Judgment :- (Prayer : Writ appeals against the order of this Court dated 29.01.2003 and made in W.P.Nos.7327 and 7326 of 1999 respectively.) V. Ramasubramanian, J. The vexed question as to whether the person engaged by the management was a ‘self employed contractor’ or a ‘workman’ and whether it was a ‘contract for services’ or ‘contract of service’ falls for consideration in these 2 writ appeals by the Management of the State owned Transport Corporation. 2. The 2nd respondent in each of these writ appeals, raised industrial disputes in I.D.Nos.266 and 292 of 1993 on the file of the Labour Court, Madurai alleging oral termination of their services on 4-7-1992. They were transferred to the Labour Court, Trichy in I.D.Nos.286 and 289 of 1995. 3. By a common award dated 27-11-1996, the Labour Court held that the 2nd respondent in these writ appeals were workmen of the appellant; that there existed a master and servant relationship between them and that their termination was illegal. Consequently the Labour Court directed their reinstatement with continuity of service, but without backwages. 4. The writ petitions filed by the appellant against the award of the Labour Court, were dismissed by the learned Judge, forcing the management to file the above writ appeals. 5. We have heard Mr.S.Jayaraman, learned Counsel appearing for the appellants and Mr. D.Hariparanthaman learned Counsel appearing for the 2nd respondent in both the writ appeals. 6. Assailing the order of the learned Judge, Mr.S.Jayaraman, learned Counsel for the appellant contended (a) that the 2nd respondent in both the appeals were independent contractors, over whose work, the management did not exercise supervisory and administrative control and hence there was no employer-employee relationship and (b) that the appellant being a state owned corporation, had to make appointments only through Employment Exchanges and that the 2nd respondent in the appeals, not having been appointed through Employment Exchange, cannot claim to be regular workmen nor could claim regularization of services. 7. With regard to the 1st contention of the learned Counsel for the appellant, it is seen that the Labour Court, on an appreciation of the evidence on record, both oral and documentary, found that the 2nd respondent in the appeals were engaged by the appellant from the year 1988 till 1992 and that they were paid wages on piece rate basis. The Labour Court took into consideration the exhibits M-1 to M-12, to come to the conclusion that they were so engaged. The version of the management that they were engaged as self employed contractors, was rejected by the Labour Court, on the basis of an admission made by the management witness MW-2 that the appellant did not engage contract workers for the job of spring recambering in the appellant corporation. Such a finding of fact arrived at by the Labour Court, on the basis of evidence placed before it, cannot be very lightly interfered with, by this court, exercising the discretionary jurisdiction under Article 226 of the Constitution. 8. As held in Shaw Wallace & Co. Ltd. vs. Presiding Officer, Labour Court 2002 (1) LLN 317, the judicial review of the High Court under Article 226 of the Constitution is not akin to appellate powers, over the awards passed by the Tribunal or Labour courts exercising jurisdiction under the provisions of the Act. It is designed to correct jurisdictional errors or patent error of law or decisions arrived at in an arbitrary manner, so arbitrary that no judicial authority entrusted with the task of deciding or adjudicating a dispute or an issue could have come to such a conclusion. Again a Division Bench of this court (to which one of us was a party) in Tamilnadu State Transport Corporation –vs- Presiding Officer, Labour Court, 2005 (3) LLN 705 reiterated the said well established principle of law that in a writ jurisdiction, a finding of fact cannot be interfered with. Therefore the learned Judge was right in rejecting the said contention of the appellant. 9. To drive home his contention that there was only a contract for services (and not a contract of service) between the management and the 2nd respondent, the learned Counsel for the appellant relied upon the decision of the Supreme court in Workmen of Nilgiri Coop. Marketing Society Ltd., -vs- State of Tamilnadu and others (2004) 3 SCC 514 . In the said decision, the Apex court traced the history of the line of decisions starting from Shivnandan Sharma’s case ( AIR 1955 SC 404 ) and the relevant factors laid down in various decisions, which would be decisive of the vexed question. Marketing Society Ltd., -vs- State of Tamilnadu and others (2004) 3 SCC 514 . In the said decision, the Apex court traced the history of the line of decisions starting from Shivnandan Sharma’s case ( AIR 1955 SC 404 ) and the relevant factors laid down in various decisions, which would be decisive of the vexed question. In fine, the Apex court held in paragraph 37 of its judgment as follows:- “The control test and the organization test, therefore, are not the only factors which can be said to be decisive. With a view to elicit the answer, the court is required to consider several factors which would have a bearing on the result: (1) who is the appointing authority; (b) who is the paymaster; (c) who can dismiss; (d) how long alternative service lasts; (e) the extent of control and supervision; (f) the nature of the job e.g. whether it is professional or skilled work; (g) nature of establishment; (h) the right to reject" But even before formulating the above principles, the Supreme court added a note of caution in paragraph 32 as follows:- “Determination of the vexed questions as to whether a contract is a contract of service or contract for service and whether the employees concerned are employees of the contractors has never been an easy task. No decision of this Court has laid down any hard-and-fast rule nor is it possible to do so. The question in each case has to be answered having regard to the fact involved therein. No single test-be it control test, be it organization or any other test – has been held to be the determinative factor for determining the jural relationship of employer and employee." Applying the above tests laid down in para 37 of the judgment of the Supreme court, even independent of the award of the Labour Court, we find in this case that the appellant was the appointing authority, the appellant was the paymaster (and there was no intermediary), the appellant was entitled to reject the work of the 2nd respondent and the appellant was entitled to disengage the services of the 2nd respondent. As a matter of fact the appellant admittedly disengaged the services of the 2nd respondent in these appeals, only on account of shifting their operations from Periakulam to Dindigul unit-III. As a matter of fact the appellant admittedly disengaged the services of the 2nd respondent in these appeals, only on account of shifting their operations from Periakulam to Dindigul unit-III. Therefore, the judgment of the Supreme Court in the aforesaid case does not go to the rescue of the appellant. On the other hand, the tests laid down therein strengthen the case of the 2nd respondent. More over the case before the Supreme court arose out of concurrent findings by the Labour Court and the High Court that the workmen concerned therein were not workmen of the Cooperative society. The Supreme court chose not to interfere with such finding of fact. 10. The learned Counsel for the appellant also relied upon the decision of the Apex court in Indian Overseas Bank vs. Workmen, All India Indian Overseas Bank Employees Union 2006 II LLJ 253, wherein the jewel appraisers of the Indian Overseas Bank were held to be not the employees of the bank. But the said case arose out of a reference made to the Industrial Tribunal, as to whether the jewel appraisers could be denied of the wages and other conditions of service applicable to rural clerical award staff of the Bank and the case was not one of termination of services. More over, the bank, in that case relied upon the circulars issued by them from time to time regarding the terms and conditions subject to which they were engaged. It was made known to the jewel appraisers through those circulars that there was no bar for them to carry on any other avocation or occupation. As a matter of fact, their remuneration itself was paid by the borrowers and not by the Bank. Thus the bank was found to be not their paymaster. Under such circumstances, the Supreme court held that the jewel appraisers were not employees of the Bank. But in this case there was no appointing order or contract stipulating the conditions of service of the 2nd respondent and making it known to them that they are free to work elsewhere even while rendering services to the appellant. The appellant was admittedly their pay master. Therefore the said decision is of no help to the appellant. 11. But in this case there was no appointing order or contract stipulating the conditions of service of the 2nd respondent and making it known to them that they are free to work elsewhere even while rendering services to the appellant. The appellant was admittedly their pay master. Therefore the said decision is of no help to the appellant. 11. The learned counsel for the appellant next contended that there was no evidence to come to the conclusion that the 2nd respondent in these appeals had put in 240 days of continuous service within the preceding year so as to become eligible for the benefit of section 25-F of the Industrial Disputes Act. In support of the said contention, the learned counsel relied upon a decision of the Supreme Court in Range Forest Officer vs. S.T. Hadimani 2002-I LLJ 1053, wherein it was held that the workman has to lead evidence to prove that he had worked for 240 days and that the onus could not be placed on the management. But this issue was never raised by the management before the Labour court. In the counter filed by the management to the claim petition filed by the workmen, the management did not take a stand that the workmen were never employed for 240 days in a year. In the absence of a denial on the part of the management regarding the claim of the workmen to have worked for 240 days, the question of proof and burden of proof does not arise. This being a question of fact, cannot be allowed to be raised by the management at this stage. Therefore the said contention of the learned counsel for the appellant also fails. 12. Regarding the last contention that the appellant is a state owned transport corporation, liable to make regular appointments only through employment exchanges and that therefore the 2nd respondent appointed otherwise than through employment exchange can not be regularised, it is seen that this question was specifically considered by the Labour court in paragraph 9 of its award. The appellant Management, having appointed the second respondent otherwise than through Employment Exchange, cannot be heard to contend that the second respondent was an irregular appointee. In other words, it was the mistake of the appellant, if they had appointed somebody in violation of the Rules. The appellant Management, having appointed the second respondent otherwise than through Employment Exchange, cannot be heard to contend that the second respondent was an irregular appointee. In other words, it was the mistake of the appellant, if they had appointed somebody in violation of the Rules. The appellant is not entitled to take advantage of its own mistake to send persons like the second respondent who are unskilled labourers, out of employment. The job done by the second respondent was that of spring recambering and no qualifications appear to have been prescribed for the said post. Under such circumstances, the principle that irregular appointees are not entitled to regularisation of services, cannot be imported to this case. Even in the case of the Secretary, the State of Karnataka v. Umadevi and others ( 2006 4 SCC 1 ), while laying down the law that there is no right to regularization, the Constitution Bench of the Supreme Court pointed out one exemption under paragraph 53. Paragraph 53 reads as follows: "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V.Narayanappa, R.N.Nanjundappa and B.N.Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme." 13. Therefore, under the above circumstances, we are unable to accept any of the contentions raised by the learned counsel for the appellant and we find no merits in the appeals. Consequently, both the writ appeals are dismissed. No costs. The connected WAMPs. are closed.