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Balakrishna Reddiar Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1974)IILLJ534Ker
AppellantBalakrishna Reddiar
RespondentState of Kerala and ors.
Cases ReferredCassidy v. Ministry of Health
Excerpt:
.....to complain against such..........the employee should carry out his duties that would be determinative of the question control when person works under the employment of another he is bound to respect the instructions issued to him from time to time as to his duties as well as the manner of performing them. he is subject to the disciplinary control as in the case of other persons employed. even if he works away from the premises where normally business is carried on he is answerable to the person employing him. the concept of control as limited to employment in the normal business premises as a test for determining whether a person is an employee is no more relevant. i need not go into the question further in view of the recent decision by the supreme court of india reported in silver jubilee tailoring house and ors. v......
Judgment:

P. Subramonian Poti, J.

1. Challenge is made in the original petitioner to Ext. P1 order passed by the Additional Deputy Labour Commissioner, Trivandrum functioning as the appellate authority under Section 18(2) of the Kerala Shops & Commercial Establishments Act, 1960. The appellant in the said appeal claimed to be an employee of the respondent who was having a shop at Alleppey of the name Messrs. Asia Sea Foods, Alleppey, carrying on the business of running a fishing boat to catch fish from the sea. The appellant was said to have been employed by the respondent as a driver in one of the mechanised fishing boats belonging to the respondent. Is remuneration was said to be Rs. 75 per mensem in addition to 5 per cent of the net catch and other incidental remuneration like special remuneration for repairing and overhauling the boat and for starting the engine by means of handle. The appellant's case was that he was denied employment on 24-2-1966 as he was not allowed to go as driver on the fishing boat thereafter. He was not given notice of termination. The respondent denied this case and according to him the appellant was a deserter who voluntarily abandoned his service. There was intervention at the instance of the District Labour Officer, Alleppey, who in a joint conference of the parties held on 14-3-1966 brought them together in an agreement that the appellant will be taken back provided the reported for duty on 18-3-1968 and an amount of Rs. 6 will be paid to the appellant to enable him to join duty. The respondent would say that the appellant did not turn up for duty on 18-3-1968 and the result was that a registered notice was sent to the appellant intimating that he did not report for work and, therefore, he must be deemed to have voluntarily abandoned his employment. The respondent had also a case that the appellant was not his employee and, therefore, no appeal would lie at his instance.

2. The appellant authority, in the order impugned, found that the appellant was an employee, a person principally employed in connection with the establishment. The plea that, the appellant, having been engaged to work far beyond the business premises of the respondent and out at sea where the respondent would have no control over him, was not one who could be said to be an employee of the respondent was not accepted by the appellate authority. It was also fount on the evidence that the appellant was not a defaulter in turning up for work on 18-3-1966 and, therefore, could not be considered as having deserted or abandoned his office. His wages were calculated by adding the monthly remuneration to the estimated average income which he would receive as 5 per cent of the not catch. Having found that the appellant had been denied employment unlawfully the appellate authority, instead of directing reinstatement, held that in the circumstances of the case it would be sufficient if the employer was directed to pay one year's wages and that order is challenged here.

3. Counsel for the petitioner attempted to raise a contention here that 3rd respondent cannot be said to be an employee for a reason different from that considered by the Appellate Authority. According to him the fact that the 3rd respondent was receiving 5 per cent of the net catch would be indicative of the fact that he was a partner with the petitioner and, therefore, a partner cannot be an employee. I do not think I should go into this contention for this is a contention which ought to have been raised before the appellate authority if at all there was any substance in it. Having not done so and for that reason having not been considered by the appellate authority, it is not for this Court to go into the matter. Not that I am impressed by the plea. It appears to be rather frivolous to contend that simply because in addition to salary a person who is working under the orders of another is being paid a portion of the catch from the sea, he should, for that reason only, be considered as a partner in the venture run by the employer. But as I have said, it is not necessary to go into the question as it is not a contention raised at any time earlier before the appellate authority.

4. There is plea that the petitioner, having been employed in the premises outside the petitioner's establishment, should not be considered to be an employee. 1 do not see how the mere fact that a person is not working in the premises of the establishment will be sufficient to hold that the person is not an employee. Possibly what is meant is that not being one working in the business premises the person who is so serving is not under the control of the employer, so much so, the employer-employee relationship as contemplated in the Kerala Shops & Commercial Establishments Act does not exist. That again, I do not think could be successfully urged by the petitioner. The third respondent's duties necessarily require operating far out in the sea and that does not mean that his operation is not subject to the control of the petitioner. Control does not necessarily require that the employee must be working in the immediate presence of the employer. It is the authority to direct the manner in which the employee should carry out his duties that would be determinative of the question control when person works under the employment of another he is bound to respect the instructions issued to him from time to time as to his duties as well as the manner of performing them. He is subject to the disciplinary control as in the case of other persons employed. Even if he works away from the premises where normally business is carried on he is answerable to the person employing him. The concept of control as limited to employment in the normal business premises as a test for determining whether a person is an employee is no more relevant. I need not go into the question further in view of the recent decision by the Supreme Court of India reported in Silver Jubilee Tailoring House and Ors. v. Chief Inspector of Shops & Establishments and Anr. 1973-II L.L.T. 495. In that decision reference has been made to Cassidy v. Ministry of Health [1951] I All E.R. 574. In the latter case Lord Justice Sommerwell pointed out that the test of control of the manner of work is not universally correct and there are many contracts of service where the master cannot control the manner in which the work is to be done as in the case of a captain of a ship. The nature of the control exercised must necessarily depend upon the nature of the industry. I do not think there is any justification to hold in variance with the findings of the appellate authority that in the case under consideration the petitioner had no control over the third respondent who was working as driver in his fishing boat merely because the fishing boat used to go to the sea for the purpose of carrying out the normal work.

5. As to the question of abandonment of service by the third respondent the finding is one on facts and it may not be proper for this Court to go into this afresh. The appellate authority found that there was a condition precedent agreed upon for the petitioner to rejoin duty. It is that he should be paid what was agreed to. It was not shown that it was so paid to the workman. My attention has also been drawn to the evidence of the third respondent wherein he speaks to having turned upon the 18th as agreed upon but being not permitted to get into the business premises. Anyhow, I do not think that is a question which I should consider here as it depends upon the evidence in the case.

6. As to the monthly wages payable to the third respondent there is a complaint that the figures taken as the value of the share of the catch from the sea were the figures for a short period and similar catch cannot be expected throughout the year. It is possible that it is so. It is also possible that during some other part of the year the catch may be better. It was the petitioner who is in a position to furnish sufficient material to prove the amount payable annually to the workman on this count. In so far as he has not produced the necessary documents the best that could be done had to be done and that has been done. It might have been, to some extent arbitrary, is but that is inevitable. It is not for the person who has withheld evidence which he was in a position to furnish to complain against such arbitrariness. There is no ground for interference on this account.

7. In the result the petition is dismissed, but in the circumstances no costs.


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