- (1.) The petitioner is a company having challenged the award dated 21st November, 2002 made by the IVth Industrial Tribunal, West Bengal, Kolkata in which, inter alia, the following was held and directed - "Considering the facts and circumstances and in view of my above observation I have no hesitation to hold that the concerned workman was the employee of the concerned company as a driver and I am to hold that the termination of service of the concerned workman named Upendra Chowdhury w.e.f. 07.09.1997 is not justified, and the concerned workman is entitled to get reinstatement in his service with full back wages and other consequential reliefs. The company is directed to reinstate the concerned workman Shri Upendra Chowdhury in his service with immediate effect and to pay all back wages and other reliefs."
(2.) Mr. Sengupta, learned Advocate appearing on behalf of the petitioner, submitted that the findings in the award were perverse. The burden of proof had been shifted on to his client to establish the negative to the effect that the respondent no.1 was not the employee of the petitioner. He further submitted the Tribunal in making the award had relied on the opinion of the Conciliation Officer on matters of fact, taking them to be proved as facts. He by relying on Sections 4 and 12 of the Industrial Disputes Act, 1947 submitted the Conciliation Officer was not empowered to adjudicate on facts and his opinion, in case of failure of conciliation, was to be regarding reasons on account of which the settlement could not be arrived at between the parties.
(3.) He also relied on the decision in the case of Punjab National Bank -Versus- Ghulam Dastagir, 1978 AIR(SC) 481 in particular the following portion of paragraph 3 in that report. "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." He submitted the respondent no.1 was unable to produce any document to show he was the employee of the petitioner. Further more, he had admitted in cross-examination before the Tribunal that the officer of the petitioner used to pay his salary though he also had alleged later that he had received salary from the petitioner as well as also from the officer of the petitioner.;