TMI Blog1978 (1) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... (the Punjab National Bank, Calcutta Branch) and the reference was as to the justifiability of the termination of the services of Shri Golsm Destegir, 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 Gelam 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have a bearing on the result, who is paymaster, who can dismise, how long the alternative service losts, 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 other factors also, and indeed as Lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowance from the Bank. There is nothing on record to make out a nexue 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 csnsoufluse or circumvention of any statute. It is not unusual for public sector industry or a nationalised banking institution to give allowances to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a public sector undertaking like a rationalised Bank. We hope that the possibility of abuse of the system of driver's allowances and the obligation of the public sector undertakings to be model employers will lead to a change in the approach of our nationalised banks and other public sector undertakings towards this issue of employing persons on a private basis by senior officers and the management itself giving some small sum by way of allowances in Hew of procuring such services. A fair and straight forward method would be for the Bank or like institution to engage its own driving staff. It is also important to remember that the vehicles belong to the industry and if drivers hired on a private basis by officers are allowed to use such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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