JUDGMENT : D.N. Patel, J. The present petition has been preferred under Article 226 and 227 of the Constitution of India against an award, passed by the Central Government Industrial Tribunal No. I, Dhanbad, in Reference No. 8 of 1995 dated August 16, 2002 (Annexure 3 to the memo of present petition), whereby, it has been held by the Industrial Tribunal that the services of the members of respondent No. 2 Union are to be regularized. 2. The members of respondent No. 2 Union were engaged in repairing work of the iron tubs in a coal mining of the petitioner (public sector undertaking) where the main activity was never repairing of tubs but excavating the coal. 3. I have heard learned Counsel appearing for the petitioner, who has vehemently submitted that the Industrial Tribunal has lost sight of the fact that the petitioner, which is a public sector undertaking, is engaged in coal mining and its main activity is to excavate the coal and incidentally if the tubs, which are carrying raw coals from mines to surface of the earth, met with an accident, these iron tubs require repairing and, therefore, a contractor, namely, Deo Narayan Mistri, was engaged and as and when such accident arises and there are damages to the iron tubs, which are carrying coal from mines to the surface, they were given for repairing but never repair was the main activity of the petitioner undertaking and, thus, the Industrial Tribunal has under misconception of fact and law as if the repair was the main activity of the petitioner undertaking, passed the order for regularization. Learned Counsel for the petitioner submitted that this is an error apparent on the face of the record and, therefore, the award passed by the Industrial Tribunal deserves to be quashed and set aside. 4. It has also been submitted by the learned Counsel for the petitioner that the award passed by the Industrial Tribunal is also dehors the evidence. The evidence collected during the reference shows that the members of respondent No. 2 union were engaged only for repairing of the iron tubs, as and when accident arises and damages caused to the tubs. Nobody knows when the accident will arise. Nobody knows when the tubs would get damaged. Accident is not a regular phenomena nor a damage to a tub is a regular phenomena. Nobody knows when the accident will arise. Nobody knows when the tubs would get damaged. Accident is not a regular phenomena nor a damage to a tub is a regular phenomena. For this accidental work if the contractor is engaged and if the contractor has engaged other employees, they can never be treated as employees/workmen of the petitioner. This aspect of the matter has not been properly appreciated by the Industrial Tribunal and hence also the award passed by the Industrial Tribunal deserves to be quashed and set aside. 5. It has also been submitted by the learned Counsel for the petitioner that looking to the evidence of the Management Witnesses, only for two years i.e. 1988 and 1989 the work was assigned to respondent No. 2. There is no evidence before the Industrial Tribunal that the petitioner-Management has ever assigned any work to respondent No. 2 after 1989 of repairing of iron tubs. Thus, there was no nexus at all between the petitioner and respondent No. 2. In fact, there is no direct supervision and control upon the members of respondent No. 2 union by the petitioner. Whatever work were given in the year 1988 and 1989, which were of repairing of few tubs, were given without any control upon the process of repairing. Thus the petitioner was concerned with the end result i.e. repairing of iron tubs and not with the method of achieving that end. Thus, there was no supervision and control upon the employees of the contractor; neither upon working hours, nor upon recess hours, nor the style of work but the petitioner was concerned only with the repairing of the tubs. 6. It has also been contended by the learned Counsel for the petitioner that the alleged registers, upon which too much emphasis has been given in the impugned award, revealing presence mark of the members of respondent No. 2 union, is of no help to the members of respondent No. 2 union. In fact, when the repairing work was given to the contractor, depending upon the accident and the damages, no register was required to be maintained by the Management for the work done by the persons/helpers of the contractor. The alleged registers referred to in paragraph No. 6 of the impugned award are the registers, which have been brought by the members of respondent No. 2 union. The alleged registers referred to in paragraph No. 6 of the impugned award are the registers, which have been brought by the members of respondent No. 2 union. Thus, privately maintained registers have been brought on record. There is no countersign by the Management upon these registers. There is no signature of the higher officers of the petitioner-Management Upon these registers. The members of respondent No. 2 union have not even established that they were getting regular salaries from the petitioner. The members of respondent No. 2 union could not even establish the fact as to who was supervising their work from the petitioner's side. 7. It has further been contended by the learned Counsel for the petitioner that the learned Tribunal while accepting these privately maintained registered as evidence has noted that there is no reason for the Management to disbelieve these registers. On this ground alone the registers have been accepted. In fact, as stated hereinabove, there are no counter signatures upon these registers and, therefore, in fact, there is no evidence for the work done by the members of respondent No. 2 union. This aspect of the matter has also not been properly appreciated by the learned Tribunal and, therefore, the award, passed by the Industrial Tribunal, deserves to be quashed and set aside. 8. It has also been contended by the learned Counsel for the petitioner that from 1977 till the year, 1989 or 1990 continuously never any work was given to the members of respondent No. 2 union, though it has been clearly proved before the Industrial Tribunal that some work was given only to one workman out of nine and rest of them were helping that workman. Thus, the learned Tribunal has wrongly arrived at a conclusion that as the nature of work was of a permanent in nature, all these persons are the employees of the petitioner. Thus, the learned Tribunal has wrongly arrived at a conclusion that as the nature of work was of a permanent in nature, all these persons are the employees of the petitioner. It was consistently submitted by the learned Counsel for the petitioner before the learned Tribunal that never the tubs repairing was the main activity of the petitioner nor was it a regular activity, but, depending upon the accident or damages to the iron tubs, one Sri Deo Narayan Mistri was engaged as a contractor and he got employed his helpers as and when the tubs repairing work was assigned by the petitioner and, therefore, only in the name of one main person, the work orders were given and few of such work orders have been presented from the year, 1977, but, that does not mean that all the workmen, who were agitating their cause before the Industrial Tribunal, were given regular employment from 1977 onwards. This fact has been presumed by the Industrial Tribunal without any factual background and, therefore, also the award passed by the learned Tribunal deserves to be quashed and set aside. 9. Learned Counsel appearing on behalf of the petitioner has also relied upon the following decisions: (a) Gangadhar Pillai Vs. Siemens Ltd., 2007 (1) SCC 533 (b) Indian Drugs and Pharmaceuticals Ltd. Vs. Workman, Indian Drugs and Pharmaceuticals Ltd., 2007 (1) SCC 408 (c) U.P. Power Corporation Ltd. and Another Vs. Bijli Mazdoor Sangh and Others, 2007 (5) SCC 755 (d) Hindustan Aeronautics Ltd. Vs. Dan Bahadur Singh and Others, 2007 (6) SCC 207 10. It has been submitted with the help of the aforesaid decisions by the learned Counsel for the petitioner that even if, any person has completed 240 days working, mathematically he/she cannot be regularized in the employment. But the only method of regularization is the method prescribed under the Rules. There cannot be a regularization dehors the rules. The petitioner is a public sector undertaking, owned, managed and controlled by the Central Government. Under the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959, the petitioner has to call for the names from the Employment Exchange of the persons, who are registering their names in the register maintained by the Employment Exchange. There shall be an interview and thereafter, the workmen are appointed. There cannot be a regularization dehors the rules. The Court cannot create the posts. There shall be an interview and thereafter, the workmen are appointed. There cannot be a regularization dehors the rules. The Court cannot create the posts. Creation of posts is purely an executive function. Under a broader umbrella of separation of powers under normal circumstances, court will not direct for creation of posts and pass an order for regularization. This aspect of the matter has also not been properly appreciated by the learned Industrial Tribunal nor the ratio laid down by the Hon'ble Supreme Court in all the aforesaid decisions have been properly appreciated by the learned Tribunal. Members of respondent No. 2 union could not point out any rule or regulation or policy for regularization and, therefore, also the award passed by the Industrial Tribunal deserves to be quashed and set aside. 11. I have heard learned Counsel appearing for respondent No. 2, who has vehemently submitted that the members of respondent No. 2 union were working since long with the petitioner i.e. since 1977 and, therefore, rightly they have been ordered to be regularized by the award passed by the Industrial Tribunal. No error has been committed by the learned Industrial Tribunal in regularizing the services of the members of respondent No. 2 union with the petitioner. 12. It has also been submitted by the learned Counsel for respondent No. 2 that looking to the documents on record, especially Exts. W.1 and W1/1 to 1/8, it has rightly been concluded by the learned Industrial Tribunal that right from the year, 1977 the work was being given to the members of respondent No. 2 union. Thus, continuously from 1977 onwards the workmen were working with the petitioner and, therefore, rightly they have been regularized by the learned Industrial Tribunal. 13. It has also been submitted by the learned Counsel for respondent No. 2 that as many as half a dozen attendance registers were presented before the learned Industrial Tribunal, which reveal the fact that the members of respondent No. 2 union were working with the petitioner from 1978 onwards. These evidences have been properly appreciated by the learned Industrial Tribunal. 14. It has also been submitted by the learned Counsel for respondent No. 2 that looking to the nature of work assigned to the members of respondent No. 2 union, it was of a permanent nature. The petitioner is also engaging blacksmiths. These evidences have been properly appreciated by the learned Industrial Tribunal. 14. It has also been submitted by the learned Counsel for respondent No. 2 that looking to the nature of work assigned to the members of respondent No. 2 union, it was of a permanent nature. The petitioner is also engaging blacksmiths. If there is no regular work, it would not have engaged on a regular post the blacksmiths. The members of respondent No. 2 union were also doing the same activities, which the blacksmiths, regularly appointed by the petitioner, were doing and, therefore, the correct conclusion has been arrived at by the learned Industrial Tribunal that there was a regular nature of work, provided to the members of respondent No. 2 union and, therefore, no error has been committed by the learned Industrial Tribunal in regularizing the services of the members of respondent No. 2 union. 15. It has also been contended by the learned Counsel for respondent No. 2 that while exercising power under Article 226 of the Constitution of India, this Court is not sitting in appeal against the award passed by the Industrial Tribunal and, therefore, also the petition deserves to be dismissed. 16. Having heard learned Counsel for both the sides and looking to the award passed by the Central Government Industrial Tribunal No. I, Dhanbad, in Reference No. 8 of 1995 (Annexure 3 to the memo of present petition), I hereby quash and set aside the same mainly for the following facts and reasons: (i) It appears that the main activity of the petitioner is coal mining activity. It is a public sector undertaking, owned, managed and controlled by the Central Government. Coal is to be excavated by mining operations and has to be brought out from the mines. Coal is coming on the surface through iron trolleys/tubs from the mines, below the earth. Therefore, as and when the iron tubs are meeting with an accident, they are being damaged. Therefore, they require repairing or to be brought into proper shape again for their re-uses and, therefore, as and when accident arises and damages caused, the trolleys/tubs are required to be repaired. This work was assigned at the most to the workers of the contractor, as contended by the learned Counsel for the petitioner. Therefore, they require repairing or to be brought into proper shape again for their re-uses and, therefore, as and when accident arises and damages caused, the trolleys/tubs are required to be repaired. This work was assigned at the most to the workers of the contractor, as contended by the learned Counsel for the petitioner. As per the Management: Witness No. 1, looking to this aspect of the matter, it cannot be said that repairing of iron trolleys or tubs was the main or regular activity of the petitioner. This aspect of the matter has been lost sight of by the learned Industrial Tribunal. Even if frequent repairing is being done by the repairers, it can never be said that a regular work of petitioner was assigned by the petitioner to the workers. Neither repairing nor frequent repairing, of iron tubs will make 'Repairing activity' a regular nature of work of petitioner mining company, because repairing depends upon damage to iron trolleys/tubs, and damage to tubs depends upon accident. Thus, repairing of tubs is an accidental phenomena and, therefore, it can never be lebelled as regular/routine work of a mining company i.e. petitioner and, therefore, the members of respondent No. 2 union, are not entitled for regularization. (ii) It also appears from the evidence of Sri Deo Narayan Mistri and Sri D.P. Tiwary that the repairing work was assigned only in the year, 1988 and in 1989. Reference was filed in the year, 1995. Award was passed in the year, 2002. Never after 1989 the work was given of repairing of trolleys/tubs to the members of respondent No. 2 union and, therefore, also they could not have been regularized by the learned Industrial Tribunal. (iii) It also appears that the Industrial Tribunal has not appreciated that the alleged registers, upon which the whole award has been passed in favour of the members of respondent No. 2 union, is having no evidentiary value, because they were never counter-signed by the petitioner. Secondly, they were never presented by the petitioner. Thirdly, they were never maintained by the Management and fourthly, a workman cannot present before the Industrial Tribunal from their own custody, privately maintained registers. Otherwise, there could have been many more employees in that register and presence mark will also be there. Secondly, they were never presented by the petitioner. Thirdly, they were never maintained by the Management and fourthly, a workman cannot present before the Industrial Tribunal from their own custody, privately maintained registers. Otherwise, there could have been many more employees in that register and presence mark will also be there. Unnecessarily, weight age has been given to such registers by the Industrial Tribunal, as referred in paragraph No. 6 of the award. The evidenciary value ought to have been properly appreciated by the Industrial Tribunal. From nil value of evidence, it cannot be given a hundred percent weightage, as there can be small variation in the weightage of the evidence, but, if there is a total departure from the aforesaid rule, them it is much nearer to non-application of mind by the Industrial Tribunal. If this type of registers are allowed and if full weightage is given to such type of privately maintained registers, then any body's services can be regularized. Neither the registers contain any signature of the officers of Management nor they are properly stamped by the Management side nor the same were coming from the custody of the Management and, therefore, the services of the employees cannot be regularized on the basis of the presence registers, produced before the Industrial Tribunal from the custody of the workmen. Thus, there is error apparent on the face of record and, therefore, also the award passed by the Industrial Tribunal deserves to be quashed and set aside. (iv) It has been held by the Hon'ble Supreme Court in the case of Gangadhar Pillai Vs. Siemens Ltd., 2007 (1) SCC 533 , at paragraph No. as under: “28. It is not the law that on completion of 240 days of continuous service in a year, the employee concerned becomes entitled to for regularization of his services and/or permanent status. The concept of 240 days in a year was introduced in the industrial law for a definite purpose. Under the Industrial Disputes Act, the concept of 240 days was introduced so as to fasten statutory liabilities upon the employer to pay compensation to be computed in the manner specified in Section 25F of the Industrial Disputes Act, 1947 before he is retrenched from services and not for any other purpose. Under the Industrial Disputes Act, the concept of 240 days was introduced so as to fasten statutory liabilities upon the employer to pay compensation to be computed in the manner specified in Section 25F of the Industrial Disputes Act, 1947 before he is retrenched from services and not for any other purpose. In the event a violation of the said provision takes place, termination of services of the employee may be found to be illegal, but only on that account, his services cannot be directed to be regularized. Direction to reinstate the workman would mean that he gets back the same status.” (Emphasis supplied) (v) It has also been held by the Hon'ble Supreme Court in the case of Indian Drugs and Pharmaceuticals Ltd. Vs. Workman, Indian Drugs and Pharmaceuticals Ltd., 2007 (1) SCC 408 , at paragraph Nos. 37, 38 and 47 as under: “37. Creation and abolition of posts and regularization are purely executive functions vide P.U. Joshi v. Accountant General. 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. 38. The respondents have not been able to point out any statutory rule on the basis of which their claim of continuation in service or payment of regular salary can be granted. It is well settled that unless there exists some rule no direction can be issued by the court for continuation in service or payment of regular salary to a casual, ad hoc, or daily-rated employee. Such directions are executive functions, and it is not appropriate for the court to encroach into the functions of another organ of the State. The courts must exercise judicial restraint in this connection. The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated. Judicial activism in some extreme and exceptional situations can be justified, but resorting to it readily and frequently, as has lately been happening, is not only unconstitutional, it is also fraught with grave peril for the judiciary. 47. The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated. Judicial activism in some extreme and exceptional situations can be justified, but resorting to it readily and frequently, as has lately been happening, is not only unconstitutional, it is also fraught with grave peril for the judiciary. 47. We are of the opinion that if the court/tribunal directs that a daily-rated or ad hoc or casual employee should be continued in service till the date of superannuation, it is impliedly regularizing such an employee, which cannot be done as held by this Court in Secy., State of Karnataka v. Umadevi and Ors. decisions of this Court. (Emphasis supplied) (vi) It has also been held by the Hon'ble Supreme Court in the case of Hindustan Aeronautics Ltd. Vs. Dan Bahadur Singh and Others, 2007 (6) SCC 207 , at paragraph No. 18 as under: “18. The next question which requires consideration is whether completion of 240 days in a year confers any right on an employee or workman to claim regularization in service. In Madhyamik Shiksha Parishad v. Anil Kumar Mishra it was held that the completion of 240 days' work does not confer the right to regularization under the Industrial Disputes Act. It merely imposes certain obligations on the employer at the time of termination of the services. In M.P. Housing Board v. Manoj Shrivastava (para 17) after referring to several earlier decisions it has been reiterated that it is well settled that only because a person had been working for more than 240 days, he does not derive any legal right to be regularized in service. This view has been reiterated in Gangadhar Pillai v. Siemens Ltd. The same question has been examined in considerable detail with reference to any employee working in a government company in Indian Drugs & Pharmaceuticals Ltd. v. Workmen and paras 34 and 35 of the Report are being reproduced below: (SCC p. 426) “34. 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 dehors the rules. In the case of E. Ramakrishnan v. State of Kerala this Court held that there can be no regularization dehors the rules. The same view was taken in Kishore (Dr.) v. State of Maharashtra and Union of India v. Bishamber Dutt. Regularization can only be done in accordance with the rules and not dehors the rules. In the case of E. Ramakrishnan v. State of Kerala this Court held that there can be no regularization dehors the rules. The same view was taken in Kishore (Dr.) v. State of Maharashtra and Union of India v. Bishamber Dutt. 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. “35. In Surinder Singh Jamwal (Dr.) v. State of J & K, it was held that ad hoc appointment does not give any right for regularization as regularization is governed by the statutory rules.” (Emphasis supplied) (vii) In view of the aforesaid ratio decidenci, propounded by the Hon'ble Supreme Court, a court cannot create the posts. Even if any persons has worked for 240 days in a year, there cannot be mathematically regularization in the services. Creation of posts is an executive function. Under the broader umbrella of separation of powers, court will be extremely slow in performing executive function. There cannot be a regularization dehors the rules. Always the regularization should be in accordance with the rules or policy. The workmen who agitated industrial dispute could not establish before the Industrial Tribunal any rules, regulations or policy for regularization. On the contrary, it has been vehemently contended by the learned Counsel for the petitioner that in pursuance of the provisions under the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 it is obligatory on the part of the Public Sector Undertaking i.e. the petitioner to call for the names of unemployed youth and, thereafter, looking to the nature of work before giving employment, Management may hold either oral interview or written test or both for appointment. There is no other procedure with the present petitioner. Thus, regularization of services of the members of respondent No. 2 union could not have been awarded by the Industrial Tribunal. 17. As a cumulative effect of the aforesaid facts and reasons and the judicial pronouncements, I hereby quash and set aside the award passed by the Central Government Industrial Tribunal No. I, Dhanbad, in Reference No. 8 of 1995 dated August 16, 2002 (Annexure 3 to the memo of present petition). 17. As a cumulative effect of the aforesaid facts and reasons and the judicial pronouncements, I hereby quash and set aside the award passed by the Central Government Industrial Tribunal No. I, Dhanbad, in Reference No. 8 of 1995 dated August 16, 2002 (Annexure 3 to the memo of present petition). As initially, stay was already granted at the time of admission of this writ petition, the members of respondent No. 2 union are not employed with the petitioner. This writ petition is, thus, allowed with no order as to costs. Writ Petition allowed.