TaxTMI 
TaxTMI 
2022 (9) TMI 1619
X X X X Extracts X X X X
X X X X Extracts X X X X
...., petitioner was not issued any appointment letter. 3. The respondent management vide an email dated 25.03.2014, illegally terminated the services of the petitioner workman, without giving any notice, holding any inquiry, or assigning any valid reason. 4. Aggrieved, the petitioner workman sent a demand notice dated 01.09.2014 to the management, although no reply was received thereto. However, pursuant to receiving the aforesaid demand notice, the Management immediately released the workman's pending payments, but did not reinstate him back in service. 5. The petitioner has alleged that the management has illegally and arbitrarily terminated his service, flouting the provisions contained in the Industrial Dispute Act, 1947, and without following due process of law. 6. Petitioner workman raised an industrial dispute, in lieu of this and the following reference was framed to be adjudicated and determined: "Whether there existed an employer employee relationship between the Management and Sh. Kaushal Kishor Singh S/o Sh. Netra Pal Singh and if so, whether services of Sh. Kaushal Kishor Singh have been terminated illegally and/ or unjustifiably by the Management and if so, to what....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al employee is not a workman. Reliance is placed on Devender Singh vs. Municipal Council Sanaur, 2011 (6) SCC 584 and Yashwant Singh Yadav Vs State of Rajasthan, 1989 (1) Raj LR 156." 10. It has been submitted that in view of the aforesaid contentions the petitioner is entitled to be reinstated back in service with retrospective effect, full back wages and other monetary benefits in continuity of his previous service and without any stigma of gap. Contentions of the respondent management 11. Ld. Counsel for the respondent management, on the other hand, submits that the Impugned Award does not suffer from any infirmity which may require the interference of this Court. 12. Ld. Counsel submits that the Ld. Labour Court while passing the Impugned Award, has rightly returned the finding of fact based on the evidence and material on record, that there was no relationship of employer - employee between the parties. Ld. Counsel submits that such a finding of fact recorded by the Labour Court is not open to challenge in the writ jurisdiction under Articles 226 and 227 of the Constitution of India and the present petition merits dismissal on this ground itself. 13. Ld. Counsel has invi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tioner fell in the category of General Linguistic Guide which provided that the Regional Level Tourist Guide had to work as license Guide for at least 90 days in a year and they would be paid guide fees as revised from time to time by TGFI in consultation with IATO/TAAI representatives. The said guidelines clearly provide that the Regional Level Guides should not be regularly/ permanently employed in travel & hospital industry, and they would not refuse any assignment from the Ministry of Tourism unless there is a valid reason for doing so. Finding and Analysis 19. The extent of writ jurisdiction has been considered by this Court and the Supreme Court in a catena of judgments. In Hari Vishnu Kamath v. Ahmed Ishaque & Ors., AIR 1955 SC 233, the Supreme Court has held as under: "21. ... On these authorities, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....les: "28. Relying on the principles enunciated in the above decision, a catena of pronouncements of the Supreme Court, including Management of Madurantakam Cooperative Sugar Mills Ltd. v. S. Viswanathan, (2005) 3 SCC 193; P.G.I. of Medical Education and Research, Chandigarh v. Raj Kumar (2001) 2 SCC 54 and M.P State Electricity Board v. Jarina Bee, (2003), 6 SSC 141, followed, which may be regarded as having laid down, authoritatively, the following principles: i. The Labour Court/Industrial Tribunal is the final fact-finding authority ii. The High Court, in exercise of its powers under Article 226/227, would not interfere with the findings of fact recorded by the Labour Court, unless the said findings are perverse, based on no evidence or based on illegal/ unacceptable evidence. iii. In the event that, for any of these reasons, the High Court feels that a case for interference is made out, it is mandatory for the High Court to record reasons for interfering with the findings of fact of the Labour Courts/ Industrial Tribunal, before proceeding to do so. iv. Adequacy of evidence cannot be looked into, while examining, in writ jurisdiction, the evidence of the Labour Co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....us emails and the forms under 16A, do not, in any way, prove that there existed any relationship of employer - employee between the parties. The emails show mere correspondence and the Form 16A categorically reflects that TDS was deducted by the Management in respect of payments made to the petitioner under the "head of payments made to contractors and sub-contractors‟, thereby disqualifying the petitioner to fall within the definition of workman as enumerated under Section 2(s) of ID Act. 26. Moreover admittedly, the petitioner had never applied for any employment with the Management in writing. As per petitioner, he had an oral interview with one Sh. Sanjay Malik from the management in 2011. It is an admitted fact that neither any written examination was conducted and nor any offer/ appointment letter was issued to the petitioner. 27. Further admittedly, the petitioner worked as a Guide on assignment basis and was neither given any promotion and/ or bonus, nor was he covered under the applicable statutory enactments such as ESI, PF, etc. 28. The petitioner was not provided any regular amount as salary or otherwise which were being given to its other employees by the Mana....
X X X X Extracts X X X X
X X X X Extracts X X X X
....For eg. a writer who submits work to many publishers, a journalist working for several channels, a tour guide etc. 32. Freelancer or freelancing thus are terms currently used to mean a person who is self-employed or an independent contractor in the business of selling their services and skills to different employers for a specified time period. Etymologically, freelance has derived from the words - "Free‟ a Germanic word which means to "love‟, and "lance‟ which is akin to the French word meaning to "launch‟, or discharge with force. 33. In freelance therefore, there is no master - servant relationship, as the servant is his own master and has the ability to pick and choose his assignments, the duration of such assignments and is enabled to work for himself as well as other multiple employers. The cases relied on by the petitioner are not applicable to the present case as the same are distinguishable on facts. The judgements cited by the petitioner are to the extent that Section 2 (s), ID Act does not distinguish between full- time, part-time and contractual employees. However, it pertinent to note that the petitioner is neither a full-time/ nor a part-time....