The burden of proving the existence of an employer-employee relationship lies upon the person who sets up the plea. Without such a relationship, the question of termination of service or payment of back wages does not arise.

JUDGMENT

Hiranmay Bhattacharyya, J. - The instant appeal is at the instance of the writ petitioner challenging the Judgment and Order dated June 22, 2016 passed by a learned Single Judge in WP 8259 (W) of 2016 thereby, refusing to interfere with the award passed by the learned Judge of the 7th Industrial Tribunal, Kolkata on September 16, 2015 in case No. 37/10 (1B) (d) of 2012.

2. The appellant filed an application under Section 10 (1B) (d) of the Industrial Disputes Act, 1947 (for short 'I.D. Act') before the 7th Industrial Tribunal (for short 'the Tribunal') which was registered as case No. 37/10 (1B) (d) of 2012. In the said application the appellant claims to be a professional car driver engaged by the respondent No. 3 to drive their motor vehicles in the year 2007. The respondent No. 3 is a concern engaged in manufacturing of various kitchen appliances and earning huge profit by engaging workmen and employees under it. The appellant alleges that he is a victim of unfair labour practice and no appointment letter was issued in his favour by the respondent No. 3. The said respondent did not enroll his name in its master roll with an intention to deprive the appellant from all legitimate and due entitlement which he deserved as a workman under the said respondent. It was further alleged that the said respondent during the tenure of the service of the appellant changed the mode of payment of salary to the workman during last few months of his tenure of employment after obtaining his signature in the voucher of one 'Bhattacharya Enterprises'. The appellant claims that the respondent No. 3 terminated his service with effect from 21.6.2011 without assigning any reason and only by a verbal order without offering any monetary benefit and/or compensation while terminating his service. He further claims that his monthly salary was Rs. 5,500/- at the relevant point of time. The appellant prayed for declaration that the termination of service of the appellant is void ab initio and for a direction upon the respondent no. 7 to reinstate the appellant in service and to pay him his full back wages and consequential benefits.

3. The respondent No. 7 contested the said application before the Tribunal by filing a written statement challenging the maintainability of the said application. It was specifically contended in the said written statement that there is no employer-employee relationship between the respondent No. 3 and the appellant herein and as such there does not arise any question of termination of service as well as payment of any monetary benefit or compensation. It was also contended that the appellant is an employee of M/s. Bhattacharya Enterprises being the contractor engaged by the respondent No. 3 and as such the alleged dispute cannot assume the character of an industrial dispute. Thus, the respondent No. 3 prayed for dismissal of the said application.

4. The learned Tribunal passed an award on September 16, 2015 thereby dismissing the application filed under Section 10 (1B) (d) of the I.D. Act upon holding that the appellant herein could not prove that there ever existed any employer-employee relationship between the respondent No. 3 and himself. The said award was challenged by the appellant in a writ petition and the learned Single Judge dismissed the same by an Order dated June 22, 2016. Being aggrieved, the writ petitioner has preferred the instant appeal.

5. Mr. Rakshit, the learned Advocate for the appellant contended that the learned Tribunal as well as the learned Single Judge failed to take into consideration the documents being Exhibits 6 and 7 which support the case of the appellant that he is an employee of the respondent No. 3. He further contended that the appellant worked as a driver under the respondent No. 3 since 2007 and his employment was terminated illegally without assigning any reason and also by not offering any monetary benefit and/or compensation. By placing reliance on a judgment in the case of Bank o