M/S Mudra Communications Ltd. vs Ganesh Kumar & Others
2010 Latest Caselaw 2108 Del

                 *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              W.P.(C)4913/1997

%                                                  Date of decision: 21st April, 2010

          M/S MUDRA COMMUNICATIONS LTD.                                 ..... Petitioner
                       Through: Mr. Puneet Bajaj, Advocate


                                          Versus


          GANESH KUMAR & OTHERS                        ..... Respondents
                      Through: Mr. R.K. Gupta, Advocate with R-1 present
                               in person.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.        Whether reporters of Local papers may
          be allowed to see the judgment?                  Yes

2.        To be referred to the reporter or not?                 Yes

3.        Whether the judgment should be reported                Yes
          in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner employer impugns the award dated 5th July, 1997 of the

Industrial Tribunal holding the respondent No.1 workman to be an employee of the

petitioner and directing the petitioner to reinstate the respondent No.1 workman

with full back wages. The respondent No.1 workman claimed to be

working/employed with the petitioner as a driver. It was the plea of the petitioner

company that the respondent no.1 workman was the personal driver of Mr. Karan

Ahluwalia working as a General Manager with the petitioner company and which

Mr. Karan Ahluwalia, as per the terms of his employment, was entitled to

reimbursement of car expenses; that the respondent no.1 workman was driving the

car of the said Mr. Karan Ahluwalia and Mr. Karan Ahluwalia having left the

employment of the petitioner, the petitioner had no obligation whatsoever towards

respondent No.1 workman.

2. The Tribunal found that the witness of the petitioner employer in his cross

examination had admitted that the respondent No.1 workman used to drive the car

which belonged to the petitioner company and that the said car had been given by

the petitioner company to the said Mr. Karan Ahluwalia for his official use. It was

further found that the said stand of the petitioner in its evidence was inconsistent

with the stand taken in the written statement; while in the written statement it was

pleaded that the petitioner was not having any car except the one for its Managing

Director but during the cross examination it was admitted that the car had been

provided by the petitioner to its General Manager Mr. Karan Ahluwalia. The

Tribunal held that the respondent no.1 workman without being employed with the

petitioner could not have driven the car owned by the petitioner. This forms the

crux of the reasoning of the Industrial Tribunal.

3. This court, upon the petitioner citing Employers in relation to Punjab

National Bank Vs. Ghulam Dastagir 1978 1 LLJ 312 (SC) issued notice of this

petition and stayed the operation of the award subject to the petitioner depositing a

sum of Rs.1,50,000/- in this court. Litigation expenses were also directed to be

paid to the respondent no.1 workman. Rule was issued on 13th September, 2000

and the interim order made absolute during the pendency of the petition. On

application of the respondent no.1 workman under Section 17B of the ID Act, vide

order dated 31st January, 2002 the petitioner was directed to pay a sum of Rs.800/-

per month to the respondent no.1 workman from the date of filing of the application

and till the disposal of the writ petition. It is informed that a total sum of Rs.

1,14,003/- has been paid till now by the petitioner to the respondent no.1 under the

said order.

4. Though the scope of interference and judicial review in respect of the

awards of the Labour Court / Industrial Tribunal in exercise of powers under

Article 226 of the Constitution of India is limited and within certain parameters but

I find no legal basis for the reasoning in the impugned award. The only ground on

which the award holds the respondent no.1 workman to be an employee of the

petitioner is the fact that the respondent no.1 workman used to drive the car

belonging to the petitioner and provided by the petitioner to its then General

Manager. Employment is a matter of contract. No contract of employment can

come into existence merely by the respondent No.1 workman being found to be

driving the car belonging to the petitioner. As far as the petitioner was concerned,

it had provided the said car to its General Manager Mr. Karan Ahluwalia. It was

not the case of the respondent no.1 workman that Mr. Karan Ahluwalia was

required to drive the said car himself only or prohibited from allowing the said car

to be driven by any person who was not an employee of the petitioner company.

There is nothing in the Motor Vehicles Act also which requires a motor vehicle to

be driven by the owner only or under the authority of the owner only. Section 180

of the Motor Vehicles Act, 1988 imposes an obligation, on the owner of a vehicle,

only of not allowing a person without driving licence and / or underage to drive the

vehicle. Thus, the General Manager Mr. Karan Ahluwalia of the petitioner was

free to either drive the car, given by the petitioner to him, himself or to have the

same driven by any other person; such person entrusted / engaged by Mr. Karan

Ahluwalia to drive the car, would by reason of the petitioner being the owner of the

car, not become the employee of the petitioner or have any claim against the

petitioner. In the circumstances, the only logic given in the award for holding the

respondent no.1 workman as the employee of the petitioner cannot be sustained and

the award is perverse.

5. The Tribunal appears to have been swayed by the inconsistency in the

written statement and evidence of the petitioner. This court also before issuing

notice of the petition had directed the petitioner to file copies of the written

statement and the evidence. A perusal thereof does show that the stand in the

written statement was that

"the management herein does not maintain any cars of its own except one for its Chairman and Managing Director. Consequently, no drivers are employed by the management for any other executive of the company. The executives of the company are simply given a car allowance for their conveyance purpose, to utilize as they desire."

and in cross examination the witness of the petitioner admitted that the car

driven by the respondent no.1 workman belonged to the petitioner company. It was

further clarified that the said car was given by the petitioner company to Mr. Karan

Ahluwalia for his official use and the company used to pay the running expenses

for the said car. However, the said inconsistency cannot lead to a finding of the

respondent no.1 being the employee of the petitioner. Moreover, the plea in the

written statement was qua "maintain" and not ownership of the car.

6. Though the Tribunal has in the award not cited any other reason / evidence

in support of the finding of the respondent no.1 workman being the employee of the

petitioner, the respondent no.1 workman alongwith his counter affidavit has filed

photocopies of certain documents. However, a perusal of the oral evidence led

before the Tribunal shows that the witness of the petitioner in cross examination

was confronted with only two of the said documents. One of the said documents is

a letter on the letter head of the petitioner company addressed to M/s Ludhiana

Aviation Club, Ludhiana by the said Mr. Karan Ahluwalia requesting for refund of

monies to the bearer of the letter namely the respondent No.1 workman. The

witness of the petitioner identified the signature of Mr. Karan Ahluwalia on the

said document. However, the said document also does not constitute the

respondent No.1 workman as an employee of the petitioner. Merely because the

respondent no.1 workman, who was admittedly working as a driver (the question is,

whether employed by said Mr. Karan Ahluwalia or by the petitioner), was

authorized by Mr. Karan Ahluwalia to run the said errand would not constitute the

respondent no.1 workman as the employee of the petitioner. The other document is

also on the letter head of the petitioner company under the signature of the said Mr.

Karan Ahluwalia to all staff members intimating the new office timings. The

witness of the petitioner admitted the signature of Mr. Karan Ahluwalia on the said

document but could not say whether the same was signed by the respondent no.1

workman also or not. The respondent no.1 workman in his evidence did not prove

his signatures on the said document. Thus the signatures of the respondent no.1

workman on the said document do not stand proved. Even if the said document is

held to be bearing the signature of the respondent no.1 workman, again it is no

evidence of the respondent no.1 workman being the employee of the petitioner.

The letter does not bear the names of the employees/staff members to whom it was

addressed. The letter has come from the custody of the respondent no.1 workman.

Nothing could have prevented the respondent no.1 workman from putting his

signatures on the said document before producing the same in evidence.

7. I find it strange that the respondent no.1 workman did not choose to examine

Mr. Karan Ahluwalia. Mr. Karan Ahluwalia was admittedly no longer in the

employment of the petitioner when the dispute was raised. The best evidence

available to the respondent no.1 workman was the said Mr. Karan Ahluwalia and

who has not been examined. The Tribunal has also drawn adverse inference

against the petitioner not replying to the notice issued by the respondent no.1

workman prior to raising the dispute. However, the petitioner, immediately when

summoned before the Conciliation Officer had taken the plea that the respondent

no.1 workman was the personal employee of Mr. Karan Ahluwalia and his

grievance should be against Mr. Karan Ahluwalia. No adverse inference from not

replying to the notice could be raised inasmuch as a person and especially a Public

Limited Company is not required to reply to letters of persons with whom it has no

privity.

8. The respondent no.1 workman has before this court filed photocopies of

certain other documents also. However, the said documents were not put to the

witness of the petitioner and appear to have been produced in this court for the first

time. The respondent no.1 in his counter affidavit has opposed vehemently to the

petitioner producing fresh evidence in this court. What has been urged qua the

evidence sought to be produced by the petitioner for the first time before this court

applies equally to the respondent no.1 also. The said evidence thus cannot be

looked into. It may however be noted that the said documents comprise of :

i. letter on the letter head of the petitioner company signed by Mr. Karan

Ahluwalia certifying that respondent no.1 is working with him as a driver

and goes home late.

ii. printed vouchers of the petitioner company bearing the signatures either

of the respondent no.1 workman only or also of Mr. Karan Ahluwalia of

payment of salary/wages of respondent no.1 workman.

iii. printed voucher of the petitioner company of payment of travel expenses

and dinner expenses for late working to the respondent no.1 workman

signed by Mr. Karan Ahluwalia.

However, as aforesaid, without the said documents having been put to the

witness of the petitioner, this court cannot take cognizance of the same. Needless

to add that the petitioner has disputed the said documents. I am also not inclined to

give any weight to the said documents because in the normal course the said

documents, even if genuine, ought not to have been in custody of the respondent

no.1 workman. The respondent no.1 workman has not explained as to how the

same came to be in his custody. Secondly, none of the said documents bear the

signatures of the Accountant of the petitioner though so required by providing

column therefor. It thus appears, that the documents, even if genuine, are not of

payment by the petitioner and in which case they would have been signed by the

Accountant of the petitioner; but the voucher form of the petitioner company has

been used by Mr. Karan Ahluwalia to obtain receipt of payments made by him to

the respondent No.1 workman. I must also notice that the respondent no.1

workman has without any leave of the court, on 6th April, 2010 filed another set of

the same documents, and therewith also filed a photocopy of a purported

attendance register containing his name. Again it is not explained as to how the

respondent no.1 came into possession of the attendance register of the petitioner.

No cognizance thereof can also be taken.

9. Coming back to Ghulam Dastagir (supra) on the basis whereof notice of

this writ petition was issued by this court, in that case the plea of the bank was that

the workman was the personal driver of the Executive of the bank. The Industrial

Tribunal held the workman to be an employee of the bank. The Supreme Court

found that the Executive (Area Manager) of the bank had been given a personal

allowance of Rs.200/- to enable him to employ a driver. The Supreme Court held

that the test was as to who exercises control and supervision over the workman. It

was held that the workman in that case had failed to prove that the control and

supervision over his employment was by the bank. In that case also the jeep which

the driver was to drive, its petrol and oil requirements and maintenance were the

responsibility of the bank. Similarly the salary of the workman driver in that case

was also paid by the bank through its Executive by way of allowance. Inspite of all

these factors, the Supreme Court held that there was no nexus between the bank

and the workman and set aside the award of the Industrial Tribunal. The Supreme

Court also noticed that it was not the case of the workman in that case that the bank

had practiced any camouflage in the employment of the workman. In the present

case also it is not the case of the respondent no.1 workman that the petitioner had

practiced any camouflage in the matter of his employment.

10. The counsel for the petitioner also relies on:

a. Workmen of Nilgiri Co-operative Marketing Society Ltd. Vs. State of

Tamil Nadu AIR 2004 SC 1639 again laying down the test of control and

supervision to determine the existence of the contract of employment. In

that case also the workers though working in the Yard of the State whose

employees they were claiming to be were held to be not the employees of

the State.

b. G.M., Tanda Thermal Power Project Vs. Jai Prakash Srivastava 2008-I-

LLJ-887 (SC) laying down that when existence of relationship of employer

and employee is disputed, the same has to be determined in presence of all

concerned parties who are interested in the subject matter of reference.

c. Mahesh Chand Vs. Godrej Sara Lee Ltd. 2008 ILR Delhi 17 where a

Single Judge of this court dismissed the petition against the award of the

Industrial Tribunal holding the workman in that case to be a personal

employee of the executive of the company and not of the company.

11. I find that the Supreme Court in Bank of Baroda Vs. Ghemarbhai

Harjibhai Rabari AIR 2005 SC 2799 was also faced with a case of driver

employed by one of the executives of the bank. Reliance was placed by the bank on

the judgment in Ghulam Dastagir. The High Court had distinguished the said

judgment inasmuch as the workman in the said case had established that not only

did he work as a driver of a car belonging to the bank but had also produced three

vouchers which showed that he had been paid certain sums of money towards the

wages and the said amount had been debited to the account of the bank. In the said

facts, the Supreme Court refused to interfere. However, the said judgment also

does not persuade me to reject the present petition inasmuch as in the present case

no payment towards the salary from the account of the petitioner to the respondent

no.1 workman has been proved.

12. Otherwise I find that a Single Judge of this court in Subash Chand Vs.

Mitsui & Company MANU/DE/3576/2009 following Ghulam Dastagir rejected

the petition of a similarly placed workman against the award of the Labour Court

holding that the relationship of employee and employer did not exist. Another

Single Judge in Nar Bahadur Vs. Management of Shree Electricals

MANU/DE/0214/2008 dismissed the writ petition of the workman against the

award of the Labour Court holding the relationship of employer and employee

having not been established. The judgment of the Supreme Court in Ghemarbhai

(supra) was distinguished by holding that in that case the workman had proved his

wages to be debited to the bank.

13. This petition thus has to succeed. The question which however arises is as

to whether any order is to be made with respect to the payments made during the

pendency of this petition to the respondent no.1 workman under Section 17B.

Undoubtedly, the Supreme Court in Dena Bank Vs. Kiritikumar T.Patel (1999) 2

SCC 106 has held that payment under Section 17B is in the nature of subsistence

allowance which would not be refundable even if the award is set aside by the High

Court. However, the liability for subsistence allowance even can be to an employee

or an ex-employee. There can be no liability for subsistence allowance to an

absolute stranger or to a person with whom the management/employer does not

have and has never had any privity and which person is found to have made an

absolutely false claim of being an employee of the management/employer. To

allow such person to retain the amounts received under Section 17B would be

travesty of justice and amount to giving undue benefit to him. Two single judges of

this Court in Cement Corporation of India Vs. Shriram Chaurasia

MANU/DE/2501/2009 and in DTC Vs. Braham Prakash MANU/DE/0427/2008

have held that in rarest of rare/exceptional cases where there is no relationship

between the parties, order under Section 17B can be refused. On the same parity of

reasoning, when the High Court finds that there never was any relationship of

employer and employee, the court remains entitled to direct refund of payments

made under Section 17B.

14. However, I find that another Single Judge of this court in Titan Industries

Limited Vs. Kishan Lal 137 (2007) DLT 566 while setting aside an award and

holding the workman to be not an employee of the petitioner in that case

nevertheless held that the payments made under Section 17B were not required to

be refunded. I find that a single judge of Bombay High Court in Godawari

Marathwada Patbandhare Vs. Devidas MANU/MH/1114/2009 also, on allowing

the writ against the award of the Industrial Tribunal and holding the appointment to

be irregular, directed the amounts deposited in court pursuant to order under

Section 17B to be withdrawn by the employer and only the amount already

withdrawn from court by the workman was allowed to be retained by the workman.

15. Thus, though the petitioner has become entitled to refund of the amount of

Rs.1,14,003/- paid to respondent no.1 workman but I opt to follow the same route,

even though the claim of the respondent no.1 workman has been found to be

dishonest and I restrain myself from directing the respondent no.1 workman to

refund the sum of Rs.1,14,003/- already received from the petitioner. The writ

petition is therefore allowed. The award dated 5th July, 1997 is set aside and

quashed. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 21st April, 2010 M