Sun TV Network Limited and Others v. S. Venkiteswara Iyer and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** ## **MONDAY, THE 29TH DAY OF SEPTEMBER 2014/7TH ASWINA, 1936** ## **RSA.No. 760 of 2014 (F)** **----------------------AS.NO. 133/2012 OF VI ADDL. DISTRICT COURT (WAKF TRIBIUNAL), ERNAKULAM OS 1240/2010 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM** **------------------------** ## **APPELLANTS/APPELLANTS 1 TO 3/DEFENDANTS 1 TO 3 :** **-----------------------------------------------------------------------------------** **1. SUN T.V. NETWORK LIMITED** - **4-NORTON ROAD, MANAVELI, CHENNAI-28 REPRESENTED BY THE GENERAL MANAGER-ADMINISTRATIONS SHRI.KOSHI THOMAS.** **2. SHRI. KALANIDHI MARAN CHAIRMAN AND MANAGING DIRECTOR, SUN T.V. NETWORK LIMITED 4-NORTON ROAD, MANAVELI, CHENNAI-28.** ## **3. BUREAU CHIEF** - **SURYA T.V., NEWS DIVISION, KERALA MR. ANIL NAMBIAR, LOTUS GARDEN, TC 9/923 PANICKERS LANE, SASTHAMANGALAM, THIRUVANANTHAPURAM.** **BY ADVS.SRI.M.RAJENDRAN NAIR SRI.C.P.UDAYABHANU SRI.ABRAHAM P. GEORGE SRI.K.VINODKUMAR (707/89) SMT.M.SANTHY** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS AND DEFENDANT NO. 4 :** - **------------------------------------------------------------------------------------------------------** **1. S.VENKITESWARA IYER, AGED 52 YEARS S/O. P.N.SUBRAMONI, RAJA LEKSHMI, AYYAPPANCOIL STREET VADAKKAMTHARA GRAMAM, PALAKKAD DISTRICT-678 004.** **2. RENJITH BABU, AGED 58 YEARS** - **S/O. LATE ACHUTHAN, KASTURICHAL P.O., THAZHECHOVA KANNUR-670 006.** **3. RAJU ANIKKAD, AGED 46 YEARS** - **S/O. K.J.MATHEW, KOCHIPARAMBIL, ANIKKAD WEST P.O. KOTTAYAM DISTRICT-686 503.** **...2/-** **RSA.No. 760 of 2014 () -2-** ## **4. K.V.SHAJI, AGED 49 YEARS** **S/O. VELAYUDHAN, SAMATHA PULLYAPARAMBU, CHELEMPRA (VIA) MALAPPURAM DISTRICT – 673 634** **5. BOBBY MATHEW, AGED 49 YEARS S/O. MATHUKUTTY, PALAKKAL HOUSE, ANIKKAD EAST P.O. IDUKKI DISTRICT-686 503.** **6. VICE PRESIDENT MR. VIJAYA BABU SURYA T.V., HEAVENLY PLASSA, CIVIL STATION ROAD VAZHAKKALA, KOCHI-21.** **R1 TO R3 BY ADV. SRI.SIVAN MADATHIL R4 & R5 BY ADV. P.B.KRISHNAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03-09-2014, THE COURT ON 29-09-2014 DELIVERED THE FOLLOWING:** **Mn** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 760 of 2014 - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of September, 2014 ## **JUDGMENT** A very interesting question as to the nature of jural relationship between the appellants and the respondents arises for consideration in this Second Appeal. The facts absolutely necessary for the disposal of this Second Appeal are as follows: Five persons instituted O.S. 1240 of 2010 before the Principal Munsiff's Court, Ernakulam on the allegation that they have been appointed by the first defendant Company as their employees and were working as such. Plaintiffs 1 to 3 were appointed on 1.10.1998 and plaintiffs 4 and 5 were appointed on 1.7.1999 and 1.3.2007 respectively. It is alleged in the plaint that no appointment orders were as such given to them on being appointed. After they joined the service of the Company, they were deputed to various places in the State to RSA. 760/2014. 2 work for the first defendant Company. Salary was regularly being paid by the Company and as per the plaint averments, shortly before the filing of the suit the Company stopped disbursing the amounts due to them and other benefits were withheld. The equipments provided by the Company for the work to be carried out by the plaintiffs were also taken back. Finally it resulted in the denial of employment to the plaintiffs. They, therefore, approached the Court seeking the following reliefs: “i) declare that the plaintiffs are employed in the service of the defendant and still in continuing in service and entitled to be continued in service till the plaintiffs are legally removed from service on valid and sufficient reasons under the law established. ii) pass a decree of permanent prohibitory injunction restraining the defendants their men and agents from denying employment/or terminating the employment of the plaintiffs under any guise like denial of salary and other benefits and taking back the vide camera and other equipments used by plaintiffs. 3 RSA. 760/2014. iii) pass such pother and furthers orders as this Hon'ble Court may deem fit to grant in the facts and circumstances of the case.” 2. The defendants resisted the suit. They contended that the plaintiffs did not occupy the status of employees and their services were hired for the Company and they were neither appointed nor were they paid any salary. They have been remunerated for the work done by them and in the field of news network they are known as stringers. Contending that they had no authority to claim employment under the Company and are not entitled to the reliefs sought for, they prayed for a dismissal of of the suit. 3. On the basis of the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of the first plaintiff as P.W.1 and documents marked as Exts. A1 to A30 from the side of the plaintiffs. The defendants did not adduce any evidence. On analysis of the evidence in the case, the trial court came to the conclusion RSA. 760/2014. 4 ## that the plaintiffs were employees of the first defendant Company and granted a decree which reads as follows: “1. It is hereby declared that the plaintiffs are employed in the service of the 1[st] defendant as news reporters and they are entitled to continue in the roll till they are legally terminated in accordance with law. 2. The defendants are restrained by a permanent prohibitory injunction from denying employment to the plaintiffs till they are terminated in accordance with law. 3. To comply the relief of injunction defendants are given one month time.” 4. The defendant Company carried the matter in appeal, but without success. 5. When the matter came up for hearing, since a caveat has been filed, notice was issued to the caveator and after issuing notice to others, the matter was heard elaborately. The questions of law that arise for consideration are two fold. They are; - (i) whether the plaintiffs have been successful in establishing employer -employee relationship between RSA. 760/2014. 5 them and the first defendant Company? and (ii) Are the plaintiffs entitled to the reliefs sought for? 6. Shri. M.Rajendran Nair, learned counsel appearing for the appellants contended that both the courts below have misdirected themselves on facts and in law and the relevant statutory provision would clearly show that the plaintiffs are not entitled to any relief whatsoever. It is strange to note, according to the learned counsel that certain threads from the evidence have been picked up and made applicable to all the plaintiffs equally and on the basis of such piecemeal evidence a conclusion has been drawn by both the courts below. According to the learned counsel, the first plaintiff at best could have produced documents which he was capable of proving and the production of the documents relating to the other plaintiffs, he being neither the custodian of the documents nor others would not constitute legal evidence. Even the documents are taken as proved and accepted, there 6 RSA. 760/2014. is absolutely no evidence to show that there is any employee-employer relationship as understood in law. May be that the Company provided the equipments for their work, Company may have asked them to go over to various places for work. However, the plaintiffs have no case that they received any appointment order as such nor do they mention any service conditions under which they worked. It is significant to notice that if as a matter of fact they were employees of the first defendant Company, there are statutory liabilities and that have also not been pleaded by the plaintiffs. For reasons best known to the plaintiffs, learned counsel contended that they did not choose to call for the records from the Company which would establish that they are employees. Merely because words like salary and appointment have been used, that will not clothe the plaintiffs with the status as employees of the Company as understood in law and it is clear from evidence that they had only a contract for RSA. 760/2014. 7 service with the Company. Reliance placed on various documents by the courts below to come to the conclusion that the plaintiffs are identically placed and they are all employees of the Company are contrary to the provisions of law and also evidence on record. It is not sufficient for the plaintiffs to simply allege that they are employees but they should adduce cogent and convincing evidence to prove that they are employed by the first defendant Company. Learned counsel then went on to contend that if as a matter of fact it is found that the plaintiffs are employees of the Company, in the nature of the reliefs sought for in the plaint it is claimed that it is in the form of an industrial dispute and if that be so, by the provisions of the Industrial Disputes Act a civil suit is barred. It is not one of those cases which, according to the learned counsel, falls within the general rule that jurisdiction of the civil court is not specifically ousted by the Industrial Disputes Act. Accordingly, it is contended that both the courts RSA. 760/2014. 8 below have grossly erred in law and on facts. 7. Adv. Sivan Madathil, learned counsel appearing on behalf of respondents 1 to 3 very vehemently contended that there is nothing wrong in the judgment passed by the courts below and they are only to be sustained. If as a matter of fact the defendants had a case that the plaintiffs are not their employees, one would have expected them to adduce some evidence in that regard. It was emphasized that as many as 25 documents had been produced along with the plaint and none of them have been disputed. It contains the appointment order in respect of one of the plaintiffs and also the salary drawn in respect of another plaintiff. Various accreditation cards issued to the plaintiffs will clinchingly show that they are in the service of the first defendant Company and they obtained their privileges and rights for participating in various functions only because of their association with the first defendant Company. The first RSA. 760/2014. 9 defendant Company also acknowledges that fact. According to the learned counsel, when the Company has simply denied salary to the plaintiffs and also denied them employment without even following the principles of natural justice, civil suit is maintainable. The common law right which the plaintiffs enjoy still exist and even if it is accepted that Industrial Disputes Forum provides remedy and redressal for such employees, it could not be said that the provisions of the said Act excludes the jurisdiction of the civil court. For the said proposition, learned counsel relied on the decision reported in Rajasthan State Road Transport Corporation v. Mohar Singh ((2008) 5 SCC 542). Attention was also drawn to the fact that the defendants have not adduced any evidence to controvert the evidence produced by the plaintiffs and so adverse inference has to be drawn against them. It is also contended that no grounds are made out to interfere with the judgment and decree of the lower appellate court. RSA. 760/2014. 10 8. Shri. P.B.Krishnan, learned counsel appearing for respondents 4 and 5 chose to adopt a safer course and stayed away from some of the reliefs sought for in the plaint. Recalling the potential danger that may arise, he did press for those reliefs. Learned counsel very wisely confined himself to certain aspects and emphasized that his clients are interested in getting declaration regarding the jural status of the plaintiffs and first defendant Company so that they could work out their remedies in the proper forum. Learned counsel too emphasized that the lack of evidence from the side of the defendants would go in favour of the plaintiffs. According to the learned counsel, the words used in some of the communications, i.e., appointment and salary, cannot be simply ignored and it will be presumed that the Company used those words consciously. Learned counsel also contended that the objection now taken as to the admissibility of certain RSA. 760/2014. 11 documents comes too late as there is nothing to show that during the proceedings before the trial court any objection to the marking of the documents or examination of those documents was raised and if that be so, the objection cannot be preferred at a later stage. According to the learned counsel, it cannot be as if there is no legal relationship between the plaintiffs and defendants. At any rate, it is clear that they were infact engaged to do work of the Company and it is therefore necessary to determine as to what exactly is their status. According to the learned counsel, the findings of the courts below that there was employee - employer relationship between the plaintiffs and defendants can be accepted in view of the evidence available on record. 9. Much was contended regarding the maintainability of the suit. While the appellants contended that the provisions of the Industrial Disputes Act specifically exclude the jurisdiction of the civil court, counsel for the RSA. 760/2014. 12 respondents relying on the decision reported in Rajasthan State Road Transport Corporation v. Mohar Singh ((2008) 5 SCC 542) contended that lack of jurisdiction of the civil court cannot be readily inferred and if there are two views possible, one in favour of the civil court having jurisdiction to try the matter should be preferred. 10. The issue regarding the jurisdiction of the civil court in such cases has been a matter of considerable debate. Section 9 of the Code of Civil Procedure reads as follows: “9. Courts to try all civil suits unless barred.- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. [Explanation I]A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. [Explanation II.- For the purposes of this section, it is immaterial whether or not any fees are attached to the RSA. 760/2014. 13 office referred to in Explanation I or whether or not such office is attached to a particular place.” Going by the said provision, i) the suit must be of a civil nature, and ii) cognizance of such suit must not be expressly or impliedly barred. The civil court is presumed to have jurisdiction in matters involving determination of civil rights. The word civil according to Law Lexicon by P. Ramanatha Aiyar indicates private rights and remedies of men as members of the community as distinguished from criminal and political rights. Nature has been defined as fundamental quality of a person or thing. 11. By jurisdiction what is meant is the authority conferred on a body to judicially determine matters before it. In other words the power to hear and determine a cause, adjudicate and exercise any judicial power in relation to the said matter is called the jurisdiction of the court. The jurisdiction of the civil court may be restricted in several ways. It may be pecuniary, territorial or subject matter. There is an RSA. 760/2014. 14 ocean of difference between lack of inherent jurisdiction and irregular exercise of jurisdiction. Once it is found that the court has jurisdiction to decide the matter, the decision rendered may be right or wrong. If it is wrong, the aggrieved person has to prefer such remedies as are available to him under law. However, if it is a case of lack of inherent jurisdiction, the decision rendered is a total nullity and it confers no right on any person and it can even set up in collateral proceedings. 12. The jurisdiction of the civil court may be expressly or impliedly barred. The legislature may stipulate that certain classes of disputes shall not be taken cognizance of by the civil court. When a particular statute provides for a particular remedy in a particular form in a particular forum, that remedy will have to be sought in that forum and any mode of getting relief from the civil court is barred. RSA. 760/2014. 15 ## 13. In Code of Civil Procedure by C.K. Thakker Vol. ## 1 at page 78 the author mentions as follows: “There are three classes of cases in which a liability may be established by statute. There is that call where there is a liability existing at common law, and which is only re-enacted by the statute with a special form of remedy; there, unless the statute contains words necessarily excluding the common law remedy, the plaintiff has his election of proceedings either under the statute or at common law. There there is a second class, which consists of those cases in which a statute has created a liability, but has given no special remedy for it; there the party may adopt an action of debt or other remedy at common law to enforce it. The third class is where the statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it..... “with respect to that class it has always been held that the party must adopt the form of remedy given by the statute”. Again at page 90 after referring to the various decisions, the learned author mentions as follows: “(1) Where the dispute arises from general law of contract, i.e., where reliefs are claimed on the basis of RSA. 760/2014. 16 the general law of contract, a suit filed in civil court cannot be said to be not maintainable, even though such a dispute may also constitute an “industrial dispute” within the meaning or Section 2(k) of Section 2-A of the Industrial Disputes Act, 1947. (2) Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the said Act. (3) Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial Employment (Standing Orders) Act, 1946-which can be called “sister enactments” to Industrial Disputes Act- and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute industrial disputes within the meaning of Section 2(k) and Section 2-A of Industrial Disputes Act or where such enactment says that such dispute shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to civil right is open. RSA. 760/2014. 17 (4) It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate Government. The power to make a reference conferred upon the Government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie. The power conferred is the power to refer and not the power to decide, though it may be that the Government is entitled to examine whether the dispute is ex facie frivolous, not meriting an adjudication. (5) Consistent with the policy of law aforesaid, we commend to Parliament and the State Legislatures to make a provision enabling a workman to approach the Labour Court/Industrial Tribunal directly- i.e., without the requirement of a reference by the Government-in case of industrial disputes covered by Section 2-A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act. (6) The certified Standing Orders framed under and in accordance with the Industrial Employment (Standing RSA. 760/2014. 18 Orders) Act, 1956 are statutorily imposed conditions of service and are binding both upon the employers and employees, though t\hey do not amount to “statutory provisions”. Any violation of these Standing Orders entitles an employee to appropriate relief either before the forums created by the Industrial Disputes Act or the Civil Court where recourse to Civil Court is open according to the principles indicated herein. (7) The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute-resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and appeals upon and revisions applicable to civil courts. Indeed, the powers of the courts and tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute.” The learned author at page 94 also mentions as follows: “(1) A civil court has jurisdiction to try all suits of a civil nature unless their cognizance is barred either expressly or impliedly. RSA. 760/2014. 19 (2) Consent can neither confer nor take away jurisdiction of a court. (3) A decree passed by a court without jurisdiction is nullity and the validity thereof can be challenged at any stage of the proceedings, in execution proceedings or even in collateral proceedings. (4) There is a distinction between want of jurisdiction and irregular exercise thereof. (5) Every court has inherent power to decide the question of its own jurisdiction. (6) Jurisdiction of a court depends upon the averments made in the plaint and not upon the defendant in the written statement. (7) For deciding jurisdiction of a court, substance of the matter and not the form is important. (8) Every presumption should be made in favour of jurisdiction of a civil court. (9) A statute ousting jurisdiction of a court must be strictly construed. (10) Burden of proof of exclusion of jurisdiction of a court is on the party who asserts it. (11) Even where jurisdiction of a civil court is barred, it can still decide whether the provisions of the Act have been complied with or whether the order was passed de hors the provisions of law.” RSA. 760/2014. 20 14. Both the courts below have relied on the decision reported in Rajasthan State Road Transport Corporation v. Mohar Singh ((2008) 5 SCC 542) that was a case where the person was an employee of Rajashtan State Road Transport Corporation and disciplinary proceedings were initiated against him. On finding him guilty of the charges levelled against him by the enquiry officer, his services were sought to be terminated. It was that order that was challenged in the suit. It was contended that the suit is not maintainable since the only remedy available for the person concerned was to approach the authority concerned under the Industrial Disputes Act. Overruling the objection, the Apex Court after referring to various decisions especially the one in Premier Automobiles Ltd. v. Kamlekar Shataram Wadke ((1976) 1 SCC 496) held as follows: “29. The decisions referred to herein before clearly brings about a distinction which cannot be lost RSA. 760/2014. 21 sight of. If a right is claimed under the Industrial Disputes Act or the sister law, the jurisdiction of the civil court would be barred, but if no such right is claimed, civil court will have jurisdiction. 30. The appellant is “State” within the meaning of Article 12 of the Constitution of India. It is created under a statute. As State, it is bound to comply with the requirements of Article 14 of the Constitution of India as also other provisions of Part III of the Constitution. It is also bound to comply with the mandatory provisions of the statute or the regulations framed under it. 31. It is also bound to follow the principles of natural justice. In the event it is found that the action on the part of State is violative of the constitutional provisions or the mandatory requirements of a statute or statutory rules, the civil court would have the jurisdiction to direct reinstatement with full back wages.” 15. In the decision reported in Abdul Gafur v. State of Uttarakhand ((2008) 10 SCC 97) it was held as follows: “16. Section 9 of the Code provides that civil court shall have jurisdiction to try all suits of a civil nature excepting the suits of which their cognizance is either expressly or impliedly barred. To put it differently, as per Section 9 of the Code, in all types of civil disputes, RSA. 760/2014. 22 civil courts have inherent jurisdiction unless a part of that jurisdiction is carved out from such jurisdiction, expressly or by necessary implication by any statutory provision and conferred on other Tribunal or Authority. Thus, the law confers on every person an inherent right to bring a suit of civil nature of one's choice, at one's peril, howsoever frivolous the claim may be, unless it is barred by a statute.” 16. In the decision reported in Rajasthan State Road Transport Corporation v. Mohar Singh (AIR 2008 SC 2553) it was held that the civil court's jurisdiction is limited, it was observed as follows: “11. Civil Court may have a limited jurisdiction in service matters but it cannot be said to have no jurisdiction at all to entertain a suit. It may not be entitled to sit in appeal over the order passed in the disciplinary proceedings or on the quantum of punishment imposed. It may not in a given case direct reinstatement in service having regard to Section 14(1) (b) of the Specific Relief Act, 1963 but, it is a trite law that where the right is claimed by the plaintiff in terms of common law or under a statute other than the one which created a new right for the first time and when a RSA. 760/2014. 23 forum has also been created for enforcing the said right, the Civil Court shall also have jurisdiction to entertain a suit where the plaintiff claim benefit of a fundamental right as adumbrated under Article 14 of the Constitution of India or mandatory provisions of statute or statutory rules governing the terms and conditions of service. .......... .......... 20. The decisions referred to hereinbefore clearly brings about a distinction which cannot be lost sight of. If a right is claimed under the Industrial Disputes Act or the sister laws, the jurisdiction of the Civil Court would be barred, but if no such right is claimed, civil court will have jurisdiction.” 17. It is by now well settled that in matters where the remedy or the right already existed in common law, and such right or remedy is recognized by a statute which provides for the redressal of the grievances, unless such a statute specifically bars the jurisdiction of the civil court, the civil court still retains rights to decide the issue. 18. Adv. Sivan Madathil pointed out that the hire and fire policy no longer exists. The plaintiffs are clothed RSA. 760/2014. 24 with rights to continue in employment. If their services are to be terminated, the minimum that is required to follow the principles of natural justice. Here no procedure was followed and the Company simply took back the equipments from them and stopped paying salary which was due to them. Even assuming that the remedy is available under the Industrial Disputes act also, it does not mean that the plaintiffs cannot approach the civil court. As far as this case is concerned, according to the learned counsel, common law right already existed and there is no specific bar of jurisdiction of the civil court under the Industrial Disputes Act in this regard. 19. Going by the averments in the plaint, a good portion of the plaint is set apart for the grievance of denial of salary and in fact there is only a passing reference to the cessation of employment of the plaintiffs. But in the relief portion, prominence was given for continuance of service. RSA. 760/2014. 25 20. The question as to what are the rights available to the plaintiffs would depend upon the nature of relationship between the plaintiffs and defendants. It must be borne in mind that even if it is found that there is a contract of employment between the plaintiffs and defendants, if the grievance of the plaintiffs are that their services were illegally terminated, it is extremely doubtful whether a specific contract of employment can be enforced in view of Section 14B of the Specific Relief Act. As far as the monetary claim is concerned, that may also create doubt as per Section 33(c)(2) of the Industrial Disputes Act. But that needs to be gone into only after determining the relationship between the plaintiffs and defendants. Respective stand of the parties have already been referred to. The defendants had specifically denied that the plaintiffs were their employees. According to them, their services were hired for doing certain particular type of work for which they were remunerated and they were not the RSA. 760/2014. 26 regular employees of the Company. The courts below relied on certain documents to come to the conclusion that there was an employer - employee relationship between the parties. 21. It is significant to notice that in the plaint it is admitted that no appointment orders were received by the plaintiffs. It may be recalled here that plaintiffs 1 to 3 had been employed from 1977 onwards and plaintiffs 4 and 5 from 2006 onwards. It is true that the plaintiffs averred that they were paid regular salary by the Company and infact certain documents have also been produced in that regard. Now each of the documents produced can be considered. The most important document which seems to have been impressed the courts below to reach the conclusion seems to the Ext.A25. One may have a look at Ext.A25. That is a document which the plaintiffs claimed was issued to the fifth plaintiff. It reads as follows: “This is to state that you are appointed as a News Reporter for Surya TV with effect from today i.e July, RSA. 760/2014. 27 2001. You will be paid a consolidated salary of Rs.5,500/- (Rupees Five Thousand and five hundred only) per month. You will be posted at Peerumedu to do reporting on behalf of Surya TV at Idukki District. You will be entitled to cover press conference, Govt. functions and any other happening related to News on behalf of Surya TV. Hope you will disperse your duty as per the rules and regulations laid by the company.” 22. Adv. M. Rajendran Nair, learned counsel appearing for the appellants, contended that the said document can serve no purpose as far as the other plaintiffs are concerned. Apart from the fact that the defendants have disputed the authenticity of the document, it is pointed out by the learned counsel that the so-called letter of appointment given to the fifth plaintiff is dated 1.7.2001. Even according to the learned counsel, the fifth plaintiff joined service only after 2007 so that the genuineness of Ext.A25 is in serious doubt. RSA. 760/2014. 28 23. There seems to be considerable force in the above submission. One cannot omit to note that there is a specific averment in the plaint as well as in the evidence of P.W.1 that no appointment orders were issued by the Company. It is also the case of the plaintiff that even though they made repeated demands, no appointment orders were given to them. As rightly pointed out by the learned counsel for appellants, going by the plaint averments as well as the evidence of P.W.1, the fifth plaintiff joined the service of the company only in 2007. One fails to understand how a person who jointed service in 2007 could get a communication in the nature of Ext.A25 on 1.7.2001 regarding his appointment. This aspect of the matter has been lost sight of by the courts below and that of course seems to be a fatal error made by the courts below. 24. Before going further, one aspect may be noticed. As far as the first plaintiff is concerned, the relevant RSA. 760/2014. 29 documents are Exts.A1 to A11. As far as the second plaintiff is concerned, the relevant documents are Exts. A12 to 16. As far as the third plaintiff is concerned, the relevant documents are Exts. A17 to A21. As far as the fourth plaintiff is concerned, the relevant documents are Exts. A22 to A24 and as far as the sixth plaintiff is concerned, the documents are Exts. A25 to A29. 25. Ext.A1 is claimed to be the communication received by the first plaintiff which shows that he was being paid various amounts as remuneration from June to October, 2007. It is significant to notice that the word used is remuneration and what was being paid was a consolidated amount. Except showing that the first plaintiff had received amounts from the first defendant, this document cannot help the plaintiffs much. Ext.A2 is the communication sent by the first plaintiff to the authorities concerned informing about the non-consideration of the bills sent by the plaintiffs. It has RSA. 760/2014. 30 come out from the evidence of P.W.1 that the necessary staff for the work he does are hired by him and the Company does not provide any financial help in that regard. Ext.A3 is only a communication showing the amounts paid under the various heads to the first plaintiff. Ext.A4 is an identical document. Ext.A5 is claimed to be the statement of a Bank account maintained by the first plaintiff which shows a regular credit of Rs.14,000/- and odd. This is highlighted by the learned counsel appearing for the respondents to show that the claim of the plaintiffs is true. Going by Ext.A5 it is seen that about Rs.15,000/- was being paid regularly. But one may remember here that there is no mention in the plaint regarding the pay scale enjoyed by the plaintiffs. One fails to understand whether it can help the plaintiffs at all. Even assuming that those amounts were paid, it cannot automatically lead to the conclusion that the first plaintiff is an employee of the first defendant Company. The defendants have put forward a RSA. 760/2014. 31 contention that these plaintiffs are being paid depending upon the quantum of work done by them. Ext.A6 is a gate pass issued to the first plaintiff and so Ext.A7 is a letter calling upon the plaintiffs to comply with certain directions issued by the Managing Director of the Company. Ext.A9 is a letter addressed to the Secretary of Kerala Union of Working Journalists to change the membership of the first plaintiff who is shown as a representative of Surya T.V. Ext.A11 is issued by the Election Commission showing the first plaintiff as a reporter of the Surya T.V. Ext.A12 only shows that one of the plaintiffs is engaged as News Reporter of the first defendant Company. Ext.A13 seems to have considerably influenced the courts below. That is a communication issued to the Secretary, K.U.W.J., Press Club pointing out that the application of Shri.Renjith Babu, the second plaintiff, may be considered for membership of Kerala Union of Working Journalists. It is true that in the said communication it is also mentioned that 32 RSA. 760/2014. he is working as a Staff Reporter and his basic pay is Rs.4,150/-. Ext.A14 is a communication issued to the second plaintiff whereby he was informed that a Demand Draft for Rs.13,195/- is being paid to him. It is here at once be noticed that Ext.A13 which relates to the second plaintiff mentions his salary only as Rs.4,150/-. But the amount shown in Ext.A14 is Rs.13,195/- for the month of September, 2006. By Ext.A14 the second plaintiff is also called upon to produce the relevant bills. Ext.A15 is a letter issued to the second plaintiff calling upon him to submit the details to complete his biodata. Ext.A16 is a card issued from the Election Commission of India acknowledging the person concerned as a reporter of the Surya T.V. 26. Considerable reliance is placed by the court below on Ext.A17. In Ext.A17 it is mentioned that the third plaintiff has a basic salary of Rs.5000/-, H.R.A. Rs.1000/- and D.A. Rs.1500/-. The word used is salary. Ext.A18 is the RSA. 760/2014. 33 details of the remuneration paid for the month of December, 2006. In that the word used is remuneration and not salary. Ext.A19 is similar to Ext. A7. Ext.A20 is the pass issued to the third plaintiff. Ext.A21 is also a pass issued to the third plaintiff. 27. Ext.A22 was issued to the fourth plaintiff and it mentions about the care to be taken with the equipments to be supplied to him and Ext.A24 is the Election Commissioners card showing that the fourth plaintiff is a Reporter of Surya T.V. Ext.A26 is a D.D. For a sum of Rs.12,771/- being the news reporting professional fee for the month of November, 2006 given to the fifth plaintiff. 28. As already noticed, the lower courts seem to have been considerably influenced by Ext.A25, A17, A13. Relying on certain words used therein jump to the conclusion that there is an employee-employer relationship between the plaintiffs and the first defendant Company. It must be borne 34 RSA. 760/2014. in mind that they do not fall under the category of public servants nor do they have a case that their conditions of service are governed by any statutory provisions. They have stated that their services are being utilized by the Company and they also stated that no appointment orders were given to them. 29. It is true that P.W.1 in his chief affidavit almost reproduced the plaint. In cross-examination, he admitted that no appointment order was ever given to him. He would say that whenever he demanded the same, he was informed that it had to come from Chennai. 30. It must be noticed here that the first plaintiff claims to have joined the service of the Company in 1998. It is difficult to believe that till 2010 when the suit was laid, he did not bother to get the order of appointment and that he was willing to take the excuse given by the first defendant that it had to come from Chennai and that he will be given RSA. 760/2014. 35 appointment order later. P.W.1 has also admitted that he has no personal knowledge about the other documents obtained by the other plaintiffs. He admitted that there was no definite date for payment of his salary. 31. It is surprising to note that the plaintiffs who claim that they are employees of the Company did not call for any of the records from the Company to establish their case. 32. Much was argued about the absence of any evidence adduced by the defendants. The burden to prove that the plaintiffs are employees lies on them. Only when that fact is established, the burden shifts to the defendants. If as a matter of fact the plaintiffs are the employees of the Company, there would certainly have been documents with the first defendant to show that fact. More over, statutory liabilities also arises for the Company if these plaintiffs are the employees of the said Company. RSA. 760/2014. 36 33. Adv. P.B.Krishnan, learned counsel appearing for respondents 4 and 5, contended that there is some materials to show that the plaintiffs were in the service of the Company. If that be so, it is for the Company to show as to what exactly was the nature of relationship. Having not adduced any evidence in that regard, the claim of the plaintiffs that they are employees must be accepted. 34. It is difficult to accept the above argument advanced by the learned counsel for respondents 4 and 5. One may recall here that no contract regarding the terms and conditions of service is pleaded or claimed by the plaintiffs. It is extremely difficult to believe that the plaintiffs would have worked for so long without getting an appointment order. As regards Ext.A25 is concerned, obviously it is doubtful in the light of the fact that the fifth plaintiff joined duty only in 2007 even going by the averments in the plaint. Ext.A25 is of prior date. As rightly pointed out by the learned counsel for the RSA. 760/2014. 37 appellants, stray uses of words like salary and appointment in some of the communications by the Company cannot be conclusive regarding the legal status of the plaintiffs vis a vis the Company. 35. The evidence in this case is limited. There was no attempt from the side of the plaintiffs to get any document produced by the Company to show that they are the employees of the Company. Salary certificate produced in respect of one of the plaintiffs does not tally with the actual remuneration paid to him which is evident from other documents. Except the words like salary, appointment, there is nothing to show that there was an employer - employee relationship between the parties. 36. It is true that P.W.1 has stated that the equipments were infact provided by the Company. But there is no averment in the plaint that they used to regularly attend the office and signed in the attendance register. If they were RSA. 760/2014. 38 paid salary every month as claimed by them, certainly the Company must have records in that regard. The plaint is totally silent regarding the conditions of service. So also the evidence of P.W.1. In the absence of anything to show the details of the contract or service conditions or rules based on which the plaintiffs worked in the first defendant Company, it is not possible to conclude that they are employees of the Company. 37. The reluctance on the part of the plaintiffs to call for records like muster roll, salary records etc., shows that they are not sure of their status. Further it is an admitted fact that if for the work they are engaged, additional staff is required, it is for the plaintiff to personally engage them and the first defendant will have no obligation to pay them. Normally if the plaintiffs were employees, it is inconceivable that they should pay from their pocket to engage staff for doing work for the first defendant. The documents produced RSA. 760/2014. 39 have been discussed. As mentioned above there is no mention of service conditions or any contract of employment, it is not possible to accept the case put forward by the plaintiffs. 38. Normally the test laid down to ascertain whether there was an employer-employee relationship between the parties as per Chitty on Contracts Vol.II, 29[th] Edition at page 943 Note No.39-010 is as follows: “(1) the degree of control exercised by the employer; (2) whether the worker's interest in the relationship involved any prospect of profit or risk of loss; (3) whether the worker was properly regarded as part of the employer's organization; (4) whether the worker was carrying on business on his own account or carrying on the business of the employer; - (5) the provision of equipment; (6) the incidence of tax and national insurance; - (7) the parties' own view of their relationship; - (8) the traditional structure of the trade or profession concerned and the arrangements within it.” RSA. 760/2014. 40 If that test is to be applied in the case on hand, there is nothing to show that the plaintiffs qualified to be construed as employees. 39. Coming back to the plaint, there is nothing in the plaint to show that the plaintiffs regularly attended the office of the first defendant and had to act under the direction and supervision of the Company. They have no case that their work was being regulated by officials of the first defendant and they had to act as per the dictates of officials of the first defendant. 40. These vital aspects have been omitted to be noticed by the courts below. 41. In the light of the fact that this Court is unable to accept the finding of the court below that there was an employer - employee relationship between the first defendant and the plaintiffs, the second issue raised by this Court need not be gone into. RSA. 760/2014. 41 For the above reasons, this appeal is allowed and the judgments and decrees of the courts below are set aside and the suit shall stand dismissed. However, there will be no order as to costs. P. BHAVADASAN, JUDGE sb.