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 (hereinafter be referred to as “the Contract Labour Court”) with the following reliefs: “(A) To admit and allow this petition; (B) To issue an appropriate writ, order or direction quashing and setting aside the impugned judgment and award dated 20.10.2004 passed by the learned Industrial Tribunal, Nadiad in Reference (I.T.N.) No. 721 of 1998 and further; (C) To stay the execution, implementation and operation of the impugned order dated 20.10.2004 passed by the learned Industrial Tribunal, Nadiad in Reference (I.T.N.) No. 721 of 1998 pending admission, hearing and final disposal of this petition; (D) Pending admission, hearing and final disposal of this petition, Your Lordships be pleased to grant ad-interim relief as stated in terms of Para 13(C) hereinabove; (E) To award the costs of this petition; (F) To grant such other and further relief as may be deemed fit by this Hon’ble Court in the interest of justice;” 2. Brief facts of the present petition are in nutshell as under:- 2.1 It is the case of the petitioner – Gujarat State Electricity Corporation Limited that the petitioner is engaged in the permanent and perennial activity of generating and transmitting electricity and for this purpose, it has one of its thermal power stations with automatic plants located at Wanakbori, Taluka Thasra, District Kheda. 2.2 The petitioner obtained a Certificate of Registration dated 28.6.1982 under the Contract Labour (Regulations and Abolition) Act, 1970 for engaging Contract Labours through the Contractor for carrying out certain activities in the Ash Handling Plant and Demineralization Plant (“D.M Plant” for short) of the petitioner. The petitioner has time and again, entered into contracts with licensed Contractors for the supply of contract workmen to carry out certain activities in the Ash Handling Plant and D.M Plant of the Board. The petitioner has time and again, entered into contracts with licensed Contractors for the supply of contract workmen to carry out certain activities in the Ash Handling Plant and D.M Plant of the Board. The 89 contract workmen were never in the picture when the said contract came to be assigned for the first time by the Board in favour of the respondent - Contractor and no employees of the Board were engaged in performing the work similar to the one performed by the contract workmen of the Contractor engaged in the Ash Handling Plant and D.M Plant. 2.3 It is the case of the petitioner that respondent No.1, though not being the Union of the contract workmen, had filed Special Civil Application No. 2221 of 1996 before this Court on behalf of the 89 contract workmen of the Contractor for making them permanent in the employment of the petitioner and this Court, vide order dated 30.04.1996 disposed off the aforesaid writ petition with a direction to the respondent No.1 - Union to proceed with its demand before the authority under the Industrial Disputes Act, 1947 (hereinafter be referred to as “the Act”), and also directed the concerned State Authorities to decide the question of making a reference of the disputes in this behalf to the Tribunal. 2.4 The aforesaid dispute came to be referred to the Industrial Tribunal, Ahmedabad, vide order dated 10.05.1996 and, thereafter, the same came to be transferred to the Industrial Tribunal, Nadiad and the same came to be registered as Reference (I.T.) No. 142 of 1996 and, thereafter, it was renumbered as Reference (I.T.N.) No. 721 of 1998. The question referred to the Tribunal was with regard to the regularization of contract workmen and not the validity of the contract between the petitioner and the Contractor. The Respondent No. 1 filed Statement of Claim before Tribunal and, thereafter, the petitioner filed Written Statement raising an objection regarding maintainability of reference and demand raised by the Union. The respondent No.2 Contractor also filed the written statement. The petitioner, the Union and the Contractor led oral as well as documentary evidence and the witnesses came to be examined on behalf of the respondent Union as well as on behalf of the petitioner and the Contractor. The respondent No.2 Contractor also filed the written statement. The petitioner, the Union and the Contractor led oral as well as documentary evidence and the witnesses came to be examined on behalf of the respondent Union as well as on behalf of the petitioner and the Contractor. 2.5 Though the respondent Union being apprehensive about the earlier outcome of the aforesaid adjudication before the Tribunal filed Special Civil Application No. 5856 of 2003 before this Court and this Court vide order dated 02.05.2003 directed the Tribunal to decide the pending reference and pass appropriate award within the stipulated time limit. Thereafter, the Tribunal passed award below Exhibit 132 in Reference (I.T.N) No.721 of 1998 on 05.06.2003 and directed to keep the said reference pending till the outcome of the proceedings pending before the Contract Labour Advisory Board for abolition of contract labour system in question. 2.6 Being aggrieved by the award passed by the Industrial Tribunal on 05.06.2003 below Exhibit 132, the respondent – Union had preferred Special Civil Application No. 8916 of 2003 before this Hon'ble Court seeking directions to the Tribunal to decide the entire issue on merits. This Hon'ble Court vide order dated 11.08.2004 directed the Tribunal to dispose off Reference (I.T.N) No. 721 of 1998 within a period of three months. The Tribunal by impugned award dated 20.10.2004 directed the Board to consider the aforesaid 89 contract workmen of the contractor working in the Ash Handling Plant and D.M. Plant at the Thermal Power Station at Wanakbori of the Board as its permanent workmen w.e.f. 01.01.1998 waiving all requirements of requisite educational qualification and age bar. The Board was also directed to carry out pay fixation in the relevant pay scale notionally from 01.01.1998 to 31.12.2000 and to pay the amount of difference of salary to the concerned workmen from 01.01.2001. 2.7 After considering the submissions and the material on record, the Tribunal has allowed the reference and directed the petitioner to consider the workmen as its permanent employees. 3. Being aggrieved and dissatisfied with the impugned award, the petitioner has preferred the aforesaid petition. 4. Heard Mr.K. M. Patel, learned senior counsel with Ms.Lilu Bhaya, learned counsel appearing for the petitioner and Mr.T. R. Mishra, learned counsel appearing for the respondents at length. An affidavit-in-reply and the affidavit-in-rejoinder and surrejoinder affidavit have been filed by the respective parties. 5. Being aggrieved and dissatisfied with the impugned award, the petitioner has preferred the aforesaid petition. 4. Heard Mr.K. M. Patel, learned senior counsel with Ms.Lilu Bhaya, learned counsel appearing for the petitioner and Mr.T. R. Mishra, learned counsel appearing for the respondents at length. An affidavit-in-reply and the affidavit-in-rejoinder and surrejoinder affidavit have been filed by the respective parties. 5. Mr.Patel, learned senior counsel with Ms.Bhaya, learned counsel appearing for the petitioner has submitted the same facts which are narrated in the memo of petition. He has submitted that the Tribunal has passed the impugned award on the basis of the presumption and not as per the settled principles of law and the same deserves to be quashed and set aside. He has submitted that there is no legal base to absorb the workmen of the contractor working in the Ash Handling Plant and the D. M. Plant of Wanakbori Thermal Power Station as permanent and even the Tribunal has exercised the jurisdiction not vested to entertain and decide the reference. He has submitted that the Tribunal has not appreciated fact that there was a valid contract between the petitioner and the Contractor with regard to the Ash Handling Plant and the D.M. Plant at Wanakbori Thermal Power Station. He has submitted that the question referred to the Tribunal was with regard to the regularization of the contract workmen and not the validity of the contract between the petitioner and the contractor. It is therefore submitted that the whole approach of the Tribunal in deciding the reference is without authority and illegal. He has submitted that the Tribunal ought to have rejected the reference instead of allowing the same. It is submitted by Mr.Patel, learned senior counsel that the Tribunal has committed an error in not appreciating the deposition of the witnesses of the petitioner examined at Exhibit 55 and 57 as well as the witness of the contractor examined at Exhibit 66 and, therefore, the impugned award deserves to be quashed and set aside. He has submitted that the findings recorded by the Tribunal are against the weight of the evidence on record. He has submitted that the findings recorded by the Tribunal are against the weight of the evidence on record. Mr.Patel, learned counsel has submitted that the Tribunal has erred in not considering the fact that the contractor was doing the work of operation and maintenance of the plants for the efficient functioning of the Thermal Power Station at Wanakbori and there was nothing wrong in the employees of the petitioner keeping watch over the work done by the contractor. It is submitted that apart from the question of res-judicata, the present reference was barred because the earlier order dismissing the reference on the same or similar question still survived and it was not set aside by the Tribunal. It is clear that the second reference on the similar question is not maintainable since the earlier reference was dismissed. He has submitted that the work of operation and maintenance of the plants was not perennial in nature and the same was not relevant for the purpose of deciding the dispute referred to the Tribunal. He has submitted that the contract between the petitioner and the contractor was merely a camouflage and not genuine. It is respectfully submitted that there is absolutely no reliable evidence to reach such conclusion and the said conclusion arrived at by the Tribunal is on the basis of mere surmises and conjectures. According to Mr.Patel, learned senior counsel, the Tribunal has erred in interpreting and applying the principles laid down by the Supreme Court in the case of Steal Authority of India Ltd. Vs. National Union Water Front Workers & ors, reported in 2001 LLR 961 and the same is not supported the view taken by the Tribunal and the question which had arisen in the said decision was entirely different and, therefore, the said decision has not applicable to the facts of the present case. He has submitted that the workmen were engaged by the contractor and the contractor was keeping supervision and control over them and therefore the conclusion arrived at by the Tribunal is contrary to the evidence on the record. Mr.Patel, learned counsel has submitted that the impugned directions issued by the Tribunal to the petitioner are contrary to the statutory rules and regulations as well as the Tribunal ought to have followed the guidelines issued by the Hon'ble Supreme Court in case of Gujarat Electricity Board, Thermal Power Station, Ukai, Gujarat Vs. Mr.Patel, learned counsel has submitted that the impugned directions issued by the Tribunal to the petitioner are contrary to the statutory rules and regulations as well as the Tribunal ought to have followed the guidelines issued by the Hon'ble Supreme Court in case of Gujarat Electricity Board, Thermal Power Station, Ukai, Gujarat Vs. Hind Mazdoor Sabha, reported in AIR 1995 SC 1893 . Mr.Patel, learned senior counsel has submitted that the petition deserves to be allowed and the impugned award deserves to be quashed and set aside. 5.1 Over-and-above the oral submissions, Mr.Patel, learned senior counsel has submitted the following written submissions:- “1. In support of the contentions assailing impugned award passed by the Tribunal broad following points are canvassed: (i) The inquiry made and findings recorded by the Tribunal that the contract is not genuine but is sham, camouflage and paper arrangement is beyond the terms of Reference. (ii) The impugned award is not sustainable on principle of res judicata or principle analogues to it, in as much a earlier Reference being Reference (IT) No.612 /1989 involving the very same demand came to be dismissed for non-prosecution on 25.8.93. (iii) That the findings and conclusions recorded by the Tribunal that the contract system is sham and bogus is vitiated by ignoring relevant considerations and evidence and by taking into account irrelevant and extraneous considerations. The findings recorded by the Tribunal are therefore perverse and grossly unreasonable warranting Interference of this Hon'ble Court in exercise of its writ jurisdiction under Article 226 as well as Jurisdiction under Article 227 of the Constitution of India. (iv) Assuming without admitting that the findings and conclusions of the Tribunal with regard to contract system being not genuine is sustainable, then also as far as relief is concerned, the award deserves to be set aside since: (a) The qualification required by statutory Rules for appointment in the services of the Board (now Corporation) cannot be waived as has been done by the Tribunal, and (b) The relief requiring the petitioner to carry out notional fixation of pay from 1-1-1998 till 31- 12- 2000 and further direction to pay the difference in salary from 1-11-2001 Involves huge financial burden in respect of 79 workmen Involved in the Reference. 2. 2. Elaborating the points canvassed above, it is submitted as follows: (1) BEYOND TERMS OF REFERENCE: The factual background leading to making of Reference as stated in the statement of claim (Annexure-D- page 45) is that at the time when the petitioner invited tender for the work in question, the Union filed Special Civil Application No.2221 of 1996 in this Hon'ble Court apprehending termination of service. The sald petition came to be disposed of by order dated 30.4.96 relegating the petitioner to remedy of Reference and until the Reference is made and for a period of 14 days thereafter, the interim protection against termination was continued. The demand raised and referred for adjudication is set out in the impugned award at page 238. In short it is for absorption of workmen working for allegation sub-contractor in Ash Handling Plant and D.M. Plant at Wanakbori Thermal Power Station (WTPS for short). The demand is thus for absorption in service and not for declaring the contract system with regard to said work as camouflage, paper arrangement or sham and bogus. Consciously the demand for absorption in service was raised in view of the legal position obtaining at that time in view of the judgment of the Hon'ble Supreme Court in the case of Gujarat Electricity Board vs Hind Mazdoor Sabha (1995) 5 SCC 27 which provided that on the contract system being prohibited by the Appropriate Government by issuing notification under section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter for short referred to as "CLRA Act") contractor's workmen can raise dispute for absorption in service. That is why simultaneously along with Reference for absorption under section 10 of the Industrial Disputes Act, 1947, independent Reference under section 10 of the CLRA Act was made to Advisory Board for its opinion as to whether the contract system for the said work should be prohibited or not. The said Reference to the Advisory Board is still pending. Be that as it may, it is submitted that the demand as made and dispute referred is only for absorption and not for declaring the contract system camouflage or paper arrangement. The entire inquiry made by the Tribunal as to whether contract system is genuine or paper arrangement and findings recorded by the Tribunal that the same is camouflage, sham and paper arrangement is thus beyond the terms of Reference. The entire inquiry made by the Tribunal as to whether contract system is genuine or paper arrangement and findings recorded by the Tribunal that the same is camouflage, sham and paper arrangement is thus beyond the terms of Reference. (ii) RES-JUDICATA : It is submitted that for the very same demand, earlier Reference No.612/1989 was made which came to be dismissed for non-prosecution. The Tribunal has not accepted the contention of res judicata on the ground that the award passed in Reference No.612 /1989 is not on merits but it was dismissed for non-prosecution. It is submitted that the if the very dispute was subject matter of earlier Reference and the same is dismissed, whatever be the ground of dismissal, the same will operate as res- judicata. Even otherwise the public policy demands that the court's time for the same dispute between the parties is not to be wasted by successive or simultaneous litigations in various proceedings. It may be stated that apart from Reference No.612/1989 which was dismissed for non- prosecution, one more Reference being (IT) No.127/1998 is made on 8-8-1998 at the instance of Bijlee Mazdoor Panchayat which is pending before the Industrial Tribunal, Nadiad. It is submitted that multiple litigations on the same subject matter cannot be encouraged. Reference No.612/1989 was dismissed for non-prosecution and it was open for the workmen to take out proceedings under Rule 26A for recalling the award and for restoring the Reference on the file of the Tribunal for decision on merits. That having not been done, the Reference in which the impugned award is made ought not to have been entertained. (iii) Relevant evidence / factors ignored and irrelevant and extraneous factors / evidence considered: It is submitted that for reaching at a conclusion that the contract system is sham and bogus (page 261) the Tribunal has ignored most relevant and crucial features emerging from evidence are as follows: (a) That the contract labour are not selected and no appointment orders are issued by the petitioner. (b) Wages are paid by the contractor (respondent no.2). (c) Presence is marked by the Contractor through it Supervisors/Officers. (d) Bonus and provident fund are paid by the Contractor. (e) Leave is to be applied to and is granted by Supervisors Officers of the Contractor. (b) Wages are paid by the contractor (respondent no.2). (c) Presence is marked by the Contractor through it Supervisors/Officers. (d) Bonus and provident fund are paid by the Contractor. (e) Leave is to be applied to and is granted by Supervisors Officers of the Contractor. (f) Work is allotted to contract labour by the Contractor's superiors / officers (page 255) (g) The petitioner is registered as principal employer and contractor is having license. The petitioner however has to add that absence of registration as principal employer or licence by the contractor does not establish the direct relationship of employer employee between the principal employer and contractor's workmen. (h) Identity cards are issued by the Contractor. Gate passes for security reasons are obtained and issued by Contractor with the signature of Security Officer. (i) Tools and tackles are provided by the Contractor. (j) Settlement dated 19-6-1999 and 18-8-2000 are between the representative of contract labour and contractor as they are employer. Settlements go to show that even the concerned workmen have accepted contractor as their employer. (k) Disciplinary action is taken by the Contractor as is evident from the evidence of Dharampal Sohanlal Ittam, Senior Manager of respondent no.2 contractor - (Exhibit-66). It is submitted that for deciding the employer employee relationship the tests laid down are who appoints workers, who pays salary, who is the authority to take disciplinary and extent of control and supervision i.e. whether there exists complete and absolute control and supervisor. On the other hand, the Tribunal has taken into account following irrelevant considerations in reaching conclusion that the contract system is sham. Those considerations are: (i) In view of the Tribunal, there is no contractor (page 258, 259, 260 and 264). The respondent no.2 Contractor being an incorporated company, it is juristic person and not a natural person. It can only act through its Manager, Officer and Supervisor. The Tribunal however is carried away by the fact that there is no contractor. (ii) Referring to paragraph 3.3 and 3.4 of the tender document/contract the Tribunal holds that control and supervision by the Board is established. However, the Tribunal has misconstrued the provisions contained in paragraph 3.3 and 3.4 of the terms of contract. Naturally when the work is entrusted to the Contractor, the petitioner is entitled to ensure that the work is carried out satisfactorily in accordance with the terms and conditions of contract. However, the Tribunal has misconstrued the provisions contained in paragraph 3.3 and 3.4 of the terms of contract. Naturally when the work is entrusted to the Contractor, the petitioner is entitled to ensure that the work is carried out satisfactorily in accordance with the terms and conditions of contract. Such a power requiring the contractor to remain in constant touch with the Shift Engineer or Shift Incharge of the Board cannot be construed as supervision and control over the manner and method of work to be performed by the contract labour. In fact paragraph 3.3 itself provides that complete responsibility of staff of operation of equipment of Ash Handling Plant is that of Operator/Contractor only and that he will be responsible for paying damages in any mal operation. Likewise providing number of persons to be employed by the contractor in various categories is to ensure that the contractor does not operate with less number of work force than required so that the work does not suffer. The provision is only for the number of persons to be deployed by the contractor in different categories but it does not say that specific person i.e. workmen concerned in the present Reference are to be engaged by the Contractor. The Tribunal has thus misconstrued the provisions of paragraph 3.3 and 3.4 of the contract and has arrived at an erroneous conclusion referring supervision and control. It is reiterated that the test to be satisfied is that of absolute and complete supervision and control and not secondary for over control in terms of provisions of the contract. (iii) The finding recorded by the Tribunal that that there is no evidence to show that only contractor supervises the work. This finding is ex-facie contrary to admission of witnesses examined by the Union and evidence led by the Board and Contractor. The finding by the Tribunal at page 261 that there is no effective evidence to show that only contractor supervises the work is contrary to record since it is so established by the admissions of the witnesses in their cross examination as well as witnesses examined by the Board and Contractor. Similarly finding by the Tribunal at page 260 that no supervisor or Engineer of contractor is examined to prove the extent of supervision and control overlooks the evidence of Dharampal Sohanlal Ittam as well as two witnesses examined by the Board. Similarly finding by the Tribunal at page 260 that no supervisor or Engineer of contractor is examined to prove the extent of supervision and control overlooks the evidence of Dharampal Sohanlal Ittam as well as two witnesses examined by the Board. (iv) The view taken by the Tribunal that the wages paid to the contractor labour of Ash Handling Plant are less compared to direct employee of the Board overlooks the fact that the nature of work is not the same or similar as preformed by the direct employees. On visit and Inspection by the Labour Department, it was found that the nature of work performed by the D.M. Plant contractor labour is the same as performed by the direct employees and accordingly they are being paid same wages from April 1996. Inherently it shows that as far as work of contract labour in Ash Handling Plant is concerned, it was not found the same as performed by direct employees and there was no direction or instruction to pay the same wages as far as contract labour in Ash Handling Plant is concerned. In any case if the claim is for same wages and conditions of service on the ground that the nature of work is the same, the Act provides remedy of approaching the Commissioner of Labour. The disparity in wages cannot be a ground to hold the contract system camouflage. (v) The Tribunal has further taken into account the factor like work being perineal in nature and sufficient to employ full time workmen, the workers working since long and when there is no evidence to show that in other establishment same type of work is taken through contract system. It is submitted that those factors are relevant under section 10(2) of the CLRA Act for prohibiting employment of contract system. It is submitted that legislative policy is not to prohibit employment of contract labour in its entirety. The CLRA Act contemplates prohibition of contract labour system wherever it is possible and seeks to regulate the conditions of service of contract labour where it is not prohibited. As stated earlier the Reference to Advisory Board under section 10 of CLRA Act is already made and is pending. Parameters for prohibiting contract labour system are stipulated in section 10 (2) which are the same which the tribunal has considered and has based its award. As stated earlier the Reference to Advisory Board under section 10 of CLRA Act is already made and is pending. Parameters for prohibiting contract labour system are stipulated in section 10 (2) which are the same which the tribunal has considered and has based its award. It is no more res integra that after coming into force of CLRA Act the Courts have no jurisdiction to prohibit employment of contract system. It is exclusively within the jurisdiction of the Appropriate Government. If the Tribunal or Court where to declare the contract system as camouflage or paper arrangement on the basis of factors enumerated in section 10 (2) of he CLRA Act, that would amount to doing something indirectly which is not permissible directly. In fact, it would amount to encroaching upon the field reserved for Appropriate Government. Moreover, in view of the judgment of the Constitutional Bench of Hon'ble Supreme Court in the case of Steel Authority of India Ltd vs National Union Waterfront Workers, 2001 7 SCC page 1, on the contract labour system being prohibited, contractor's workmen do not have right of absorption in such services of the principal employer. In view of this legal position, hypothetically, if contract system for Ash Handling Plant and D.M.Plant is prohibited by Appropriate Government by issuing notification under section 10 of the CLRA Act, then the workmen would have no right to claim absorption in service of the petitioner Board. It is therefore submitted that logically relief of absorption in service of the Board could not have been granted by the Tribunal by considering factors enumerated in section 10 (2) of the CLRA Act such as work being perennial in nature and sufficient to employ full time employees, position as to how the same work is carried out in other establishments (whether through contract system or directly) since those factors are relevant only for considering prohibition of employment of contract labour system and they are absolutely irrelevant for judging the nature of contract labour system as genuine or camouflage. The Hon'ble Bombay High Court in the case of Airport Authority of India vs Indian Airport Employees Union - 2016 II LLJ 431 (Bombay) (paragraph 52 to 87) has held that the criteria like perennial nature of work that prohibiting contract labour system cannot be the basis for holding contract labour system as paper arrangement. The Hon'ble Bombay High Court in the case of Airport Authority of India vs Indian Airport Employees Union - 2016 II LLJ 431 (Bombay) (paragraph 52 to 87) has held that the criteria like perennial nature of work that prohibiting contract labour system cannot be the basis for holding contract labour system as paper arrangement. It is therefore submitted that the findings and conclusions reached by the Tribunal that the contract system is sham and bogus and consequential relief granted is based on irrelevant factors and ignoring the relevant factors. It is submitted that until prohibited by Appropriate Notification issued by the Appropriate Government on the advice of Advisory Board under section 10 of the CLRA Act, there is no legal bar to take work through contract labour. Prohibition of contract labour system can be only with regard to particular establishment and for particular work after making inquiry through Advisory Board and its report and therefore cannot be general prohibition for all establishment for particular type of work across the Board in view of the judgment of the Hon'ble Supreme Court in the case reported in SAIL 2001 7 SCC 1 . Reliance placed on by the respondent on the absorption of contract labour in Gandhinagar Thermal Power Station is misplaced since the work prohibited there was coal yard operations and local mill stage I and stage II which is different from the work in question. The notification prohibiting the contract labour system in Gandhinagar Thermal Power Station was issued on 9-6-1997. In views of the legal position obtaining at the relevant time by virtue of judgment in the case of Air India Statutory Corporation vs United Labour Union, AIR 1997 SC 645 the contract labour were required to be absorbed as direct employees on issuance of notification prohibiting employment of contract labour system. That position is no more good in view of the later judgment of constitutional bench of Hon'ble Supreme Court in the case of SAIL 2001 7 SCC p.1. As far as absorption of Ukai Thermal Power Station contract labour is concerned that was in view of the fact that the contract system was held sham and paper arrangement by the The Tribunal and be same was upheld by this Hon'ble Court and Hon'ble Supreme Court. As far as absorption of Ukai Thermal Power Station contract labour is concerned that was in view of the fact that the contract system was held sham and paper arrangement by the The Tribunal and be same was upheld by this Hon'ble Court and Hon'ble Supreme Court. That case was decided on the basis of evidence in the case and fact that in Ukai's case contract system was held sham on the basis of evidence does not ipso facto lead to conclusion that contract system in the present case is also sham. On the contrary applying principle laid down in Balvantrai Saluja's and other cases relied on by the petitioner, it cannot be said that the contract system in the present case is sham or paper arrangement.” 5.2 In support of his submissions, Mr.Patel, learned senior counsel has relied upon the following decisions: (1) Balvantrai Saluja Vs. Air India Limited reported in (2014) 9 SCC 407 (para 61, 62, 64, 65, 83, 87 an 88); (2) General Manager (OSD) Bengal Nagpur Cotton Mill Vs. Bharat Lal reported in (2011) 1 SCC 635 (6, 8, 10, 11 and 12); (3) International Airport Authority of India Vs. International Air Cargo Workers Union reported in (2009) 13 SCC 374 (para 38, 39, 53 to 56, 53.13 and 54); (4) Director Steel Authority of India Vs. ISPAT Khadan Janta Mazdoor Union reported in (2019) 7 SCC 440 ; (5) R. K. Panda Vs. Steel Authority of India Limited reported in (1994) 5 SCC 304 (para 4 to 7); (6) Airport Authority of India Vs. Indian Airport Employees Union reported in 2016 II LLJ 431 (Bombay) (52 to 87); (7) Air India Statutory Corporation Vs. United Labour Union reported in AIR 1997 SC 645 ; (8) Bharat Heavy Electricals Limited Vs. Mahendra Prasad Jakhmola reported in 2019 II LLJ 1 (SC); 6. 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 impugned award and the same is just and proper. He has submitted that the petitioner has taken the decision as back as on 28.05.1998 to abolish the contract labour system and no contract labour will be employed without the prior approval of the petitioner. He has submitted that the petitioner has taken the decision as back as on 28.05.1998 to abolish the contract labour system and no contract labour will be employed without the prior approval of the petitioner. He has submitted that thus, the contract labour was employer prior to 1982 and the union has placed on record the relevant documents to the effect that for the post of Helper, no qualification was required. He has submitted that since the matter was pending before this Court, the management of the petitioner thought it fit to gamble in litigation. He has submitted that in the circular issued by the G. M. (HRD), Corporate Office, Baroda, it is mentioned that the contract labour is abolished by the management and direction was issued to absorb all such contract labour in the services of the thermal power station. While referring the deposition of Shankarbhai Govindbhai Patel at Exhibit 55, he has submitted that this witness has deposed in his deposition that the laboratory is situated at D. M. Plant and instructions are supplied by the petitioner, Laboratory is constructed in the premises of the GEB in D.M. Plant where the workmen are working. He has submitted that the workmen of the present reference are the part and parcel of the main functioning of the establishment and without D. M. Plant and Ass Handling Plant, Thermal Power Station cannot exist and generate electricity. He has submitted that the labourers are working for more than 20 to 25 years and contractor has not recruited the workmen and, therefore, they used the word “transferred employees”. He has submitted that prior to coming into force the contract, the workmen were working since 1984-1985 and the contractor got licence in 1986. He has submitted that the contractor has recruited 95 employees, who are employees in the reference, were working with the petitioner. He has submitted that so far as the contention that the workmen have accepted the genuine existence of the contract is concerned, the settlement entered into between the contractor and the workmen. He has submitted that the contractor has recruited 95 employees, who are employees in the reference, were working with the petitioner. He has submitted that so far as the contention that the workmen have accepted the genuine existence of the contract is concerned, the settlement entered into between the contractor and the workmen. He has submitted that so far as the D.M. Plant Unit Nos.4, 5 and 6 are concerned, the ten employees were working and getting all the benefits right from their initial date of appointment which the permanent employees were working in Units No.1, 2 and 3 and there was no distinction in the condition of service and the pay scales and other fringe benefits of the ten employees are at par with the employees working in D.M. Plant Units No. 1, 2 and 3. He has submitted that only distinction is that in the present case there is intermediatory namely contractor whereas in the D. M. Plant Unit Nos.1, 2 and 3 there were direct employees. He has submitted that in other words, right from the beginning and inception of D.M. Plant Unit Nos.4, 5 and 6, ten employees are working and getting the same benefits and some of the employees are treated as contract labour and getting different type of wages whereas their counterpart working in D.M. Plant Unit Nos.1, 2 and 3 are directly working and getting the time sale of pay and other perks and perquisites of permanent employees of Gujarat Electricity Board. He has submitted that similar type of contract labourers have been regularized in Gandhinagar Thermal Power Station, Ukai Thermal Power Station in view of the notification issued by the Government and this group of employees could not be regularized because of the pendency of the reference before the Industrial Tribunal at Nadiad. He has submitted that in the GSO, the minimum qualification of Helper was wireman and equivalent certificate, however, the GSO is not applicable to this category of employees as there was no recruitment rules / qualification in respect of Helper in the 1984-1986. He has submitted that some of the employees were either retired or terminated or left or expired and only 53 employees are the beneficiaries of the reference. He has submitted that some of the employees were either retired or terminated or left or expired and only 53 employees are the beneficiaries of the reference. According to Mr.Mishra, the Helpers were recruited without any qualification and at later stage, show-cause notices were issued to the Helpers as to why their services should not be terminated and they did not possess relevant certificates. He has submitted that the show-cause notice was challenged by filing several petitions and the same came to be allowed and the Helpers recruited ten to fifteen years back without any qualification are working and many of them have been promoted to higher posts. It is submitted that considering the facts and circumstances of the case and the decisions of this Court as well as Hon’ble Supreme Court, the present petition being meritless deserves to be dismissed. 6.1 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 reported in (1988) 1 SCC 122 ; (2) Ushaben Joshi Vs. Union of India and others reported in 2024 INSC 624 ; (3) Mahanadi Coalfields Limited Vs. Brajrajnagar Coal Mines Workers’ Union reported in 2024 (3) SCR 627 ; (4) Gujarat Energy Transmission Corporation Limited Vs. Akhil Gujarat General Mazdoor Sangh and others rendered by the Division Bench of this Court in Letters Patent Appeal No.1549 of 2022 dated 22.04.2024; (5) Indian Petrochemicals Corporation Ltd and another Vs. Shramik Sena and others reported in (1999) 3 SCC 643 ; (6) Secretary, H.S.E.B. Vs. Suresh and others reported in (1999) 3 SCC 601 ; (7) Bharat Heavy Electricals Limited Vs. State of U.P and others reported in (2004) SCC (L&S) 506; (8) Hussainbhai, Calicut Vs. The Alath Factory Thezhilali Union, Kozhikode and others reported in (1978) 4 SCC 257 ; (9) Gujarat Electricity Board, Thermal Power Station, Ukai, Gujarat reported in (1995) 5 SCC 27 (more particularly para 78); (10) Steel Authority of India Limited Vs. Gujarat Mazdoor Panchayat and another reported in 2004 (2) L.L.J 122; (11) Catering Cleaners of Southern Railway Vs. Union of India and another reported in (1987) 1 SCC 700 ; (12) Hindalco Industries Limited Vs. Association of engineering Workers reported in (2009) 1 SCC (L&S) 315; (13) General Manager, Oil and Natural Gas Commissioner, Silchar Vs. Gujarat Mazdoor Panchayat and another reported in 2004 (2) L.L.J 122; (11) Catering Cleaners of Southern Railway Vs. Union of India and another reported in (1987) 1 SCC 700 ; (12) Hindalco Industries Limited Vs. Association of engineering Workers reported in (2009) 1 SCC (L&S) 315; (13) General Manager, Oil and Natural Gas Commissioner, Silchar Vs. Oil and Natural Gas Commission Contractual Workers Union reported in (2009) 1 SCC (L&S) 661; (14) Steel Authority of India Limited and others Vs. National Union Waterfront workers and others reported in (2001) SCC (L&S) 1121; (15) Kanpur Suraksha Karamchari Union Vs. Union of India and others reported in (1988) 4 SCC 478 ; (16) M.M.R. Khan and others Vs. Union of India and others reported in 1990 (Supp) S.S.C. 191; 7. This court has considered the submissions made on behalf of both the sides and perused the impugned award and the citations at the Bar. This court has also perused the oral as well as documentary evidence available on record. 7.1 This Court (Coram: Hon’ble Mr.Justice D. N. Patel,J.) while admitting the petition has passed the following order on 15.04.2005. “1. Learned Addl. Advocate General appearing for the petitioner - Gujarat Electricity Board submitted that the award dated 20-10-2004 passed by the Industrial Tribunal, Nadiad in Reference (IT) No. 721 of 1998 is erroneous and bad in law inasmuch as the fact that the contract given by the petitioner is genuine and the contractor is working for Ash Handling Plant and D.M. Plant at Vanakbori Thermal Power Station of the petitioner. So far as the employees of the contractor are concerned, there is no control of the present petitioner much less direct control. There is no any supervision of the present petitioner. On the contrary, as per the evidence on record especially Exh.49 and Exh. 66, there is direct supervision and control of the contractor. Salaries are being paid directly by the contractor and services are given by the contractor. Working hours and and leave etc. are also fixed by the contractor so far as the employees are concerned. Assuming without admitting that the contract is perennial in nature and as per Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970, the same ought to have been declared as prohibited contract. Unless this process is over the Industrial Tribunal cannot give direction as per the award dated 20-10-2004. Assuming without admitting that the contract is perennial in nature and as per Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970, the same ought to have been declared as prohibited contract. Unless this process is over the Industrial Tribunal cannot give direction as per the award dated 20-10-2004. There is no notification issued u/s 10 (1) of the said Act. So far as Ash Handling Plant and D.M. Plant are concerned, the contract is genuine and the contract is not bogus and sham and therefore as per the judgment in the case of Gujarat Electricity Board, Thermal Power Station, Ukai v. Hind Mazdoor Sabha and others. reported in AIR 1995 SC 1993, the contract ought to have been held as prohibited one u/s 10 (1) of the said Act and thereafter only Reference ought to have been decided. Adjudication of the Reference ought to have been subsequent of declaration of the nature of contract as per provisions of the said Act. 2. Looking to the facts and circumstances of the case, Rule returnable on 10-5-2005. Ad-interim relief in terms of paragraph No. 13 (D) of the memo of the petition is granted, till then. D.S. is permitted.” 8. 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 which are ordinarily 89 in numbers, now only 31 members of the respondent – Union treated to be workmen of the petitioner who are originally engaged by the contractor in two different departments i.e. Ash Handling Plant and D. M. Plant and in absence of any prohibitory notification issued by the State Government or not? (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? (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? (5) That the Industrial Tribunal ought not to have passed the impugned order without considering the preliminary objection with regard to maintainability of the reference and/or the disputes involved therein and declared to be considered the workmen as its permanent employees from 01.01.1998 and also waived the educational qualification and also direct the petitioner to fix the workmen of the contractor in the relevant pay scale working with the petitioner in the regular appointee and also further direction to pay the difference of salary to all workmen from 01.01.2011. 9. 9. From bare perusal of the record and the oral evidence recorded by the Industrial Tribunal, it appears that the respondent Union representing the workmen has raised the dispute before the Deputy Labour Commissioner on the basis of the order dated 30.04.1996 passed by this Court in Special Civil Application No. 2221 of 1996 whereby this Court directed respondent – Union to make appropriate demands before the respondent – authority under the Act and, therefore, the dispute was raised and initially the dispute was referred to the Industrial Tribunal, Ahmedabad and on establishment of the Industrial Tribunal at Nadiad, the dispute was transferred to the Industrial Tribunal, Nadiad vide order dated 10.05.1996 which came to be registered as Reference (I.T.) No. 142 of 1996 and subsequently thereafter it was re-numbered as Reference (I.T.) No. 721 of 1998 where the terms of the reference was mentioned as under:- “Whether the workmen working under the subcontractor for Ash Handling Plant and the D. M. Plant of Wanakbori T.P.S. should be absorbed by the GEB as its permanent workmen and considering their nature of work they should be paid wages and all incidental benefits from the date of joining as contract labour?” 9.1 On the basis of such terms of reference, on behalf of the workmen, the Union has submitted the statement of claim at Exhibit 4 before the Tribunal raising various contentions including the contention to the effect that the contract between the petitioner and the Contractor was not genuine but a mere camouflage to evade compliance of various beneficial legislation so as to deprive the contract labour of the benefit thereunder. The petitioner filed written statement at Exhibit 10 and raised legal objection with regard to maintainability of the reference and demand and contested the claim. The Contractor has also filed written statement as the contractor was a company and on behalf of the company, a written statement was filed which are produced along with the present petition for ready reference and also produced the copy of the depositions of the concerned workmen who have been examined by the Union and the supervisor appointed by the contractor. On perusal of the record of the Tribunal, it appears that the Tribunal has held that the contract entered into between the petitioner and the contractor is nothing but a camouflage and mere paper arrangement with the contractor and, therefore, on the basis of such findings recorded by the Tribunal, prima facie this Court is of the opinion that the finding of the Tribunal that the petitioner is a company registered under the Companies Act, 1956 and exclusively run by the Government of Gujarat more particularly under the provisions of the Industrial and Mines Department. The company is running with the aim of the Government Fund who is functioning in generating the electricity and transmitted it by running thermal power station wherein the kettle is using for generating electricity with the help of the distilling water and for this process of generation of the electricity by Ash Handling Plant which was collected in kettle is required to be removed at the frequent interval and the water which is used is also required to be purified on certain intervals and to carry the said process, the petitioner entered into the contract for the purpose of removing of the Ash Handling Plant from kettle and also for process of cleaning of water. The said contract was allocated to one M/s. Desein Private Limited and its registered office at Delhi through whom the workmen have been engaged before deciding the issue with regard to whether the contract in question is genuine or not. The Tribunal proceeded with the adjudication to the dispute and directed the petitioner and the respondent to lead the relevant evidence and in the said process, the oral evidence of the witnesses of the petitioner came to be recorded at Exhibit 49, 51, 52, 55, the junior engineer being serving in boiler maintenance examined at Exhibit 57, supervisor of the contractor examined at Exhibit 66 and the witnesses at Exhibit 57 and 66 who have clearly deposed before the Tribunal that the petitioner has, after getting permission, issued tender contract and after completion of the tender formalities has issued a contract in favour of respondent No.2. Without considering such facts and merely the contract is in the name of the company, the Tribunal has observed that the petitioner has produced document at Exhibit 12 along with a xerox copy of certificate of registration dated 28.06.1982 obtained by the petitioner under the Contract Labour (R & A) Act is produced. Exhibit 104 appears to be a copy of challan for license fee paid by the contractor which is dated 03.07.1995. Exhibit 105 is a certificate given by the board to the contractor in Form – V that M/s. Desein (New Delhi) Pvt Ltd was engaged as a contractor. Exhibit 106 is a xerox copy of license issued to the contractor under the Contract Labour (R & A) Act. This license appears to have been issued in July, 1985 and is got renewed upto 30.06.1996 and it was mentioned in the license that for engagement of 120 workmen, the employer is permitted to engage. Though all such documents were produced before the Tribunal, the Tribunal has come to the conclusion that the contract is not genuine and the same is sham and bogus. Therefore, this Court is of the opinion that the award passed by the Tribunal is illegal and unjust. From bare reading of award more particularly para 30, it appears that the Tribunal has observed that the witnesses have admitted that the contract for operation and maintenance of the Ash Handling Plant is given to the ‘contractor’ but there is no one as a contractor and that all are paid employees. The witness namely Dharampal Sohanlal Ittan examined on behalf the petitioner, however, the Tribunal has completely overlooked the deposition of the said witness and not believed the same in its true and proper perspective and, therefore also the impugned award passed by the Tribunal is illegal and unjust. It appears that on one hand the Tribunal in para – 35 of the award has observed that the workers were working since 1982 onward and no supervisor or engineer of the contractor is examined either by the petitioner or the contractor to prove the extent of control and supervision of the so called engineers or the supervisors over the contract labours and on the other hand, the Tribunal has referred to the document at Exhibit 99 is completely contrary to the evidence at Exhibit 66 and, therefore, the Tribunal has recorded incorrect findings. It appears that the petitioner has produced the copy of the 2(p) settlement entered into by and between the contract labourer but the Tribunal has ignored and overlooked the said fact while passing the impugned award. The Tribunal has come to the conclusion that there is no dispute that these workmen are the workmen of the contractor as the terms of reference itself suggests that they are the workmen of the contractor. However, the Tribunal has completely ignored such relevant aspects while allowing the impugned award. Under such circumstances, this Court is of the opinion that the findings recorded by the Tribunal is illegal and unjust. It appears from the register along with the Form No. 13 produced at page No.390 that all the workers have been appointed in 1984 onward and their appointment dates are mentioned in the register prepared by the contractor which is produced before the Tribunal and the identity cards were issued by the contractor which also suggests that the Tribunal has completely overlooked the same. 10. It is worthwhile to refer to the depositions of the witnesses:- 10.1 P.W.1 Afak Mahedi Gulam Mahedi Mirza examined at Exhibit 49, who deposed in his examination-in-chief that he was working in Vanakbori Power Station since 1982 and in Gandhinagar Power Station since 1997 and he was the Deputy General Secretary of the Union before that he was the Additional General Secretary. He has deposed that at present 13 workers were working in D.M. in the plant. Another 3 to 4 workers have been recruited over the last few months. He has deposed that the workers working in stage 1 performed their duties as chemist, a. chemist, tester, operator, helper etc. of Gujarat Electricity Board as regular employees and the operation of these 1 and 2 is same and only in stage 2, workers of the contractor are working and the process of work in both stages is also the same. Both the stage workers are supervised, monitored and controlled by the officials of Gujarat Electricity Board. He has deposed that on the basis of the complaint made by the union in 1996, the Commissioner and the Labor Officer have investigated the case for giving equal pay to the workers doing the same work on contract license and after investigation, the salary of the stage-2 workers has been made equal to the stage-1 workers. He has deposed that on the basis of the complaint made by the union in 1996, the Commissioner and the Labor Officer have investigated the case for giving equal pay to the workers doing the same work on contract license and after investigation, the salary of the stage-2 workers has been made equal to the stage-1 workers. In the Ash Handling Plant, 76 to 78 workmen were working. In the cross-examination, this witness has deposed that GEB has given the contract to the D.M. Plant, Ash Plant. The contract has given to Desein Private Limited and Desein Private Limited got license from Government. At present Desein Private Limited has no license, but at the time of institution of reference, Desein was there. He has deposed that the work of the Ash handling plant and D.M .plant has been entrusted to the contractor. The contract is in the name of Desein Pvt Limited. He has deposed that in this plant, the work arrangements are done by the men of the contractor as per the instructions of the board. It is not known which person of the board will do the work assignment. There are different persons. It is not true that the contractor's men do the work distribution in their own way and he did not know, who supervised the board. The instruction will be given by the board officer. It is not true that the board officer does not give instructions even if there is a different officer every day. He has deposed that the presence of workers is made by the men of the contractor. "Contractor has paid the wages to the workers" and workers are given identity cards. The contractor has been giving since last year. It is not true that the identity card is given by the contractor since the admission was given by the board earlier. If the workers wanted to take leave, they have to take it from the contractor's man. The contractor's man did not have to punch the cards in the time office. 10.2 P.W.2 Vasantkumar Bhulabhai Patel examined at Exhibit 51, who deposed in his chief-examination that he has been working in Ash Plant since 1984 in GEB and the work of the GEB has been done in Ash Plant. The work done in the Ash Plant through the Contractor and the Supervision and Control is belonging to the GEB. 10.2 P.W.2 Vasantkumar Bhulabhai Patel examined at Exhibit 51, who deposed in his chief-examination that he has been working in Ash Plant since 1984 in GEB and the work of the GEB has been done in Ash Plant. The work done in the Ash Plant through the Contractor and the Supervision and Control is belonging to the GEB. He has deposed that the operation is directly supervised by an officer of the GEB and the GEB officer gave instructions not to run this unit. Shift Incharge, Plant Deputy Engineer and Plant Senior Engineer advised these officers. He has deposed that the GEB has provided the gate passes. The salary has been paid through the contractor in the presence of an officer of the board and if the board did not pass bill of the contractor, the salary would be stopped. He has deposed that till 1985, the contractor did not have a license and in 1985, it was of Desein Private Limited and the company currently held a license and in the meanwhile, the contractor had not renewed the license for 9 to 8 months. In the crossexamination, this witness has deposed that the attendance was filled in the attendance sheet of the contractor. There is a punching system for GEB employees and the payment was made at the office of the contractor. He has not been given any appointment letter by GEB and all employees went directly to the plant with few operations and contractors with maintenance and their distribution was done by the contractor himself. It is true that if the contractor's workers do not come, the contractor made the arrangements and leave has to be taken from the contractor. It is not true that that the work is supervised only by the contractor's men. It is not true that the work report should be given only to the contractor and he did not how the C.R. report was filled up by the contractor. He has deposed that the Attendance Card Identity Card was issued and the contractor created an identity. But the signature is done by the security officer and the attendance card is issued by the contractor and the contractor gave the pay signature. He has deposed that the Attendance Card Identity Card was issued and the contractor created an identity. But the signature is done by the security officer and the attendance card is issued by the contractor and the contractor gave the pay signature. He has deposed that he did not know the standard as he has no experience detailing plant and machinery and direct supervision of the plant was of the operation of the contractor or not, which fact is not true, bonus is given. Payment is made by the contractor. He has deposed that he knew Jayarambhai, Ittan or Rajat Dayal. These three persons supervised his work. All three are contractor's men. The board has registration for labour. 10.3 P.W.3 Hitendrakumar Indravadan Dave at Exhibit 55, who has deposed that he is working as Assistant Chemist for last ten years at Plant Vanakbori. D.M. He has deposed that he is doing the work of water analysis and operation and the work of maintenance is done by another employees. He has deposed that there is a huge difference between the salaries of GEB employees and them and the new pay commission came w.e.f. from 01.01.1999 and does not give it. The complainant's license is revoked and is not currently licensed. He gave a gate pass to go on duty and he will not appear on duty without giving it. In his cross-examination, this witness has deposed that he has been given appointment letter and the same is given by the contractor. He has deposed that attendance of GEB staff from panchig is sufficient and a computerized pay slip is given to the GEB employee to fill their presence in the plant. It is true that direct control belongs to the contractor and it is not true that contract men gave daily work instructions. He has deposed that for leave, application has to give the contractor but it is to be informed to the officer of the board. It is not true that the equipment is supplied by the contractor and the contractor has to inform if there is a defect in the equipment. It is not true that that Ankush did not keep supervision assistant chemist and chemist and the salary, holiday pay was done by the contractor and gave attendance card and the attendance card belongs to the contractor. It is not true that that Ankush did not keep supervision assistant chemist and chemist and the salary, holiday pay was done by the contractor and gave attendance card and the attendance card belongs to the contractor. 10.4 P.W.2 Yogesh Bhalchandra Antapurak examined at Exhibit 57 who deposed that the work of Ash Handbig account has been done by the contractor through their supervisors. He has deposed that the assignment of work, distribution of work and supervision etc. are done by the supervisor of the contractor and attendance of the contract men is done by the contractor's supervisor. His leave is approved by the contractor's supervisor. The contractor paid the salary to the men of the contractor and the work of the contractor's workers is that of a subcontractor and a supervision contractor. He has deposed that Ash Handling work should be carried out for a maximum of 04 hours in one shift. It is not true that the board does the monitoring, supervision, work distribution etc. of the contract men. The work done by the contract men in the plant. Board workers do not do any such work. If the work is not done properly in the plant, it is reported in writing or verbally to the contractor. The board itself does not do defect clearing through the contractor's men. S handling plant works to remove coal ash Process of importing good quality coal to reduce coal ash output has been carried out. It is true that all the ex-plant operation and maintenance contracts have been awarded. It is true that the contract has been given to Ash plant. It is true that there is no person as a contractor, the board bears the bill of the contract for the work done in the Ash plant. It is true that the work of one plant has not stopped permanently. 10.5 P.W.3 Dharmpal Sohanlal Ittan examined at Exhibit 66 has deposed that he was working as Senior Manager in Dazein Pvt Ltd for 18 years and their company held contract for Ash Handling, Operation Maintenance on board. The presence of contract men is sufficient for the company's supervisors and engineers. 10.5 P.W.3 Dharmpal Sohanlal Ittan examined at Exhibit 66 has deposed that he was working as Senior Manager in Dazein Pvt Ltd for 18 years and their company held contract for Ash Handling, Operation Maintenance on board. The presence of contract men is sufficient for the company's supervisors and engineers. He has deposed that the engineers and supervisors of the company do the supervision and assignment of work to the contract men and the contract men gave leave report to the supervisor and if the supervisor wanted leave, he has sanctioned the leave. He gave notice for misconduct of contract men and the contract men are in full control of us. Our company provides work tools to contract men. He has deposed that their company has got the contract of thermal power house through tender. The operation of a given counter in a decommissioned power house is highly skilled and appointed 100 contract men to the designs. The attendance is filled as per attendance card and muster roll. The board workers had a punching at the time office as per the practice is sufficient. In his cross-examination, this witness has deposed that it is true that all the workers working in Dezein Pvt Ltd in Vanakbori Thermal Power Station are salaried and ot the owner. It is true that Dezein Pvt. the Vanakbori Thermal Power Station site has been in charge for the last 17 years. It is true that in the last contract, GEB has decided the number of helpers, operators, technicians and supervisors. It is true that the concerned workers are working under contract. It is admitted that they paid salary to the workers or it is not true that the workers get the cost of the work done and the equipment from the board. It is true that if GEB does not provide gate-pass, their workers cannot come to the site and work and the company will take action against the employees of the company who commit mistakes or misbehavior in their work. It is true that when the unit is closed, they get the work notice through the board and accordingly they take work from workers. 11. It is also required to be noted that the Hon’ble Supreme Court in the case of Hind Mazdoor Sabha (supra) has held and observed in para – 33 as under:- “33. It is true that when the unit is closed, they get the work notice through the board and accordingly they take work from workers. 11. It is also required to be noted that the Hon’ble Supreme Court in the case of Hind Mazdoor Sabha (supra) has held and observed in para – 33 as under:- “33. These decisions in unambiguous terms lay down that after the coming into operation of the Act, the authority to abolish the contract labour is vested exclusively in the appropriate Government which has to take its decision in the matter in accordance with the provisions of Sec. 10 of the Act. This conclusion has been arrived at in these decisions on the interpretation of Sec. 10 of the Act. However, it has to be remembered that the authority to abolish the contract labour under Sec. 10 of the Act comes into play only where there exists a genuine contract. In other words, if there is no genuine contract and the socalled contract is sham or a camouflage to hide the reality, the said provisions are inapplicable. When, in such circumstances, the concerned workmen raise an industrial dispute for relief that they should be deemed to be the employees of the principal employer, the Court or the industrial adjudicator will have jurisdiction to entertain the dispute and grant the necessary relief. In this connection, we may refer to the following decision of this Court which were also relied upon by the Counsel for the workmen.” 12. The relevant observation of the said decision in the case of Hind Mazdoor Sabha (supra) made in para 53(ii) reads as under:- “53. Our conclusions and answers to the questions raised are, therefore, as follows: [i] xxx xxx xxx [ii] If the contract is sham or not genuine, the workmen of the so-called contractor can raise an industrial dispute for declaring that they were always the employees of the principal employer and for claiming the appropriate service conditions. When such dispute is raised, it is not a dispute for abolition of the labour contract and hence the provisions of Sec. 10 of the Act will not bar either the raising or the adjudication of the dispute. When such dispute is raised, the industrial adjudicator has to decide whether the contract is sham or genuine. When such dispute is raised, it is not a dispute for abolition of the labour contract and hence the provisions of Sec. 10 of the Act will not bar either the raising or the adjudication of the dispute. When such dispute is raised, the industrial adjudicator has to decide whether the contract is sham or genuine. It is only if the adjudicator conies to the conclusion that the contract is sham, that he will have jurisdiction to adjudicate the dispute. If, however, he conies to the conclusion that the contract is genuine, he may refer the workmen to the appropriate Government for abolition of the contract labour under Sec. 10 of the Act and keep the dispute pending. However, he can do so if the dispute is espoused by the direct workmen of the principal employer. If the workmen of the principal employer have not espoused the dispute, the adjudicator, after coming to the conclusion that the contract is genuine, has to reject the reference, the dispute being not an industrial dispute within the meaning of Sec. 2 (k) of the ID Act. He will not be competent to give any relief to the workmen of the erstwhile contractor even if the labour contract is abolished by the appropriate Government under Sec. 1.0 of the Act.]” 13. This Court is of the opinion that in the present case, the fact is completely different then the decisions as referred to and relied upon on behalf of the respondent – Union. This Court is of the opinion that the impugned award passed by the Tribunal is not sustainable in the eyes of law and the same is against the facts of the case and against the oral as well as documentary evidence. This Court is amply clear and conscious that while exercising the jurisdiction under Articles 226 and 227 of the Constitution of India to interfere with the findings recorded by the Tribunal is very limited and restricted as it is held and observed by the Hon’ble Supreme Court in the case of Indian Overseas Bank Vs. I.O.B.Staff Canteen Workers Union reported in (2000) 4 SCC 245 in para – 8 as under:- “8. Aggrieved against the common Award dated 27-5-94, the bank management filed three Writ Petitions, Nos. 21251-21253 of 1994 challenging the award in the three proceedings, noticed above. I.O.B.Staff Canteen Workers Union reported in (2000) 4 SCC 245 in para – 8 as under:- “8. Aggrieved against the common Award dated 27-5-94, the bank management filed three Writ Petitions, Nos. 21251-21253 of 1994 challenging the award in the three proceedings, noticed above. They were heard in common and a learned single Judge of the Madras High Court by his order dated 8-3-96 quashed the awards holding that there was no employer-employee relationship between the bank management and the canteen employees and consequently the question of reinstatement of the 33 canteen workers or taking cognizance of the complaint under Section 33-A of the Act do not arise. Aggrieved, the workers' union pursued the matter on appeal before the Division Bench in Writ Appeal Nos. 463-465 of 1996. The learned Judges of the Division Bench accepted the appeal by setting aside the order of the single Judge and restoring the award of the Tribunal on the view that not only the bank in question had an obligation to run the canteen but in fact was only running the canteen. It would be useful as also necessary to advert to the factual details noticed by the Division Bench which weighed with it to overrule the decision of the single Judge and restore the award passed by the Industrial Tribunal in the matter. In paragraphs 6 to 9 of their judgment, the learned Judges of the Division Bench analysed the factual position recorded by the Tribunal, while pointing out the infirmities in the approach as well as the impermissibility of the exercise undertaken by the learned single Judge by observing as follows : "6. It is therefore our difficult task to go through facts of the present case and come to a conclusion one way or the other. The first aspect of the case is that even here, there is no statutory obligation on the part of the bank to provide canteen facilities to its employees. But the question is whether there is any legal obligation implicit or explicit, as pointed out in the LIC case. Before the Tribunal, the following aspects were emphasised by the canteen employees : (i) Three promoters were appointed from among the permanent employees of the bank for a period of one year; (ii) At the end of one year, another committee was nominated by the bank. Before the Tribunal, the following aspects were emphasised by the canteen employees : (i) Three promoters were appointed from among the permanent employees of the bank for a period of one year; (ii) At the end of one year, another committee was nominated by the bank. The promoters were looking after the day to day supervision of the canteen apart from doing their regular work as bank employees; (iii) The management had taken upon itself the responsibility of providing canteen facilities to the employees under a subsidised scheme; (iv) The bank provided the basic requirements like building, utensils, crockery, cutlery and furniture etc.; (v) The bank was giving subsidy for meeting the salary of the canteen employees and were increasing the same from time to time. (vi) Supply of foodstuffs at concessional rate was also done by the bank; (vi) The cost of fuel, electricity and water supply charges apart from providing refrigerators and water coolers were also met by the bank; and (viii) In effect, the canteen was run out of the funds of the bank. As against the above, the bank contended (i) that there was no employer-employee relationship; (ii) it was only at the request of the union that the bank agreed to provide a canteen; (iii) the bank had no say in choosing the members of the committee and (iv) the canteen is not for the exclusive use of the bank. (7) In evidence, one other important fact was brought out, viz., that the canteen workers were employed under a Welfare Fund Scheme of the Bank. They are made eligible for periodical medical check up by the Doctors of the bank. (7) In evidence, one other important fact was brought out, viz., that the canteen workers were employed under a Welfare Fund Scheme of the Bank. They are made eligible for periodical medical check up by the Doctors of the bank. On the above rival submissions and evidence, the Tribunal came to the following conclusions : (i) that the canteen run in the premises of the bank; (ii) the canteen is for the exclusive use of the bank staff; (iii) the bank provided the infrastructure facilities; (iv) the managing committee did not contribute anything towards the capital or the expenses for running the canteen; (v) the bank gave subsidies to subsidise the purchase of food articles and (vi) the bank provide cycles and tricycles to the canteen for the supply of foodstuffs - Consequently, the Tribunal came to the conclusion that the thirty three employees have to be treated as workmen of the bank and should be given the same status and facilities as are available to the class IV employees of the bank. The Tribunal also held that the closure of the canteen when the dispute was pending was illegal. (8) The question is whether in view of such categorical findings of fact arrived at by the Tribunal, the learned single Judge exercising jurisdiction under Art. 226 of the Constitution of India could reappreciate the evidence and come to a different conclusion. We have already pointed out that the learned Single Judge had erred in appreciating certain documents and the evidence in the case. We are clearly of the opinion that the learned single Judge had no material to characterise the Judgement of the Tribunal as perverse. We will once again refer to certain important matters which would go a long way to decide the matter. The inference drawn from Ex. M1 that it was the Union, who wanted the canteen is far from truth. The subsequent evidence has got to be looked into on this aspect of the case. In Ex. M4, dated 23.4.1988, the Union has informed the bank about the new canteen promoters for the record of the bank. The inference drawn by the learned Judge from Ex. M5 that the canteen was not exclusive for the bank is based on a misconception. The evidence of MW1 clearly shows that the canteen is meant only for the bank. His evidence is as follows : "... . The inference drawn by the learned Judge from Ex. M5 that the canteen was not exclusive for the bank is based on a misconception. The evidence of MW1 clearly shows that the canteen is meant only for the bank. His evidence is as follows : "... . The canteen is meant only for the staff of the bank the canteen will remain closed on bank holidays... " The observation that the bank was running the canteen to retain good relationship between the union and the management is not appropriate and on the other hand, it only shows that the bank was implicitly bound to maintain the canteen. The learned single Judge has not given due weight to the two principles enunciated in the LIC case and undisturbed by the RBI case. We have already quoted those principles. (9) Once other significant fact which has escaped the attention of the learned single Judge is the letter written by the Central Office of the bank when the promoters expressed their inability to run the canteen with effect from 26-4-90. Says the management as follows : "Member of staff are advised that the canteen will function in our canteen block with effect from 21.10.1992. The contractors will run the canteen with minimum staff for a week on a trial basis to overcome the difficulties if any. The canteen will run normally after a week or so... .." The bank further says that the canteen is for the welfare of the staff and directs as follows : "All members are requested to avail this facility and refrain from going out for coffee and tea. Since the canteen has started functioning the Department Heads should inform all the staff members to restrict their lunch time to half an hour between 12.30 and 3.00 p.m. and the staff may be permitted to go for lunch in fixed time to avoid heavy rush at the canteen... ." The above passage quoted from the letter of the Central Office of the Bank amply establishes that the bank had an obligation to run the canteen and in fact, was running the canteen, through contractors, even though the promoters had withdrawn their services. Actually, it appears that the promoters were desirous of forming a co-operative society and it did not fructify. Actually, it appears that the promoters were desirous of forming a co-operative society and it did not fructify. In this view of the matter, it is clear that as in the LIC case, the bank had been running the canteen by one or other of the agency." 14. In the case of Harjinder Singh Vs. Punjab State Warehousing Corporation reported in (2010) 3 SCC 192 wherein the Hon’ble Supreme Court has held and observed in para 13 as under:- “13. In Surya Dev Rai's case, a two-Judge Bench, after threadbare analysis of Articles 226 and 227 of the Constitution and considering large number of judicial precedents, recorded the following conclusions: "(1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction -- by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction -- by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case." 15. In para 40 of the award, the contention raised by the petitioner with regard to the fact that the Industrial Tribunal has exceeded its jurisdiction by declaring the contract as sham and bogus and camouflage as it is paper contract only. The sufficient oral as well as documentary evidence were produced before the Tribunal and the Tribunal has dealt with the same. Prima facie this Court is of the view that the Tribunal has exceeded its jurisdiction as it is not terms of reference as it was mentioned earlier. In support of the contentions, the petitioner has examined the witnesses and the Union has also examined the witnesses, however, the Tribunal has completely overlooked such facts while declaring that the contract entered into between the petitioner and Union is sham and bogus though it was proved through the sufficient evidence i.e. Form No. 13 and 16 and attendant register which would indicate that the workmen are with the contractor. It appears that sufficient evidence were also produced before the Tribunal which suggests that the salary was paid by the contractor to the workmen and the work was also supervised by the contractor and the contractor has power to initiate the inquiry and/or departmental proceedings. Though there was evidence on record, the Tribunal has not appreciated the said fact in its true and proper spirit and therefore this Court is of the opinion that the findings recorded by the Tribunal is erroneous and illegal. By way of additional affidavit, additional documents and other relevant documents placed on record to convince this Court that all the workmen are having sufficient educational qualification for the post on which they are working. This Court is of the opinion that the decisions which are relied upon on behalf of the respondent – Union are not come to the rescue with regard to the contention i.e. waived educational qualification of the concerned workmen for the purpose of absorbing and regularizing their services with the petitioner is completely contradictory. 16. Considering all relevant materials and the documents placed on record, it appears that though the Tribunal has prima faice observed that the workmen engaged by the contractor and earlier proceedings were initiated between the petitioner and the respondent – Union and dispute reached upto this Court. It is relevant to note that so far as genuineness of the contract is concerned, the power is vested with the Advisory Board and unless and until the Advisory Board declared that the contract entered into between the petitioner and the respondent – Union is merely a paper contract and camouflage, the Tribunal has declared the contract as sham and bogus. The Tribunal has no power to declare such contract as sham and bogus in absence of declaration by the Advisory Board or in absence of prohibitory notification issued by the State Government. Even said fact was very much observed by the Tribunal in earlier award decided by it on 05.06.2003, however, in the final award, the Tribunal has observed that since the reference was referred to the Contract Labour Advisory Board being No. 87 of 1997 till the final decision, alive at the stage this issue is kept pending. Even said fact was very much observed by the Tribunal in earlier award decided by it on 05.06.2003, however, in the final award, the Tribunal has observed that since the reference was referred to the Contract Labour Advisory Board being No. 87 of 1997 till the final decision, alive at the stage this issue is kept pending. Even in the said award, the Tribunal has observed that as the Union has challenged the action of the petitioner to allocate the tender in place of M/s. Desein (New Delhi) Pvt Ltd, they have approached this Court by filing Special Civil Application No. 2221 of 1996 wherein the Court passed an order on 30.04.1996 and by virtue of the interim order, the service condition of the workmen pointed out by the contractor namely M/s. Desein (New Delhi) Pvt Ltd shall not be changed and they shall be continued to work with respondent No.2. Though this observation made by the Tribunal in very reference, however, the Tribunal has recorded the final conclusion which is completely contrary to law. At the time of admission of this petition, though the said contention raised on behalf of the petitioner, prima facie the Court finds that the matter is required to be adjudicated and, therefore, admitted the petition and interim relief was granted which is continued till today. It is contended on the part of the respondent – Union that though there was circular issued by the petitioner on 28.05.1998 whereby Resolution No. 10643 of 1998 dated 29.04.1998 was forwarded to all the concerned departments in which the Board has decided to abolish the contract system in operation and maintenance activities being carried out in the power station in future wherever the power station is required contract in all the activities, the prior approval of the chairman is necessary and the system is gradually abolished and meaning thereby the members of the contract labour will have to absorb in the service and since the board itself has taken the decision by way of the said circular and even the board itself resumed to abolish the system, under such circumstances, till date the said resolution was not implemented as there was no approval granted by the chairman till date and, therefore, the said contention has no avail and helpful to the respondent – Union. 17. 17. The decisions relied upon on behalf of the respondent – Union are not helpful to the respondent and even the facts of the Letters Patent Appeal No. 1549 of 2022 in Special Civil Application No.6262 of 2017 are totally different then the facts of the present case and, therefore, the observation made by the Division Bench of this Court in the said Letters Patent Appeal is not helpful to the respondent in the present case. Though in 2003, the very Tribunal has opined that unless and until the dispute pending before the Advisory Board was not decided, the respondent approached this Court by way of filing Special Civil Application No. 8916 of 2003 as expeditiously as possible and, thereafter, within no time, the present reference was decided by the Tribunal and surprisingly the finding is completely contrary to the finding recorded in 2003 by the very Tribunal at Annexure – H of the petition. 17.1 While passing the impugned order in 2003, the Tribunal has observed, while referring to the decision of the Hon’ble Supreme Court in the case of Gujarat Electricity Board Vs Hind Mazdoor Sabha reported in (1995) 5 SCC 27 more particularly in paras - 40 to 44, 53 and 54 referring the earlier decision of the Hon’ble Supreme Court that the declaring the contract is mere paper work camouflage and/or it is sham and bogus, which is not lies upon the Tribunal and, therefore, the Tribunal has exceeded jurisdiction while dealing with reference as it is not terms of the reference as mentioned earlier. The said paras 40 to 44, 53 and 54 read as under:- “40. As regards the second contention based on the provisions of Sec. 10 of the Act, viz. that the decision of the Government under the said provision, as to whether it should be abolished or not, is final and the same cannot be challenged in any court including before the industrial adjudicator. Shri Venugopal in support of his contention relied upon certain decisions of this Court under the Citizenship Act, 1955 where the finality is attached to the decision of the Central Government taken under Sec. 9 [2] of the said Act. The provisions of Sec. 9 [2] of the Citizenship Act which are more or less pari materia with the provisions of Secs. The provisions of Sec. 9 [2] of the Citizenship Act which are more or less pari materia with the provisions of Secs. 10 of the present Act, are as follows: ["[2] If any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf."] 41. The decisions of the Court in that behalf are Akbar Khan Alam Khan & Anr. V/s. The Union of India & Ors., [ (1962) 1 SCR 779 ], Mohd. Ayub Khan V/s. Commissioner of Police, Madras and Anr. [ (1965) 2 SCR 884 ], State of Uttar Pradesh V/s. Abdul Rashid & Ors. [(1984) Supp. SCC 347] and Bhagwati Prasad Dixit 'Ghorewala' v. Rajeev Gandhi [ (1986) 4 SCC 78 ]. 42. It is not necessary for us to go into the question of the finality of the decision under Sec. 10 of the Act since as held by this Court in Vegoils Pvt. Ltd. B.H.E.L. Workers' Association, Catering Cleaners of Southern Railway, and Dena Nath [supra], the exclusive authority to decide whether the contract labour should be abolished or not is that of the appropriate Government under the said provision. It is further not disputed before us that the decision of the Government is final subject, of course, to the judicial review on the usual grounds. However, as stated earlier, the exclusive jurisdiction of the appropriate Government under Sec. 10 of the Act arises only where the labour contract is genuine and the question whether the contract is genuine, or not can be examined and adjudicated upon by the court or the industrial adjudicator, as the case may be. Hence in such cases, the workmen can make a grievance that there is no genuine contract and that they are in fact the employees of the principal employer. 43. It is no doubt true that neither Sec. 10 of the Act nor any other provision thereof provides for determination of the status of the workmen of the erstwhile contractor once the appropriate Government abolishes the contract labour. 43. It is no doubt true that neither Sec. 10 of the Act nor any other provision thereof provides for determination of the status of the workmen of the erstwhile contractor once the appropriate Government abolishes the contract labour. In fact, on the abolition of the contract, the workmen are in a worse condition since they can neither be employed by the contractor nor is there any obligation cast on the principal employer to engage them in his establishment. We find that this is a vital lacuna in the Act. Although the Act has been placed on the statute book with all benevolent intentions, and elaborate provisions are made to prevent the abuse of the contract labour system as is evident from the Statement of Objects and Reasons and the provisions of the Act referred to by us in detail earlier, the Legislature has not provided any relief for the concerned workmen after the contract is abolished. One reason for the same pointed out to us was that the workmen engaged by the contractor may not be qualified to be engaged by the principal employer according to the latter's rules of recruitment. In this respect, we envisage two different situations, first where similar type of work is being carried out by the direct employees of the principal employer and, second where the contract labour is engaged to execute work which is not being carried out by any section of the direct employees of the principal employer. As regards the first situation, the condition No.[5]of the licence to be granted to the contractor in Form VI under Rule 25 [1] of the Rules requires that wage rates, holidays, hours of work and other conditions of service of the contract workmen shall be the same as; applicable to the workmen directly employed by the principal employer for performing the same or similar type of work. In other cases, the wage rates, holidays, hours of work and other conditions of service of the workmen of the contractor, as per condition [6] of the said Form, shall be such as may be specified by the Chief Labour Commissioner [Central]. When the Legislature has been careful enough to take such precautions, we are unable to appreciate as to why it could not have provided also for the absorption of the workmen who have been doing the work in question. When the Legislature has been careful enough to take such precautions, we are unable to appreciate as to why it could not have provided also for the absorption of the workmen who have been doing the work in question. It is possible that the contractor has been transferring his workmen from one job to another and the same workmen may not be working for all the time in the same establishment or the process. But as pointed out earlier, the application for registration under Rule 17[1], the certificate of registration under Rule 18 [1], the registration of establishment under Rule 18(3), the application for licence under Rule 21 [1] and the licence granted under Rule 25 [1] all require the particulars of contract labour to be furnished in the prescribed form. Hence it should not be difficult to verify the workmen who were actually working in the establishment in question for a given period of time and the period for which they had worked since the record of payment of wages made to them would be available as it is to be made in the presence of the representative of the principal employer who is also responsible to make the payment of the whole of the wages or the balance of it in case the contractor makes default. For ensuring the payment to the workmen, the muster roll has necessarily to be maintained. If they have in fact worked for a reasonably long time satisfactorily and have thus gained experience, it should not be difficult to identify and absorb them. In fact, they will any time be better than fresh recruits and their engagement would be beneficial to the establishment concerned. On account of the abolition of the contract labour, the establishment will in any case require replacement of the contract labour. It may be that the establishment may not require the whole complement of the workmen erstwhile employed by the contractor. But that also may not always be correct since the contractor would more probably than not have employed less workforce than may be necessary in order to keep his margin of profit as wide as possible. Whatever the case, the logic in not employing the workmen of the erstwhile contractor or those of them who may be necessary, in the principal establishment after the contract is abolished, does not appear to be sound. 44. Whatever the case, the logic in not employing the workmen of the erstwhile contractor or those of them who may be necessary, in the principal establishment after the contract is abolished, does not appear to be sound. 44. The Legislature probably did not consider it advisable to make a provision for automatic absorption of the erstwhile contract labour in the principal establishment on the abolition of the contract labour, fearing that such provision would amount to forcing the contract labour on the principal employer and making a contract between them. The industrial adjudicator however is not inhibited by such considerations. He has the jurisdiction to change the contractual relationships and also make new contracts between the employer and the employees under the ID Act. It is for this reason that in all cases where the contract labour is abolished, the industrial adjudicator, depending upon the facts of the case will have the authority to direct the principal employer to absorb such of the workmen of the erstwhile contractor and on such terms as he may determine on the basis of the relevant material before him. Hence the Legislature could have provided in the Act itself for a reference of the dispute with regard to the absorption of the workmen of the erstwhile contractor to the industrial adjudicator after the appropriate Government has abolished the contract labour. That would also have obviated the need to sponsor the dispute by the direct workmen of the principal employer. That can still be one by a suitable amendment of the Act. 53. Our conclusions and answers to the questions raised are, therefore, as follows: [[i] In view of the provisions of Sec. 10 of the Act, it is only the appropriate Government which has the authority to abolish genuine labour contract in accordance with the provisions of the said Section. No court including the industrial adjudicator has jurisdiction to do so.] [[ii] If the contract is sham or not genuine, the workmen of the so-called contractor can raise an industrial dispute for declaring that they were always the employees of the principal employer and for claiming the appropriate service conditions. When such dispute is raised, it is not a dispute for abolition of the labour contract and hence the provisions of Sec. 10 of the Act will not bar either the raising or the adjudication of the dispute. When such dispute is raised, it is not a dispute for abolition of the labour contract and hence the provisions of Sec. 10 of the Act will not bar either the raising or the adjudication of the dispute. When such dispute is raised, the industrial adjudicator has to decide whether the contract is sham or genuine. It is only if the adjudicator conies to the conclusion that the contract is sham, that he will have jurisdiction to adjudicate the dispute. If, however, he conies to the conclusion that the contract is genuine, he may refer the workmen to the appropriate Government for abolition of the contract labour under Sec. 10 of the Act and keep the dispute pending. However, he can do so if the dispute is espoused by the direct workmen of the principal employer. If the workmen of the principal employer have not espoused the dispute, the adjudicator, after coming to the conclusion that the contract is genuine, has to reject the reference, the dispute being not an industrial dispute within the meaning of Sec. 2 (k) of the ID Act. He will not be competent to give any relief to the workmen of the erstwhile contractor even if the labour contract is abolished by the appropriate Government under Sec. 1.0 of the Act.] [[iii] If the labour contract is genuine a composite industrial dispute can still be raised for abolition of the contract labour; and their absorption. However, the dispute, will have to be raised invariably by the direct employees of the principal employer. The industrial adjudicator, after receipt of the reference of such. dispute will have first to direct the workmen to approach the appropriate Government for abolition of the contract labour under Sec. 10 of the Act and keep the reference pending. If pursuant to such reference, the contract labour is abolished by the appropriate Government, the industrial adjudicator will have to give opportunity to the parties to place the necessary material before him to decide whether the workmen of the erstwhile contractor should be directed to be absorbed by the principal employer, how many of them and on what terms. If pursuant to such reference, the contract labour is abolished by the appropriate Government, the industrial adjudicator will have to give opportunity to the parties to place the necessary material before him to decide whether the workmen of the erstwhile contractor should be directed to be absorbed by the principal employer, how many of them and on what terms. If, however, the contract labour is not abolished, the industrial adjudicator has to reject the reference.] [[iv] Even after the contract labour system is abolished, the direct employees of the principal employer can raise an industrial dispute for absorption of the ex-contractor's workmen and the adjudicator on the material placed before him can decide as to who and how many of the workmen should be absorbed and on what terms.] 54. It is in the light of the above position of law which emerges from the provisions of the Act and the judicial decisions on the subject that we have to answer the contentions raised in different civil appeals before us. As regards the present civil appeal, the facts of which have already been referred to earlier, Shri Venugopal, the learned Counsel for the appellant-Board contended that none of the direct workmen of the Board had espoused the cause of the contract labour and hence the Tribunal had no jurisdiction to entertain the reference. He also submitted that any amount of consent by the appellant-Board for such a reference will not confer jurisdiction on the Tribunal to entertain the reference.” 17.2 This Court (Coram: Hon’ble Mr.Justice Akil Kureshi,J.) has passed the following order on 11.08.2004 in Special Civil Application No. 8916 of 2003. “Learned Advocate for the petitioner states that the Reference pending before the Industrial Nadiad, being Reference IT No. 721 of 1998 (Old No. 146 of 1996) is yet not disposed of. He states that the depositions have already been recorded and only arguments of both sides are to be heard by the new Presiding Officer and that the main dispute itself can be ordered to be disposed of within a certain time frame. Considering the submissions, this petition is disposed of with a request to the concerned Industrial Tribunal to dispose of the above mentioned Reference within a period of 3 months from the date of receipt of a copy of this order. Considering the submissions, this petition is disposed of with a request to the concerned Industrial Tribunal to dispose of the above mentioned Reference within a period of 3 months from the date of receipt of a copy of this order. It will be open for the Industrial Tribunal to fix a date of hearing for submissions of both sides and it is expected that both sides will cooperate with the hearing of the dispute and its early disposal. With these observations, the petition stands disposed of. Rule is made absolute to the above extent with no order as to costs.” 18. 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, reported in (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. 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. 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. 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. 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. 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. 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; and (vi) extent of control and supervision i.e. whether there exists complete control and supervision. As regards extent of control and supervision, we have already taken note of the observations in Bengal Nagpur Cotton Mills case [ (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. 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.” 19. 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. 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.” 19. 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 reported in (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 (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. 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 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 or 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. 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. 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.” 19.1 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. 19.2 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. In our view, the following consequences follow on issuing a notification under S.10(1) of the CLRA 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; or 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.” 19.3 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; and (ii) other relevant factors including those mentioned in subsec.(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 Judgement and subject to the clarification that on the basis of this Judgement 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 Judgement 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 Judgement 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 Judgement 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.” 20. 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 reported in (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. 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 Shay if, [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; and (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. 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. 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.” 21. 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; (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 judgement 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. (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. (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. (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. (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. 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.” 22.1 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. 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.” 23. In the case of Kirloskar Brothers Limited Vs. Ramcharan and other reported in (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. 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. 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; and 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. 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, and (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.” 24. Considering the aforesaid facts and circumstances of the case and the submissions made on behalf of both the sides and the decisions cited at the Bar, this Court is of the opinion that the Tribunal has committed an error while passing the impugned award and exceeded its jurisdiction beyond the scope of the limitation. Therefore, the interference is required to be called for in the present petition and the petition deserves to be allowed and the impugned award deserves to be quashed and set aside. 25. For the foregoing reasons, the present petition is allowed. The impugned award dated 20.10.2004 passed by the learned Industrial Tribunal, Nadiad in Reference (I.T.N.) No. 721 of 1998 is hereby quashed and set aside. Rule is made absolute accordingly. There shall be no order as to costs.