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"It can be seen from the evidence of the witness of the parties that the railway track maintenance work was started to be done by the contract workers in the year 1992 and the same is being done by them even as on today. There is no evidence that the work of maintenance was not done for several days during the period commencing from 1992. All the contract workers working on the maintenance work of railway track are working regularly, continuously and uninterruptedly."

Page 42 HC-NIC Page 42 of 69 Created On Sat Sep 02 20:34:00 IST 2017 18.4 So far as fourth factor is concerned i.e. whether the work can be considered perennial or intermittent in nature, the learned Tribunal has observed, inter alia, that:-

"The evidence shows that these contract workers have to work on day to day basis. The railway track which is being maintained by these workers is a permanent establishment of the board and the board must have spent a huge expenditure in laying the railway lines. The supply of raw materials would be a day to day necessity of the board because otherwise the production of electricity cannot be carried on. It is born out in the evidence that the railway track is important and necessary for the board..."
"from the evidence, it is an admitted position that the contract was given in the year 1992 and since then the contract workers are working on maintenance of railway track. There is no evidence that the contractor had recruited the said contract labours and thereafter had supplied them to the board for the maintenance work of railway track. The witness Shri Maganbhai Virabhai Chauhan while giving deposition vide Exh.39 had stated in the last paragraph of his cross examination that the contract workers are of the nearly area of Dhuvaran and that he does not know as to who recruited them."

Page 46 HC-NIC Page 46 of 69 Created On Sat Sep 02 20:34:00 IST 2017 19.1 Hon'ble Apex Court made above quoted observations in the case of National Union Waterfront Workers & Ors. (supra) in backdrop of the fact that the work of handling goods in the stock yard of the appellant company was entrusted to contractors. Somewhere in 1989, the State Government issued notification under Section 10(1) of the Contract Labour Act and prohibited employment of contract labour in specified stock yards. Upon certain representations, the notification was kept in abeyance for 6 months and the said period was extended from time to time. On the strength of the said notification, the respondent union, who represented about 350 contract labourers, initiated proceedings in Calcutta High Court seeking absorption of contract workers on regular establishment. In light of the dispute, Hon'ble Apex Court addressed 3 issues one of the said three issues was whether automatic absorption of contract labourer should follow valid notification under Section 10. It was, essentially, in light of third issue that the observations with regard to master and servant relationship and the constituents which would indicate existence of said relationship came to be explained by Hon'ble Apex Court. Essentially facts of present case are different from facts of cited case. However, it Page 47 HC-NIC Page 47 of 69 Created On Sat Sep 02 20:34:00 IST 2017 is relevant that while addressing the said issue, Hon'ble Apex Court observed, inter alia, that unless the contractor is mere camouflage, the contract labour cannot be treated as an employee of principal employer. Hon'ble Apex Court explained that where a workman is hired in or in connection with the work of establishment by principal employer through contractor, then, the contractor merely acts as an agent and therefore, there will be master and servant relationship between the principle employer and it would be necessary to examine that whether the contractor is mere camouflage or whether the contract was found to be sham or nominal and if the answer is in affirmative, then, the workman in fact, will be employee of principal employer, otherwise not.