Titan Industries Limited vs Kishan Lal
2006 Latest Caselaw 2183 Del

JUDGMENT

Manju Goel, J.

1. This writ petition is directed against the Award of Presiding Officer, Labour Court No. 9, Karkardooma, Delhi dated 17.3.2003. The respondent raised the industrial dispute claiming to be an employee of the petitioner M/s Titan Industries Limited and alleging that his services had been terminated illegally by the Management, namely, the petitioner. The terms of reference were as under:

Whether the services of Shri Kishan Lal have been terminated illegally and/or unjustifiably by the management, and if so, to what relief is he entitled and what directions are necessary in this respect

The Labour Court returned a finding that the respondent was an employee of the petitioner. It also held that the termination of the respondent was illegal and unjustifiable and awarded reinstatement with full back wages for the period from 1.1.1993 to 9.3.1993 and 30% back wages w.e.f. 10.3.1993. It is contended by the petitioner that the Labour Court has proceeded on wrong principles of law and has misplaced the burden of proof.

2. The evidence on behalf of the respondent examined by the Labour Court included the affidavit of the workman respondent Exhibit WW1/A, the complaint filed by the respondent on 10.3.1993 to the Assistant Labour Commissioner, Exhibit WW1/1, the demand notice dated 11.3.1993, Exhibit WW1/2 and the statement of claim filed before the Conciliation Officer, Exhibit WW1/4. On the side of the Management/petitioner, the Labour Court had the affidavit of the Management witness Mrs.Shelly Kaur, Exhibit MW1/A apart from the reply of the Management before the Conciliation Officer, Exhibit MW1/1, the copy of the rejoinder filed by the Management before the Conciliation Officer, Exhibit MW1/2, three vouchers showing reimbursement for the expenses for engagement of a driver, Exhibits MW1/3 to MW1/5. The case of the petitioner before the Labour Court was that the respondent had been engaged by the officer of the petitioner although the said officer, namely Sunil Kumar was reimbursed for the salary paid to the respondent. Before the Conciliation Officer, the petitioner had first asked for the details of the employment so that it could answer if there was any employee working with it under the name of Kishan Lal. Subsequently, on the information being submitted, the Management denied that Kishan Lal was ever employed with the Management. In a rejoinder filed before the Conciliation Officer, it contended that the Regional Manager as a part of perquisites is paid by the Company the allowance for engaging a driver for his use and out of this allowance, the Regional Manager engages a driver for his use and such an employee has no relationship of employer and employee with the petitioner Company. It further contended that the work of the driver was controlled by the Regional Manager himself and the driver was not entitled to any of the privileges or benefits, which the permanent workmen of the Management were entitled to and that such employment would not amount to employment with the petitioner Company. The same stand was reiterated in the written statement to the statement of claim filed by the respondent. The respondent in his own statement of claim contended that he had been working with the petitioner as driver w.e.f. 1.1.1990, that the petitioner had not provided him with the facilities of minimum wages, bonus, ESI facilities, provident fund etc. and that when he demanded those facilities in March, 1993, the Management terminated his services and obtained his blank signatures on some papers. While the respondent reiterated his claim in his affidavit, the respondent witness apart from reiterating the written statement, proved five documents, Exhibits MW1/W1 to MW1/W5, which are vouchers for reimbursement of salary paid by Mr.Sunil Kumar, Regional Manager to the respondent and two documents issued by Prem Nath Motors, being bills for car repair issued to the petitioner Company, which carry the signatures of the respondent. On examining this evidence available with the Labour Court, the Labour Court opined that the case of the Management was 'not free from doubt' as at the earlier possible opportunity, the Management had not specifically taken the plea that the respondent was not employed with it. The admission that the car mentioned in the bills of Prem Nath Motors belong to the petitioner Company and that the vouchers, as mentioned above, carried the signatures of the respondent, the Labour Court opined that if the respondent was not in the employment of the Management, he could not have taken the vehicle for service or repair. It also took notice of a note written by Sunil Kumar, Regional Manager, proved as Exhibit MW1/W6 in which Sunil Kumar had made a proposal for 'confirming' the respondent. The Labour Court ultimately held as under:

Moreover the management has failed to prove any record of its employees during the relevant period and that the regional manager is also not examined by the management as a witness. Thus I am of opinion that the case of the management is not trustworthy and unbelievable. I am accordingly of considered view that the workman was an employee of the management. Accordingly issue No. 1 is decided in favor of the workman and against the management.

3. It is contended by Shri Sidharth Aggarwal, learned Counsel for the petitioner that the Labour Court had made a grave error in placing the onus of proof of relationship on the Management and, therefore, finding of the Labour Court is perverse. Learned Counsel for the respondent does not dispute that the onus for proving the relationship of employer and employee between the parties is on the workman, who makes such a claim, but he contends that the onus was discharged by the workman/respondent by production of the note, Exhibit MW1/W6, namely, the note which according to him is admission of the Management about the employment of the respondent with it. It is, therefore, necessary to take a close look at Exhibit MW1/W6, which is as under:

(5) S.K. Please see remakrs of B.B.(4) TITAN WATCHES LIMITED Regional Office-North 12th March, 1992.

To : Mr. BB RE : R.O. CAR DRIVER

For the R.O. car presently we have Mr. Kishan Lal as a driver.

He has been driving the R.O. car since 1st Feb'91.

In our assessment the driver is fit for absorption on the rolls of the company.

The assessment of the driver is as follows:

a) behavior : Excellent

b)Driving skills : Good

c)Conduct : Excellent

d)Cleanliness : Maintaining cleanliness of the car and his own uniform : Excellent

e)Maintaining Secrecy : Excellent

f)Personality : Presentable

In a place like Delhi it is difficult to get a good driver even at salaries up to Rs. 2,000 p.m.

This driver has, over a period of time, proved to be a good asset for the company. Therefore, it is necessary now to confirm his services in the company. If we do not confirm his services, it is most likely that he will leave his present job with us.

Please accord sanction to confirm the services of this driver latest by 1st April ' 92.

We look forward to an early action from your end on the above.

Regards,

SUNIL KUMAR (1) Mr. B.B.

We spoke. As a policy we do not confirm casual driver. If it is felt that RO has only one driver, you may reconsider purely on merit basis

(3) Mr. B.B. Normally they are confirmed after one year, but there are cases where we had confirmed after 2 years.

(4) CRK Where these people are 1 off as in the regions I believe we should employ them after may be 1-2 years. I would recommend...(note illegible)

While learned Counsel for the respondent interprets this document as an evidence of employment, learned Counsel for the petitioner says that this was only a proposal for taking the respondent into the employment of the petitioner Company and that this proposal did not mature into an actual employment. It is pointed out that the respondent had neither any document showing any payment of salary to him by the petitioner Company nor any thing to show that he ever reported to the petitioner Company for his duties or signed any attendance register or any other register of any kind, which are normally signed by the employees of the Company. Learned Counsel for the respondent has firstly placed reliance on Dharangadhra Chemical Works Limited v. State of Saurashtra and Ors. in which it was held that under Article 226 of the Constitution of India, the High Court could not interfere with a finding of fact of the Labour Court relating to the relationship of employer and employee or between master and servant as the same was purely a question of fact if there was material on record on the basis of which Industrial Tribunal could arrive at such a conclusion. While there is no quarrel with this preposition, it is also not disputed by the respondent's counsel that if the Labour Court had made any gross error in applying the law or the principles of appreciation of evidence or of onus of proof, this Court would be justified in interfering with such a finding.

4. The respondent relies upon Supreme Court judgment in the case of Bank of Baroda v. Ghemarabhai Harjibhai Rabari in which the question of onus and degree of proof for a claim of employment of a workman with the Management was examined. It was held that onus of proof was on the claimant, namely, the workman, who claim to have been employed by the Management. It was also held that the degree of proof will vary from case to case and if the workman had established a prima facie case, it would be the responsibility of the Management to rebut the same. In that case even though the workman had no letter of appointment, he had established that he had worked for 240 days with the Management. He was claiming to have been working as a driver of the bank and could produce vouchers, which showed that he was paid certain sums towards wages and that the amount had been debited to the account of the bank. With such evidence being produced, the Supreme Court held that the onus has shifted to the bank, which was then responsible to show that despite such payment, there was no relationship of employer and employee between the parties.

5. In the present case, there is absolutely no document from which it can be ascertained that the respondent was paid any amount by the petitioner Company. There is no appointment letter. There is also no document from which it can be ascertained that the respondent was on the rolls of the petitioner Company. It is not disputed that the respondent was driving the car of the Regional Manager. Therefore, the distinction is subtle, namely whether the respondent was merely a private employee of the Regional Manager while driving the car of the Management/petitioner or he was an employee directly engaged by the petitioner. With the above-said deficiency in the evidence of the respondent, it cannot be said that he could shift the onus to the Management. The only document on which reliance has been placed, as quoted above, does not admit the respondent's position of being an employee with the Company. It was his employer Sunil Kumar, who put up this proposal for his being engaged on the rolls of the Company. The Company examined his case, but admittedly never took the respondent on the rolls of the Company. As can be seen from the beginning of the note, the respondent is shown to have been driving the RO car and the proposal was for absorption of the driver as he was fit to be absorbed on the rolls of the Company. The first note on the right side specifically mentions, 'as a policy we do not confirm casual drivers.' This shows that the respondent, who was driving the RO's car, could not be confirmed on the rolls of the petitioner Company. The same note then goes to say, 'If it is felt that RO has only one driver, you may reconsider purely on merit basis'. This note suggests that the Regional Manager, who was entitled as a matter of his perquisites to engage a driver on his salary being reimbursed, was perhaps looking for the respondent being absorbed in the Company's pay rolls while with his perquisites could employ another driver. Therefore, the note says that the appointment of the driver on the rolls of the Company could be considered on merit basis and not because he had worked as a driver with the Regional Manager. The position that a Regional Manager was getting reimbursed for the services of the driver, has been proved by the vouchers mentioned earlier.

6. In this respect, it will be pertinent to refer to judgment of Justice Krishna Iyer in the case of Employers in relation to Punjab National Bank v. Ghulam Dastagir 1 DLJ (1978) SC 312. In this case also, the Management Bank had made available certain allowances to facilitate the Area Manager to privately engage a driver although the jeep which the worker drove, belonged to the Management Bank. The Supreme Court in this case observed that sometimes a device of contractors engaging workers had been adopted in order to camouflage the real relationship. But it also acknowledges that there can be real situation in which senior officers of a public sector undertaking could provide the facility of reimbursement for a driver engaged by him. There is no plea in the present case that the arrangement was a camouflage and that the respondent had been directly employed by the Company. The Supreme Court had following to say:

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 fulfillling 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.' A very similar case was examined by the Supreme Court in Branch Manager, State Bank of Hyderabad v. Abdul Rahim 2001(89) FLR 354. In this case although the respondent watchman was engaged by the owner of the goods hypothecated to the Bank, had actually not been appointed by the Bank and the Branch Manager of the Bank had made a recommendation for his absorption in the services of the Bank.

It was held by the Supreme Court that Industrial Tribunal made a mistake in reinstating the services of the respondent in the services of the Bank as there existed no relationship of employer and employee between them.

7. The next question is whether the non-production of documentary evidence in respect of the employees of the petitioner could raise adverse presumption. It is contended by the petitioner that no such presumption could be drawn unless the respondent had alleged that he had signed in certain register or that any payment made to him could be discovered in a particular register. The Labour Court had gone to say that the Management had failed to prove any record of its employee during the relevant period and, therefore, the case of the Management was not trustworthy. In this connection, learned Counsel for the petitioner has referred to the case of N.C. John v. TTSandCE Workers' Union 1973 Labour Industrial Cases 398. As can be seen from the very language of the Labour Court's finding mentioned above, the Labour Court has examined the petitioner's plea that the respondent was not employed with the Management rather than examining the claim of the claimant. Having once agreed that the onus lies on the respondent to prove his employment with the Management, the Labour Court could have gone on to examine the veracity of the Management's claim only if the workman had discharged his onus. In the present case, as mentioned above, the respondent workman could not produce any document or any early evidence apart from his oral testimony to the effect that he was employed with the Management at any point of time. His oral testimony is rebutted by the oral testimony of the Management's witness. The document relied upon by the respondent, Exhibit MW1/W6 does not in any way show that the respondent was employed with the petitioner. The document at best was a recommendation, which was not finally approved. The Labour Court had made a mistake in opining that the Management had not denied initially that the respondent was its employee. The first reply before the Conciliation Officer was only that the Management had not been able to find any employee of the name of the respondent and that if better particulars were provided, the Management would be able to come back with a specific plea. This is a clear case of denial of relationship. Since the Management says that there had no record of the said employee, it was a plea of denial and nothing else. However, the Management reserved its rights to make further detailed reply after receipt of better particulars.

8. In view of the above finding, it is clear that the Labour Court has employed incorrect principles for assessment of the case before it. It is, therefore, necessary that this Court should interfere with the finding of the Labour Court. The petitioner cannot be compelled to employ the respondent, who was never its employee. The finding of the Labour Court that the respondent was entitled to reinstatement with back wages, as mentioned above, cannot be sustained. The impugned Award is accordingly quashed with the foregoing findings. However, no emoluments paid to the respondent till date under the impugned Award will be recovered from the respondent.