IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 WA.No. 512 of 2008() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.15967/2007 Dated 02/11/2007 .................... APPELLANTS/PETITIONERS IN WPC -------------------------------------------- 1. THE DISTRICT PRESIDENT, KERALA PRIVATE TRANSPORT WORKERS CONGRESS, CHAITHANYA, ERNAKULAM. 2. P.M.BENJAMIN, S/O.LATE MICHAEL P.P., PULITHARA HOUSE, PERUMPOTTA ROAD, ELAMAKKARA, COCHIN-26. 3. T.V.JOSEPH, THARASSERY HOUSE, JUBILEE ROAD, THAMMANAM, COCHIN-32. BY ADV. SRI.C.S.AJITH PRAKASH RESPONDENTS/RESPONDENTS IN WPC ---------------------------------------------------------- 1. THE ZONAL MANAGER, BANK OF INDIA, ZONAL OFFICE, KALOOR TOWER, ERNAKULAM. 2. THE PRESIDING OFFICER, CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL, KARSHAKA ROAD, ERNAKULAM. ADV. SRI.DEVAN RAMACHANDRAN FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. -------------------------------------------------------------- W.A.No. 512 of 2008 -------------------------------- Dated this the 23rd day of February, 2010. JUDGMENT Balakrishnan Nair , J. Appellants are the writ petitioners. They approached this Court challenging Ext.P16 award passed by the Central Government Industrial Tribunal in I.D. No.9 of 2005. The brief facts of the case are the following. 2. Appellants 2 and 3 were the personal drivers of two senior officers of Bank of India from 1990 to 2005 and from 1993 to 2005 respectively. The termination of their services led to the reference of the industrial dispute under Section 10(1)(d) of the Industrial Disputes Act by the Central Government. The dispute referred for adjudication was “Whether the actions of the Management of the Bank of India in not regularising the services of the personal drivers of executives viz., Sri.P.M.Benjamin and Sri. T.V.Joseph and terminating their services are correct? If not, what reliefs the workmen are entitled?” 3. From the side of the workmen, WW1 to WW4 were examined and documents W1 to W28 were marked. From the side of the management, MW1 was examined and documents M1 and M2 were marked. The Tribunal after hearing both sides and adverting to evidence, took the view that since the workmen concerned were the personal drivers of two senior W.A. No. 512 of 2008 2 executives, the employment under them cannot be treated as an employment under an industry. So, no relief can be granted. Reliance was also placed by the Tribunal on a decision of the Apex Court in Secy. State of Karnataka v. Umadevi (2006 (4) SCC 1) to reject the claim of the workmen. Though the workmen relied on the decision of the Apex Court in Punjab National Bank v. Ghulam Dastagir (AIR 1978 SC 481), the Tribunal distinguished the decision on facts. As mentioned earlier, finally the award was passed repelling the claim of the workmen. The aggrieved appellants challenged the award by filing the writ petition. A learned single Judge, after hearing both sides, took the view that no ground has been made out warranting interference with the findings of the Tribunal and the writ petition was dismissed. The aggrieved appellants have, therefore, preferred this writ appeal. 4. The learned counsel for the appellants submitted that though they were designated as Personal Drivers of the senior executives, they were in fact drivers of the bank and of the vehicles owned by the bank. Since their services were utilised for the benefit of the Bank, they were entitled to regularisation. It is also submitted that the bank being an industry, they should have been terminated only by following the procedure under Section 25F of the Industrial Disputes Act. So their termination is void for violating Section 25F and therefore they are entitled to a declaration that W.A. No. 512 of 2008 3 they are continuing in service. It was also attempted to show that the Tribunal did not advert to all the materials placed on record and its findings are perverse. 5. We went through the award and other materials placed on record. It is not in dispute that the workmen concerned were not engaged by the bank after following the due procedure prescribed for engaging drivers under it. When the workmen came to know about the vacancies, they approached the executives concerned, who on being satisfied that they are good drivers, engaged them. There was no invitation of applications by the Bank or any selection made by it. So even assuming, occasionally they have served the bank by driving its vehicles and even assuming some payments were made by the bank, the same will not change the nature of their engagement. They were originally engaged as drivers of the said two senior executives and were persons of their choice. So such workmen can never be treated as employees of the bank. Their regularisation can never be ordered in view of the decision of the Apex Court in Umadevi's case (supra). Of course, the bank is an industry. But, the executives cannot be treated as an industry. A personal servant, whether be a driver or some other hand of an executive of a Bank cannot claim that he is working in an industry as the said officer cannot be treated as an industry. If that be so, the workmen concerned are not entitled to the benefit of Section 25F of the W.A. No. 512 of 2008 4 Industrial Disputes Act. The finding that the workmen concerned are the personal drivers of the senior executives, being a finding of fact based on some evidence tendered before the Tribunal, the same cannot be disturbed under Section 226 of the Constitution of India, even if a different view is possible. So the learned single Judge has rightly affirmed the said finding. In view of the said finding, no relief can be granted to the workmen concerned. Therefore, the learned single Judge dismissed the writ petition correctly. We affirm the said judgment and dismiss the writ appeal. K.BALAKRISHNAN NAIR Judge P.N.RAVINDRAN Judge vps W.A. No. 512 of 2008 5