TMI Blog1958 (2) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... h independent contractors, known as Sattedars, for the supply of bidis locally. The documents embodying the terms of the contract entered into by the Sattedars were not produced in the case. But the terms of the contract are not in dispute. The Management supplies tobacco to the Sattedars and in some cases bidi leaves. Some of the Sattedars maintain a small factory where they get bidis manufactured by engaging coolies. Others give tobacco and bidi leaves to outsiders who prepare bidis in their houses. After bidis are rolled in the Sattedars collect the bidis so manufactured and take them to the factory directly or through coolies where they are sorted and checked by the workers in, the factory. The selected or approved bidis are separately packed in bundles of 10 and 25 and taken by the Sattedars or the coolies in gauze trays to tandul and left there. The rejected bidis, commonly known as I chhant are again rebundled by the Sattedars and delivered to the factory. The management pays the Sattedars the cost of the manufacture of bidis after deducting therefrom the cost of tobacco supplied to them. Thereafter the second stage of the process of the manufacture begins in the factory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of the Judge-Magistrate, Sagar, against the appellants for violation of the provisions of ss. 62 and 63 of the Act, under the former for failure to maintain the register of adult workers with all the prescribed entries duly filled in and under the latter for allowing the workers to work in the factory without making beforehand the entries of their attendance in the register of adult workers. The Judge-Magistrate, Sagar, held that the appellants contravened the provisions of the aforesaid sections and on that finding convicted them under s. 92 of the Act and directed them to pay a fine of ₹ 50 and ₹ 25 respectively. On appeal the Second Additional Sessions Judge, Sagar, confirmed the conviction of the 2nd appellant for contravening the provisions of ss. 62 and 63 but set aside that of the 1st appellant in regard to s. 62 but confirmed the conviction for contravening s. 63 of the Act. The Revision Petition filed by the appellants in the High Court of Judicature at Nagpur was dismissed. As aforesaid with Special Leave of this Court, this appeal was filed against the Order of the High Court. The conflicting contentions of the parties may briefly be stated. The learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guilty of an offence and punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both, and if the contravention is continued after conviction, with a further fine which may extend to seventyfive rupees for each day on which the contravention is so continued. Section 2(1) worker means a person employed, directly or through any agency, whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process. Section 2(m) factory means any premises including the precincts thereof- (i) Whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or (ii) Whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the ai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the employer and the employee hereunder the employee agrees to serve the employer subject to his control and supervision. Can it be said that a Sattedar is employed by the management of the factory to serve under it ? There is a well understood distinction between a contractor and a workman and between contract for service and contract of service. In Stroud s Judicial Dictionary (Third Edition, Volume 1, Page 616) the distinction between a contractor and a workman is brought out in bold relief in the following manner: Of course, every person who makes an agreement with another for the doing of work is a contractor, in a general sense; but as used in Workmen s Compensation Act, 1897 (60 61 Vict., c. 37), s. 4 contractor and WORKMAN have come to have a more restricted and distinctive meaning, and contractor means one who makes an agreement to carry out certain work specified, but not on a contract of service . The same idea is repeated in a different terminology thus.. A contractor is a person who, in the pursuit of an independent business, undertakes to do specific jobs of work for other persons, without submitting himself to their control in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .................... There is no reason why the test laid down by this Court in the context of the definition of workman under the Industrial Disputes Act of 1947, cannot be invoked or applied for ascertaining whether a person is a worker under the Act. If the test be applied, it is not possible to hold that Sattedars in the present case, having regard to the nature of the work under. taken by them and the terms whereunder their services were engaged, are workers within the meaning of the definition under the Act. It has been established in the present case that the Sattedar is only an independent contractor and the agreement between the management and the Sattedar is only that the Sattedar should receive tobacco from the management and supply them rolled in bidis for consideration. He is not under the control of the factory management and he can manufacture bidis wherever he pleases. It is immaterial to the management whether he makes the bidis in his own factory or distributes tobacco to different individuals for making bidis under a separate agreement entered into by him with them. The management cannot regulate the manner of discharge of his work. His liability is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through any agency. That that should be the construction of the provisions of s2 (1) of the Act is reinforced by other relevant provisions of the Act. Chapter 6 is headed Working hours of Adults . Section 51 prescribes the weekly hours of work for a worker. Section 52 provides that no adult worker shall be required or allowed to work in a factory on the first day of the week and if he is made to work on that day for the substitution of another holiday in its place. Section 53 gives compensatory holiday to a worker who is made to work on a regular holiday. Section 54 fixes the daily hours of work and s. 55 intervals for rest. Section 56 limits the spread over of period of work for an adult worker to 10 1/2 hours in a day, including the intervals for rest. Sections 57, 58, and 59 deal with night shifts prohibition of overlaping shifts and extra wages for overtime. Section 60 prohibits double employment, i. e., employment of the same worker in a factory on any day on which he has already been working in any other factory. Section 61 enjoins on the management of the factory to display and maintain the notice of periods of work for adults, showing clearly for every day the periods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the word worker in the Factories Act. There the facts were: On November 10, 1943, a new battery of boilers was being erected on the premises of the Jubbulpore Electric Supply Co. in order to supply energy to the New Ordnance Factory at Khamaria. The work of erection was entrusted to Messrs. Babcock and Wilcox of Calcutta. The persons who were employed by Messrs. Babcock and Wilcox were found working in the premises of the Electric Supply Co. in contravention of the provisions of the Factories Act. The question was whether the employees of an independent contractor were workers as defined under s. 2 (1) of the Act. Pollock J. who delivered the judgment of the Division Bench stated at page 44 thus: The definition of worker is a very wide one, and it is wide enough, in our opinion, to include per. sons employed in repairing machinery or putting up new machinery, even if such a machinery is not in actual use at the time. It may be noticed that no contention was raised in that case that the persons found in the factory were not the employees of Jubbulpore Electric Supply Co. The only question raised and decided was whether the persons employed in repairing the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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