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Mathew Vs. Industrial Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1959)IILLJ58Ker
AppellantMathew
Respondentindustrial Tribunal and ors.
Cases ReferredLtd. v. State of Saurashtra and Ors.
Excerpt:
.....them. the principles according to which the relationship as between employer and employee or master and servant has got to be determined are well settled. the findings of the tribunal have been already noted by me and, in my opinion, the tribunal was satisfied that the management was exercising that amount of control and supervision over the goldsmiths having regard to the nature of the work they were entrusted with......workmen are not allowed to take helpers inside the shop. that in brief is the description of their work.the evidence adduced by the management and especially that of the proprietor ex. w. 3 has not been accepted by the tribunal.16. it has been mentioned by mr. p. govindan nair that the statement of the tribunal at p. 13 of the award that w.w. 1, w.w. 2 and w.w. 3 say that the employer would go to the hall where they are working, inspect their work and ask them to rectify mistakes is not correct. according to the learned counsel, w.w. 1 and w.w. 2 have not at all stated that their work is supervised by the proprietor. the learned counsel appearing for the union has agreed that w.w. 1 and w.w. 2 do not say without any supervision by the proprietor. but he has also stated that it is only.....
Judgment:

C.A. Vaidialingam, J.

1. This Is an application by the proprietor, Kallupalam Lads Jewellery Mart, Kottayam, under Article 226 of the Constitution for an order to call for the records in Industrial Dispute No. 37 of 1956 on the file of the Industrial Tribunal, Alleppey, and to quash the award in the I.D. No. 37 of 1956, dated 20 February 1958.

2. The short point that arises in this proceeding is as to whether the industrial tribunal was right in law in holding that V.K. Narayanan Asari, P.K. Chellamani and A.K. Mam are 'workmen' as denned in the Industrial Disputes Act.

3. The facts leading up to the filing of this application and as stated in the affidavit in support of the application are as follows:

The Travancore-Cochin Government, by its notification, dated 9 May 1956, has finally referred an industrial dispute relating to the Kallupalam Lads Jewellery Mart for adjudication by the Industrial Tribunal, Alleppey. The issues referred for adjudication related to four goldsmiths, namely, V.K. Narayanan Asari, P.K. Chellamani, A.K. Mani and V.K. Ponnappan ; but the union did not press the case regarding V.K. Ponnappan and therefore the tribunal had to deal only with the first three persons.

4. The point referred for adjudication related to the question whether the workers mentioned therein were at any time employed in the Kallupalam Lads Jewellery Mart and as to whether their non-employment was justified and also as to the nature of the reliefs to be given to the parties.

5. The management contended before the tribunal that the goldsmiths mentioned therein were not 'workmen' as defined in Section 2, Clause (s), of the Industrial Disputes Act. According to the management, they were only independent contractors doing the work of making gold ornaments on a contractual basis. Those contractors, according to the petitioner, take charge of the gold, convert them into ornaments according to specifications given and return the ornaments along with the remaining gold after the work is over and they are paid the making charges for each ornament. They are all independent ' contractors over whom the management has no control whatsoever. The goldsmiths are given facilities to sit and work in the premises of the management but without any sort of control during their work. They are at perfect liberty to execute the work in any manner they pleased. They are also at liberty to take the gold to their houses and return the finished article. They have no fixed time of hours of work and they are free to come and go as they like. The goldsmiths bring their tools and implements. The industrial tribunal, without having due regard to the practice obtaining in the trade and to the evidence adduced in the case, has held that they are 'workmen' within the meaning of the Act and has, in consequence, held that the management was not justified in denying employment to the three goldsmiths. The tribunal has further directed the management to reinstate the three goldsmiths and also to pay them a sum of Rs. 380 each as compensation in lieu of back wages.

6. According to the petitioner, the three goldsmiths are not 'workmen' and therefore the Government had no power to refer any dispute for adjudication. The finding of the tribunal, on the jurisdictional issue, is vitiated by an error apparent on the face of the record. The findings are not supported by the evidence and, in any event, it is perverse and as such, the award has to be quashed.

7. The Kottayam Taluk Abharana Thozhilali Union, Kottayam, which is respondent 2, has filed a counter-affidavit challenging the position taken up by the management. According to respondent 2, the question as to whether a particular person is a ' workman ' within the meaning of the Act or not is a pure question of fact. In this case, the tribunal has considered the entire evidence adduced both by the management and by the workers. It has rejected the evidence adduced on behalf of the management and it was in law entitled to do so. It has accepted the evidence adduced on behalf of the workmen. In the appreciation of evidence, the tribunal has kept in view the tests laid down by the Supreme Court in the leading cases to find out whether a particular person is a 'workman' or not. In the light of those decisions, the tribunal has held that the goldsmiths in this case are 'workmen' within the meaning of the Act. It is not open to the petitioner to canvass the correctness or otherwise of that view in proceedings under Article 226. The tribunal had evidence before it on which it could come to that conclusion. There is no error apparent on the face of the record. Even if the appreciation of evidence as such was not correct, it cannot be agitated in this Court under Article 226.

8. It is further stated in the counter-affidavit that there is strict supervision at all stages by the management when the goldsmiths are doing the work. All the goldsmiths present themselves for work at the shop of the management every day morning and work till late in the evening. The management gives detailed instructions for the making of the jewels and oranaments and other articles and at every stage of its making, the management exercises control and supervision. The goldsmiths have to sit and work in the premises of the petitioner and they are not free to take the gold to their homes. The goldsmiths themselves have to do the work and they cannot ask anybody else to do the work entrusted to them. Apart from the customers placing orders with the management, the management itself requires a number of articles to be made by the goldsmiths to be kept in the show-room for ready sale. Further, in the course of a conciliation agreement entered into on 12 August 1954, the petitioner-management had accepted the position that the goldsmiths including the three people involved in this dispute working in his shop are 'workmen.' The husk, charcoal and rice are supplied by the management to the goldsmiths.

9. In view of all these circumstances, the union supports the conclusions arrived at by the industrial tribunal.

10. Mr. P. Govindan Nair, learned Counsel appearing for the management, has contended that the decision of the tribunal on the jurisdiction issue, namely, as to whether the goldsmiths are 'workmen,' is not correct. There is no evidence to support the findings arrived at by the tribunal. Even the findings arrived at by the tribunal will lead to the necessary conclusion that the three goldsmiths are 'workmen' within the meaning of the Industrial Disputes Act. According to Mr. Govindan Nair, the three goldsmiths are independent contractors who are paid for each item of work entrusted to them. There is no control and supervision over these persons by the management at all stages. Further, it is open to those goldsmiths to take the jewels home for completing it either by themselves or by taking the assistance of others. The exact manner and method of doing the work is entirely left to the goldsmiths who are independent contractors and the management has absolutely nothing to do with that aspect of the matter.

11. The learned Counsel also contended that the tribunal has not kept in view the correct test to be applied notwithstanding the fact that it has referred to the principles laid down by the Supreme Court in the Salt Pan case. The learned Counsel very strongly relied upon the decision of Mr. Justice Rajagopalan in Kesava Reddiar (K.) v. Labour Appellate Tribunal of India and Ors. 1957-I L.L.J. 645 and contended that the three goldsmiths in this case are not 'workmen' under Section 2(s) of the Industrial Disputes Act.

12. The learned Government Pleader has supported the conclusions arrived at by the tribunal that the three goldsmiths are 'workmen' as denned in Section 2(s) of the Act. According to the learned Government Pleader, the tribunal has properly applied the tests laid down by the Supreme Court to find out whether a person is a 'workman' or not. This Court is not a Court of appeal where the finding of the tribunal can be canvassed by the management. The tribunal had jurisdiction to consider the case setup by the parties and to arrive at a conclusion. There is no error apparent on the face of the record which requires any interference by this Court. The learned Government Pleader has also drawn my attention to certain subsequent decisions of the Supreme Court reaffirming the principles laid down by their lordships in the Salt Pan case.

13. Before dealing with the contentions raised by learned Counsel on both sides, it is desirable to note the reasoning and conclusions arrived at by the tribunal. The union examined as many as seven witnesses and filed nine documents; whereas the management examined three witnesses and filed four documents. The documents filed on behalf of the management E. 1 Exs. to E. 4 do not carry the matter any far because the management itself has admitted that those books have no bearing on the period in controversy before the tribunal. Similarly, the tribunal has not attached much importance to the documentary evidence filed on the side of the union excepting Ex. W. 4. So far as the other documents filed by the union are concerned, the tribunal has taken the view, that the statement in those documents that the goldsmiths mentioned therein are working in the shop of the petitioner, is not conclusive on the question as to whether they are workmen or not. Further, the tribunal was of the view that those documents are all self-serving documents. Even as regards Ex. W. 4 which is a memorandum of a conciliation agreement to which the present petitioner was also a party, the tribunal has held that the said document by itself is not conclusive. Ultimately, the tribunal was left to decide the question only on the oral evidence adduced on both sides.

14. At this stage, I may mention that it is not the province of this Court in exercising its power under Article 226 to find out whether the appreciation of the evidence by the tribunal was right or wrong. The tribunal is at liberty to assess the evidence and. accept one version and reject the other. I am only concerned to find out whether there is material on record from which the tribunal could have come to the conclusion that it did in this case, in the words of their lordships of the Supreme Court in the decision in Dharangadhra Chemical Works, Ltd. v. State of Saurash and Ors. 1957-I L.L.J. 477 at 482:

The question whether the relationship between the parties is one as between employer and employee or between master and Servant is a pure question of fact . ... It is equally well settled that the decision of the tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless at the least it is shown to be fully unsupported by evidence.

15. The evidence adduce don behalf of the union and accepted by the tribunal has been summarized at p. 12 of the award:

According to them, the nature of their work is this : They go to the shop every day in the morning. They have some interval for the noon-meal. They work till 7 or 8 in the evening. As soon as they reach the shop the proprietor would weigh the gold and entrust it to each worker giving him the specifications and the time within which the ornament is to be made. It would be entered in their accounts. Then they work in a spacious hall in the shop. The tools belonging to them, the chaff, the the coal and earthen pot are supplied by the proprietor. Their work is supervised by the proprietor. If he finds any mistake in the ornament, the workman would be asked to do it over again at his cost. When the jewel is finished, it is taken to the employer, and weighed and, if found correct, accepted. Then the payments are made. At the time of giving the oranment, if it does not conform to the specifications given earlier, then also the workman has to take them back and do it over again at his own cost. Wastage to the extent of half a ' panamide' for one pound is allowed to the workman. The workmen are not allowed to take helpers inside the shop. That in brief is the description of their work.

The evidence adduced by the management and especially that of the proprietor Ex. W. 3 has not been accepted by the tribunal.

16. It has been mentioned by Mr. P. Govindan Nair that the statement of the tribunal at p. 13 of the award that W.W. 1, W.W. 2 and W.W. 3 say that the employer would go to the hall where they are working, inspect their work and ask them to rectify mistakes is not correct. According to the learned Counsel, W.W. 1 and W.W. 2 have not at all stated that their work is supervised by the proprietor. The learned Counsel appearing for the union has agreed that W.W. 1 and W.W. 2 do not say without any supervision by the proprietor. But he has also stated that it is only W.W. 3 alone who has mentioned about the supervision by the proprietor. This will not, in any view, alter the situation because even according to Mr. Govindan Nair, there is the evidence of W.W. 3 to the effect that the employer comes and supervises the work and the evidence of that witness has been accepted by the tribunal.

17. But Mr. Govindan Nair contends that such a casual supervision spoken to by W.W. 3 cannot amount to the exercise of a control and supervision by the management and that is one of the essential tests laid down by the Supreme Court. According to the learned Counsel, there is no supervision at all stages and there is no finding by the tribunal on the question of supervision by the management, I cannot accept this contention of Mr. Govindan Nair when the evidence on the side of the union has been summarized including the evidence relating to supervision and accepted by the tribunal. It follows that in the view of the tribunal, there is control and supervision exercised by the management. Further, the tribunal has also accepted the evidence of the union that the workmen are not allowed to take helpers inside the shop and that the workers themselves have to do the work entrusted to them.

18. Mr. P. Govindan Nair further contended that even the finding regarding control and supervision and on other matters arrived at by the tribunal would not make the goldsmiths in question 'workmen' under Section 2(s) of the Act. The question is whether Mr, Govindan Nair is right in this contention.

19. The tests to be applied to find out whether a person is a workman or not have been considered and laid down by the Supreme Court in two or three decisions. In view of the fact that the position has been discussed and laid down by their lordships of the Supreme Court, it is not really necessary for me to consider the judgment of Mr. Justice Rajagopalan, on which Mr. Govindan Nair has placed much reliance 1957-I L.L.J. 645. The question before the learned Judge was as to whether the goldsmiths in that case were ' workmen ' within the meaning of Section 2(s) of the Act. The Appellate Tribunal, differing from the industrial tribunal in that case, came to the conclusion that the goldsmiths there were ' workmen ' under Section 2(s). The relevant portion of the order of the Appellate Tribunal quoted by the learned Judge at p. 647 was as follows :

They work in the first respondent's shop itself, prepare gold jewels according to the instructions of the first respondent and within the time fixed by him and receive the stipulated making charges. The employer, therefore, exercises a good deal of control over them and directs the work to be turned out by them.

But the learned Judge did not accept this test of the Appellate Tribunal as will be seen from the observation of the learned Judge at p. 647:

The test the Appellate Tribunal postulated was whether the petitioner had a large measure of control over the labourers. That may not be quite correct. What the Appellate Tribunal had to consider was whether the time of those who claimed to be employees of the petitioner, as workmen within the meaning of Section 2(s) of the Act, was at the disposal of the master.

After making the above observations, the learned Judge on a perusal of the evidence held that there was no evidence to come to the conclusion that the relationship of master and servant was established in that case.

20. This judgment of Mr. Justice Rajagopalan will not avail Mr. P. Govindan Nair in the stand taken by him. The conclusions arrived at by the learned Judge were on the particular facts of that case. Further it is a matter of doubt, if I say so with great respect to the learned Judge, whether Mr. Justice Rajagopalan's criticism of the test adopted by the Appellate Tribunal, can still be maintained, in view of the decisions of the Supreme Court, where emphasis has been laid on the existence of the right in the master to supervise and control the work done by the servant. As stated earlier, it is not necessary for me to deal with this decision any further.

21. In the decision reported in Dharangadhra Chemical Works. Ltd. v. State of Saurashtra and Ors. 1957-I L.L.J. 477 their lordships had to consider whether the agarias in that case were workmen within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. Their lordships, if I may say so with respect, have very exhaustively dealt with this question after a reference to the leading English decisions. At p. 480 of the reports, after considering the definition of the term ' workman, ' their lordships observed as follows:

The essential condition of a person being a workman within the terms of this definition is that he should be employed to do the work in that industry, that there should be, in other words, an employment of his by the employer and that there should be the relationship between the employer and him as between the employer and employee or master and servant. Unless a person is thus employed there can be no question of his being a workman within the definition of the term as contained in the Act.

The principles according to which the relationship as between employer and employee or master and servant has got to be determined are well settled. The test which is uniformly applied in order to determine the relationship is the existence of a right of control in respect of the manner in which the work is to be done. A distinction is also drawn between a contract ' for services and a contract of service and that distinction is put in, this way ; In the one case the master can order or require what is to be done while in the other case he can not only order or require what is to be done but how itself it shall be done.

[Per Hilbery, J., in Collins v. Hertfordshire County Council (1947) K.B. 598 at 615].

After referring to the decision of the House of Lords in Short v. J. & W. Henderson, Ltd. (1946) 62 T.L.R. 427, and the passage in Halsbury's Laws of England, Hailsham edition, Vol. 22, p. 112, Para. 191, their lordships sum up the position as follows 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 matter 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 & 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.

That the nature and extent of control will vary from business to business is again expressed by their lordships at p. 481 in the following words:

The nature or extent of control which is requisite to establish the relationship of employer and employee must necessarily vary from business to business and is by its very nature incapable of precise definition .... The correct method of approach, therefore, would be to consider whether having regard to the nature of the work there was due control and supervision by the employer....

The observations extracted above, provide an effective answer to the contention of Mr. P. Govindan Nair that the finding about supervision in this case by the tribunal does not lead to the inference that the goldsmiths in this case are 'workmen' under Section 2(s) of the Act. The findings of the tribunal have been already noted by me and, in my opinion, the tribunal was satisfied that the management was exercising that amount of control and supervision over the goldsmiths having regard to the nature of the work they were entrusted with. Again, the contention of Mr. Govindan Nair that there is no evidence in this case from which a conclusion about the exercise of supervision by the employer can be drawn, cannot also be accepted. In any event, there is the evidence of W. W. 3 to the effect that their work is supervised by the proprietor. The nature of the articles to be made is given in detail by the employer and during the work, the proprietor comes and supervises the work and if any mistake is found by the employer in the ornament, the goldsmith is asked to do it over again. Again, if the ornament does not conform to the specifications given, the goldsmith is again asked to do it and again supervision and control is exercised during the process of making of the jewels. Far from there being no evidence to support the conclusion that the goldsmiths in this case are not independent contractors but 'workmen' within the meaning of the Act. The contention of Mr. Govindan Nair that in this case the goldsmiths are paid not per day but by the job was also advanced before the Supreme Court on behalf of the appellants there and it was negatived by their lordships in the following words at p. 483:

There is, however, abundant authority in England that a person can be a workman even though he is paid not per day but by the job. The following observations of Crompton, J., in Sadler v. Henlock (1855) 4 El & B1 570 at 578 : 119 E.R. 209 at 212(1) are pertinent in this behalf:

The test here is, whether the defendant retained the power of controlling the work. No distinction can be drawn from the circumstances of the man being employed at so much a day or by the job. I think that here the relation was that of master and servant, not of contractor and contractee.[See also Blake v. Thirst (1863) 32 L.J. Ext. 188 (j) and Halabury's Laws of England, Hailsham edition. Vol. 22, p. 119, Para. 194, wherein it is stated that if a person is a worker and not a contractor, 'it makes no difference that his work is piecework'.]

The distinction between a workman and an independent contractor has again been very forcefully brought out by their lordships in the decision mentioned above at pp. 483-484:

The broad distinction between a workman and an independent contractor lies in this that while the former agrees himself to work, the latter agrees to get other persons to work. Now a person who agrees himself to work and does so work and is therefore a workman does not cease to be such by reason merely of the fact that he gets other persons to work along with him and that those persons are controlled and paid by him. What determines whether a person is a workman or an independent contractor is whether he has agreed to work personally or not. If he has, then he is a workman and the fact that he takes assistance from other persons would not affect his status. The position is thus summarized in Halsbury's Laws of England, Vol. 14, pp. 651-652:

The workman must have consented to give his personal services and not merely to got the work done, but if he is found under his contract to work personally, he is not excluded from the definition, simply because he has assistance from others, who work under him'.

[See also Grainger, v. Aynsley; Bromley v. Tarns (1881) 6 Q.B.D. 182'(K); Weaver v. Floyd (1852) 21 L.J.QB. 151 (L) and Whitely v. Armitage (1864) 13 W.R. 144 (M).

Mr. Govindan Nair faintly argued that in this case the goldsmiths were allowed to take the unfinished ornaments to their houses to be completed by themselves or by taking the assistance of others. The finding of the tribunal does not support this contention of Mr. Govindan Nair. Even if there is any basis for the contention mentioned above, the goldsmiths will be 'workmen' in the light of the observations made by their lordships of the Supreme Court at p. 483 and referred to earlier.

22. The principles laid down by their lordships in Dharangadhra Chemical Works, Ltd. v. State of Saurashtra and Ors. 1957-I L.L.J. 477 have again been reiterated in a later decision of their lordships in Harish Chandra v. Triloki Singh : [1957]1SCR370 . Similarly, in the latest judgment of the Supreme Court in the decision in Chintaman Rao and Ors. v. State of Madhya Pradesh 1958-II L.L.J. 252, their lordships had to consider whether the sattedar in that case was an independent contractor or a worker within the meaning of the definition contained in the Factories Act, Section 2(1). Mr. Justice Subba Rao, who delivered the leading judgment, has, if I may say go with, respect, very exhaustively dealt with the case-law on the subject and has applied the test laid down by their lordships of the Supreme Court in the decision in Dharangadhra Chemical Works, Ltd. v. State of Saurashtra and Ors. 1957-I L.L.J. 477.

23. It follows that the finding of the industrial tribunal holding the three goldsmiths V.K. Narayanan Asari, P.K. Chellamani and A.K. Man are 'workmen' as defined in the Act, is correct. The other consequential directions given by the tribunal, have not been challenged before me.

24. In the result, the application fails and is dismissed with costs of Rs. 125 each to be paid to respondent 2 and to the Government Pleader representing respondent 3 and the rule nisi issued by this Court will stand discharged.

25. C.M.P. No. 1187 of 1958 is also dismissed without any order as to costs.


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