Dear
You may see the following passages in a Judgment:
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 W.P.(C).15967/2007 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 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.
Further you may see the definition of workman:
Sub-section 13 of section 2 defines employee as under :
"Employee means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward whether the terms of employment for the purpose of conducting the undertaking entrusts the execution of the whole or any part of any work which is ordinarily a part of the undertaking, to any person otherwise than as the servant or agent of the owner, the owner of the undertaking".
Sub-section 13 of section 2 defines employee as under :
"Employee means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward whether the terms of employment be express or implied, and includes ......."
In the above cases they were Nationalised Banks .In your case you say it is a small Factory and a single Driver and Company owned car the law will be favourable to the Driver as it is perennial job and it can be argued to avoid pay-rolling him he was retained as personal driver. it is better to take him back ,bring him on the rolls and if he mis-behaves terminate him after holding an enquiry.
With Regards
Advocates & Notaries & Legal Consultants[HR]
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