TMI Blog1962 (8) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... d the worker's application but has held that he is entitled to compute the leave wages on the basis of a daily average earning of ₹ 2,04 N.P. and the employer has filed the present petition challenging that order. 2. The employer had, in answer to the application under Section 15 of the Payment of Wages Act, raised a number of contentions with which we are not concerned in this petition, but substantially Mr. Phadke appearing on behalf of the petitioner has raised two important Points. The first is whether a bidi roller like the respondent No. 2 is entitled to the leave wages at all and secondly, if he is entitled, whether he can claim beyond tie period of two years. Having heard counsel for both the sides we think that the answer to the first contention must be in favour of the petitioner, namely, that the worker the respondent No. 2, is not entitled to claim leave wages at all for reasons which we shall presently state and, therefore, it is unnecessary to decide the second point raised by Mr. Phadke.. 3. The provision of law under which the claim was made before the Payment of Wages Authority is Section 79(1) read with Section 80. Section 79(1) provides as follows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority. Before the Payment of Wages Authority, two persons had given evidence, namely Goyinda Parashram and Pundlik Durga, and upon a consideration of their evidence, the Authority accepted as proved the following circumstances: (1) The workers sit in the factory and attend work between 8 a.m. to 12 noon. During this period the workers ere issued tobacco. (2) The issue of tobacco stops after the bell is rung at 12 noon. It is not clear whether the work of rolling bidis commences immediately after the issue of tobacco or whether the work of rolling bidis only commences after the bell is rang at 12 noon indicating that the work of issue OR tobacco is closed. We may here merely mention by way of an explanation the manner in which the bidis are manufactured just in order to enable the facts found to he understood. We have had occasion previously to review, the entire method of manufacture of bidis and the system employed in the Bidi industry in this area, in our decision in Bidi Leaves and Tobacco Merchants Association v. State of Bombay, 1959 NLJ 366 . The Bidi is composed of the outer leaf and, the leaf most frequently used is the tendu leaf. The leaf is first prepared by remov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cco is issued to the workers' representatives. Once again, nothing turns upon this conflict in the evidence. (6) After the work of rolling is over, the workers deliver the bidis for the employer's inspection and for that purpose they stand in a line referred to as pallis and the work of each, the turn, is inspected. The work of delivering bidis starts at about 6 p.m. and it sometimes goes on till 8.30 p.m. or 9 p.m. (7) The factory commences work at 8 a.m. and continues till 12 noon. That is the time during which the distribution of material goes on. Then the factory works till 6 p.m. when the return of manufactured bidis starts. A considerable time is apparently taken in delivery of the bidis because the persons appointed to take delivery are few in number and the workers are many. (8) The Payment of Wages Authority has held that in its opinion the working hours are the hours during which time the workers are actually winding the bidis. There is no definite time fixed for attendance of workers and the maximum hours of work are also indefinite but are between 6 to 8 hours each day. Workers go in and out at their will to take tea or pan and there is no recess. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er decision in Birdhichand v. First Civil Judge, Nagpur (1961) IILLJ 86 SC which decision approved a decision of this Court reported in State v. Shankar, AIR 1960 Bom 296. Both Mr. Phadke and Mr. Kukday also referred to an earlier decision of the Supreme Court in Chintaman Rao v. State of M.P. 1958 CriLJ 803 . In that decision, the Supreme Court was also concerned with determining the nature of the relationship between the worker and the employer but there the worker was of a completely different category. In that case, the point taken was different. In that case there were appointed by the management independent contractors known as Sattedars through whom the material for tile manufacture of bidis used to be doled out to workers and the question there was whether having regard to the practice of getting the bidis manufactured through the instrumentality of the Sattedars the worker, who actually manufactured the bidis, was a worker of the owner of the factory or a worker only of the Sattedars. In other words, the question was whether there was privity of contract between the owner of the factory and the worker who manufactured the bidis or whether the privity of contract was only b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he orders of that other not only as to the work which he shall execute, but also as to the details of the work and the manner of its execution. and the gives these principles from a number of decisions the English Courts to which reference has been made in the foot-note at page 1. In Article 3 he has further made clear the nature of that control as follows: The question whether a person is under the control of another is a question of fact. Provided that where the terms of the contract between the parties are in writing, the question depends on the construction of the contract and is a question of law. Control may exist between two persons, although the one-- (1) did not appoint the other; (2) does not pay the remuneration; (3) has no power to dismiss; (4) has not the exclusive control. There is thus no doubt as to the principles or the definition of the relationship of master and servant as given in the above authorities, though it was argued strenuously to the contrary upon the authority of the later decisions of the Supreme Court. 9. In AIR 1960 Bom 296 a Division Bench of this Court also dealing with the question of persons rolling bidis, held that app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roughout adopted the principles which we naveset forth' above so far as the question of what constitutes the relationship of master and servant is concerned. Even if as has been urged there were a conflict of views, we would be bound to follow the later pronouncement of the Supreme Court 11. In Birdicnand's case (1961) IILLJ 86 SC, Mr. Justice Wanchoo accepted the statement in the Dharangadhra Chemical Works' case (1957) ILLJ 477 SC , as well as Chintaman Rao's case 1958 CriLJ 803 , so far as the law is concerned and observed; The prima facie test whether the relationship of master and servant or employer and' employee existed was laid down as the existence of the right in the employer not merely to direct what work was to be done but also to control the manner in which it was to be done, the nature or extent of such control varying in different industries and being by ills nature incapable of being precisely defined. The correct approach therefore to the question was held to be whether having regard to the nature of the work, there was due control and supervision of the employer. Then his Lordship proceeded to explain that the question as to whether a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at, there is a conflict between the two decisions of the Supreme Court as to the principles governing the question as to who is a worker within the meaning is Section 79 read with Section 2(1) of the Factories Act. The whole question depends upon what are the facts and circumstances in each case.- In fact, the Supreme Court itself distinguished the earlier case upon the facts, in the second case. 14. Turning then to the facts of the present case we have already set forth the findings which the Payment of Wages Authority gave as to the nature of the contract between the second respondent and the petitioner and, in our opinion, upon those facts, the Payment of Wages Authority was right, The important circumstances, which show that the relationship between the second respondent and the petitioner resulted in giving to the petitioner the right to control or direct the second respondent not only as to the work which he was to do but as to the details of that work are as follows; 15. The workers had to attend the factory between 8 a.m. and 12 noon, if they wanted the issue of tobacco after 12 noon they could not get the tobacco and, therefore, necessarily they were deprived of work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Factories Act. 17. A question of greater Importance is whether the worker would in this case be entitled to the right cantered upon the workers by Section 79 read with Section 80 of the Factories Act. Though we have found that he was a worker, there are other conditions laid down in the two sections. We have already reproduced the provisions and the clause which calls for interpretation is in Sub- section [1) of Section 80; .... shall be paid at a rate equal to the daily average of his total full lime earnings for the days on which lie worked during the month immediately preceding his leave. . . .. The point raised by Mr. Phadke is that even assuming that he is a worker, it is established upon the facts which we have accepted that that worker here was not working for any stated period of time at all. In fact, he was at liberty to go in and come out of the factory at his choice at any time and work for any number of hours or even less than an hour on any day. The question then is how is the rate to be calculated in the case of such a worker when the law says that worker shall be paid at a rate equal to the (daily average of his total full time earnings for the days on whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply with equal force to the present case. It is clear that in this case also there is no averment as to what was contained in the notice displayed under Section 61. That notice or copy thereof has not been produced nor has there been any pleading in the matter and, as observed by their lordships of the Supreme Court, it is not likely that any period of work must be mentioned in the notice displayed under Section 61. Therefore, the full time of work for a day cannot be ascertained from the notice. So far as the evidence is concerned, we have airway indicated that upon a finding of fact which we have accepted the Payment of Wages Authority held that the worker in this case could come at any time he liked so far as the work of rolling bidis was concerned and could go at any time he liked and turn out as much work as he liked. The only compulsion on him, if any, was that he should attend the work between 8 a.m. and 12 noon in order to take the tobacco. Beyond that he was completely free to work as long or as little as he chose. Upon the interpretation, therefore, which their Lordships of the Supreme Court have put upon the words total full time earnings as indicated in the passage ..... X X X X Extracts X X X X X X X X Extracts X X X X
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