Krishna Iyer, J. - (1.) Social justice is the signature tune of the Constitution of India and this note is nowhere more vibrant than in industrial jurisprudence. From this point of view we are in full sympathy with Shri Khera who has argued the workman"s case with insistence, urging us not to exercise our appellate powers to upset the award of the Central Government Industrial Tribunal, Calcutta. The industrial dispute was between an individual driver (the respondent) and the management (the Punjab National Bank, Calcutta Branch) and the reference was as to the justifiability of the termination of the services of Shri Golam Dastagir, driver of the said bank with effect from the 27th May 1975. The reference assumes what really is the most contested point in the case as to whether Shri Golam Dastagir was the driver of the said Bank By definition, a workman means "any person employed in any industry" and so the basic jurisdictional issue is as to whether the respondent-workman was a person employed by the Bank. If he was, his termination was illegal. If he was not, the reference to the industrial dispute was without jurisdiction. The Industrial Tribunal examined the matter at some length and came to the conclusion that the driver was employed by the Bank. Consequentially, a direction for reinstatement together with back wages was made.
(2.) The Management has come up in appeal by special leave under Art. 136 and Dr. Anand Prakash has argued that on the peculiar facts and circumstances present in the case, it was impossible to reach the conclusion that the driver concerned was employed by the Bank. On the contrary, it was obvious that the employer was the Area Manager who had been given a personal allowance of Rs. 200/- by the Bank to enable him to employ a personal driver of his own. Of course, the Bank took care to insist that Rs. 200/- was the maximum allowance payable and if the expense incurred by the Area Manager (Shri K. P. Sharma) was less then Rs. 200/- the allowance would be reduced to the actual.
(3.) Shri Khera has taken us through the leading case on the point in Shivnandan Sharma v. The Punjab National Bank Ltd. (1955) 1 SCR 1427 and the subsequent decisions, which we may broadly describe as the beedi cases, such as in (1964) 2 Lab LJ 633. There is no doubt that the proposition laid down in Shivnandan 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 and Harbour Board v. Coggins and Griffith (Liverpool) Ltd., 1947 AC 1, expressed himself in words which were relied upon by Shri Justice Sinha in Shivnandan 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 of the 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 decision 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.;