# Ebrahim Aboobakar v. Custodian General of Evacuee

- **Citation:** [1957] 1 S.C.R. 152
- **Court:** Supreme Court of India
- **Decided:** 1954-01-08
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ebrahim-aboobakar-v-custodian-general-of-evacuee-1329
- **Pages:** 16

## Headnote

152
SUPREME COURT REPORTS
(1957)
DHARANGADHARA CHEMICAL WORKS LTD.
"·
STATE OF SAURASHTRA.
(BHAGWATI,
VENKATARAMA
AYYAR, S.
K.
DAs and
GoVINDA MENON, JJ)
Industrial J)ispute-Workman-lndependent
contractor-TestDistinction-Agarias,, if tvorkmen-Finding by the Industrial Tribunal, if a question of fact-Such findinQ, if and rvhen can be set asidelndustria/ Disfml_!s Act (XIV af 1947), s. 2(s)-Constitrition of India,
Art. 226.
The appellants '"'·ere lessees holding a license for the manufacture of salt on the demised lands. The salt was manufactured by
a class of professional labourers known as agarias £Tom rain water
that got mixed up with saline matter in the soil.
The work was
seasonal in nature and commenced in
October after the rains and
continued till
June.
Thereafter
the agarias left for their own
villages for cultivation \Vork.
The demised lands were divided into
plots called pattas and allotted to the agarias with a sum of Rs. 400/·
for each patta to n1eet the initial expenses.
Generally
the same
patta was allotted to the same agaria every year and if a patta was
extensive in area, it was allotted to two agarias working in partnership.
After the manufacture of salt the agarias were paid at the
rate of 5 as. 6 pies per maund. At the end of each season the
accounts were settled and the agarias paid the balance due to then1.
The agarias who worked themselves
with the
members of their
families were free to engage extra labour on their own account and
the appellants had no concern therewith. No hours of work were
prescribed, no muster rolls 1naintained, nor were working hours
controlled by the appellants. There were no rules as regards leave
or holidays and the agarias \Yere free to go out of the factory after
making arrangements for the 1nanufacture of salt.
The
question
for decision was whether in such circumstances the agarjas could
be held to be workmen as defined by s. 2( s) of the Industrial
Disputes Act of 1947, as found by the
Industrial
Tribunal and
agreed with by the
High
Court or they were independent contrac~
tors and the reference for adjudication made by the
Government
com.petent under s. I 0 of the Act.
Held, that the finding of the
Industrial
Tribunal that the
agarjas were ,workmen
within the
meaning of s. 2(s)
of the
Industrial Disputes Act of 1947 was correct and the reference: was
competent.
The real test whether a person was a workman was whether
he had been employed by
the employer and a relationship of
employer and employee or master and servant subsisted between
them and it was well settled that the prima fade
test
of such
;
S.C.R.
SUPREME COURT REPORTS
153
relationship was 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 its nature
incapable of being
precisely
defined.
The
correct
approach,
therefore, was to
consider
whether,
having regard
to
the
nature of the work, there was due control and supervision of the
employer.
Mersey Docks and Harbour Board v. Coggins & Griffeth (Liverpool) Ltd., and Another (1947] l A.C. 1, and Simmons v. Heath
Laundry Company (1910] 1 K.B. 543 referred to.
The question whether the relation between the parties was
:me as between an employer and employee or master and servant
was a pure question of fact and where the
Industrial Tribunal
1:!.aving jurisdiction to decide that question came to a finding, such
finding of fact was not open to question in a proceeding under Art.
226 of the Constitution unless it could be shown to be wholly unwarranted by the evidence.
Ebrahim Aboobakar v. Custodian General of Evacuee
Property
[1952 ]' S.C.R. 696, referred to.
Performing
Right, Society Ltd. etc. v. Mitchell and Booker
(Plaise De Danse) [1924] l K.B. 762, not followed.
A person could be a workman even though he did piece-work
md was paid not per day but by the job or employed his own
labour and paid for it.

## Text

152
SUPREME COURT REPORTS
(1957)
DHARANGADHARA CHEMICAL WORKS LTD.
"·
STATE OF SAURASHTRA.
(BHAGWATI,
VENKATARAMA
AYYAR, S.
K.
DAs and
GoVINDA MENON, JJ)
Industrial J)ispute-Workman-lndependent
contractor-TestDistinction-Agarias,, if tvorkmen-Finding by the Industrial Tribunal, if a question of fact-Such findinQ, if and rvhen can be set asidelndustria/ Disfml_!s Act (XIV af 1947), s. 2(s)-Constitrition of India,
Art. 226.
The appellants '"'·ere lessees holding a license for the manufacture of salt on the demised lands. The salt was manufactured by
a class of professional labourers known as agarias £Tom rain water
that got mixed up with saline matter in the soil.
The work was
seasonal in nature and commenced in
October after the rains and
continued till
June.
Thereafter
the agarias left for their own
villages for cultivation \Vork.
The demised lands were divided into
plots called pattas and allotted to the agarias with a sum of Rs. 400/·
for each patta to n1eet the initial expenses.
Generally
the same
patta was allotted to the same agaria every year and if a patta was
extensive in area, it was allotted to two agarias working in partnership.
After the manufacture of salt the agarias were paid at the
rate of 5 as. 6 pies per maund. At the end of each season the
accounts were settled and the agarias paid the balance due to then1.
The agarias who worked themselves
with the
members of their
families were free to engage extra labour on their own account and
the appellants had no concern therewith. No hours of work were
prescribed, no muster rolls 1naintained, nor were working hours
controlled by the appellants. There were no rules as regards leave
or holidays and the agarias \Yere free to go out of the factory after
making arrangements for the 1nanufacture of salt.
The
question
for decision was whether in such circumstances the agarjas could
be held to be workmen as defined by s. 2( s) of the Industrial
Disputes Act of 1947, as found by the
Industrial
Tribunal and
agreed with by the
High
Court or they were independent contrac~
tors and the reference for adjudication made by the
Government
com.petent under s. I 0 of the Act.
Held, that the finding of the
Industrial
Tribunal that the
agarjas were ,workmen
within the
meaning of s. 2(s)
of the
Industrial Disputes Act of 1947 was correct and the reference: was
competent.
The real test whether a person was a workman was whether
he had been employed by
the employer and a relationship of
employer and employee or master and servant subsisted between
them and it was well settled that the prima fade
test
of such
;
S.C.R.
SUPREME COURT REPORTS
153
relationship was 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 its nature
incapable of being
precisely
defined.
The
correct
approach,
therefore, was to
consider
whether,
having regard
to
the
nature of the work, there was due control and supervision of the
employer.
Mersey Docks and Harbour Board v. Coggins & Griffeth (Liverpool) Ltd., and Another (1947] l A.C. 1, and Simmons v. Heath
Laundry Company (1910] 1 K.B. 543 referred to.
The question whether the relation between the parties was
:me as between an employer and employee or master and servant
was a pure question of fact and where the
Industrial Tribunal
1:!.aving jurisdiction to decide that question came to a finding, such
finding of fact was not open to question in a proceeding under Art.
226 of the Constitution unless it could be shown to be wholly unwarranted by the evidence.
Ebrahim Aboobakar v. Custodian General of Evacuee
Property
[1952 ]' S.C.R. 696, referred to.
Performing
Right, Society Ltd. etc. v. Mitchell and Booker
(Plaise De Danse) [1924] l K.B. 762, not followed.
A person could be a workman even though he did piece-work
md was paid not per day but by the job or employed his own
labour and paid for it.
Sadler v. Henlock (1855) 119 E.R. 209 and Blake v.
Thirst
~1863) 32 L. J. (Exchequer) 188, referred to.
The broad distinction between a workman and an independent
:ontractor was that while
the former would be bound by agreement to work personally and would so work the latter was to get
die work done by others.
A workman would not cease to be so
!Veh though he got other persons to work with him and paid and
:ontrolled them.
Grainger v. Aynsley : Bromley v. Tams (1881)6 Q. B. D. 182,
Weaver v. Floyd (1825) 21 L.H., Q.B. 151 and Whitely v. Armitage
(1864) 16 W. R. 144, referred to.
As in
the instant
case the agarias, who were professional
labourers and personally worked with the members of their families
in manufacturing
the salt, were workmen
within the meaning
of the Act, the fact that they were free
to engage others
to
assist them and paid
for them, could · not affect their
status as
workmen.
CIVll. APPELLATE
JuRISDICTION: Civil Appeal No. 85
of 1956.
1956
D1-gatlhara
Chemieal Works
w.
v.
Stolt of SaurashJra
1956
Dharangadhara
Clremica.l Works
Lid.
v.
State of SQMrashlra
154
SUPREME COURT REPORTS
Ll957]
Appear from the judgment and order dated January 8,
1954, of the High Court of Saurashtra, at Rajkot, in
Civil Misc. Application No. 70 of 1952.
R. /. Kolah and A. C. Dave, for the appellant.
Poms A. Mehta and R. H. Dhebar, for respondent
No. 1.
1956. November 23. The Judgment of the
Court
was delivered by
BHAGWATI
J.-This
appeal with
a certificate of
fitness granted by the
High
Court of Saurashtra raises
an interesting question whether the agarias working in
the Salt
Works at Kuda in the Rann of Cutch are
workmen within the meaning of the term as defined in
the
Industrial Disputes Act, 1947, hereinafter referred
to as the Act.
The facts as found by the
Industrial Tribunal are
not in dispute and are as follows. The appellants are
lessees of the Salt
\Vorks from the erstwhile
State of
Dharangadhara and also hold a licence for the manufacture of salt on the land. The appellants require salt
for the manufacture of certain chemicals and part of
the salt manufactured at the Salt Works is utilised by
the appellants in the
manufacturing 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 \Vorks 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 parcelled out into plots called pattas and they
are in four parallel rows
intersected by the railway
S.C.R.
SUPREME COURT REPORTS
155
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
Rs. 400 for each of the pattas and that is to meet the
initial expenses. Then the
agarias
commence
their
work.
They level the lands and enclose and sink wells
in them. Then the densitv of the water in the wells
is examined by the Salt Superintendent of the appellants and then the brine is brought to the surface and
collected in the
reservoirs
called condensers and re-
. tained therein
until it acquires by natural process a
certain amount of density. Then it. is flowed into the
pattas and kept there until it gets transformed
into
crystals. The pans have got to be' prepared by the
agarias according m certain _standards
and they are
tested by the
Salt
Superintendent.
When salt crystals
begin to form in the pans they are again tested by the
Salt Superintendent and only when they are of a particular quality the work of collecting salt is allowed to be
commenced. After the
crystals are collected, they are
loaded into the railway wagons and transported to the
depots where salt is stored. The salt is again tested
there and if it is found to be of the right quality, the
agarias are paid therefor at
the rate of
Rs. 0..5-6 per
maund. Salt which is rejected belongs to the appellants and the agarias cannot either remove the salt
manufactured by them or sell it.
The account is made
up at the end of the season when the advances which
have been paid to them from time to time as also the
amounts due from the agarias to the grocery shop are
taken into
account. On a final
settlement
of
the
accounts, the amount . due by the appellants to the
agarias is ascertained and such balance is paid by the
appellants
to the
agarias. The manufacturing season
comes to an end in June when the monsoon begins and
then the agarias return to their villages and take up
agricultural work.
The agarias work themselves
with
their families
on the pattas . allotted to them. They are free to engage
extra labour but it is they who make the payme.nts to
1956
D!iatangadhara
C/rmri&al Works
Ltd.
v.
State of S1J11ras!ara
Bhagwati J.
~
Ltd.
v.
Sta# of Saurashlra
Bhagwali j.
156
SUPREME COURT REPORTS
[1957]
these labourers and the appellants have nothing to do
y.rith the same. The appellants
do not prescribe any
hours of work for these agarias. No muster roll is
maintained by them nor do they control how many
hours in a day and for how many days in a month the
agarias should work. There are no rules as
regards
leave or holidays. They are free to go out of the works
as they like provided they make satisfactory
arrangements for the manufacture of salt.
In about 1950, disputes arose. between the
agarias
and the appellants as to the conditions 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 agai·ias 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 failed to 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
ground
that
it
was
without jurisdiction. Pending
the disposal
of
this writ
petition, the·
appellants
obtained
stay
of
further
proceedings before
the
Industrial Tribunal and in view of the same the Labour
Appellate Tribunal passed an order on
September 27,
1953, dismissing the appeal leaving the question raised
therein to the dechiion of the
High
Court.
By their
judgment dated
January 8, 1954, the learned Judges
S.c.R.
SUPREME COURT REPORTS
157
of the High Court agreed with the decision
of the
Industrial
Tribunal that the agarias
were workmen
within s. 2(s) of the Act and, accordingly, dismissed the
application for writ. They, however, granted
a certificate under Art. 133( I) ( c) of the Constitution and that
is how the appeal comes before us.
The sole point for determination in this appeal is
whether the agarias working in the
Salt Works of the
appellants at Kuda are workmen within the definition
of that term ins. 2(s) of the Act.
"Workman" has been thus defined m s. 2(s) of
the Act:-
"(s)-'Workman' means
any
person
employed
(including an apprentice) in any industry to do any
skilled or unskilled manual or clerical work for hire or
reward and includes, for the purposes
of any proceedings under this . Act in relation to an industrial dispute,
a workman discharged during that dispute, but does
not include any person employed in the naval, military
or air service of the (Government)."
The essential condition of a person being a workman
within the terms of this definition is that he should be
employed to do the work in that industry, that there
should be, in other words, an employment of his by the
employer and . that there should be the relationship
between the employer and him as between employer
and employee or master and servant. Unless a person
is thus employed there can be no question of his being
a
workman
within
the definition of the
term as
contained in the Act.
The principles according to which the relationship
as between employer
and employee or master and
servant has got to be determined arc well settled.
The
test which is uniformly applied in order to determine
the relationship is the existence of a right of control in
respect of the manner in which the work is to be done.
A distinction is also drawn
between a
contract for
services and a contract of service and that distinction
is put in this way: "In the one case the master can
order or require what is to be done while in the other
case he can not only order or require what is to be done
1956
D!it1TtJ11gadliara
CAemical WorM
I.Id.
v.
State qf Sauras.o!r•
Bliagwati J.
1956
Dharangadhara
Chemical Works
Ltd.
•v.
State ef Saurasldra
Bhagu:ati J,
158
SUPREME COURT REPORTS
[1957]
but how itself it shall be done."
(Per Hilbery, J. in
Collins v. Hertfordshire County Council( ). )
The test is, however, not accepted as universally
correct.
The following observations of Denning L.J.,
at pp. 110, 111 in
Stevenson, fordan
and
Harrison
Ltd. v. Macdonald and
Evans(~) are apposite in this
context :
"But in Cassidy v. Ministry of Health(•) Lord Justice
Somervell, pointed out that 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, '' 1s
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 defference lies. A ship's master, a chauffeur, and a
reporter on the staff of a newspaper
are all employed
under a contract of service ; but a ship's pilot, a taximan, and a newspaper contributor are employed under
a contract for services. One feature which seems to run
thro1,1gh the instances is
that, under a contract of
service, a man is employed as part of the ~siness, and
his work is done as an integral part of the business ;
whereas, under a contract
for
services,
his
work,
although done for the business, is
not integrated into
it but is only accessory to it."
We may also refer to a pronouncement of the House
of Lords in Short v. J. & W. Henderson, Ltd•(') where
Lord Thankerton recapitulated the four indicia of a
contract of service which had been referred to in the
judgment under appeal, viz., (a) the master's power of
selection of his ~ervant, (b) the payment of wages or
(2) [1952 1 T. L. R. IOI, III.
(1) [19471 K. B. 598, 6.15.
·
(3) [1951
I T. L. R. 539, 543 s.c. (1951] 2 K. B. 343, 352-3.
(4) [1946 62 T. L. R. 427, 429.
S.C.R.·
SUPREME COURT REPORTS
159
other remuneration, (c) the master's right to control
the method of doing the work, and (d) the master's
right of suspension or dismissal, but observed :-
"Modern industrial
conditions
have
so much
affected the freedom of the master in cases in which no
one could reasonably suggest that
the employee was
thereby converted into an indep:ndent contractor that,
if and when an appropriate occasion arises, it will be
incumbent on this
House to reconsider
and to restate
these indicia. For example, (a), (b) and (d) and probably
also ( c), are affected by the statutory provisions and
rules which restrict the master's choice to men supplied
by the labour bureaux, or directed to him under the
Essential Work provisions, and his power of suspension
or dismissal is similarly affected. These
matters are
also affected
by
trade union rules which are atleast
primarily made for the protection of wage-earners."
Even in that case, the
House of Lords considered
the right of supervision
and control retained by the
employers as the only method
if
occasion
arose
of
securing the proper and efficient discharge of the cargo
as sufficiently determinative of the relationship betw<;en
the parties and
affirmed that "the principal
requirement of a contract of service is the right of master in
some reasonable sense to control the method of doing
the work and this factor of superintendence and control
has frequently been treated as critical and decisive of
the legal quality of relationship".
The position in law is thus summarised in Halsbury'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 tht: 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. /. & W. Henderson Ltd., (supra), we may take
it as the prima facie test for determining the relationship between master and servant.
1956
D!iarangatfhara
Chemieal Works
Ltd.
v.
Stat• of Saurashtra
B!tagwati J.
160
SUPREME COURT REPORTS
[1957}
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(), "The proper test is
whether or not the hirer had authority
to control the
manner of execution of the act in question".
The nature or extent of control which is requisite to
establish the relationship
of employer and employee
must necessarily vary from business to business and is
by its very nature incapable of precise definition. As
has been noted
above, recent pronouncements of the
Court of Appeal in England have even expressed the
view 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 the test of
control was not one of universal application
and that
there were many contracts in which the master could
not control the manner in which the
work was done
(Vide observations of
Somervell, L.J., in Cassidy v.
Ministry of
Health
(supra), and
Denning, L.J., in
Stevenson, fordan and Harrison Ltd. v. MacDonald and
Evans (supra).)
The correct method of approach, therefore, would be
to consider whether having regard to the nature of the
work there was due control and supervision by the
employer or to use the words of Fletcher Moulton, L.J.,
at
page 549 in Simmons v.
Health Laundry
Company( 2) :-
"In my opinion it is impossible to lay down ·any
rule of law distinguishing the one from the other. It
is a question of fact to be decided by all the circumstances of the case. The greater the ·amount of direct
control exercised over the person rendering the services
by the person contracting for them the stronger the
(1) [1947] 1 A. C. 1, •3·
(•) [1910] 1 K. B. ~3. 549. 550.
S.C.R.
SUPREME COURT REPORTS
161
grounds for holding it to be a contract of service, and
similarly the greater the degree of independence of
such control the greater the probability that the services
rendered are of the nature of professional services and
that the contract is not one of service."
The Industrial
Tribunal
on a consideration
of
the
facts in the light of the principles enunciated above,
came to the conclusion that
though certain features
which are usually to be found in a contract of service
were absent, that was due to the nature of the industry
and that on the whole
the status of the agarias was
that of workmen and not independent contractors. It
was under the circumstances strenuously urged before
us by the learned counsel for the respondents that the
question as regards the relationship between the appellants and the agarias was a pure question of fact, that
the Industrial Tribunal had jurisdiction to decide that
question and had come to its own conclusion in regard
thereto, that the High 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
:-
"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,
it
made a mistake, the wronged party can only take the
course
prescribed by law for .5etting
matters right
inasmuch as a court has jurisdiction to decide
rightly
as well as wrongly."
(1) (1952] S. C. R. 696, 702.
21
1956
Dluzran:atlluzra
C!itmieal Works
Ltd.
v.
State of Saurasfitra
Bhapati J.
1956
Dhamngadham
Clumi<al Works
lid.
v.
Stal# of Saumsldro
J!llilgwotiJ.
162
SUPREME COURT REPORTS
[1957]
There is considerable
force in this contention of the
respondents. The question
whether the
relationship
between the parties is one as between employer and
employee or between master and
servant
is a pure
question of fact.
Learned counsel
for the appellants
relied upon a passage from Batt's "Law of Master and
Servant", 4th edition, at page 10 :-
"The line between an independent contractor and
a servant is often a very fine one ; it is a mixed question of fact and law, and the judge
has to find and
select the facts which govern the true relation between
the parties as to the· control of the work, and then he
or the jury has to say
whether the person employed is
a servant or a contractor."
This statement, however, rests upon a passing observasion of McCardie, J. ih Performing Right Society Ltd.
v. Mitchell and
Booker (Palais de
Danse )(')
and
is contrary to the catena of authorities which lays down
that whether or not in any given case the relation
of
master and servant exists is purely one of fact. (Vide
Halsbury's "Laws of
England",
Hailsham
edition,
Vol. 22, page 112, para. 191 ; Per Cozens-Hardy, M.R.
at page 547 and Per Fletcher Moulton, L.J. at page 549
in Simmons v. Heath
Laundry
Company (supra).
It is equally well settled that the
decision
of the
Tribunal q_n a question of fact which it has
jurisdiction to
determine is not
liable
to be questioned in
proceedings under Art. 226 of the Constitution unless at
the least it is shown to be fully unsupported by evidence.
Now the
argument of Mr. Kolah for the appellants
is that even if all the facts found by the
Tribunal
arc
accepted
they only lead to the conclusion
that the
agarias
are
independent
contractors and that the
finding, therefore, that they are
workmen is liable to
be set aside on tl1e ground that there is no evidence to
support it. We shall, therefore, proceed to determine
the correctness of this contention.
Apart from
the facts
narrated
which there is no dispute, there
the Salt
Superintendent
of the
recorded before the Tribunal :-
above .in regard to
was the evidence of
appellants which was
S.C.R.
SUPREME COURT REPORTS
163
"The panholders are -allotted work on the salt
pans by oral agreement. The Company has no control
over the panholders in regard to the hours of work or
days of work.
The Company's permission is not sought
in matter of sickness or in matter of going out to some
village. The Company has no control over the panholders as to how many labourers they
should engage
and what wages 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 panholder 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 panholder after registering his name (for a
patta) gets work done by
others,
we allow it to be
done.
We own 319 pattas.
Some pattas have two partners.
In some~ one man does the job.
In 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
i;:istructions of the officers appointed by them in connection with the drawing of brine or with the process of
salt production in the pattas and if there is any default,
negligence or slackness in executing it on our part or
if we do not behave well in any way, the
Managing
Agent of the said
Company can annul this agreement
and can take possession of the patta, brine, well etc.,
and as a result we will not be entitled to claim any
1956
D/iar1J11 gadhar
Chemieal W otk
/.Jd.
v.
Stau 'II SOilrashtra
Bhagunrll
1956
D/UJran.aadhara
Chuni<al Works
ua.
v.
Siok If Saurashtro
164
SUPREME COURT REPORTS
[1957]
sort of consideration or
compensation
for
any half
processed salt lying in our patta; or in respect of any
expense incurred or labour employed in preparing kiwa
patta, well bamboo lining etc."
There
was
also
the
evidence
of Shiva Daya,
an
agaria, who was examined on behalf of the respondents:-
"There is work of making enclosures and then of
sinking wells.
The company
supervises this
work.
While the wells are being sunk, the company measures
the density of the brine of wells. In order to bring the
brine of wells to the proper density, it is put in a
condenser and then the
Company tests this and then
this brine is allowed to flow in the pattas . .... .
The bottom of a patta is
prepared
after
it i•
properly crushed under feet and after the
company
inspects and okays that it is alright, water is allowed
to fl.ow into it. When salt begins to form at the bottom
of a patta, an officer of
the company
comes and
inspects it. At the end of 21 months, the water becomes
saturated, i.e., useless, and so it is drained away
und~r
the supervision of the company.
Then fresh brine is
allowed to flow
into the patta from the condenser.
This instruction is also given by the company's officer."
It was on a consideration of this evidence that the
Industrial Tribunal came to the
conclusion that the
supervision and control exercised
by the
appellants
extended to all stages of the manufacture
from beginning to end1 We are of opinion that far
from there
being no evidence
to support the conclusion reached
by the Industrial
Tribunal there were materials on the
record on the basis of
which it could
come
to the
conclusion that the agarias are not
independent
contractors but workmen within the meaning of the
Act.
Learned counsel for
the
appellants
laid
particular
stress on two features in this case which, in his submission, were consistent only with the position that the
agarias are independent contractors.
One is that they
do piece-work and the other that they employ their
own labour and pay for it. In our opinion neither of
these two circumstances is decisive of the question. As
S.C.R.
SUPREME COURT REPORTS
165
regards the first, the argument of the
appellants is
that as the agarias 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( ) are pertinent in this behalf:-
"The test here is, whether the defendant retained
the p.:>wer 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. T hirst(1 ) and Halsbury's "Laws
of
England'', Hailsham edition, Vol. 22, page 119, para.
194, wherein it is stated that if a person is a worker
and not a contractor, "it makes no difference that his
work is piece-work".)
As regards the second feature relied on for the appdlants it is contended that the
agarias · are entitled to
engage
other
persons
to do the
work, that these
persons
are engaged by
the
agarias and are paid
by
them, that the appellants have no control over
them and that these
facts can be
reconciled
only
with the position that the agarias
are
independent
contractors. This argument, however, proceeds on a
misapprehension
of
the
true legal position.
The
broad distinction
between a workman and an independent contractor lies in this that while the
former
agrees himself to
work, the
latter
agrees
to
get
other persons
to work.
Now a person
who agrees · .
~himself to work and does so work and is, therefore, a
workman does not cease to be such by reason merely
of the fact that he gets other persons to work along
(1) (1855) 4 EI. & BI. 570, 578; (1855) 119, E.R. 209, 212.
(2) (1863) 32 L. J. (Exchequer) 188.
1956
Dharangadluzr11
Chemi&al Works
Ltd.
v.
Stal4 qf SIJlll'a.rhtr11
BhagwaJi ].
1956
DharoTJ.l!Odhara
Chdniciil W orkl
w.
Y.
81111< of s-.u.,,.
Bhagwati j.
166
SUPREME COURT REPORTS
[1957]
with him and that
those persons are controlled and
paid by him.
What determines whether a person is a
workman or an independent contractor is whether he
has agreed to work personally or not. If he has, then
he is a workman and the fact that he takes assistance
from other persons would not affect his status. The
position is "thus summarised in
Halsbury's 'Laws of
England', Yol. 14, pages 651-652 :-
"The workman must have consented to give his
personal services and not merely to get the work done,
but if he is bound
under his contract to work personally, he is Rot excluded from the definition, simply
because he has assistance from others, who work under
him."
(See
also Grainger v. Aynsley: Bromley v. Tams(');
Weaver v. Floyd(•) and Whitely v. Armitage(').)
In
the
instant
case
the
agarias
are professional
labourers. They themselves personally work along with
the members of their families in the production of salt
and would, therefore, be workmen. The fact that they
are free to engage others to assist
them and pay for
them would not, in view of the above authorities, affect
their status as workmen.
There are no doubt considerable difficulties
that
may
arise if the agarias were held to be workmen within
the meaning of s. Z(s) of the Act.
Rules regarding
hours of work etc;., applicable to other workmen may
not be conveniently applied to them and the nature as
well as the manner and method of their work would be
such as cannot be regulated by any directions given by
the Industrial
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 t<? 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 agarias
and the
r~muneration to be paid to them by the employer in
.
(t) (1881) 6 Q.B.D. 18•.
(•) (185>) 21 L.J.,QB. 151.
(31 (1804) 16 w.P.. 144.
S.C.R.
SUPREME COURT REPORTS
167
the manner it is used to do in the ~ase of other industries where 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 dismissed.
LALIT MOHAN DAS
fl.
ADVOCATE-GENERAL, ORISSA
(S. R.
DAS c. J.,
BHAGWATI,
VENKATARAMA
AYYAR,
B. P. SINHA and S. K. DAs JJ.)
Legal
Practitioner-Report-Procedure-Not open to District
fudge to send back report to the Subordinate Civil fudge-Report
once made proceedings can terminate by-Final Order of the High
Court only-Member of the Bar-Officer of the Court-Duty to client
and Court-Dignity and decorum of the Court must be upheld-Conduct-Not a mattt:t: between individual member of Bar and a member
of
fudicial
Service-Disciplinary
action-Punishment-Mitigating
arcumstances-lnterference by Supreme Court-Legal Practitioners
Act (XVIII of 1879), s. 14.
.
11it appellant pleader who already had strained relation with
the
Munsif made certain objectionable remarks in open Court,
suggesting partiality and unfairness on the part of the Munsif.
The Munsif drew up a proceeding under ss. 13, 14 of the Legal
Practitioners Act, 1879, against the pleader and submitted a ~port
to the
High Court through the District Judge.
An appliption to the Additional District Judge was filed by
the pleader, for time to movt" the
High Court to ge~ an order to
have the matter heard by some
Judicial
Officer other than the
4-76 S.C. India/69
1956
D/uirantiadhara
Chemical Works
Ltd.
v.
Stall ~·J Saurashtr~
BhagwaJi].
.November 29