R.M. Sahai, J. - (1.) Employees, of National Thermal Power Corporation, a Public Sector Undertaking, engaged through Contractor as Office Assistants, and Attendant, being aggrieved by opposite - parties refusal to treat them as regular employees even though they had completed 240 days of continuous service, filed this petition for direction not to terminate their services and further to treat them as regular employees of the Corporation.
(2.) Law appears to be well-settled Both on the meaning of continuous service for 240 days under Industrial Disputes Act, its effect on employment Status of a person employed through the agency of a contractor. In Mohan Lal v. Manager, Bharat Electronic Ltd., AIR 1981 SC 1253, it was held by Supreme Court that a person employed for a period of 240 days even with break is in continuous service if in a period of 12 calendar months just preceding the date of retrenchment he has rendered service for a period of 240 days. The effect of completion of 240 days is given in Section 25 - F of Industrial Disputes Act. In Santosh Gupta v. State Bank of Patiala, AIR 1980 SC 1218, the Supreme Court held that termination of such employee was retrenchment which could not be done without notice.
(3.) Could a person engaged through agency of contractor be excluded from definition of workman in the Act which is couched in widest terms extending to any person employed in any industry ? The answer was given in negative by Supreme Court as far back as 1955. In Shiv Nandan Sharma v. Punjab National Bank Ltd., AIR 1955 SC 404, it was held that to decide whether a person employed through the agency of a contractor was the employee of a concern, the crucial test was as to who was entitled to tell the employee the way he is to do the work for which he is engaged. The principle has never been deviated rather affirmed in every subsequent decision of the Supreme Court. In Punjab National Bank v. Gulam Dastgir, AIR 1978 SC 481, it was held that there is no doubt that the proposition laid down in 'Shiv Nandan Sharma's case is unexceptionable law and the crucial test in most cases is as to who exercised control and the supervision over the workman'. In Husain Bhai v. Alath Factory Tezhelai Union, AIR 1978 SC 1410, the Supreme Court held as under "The true test made, with brevity, be indicated once again. Where a worker or group of workers labours to produce goods of services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the workers' subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contracts is of no consequence when, on lifting the veil or looking at the consepectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that the real employer is the Management, not the immediate contractor.";