JUDGMENT R.K. Merathia, J. 1. Petitioner-Management has prayed for quashing the award dated 7.8.1997 passed by the Central Government Industrial Tribunal No. 1, Dhanbad (respondent No. 1) in Reference No. 183 of 1989, directing regularisation of 125 persons/concerned workmen in Category I with effect from 1.10.1998 with 40% of full back wages and other benefits. 2. The following dispute was referred for adjudication vide reference letter dated 24.11.1989: Whether the action of the management of Kuju Area of C.C. Ltd. P.O. Kuju, Dist. Hazaribagh by not making payment of wages and other benefits (including regularisation) as per NCWA III to S/Shri Raghunandan Mahto and 124 other workmen as mentioned In Annxure is legal and justified? If not, to what relief the concerned workmen are entitled. 3. Admittedly the concerned workmen were engaged for supplying drinking water in the residence of the employees and in the offices of the management on piece rate basis, due to water scarcity in absence of adequate water supply system. 4. The case of the Union in short is that the workmen were working directly under the management. To prove this, the Union produced water supply registers signed by the employees of the management. 1 It was further said that the workmen worked for more than 240 days. 5. The case of the management in short is that they were engaged by the contractors entrusted with the work to supply drinking water; that this manual water supply system continued for some years in the different areas till proper arrangement of water supply was made in 1986. Exts. M-l to M-l/23, Exts. M-5 and M-6 series, some bills of different contractors were produced by the management to show that the bills were simply checked/passed/counter signed by the staff of the management for the purpose of payment. Exts. M-2, M-3 and M-4 were filed by the management to show that the petitions were filed by the different persons for permission to supply water which was given by Ext. M-2 series under which water was supplied. 6. The Tribunal found that though the bills were made in the name of some contractors, but the registers/bills of water supply were checked/passed/countersigned by the staff of the management and, therefore, it was a camouflage to circumvent regularisation. It further held that the workmen worked for more than 240 days. 7. M-2 series under which water was supplied. 6. The Tribunal found that though the bills were made in the name of some contractors, but the registers/bills of water supply were checked/passed/countersigned by the staff of the management and, therefore, it was a camouflage to circumvent regularisation. It further held that the workmen worked for more than 240 days. 7. Relying on the decision of Air India Statutory Corporation v. United Labour Union it held that relationship of employer and employee was automatically created and the workmen got right to be regularised in service. 8. Mr. A.K. Mehta, learned Counsel appearing for the petitioner, submitted that there is no notification prohibiting employment of contract labour for carrying water. He further submitted that the judgment of Air India (supra) relied on by the Tribunal has been overruled by a Constitution Bench judgment in Steel Authority of India Limited and Ors. v. National Union Waterfront Workers and Ors. . He relied on sub-paragraphs (3) to (6) of paragraph 125 of the said judgment and submitted that even on issuance of notification under Section 10 of the Act, the employer cannot be ordered to absorb the contract labour. He submitted that the impugned award has not become final as it was stayed by this Court on 2.8.1999; and therefore, the judgment of SAIL (supra) is fully applicable in the present case. He further submitted that the finding of the Tribunal Is perverse; and that, in the absence of any prohibitory notification, employment of contract labour for supplying drinking water, could not be said to be a camouflage by the Tribunal. He argued that this enquiry Is to be conducted by the Industrial adjudicator only after Issuance of prohibitory notification under Section 10(1) of the Act. He further submitted that as per the Judgment of Range Officer v. S.T. Hadimani , onus was on the Union to prove that the workmen concerned continuously worked for more than 240 days in a year preceding their termination. He further submitted that the staff of the management was obliged to check and countersign the bills of the contractors for payment, and on this ground the Tribunal could not hold that there was employer-employee relationship. He further relied on Mahendra L. Jain and Ors. v. Indore Development Authority and Ors. and submitted that the persons appointed as daily wagers hold no posts. He further relied on Mahendra L. Jain and Ors. v. Indore Development Authority and Ors. and submitted that the persons appointed as daily wagers hold no posts. He further submitted that the concerned workmen supplied water for some years till the project of water supply system was completed in different areas in 1986, and as such, they did not acquire any vested right to continue after the project was over. 9. Mr. Delip Kumar Prasad, appearing for the Union supported the award and submitted that this Court may not interfere with the findings of fact arrived by the Tribunal as the same are not perverse or illegal. He further relied on the judgment of learned single Judge dated 11.3.2004 passed in C.W.J.C. No. 3205 of 1997 (R), Employees in relation to the Management of Kuju Pundi Project of M/s. C.C.L. Dhanbad , and submitted that a similar award was not interfered by this Court. 10. In reply to this, Mr. Mehta produced a copy of the prohibitory notification dated 21.6.1998 to show that employment of contract labour for supply of water was not prohibited. He submitted that the Constitution Bench judgment of SAIL (supra); and the fact that there was no prohibitory notification for employment of contract labour5 for water supply, was not brought to the notice of the learned single Judge. 11. I find force in the submissions of Mr. Mehta. The award cannot be sustained in law in view of the Constitution Bench Judgment rendered in the case of SAIL (supra) by which the judgment of Air India (supra) relied by the Tribunal was overruled. Moreover the finding that there was employer-employee relationship, is perverse being based on no materials as noticed above. Only because the bills were counter signed by the employees of the management for the purpose of payment, the employer-employee relationship was not established. The Union failed to discharge its onus to prove that the concerned workmen worked for more than 240 days in a year, especially when the same was denied and disputed by the management. There is no notification under Section 10(1) of the Act prohibiting employment of contract labour for water supply and in absence thereof the finding of the Tribunal that employment of contractors was a camouflage, is wholly untenable. 12. There is no notification under Section 10(1) of the Act prohibiting employment of contract labour for water supply and in absence thereof the finding of the Tribunal that employment of contractors was a camouflage, is wholly untenable. 12. So far as the said judgment rendered In C.W.J.C. No. 3205 of 1997 (R) is concerned, in my opinion, attention of the learned single Judge was not drawn to the law laid down in the case of SAIL (supra) and the fact that there was no prohibitory notification under Section 10 of the Act. With respect, the said judgment has been rendered per incuriam and sub silentio. 13. The judgment of SAIL (supra) will be applicable to the present case as the award has not become final and it was stayed. It may be noted that the award was stayed, subject to the condition that the management continues to pay the last wages drawn/minimum wages to the concerned 125 workmen. 14. In the result, this writ petition is allowed and the impugned award is set aside. However, there will be no order as to costs.