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In the impugned order the High Court records, “Undisputedly, all the petitioners, herein, were performing the skilled/unskilled duties with the regularly appionted staff of BHEL in BHEL Factory Premises and were reporting on duties along with regular employees to perform identical duties and had been working for fixed hours along with regular employees of BHEL.” Mr. Sudhir Chandra, learned senior counsel for the petitioner submits that the above position was seriously disputed and the High Court has wrongly recorded “Undisputedly”.
Special leave petitions are disposed of.” The appellant, then filed a review petition before the High Court, which disposed of the review stating:
“BHEL has submitted written statement before the learned Labour Court. Paragraph 3 thereof reads C.A. NOS. 1799-1800/ 2019 etc. (@SLP (C) Nos. 33747-33748/ 2014 etc.) as under:
“3.The workman concerned in the dispute Sri Mahendra Prasad Jakhmola was never engaged by BHEL Haridwar and he was not their employee and they were not his employers. It appears that he might have been engaged and employed by the contractor Sri Madan Lal who also has been made party as employer in the Industrial Dispute under reference.” Plain reading of paragraph 3 of the written statement would go to suggest that even BHEL is not sure as to whether workmen were supplied by the contractor or were engaged by the BHEL. That being so, even if there was any Contract Labour Agreement between the BHEL and Madan Lal, alleged contractor, same seems to be sham transaction and camouflage.

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There is no master employer and servant relationship of the workers with BHEL and BHEL was also not making any payment of salary to them as the workers were in the service of the contractor. Thus, there does not arise any question of giving them employment.

The workers were being issued gate passes at the request of the contractor, for the sake of safety and also from administrative point of view, it was specifically bearing the mention that they are the workers of the contractors. Any worker cannot enter in the workplace if such gate passes are not issued. CISF takes care of the safety in our organisation.” Equally, the review judgment apart from being cryptic, draws an unsustainable conclusion after setting out paragraph 3 of the written statement of BHEL in the Labour Court. What was stated by BHEL in paragraph 3 was that the workmen were only engaged by the contractor and were not their employees. The written statement then goes on to be speculative in stating that it appears that a workman might have been engaged as an employee by a particular contractor. A plain reading of this written statement would certainly not suggest that BHEL is not sure as to whether workmen were or were not supplied by a contractor, or engaged by BHEL. What is clear from the written statement is that BHEL has C.A. NOS. 1799-1800/ 2019 etc. (@SLP (C) Nos. 33747-33748/ 2014 etc.) denied that the workmen were engaged by BHEL or that the workmen were BHEL’s workmen. From this to conclude that the transaction seems to be ‘sham’, is again wholly incorrect. Apart from this, it is also incorrect to state that BHEL has not placed on record any material to demonstrate that under the alleged labour contract, payment was ever made in favour of Madan Lal, the alleged contractor. It has been correctly pointed out by learned counsel appearing on behalf of BHEL that in the very first sentence of the cross examination of the workmen, before the labour court, the workmen admitted that payments of their wages were made by four contractors including Shri Madan Lal. Also, the fact that Madan Lal was paid under the agreement with BHEL was never disputed. Indeed, Ms. Jain’s argument that Madan Lal only derived a 10 per cent profit from the agreement with him presupposes payment to Madan Lal by BHEL under the agreement with him. This finding again is wholly incorrect.

The argument that the contractor, in the facts of the present case, gets only a 10 per cent profit and nothing more, is again an argument that needs to be rejected in view of the clear and unequivocal evidence that has been led in this case. The workmen have themselves admitted that there is no appointment letter, provident fund number or wage slip from BHEL insofar as they are concerned. Apart from this, it is also clear from the evidence led on behalf of BHEL, that no wages were ever been paid to them by BHEL as they were in the service of the contractor. Further, it was also specifically pointed out that the names of 29 workers were on the basis of a List provided by the contractor in a bid that was made consequent to a tender notice by BHEL.