TMI Blog1956 (11) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... acturing process in the Chemical Works at Dharangadhara and the remaining salt is sold to outsiders. The appellants employ a Salt Superintendent who is in charge of the Salt Works and generally supervises the Works and the manufacture of salt carried on there. The appellants maintain a railway line and sidings and also have arrangements for storage of drinking water. They also maintain a grocery shop near the Salt Works where the agarias can purchase their requirements on credit. The salt is manufactured not from sea water but from rain water which soaking down the surface becomes impregnated with saline matter. The operations are seasonal in character and commence sometime in October at the close of the monsoon. Then the entire area is parceled out into plots called pattas and they are in four parallel rows intersected by the railway lines. Each agaria is allotted a patta and in general the same patta is allotted to the same agaria year after year. If the patta is extensive it is allotted to two agarias who work the same in partnership. At the time of such allotment, the appellants pay a sum of ₹ 400/for each of the pattas and that is to meet the initial expenses. Then th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under which the agarias should be engaged by the appellants in the manufacture of salt. The Government of Saurashtra, by its letter of Reference dated November 5, 1951, referred the disputes for adjudication to the Industrial Tribunal, Saurashtra State, Rajkot. The appellants contested the proceedings on the ground, inter alia, that the status of the agarias was that of independent contractors and not of workmen and that the State was not competent to refer their disputes for adjudication under s. 10 of the Act. This question was tried as a preliminary issue and by its order dated August 30, 1952, the Tribunal held that the agarias were workmen within the meaning of the Act and that the reference was intra vires and adjourned the matter for hearing on the merits. Against this order the appellants preferred an appeal being Appeal No. 302 of 1952, before the Labour Appellate Tribunal of India, and having failedto obtain stay of further proceedings before the Industrial Tribunal pending the appeal, they moved the High Court of Saurashtra in M.P. No. 70 of 1952 under Arts. 226 and 227 of the Constitution for an appropriate writ to quash the reference dated November 5, 1951, on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equire 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 ,;hall be done. (Per Hilbery, J. in Collins v. Hertfordshire County Council (1).) The test is, however, not accepted as universally correct. The following observations of Denning L.J., at pp. 110, III in Stevenson, Jordan and Harrison Ltd. v. Macdonald and Evans (2) are apposite in this context: But in Cassidy v. Ministry of Health (3) Lord Justice Somervell, pointed out that test is not universally correct. There are many contracts of service where the master cannot control the manner in which the work is to be done as in the case of a captain of a ship. Lord Justice Somervell, went on to say: One perhaps cannot get much beyond this: 'Was the contract a contract of service within the meaning which an ordinary man would give under the words'? I respectfully agree. As my Lord has said, it is almost impossible to give a precise definition of the distinction. It is often easy to recognize a contract of service when you see it, but difficult to say wherein the difference lies. A ship's master, a chauffeur, and a rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in Halsburv's Laws of England, Hailsham edition, Vol. 22, page 112, para. 191: Whether or not, in any given case, the relation of master and servant, exists is a question of fact; but in all cases the relation imports the existence of power in the employer not only to direct what work the servant is to do, but also the manner in which the work is to be done. : and until the position is restated as contemplated in Short v. J. W. Henderson Ltd., (supra), we may take it as the prima facie test for determining the relationship between master and servant, 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 page 23 in Mersey Docks and Harbour Board v. Coggins Griffith (Liverpool) Ltd., and Another (1), The proper test is whether or not the hirer had authority to control the manner of execution of the act in question The natur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court, exercising its jurisdiction under Arts. 226 and 227 of the Constitution, was not competent to set aside the finding of fact recorded by the Industrial Tribunal and that we, here, entertaining an appeal from the decision of the High Court, should also not interfere with that finding of fact. Reliance was placed on the observations of Mahajan, J., as he then was, in Ebrahim Aboobakar v. Custodian General of Evacuee Property ([1952] S.C.R. 696,702) It is plain that such a writ cannot be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong. Indeed, it must be shown before such a writ is issued that the authority which passed the 'order acted without jurisdiction or in excess of it or in violation of the principles of natural justice...... But once it is held that the court has jurisdiction but while exercising it made a mistake, the wronged. party can only take the course prescribed by law for setting matters right inasmuch as a court has jurisdiction to decide rightly as well as wrongly. There is considerable force in this contention of the respondents. The question whether the relationship between t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s they should pay them. The company's supervision over the work of the panholders is limited to the proper quality as per requirements of the Company and as per standard determined by the Government in matter of salt. , The company's supervision is limited to this extent. The Company acts in accordance with Clause 6 of the said agreement in order to get the proper quality of salt. Panholders are not the workmen of the Company, but are contractors. The men, who are entrusted with pattas, work themselves. They can engage others to help them and so they do. There is upto this day no instance that any penholder who is entrusted with a patta, has not turned up to work on it. But we do not mind whether he himself works or not. If any penholder after registering his name (for a patta) gets work done by others, we allow it to be done. We own 319 pattas. Some patta8 have two partners. In some, one man does the job. ID all the pans, mainly the panholders work with the help of their (respective) families. Clause 6 of the agreement referred to in the course of his evidence by the Salt Superintendent provided: 6. We bind ourselves to work as per advice and instructions of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own labour and pay for it. In our opinion neither of these two circumstances is decisive of the question. As regards the first, the argument of the appellants is that as, the agaria8 are under no obligation to work for fixed hours or days and are to be paid wages not per day or hours but for the quantity of salt actually produced and passed, at a certain rate,, the very basis on which the relationship of employer and employees rests is lacking, and that they can only be regarded as independent contractors. 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 (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 (2) and Halsbury's Laws of England , Hailsham edition, Vol. 22, page 119, para. 194, wherein it is stated that if a person is a wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial Tribunal. These difficulties, however, are no deterrent against holding the agarias to be workmen within the meaning of the definition if they fulfil its requirements. The Industrial Tribunal would have to very well consider what relief, if any, may possibly be granted to them having regard to all the circumstances of the case and may not be able to regulate the work to be done by the aqarias and the remuneration to be paid to them by the employer in the manner it is used to do in the case of other industries here the conditions of employment and the work to be done by the employees is of a different character. These considerations would necessarily have to be borne in mind while the Industrial Tribunal is adjudicating upon the disputes which have been referred to it for adjudication. They do not, however, militate against the conclusion which we have come to above that the decision of the Industrial Tribunal to the effect that the agarias are workmen within the definition of the term contained in s. 2 (s) of the Act was justified on the materials on the record. We accordingly see no ground for interfering with that decision and dismiss this appeal with costs. Appeal dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
