JUDGMENT : GOUTAM BHADURI, J 1) In this writ petition filed under Article 226/227 of the Constitution of India, the challenge is made to the order dated 27.07.2006 passed by the State Industrial Court of Chhattisgarh, Raipur in Civil Appeal No. 183/ MPIR Act/2003 (Annexure P-1) and Order dated 29.07.2003 passed by the Labour Court Bilaspur in Case No.98/MPIR Act/99 by which the learned Labour Court has directed the petitioner to regularize the service of the contractor’s employees. 2) Respondent no.3 Audhyogik Kshetra Mazdoor Sangh which was affiliated to Bhartiya Mazdoor Sangh through its Vice President filed an application u/s 31(3) of MPIR Act before the Labour Court, Bilaspur, claiming regularization of the employees working with the Petitioners’ Company Bharat Earth Movers Ltd (for short “BEML”). The names of beneficiaries were listed in Schedule-A of the petition under Section 31. The Labour Court passed the order in favour of respondent no.3 Audhyogik Kshetra Mazdoor Sangh which was subject of challenge before the Industrial Court. The Industrial Court too affirmed the order of Labour Court (Annexure P-1). Hence, this petition by the petitioner/ Company who is employer. 3) A perusal of the record would show that Audhyogik Kshetra Mazdoor Sangh affiliated by Bhartiya Mazdoor Sangh having registration No.4959 through its Vice President filed a petition claiming to be representative of employees Union. The details of the employees were shown in Annexure-A of the petition. According to respondent no.3, the workers were working in the respondent Unit of Bharat Earth Movers Ltd (for short “BEML”) and discharged their duties continuously for more than six months, as such, they were regularized as per the provisions of M.P. Industrial Employment (Standing Order) Act, 1946 and the Rules framed thereunder called as M.P. Industrial Employment (S.O) Rules 1963 (for short “Rules of 1963). The Representative-Union claimed for regularization of services as per Rule 2(i) & 2(vi) of the Rules of 1963. The claim of the workers Union before the Labour Court was that they were shown to be the employees of one Vidya Sagar Pandey, labour supplier, and were contract employees. However, the nature of job was continuous in nature. They stated that they worked on the post for more than six months and therefore acquired the status of permanent employee and accordingly they be regularized. However, the nature of job was continuous in nature. They stated that they worked on the post for more than six months and therefore acquired the status of permanent employee and accordingly they be regularized. 4) The petitioner/employer Company resisted the claim on the ground that the union-workers were the employees of contract labour and the Company does not have any control over the said employees and the entire payment and other emoluments are being paid through labour Contractor who was named as Vidya Sagar Pandey as a labour supplier. It was further stated that according to the bills raised by the labour supplier, the petitioners’ Company used to pay the salary and other emoluments meaning thereby they did not have any direct supervision and control over the workers supplied by the contractor. 5) On the basis of pleadings, the parties adduced their evidence and placed the documents. On behalf of the respondent Union, as many as 19 witnesses were examined and on behalf of the petitioner-employer, 3 witnesses were examined. The Labour Court and the Industrial Court both have concurrently held that the nature of work was perennial or continuous in nature and employees had worked for more than six months in clear vacancy and accordingly the order of regularization was passed which is under challenge before this Court. 6) Learned counsel for the petitioner Company would submit that the burden to prove that the workers were in direct rolls of the Company has not been discharged by the workers Union, instead, certain documents which were filed during trial before the Industrial Court. Though the documents filed by the Union was exhibited but in respect of documents filed by the employer was denied without any sufficient reasons. Therefore, the wrong finding which is not based on evidence has been arrived at. Consequently, it needs to be interfered with by this Court. Though the documents filed by the Union was exhibited but in respect of documents filed by the employer was denied without any sufficient reasons. Therefore, the wrong finding which is not based on evidence has been arrived at. Consequently, it needs to be interfered with by this Court. 7) Per contra, learned counsel for the respondents employees have gone though the statements of witnesses to submit that the evidence in unequivocal terms points out that the nature of job of the respondents’ employees was continuous for more than six months, therefore, they were required to be regularized and the Company though was in hold of the documents did not produce the same during trial, as such, in absence thereof, the adverse inference is required to be drawn, which has correctly been drawn by the learned labour Court as well as the Industrial Court and the order of the Courts below is well merited, which do not call for any interference. 8) I have heard learned counsel for the parties. The Initial the petition was preferred by the Union on behalf of the employees. Witness Arvind Bhale Rao was examined as P.W.1. According to his statement, they have a workers Union named as Audhyogik Kshetra Mazdoor Sangh and he is a member and their Union is affiliated to Bhartiya Mazdoor Sangh. Section 27 of the M.P. Industrial Relations Act, 1960 gives power to represent the employees. Section 27(ii) specifically empowers the Union may represent the employees of such industry wherein he is a member. The statements of witnesses examined on behalf of respondent no.3 shows that that they have unanimously stated that they are the members of the Union. Therefore, the petition preferred before the Labour Court would not be defective one as the Industrial Relations Act 1960 permits the same. 9) In a petition before the Labour Court, it was claimed that the services of employees who were shown in the list (Ex.P-1) be regularized in the employment as the nature of work was continuous and without any stigma they were working in clear vacancies. The M.P. Industrial Employment (Standing Order) Rules, 1963 was operative in the State of Chhattisgarh. Rule 2 defines Classification of Employees and Rule 2(i) speaks about a ‘permanent employee’ and Rule 2(vi) speaks about ‘temporary employee’. The M.P. Industrial Employment (Standing Order) Rules, 1963 was operative in the State of Chhattisgarh. Rule 2 defines Classification of Employees and Rule 2(i) speaks about a ‘permanent employee’ and Rule 2(vi) speaks about ‘temporary employee’. For the sake of convenience, Rule 2(i) and Rule(vi) are reproduced hereunder : 2(i) A ‘permanent employee’ is one who has completed six months’ satisfactory service in a clear vacancy in one or more posts whether as a probationer or otherwise, or a person whose name has been entered in the muster roll and who is given a ticket of permanent employee; …… …… …… … …… …… 2 (vi) ‘temporary employee’ means an employee who has been employed for work which is essentially of a temporary character, or who is temporarily employed as an additional employee in connection with the temporary increase in the work of a permanent nature; provided that in case such employee is required to work continuously for more than six months he shall be deemed to be a permanent employee, within the meaning of clause (i) above 10) Reading of the Rule would show that the employee would be termed to be permanent employee who has completed six months’ satisfactory service in a clear vacancy in one or more posts and entered in the muster roll and is given the ticket of permanent employee and further in case a temporary employee is required to work continuously for more than six months, he shall be deemed to be a permanent employee within the meaning of clause (i) & (ii) of the Rules of 1963. 11) The defence of the petitioner Company was that the union workers are the contract employees and were not in direct rolls of the Company. In the statement of petitioner witnesses, they say that they were directly employed on sham contract though they were in direct roll of the Company and respondent no.3 who was arrayed as a labour supplier was also employee of the Company. The Supreme Court in the matter of Bharat Heavy Electricals Ltd. Vs. Mahendra Prasad Jakhmola 2019 LLR 515 –Para 18 has categorized as to what would be the test to consider whether an employee is in direct roll of the Company instead of Contractor. The Supreme Court in the matter of Bharat Heavy Electricals Ltd. Vs. Mahendra Prasad Jakhmola 2019 LLR 515 –Para 18 has categorized as to what would be the test to consider whether an employee is in direct roll of the Company instead of Contractor. The Court ruled that the essential two conditions are that (i) whether the principal employer pays the salary instead of the contractor; and (ii) whether the principal employer controls and supervises the work of the employee. “18. We, now come to some of the judgments cited by Shri Sudhir Chandra and Ms. Asha Jain. In General Manager, (OSD) Bengal Nagpur Cotton Mills, Rajnandgaon v. Bharat Lala and another 2011 (1) SCC 635 : 2011 (128) FLR 560 (SC) : 2011 LLR 113, it was held that the well recognized tests to find out whether contract labourers are direct employees are as follows: “10. It is now well settled that if the industrial adjudicator finds that the contract between the principal employer and the contractor to be a sham, nominal or merely a camouflage to deny employment benefits to the employee and that there was in fact a direct employment, it can grant relief to the employee by holding that the workman is the direct employee of the principal employer. Two of the well-recognized tests to find out whether the contract labourers are the direct employees of the principal employer are : (i) whether the principal employer pays the salary instead of the contractor; and (ii) whether the principal employer controls and supervises the work of the employee. In this case, the industrial Court answered both questions in the affirmative and as a consequence held that the first respondent is a direct employee of the appellant”.(Emphasis supplied) 12) Therefore, in view of the aforesaid application of law, the test would be as to whether the said conditions exist. In order explore the same, the evidence of the parties were perused. The applicants unanimously stated that they were working in the Company of BEML in different capacities. They have further stated that their work was being allocated by the Company and their payment of wages/salaries was also being made by the Company. They further stated that the ESI and PF amounts were also paid by the Company BEML. However, they were not paid as a regular employee. They have further stated that their work was being allocated by the Company and their payment of wages/salaries was also being made by the Company. They further stated that the ESI and PF amounts were also paid by the Company BEML. However, they were not paid as a regular employee. They have stated that the medical facilities, T.A., D.A., HRA, supply of Uniforms etc., extended to the regular employees is not being paid to them. All they have stated that neither they were served with any show-cause notice or any charge sheet nor were ever punished at any time. 13) In respect of P.W.1, the document is produced as Ex.P-3(C) which is issued by the employer BEML wherein it is written that he was working as Store Clerk-cum-Typist on casual basis since January 1990 and the said letter was of the year 1990. The employees PF & ESI deductions receipts of different employees have been produced as Ex.P-4C, Ex.P- 5C, Ex.P-9-C, P-10C, P.11C. P-12 C, P- 13, P-14C, 15-C, 16-C, 17-C, 18C. Thus all documents would show that the employees’ PF deduction was made from the employer BEML. The ESI Corporation Receipts would also go to show that the deductions were made and amounts were paid by the employer BEML. Therefore, it shows that there was prima facie nexus and control by the BEML. 14) Petitioner witness B.V. Krishna Rao, Administrative Officer was examined on behalf of N.A 1 & 2. In his examination-in-chief, he stated that though the employees were working in BEML but they were working as the contract labours under the Vidhyasagar Pandey and the salary was also paid by Vidya Sagar Pandey. He has stated that payment of salary is being made on a bill raised by the labour contractor and accordingly, the same was being paid by the Petitioner Company through its Accountant. He stated that the EPF & ESI of the workers was also being paid by the Labour Contractor. In his cross-examination he admits the fact that certain dispute arose with regard to payment of bonus, which led to filing of cancellation proceeding before the Central Labour Commissioner wherein the petitioner BEML in the capacity of principal employer has paid. He stated that the EPF & ESI of the workers was also being paid by the Labour Contractor. In his cross-examination he admits the fact that certain dispute arose with regard to payment of bonus, which led to filing of cancellation proceeding before the Central Labour Commissioner wherein the petitioner BEML in the capacity of principal employer has paid. In respect of ESI and EPF, the documentary evidence Ex.P-4, Ex.P-5 and Ex.P-9 to Ex.P-19 shows that the deductions regarding payment of EPF and ESI were being made by the BEML as an employer. On the contrary, D.W.1 stated that no document has been produced that the payment was being made by the Contractor towards ESI and EPF and the Company has not produced any document i.e., the Account Statement to demonstrate that payment was being made to the labour contractor. 15) If it was a specific stand that the principal employer had paid the salary instead of contractor, it could have been well established by the producing documents i.e., statement of accounts and the different payment sheets. When this witness D.W.1 was confronted with a document Ex.P-C which shows that it was issued by BEML about working of one worker Arvind Bhale Rao (P.W.1), it was stated that the person who has issued the letter was not authorised to issue such letter. In respect of labour contract, no document was produced and it was admitted that it was not produced. 16) At para 14, he categorically states that either the attendance register or the document relating to wages in respect of workers mentioned in Schedule-A were not presented. At para 18, he further states that non- applicant no.3 was supplier of labour to his organization and the Schedule “A” workers were his contract labourers, however, no such document was produced by them in the proceedings. At para 19 D.W.1 further admits that the proof relating to the license of non-applicant no.3 being a labour contractor has not been produced in this case. However, this witness wants to say that he did not understand the question, ESI and other deductions belong to the employees. At para 19 D.W.1 further admits that the proof relating to the license of non-applicant no.3 being a labour contractor has not been produced in this case. However, this witness wants to say that he did not understand the question, ESI and other deductions belong to the employees. At para 21, he admits the fact that the EPF and ESI of the N.A.3 Vidyasagar Pandey is also deducted from the BEML and at para 22 he expressed doubt whether the payment of ESI or EPF is deducted in the name of Vidyasagar Pandey and to ascertain this fact, the relevant register is not presented in the case nor it is available at the time of evidence on that day. 17) At para 23 of his cross examination, D.W.1 further states that as earlier stated in his main examination and the cross-examination done on behalf of the N.A.3 Vidyasagar Pandey he used to inform the amounts of EPF and ESI of the workers mentioned in Schedule-A and in this regard, no documentary evidence has been produced. Though the witness tried to correct the statement but the primary statement continued. 18) At para 24, D.W.1 categorically states that the workers mentioned in Schedule-A were working in their organisation BEML only. At para 25, the witness states that BEML was not told as to what work would be done by the workers mentioned in Schedule A. There was no list or work division order as to which employee would do what work in their organisation. At para 26, he states that no evidence was produced by the employer in the case that N.A.3 Vidya Sagar Pandey used to give work instructions to the Schedule A employees. He further categorically states at para 27 that the payment of bonus was made to Schedule-A workers in the office of Deputy Labour Commissioner through non- applicants 1 & 2. At para 28, D.W.1 states that many of the employees mentioned in Schedule-A were already employed before joining the work of BEML. 19) In sum and substance, a perusal of cross examination of D.W.1 apparently shows that D.W.1 admits that the workers mentioned in Schedule-A which was filed along with the petition before the labour Court, were working at BEML only and the work division was also produced. 19) In sum and substance, a perusal of cross examination of D.W.1 apparently shows that D.W.1 admits that the workers mentioned in Schedule-A which was filed along with the petition before the labour Court, were working at BEML only and the work division was also produced. He further admits that no document was produced to show before the labour Court that they were under the control of Vidya Sagar Pandey. Thus the over-all assessment of his statements, therefore, would show that the Company though projected that the employees were engaged by the contractor, but the contract agreement or other document was not produced. On the contrary, the employees have filed certain documents which lead to draw the inference that they were merely working in the Petitioner Company. 20) Likewise, D.W.2 A.K. Kanth states that Vidya Sagar Pandey, N.A. 3, is a labour contractor and all the persons whose names shown in the Schedule-A Annexure were the employees working under Vidya Sagar Pandey who is representative of the Union and they belonged to Vidya Sagar Pandey However, in the cross examination at para 14, he categorically admits that Schedule A workers were working with BEML only. 21) D.W.3 B.N. Dey Accounts Officer states that Vidya Sagar Pandey N.A.3 used to supply labour and the bills for payment at the end of the month as per their number and attendance, on the basis of which, the Company makes payment. In cross examination at para 4, he states that whatever he told in the main examination regarding the process of payment to non-applicant no.3, the document was there but was not produced. He states that he does not know as to whether or not any cheques or details to be furnished with regard to payment are presented or not . Therefore, his cross examination would show that no documents were produced. It was only an oral statement. 22) Hence, applying the test which has been laid down by Supreme Court prima facie it was established that the principal employer pays the salary of the workers instead of contractor of labour supplier and they were under the control of the principal employer BEML. Even if any document of contract of supplier was existing, that documents should have been produced before the Court. Even if any document of contract of supplier was existing, that documents should have been produced before the Court. When the documentary evidence is withheld and the main defence is based on that evidence, the adverse inference was required to be drawn. Accordingly, I am of the view that the concurrent findings arrived at by both the Industrial Court as well as labour court with regard to the status of respondent employees that they were in direct control and were paid salaries by the Company do not call for any interference as no perversity can be attached to it. Accordingly, the petition sans merit and is dismissed.