TMI Blog1973 (9) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... * Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0cm 5.4pt 0cm 5.4pt; mso-para-margin-top:0cm; mso-para-margin-right:0cm; mso-para-margin-bottom:10.0pt; mso-para-margin-left:0cm; line-height:115%; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri","sans-serif"; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin; mso-fareast-language:EN-US;} <![endif]--> MATHEW, KUTTYIL KURIEN, BEG, M. HAMEEDULLAH AND MUKHERJEA, B.K., JJ. S. I/. Gupte, and S. Markandya for the Appellant P. Rama Reddy and A. P. Nair, B. P. Maheshwari and Suresh Sethi for the Respondent JUDGEMENT MATHEW, J. In this appeal, by, special leave, the question for consideration is whether the High Court of Andhra Pradesh was right in accepting the conclusion arrived at by the Chief inspector of Shops and Establishments, Hyderabad that, employer and employee relationship existed between the Silver Jubilee, Tailori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orkers are paid on piece-rate basis. The workers generally attend the shops every day if there is work. The rate of wages paid to the workers is not uniform. The rate depends upon the skill of the worker and the nature of the work. When cloth is given for stitching to a worker after it has been cut, the worker is told how he should stitch it. If he does not stitch it according to the instruction, the employer rejects the work and he generally asks the worker to restitch the same. When the work is not done by a worker according to the instructions generally no further work would be given to him. If a worker does not want to go for work to the shop on a day, -he does not make any application for leave nor is there any obligation on his part to inform the employer that he will not attend for work on that day. If there is no work, the employee is free to leave the shop before the shop closes. Almost all the workers work in the shop. Some workers are allowed to take cloth for stitching to their homes on certain days. But this is done always with the permission of the proprietor of shop. The 'machines installed in the shop belong to the proprietor of the shop and the premises and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt said that the prima facie test to determine whether there was relationship between employer and employee 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, employee is to do but also the manner in which he had to do the work. In other words, the proper test according to this Court is, whether or not the master has the right to control the manner of execution of the work. The Court further said that the nature of extent of the control might vary from business to business and is by its nature incapable of precise definition, that it is not necessary for holding that a person is an employee that the employer should be proved to have exercised control over his work, that even the test of control over the manner of work is not one of universal application and that there are many contracts in which the master could not control the manner in which the work was done. In Birdhichand Sharma v. The First Civil Judge, Nagpur and others ([1961] 3 S. C. R. 161) the question was whether the bidi rollers in question there were workmen within the meaning of that term in the Factories Act, 194 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants. The system was that the appellant paid a certain sum for the manufactured bidis, after deducting therefrom the cost of tobacco and the leaves already fixed, to the contractors, who, in their turn, and to the workmen who rolled bidis, their wages. Whatever remained after paying the workmen would be contractors' commission for the work done. There was no sale either of the raw materials or of the finished products, for, according to the agreement, if the bidis were not rolled, raw materials had to be returned to the appellants and the contractors were for- bidden from selling the raw materials to anyone else. Further the manufactured bidis could only be delivered to the appellants who supplied the raw materials. Further the price of raw materials and finished products fixed by the appellants always remained the name and never fluctuated according to market rate. The Tribunal concluded that the bidi workers were the employees of the appellants and not of the so-called contractors who were themselves nothing more than employees or branch managers of the appellants. There- upon, the appellants filed writ petitions in the High Court, which held that neither the bidi roller no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istinguished the decision in Birdhichand's case (supra) and said that the appellant had no control or supervision over the work of Pandurang. The reasoning of the majority was as follows The appellant could not control his (Pandurang's) hours of work. He could not control his days of work. Pandurang was free to absent himself and was free to go to the factory at any time and leave it at any time according to his will. The appellant could not insist on any particular minimum quantity of bidis to be turned out per day. He could not control the time spent by Pandurang on the rolling of a bidi or a number of bidis. The work of rolling bidis may be, a simple work and may require no particular supervision and direction during the process of manufacture. But there is nothing on record to show that any such direction could be given. 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. The manner of work is to be distinguished from the type of work to be performed. In the present case, the management simply says that the lab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a ship. In many skilled employments, to apply the test of control over the manner of work for deciding the question whether the relationship of master and servant exists would be unrealistic. In Montreal v. Montreal Locomotive Works Ltd. et-al(3) Lord Wright said that a single test, such as the presence or absence of control, was often relied on to determine whether the case was one of master and servant, mostly in order to decide issues of tortious liability on 7 5 5 the part of the master or superior and that in the more complex conditions of modern industry, more complicated tests have often to be applied. He said that it would be more appropriate to apply, a complex test involving (i) control; (ii) ownership of the tools; (iii) chance of profit; (iv) risk of loss, and that control in itself is not always conclusive. He further said that in many cases the question can only be settled by examining the whole of the various elements which constitute the relationship between the parties. In Bank Voor Handel en Scheepvaart N. V. v. Slatford(l) Denning L. J., said : . . the test of being a servant does not rest nowadays on submission to orders. It depends on whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to skilled and particularly professional work that control test in its traditional form has -really broken down. It has been said that in interpreting 'Control' as meaning the power to direct how the servant should do his work, the Court has been applying- a concept suited to a past age. This distinction (viz., between telling a servant what to do and telling him how to do it) was based upon the social conditions of an earlier age; it assumed that the employer of labour was able to direct and instruct the labourer as to the technical methods he should use in performing his work. In a mainly agricultural society and even in the earlier stages of the Industrial Revolution the master could be expected to be superior to the servant in the knowledge, skill and experience which had to be brought to-bear upon the choice and handling of the tools. The control test was well suited to govern rela tionships like, those between a farmer and an agricultural labourer (prior to agricultural mechanization) a craftsman and a journeyman, a householder and a domestic servant, and even a factory owner and an unskilled 'hand'. It reflects a state of society in which the ownership ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means nothing more than that the employer has the liberty not to give further work to an employee who has not performed his job according to the instructions of the employer, or who has been absent from the shop for a long time as spoken to by the Inspector of Labour in his evidence, would bespeak of control and supervision consistent with the character of the business. That the workers work on the machines supplied by (fie proprietor of the shop is an important consideration in determining the nature of the relationship. If the employer provides the equipment, this is some indication that the contract is a contract of service, whereas if the other party provides the equipment, this is some evidence that he is an independent contractor. It seems that this is not based on the theory that if the employer provides the equipment he retains some greater degree of control, for, as already seen, where the control arises only from the need to protect one's own property, little significance can attach to the power of control for this purpose. It seems, there- fore, that the importance of the provision of equipment lies in the simple fact that, in most circumstances, where a person h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stomers pleased and he has also to be punctual, which means that the stitching must be done according to the instruction of the employer and within the time specified. ]-he degree of control and supervision would be different in different types of busi- ness. If an ultimate authority over the worker in the performance of his work resided in the employer so that he was subject to the latter's direction. that would be sufficient. - In Humberstone v. Norther Timber HIlls(2), Dixon, J. said : The question is not whether in practice the work was in fact done subject to a direction and control exercised by Vicarious Liability in the Law of Torts , p. 65. an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter's order and directions . That some of the employees take up the work from other tailoring establishments and do that work also in the shop in which they generally attend for work, as spoken to by the proprietor in his evidence, would not in any way militate against their being employees of the proprietor of the shop whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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