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

2. On 28th December 1984 the Commissioner issued summons to M/s.BASF India Limited (first Appellant and hereinafter referred to as the Company ) under Section 7A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (for short Act of 1952 ). In the summons it was recorded that the Commissioner had reason to believe that the Company failed to remit the provident fund dues in respect of their establishment covered by the Act of 1952 and the Rules framed thereunder and that provident fund benefits were not extended to the trainees and contractor employees after completion of 60 working days. The Company was thereby directed to give evidence and to produce all the records including those mentioned in the summons for conducting an enquiry and determining the amount due from the Company. It appears that during the course of hearing of the said proceeding the question arose regarding coverage of drivers appointed by the Managers. By the reply filed by the Company on 18th June 1992 the explanation was submitted by the Company to the effect that the personal drivers of the Company s Managers were basically their domestic servants; the Managers themselves selected them and employed them; the Managers called their domestic servants at any day and instruct them to drive the car at any place with any passengers as per their personal requirements; the drivers were under exclusive supervision and control of the respective Managers in their individual capacity and not in the capacity of the Company s employees; the Company s role was confined only to the extent that as a part of service conditions agreed with the Managers, it will reimburse to the Managers the expenses incurred by them in utilizing their personal drivers services for to and fro drive between the residence and the office or any place outside for official work. The Company thus set up the case that there was not relationship of any kind between the Company and the drivers of the Company s Managers and that such drivers were not covered within the definition of employee under Section 2(f) of the Act of 1952. Upon receipt of the reply from the Company, the Commissioner on that very day i.e. 18th June 1992 directed the Company to file documents, namely, who were the individuals engaged as car drivers, how long they continued to work and who paid their wages. In response thereto the Company on 6th July 1992 annexed the list of the drivers indicating period of their engagement and reiterated that the wages of these drivers were paid by the respective Managers but the expenses incurred by Managers for utilizing the services of personal drivers were reimbursed to the extent (a) upto Rs.1,900/per month if service with the Manager was less than five years and upto Rs.1,950/per month if service with the Manager was five years or more; (b) as amount upto Rs.800/towards uniforms; footwear, monsoon equipments and winter clothing and (c) an amount for overtime upto Rs.4.50 per hour if the Manager would use his driver for Company s duty beyond driver s normal hours with the Manager3. The Commissioner after hearing the authorised representative of the Company by order dated 8th July 1992 held that the said drivers were 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 were employees under Section 2(f) of the Act of 1952. Aggrieved by the said order the Company filed Writ Petition which came up for hearing before the learned Single Judge. The Company heavily relied upon the judgment of the Supreme Court in Employers in relation to P.N.B. vs. Ghulam Dastagir, 1978 (I) L.L.J. 312 before the learned Single Judge and urged that relationship of master and servant did not exist between the Company and the drivers of the Managers. The contention was that the drivers were working under the control and supervision of the concerned Managers and the Company has no control over in the matter of selection, appointment, terms and conditions of service, hours of duty, nature of work, etc. of such drivers. On the other hand on behalf of the Commissioner it was contended before the learned Single Judge that the concerned drivers were employed in connection with the establishment and that the definition of employee under Section 2(f) of the Act of 1952 was much wider. It was also contended on behalf of the Commissioner that the control and supervision were not the decisive factors and the issue has to be decided in each case on its own merits. The learned Single Judge found that on the facts the judgment of the Supreme Court in Ghulam Destagir was not applicable and that in view of the judgment of the Supreme Court in Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments, (1974) 3 SCC 4987  in deciding the question of contract of service, though the control is an important factor and in many cases it may still be decisive but it is wrong to say that in every case it is decisive and held that the test of control was not the sole criteria and in the facts of the present case it was established that the drivers were the employees of the Company under Section 2(f) of the Act of 1952. It is this judgment which is impugned before us.

Reasoning:
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.