IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :17.02.2010 CORAM: THE HONOURABLE MR. JUSTICE K. CHANDRU Writ Petition No.18061 of 2000 M.VINAYAKAMURTHY [ PETITIONER ] Vs 1 THE ASST. GENERAL MANAGER (LAW) STATE BANK OF INDIA ZONAL OFFICE, MADURAI 625 020 2 THE PRESIDING OFFICER INDUSTRIAL TRIBUNAL, CHENNAI-104 [ RESPONDENTS] Petition under Article 226 of the Constitution of India praying for a certiorarified mandamus calling for the records in I.D.No.143 of 1994 dated 11.09.1998 on the file of the 2nd respondent/Industrial Tribunal, Chennai and quash the same and further direct the 1st respondent to reinstate the petitioner into service. For Petitioner : Mr.K.M.Ramesh For Respondents : Mr.S.Jayaraman (R1) O R D E R The petitioner has filed the present writ petition seeking to challenge the award passed by the 2nd respondent Industrial Tribunal in I.D.No.143 of 1994 dated 11.09.1998 wherein and by which the petitioner's claim for relief of reinstatement with all consequential benefits was declined by the Tribunal. It is this award which is under challenge in this writ petition. 2. The writ petition was admitted on 24.10.2000. On notice from this Court, the first respondent Bank has filed a counter affidavit dated 15.02.2006 justifying the award. 3. Heard the argument of Mr.K.M.Ramesh, learned counsel appearing for the petitioner and Mr.S.Jayaraman, learned counsel for the first respondent Bank. https://hcservices.ecourts.gov.in/hcservices/ 4. The case of the petitioner was that he was engaged by the 1st respondent Bank at their branch at Madurai for maintenance of generator and for maintaining the Water Tank. He was paid Rs.50/- per week for generator maintenance and Rs.5/- for Water Tank Maintenance. The petitioner requested for increase in the weekly payment and the same was also increased with effect from 01.11.1990. Thereafter, the amount of payment was increased to Rs.800/- per month. Then the Branch Management Committee appreciated the work of the petitioner. However, when he reported for duty on 04.12.1992, he was informed that he was dismissed from service by the Branch Manager. Thereafter he raised an industrial dispute before the Assistant Labour Commissioner, (Central). On a failure report being sent to the Governement of India, Ministry of Labour by order dated 29.04.1994 referred the issue for adjudication by the 2nd respondent Tribunal The issue that was referred for adjudication was whether the Management of the State Bank of India was justified in discontinuing the service of M.Vinayakamurthy (petitioner). The said reference was taken on file by the Tribunal as I.D.No.143 of 1994. The petitioner filed a claim statement dated 27.02.1995 and on notice from the 2nd respondent Tribunal, the 1st respondent Bank filed a counter statement dated Nil (November 2005). 5. Before the Tribunal the petitioner had examined himself as W.W.1 and on the side of the Management one Narayanan was examined as M.W.1. The petitioner filed 9 documents and they were marked as Ex.W1 to W.9. On the side of the Management, 7 documents were filed and they were marked as Exs.M.1 to M.7. 6. The contention raised by the respondent Bank was that the petitioner was not at all an employee of the bank and he was only engaged on contract. It was by a letter dated 16.12.1992, his contract was discontinued. The petitioner's claim that he was paid overtime allowance as well as the fact that he had a continuous service of 240 days was denied. The bank also took up the contention that the petitioner himself had applied for a loan for establishing an individual business and that was also sanctioned by the bank. Therefore, it cannot be contended that he can be a workman within the meaning of Section 2(S) of the Industrial Disputes Act. 7. The Tribunal on the basis of the materials placed before it (both documentary and oral) came to the conclusion that the petitioner is not an workman of the bank and he was only a contractor. Even assuming that he was an employee of the bank alternativelythe learned counsel for the respondent contended that, since he was given work for fixed duration, his termination cannot be a "retrenchment" and will be hit by Section 2(OO)(bb) of the Industrial Disputes Act. Inasmuch as the dispensing with the contract of the petitioner was not a retrenchment, he was not eligible to get any relief. https://hcservices.ecourts.gov.in/hcservices/ 8. The Tribunal also noted that the petitioner was in receipt of a loan for the purpose of setting up of a Small Scale Industry in electrical work and the amount paid to him was recovered in instalments. He had also executed an hypothecation agreement claiming that the loan was required to carry on a business in the electrical work as a sole proprietary concern. Whatever the amount paid to the petitioner was only a labour charge and for any extra work done by him, it was separately paid. It is in that view of the matter, the Tribunal declined to grant any relief. 9. Mr.K.M.Ramesh, learned counsel for the petitioner stated that there was no contract executed between the petitioner and the Bank and even in the letter dated 28.10.1991, he was described only as contract labour and not as a contractor. He also stated that the Tribunal has misunderstood the relationship between the petitioner and the 1st respondent Bank. Even the bank officials have certified that his work was good timely and cheaper compared to outside charges. 10. Per contra, Mr.S.Jayaraman, learned counsel for the bank contended that it is a contract for service by the petitioner. The post claimed to be held by the petitioner has neither listed either in the Sastry Award or in the various Bipartite settlements. In any event, the amount paid was only on piece rate basis and he was not entitled for any relief. 11. In this context, reliance was also placed on the Judgment of the Supreme Court in the case of Employers in relation to Punjab National Bank vs Ghulam Dastagir reported in 1978 (1) LLJ 312. In that case the Supreme Court dealt with the case of a personal driver of the Manager of the Bank, who claimed to be an employee of the bank. The Supreme Court found that in the absence of any direct employment by the bank, merely because that the said employee was discharging some work by going along with the Manager and also on errand at the instance of the Manager, he cannot be considered as an employee of the Bank. 12. The following passage found in paragraph 3 may be usefully extracted below:- "3.....It is clear that the direction and control are the telling factors to decide as to whether the driver in the present case is the employee of the Bank. This test does not exclude other factors also, and indeed as Lord Macmillan, in the aforesaid case rightly stressed the question in each case turns on its own circumstances and decisions in other cases are rather illustrative than determinative. To https://hcservices.ecourts.gov.in/hcservices/ crystalise criteria conclusively is baffling but broad indications may be available from decisions. The "beedi cases" turn on the reality of "independent contractors" standing in between the management and the beedi workers. This Court, in many such cases discovered that there was a common practice of using deceptive devices and the so called independent contractors were really agents or workers of the management posing as independent contractors for the purpose of circumventing the Factories Act and like statute which compel managements to meet certain economic and social obligations towards the workers. We have no doubt that if in this case there was evidence to show any colourable device resorted to by the Bank, our conclusion would have been adverse to the Management. On the other hand, the evidence adduced before the Tribunal, oral and documentary, lead only to one conclusion that the Bank made available certain allowance to facilitate the Area Manager, Shri Sharma privately to engage a driver. Of course, the jeep which he was to drive, its petrol and oil requirements and maintenance, all fell within the financial responsibility of the Bank. So far as the driver was concerned, his salary was paid by Shri Sharma as his employer who draw the same granted to him by way of allowance from the Bank. There is nothing on record to make out a nexus between the Bank and the driver. There is nothing on record to indicate that the control and direction of the driver vested in the Bank. After all, the evidence is clearly to the contrary. In the absence of material to make out that the driver was employed by the Bank, was under its direction and control, was paid his salary by the Bank and otherwise was included in the army of employees in the establishment of the Bank, we cannot assume the crucial point which remains to be proved. We must remember that there is no case of camouflage or circumvention of any statute. It is not unusual for public sector industry or a nationalised banking institution 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 the allowances are meant. In this view, we are clear that the award fails as it is unsupportable. We, therefore, reverse the award". https://hcservices.ecourts.gov.in/hcservices/ 13. In the present case, the petitioner had not let in evidence to the satisfaction of the Tribunal that he was an employee of the bank. On the contrary, he was allowed to attend maintenance work for which he was paid on piece rate basis. Therefore, no fault can be found with the impugned award passed by the 2nd respondent Tribunal. Further, in the exercise of powers conferred under Article 226 of the Constitution, the award does not call for any interference. Hence, the writ petition stand dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rg To 1 THE ASST. GENERAL MANAGER (LAW) STATE BANK OF INDIA ZONAL OFFICE, MADURAI 625 020 2 THE PRESIDING OFFICER INDUSTRIAL TRIBUNAL, CHENNAI-104 3. THE SECTION OFFICER, VR SECTION, HIGH COURT, MADRAS. 1 cc To Mr.S.Jayaraman, Advocate, SR.10744 1 cc To Mr.K.M.Ramesh, Advocate, SR.10677 W.P.No.No.18061 of 2000 TEJ(CO) sra 01/03/2010 https://hcservices.ecourts.gov.in/hcservices/