The Tribunal exceeded its jurisdiction by declaring the contract as sham without sufficient evidence, and the relationship between the contractor and workers was valid under the Contract Labour Act.

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 with the following reliefs:

“(A) A writ of certiorari and/or a writ in the nature of certiorari and/or any other appropriate writ, order or direction be issued to quash and set aside award dated 13.03.2020 passed in Reference (I.T.) No. 51 of 2019 by learned Industrial Tribunal, Bhavnagar and further may be pleased to reject the Reference of respondent No. 1.

(B) Pending the admission, hearing and final disposal of this petition, this Hon’ble Court may be pleased to stay the execution, implementation and operation of award dated 13.03.2020 passed in Reference (I.T.) No. 51 of 2019 by learned Industrial Tribunal, Bhavnagar.

(C) Any other and further relief or reliefs to which this Hon’ble Court deemed fit, in the interest of justice may kindly be granted.

2. Brief facts of the present petition, in nutshell, are as under:

2.1 The petitioner is a public utility service in generating electricity and its monitoring company is the Gujarat Urja Vikas Nigam Limited. That one Mr. Surubha Sajubha Goil is a registered contractor working in the establishment of the petitioner and there is established set up for fireman, leading fireman, driver-cum-operator and supervisor in the company. The concerned employees are the persons of contractor-respondent No. 2 who were engaged as the employees of the petitioner through the contractor. It is contended that respondent No. 1 that the contract made between the petitioner and respondent No. 2 is not genuine, fair and bona fide but it is sham and bogus and on that basis they adopted unfair labour practice. The workers are being exploited by paying far than the actual salary drawn by the contractor on behalf of the employees. There is no fixed working hours and therefore all the workers joined with respondent No. 2 through the union and submitted statement of claim contending that the employees possessed requisite qualifications prescribed by respondent No. 1 and hence they were appointed on the post sanctioned by respondent No. 1 through the contractor only for the purpose to escape from monetary liability. The employees are working 365 days in a year and they are illegally paid minimum wages. The employees are continuously working for more than four to five years under the supervision of respondent No. 1, however, the respondent No. 1 and the contractor has adopted unfair labour practice.

3. After considering the submissions and the material on record, the Tribunal has partly allowed the reference and directed the petitioner to consider the workmen as its permanent employees.

4. Being aggrieved and dissatisfied with the impugned award, the petitioner has preferred the aforesaid petition.

5. Heard Mr. Dipak Dave, learned counsel appearing for the petitioner and Mr. T.R. Mishra, learned counsel appearing for respondent No. 1 and Mr. Vatsal Parikh, learned counsel appearing for respondent No. 2 at length. An affidavit-in-reply and the affidavit-in-rejoinder have been filed by the respective parties.

6. Mr. Dave, learned counsel appearing for the petitioner has submitted the same facts which are narrated in the memo of petition and has submitted that the Tribunal exceeded its jurisdiction in adjudicating the reference and holding that the contract is sham, bogus and camouflage and the petitioner is a government company and it has its own rules and regulation and the workmen were appointed by the contractor and, therefore, in view of the aforesaid aspects, no relief of permanency could have been granted. He has submitted that the concerned contractor is having valid licence and the contract was not prohibited under the Contract Labour (Regulation and Abolition) Act, 1970 and, therefore, the Tribunal could not have made workmen of the contractor perma