Dipankar Datta, J.
1.The Assistant Secretary to the Government of West Bengal, Labour Department upon noting that an industrial dispute exists between Messrs. Indian Iron & Steel Company Limited, Burnpur Works, Post Office Burnpur, District Burdwan (hereafter the company) and its employees, represented by Burnpur Ispat Karmachari Sangh and their workmen, by an order dated January 17/24, 2005 referred such dispute to the Ninth Industrial Tribunal at Durgapur, District Burdwan (hereafter the tribunal) in exercise of power conferred by section 10 of the Industrial Disputes Act, 1947 (hereafter the ID Act) for determination of the following issue(s):
a) Whether the claim of the union for regularization of the services of 159 workmen (vide list enclosed) in the company is justified?
b) What relief, if any, are they entitled?
2. The tribunal entered upon the reference, registered the reference as Case No.X-1/2005, and put the disputing parties on notice. Claim statement and written statement of defence having been filed, the parties led evidence, ~ both oral and documentary. Upon consideration thereof, the Judge of the tribunal delivered his award dated September 4, 2009. Operative part of the award reads as follows:
"That the case under reference is allowed on contest. An award is passed directing the company to treat the workmen under reference as the workmen of the management and identical pecuniary benefits and other service benefits at per with other workmen already admitted in company's roll and such benefits to be extended with effect from January 24, 2005 being the date of reference."
3. The aforesaid award was called in question by Steel Authority of India Limited (hereafter 'SAIL') before this Court in WP 20732(W) of 2009 by invoking its writ jurisdiction. Incidentally, the company which was initially a subsidiary of SAIL has since been taken over by SAIL and is now one of its several units. The writ petition was defended on behalf of the contesting respondent (the union) by one of its members, Mr. Tapan Kumar Mitra, appearing in person. Upon a contested hearing, the learned Judge of the writ court by a judgment and order dated January 17, 2017 dismissed the writ petition. His Lordship was of the view that the tribunal had duly examined whether the employment of the workmen by alleged contractors was a sham or camouflage arrangement and had correctly arrived at its finding. His Lordship was also of the view that SAIL had failed to demonstrate perversity in the award of the tribunal.
4. The judgment and order of dismissal of SAIL's writ petition is impugned in this intra-court writ appeal.
5. We have heard Mr. Gupta, learned senior advocate for SAIL as well as Mr. Mitra, who appeared in person, at substantial length.
6. The submissions of Mr. Gupta may be summarised as follows:
a) The tribunal misread documents relied upon by the union;
b) The tribunal overlooked vital documents;
c) The tribunal applied wrong tests;
d) The reasoning assigned by the tribunal was erroneous; and
e) The award of the tribunal is perverse.
7. As we perceive, each of these contentions relate to perversity in the award. These contentions had been raised before the learned Judge but were overruled. Since our attention was also drawn to the materials relevant for being looked into for assessing the worth of the aforesaid contentions, we do not wish to lengthen our judgment by referring to the same materials at this stage.
8. Suffice it to place on record, Mr. Gupta was heard to submit that the case of the workmen before the tribunal itself being that they were contract labours, the ultimate finding returned by the tribunal to the contrary and directing that the workmen are to be treated as workmen of the management and for extending to them identical pecuniary benefits and other service benefits at par with other workmen already admitted in the company's roll is plainly indefensible; and the learned Judge of the writ court having failed to appreciate the controversy in the proper perspective vis- -vis applicability of the relevant law thereto, not only is the judgment and order under challenge vulnerable and liable to be set aside, the award too being unsustainable in law ought to meet the same fate.
9. Reliance was placed by Mr. Gupta on the decision reported in (Steel Authority of India Limited v. National Union Waterfront Workers, (2001) 7 SCC 1) in support of the contention that upon abolition of contract labour in an establishment, the contract labours cannot claim automatic right of absorption. According to him, the direction contained in the award of the tribunal, since upheld by the learned Judge, being contrary to the decision in Steel Authority of India Limited (supra), he urged that the appeal may be allowed together with the writ petition and the impugned award of the tribunal set aside.
10. Mr. Mitra appearing for the workmen lamented that the time gap between the dates on which the dispute between the company and the 159 workmen he represents cropped up and the appeal heard being in excess of two decades, such lapse of time had robbed him of much of his capability to refer to each material in the record with swiftness and that he had lost the steam to argue the case of the workmen as well as he had argued before the earlier fora. He, however, appealed to us to examine the records and to take a judicious decision keeping in mind the future of the 159 workmen, most of them having had crossed the age of retirement and the rest being on the verge of being retired. According to Mr. Mitra, they had given their all for the company and it would be a travesty of justice to deprive them of the fruits of their labour. In the passing, he referred to the fact that while delivering its decision in Steel Authority of India Limited (supra), the Constitution Bench had the occasion to deal with an appeal arising out of a writ petition of the union; although the writ petition stood dismissed as a result of the ultimate conclusions reached by such Bench, the union had taken recourse to relief before the industrial adjudicator in terms of the dicta therein and this is how the matter has reached us now.
11. Opposing the appeal, Mr. Mitra admitted that at the time of initial employment in the company the 159 workmen were contract labours under identifiable contractors, but in gradual course of time there was no identifiable contractor under whom they worked and discharged duty for the company. It was, in fact, asserted by him that the workmen after certain number of years never saw who the contractor was under whom they worked. Drawing our attention to the documentary evidence (wage slips) on record, it was his endeavour to show that wages were disbursed by the company directly to the workmen. It was his further contention that services extracted from the 159 workmen by the company were not in any manner dissimilar to the services extracted from its permanent workmen. He further endeavoured to show us a whole bunch of documents which, according to him, had been placed before the tribunal and were sufficient to draw a conclusion that the 159 workmen were in fact under the direct employment of the company, being engaged in work of perennial nature.
12. In reply, Mr. Majumdar, learned advocate representing SAIL contended that the wage slips relied on by the tribunal was not in terms of the form as per rule 78(2)(b) of the Central Contract Labour (Regulation and Abolition) Rules, 1972 and, therefore, reliance placed thereon by the tribunal to hold in favour of the workmen was an incorrect approach. Mr. Majumdar adopted the contentions urged by Mr. Gupta and reiterated that the appeal ought to be allowed.
13. Interestingly, neither Mr. Gupta nor Mr. Majumdar laid any direct attack on the judgment and order under appeal by referring to any particular finding returned therein. Their contentions, to the extent we have been able to comprehend, were limited to the point that the award of the tribunal being perverse, the learned Judge should have interfered in exercise of writ powers.
14. In our opinion the sole issue that emerges for our consideration is, should the judgment and order under challenge be interfered with in exercise of appellate powers?
15. At the outset, we record that the point of the reference not being proper, though raised on behalf of SAIL before the learned Judge, was not pressed before us.
16. The next point which SAIL had raised before the learned Judge was that, there was no relationship of employer-employee between the company and the 159 workmen. The learned Judge was of the opinion that it was essentially a question of fact and that His Lordship was urged to hold the findings returned by the tribunal in its award as perverse. His Lordship noted the findings returned by the tribunal while dealing with such a point and conscious of the limitations of a writ court to appreciate evidence, proceeded to examine whether the tests of perversity in the award warranting interference were satisfied or not. All the decisions that were cited by SAIL were considered and distinguished with reasons and ultimately the answer was in the negative (paragraphs 20 and 21).
17. The further point which SAIL raised was that, the 159 workmen had not been recruited in accordance with the recruitment rules. What was sought to be contended is that the 159 workmen were employees of the contractors and after the Constitution Bench decision of the Supreme Court reported in [Secretary, State of Karnataka v Umadevi (3), (2006) 4 SCC 1], the jurisdiction of the industrial adjudicator to treat an irregular entrant to job through contractor as a regular employee and make consequential direction stands abrogated. Paragraphs 17 and 18 of the judgment provide a complete answer to the contention. The learned Judge noted that in Steel Authority of India Limited (supra), the 159 workmen and SAIL were parties to a writ petition. Although the writ petition of the workmen was dismissed but the forum which could adjudicate the dispute and the legal principles based whereon such adjudication could take place had been spelt out therein in clear terms. The directives had attained finality and the course mandated in that decision had been followed by the union. None of the 159 workmen was alleged by SAIL not to have the requisite qualification for performing the works assigned to them. Relying on the decision reported in (General Manager, Oil and Natural Gas Commission, Silchar v. Oil and Natural Gas Commission Contractual Workers Union, (2008) 12 SCC 275), which had the occasion to consider, inter alia, Steel Authority of India Limited (supra) and Umdavei (3) (supra), the learned Judge negated the contention.
18. In General Manager, Oil and Natural Gas Commission (supra), the Court found that the real issue was as to the status of the workmen as employees of ONGC or of the contractor, and it having been found that the workmen were the employees of ONGC, they would ipso facto be entitled to all benefits available in that capacity, and the issue of regularisation would, therefore, pale into insignificance. The Court also held that in a situation of the nature before it, the Industrial Tribunal and the Division Bench of the relevant High Court were justified in lifting the veil in order to determine as to the nature of employment in the light of the judgments quoted in the decision.
19. The last contention of SAIL was that the 159 workmen had not been engaged in any prohibited job under the Contract Labour (Regulation and Abolition) Act, 1970. The learned Judge while considering this contention noted the following reasoning of the tribunal:
"Admittedly the applicants were earlier employed in the works of the company by the ex-contractors, but after expiry of the contract, these applicants appear to have been taken under direct control of the management, definitely for the need of the company. I do not find any document to show that the present applicants again went under the control of the contractors after expiry of the earlier contract. So, the story of new contractors as put forth by the company, can reasonably be held to be camouflage and has brought into the existence in order to conceal the relationship between the workers and the management. The company was given opportunity for adducing evidence of 6 (six) Contractors for the proper adjudication of the present reference, but no contractor has come forward to depose that the applicants were their workmen. On the other hand, I find existence of all the necessary factors which are required to be decided for establishing the master servant relationship have been fulfilled."
20. In view of such clear finding by the tribunal regarding existence of master-servant relationship, the learned Judge was of the view that the argument of SAIL on the point was unacceptable.
21. The learned Judge concluded the judgment observing as follows:
"Though reference was framed as if its was case of regularization, this was not a case where dispute was on regularization simpliciter. This was a case where the Tribunal examined as to whether the employment by the contractor was a sham or camouflage arrangement. In my opinion the Tribunal correctly arrived at its finding. I accordingly dismiss the writ petition. The award of the Tribunal is sustained. ***"
22. Any decision on the system of contract labour prevalent in this country would be incomplete without a reference to the decision in Steel Authority of India Limited (supra). There, three main issues emerged for a decision by a Constitution Bench of the Supreme Court. While answering the issues, the history of exploitation of labour was noticed by the Court to be as old as the history of civilization itself. The Court then adverted to the Preamble of the Constitution, the Part on Fundamental Rights [Articles 23, 14 and 16] as well as the Part on Directive Principles of State Policy [Articles 38, 39, 43 and 43-A] and ruled that in interpreting a beneficial legislation such as the CLRA Act which was enacted to give effect to the Directive Principles, the consideration of the Court cannot be divorced from those objectives; in a case of ambiguity in the language of a beneficial labour legislation, the Courts have to resolve the quandary in favour of conferment, rather than denial, of a benefit on the labour by the legislature but without rewriting and/or doing violence to the provisions of the enactment. On perusal of the Statement and Objects and Reasons of the CLRA Act, it was also observed by the Court that it was enacted by the Parliament to deal with the abuses of the contract labour system. The Court while considering the last main issue, culled out in paragraph 65 as follows:
"65. The contentions of the learned counsel for the parties, exhaustively set out above, can conveniently be dealt with under the following two issues:
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."
After referring to the definition of 'contract labour', 'contractor', 'principal employer' and 'workman' in the CLRA Act, the Court answered point 'A' in the negative. While answering point 'B', the Court further found no substance in the argument that a combined reading of the definition of the terms 'contract labour', 'establishment' and 'workman' would show that a legal relationship between a person employed in an industry and the owner of the industry is created irrespective of the fact as to who has brought about such relationship. In paragraph 118, it was ruled that:
"118. We have quoted the definitions of these terms above and elucidated their import. The word 'workman' is defined in wide terms. It is a generic term of which contract labour is a species. It is true that a combined reading of the terms 'establishment' and 'workman' shows that a workman engaged in an establishment would have direct relationship with the principal employer as a servant of master. But what is true of a workman could not be correct of contract labour. The circumstances under which contract labour could be treated as direct workman of the principal employer have already been pointed out above."
While outlining the upshot of the preceding discussions in the decision, it was specifically observed in sub-paragraphs (5) and (6) of paragraph 125 as follows:
"(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."
The decision on only the second issue, carved out of the last main issue, has a tinge of bearing so far as the present controversy is concerned.
23. One cannot be unmindful that employment of contract labour is a practice which has been prevalent in this country for years, but indubitably it is an unfair practice intended to exploit the labour. As the Supreme Court has commented, it is an improved version of bonded labour.
24. Looking at the award that was impugned before the learned Judge, it appears that the tribunal relied upon the decision of the Supreme Court reported in (Hussainbhai v. Alath Factory Thezhilali Union, (1978) 4 SCC 257). Reading such decision, we find that the Court was seized of the question as to who, in Labour Law, is an employee. Like the relevant High Court, decision of which was under challenge, the Court gave short shrift to the contention that the petitioner before it had entered into agreements with intermediate contractors who had hired the respondent Union's intermediate workmen and so no direct employe-remployee vinculum juris existed between the petitioner and the workmen. After noticing the decision reported in (Mangalore Ganesh Beedi Works v. Union of India, (1974) 4 SCC 43), the Court held as follows:
"4. *** Indian Justice, beyond Atlantic liberalism, has a rule of law which runs to the aid of the Rule of life. And life, in conditions of poverty aplenty, is livelihood, and livelihood is work with wages. Raw societal realities, not fine-spun legal niceties, not competitive market economics but complex protective principles, shape the law when the weaker, working class sector needs succour for livelihood through labour. The conceptual confusion between the classical law of contracts and the special branch of law sensitive to exploitative situations accounts for the submission that the High Court is in error in its holding against the petitioner.
5. The true test may, with brevity, be indicated once again. Where a worker or group of workers labours to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the workers' subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contractu is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that the real employer is the Management, not the immediate contractor. Myriad devices, half-hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like may be resorted to when labour legislation casts welfare obligations on the real employer, based on Articles 38, 39, 42, 43 and 43-A of the Constitution. The court must be astute to avoid the mischief and achieve the purpose of the law and not be misled by the maya of legal appearances.
6. If the livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefit and satisfaction of an enterprise, the absence of direct relationship or the presence of dubious intermediaries or the make-believe trappings of detachment from the Management cannot snap the real life-bond. The story may vary but the inference defies ingenuity. The liability cannot be shaken off."
25. We shall consider the materiality of these decisions a little later, after we garner guidance from decisions of high authority of the Supreme Court regarding the limits of jurisdiction of a writ court when a party before it seeks a writ of certiorari to quash the award of an industrial tribunal.
26. An industrial tribunal, which is called upon to resolve an industrial dispute in terms of the ID Act, is the repository of power and competence to examine facts and to draw conclusions from the materials placed before it in accordance with law, one way or the other. The function that such tribunal discharges is similar to the functions discharged by other statutory tribunals. The jurisdictional limit of a writ court while it examines a challenge to the decision of any other statutory tribunal is not too different qua an industrial tribunal. Insofar as exercise of jurisdiction under Article 226 of the Constitution on a writ petition seeking a writ of certiorari for quashing of an award of the appellate tribunal under the Motor Vehicles Act, 1939 is concerned, we can do no better than seek guidance from the Constitution Bench decision of the Supreme Court reported in (Syed Yakoob v. K.S. Radhakrishnan, (1964) AIR SC 477). Hon'ble Gajendragadkar, J. (as the Hon'ble the Chief Justice of India then was) speaking for himself and three other learned Judges on the Bench observed as follows:
"7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1955) AIR SC 233; Nagandra Nath Bora v. Commissioner of Hills Division and Appeals Assam, (1958) AIR SC 398 and Kaushalya Devi v. Bachittar Singh, (1960) AIR SC 1168.
8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened."
27. What can be comprehended from the above passage is that a court of writ, while it is urged to issue a writ of certiorari to quash the decision of a statutory tribunal, does not act as appellate court appreciating and/or analysing evidence. By a writ an error of law that is apparent on the face of the record can be corrected, but not an error of fact, howsoever grave it may appear to be (emphasis ours). Whether an impugned error is an error of law and an error of law that is apparent on the face of the record must always be dependent upon the facts and circumstances of each case. The above view in Syed Yakoob (supra) on the limits of writ jurisdiction, though taken more than half a century back, does not appear to have been diluted yet and would act as a torchlight to enable us tread the right path carefully in deciding the controversy before us amidst the darkness that is brought about by the helplessness expressed by the contesting respondent in rendering the necessary assistance.
28. The decision of the Supreme Court reported in (Sadhu Ram v. DTC, (1983) 4 SCC 156), while examining an award of an industrial tribunal, also provides useful guidance. A relevant passage therefrom is quoted below:
"3. ... The jurisdiction under Article 226 of the Constitution is truly wide but, for that very reason, it has to be exercised with great circumspection. It is not for the High Court to constitute itself into an appellate court over tribunals constituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to readjudicate upon questions of fact decided by those tribunals. That the questions decided pertain to jurisdictional facts does not entitle the High Court to interfere with the findings on jurisdictional facts which the Tribunal is well competent to decide. Where the circumstances indicate that the Tribunal has snatched at jurisdiction, the High Court may be justified in interfering. But where the Tribunal gets jurisdiction only if a reference is made and it is therefore impossible ever to say that the Tribunal has clutched at jurisdiction, we do not think that it was proper for the High Court to substitute its judgment for that of the Labour Court and hold that the workman had raised no demand with the management."
29. Bearing the limitations outlined by the guiding decisions referred to above, we venture to decide the question emerging for decision before us.
30. There can be no doubt that whenever questions arise for decision before the Courts where sensitive problems of relations between employer and workmen have to be solved in the midst of all the complexities of modern industrial organization, it is the substance which ought to matter and not the form; as such, every fact and circumstance relevant for ascertainment of the substance would deserve careful attention. We have referred to this caveat having regard to a vital omission on the part of the company that, as we presently propose to demonstrate, deals a fatal blow to its contentions.
31. The company had consistently argued that the workmen were contract labours, engaged for casual nature of jobs and that too intermittently and not for jobs perennial in nature and, therefore, not entitled to be treated as direct workmen of the company. In the event the company had led in evidence the contracts that it had entered into with the contractors, or even if the company had led oral evidence of the contractors in support of the company's claim that the 159 workmen are nothing more than contract labours, it would have been the duty of the tribunal to lift the veil and ascertain whether the contract is a sham contract and a camouflage to deny the contract labour the benefits of security of service. What has struck us, on perusal of the evidence led before the tribunal, is the reluctance and/or failure of the company to produce documentary evidence to support the averments made by its witness, Sri Ram Krishna Mandal, in the deposition filed by him before the tribunal as per provisions of Order 18 Rule 4 of the Code of Civil Procedure supported by an affidavit. In paragraph 8 thereof, he stated that the "Licensing Authority under Contract Labour (Regulation and Abolition), 1971 Act has issued the necessary Licence for the operation of the contract in which the Contractors are engaged are not prohibited under any Govt. Notification". The oral evidence of Sri Mandal in course of crossexamination was as follows:
"*** We did not produce the documents showing that we assigned the works to the contractors. (Then says) I can produce the documents. We did not produce any document to show that the applicants performed jobs which are intermittent in nature. ***"
32. In our view, documents evincing entrustment of works by the company to the contractors, with intent to have the company's works completed by contract labours, would have been the best evidence to demolish the claim of the 159 workmen represented by the union. Such documents were not produced by Sri Mandal at the time the affidavit was filed before the tribunal. Even in course of cross-examination, Sri Mandal was conscious that the documents had not been filed but immediately reacted by saying that he could produce the documents. We have ascertained from Mr. Gupta and Mr. Majumdar that at no subse
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quent point of time did the company produce documents to show entrustment of works to the contractors for completion thereof by contract labours of the contractors' choice. The finding of the tribunal that it extended opportunity to the company to adduce evidence of the contractors, also, has not been contradicted. This omission on the part of SAIL so to say, takes the wind out of its sail and a presumption can legitimately be drawn that since the contracts did not exist, the same could not have been and were not produced. Taking a cue from Hussainbhai (supra), we hold that the naked truth has surfaced that the real employer is the company and, not the immediate contractor, because of the failure of the company to even drape the employment of the 159 workmen in perfect paper arrangement to show that they are employees of such contractor. 33. We hold that in the absence of any document to prove entrustment of the works to contractors and such contractors in turn having engaged contract labours for works which were performed by the 159 workmen allegedly as contract labours, coupled with our satisfaction that the wage slips were indeed issued by an officer of the company, there is no error of law apparent on the face of the record, as discussed in Syed Yakoob (supra) and Sadhu Ram (supra) that would warrant judicial interdiction with the judgment and order of the learned Judge and/or judicial correction of the award of the tribunal. 34. The learned Judge, in our opinion, correctly appreciated, relying upon General Manager, Oil and Natural Gas Commission (supra), that the present case was not one of regularisation simpliciter such as in the case of an ad hoc or casual employee claiming this privilege. The basic issue in the case before His Lordship was the status of the 159 workmen and whether they were the employees of SAIL or the contractors, and in the event they were SAIL's employees, the claim that required the industrial adjudicator's attention was whether they were to be treated on a par with other regular employees. Steel Authority of India Limited (supra) lays down the law that 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. The present case stands on a better footing, in that no contract is shown to exist and, therefore, question of a contractor interposing between SAIL and the 159 workmen does not and cannot arise. 35. We record our respectful concurrence with the views expressed by the learned Judge on each of the points that were raised before His Lordship by SAIL, and hold on the facts and circumstances of this particular case that the materials before us are insufficient to even persuade us to hold that the learned Judge was not right in not interfering with the challenge to the impugned award. The 159 workmen had/have been employed almost uninterruptedly for more than two decades and most of them having crossed the age of retirement and only a handful being in service, we consider that the time is now ripe to allow the matter to rest. 36. The appeal is entirely without merit; consequently, the judgment and order of the learned Judge is upheld. The appeal stands dismissed with costs assessed at Rs.50,000.00 to be paid by SAIL to the contesting respondent within 3 (three) months. 37. Needless to observe, SAIL may proceed to confer benefits to the 159 workmen in terms of the award of the tribunal. We hope and trust that SAIL, being a model employer, will not push the 159 workmen further to obtain relief flowing from the award by initiation of fresh proceedings. Later:- Stay, as prayed for by Mr. Majumdar, learned for the appellant, is considered and rejected.