JUDGMENT : Heard the learned counsel appearing on behalf of the parties. 2. This writ petition has been filed for quashing the Award dated 19.02.2001 of the Central Government Industrial Tribunal No.1, Dhanbad in Ref. No. 26 of 1993 (Annexure-7) whereby the reference has been answered in favour of the workmen. The Term of Reference was as follows: - The Schedule “Whether the demand of Bihar Colliery Kamgar Union (CITU) for regularisation of Shri Lall Babu Singh, Amulo Oraon, Sambhu Prasad, Kishun Dhobi, Ram Kumar Singh, Sanjay Singh, Ajoy Singh, Yogal Pandey, Randhir Singh, Amrit Oraon, Omesh Oraon, Nepul Oraon, Bhikhu Mahto, Nand Kishor Yadav, Vijoy Kumar Saw, Yugesh Thakur, Sudhir Rajak & Prabhu Paswan on the roll of BCCL and payment to them the wages as per NCWA with retrospective effect is justified? If so, to what relief these workmen are entitled?" 3. Arguments of the Petitioner. (i) In this writ petition, the award has been challenged wherein a direction has been issued for regularization of 18 workmen. (ii) It is submitted that the impugned award has been passed primarily by referring to the judgment passed by the Hon’ble Supreme Court reported in (1997) 9 SCC 377 (Air India Statutory Corporation & Others vs. United Labour Union & Others), but the said judgment has been overruled by the Constitution Bench judgment reported in (2001) 7 SCC 1 (Steel Authority of India Ltd. & Others vs. National Union Waterfront Workers & Others). He submits that earlier the judgment reported in (1992) 1 SCC 695 (Dena Nath & Others vs. National Fertilizers Ltd. & Others) was overruled in the judgment reported in (1997) 9 SCC 377 (supra) and since the judgment reported in (1997) 9 SCC 377 (supra) has been overruled by the judgment reported in (2001) 7 SCC 1 (supra), the judgment reported in (1992) 1 SCC 695 (supra) has revived. (iii) On the merits of the case, the learned counsel for the petitioner has submitted that it was the specific case of the workmen that they were working in permanent and prohibited category of job of Tyndal at Kachi-Balihari Colliery since long and for all purposes they were the employees of the petitioner and they were performing the permanent nature of job in connection with running of the mine. Their grievance was that though the Management had carried out the Wage Board Recommendation wherein there was a specific recommendation to place the Tyndal in Category-IV, but these workmen were performing the same nature of work as others [who were getting Category IV wages and designation of Tyndal] but they were denied the same status as that of such similar workmen. It was also the case of the workmen that the payment of wages to them through different intermediaries was nothing but a legal camouflage. (iv) The learned counsel submits that in the written statement filed by the Management, it was the specific case that there was no employer-employee relationship; rather, the concerned workmen were members of a Co-operative Society and it was the Co-operative Society, who had employed these workmen for carrying out certain work. It was also asserted that the provisions of Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as the aforesaid Act of 1970) do not prohibit employment of contract labour altogether but it only regulates the employment of Contract Labour in certain establishments and provides its abolition in certain circumstances which would appear to be the ultimate object of the aforesaid Act of 1970. The further case of the Management was that the concerned workmen were never employed in the permanent and prohibited category of job of ‘Tyndal’ at any point of time. It was also asserted that the documents relied upon by the workmen were fake and no relief could be granted to the concerned workmen on the basis of such documents. (v) The learned counsel submits that it was for the respondent-workmen to bring on record the notification regarding the work claimed to have been included in prohibited category but no such notification was brought on record before the learned Tribunal. (vi) The learned counsel submits that aforesaid aspects of the matter when seen in light of the judgment reported in (2001) 7 SCC 1 would lead to a conclusion that the impugned award is perverse and calls for interference. He has also submitted that the impugned award having been based on the judgment reported in (1997) 9 SCC 377 (supra) calls for interference as it has been overruled in the judgment reported in (2001) 7 SCC 1 (supra). The award in the present case has been passed on 19.02.2001. He has also submitted that the impugned award having been based on the judgment reported in (1997) 9 SCC 377 (supra) calls for interference as it has been overruled in the judgment reported in (2001) 7 SCC 1 (supra). The award in the present case has been passed on 19.02.2001. (vii) The learned counsel for the petitioner has relied upon the judgment passed by the Hon’ble Supreme Court reported in (2017) 01 SCC 264 (Rashtriya Colliery Mazdoor Sangh, Dhanbad Vs. Employers in relation of Management of Kenduadih Colliery of BCCL) and submitted that in the said case also, the matter was relating to workmen, who were 'Tyndals' and the Hon’ble Supreme Court has taken note of the fact that much time had elapsed and ultimately directed for payment of Rs.4 lakhs to each workman as full and final settlement. The learned counsel submits that the said judgment has taken note of the earlier judgment reported in (2016) 09 SCC 431 (Workmen Rastriya Colliery Mazdoor Sangh Vs. BCCL), wherein in relation to unskilled workmen compensation of Rs.2 lakh each was directed to be paid and in the said case, the workmen were engaged between the period 1987 and 1989. He submits that as per the case of the respondents, the workmen involved in the present case were engaged in the year 1985 and 39 years have elapsed and the award has denied back wages to the workmen, to which, no cross writ has been filed. 4. Arguments of the Respondents. (i) The learned counsel for the respondents has opposed the prayer and submitted that the impugned award does not suffer from any perversity. It is submitted that there is a clear finding that the concerned workmen were interalia working as ‘Tyndal’. He has also submitted that there is no denial by the petitioner-management in their written statement that the work of ‘Tyndal’ did not fall under the prohibited category, rather the case of the management was that the concerned workmen were not working as ‘Tyndal’. He has relied upon the judgment passed by this Court in LPA No. 426 of 2010 decided on 26th July, 2011 and the judgment passed by the Hon’ble Supreme Court in Contempt Petition (C) No.112 of 2010 in Civil Appeal No.3962 of 2006 decided on 30th of August 2010. He has relied upon the judgment passed by this Court in LPA No. 426 of 2010 decided on 26th July, 2011 and the judgment passed by the Hon’ble Supreme Court in Contempt Petition (C) No.112 of 2010 in Civil Appeal No.3962 of 2006 decided on 30th of August 2010. He has further relied upon the judgment passed in W.P. (L) No. 1578 of 2010 and submits that the case of the respondents is squarely covered by these judgments. (ii) It has been submitted that has submitted that there was enough material in connection with engagement of the workmen as 'tyndals'. He has in particular referred to Exhibit M/1, and has submitted that altogether 18 workmen are involved in the present case. He has also submitted that the quantification of amount with respect to each workman would be more than Rs.4 lakhs and the workmen may have either attained the age of superannuation or would be on the verge of superannuation. He submits that it is for the Court to pass appropriate order but the fact remains that the back wages have already been denied to the concerned workmen by the impugned award. The learned counsel for the respondents has also submitted that he has got no up-to-date instructions with regard to the status of the concerned workmen as to whether they are dead or alive. 5. Rejoinder arguments of the Petitioner. At this, the learned counsel for the petitioner has also submitted that after a long lapse of time, the identity of the concerned workmen would also be an issue and it is not clear from the record as to whether all of them are still alive. It has been reiterated that the judgements reported in (2016) 09 SCC 431 (supra) and (2017) 01 SCC 264 (supra) may be taken into consideration. Findings of this Court. 6. As per the written statement filed by the Union, the concerned workmen have been working in permanent and prohibited category of job of ‘Tyndal’ at Kachhi balihari Colliery since long and they have been performing permanent nature of job within the precinct and premises of the mine under direct control and supervision of the petitioner management and all the implements necessary for the execution of the job were being supplied by the management. As per the Wage Board Recommendation, the ‘Tyndals’ were placed in Category-IV. As per the Wage Board Recommendation, the ‘Tyndals’ were placed in Category-IV. It was their grievance that other workmen were getting category-IV wages and designation of ‘Tyndals’ but the same was deprived to these workmen and accordingly, the concerned workmen raised their demand of Category-IV wages and also for wages at par with other similarly situated workmen working as ‘Tyndals’. It was the case of the workmen that in order to deprive them from their entitlement, they were being paid through different intermediaries and such an arrangement was a legal camouflage and was a paper arrangement. It was also their case that neither the intermediary had any control over the concerned workmen nor their work was supervised by such intermediary. It was also raised that the intermediaries were not in possession of any license. Seeing no alternative, dispute was raised before Assistant Labour Commissioner and ultimately the reference was made. 7. On the other hand, as per the written statement-cum-rejoinder filed by the management, the concerned workmen worked in Kachchi balihari Colliery at 5/7 pit hydro-mining under contractor during the year 1987-88 and when the contractor did not work, they themselves formed a Co-operative namely Pragatishil Shramik Sahayog Samiti Limited (hereinafter referred to as the Samiti) having branch at Pathardih and at Balihari colliery. The said Samiti nominated two persons who supervised the work performed by the workmen and those two persons were authorized to sign the bills and receive the cheques and submit the same to the Co-operative Bank, Dhanbad for payment. The Samiti was awarded contract work on civil construction jobs, cleaning of debris, transport of machinery etc. which were not prohibited type of job as alleged by the Union. It was asserted that there was no employer-employee relationship between the management and the employees. Since the management never took work from them, nor they were on the rolls of the company and the management was not even aware as to whether the aforesaid Samiti has done the contract work by engaging these workmen. 8. It was also asserted that an industrial dispute was raised by Sri Lal Babu Singh and 27 others earlier and was ultimately withdrawn by the Rashtriya Colliery Mazdoor Sangh and now the workmen were trying to make entry in the company by manufacturing fake documents through new Union called Bihar Colliery Kamgar Union. 8. It was also asserted that an industrial dispute was raised by Sri Lal Babu Singh and 27 others earlier and was ultimately withdrawn by the Rashtriya Colliery Mazdoor Sangh and now the workmen were trying to make entry in the company by manufacturing fake documents through new Union called Bihar Colliery Kamgar Union. With regard to the payment, it was asserted that payment was made to the co-operative with respect to the work order and the measurement done. 9. The management had also filed reply to the parawise statement of the written statement filed of the Union and a specific stand was taken in response to paragraph 1 that the concerned workmen were never employed in the permanent and prohibited category of job of ‘Tyndal’ at any point of time. A reference was made to the judgment passed by the Hon’ble Supreme Court in the case of Dena Nath versus National Fertilizer Limited reported in (1992) 1 SCC 695 asserting that the contract workers cannot claim regularization in the service of the management. 10. It was further asserted that only the regular workers on the roll of the company were entitled to get Category—IV wages as per NCWA. It was also asserted that the supervision of work of the contract workers was done by the contractor himself and not by the management. A specific statement was made in paragraph 9 of the parawise reply that if the so-called intermediary does not possess license, it was for the authority under Contract Labour (Regulation and Abolition) Act, 1970 to take legal action against the management and the contractor, and non-possession of license will not make the workers under the contractor as workers under the management. It was also asserted that the provision of aforesaid Act of 1970 does not prohibit the employment of contract labour altogether, but it only regulates the employment of contract labour in certain establishment and provides its abolition in certain circumstances which is the ultimate object of the Act. 11. Before the learned Industrial Tribunal, the workmen also filed a rejoinder to the written statement of the management and reiterated that they were performing the work of “Tyndal” and other permanent nature of job which were directly linked with the production as per the strict supervision of the management and engagement through co-operative society as alleged was only a paper arrangement and a camouflage. They reiterated that there was relationship of employer-employee between the workmen and the management and they were working under direct control and supervision of the management in production of the colliery and during the pendency of the case, the management stopped taking work from them. 12. The following two issues have been framed by the learned Tribunal for consideration: - Whether there is relationship of employer and employee between the management of BCCL and the concerned persons whose names find place in the schedule to the order of reference? If so, are they entitled for relgularisation on the roll of M/s. BCCL? What relief or relief if any to the concerned workmen are entitled to? 13. Management witness MW 1, during his cross examination, has clearly stated that shifting and transporting of machinery is done by Tyndal. The concerned workmen were doing the job of “Tyndal” but under the contractor. He also stated that in all the collieries, there are permanent Tyndal workers and job of Tyndal is a permanent nature of work as per NCWA. It was not correct to say that the work of the concerned workmen was always supervised by the management side. He also stated that on the I.D. Card Exhibit M-1 series, there are signature of the management side and two contractors have also signed namely Lav Kumar Ram and Brij Raj Mishra though no contract was given to Lav Kumar Ram and Brij Raj Mishra for working as Tyndal. It was also stated that it was not correct to say that so called co-operative of the concerned workmen have no power to engage worker or to stop his work. 14. The Management witness MW-2, during cross examination, has stated that prohibited category of job which are coal cutting, earth cutting etc. and he had proved the signature on the work order and not its content and as per the work order, work mentioned as stone cutting falls under prohibited category of job. This witness during his examination-in-chief had mentioned that the workmen used to do the work as per the nature of work mentioned in the contract order and he had asserted that they were never engaged in prohibited category of work. 15. The Surveyor was also examined on behalf of the management as MW-3. This witness during his examination-in-chief had mentioned that the workmen used to do the work as per the nature of work mentioned in the contract order and he had asserted that they were never engaged in prohibited category of work. 15. The Surveyor was also examined on behalf of the management as MW-3. He has stated that during his tenure, contract was given by the management to the aforesaid Samiti and he used to take measurement upon completion of job and the workmen were engaged by the aforesaid samiti on its own and the management had nothing to do with the same. The payment was made by the Samiti to the worker and not by the management. During his cross-examination, he has stated that underground job of all workers was supervised by the competent person and the Samiti was not given any tender or entered into any agreement with the management but were given some work orders for doing some work and Lal Babu Singh was the head of the group of the workmen. He has also stated that he had taken the measurement of the work done by the management. 16. On behalf of the workmen, Lal Babu Singh was examined and he fully supported the case of the workmen. 17. WW-1 clearly stated that he along with others were working as Tyndals since 1985 and were working in underground mine for eight years every day and their attendance was being marked in the register as well as in the cap lamp office by obtaining cap lamp. They used to do the work allotted to them by the manager Sri Sharma. The mining sardar and overman used to supervise their work. He also produced three sheets known as stores issue slip under the signature of Sri Sharma which were exhibited as Exhibit W-1 to W-1/2. He produced two sheets of photocopy of different sheets where name of the workmen was written on different dates. They were also marked as exhibits. Further documents were also produced in photocopy in eight sheets. On the basis of these documents, it was asserted that he along with other concerned workmen were working for more than 240 days in a year in a permanent nature of job but management stopped them from working since 1993 without any notice or compensation. Further documents were also produced in photocopy in eight sheets. On the basis of these documents, it was asserted that he along with other concerned workmen were working for more than 240 days in a year in a permanent nature of job but management stopped them from working since 1993 without any notice or compensation. He also exhibited photocopy of the job register which were also marked exhibits and asserted that he had never constituted any co-operative society and denied that Brij Raj Mishra and Lav Kumar were ever authorized by them to sign bills or to receive cheques or to supervise their work. He has asserted that Lav Kumar was a permanent mazdoor working under the management and he was engaged so that less wages are paid to the concerned workmen and to maintain that the concerned workmen are contractors’ workers. He produced certain bills which were also marked as exhibits. 18. The learned Tribunal upon considering the evidences placed on record on behalf of the workmen found as follows:- “I find that he has fully supported its case. From the job register it appears that there is description of job upon which they have been engaged. sometimes they have been engaged for ash cleaning job, sometimes for coal transport, sometimes on Tyndal job i.e. carrying of heavy machineries from one place to other place, sometimes in the job of stone cutting and coal cutting. Ext. W-1 shows the requisition slip issued for different implements from the stores. Ext. W-2 series are the name of the concerned persons showing their engagement on different job on different dates. Ext. W-3 series are the notesheets of the management under the signature of the Superintendent of Mines, Senior Executive Engineer, Agent of the colliery and the General Manager of the Area. From these notesheets it is apparent that due to shortage of departmental man power cooperative workers were engaged in misc. underground job related to production. Such persons were engaged in work under the strict supervision of the officers and it has been certified that the man power consumed against the job mentioned are minimum possible. By these notesheets amount for payment to such contractor, workers have been sought to be approved @ 21. 16 per head. Thus from Ext. underground job related to production. Such persons were engaged in work under the strict supervision of the officers and it has been certified that the man power consumed against the job mentioned are minimum possible. By these notesheets amount for payment to such contractor, workers have been sought to be approved @ 21. 16 per head. Thus from Ext. W-3 series which are eight in numbers it is clear that the coopertive workers were engaged by the management due to shortage of departmental manpower on the job related to production. The sponsoring union had filed an application for giving direction to the management to produce these notesheets but the management did not file the original nor they have offered any explanation for not filling the same. The management has examined three witnesses but none of them has challenged the genuineness of these notesheets, Ext. W-3 series. The management in cross-examination to WW-1 Lal Babu Singh who has produced and proved these notesheets has not suggested that these note sheets are manufactured documents. Thus, I find that genuineness of these notesheets have not been challenged in any stage by the management. Therefore, these notesheets clearly speak that cooperative workers were engaged in misc. underground job related to production due to shortage of departmental man power. Thus, the notesheets falsify the plea of the management that cooperative workers were working under any contractor. These notesheets are of the relevant period. There are two notes of Senior Mining Engineer marked Ext. W-4 and W-4/1 which also indicate that due to shortage of man power cooperative workers were engaged in misc. underground job related to production @ 21.60 per head. Ext. W-6 series are the bills of M/S.BCCL making payment to the cooperative workers @ 21.16 paise per head for the concerned period. Thus, the documents have also not been challenged to be not genuine. Thus, it is clear that the cooperative workers were engaged in the job related to production during the concerned period by the management.” 19. Ext. W-6 series are the bills of M/S.BCCL making payment to the cooperative workers @ 21.16 paise per head for the concerned period. Thus, the documents have also not been challenged to be not genuine. Thus, it is clear that the cooperative workers were engaged in the job related to production during the concerned period by the management.” 19. The learned Tribunal also discussed the evidence of the management and clearly recorded that the work orders as produced by the management did not bear the signature of any of the workman or Lal Babu Singh, who was said to be the gang leader of the concerned persons and the management’s own witness MW-1 in his evidence admitted that whenever the workmen were doing this work under a contractor, tender and quotations were called for, but when they started working by forming a co-operative, no tender or quotation was called for. The learned Tribunal recorded that it was apparent that so called co-operative society had not filled any quotation nor any tender was invited and there was no evidence from the side of the management to show that any valid tender or contract was made by the co-operative society, and on the other hand, the note sheet of the management clearly showed that the concerned workmen were engaged due to shortage of regular manpower in the job related to production. The learned Tribunal also recorded by referring to evidence of MW-1 that the concerned workmen were shifting and transporting machines which is the job of ‘Tyndal’ which is a permanent nature of job and has been prohibited for engagement of contract labour. The learned Tribunal further discussed the evidence of MW-2, who stated that coal cutting, earth cutting are prohibited category of job and stone cutting of job is also prohibited category in which the contractor cannot be used. The learned Tribunal also recorded that according to the management, cheques were issued to the said co-operative society but no cheque or counterfoil was produced nor there was any endorsement in any of the bills regarding receipt of cheque by any of the persons of the co-operative society. The learned Tribunal had also come to a conclusion that as per the evidence of the management, the workers were working as ‘Tyndal’ which fell in the prohibited category. 20. The learned Tribunal had also come to a conclusion that as per the evidence of the management, the workers were working as ‘Tyndal’ which fell in the prohibited category. 20. After having discussed the evidence as aforesaid, the learned Tribunal recorded a finding that there was reliable evidence to show that the concerned persons were engaged by the management for miscellaneous job related to production of coal due to shortage of manpower during the concerned period, but in order to camouflage the matter, the management had made certain paper arrangement regarding showing them as contractor workers under the aforesaid Samiti. The finding is as under: - “7……. Thus, from the materials available on record I find that there is reliable evidence to show that the concerned persons were engaged by the management for misc. job related to the production of coal due to shortage of manpower during the concerned period but in order to camouflage the matter the management has made certain paper arrangement regarding showing them as contractors workers under the Pragatishil Shramik Sahayog Samity.” 21. After having held that the concerned workmen were engaged by the management for misc. job related to the production of coal due to shortage of manpower during the concerned period but in order to camouflage the matter, the management has made certain paper arrangement regarding showing them as contractor’s workers under the aforesaid Samiti. The learned Tribunal recorded that the management had not produced any document to show that they were registered under the aforesaid Act of 1970 and no licence of the contractor was produced and then referred to the judgement passed by the Hon’ble Supreme Court in the case of Air India Statutory Corporation (supra) to hold that in absence of registration and licence, the contract workmen are deemed to be employee of the principle employer, and therefore, the concerned workmen are the workmen of the petitioner and there is employer-employee relationship between them. The learned Tribunal also held on the basis of materials on record that the management witnesses themselves admitted that the management had supervised the work of the concerned workmen and held as follows:- “8…….. The management witnesses themselves have admitted that under the Mines Act it is the management which supervises the work of the concerned persons also. The learned Tribunal also held on the basis of materials on record that the management witnesses themselves admitted that the management had supervised the work of the concerned workmen and held as follows:- “8…….. The management witnesses themselves have admitted that under the Mines Act it is the management which supervises the work of the concerned persons also. They have admitted that unless a person is competent and authorized by the management he cannot supervise the work of even contractor worker into the underground mines. Therefore, it is clear that the concerned persons were doing the prohibited category of job since long under the direct supervision of the management and they were engaged by the management due to paucity of man power. Therefore, I find that relationship of employer and employee exists between the management of M/s. B.C.C.Ltd. and the concerned persons and since they were engaged in permanent nature of job they are entitled to be absorbed as permanent employee of the management from the date they are doing the prohibited category of job. Accordingly, this point is answered.” 22. This Court finds that the learned Tribunal has given clear finding that the concerned workmen were engaged by the petitioner - management and were working under their direct supervision and control and were engaged in permanent nature of job and were entitled to be absorbed as permanent employee of the management from the date they are doing the prohibited category of job and it was also recorded that the management witnesses had themselves admitted that the stone cutting, coal cutting and tyndal work were prohibited category of job. It has also been held that the arrangement with the aforesaid Samiti was a paper arrangement. In absence of any findings that the concerned workmen were engaged through a contractor, the reliance on the judgment passed in the case of Air India Statutory Corporation (supra) and the subsequent judgement passed in the case of Steel Authority of India Limited (supra) do not have much relevance as the workmen were found to have been employed directly by the petitioner-management and accordingly, the finding of the learned Tribunal while deciding point no.2 that the concerned workmen were illegally stopped from work does not call for any interference. With regard to point no. With regard to point no. 2, the findings are as follows: - “From the discussions made above I find that the concerned persons were working in the permanent nature of job and thus they are the workmen of M/s.BCCL but they have been illegally stopped from work. Therefore, they are entitled to be reinstated in the Misc. job in the category of General Mazdoor from the date of stoppage of their work but there is no evidence that the concerned persons were not gainfully employed from the period they were stopped work and since M/s. BCCL is running in loss, therefore, the concerned persons shall not be entitled to any back wages. However, they are entitled for regularization as General Mazdoor.” 23. The fact remains that the learned Tribunal denied back wages to the concerned workmen but directed that they are entitled to regularization as direct mazdoor. Admittedly, the present status of the concerned workmen is not even known to the learned counsel of the respondents and it has been submitted that they may have attained the age of superannuation or may be on the verge of superannuation and one or the other person may have even expired though no death certificate has been brought on record. It has also been submitted by the learned counsel for the petitioner that identity of the concerned workmen could also be difficult. 24. Keeping the aforesaid factors in mind particularly the fact that the concerned workmen may have either attained the age of superannuation or may be at the stage of superannuation and also upon going through the judgement reported in (2017) 1 SCC 264 (supra) passed in the case of “Tindals” of another colliery of the petitioner and about 39 years have elapsed since 1985 and they were discontinued during the pendency of the reference case and they have been denied back wages while granting the relief of regularization by the learned Industrial Tribunal, this Court is of the view that it would be appropriate to direct that the petitioner shall in full and final settlement of all claims and outstanding of concerned workmen involved in this case deposit an amount of Rs.4,00,000/- for each workman. The amount is directed to be deposited within a period of 3 (three) months from today. The amount is directed to be deposited within a period of 3 (three) months from today. The amount shall be disbursed to the concerned workmen subject to due verification and in case one or the other workmen has unfortunately expired, the amount shall be payable to legal heir or successor or legal representative of such workman upon due verification. The amount shall be in full and final satisfaction of all claims, demands and outstandings payable to the concerned workmen. 25. The writ petition is accordingly disposed of with the aforesaid modification in the relief granted by the impugned Award. 26. Pending interlocutory application, if any, stands closed.