JUDGMENT D.K. Seth, J.
1.The award dated 21.12.1982 passed by the Labour Court (IV) U. P. Kanpur in Adjudication Case No. 47 of 1982 has been challenged in this writ petition.
2. The facts giving rise to the dispute adjudicated in the present case is that the respondent No. 2 was engaged by one Sri D. Chatterjee, Regional Manager of petitioner Company as driver and that his services were terminated w.e.f. 23.10.1979, though the employee was engaged by the Regional Manager and used to be paid Rs. 300 per month as salary, by the said Regional Manager, the said amount of Rs. 300 was reimbursed by the employer through the Regional Manager along with travelling allowance of Rs. 12 per day. On these facts, the Labour Court has come to the finding to the effect that there was a relationship of employer and employee, between the respondent No. 2 and the employer, and, therefore, he had awarded re-instatement of the respondent No. 2 with continuity and with full back wages.
3. Sri Vijay Sinha, learned counsel, assisting Sri V. B. Singh, learned counsel for the petitioner, contends that there was no relationship of employer and employee between the employer and respondent No. 2. The respondent No. 2 was a personal driver engaged by the Regional Manager and In terms of his engagement he was entitled for the reimbursement as part of his salary as wages. The reimbursement is part of the salary paid to the Regional Manager and not to the respondent No. 2. He has also contended that there was no other relationship between the respondent No. 2 and the employer. The engagement was not made by the company but the engagement was given by the Regional Manager himself. Therefore, according to him, in this case, award is wholly perverse and is liable to be set aside. He had drawn my attention to Annexures-5 and 10 to the writ petition to show that where he had himself admitted that he had been working with the Regional Manager and particularly in Annexure-5 he had himself admitted that he was the personal driver of the Regional Manager.
4. Sri. K. P. Agrawal, learned counsel for the respondent No. 2, assisted by Ms. Mahima Maurya, opposed Sri Singh and contended that though the respondent No. 2 was engaged by the Regional Manager, but exact amount of salary was used to be reimbursed by the employer, thus in fact, the salary was paid by the employer. According to him, the driver was engaged for the purpose of driving car of the Company used by the Regional Manager for the purpose of discharging his duties in relation to his employment with the employer, therefore, the services rendered by the respondent No. 2, was related to the production of the employer, which it had obtained through the Regional Manager, to whom the respondent No. 2 used to drive his car in order to enable the Regional Manager to attend his duties. According to him, there was nothing on record to show that the respondent No. 2 used to perform the personal duties of the Regional Manager, therefore, relying upon the decision in case of M/s. J. K. Cotton Spinning and Weaving Mills Co. v. Labour Appellate Tribunal of India and others, AIR 1964 SC 737. It was contended that the employment of the respondent No. 2 was connected with the Incident of production operation of the employer in assisting the Regional Manager in operation incidental to the main industrial operation, and, therefore, this case is squarely covered by the ratio laid down In the said decision.
5. I have heard Sri V. B. Singh, learned counsel for the petitioner, assisted by Sri Vijay Sinha, Learned counsel for the petitioner submitted that the present case is not covered by the decision in the case of M/s. J. K. Cotton Spinning and Weaving Mills Co. (supra), for the distinguishing features that there was no control over the employment of the respondent No. 2 by the employer and then he referred to a decision in case of Punjab National Bank v. Ghulam Dastagir, (1978) 2 SCC 358, where it was held that the car driver engaged by a manager was not a workman though the Bank used to bear the expenses of the salary of the driver.
6. In the present case, the fact as have been found by the Labour Court remains that the respondent No. 2 was engaged by the Regional Manager and he used to be paid Rs. 300 with Travelling Allowance of Rs. 15 per day and this amount was used to be reimbursed by the employer through the Regional Manager. The stamp receipt executed by the respondent No. 2 was also on record showing that he had received the said amount from the Regional Manager. It is also found by him that there were applications filed by the respondent No. 2 seeking employment but that was sought to be explained that the said application was in English, contents whereof were unknown to the respondent No. 2. Since the salary of the respondent No. 2 was reimbursed by the employer, the labour court came to the finding that the engagement of the respondent No. 2 was connected with the trade and business of the employer and, therefore, he comes within the definition of 'workman'. The labour court has not come to the finding that the employer had any control over the terms and condition of the employment of the respondent No. 2. It is not on record that the employer had any authority either to discharge or disengage him or to increase his salary or to punish him on any ground or that he was governed by any condition of service applicable to an employee of the employer. Even if, the applications filed by the respondent No. 2 are not taken into consideration, then also there was nothing to show that there was any control on the respondent No. 2 by the employer. In case, these applications are relied upon, in that event, he had himself admitted that he was in the personal services of the Regional Manager.
7. On the basis of the decision in the case of M/s. J. K. Cotton Spinning and Weaving Mills Co. (supra), it has to be seen that the respondent No. 2 was engaged in one of the incidental operations that constitute as an industry as a whole and that workman was employed in that Industry as employee to assist one or other operations incidental to the main industrial operation. Even if, a person is engaged by the employer, in incidental operation relating to the Industry, which now has assumed a complex situation in that event, he cannot be denied the status of a workman on the ground that his work Is not directly connected with the work of the Industry.
8. Admittedly, in the present case, the respondent No. 2 was not employed by the employer in any of the incidental operations constituting the industry since it has already been found that he was never engaged by the employer and the employer had no control either on the terms and conditions of service, or on his employment in any manner and only the reimbursement of the salary to the respondent No. 2 through the Regional Manager would not be sufficient to constitute a relationship of employer and employee, unless the employer has any control over the employment of the alleged employee, namely, either to discharge or disengage him for any dereliction of duty, the employer had no occasion to engage him on any of the Incidental operations. The engagement of the respondent No. 2 by the Regional Manager for driving the car provided to the Regional Manager will not bring the respondent No. 2 within the definition of the 'workman' as has been enunciated in the ratio in the decision of M/s. J. K. Spinning and Weaving Mills Co. (supra).
9. On the other hand, in the case of Punjab National Bank (supra), it was held that "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". In the present case, admittedly, the employer had no authority to Issue direction to the respondent No. 2 and had no control over his employment, which is a factor to be taken into consideration for the purpose of deciding the relationship between the respondent No. 2 and the Company. There is nothing on record to show that there was any nexus between the employer and the respondent No. 2 as was held in the case of Punjab National Bank (supra), where it was observed that "there was 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.....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". On this reasoning, the award, in which the driver was held to be workman of the Bank on the ground that he was engaged by the Manager of the Bank but the expenses of his salary was used to be borne by the Bank yet he was the workman of the Bank, was reversed since such drivers were held not be workman.
10. Following the ratio in the decision of Punjab National Bank (supra), the facts whereof are similar to those of the present case, in my view, the award appears to be perverse and as such, the award is liable to be set aside.
11. Accordingly, the writ petition succeeds and the impugned award dated 21.12.1982 contained in Annexure-9 to the writ petition, is quashed. Let a writ of certiorari do issue accordingly. There will be no order as to costs.