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Ramkrishna Ramnath Bidi Manufacturers Vs. State Industrial Court, Nagpur - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 405 of 1958
Judge
Reported in(1959)61BOMLR1312; (1959)IILLJ746Bom
ActsIndustrial Disputes Act, 1947 - Sections 2
AppellantRamkrishna Ramnath Bidi Manufacturers
RespondentState Industrial Court, Nagpur
Excerpt:
.....ltd. v. roulson [1954] 2 all e.r. 448, referred to. - - secondly, he complained that the labour commissioner and the state industrial court have misunderstood the meaning and scope of the definition of 'employee' as contained in s. he complained that the labour commissioner has attached a sort of presumptive value to the entry in the attendance register and not considered other evidence led in the case with a view to find out whether, as a matter of fact, respondent 3 was in service of the petitioner or not. phadke complained that the labour commissioner has failed to record a finding on the second issue. it is true that he has not written a well-reasoned judgment in support of his finding. the admission of the manager coupled with the circumstances that the name of the..........kawdoo made an application to the additional district magistrate who was empowered to act as labour commissioner, complaining that he was wrongfully dismissed from service by the petitioner. according to him, he was dismissed from service with effect from 19 july, 1956. the application was made under s. 16 of the central provinces and berar industrial disputes settlement act. the petitioner contended that respondent 3 was not an employee in the factory, that he was working under one shamrao mahadeo and that there was no privity of contract between the petitioner and respondent 3. he further stated that he was prepared to re-employ respondent 3 provided the latter renounced his claim for back wages and also if he was agreeable to work under shamrao mahadeo. the labour commissioner.....
Judgment:

Naik, J.

1. This is a petition under Arts. 226 and 227 of the Constitution of India for a writ of certiorari to quash the orders passed by the Additional District Magistrate and the State Industrial Court on 29 April 1958 and 8 October 1958, respectively.

2. The circumstances leading to this petition stated are as follows. Respondent 3 Shamrao Kawdoo made an application to the Additional District Magistrate who was empowered to act as Labour Commissioner, complaining that he was wrongfully dismissed from service by the petitioner. According to him, he was dismissed from service with effect from 19 July, 1956. The application was made under S. 16 of the Central Provinces and Berar Industrial Disputes Settlement Act. The petitioner contended that respondent 3 was not an employee in the factory, that he was working under one Shamrao Mahadeo and that there was no privity of contract between the petitioner and respondent 3. He further stated that he was prepared to re-employ respondent 3 provided the latter renounced his claim for back wages and also if he was agreeable to work under Shamrao Mahadeo. The Labour Commissioner came to the conclusion that respondent 3 was an employee of the petitioner and consequently directed him to reinstate respondent 3 and also to pay him back wages. The petitioner went up in revision to the State Industrial Court. The State Industrial Court upheld the decision of the Labour Commissioner. That is why the petitioner has come to this Court under Arts. 226 and 227 of the Constitution for quashing the orders of the two industrial courts.

3. In the petition it was contended that the appointment of the Additional District Magistrate under S. 16(2) of the Central Provinces and Berar Industrial Disputes Settlement Act as Labour Commissioner was not valid inasmuch as the name of the person was not mentioned in this order. Mr. Phadke for the petitioner, however, did not press this objection before us. It was also contended in the petition that, as a matter of fact, respondent 3 was not dismissed from service, that he himself deliberately remained absent from 19 July, 1956 to 31 July, 1956, and that is why his name was removed from the attendance register. The Labour Commissioner, however, recorded a finding that respondent 3 was discharged from service and this finding was upheld by the State Industrial Court. Mr. Phadke conceded that it will not be open to him to challenge this finding before this Court in its jurisdiction under Art. 226 of the Constitution. Mr. Phadke, therefore, confined his attention to two points as follows. The Labour Commissioner has not recorded any finding as to whether respondent 3 was actually in the employment of the petitioner. This was a question of fact, and it was the duty of the Labour Commissioner as a fact-finding Court to record a clear finding on that question. Secondly, he complained that the Labour Commissioner and the State Industrial Court have misunderstood the meaning and scope of the definition of 'employee' as contained in S. 2(10) of the Act.

4. It is not in dispute that the name of respondent 3 was entered in the attendance register of the factory. It was the specific case for the petitioner that his name was taken off the register because of his continuous absence from duty for more than two weeks. Presumably, the attendance was maintained under the provisions of the Factories Act. No explanation has been offered on behalf of the petitioner as to why respondent 3's name was entered in the register. It is contended for the petitioner that respondent 3 was working under one Shamrao Mahadeo who was a relaiwala and that there was no privity of contract between respondent 3 and the petitioner. It was further suggested that respondent 3 was receiving his wages through Shamrao Mahadeo. If that be the correct position, then it is difficult to understand why the petitioner should think of enrolling the name of respondent 3 in the attendance register.

5. In this background let us turn to consider the argument addressed by Mr. Phadke on behalf of the petitioner. He complained that the Labour Commissioner has attached a sort of presumptive value to the entry in the attendance register and not considered other evidence led in the case with a view to find out whether, as a matter of fact, respondent 3 was in service of the petitioner or not. It is mainly on this ground that Mr. Phadke suggested that, as a matter of fact, there was no finding on the essential question of fact recorded by Labour Commissioner. There is no substance in this line of reasoning. It is true that the Labour Commissioner has attached considerable importance to the entry of respondent 3's name in the attendance register. As suggested above, the register must have been maintained under the provisions of the Factories Act. Section 62 of the Act makes it obligatory on the manager of a factory to maintain a register of adult workers to be available to the inspector for inspection. It is also contains particulars which are required to be entered in regard to each of the workers. It is impossible to believe that the petitioner would enter the name of a person who was not really an employee or a worker, in this register. Mr. Phadke suggested that the name of respondent 3 may have been entered in the register with a view to avoid criminal liability that fastens on the factory manager for non-compliance with the provisions of S. 62. In the first place, such an explanation was not offered by the manager who was examined for the petitioner. Secondly, the explanation is neither logical nor satisfactory. The Labour Commissioner, in our opinion, was justified in raising a presumption in favour of respondent 3 to the effect that the latter was employed and, therefore, his name came to be entered in the attendance register.

6. The first two issues framed by the Labour Commissioner were as follows :-

(i) Whether the application is an employee of the non-applicant's bidi works.

(ii) Whether the application was working under Shamrao Mahadeo.

7. The Labour Commissioner recorded a finding in the affirmative on the first issue mainly on the basis of the entry in the attendance register. There is nothing in the evidence led for the petitioner which goes to vitiate this finding. As regards the second issue, the Labour Commissioner has said that in view of the finding on the first issue it was not necessary to record any finding on the second issue. It is because of the sentence to the above effect that Mr. Phadke complained that the Labour Commissioner has failed to record a finding on the second issue. There is no substance in this grievance.

8. The Labour Commissioner has proceeded to examine the second issue in some detail and has arrived at his own finding, although at the initial stage he said that no finding was necessary. It is true that he has not written a well-reasoned judgment in support of his finding. It would, however, be highly improper on our part to send back the case to the Labour Commissioner either for rewriting the judgment or for dotting the 'i's and crossing the 't's. The petitioner has not led satisfactory evidence to show that respondent 3 was really working under Shamrao Mahadeo. Shamrao Mahadeo was cited as a witness but was not examined for the petitioner. We cannot, therefore, accept the solitary statement of Venkatrao, the manager of the petitioner's factory, to the effect respondent 3 was really working under Shamrao Mahadeo, particular because no satisfactory explanation has been offered as to why the name of respondent 3 came to be entered in the attendance register. It is also significant that the petitioner had given an offer to respondent 3 for taking him back in service although that offer was made on certain stipulations and conditions. The very fact that such an offer was made suggests that respondent 3 was in the service of the petitioner.

9. That takes us to the question of law, viz., whether respondent 3 can be regarded as an 'employee' within the meaning of that word as used in the Central Provinces and Berar Industrial Disputes Settlement Act. Section 2(10) defines 'employee' to mean any person employed by an employer to do any skilled or unskilled manual or clerical work for contract or hire or reward in any industry. There are thus three ingredients in this definition :

(i) there is an employer;

(ii) he employs a person in the industry to do certain kind of work; and

(iii) the person has to work for contract or hire or reward :

10. Mr. Phadke argued that the nature of work entrusted to the relaiwalas is such that it does not involve any relationship of master and servant, that the work is in the nature of an independent contract and that the payments are made on piece-rate basis. He, therefore, argued that respondent 3 was working in his own right, still he would not be covered by the definition of 'employee' contained in S. 2(10) of the Act. In this connexion, he relied upon two decisions of the Supreme Court, viz., Dharangadhra Chemical Works, Ltd. v. State of Saurashtra : (1957)ILLJ477SC and Chintaman Rao v. State of Madhya Pradesh : 1958CriLJ803 . In the first case their lordships were dealing with the definition of 'workman' in the Industrial Disputes Act, 1947. The question in that case was whether a class of professional labourers known as agrarias who carried on the work in certain seasons of manufacturing salt in certain pieces of land and who are paid on the basis of volume of salt manufactured by them were workmen. Their lordships held that such persons must be considered as workmen within the meaning of S. 2(s) of the Industrial Disputes Act. Mr. Justice Bhagwati, who delivered the judgment of the Court, emphasized that the real test to find out whether a particular person is a workman or not, is to see whether the relationship was that of master and servant. His lordship also pointed out that the main distinction between a workman and an independent contractor would largely turn on consideration of the question as to whether the work was controlled by the manufacturer. In the other case [Chintaman Rao v. State of Madhya Pradesh] (supra) their lordships were considering the definition of 'worker' as contained in S. 2(1) of the Factories Act. It was held by their lordships in that case that a contractor is a person who, in the pursuit of an independent business, under-takes to do specific jobs of work for other persons without submitting himself to their control in respect to the details of the work. They further pointed out that the indentifying mark of a workman is that he should be under the control and supervision of the employer in respect of the details of the work. The facts of that case were as follows. The contractor was to receive tobacco from the management and he was also to supply them rolled in bidis for a certain fixed price. He was not under the control of the factory management and he would manufacture bidis wherever he pleased. The management could not regulate the manner of discharge of his work. His liability was discharged by his supplying bidis and delivering them in the factory. The terms of the contract between the management and the contractor did not enjoin on the latter to work in the factory. On these facts it was held that the contractor was not employed by the management as worker but was only independent contractor who performed his part of the contract by making bidis and delivering them at the factory. Mr. Justice K. Subba Rao, who delivered the judgment of the Court, referred to the earlier decision of the Supreme Court and relied on the observations cited above. In the course of his judgment M. Justice Subba Rao has referred to another part of work which is carried on in a bidi factory. That process was described by him in the following terms : After the bidis are brought by sattedars to the factory they are to be rebundled and wrapped after attaching labels. This process is generally carried out in the factory by the coolies or workmen employed by the management and these coolies work directly under the control and supervision of the factory management. It appears to us that respondent 3 was engaged in a process similar to the one which fell within the second part described by Mr. Justice Subba Rao in his judgment.

11. Mr. Phadke also referred to a decision in Westall Richardson, Ltd. v. Roulson (1954) 2 All E.R. 448. In that case the definition of the word 'worker' as contained in S. 23(1) of the Wages Councils Act, 1945, came up for construction. Vaisey, J., in the course of his judgment, pointed out that the word 'employee' has always a relation to the word 'employer.' On the facts before him he came to the conclusion that the person, who was claiming the benefit of all holidays and holiday pay under the Wages Councils Act, could not be regarded as a worker within the meaning of that expression because the work which he was doing was an independent type of work over which the employer had no kind of control and that the element of independence and freedom was far greater than the element of servitude. We are unable to understand as to how this decision assists Mr. Phadke in his argument. On the facts as disclosed in the record of this case, as stated above, the process of work in which respondent 3 was engaged was the process carried out in the factory and further was carried out under the supervision and control of the management. On this point we would simply refer to the admission of Venkatrao who stated :

'There is a supervision and control over the relai workers. Even though the relai workers do work on a contract basis, yet they do work according to our supervision and under our control.'

12. Respondent 3 stated that he used to receive payment either through Shamrao Mahadeo or himself. The admission of the manager coupled with the circumstances that the name of the respondent 3 was entered in the attendance register clearly establishes that there was relationship of master and servant between the petitioner and respondent 3.

13. The result is that the petition fails and is dismissed with costs. Rule discharged.


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