Harish Chandra Gururani vs Management Of M/S Kasturi Sons ...
2011 Latest Caselaw 2107 Del

         *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 20th April, 2011

+                              W.P.(C) 2263/2010

%        HARISH CHANDRA GURURANI                ..... Petitioner
                     Through: Mr. Rajat Sharma, Advocate

                                   Versus

         MANAGEMENT OF M/S KASTURI &
         SONS LTD.                        ..... Respondents
                    Through: Mr. Gagan Gupta, Advocate
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    NO

2.       To be referred to the reporter or not?             NO

3.       Whether the judgment should be reported            NO
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the award dated 21 st July, 2009 of the

Labour Court on the reference dated 20th June, 2001 as under:

"Whether the services of Sh. Harish Chandra Gururani 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 decided the reference against the petitioner

workman and held that the petitioner workman had failed to establish

that he was an employee of the respondent and thus the question of the

respondent terminating his services did not arise.

2. It was the case of the petitioner workman that he was employed

with the respondent Company as a Driver with effect from 6th

February, 1997 and till 30th September, 2000 when his services were

illegally terminated. Though the record of the Labour Court has not

been requisitioned and no copies thereof have been filed by the

petitioner workman along with the petition but the copy of the claim

petition on the file of the counsel for the respondent has been perused.

It was the case of the petitioner workman therein that he was employed

at a salary of `3,500/- per month but the respondent was not giving

him the annual leave, bonus, overtime etc.

3. The respondent contested the claim of the petitioner by pleading

that the respondent had never employed the petitioner and there was no

employer-employee relationship between the parties; that the

respondent had provided a car to its Regional Manager and the

Regional Manager of the respondent under the terms of his

employment was entitled to either drive the car himself or engage a

driver in his personal capacity; that Sh. Pawan Bhatnagar, Regional

Manager of the respondent had employed the petitioner as his personal

driver and was personally paying the wages to the petitioner on his

own and the respondent only reimbursed to the Regional Manager the

payment made by him to any of his personal driver, as part of the terms

of his employment.

4. The Labour Court on the basis of the evidence led has held that

it was for the petitioner workman to prove the existence of employer-

employee relationship with the respondent; admittedly no appointment

letter was issued by the respondent to the petitioner; that the petitioner

had even otherwise failed to prove that he was employed by the

respondent; that from the evidence led it stood established that the

petitioner was the personal driver of the Regional Manager of the

respondent; that from the demand letter dated 4 th October, 2000 issued

by the petitioner, it is evident that he was aware that his name did not

exist on the pay roll of the respondent; that it was inexplicable as to

why, if the petitioner knew that, he during the time of his three years of

employment, did not raise any objection or dispute in this regard.

Reliance was placed by the Labour Court inter alia on Punjab

National Bank Vs. Ghulam Dastagir AIR 1978 SC 481 to hold that

personal drivers employed by the officers of the Company even if

driving cars belonging to the Company did not become the employees

of the Company.

5. The challenge by the counsel for the petitioner to the award

aforesaid is on the basis of the Job Cards issued by the Service Stations

with respect to works done on the car belonging to the respondent and

bearing the signatures of the petitioner. With reference to the

admission in cross examination of Mr. Pawan Bhatnagar aforesaid who

appeared as a witness on behalf of the respondent to the effect that he

joined the respondent at Delhi in September, 1998 and the dates of

prior thereto on the three Job Cards photocopies of which have been

annexed to the petition, it is contended that the same belie the

contention of the respondent of the petitioner being the personal driver

of the said Mr. Pawan Bhatnagar. It is contended that the said Job

Cards prove that the petitioner was taking the car of the respondent for

service / works on the dates mentioned therein and the question of the

petitioner taking the car of the respondent on dates prior to Mr. Pawan

Bhatnagar joining the respondent at Delhi would not have arisen if the

petitioner had been the personal driver of the said Mr. Pawan

Bhatnagar. It is contended that the said vital evidence has not been

discussed by the Labour Court.

6. The counsel for the respondent in response thereto has handed

over in the Court the copies of the evidence led before the Labour

Court and which copies are not controverted. It is shown that the

Authorized Representative of the petitioner workman in cross

examination of the said Mr. Pawan Bhatnagar had suggested that prior

to the said Mr. Pawan Bhatnagar joining as the Regional Manager in

September, 1998, one Mr. K.C. Rangaswamy was the Regional

Manager of the respondent and that the petitioner workman was

driving the car of the said Mr. K.C. Rangaswamy. The counsel for the

respondent contends that the aforesaid suggestion by the petitioner

workman in cross examination shows that the petitioner workman prior

to employment by the said Mr. Pawan Bhatnagar was employed by the

said Mr. K.C. Rangaswamy also as his personal driver. He contends

that the same explains the signatures, if any, of the petitioner on the

Job Cards of the date prior to Mr. Pawan Bhatnagar joining the

respondent at Delhi.

7. The counsel for the respondent has further contended that the

matter in controversy is fully covered by the judgment of this Court in

Mudra Communications Ltd. Vs. Ganesh Kumar 169 (2010) DLT

481. With reference to Workman of Nilgiri Cooperative Marketing

Society Ltd. Vs. State of Tamil Nadu (2004) 3 SCC 514 (also

considered in Mudra Communications Ltd. (supra)), it is contended

that the onus was on the petitioner workman to establish / prove

employment and which he has failed to do, as also held by the Labour

Court. Reliance in this regard is also placed upon Automobile

Association Upper India Vs. Presiding Officer, Labour Court II 130

(2006) DLT 160.

8. The counsel for the petitioner in rejoinder has contended that the

occasion for the continuity in service of the petitioner with successive

Regional Managers of the respondent would have arisen only if the

petitioner was attached to the respondent and not to its officers. Heavy

reliance is placed on the ex parte award earlier published by the

Labour Court and which was subsequently set aside.

9. The entire case law on the subject was considered in Mudra

Communications Ltd. and need is not felt to reiterate the same. In the

said judgment two other judgments of this Court in Subash Chand Vs.

Mitsui & Company, MANU/DE/3576/2009 and Nar Bahadur Vs.

Management of Shree Electricals MANU/DE/0214/2008 following

Ghulam Dastagir (supra) also laying down that relationship of

employer / employee was not established in such facts, were also

noticed.

10. Though in the first instance, from the factum of the petitioner

being shown to have taken the car of the respondent for service / works

even prior to the officer, whose personal driver the petitioner was

alleged to be, joining the respondent appears to suggest that there was

relationship of employer employee between the respondent and the

petitioner, however, the petitioner himself has provided the explanation

thereof by making the suggestions aforesaid in the cross examination

of Mr. Pawan Bhatnagar before the Labour Court. It is not

unbelievable in the normal course of events that the personal driver

employed by one officer may be engaged by his successor in office.

11. Moreover, once the finding of fact returned by the Labour court

is found to be based on cogent reasoning and evidence on record, the

same cannot be interfered with in exercise of judicial review and the

powers of judicial review cannot be equated with the appellate

jurisdiction.

12. No ground for interference with the award is made out.

The petition is dismissed. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) APRIL 20, 2011 'gsr'