IMPORTANT POINT
The court established that the mere payment of wages or bonuses does not create an employer-employee relationship if a valid contractor exists.

JUDGMENT :

DEBANGSU BASAK, J.

1. Appellants have assailed the judgement and order dated August 18, 2023 passed in WPA 23964 of 2014. By the impugned judgement and order, the learned Single Judge has dismissed the writ petition of the appellants seeking regularisation of their services.

2. Learned senior advocate appearing for the appellants has contended that, the appellants were engaged by a contractor for the purpose of discharging duties of the respondent. He has pointed out that, both salary as well as bonuses were paid to the appellants by the respondent. He has referred to documents to show that the list of employees engaged by the respondent had been acknowledged by the respondent.

3. Learned senior advocate appearing for the appellants has contended that, the so-called contractor engaged by the respondent and under whom, the employment of the appellants were shown, has been acknowledged by the respondent itself to be non-existent. In this regard, he has referred to inter office memo of the respondent dated June 21, 2017, where, the respondent acknowledged that the contractor was a nonentity. He has also referred to documents to show that, salary as well as bonuses had been paid by the respondent directly to the appellants.

4. Learned senior advocate appearing for the appellants has contended that, respondent cannot deny the fact that, the contractor under whom, employment of the appellants were shown, was in fact a nonentity. Both wages and bonuses having been paid directly by the respondent, the issue of regularisation of services of the appellants ought to be answered in favour of the appellants.

5. Relying upon 2013 (14) SCC 65 (Nihal Singh and Others vs. State of Punjab and Others), learned senior advocate appearing for the appellants has contended that, since the contractor in between the respondent and the appellants was a nonentity and acknowledged by the respondent to be so, the appointments have to be considered to be made by the respondent as disciplinary control vested with the respondent. Therefore, two essential factors establishing the relationship of master and servant had existed between the appellants in the respondent during the service period of the appellants.

6. Referring to AIR Online 2022 Cal 1313 (North Bengal State Transport Corporation vs. Sanjoy Kundu), learned senior advocate appearing for the appellants has contended that, the contract between the transport company and the contractor was found not to be genuine therein. Consequently, the employees appointed through such contractor had been granted the reliefs. The appellants herein are entitled to similar reliefs.

7. Relying upon 2001 (7) SCC 1 (Steel Authority of India Ltd and Others vs. National Union Waterfront Workers and Others) learned senior advocate appearing for the appellants has contended that, where the contract between the employer and the labour contractor was found to be a sham and non-existent the contract labourer should be held to be working under the principal employer itself. According to him, facts and circumstances of the present case has established that, all the appellants were working under the respondent and therefore, are entitled to be regularised. According to him, learned single judge has erred in not directing regularisation of the services of the appellants.

8. Learned advocate appearing for the respondent has contended that, none of the appellants were direct employees of the respondent. According to him, on the admission of the appellants themselves, up to a given point of time the appellants had been employees of the designated contractor. In this regard, he has drawn the attention of the court to a reference made for conciliation of industrial disputes arising between the management of the contractor and the employees of the contractor where the employees of the contractors are the appellants before the court. He has contended that, such conciliation proceedings failed and thereafter no further steps had been take