JUDGMENT : R.P. SONDURBALDOTA, J. 1. Rule. Rule made returnable forthwith. By consent of the parties, the petition is taken on board for final hearing. Heard the learned counsel. The petitioner-company challenges the order dated 25th June, 2003, by which the Labour Court, Pune partly allowed the Reference and directed reinstatement of the respondent as a Driver with continuity of service. The Labour Court, however, rejected the claim of the respondent for backwages. 2. The factual matrix of the case is that the petitioner is an Engineering Company, registered under the Companies Act, 1956, engaged in the business of manufacturing of Rickshaws. One Mr. Umesh Vajir was working as Director Manufacturing of the Petitioner-Company. The respondent was working with him as a "Driver" on his vehicle. Mr. Vazir left the employment of the Company w.e.f. 25th July, 2000. With the exit of Mr. Vazir, the respondent also ceased to work on the vehicles of the company from 25th July, 2000. Four years thereafter, i.e. in the year 2004, the respondent raised an industrial dispute contending that his services has been illegally terminated by the company and seeking reinstatement with backwages. The petitioner disputed his claim contending that the respondent was never recruited by the petitioner and hence there was no question of his reinstatement. On failure of the settlement, the dispute was referred to the 3rd Labour Court, Pune for adjudication. On 16th February, 2004, the respondent filed statement of claim. The petitioner filed its written statement dated 4th March, 2005. The evidence recorded before the Labour Court consisted of the deposition of the respondent, the documents produced by him and the deposition of the company's, witness i.e. Manager (Administration). 3. In its written statement, the petitioner denied that it had recruited the respondent. Since the respondent was not recruited, there was no question of his termination. The petitioner claimed that it had neither issued any appointment letter nor a muster card to him. The facts of non issuance of an appointment letter and muster card are not denied by the respondent. 4. In view of the rival contentions, the Labour Court was required to first appreciate the jurisdictional fact of existence of employer and employee relationship between the petitioner and the respondent. The facts of non issuance of an appointment letter and muster card are not denied by the respondent. 4. In view of the rival contentions, the Labour Court was required to first appreciate the jurisdictional fact of existence of employer and employee relationship between the petitioner and the respondent. The primary incidents of employment would be the appointment in service, payment of salary, the superintendence or supervision over the work done by the employee and his termination. The existence of these facts alone would establish the employment. 5. The evidence of the respondent on the fact of appointment is short and cryptic. He stated "I was not issued any appointment letter by the first party, but I was interviewed orally. And accordingly the First Party appointed me in service." The respondent does not mention either in the statement of claim or in his evidence any details of factual details of his appointment. It is not known as to how the respondent reached the petitioner for the purpose of service as a driver. He does not state as to who from the petitioner-company had interviewed him and who had appointed him as the driver. The evidence of the respondent as regards the payment and salary is an admission that there is no pay-slips given to him at any point of time. He states that his monthly salary was of Rs. 6,000/- but does not state as to who paid the salary to him. As regards the assignments of work, superintendence and supervision over his work, the respondent admits that he was not issued any attendance card and/or any identity card. His name was also not included in the muster roll. He, however relied upon and produced the gate-pass issued to him by the company for entering into the company premises and leaving the same with a company vehicle. The gate-pass, by itself cannot be an incident of service. There is no dispute that the respondent was working with Mr. Vazir as a driver on the vehicle, made available to Mr. Vazir by the petitioner. The respondent has given numbers of three vehicles driven by him during the period of six years. The gate-pass, by itself cannot be an incident of service. There is no dispute that the respondent was working with Mr. Vazir as a driver on the vehicle, made available to Mr. Vazir by the petitioner. The respondent has given numbers of three vehicles driven by him during the period of six years. Though, he claimed at paragraph 3 of his examination-in-chief that "during my service, many officers and General Managers have come and gone I remained in service as the company's employee and continued to drive the company's said vehicles." He has not disclosed the names of other officers whom he had served during the period of six years as a driver, employed by the company. The other claim of the respondent was that during his illness, the Company's Doctor, Dr. Shah had given him treatment. He has produced documents relating to the treatment given by the Doctor to him. That can hardly be said to be an incident of service. If on humanitarian considerations any medical facility was made available to the respondent, the same cannot be a circumstance establishing relationship of employer and the employee between the respondent and the petitioner. The Labour Court was apparently been impressed by the facts that the respondent has worked for six years on the vehicles belonging to the company and that he was provided with medical facility available in the company. The third circumstance which has apparently weighed with the Labour Court is of issuance of a gate-pass to the respondent for taking the vehicles of the company out of the company premises. As already seen above, issuance of gate-pass cannot be an incident of service. Thus, there is no evidence produced by the respondent of his employment with the petitioner. The impugned order therefore cannot be sustained. Hence, the petition is allowed in terms of prayer clause (A).