# [1964] 7 S.C.R. 646

- **Citation:** [1964] 7 S.C.R. 646
- **Court:** Supreme Court of India
- **Decided:** 1962-02-16
- **Case number:** Civil Appeals Nos. 721 and 791 of 1963
- **Bench:** P. B. Gajendragadkar, K. N. W Anchoo, K. C. Das Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1964-7-s-c-r-646-3094
- **Pages:** 10

## Headnote

Industrial Dispute-Employer and Emp!oyee-Relaticnship
-Depends upon circumstances of each case.
On a reference of industrial disputes between the appellants, the proprietors of bidi concerns, and their workmen, the
appellants contended before the Industrial Tribunal that the
workers in question were not their workmen but were the
workmen of independent contractors. The Tribunal found on
the basis of evidence led, that the modus operandi was that
contractors took leaves and tobacco from the appellant and
employed workmen for manufacturing bidis. After bdis were
manufactured, the contractors took them back from the workmen and delivered them to the appellants. The workmen took
the leaves home and cut them there; however the process of
actual rolling by filling the leaves with tobacco took place in
what was called
contractors'
factories.
The
contractors
kept no
attendance
register
for
the
workmen,
there
was no condition for their coming and going at fixed
hours, nor were they bound to come for work every day:
sometimes they informed the contractors if they wanted
to be absent and some times they did not. The contractors said that they could take no action if the workmen
absented themselves even without leave. The payment was
made to the workmen at piece rates after the bidis woere•
delivered to the appellants. The system was that the appellant •
paid a certain sum for the manufactured bidis, after deduct·
ing therefrom the cost of tobacco and the leaves already fixed.
to the contractors who in their turn paid to the workmen, who
rolled bidis, their wages. Whatf)ver remained after paying the
workmen would be contractors' 'commission for the work done.
The Tribunal held that 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
te returned to the appellants and the contractors were forbidden from selling the raw materials to anyone else. Further
the manufactured bidis' could only be delivered to the appellants who Siu.pplied the ra~N materials. Further price of ra\\"
materials and finished products fixed by the appellants always
remained the same and never :fluct11ated according to market
rate. The Tribunal concluded that the bidi workers ""re the
employees of the appellants and not of the so-called contrac-
•
tors who were themselves nothing more then employees o-·
branch managers of the appellants. Thereupon, the appellants
filed writ petitions in the High Court, which held that neither
the bidi roller nor the intermediary was an employee of tho
appellants and allowed the writ petitions. On appeal by the
workmen the appeal court allowed the appeal and restored the
order and conclusion of the Tribunal.
On appeal by certificate:
Held: On the .facts found the appeal court w•is right in
holding that the conclusion reached by the Tribunal that the
intermediaries were merely branch managers appointed by the·
7 S.C.R.
SUPREl\IE COUHT REPOHTS
647
management and the relationship of employers and employees
subsisted between the appellants and the bidi rollers was
·correct.
Dharangadhara Chemical Works Ltd., v. State of Saurashtra, [1957] S.C.R. 152, Shri Chintsman Rao v. State of Madhya
Pradesh, (1958] S.C.R. 1340, Shri Birdhiclwnd Sharma v. First
Civil Judge Nagpur, [1961] 3 S.C.R. 161, Shankar Ba!a.ji Waje
v. State of Maharashtra, (1962] Supp. 1 S.C.R. 249 and Bikusu
Yamasa Kaslitriya (P) Ltd. v. Union of India, [1964] 1 S.C.R.
860, discussed.

## Text

1964
.April 6
646
SUPREME COu"'RT REPORTS
[19641
D. C. DEWAN MOHIDEEN SAHIB AND SONS
v .
THE INDUSTRIAL TRIBUNAL, MADRAS
[P. B. GAJENDRAGADKAR, C. J., K. N. W ANCHOO AND K. C.
DAS GUPTA, JJ.]
Industrial Dispute-Employer and Emp!oyee-Relaticnship
-Depends upon circumstances of each case.
On a reference of industrial disputes between the appellants, the proprietors of bidi concerns, and their workmen, the
appellants contended before the Industrial Tribunal that the
workers in question were not their workmen but were the
workmen of independent contractors. The Tribunal found on
the basis of evidence led, that the modus operandi was that
contractors took leaves and tobacco from the appellant and
employed workmen for manufacturing bidis. After bdis were
manufactured, the contractors took them back from the workmen and delivered them to the appellants. The workmen took
the leaves home and cut them there; however the process of
actual rolling by filling the leaves with tobacco took place in
what was called
contractors'
factories.
The
contractors
kept no
attendance
register
for
the
workmen,
there
was no condition for their coming and going at fixed
hours, nor were they bound to come for work every day:
sometimes they informed the contractors if they wanted
to be absent and some times they did not. The contractors said that they could take no action if the workmen
absented themselves even without leave. The payment was
made to the workmen at piece rates after the bidis woere•
delivered to the appellants. The system was that the appellant •
paid a certain sum for the manufactured bidis, after deduct·
ing therefrom the cost of tobacco and the leaves already fixed.
to the contractors who in their turn paid to the workmen, who
rolled bidis, their wages. Whatf)ver remained after paying the
workmen would be contractors' 'commission for the work done.
The Tribunal held that 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
te returned to the appellants and the contractors were forbidden from selling the raw materials to anyone else. Further
the manufactured bidis' could only be delivered to the appellants who Siu.pplied the ra~N materials. Further price of ra\\"
materials and finished products fixed by the appellants always
remained the same and never :fluct11ated according to market
rate. The Tribunal concluded that the bidi workers ""re the
employees of the appellants and not of the so-called contrac-
•
tors who were themselves nothing more then employees o-·
branch managers of the appellants. Thereupon, the appellants
filed writ petitions in the High Court, which held that neither
the bidi roller nor the intermediary was an employee of tho
appellants and allowed the writ petitions. On appeal by the
workmen the appeal court allowed the appeal and restored the
order and conclusion of the Tribunal.
On appeal by certificate:
Held: On the .facts found the appeal court w•is right in
holding that the conclusion reached by the Tribunal that the
intermediaries were merely branch managers appointed by the·
7 S.C.R.
SUPREl\IE COUHT REPOHTS
647
management and the relationship of employers and employees
subsisted between the appellants and the bidi rollers was
·correct.
Dharangadhara Chemical Works Ltd., v. State of Saurashtra, [1957] S.C.R. 152, Shri Chintsman Rao v. State of Madhya
Pradesh, (1958] S.C.R. 1340, Shri Birdhiclwnd Sharma v. First
Civil Judge Nagpur, [1961] 3 S.C.R. 161, Shankar Ba!a.ji Waje
v. State of Maharashtra, (1962] Supp. 1 S.C.R. 249 and Bikusu
Yamasa Kaslitriya (P) Ltd. v. Union of India, [1964] 1 S.C.R.
860, discussed.
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 721
and 791 of 1963.
Appeals by certificate and special leave
from the judgment and order dated February 16, 1962 of
the Madras High Court in Writ Appeals Nos. 16 and 15
of l 959 respectively.
V. P. Raman and R. Gmwpathy Iyer, for the appellant
lin C.A. No. 721 of 1953).
G. B. Pai, J. B. Dadachanji, 0. C. Mathur and Ravinder
Narain, for the appellant lin C.A. No. 791/63).
T. S. Venkataraman, for the respondent No. 2 (in both
the appeals).
April 6, 1964. The Judgment of the Court was delivered
by
196l
D.O. Dewa"
lll ohidcen Sahib
and Sons
v.
The Ind11 . .strial
Tribitnal, Madrm
WANCHoo; J.-These two appeals by special leave raise
Wam:hoo,J.
a common question and will be decided together. The appel·
!ants are proprietor:> of two bidi concerns. A reference was
made by the Government of Madras of dispute between the
appellants and their workmen with respect to three matters.
In the present appeals however we are concerned with only
one matter, namely, whether reduction of annas two in the
wages of worker;; employed under the agents of the appellants •
was justified and to what relief the workers were entitled.
The contention of the appellants before the tribunal was
that the workers in question were not their workmen and therefore there being no relation of employers and employees
be.tween them and the workmen, the reference itself was incompetent and there could be no industrial dispute between
them and the workmen concerned, their case being that the
workmen concerned were the workmen of independent contractors.
It was found by the tribunal on the basis of evidence led before it by both parties that the modus operandi
with respect to manufacture of bidis in the appellants' concerns was that contractors took leaves and tobacco from the
appellant~ and employed workmen for manufacturing bidis.
After bid,is were manufactured, the contractors took them
back fro:n the workmen and delivered them to the appellants.
1961
D.C. lJltoan
M oltidetn Sa/1£b
and 8cnt8
v.
The lnd1tstrial
Tribunal, Madras
Wanclwo, J,
648
SUPREME COURT REPORTS
[1964]
The workmen took the leaves home and cut them there; however the process of actual rolling by filling the leaves with
tobacco took place in what were called contractors' factories.
The contractors kept no attendance register for the workmen.
There was-also no condition that they should come and go at
fixed hours. Nor were the workmen bound to come for work
every day; sometime.-; the workmen informed the contractors
if they wanted to be absent and sometimes they did not. The
contractors however said that they could take no action if
the workmen absented themselves even without leave. The
payment was made to the workmen at piece rates. After the
bidis were delivered to the appellants payment was made
therefor.
The system was that the appellants fixed
the
price of tobacco and leaves supplied to the contractors who
took them to the places where work 9f rolling was done and
gave them to the workmen. Next day, the manufactured
bidis were taken by the contractors to the appellant:; who
paid a certain price for the manufactured bidis after deduct-
. ing therefrom the cost of the tobacco and the leaves already
fixed.
The balance was paid to the contractors who in their
turn paid to the workmen, who rolled bidis. their wages.
Whatever remained after paying the workmen would be the
contractors' commission for the work done. It may also be
mentioned that there were written agreements on the same
pattern between the appellants and the contractors in that
behalf. though no such. agreement has been printed in the
paper books.
On these facts the appellants wanted to make out a case
as if there was a sale of leaves and tobacco by the appellants
to contractors and after the bidis were rolled there was a
resale of the bidis to the appellants by the contractors. The
tribunal however held that it wa.s clear that there was no
sale either of the raw materials or of the finished products.
for, according to the agreement, if bidis were not rolled, raw
materials had to be returned to the appellants and the contractors were forbidden from selling the raw materials lo any
one else.
Further after the bidis were manufactured they
could only be delivered to the appellants who supplied raw
materials and not to any one else.
Further price of raw
materials fixed by the appellant; as well as the price of the
finished products always remained the same and never fluctuated according to market rates. The tribunal therefore concluded that there was no sale of raw materials followed by
resale of the finished products and this system was evolved
in order to avoid regulations under the Factorirn Act. The
tribunal also found that the contractors generally got only
annas two per thousand bidis for their trouble. The tribunal
7 S.C.R.
SUPREME COURT REPORTS
649
also referred to a clause in the agreement that the appellants
would have no concern with the workers who rolled bidis for
whom only the contractors would be responsible.
But it
was of the view that these provisiorn were deliberately put
into the agreement by the appellants to escape such statutory
duties and obligatiom as may lie on them under the Factories Act or under the Madras Shops and Establishments Act.
Finally on a review of the entire evidence, the tribunal found
that this 1;ystem of manufacture of bidis through the so-called
contractors was a mere camouflage devised by the appellants.
The tribunal also found that the contractors were indigent
persons and served no particular duties and discharged no
special functions.
Raw materials were supplied by the appellants to be manufactured into tin»hed products by the
workmen and the contractors had no other function except
to take the .raw materials to the workmen and gather the
manufactured material.
It therefore held that the so-called
contractors were not independent contractors and were mere
employees or were functioning as branch man«gers of various factories. their remuneration being dependent upon the
work turned out.
It therefore came to the conclusion 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.
It finally held that reduction in the wages by two annas per
thousand bidis was not justified and the
workmen were
entitled to the old rates. It therefore ordered the reduction in
wages to be restored
Thereupon the appellants filed two writ petitions in the
High Court, their contention being that the tribunal was
wrong in holding that the contractors and the workmen employed by the contractors were Jhe workmen of the appellants. It seems that a sample agreement
was produced
before the High Court. which provided inter alia for the
following terms : -
(\) That the proprietor should supply the tobacco
and the bidi leaves;
12) th.at the intermediary should engage premises of
his own and obtain the requisite license to carry
on the work of having the bidis rolled there;
(3) that at. no time sh.ould more than nine bidi rollers
work m the premises of that intermediary;
14) that the intermedia.ry should meet all the incidental charges for rolling the bidis including the cost
of thread and the remuneration paid t~ the b'd'
rollers·
1 I
•
1964
D.G. Dewan
... ~I ohideen Sahib
and Sona
v.
Thelnduatrial
Tribunal, Mad,...
Wanchoo, J.
1964
D.C. Dewan
M ohideen Sahib
and Sons
v.
The Industrial
Tribunal, Madras
lfanclwo, J.
650
SUPREME COURT REPORTS
[1964J
(5) that for every unit of 1,000 bidis rolled and delivered by the intermediary to the proprietor, the
latter should pay the stipulated amount, after
deducting the cost of the tobacco and the bidi
leaves supplied by the proprietor;
(6) that the intermediary i>hould not enter into. similar engagement with any other industrial concern;
(7) that the price of the raw materials and price to
be paid for every unit of 1,000 bidis rolled and
delivered were to be fixed at the discretion of the
proprietor.
Besides these conditions, the contract also provided that it
was liable to termination on breach of any of the conditions.
and that the proprietors had no connection with and that
they a;;sumed no responsibility for the bidi workers who had
to look to the intermediary for what was payable to them
for rolling the bidis.
The learned Single Judge on a review of the terms of the
contract and the evidence on record held that neither the bidi
roller nor the
intermediary
was
an employee of the
appellants. In consequence there could be no
industrial
dispute within the meaning of s. 2 (k) of the Industrial Disputes Act between the appellants and the bidi rollers.
The
petitions were therefore allowed and the award of the tribunal was set aside.
Thereupon there were two appeals by the workmen. The
appeal court on a con;;ideration of the terms of the contract
and the findings of the tribunal came to the conclusion that
the so-called contractors were really the agents of the appellants and that there. was no utter lack of control by the
appellants on the bidi workers who actually rolled the bidi.
The appeal court also found that the intermediaries were impecunious and according to the evidence could hardly afford
to have factories of their own. It also found that the evidence revealed that the appellants took the real hand in
settling all matters relating to the workem. and the intermediary was a mere cipher and the real control over the workers
was that of the appellants.
The appeal court therefore held
that the appellants were the real employers of the workmen
and the so-called
intermediaries or so:called
independent
contractors who were in some cases ex-employees. were no
more than agents of the appellantfi. In this view of the matter
the appeal ;ourt held that the conclusion reached by the tribunal that the intermediaries were merely branch managers
~
I
,.
.. i
-
'
:7 .S.C.R. \ '. SUPRElIE COURT REPORTS
. 651
--
\
'
\.
'.,, '.a~poin;ed by the :manage~ent and ·.the relation~~i;-of em1964
. ployer and employees subsisted. between the appellants and
D.(,. D,wan
JJidi rollers was. correct. \ The appeals were -therefore allow-
.Moltidun Sahib
.ed, and the order of the tribunal was restored. The appellants
andv~""'
.have come _before ur; ori certificates -granted by the High
The 1.a.,trial
.Court.
Tribunal, Madraa
The question whether 'relationship of master and servant
subsists between an employer and employee .has .been. the
subject of consideration by this Court in a number of cases.
Jn Dharangadhara Chemical, Works- Limited v. State of
Saurashtra(') it WaJil held_ that the question _whether a person
was a workman depended on whether he had been employed
by the employer and the relationship of employer and employee or master and servant subsisted between them. It was
well settled that a prima facie test of such relationship Wat>
_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 con-·
trol varying in -different
industries_ and being -by its very -
nature incapable of being preCinely defined. ,The correct approach therefore was to consider whether, having regard to
the nature of the work there was due control and superviision
by the employer. It was - further held
that the question
whether the relation between the parties was -one as between
an employer and employee or master and servant was a pure
question of fact. depending upon the circumstances of. each
case. In that case, the dispute was whether certain agarias
who were a class of professional labourers, were workmen
·or independent contractors. The facts found in that case -
were that the agarias worked themselves with members of
their families and were free to engage extra labour on their
own account. No houn; of work were prescribed. No muster
rolls were maintained; nor were working hours controlled by
the master. There were no _rules as regards leave or holidays and the agarias were free to go out of the factory after
making arrangements for the manufacture of salt. Even so.
though certain features which -were usually to be found in a
contract of service _were absent, the tribunal held that on the
_whole the status of agarias was that of workmen and not that
of independent contractors. particularly as supervision and
control was exercised by' the master extending to all stages
of manufacture from beginning to end. __ This Court' upheld
the view of the tribunal on a review of the facts found in
that case.
The next case to which reference has been -made -is
Sh;; Chintaman Rao v. The State of Madhya_ Pradesh(').
(') [1957] S.C.R 152.
(')_[1958] S.C.R 1340.
Wanchoo,J.
1964
D.O. Liewan
Mvhideen Sahib
v.
The Industrial
Tribunal, JJ<I adra&
Jfanchoo, J.
652
SUPREME COURT REPORTS
[1964]
That was a case of bidi manufacture, and the question that
arose for determination was whether certain persons known
as sattedars and those who worked under the sattedars were
workmen or not. It was found that the sattedars undertook
to supply bidifl ·by manufacturing them in their own ·factories.
or by entrusting the work to third parties at a price to be
paid by the management' after delivery and approval. Reference was made to tlje principles laid down in D/zarangadhara
Chemical Works Limited's case(') to determine whether the
persons employed were workmen or not, and it was found
that the sattedars were not under the control of the factory
management and could manufacture the bidis wherever they
pleased. It was therefore held that the coolies were neither
employed by the management directly nor by the management through the sattedars.
A special feature of that case
was that none of the workmen under the sattedars worked in
factories. The bidis could be manufactured anywhere and
there was no obligation on the sattedars to work in the factory of the management. The sattedars were even entitled
to distribute tobacco to the workers for making bidis in the
workers' respective homes. It wa6 in these circumstances that
this Court held that the sattedars were independent contractors and the workers employed by them were not the workers
of the management.
Then we come to the case of S/zri Bird/zichand Sharma
v. First Civil Judge Nagpur('). That was also a case of bidi
manufacture. The facts found were that the workmen who
rolled the bidis had to work at the factory and were not at
liberty to work at their house6; 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 from service if absent
for eight days.
Payment was made on piece rates accordin• to the amount of work done, and the bidis which did not
co~1e 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 contractom. This
Court pointed out that the nature and
~xtent of control
varied in different industries and could not by its very nature be
precisely defined.
When the op~r~tion was 'of ~ simple nature and did not require superv1s10n all the time. control
could be exercised ai the end of day by the method of
rejecting bidis which did not come upto proper standard,
(') [957] S C.R. 152.
(') [1961] 3 S.C.R. 161.
,-
•I
78.C.R.
SUPREME COURT REPORTS
653
such supp-vision by the employer was sufficient to make the
workers, employees of the employer and not independent
contractors. The nature of the control required to make a
person a servant of the master would depend upon the facts
of each case.
The next case is Shankar Balaji Waje v. State of Maharashtrai'). That was also a bidi manufacturing case. On the
facts of that case the majority held that decision in Shri
Birdhichand Shanna's case(') was
distinguishable and the
appellant was not a worker within the meaning of the Factories Act. It may be noted however that that case also followed the line of decisions of this Court since the decision in the
case Dharangadlwra Chemical Works Limited(") as to the criteria for coming to the conclusion whether a person was an
employee or an'independent contractor.
The last case to which reference has been made is again
a bidi manufacturing case, namely, Bhikusa Y amasa Kash-·
tril'a (Pl Limited v. Union of India('). In that case the main
question raised was about the constitutionality of s. 85 of the
Factories Act and the notification issued by the State of
Maharashtra thereunder. The Constitutionality of s. 85 and
the notification made thereunder was upheld. The question:
there involved was about the application of s. 79 of the·
Factories Act with reference to leave and the difficulty felt
in Shankar Balaji Waje's case(') as to how leave could be
calculated in the circumstances was explairied with reference
to the decision in Shl'i Birdhic/wnd Shanna's case(').
It is in the light of these decisions that we have to decide
whether the workmen who work under the so-called· independent contractors in these cases are the workmen of the appellants. It has been found by the tribunal and this view has been
confirmed by the appeal court that so-called independent contractors were mere agents or branch managers of the appellants.
We see no reason to disagree with this view taken by the tribunal arid confirmed by the appeal court on the facts of these
cases. We are not unmindful in this connection of the view
taken by the learned Single Judge when he held that on the
agreements and the facts found the so-called intermediaries
were independent contractors. We are however of opinion that
the view taken by the appeal court in this connection is the
right one. As the appeal court has rightly pointed out the
(') [1957] S.C.R. 152.
(') [1961] 3 S.C.R. 161.
(') (1962) Suppl. I S.C.R. 249.
(') [1964] 1 S.C.R. 860.
1964
D.O. Dewan
Moliirleen Saltib
and Sons
...
The lndustrial
Tribunal, Madraw
JJ'ani::hoo, J,
l.
JfJGJ
D.O. I>•·uwa
.11/rJlii•lrtn S1t/1il,
und ,<.,'on~
v.
The J,idu;ir'ritil
Tri1>un•il, Jln•l1·1M
654
BUPRE)IE COURT REPpRTS
[1964]
so-calld independent contractors were indigent pemons who
were in all respects under;. the cont'rol of the appellants. There
is in our opinion little doubt that this system has been evolved
to avoid regulations ur,der the Factories Act. Further there
is also no doubt from whatever terms of agreement are available on the )·ecord that the so-called independent contractors
have really no independence· at all.
As the appeal court hm;
pointd !lpt they are impecunious persons who could harcjly
afford to have· factories of their own. Some of them are even
ex-employees of the ·appellants. The contract is practically
one sided in that the proprietor can at J1is'choice supply the
raw niaterials or refuse lo do so. the so-~ll<;d contract.or
IHt\ing no right to insist upori the :rnpply of raw _!.l]aJerials to
him.
The so·called independent contract6r--iif even bound
not LO employ more than nine persons in his so-called factory.
The sale of raw materials to the so-called independent contractor and resale bv him of the manufactured biois is also
a mere camouftage, the nature of which is apparent from the
fuct that the so-called contractor never paid for the materials.
All that happens is that when the manufactured bidis are
<lclivcred by him to the appellants. amounts due for the socalled sale of raw materials is deducted from the so-called
price fixed for the bidis.
In effect all that happened is that
the so-called independent contractor is supplied with tobacco
and leaves and is paid certain amountE for the wages of the
workers employed and for his own trouble. We can therefore
~ee no difjiculty in holding that the so-called contractor is
merely an employee or an agent of the appellants as held by
the appeal court and as such employee or agent he employs
workers to roll bidis on behalf of the appellants. The work
is distributed between a number of r,o-called independent contractors who ate told not to employ more than nine persons at
one place to avoid re&ulations μnder the Factories Act. We
are not however concerned with that aspect of the matter in
the present appeals.
But there can be no doubt' that the
workers employed b..y the so-called con1ractors are really the
workmen of the appellants who are em
0ployed through their
agents or serv?nts whom they choo:;e io call independent
contractors.
It is however urged that there is no control by even the
agent over the bidi workers. Now the evidence shows that
the bidi workers are permitted to take the leaves homes in
order to cut them so that they might be in proper shape and
size for next day's work; but the real work of filling the leaves
with tobacco (i.e. rolling the bidir,) can only be doh.e in Jhe
so-called factory of the ,so-called independent contracior. No ·
tobacco is ever given to the workers to be take11 home to be
rolled into bidis as and when they liked. They have to
•
;
7 S.C.R.
SUPREl\IE COURT REPORTS
655
attend the so-called factory of the so-called independent contractor to do the real work of rolling bidis. As was pointed
out hv this Court in Shri Birdhichand Shanna's case(') the
work ·is of such a simple nature that GUpervision all the time
is net required. In Birdhichand Sharma's case(') supervision
was made through a system of rejecting the defective bidis, at
the end of day. Jn the present cases we have not got the full
terms of the agreement and it is therefore not possible to say
that there was no kind of supervision or control over the
workers and that the so-called independent contractors had
to accept all kinds of bidis whether made upto standard or
not. It is hardly likely that the so-called independent contractor will accept bidis which are not upto the standard; for
that is usually the system which prevailr, ip this trade as will
be apparent from the facts of the many bidi manufacturing
cases to which we have referred. We are therefore not prepared to hold in the absence of any evidence one way or the
other that there is no supervision
whatsoever of the work
done by the workers. Jn the circumstances we are of opinion
that the relationship of master and servant between the appellant; and the workmen employed by the so-called indepen_dent contractors is
established.
As the appeal court has
pointed out whenever there was a dispute in connection with
the manufacture of bidis the workers looked to the appellants for redress.
In one of the cases the manager of one of
the appellants ~ent a letter to the labour officer that the factory was agreeable to increase the wages of the workers from
Rs. 1!14/- to Rs. 2/- per thousand bidis. In the other case
also a similar letter was addressed showing that whenever
there was increar;c or decrease in wages of the workers who
work under the so-called independent contractors the real
decision was taken by the appellants. This conduct on the
part of the appellants is clearly inconsisterlt with their plea
that the workers are not their employees and there is no privily between them and the said workers.
We are therefore
of opinion that on the facts found in th~e cases the appeal
court was right in holding that the conclusion reached by the
tribunal that the intermediaries were merely branch managers
appointed by the management and the relationship of employers and employees subsisted between the appellants and
the bidi rollers is correct. In this view the appeals fail and are
hereby dismissed with costs-one set of hearing costs.
Appeals dismissed.
(') [1961) 3 S.C.R. 161.
1964
]J.C. Dncr:rn
Mohidee.n :Safdb
an!! Sun.s
v.
Tl~e I ndi1rBfrial
Trilninrd, .JJia.draB
Tranrfwo, J.
I