IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 15967 of 2007(A)
1. THE DISTRICT PRESIDENT,
... Petitioner
2. P.M.BENJAMIN, S/O.LATE MICHAEL.P.P.,
3. T.V.JOSEPH, THARASSERY HOUSE,
Vs
1. THE ZONAL MANAGER,
... Respondent
2. THE PRESIDING OFFICER, CENTRAL
For Petitioner :SRI.C.S.AJITH PRAKASH
For Respondent :SRI.DEVAN RAMACHANDRAN
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :02/11/2007
O R D E R
S.SIRI JAGAN, J
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W.P.(C). 15967/2007
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Dated this the 2nd day of November, 2007
JUDGMENT
Union in I.D No.9/2005 before the Central
Government Industrial Tribunal-Cum-Labour Court,
Eranakulam, is the petitioner herein. The petitioner-Union
challenges Ext.P16 award passed by the Tribunal-Cum-
Labour Court in that I.D in this writ petition. The issue
referred for adjudication was “Whether the action of the
management of Bank of India in not regularizing the
services of personal drivers of Executives viz.,
Sri.P.M.Banjamin and Sri.T.V.Joseph and terminating their
services are correct? If not to what relief the workers are
entitled?”
2. The contention of the Union was that the workers
involved were workers of the management Bank whose
services were illegally terminated. They, therefore,
sought reinstatement with back wages. The management
took contention that the workmen were not employees of
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the Bank at all and that there was no employer-employee
relationship between the Bank and the workmen. They
took the stand that the workmen personal drivers were
employed by the Executives of the Bank and not drivers
of the Bank. The Bank neither appointed them nor
terminated their service. The drivers were not provided
by the Bank to the officers, but the officers themselves
appointed them. Therefore, they disclaimed any liability
in respect of the workmen in question. Industrial
Tribunal-Cum-Labour Court, after appreciating the
evidence adduced, came to the conclusion that the
workmen were in fact personal drivers of the Executives
of the Bank and not drivers employed by the Bank. On
that finding, the Tribunal held that the workers are not
entitled to any relief in the industrial dispute. The Union
is challenging that award.
3. The counsel for the Union would argue that the
Labour Court has not appreciated the evidence adduced
by the workers properly and that the findings in the
award are perverse. He would point out that the
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management did not produce material evidence
available with them in spite of specific requests made in
that behalf and that in reply to a petition summoning
document, a senior officer of the Bank filed a counter
affidavit stating that, that document is not maintained by
the Bank whereas the management witness while giving
evidence, admitted that such a document was maintained
by the Bank. The counsel, therefore, argued that the
conduct of the management before the Tribunal coupled
with the evidence on record was sufficient to decide the
issue in favour of the workmen.
4. The learned counsel for the management would
point out that the very fact that the workmen were not
represented by any Union of employee of the Bank,
would go a long way in proving that the workmen were
not employed by the Bank at all. He would further
submit that the evidence adduced by the workmen
themselves were more than sufficient to hold that they
were never employed by the Bank as drivers of the Bank
but only as personal drivers of the Executives. He would
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further submit that the minor discrepancies in the
evidence is not sufficient to offset the overwhelming
evidence against the workmen that too produced by the
workmen themselves.
5. I have considered the rival contentions in detail.
6. At the outset, I must remind myself of my
jurisdiction in the matter of appreciating correctness of
award of Industrial Tribunal-Cum-Labour Court. It is
settled law that this Court acting under Article 226 of the
Constitution of India is not sitting in appeal over the
award. This Court can interfere with such an award only
if the award is based on no evidence or where the
conclusions arrived at in the award are perverse.
7. In this case, the workmen involved were
represented by the District President of Kerala private
Transport Workers Congress which is not a union
representing workmen of the management Bank. While
giving evidence, one of the workmen T.V.Joseph admitted
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5
in cross-examination that he was taken as personal
driver of the Manager of NRI Branch, Eranakulam, and
that the outgoing Manager used to introduce him to the
incoming Managers. He also admitted that he was the
personal driver of Sri. E.P.Gopakumar at the time of
termination of his service. He categorically admitted
that when he applied for membership of the Kerala
Private Transport Workers Congress, his occupation was
mentioned as personal driver in Bank of India.
Admittedly no appointment order or termination order
was issued to the workmen.
8. The management Bank is a nationalised Bank and
therefore, they have to follow the procedure prescribed
for public appointment while selecting employees.
Admittedly, the workmen involved in the industrial
dispute did not undergo any selection process
whatsoever. Both the workmen stated during evidence
that they came to know about the vacancy from others
and approached the respective officers. When they
approached the Manager of the NRI Branch and
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6
Regional Manager respectively offering their services as
drivers, they were interviewed by the Executives,
perused their licences, enquired of their experience as
drivers. It was thereafter, the respective officer asked
them to join duty. It is also admitted that the Bank was
reimbursing the officers, the wages paid to them for their
personal drivers. There was nothing on record to show
that the Bank had directly paid any wages to the
workmen. After appreciating this evidence, Labour
Court came to the finding that the very document
produced by claimants themselves show that they were
engaged as personal drivers of the Officers. The
evidence reveal that they were neither appointed nor
terminated by the Bank. Bank had not exercised
supervision or control over the workmen. They were not
paid by the Bank but by the Officers directly. No leave
was even applied for or granted by the Bank to these
workmen at any time. It is in the light of these
overwhelming materials on record, Tribunal came to the
conclusion that the workmen were not employees of the
Bank but personal drivers of the Officers concerned. The
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counsel for the petitioner relied heavily on the decision
in Bank of Baroda v. Ghemarbhai Harjibhai
Rabari (2005 (2) supreme 628), the facts of which,
according to the petitioner, are on all fours with the
facts of this case. But I find from that decision that, in
that decision the Supreme Court relied on certain
vouchers for payment of wages to the drivers involved in
that case to come to the conclusion that the workmen
were actually employed by the Bank itself. In this case,
vouchers were produced in evidence all of which show
that the payment was as reimbursement to the officers
who were employing the workmen as personal drivers
and there was no direct payment by the Bank to the
workmen. Therefore, I am not inclined to accept the
contention of the petitioner that the facts of that case
are similar to those of this case.
9. In the above circumstances, I am satisfied that
there is no perversity whatsoever in the appreciation of
evidence by the Tribunal-Cum-Labour Court. Without
any finding that the findings are perverse, I cannot
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interfere with the award. Therefore the writ petition
fails and accordingly the same is dismissed.
S.SIRI JAGAN
Judge
mrcs