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NEUTRAL CITATION C/LPA/771/2018 CAV JUDGMENT DATED: 20/03/2024 undefined 5.1 The Tribunal considered the eight criterias in coming to the award it did pass. The first criteria that the Tribunal in light of the evidence considered was the issue relating to the activity and business of the Board. The Tribunal and the learned Single Judge came to the conclusion that the Board is engaged in production of electricity for which coal or oil / gas are used as fuel / raw material, and without such use the boilers and the turbine cannot operate, and therefore, it came to the conclusion that the maintenance of the railway line and the workers engaged in such activity were an integral part of the principal activity. It also on the second factor of the genuine need of engaging contractors observed that since the spare parts of the track have been kept in operational position, it was in direct proximity with the nature of work of the Board, there can be no genuine need for engaging the contract workers.

5.3 The Executive Engineer, Vinodbhai was examined at Exh.35. He denied that if the maintenance work of the track stops, it would affect the production of the Board. It was his case that the maintenance work was carried out which was supervised by Maganbhai and Kaasambhai and that as and when necessary he would carry out weekly visit. Merely because in his cross-examination at one stage the Executive Engineer deposed that he would produce the relevant evidence that the workmen were NEUTRAL CITATION C/LPA/771/2018 CAV JUDGMENT DATED: 20/03/2024 undefined that of the Supervisor would not discount the case of the employer that work infact was carried out by the contract workers and that there was no full control and supervision of the employer i.e. Gujarat Electricity Board. 5.4 Maganbhai Chauhan, the Manager of the contract has been examined at Exh.39. He is also been examined as a witness of the contractor. Reading of the deposition indicates that the instruments and tools for carrying out maintenance work is provided by the contractor. That in case, the workers have to take leave, they have to take prior permission of Kaasambhai, the Supervisor. The work has to be carried out in accordance with the directions of the Supervisor, Kaasambhai. What we find from the discussion of this evidence of the Tribunal and considering the eight criterias, two of which we have set out hereinabove and the remaining six which the Tribunal has held to be factors in favour of holding absorption indicates that merely because the factor of the activity and business of the Board being generation of electricity NEUTRAL CITATION C/LPA/771/2018 CAV JUDGMENT DATED: 20/03/2024 undefined and maintenance of track being anciliary activity would not lead the Court to hold that the activity and business was a core activity of the Board which was essential and vital to the operation so as to suggest the engagement of contractor's workers as being an exercise on paper and being sham and bogus.

5.6 In light of this unequivocal and clear evidence of the contract being on record and the advertisement of the contract through which such contract workers were engaged, it cannot be held that there was a paper arrangement to consider the contract as being sham and bogus. Various decisions have been considered by this Court which have been shown by either side. We may consider the case of the International Airport Authority (supra). Considering the test that need to be applied to find out whether a person is an employee or an independent contractor and whether the contract labour is sham and bogus, the Hon'ble Supreme Court NEUTRAL CITATION C/LPA/771/2018 CAV JUDGMENT DATED: 20/03/2024 undefined held that merely because the worker supplied by the Contractor carries out the work under the directions and supervision of the principal employer and when the salary is paid by the contractor with his ultimate supervision would not make the contract sham and bogus. The control of the principal employer is only with regard to the work to be done. It will be apt to reproduce paragraphs 38 and 39 of the decision in the case of International Airport Authority of India (supra), which read as under:

5.7 In the case of Balwantrai Saluja (supra), where the Court considering the nature of control and exercise in the case of contract workers, the test that need to be laid down were two well recognized tests set out by the Hon'ble Supreme Court, namely, whether the principal employer pays the salary instead of the contractor and whether the principal employer controls and supervise the work of the employee. If these two tests are applied to the facts of this case, no evidence has been brought on record by the workmen to suggest that it was the principal employer who was paying the salaries and as far as the test of control and supervision is concerned, we have already referred to paragraphs 38 and 39 of the judgement in the case of International Airport Authority (supra). Even the Tribunal has on evidence NEUTRAL CITATION C/LPA/771/2018 CAV JUDGMENT DATED: 20/03/2024 undefined come to a positive finding that if not complete control and supervision, there was some control. Merely because of the factors of control discussed by the Tribunal which is contrary to the evidence as considered, it cannot be said that the employer had control and supervision. There was no evidence on record to suggest that the appointing authority was the principal employer, that he was the pay master, the he could dismiss such an employee etc., which clearly pointed out that the Tribunal applied the wrong test in coming to the conclusion of control and supervision against the employer and holding the contract to be sham and bogus. Paragraphs 60 to 65 of the decision in the case of Balwantrai Saluja (supra), read as under: