BASF INDIA LIMITED Vs. M GURUSAMY

JUDGEMENT

(1.) THIS Appeal is directed against the judgment and order dated February 23, 1995 passed by the learned single Judge whereby the writ Petition filed by the present Appellants aggrieved by the order dated July 8, 1992 passed by the Regional Provident Fund commissioner, Maharashtra and Goa (for short "commissioner") came to be dismissed.

(2.) ON December 28, 1984 the commissioner issued summons to BASF India limited (first Appellant and hereinafter referred to as "the Company") under Section 7-A of the Employees' Provident Funds and miscellaneous Provisions Act, 1952 (for short "act of 1952" ). In the summons it was recorded that the Commissioner had reason to believe that the Company failed to remit the provident fund dues in respect of their establishment covered by the Act of 1952 and the Rules framed thereunder and that provident fund benefits were not extended to the trainees and contractor employees after completion of 60 working days. The Company was thereby directed to give evidence and to produce all the records including those mentioned in the summons for conducting an enquiry and determining the amount due from the company. It appears that during the course of hearing of the said proceeding the question arose regarding coverage of drivers appointed by the Managers. By the reply filed by the company on June 18, 1992 the explanation was submitted by the Company to the effect that the personal drivers of the Company's Managers were basically their domestic servants; the managers themselves selected them and employed them; the Managers called their domestic servants at any day and instruct them to drive the car at any place with any passengers as per their personal requirements; the drivers were under exclusive supervision and control of the respective Managers in their individual capacity and not in the capacity of the company's employees; the Company's role was confined only to the extent that as a part of service conditions agreed with the Managers, it will reimburse to the Managers the expenses incurred by them in utilising their personal drivers' services for to and fro drive between the residence and the office or any place outside for official work. The Company thus set up the case that there was no master-servant relationship of any kind between the Company and the drivers of the Company's Managers and that such drivers were not covered within the definition of "employee" under Section 2 (f)of the Act of 1952. Upon receipt of the reply from the Company, the Commissioner on that very day i. e. June 18, 1992 directed the company to file documents, namely, who were the individuals engaged as car drivers, how long they continued to work and who paid their wages. In response thereto the Company on july 6, 1992 annexed the list of the drivers indicating period of their engagement and reiterated that the wages of these drivers were paid by the respective Managers but the expenses incurred by managers for utilising the services of personal drivers were reimbursed to the extent (a) upto Rs. 1,900/- per month if service with the Manager was less than five years and upto Rs. 1,950/- per month if service with the Manager was five years or more; (b)an amount upto Rs. 800/- towards uniforms; footwear, monsoon equipments and winter clothing and (c) an amount for overtime upto rs. 4. 50 per hour if the Manager would use his driver for Company's duty beyond driver's normal working hours with the Manager.

(3.) THE Commissioner after hearing the authorised representative of the Company by order dated July 8, 1992 held that the said drivers were paid wages directly or indirectly by the establishment for the work carried out by them in or in connection with the establishment and therefore they were employees under Section 2 (f) of the Act of 1952. Aggrieved by the said order the company filed Writ Petition which came up for hearing before the learned single Judge. The company heavily relied upon the judgment of the Supreme Court in Employers in relation to p. N. B. v. Ghulam Dastagir, AIR 1978 SC 481 : 1978 (2) SCC 358 : 1978-I-LLJ-312 before the learned single Judge and urged that relationship of master and servant did not exist between the Company and the drivers of the managers. The contention was that the drivers were working under the control and supervision of the concerned Managers and the company has no control over in the matter of selection, appointment, terms and conditions of service, hours of duty, nature of work, etc. of such drivers. On the other hand on behalf of the Commissioner it was contended before the learned single Judge that the concerned drivers were employed in connection with the establishment and that the definition of "employee" under Section 2 (f) of the Act of 1952 was much wider. It was also contended on behalf of the Commissioner that the control and supervision were not the decisive factors and the issue has to be decided in each case on its own merits. The learned single Judge found that on the facts the judgment of the Supreme court in Ghulam Dastagir was not applicable and that in view of the judgment of the Supreme court in Silver Jubilee Tailoring House v. Chief inspector of Shops and Establishments, AIR 1974 sc 37 : 1974 (3) SCC 498 : 1973-II-LLJ- 495 in deciding the question of contract of service though the control is an important factor and in many cases it may still be decisive but it is wrong to say that in every case it is decisive and held that the test of control was not the sole criteria and in the facts of the present case it was established that the drivers were the employees of the Company under Section 2 (f)of the Act of 1952. It is this judgment which is impugned before us.