1. These Letters Patent Appeals are directed against the judgment of Basheer Ahmed Sayeed, J., in Appeal against Order Nos. 239 and 338 of 1957. The appellant before us, in both these appeals, is the Assistant Director of Fisheries, Tuticorin. The prior facts necessary for a consideration of these appeals are briefly the following. The Gulf of Mannar in the extreme south-east corner of Peninsular India has been famous for its pearl, and chank fisheries from time immemorial. The Government of Madras claim these chanks as their property and therefore no private fishing for chanks is allowed. There is a special season for the chank fishery. The services of divers are utilised for the purpose by the Fisheries department of the Government in the following manner. They are required to take a licence (free of any charge), and the licence contains these conditions:
'The licencee shall not dive for chanks anywhere in the sea except in the places specified by the fisheries officer. He shall cease diving immediately the signal to cease diving is given. He shall also stop diving as soon as the fisheries officers declare by notification the closure of the chank fishery season from a specified date.
2. The licensee shall return immediately alive to the sea all undersized chanks below 21/2 inches inadvertently fished by him.
3. The licensee shall land the whole catch of chanks in the place on the beach, specified by the Assistant Director of Fisheries, Tuticorin, carry the day's catches to the Government godowns and deliver the same to the Fisheries officers appointed to receive them.
4. All the chanks delivered to the fisheries officers at the chank godown should be clean without covering of mud or sand that would hide defects or ostensibly exhibit an increase in size and without extracting the flesh from shells below 21/4 inches size inadvertently brought to shore.
5. The licensee shall subject his catches of chanks to be examined and gauged by Fisheries-Officers. It shall be lawful for the officers to reserve the sea weeds or sand or mud adhering to theshells and to strike doubtful shells against a hard substance to detect defects.
6. The licensee shall receive payment for all full-sized chanks without defects such as damage caused by shark bite, boring worms, etc., at the rate of Rs. o-6-o (six annas only) per full sized accepted chank. No chank which is so paid for shall pass, however hard it is, thrust through a 21/4 inches gauge board when placed in vertical position after washing out the clay and any animalor plant found adhering to it. All other shells that do not conform to this specification shall besurrendered by the licensee for confiscation and no payment shall be made for any such shells.
7. This licence shall be produced on demand by any officer of the Fisheries or other departmentspecially authorised to scrutinise the same.'
2. In the course of the diving season in the year 1955, two divers, by name, Ibrahim Sahib and Arulanandam, lost their lives. Apparentlythey became over-powered by suffocation on account of staying too long under the water, andthough they came out of water alive, they diedsometime afterwards, in spite of the best medical treatment. The widows of those two divers applied before the Commissioner for Workmen's Compensation, for compensating them for the death of the above said divers. The Commissioner found that these two divers died due to an accident which arose out of and in the course of their employment. So this part of the case can be considered as beyond controversy. Further, the Commissioner found that the divers were notemployees of the State. In other words, theywere not workmen as defined in Section 2(1)(n)of the Workmen's Compensation Act. Hence the applications of the widows for compensation were dismissed. Against the above orders, the widowsof the divers appealed to Basheer Ahmed Sayeed, J. Differing from the conclusion of the Commissioner for Workmen's Compensation, the learned Judge held that the terms of the employment ofthe divers in question attracted the provisions ofthe Workmen's Compensation Act, and that therefore, the widows were entitled to compensationwhich was fixed at Rs. 3500/- each. Apparently the State Government had paid some amount asex gratia payment to these widows. That amount was directed to be included in the sum of Rs. 3500/-. The State Government of Madras, represented by the Fisheries department, has now appealed against the above decision of Basheer Ahmed Sayeed, J.
3. Section 2(1)(n) of the Workmen's Compensation Act (Act VIII of 1923) reads,
' 'Workman' means any person (other than a person whose employment is of a casual natureand who is employed otherwise than for the purpose of the employer's trade or business) who is-
(i) ... ... ... ... ... ... ... ...
(ii) employed on monthly wages not exceeding four hundred rupees, in any such capacity as is specified in schedule II.'
It is not now in dispate that 'diver' is one of thecategories mentioned in Schedule II, and the smonthly wages earned by each of the two divers an this case was less than Rs. 400. Therefore,the relevant conditions in Section 2(1)(n)(ii) are satisfied. The further question is whether from the terms of their employment, the divers in question could be considered as 'workmen' within the scope of the Workmen's Compensation Act. The learned Government Pleader appearing for the State argued that the divers were independent contractors. They took advantage of the chank fishery season and agreed under the terms of the licence to dive for chanks and supply them to the fisheries department at the rate fixed by the department. They were, therefore, only independent contractors and not workmen.
4. We are unable to agree with this reasoning. There are many incidents of the employment of the divers in this case which show that the relationship of employer and employee existed between them. The first point to be looked for in such cases is the extent of control which the alleged employer has over the workmen, in regard to their work. One cannot lay down any hard and fast rule, about the scope of this control nor can it be laid down that work done on a piece work basis will not bring about the employer-employee relationship. As pointed out by the Supreme Court in Dharangadhra Chemical Works Ltd. v. State of Saurashtra, : (1957)ILLJ477SC
'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 that 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 page 23 in Mersey Docks and Harbour Board v. Goggins and Griffith, (Liverpool) Ltd., 1947 1 AC 1, 'The proper test is whether or not the hirer had authority to control the manner of execution of the Act in question'. The nature or extent of control which is requisite to establish the relationship of employer must necessarily vary from business to business and is by its very nature incapable of precise definition.'
The Supreme Court held in that case that a person could be a workman, even though he was net paid by the day, but by the job.
5. Balakrishna Aiyar, J., in Palaniappa v. Court of First Class Magistrate, (Judl.) Kulittalai, AIR 1958 Mad 602 had occasion to consider the definition of workman under section 2(1) of the Factories Act. Balakrishna Aiyar, J., observed,
'The word 'employed' connotes some amount of supervision and control because the employment referred to in the Act is in connection with a manufacturing process which is carried on in a factory and such process normally requires a large amount of co-ordination between various sections inside a factory and even between the various individual workers inside the same section.'
In that particular case, Balakrishna Aiyar, J., dealt with persons who were employed by a weaving concern for weaving carpets and towels. They were paid at an agreed rate for each carpet or towel woven and the management had no control over these persons, either regarding their attendance or their choice of work, and those persons were at liberty even to work for a competitor when they chose to do so. In such circumstances it was held that they could not be said to be employed within the meaning of Clause 2 (1) of the Act.
6. In the present case, the area from which chanks should be dived for, was indicated by an employee of the fisheries department called Mandadi. The area would be about four square miles in the sea. If this Mandadi could not accompany the divers on any particular day, he would nominate another to act for him. The divers should stop diving when the Mandadi signals them to do so. The divers are free to start for diving at any time they choose and to dive as many times as they could, and in any manner they liked. They can join together in groups of 8 to 12 for going in a particular boat for which they have to arrange for themselves. They are obliged to bring the chanks they get to a particular place on the shore indicated by the Assistant Director of fisheries. They are obliged to return to the sea undersized chanks below 21/2 inches. They will be paid for full sized chanks without defects at six annas per chank. All chanks which do not conform to the specification of the fisheries department should be surrendered by the licensee for confiscation, and no payment shall be made to him for such chanks. If a diver stopped diving after sometime he should inform the Mandadi as otherwise he would not be paid for the chanks collected by him. This last point is found in the statement of one of the witnesses, a diver called Kasim Mohammed.
7. These circumstances in the evidence establish that the diving operations were subjected to control by the department and at the same time the divers had also a certain amount of freedom in the manner of doing their work. But the extent of control of the employer and the amount of freedom given to the workmen cannot be subject to definition. It will vary necessarily from industry to industry. As pointed out by Balakrishna Aiyar, J., in AIR 1958 Mad 602, a municipality may employ a surgeon but the surgeon will have his own freedom in the manner he carries out a particular surgical operation. In W. P. Nos. 614 to 617 and 985 of 1958 where one of us was a party, it was held in the case of persons employed in the tanneries in North Arcot District:
'I have already referred to the admission made on the part of the employers that they have complete control over the workers, and that they tell the workers what they have to do. The circumstances that the workers have no fixed hours of work and that they are given certain liberties in regard to attendance at the factory, can only imply that the master is willing to allow them to do service on these conditions, and not that when once they enter into the work, they are not at the control of the master in regard to the work or the manner of doing it.'
8. In the present case, no doubt, the divers could come to the sea when they like and also go away when they like; but it is due to the fact that the number of times a person will dive will depend upon his physical condition or stamina on that date. Therefore the department cannot impose upon the divers, hours of work. Similarly the Fisheries department cannot impose on the divers how long they should stay under the water, or how many chanks they should take out from each diving. Those also depend upon the stamina and the condition of health of the diver. It is, therefore, clear that this form of employment had certain inherent limitations which arose from the very nature of the employment. If we allow the unavoidable margin for these limitations it will appear that the divers employed on the job of chank fisheries, were completely under the control of the fisheries department, which exercised the fullest possible control bearing in mind the exigencies of the particular employment. Again the diver did not get any property in the chanks fished. Even the shells of the rejected chanks belong to the Government. Though in Clause 6 of the Licence the word 'payment per chank' is used, it is not because of the sale by the diver of the chank to the fisheries department. Such payment was only the means of remuneration for the divers whose work was on piece work basis. As observed above, even a piece-work job can bring about employer-employee relationship. The learned Government Pleader drew our attention to the fact that one of the tests of the employer-employee relationship is the obligation of the employer to provide work to the employee. Adverting to this point in the Tannery case above cited, it was observed :
'It is the duty of the worker to go to the factory every morning, and if there is work, the employer would tell him what he should do. Although it is the duty of the worker to go to the factory every morning, there is no corresponding obligation on the part of the employer to give him work when he turns up.'
9. The obligation to give work cannot be used as an invariable test standing apart from the actual facts of a given case. So as far as the chank fishery is concerned, the season is a brief one and in the ordinary course of things every diver who has obtained a licence and who is physically fit will take the opportunity of diving to the maximum extent which his condition of health will afford, so that he can earn the maximum amount on a piece work basis. There is, therefore, no question of any failure on the part of the employer to provide work in this case. The very fact that the beginning of the season is announced and the availability of an area in the sea for fishing is announced shows that the employer had offered ample scope for the divers to work on a piece work basis and earn their remuneration.
10. The learned. Government Pleader drew our attention to two decisions of the Rangoon High Court. Ma Htwa Yin v. Maung Thet Hnin, AIR 1941 Rang 61, was a case wherein the employee had a licence to enter upon a mine and the terms of the licence enabled him to work on piece work rates, the licencee was held to be not a workman under the Workmen's Compensation Act for the reason that the mine authorities had no control over him. The decision is a brief one and it does not discuss the facts in full. But the finding turned upon the absence of control. Loo Shi v. Consolidated Tin Mines, Burma Ltd., AIR 1940 Rang 125 referred to by the learned Government Pleader also dealt with a case of licence to work at dump picking or searching for overlooked ore to be paid on piece work basis. Here again, the decision turned upon the finding about the absence of control of the company who engaged those people. But the facts of this case as set out above show that the operations of the divers were under the full control of the Fisheries Department, the control being such as the exgiencies of the industry permitted the defendant to exercise. We are in entire agreement with the finding of Basheer Ahmed Sayeed, J., that the two divers in this case are workmen as defined in the Workmen's Compensation Act and that their widows are entitled to compensation under that Act. There is no dispute about the quantum of compensation fixed by the learned Judge.
11. The Letters Patent Appeals are dismissedwith costs.