JUDGMENT : HEMANT M. PRACHCHHAK, J. 1. Present petition is filed under Articles 226 and 227 of the Constitution of India and under the provisions of the Industrial Disputes Act, 1947 and under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 with the following reliefs: “(A) A writ of certiorari and/or a writ in the nature of certiorari and/or any other appropriate writ, order or direction be issued to quash and set aside award dated 13.03.2020 passed in Reference (I.T.) No. 51 of 2019 by learned Industrial Tribunal, Bhavnagar and further may be pleased to reject the Reference of respondent No. 1. (B) Pending the admission, hearing and final disposal of this petition, this Hon’ble Court may be pleased to stay the execution, implementation and operation of award dated 13.03.2020 passed in Reference (I.T.) No. 51 of 2019 by learned Industrial Tribunal, Bhavnagar. (C) Any other and further relief or reliefs to which this Hon’ble Court deemed fit, in the interest of justice may kindly be granted. 2. Brief facts of the present petition, in nutshell, are as under: 2.1 The petitioner is a public utility service in generating electricity and its monitoring company is the Gujarat Urja Vikas Nigam Limited. That one Mr. Surubha Sajubha Goil is a registered contractor working in the establishment of the petitioner and there is established set up for fireman, leading fireman, driver-cum-operator and supervisor in the company. The concerned employees are the persons of contractor-respondent No. 2 who were engaged as the employees of the petitioner through the contractor. It is contended that respondent No. 1 that the contract made between the petitioner and respondent No. 2 is not genuine, fair and bona fide but it is sham and bogus and on that basis they adopted unfair labour practice. The workers are being exploited by paying far than the actual salary drawn by the contractor on behalf of the employees. There is no fixed working hours and therefore all the workers joined with respondent No. 2 through the union and submitted statement of claim contending that the employees possessed requisite qualifications prescribed by respondent No. 1 and hence they were appointed on the post sanctioned by respondent No. 1 through the contractor only for the purpose to escape from monetary liability. The employees are working 365 days in a year and they are illegally paid minimum wages. The employees are working 365 days in a year and they are illegally paid minimum wages. The employees are continuously working for more than four to five years under the supervision of respondent No. 1, however, the respondent No. 1 and the contractor has adopted unfair labour practice. 3. After considering the submissions and the material on record, the Tribunal has partly allowed the reference and directed the petitioner to consider the workmen as its permanent employees. 4. Being aggrieved and dissatisfied with the impugned award, the petitioner has preferred the aforesaid petition. 5. Heard Mr. Dipak Dave, learned counsel appearing for the petitioner and Mr. T.R. Mishra, learned counsel appearing for respondent No. 1 and Mr. Vatsal Parikh, learned counsel appearing for respondent No. 2 at length. An affidavit-in-reply and the affidavit-in-rejoinder have been filed by the respective parties. 6. Mr. Dave, learned counsel appearing for the petitioner has submitted the same facts which are narrated in the memo of petition and has submitted that the Tribunal exceeded its jurisdiction in adjudicating the reference and holding that the contract is sham, bogus and camouflage and the petitioner is a government company and it has its own rules and regulation and the workmen were appointed by the contractor and, therefore, in view of the aforesaid aspects, no relief of permanency could have been granted. He has submitted that the concerned contractor is having valid licence and the contract was not prohibited under the Contract Labour (Regulation and Abolition) Act, 1970 and, therefore, the Tribunal could not have made workmen of the contractor permanent in the establishment and there is no iota of evidence produced by the concerned workmen to show that they have been appointed by petitioner and reference of permanency was required to be rejected. It is submitted that the contract is not prohibited and the contractor is having valid licence and though the workmen have been appointed by contractor and they were working for the contractor, the wages have been paid by the contractor and the supervision was made by the contractor over the work and, therefore, the wages were paid by the contractor. It is submitted that the contract is not prohibited and the contractor is having valid licence and though the workmen have been appointed by contractor and they were working for the contractor, the wages have been paid by the contractor and the supervision was made by the contractor over the work and, therefore, the wages were paid by the contractor. He has submitted that the petitioner has established the setup of fireman and others for which the recruitment on regular sanctioned posts and the employees were the persons of the contractor and there is no relationship of employer-employees with the petitioner, but the relation is only through the contractor and, therefore, the dispute does not fall within the purview of Section 2(k) of the Act and hence, the employees have no right to file the reference. He has submitted that on assumption and presumption, the Tribunal has observed that the workmen were interviewed by the employer and, thereafter, given appointment, however, such observation is not tenable in the eyes of law. He has submitted that the contractor has produced wage register before the Tribunal to prove the fact that the payment was made by him, but in fact, the workmen have admitted that payment was being made by the concerned contractor and they have admitted that their work was supervised by the supervisor appointed by the contractor. He has submitted that despite overwhelming evidence on record, the Tribunal has held that the work was supervised by the petitioner. Thus the finding recorded by the Tribunal is perverse and contrary to the evidence on record and erred in recording several tests in favour of the workmen. It is submitted by Mr. Dave, learned counsel that in absence of any disciplinary action, the Tribunal ought not to have held that since there is no disciplinary action is taken and there is omission in contract with regard to taking of disciplinary action, contract labour itself is defective and thus the finding recorded by the Tribunal is perverse and contrary to the law. He has submitted that the petitioner has never appointed and/or taken any interview of the workmen and it is for the contractor to appoint the workmen and in fact there is admission on the part of the workmen that they were appointed by the contractor. He has submitted that the petitioner has never appointed and/or taken any interview of the workmen and it is for the contractor to appoint the workmen and in fact there is admission on the part of the workmen that they were appointed by the contractor. He has submitted that the presence register, wage register, present report, daily work sheet order, allotment letter, report book and shift-wise allotment work sheet are maintained by the contractor and though the said documents are maintained by the contractor, it is kept with the present petitioner would not mean that the contract is on paper and sham and bogus. He has submitted that the entire proceedings are vitiated by several jurisdictional and factual errors and, therefore, the award deserves to be quashed and set aside. He has submitted that the workmen are working since long with the contractor, but the same cannot be made ground to grant relief under the CLRA Act and by virtue of the provision under the CLRA Act, the dictum of the Hon’ble Supreme Court of India as laid down could not have been bye-passed by the Tribunal. He has submitted that the Tribunal has overlooked the decisions relied upon on behalf of the petitioner while passing the impugned award. 6.1 Mr. Dave, learned counsel has submitted that though the workmen are not employees of the employer, it cannot be said that the dispute is under Section 2(K) of the Act. He has submitted that the witnesses have admitted in their examination that the workmen are the employees of the contractor and all are being paid salaries through the contractor. He has submitted that the workmen have not produced any evidence to show that they are the employees of the employer and hence, the impugned award/order deserves to be quashed and set aside. 6.2 Mr. Dave, learned counsel, in support of his submissions, has relied upon the following decisions: (1) Workmen of Nilgiri Co-operative Marketing Society Limited Vs. State of Tamil Nadu, (2004) 3 SCC 514 (2) International Airport Authority of India Vs. International Air Cargo Workers Union, (2009) 13 SCC 374 (3) Steel Authority of India Limited Vs. Union of India, (2006) 12 SCC 233 (4) Oshiar Prasad and others Vs. Employers in Relation to Management of Sudamdih Coal Washery of M/s. Bharat Coking Coal Limited, Dhanbad, (2015) 4 SCC 71 (5) Balwantrai Saluja Vs. International Air Cargo Workers Union, (2009) 13 SCC 374 (3) Steel Authority of India Limited Vs. Union of India, (2006) 12 SCC 233 (4) Oshiar Prasad and others Vs. Employers in Relation to Management of Sudamdih Coal Washery of M/s. Bharat Coking Coal Limited, Dhanbad, (2015) 4 SCC 71 (5) Balwantrai Saluja Vs. Air India Limited, (2014) 9 SCC 407 (6) International Airport Authority of India Vs. International Cargo Workers Union, (2009) 13 SCC 374 (7) General Manager 9OSD) Bengal Nagpur Cotton Mills Vs. Bharatlal and another, (2011) 1 SCC 635 (8) Bharat heavy Electricals Limited Vs. Mahendra Prasad Jakhmola and others, (2019) 13 SCC 83 (9) Dena Nath Vs. National Fertilizers Limited, AIR 1992 SCC 457 (10) Municipal Corporation of Greater Mumbai Vs. K.V. Shramik Sangh and others, (2002) 4 SCC 609 (11) Steel Authority of India Limited Vs. National Union of Waterfront Workers, (2001) 7 SCC 1 (12) Airport Authority of India Vs. Indian Airport Employees Union, 2016 (II) LLJ (Bom.) (13) BHEL Workers Association Vs. Union of India, AIR 1985 SC 409 (14) R.K. Panda and others Vs. Steel Authority of India and others, (1994) 5 SCC 304 7. Mr. Mishra, learned counsel appearing for the respondent - Union has submitted that the Tribunal has not committed any error of facts and law in passing the impugned award. He has submitted that the submissions and averments made in the petition are irrelevant and not acceptable and the petition falls in the realm of appreciation of evidence and, therefore, the petitioner is required to prove apparent error of law or facts to entertain the petition. He has submitted that the impugned award passed by the Tribunal is well-reasoned and based on evidence and, therefore, this Court may not entertain the petition. Mr. Mishra, learned counsel has relied upon the decision of this Court in the case of Steel Authority of India Limited Vs. Gujarat Mazdoor Panchayat and another, 2004 (2) L.L.J 970 wherein this Court has observed in Para-39 as under: “39. As noted earlier, by filing instant petition under Arts. 226 & 227 of the Constitution, the petitioner has claimed writ of certiorari to quash the impugned award of the Tribunal. Therefore, it would be instructive to refer to the scope of jurisdiction to issue a writ of certiorari. As noted earlier, by filing instant petition under Arts. 226 & 227 of the Constitution, the petitioner has claimed writ of certiorari to quash the impugned award of the Tribunal. Therefore, it would be instructive to refer to the scope of jurisdiction to issue a writ of certiorari. This question has been considered by a five judge Constitution Bench of the Supreme Court in Syed Yakoob Vs. Radhakrishnan, (supra). In that case, a notification, calling for applications for the grant of two stage carriage permits for the route Madras to Chidambaram was issued by the State Transport Authority under the Motor Vehicles Act, 1939. Several applications were received. The authority had granted the first permit to one of the applicants and for the second, it was decided to call for fresh applications. The appellant, as also a number of other applicants, had appealed to the State Transport Appellate Tribunal. The Tribunal had confirmed the grant of the first permit and as regards the second, it had allowed the appeal of the appellant and directed that it should be granted to him. Thereupon, the respondent No. 1 had moved the High Court under Art. 226 of the Constitution for the issue of a writ of certiorari and the learned Single Judge, who had heard the matter, had held that the Appellate Tribunal had overlooked relevant considerations and allowed irrelevant considerations to prevail. So holding, the learned Single Judge had made the Rule absolute. A Letters Patent Appeal was preferred by the appellant. The Division Bench had affirmed the order of the learned Single Judge on the ground that the Appellant Tribunal had overlooked material considerations in favour of the respondent No. 1, and dismissed the appeal. The appellant had thereupon approached the Supreme Court by way of Special Leave and contended that in issuing the writ of certiorari, the High Court had exceeded its jurisdiction under Art. 226 of the Constitution. While allowing the appeal, the Supreme Court has made following pertinent observations in paragraph 7 of the reported judgment. “7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. While allowing the appeal, the Supreme Court has made following pertinent observations in paragraph 7 of the reported judgment. “7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised [Vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955 (1) SCR 1104 : AIR 1955 SC 233 ; Nagendra Nath vs. Commr. of Hills Division, 1958 SCR 1240 : All India Reporter 1958 SC 398 and Kaushalya Devi Vs. Bachittar Singh, AIR 1960 SC 1168 .” 7.1 Mr. Mishra, learned counsel has referred to the decision of the Hon’ble Supreme Court in the case of Sabhashanker Dubey Vs. Divisional Forest Officer, (2019) 12 SCC 279 and has submitted that in the said decision the Hon’ble Supreme Court has held that the employees of whatever name namely temporary, casual, contractual, contract are entitled for same wages which is payable to the permanent employees. 7.2 Mr. Mishra, learned counsel has submitted that the Tribunal has, after appreciating the evidence on record, declared the contract labour as sham and bogus and camouflage. He has submitted that the Union has made an application on 31.01.2020 asking to produce Surubha Sajubha Gohil’s original signature, however, the same has not been produced and said Gohil was not able to work or move freely and never come in the premises where the workmen were working. 7.3 In support of his submissions, Mr. Mishra, learned counsel has relied upon the following decisions: (1) Daily Rated Casual Labour Vs. Union of India and others, (1988) 1 SCC 122 (2) Ushaben Joshi Vs. Union of India and others, 2024 INSC 624 (3) Mahanadi Coalfields Limited Vs. Brajrajnagar Coal Mines Workers’ Union, 2024 (3) SCR 627 (4) Gujarat Energy Transmission Corporation Limited Vs. Akhil Gujarat General Mazdoor Sangh and others, Letters Patent Appeal No. 1549 of 2022, dated 22.04.2024 (5) Indian Petrochemicals Corporation Ltd and another Vs. Union of India and others, 2024 INSC 624 (3) Mahanadi Coalfields Limited Vs. Brajrajnagar Coal Mines Workers’ Union, 2024 (3) SCR 627 (4) Gujarat Energy Transmission Corporation Limited Vs. Akhil Gujarat General Mazdoor Sangh and others, Letters Patent Appeal No. 1549 of 2022, dated 22.04.2024 (5) Indian Petrochemicals Corporation Ltd and another Vs. Shramik Sena and others, (1999) 3 SCC 643 (6) Secretary, H.S.E.B. Vs. Suresh and others, (1999) 3 SCC 601 (7) Bharat Heavy Electricals Limited Vs. State of U.P and others, (2004) SCC (L&S) 506 (8) Hussainbhai, Calicut Vs. The Alath Factory Thezhilali Union, Kozhikode and others, (1978) 4 SCC 257 (9) Gujarat Electricity Board, Thermal Power Station, Ukai, Gujarat, (1995) 5 SCC 27 (10) Steel Authority of India Limited Vs. Gujarat Mazdoor Panchayat and another, 2004 (2) L.L.J. 970 (11) Catering Cleaners of Southern Railway Vs. Union of India and another, (1987) 1 SCC 700 (12) Hindalco Industries Limited Vs. Association of engineering Workers, (2009) 1 SCC (L&S) 315 (13) General Manager, Oil and Natural Gas Commissioner, Silchar Vs. Oil and Natural Gas Commission Contractual Workers Union, (2009) 1 SCC (L&S) 661 (14) Steel Authority of India Limited and others Vs. National Union Waterfront workers and others, (2001) SCC (L&S) 1121 (15) Kanpur Suraksha Karamchari Union Vs. Union of India and others, (1988) 4 SCC 478 (16) M.M.R. Khan and others Vs. Union of India and others, 1990 (Supp) S.S.C. 191 (17) Indian Farmers Fertilizers Cooperative Limited Vs. Industrial Tribunal, Allahabad, 2002 (2) LLN 368 8. In rejoinder, it is submitted by Mr. Dave, learned counsel that the following undisputed facts emerge from the record of the Tribunal: (i) The evidence of the employees very clearly suggests that they were appointed by the contractor i.e. respondent No. 2. (ii) The employees have also admitted that they were being supervised by the officers of the Contractor. (iii) The employees have also admitted that they were being paid by the contractor. 8.1 Mr. (ii) The employees have also admitted that they were being supervised by the officers of the Contractor. (iii) The employees have also admitted that they were being paid by the contractor. 8.1 Mr. Dave, learned counsel has submitted that the Tribunal has committed an error in observing that there is no provision in the contract to dismiss any of the employees for misconduct or to initiate disciplinary action against the employees, which would indicate that the contractor has no authority to dismiss or take disciplinary action and hence, the said observation is totally perverse and in fact, there can never be a contract between the petitioner and contractor whereby contractor’s power to hold disciplinary action and/or to appoint and dismiss its employees would be recognized. He has submitted that there is sufficient evidence on record to show that the employees were supervised by respondent No. 2 and were under direct supervision and control over respondent No. 2. The Tribunal has ignored the admission of the employees in their respective depositions. He has submitted that in the evidence of the contractor, it is mentioned that the contractor is having license under the Contract Labour Act, which is ignored by the Tribunal and there is no evidence worth the name to support the case of the employees on the contrary from the material on record, it was admitted by respondent No. 1 that the employees were appointed by the contractor. He has submitted that the Tribunal has recorded that the Contractor is changed but the employees are not changed. In fact, the employees were engaged by Krishna Fire and Safety and on both the occasions, when the tender was published in the year 2015 and 2019, the said contractor was awarded the contract and, therefore, there was no question of change of contractor. He has submitted that the petitioner being government company has to follow statutory rules and regulations for giving contract to third party. The contract is legal entity having valid registration and license and, therefore, it cannot be said that the contract is sham and bogus. 9. Mr. Parikh, learned counsel appearing for respondent No. 2 has submitted that respondent no. 2 is the Legal Representative of the Respondent no. The contract is legal entity having valid registration and license and, therefore, it cannot be said that the contract is sham and bogus. 9. Mr. Parikh, learned counsel appearing for respondent No. 2 has submitted that respondent no. 2 is the Legal Representative of the Respondent no. 2- late Shri Surubha S. Gohil who was a proprietor of M/s. Surubha S. Gohil and has expired on 04.01.2024 pursuant to which Sadguru Enterprise - a partnership firm has taken over the business of M/s. Surubha S. Gohil vide agreement dated 22.02.2024. It is submitted that the present petitioner had floated the tender for Annual Operations and maintenance of Fire Tender (Water and Foam) for the year 2015- 2016 at Bhavnagar for Project site at Village Padava, wherein, the said tender, was awarded to M/s. Surubha S. Gohil in joint venture with Krishna Industrial Security and Fire Service. It is stated that at the relevant point of time the advertisement for recruitment was issued to M/s. Surubha S. Gohil in joint venture with Krishna Industrial Security and Fire Service and accordingly the workmen of the respondent no. 1 are workmen of the respondent no. 2. It is also submitted that subsequently the said contract was extended from time to time and again on 20.09.2016 the LOI was issued to M/s. Surubha S. Gohil with Krishna Industrial Security and Fire Service and in the year 2018 the said-contract was awarded to M/s. Surubha S. Gohil in its individual capacity for two years. It is submitted that thereafter the dispute was raised by respondent no. 1 demanding that the work undertaken by the workmen in fire department of thermal power station of the petitioner is permanent and continuous and by adopting unfair labour practice and they are continued under the guise of the paper arrangement and eye- wash contract and therefore, the workmen are entitled to be considered as permanent workmen of the petitioner. It is submitted that the reference was raised which came to be referred to the Industrial Tribunal where respondent no. 2 had filed its reply wherein it was stated that respondent no. 2 are the contractors who had been awarded the contract after following due process. It was also submitted that respondent no. It is submitted that the reference was raised which came to be referred to the Industrial Tribunal where respondent no. 2 had filed its reply wherein it was stated that respondent no. 2 are the contractors who had been awarded the contract after following due process. It was also submitted that respondent no. 2 would engage the workmen and work as per the work order and having a valid contract license and they are the pay-master and the provident fund is also deducted and deposited in the provident fund code number of the respondent no. 2. It is submitted that respondent no. 2 had also submitted documentary evidence with regard to the contract license, the copy of the work order, attendance register, Salary Register, Provident Fund deduction proof and Bill of the Financial Year 2018-19 vide List of Documents dated 01.01.2020 produced before the Tribunal. It is submitted that the Tribunal has passed an award holding the contract to be mere paper-work, sham, bogus and camouflage. It is submitted that the contractor has been appointed on the basis of the tender which was flouted by the petitioner and being the lowest bidder for the work of Annual Operations and maintenance of Fire Tender (Water and Foam) for the year 2015- 2016 at Bhavnagar for Project site village Padava, respondent no. 2 was awarded the contract. It is also submitted that in the said tender, the individual contractors were invited to submit the bid and considering the bid of respondent no. 2 being a lowest, the contract was awarded to respondent no. 2 and therefore the Tribunal ought to have considered the said aspect before declaring the contract to be sham, bogus and camouflage. Moreover the appointment of the workmen of respondent no. 1 was made on the terms and conditions of respondent no. 2, the pay masters are with respondent no. 2, provident fund is deducted and contributed by respondent no. 2 and respondent no. 2 is having a valid contract labour license. It is submitted that the powers of sanctioning leave, termination etc. was with respondent no. 2 which has not been taken into consideration. Thus, when the said aspects clarify that the workmen are of respondent no. 2 and not the petitioner company, the Tribunal ought not to have declared the contract to be sham and bogus. He has submitted that the Court may pass appropriate orders. 10. was with respondent no. 2 which has not been taken into consideration. Thus, when the said aspects clarify that the workmen are of respondent no. 2 and not the petitioner company, the Tribunal ought not to have declared the contract to be sham and bogus. He has submitted that the Court may pass appropriate orders. 10. This court has considered the submissions made on behalf of both the sides and perused the impugned award and the citation at the Bar. This court has also perused the oral as well as documentary evidence available on record. 11. The following issues are involved in the present petition for determination: (1) Whether the Labour Court has exceeded its jurisdiction and gone beyond the scope of terms of the reference to hold the contract as sham and bogus? (2) Whether the work of the concerned workmen are the members of the respondent-Union treated to be workmen of the petitioner who are originally engaged by the Contractor in the concerned departments and in absence of any prohibitory notification issued by the State Government? (3) Whether the Tribunal has jurisdiction to declare the Contract Labour Act and power to entertain the matter and declare the contract as sham and bogus or not? (4) Whether the Labour Court has overlooked the documents placed by the petitioner in the form of register and tender contract documents and the depositions of the concerned workmen and the supervisor and the contractor and committed an error while appreciating the oral as well as documentary evidence on record? 12. Mr. Dave, learned counsel appearing for the petitioner has pointed out that in the present case at the first instance, the respondent-Union has approached this Court by way of filing Special Civil Application No. 20095 of 2019 at Annexure-E. He has also pointed out that during the pendency of the reference, the workmen have preferred the application at Exhibit 6 and application at Exhibit 33 for interim relief and injunction which came to be rejected by the Tribunal, Bhavnagar and, therefore, the said petition was preferred before this Court. This Court (Coram: Hon’ble Ms. Justice Sonia Gokani), after discussing relevant facts has passed an order on 18.11.2019 and observed in Paras-7 and 8 as under: “7. Reliance is placed on the decision in case of All India General Mazdoor Trade Union (Regd.) v. Delhi Administration & Ors. This Court (Coram: Hon’ble Ms. Justice Sonia Gokani), after discussing relevant facts has passed an order on 18.11.2019 and observed in Paras-7 and 8 as under: “7. Reliance is placed on the decision in case of All India General Mazdoor Trade Union (Regd.) v. Delhi Administration & Ors. 1995 Supp (3) SCC 579 wherein Apex Court considering the peculiar facts in the case before it was of the opinion that since the question is already pending, the workmen involved therein must continue in employment till the question is resolved and if their services are terminated by efflux of time, a contract being for a limited period, the entire grievance of the workman projected through the union would be rendered infructuous and redundant. This Court noticing the subsequent decision of the Apex Court did not endorse to the request of continuing in the service during the pendency. Worthwhile it would be to reproduce relevant paragraphs of the said decision rendered in case of Gujarat Mazdoor Sabha v. Indian Oil Corporation, 2005 (3) GLH 85 : “6. Heard the learned advocates appearing on behalf of the parties. It is to be noted that the main relief, which is sought in the present Special Civil Application is for a direction on the respondent No. 3 Conciliation Officer to complete the conciliation proceedings within the stipulated time and to submit his report to the respondent No. 4 appropriate authority and directing the appropriate authority to take a decision of making a Reference to the Industrial Tribunal. Another prayer is for a declaration that the decision to terminate the concerned workmen pending in conciliation proceedings is illegal and in violation of the provisions of the I.D. Act. It is also required to be noted that the demand raised by the petitioner union is with regard to regularisation, permanency and absorption and to treat the contract labour system and the contract between the respondent No. 1 IOCL and the contractor as sham and bogus, and for a declaration that the concerned workmen are the employees of the respondent No. 1 IOCL and for which the union has already approached the Conciliation Officer. It is the case of the learned Additional Central Government Standing Counsel that the conciliation proceedings are not concluded as there is total noncooperation on the part of the union as well as the respondent No. 1. It is the case of the learned Additional Central Government Standing Counsel that the conciliation proceedings are not concluded as there is total noncooperation on the part of the union as well as the respondent No. 1. Assuming that the Reference is made to the Industrial Tribunal, in that case the main relief would be whether the contract labour system and the contract between the respondent No. 1 IOCL and the contractor is sham and bogus or not and that whether the concerned workmen are the employees of the respondent No. 1 IOCL or not and that will be the final relief which may be granted by the Industrial Tribunal on adjudication. Till final adjudication if any relief is granted by the Industrial Tribunal it cannot be said at this stage that the concerned workmen are the employees of the respondent No. 1 IOCL and that the Contract Labour System and the contract between the respondent No. 1 IOCL and its contractor is sham and bogus. To grant any relief directing the respondent No. 1 and/or the contractor and/or the new contractor would be granting final relief at this stage and that too without any final adjudication by the appropriate Industrial Tribunal. Even in a proceeding under Sections 33 and 33A of the I.D. Act, the Hon’ble Supreme Court in the case of Delhi Cloth & General Mills [supra] has held that the interim relief should not be the whole relief what the workmen could get if they succeed finally and hence pending an application under Section 33A of the Act, the employer could not be directed to give work or to pay the wages by way of interim relief. In another decision in the case of M/s. Anup Engineering Ltd [supra], where the dismissal was without holding domestic enquiry and industrial dispute which was raised was referred to the Labour Court, the Supreme Court has set aside the interim order passed by the Labour Court by which the workman was to be paid the wages, by observing that the interim relief cannot be granted by deciding main issue at interlocutory stage. Now, considering the facts of the present case, it is required to be noted that the proceedings are pending at conciliation stage and even there is no Reference made till date. Now, considering the facts of the present case, it is required to be noted that the proceedings are pending at conciliation stage and even there is no Reference made till date. Therefore, when in a Reference no interim relief can be granted, and if granted it would be allowing and/or granting the main relief, there is no question of granting any relief during pendency of the conciliation proceedings. As stated hereinabove, till date there is no relationship of employer and employee established between the concerned workmen and the respondent No. 1 and there is no adjudication on the question whether the concerned workmen are the employees of respondent No. 1 or not and/or whether the contract is sham or bogus. Under the circumstances, considering the aforesaid two decisions of the Hon’ble Supreme Court and even catena of decisions of the Hon’ble Supreme Court as well as of this Court the proposition is very well established that a Court should not grant any interim relief which can be the main relief after adjudication. Under the circumstances, the prayer of the petitioner (of course orally when in absence of any relief sought for by the petitioner specifically in the present Special Civil Application for directing the respondent No. 1 and/or the contractor to not to discontinue them during the pendency of the conciliation proceedings) cannot be granted. So far as the orders, which are relied upon by the learned advocate appearing on behalf of the petitioner are concerned, apart from the fact that they are not laying down any law and/or not discussing about any law as most of the order are on consensus between the parties, the same cannot be relied upon. On going through the orders which are relied upon by the learned advocate on behalf of the petitioner, it is evident that there is no discussion in the aforesaid orders about the law laid down by the Hon’ble Supreme Court in the aforesaid two decisions and other decisions with regard to grant of interim relief during pendency of the proceedings which will tantamount to grant of main relief, and the same has not been considered at all and therefore all the aforesaid orders are per incurium. 7. There is another reason also why the prayer of the petitioner to direct the respondent No. 1 and/or contract not to discontinue their services should not be granted. 7. There is another reason also why the prayer of the petitioner to direct the respondent No. 1 and/or contract not to discontinue their services should not be granted. It is not in dispute that as on today the concerned workmen are paid the wages through the Contractor only and at present the respondent No. 2 is the contractor and his contract is to expire now on 31st July 2005 and thereafter there will be a new contractor. Nobody knows who will be the new contractor and to direct the respondent No. 1 to insert a clause and add one another condition in the new contract directing such unknown new contractor to continue the present workmen would be directing such new contractor to have the liability of the present workmen when such new contractor is not a party to the present proceedings. Therefore, in absence of a new contractor and/or a proposed contractor, no relief can be granted by which the new contractor will be compelled to accept the liability of the present concerned workmen. Under the circumstances, the request made on behalf of the petitioner directing the respondent No. 1 not to discontinue the workmen and/or in case of a new contractor directing such new contractor to continue the workmen cannot be granted. The learned Single Judge of this Court, in the case of Gujarat Mazdoor Panchayat (supra), has also taken the similar view. The Division Bench of this Court, in the case of V.K. Mansuri [supra], has dismissed the Letters Patent Appeal filed by the union against the decision rendered in the Special Civil Application concerned which came to be dismissed wherein the prayer sought was to grant permanency pending the petition and to treat the workmen as employees of ONGC Ltd and to declare the contract as sham and bogus, and when such Letters Patent Appeal was dismissed, a request was made to continue the interim relief, but the said prayer was not accepted by this Court relying upon judgment of the Hon’ble Supreme Court in the case of Shivshankar v. Board of Directors, UP State Road Transport Corporation, (1995) Supp. 2 SCC 726, in which the Hon’ble Supreme Court has laid down that the Court should not pass any interim orders or should not continue interim relief after dismissal of the writ petition. 2 SCC 726, in which the Hon’ble Supreme Court has laid down that the Court should not pass any interim orders or should not continue interim relief after dismissal of the writ petition. The Division Bench, therefore, did not grant any interim relief directing the ONGC Ltd not to discontinue their services. 8. Considering the overall facts and circumstances and the proposition laid down by the Hon’ble Supreme Court as well as by this Court in the aforesaid decisions and considering the fact that it is yet to be established on final adjudication whether the contract labour system and the contract entered into between the respondent No. 1 IOCL and its contractor are sham and bogus and that whether the concerned workmen are the employees of the respondent No. 1 or not, and considering the fact that granting of any interim relief at this stage, and/or any relief directing the respondents No. 1 and 2 and/or a new contractor to not to discontinue the services of the concerned workmen would be amounting to granting of main relief itself without any final adjudication, such prayer cannot be granted till final disposal of the Reference and on adjudication by this Court. Hence, the present Special Civil Application being devoid of merits, is required to be dismissed. 9. For the foregoing reasons, the present Special Civil Application is dismissed. The ad-interim relief granted earlier stands vacated forthwith.” In light of the said decision, for two reasons, the Court is inclined to flow with the reasoning and the logic given by this Court which has relied on the subsequent decision of the Apex Court, inasmuch as the period claimed under the labour contract of alleged unfair labour practise is of 4 years which is yet to be determined by the competent Court. It is not in dispute that admittedly, through the contractor, the petitioners have been employed continued to be paid by the contractor. They surely are not employed on the sanctioned post in the regular establishment of ONGC. 8. The contractor also does not dispute that the petitioners are employed on contractual basis. Any relief if granted by the Court at this stage protecting the petitioner would mean overreaching the established norms of recruitment and also would tantamount to endorsing to the indirect way of employment which is not permitted under the law. 8. The contractor also does not dispute that the petitioners are employed on contractual basis. Any relief if granted by the Court at this stage protecting the petitioner would mean overreaching the established norms of recruitment and also would tantamount to endorsing to the indirect way of employment which is not permitted under the law. There are catena of decisions where the Court has decided that employment on the sanctioned posts shall need to be with requisite qualifications and on following acceptable mode and method of recruitment. While being employed through the contractor and when the very issue is begging adjudication before the very forum, it would not be warranted to grant interim relief of continuing in the service when contract has already ended. Resultantly, this petition is dismissed in limine as not entertained. None of the findings and observations shall be held against either of the parties. The Court below shall decide the reference on the strength of the material which shall be adduced before it and shall not be influenced by any observations made hereinabove.” 13. It appears that the aforesaid order dated 18.11.2019 came to be challenged by the workmen by filing Letters Patent Appeal No. 17 of 2020 wherein the Division Bench of this Court, while dismissing the appeal and confirming the order passed by the learned Single Judge, has passed the order on 20.01.2020 and observed in paras-10, 11 and 12 as under: “10. Having heard learned advocates appearing for the parties and having gone through the material on record, even independently, we have noticed from the order which has been impugned in the petition, i.e. the order below Exhs.6 and 13, that it has been categorically observed by the Tribunal that the respondent No. 2 is a approved contractor and having appropriate license and prima facie, there appears to be no privity of contract of employment between the respondent No. 1 and the members of the appellant Mandal. It is also reflecting from the order impugned in the original petition that there was a categorical undertaking given by the respondent No. 2 at Exh.16, which is a part of the record, in which it was assured that the concerned employees will not be terminated without due process of law. That being so, prima facie, no case is made out for grant of any injunction. 11. That being so, prima facie, no case is made out for grant of any injunction. 11. On the contrary, from the perusal of the order passed by the learned Single Judge, we found that while coming to the conclusion, the relevant observation contained in the decision reported in 2005 (3) GLH 85 , has been appropriately considered and admittedly, when it was found that the concerned employees were continued to be paid by the contractor, i.e. the respondent No. 2, which undisputed fact has rightly been weighed with learned Single Judge in passing the order, we see no infirmity in the reasoning given by learned Single Judge, which may call for any interference from us. On the contrary, after considering and perusing the material, a clear observation is made by learned Single Judge that the main reference shall be decided on the strength of the material which may be adduced before it and uninfluenced by any of the observations made in the impugned order, independently a decision be taken. In view of such situation, we are not inclined to exercise our appellate jurisdiction. 12. At this stage, we are mindful of a decision delivered by the Apex Court in the case of Management of Narendra & Company Private Limited Vs. Workmen of Narendra & Company, (2016) 3 SCC 340 with regard to scope of Letters Patent Appeal and considering the said proposition as well, we are of the opinion that no error of any nature is visible from the impugned order. Accordingly, the Letters Patent Appeal, being merit-less, the stands dismissed with no order as to costs.” 14. Now, considering the aforesaid orders, it appears that the Tribunal, as if, sitting in the appeal and over the findings recorded by the Division Bench, has passed the impugned award observing that the contract is merely paper contract and is sham and bogus, which is completely erroneous, illegal and against the facts of the case. From perusal of the impugned order passed by the Tribunal while rejecting the applications at Exhibit 6 and 13 in not finding the case in favour of the respondent-Union is strengthened and thus the impugned award passed by the Tribunal deserves to be quashed and set aside. From perusal of the impugned order passed by the Tribunal while rejecting the applications at Exhibit 6 and 13 in not finding the case in favour of the respondent-Union is strengthened and thus the impugned award passed by the Tribunal deserves to be quashed and set aside. On perusal of the document i.e. tender booklet at Annexure J, it appears that in the said document, the terms and conditions were stipulated and in the result after completing the process by the petitioner, the contract was given to respondent No. 2 and since original respondent No. 2, is proprietary firm namely M/s. Surubha S. Gohil, who died during the pendency of the proceedings and the said contract is continued, but proprietary firm instead of Surubha S. Gohil, Raghubha son of Surubha Gohil has taken over the firm and contract is continued with the petitioner. Even from the depositions of the concerned witnesses at Exhibit 30 and 47 examined by the petitioner and cross-examined by respondent No. 1. 15. It is relevant at this juncture to refer to the cross-examination of the concerned witnesses are as under: “Bharatbhai Parsottambhai Bariya examined at Exhibit 30, who has deposed in his cross-examination that it is true that he was employed by Krishna Fire and Safety. B.E.C.L officer Mr. Oza came from Bhavnagar and he did not know who came from Gandhinagar. It is true that even today he being a first party worked with in second party. It is true that he was instructed to work by the leading fireman. It is true that the leading fireman is a man of Surubha Contractor. It is not true that he entered his presence in the register of Surubha. It is true that his salary was deposited in his account by Surubha Contractor. He has deposed that he was working as a driver cum pump operator (DCO). Admittedly, the registered contract of contractor Surubha Gohil is in the first party. That approval of their appointments was on the basis of the educational and physical qualifications through the G.S.E.C.L. He did not have any basis that the approval was given by (the first party). Question: Do you have any written proof of the statement in the affidavit of evidence that ‘the compensation or part thereof does not go to the contractor, the whole (compensation goes to the parent organization’)? Answer: He will submit the proof. Question: Do you have any written proof of the statement in the affidavit of evidence that ‘the compensation or part thereof does not go to the contractor, the whole (compensation goes to the parent organization’)? Answer: He will submit the proof. He will submit the document of D.C.O of permanent employees ranging from one lakh to 30 Thousand. It is true that he did not have any proof that the salary amount of the permanent staff of the organization is ten to eleven lakhs per month. It is true that a written contract tender was issued between the contractor Surubha Gohil and the company. It is true that he get a weekly holiday. It is true that he have never worked for 365 days. To prove that the contract process has been implemented to save costs, but he has not supported. First party no. Cross-examination of first party No. 2 by Shri Surubha Sajubha Gohil himself. Question: Before his appointment B.E.C.L. has any official of the company conducted an interview? Answer: Oza Saheb of B.E.C.L. verified the documents and then took them. Their interview were taken by a company official. He does not have any letter regarding working with Krishna Industries Security Fire. He was not aware of any more than what is stated in the affidavit of evidence that two employees left the job. Mr. Sana-E-Haidar Shabbirali Saiyed examined at Exhibit 47, who in his cross-examination deposed that he did not know that the contractor of this work, Suruma Sajubha Gohil, started working in Company and the workers of this work were working in the company. He did not know that before Surubha Sajubha Zedil’s work, a contractor of a company named Krishna Fire Security was running in his place. It is true that the work of the contractor provided by the company was continuous 24 hours a day for 365 days of the year. It is true that G.S.E.C.L. an employee working as a fire safety contractor in the company was ordered to do specific work for the company. It is not true that G.S.E.C.L officials prepared a conform report in the return performance of the fire call attended by the contractor’s employees. It is true that G.S.E.C.L. an employee working as a fire safety contractor in the company was ordered to do specific work for the company. It is not true that G.S.E.C.L officials prepared a conform report in the return performance of the fire call attended by the contractor’s employees. It is true that fire safety men have to report to the shift-charge engineer of the company when they appeared on duty and in the same way, the report of leaving the charge at the end of the shift is also to be done. It is true that the work related to fire system and office and work machines are all provided by the company. It is true that the contractor Surubha Sajubha Gohil himself is not present during the duty hours and performed the work. He don’t know the fact that in Vanakbori, Gandhinagar Sikka, Kevadiya Panendra etc. power stations, GEB employees are performing fire station duty themselves. He don’t know that this is done by GSECL employees of fire department of power house. He don’t know about Chevat, he don’t know that G.S.E.C.L employees have been given contracts in other power houses except Padwa. If there is a record regarding the above question, we will present it. He don’t know if there is any post below fireman in fire department...? It is true that there may be 25,000 to 30,000 firemen as employees of the company. As per his knowledge, the workers of this work have been working in this company for the last four to five years and he will present the record of how long this employee has been working, seeing that BECL company has charged before GSECL company. It is true that he has been supervising fire safety for the last one and a half years that he has been working at Padav since 20-06-2017. He was not aware that any employee was given a paid holiday every week after completion of 240 days. According to him, whether the employees of this work were given the benefits of bonus leave, pay leave etc..? It is true that whatever work the workmen had done in the company, he did it for G.E.C.L. It is true that the fixed return of the tender.” 16. According to him, whether the employees of this work were given the benefits of bonus leave, pay leave etc..? It is true that whatever work the workmen had done in the company, he did it for G.E.C.L. It is true that the fixed return of the tender.” 16. At this juncture, the Court would like to refer and rely upon the decision of the Hon’ble Supreme Court in the case of Bharat Heavy Electricals Limited Vs. Mahendra Prasad Jakhmola and others, (2019) 13 SCC 82 to decide the issue involved in the present case. In the said decision, the Hon’ble Supreme Court has again reiterated the determination of the relationship of employer and employee the test for is reiterated. The Hon’ble Supreme Court has held and observed in Para-11, 12, 16, 19, 20, 23, 24, 28 to 30 as under: “11. Having heard learned counsel for both the sides, it is important, first, to advert to the Award of the Labour Court. The said Award sets down the notification dated 24.04.1990 that was issued under the 1970 Act. A reading of the aforesaid notification makes it clear that the appellant, insofar as their UP operations are concerned, in Haridwar, in particular, are exempted from the aforesaid notification. Despite this, however, the Labour Court went on to apply the said notification, which would clearly be perverse. In addition, though Ms. Jain stated that documentary evidence was filed, yet the Labour Court based its finding on direct relationship between the parties only on the gate passes being issued by the appellant, and on a concession made by the appellant’s representative. 12. What is clear from the evidence that was led by the parties is that the aforesaid gate passes were issued, as has been stated by the appellant’s witness, only at the request of the contractor for the sake of safety and also from the administrative point of view. The idea was security, as otherwise any person could enter the precincts of the factory. This evidence was missed by the Labour Court when it arrived at a conclusion that a direct relationship ought to be inferred from this fact alone. Further, as has been correctly pointed out by Shri Sudhir Chandra, the appellant has, not only in the first review, but also in the writ petition filed, taken the plea that no such concession was ever made. Further, as has been correctly pointed out by Shri Sudhir Chandra, the appellant has, not only in the first review, but also in the writ petition filed, taken the plea that no such concession was ever made. Moreover, quite apart from this plea and the counter plea of Ms. Jain that the person who has made such concession should have stated that he did not do so, concessions on mixed questions of fact and law cannot decide cases as the evidence as a whole has to be weighed and inferences drawn therefrom. Even a concession on facts disputed by a respondent in its written statement cannot bind the respondent. Thus, in Swami Krishnanand Govindananad v. Managing Director, Oswal Hosiery (Regd.) (2002) 3 SCC 39 , this Court held: “2........ It appears that when the case was posted for trial, the learned counsel appearing for the respondent conceded the facts disputed by the respondent in his written statement before the Court. That statement of the advocate was recorded by the Additional Rent Controller thus: “The respondent’s learned counsel has admitted the ground of eviction and also the fact that the applicant is a public charitable institution and for that purpose it required the premises.” 3...........Whether the appellant is an institution within the meaning of Section 22 of the Act and whether it required bona fide the premises for furtherance of its activities, are questions touching the jurisdiction of the Additional Rent Controller. He can record his satisfaction only when he holds on these questions in favour of the appellant. For so holding there must be material on record to support his satisfaction otherwise the satisfaction not based on any material or based on irrelevant material, would be vitiated and any order passed on such a satisfaction will be without jurisdiction. There can be no doubt that admission of a party is a relevant material. But can the statement made by the learned counsel of a party across the Bar be treated as admission of the party- Having regard to the requirements of Section 18 of the Evidence Act, on the facts of this case, in our view, the aforementioned statement of the counsel for the respondent cannot be accepted as an admission so as to bind the respondent. Excluding that statement from consideration, there was thus no material before the Additional Rent Controller to record his satisfaction within the meaning of clause (d) of Section 22 of the Act. It follows that the order of eviction was without jurisdiction.” 16. A look at this provision together with the judgment in Basti Sugar Mills Ltd. v. Ram Ujagar and Ors. (1964) 2 SCR 838 relied upon by Ms. Jain, would show that in order that section 2(i)(iv) apply, evidence must be led to show that the work performed by contract labour is a work which is ordinarily part of the industry of BHEL. We find, on the facts of the present case, that no such evidence has, in fact, been led. Consequently, this finding is also a finding directly applying a provision of law without any factual foundation for the same. 19. Equally, the review judgment apart from being cryptic, draws an unsustainable conclusion after setting out paragraph 3 of the written statement of BHEL in the Labour Court. What was stated by BHEL in paragraph 3 was that the workmen were only engaged by the contractor and were not their employees. The written statement then goes on to be speculative in stating that it appears that a workman might have been engaged as an employee by a particular contractor. A plain reading of this written statement would certainly not suggest that BHEL is not sure as to whether workmen were or were not supplied by a contractor, or engaged by BHEL. What is clear from the written statement is that BHEL has denied that the workmen were engaged by BHEL or that the workmen were BHEL’s workmen. From this to conclude that the transaction seems to be ‘sham’, is again wholly incorrect. Apart from this, it is also incorrect to state that BHEL has not placed on record any material to demonstrate that under the alleged labour contract, payment was ever made in favour of Madan Lal, the alleged contractor. 20. It has been correctly pointed out by learned counsel appearing on behalf of BHEL that in the very first sentence of the cross examination of the workmen, before the labour court, the workmen admitted that payments of their wages were made by four contractors including Shri Madan Lal. Also, the fact that Madan Lal was paid under the agreement with BHEL was never disputed. Indeed, Ms. Also, the fact that Madan Lal was paid under the agreement with BHEL was never disputed. Indeed, Ms. Jain’s argument that Madan Lal only derived a 10 per cent profit from the agreement with him presupposes payment to Madan Lal by BHEL under the agreement with him. This finding again is wholly incorrect. 23. From this judgment, it is clear that test No. 1 is not met on the facts of this case as the contractor pays the workmen their wages. Secondly, the principal employer cannot be said to control and supervise the work of the employee merely because he directs the workmen of the contractor ‘what to do’ after the contractor assigns/ allots the employee to the principal employer. This is precisely what paragraph 12 explains as being supervision and control of the principal employer that is secondary in nature, as such control is exercised only after such workman has been assigned to the principal employer to do a particular work. 24. We may hasten to add that this view of the law has been reiterated in Balwant Rai Saluja and Another v. Air India Limited and Others, 2014 (9) SCC 407 , as follows: “65. Thus, it can be concluded that the relevant factors to be taken into consideration to establish an employeremployee 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. (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 (2011) 1 SCC 635 , International Airport Authority of India Case (2009) 13 SCC 374 and Nalco Case (2014) 6 SCC 756 ].” 28. The argument that the contractor, in the facts of the present case, gets only a 10 per cent profit and nothing more, is again an argument that needs to be rejected in view of the clear and unequivocal evidence that has been led in this case. The workmen have themselves admitted that there is no appointment letter, provident fund number or wage slip from BHEL insofar as they are concerned. The workmen have themselves admitted that there is no appointment letter, provident fund number or wage slip from BHEL insofar as they are concerned. Apart from this, it is also clear from the evidence led on behalf of BHEL, that no wages were ever been paid to them by BHEL as they were in the service of the contractor. Further, it was also specifically pointed out that the names of 29 workers were on the basis of a List provided by the contractor in a bid that was made consequent to a tender notice by BHEL. 29. Ms. Asha Jain’s reliance upon the judgment in Steel Authority of India Ltd. And Others, (2001) 7 SCC 1 is also misplaced. There is nothing on facts to show that the contract labour that is engaged, even de hors a prohibition notification, is in the facts of this case ‘sham’. 30. Given this, we set aside the impugned judgments of the High Court and the Labour Court’s Award. The appeals are allowed in the aforesaid terms.” 17. It is also worthwhile to refer to the decision of the Hon’ble Supreme Court in the case of Steel Authority of India Ltd and others Vs. National Union Waterfront Workers and others, (2001) 7 SCC 1 . The Hon’ble Supreme Court has held and observed in Paras 48 to 54 as under: “48. It would be profitable to refer to Section 10 of the Act: “10. Prohibition of employment of contract labour: (1) notwithstanding anything contained in this Act, the appropriate Government may, after consultation with the Central Board or, as the case may be, a State Board, prohibit, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment. (2) Before issuing any notification under sub section (1) in relation to an establishment, the appropriate Government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors, such as: (a) whether the process,, operation or other work is incidental to, or necessary for the industry, trade, business manufacture or occupation that is carried on in the establishment. (b) whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment. (b) whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment. (c) whether it is done ordinarily through regular workmen in that establishment or an establishment similar thereto. (d) whether it is sufficient to employ considerable number of whole time workmen. Explanation: If a question arises whether any process or operation or other work is of perennial nature, the decision of the appropriate Government thereon shall be final.” 49. A careful reading of Section 10 makes it evident that sub-sec. (1) commences with a non obstante clause and overrides the other provisions of the CLRA Act in empowering the appropriate Government to prohibit by notification in the Official Gazette, after consultation with Central Advisory Board/State Advisory Board, as the case may be, employment of contract labour in any process, operation or other work in any establishment. Before issuing notification under sub-sec. (1) in respect of an establishment the appropriate Government is enjoined to have regard to : (i) the conditions of work; (ii) the benefits provided for the contract labour; and (iii) other relevant factors like those specified in clauses (a) to (d) of sub-sec. (2). Under clause (a) the appropriate Government has to ascertain whether the process, operation or other work proposed to be prohibited is incidental to, or necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment; clause (b) requires the appropriate Government to determine whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment; clause (c) contemplates a verification by the appropriate Government as to whether that type of work is done ordinarily through regular workmen in that establishment or an establishment similar thereto; and clause (d) requires verification as to whether the work in that establishment is sufficient to employ considerable number of whole-time workmen. The list is not exhaustive. The appropriate Government may also take into consideration other relevant factors of the nature enumerated in sub-sec. (2) of Section 10 before issuing notification under Section 10(1) of the CLRA Act. 50. The list is not exhaustive. The appropriate Government may also take into consideration other relevant factors of the nature enumerated in sub-sec. (2) of Section 10 before issuing notification under Section 10(1) of the CLRA Act. 50. The definition of ‘establishment’ given in Section 2(e) of the CLRA Act is as follows: In clause (e) ‘establishment’ is defined to mean: (i) any office or department of the Government or a local authority. (ii) any place where any industry, trade, business, manufacture or occupation is carried on. 51. The definition is in two parts: the first part takes in its fold any office or department of the Government or local authority - the Government establishment; and the second part encompasses any place where any industry, trade, business, manufacture or occupation is carried on - the non-Govt. establishment. It is thus evident that there can be plurality of establishments in regard to the Government or local authority and also in regard to any place where any industry, trade, business, manufacture or occupation is carried on. 52. Now reading the definition of “establishment” in Section 10, the position that emerges is that before issuing notification under sub-sec. (1) an appropriate Government is required to : (I) consult the Central Board/State Board; (ii) consider the conditions of work and benefits provided for the contract labour and (iii) take note of the factors such as mentioned in clauses (a) to (d) of sub section (2) of Section 10, referred to above, with reference to any office or department of the Government or local authority or any place where any industry, trade, business, manufacture or occupation is carried on. These being the requirement of Section 10 of the Act, we shall examine whether the impugned notification fulfils these essentials. 53. The impugned notification issued by the Central Government on 9.12.1976, reads as under: “S.O. No. 779(e)8/9-12-76 in exercise of the power conferred by sub-sec. (1) of Section 10 of the Contract Labour (Regularisation and Abolition) Act, 1970 (37 of 1970) the Central Government after consultation with the Central Advisory Contract Labour Board hereby prohibits employment of contract labour on and from the 1.03.1977, for sweeping, cleaning, dusting and watching of buildings owned or occupied by the establishments in respect of which the appropriate Government under the said Act is the Central Government. Provided that this notification shall not only apply to the outside cleaning and other maintenance operations of multi-storeyed buildings where such cleaning or maintenance operations cannot be carried out except with specialised experience. A glance through the said notification, makes it manifest that with effect from 1.03.1977, it prohibits employment of contract labour for sweeping, cleaning, dusting and watching of buildings owned or occupied by establishment in respect of which the appropriate Government under the said Act is the Central Government. This clearly indicates that the Central Government had not adverted to any of the essentials, referred to above, except the requirement of consultation with the Central Authority Board. Consideration of the factors mentioned above has to be in respect of each establishment, whether individually or collectively, in respect of which notification under sub-sec. (1) of Section 10 is proposed to be issued. The impugned notification apart from being an omnibus notification does not reveal compliance of sub-sec. (2) of Section 10. This is ex facie contrary to the postulates of Section 10 of the Act. Besides it also exhibits non-application of mind by the Central Government. We are, therefore, unable to sustain the said impugned notification dated 9.12.1976 issued by the Central Government. 54. Point No. 3 remains to be considered. This is the moot point which generated marathon debate and is indeed an important one.” 17.1 In the present case, there is no any prohibitory notification under Section 10(1) was issued by the State Government who is being appropriate Government for the purpose of deciding the case of the respondent-Union. 17.2 The Hon’ble Supreme Court in the said decision in the case of Steel Authority of India Ltd (supra) has held and observed in Paras 68 to 77 as under: “68. We have extracted above S.10 of the CLRA Act which empowers the appropriate Government to prohibit employment of contract labour in any process, operation or other work in any establishment, lays down the procedure and specifies the relevant factors which shall be taken into consideration for issuing notification under sub section (1) of S.10. It is a common ground that the consequence of prohibition notification under S.10(1) of the CLRA Act prohibiting employment of contact labour, is neither spelt out in S.10 nor indicated anywhere in the Act. It is a common ground that the consequence of prohibition notification under S.10(1) of the CLRA Act prohibiting employment of contact labour, is neither spelt out in S.10 nor indicated anywhere in the Act. In our view, the following consequences follow on issuing a notification under S.10(1) of the CLRA Act: (1) contract labour working in the concerned establishment at the time of issue of notification will cease to function. (2) the contract of principal employer with the contractor in regard to the contract labour comes to an end. (3) no contract labour can be employed by the principal employer in any process, operation or other work in the establishment to which the notification relates at any time thereafter; (4) the contract labour is not rendered unemployed as is generally assumed but continues in the employment of the contractor as the notification does not sever the relationship of master and servant between the contact or and the contract labour. (5) the contractor can utilize the services of the contract labour in any other establishment in respect of which no notification under S.10(1) has been issued where all the benefits under the CLRA Act which were being enjoyed by it, will be available. (6) if a contractor intends to retrench his contract labour he can do so only in conformity with the provisions of the I. D.Act. The point, now under consideration, is : whether automatic absorption of contract labour working in an establishment is implied in S.10 of the CLRA Act and follows as a consequence on issuance of the prohibition notification there under. We shall revert to this aspect shortly. 69. Now we shall notice the definition of the terms referred to above. 70. The term ‘contract labour’ as defined in clause (b) of S.2 reads: “(2)(1) (b) a workman shall be deemed to be employed as ‘contract labour’ in or in connection with the work of an establishment when he is hired in or in connection with such work by or through a contractor, with or without the knowledge of the principal employer.” 71. By definition the term contract labour is a species of workman. A workman shall be so deemed when he is hired in or in connection with the work of an establishment by or through a contractor, with or without the knowledge of the principal employer. By definition the term contract labour is a species of workman. A workman shall be so deemed when he is hired in or in connection with the work of an establishment by or through a contractor, with or without the knowledge of the principal employer. A workman may be hired: (1) in an establishment by the principal employer or by his agent with or without the knowledge of the principal employer; or (2) in connection with the work of an establishment by the principal employer through a contractor or by a contractor, with or without the knowledge of the principal employer. Where a workman is hired in or in connection with the work of an establishment by the principal employer through a contractor he merely acts as an agent so there will be master and servant relationship between the principal employer and the workman. But where a workman is hired in or in connection with the work of an establishment by a contractor, either because he has undertaken to produce a given result for the establishment or because he supplies workman for any work of the establishment a question might arise whether the contractor is a mere camouflage as in Hussainbhai’s case (supra) and in Indian Petrochemicals Corporation’s case (supra) etc; if the answer is in the affirmative, the workman will be in fact an employee of the principal employer, but if the answer is in the negative, the workman will be a contract labour. 72. Clause (c) of S.2 defines ‘contractor’ as under: “(2)(1)(c) ‘Contractor’, in relation to an establishment, means a person who undertakes to produce a given result for the establishment other than a mere supply of goods or articles of manufacture to such establishment, through contract labour or who supplies contract labour for any work of the establishment and includes a sub-contractor.” 73. It may be noticed that the term ‘contractor’ is defined in relation to an establishment to mean a person who undertakes to produce a given result for the establishment through contract labour or supplies contract labour for any work of the establishment and includes sub-contact or but excludes a supplier of goods or articles of manufacture to such establishment. 74. It may be noticed that the term ‘contractor’ is defined in relation to an establishment to mean a person who undertakes to produce a given result for the establishment through contract labour or supplies contract labour for any work of the establishment and includes sub-contact or but excludes a supplier of goods or articles of manufacture to such establishment. 74. The definition of ‘principal employer’ in clause (g) of S.2 runs thus: “(2)(1)(g)(i) in relation to any office or department of the Government or a local authority, the head of that office or department or such other officer as the Government or the local authority, as the case may be, may specify in this behalf. (ii) in a factory, the owner or occupier of the factory and where a person has been named as the manager of the factory under the Factories Act 1948 (63 of 1948), the person so named, (iii) in a mine, the owner or agent of the mine and where a person has been named as the manager of the mine the person so named. (iv) in any other establishment, any person responsible for the supervision and control of the establishment. Explanation: For the purpose of sub-clause (iii) of this clause, the expressions “mine”, “owner” and “agent” shall have the meanings respectively assigned to them in clause (i) clause (j) and clause (c) of sub-sec. (1) of S.2 of the Mines Act 1952 (35 of 1952).” 75. It contains four parts. Under the first part, the head of any office or department or such other officer as the Government or the local authority, as the case may be, may specify in that behalf, is called the ‘principal employer’. The second part takes in the owner or occupier of the factory and where a person has been named as the manager of the factory under the Factories Act, 1948, the person so named is treated as the principal employer. The third part includes, within the meaning of the principal employer, the owner or agent of a mine or where a person has been named as the manager of the mine, the person so named. And the fourth part embraces every person responsible for the supervision and control of any establishment within the fold of principal employer. 76. The term ‘workman’ as defined in clause (i) of sec. And the fourth part embraces every person responsible for the supervision and control of any establishment within the fold of principal employer. 76. The term ‘workman’ as defined in clause (i) of sec. 2 of the CLRA Act is as follows: “workman means any person employed in or in connection with the work of any establishment to do any skilled, semiskilled or un-skilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied but does not include any such person: (A) who is employed mainly in a managerial or administrative capacity. (B) who, being employed in a supervisory capacity draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. (C) who is an out-worker that is to say, a person to whom any articles and materials are given out by or on behalf of the principal employer to be made up, cleaned, washed, altered ornamented, finished, repaired, adapted or otherwise processed for sale for the purpose of the trade or business of the principal employer and the process is to be carried out either in the home of the out worker or in some other premises, not being premises under the control and management of the principal employer. 77. The definition is quite lucid. It has two limbs. The first limb indicates the meaning of the term as any person employed in or in connection with the work of any establishment to do any skilled semi-skilled or unskilled, supervisory, technical or clerical work for hire or reward. It is immaterial that the term of employment are express or implied. The second limb contains three exclusionary classes (A) managerial or administrative staff; (B) supervisory staff drawing salary exceeding Rs. It is immaterial that the term of employment are express or implied. The second limb contains three exclusionary classes (A) managerial or administrative staff; (B) supervisory staff drawing salary exceeding Rs. 500.00 and (C) an out worker which implies a person to whom articles and materials are given out by or on behalf of the principal employer to be made up cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for purposes of the trade or business of the principal employer and the process is to be carried out either in the home of the out worker or in some other place not being the premises under the control and management of the principal employer.” 17.3 The Hon’ble Supreme Court, after making observation in Para-78 and 79 and referring the report of the National Law Commission in Para 81 onward, has observed in Para 125 as under: “125. The upshot of the above discussion is outlined thus: (1)(a) Before 28.01.1986, the determination of the question whether Central Government or the State Government, is the appropriate Government in relation to an establishment, will depend, in view of the definition of the expression “appropriate Government” as stood in the CLRA Act, on the answer to a further question, is the industry under consideration carried on by or under the authority of the Central Government or does it pertain to any specified controlled industry; or the establishment of any railway, cantonment board, major port, mine or oilfield or the establishment of banking or insurance company - If the answer is in the affirmative, the Central Government will be the appropriate Government ; otherwise in relation to any other establishment the Government of the State in which the establishment was situated, would be the appropriate Government. (b) After the said date in view of the new definition of that expression, the answer, to the question referred to above, has to be found in Cl. (b) After the said date in view of the new definition of that expression, the answer, to the question referred to above, has to be found in Cl. (a) of S.2 of the Industrial Disputes Act; if (i) the concerned Central Government company/undertaking or any undertaking is included therein eo nomin, or (ii) any industry is carried on (a) by or under the authority of the Central Government or, (b) by railway company; or (c) by specified controlled industry, then the Central Government will be the appropriate Government otherwise in relation to any other establishment, the Government of the State in which that other establishment is situated; will be the appropriate Government. 2(a) A Notification under S.10(1) of the CLRA Act prohibiting employment of contract labour in any process, operation or other work in any establishment has to be issued by the appropriate Government : (1) after consulting with the Central Advisory Board or the State Advisory Board, as the case may be, and (2) having regard to (i) conditions of work and benefits provided for the contract labour in the establishment in question. (ii) other relevant factors including those mentioned in sub-sec. (2) of S.10 (b) inasmuch as the impugned notification issued by the Central Government on 9.12.1976 does not satisfy the aforesaid requirements of S.10, it is quashed but we do so prospectively i.e. from the date of this Judgment and subject to the clarification that on the basis of this Judgment no order passes or no action taken giving effect to the said Notification on or before the date of this judgment, shall be called in question in any Tribunal or Court including a High Court if it has otherwise attained finality and/or it has been implemented. (3) Neither sec. 10 of the CLRA Act nor any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by appropriate Government under sub-sec. (1) of sec. 10 prohibiting employment of contract labour, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the contract labour working in the concerned establishment. (1) of sec. 10 prohibiting employment of contract labour, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the contract labour working in the concerned establishment. (4) We overrule the Judgment of this Court in Air India’s case (supra) prospectively and declare that any direction issued by any industrial adjudicator/any Court including High Court, for absorption of contact labour following the Judgment in Air India’s case (supra), shall hold good and that the same shall not be set aside, altered or modified on the basis of this Judgment in cases where such a direction has been given effect to and it has become final. (5) On issuance of prohibition notification u/s. 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance of various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularize the services of the contract labour in the concerned establishment subject to conditions as may be specified by it for that purpose in the light of Para 6 hereunder. (6) If the contract is found to be genuine and prohibition notification u/s. 10(1) of the CLRA Act in respect of the concerned establishment has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications.” 18. This Court is aware that the Labour law is beneficial legislation which is for the purpose of social welfare held shifted working hours and leave and other benefits for the workers employed in establishment and also provided for improvement in the working conditions with the establishment. The Hon’ble Apex Court in the case of Balwant Raisaluja and another Vs. Air India Limited and others, (2014) 9 SCC 407 has held and observed in Para-70, 71, 87 and 88 as under: “70. The doctrine of ‘piercing the corporate veil’ stands as an exception to the principle that a company is a legal entity separate and distinct from its shareholders with its own legal rights and obligations. It seeks to disregard the separate personality of the company and attribute the acts of the company to those who are allegedly in direct control of its operation. The starting point of this doctrine was discussed in the celebrated case of Salomon v. A Salomon & Co Ltd. (1897) AC 22. Lord Halsbury LC (Paragraphs 31- 33), negating the applicability of this doctrine to the facts of the case, stated that: “...a company must be treated like any other independent person with its rights and liabilities legally appropriate to itself... whatever may have been the ideas or schemes of those who brought it into existence.” Most of the cases subsequent to the Salomon case (supra), attributed the doctrine of piercing the veil to the fact that the company was a ‘sham’ or a ‘faade’. However, there was yet to be any clarity on applicability of the said doctrine. 71. whatever may have been the ideas or schemes of those who brought it into existence.” Most of the cases subsequent to the Salomon case (supra), attributed the doctrine of piercing the veil to the fact that the company was a ‘sham’ or a ‘faade’. However, there was yet to be any clarity on applicability of the said doctrine. 71. In recent times, the law has been crystallized around the six principles formulated by Munby J. in Ben Hashem v. Ali Shayif, (2008) EWHC 2380 (Fam). The six principles, as found at paragraphs 159-164 of the case are as follows: (i) Ownership and control of a company were not enough to justify piercing the corporate veil. (ii) The Court cannot pierce the corporate veil, even in the absence of third party interests in the company, merely because it is thought to be necessary in the interests of justice. (iii) The corporate veil can be pierced only if there is some impropriety. (iv) The impropriety in question must be linked to the use of the company structure to avoid or conceal liability. (v) To justify piercing the corporate veil, there must be both control of the company by the wrongdoer(s) and impropriety, that is use or misuse of the company by them as a device or facade to conceal their wrongdoing. (vi) The company may be a ‘faade’ even though it was not originally incorporated with any deceptive intent, provided that it is being used for the purpose of deception at the time of the relevant transactions. The Court would, however, pierce the corporate veil only so far as it was necessary in order to provide a remedy for the particular wrong which those controlling the company had done. 87. In our considered view, and in light of the principles applied in the Haldia case (supra), such control would have nothing to do with either the appointment, dismissal or removal from service, or the taking of disciplinary action against the workmen working in the canteen. The mere fact that the Air India has a certain degree of control over the HCI, does not mean that the employees working in the canteen are the Air India’s employees. The Air India exercises control that is in the nature of supervision. The mere fact that the Air India has a certain degree of control over the HCI, does not mean that the employees working in the canteen are the Air India’s employees. The Air India exercises control that is in the nature of supervision. Being the primary shareholder in the HCI and shouldering certain financial burdens such as providing with the subsidies as required by law, the Air India would be entitled to have an opinion or a say in ensuring effective utilization of resources, monetary or otherwise. The said supervision or control would appear to be merely to ensure due maintenance of standards and quality in the said canteen. 88. Therefore, in our considered view and in light of the above, the appellants-workmen could not be said to be under the effective and absolute control of Air India. The Air India merely has control of supervision over the working of the given statutory canteen. Issues regarding appointment of the said workmen, their dismissal, payment of their salaries, etc. are within the control of the HCI. It cannot be then said that the appellants are the workmen of Air India and therefore are entitled to regularization of their services.” 19. The Division Bench of this Court has, after examining in detail and considering the facts decided Letters Patent Appeal No. 771 of 2018 and held and observed in Para-6 and 7 as under: “6. At the cost of reiteration, we are in agreement with the learned counsel Mr. Patel’s submission that a wrong test or wrong criteria have been applied by the Tribunal and so affirmed by the learned Single Judge to come to the conclusion that the contract was sham and bogus, and therefore, ipso facto the employer was bound to engage the workmen. Infact, the five tests which ought to have been applied or the twin tests which primarily have been applied before coming to the conclusion that the workmen can be said to be the employees of the principal employer have been set out by the decisions which we have extensively referred to hereinabove, inasmuch as, the question which need to be answered before coming to such a conclusion are: (1) who appoints the workers. (2) who pays the salaries/remuneration. (3) who is the authority to dismiss. (4) who can take disciplinary action. (5) whether there is continuity of service. (2) who pays the salaries/remuneration. (3) who is the authority to dismiss. (4) who can take disciplinary action. (5) whether there is continuity of service. (6) extent of control and supervision i.e. whether there exist complete control and supervision. 7. Applying these five tests in the facts of this case, we are of the opinion that the Tribunal misdirected itself and misinterpreted the evidence on record and the tests applied by it in no way suggest that it could have directed the appellant to absorb the workmen treating it as a principal employer, and therefore, we are of the opinion that the order of the Tribunal dated 24.03.2005 passed in Ref. ITN No. 682 of 1998 and the Judgment dated 31.08.2017 of the learned Single Judge rendered in SCA No. 16912 of 2005 confirming the order of the Tribunal both deserves to be quashed and set aside and are accordingly hereby quashed and set aside. Letters Patent Appeal is accordingly, allowed.” 22. In the ISPAT Khadan Janta Mazdoor Union (supra), the Hon’ble Supreme Court has, after considering the decisions referred to and relied upon by Mr. Mishra, learned counsel in the present case, held and observed in Para-11, 12, 13, 44 and 47 as under: “11. The parties to the reference were called upon to lay evidence in support of their respective claim and after taking note of the evidence (oral & documentary), the Tribunal recorded the facts in seriatim emerging from the records as under: (1) The evidence shows that the respective contractors employed the contract labours for their own and they were the appointing authority. (2) Wage slips, wagesheets and the evidence of the witnesses clearly show that the contractors were paying wages to the contract labours. (3) Exhibit M/8 filed in R721/05 and the evidence of the witnesses show that the contractor dismissed the employee and also transferred some of the employees from the place of work and had disciplinary authority. (4) The contract papers entered into between the management and the contractors and the evidence of the witnesses clearly show that contractors had full control and supervision over the work. The management had only to see that the labour laws were being implemented and specified approved grade of lime stone was being supplied. (5) The contract papers and the evidence show that the contractors had full control over the skilled and professional work. The management had only to see that the labour laws were being implemented and specified approved grade of lime stone was being supplied. (5) The contract papers and the evidence show that the contractors had full control over the skilled and professional work. (6) It is further clear from the contract papers that the SAIL had right to reject the limestone, if it was not within the specified approved grade as per terms and conditions of the agreement. (7) The contract agreements further show that there was penal clause, if there was any breach of contract. 12. The Tribunal taking note of the evidence including oral and documentary adduced in support of the reference held that the contract between the Management (SAIL) and the contractors was genuine and not sham and bogus and the contract workers were allowed to continue even after the prohibition notification under Section 10(1) dated 17th March, 1993 under the CLRA Act on the same terms and conditions and the services of the contract labourer were terminated by the Contractor in April, 1996. 13. It may be noted that status of the workers after the issuance of notification dated 17th March, 1993 has also been examined by the Tribunal and held as follows: (1) The contract labours after notification cease to function. (2) The contract labours were still working in the establishment from 1993 to April 1996 under the umbrella of the contractors who may be called as agent of the Principal employer or were intermediary between the contract labours and the Principal Employer after the publication of notification. (3) The contract between the Principal Employer and the contractors after publication of the notification ceases to exist and became not genuine. (4) The wages were being paid to the contract labour by the so called contractors in the same way as from before. (5) The principal Employer was in need of the workers for the specified works even after the publication of the notification as same workers were continuing in work till April, 1996. (4) The wages were being paid to the contract labour by the so called contractors in the same way as from before. (5) The principal Employer was in need of the workers for the specified works even after the publication of the notification as same workers were continuing in work till April, 1996. (6) There is no evidence on the record to show that the principal employer adopted the procedure of regularization and had intended to employ regular workers as has been directed by the Hon’ble Apex Court at Para 125 sub-Para-6 in the Constitution Bench Judgment in the case of SAIL versus National Union Water Front Workers (Supra) after the contract was found genuine before the notification. (7) There was no automatic absorption of contract labour on issuing the notification prohibiting the employment of contract labours. (8) Contract labours were found employees of the respective contractors before notification. 44. In our considered view, the finding recorded by the High Court under the impugned judgment is not sustainable for the reason that effect of the prohibition notification under Section 10(1) of CLRA Act has been settled by the Constitution Bench of this Court in Steel Authority of India Ltd. and Others (supra) and this Court has made it clear that neither Section 10 nor any provision in the CLRA Act provides for automatic absorption of contract labour on issuance of prohibition notification by the appropriate Government under Section 10(1) of the CLRA Act and the Tribunal in the first place being the fact finding authority has extensively examined the documentary and oral evidence which came on record and also the relationship of principal employer, contractor and contract labour and the fact that their services were terminated by the contractor after the contract labour proceeded on a strike in April 1996. 47. 47. Thus, in our considered view, if the scheme of the CLRA Act and other legislative enactments which the principal establishment has to comply with under the mandate of law and taking note of the oral and documentary evidence which came on record, the finding which has been recorded by the CGIT under its award dated 16th September, 2009 in absence of the finding of fact recorded being perverse or being of no evidence and even if there are two views which could possibly be arrived at, the view expressed by the Tribunal ordinarily was not open to be interfered with by the High Court under its limited scope of judicial review under Article 226/227 of the Constitution of India and this exposition has been settled by this Court in its various judicial precedents.” 19.1 The observation made by the Hon’ble Apex Court is required to be noted herein that the very bench has further held and observed in the said decision in Para-22 as under: “22. Learned counsel placed reliance on the judgment of this Court in Dena Nath and Others Vs. National Fertilisers Ltd. and Others, 1992 (1) SCC 695 and submits that mere violation of the prohibition notification under Section 10(1) of the CLRA Act would not entail absorption of the contract labour and at the best could be considered as further continuation to be illegal resulting in penal consequences envisaged under Section 23 to 25 of the Act.” 20. In the case of Kirloskar Brothers Limited Vs. Ramcharan and others, (2023) 1 SCC 463 , the Hon’ble Supreme Court has reiterated that the contract labour engaged though the labour contractor can be considered to be employee of the principal employer and for that the determination was enunciated by the Hon’ble Supreme Court. In the said decision, the Hon’ble Supreme Court has held and observed in Para-5 to 15 as under: “5. On going through the entire material on record, no documentary evidence was produced, by which it can be said that the contesting respondents were the employees of the appellant. There is no provision under Section 10 of the CLRA Act that the workers/employees employed by the contractor automatically become the employees of the appellant and/or the employees of the contractor shall be entitled for automatic absorption and/or they become the employees of the principal employer. There is no provision under Section 10 of the CLRA Act that the workers/employees employed by the contractor automatically become the employees of the appellant and/or the employees of the contractor shall be entitled for automatic absorption and/or they become the employees of the principal employer. It is to be noted that even the direct control and supervision of the contesting respondents was always with the contractor. There is no evidence on record that any of the respondents were given any benefits, uniform or punching cards by the appellant. 6. Under the contract and even under the provisions of the CLRA, a duty was cast upon the appellant to pay all statutory dues, including salary of the workmen, payment of PF contribution, and in case of nonpayment of the same by the contractor, after making such payment, the same can be deducted from the contractor’s bill. Therefore, merely because sometimes the payment of salary was made and/or PF contribution was paid by the appellant, which was due to non-payment of the same by the contractor, the contesting respondents shall not automatically become the employees of the principal employer - appellant herein. 7. Even otherwise, as observed hereinabove, in the absence of a notification under Section 10 of the CLRA Act unless there are allegations or findings with regard to a contract being sham, private respondents herein, who are as such the workmen/employee of the contractor, cannot be held to be employees of the appellant and not of the contractor. 8. At this stage, the decision of this Court in the case of Steel Authority of India Ltd. and Ors. Vs. National Union Waterfront Workers and Ors. (supra) is required to be referred to. Following two questions fell for consideration before this Court: (A) whether the concept of automatic absorption of contract labour in the establishment of the principal employer on issuance of the abolition notification, is implied in Section 10 of the CLRA Act. (B) whether on a contractor engaging contract labour in connection with the work entrusted to him by a principal employer, the relationship of master and servant between him (the principal employer) and the contract labour, emerges. 9. After considering various decisions of this Court on the point, in paragraph 125, it was concluded as under: “125. (B) whether on a contractor engaging contract labour in connection with the work entrusted to him by a principal employer, the relationship of master and servant between him (the principal employer) and the contract labour, emerges. 9. After considering various decisions of this Court on the point, in paragraph 125, it was concluded as under: “125. The upshot of the above discussion is outlined thus: (1)(a) Before 28-1-1986, the determination of the question whether the Central Government or the State Government is the appropriate Government in relation to an establishment, will depend, in view of the definition of the expression “appropriate Government” as stood in the CLRA Act, on the answer to a further question, is the industry under consideration carried on by or under the authority of the Central Government or does it pertain to any specified controlled industry, or the establishment of any railway, cantonment board, major port, mine or oilfield or the establishment of banking or insurance company- If the answer is in the affirmative, the Central Government will be the appropriate Government; otherwise in relation to any other establishment the Government of the State in which the establishment was situated, would be the appropriate Government. (b) After the said date in view of the new definition of that expression, the answer to the question referred to above, has to be found in clause (a) of Section 2 of the Industrial Disputes Act; if (i) the Central Government company/undertaking concerned or any undertaking concerned is included therein eo nomine, or (ii) any industry is carried on (a) by or under the authority of the Central Government, or (b) by a railway company; or (c) by a specified controlled industry, then the Central Government will be the appropriate Government; otherwise in relation to any other establishment, the Government of the State in which that other establishment is situated, will be the appropriate Government. (2)(a) A notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour in any process, operation or other work in any establishment has to be issued by the appropriate Government: (1) after consulting with the Central Advisory Board or the State Advisory Board, as the case may be. (2)(a) A notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour in any process, operation or other work in any establishment has to be issued by the appropriate Government: (1) after consulting with the Central Advisory Board or the State Advisory Board, as the case may be. (2) having regard to (i) conditions of work and benefits provided for the contract labour in the establishment in question, and (ii) other relevant factors including those mentioned in sub-section (2) of Section 10; (b) Inasmuch as the impugned notification issued by the Central Government on 9-12-1976 does not satisfy the aforesaid requirements of Section 10, it is quashed but we do so prospectively i.e. from the date of this judgment and subject to the clarification that on the basis of this judgment no order passed or no action taken giving effect to the said notification on or before the date of this judgment, shall be called in question in any tribunal or court including a High Court if it has otherwise attained finality and/or it has been implemented. (3) Neither Section 10 of the CLRA Act nor any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by the appropriate Government under sub-section (1) of Section 10, prohibiting employment of contract labour, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the contract labour working in the establishment concerned. (4) We overrule the judgment of this Court in Air India Case (1997) 9 SCC 377 prospectively and declare that any direction issued by any industrial adjudicator/any court including the High Court, for absorption of contract labour following the judgment in Air India Case (1997) 9 SCC 377 shall hold good and that the same shall not be set aside, altered or modified on the basis of this judgment in cases where such a direction has been given effect to and it has become final. (5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance with various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be not genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularise the services of the contract labour in the establishment concerned subject to the conditions as may be specified by it for that purpose in the light of Para 6 hereunder. (6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the establishment concerned has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen, he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately, taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications.” 10. Thus, as observed and held by this Court, neither Section 10 of the CLRA Act nor any other provision in the Act, expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by the appropriate Government under subsection (1) of Section 10, prohibiting employment of contract labour, in any process, operation or any other work in any establishment and consequently, the principal employer cannot be required to order absorption of the contract labour working in the establishment concerned. 11. 11. It has further been observed and held by this Court in the aforesaid decision that on issuance of prohibition notification under Section 10(1) of the CLRA Act, prohibiting employment of contract labour or otherwise, in case of an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance with various beneficial legislations so as to deprive the workers of the benefits thereunder. 12. In the present case, neither any notification under Section 10(1) of the CLRA Act has been issued prohibiting the contract labour, nor there are allegations and/or even findings that the contract is sham and bogus and/or camouflage. 13. In the case of International Airport Authority of India Vs. International Air Cargo Workers’ Union and Anr. (supra), after considering the decision of this Court in the case of Steel Authority of India Ltd. and Ors. Vs. National Union Waterfront Workers and Ors. (supra), it has been observed and held by this Court that where there is no abolition of contract labour under Section 10 of the CLRA Act, but the contract labour contends that the contract between the principal employer and the contractor is sham and nominal, the remedy is purely under the ID Act. It is further observed that the industrial adjudicator can grant the relief sought if it finds that the contract between the principal employer and the contractor is sham, nominal and merely a camouflage to deny employment benefits to the employee and that there is in fact a direct employment, by applying tests like: who pays the salary; who has the power to remove/dismiss from service or initiate disciplinary action; who can tell the employee the way in which the work should be done, in short, who has direct control over the employee. 14. 14. It is further observed that where there is no notification under Section 10 of the CLRA Act and where it is not proved in the industrial adjudication that the contract was a sham/nominal and camouflage, then the question of directing the principal employer to absorb or regularise the services of the contract labour does not arise. It has further been observed in paragraphs 38 and 39 as under: “38. The tests that are applied to find out whether a person is an employee or an independent contractor may not automatically apply in finding out whether the contract labour agreement is a sham, nominal and is a mere camouflage. For example, 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.” 15. Applying the law laid down by this Court in the aforesaid two decisions to the facts of the case on hand and in the absence of any notification under Section 10 of the CLRA Act and in the absence of any allegations and/or findings that the contract was sham and camouflage, both the Industrial Tribunal as well as the High Court have committed a serious error in reinstating the contesting respondents and directing the appellant - principal employer to absorb them as their employees. The parties shall be governed by the CLRA Act and relief, if any, could have been granted under the provisions of the CLRA Act and not under the MPIR Act.” 21. From the oral evidence of these witnesses, the fact is established that they are from the inception and induction, in service working with the contractor and they have been appointed by the contractor and not by the employer, however, this fact is completely brushed aside by the Tribunal. Therefore, the Court is of the opinion that the impugned award which is under challenge in the present petition deserves to be quashed and set aside. In Para-40, the Tribunal has recorded that test to decide the issue involved in the present reference is that “who appoints the workers” wherein though sufficient material referring to the depositions of the witnesses at Exhibit 30 and Exhibit 31, who have categorically deposed on oath before the Tribunal that they have been appointed by the Krishna Fire and they have been worked since 2015 through the contractor and they have been interviewed by the local officers serving at that time and officers of Gandhinagar of B.E.C.L. company and 22 candidates were selected after making sufficient consideration and examination of physical and educational qualifications. The witnesses have been appointed like firemen cum operator in fire station and they were issued gate-pass from B.E.C.L. meaning thereby that they have not been issued identity card by the petitioner. With regard to the contract allocated to respondent No. 2 is concerned, the Tribunal has observed, while dealing with the contentions in Para-10 onward more particularly Para 18, 19 and 20. Though there is sufficient evidence to prove that after completing the formalities and after going through the tender process, the contract is given to respondent No. 2. It is also oral evidence of the concerned witnesses that they are working with the contractor and it is well established by the series of the decisions of this Court as well as of the Hon’ble Supreme Court.. Though this evidence was on record, however, the Tribunal has not considered the said aspects in its true and proper spirit while deciding the said issue and observed that thus the procedure for appointment of workers is being done by the officers of the company itself. Though this evidence was on record, however, the Tribunal has not considered the said aspects in its true and proper spirit while deciding the said issue and observed that thus the procedure for appointment of workers is being done by the officers of the company itself. Merely on presumption since in the presence of officer of the B.E.C.L., the interviews were taken and thus, the procedure of appointment of workers is being undertaken by the petitioner is completely perverse. The Tribunal while deciding the issues has observed that if the salary is being paid by the contractor to the employees, it results into exploit of the employees and beneficiaries to the company and the contractor and hence the method of paying salary cannot be said to be healthy and according to law. It is also observed by the Tribunal that there is no document to show that the contractor has actually taken any action or disciplinary action upon any contract labours. There is omission in the contract regarding the authority to take actions against the employee. Either No. 1 or No. 2 of the first party has not clarified in respect to this point. Hence the contract labour itself is defective which cannot be acted upon so far as the punitive actions are to be taken. It is also observed by the Tribunal that records show that the mediator contractor is under paper arrangement to avoid the direct relationship of master and servant for the purpose of making exploitation of the employees. It is further observed by the Tribunal that there is no any effective evidence to show that the contractor only is controlling the contract labourers. It is true that the contractor has got license and registration certificate but the license, muster roll and wages register of contractor cannot be said to be conclusive proof of control and supervision. When the contractor assigns the worker to work under the principal employer, the worker works under the supervision and control of the principal employer who is secondary controller. When the contractor assigns the worker to work under the principal employer, the worker works under the supervision and control of the principal employer who is secondary controller. This Court is of the opinion that the Tribunal has recorded contrary findings considering the oral as well as documentary evidence produced before it and while deciding the issue No. 2, the Tribunal has observed that all the employees are entitled to be considered as permanent employees of the original owner-the 1st party-on the post allotted to them from the date of filing of the present reference with all the pay, allowances, seniority and other consequential benefits is erroneous and illegal. With regard to the findings recorded by the Tribunal while deciding issue No. 3 is also surmises and conjunctures and, therefore, the impugned award deserves to be quashed and set aside. 22. It also appears from the record that the muster roll, bills of respondent No. 2 were produced before the Tribunal. Even the provident fund of the employees is also deducted working under respondent No. 2 with their provident fund account numbers and the license issued under Rule 25 of the Contract Labour (Regulation and Abolition) Act by the State Government dated 29.06.2016 which is renewed from time to time wherein the conditions stipulated in the license more particularly condition No. 5 is beneficial to refer the same hereunder: “(5) In cases where the workmen employed by the contractor perform the same or similar kind of work as the workmen directly employed by the principal employer of the establishment, the wage rates, holidays, hours of work and other conditions of service of the workmen of the contractor shall be the same as applicable to the workmen directly employed by the principal employer of the establishment on the same or similar kind of work; provided that in the case of any disagreement with regard to the type of work the same shall be decided by the Labour Commissioner, whose decision shall be final.” 23. In light of the observation made by the Hon’ble Apex Court, while referring to its earlier decision has clearly opined that the power is vested with the Advisory Board and with the Government and unless and until, it is decided by the appropriate Government or Advisory Board, the Tribunal has no power while exercising the jurisdiction under Section 10(1) to prohibit the contract. Therefore, the impugned award passed by the Tribunal is absolutely illegal, unjust and not sustainable in the eyes of law. Even in the earlier round of litigation, the Coordinate Bench of this Court has clearly observed while disposing the petition filed by respondent No. 1 which is referred to hereinabove. However, the Tribunal as if sitting over the appeal, has decided the reference and completely overlooked the finding recorded by the Coordinate Bench of this Court and confirmed by the Division Bench of this Court. Therefore, this Court is of the opinion that the Tribunal has committed an error while passing the impugned award and hence, the interference is required to be called for. In view of the above, the decisions relied upon by the learned counsel appearing for the respondents are not applicable to the facts of the present case. 24. For the foregoing reasons, the petition is allowed. The impugned award dated 13.03.2020 passed in Reference (I.T.) No. 51 of 2019 by learned Industrial Tribunal, Bhavnagar is hereby quashed and set aside. Rule is made absolute. There shall be no order as to costs. 25. All the civil application/s shall stand disposed of accordingly.