Case: Basf India Limited &amp; Another Vs. M. Gurusamy &amp; Another

cumulative effect of these aspects the Commissioner held that there was no need for the establishment to have reimbursed the Managers towards the expenses for engaging these drivers had they not been engaged for the benefit of the establishment. The finding thus concluded by the Commissioner that these facts would prove that the concerned drivers are paid wages directly or indirectly by the establishment for the work carried out by them in or in connection with the establishment and therefore they are nothing but employees as defined under Section 2(f) of the Act of 1952 cannot be faulted. 10.As noted above, the learned senior Counsel appearing for the Company strenuously contended that the Company has no control over these drivers and if the control over these drivers is not established, such drivers cannot be held to be employees within the meaning of Section 2(f) of the Act of 1952. In so far as this aspect is concerned we may observe that though in the reply filed by the Company on 18th June 1992 the plea was set up that the drivers were under exclusive supervision and control of the respective Managers in their individual capacity, no evidence was produced by the Company in support of this plea. It was for the Company to lead proper evidence in support of their case that such drivers were not under the control of the Company. The learned Senior Counsel submitted that the Company could not have led negative evidence. The contention is hardly acceptable. The Managers who had appointed these drivers were the employees of the Company and their evidence could have been led by the Company to demonstrate and indicate the nature of the control over the drivers. For want of any evidence in support of their case that the Company does not have any control over the concerned drivers and that the drivers were under exclusive supervision and control of the respective Managers, the contention of the learned Senior Counsel that the respective Managers had control over the concerned drivers and that the Company had no control over such drivers cannot be accepted. 11.In Ghulam Destagir (supra) the workman failed to establish that the Bank had the control and direction over him and that there was a nexus between him and the Bank and in this backdrop the Apex Court held that the award passed by the Industrial Tribunal was unsupportable. The Apex Court further observed thus: 4. We wish to make two comments. It is quite conceivable that the facts in the case of employment of other drivers may be different. If other materials are available regarding the terms and conditions of service regarding the direction and control of the drivers and regarding other indicia of employment, the conclusion may be different. We cannot, therefore, dogmatize generally as to the nature of employment of other drivers under this bank or other industry even where features of allowance may be present. We mention this, because, as Lord Macmillan pointed out in the case we have already referred to, facts vary from case to case and conclusions are reached on the basis of the facts and evidence of each case. There is no invariable proposition where fluid facts are involved. 12. The learned Single Judge therefore cannot be said to have erred in not applying Ghulam Dastagir to the instant case. Incidentally we may observe that the three Judge Bench of the Supreme Court in Silver jubilee Tailoring House (supra) (this case has been referred by the learned Single Judge and relied upon) it was held that in order to decide relationship of employer and the employee the test of right to control cannot be treated as an exclusive test and that it is not necessary that the servant should be under exclusive control of one master. In paragraphs 27, 28 and 29 of the report, the Apex Court held thus: 27. It is, therefore, not surprising that in recent years the control test as traditionally formulated has not been treated as an exclusive test. 28. It is exceedingly doubtful today whether the search for a formula in the nature of a single test to tell a contract of service from a contract for service will serve any useful purpose. The most that profitably can be done is to examine all the factors that have been referred to in the cases on the topic. Clearly, not all of these factors would be relevant in all these cases or have the same weight in all cases. It is equally clear that no magic formula can be propounded, which factors should in any case be treated as determining ones. The plain fact is that in a large number of cases, the Court can only perform a balancing operation weighing up the factors which point in one direction and balancing them against those pointing in the opposite direction. (See Atiyah, Ps. Vicarious Liability in the Law of Torts pp. 37-38). 29. During the last two decades the emphasis in the field has shifted and no longer rests so strongly upon the question of control. Control is obviously an important factor and in many cases it may still be the decisive factor. But it is wrong to say that in every case it is decisive. It is not no more than a factor, although an important one. (See Argent v. Minister of Social Security and Another, (1968) 1 WLR 1749 at 1759). 13. In our considered view the legal position laid down by Apex Court in Silver Jubilee Tailoring House as noticed above is not deviated in the two Bench decision of the Supreme Court in Ghulam Dastagir. This legal position does not get changed in Employers in relation to the Management of Reserve Bank of India vs. Their Workmen (supra) and State Bank of India vs. State Bank of India Canteen Employees Union (Bengal Circle) (supra). 14. Thus we find no infirmity in the order of the learned Single Judge warranting interference in Appellate jurisdiction.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]4. We wish to make two comments. It is quite conceivable that the facts in the case of employment of other drivers may be different. If other materials are available regarding the terms and conditions of service regarding the direction and control of the drivers and regarding other indicia of employment, the conclusion may be different. We cannot, therefore, dogmatize generally as to the nature of employment of other drivers under this bank or other industry even where features of allowance may be present. We mention this, because, as Lord Macmillan pointed out in the case we have already referred to, facts vary from case to case and conclusions are reached on the basis of the facts and evidence of each case. There is no invariable proposition where fluid facts are involved12. The learned Single Judge therefore cannot be said to have erred in not applying Ghulam Dastagir to the instant case. Incidentally we may observe that the three Judge Bench of the Supreme Court in Silver jubilee Tailoring House (supra) (this case has been referred by the learned Single Judge and relied upon) it was held that in order to decide relationship of employer and the employee the test of right to control cannot be treated as an exclusive test and that it is not necessary that the servant should be under exclusive control of one master. In paragraphs 27, 28 and 29 of the report, the Apex Court held thus:27. It is, therefore, not surprising that in recent years the control test as traditionally formulated has not been treated as an exclusive test29. During the last two decades the emphasis in the field has shifted and no longer rests so strongly upon the question of control. Control is obviously an important factor and in many cases it may still be the decisive factor. But it is wrong to say that in every case it is decisive. It is not no more than a factor, although an important one. (See Argent v. Minister of Social Security and Another, (1968) 1 WLR 1749 at 1759)13. In our considered view the legal position laid down by Apex Court in Silver Jubilee Tailoring House as noticed above is not deviated in the two Bench decision of the Supreme Court in Ghulam Dastagir. This legal position does not get changed in Employers in relation to the Management of Reserve Bank of India vs. Their Workmen (supra) and State Bank of India vs. State Bank of India Canteen Employees Union (Bengal Circle) (supra)14. Thus we find no infirmity in the order of the learned Single Judge warranting interference in Appellate jurisdiction.