appeared and filed counter-affidavit in the Writ Petition No. 51642 of 1999 and has defended the contract as noted above. The Apex Court in the case of R. K. Panda and Ors. v. Steel Authority of India and Ors. (supra) as well as Constitution Bench of the Apex Court in Steel Authority of India Ltd. and Ors. v. National Union Waterfront Workers and Ors. (supra) has laid down that the above question can appropriately be considered only by the Industrial Tribunal. For finally adjudicating the aforesaid question, taking of evidence will be required and writ proceedings are not appropriate forum for seeking any such declaration. The respondent No. 3 has also vehemently denied the allegation of the petitioners that the contract is sham. The counsel for the respondent No. 3 has submitted that firstly the contract of respondent no. 4 cannot be termed to be sham and smoke screen and even for argument shake, if the petitioners base their any claim on the above averments, the remedy of the petitioners is to take appropriate proceedings before the industrial court. The counsel for the respondent No. 3 has submitted that firstly the contract of respondent no. 4 cannot be termed to be sham and smoke screen and even for argument shake, if the petitioners base their any claim on the above averments, the remedy of the petitioners is to take appropriate proceedings before the industrial court. The above submission of counsel for the respondents is fully supported by the law laid down by Apex Court in the case of R. K. Panda and ors. v. Steel Authority of India and Ors. (supra) and the case of Steel Authority of India and others v. National Union Waterfront Workers and others (supra ). The submission of the petitioners that the contract of respondent No. 4 is sham and smoke screen can neither be accepted nor adjudicated in these proceedings. It is, however, open to the petitioners to seek the appropriate remedy before the labour court in accordance with the provisions of Industrial dispute Act by raising industrial dispute. ( 21 ) THE fourth submission of the counsel for the petitioners that the petitioners working for more than 240 days in a calendar year, cannot be denied in the writ petition and since there is violation of Industrial Dispute Act in their termination, the petitioners are entitled for reinstatement, has to be considered. The aforesaid submission of the counsel for the petitioners suffers from an inherent defect. In the present case, where the petitioners are claiming their reinstatement, the respondent No. 3 is not accepting the petitioners as their employees at any point of time rather it is being claimed that there is no relationship of employer and employees with petitioners and respondent No. 3. The services of the petitioners have not been terminated by respondent No. 3 at any point of time. In facts of the present case, the petitioners cannot raise any claim on basis of violation of any provision of the Industrial Dispute Act against the respondent No. 3 since the relationship of employer and employees is not established. That according to the own case of the petitioners, they have worked with respondent No. 3 through the contractor, i. e. , the respondent no. 4. That according to the own case of the petitioners, they have worked with respondent No. 3 through the contractor, i. e. , the respondent no. 4. Petitioners themselves in paragraphs 4 and 6 of the writ petition as well as Annexure-1 to the writ petition have claimed that all the petitioners were engaged by respondent No. 3 through the contractor i. e, the respondent No. 4. The decision relied by the counsel for the petitioners in krishna Kumar Dubey v. U. P. Food and Essential Commodities Corporation and Anr. , (supra) is not applicable in the facts of the present case. In the aforesaid case, there was no denial that the appellant was employee of U. P. Food and Essential Commodities Corporation. The High Court has dismissed the writ petition on the ground that the petitioners have remedy before the industrial Tribunal. The Apex Court in the aforesaid judgment has not laid down that the remedy before the Industrial Tribunal is not remedy available when violation of provision of Industrial dispute Act are alleged. The following was laid down in paragraphs 3 and 4 of the judgment by the Apex Court : "3. The petitioner has been working under the respondent Corporation as a temporary employee for over three years. It is the case of the appellant that from time to time his services were discontinued for a day or two with a view to breaking the continuing of his service. It, however, appears that he has continuously worked for more than 240 days. It is not disputed that the respondents have terminated his services without complying with the provision of Section 25f of the Industrial Dispute Act, 1947. The High Court, took the view that the appellant had an efficacious alternative remedy before the industrial Tribunal and, accordingly, dismissed the writ petition. It is not necessary for us to consider whether the High Court was justified in dismissing the writ petition on that ground or not, but the fact remains that the appellant had worked continuously for more than 240 days and so, his services could not be terminated without complying with the provision of Section 25 of the Industrial Dispute Act. 4. Moreover, while the appellants service have been terminated, some of his juniors have been retained in service. 4. Moreover, while the appellants service have been terminated, some of his juniors have been retained in service. In the circumstances, we set aside the judgment of the High Court and also the impugned order of termination of service of the appellant and direct that the appellant be reinstated in service with back wages. " The aforesaid judgment of the Apex Court does not help the petitioners in the present case. None of the submissions raised by Dr. R. G. Padia has any substance nor on the aforesaid basis the petitioners are entitled for any relief. ( 22 ) NOW coming to the submission of Sri V. K. Shukla on the basis of Rule 18 of the Central board of Secondary Educations, 1985. It is appropriate to look into the aforesaid rule before considering the aforesaid submission. Rule 1. 8 of the said Rules is quoted below : "1. 8. Methods of Recruitment : (a) Recruitment to a post under the Board may be made in accordance with qualifications and experience for the various posts laid down in the recruitment Rules, through the following methods : (i) by promotion ; (ii) by direct recruitment ; (iii) by deputation or on foreign service ; (iv) on contract for a specified period ; and (v) by re-employing after superannuation, the Boards employees. (b) While making appointments, the appointing authority shall take into consideration the claim of the members of the Scheduled Castes and Scheduled Tribes, in accordance with the scheme of reservation indicated by the Government of India from time to time. " ( 23 ) RULE 1. 8 deals with method of recruitment. Rule provided that the recruitment to a post under the Board may be made in accordance with the qualification and experience for the various posts laid down in the recruitment Rules through different methods. Sub-rule (iv) provides recruitment on contract for specified period. There is no denial that recruitment on contract for specified period is also permissible but in the present case, the petitioners were never recruited by the Board. The recruitment under the aforesaid rules has to be in accordance with the procedure prescribed under the Rules. Rule 1. 10 refers to direct recruitment on recommendation of selection committee from amongst eligible candidates applying in response to any advertisement, notification or general circulation. Rule 1. 12 refers to appointment of employees on contract. Rule 1. The recruitment under the aforesaid rules has to be in accordance with the procedure prescribed under the Rules. Rule 1. 10 refers to direct recruitment on recommendation of selection committee from amongst eligible candidates applying in response to any advertisement, notification or general circulation. Rule 1. 12 refers to appointment of employees on contract. Rule 1. 12 provides that even borrowed employees contract personnel may be appointed to any post with the approval of the selection committee constituted for the purpose. ( 24 ) THE petitioners case is not that they were appointed on contract basis in pursuance of any advertisement issued by the respondent No. 3 on the basis of recommendation of selection committee. Thus, the petitioners appointment is not in accordance with the aforesaid Rules of 1985 nor Rule 1. 8 as referred above helps the petitioners in any manner. The above submission of Sri V. K. Shukla does not help the petitioners in any manner. ( 25 ) NOW coming to the submission of Sri Ashish Mohan in Writ Petition No. 51642 of 1999 that the contract with respondent No. 4 was only to engage supervisor/security guards but mali, peons were engaged which means that their engagement was beyond the contract which leads to the inference that the contract was a sham and only smoke screen. ( 26 ) A copy of the agreement has been annexed as C. A. 1 to the counter-affidavit. Paragraph 22 of the agreement refers to sweeper, mali and Electrician also. Thus, it cannot be said that the engagement of Sweeper, mali and Electrician was beyond the scope of agreement. Further, as observed above, while considering the submission of Dr. Padia, it has been held that the question as to whether the agreement is sham and only smoke screen, cannot be adjudicated in proceedings under Article 226 of the Constitution of India and appropriate remedy for the above is to raise an industrial dispute. The submission of counsel thus, cannot be accepted that the contract was sham and only a smoke screen. For adjudication of the above issue as observed above, investigation of facts and evidence will be required for which proper forum is labour court. The submission of counsel thus, cannot be accepted that the contract was sham and only a smoke screen. For adjudication of the above issue as observed above, investigation of facts and evidence will be required for which proper forum is labour court. ( 27 ) FROM what has been said above, neither any of the submissions raised by the counsel for the petitioners has any substance nor petitioners are entitled for any relief on the basis of aforesaid submissions. The writ petitions are dismissed. However, it is made clear that the dismissal of the writ petition will not preclude the petitioners from raising an industrial dispute.