SHIV KUMAR SHARMA, J. - (1.) The industrial dispute was between the individual driver (the respondent) and the Management of UCO Bank (appellant) and the reference was as to the justifiability of the termination of the services of Ratan Singh Bhati, driver of the said bank with effect from March 12, 1995. The reference assumes what really is the most contested point in the case as to whether Ratan Singh Bhati 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 and came to the conclusion that the driver was employed by the Bank. Consequently, a direction for reinstatement without back wages but with continuity of service, was made. The management of Bank came up in writ petition that was dismissed by the learned single Judge. Hence this special appeal.
(2.) Mr. Man Singh Gupta, learned counsel took us through Bank's Circular dated August 30, 1986 and canvassed that Ratan Singh Bhati was engaged as his personal driver by the Divisional Manager of the Bank, therefore, in the peculiar facts and circumstances present in the case, it was impossible to reach the conclusion that driver was employed by the Bank. Learned counsel in support of his contention placed reliance on Punjab National Bank v. Ghulam Dastagir AIR 1978 SC 481 : 1978 (2) SCC 358 : 1978-I- LLJ-312.
(3.) In order to decide whether the driver was the employee of the Bank the direction and control are the telling factors. The Supreme Court in Shiv Nandan Sharma v. Punjab National Bank, AIR 1955 SC 404 : 1955-I-LLJ-688 indicated thus atp.696 of LLJ: "Many factors have a bearing on the result. Who is pay master, 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 a 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.";