Calcutta High Court
Upendra Choudhury vs M/S. J. K. Industries Ltd. & Ors on 30 September, 2022
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
Present :- Hon'ble Mr. Justice I. P. Mukerji
Hon'ble Mr. Justice Biswaroop Chowdhury
APO 526 of 2015
With
WPO 878 of 2003
Upendra Choudhury
Vs.
M/s. J. K. Industries Ltd. & Ors.
For the Appellant :- Mr. Nayan Rakshit, Adv.
For the Respondents :- Mr. Kushal Chatterjee,
Mr. Subhendu Sinha Roy, Advs.
Judgment On :- 30.09.2022.
Biswaroop Chowdhury, J.:-
The appellant before us was a workman before the Industrial Tribunal and
respondent no-1 in Writ Application 870 of 2003. This appeal is directed
against the Order dated 6th August 2015 passed in the said Writ
Application.
The case of the appellant may be summed up thus:
1. That the Writ Petitioner/Company is widely known and well
reputed concern earning huge profit and growing day by day by the
skillful performance and hard labour rendered by its labourer /
workmen engaged under it.
2. The Company though a prosperous and flourishing one but unfair
and exploitative to its workmen and has little regards to observe
the principles and provisions of Industrial laws, specifically those
enacted for the welfare of the labourers.
3. The workman/appellant concerned was engaged under the said
Company as a driver in the year of 1994, without issuance of any
appointment letter. He had to work 14, to 16 hours in a day and
even on Sundays and holidays without any extra remuneration
and in a very poor emoluments. His name was not enrolled in the
attendance register, pay register only to deprive him from all
legitimate dues, entitlement, though he drove the car belonging to
the company under the instruction and supervision of the
company and paid by the company for the said services.
4. The appellant/workman concerned orally protested to stop all such
unfair practices, and irregularities, but he had to keep under the
threat of throwing out of employment by the company. Inspite of
such injustice and ruthless antilabour policy the workmen had all
along been working hardly sincerely honestly and left no stone
unturned to satisfy his superiors by best of his services throughout
the tenure of employment.
5. Inspite of his earnest effort and best services the workman all on a
sudden was terminated from his services, by the said company
w.e.f. 07.09.97 without assigning any reason and prior notice but
only by verbal order. His monthly salary was Rs. 2000/- at that
point of time.
6. Under the said circumstances the workman protested against the
said illegal and unjustified termination and demanded his
immediate re-instatement in service with full back wages along
with all consequential benefits by writing a letter dated 20-10-97
addressed to the company and sent the said letter through
registered post with acknowledgement, simultaneously forwarding
a copy of the said letter to the union of which he is a member,
authorizing the union to represent his case.
7. Thereafter when the union came to understand that the company
is in no mode to accept the legitimate and justified demands of the
workman, the union represented the matter before the Labour
Directorate West Bengal vides their representation dated 25-11-97
addressed to the Assistant Labour Commissioner West Bengal New
Secretariat Building, 11th floor, Calcutta-700001 and the said
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office took up the said matter. Md. Zahiruddin, Asstt. Labour
Commissioner, initiated the conciliation proceedings and exerted
his efforts to settle the dispute inter alia convening joint
conferences between the representations of the company and
union but his efforts went in vain due to the adamant and non-
conciliatory attitude of the company.
8. Under the circumstances the conciliation officer submitted
necessary report before the Government and thereafter the matter
came up for adjudication before the Learned 4th Industrial Tribunal
for adjudication of the issue as framed in the order of reference by
the Government.
9. The company has acted in highly illegal unjustified arbitrary and
malafide manner to terminate the services of the workman by
violating all the provisions of Industrial Law and principles of
natural and social justice as well. The workman was issued no
charge-sheet nor any domestic enquiry was proceeded with against
him before the termination. He was given no notice and/or any
monetary benefit prior to the termination. He was simply asked
verbally not to come any more for duty which is nothing but a
colourable exercise of powers used by the company as a part of
their hire and fire policy.
10. The workman has failed to obtain any employment and/or any sort
of earning since his termination of service and passing hard days
with extreme poverty and starvation.
The writ petitioner/company contested the case by filing written statement
of defence. The written statement of defence may be summed up thus:
1. The alleged dispute referred to The Hon'ble Tribunal under section 10
of the Industrial disputes act 1947 obviously does not fall under
section 2(K) of that Act because it has not been raised or espoused by
a substantial number of the managements' workmen. It is apparent
sponsorer that is the Calcutta Motor Drivers' Union represents none
3
else but Shri Upendra Chowdhury who is not and has never been an
employee or a workman of the management. Thus the dispute falls
under section 2A of the Act.
2. The written statement of claim is neither signed nor verified by Shri
Upendra Chowdhury, it was instead signed and verified by Shri
Prasanta Mukherjee, General Secretary at the Calcutta Motor Drivers'
Union. Nothing is indicated therein as to what prevented Shri
Chowdhury to himself sign and verify the same. The written statement
of claim is liable to summary dismissal unless Shri Chowdhury files
with the leave at the Tribunal, a fresh properly signed and verified
written statement of defence.
3. Assuming though most emphatically denying that the present dispute
falls within the ambit of Section 2(K) of the Industrial Disputes Act,
1947 Shri Chowdhury in the eyes of law is certainly not the 'person'
as understood therein. The Calcutta Motor Drivers' Union does not
have on its roles, a single employee or workman of the management,
the interest of the union members and the management's workmen is
poles apart. The written statement of claim is also liable to summary
dismissal. The respondent/company on merits has denied paragraph
Nos.1, 2, 3, 4, 5, 10 and 11 of the written statement of claim. The
respondent/company has contended that since the claimant was
never an employee of the management as alleged or otherwise, there
was never any occasion or reason to terminate his services on 7th
September, 1997 or for that matter on any other day, no question of
assigning any reason or giving prior notice did or could arise. The fact
that the space for entering the rate of the claimants' salary has been
left blank in the last line of the paragraph under reply is an eloquent
proof of the falsity of his being an employee of the management. Even
at the later stage, the claimant does not know the rate of his own
salary. The claimant was never an employee of the management, the
contentions to the contrary in the paragraph under reply were denied.
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It is further contended that the appellant was never an employee
under the management but a personal and privately employed driver
of Shri T. C. Sharma the then Regional Manager (Tyres) of the
Management at Calcutta. The Calcutta Motor Drivers' Union has no
locus standi in the present proceedings. The respondent/company
prayed for dismissal of the claim case.
Learned Tribunal upon considering the evidence adduced by both the
Appellant/Workman, and Respondent/ Company was pleased to pass an
award holding that the appellant/workman was an employee of the
respondent/company and re-instatement of the appellant with back wages
and consequential benefits. The respondent/company being aggrieved by
the award passed by the Learned 4th Industrial Tribunal Calcutta moved a
Writ Application being W.P. No. 878 of 2003. By order dated on 6th August,
2015, Learned Trial Judge was pleased to pass an order allowing the Writ
Application by setting aside the order passed by Learned 4th Industrial
Tribunal Calcutta.
The Appellant being aggrieved by the order passed by the Learned Trial
Judge in W.P. No. 878 of 2003 has come up with the present appeal.
The Writ petitioner/respondent challenged the award on the ground that
the Appellant was never an employee of the petitioner in any manner
whatsoever and there was no occasion for terminating his services on 07-
09-1997 or on any other date. It was further contended that there was no
material before the Learned Tribunal to come to the conclusion that the
appellant/workman was the employee of the company as a driver. It was
also contended that the award does not disclose any material or proof
showing engagement/appointment of the appellant as a driver of the
petitioner and payment of salary or wages made to the appellant. It was
also argued that the appellant not being an employee or a workman of the
management of the writ petitioner the alleged dispute falls under Section
2A of the said Act of 1947.
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Learned trial Judge was pleased to dispose of the writ application by setting
aside the award passed by the learned Tribunal. Learned trial Judge was
pleased to observe that the findings of the learned Tribunal in the
impugned award is perverse. Learned Judge was further pleased to observe
that the materials on record show that the absence of any proof whatsoever
regarding nexus between the respondent no.1 and the petitioner save and
except allegations made by the former.
Heard learned advocate for the appellant/workman and the learned
advocate for the writ petitioner/respondent company.
Learned advocate for the appellant submits that the learned trial Court
erred in law in interfering with the award passed by the learned Tribunal
when the said award was not perverse. It is further submitted by the
learned advocate that the learned trial Judge did not appreciate the facts to
the effect that the car in question belonged to the company used to be
driven by the appellant/workman as no documents were proved by the writ
petitioner/company that the said car was used by the Officer of the
company and the appellant/workman was personal driver of the said
Officer. Learned advocate for the appellant draws attention to the
deposition of O.P W. No.1, an employee of the writ petitioner/company and
submits that as the employee of the company has deposed that the
appellant was the employee of the writ petitioner, it is a sufficient proof that
the appellant was the employee of the writ petitioner.
Learned advocate for the writ petitioner submits that the alleged dispute
referred to under Section 10 of the Act of 1947 does not fall under Section
2k of the said Act of 1947 because it has not been raised or espoused by a
substantial number of management's workmen. Learned advocate further
submits that as the appellant/workman is not an employee or a workman
of the management of the petitioner the alleged dispute falls under Section
2A of the said Act of 1947. It is also submitted by the learned advocate
that although the appellant/workman drove the vehicle of the petitioner
company but he was engaged by Mr. T.C Sharma as his personal driver.
6
Learned advocate for the respondent/writ petitioner relies upon the
following decision, namely, Employers in relation to Punjab National Bank
vs. Ghulam Dastagir, reported in 1978 LLJ P-312.
Learned Advocate for the parties have also relied upon the following
decisions:
1. Workmen of the Food Corporation of India vs. Food Corporation of
India, reported in 1985 (2) SCC 136,
2. Kumar Exports vs. Sharma Carpets reported in 2009(2) SCC 513.
3. Syed Yakoob vs. K.S Radhakrishan reported in 1964 AIR (SC) 477.
4. Pepsi Co India Holding Pvt. Ltd. vs. Krishnakant Pandey reported in
2015 ICCR 560,
5. Bank of Baroda vs. Hemarbhai Harjibhai Robari reported in 2005
IICLR 279,
6. Paradeep Phosphates Ltd. vs. State of Orissa & Ors. reported in 2018
(157) FLR 996.
Upon hearing the learned advocates and considering the materials on
record and upon perusing the evidence adduced before the learned
Tribunal it will appear that the fact of the appellant driving vehicle being
No. DL 2 CG 3751 which is vehicle of the company. The company/writ
petitioner contended that the appellant was neither engaged nor employed
by the management as a driver or otherwise in 1994 or at any time, and
thus was never an employee of the management but a personal and
privately employed driver of Shri T.C Sharma, the then Regional Manager
(Tyres) of the management at Calcutta. The writ petitioner's case is that
there is no post of driver in the company although it is deposed by the
witness of the company that the appellant was the employee of the writ
petitioner/company and was driving the vehicle of the company. As from
the evidence it is an admitted position that the appellant/workman used to
drive the car of the company being DL 2 CG 3751, the two issues which
come for consideration is whether appellant/workman was personally
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engaged by Mr. T.C Sharma, manager of the writ petitioner/company and
paid salary by him and whether there is any post of driver in the company.
At the very outset it is to be remembered that when a vehicle is owned by
an individual or a business undertaking the power to induct driver for
plying the said vehicle lies with the said individual or business
undertaking. Drivers may be inducted directly by a business undertaking
on salary basis or it may be inducted from Drivers centre/Drivers Agency
by entering into contract with the said agency. When an agreement is
entered with drivers' agency, drivers are provided by the said agency and
different drivers may be provided for different periods and the obligation of
payment of salary to the said driver vests with the driver's centre/agency.
In the instant case, the writ petitioner-company did not produce any
documents to show that the appellant was engaged through the drivers
agency, thus, it is to be inferred that the appellant workman was engaged
by the writ petitioner-company as driver. The writ petitioner-company had
tried to convince by contending that the appellant used to bring Mr. T. C
Sharma from his residence to Office and back and the appellant was
engaged by Mr. Sharma and salary was paid by him. Although the writ
petitioner-company has raised the contention that Mr. Sharma engaged the
appellant and paid his salary but no document was furnished in this
regard. When a vehicle is owned by a business undertaking to carry
staff/employees from Office to their residence or to be taken to other places
for official work the normal presumption is that the driver is the employee
of the said undertaking unless the contrary is proved. When a business
undertaking takes a policy decision in general or with regard to some
individual employees that the vehicle of the company will be used by
employees on condition to pay the drivers salary and with a discretion of
the said employees to appoint drivers of their choice there will be an
administrative order to that effect by the said undertaking and when the
vehicles will be handed over to the officers, terms and conditions will be
entered into between the said officers and the business undertaking.
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Without any specific administrative order and agreement between a
business undertaking and its employees it cannot be presumed that an
officer/employee of a business undertaking is under obligation to pay the
driver and have power to appoint driver of his choice. In the instant case,
the writ petitioner-company has failed to show any administrative order
empowering the officers/employees who are using the vehicle for official
purpose to appoint drivers of their choice, and no document showing terms
and conditions with Mr. T.C Sharma and his authority to appoint driver of
his choice and obligation to pay the said driver with regard to the vehicle
used by him for official purpose. Moreover, Mr. Sharma who could be the
best witness in this regard was not examined by the writ petitioner-
company before Tribunal. Thus, there is ground for inference that the
appellant was driver of the writ petitioner-company. Now with regard to the
evidence adduced by the parties, it appears that O.P.W 1, the witness of the
company stated in his examination-in-chief that the appellant was an
employee of the company. Again from the deposition of O.P.W 2, it will
appear that the said witness in cross-examination stated that the appellant
workman was driving the vehicle belonging to the company.
Upon considering these statements, it will be clear that the appellant
workman was engaged by the writ petitioner-company to drive the vehicle
belonging to the company. Although no appointment letter was issued but
that cannot negate the claim of the appellant as employee of the company.
It was a specific case of the appellant/workman that he was engaged in
service without issuing any appointment letter. Thus, in order to ascertain
as to whether the appellant was engaged in service the oral evidence and
surrounding circumstances is to be considered. The writ petitioner-
company is not a Government Company thus, there may not be existence of
the procedure of issuance of appointment letter in all cases. Moreover,
when there is allegation of non-issuance of appointment letter at the time of
engagement, such allegation is to be enquired into and relevant evidence
should be considered in this regard. Labour Law is enacted to mitigate the
9
problems of unfair labour practices, thus necessary enquiries should be
made when there is such allegation. It is not unnatural that sometimes
business undertaking engages employees without issuing appointment
letter and terminates without issuing termination letter and make payment
without issuing pay slip. Thus, if the claim of an employee is discarded on
the ground of not possessing appointment letter without considering the
relevant evidence and surrounding circumstances it would not be doing
justice in accordance with the letter and spirit of labour legislation. Thus,
Learned Trial Judge erred in holding that the appellant failed to produce
documentary evidence regarding appointment, payment of salary, or
termination and rejecting the claim of the appellant and setting aside the
judgment passed by the Learned Tribunal, without taking into
consideration the oral evidence. The decision relied upon by Learned Trial
Court in the case of Punjab National Bank vs. Ghulam Dastagir reported
in AIR 1978 SC 481 is not applicable in the facts of the case. The said case
which was relied upon by the writ petitioner-company will show that the
Bank authorities specifically proved that Rs.200/- was paid by the Bank to
the area manager to employ a personal driver of his own, and Rs.200/- was
the maximum allowance payable and if the expense incurred by the area
manager Shri K. P Sharma was less than Rs.200/- the allowance would be
reduced to the actual. In the instance case, the writ petitioner-company did
not produce any document to show car allowance was paid to Mr. T.C
Sharma who was brought from residence to office by the appellant, nor was
any administrative order produced permitting Mr. T.C Sharma to use
company's car and engage driver of his choice, and pay his salary. No
document was produced to show any agreement between T.C Sharma and
the company permitting T.C Sharma to engage driver of his choice and pay
his salary. Moreover, Mr. T.C Sharma who could have been the best
witness was not examined by the writ petitioner-company before the
Tribunal. Thus, case relied upon by the Learned Trial Judge is not
applicable. The statement of the appellant workman in cross-examination
10
that in absence of Mr. Sharma, staff of the office sometimes also used the
vehicle when necessary will clearly go to show that the appellant was not
the driver of Mr. Sharma but driver of the company and there was nexus
between the company-writ petitioner and the appellant workman. The
argument of the writ petitioner that the statement of the appellant in cross-
examination that he was paid salary by T Sharma goes to show he was
employed by Mr. Sharma cannot be accepted as the appellant in cross-
examination has also stated that he used to receive salary from the office as
well as Mr. Sharma. Thus, if the evidence of the appellant before the
Tribunal as well as the evidence of the witness of the company read as a
whole, it will give the inference that the appellant was engaged by the
company, to drive the vehicle of the company and was paid salary by the
company. It is not very unnatural that on some occasions salaries are paid
by managerial persons to drivers, when there is delay in payment of salary
by office and hardship is faced by the drivers concerned but that does not
alter the position to convert drivers of the company as drivers of the said
managers when there is evidence to show that the drivers were engaged by
the company.
It is to be remembered that Industrial Disputes Act is welfare legislation,
the object of which is peaceful settlement of industrial dispute through
conciliation officers and in case of failure of settlement of dispute, reference
to the Labour Court or Industrial Tribunal for adjudication. Even when
matters come before the Industrial Tribunal for adjudication the tribunals
are not bound to follow law of evidence or strict principles of the Code of
Civil Procedure but are to follow principles of natural justice. The
Legislature in its wisdom has excluded Civil Courts in case of reference of
industrial disputes and in case of adjudication of dispute before the
Tribunal there is restriction of engagement of advocate unless there is
consent of the opposite party and the members of Trade Union can also
depose before Industrial Tribunal for necessary adjudication. Hence strict
proof which is required in civil suit is not required in case of adjudication of
11
Industrial Dispute. When a tribunal is prima facie satisfied after hearing
the necessary parties that there exist some rights the tribunal can declare
those rights and grant the relief. It is not necessary for the Industrial
Tribunal or the Labour Court to insist on proof of fact by law of evidence.
When unfair labour practices are committed by some business undertaking
it is quite natural that an employee will not have relevant documents to
establish his right hence in such a situation the Labour Court or Industrial
Tribunal will have to consider oral evidence and surrounding
circumstances to decide as to whether an employee/labour is deprived of
his lawful rights. In the event the Industrial Tribunal insists on production
of relevant documents in all cases and proof of the case strictly as per law
of evidence then in most of the cases an employee/labour will not be able to
establish his right and have to return with frustration after litigating for a
considerable period which is not the object of labour legislation.
In the case of Punjab National Bank vs. Ghulam Dastagir reported in
(1978) 2 SCC Para 358 the Hon'ble Supreme Court observed as follows:
'Social justice is the signature time of the Constitution of India and this
note is nowhere more vibrant than in industrial jurisprudence'.
In the case of Paradeep Phosphates Limited and the State of Orissa and
Others reported in 2018 (157)FIR 996 the Hon'ble Supreme Court
observed as follows:
"undoubtedly it is a cardinal principle of law that beneficial laws should
be construed liberally. The Indistrial Disputes Act, 1947 is one of the
welfare legislations which intends to provide and protect the benefits of the
employees. Hence, it shall be interpreted in a liberal and broad manner so
that maximum benefits could reach to the employees. Any attempt to do
strict interpretation would undermine the intention of the legislature. In a
catena of cases, this Court has held that the welfare legislation shall be
interpreted in a liberal way".
12
In the case of Bank of Baroda vs. Ghemarbhai Harjibhai Rabari reported
in 2005 II CLR-279 the Hon'ble Supreme Court observed as follows:
"while there is no doubt in law that the burden of proof that a claimant
was in the employment of a Management primarily lies on the workman
who claims to be a workman. The degree of such proof so required would
vary from case to case"
In the case of Krushna Narayan Wonjori vs. Jai Bharti Shikshan Sanstha
Henganghat through its Secretary and Another reported in (2018) 2 SCC
(L and S) 386 the Hon'ble Supreme Court observed as follows:
"Having regard to the fact that the documents were produced before the
High Court we are of the view that the High Court was not justified in
refusing to look into the same. After all the Industrial Court had looked into
the entire materials and had awarded the salary for the disputed period.
Unless the approach is wholly perverse in the sense that the Tribunal
acted on no evidence, the High Court under Articles 226/227 is not
justified in interfering with the award. It is not a Court of first appeal to re-
appreciate the evidence. Therefore, the appeal is allowed and the
impugned orders are set aside and the order dated 14.03.2012, passed by
the Industrial Court, Nagpur Bench, Maharashtra is restored''
In the case of Indian Overseas Bank vs. I.O.B. Staff Canteen Workers
Union and Anr. reported in 2000 II CLR 268 SC the Hon'ble Supreme
Court observed as follows:
"The Learned Single Judge seems to have undertaken an exercise
impermissible for him in exercising writ jurisdiction by liberally re-
appreciating the evidence and drawing conclusions of his own on pure
questions of fact unmindful though aware fully that he is not exercising
any appellate jurisdiction over the awards passed by a Tribunal presided
over by a judicial officer. The findings of fact recorded by a fact finding
authority duly constituted for the purpose and which ordinarily should be
considered to have become final cannot be disturbed for the mere reason of
13
having been based on materials or evidence not sufficient or credible in the
opinion of the Writ Court to warrant those findings at any rate as long as
they are based upon some materials which were relevant for the purpose
or even on the ground that there is yet another view which can reasonably
and possibly be taken"
Now with regard to the last contention of the writ petitioner-company that
the alleged dispute referred to under Section 10 of the Industrial Disputes
Act, 1947 does not fall under Section 2 (k) of the said Act of 1947 because it
has not been raised or espoused by a substantial number of management's
workmen, and that the learned Industrial Tribunal ought to have
considered that the appellant not being an employee or a workman of the
management of the petitioner the alleged dispute falls under Section 2A of
the said Act of 1947 it is necessary to consider the provision contained in
Section 10 of the Industrial Disputes Act, 1947.
Section 10 of the Industrial Disputes Act, 1947 provides as follows:
1. Where the appropriate Government is of opinion that any industrial
dispute exists or is apprehended it may at any time by order in writing-
a) refer the dispute to a Board for promoting a settlement thereof;
or
b) refer any matter appearing to be connected with or relevant to
the dispute to a Court for inquiry; or
c) refer the dispute or any matter specified in the Second Schedule
to a Labour Court for adjudication; or
d) refer the dispute or any matter appearing to be connected with
or relevant to the dispute whether it relates to any matter specified
in the Second Schedule or the Third Schedule to a Tribunal for
adjudication.
In the case of Bangalore Woolen Cotton and Silk Mills Co. Ltd. vs.
Workmen reported in (1968) 1 CLJ 555 (SC) it is observed that the
14
discretion of the appropriate government under Section 10(1) is very wide to
refer an industrial dispute or any matter appearing to be connected with or
relevant to the dispute whether it relates to any matter specified in the
Second Schedule or the Third Schedule to a Tribunal for adjudication.
Upon perusing the order of reference dated 01.08.2000 being No. 1232-
I.R./IR/10C-66/99 made by the State Government it clearly appears that
the State Government was of opinion that Industrial Dispute exists and
referred the matter to the 4th Industrial Tribunal for adjudication after
specifying the issues. As the company/writ petitioner did not challenge the
said reference by filing objection before the State Government or by way of
Judicial Review the said reference reached its finality. The Learned Tribunal
adjudicated the matter in terms of the said reference, considered all
relevant evidence and came to a finding that the appellant was employee of
the writ petitioner. The findings of the Learned Tribunal are not at all
perverse.
Thus the Learned Trial Judge erred in setting aside the findings of the
Learned Tribunal.
In view of the discussion made hereinabove, I with due respect am unable
to accept findings made and order passed by the Learned Trial Judge in
WPO No. 878 of 2003. The Appeal is thus allowed. Impugned order dated
6th August, 2015 passed in WPO no. 878 of 2003 is set aside and the WPO
No.878 of 2003 is dismissed.
The Award passed by Learned 4th Industrial Tribunal in Case No. VIII-
105/2000 is restored. I request the Learned Industrial Tribunal to expedite
the execution of the Award.
(Biswaroop Chowdhury, J.)
15
I. P. MUKERJI, J.:-
I have read the draft judgment proposed to be delivered by my brother. I
fully concur with the reasons advanced by his lordship and the ultimate
order that he proposes to pass. However, I would like to add a few words of
my own.
The question of law raised in this appeal is the extent to which a court
exercising its writ jurisdiction can evaluate the correctness of an award
passed by an Industrial tribunal.
The ground of perversity was mainly taken by the employer to challenge an
award dated 21st November, 2012 made by the tribunal. It succeeded before
the learned single judge. By a final judgment and order dated 6th August,
2015, the writ application was allowed, setting aside the impugned award.
The issue whether the award was perverse or not arose from the finding of
the learned tribunal on a preliminary issue. The jurisdiction of the tribunal
to hear the reference made to it by the government of West Bengal was
challenged before it by the company by raising the issue that the appellant
was not its workman.
The appellant's case was that since 1994 he was working as a driver of the
company at a salary of Rs.2,000/- per month. He was entrusted with
driving the vehicle with Registration No.3751DL20C, owned by the
company. This vehicle was used by one T.C. Sharma, an officer of the
organization and in his absence by other employees.
The learned tribunal noted that the appellant had very successfully proved
the above facts. That the car was owned by the company was admitted.
According to the company, although, the alleged workman drove the
company's car, he was the personal driver of T.C. Sharma, who paid his
salary.
The learned judge in passing the impugned judgment and order dated 6th
August, 2015 came to the following finding:-
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"In this case the materials on record to show the absence of any proof
whatsoever regarding nexus between the respondent no.1 and the petitioner
save and except allegations made by the former. The findings of the Tribunal
in the impugned award, therefore, are also perverse in satisfying the
circumstances laid down in Collector of Custom (supra).
For the reasons aforesaid, the writ petition succeeds. The impugned award
and the order publishing the same are both set aside."
Although the facts are a lot but not completely similar, Punjab National
Bank vs. Ghulam Dastagir reported in (1978) 2 SCC 358, does not come
to the aid of the respondent. In that case, it was clearly established by
evidence that the monthly remuneration of the driver was paid by the
employee who used the vehicle. This impelled the court to form an opinion
that the alleged employee had not been able to discharge his burden of
proof, that his salary was drawn from the employer and that his service was
under his control and direction. The said tests to determine who is the
employer was prescribed in Merssy Docks & Herbour Board vs. Coggins &
Sr ffith Liverpool Ltd. reported in 1947 AC 1 and approved by the
Supreme Court in Shivnandan Sharma vs. Punjab National Bank Ltd.
reported in AIR 1955 SC 404.
In our case, the assertion of the appellant that his monthly remuneration
was paid by the company could not be disproved by the employer by calling
Sharma as a witness as observed by the learned tribunal.
What had to be established by the appellant was that he was working in an
industry, that he was employed by the employer and that there was a
relationship of employer and employee or master and servant between them
as held by the Supreme Court in Workmen of the Food Corporation of
India vs. Food Corporation of India reported in (1985) 2 SCC 136.
Facts more similar to this case occurred in Bank of Baroda vs.
Ghemarbhai Harjibhai Rabari reported in 2005 II CLR 279. It was decided by a three judge bench of the Supreme Court. Here, it was established that the car belonged to the bank and driven by a driver for its 17 employee. The workman asserted that his salary was paid by the bank. As in our case, the bank could not prove through the employee who had used the car, that the salary was paid by the employee and not by the bank. Mr. Justice N. Santosh Hedge held that the workman had been able to discharge the burden of proof on him and able to prove his case that he was employed by the bank as a workman under Section 2(s) of the Industrial Disputes Act.
Mr. Justice Gajendragadkar in Syed Yakoob vs. K.S. Radhakrishnan and Ors. reported in AIR 1964 SC 477 displaying his lordship's mastery of the law wrote:-
"7.........A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly, as for instance, it decides a question without giving an opportunity, be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said 18 finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmad Ishaque, 1955-1 SCR 1104 : Nagandra Nath v. Commr. of Hills Division, 1958 SCR 1240 and Kaushalya Devi v. Bachittar Singh, AIR 1960 Supreme Court 1168."
In Pepsico India Holding Pvt. Ltd. vs. Krishna Kant Pandey reported in (2015) I CLR 560, the Supreme Court did not approve of the High Court re-appreciating the evidence and drawing its own conclusion with regard to the status of the alleged workman.
In this case, the tribunal had tried the issue as a preliminary issue. It had followed a proper procedure of allowing both the employer and the alleged employee to adduce evidence both oral and documentary. It had taken into account the evidence produced by both the parties. In my opinion, this evidence was correctly weighed, analysed and evaluated by the learned judge of the tribunal. The observation of the learned judge that if the bank had to prove that Mr. Sharma had paid the remuneration of the driver, he had to be called as a witness which the bank did not do, was a very proper analysis and interpretation of the evidence before it. Thereafter, the tribunal held on the basis of the evidence produced before it that the vehicle belonged to the bank, it was driven by the appellant for its employee Mr. Sharma, and that the appellant had discharged his evidential burden. In the above facts, a presumption could also be made that the appellant was an employee of the company, which could not rebut the presumption or disprove the facts proved by the appellant. The appellant had and the bank had failed to discharge its burden of proof. The conclusion reached by the tribunal and the reasons in support thereof were, in my opinion, logical, most probable, reasonable and far from perverse.
On this appreciation of evidence, the learned writ court below was not right in coming to a different conclusion because the learned judge felt otherwise. 19 Therefore, I fully agree with my brother that the impugned judgment and order is to be set aside and the order of the Industrial tribunal affirmed and upheld.
Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(I. P. MUKERJI, J.) 20