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TMI Blog1973 (9) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... eal, 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, Tailoring House and others, the appellants, and the workers represented by the second respondent, and that the provisions of Andhra Pradesh (Telengana Area) Shops and Establishments Act, 1951, hereinafter referred to as the Act, was therefore applicable to the establishments in question. The, second respondent representing the workers, made certain claims before 'the competent authority' under Section 37A of the Act read with Section 15 of the Payment of Wages Act 1936 against the Silver Jubilee Tailoring House and Others, the appellants. Thereafter, "the competent authority" referred for the decision of the State Government under Section 49 of the Act, the question whether the provisions of the Act are applicable to the establishments. The Government in turn referred the matter to the Commissioner of Labour to whom the power to decide the question was delegated under S. 46 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 shop in which the work is carried on also belong to him. The question is whether from these circumstances the conclusion drawn by the Chief Inspector of Shops and Establishments and the High Court that there existed employer and employee relationship between the appellants and the workers represented by the 2nd respondent was correct. It was argued for the appellants that according to the decisions of this Court the test to determine whether employer and employee relationship existed between the parties is to see whether the so called employer has the right to control and supervise the manner of work done by the workers and from the facts found by the High Court it is impossible to come to the conclusion that the appellants had any right to control the manner of work or that they had actually exercised any such control. It is therefore necessary to examine the question wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts 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, 1948. The facts found were : The workers who rolled the bidis had to work at the factory and where not at liberty to work at their houses their attendance was noted in the factory and they had to work within the factory hours, though they were not bound to work for the entire period and could come and go away when they liked, but if they came after midday they were not supplied with tobacco and thus not allowed to work even though the factory closed at 7 p.m. Further, they could be removed front service if absent for eight days. Payment was made on piece rates according to the amount of work done, and the bidis which did not come upto the proper standard could be rejected. On these facts, it was held that the workers were workmen under the Factories Act and were not independent contractors. This Court pointed out that the nature and extent of control varied in different indu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 nor the intermediary was an employee of the appellants, and allowed the writ petitions. On appeal by the workmen the appellate Court allowed the appeal and restored the order of the Tribunal. On appeal by certificate, this Court said that, on the facts found, the appellate Court was right in holding that the conclusion reached by the Tribunal that the intermediaries were merely branch managers appointed by the management, and thatthe relationship of employers and employees subsisted betweenthe appellants and the bidi rollers, was correct. In following thetest laid down in Birdhichand's case (supra) the Court said since the work is of such a simple nature, supervision all the time is not required, and that supervision was made through a system of rejecting the defective bidis at the end of day. In Shankar Balaji Wage v. State of Maharashtra(l) the question again came up for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson 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 labourer is to produce bidis rolled in a certain form. How the labourer carries out the work is his own concern and is not controlled by the management, which is concerned only with getting bidis rolled in a particular style with certain contents". Subba Rao, J. as he then was, dissented. He said. The appellant engages the labourers; he entrusts them with work of rolling bidis in accordance with the sample; he insists upon their working in the factory, maintains registers giving the particulars of the labourers absent, amount of tobacco supplied and the number of bidis rolled by each one of them, empowers the gumasta and superviser, 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 is implicit in the requireme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the person is part and parcel of the Organisation......." In U.S. v. Silk(2) the question was whether men working for the plaintiffs, Silk and Greyvan, were "employees" within the meaning of that word in the Social Security Act, 1935. The judges of the Supreme Court of U.S.A., agreed upon the test to be applied, though not in every instance upon its application to the facts. They said that the test was not "the common law test," viz., "power of control, whether exercised or not, over the manner of performing service to the undertaking," but whether the men were employees "as a matter of economic reality." Important factors were said to be "the degrees of control, opportunities of profit or loss, investment in facilities, permanency of relations and skill required in the claimed independent operation." Silk sol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 of the means of production coincided with the profession of technical knowledge and skill in which that knowledge and skill was largely acquired by being handed down from one generation to the next by oral tradition and not by being systematically imparted in institutions of learning from universities down to technical schools. The control test postulates a combination of managerial and technical functions in the person of the employer, i.e. what to modern eyes appears as an imperfect division of labour.(2) It is, therefore, not surprising that in recent years the control test as traditionally formulated has not been treated as an exclusive test. It is exceedingly doubtful today whether the search for a formula in the nature of a single test to tell a contract of service from a contract for se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 hires out a piece of work to an independent contractor, he expects the contractor to provide all the necessary tools and equipment, whereas if he employs a servant he expects to provide them himself. It follows from (1) See Atiya'h. P. S. "Vicarious Liability in the Law of Torta" pp. 37-38. this that no sensible inference can be drawn from this factor in circumstances where it is customary for servants to provide their own equipment.(') Section 220(2) of the American Restatement, Agency 2d. includes among the relevant factors : "(e) Whether the employer or the workman supplies the instrumentalities, tools, and the Place of work for 'the person doing the work". The comment on the first part of this paragraph is in these words: "Ownership of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity 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 where they attend for work. A person can be a servant of more than one employer. A servant need not be under the exclusive control of one master. He can be employed under more than one employer.(1) That the workers are not obliged to work for the whole day in the shop is not very material. There is of course no reason why a person who is only employed part time, should not be a servant and it is doubtful whether regular part time service can be considered even prima facie to suggest anything other than a contract of service. According to the definition in s.2(14) of the Act, even if a person is not wholly employed, if he is principally employed in connection with the business of the shop, he will be a "person employed" within the meaning of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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