JUDGMENT : 1. Heard learned counsel for the petitioner, Mr. Anoop Kumar Mehta and Learned senior counsel for the respondent Mr. V.P. Singh assisted by learned counsel Mr. Ashok Kr. Sinha. 2. The present writ petition has been filed for quashing the Award dated 08.01.2003 passed by CGIT-I, Dhanbad in Reference No.106 of 1994 whereby the Tribunal has answered the reference in favour of the workmen directing the petitioner-management to reinstate and regularized the service of all the 22 concerned workmen as Plant Cleaning Mazdoor subject to being found medically fit and below the age of superannuation within 60 days from the date of publication of Award and to pay them wages as per the NCWA. 3. From pleading and argument, it appears that the concerned workmen have claimed to be in employment of the petitioner’s company since 1980 as Plant Cleaning Mazdoor. It has been further contended that the management has regularized 161 coworkers as Plant Cleaning Mazdoor, leaving behind these 22 workmen. Subsequently, 64 other workmen have been employed and these 64 workmen have raised industrial dispute which has been referred vide Reference No.258/1990 in which vide Award dated 13.07.1992, order of regularization of these 64 workmen has been passed. Against the said Award, writ petition has been filed by the employer-management being CWJC No.157/1993(R), which has been dismissed and after dismissal of the writ petition, those 64 workmen have been regularized. Thus the workmen involved in the present reference have been discriminated as they have not been allowed to work w.e.f. 18.02.1993 and since then they are out of employment. 4. It has been further contended that they have raised an industrial dispute by submitting required application through Union on 03.10.1991. It has been referred for conciliation and while conciliation was pending, they have been stopped from working w.e.f. 18.02.1993. 5. On the other hand, employer has denied that the respondent-workmen were ever working with them. 6. The industrial dispute raised by the respondent-workmen has been finally referred for adjudication vide Reference No.106/1994. 7. The terms of reference are as follows: “Whether the action of the management of Dugda Coal Washery of BCCL, P.O. Dugda, Dt. Dhanbad in not regularizing S/Sh. Moti Mahato and 21 others (as per list attached) is legal and justified? If not, to what relief are the concerned workmen entitled?” 8. 7. The terms of reference are as follows: “Whether the action of the management of Dugda Coal Washery of BCCL, P.O. Dugda, Dt. Dhanbad in not regularizing S/Sh. Moti Mahato and 21 others (as per list attached) is legal and justified? If not, to what relief are the concerned workmen entitled?” 8. After considering the argument and material brought on record by the parties, the Award has been answered in following terms: “That award is, thus, made hereunder: The action of the management of Dugda Coal Washery of M/s B.C.C.L. Ltd. in not regularizing the concerned workmen is not legal and justified and all those 22 concerned workmen deserve to be regularized in services of the management. Consequently, the management is hereby directed to reinstate and regularize the services of all the twenty two (22) concerned workmen (as per list attached with the order of reference) as plant cleaning mazdoors subject to being found medically fit and below the age of superannuation, within sixty days from the date of publication of the award and to pay them wages as per NCWA.” 9. Learned counsel for the petitioner has assailed the Award raising following points: I. One of the grounds for allowing reference is that workmen were employed under the prohibitory category of employment which is per se illegal but there is no evidence on record to suggest prohibitory nature of work. II. The workmen have admitted that salary was being paid by the contractor as they were appointed by him and therefore, there is no existence of employer-employee relationship between the employer and the concerned persons and as such, the relationship of employer and employee has been disputed. Reference has been made to the judgment rendered by the Apex Court in the case of Bengal Nagpur Cotton Mills reported in (2011) 1 SCC 635 , International Airport Authority reported in (2009) 13 SCC 374 , Balwant Rai Saluja & Anr. Vs Air India Ltd. & Ors. reported in (2014) 9 SCC 407 and BHEL Vs Mahindra Prasad reported in (2019) SCC Online SC 382. It has been held by the Apex Court that in order to establish employer-employee relationship the relevant factors has to be taken into account : i. Who appoints the Worker? ii. Who pays the Salary/remuneration? iii. Who has the authority to dismiss? iv. Who can take disciplinary action? It has been held by the Apex Court that in order to establish employer-employee relationship the relevant factors has to be taken into account : i. Who appoints the Worker? ii. Who pays the Salary/remuneration? iii. Who has the authority to dismiss? iv. Who can take disciplinary action? Referring to above judgment, argument has been advanced that the workmen has failed to prove that there was employer employee relationship and especially there is no evidence to establish the parameter as crystallized by the above judgment. The contract workers ipso facto cannot be treated as worker of the principle employer merely because they have been engaged in prohibitory nature of work. Further the work performed by the respondent-workmen was not prohibitory as no evidence is available on record. For this purpose, learned counsel for the petitioner has relied upon the judgment as noted above. Finding has been recorded that contract was sham, bogus and camouflage on the basis of perennial nature of work relying upon Section 10 (1) of the CLRA Act is per se not sustainable in view of judgment reported in 2009 13 SCC 374 , in the case of International Airport Authority of India Vrs. International Air Cargo Workers’ Union which has been subsequently followed in Director Steel Authority of India Ltd. Vrs. Ispat Khadan Janta Mazdoor Union reported in 2019 SCC online SC 831. III. The petitioner has also failed to prove that he has worked continuously for 240 days by placing sufficient evidence on record and as such the order of regularization is not sustainable. IV. On the date of reference, respondent-workmen were not on the role of either contractor or company and as such no order of regularization can be passed. For this purpose, learned counsel for the petitioner has relied upon the judgment reported in 2015 4 SCC 71 , in the case of Oshiar Prasad and Ors. Vrs. Employers in relation to Management of Sudamdih Coal Washery of M/s Bharat Coking Coal Limited, Dhanbad, Jharkhand. V. Lastly argument has been advanced that the petitioner has claimed to be working since 1980 and out of employment since 18.02.1993 and after lapse of such a long period, no order of regularization can be passed. 10. Vrs. Employers in relation to Management of Sudamdih Coal Washery of M/s Bharat Coking Coal Limited, Dhanbad, Jharkhand. V. Lastly argument has been advanced that the petitioner has claimed to be working since 1980 and out of employment since 18.02.1993 and after lapse of such a long period, no order of regularization can be passed. 10. Per contra, learned counsel for the respondents has defended the Award on following grounds: i. One of the ground for passing the Award in favour of the workmen is parity as 161 similarly situated workmen have been regularized in service by the petitioner-management in the year 1981. Subsequently, 64 workmen have been ordered to be regularized vide Award dated 13.07.1992 in Reference No.258/1990 which has been upheld by the High Court in CWJC No.157/1993 (R) and on the basis of above order the said 64 workmen have been regularized, but these 22 workmen have been discriminated and as such on the principle of parity, the order of regularization is justified and in accordance with law. ii. The Tribunal has recorded the finding after considering the evidence brought on record and finding of fact cannot be disturbed by the Writ Court under Article 226 of the Constitution of India. iii. So far as termination of service w.e.f. 18.02.1993 is concerned, this is after raising of the industrial dispute i.e. 03.10.1991 and during the conciliation proceeding and as such on this ground, regularization cannot be refused. 11. Perused the record of the case and heard learned counsel for the parties. From the record, it appears that two witnesses have been examined on behalf of the workmen, one is being the affected workmen and another is the member of the Union. 12. Three documents have been exhibited being W-1, W-2 and W-3. 13. Ext-W1 is the application for issuance of gate passes. 14. Ext-W2 is the judgment of the High Court passed in CWJC No.157/1993(R) dated 17.01.1994 whereby the Award dated 13.07.1992 passed in Reference No.258/1990 has been affirmed. 15. Ext-W3 is the Award dated 13.07.1992 passed in Reference No.258/1990. 16. The management has produced two witnesses which has been marked as MW-1 and MW-2. 17. MW-1 is Shri Shah Hussain Azad (Superintending Engineer) 18. MW-2 is Devendra Singh (Superintending Engineer in Dugdadih Washery) 19. M-1 is the photo copy of the letter dated 30.01.1994. 20. M-2 is enclosure of the above letter. 21. 16. The management has produced two witnesses which has been marked as MW-1 and MW-2. 17. MW-1 is Shri Shah Hussain Azad (Superintending Engineer) 18. MW-2 is Devendra Singh (Superintending Engineer in Dugdadih Washery) 19. M-1 is the photo copy of the letter dated 30.01.1994. 20. M-2 is enclosure of the above letter. 21. The above exhibits suggest the implementation of the Award dated 08.01.2003. So far as first point raised by the writ petitioner regarding employer employee relationship. 22. Reference can be made to the judgment in the case of Balwant Rai Saluja & Anr. Vs Air India Ltd. & Ors. (supra). Relevant paragraphs 61 to 65 are quoted here-in-under: 61. Further, the above case made reference to International Airport Authority of India case wherein the expression “control and supervision” in the context of contract labour was explained by this Court. The relevant part of International Airport Authority of India case, as quoted in Bengal Nagpur Cotton Mills case is as follows: (Bengal Nagpur Cotton Mills case, SCC pp. 638-39, para 12) “12. ‘38. … if the contract is for supply of labour, necessarily, the labour supplied by the contractor will work under the directions, supervision and control of the principal employer but that would not make the worker a direct employee of the principal employer, if the salary is paid by a contractor, if the right to regulate the employment is with the contractor, and the ultimate supervision and control lies with the contractor. 39. The principal employer only controls and directs the work to be done by a contract labour, when such labour is assigned/allotted/sent to him. But it is the contractor as employer, who chooses whether the worker is to be assigned/allotted to the principal employer or used otherwise. In short, worker being the employee of the contractor, the ultimate supervision and control lies with the contractor as he decides where the employee will work and how long he will work and subject to what conditions. Only when the contractor assigns/sends the worker to work under the principal employer, the worker works under the supervision and control of the principal employer but that is secondary control. The primary control is with the contractor.’ (International Airport Authority of India case, SCC p. 388, paras 38-39)” 62. A recent decision concerned with the employer-employee relationship was that of Nalco case. The primary control is with the contractor.’ (International Airport Authority of India case, SCC p. 388, paras 38-39)” 62. A recent decision concerned with the employer-employee relationship was that of Nalco case. In this case, the appellant had established two schools for the benefit of the wards of its employees. The writ petitions were filed by the employees of each school for a declaration that they be treated as the employees of the appellant company on grounds of, inter alia, real control and supervision by the latter. This Court, while answering the issue canvassed was of the opinion that the proper approach would be to ascertain whether there was complete control and supervision by the appellant therein. In this regard, reference was made to Dharangadhra Chemical Works case wherein this Court had observed that: (Nalco case, SCC pp. 768-69, para 22) “22. ‘14. The principle which emerges from these authorities is that the prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work, or to borrow the words of Lord Uthwatt at p. 23 in Mersey Docks and Harbour Board v. Coggins& Griffith (Liverpool) Ltd., “The proper test is whether or not the hirer had authority to control the manner of execution of the act in question”.’ (Dharangadhra Chemical Works case, AIR p. 268, para 14)” (emphasis supplied) 63. The Nalco case further made reference to Workmen of Nilgiri Coop. Mktg. Society Ltd. v. State of T.N., wherein this Court had observed as follows: (Nalco case, SCC p. 771, para 27) “27. ‘37. The control test and the organisation 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: (a) 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. 38. 38. With a view to find out reasonable solution in a problematic case of this nature, what is needed is an integrated approach meaning thereby integration of the relevant tests wherefor it may be necessary to examine as to whether the workman concerned was fully integrated into the employer’s concern meaning thereby independent of the concern although attached therewith to some extent.’ (Workmen of Nilgiri Coop. Mktg. Society case, SCC p. 529, paras 37-38)” 64. It was concluded by this Court in Nalco case that there may have been some element of control with Nalco because its officials were nominated to the Managing Committee of the said schools. However, it was observed that the above said fact was only to ensure that the schools run smoothly and properly. In this regard, the Court observed as follows: (SCC p. 772, para 30) “30. … However, this kind of ‘remote control’ would not make Nalco the employer of these workers. This only shows that since Nalco is shouldering and meeting financial deficits, it wants to ensure that the money is spent for the rightful purposes.” 65. Thus, it can be concluded that the relevant factors to be taken into consideration to establish an employer-employee relationship would include, inter alia: (i) who appoints the workers; (ii) who pays the salary/remuneration; (iii) who has the authority to dismiss; (iv) who can take disciplinary action; (v) whether there is continuity of service; and (vi) extent of control and supervision i.e. whether there exists complete control and supervision. As regards extent of control and supervision, we have already taken note of the observations in Bengal Nagpur Cotton Mills case, International Airport Authority of India case and Nalco case. 23. The above judgment is suggestive that employer-employee relation has to be determined on the basis of facts of the particular case. The control test or organization test or whether it is contract of service or contract for service or whether the employer had set up the contractor by way of a smoke screen with a view to avoid its statutory liability, has to be determined with reference to the particular facts of the case. 24. In the present case, after considering the evidence brought on record, finding has been recorded by the Tribunal that the concerned workman has worked with the petitioner-company. The nature of work is perennial and especially the similarly situated workmen has been regularized. 24. In the present case, after considering the evidence brought on record, finding has been recorded by the Tribunal that the concerned workman has worked with the petitioner-company. The nature of work is perennial and especially the similarly situated workmen has been regularized. It has been considered that all the workmen working in the coal washery have been regularized except the present set of workmen. 25. In the judgment reported in (2015) 4 JCR 673 in the case of Employer in relation to the Management of Rajrappa Washery of Central Coalfields Ltd. Vrs. The Presiding officer, Central Government Industrial Tribunal No.1, Dhanbad & Anr, this Court in similar fact has upheld the Award passed in Reference Case No. 59/1992 for regularization of the workmen working in Rajrappa Coal Washery. 26. Thus, it appears that all such workmen, who were working under the Coal Washery have been regularized by the Management either on its own or on the basis of Award passed in reference and upheld by the Courts. 27. Article 14 of the Constitution of India mandates that similarly situated workman should be treated similarly. Further the national litigation policy also adopts the principle that if an issue stands settled then the same should be extended to the similarly situated person also. In labour jurisprudence giving equal treatment to the similarly situated labours is the settled principle of law. 28. Merely on the ground that the present reference is of the year 1994 and the writ petition is of the year 2003 while the same is being disposed of in the year 2019, the labourers should not be denied benefits of regularization. 29. Parity is the command of Article 14 of the Constitution of India. Negative parity certainly does not exist in the rule of law but positive parity is the command of Article 14 of the Constitution of India and has to be implemented by courts. 30. In the present case, one set of workmen (161) has been regularized by the Management himself in the year 1980. These regularized workmen were the co-workers of the present respondent-workmen. Subsequently, 64 more workmen have been regularized in view of Reference No. 258 of 1990. Only these 22 workmen cannot be discriminated on the strength of one or other technical ground. 31. These regularized workmen were the co-workers of the present respondent-workmen. Subsequently, 64 more workmen have been regularized in view of Reference No. 258 of 1990. Only these 22 workmen cannot be discriminated on the strength of one or other technical ground. 31. Thus, in view of above discussion, this Court finds that Tribunal has given the Award on the basis of parity and this requires no interference by this Court. Accordingly, the present writ petition stands dismissed.