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Achutha Achar Vs. Sharada Jewellery Mart and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 67 of 1965
Judge
Reported in[1968(16)FLR168]; (1968)ILLJ500Kant; (1967)2MysLJ96
ActsIndustrial Disputes Act, 1947 - Sections 10(1)
AppellantAchutha Achar
RespondentSharada Jewellery Mart and anr.
Excerpt:
.....the labour court preferred to accept the evidence of rameshachari and reached the conclusion that achutha achar like other goldsmiths undertook the manufacture of the ornaments which he was asked to manufacture and would receive remuneration which would depend upon the nature of the work done. ' 5. sri jagannatha shetti appearing for achutha achar contends that the conclusion reached by the labour court was vitiated by the dependence placed upon irrelevant factors and by the failure to properly direct its attention to the relevant evidence on record. 6. it is a firmly established principle which clearly emerges from the elucidation made by the supreme court in d. ' the jewels in the unfinished condition, according to him, used to be deposited with proprietor at the end of the day and he..........he was entitled to reinstatement with back-wages and other reliefs. the management denied that achutha achar was a workman and asserted that he was only an independent contractor. the labour court which accepted this contention rejected the reference declining jurisdiction. it is this decision of the labour court which is called in question by the petitioner who asks us to quash it by certiorari. 2. the labour court discussed the evidence given by rameshachari on behalf of the management and that given by achutha achar and his witness vittal. rameshachari on behalf of the management gave evidence that, according to the course of business obtaining in his firm, gold would be entrusted to the goldsmiths for making jewels of which a record was made in what is called a workers' memo. it.....
Judgment:

Per Somnath Ayyar, J.

1. Achutha Achar who was a goldsmith in Mangalore is the petitioner before us. He made a complaint that he was a workman in a firm known as the Sharada Jewellery Mart in Mangalore and that his services were illegally terminated. In consequence there was a reference under S. 10(1)(c) of the Industrial Disputes Act to the labour court which posed the question whether he was entitled to reinstatement with back-wages and other reliefs. The management denied that Achutha Achar was a workman and asserted that he was only an independent contractor. The labour court which accepted this contention rejected the reference declining jurisdiction. It is this decision of the labour court which is called in question by the petitioner who asks us to quash it by certiorari.

2. The labour court discussed the evidence given by Rameshachari on behalf of the management and that given by Achutha Achar and his witness vittal. Rameshachari on behalf of the management gave evidence that, according to the course of business obtaining in his firm, gold would be entrusted to the goldsmiths for making jewels of which a record was made in what is called a workers' memo. It was said that after the execution of work, the goldsmiths used to deliver the jewels and the wages payable to the goldsmiths would be credited to their account. Those wages, it was stated, were mutually agreed upon depending upon the work to be done in accordance with the specifications. Rameshachari proceeded to state that the goldsmiths used to work in the premises of the management to suit the convenience of the customers, although, sometimes, the goldsmiths used to take the gold to their own houses and that there were no fixed hours of work and that the goldsmiths were free to work at any time without being subject to the control or supervision by the management.

3. Achutha Achar and Vittal gave evidence to the contrary. Achutha Achar admitted that Exs. W. 2 series represented the memos. issued to him form time to time by the management in respect of the work to be executed by him, but he stated that he was under a duty to work during specified hours and could not leave the premises without the permission of the proprietor who used to watch his work. Vittal gave similar evidence.

4. The labour court preferred to accept the evidence of Rameshachari and reached the conclusion that Achutha Achar like other goldsmiths undertook the manufacture of the ornaments which he was asked to manufacture and would receive remuneration which would depend upon the nature of the work done. In the opinion of the labour court, in the actual execution of the work entrusted to Achutha Achar 'he was not under the order or control of the proprietor of the concern for whom he was doing it.'

5. Sri Jagannatha Shetti appearing for Achutha Achar contends that the conclusion reached by the labour court was vitiated by the dependence placed upon irrelevant factors and by the failure to properly direct its attention to the relevant evidence on record.

6. It is a firmly established principle which clearly emerges from the elucidation made by the Supreme Court in D. C. Dewan Mohideen Sahib & Sons and another v. Secretary, United Beedi Workers' Union, Salem, and another [1964 - II L.L.J. 633], that the question whether a person is a workman and whether between him and another there exists the relationship of master and servant is one the answer to which depends principally upon whether in respect of the work entrusted, the person who entrusts the work to be executed by the other, has also the power to direct the manner in which the work is to be done, where the work is not so simple as to exclude such direction. The earlier decisions of the Supreme Court of which there was a review in the case of D. C. Dewan Mohideen Sahib & Sons and another [1964 - II L.L.J. 633] (vide supra), made the same elucidation. So, what brings into being the relationship of master and servant is the power of supervision and control which is comprehensive enough to extent to the manner of execution of the work ordered.

7. So, if Achutha Achar was asked to manufacture a jewel as the management used to ask him to do, and for that purpose, he was given the gold and other materials with which the execution of that work was possible, it is not enough that Achutha Achar manufactured the jewel according to specification to make him a workman of the management. What is necessary to be established is that the management had the power or the right to excise supervision at the stages of manufacture.

8. Sri Jagannatha Shetti is right in contending that the question whether the management did in fact exercise any supervision has no relevance if the power of supervision really exists. It is on this aspect of the question that the labour court focused its attention, and, it is seen from its award that it believed the evidence of Rameshachari that there was no right of supervision or control, that there were no fixed hours of work and that all that Achutha Achar had to do was to produce the jewel with the assistance of the material supplied to him for that purpose at a given point of time.

9. Exhibits W. 2 series, a sample of which was produced on behalf of the petitioner before us, show that the management used to make a record of the work to be executed by Achutha Achar in what is called a workers' memo. It mentions the name of the goldsmith and contains the other specifications, such as, the description of the jewel, its pattern, its measurements, the date on which it has to be got ready and the materials delivered to the goldsmith. Another part of this memo contains column for the specification of the date on which the jewel after its manufacture was delivered to the management, the weight of the gold which it contains and the excess gold returned and the remuneration payable to the goldsmith. At the bottom, the goldsmith has to affix his signature, presumable when the worker's memo, is prepared. The manager also similarly affixes his signature.

10. The labour court thought that this memo, which makes it clear that the management entrusts the materials for the preparation of the jewel to the goldsmith who had to deliver the manufactured jewel on a particular date, supported the evidence of Rameshachari that the management had no power to supervise the preparation of the jewel.

11. Achutha Achar gave evidence that he was not in receipt of any definite sum of money as wages and that his remuneration depended upon the nature of the ornaments. So he stated that this income was not uniform and that it used to vary from month to month depending upon the quality and quality of work. He added that the employees 'could go out from the premises if they want.' 'The jewels in the unfinished condition, according to him, used to be deposited with proprietor at the end of the day and he thought that it was being some for 'safe custody.' Both he and Vittal gave evidence that the management use to supervise their work and that they were bound to work during specified hours.

12. But the evidence of Rameshachari who stated that there were no fixed hours of work and that they were free to work at any time without the management having the right to control or supervise their work was believed by the labour court. Rameshachari also gave evidence that there was no question of granting them any leave and that the work used to be executed in the premises of the management to suit the convenience of the customers. Contradicting the evidence of Achutha Achar and his other witness. Rameshachari asserted that even the tools used to be brought by the goldsmiths themselves.

13. It was elicited in his cross-examination that no additional sum of money used to be paid to the goldsmiths who did not manufacture the jewels according to specifications even if he had to re-make it. The concluding part of his evidence was that the goldsmiths were at liberty to attend to their work at any time they liked.

14. What induced the belief in the mind of the labour court that the relationship of master and servant did not exist was the evidence of Rameshachari which it believed to the exclusion of the evidence of Achutha Achar and Vittal which it did not. The crucial and determinative test in the decision of the question in a case like this is whether Achutha Achar who was bound to deliver the jewel which he was directed to manufacture for a remuneration was under a duty to subject himself to supervision of the management during the stages when the jewel is manufactured. The labour court placed before itself this very question and answered it in the following way :

'The evidence shows that Achutha Achar used to undertake like other goldsmiths to manufacture ornaments and receive remuneration depending upon the nature of the work done. In other words, he used to undertake to produce a given result. In the actual execution of that work, namely, in the manufacture of ornaments, he was not under the order or control of the proprietor of the concern fort whom he was doing it.'

15. In the case of D. C. Dewan Mohideen Sahib & Sons [1964 - II L.L.J. 633] (vide supra), the Supreme Court in the context of the discussion of the question whether a person is an independent contractor or a servant summed up the effect of the previous discussions of the Supreme Court thus :

'The correct approach, therefore, was to consider whether, having regard to the nature of the work there was due control and supervision by the employer. It was further held that the question whether the relation between the parties was one as between an employer and employee or master and servant was a cure question of fact, depending upon the circumstances of each case.' (P. 636.)

16. 'The Dhrangadhra Chemical Works, Ltd. v. State of Saurashtra and others [1957 - I L.L.J. 477], which is one of the case upon which reliance was place in D. C. Dewan mohideen Sahib & Sons [1964 - II L.L.J. 633] (vide supra), it was observed at p. 481 :

'The principle which emerges from these authorities is that the prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the mater of directing what work the servant is to do but also the manner in which he shall do his work, or to borrow the words of Lord Uthwatt at P. 23 in Mersey Docks and Harbour Board v. Coggins and Griffith (Liverpool), Ltd. [(1947) 1 A.C. 1 at 23] : 'The proper test is whether or not the hirer had authority to control the manner of execution of the act in question'.'

17. The Supreme Court in that case proceeded to observe that the question concerning the relationship between the parties was a pure question of fact which the industrial tribunal had jurisdiction to decide and that the High Court exercising jurisdiction under Arts. 226 and 227 of the Constitution was not competent to set aside a finding of fact so recorded by the industrial tribunal.

18. But Sri Jagannatha Shetti contended that the labour court placed dependence upon an irrelevant fact which vitiated its conclusion. He pointed out that one of the reasons which impelled the view of the labour court that the management did not have the right to exert its authority for the supervision of the execution of the work by the goldsmiths was the fact that the partners of the firm did not themselves have any proficiency in the work of a goldsmith. It was, therefore, contended that the question was not whether there was capacity for supervision but whether there was a right to make it.

19. It is enough to point out that although we do find an allusion by the labour court to the deficient proficiency on the part of the members of firm to exercise any supervision over the work of the goldsmiths, the labour court founded its conclusion as to the relationship between the parties not really upon the incapacity for supervision but upon the fact that there was no right to exercise any supervision. This conclusion rests upon the evidence of Rameshachari which it believed and upon the workers' memo which reflected the real relationship between the parties. The conclusion reached by the labour court is, therefore, a conclusion on a pure question of fact as rightly contended by Sri Dayananda Karanth which receives complete support from the evidence which the labour court believed. So, this writ petition must, therefore, be dismissed.

20. In the view that we take, it is not necessary for us to express any opinion on the other contention raised by Sri Dayananda Karanth that this writ petition which is not presented by the union but only by its workman is not maintainable. On that question, we say nothing.

21. No costs.


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