1. The disputes between the Modern Match Industries, Gudiyatam, and its employees were referred as industrial disputes under Section 10(1)(c) of the Industrial Disputes Act, and the case was registered as I. D. No. 59 of 1934.
2. One of these disputes was whether the workers should he paid higher wages than they were actually getting from their employer. A similar dispute between Eswaran Match Works and its workers was also referred and that was registered by the Industrial Tribunal as I. D. No. 58 of 1954.
3. The factories in question were in Gudiyatam, where matches were manufactured. The workers employed in the box-filling department of the factories were paid on piecework basis at one anna six pies per gross of boxes containing forties and one anna nine pies per gross of boxes containing sixties each. Despite the claim of the managements, that these constituted the highest rate of wages paid in that industry either at Gudiyatam or elsewhere, the Tribunal directed by its award that the workers should be paid 3 pies more per unit, that is, one anna and nine pies per gross of forties and at two annas per gross of sixties.
4. Another of the disputes in I. D. No. 59 of 1954 between the Madern Match Indus rice and its employees was, whether the management was justified in refusing to assign work to five women, and whether those five women should be reinstated in the employment of the Modern Match Industries. The Industrial Tribunal upheld the contention of the management, that these five women were not 'workmen' as defined by Section 2(s) of the Industrial Disputes Act and that no relief could be granted;
5. The management of both the factories and the workers appealed to the Labour Appellate Tribunal. The Appellate tribunal upheld the award of the 'Industrial tribunal enhancing the rates of wages. The Appellate Tribunal set aside the portion of the award of the Industrial Tribunal which had rejected the claim for reinstatement of the five women. The Appellate Tribunal held they were workmen and that their retrenchment was not justified and it ordered their reinstatement. Each of the petitioners applied under Article 226 of the Constitution for the issue of a writ of certiorari to set aside the awards as confirmed or modified by the Appellate Tribunal.
6. I shall first deal with the question that arises only with reference to I. D. No. 59 of 1954 that is, W. P. No. 98 of 1953. If the five women named in the order of reference under Section 10(1)(c) of the Act, 'Jayammal, Radha, G. vindammal, Vi obhai and Saroju were not 'workmen' within the meaning of Section 2(s) of the Act, a claim on their behalf could not be an industrial dispute, and the Industrial tribunal constituted under the Industrial Disputes Act would have no jurisdiction to adjudicate on a dispute between them and the management.
The question would really be one of jurisdiction, and the correct determination of that jurisdictional issue alone could confer jurisdiction on the Industrial Tribunal. If the determination of that jurisdictional issue by the Appellate Tribunal was wrong, that would suffice to negative the jurisdiction of the Appellate Tribunal to modify, in this case to substitute its award for the award the Industrial Tribunal could have given on that question but declined to give.
7. The relevant portion of Section 2(s) runs: 'Workman means any person employed in any industry to do any skilled or unskilled manual work for hire or reward. . . . .' The contention of the learned counsel for the petitioner was that the use of the expression 'employ-ed' in the statutory provision defining a workman necessitated the relationship of master and servant between the parties concerned before one could be held to be employed in the service of the other. That contention, in my opinion is well founded. Obviously if the person is not ''employed'' within the meaning of Section 2(s) he could not claim to be a workman as defined by that clause. In my judgment in W. P. No. 44.5 of 1954 (unreported) A(sic)ma-malai Mudaliar and Bros. v. Regional Provident Fund Commissioner: (since reported in (S) : (1955)ILLJ674Mad (A). I referred to Smith v. General Motor Cab Co., Ltd., 1911 AC 188 (B) and recorded:
'What would be the position if these principles were applied to the facts in issue in this case? The owner of the factory had really no control over the time taken by the worker to complete the work the latter had undertaken to do for the remuneration specified. The worker was under no obligation to attend on any particular day or at any particular hour. It is no doubt true that the worker had to do his work within the precincts of the factory, and I presume the hours of work in the factory would be regulated under the Factories Act.
But even during those hours no compulsion could be brought to bear upon the worker to do the work. Further as in, 1911 AC 188 (B) the owner of the factory was under no obligation to provide work for any given worker on any given day, that is, the owner was under no obligation to provide for a reasonable continuity of service or the work. These features would appear to 'militate against the existence of a jural relationship of master and servant.'
I also stated that if the time spent on the work was not at the disposal or under the orders of the owner of the factory, it would be difficult to hold that the relationship between the worker and the owner of the factory was that of servant and master.
8. In my opinion, unless the relationship of master and servant is proved a person who claims to be a workman within the meaning of Section 2(s) of the Act cannot be said to be employed within the meaning of that clause; and as I said, if he was not employed he would not be a workman as defined by that clause.
9. Therefore the question with reference to the facts held established in this case is whether there was a relationship of master and servant between the management and each of the five women named in the order of reference.
10. The Appellate Tribunal also held the view, that there should be the relationship of master and servant. It held that, on the material placed before it, such a relationship did exist. The Tribunal recorded:
'It appears that these workers (the five women workers in question) used to take the raw material to their house and they did what is called frame filling or box-making work, i.e., to fill up the frames with match sticks and make the match boxes. Nonetheless there does arise a relationship of master and servant and there does exist a control over them in the sense that they have to present themselves for work every day, carry raw material to their homes and finish the work as required within a certain time. Here is not a fluctuating body of workmen changing from clay-in and clay-out for about two years and the management could hardly refuse them work at their sweet will on a particular day without taking suitable action without assigning any reason...........
The term 'industry' has thus a sufficiently wide meaning to include the manual work do do which these female workers were employed for hire and the employee exercised sufficient control ever them in that they were required to execute the work according to the instructions as per the required standard and within a fixed time. It is not necessary that they should work in the workshop under the direct supervision of the management and simply for this reason such workers, cannot be called independent contractors.''
I agree with the view, that the place of work may not decide the issue, whether the relationship was that of master and servant. The real question is whether there was material on record on which the Appellate Tribunal could base Us findings, that the management exercised control over the workers and that the time of the workers was really at the disposal of the management. It should be noticed that no oral evidence was taken in this case.
The question at issue had to be disposed of on the basis of the claims and counter-claims of the management and the workers represented by their union. All that was stated in the statement filed by the workers regarding the second question, the dismissal of five women, was: 'The petitioner submits that all these workers have put in two or three years of permanent service.' What were the terms on which they worked was not disclosed. In paragraph 11 of its statement the management was no more helpful. It stated:
'This respondent denies................. The five women were admitted by out-workers. They cannot by any means be called permanent workers. They can stay away or be left out of work without assigning any reason. They are only casual workers who can be hired or dropped to suit the need of the workshop.'
The only other document, the report of the Labour Officer, whose attempts at conciliation failed, does not take us much further. That there was not sufficient data for reaching the conclusion should be obvious. The insufficiency of data is certainly not enough to reverse the finding of a statutory tribunal, the Appellate Tribunal. The question is, was there any evidence on which the appellate tribunal could come to the conclusion, that the relationship of master and servant had been established.
11. That the women had been regularly given work may not materially affect the issue. Could they be compelled to work if they did not choose to, would be one of the tests. If the claim of the management, which was not disputed, that the Women could slay away without assigning any reason, is correct, there is certainly absence of control over the services of these women. They did their work in their own homes outside the factory. But that again may not be relevant, because if the time to be spent on the work given to them, the work being done in their own homes, was at the disposal of the management, that should be sufficient.
Even to prove that there was no evidence. Though the Appellate Tribunal recorded that they had to finish the work within a certain time, on what evidence that finding was based I am unable to gather. If the position was that they were expected to finish their work within a reasonable time and deliver the finished goods to the management before claiming the remuneration due to them and if the management thought that they had failed to keep up to that standard and therefore decided not to entrust them with any more work, that would not be Sufficient to prove that one of the terms of the contract between them was that the work allotted should be completed within the specified time or that that time was at the disposal of the management.
12. In my opinion, there was really no evidence on which the Appellate Tribunal could rest its decision that the relationship of master and servant existed as between these five women and the petitioner. The portion of the substituted award given by the Appellate Tribunal directing the reinstatement of these five women with back wages with effect from 15-10-1954 was without jurisdiction, and it is therefore liable to be set aside.
13. The question that arises both in W. P. No. 96 of 1956 and W. P. No. 322 of 1956 is whether the Industrial Tribunal had jurisdiction to award an enhancement of wages. That the wages paid before the dispute were the highest paid by any employer in that industry was not disputed. That, of course, would not affect the question of jurisdiction. The Industrial Tribunal pointed out that payment at the old rates came nowhere near what had been accepted as the minimum living wage, Rs. 26 a month. The learned counsel for the petitioner urged that the Industrial Tribunal had no jurisdiction in adjudicating upon an industrial dispute to rest its decision on any grounds of policy.
He urged that the function of the Industrial Tribunal, called upon to adjudicate, was a judicial function and that judicial function could be exercised only on the material placed before it by the com' tending parties and not on any grounds of policy. If it rested its decision on any grounds of policy it ceased to be in discharge of any judicial function and since its function was judicial any such decision passed upon a ground of policy would be beyond its jurisdiction as a tribunal invested with judicial functions to discharge, it would really be arrogating to itself a legislative power which it did not possess such was the contention of the learned counsel for the petitioner.
14. I am unable to accept as sound in law the restricted scope of the jurisdiction of the Industrial Tribunal, for which the learned counsel for the petitioner contended. It may be taken as well settled now that though the functions of the Industrial Tribunal arc quasi-judicial, it is not a Court as that expression is normally understood. Though its functions arc quasijudicial, an Industrial Tribunal cannot be denied the jurisdiction to take into account the relevant factor that Rs. 26 a month is normally accepted as the minimum living wage for a workman, and if an award is based on such a factor it cannot, in my opinion, be said to be one in excess of the jurisdiction vested in the Industrial Tribunal though that jurisdiction passes under the name of adjudication of industrial dispute.
15. The quantum of the wages payable under the award, of course, is not within the purview of my jurisdiction exercised under Article 226 of the Constitution.
16. I have no hesitation in rejecting the contention of the learned counsel for the petitioner that the Industrial Tribunal and the Appellate Tribunal acted in excess of their jurisdiction in awarding an enhancement of wages.
17. The rule issued in W. P. 322 of 1956 will stand, discharged and that petition will stand dismissed.
18. In W.P. No. 96 of 1956 the rule nisi will be' made absolute in part in so far as it relates to the order of the Appellate Tribunal directing reinstatement of the five women mentioned above.
19. There will however be no order as tocosts.