The court clarified that the criteria for determining the employer-employee relationship must be correctly applied, emphasizing that mere supervision does not establish direct employment if the contractor retains control.

JUDGMENT :

Biren Vaishnav, J.

1 This appeal under Clause 15 of the Letters Patent has been filed by the original petitioner, Chief Engineer, Thermal Power Station, Gujarat Electricity Board, challenging the CAV Judgement dated 31.08.2017. By the judgement in Special Civil Application No. 16912 of 2005, the learned Single Judge, in a challenge to the judgement and award dated 24.03.2005 passed by the learned Industrial Tribunal, Nadiad, in Reference (ITN) No. 682 of 1998 partly confirmed the award of the Tribunal which directed the petitioner, appellant herein to treat the workmen engaged in railway track maintenance work as workmen of the Board from 01.01.2000 onwards waiving their educational qualification and satandard of maximum age of entry in the service of the Board. The learned Single Judge partly set aside the award of the Tribunal to a certain extent.

2 Facts in brief are as under:

2.1 The respondent No.1, Bijlee Mazdoor Panchayat, through its workmen, raised an industrial dispute. It was their case that the perennial activity of the Gujarat Electricity Board is to generate and transmit electricity. Thermal Power Stations at various places, including one at Dhuvaran, Taluka: Khambhat, District: Kheda have been set up. A railway track of 15.50 kms length and it terminate inside the power station which were earlier being maintained by the railways and now by the Board, is being used for transportation of coal and other materials to the power station. In light of the railways discontinuing to maintain the track, the work of such maintenance of the track was handed over to the workmen of the respondent Union who were engaged through a contractor.

2.2 The contract workers raised an industrial dispute and on it failing, a reference was registered which was referred to the Tribunal. The reference inter alia was to the effect whether the contractors working at the Dhuvaran Thermal Power Station should be held to be sham and bogus and whether the workmen should be given the benefit of permanency with the Board from the date they entered service with the Board. The Tribunal, by its order dated 24.03.2005, passed an order which we have referred to hereinabove.

2.3 The learned Single Judge, by the judgement under challenge affirmed the order of the Tribunal though partly modified / set aside the same.

3 Mr.K.M.Patel, learned Senior Counsel appearing with Ms.Lilu K. Bhaya, learned counsel for the appellant, made the following submissions to challenge the order of the Tribunal and in turn, the order of the learned Single Judge.

3.1 Mr.Patel, learned Senior Counsel, would submit that the track was earlier being maintained by the railways which, on the railways discontinuing the practice of maintenance, the Board had to hand over such maintenance work to a contractor.

3.2 Mr.Patel, learned Senior Counsel, would submit that, admittedly, the core activity of the Board was to generate and transmit electricity. Dhuvaran Thermal Power Station with automatic plants would therefore, in light of the activity of the Board, generate and transmit electricity. The railway track was used for transportation of coal and other materials and its maintenance therefore cannot be said to be a core activity of the Board.

3.3 Mr.Patel, learned Senior Counsel, would submit on reading the award in extenso of the Tribunal that the award of the Tribunal suffered from an error of jurisdiction. He would submit that reading the award would indicate that it had undertaken the exercise of holding the contract between the Board and the contractor which engaged the workmen as sham and bogus. In fact, the eight criterias adopted by the Tribunal, keeping in view the decision of the Hon’ble Supreme Court in the case of Gujarat Electricity Board vs. Hind Mazdoor Sabha & Ors., reported in 1995 (5) SCC 27, and that of this Court in the case of Steel Authority of India Ltd vs. Gujarat Mazdoor Panchayat was erroneous.

3.4 Mr.K.M.Patel, learned Senior Counsel, would take the Court thro