Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6624/2016
PRADEEP ..... Petitioner
Through: Mr.A.P.Dhamija &
Mr.J.P.Singh, Advocates
versus
MANAGEMENT OF
M/S TATA TEA LIMITED ..... Respondent
Through: Mr.Bhaskar Tiwari, Mr.Anant
Kumar & Mr.Ramakant Shukla,
Advocates
CORAM:
HON’BLE MS. JUSTICE PRATIBHA RANI
O R D E R
% 01.08.2018
1. By way of this writ petition, petitioner/claimant has prayed for
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setting aside the Award dated 6 June, 2015 passed by the Presiding
Officer, Labour Court No.XVII, Karkardooma Courts, Delhi in ID
No.68/10/99.
2. The grievance of the petitioner is that despite there being
sufficient material on record to prove that the petitioner was working
as driver with the respondent/management, learned labour Court erred
in returning a finding that the petitioner/claimant was a personal driver
to Mr.M.Balakrishnan, an Advisor, Corporate Affairs with the
management which is contrary to the documentary evidence adduced
by the petitioner.
W.P.(C) 6624/2016 Page 1 of 11
3. In ID No.68/10/99, the reference was sent to the labour Court
No.XVII, Karkardooma Courts, Delhi with the following terms:-
“Whether services of Sh.Pradeep 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?”
4. In the claim statement, the petitioner/claimant had pleaded that
he was initially appointed as a driver with M/s Tata Oil Limited in the
year 1986 and he used to drive the cars owned by the Company and
was also getting reimbursement for uniform and slippers. In the year
1993, M/s Tata Oil Mills Company Ltd. was sold to M/s Hindustan
Lever Limited and in the year 1994, he was transferred to M/s Tata
Tea Limited as a driver where he was also issued an identity card. On
30.10.1996, he requested the management to grant him full salary,
allowance and other benefits at par with other employees of the
company. When he raised this demand he was asked by the
management not to report for duty. Even prior thereto, neither he was
served with any notice of termination nor given notice pay or
retrenchment compensation.
5. The facts pleaded in the claim statement were vehemently
denied by the respondent/management pleading that the claimant was
the personal driver of Mr.M.Balakrishnan, who was working with
M/s Tata Oil Mills Company Ltd. till he retired in the year 1993.
Thereafter, Mr.M.Balakrishnan was retained as an Advisor, Corporate
Affairs with the management with fresh terms of appointment and his
perquisite included a company car and reimbursement upto ` 1600/-
W.P.(C) 6624/2016 Page 2 of 11
per month for a driver-cum-cleaner to be employed by him. After the
services of Mr.M.Balakrishnan as an Advisor, Corporate Affairs came
to an end, simultaneously the claimant also lost his job being personal
driver of an Advisor, Corporate Affairs of the company.
6. It was also pleaded that the documents referred to in the claim
statement to establish the relationship of employer and employee
between the parties were forged and fabricated.
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7. Learned Labour Court framed the following issues on 5
November, 2001:-
“1. Whether there was no employer and employee
relationship between the parties?
2. As per terms of reference.”
8. To substantiate his claim, the claimant led evidence by way of
filing his own affidavit Ex. WW1/A wherein he has referred to the
document Ex.WW1/1 to Ex. WW1/99. However, while putting the
exhibits on the documents referred to in his affidavit, the documents
Ex.WW1/1 and Ex.WW1/2 were exhibited without producing the
originals despite opportunity being given. The above said documents
were, therefore, de-exhibited by the Court.
9. The management examined its Deputy Manager (Finance)
exhibited as MW1 to prove that the claimant was personal driver of
Mr.M.Balakrishnan. The management had also placed on record the
copy of the various applications Ex.MW1/5 to Ex.MW1/8 and
MW1/8A to prove that there was no relationship of employer and
employee between the parties.
10. Learned labour Court after considering the evidence adduced by
W.P.(C) 6624/2016 Page 3 of 11
the parties decided issue no.1 against the claimant who was held to be
a personal driver of the Advisor, Corporate Affairs of the
respondent/management i.e. Mr. M.Balakrishnan.
11. Today, Mr.A.P.Dhamija, learned counsel for the
petitioner/claimant has drawn attention of this Court to Ex.CW-1/1,
CW-1/2 and CW-1/4 to highlight that these documents were sufficient
to prove the relationship of employer-employee between the parties.
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Ex.CW-1/1 is a photocopy of the letter dated 26 October, 1995
addressed by the Manager, Tata Tea Limited to the petitioner directing
him to receive the Managing Director at the Airport and also to collect
money for petrol and car parking expenses. Ex.CW-1/2 is a photocopy
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of the letter dated 10 January, 1994 by Mr.M.Z.A.Baig addressed to
Mr.Arunachalam wherein he has referred the petitioner as a company
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driver with effect from 1 January, 1994. Ex.CW-1/4 is the photocopy
of the identity card showing his designation as driver of Tata Oil
Company.
12. Learned counsel for the respondent/management has submitted
that the original of the above referred documents were not produced
despite the fact that a plea had already been taken in the written
statement about these documents to be forged and fabricated. The
photocopy of ID card Ex.CW-1/4 does not even bear the date of issue
or till when it is valid. It just bears the name, designation and
company. Learned counsel for the respondent/management has drawn
the attention of this Court to the various application forms submitted
by the petitioner to the company seeking his appointment as a driver,
which he would have not applied had there been any relationship of
W.P.(C) 6624/2016 Page 4 of 11
employer-employee between the parties. Learned counsel for the
respondent/management has also drawn the attention of this Court to
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an application dated 3 July, 1996 submitted by the petitioner for the
post of peon wherein in the column experience he has specifically
mentioned that he had been working as personal driver to
Mr.M.Balakrishnan, who was at that time posted as Adviser
(Corporate Affairs), Tata Tea Ltd. In another application Ex.MW-1/6
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dated 21 April, 1995 also he had admitted that he was personal driver
of Mr.M.Balakrishnan for past 9 years and sought an opportunity to be
given a regular appointment in view of his clean antecedents.
13. I have considered the rival contentions and carefully perused the
record. Learned labour Court appreciated the oral and documentary
evidence and even quoted the relevant paras of the documents to
arrive at the conclusion that the petitioner was a personal driver of the
Advisor, Corporate Affairs of the respondent/management. The
reasons given in support of above findings in the impugned award are
as under:-
“9. Oral evidence of WW1 and MW1 on this issue is
totally opposite to each other. In order to fathom into the
probative value of their evidence, the documents
produced by both parties are required to be analysed.
The most critical documents relied upon by the claimant
are Mark CW1/1 and CW1/2. Mark CW1/1 is a letter
signed by Mr. Ajay Bhuchar, Manager of M/s. Tata
Services Limited to the claimant on 26.10.1995
requesting to pick up Managing Director Mr. Krishan
Kumar from the Airport. Mark WW1/2 is a letter signed
by Mr. M.Z.A. Khan vide which the claimant was
W.P.(C) 6624/2016 Page 5 of 11
appointed as a driver of M/s. Tata Tea Limited Company
w.e.f. 01.01.1994. Stand of the management right from
the beginning is that the claimant was relying upon
forged and fabricated documents. In examination in
chief recorded on 16.05.2006, the claimant was
successful in exhibiting those documents. The objection
was taken by the management on 06.08.2008 and those
documents were de-exhibited and were given mark as
Mark CW1/1 and Mark CW1/2. Onus of proof of these
documents was upon the claimant. He could have proved
these documents by two means – i. By producing the
original and secondly by examining the witnesses i.e. Mr.
Ajay Bhuchar and Mr. M.Z.A Baig i.e. by whom the
documents have been purportedly signed. He had filed an
application for a direction to the management to produce
the documents but he withdrew the said application on
20.03.2008. He did not examine Mr. Ajay Bhuchar and
M.Z.A Baig. In this way, these documents have gone
unproved. Document Ex. CW1/4 i.e. I. Card is also of no
consequence because it has been issued by M/s. Tata Oil
Mills Limited whereas the case is against M/s. Tata Tea
Limited. Ex. CW1/6 is also of no value because its
original never saw the face of the court. The claimant did
not examine Mr. Balakrishnan by whom it has been
signed. He had not examined Mr. S.P. Malhotra to whom
it has been addressed. Moreover, there is nothing in this
document which may suggest that it was written to M/s.
Tata Tea Limited. Additionally, the said document is
dated 05.06.1990 and by that time Mr. Balakrishnan was
still working with M/s. Tata Oil Mills Limited and not
with M/s. Tata Tea Limited. The claimant had applied to
M/s. Tata Services Limited for a permanent post of driver
and response Ex. CW1/20 of that company came to him
W.P.(C) 6624/2016 Page 6 of 11
on 13.10.1995 at the address of Mr. Pradeep (Driver)
C/o Tata Tea Ltd. The claimant did not examine Mr.
M.Z.A Baig by whom it has been purportedly signed. He
did not file original of it. Objection regarding that
document has been taken by the management that it was
a forged and fabricated document. It is very much
possible that address of the claimant is mentioned as C/o
Tata Tea Limited in Ex. CW1/20 because he was the
driver of higher official of the said company. Petrol bills
Ex. CW1/21 to Ex. CW1/47 and bills Ex. CW1/49 to Ex.
CW1/59 issued by car maintenance company are of no
help to the claimant because it is the consistent stand of
the management that the cars were provided to Mr.
Balakrishnan by the company and those were driven and
serviced by the claimant.
10. On the other hand, there is a vital document Ex.
MW1/4 vide which services of Mr. Balakrishnan were
hired as a consultant by the management. It becomes
clear from clause 2 of that document that Mr.
Balakrishnan was provided with a company car which
was to be maintained by the company. It becomes clear
from clause No. 3 and 4 that Mr. Balakrishnan was
entitled to reimbursement of Rs.1600/ per month for
driver and cleaner salary. The said document proves that
the company had provided Mr. Balakrishnan car and the
driver was to be engaged by himself for which he was to
be reimbursed. Documents Ex. WW1/M1 to Ex. WW1/M3
dated 02.09.1996, 01.10.1996 and 31.10.1996 are the
vouchers showing that the claimant had taken salary
from Mr. Balakrishnan and not from the management.
These documents were put to him in cross examination
and he admitted that those were bearing his signatures.
He admitted his signatures on documents Ex. WW1/M4 to
Ex. WW1/M6.
W.P.(C) 6624/2016 Page 7 of 11
11. Following contents of Ex.WW1/M4, Ex. WW1/M5
and Ex. WW1/M6 are most relevant:
Ex. WW1/M4:
Sir, I Pradeep (driver-cum-cleaner) have been in the
services of Mr. Balakrishnan (Adviser Corporate Affairs,
Tata Tea Limited, New Delhi) as driver for last 9 years
and during my services I have always dedicated myself to
my responsibility by obeying the orders.
Ex.WW1/M5:
Experience: 9 years working experience since 1987. I
have been working as personal driver to Mr. M.
Balakrishnan.
Ex.WW1/M6:
Sir, I have been working as driver-cum-cleaner under
you since 1987 and looked well by your act of kindness.
... Sir, before you get retired, I request you to kindly take
me in the payroll of the company as a regular employee.
Ex.MW1/8A:
Sir, I Pradeep (Driver-cum-Cleaner) have been in the
service of Sh. M. Balakrishnan (Advisor Corporate
affairs Tata Tea Ltd., New Delhi) as driver for last 9
years and during my service I have always dedicated
myself to my responsibilities by obeying orders.
From all these applications moved by claimant
himself and admitted by him in cross examination, it
becomes clear that in 1995 and 1996, he was working as
a personal driver of Mr. M. Balakrishnan. He had written
four different applications to M/s. Tata Services Limited,
Tata Tea Ltd. and Mr. M. Balakrishnan seeking the
W.P.(C) 6624/2016 Page 8 of 11
permanent job of driver. If he was already working as a
driver with Tata Tea Limited, why he was again seeking
the same job from the same company and the sister
concerns? When the term of Mr. M. Balakrishnan was
coming to an end, the claimant became more desperate
about his future and and that is why, he wrote an
application Ex. WW1/M6 on 02.08.1995 to Mr. M.
Balakrishnan mentioning that he (M. Balakrishnan) was
getting retired next year and that was a said news for
him. That is why he requested him to take him on the pay-
roll of the company as a regular employee. It further
shows that till the date of that letter i.e. till 02.08.1995,
he was not the employee of the company.
12. Taking into account the above discussion, it is held
that claimant was the personal driver of Mr. M.
Balakrishnan and he was never employed by the
management.”
14. Legal position is well settled that this Court while exercising
writ jurisdiction should not act as an appellate Court. In exercise of
power of judicial review, interference is warranted by this Court only
if the claimant is able to show that the award impugned herein suffers
from perversity.
15. During the course of hearing, learned counsel for the
petitioner/claimant tried to wriggle out the situation by submitting that
the petitioner was seeking regularization and not employment. The
submission raised on behalf of the petitioner is again contrary to the
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admission made in the application dated 3 July, 1996 wherein in the
column experience he has specifically described himself as to be a
personal driver of Mr.M.Balakrishnan for the past 9 years. The
management has also proved on record vide Ex. MW1/4 that
W.P.(C) 6624/2016 Page 9 of 11
Mr.M.Balakrishnan before his superannuation was entitled to a
company car and reimbursement for driver. Even after his
superannuation when he was re-employed as an Advisor, Corporate
Affairs, Tata Tea Limited, he was entitled to a company car and
reimbursement for the driver. Merely because the payment was made
by the company for a driver was not sufficient to draw an inference
that the petitioner became an employee of the company.
16. There can be no dispute that the issue that the petitioner was a
personal driver of Mr.M.Balakrishnan, Advisor, Corporate Affairs of
the management or he was an employee of the management, is a
question of fact. Such an issue was required to be decided by the
learned Labour Court on appreciation of evidence adduced by the
parties. The finding of learned Labour Court that the petitioner was a
personal driver of its Advisor, Mr.M.Balakrishnan, whose salary was
reimbursed by the respondent/management, is based not only on the
documentary evidence produced by the respondent/management but
also on admission made by the petitioner in his application seeking
employment from the respondent/management. In his applications
Ex.WW1/M4 and WW1/M5 he has specifically mentioned, as
extracted from para no.11 of the impugned award, that he was having
experience of 9 years as personal driver of Mr.M.Balakrishnan. Since
the conclusion arrived at by the learned labour Court cannot be termed
to be against any provision of law or evidence or is manifestly
erroneous or perverse, such finding cannot be interfered with by this
Court in exercise of power of judicial review. The findings returned by
learned Labour Court are also based on the decision reported as
W.P.(C) 6624/2016 Page 10 of 11
Mudra Communications Ltd. Vs. Ganesh Kumar & Ors., 169 (2010)
Delhi Law Times 481 wherein it was held that the person engaged by
the General Manager to drive his car would not become employee of
the company.
17. The impugned award does not suffer from any illegality or
perversity so as to exercise power of this Court in writ jurisdiction.
Hence, the writ petition is dismissed.
PRATIBHA RANI, J.
AUGUST 01, 2018
„pg‟
W.P.(C) 6624/2016 Page 11 of 11