Judgment :- 1. Challenge in this writ petition is to the award in I.D.No.668/99 passed by the I Additional Labour Court, Chennai ordering reinstatement of 1st Respondent with continuity of service, back wages and all other attendant benefits. 2. Case of 1st Respondent is that from 15.02.1988, he was engaged by the Petitioner Corporation and from 1994 he was asked to perform the work of watchman cum pump operator at Vishnu Kanchi Police Quarters. 2nd Respondent is said to have supervised the Petitioners work. Case of 1st Respondent is that from 01.08.1998, he was not paid the salary and therefore 1st Respondent demanded the salary for the period from 01.08.1998 to 22.02.1999 from the 2nd Respondent and the 2nd Respondent stopped him from work. Further case of 1st Respondent is that he was directly under the employment of Petitioner Corporation and only as per the oral instruction of Petitioner Corporation he was working under 2nd Respondent. The Petitioner raised a dispute before the Labour Officer, but no conciliation was arrived at. Stating that his non employment was illegal and against the principles of natural justice, 1st Respondent has filed I.D.No.668/1999. 3. Petitioner Corporation averred that 1st Respondent was under the direct superintendence and absolute control of the 2nd Respondent who in turn was executing the work as an independent contractor for the Petitioner Corporation. Petitioner Corporation further averred that recruitment of contract labour was done solely by the contractor and Petitioner Corporation has virtually no role to play in the recruitment, suspension or termination of those employed by the contractor and therefore the 1st Respondent cannot seek for reinstatement or re-employment. 4. Upon consideration of evidence and from Ex.W.1 the Labour Court held that the 1st Respondent must have been employed by the Petitioner Corporation. Pointing out nonproduction of documents like attendance register, Labour Court drew adverse inference against the Petitioner Corporation. Holding that 1st Respondent is an employee of Petitioner Corporation and that there is employer-employee relationship, the Labour Court ordered reinstatement with continuity of service, backwages and other attendant benefits. 5. Challenging the impugned award, the learned counsel for the Petitioner Corporation Mr. F.B. Benjamin George, has contended that the Labour Court erred in ignoring Ex.M.1, which is the agreement between the Petitioner Corporation and the 2nd Respondent for maintenance of Police quarters. 5. Challenging the impugned award, the learned counsel for the Petitioner Corporation Mr. F.B. Benjamin George, has contended that the Labour Court erred in ignoring Ex.M.1, which is the agreement between the Petitioner Corporation and the 2nd Respondent for maintenance of Police quarters. It was further submitted that the 2nd Respondent being a maintenance contractor and as per the terms of the contract the 2nd Respondent was maintaining the attendance register and while so Labour Court grossly erred in drawing adverse inference against the Petitioner Corporation for nonproduction of attendance register. Main contention of the Petitioner Corporation is that it has got no role in the recruitment of labour by the contractors. 6. Submitting that finding of the Labour Court is based on the evidence, learned counsel for the 1st Respondent Mr. K.M. Ramesh, contended that from the evidence of M.Ws 1 and 2 Labour Court rightly held that the 1st Respondent was engaged as temporary worker and he was illegally terminated. Placing reliance upon decisions, the learned counsel further submitted that based upon evidence when Labour Court has arrived at the conclusion order of reinstatement, exercising jurisdiction under Article 226 of the Constitution of India the High Court may not interfere with the award of the Labour Court. 7. Petitioner is a company constituted under the Companies Act 1956 and it is a Government of Tamilnadu undertaking. It was constituted in the year 1981 with an intention to provide houses to the Government servants particularly to the personnel belonging to the Police Department. Police Housing Corporation was constituted with the object to undertake construction work to police department. In 1989, Police Housing Corporation was wound up. In 1991, Police Housing Corporation was revived. The maintenance of Police quarters were alone handed over to the Tamilnadu Police Housing Corporation for maintenance and maintenance work being done by the contractor. 8. The Petitioner Corporation does not involve in direct construction work. In his evidence MW1-Company Secretary of Petitioner Corporation has stated that the schemes envisaged by the Government of Tamilnadu are being executed by the Petitioner Corporation through the building contractor selected in open tender and buildings are handed over to Government. As such the nature of the work of the Petitioner Corporation is stated to be that of a construction agency. The Petitioner Corporation has only the administrative staffs and technical staffs for supervising the work on its roll. As such the nature of the work of the Petitioner Corporation is stated to be that of a construction agency. The Petitioner Corporation has only the administrative staffs and technical staffs for supervising the work on its roll. Petitioner Corporation does not have any worker who is engaged in building or maintenance work on its roll. 9. Definite case of the Petitioner Corporation is that Corporation identifies the scheme for construction through the contractors. The work of Petitioner Corporation is stated to be that of a construction agency and organization and done only through independent contractors. .10. Specific case of 1st Respondent is that he was initially engaged by Petitioner Corporation from 15.02.1988, he was engaged as pump operator in Kancheepuram Housing Colony and subsequently he was transferred to Vishnu Kanchi Office Quarters in 1984 as guard. On behalf of the Petitioner Corporation, it is stated that the work of the construction of Armed Reserve quarters referred as Kancheepuram Police Housing colony commenced only after 211. 1988. Petitioner Corporation was wound by transferring the assets and liabilities to the Tamil Nadu Housing Board on 31.03.1989. Even while the construction of the building in the said scheme was under progress assets and liabilities of the Corporation was transferred to the Tamil Nadu Housing Board. When the assets and liabilities of Petitioner Corporation was transferred to Tamil Nadu Housing Board on 31.03.1989, as contended by the Petitioner Corporation the 1st Respondent could not have been an employee of the Petitioner Corporation. 11. M.W.2 – Thennarasu is working as Executive Engineer in the Petitioner Corporation for nearly more than 17 years in his evidence M.W.2 has stated that Petitioner Corporation work is only to supervise the construction work entrusted to the contractors and after verification to pay the amount to the contractors as per the bills. M.W.2 has denied engaging of 1st Respondent by Petitioner Corporation. M.W.1 who is the Company Secretary of the Petitioner Corporation has also denied the employment of the 1st Respondent with Petitioner Corporation. 12. During cross examination of M.W.s 1 and 2 it was suggested to M.Ws 1 & 2 that 1st Respondent worked with Petitioner Corporation during 18.02.1988 to 01.03.1989, 01.04.1989 to 211. 1991 (with TNHB) and again 211. 1991 with the Petitioner Corporation. M.Ws 1 & 2 have specifically denied the employment of the Petitioner and the suggestion put to them. 12. During cross examination of M.W.s 1 and 2 it was suggested to M.Ws 1 & 2 that 1st Respondent worked with Petitioner Corporation during 18.02.1988 to 01.03.1989, 01.04.1989 to 211. 1991 (with TNHB) and again 211. 1991 with the Petitioner Corporation. M.Ws 1 & 2 have specifically denied the employment of the Petitioner and the suggestion put to them. Burden of proof lies upon the 1st Respondent/workmen to prove his employment with the Petitioner Corporation. The 1st Respondent has not produced documents, acceptable evidence showing his employment with the Petitioner Corporation for the above spells of time. 13. Pointing out EX.W.1 letter written byPetitioner Corporation learned counsel held that in the said letter Petitioner Corporation though not conceded directly admitted that 1st Respondent was temporary worker appointed by Petitioner Corporation during the year 1988-89. By reading of Ex.W.1, it is seen that Labour Court was not right in saying that the Petitioner Corporation has accepted 1st Respondents plea that he is temporary worker of Petitioner Corporation. In the light of the queries raised by the Secretariat regarding the request made by the 1st Respondent to make his job permanent, Petitioner Corporation has sent Ex.W.1 letter to the Secretariat. Ex.W.1 (01.09.1997) does not indicate any such direct or indirect admission of Petitioner Corporation regarding engaging the 1st Respondent. Ex.W.1 letter reads as under: A reading of the above letter makes it clear that the Petitioner Corporation had made it clear that 1st Respondent was engaged only by the contractors. In the above letter, Petitioner Corporation had made it clear that 1st Respondent has no connection whatsoever with Petitioner Corporation. While so, the Labour Court erred in saying EX.W.1 letter Petitioner Corporation has conceded that 1st Respondent has been temporarily engaged by the Petitioner Corporation. 14. In his evidence 1st Respondent has stated that he was in direct employment of Petitioner Corporation and on the instruction of Petitioner Corporation from 1997 till 1999, 1st Respondent worked under 2nd Respondent. According to 1st Respondent though he was working under the 2nd Respondent, he was actually under the direct control of Petitioner Corporation. Plea of 1st Respondent remains unsubstantiated. In the conciliation proceedings, 2nd Respondent has denied employment of 1st Respondent under him from 1997 to 1999. According to 1st Respondent though he was working under the 2nd Respondent, he was actually under the direct control of Petitioner Corporation. Plea of 1st Respondent remains unsubstantiated. In the conciliation proceedings, 2nd Respondent has denied employment of 1st Respondent under him from 1997 to 1999. In his statement before the Conciliation Officer the 2nd Respondent has stated that in 1997 the 1st Respondent worked under him for a period of three months on daily wages basis and thereafter the 1st Respondent was stopped from the work. The contention of the 1st Respondent is that on the instruction of Petitioner Corporation, he was working under the control of 2nd Respondent is not substantiated. 15. For maintenance work, Petitioner Corporation had entered into an agreement (30.04.1997) with 2nd Respondent. As per the terms and conditions of the agreement the contractor shall maintain daily attendance register and obtain necessary attestation from the Departmental Officers. As per the terms and conditions of the agreement it was incumbent upon the contractor to maintain the attendance register and to get necessary attestation from the Departmental Officers. 16. In (2001) 7 SCC 1 Steel Authority of India Ltd Vs. National Union Waterfront Workers, the question of engaging contract labour in connection with the work entrusted to him by the principal employer, the relationship between master and servant between him (the principal employer) and the contract labour emerges came up for consideration. After referring to various decisions and observing that absorption is not automatic the Hon’ble Supreme court has held as under: "Therefore, it is not possible to perceive in Section 10 any implicit requirement of automatic absorption of contract labour by the principal employer in the establishment concerned on issuance of notification by the appropriate Government under Section 10(1) prohibiting employment of contract labour in a given establishment. Consequently the principal employer cannot be required to order absorption of the contract labour working in the establishment concerned. (120). Consequently the principal employer cannot be required to order absorption of the contract labour working in the establishment concerned. (120). On an exhaustive consideration of the provisions of the CLRA Act it has already been held herein 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 CLRA Act, a fortiori much less can such a relationship be found to exist from the Rules and the forms made thereunder." 17. Appointment in any Government Department is a public appointment and Courts cannot encourage appointments which are made outside the constitutional scheme and it is improper for the Courts to give any direction for regularisation of the person. In 2006 (7) SCC 684 Surinder Prasad Tiwari v. U.P. Rajya Krishi Utpadan Mandi Parishad the Honble Supreme Court has held as under: "In view of the clear and unambiguous constitutional scheme, the courts cannot countenance appointments to public office which have been made against the constitutional scheme. In the backdrop of constitutional philosophy, it would be improper for the courts to give directions for regularisation of services of the person who is working either as daily-wager, ad hoc employee, probationer, temporary or contractual employee, not appointed following the procedure laid down under Articles 14, 16 and 309 of the Constitution. In our constitutional scheme, there is no room for back door entry in the matter of public employment." 18. In regard to the status of the temporary project employees employed in the Government project, in 1998 SCC (L&S) 478 : AIR 1997 SC 1445 [State of Himachal Pradesh, through the Secretary, Agriculture to the Government of Himcahal Pradesh Vs. Nodhra Ram & Others] the Honble Supreme Court has held as under: "..A temporary or ad hoc employee may not have a claim to become permanent without facing selection or being absorbed in accordance with rules but no discrimination can be made for same job on basis of method of recruitment. Such injustice is abhorrent to the constitutional scheme.” 19. The controversy involved in this case is no longer res integra. A Constitution Bench of this Court in Secy., State of Karnataka v. Umadevi reported in (2006) 4 SCC 1 ) has comprehensively dealt with the issues involved in this case. Such injustice is abhorrent to the constitutional scheme.” 19. The controversy involved in this case is no longer res integra. A Constitution Bench of this Court in Secy., State of Karnataka v. Umadevi reported in (2006) 4 SCC 1 ) has comprehensively dealt with the issues involved in this case. The Constitution Bench has observed as follows: "... 47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission.” The ratio of the aforementioned judgment is that the courts cannot encourage appointments which are made outside the constitutional scheme and it is improper for the courts to give any direction for regularisation of the person who has not been appointed by following the procedure laid down under Articles 14, 16 and 309 of the Constitution. 20. The Honble Supreme Court again reiterated the same principle in Haryana State Agricultural Marketing Board vs. Subhash Chand reported in (2006) 2 SCC 794 ). In this case also, the employees were appointed on contract basis. The Honble Supreme Court held as under: “It is the contention of the appellant that the respondent was appointed during the ‘wheat season’ or the ‘paddy season’. It is also not in dispute that the appellant is a statutory body constituted under the Punjab and Haryana Agriculture Produce Marketing Board Act. In terms of the provisions of the said Act, indisputably, regulations are framed by the Board laying down the terms and conditions of services of the employees working in the Market Committees. A bare perusal of the offer of appointment clearly goes to show that the appointments were made on contract basis. It was not a case where a workman was continuously appointed with artificial gap of 1 day only. Indisputably, the respondent had been re-employed after termination of his services on contract basis after a consideration period(s).” 21. A bare perusal of the offer of appointment clearly goes to show that the appointments were made on contract basis. It was not a case where a workman was continuously appointed with artificial gap of 1 day only. Indisputably, the respondent had been re-employed after termination of his services on contract basis after a consideration period(s).” 21. Labour Court drew adverse inference against the Petitioner Corporation for non production of attendance register and other documents. The Labour court observed that non production of attendance register and other relevant documents of employees pertaining to the period from 18.02.1988 would clearly prove the case of the 1st Respondent that he was appointed by the Petitioner Corporation from 15.02.1988. Based on the non production of attendance register, Labour Court arrived at the conclusion that employee-employer relationship between the Petitioner Corporation and the 1st Respondent. The Labour Court failed to take into consideration that as per terms and conditions of the contract, it was incumbent upon the contractor to maintain attendance register. When the contractor is maintaining the attendance register, it is futile to expect the Petitioner Corporation to produce the attendance register and other documents. 22. It is well settled principle of law that the person who sets up a plea of existence of relationship of employer and employee, the burden would be upon him. 23. In [ AIR 2004 SC 1639 , Workmen of Nilgiri Co-op Mkt. Society Ltd. Vs. State of Tamil Nadu], Nilgiris Co-operative Society was operating market yards for its members. Porters and graders waiting in yard are to be engaged by growers and merchants for themselves for loading, unloading or grading. Observing that the said porters are neither appointed/engaged by society nor any control is exercised on them by society and that there cannot be any direction for regularisation. In the said decision the Honble Supreme Court has held as under: "........... 48. In N.C. John v. Secy., Thodupuzha Taluk Shop and Commercial Establishment Workers’ Union [1973 Lab IC 398), the Kerala High Court held: "The burden of proof being on the workmen to establish the employer-employee relationship an adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employer-employee relationship." 49. In N.C. John v. Secy., Thodupuzha Taluk Shop and Commercial Establishment Workers’ Union [1973 Lab IC 398), the Kerala High Court held: "The burden of proof being on the workmen to establish the employer-employee relationship an adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employer-employee relationship." 49. In Swapan Das Gupta v. First Labour Court of W.B.i[(1976 Lab IC 202)] it has been held: "Where a person asserts that he was a workman of the company and it is denied by the company, it is for him to prove the fact. It is not for the company to prove that he was not an employee of the company but of some other person." 24. The question where the relationship between parties is one of the employer and employee is a pure question of fact. Exercising power of judicial review, ordinarily the High Court shall not interfere with the finding of the Labour Court, unless the finding is manifestly erroneous or perverse. As pointed out earlier, the 1st Respondent has been employed under the contractor viz., the 2nd Respondent. The 1st Respondent has not produced any document showing employer – employee relationship between him and the writ petitioner Management. 25. As held by the Honble Supreme Court in (2005) 5 SCC 100 ) RBI vs. S. Mani , it is also a trite law that only because some documents have not been produced by the Management, an adverse inference would not be drawn against the Management. 26. Learned counsel for the 1st Respondent place reliance upon 2002 (1) L.L.N.317, Shaw wallace and Co Ltd vs. P.O. Second Addl. L.C; 1997 (3) L.L.N. 59 Rae Bareli Kshetriya Gramin Bank vs. B.N. Singh and others. Those cases arise out of Domestic Enquiry. There is no quarrel over the well settled position that exercising jurisdiction under 226 of the Constitution of India the High Court will not reappreciate the evidences as Appellate Court and scope of review is limited. But where the findings of the Labour Court are perse erroneous, and where it is just and proper the High Court would certainly interfere with the award passed by the Labour Court. 27. But where the findings of the Labour Court are perse erroneous, and where it is just and proper the High Court would certainly interfere with the award passed by the Labour Court. 27. Contending that when the Labour Court has ordered reinstatement the High Court was slow in interfering with the reinstatement, the learned counsel for the 1st Respondent placed reliance upon (2007 II L.L.J.312), Mgmt. of Institute of Road Transport Technology vs. S.Arumugam. In the said case Management of Institute of Road Transport Technology engaged security guards. Security duty was entrusted to the contractors. On facts, it was found that contract was not genuine and that the security guards are direct employees of the Management. Division Bench of this Court has declined to interfere with the order of reinstatement. 28. The case on hand stands entirely on a different footing. For maintenance of the constructed quarters Petitioner Corporation has entered into an agreement with the 2nd Respondent and the entire maintenance work has been entrusted to the contractors. Except supervising the contractors work, the Petitioner Corporation has no role to play with the employees engaged by the said contractors. 29. Assuming for the sake of arguments, that the Petitioner had been employed for sometime by the Petitioner Corporation, reinstatement is not automatic. It is not in every case of termination of service Court is bound to order reinstatement. Completion of 240 days by itself would not confer the right upon the employee to regularize and reinstatement. 30. No doubt, there can be occasions when the State or its instrumentalities employ persons on temporary or daily wage basis in a contingency as additional hands without following the required procedure. But this does not confer any right on such persons to continue in service or get regular pay. Unless the appointments are made by following the rules, such appointees do not have any right to claim permanent absorption in the establishment. 31. In Delhi Development horticulture employees Union vs. Delhi Administration, Delhi and Ors [ AIR 1992 SC 789 ] while depreciating the tendency of engaging daily wagers without advertisement the Honble Supreme Court held the same to be back door entries in violation of Article 16 of the Constitution. As such this Court refused to give any direction to regularize the Petitioners. Thus, it is well settled that there is no right vested in any daily wager to seek regularization. As such this Court refused to give any direction to regularize the Petitioners. Thus, it is well settled that there is no right vested in any daily wager to seek regularization. Regularization can only be done in accordance with the rules and not de hors the rules. 32. In the case of E. Ramakrishnan and Ors vs. State of Kerala and Ors. [ 1996 (10) SCC 565 ] this Court held, that there can be no regularization de hors the rules. 33. The same view was taken in Dr.kishore vs. State of Maharashtra [ 1997 (3) SCC 209 ], Union of India and Ors v. Bishambar dutt [ 1996 (11) SCC 341 ]. The direction issued by the Services Tribunal for regularizing the services of persons who had not been appointed on regular basis in accordance with the rules was set aside although the Petitioner had been working regularly for a long time. 34. In Dr. Surinder Singh Jamwal an Anr vs. State of Jammu & Kashmir and Ors [ AIR 1996 SC 2775 ] it was held, that ad hoc appointment does not give any right for regularization is governed by the statutory rules. 35. In Ashwani Kumar and Ors. Etc vs. State of Bihar and Ors. [ AIR 1996 SC 2833 ], the appointment made without following the appropriate procedure under the Rules/Government Circulars and without advertisement or inviting application from the open market was held to be in flagrant violation of Articles 14 and 16 of the Constitution. 36. Observing that there is no right vested in daily wager to seek regularisation and that there cannot be a order for regularisation on sympathy in MANU/SC/4993/2006 Indian Drugs and Pharmaceuticals Ltd vs. Workman, Indian Drugs and Pharmaceuticals Ltd the Honble Supreme Court has held as follows: "....It is time, that the Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance tends to defeat the very constitutional scheme of public employment. The passing of orders for continuance tends to defeat the very constitutional scheme of public employment. It has to be emphasized that this is not the role envisaged for the High Courts in the scheme of things and their wide powers under Article 226 of the Constitution are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten." 37. Court cannot create posts where none exist. In the instant case as such the impugned direction passed by the Labour Court is to the effect of compulsion of creation of post by the Petitioner Corporation and therefore the order of the Labour Court cannot be sustained. It is well settled that unless there exists / some rule no direction can be issued by the Court to the Government / Government undertaking for continuation in service or payment of regular salary to a casual, ad hoc, or daily rate employee. 38. In IDPLS case (cited supra) the Honble Supreme Court has held: "..... 19. Creation and abolition of posts and regularization are a purely executive function vide P.U.Joshi vs. Accountant General, Ahmedabad and ors [2003 (2) SCC 632]. Hence, the Court cannot create a post where none exists. Also, we cannot issue any direction to absorb the Respondents or continue them in service, or pay them salaries of regular employees, as these are purely executive functions. This Court cannot arrogate to itself the powers of the executive or legislature. There is broad separation of powers under the Constitution, and the judiciary, too must know its limits. 39. Sympathy or sentiment cannot be a ground for passing an order. In the instant case, sympathy appears to have weighed substantially in the mind of the Labour Court. The Petitioner Corporation being a Government of Tamilnadu undertaking cannot be compelled to reinstate the Petitioner along with back wages. The order of the Labour Court is liable to be set aside and is accordingly set aside. 40. In the result the writ petition is allowed and the award passed by the Labour Court in I.D.No.668/99 dated 21.03.2003 is set aside. "1st Respondent is already said to have withdrawn the 50% of arrears wages deposited. The order of the Labour Court is liable to be set aside and is accordingly set aside. 40. In the result the writ petition is allowed and the award passed by the Labour Court in I.D.No.668/99 dated 21.03.2003 is set aside. "1st Respondent is already said to have withdrawn the 50% of arrears wages deposited. Petitioner Corporation may not take steps to recover the same from the 1st Respondent. "Petitioner Corporation shall be entitled to withdraw the balance deposited amount. Connected miscellaneous petition is also closed.