TMI Blog1961 (10) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... up of such a notice, but denied that Pandurang, the labourer, had left his service of his own accord. Inspector Shinde, P.W.I, visited this factory August on 22, 1957. He found from the weekly register and the wages register of the Factory that Pandurang worked for 70 days and earned 4 days T. leave. Pandurang, however, did not enjoy that leave and was therefore entitled to be paid wages for that period i.e., for 4 days' leave. He was not paid those wages, and therefore, the appellant contravened the provisions of s. 79(11) of the Act. He consequently submitted a complaint against the appellant to the Judicial Magistrate, First Class, Sinnar. It was contended for the accused before the Magistrate that Pandurang was not a worker within the meaning of that expression, according to s.2(1) of the Act and that therefore no leave could be due to him and the appellant could not have committed the offence of contravening the provisions of s.79(11). The learned Magistrate did not agree with the defence contention and held Pandurang to be a worker and convicted the appellant of the offence under 8. 92 read with s. 79(11) of the Act and sentenced him to a fine of ₹ 10. It m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng for being taken home and cut there. Tobacco to fill the bidis used to be supplied at the factory. Pandurang was not bound to roll the bidis at the factory. He could do so at his place, on taking permission from the appellant for taking tobacco homes. The permission was necessary in view of Excise Rules and not on account of any condition of alleged service. (7) At the close of the day, the bidis used to be delivered to the appellant and bidis not up to the standard, used to be rejected. The second contention is based on the inapplicability of the provisions of ss. 79 and 80 of the Act to the case of the appellant, inasmuch as it is not possible to calculate the number of days he worked or the total full time earnings for the days on which he worked during the relevant period mentioned in s. 80. On behalf of the respondent State, it is submitted that the appellant had the right to exercise such supervision and control over the work of Pandurang as was possible with respect to the nature of Pandurang's work which was of a very simple kind and that therefore Pandurang was a worker. It is further urged that there is no difficulty in calculating the number of working ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause. There is no dispute that the work which Pandurang did came within one of such processes. The sole question for determination then is whether Pandurang can be said to be employed by the appellant. This Court, in Shri Chintaman Rao v. The State of Madhya Pradesh ([1958] S. C. R. 1340, 1346,1349,1350, 1351), said: The concept of employment involves three ingredients: (1) employer (2) employee and (3) the contract of employment,. The employs is one who employs, i.e., one who engaged the services of other persons. The employee is one who works for another for hire. The employment is the contract of service between the employer and the employee whereunder the employee agrees to serve the employer subject to his control and supervision. Employment brings in the contrast of service between the employer and the employed. We have mentioned already that in this case there was no agreement or contract of service between the appellant and Pandurang. What can be said at the most is that whenever Pandurang went to work, the appellant agreed to supply him tobacco for rolling bidis and that Pandurang agreed to roll bidis on being paid at a certain rate for the bidis turned out. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he liked. His liability under the daily agreement was discharged by his delivering the bidis prepared and the tobacco remaining with him unused. The appellant could only order or require Pandurang to roll the bidis, using the tobacco and leaves supplied to him, but could not order him as to how it was to be done. We are therefore of opinion that the mere fact that the person rolling bidis has to roll them in a particular manner can hardly be said to give rise to such a right in the management as can be said to be a right to control the manner of work. Every worker will have to turn out the work in accordance with the specifications. The control of the management, which is a necessary element of the relationship of master and servant, is not directed towards providing or dictating the nature of the article to be produced or the work to be done, but refers to the other incidents having a bearing on the process of work the person carries out in the execution of the work. The manner of work is to be distinguish. ed from the type of work to be performed. In the present case, the management simply says that the labourer is to produce bidis rolled in a certain form. How the labourer carri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der his contract of service, an obligation to work either for a fixed period or J. between fixed hours. The whole conception of service does not fit in well with a servant who has full liberty to attend to his work according to his pleasure and not according to the orders of his master. We may say that this opinion further finds support from with we hold on the second contention. If Pandurang was a worker, the provisions about leave and leave wages should apply to him. We are of opinion that they do not and what we may in that connection reinforces our view that Pandurang was not a worker as the three criteria and conditions laid down in Shri Chintaman Rao's Case ([1958] S. C. R. 1340, 1346, 1349,1350, 1351) for constituting him as such are not fulfilled in the present case. Before discussing the provisions of ss.79 and 80 of the Act. which deal with leave and wages for leave, we would like to state that the terms on which Pandurang worked, did not contemplate any leave. He was not in regular employ. He was given work and paid according to the work he turned out. It was not incumbent on him to attend to the work daily or to take permission for absence before absenting him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than nine hours in any day. Section 61 provides that there shall be displayed and correctly maintained in every factory a notice of periods of work for adults showing clearly for every day the periods during which adult worker may be required to work and that such periods shall be fixed beforehand and shall be such that workers working for those periods would not be working in contravention of any of the provisions of ss. 51, 52, 54, 55, 56 and 58. Section 63 lays down that no adult worker shall be required or allowed to work in any factory otherwise than in accordance with the notice of periods of work for adults displayed in the factory. A 'day', in this context, would mean a period of work mentioned in the notice displayed. Only that worker can therefore be said to work for a period of 240 days, whose work is controlled by the hours of work he is required to put in, according to the notice displayed under s. 61. Pandurang was not bound to work for the period of work displayed in the factory and therefore his days of work for the purpose of s. 79 could not be calculated. It is urged for the State that each day on which Pandurang worked, whatever be the period of tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is also stated at page 791: 'Full time' as basis for determination of average weekly wages of injured employee means time during which employee is offered employment, excluding time during which he has no opportunity to work. We are therefore of opinion that there can be no basis for calculating the daily. average of the worker's total full time earnings when the terms of work be as they are in the present case and that therefore the wages to be paid for the leave period cannot be calculated nor the number of days for which leave with wages can be allowed be calculated in such a case. It does not appear from the record, and it is not likely, that any period of work is mentioned in the notice displayed under s. 61, with respect to such workers who can come at any time they like and go at any time they like and turn out as much work as they like. For the reasons stated above, we are of opinion that the conviction of the appellant for an offense under s. 92; read with s. 79(11) of the Act is wrong. We accordingly set aside the order of the Court below and acquit the appellant. Fine, if paid, will be refunded. SUBBA RAO, J.- I have had the advantage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot workers within the meaning of the Act, as the said persons can come any day they like, work as they like and, therefore, they cannot be said to by employed by the manufacturer under the Act. Alternatively he argues that even if they were ''workers , s. 79 of the Act, which deals with the question of leave with wages, cannot apply to a worker who is paid wages according to the quantity of work done by him and not per day or par week. At the outset it would be convenient to ascertain exactly how these persons rolling bidis are engaged by the appellant and how they work ill the factory. Admittedly, Pandurang Trimbak and other 59 persons were engaged by the appellant for rolling bidis in his factory. The registers maintained by the factory, namely, weekly register and wages register, had on their rolls the names of the said persons as labourers for doing the said work. It is also common case that the said persons attend the factory and roll bidis in the premises of the factory during the working hours of the factory. Leaves are supplied to the labourers on the previous day, which they cut in their houses after dipping them in water, and on the neat day, when they go to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccord with the sample and, therefore, they roll the bidis to accord with that sample. The names of persons that are absent, the quantity of tobacco issued to each of the labourer, and the number of bidis rolled by each of them are entered in the appropriate registers. The rejected bidis are given way to the labourers; it cannot obviously mean that dereliction of duty is rewarded but it only shows that the rejected bidis are insignificant in number. In short, the appellant engages a labourer, extracts work from him, pays him wages in accordance with the quantity of bidis rolled by him, and exercises a right of supervision as the nature of the work requires. With this background let us look at the definition of worker ' in s. 2(1) of the act ''Worker is defined to mean ''a person employed, directly or through agency, whether for wages or not in any manufacturing process. Under this definition, a person employed in a manufacturing process in a worker. The question raised in this case turns upon the interpretation of the word 'employed in the definition. This Court in Chintaman Rao v. State of Madhya Pradesh ('1A) defined the word ''employed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here towels and bed-sheets were manufactured. His office consisted of only two clerks, who were this permanent members of his establishment. Some of the residents of the village, most of whom were agriculturists, but who knew waving used to go to the petitioner's shed when they had e, and when they felt inclined to do to and they were supplied with yarn. These, they wove into bed sheets and towels and they were paid at certain rates for the articles they wove. These persons came in and went out when they liked. On those facts, Balakrishna Ayyar, J., held that they were not workers within the definition of the word ' worker in the Factories Act. After considering the relevant decisions cited and after distinguishing the cases arising under the Industrial Disputes Act, the learned Judge proceeded to state thus: An examination of these decision confirms what one was inclined to suspect at the outset, viz., that employed is a word with a varying content of meaning and that it signifies different things in different places .................. On the other hand, when we say that X is employed by Y we ordinarily imply that Y remunerates X for his services and that he has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visor, who regularly attends the factory, to supervise the supply of tobacco and leaves and the receipt of the bidis rolled. The nature and pattern of bidis to be rolled is obviously well understood, for it in implicit in requirement that the rolled in bidis shall accord with the sample. The rejection of bidis found not in accord with the sample is a clear indication of the right of the employer to dictate the manner in which the labourers shall manufacture the bidis. Supposing a worker uses more quantity of tobacco than a bidis is, expected to contain, it cannot be suggested that the supervisor cannot tell him that he shall not do to. If he spoils the leaves, which he in not expected to do, it cannot be said that the labourer cannot be pulled up in the direction. So too, the supervisor can certainly compel the labourers to work in a specified portion of the factory or direct them to keep order a rid discipline in the course of the discharge of their duties. The fact that they cannot take the tobacco outside the factory without the leave of the management shows that they are subject to the supervision of the management. The circumstance that they cannot absent them selves for more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is unsound. The following words stand out in s. 80(1) full time earning and (ii) days. Day has been defined in s. 2(e) to mean ' a period of twenty four hours beginning at midnight . It cannot be suggested, and it is not suggested, that 'full time earnings for a day means earnings made during all the twenty- four hours. Such a contention cannot be raised for the reason that the provision of the Factories Act restrict the number of hours of work during the day of twenty- four hours. Under s. 51 of the Act, ' No adult worker shall be required or allowed to work in a factory for more than forty-eight hours in one week , and under a 54, Subject to the provisions of section 51, no adult worker shall be required or allowed to work in a factory for more than nine hours in any day . A combined reading of these two sections indicates that subject to the maximum period of working hours fixed for a week, no worker shall be allowed to work for more than a hours a day. For the purpose of calculation of wages during the leave period under s. 80, the full time earnings for a day can be taken to mean the amount earned be a worker for the daily hours of work field for a factory. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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