1 Rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1096 OF 2009 Hindalco Industries .. Petitioner V/s. Shri Raja Palan & Anr. .. Respondents Mr.J.P.Cama a/w.Ms.Neha Mehta i/b. M/s.Haresh Mehta and Co. for the Petitioner. Ms.Sangita Anand Deo for the Respondents. CORAM : S.J. KATHAWALLA, J. DATE : 16TH OCTOBER, 2009. P.C.:- Heard counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Ms.Deo waives notice for Respondent No.1. 3. The present writ petition is filed to challenge the 2 award of the 10th Labour Court in reference (IDA) No.408 of 2006 passed on 25th February, 2009. The reference was for the adjudication of the demand of the first Respondent that he should be reinstated in service with full back wages and continued service, with effect from 7th January, 2005. The facts are that Respondent No.1 was a driver, directly employed by one Mr.Shashikant Maudgal, since 1998. In 2001, Mr.Maudgal joined the Petitioner Company (hereinafter “Hindalco”) and was provided with a vehicle owned by Hindalco. He was also entitled to a certain fixed sum as Driver Allowance from Hindalco. Respondent No.1 is said to have met with numerous minor accidents, due to which Mr.Maudgal warned him that he would have to bear part of the expenses of repair from his own pocket. When the accidents continued to occur, despite this warning, Mr.Mudgal asked Respondent No.1 to contribute towards repair of the vehicle. At this point, Hindalco contends that Respondent No. 1 stopped attending his job with Mr.Maudgal, as of 4.1.05, while Respondent No.1 contends that he was arbitrarily dismissed from service on 7.1.05. Respondent No.1 proceeded to raise an 3 industrial dispute before the Conciliation Officer, who submitted a Failure Report to the Deputy Commissioner of Labour (Conciliation). The matter was referred to the Labour Court who by its impugned Award has ordered reinstatement of respondent No.1 with continuity of service without backwages. Against the said order, Hindalco has now petitioned this Court. 4. Learned Advocate for Hindalco has urged that the Labour Court has no jurisdiction to entertain the matter as Respondent No.1 is not a “workman” for the purposes of the Industrial Disputes Act, 1947. He has submitted that Respondent No.1 was in personal employment of Mr.Maudgal since 1998, and his salary was paid by either Mr.Maudgal, or his wife. Hence, he submits that this service is strictly a domestic service and excluded from the definition of “industry”, under section 2(j) of the Industrial Dispute Act, 1947. 5. Learned Advocate for Respondent No.1 has contended that Respondent No.1 was employed by Hindalco since August 4 1998 and Mr.Maudgal was his “immediate superior officer”, who arbitrarily asked him to leave his service on 7.1.05, although Hindalco had not issued him show-cause notice or instituted an enquiry into his alleged misconduct. Respondent No.1 has admitted in his evidence that he has no documents to show that he was employed by Hindalco. He has admitted that his salary was paid to him by Mr.Maudgal or his wife. He has also admitted that though he claims that he was employed as a driver by Hindalco since 1998 and started driving the vehicle allotted to Mr.Maudgal only from the year 2001, he does not remember the name of a single officer for whom he drove the allotted vehicle/s between 1998 to 2001. 6. The learned Judge of the Labour Court, in his order, held that Respondent No.1 had proven the employer-employee relationship between himself and Hindalco and also had established that his services were illegally terminated by Hindalco. The learned Judge based his findings on the grounds that Respondent No.1, had shown a uniform which bore the logo of 5 Hindalco. Further, Respondent No.1 produced food coupons, which Hindalco apparently issues to all its permanent employees. Lastly, the Learned Judge opined that as Mr.Maudgal had no vehicle of his own till 2005, and there being no proof of any Letter of Appointment issued by him to Respondent No.1, he could not have appointed Respondent No.1 in his personal capacity. Dealing with the submission of the Petitioners that there is no practice of the first party company appointing drivers and further there was no driver appointed either for executives nor is there any panel of drivers appointed by the company, the learned Trial Judge has held that the evidence of the Petitioner company/Mr.Maudgal is silent on the point that the aforestated vehicles owned by the Petitioner were allotted to be used by him and his family members. The learned Trial Judge has refused to believe that the Petitioner company did not have drivers in its employment. The learned Trial Judge has also disbelieved Mr.Maudgal’s contention that respondent No.1 was repeatedly involved in minor accidents, only because Mr.Maudgal did not produce the repair bills. 6 7. This Court is unable to see the merits in these findings. The primary issue to be examined is whether Respondent No.1 is able to prove himself as an employee of Hindalco and not of Mr.Maudgal in his personal capacity. The law on the issue is well settled. A clear nexus between the employer and person alleging to be an employee is required. The test laid down in Mersey Docks & Harbour Board V. Goggins & Griffith Liverpool Ltd., 1957 A.C.1, and relied upon by the Hon’ble Supreme Court in Shivanandan Sharma V. The Punjab National Bank Ltd., AIR 1955 SC 404 is the accepted standard and states : “...ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged.” This test of direction and control has been applied by the Hon’ble Supreme Court in the case of Punjab National Bank V. Ghulam Dastagir, (1978) 2 SCC 358, which bears similar facts to the present matter. Here, Learned Justice Krishna Iyer states that factors to be evidenced in applying the test as : “In the absence of material to make out that the driver 7 was employed by the Bank, was under its direction and control, was paid his salary by the Bank and otherwise included in the army of employees in the establishment of the Bank, we cannot assume the critical point which needs to be proved.”(para 3) However, the Learned Judge mentions two caveats. First, these are not crystallized determinative criteria, rather illustrative broad indications. Secondly, no attempt should be made by the management to circumvent statutory obligations towards workers by using the camouflages or deceptive devices, as attempted by employers in cases such as D.C.Dewan Mohideen Sahib & Sons V. United Bidi Workers’ Union, AIR 1966 SC. 370, among others. 8. This Court disagrees with the findings of the Learned Judge of the Labour Court that the factual matrix of the present case may be distinguished from Punjab National Bank V. Ghulam Dastagir, (Supra). Rather, the facts of the present matter are almost identical to the aforementioned case. In both the cases, an 8 Executive of the petitioner company personally hires the respondent driver to drive a vehicle, owned by the petitioner company, with reimbursement by the Petitioner Company for the wages of the driver. With regard to the second caveat, it cannot be said from the facts that Hindalco has attempted to circumvent any statutory obligation under the Industrial Disputes Act, 1947, by any deceptive means against its employees. 9. The Court hence applies the test to the present facts. Respondent No.1 has provided no material to show his employment by Hindalco such as a Letter of Appointment, or any other documents provided to prove Hindalco as his employer. The mere fact that he had a uniform with a Hindalco logo is not evidence of employment, as this uniform was given to the entire workforce of Hindalco and could be easily procured by any person. Mr.Maudgal has stated that he has never seen Respondent No.1 wearing any uniform. Similarly, the food coupons are issued to the entire permanent work force and can be easily procured from any permanent staff. In fact, Mr.Maudgal 9 has stated that he had himself given some of his canteen coupons to Respondent No.1 for his use. The fact that there is no Provident Fund deduction from the wages paid to Respondent No. 1 or a contribution by Hindalco, as is done for their other permanent employees shows that Hindalco did not pay him his salary. In fact, Respondent No.1 has admitted that his salary was paid to him by Mr.Maudgal or his wife. Lastly, there is no evidence provided by Respondent No.1 to show that he was included in the “army of employees” of Hindalco. Though, it is the case of Mr.Maudgal that Respondent No.1 was his personal driver since 1998 i.e. when he was with Ceat Ltd. and joined Hindalco only in the year 2001, Respondent No.1 has submitted that he was working as a driver with Hindalco since 1998, but is unable to remember the name of a single officer whom he drove between 1998 to 2001, which cannot be believed. 10. Respondent No.1, in his affidavit, has cited the test laid down in Hussainbhai, Calicut v. Alath Factory Thozhilali Union, Kozhikode & Ors, 1978 SCR (3) 1073, where it was laid 10 down that the employer is one who has economic control over the worker’s subsistence, skill and continued employment, such that if for any reason he ‘chokes off’, the worker is virtually laid off. The aforestated facts establishes beyond any doubt that Mr.Maudgal controlled the employment and subsistence of Respondent No.1. 11. In the light of these findings, it is amply clear that Mr.Maudgal is not the “immediate superior officer” of Respondent No.1, but rather his employer. There is no employer-employee relationship between Hindalco and Respondent No.1. 12. The Learned Trial Judge has clearly erred in not appreciating that unless Respondent No.1 discharges the initial burden on him to prove/establish that he was in the employment of the Petitioner Company and remained to be a permanent employee of the Petitioner Company for the years 1998 to 2005, the Petitioner Company was not required to prove/establish anything in the matter. The findings of the Learned Judge indicates that the learned Judge has failed to note that it is not 11 unusual for corporates to give allowances to its high-level officers leaving to them to engage the services of drivers or others for fulfilling the needs for which the allowances are meant. 13. Before parting with this order, I must mention that in the course of arguments, the learned Advocate for the respondent No.1 had submitted that the petitioner Company has failed to produce any evidence to show that Mr.Maudgal was paid the driver allowance by the Petitioner. The learned Advocate for the Petitioner Company submitted that though the Petitioner Company has the necessary evidence to show that the payment made by Mr.Maudgal to respondent No.1 was reimbursed by the Petitioner company, the same was not produced since the initial burden of proving the employer-employee relationship between the Petitioner Company and respondent No.1 was on respondent No.1 which he has failed to discharge. To this, the learned Advocate for the first respondent submitted that if the petitioner Company produces the said evidence, respondent No.1 will be out of Court. This Court therefore, only for the satisfaction of the 12 Advocate for Respondent No.1 requested the Petitioner Company to produce the said evidence. However, when the petitioner Company produced the said evidence, an affidavit was filed by respondent No.1 wherein the first objection taken by respondent No.1 was that the said documents/evidence was not produced before the Labour Court and therefore, cannot be taken into consideration by this Court in its writ jurisdiction. This Court, therefore without going into the correctness of the approach on the part of Respondent No.1 decided not to take any cognizance of the documents produced by the Petitioner in the aforestated circumstances. 14. Under the circumstances Rule is made absolute. The writ petition is allowed and the award of the Labour Court dated 25.2.2009 is set aside. However, there will be no order as to costs. Order accordingly (S.J. KATHAWALLA, J.)