1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5265 OF 2011 Bayer (I) Ltd., Now known as Bayer Crop Science Ltd., Thane – 400 607. .. Petitioner V/s Mr.Ravi Anni Hegde, District Thane .. Respondent WITH WRIT PETITION NO.5275 OF 2011 Bayer (I) Ltd., Now known as Bayer Crop Science Ltd., Thane – 400 607. .. Petitioner V/s Mr.Ashok Rathunath Bharti, Thane (W) .. Respondent WITH WRIT PETITION NO.6532 OF 2011 Bayer (I) Ltd., Now known as Bayer Crop Science Ltd., Thane – 400 607. .. Petitioner V/s Mr.Ambaji Tukaram Saravade, Thane (W) .. Respondent Mr.K.M.Naik, Senior Advocate with Mr.P.N.Anaokar and Mr.Rahul Oak for the petitioner. Mr.Ravindran Nair for the Respondents. CORAM: R.G.KETKAR, J. DATE: 9th November, 2011. 2 P.C.: 1. Heard Mr.K.M.Naik, learned Senior counsel for the petitioner and Mr.Ravindran Nair, learned counsel for the Respondents. Rule. Mr.Nair waives service for the Respondents. By consent of the parties, Rule is made returnable forthwith and is heard finally. 2. These petitions are directed against the judgment and award dated 14.03.2011 passed by the learned Presiding Officer, 4th Labour Court, Thane in Reference made under sub-section (1) of Section 10 read with sub-section 5 of Section 12 of the Industrial Disputes Act, 1947 (for short the ‘Act’) by the Deputy Commissioner of Labour, Thane. The dispute is in respect of reinstatement of the Respondent in each of the petitions in the employment of the petitioner company. By the impugned order, the Labour Court answered the reference in the affirmative and directed the petitioner to reinstate the Respondent in each of the petitions in the employment as drivers with full back wages and continuity of service w.e.f.30.04.2001. Learned counsel for the parties fairly state that the common questions of law and facts arise in all the three petitions. In view of this, these petitions can conveniently be disposed of by this common order. 3 3. In order to appreciate the controversy raised by the parties it would be relevant to narrate facts in Writ Petition No.5265 of 2011. The petitioner is a public limited company incorporated under the Indian Companies Act, 1956 and it’s principal being Bayer (AG) Germany, having its Registered Officer at Powai, Mumbai 400 076, and amongst other factories, had a factory at Bayer Crop Science Limited, Kolshet Road, Thane. The petitioner is engaged in the business of manufacture and sale of Agro Chemicals, Rubber Chemicals, Pharmaceuticals etc. It is the case of the petitioner that Dr.M.C.Badrinarayan at the relevant time was Vice President. He being the executive, was entitled to a company car and his driver’s salary as perks. It was open for the executive to either drive himself or to appoint the driver. The said Dr.Badrinarayan was allotted car bearing Registration No.MH-04- AH-1686. He had appointed Respondent Mr.Ravi Hegade as a personal driver. Dr.Badrinarayan paid wages to the Respondent Hegade. Respondent Hegade was working under the supervision and control of Dr.Badrinarayan. There existed no employer- employee relationship between the petitioner Company and Mr.Hegade. It is the case of the petitioner that the employees 4 appointed by the petitioner company were entitled to appointment letter, salary slips, ESI, P.F., and were entitled to the facilities under the Factories Act, 1948. The employees engaged by the petitioner company were also entitled to the medical check-up etc. However, such facilities were not made available to the Respondent Hegade. 4. Initially, Respondent Hegade and two others filed complaint being complaint ULP No.79 of 2001 before the Labour Court, Thane claiming that they are the employees of the petitioner company. The application for interim relief in the said complaint was dismissed on 23.04.2001. Since the relationship between the parties was disputed, the complaint came to be withdrawn and individual disputes were referred for adjudication. 5. The references were referred for adjudication to the Presiding Officer, 4th Labour Court, Thane. On 16.12.2003 Respondent Hegade filed his statement of claim, contending interalia that he is the workman of the petitioner and since his services were terminated illegally, he is entitled to be reinstated with full backwages and continuity of service w.e.f.30.04.2001. The Petitioner resisted the claim by filing its written statement. It was 5 contended that there exists no relationship of employer and workman between the parties. The Respondent Hegade was engaged as a personal driver of Dr.Badrinarayan. Since the Respondent Hegade was engaged as personal driver, he was governed by the terms & conditions between him and said Dr.Badrinarayan. The Respondent was paid wages by Dr.Badrinarayan and was working under the supervision and control of Dr.Badrinarayan. It was further contended that the senior managers of the petitioner company were entitled to a car and their salary provided for reimbursement of their driver’s salary. It was open to the senior officer either to appoint a driver or to drive himself. The car allotted to the senior officer was utilised solely for the benefits of the senior officer, his family members as a personal car and was never utilised for the company’s purpose. On these among other grounds, the claim of the Respondent Hegade was resisted. 6. The parties led oral as well as documentary evidence to substantiate their case. On the basis of material on record, the Labour Court came to the conclusion that Respondent Hegade has proved that he was in the employment of the petitioner company 6 as a driver and that his services were terminated without following the due process of law. It also came to the conclusion that the Respondent Hegade is entitled to be reinstated with full back-wages and continuity of service. Consistent with these findings, the Labour Court answered the reference in the affirmative. In so far as the references in other two petitions are concerned, they were also answered in the affirmative with direction to the petitioner company to reinstate the Respondent workmen in those petitions as drivers with full back wages and continuity of service w.e.f. 30.04.2001. It is against these orders, the present petitions are instituted. 7. In support of these petitions, Mr.Naik reiterated the submissions that were made before the Labour Court. He submitted that no appointment letter was issued to the Respondent. Even in the statement of claim there is no averment made by Respondent Hegade as to who appointed him. There are no details as to who terminated his services as also as to who was paying salary to him. No case of reimbursement is made out in the statement of claim. As against this, the petitioner has specifically averred that there exists no relationship of employer-employee between the 7 parties. The burden is on the Respondent to establish the said relationship. He invited my attention to the copies of vouchers, letters, log-books, payment of bills, job orders etc. He also relied upon the following judgments:- (1) Employers in relation to Punjab National Bank V/s.Gulam Dastagir, 1978 I LLJ 312, (2) G.M.(OSD), Bengal Nagpur Cotton Mills V/s.Bharat Lal & Anr., 2011 I CLR 1, (3) Navin J.Surti V/s.Modi Rubber Ltd. & Anr., 2004 II CLR 46, (4) Unreported decision in the case of Saraswat Co-op.Bank Ltd. V/s.The Saraswat Co-op.Bank Employees Union & Ors., Writ Petition No.4243 of 2011 decided on 12.08.2011 (K.K.Tated, J.). Finally he submitted that the petitioner company has a planned phased cessation of manufacture of products at Thane plant. He therefore submitted that even otherwise, it is not possible to the petitioner company to reinstate the Respondent workman. 8. On the other hand Mr.Ravindran Nair supported the impugned order. He submitted that perusal of the material on record would indicate that the Respondent has established the relationship of employer and employee between the parties. He submitted that the Respondent has specifically come to the Court with a case that 8 he is employee of the petitioner company. It is the company who came out with the case that the Respondent is not their employee, but is a personal driver of one of the executives. However the evidence on record clearly establishes that the Respondent is employee of the petitioner company. He further submitted that the finding of the Labour Court is based on evidence on record and if that be so, no interference is called for at the hands of this Court. 9. As far as the submission made on behalf of the petitioner that the petitioner company has discontinued its activities at Thane plant is concerned, Mr.Nair submitted that in the first place no such case was made out and no documents were filed to that effect in the Labour Court. Though he has received copies of the letters dated 02.02.2007 and 18.12.2009, he has not admitted the contents thereof as the same were not filed in the Labour Court. Secondly, he submitted that the petitioner company has factories at other places. He therefore submitted that if the impugned order is upheld there will not be any problem for the petitioner company to reinstate the respondents workmen in other factories. He relied upon the judgment of the Apex Court in the case of Bhilwara Dudh Utpadak Sahakari S.Ltd. V/s.Vinod Kumar 9 Sharma (dead) by Lrs. & Ors., 2011 III CLR 386. 10.I have considered the rival submissions made by learned counsel appearing for the parties. The first and foremost question that is required to be considered is whether there exists employer- employee relationship between the parties? As noted earlier, Respondent Hegade has come to the Court with a specific case that the petitioner company is his employer and he is employed as a driver from 17.06.1982. He was in the continuous service of the petitioner company and he had also completed more than 240 days of service in each of the years of his employment till the date of his termination. In the statement of claim he has enumerated various duties entrusted to him. He was paid wages on company voucher from the date of joining till about 1996. The petitioner was also issuing four pairs of uniforms, two pairs of shoes and one umbrella every year. The washing charges for the uniforms were reimbursed by the petitioner company. During this period, the company gave him canteen coupons to buy food at concessional rate like other employees. However, after 1996 the petitioner started reducing the facilities one by one. The Petitioner was giving wage rise and arrears in wage rise whenever there 10 was agreement with the union during the period from 1982 to 1996. The wage rise that used to be given after settlement with the union was discontinued after 1996. The Petitioner wanted to escape from liability of giving wages, benefits and privileges of permanent employees to the workmen and some other drivers. With a view to achieving this goal, the petitioner company discontinued this practice of making payment of wages on company vouchers and started taking signatures of papers. However, his duties continued to be the same. It was further asserted by him that he is presently unemployed and he has no other source of income. He could not get any employment inspite of efforts made by him. 11.The petitioner specifically came with the case that there exists no relationship of employer-employee between the parties and the Respondent is a personal driver of Dr.Badrinarayan. He was paid wages by said Badrinarayan and was also working under the supervision and control of said Badrinarayan. In the light of these pleadings, if the evidence is perused, it would become apparent that the Respondent is employee of the petitioner company. The petitioner examined Dr.Badrinarayan. He joined petitioner 11 company as a management trainee in the year 1969. In the year 1996 he was vice president of the company. Since 1997 he was enjoying the facility of the vehicle of the company. Initially he was not entitled to a driver. Since about 1982 Respondent Hegade was his driver. It is further material to note that though Dr.Badrinarayan deposed that since about 1982 Respondent Hegade was his driver, he has addressed a letter dated 06.07.1992 (Exhibit 21) to the personal department setting out therein that the Respondent Hegade completed 10 years service as on 17.06.1992 and his work was satisfactory. He therefore recommended increase of Rs.50 w.e.f.18.06.1992 i.e.basic pay of Rs.1700/-. He also requested to arrange to pay him bonus. It is to be noted here that if at all the Respondent Hegade was the personal driver of said Dr.Badrinarayan, there was no question of Dr.Badrinarayan addressing the said letter to the Personal Department of the petitioner company, recommending to pay bonus as also increase of Rs.50/- from 18.06.1992. What is equally important to note is that said Dr.Badrinarayan was allotted company vehicle in the year 1997. However in the letter dated 06.07.1992 he states that Respondent Hegade has completed 10 years service as on 12 17.06.1992. Thus by this letter it is established beyond doubt that Respondent Hegade joined service from 17.06.1982. Thus when Respondent Hegade joined service, that time Dr.Badrinarayan was not allotted company vehicle. In the cross-examination Dr.Badrinarayan admitted that he does not have any document to show that the salary which he had paid to Respondent Hegade was reimbursed to him by the petitioner company. He does not have any document to show that he had issued any letter indicating that the Respondent Hegade was employed as his personal driver. In the cross-examination Dr.Badrinarayan admitted that in his absence Mr.A.S.Patil, officer of the petitioner company used to instruct Respondent Hegade. 12.The Petitioner also examined Mr.Ajay Singh, who was at the relevant time working as Associate General Manager, Industrial Relations,. In the cross-examination, he admitted that he knew Respondent Hegade since September, 1985. He did not have any documentary evidence to show that the wages of the Respondent Hegade were paid on any of the document other that muster of the company. He could not say that the officers of the petitioner company were directing Respondent Hegade to drive the vehicles 13 of the company. 13.In so far as Respondent Hegade is concerned, he filed an affidavit in lieu of examination in chief and reiterated the averments made in the statement of claim. In the cross-examination he stated that since 1982 till 1996 he was getting uniform and shoes but thereafter he was not getting. He has produced documents at Exhibits 22 to 27 to substantiate that he was given directions by the officers of the petitioner company other than Dr.Badrinarayan. Relying upon this evidence, Mr.Nair submitted that Respondent Hegade was working under the supervision and control of the officers of the petitioner company and therefore it cannot be said that the Respondent Hegade is a personal driver of Dr.Badrinarayan. 14.Mr.Naik relied upon the judgment of the Apex Court in the case of Employees in relation to P.N.B. (supra) to contend that the petitioner company was not exercising control & supervision over the Respondents. In particular he relied upon paragraph 3 of the report to contend that it is not unusual for company to give allowances to its high-level officers leaving it to them to engage the services of drivers or others for fulfilling the needs for which 14 the allowances are meant. He relied upon the judgment of the Apex Court in the case of G.M.(OSD) Bengal Nagpur Cotton Mills (supra) to contend that it is for the employee to aver and prove that he is the employee of the employer. Mere giving some instructions by the officers of the petitioner company could not be construed to mean that the Respondent workman was working under the supervision & control of the petitioner company. At any rate, he submitted that the Respondent Hegade is not entitled to payment of full back wages. He relied upon the judgments of this Court in the case of Navin J.Surti (supra) and unreported decision in Saraswat Co-op.Bank Ltd.(supra) to contend that the Respondent has neither averred nor proved that he made any efforts to secure other employment. 15.In the case of Employees in relation to P.N.B.(supra) on facts the Apex Court found that there was nothing on record to make out the nexus between the Bank and the driver. There was nothing on record to indicate that the control and direction of the driver vested in the Bank. In paragraph 3 of the report, the Apex Court considered its earlier judgment in the case of Shivnandan Sharma V/s. The Punjab National Bank Ltd., AIR 1955 SC 1427. The 15 Apex Court also considered the judgment of Lord Porter in Merssy Docks & Harbour Board V/s.Coggins & Sriffith Liverpool Ltd., which was relied upon in Shivanandan Sharma’s case to the following effect:- “any factors have a bearing on the result. Who is paymaster, who can dismiss, how long the alternative service losts, what machinery is employed have all to be kept in mind. The expressions used in any individual case must always be considered in regard to the subject matter under discussion but amongst the many tests suggested I think that the most satisfactory, by which to ascertain who is the employer at any particular time, is to ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged.” 16. In the case of G.M.(O.S.D.) Benal Nagpur Cotton Mills (supra) it was the case where appellant had entered into a security service agreement dated 02.02.1975 with the 2nd Respondent for its mills premises covered by the provisions of Contract Labour (Regulation and Abolition) Act, 1970. The 1st Respondent Bharatlal was appointed by the 2nd Respondent. The 2nd discharged the 1st Respondent from service on 27th/28th July, 1982 and the appellant terminated the security service agreement on 16.08.1982. In 1987 that is to say merely after five years from termination, the 1st Respondent filed application for declaration that his termination from service was illegal. The Labour Court 16 allowed the application in part and directed the appellant to reinstate the 1st Respondent. The Appellant preferred appeal before the Industrial Court. The Industrial Court dismissed the appeal which was challenged in the High Court. The High Court dismissed the writ petition. In paragraph 9 of that report, it was observed that the Industrial Court wrongly placed onus upon the appellant. It is for the employee to aver and prove that he was paid salary directly by the principal employer and not by the contractor. The 1st Respondent did not discharge this onus. Even the employee did not establish that he was working under the direct control and supervision of the principal employer. The Industrial Court misconstrued the meaning of the term “control and supervision” and held that as the officers of the appellant were giving some instructions to the 1st Respondent working as Guard, he was deemed to be working under the supervision and control of the appellant. 17.In the present case, the petitioner specifically came out with the case that the Respondent Hegade was personal driver of Dr.Badrinarayan. However, from the material produced on record, it is evident that the Respondent joined services on 17.06.1982 17 when Dr.Badrinarayan was not allotted company vehicle. The letter addressed by Dr.Badrinarayan (at Exhibit 21) supports the case of Respondent Hegade that he is in the employment since 1982. The said letter really speaking demolishes the case of the petitioner that the Respondent Hegade is the personal driver of Dr.Badrinarayan. As noted earlier, the documents at Exhibits 22 to 27 clearly indicate that the instructions were given to the Respondent Hegade from time to time by the officers of the petitioner company other than Dr.Badrinarayan. Even in the cross-examination Dr.Badrinarayan admitted that in his absence Mr.A.S.Patil used to instruct Respondent Hegade. Considering the cumulative effect of the material on record, I am clearly of the opinion that the Respondent Hegade has established that he was employed by the petitioner company. The judgments of the Apex Court in (i) Employees in relation to P.N.B.(supra) and (ii) G.M. (O.S.D.) Bengal Nagpur Cotton Mills (supra), in my opinion, do not advance the case of the petitioner any further. 18.Mr.Nair relied upon the judgment of the Apex Court in the case of Bhilwara Dugdh Utpadak Sahakari S.Ltd. (supra) to contend that the finding of the Labour Court is on the basis of evidence on 18 record and no interference is called for at the hands of this Court. I find merit in the submissions of Mr.Nair. 19.Mr.Naik contended that at any rate, the Respondent is not entitled to payment of full back wages. He submitted that the Respondent has neither averred nor proved that he made any attempt to secure other employment. I do not find any merit in this submission. In Paragraph 10 of the statement of claim, Respondent has clearly averred that he is unemployed and he has no other source of income. He further averred that he could not get any employment inspite of efforts made by him. In the affidavit in lieu of examination in chief, he reiterated this fact in Paragraph 9. However, the Respondent was not cross-examined on this vital aspect. Even the petitioner did not bring any material on record to indicate that the Respondent was gainfully employed. Mere assertions in the written statement that the Respondent was driving tourist vehicles is not sufficient. In fact in Paragraph 15 of the written statement it was averred that the company would produce necessary evidence during hearing of above reference. However, no such evidence was brought on record. The judgments in the case of Navin Surti (supra) and the unreported 19 decision in the case of Saraswat Co-op.Bank Ltd.(supra) do not advance the case of the petitioner any further. 20.Lastly Mr.Naik submitted that the factory at Thane is closed down and therefore it will not be possible for the petitioner to reinstate the Respondent workman. Mr.Nair submitted that apart from the factory at Thane the Petitioner company has other factories and its registered office is at Powai, Mumbai 400 076 where the Respondent and two other drivers in the companion petitions can be absorbed. I find merit in the submission of Mr.Nair. 21.In my opinion, the finding of the Labour Court is based on the available material and cannot be said to be vitiated by any error of law or fact. Nor can it be said that the Labour Court considered the matter with wrong approach or that the finding of the Labour Court is vitiated by any extraneous or erroneous consideration. This Court while sitting in writ jurisdiction under Article 226 of the Constitution of India does not sit as an appellate forum over the findings recorded by the Labour Court but the judicial review of such findings recorded by the Labour Court is confined to the manner in which the conclusions have been arrived at and not their correctness. The Labour Court has considered at length the 20 “material” placed by both the parties and on weighing the probabilities, the material placed by the Respondent was found acceptable which does not call for any interference under Article 226. 22.Taking overall view of the matter, I do not find that the Labour Court has committed any error of law apparent on the face of record. It also cannot be said that the impugned order suffers from any perversity. The findings recorded by the Labour Court are based on the evidence on record. In the result, petitions fail and the same are dismissed. Rule is discharged in each of the petitions. In the circumstances of the case, there shall be no order as to costs. 23.At this stage, Mr.Naik orally applies for stay of this order for a period of four weeks from today. On the application made by Mr.Naik, this order shall remain stayed for a period of four weeks from today. (R.G.KETKAR, J.)