The Delhi High Court recently ruled that mere emails and Form 16A will not qualify to prove the existence of an employer-employee relationship, dismissing a plea filed by a German-speaking guide against a travel agency challenging the termination of his “employment”.
The guide had challenged an award of the Labour Court made in favour of the agency, that it was passed without “appreciating evidence” placed by him.
Observing that the impugned award is well reasoned and passed after considering evidence placed on record, Justice Dinesh Kumar Sharma held that 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 showed a “mere correspondence” and Form 16A reflects that tax deducted at source (TDS) was deducted by the agency in respect of payments made to the petitioner under the “head of payments made to contractors and sub-contractors‟. Dismissing the writ petition, the court held that the petitioner did not fall under the definition of workman under the Industrial Disputes Act, as claimed by him.
The high court was hearing a plea filed by an ‘approved part-time foreign language linguist guide’ who started working with a travel agency in 2011 and was not issued an appointment letter. The petitioner alleged that the travel agency illegally and arbitrarily terminated his service in 2014 flouting the provisions of the Industrial Dispute Act, 1947, and without following due process of law.
The petitioner moved the labour court, wherein the agency denied the existence of an employer-employee relationship between the petitioner and the management of the agency. The labour court in 2018 issued an award in favour of the agency holding that the petitioner failed to establish the existence of an employer-employee relationship and therefore the question of illegal or unjustifiable termination did not arise.
The petitioner moved the high court alleging that the labour court in its impugned award did not consider the “evidence placed on record” by the petitioner which includes emails between him and the agency; termination email sent by management of the agency which shows employer-employee relationship; Form 16A which shows payments made for services hired and rendered by petitioner as a “part-time German tourist guide” among others.
The court ruled that the petitioner did not receive a regular amount as salary unlike other employees of the agency; the petitioner was paid on an assignment basis. The court observed that the document titled work experience of the petitioner shows that he was working as a freelancer. “Freelance as per the term itself implies a person who acts independently without being affiliated with or authorized by an organization and is distinguishable from part-time, full-time or contractual employees. Freelancing thus enables a person to work for himself and multiple other employees and enables unfettered submission of work to many potential buyers,” the court observed.
Holding that the petitioner was a freelancer, the high court observed that there is “no master-servant relationship, as the servant is his own master and can pick and choose his assignments, the duration of such assignments and is enabled to work for himself as well as other multiple employers”. The high court agreed with the labour court’s observation that the petitioner cannot be construed as a part-time employee either as he had failed to establish the employer-employee relationship and refused to interfere with its findings.
