SYNDICATE BANK vs PAWAN KUMAR

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order: 8th January, 2024
+ W.P.(C) 11412/2017
SYNDICATE BANK ….. Petitioner
Through: Mr.Puneet Taneja, Mr.Manmohan Singh Narula, Mr.Amit Yadav and Mr.Anil Kumar, Advocates

versus

PAWAN KUMAR ….. Respondent
Through: Mr.__, Advocate (Appearance not given)
CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

ORDER

CHANDRA DHARI SINGH, J (Oral)
1. The instant writ petition under Article 226 of the Constitution of India has been filed on behalf of petitioner seeking the following reliefs:-
“a. Issue appropriate writ and quash/set aside the impugned award dated 14.06.2017 passed by the passed by Central Government Industrial Tribunal-I, New Delhi in I.D.No 99/2012 titled as Pawan Kumar Vs Syndicate Bank, published vide notification dated 23.08.2017 by the Ministry of Labour.
b. Issue appropriate writ and hold that the action of the petitioner in not regularizing the services of the respondent as proper in the interest of justice.
c. Pass any other writ or give any other direction which this Hon’ble Court deems fit in the facts and the circumstances of the case.”

2. The petitioner in the present petition is challenging the impugned award dated 14th June, 2017, wherein, it was held that the termination of the respondent, Sh. Pawan Kumar from his role as a temporary driver with the petitioner-Bank was a violation of the provisions under Section 25-F of the Industrial Disputes Act, 1947 (hereinafter “ID Act”). It was further held by the learned Labour Court that the said termination is illegal, unjustified and violation of the statutory provisions. As a result, the respondent was granted relief of reinstatement along with full back wages.
3. Learned counsel appearing on behalf of petitioner vehemently submitted that the learned Labour Court failed to appreciate the fact that no employer-employee relationship existed between the petitioner-Bank and the respondent.
4. It is submitted that during his cross examination, the respondent accepted that he never received an appointment letter, interview letter, employee ID or number etc. It is further submitted that the petitioner had never advertised any vacancy for the respondent’s role prior to his joining. Moreover, the respondent’s wages were paid by voucher and the respondent’s name was not sponsored by the employment exchange
5. Learned counsel appearing on behalf of petitioner submitted that the respondent received his wages in cash from the Chief Manager of the petitioner-Bank, the receipt of which is appended as Ex. WW1/M22 with the learned Labour Court record.
6. It is submitted that the learned Labour Court has not considered the above said document while adjudicating the instant matter and has also failed to appreciate that the said document is sufficient to prove that the respondent was employed by the Chief Manager of the petitioner-Bank.
7. It is also submitted that the learned Labour Court was misguided in arriving at the conclusion that there existed a direct employer – employee relationship between the petitioner and the respondent.
8. It is further submitted that as per the circular dated 13th April, 1999, issued by the petitioner-Bank, certain executives employed with the petitioner-Bank were eligible to receive reimbursement benefits from the account of wages and benefits. In view of the same, the learned Trial Court erred in correlating the withdrawal of various amounts by the Chief Manager from the petitioner’s kitty in order to pay the allowances of the driver along with the other benefits.
9. Learned counsel appearing on behalf of petitioner submitted that there was no evidence of any direct relationship between the petitioner-Bank and the respondent. Although, the respondent was driving the official car of the petitioner and not the Chief Manager’s personal car, the petitioner denies exercising any control over the respondent in his course of work and therefore, the role of the respondent cannot be categorized to fall within the ambit of the definition of workman as provided under Section 2(s) of the ID Act. Moreover, the recruitment rules of the petitioner were not paid any heed in the hiring of the respondent by the Chief Manager of the petitioner-Bank.
10. It is submitted that in the findings of the learned Labour Court, it has been stated that the respondent worked as a personal driver and at the same time, it has also been held that the respondent is a temporary driver of the bank, making both statements in contravention with each other. It is further submitted that the respondent was appointed by the Chief Manager and hence cannot be treated as a direct appointee of the petitioner-Bank since no due procedure has been followed in the said appointment.
11. Learned counsel appearing on behalf of the petitioner submitted that during the cross-examination of MW1, the respondent suggested that he ought to have been absorbed by the management, in terms of the policy for regularization of personal drivers, indicating his awareness that he was engaged by the Bank, however, he was employed by the Chief Manager of the petitioner-Bank in his personal capacity.
12. It is submitted that the reimbursement of salary and expenses of personal drivers for executives is a common practice in the banking industry and does not suffer from any illegality. Learned counsel for the petitioner asserts that the learned Labour Court failed to consider the ratio in the case of Sree Bhagwan v National Housing Bank, 2001 (90) DLT 178, whereby it was established that the reimbursement of conveyance expenses, including wages for petrol, does not constitute salary or prove employment.
13. To strengthen his arguments, learned counsel appearing on behalf of petitioner has placed further reliance upon paragraph 3 of the judgment passed by the Hon’ble Supreme Court in the case of Punjab National Bank vs. Ghulam Dastagir, (1978) 2 SCC 358; paragraph 9 of the judgment passed by this Court in the case of Mudra Communications Ltd. vs. Ganesh Kumar & Others, 169 (2010) DLT 481 and paragraphs 72 and 73 of the judgment passed by the Madras High Court in the case of N. Veerappan vs. Chairman & Managing Director, PNB, 2014 LLR 151.
14. Learned counsel for the petitioner submitted that in the aforesaid judgments passed by the Hon’ble Supreme Court as well as other High Courts, it is affirmed that a person engaged as a personal driver by a bank executive cannot be considered an employee of the bank. Therefore, in the instant matter, the respondent does not deserve the reinstatement and the full back wages as directed by the learned Labour Court in the impugned award since the said award is contrary to the provisions as well as the law laid down by the Hon’ble Supreme Court and several High Courts. Hence, the impugned award is liable to be set aside.
15. Per contra, learned counsel appearing on behalf of respondent submitted that there are no irregularities and errors in the impugned award passed by the learned Labour Court and it is passed after considering the entire material on record, deposition of the witnesses as well as the statements made by learned counsel for the respective parties.
16. It is submitted that this Court cannot re-appreciate the evidence since it is beyond the scope of the Court’s jurisdiction under Article 226 of the Constitution of India. It is submitted that the learned Labour Court’s findings are based on conclusive evidence, and judicial review is impermissible unless malafide or perversity is shown.
17. It is submitted that that the petitioner’s argument is based on an attempt to re-evaluate evidence without demonstrating any significant errors in the findings made by the learned Labour Court. He has relied upon paragraph 11 of the impugned award and submitted that the respondent was engaged by the petitioner-Bank and he has worked with certain other officers as an employee of the Bank.
18. It is also submitted that there are certain documents on record by way of which the employer-employee relationship has been established between the petitioner and the respondent. It is further submitted that the respondent has worked in accordance with Section 25F of the ID Act and he has worked for more than 240 days in the Bank prior to the termination or dis-engagement from his services.
19. It is submitted that the present petitioner had argued before the learned Court below that the medical and uniform expenses have not been paid to the respondent directly by the petitioner-Bank and were rather paid by the Manager which was duly reimbursed to him and by virtue of the same no employer-employee relationship could be established. In this regard, it is submitted that the said contention has been duly rejected by the learned Labour Court in paragraph 12 of the impugned award.
20. It is submitted that the learned Labour Court has correctly upheld the termination of the respondent as contrary to the mandate of the statutory provisions of Section 25F of the ID Act and there are no irregularities and errors in the impugned award. Hence, the respondent is entitled to be reinstated in the services.
21. It is further submitted that in the cross-examination, it was deposed by the respondent that he has also been working with other officers of the Bank in the capacity of the driver and this deposition had not been contradicted by the petitioner-Bank at the time of the cross-examination. Therefore, there is sufficient evidence on record to establish the relationship of the respondent and the petitioner as that of an employer-employee. Hence, the instant petition being devoid of any merit is liable to be dismissed.
22. Heard learned counsel for the parties and perused the record.
23. The main issue of the petitioner revolves around the nature of the work and role played by the respondent during the course of his employment. The evidence and examination of witnesses’ prima facie point towards the validity of the petitioner’s stance as there is no proof of employment of the respondent such as an interview letter, appointment letter, employee ID or number etc. Moreover, the hiring process that was to be followed for such a position as claimed by the respondent never came into play, as is mandated for nationalized/scheduled commercial banks such as the petitioner-Bank. During the course of the arguments, it has been informed by the petitioner that with respect to the facts of the present matter, an application under Section 25F of the ID Act will only come into play, in the event the respondent falls within the definition of workman as per Section 2(s) of the ID Act. It has been further informed that the petitioner-Bank has already paid Rs.10,34,366/- to the respondent as on January, 2024.
24. Having perused the entire material on record, documents and contentions made by learned counsel for the parties, this Court does not find any document to establish the control and supervision over the work of the respondent by the petitioner-Bank. As per the facts of the matter, the control and supervision over the work of the respondent was not exercised by the petitioner but rather by the Chief Manager employed by the petitioner-Bank.
25. Moreover, the evidence reveals that the respondent was neither appointed nor terminated by the petitioner-Bank. He was also not paid by the petitioner but by the Chief Manager directly, regardless of whether or not the Chief Manager enjoyed the benefits of reimbursement of such expenses as provided by the circular issued by the petitioner-Bank. It has been contended on behalf of the respondent that he was illegally stopped from reporting to his services and with regard to the same, this Court is of the view that no document is available on record which would show that the petitioner-Bank stopped the respondent from joining the services.
26. At this juncture, it is imperative to refer to the observations made by the Hon’ble Supreme Court in the case of Ghulam Dastagir (Supra) wherein it was held that a personal driver of a bank manager cannot be considered an employee of the bank unless there is direct employment by the bank. It was further held that merely performing work for the bank manager or running errands at the manager’s request does not establish an employer-employee relationship with the bank. The Hon’ble Court emphasized that the absence of a direct employment by the bank is a crucial factor in determining whether the driver can be considered an employee of the bank. Relevant paragraphs of the Ghulam Dastagir (Supra) have been reproduced as under:
“3. Shri Khera has taken us through the leading case on the point in Shivanandan Sharma v. Punjab National Bank Ltd. [AIR 1955 SC 404 : (1965) 1 SCR 1427 : (1955) 1 LLJ 688 : 8 FJR 150] and the subsequent decisions, which we may broadly describe as the beedi cases, such as in D.C. Dewan Mohideen Sahib & Sons v. United Bidi Workers’ Union [AIR 1966 SC 370 : (1964) 7 SCR 646 : (1964) 2 LLJ 633 : 26 FJR 238] . There is no doubt that the proposition laid down in Shivanandan Sharma is unexceptionable law and the crucial test in most cases is as to who exercises control and supervision over the workman. Lord Porter in the course of his speech in the judgment in Mersey Docks & Harbour Board v. Goggins & Griffith Liverpool Ltd. [1947 AC 1] expressed himself in words which were relied upon by Shri Justice Sinha in Shivanandan Sharma:

“Many factors have a bearing on the result. Who is paymaster who can dismiss, how long the alternative service lasts, what machinery is employed, have all to be kept in mind. The expressions used in any individual case must always be considered in regard to the subject-matter under discussion but amongst the many tests suggested I think that the most satisfactory, by which to ascertain who is the employer at any particular time, is to ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged.”

It is clear that the direction and control are the telling factors to decide as to whether the driver in the present case is the employee of the Bank. This test does not exclude other factors also, and indeed as Lord Macmillan, in the aforesaid case, rightly stressed the question in each case turns on its own circumstances and decisions in other cases are rather illustrative than determinative. To crystallise criteria conclusively is baffling but broad indications may be available from decisions. The “beedi cases” turn on the reality of “independent contractors” standing in between the Management and the beedi workers. This Court, in many such cases discovered that there was a common practice of using deceptive devices and the so-called independent contractors were really agents or workers of the Management posing as independent contractors for the purpose of circumventing the Factories Act and like statute which compel managements to meet certain economic and social obligations towards the workers. 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, leads only to one conclusion that the Bank made available a 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 drew 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 fulfilling 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.

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. Evidence is shaped in each 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 involved.

5. We are impressed with Shri Khera’s appeal to us that the system of allowances in a country where there is unemployment may lead to individual injustice with an exploitative edge. It is likely that if the Bank had to employ drivers for their vehicles, the terms and conditions would have been much higher but in the private sector individual drivers may be hired on lower pay. This is not a desirable tendency for a public sector undertaking like a nationalised Bank. We hope that the possibility of abuse of the system of drivers’ allowances and the obligation of the public sector undertakings to be model employers will lead to a change in the approach of our nationalised banks and other public sector undertakings towards this issue of employing persons on a private basis by senior officers and the management itself giving some small sum by way of allowances in lieu of procuring such services. A fair and straightforward method would be for the Bank or like institution to engage its own driving staff. It is also important to remember that the vehicles belong to the industry and if drivers hired on a private basis by officers are allowed to use such vehicles, there may be potential damage and reckless use. In the long run, both from the point of view of employment morality and preservation of institutional property, it may be wise to revise the approach to the issue like the one we are confronted with. Of course, on the facts in this case we have decided what we consider is the only conclusion possible. Even so, this does not preclude the banking institutions and like undertakings adopting a different policy which we consider will be commendable…”

27. In the afore cited case, the claim of the driver, engaged for the Area Manager of the Bank, for his reinstatement was found not sustainable as the driver was not engaged by the Bank but by the Area Manager in terms of rules applicable to the Bank. Similarly, in the present case, the respondent was engaged by the Chief Manager of the petitioner-Bank and not by the petitioner-Bank and hence there exists no employer-employee relationship between the parties.
28. Therefore, based on the afore cited precedent, it can be inferred that a personal driver of a bank manager is not an employee of the bank under the ID Act unless there is evidence of direct employment by the bank as also observed in the preceding paragraph.
29. In light of the observations made in the foregoing paragraphs, this Court is of the considered view that the learned Labour Court while considering the entire dispute has ignored certain facts and evidences available before it.
30. Therefore, keeping in view the facts, circumstances and discussions of law made hereinabove, this Court finds merit in the propositions put forth by the petitioner, and it is held that the instant petition is a fit case for interference under the extraordinary writ jurisdiction of this Court.
31. In view of the above, the present writ petition is allowed and the impugned award dated 14th June, 2017, passed by Shri Avtar Chand Dogra, Presiding Officer, Central Government Industrial Tribunal Cum Labour Court No. 1, Karkardooma Court Complex, Delhi, in ID No. 99/2012, is set aside. It is also made clear that the payment, which has been made to the respondent pursuant to the order passed by the Predecessor bench of this Court on 27th September, 2019 in C.M. Appl. No. 8959/2018 (under Section 17B of ID Act), shall not be recovered by the petitioner-Bank.
32. Accordingly, the instant petition stands disposed of. Pending applications, if any, stand disposed of.
33. The order be uploaded on the website forthwith.

CHANDRA DHARI SINGH, J
JANUARY 8, 2024
dy/ryp/ds

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W.P.(C) 11412/2017 Page 13 of 13