# SHANKAR BALAJI WAJE v. STATE OF MAHAR.ASHTRA

- **Citation:** [1962] Supp. 1 S.C.R. 249
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** J. L. Kapur, K. Subba Rao, R.Aghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shankar-balaji-waje-v-state-of-mahar-ashtra-2417
- **Pages:** 27

## Headnote

Faclory-Worktr employed-Definition-No contract of
service between owner and labour-Labourer free fo attend and
go any time-If worker-Factories Act, 1948 (63 of 1948),
88. 2(1), 79, 79(11), 80,90, 92.
The appellant was the owner of a factory manufacturing bidi• and one P along with other labourers used to roll bid is
in the factory with tobacco and leaves supplied to hiin by
the factory. The following were established facts :-
( l) There was no contract of service between
the appellant and P.
(2) He was not bound to attend
the factory for rolling bidis for any fixed hours or period;
he was free to go to the factory at any time during working
hours and leave the factory at any time he liked. (3) He
could be absent from the work any day he liked and for ten
days without even informing the appellant.
He had to take
the permission of the appellant if he was to be absent for
more than 10 days.
(4)
He was not bound to roll the
bidis at the factory.
He could do so at home with the
permission of the appellant for taking home the tobacco
sup,ilied to him.
( 5)
There was no actual supervision
of the work done by him in the factory and at the close
of the day rolled bidis were delivered to the appellant.
Bidis not up to the standard were rejected.
(6) He was
paid at fixed rates on the quantity of bidis turned out and
there was
no stipulating for, turning out any minimum
quantity of bidis. The Inspector of Factories found that
he was not paid the wages for 4 days' leave which he had
earned after having worked for a certain period. The appellant was fined Rs. 10/· for contraveving the provisions of
s. 79( 11) of the Factories Act. The questions which arose
for decision were whether P was a worker within the meaning of that expression under the Act and whether he was
entitled to any leave wages under s. 80 of the Act.
Held (per Kapur and Raghubar Dayal, JJ.), that the
decision of this Court in Birdhi Ohand's Gase was <listing·
uishable on facts and could not be applicable to the facts
· of the present case.
The appellant exercised no control and supervision
over P. He was not a worker as the three criteria and
conditions laid down by this Court in Ohintaman Rao'•
1161
Oclober 21.
1961
Sliankttr Ralajl M'oje
V.
Stclt of !iloharashtra
250 SUPREME COURT REPORTS (1962) SUPP.
cas"C for constituting him as such were not fulfilled in the
present case.
Bird/ii Chand Sharma v. The Firs! Ciril Jucb;e, Nagpur
[1961] 3 S. C.R. 161, distinguished.
Chintaman
Rao
v. 7'/w Slate of JI t1dhya
Pradesh,
[1958] S. C. R. 1340, applied.
Whether the appellant contravened the provisions of
sul>-s. (I) of s. 79 depended on the proper constmction of
ss. 79 and 80 of the Act.
With the terms of the work as
they were in the present case there could be no basis for
calculating
the daily
average of the worker's "total full
time earnings" which means the earnings he earns in a day
by working full time on that day, the full time to be in
accordance
with
the period of tinl.c given in the uotice
displayed in the factory for a particular day and therefore
the wages to be paid for the leave period could not be
calculated nor the number of days for which leave with
wages could be allowed be calculated in such a case.
The
couviction of the appellant under s. 92 read withs. 79( 1)
of the Act was wrong.
Per Subba Rao, J., disscnting,-The question raised
in the appeal wa.s directly covered by the judgment of this
~rt in Birdhi Chand Shamia's case.
It could not be said that the appellant had no right
of supervision or control over the labourers in the factory
or did not supervise to the extent required having regard to
the nature of the work done in the factory.
Under s. 2(1) of the Act "worker" meant a person
employed, directly or through any agency whether for wages
or not in any manufacturing process. All the ingredients
of the \vord ''employed" as laid down by this court were
present in this case and therefore the labourers were workers
within the meaning ofs. 2(1) of the Act.
lJ

## Text

_Characters 0–39,681 of 51,873. This is a partial read: ask again with offset=39681 for what follows._

(1) S.C.R.
SUPREME COURT REPORTS
240
SHANKAR BALAJI WAJE
v.
STATE OF MAHAR.ASHTRA
(J. L. KAPUR, K. SUBBA RAO and R.AGHUBAR
DAYAL, JJ.)
Faclory-Worktr employed-Definition-No contract of
service between owner and labour-Labourer free fo attend and
go any time-If worker-Factories Act, 1948 (63 of 1948),
88. 2(1), 79, 79(11), 80,90, 92.
The appellant was the owner of a factory manufacturing bidi• and one P along with other labourers used to roll bid is
in the factory with tobacco and leaves supplied to hiin by
the factory. The following were established facts :-
( l) There was no contract of service between
the appellant and P.
(2) He was not bound to attend
the factory for rolling bidis for any fixed hours or period;
he was free to go to the factory at any time during working
hours and leave the factory at any time he liked. (3) He
could be absent from the work any day he liked and for ten
days without even informing the appellant.
He had to take
the permission of the appellant if he was to be absent for
more than 10 days.
(4)
He was not bound to roll the
bidis at the factory.
He could do so at home with the
permission of the appellant for taking home the tobacco
sup,ilied to him.
( 5)
There was no actual supervision
of the work done by him in the factory and at the close
of the day rolled bidis were delivered to the appellant.
Bidis not up to the standard were rejected.
(6) He was
paid at fixed rates on the quantity of bidis turned out and
there was
no stipulating for, turning out any minimum
quantity of bidis. The Inspector of Factories found that
he was not paid the wages for 4 days' leave which he had
earned after having worked for a certain period. The appellant was fined Rs. 10/· for contraveving the provisions of
s. 79( 11) of the Factories Act. The questions which arose
for decision were whether P was a worker within the meaning of that expression under the Act and whether he was
entitled to any leave wages under s. 80 of the Act.
Held (per Kapur and Raghubar Dayal, JJ.), that the
decision of this Court in Birdhi Ohand's Gase was <listing·
uishable on facts and could not be applicable to the facts
· of the present case.
The appellant exercised no control and supervision
over P. He was not a worker as the three criteria and
conditions laid down by this Court in Ohintaman Rao'•
1161
Oclober 21.
1961
Sliankttr Ralajl M'oje
V.
Stclt of !iloharashtra
250 SUPREME COURT REPORTS (1962) SUPP.
cas"C for constituting him as such were not fulfilled in the
present case.
Bird/ii Chand Sharma v. The Firs! Ciril Jucb;e, Nagpur
[1961] 3 S. C.R. 161, distinguished.
Chintaman
Rao
v. 7'/w Slate of JI t1dhya
Pradesh,
[1958] S. C. R. 1340, applied.
Whether the appellant contravened the provisions of
sul>-s. (I) of s. 79 depended on the proper constmction of
ss. 79 and 80 of the Act.
With the terms of the work as
they were in the present case there could be no basis for
calculating
the daily
average of the worker's "total full
time earnings" which means the earnings he earns in a day
by working full time on that day, the full time to be in
accordance
with
the period of tinl.c given in the uotice
displayed in the factory for a particular day and therefore
the wages to be paid for the leave period could not be
calculated nor the number of days for which leave with
wages could be allowed be calculated in such a case.
The
couviction of the appellant under s. 92 read withs. 79( 1)
of the Act was wrong.
Per Subba Rao, J., disscnting,-The question raised
in the appeal wa.s directly covered by the judgment of this
~rt in Birdhi Chand Shamia's case.
It could not be said that the appellant had no right
of supervision or control over the labourers in the factory
or did not supervise to the extent required having regard to
the nature of the work done in the factory.
Under s. 2(1) of the Act "worker" meant a person
employed, directly or through any agency whether for wages
or not in any manufacturing process. All the ingredients
of the \vord ''employed" as laid down by this court were
present in this case and therefore the labourers were workers
within the meaning ofs. 2(1) of the Act.
lJirdhi Chand Sharma v. First Cit-ii
Judge, Nagp1<r.
11961] 3 S. C. R.161, Chi1./ama11Roo v. State of M. /'. [1958)
S. C. R. 1340, Dharangadhara Chemical Works v. State uf
Sau.raahtra, [1957] S. C, R. 152, State of Kerala v. 1'. M.
Patel, and J'alaniappa v. Court of Additional First
C/a.<S
Magistrale, Kulita/ai, I. L. R. 1 ~58 Mad. 999, considered.
For
the purpo;)C of calculation of \\'ages during tLc
leave period under s. 80, the full tiinc earnings for a day
could be Laken tu rnean the a1noun t earned by a worker
fur
the dailr hours of \York tixcd for a factory.
In the
instant case the \Y<Jrkcrs \\'ere enlitled to \\•ork throughout
the fix::d \York!Hg hours of the far.torr though they could
leave die factory at any tin1c Juriug
tho~C hours aud tl1ey
...
( 1) S.C.R.
SUPREME COUiiT REPORTS
251
were entitled to be paid their wages on the basis of' the
number of the bidis rolled by them. The wages earned by
them during the working hours of the fa<0 tory would be
their full time earning for the day. There could,
therefore,
be no difficulty in ascertaining the rate under s. 80 of their
wages during the leave period, for under that section the
workers would have to be paid at a rate equal to the daily
average of their total full time earnings for the day• they
worked.
CRIMINAL APPELLATE
JuRISDIC'l'ION: Criminal Appeal No. 63 of 1960.
Appeal by special leave from the judgment
and order dated October 9, 1939, of tho Bombay
High Court in Criminal Reference No. 94 ofl959.
A. V. Viswanntha Snstri, S. N. Andley and
Rameshwar Nath, for the appellant.
R. Ganapathy Iyer and R. II. Dhebar, for
respondent.
1961. October 27. The Judgment of Kapur and
Dayal, JJ., was delivered by Dayal J. Subba R110,
J., delivered a separate Judgment.
1961
S'iankar Balaji U'ajc
v,
Stale of Maliaraslilra
RAGHUBAR
DAYAL,
J.-This appeal,
by
RaghubarD•yalJ.
special leave, is directed agaist the order of the
High Court of Bombay, rejecting the reference
made by the Additional Sessions Judge, Nasik, and
confirming the conviction of the appellant under
s. 92 of the factories Act, 1948 (Act LXIII of 1948),
hereinafter called the Act.
The appellant is the owner and occupier of
"Jay Parkash Sudhir Private Ltd., a factory which
manufactures bidi.J.
Pandurang Trimbak Londhe,
hereinafter called
Pandurang, rolled bid is in that
factory for a
number of days in 1957. He ceased
to do that workfrom Augustl7, 195i. Itwas
alleged by the prosecution that the appellant terminated Pandurang's services by a notice put up on
August
12,
1957. The 'appellant,
however,
admitted the puting up of such a notice,
but
denied that Pandurang, the labourer, had left his
service of his own aocord.
1911
SlulMa Baloji Wajt
v.
St au of .\l ahara1hlra
&gbbar Dayal .T.
252 SUPREME OOURT REPORTS [196!'.] SUPP.
Inspector Shinde, P.W .1, visited this factory
on August 22,
1957.
He found from the weekly
register and the wages register of tho Fac~ory that
Pandurang worked for 70 days and earned 4 days
leave.
Pandurang, however, did not enjoy that
leave and was therefore entitled to be paid wagea
for that period i.e., for 4 days' leave. He was not
paid those wages, and therefore, the appellant contravened the provisions of s. 79( II) of the Act.
He consequently submitted a complaint against the
appellant to the Judicial Magistrate, First Class,
Siimar.
It was contended for the accused before the
Magistrate that Pandurang was not a worker within
the meaning of that expression, according to s. ~(I)
of the Act and that therefore no leave could be due
to him and the api;ellant could not have committed
the offence of contravening the provisions of
s.79(11 ). The learned Magistrate did not agree with
the defence contention and held Pandurang to be
a worker and convicted the appellant of the offence
under s.
92 read with s. 79(ll) of the Act and
sentenced him to a fine of Hs. 10.
It may be mentioned that this case was a test
case. Similar l'ases against the appellant with
respect to the non-payment of leave wages to
other workers were pending in the Court.
The appellant went in revision to the Court of
the learned Additional Sessions Judge, Nasik. The
Sessions Judge was of the opinion that Pandurang
was not a worker and that the conviction of the
appellant was
bad. He accordingly referred the
case to the High Court. The High Court, however
did not agree with the view of the Sessions Judge
and, holding that Pan<lui·.mg was a worker, rejected
the revision and confirmed the conviction and
sentence. It is against this order that this appeal
has been fikd.
Two points ha vc been raised 011 behalf of the
appellant. One is that Pandurang
W•IS not a
•
(I) S.C.R.
SUPREME OOURT REPORTS 253
worker within the mea.ning of that expression in
the Act. The other is that even if Pa.ndura.ng was
a. worker, he wa.s not entitled to a.ny leave wages
under s. 80 of the Act.
The first contention is based on the established facts of the case which, it is submitted, do
not make out the rehtionship of master a.nd
servant between the a.ppellarrt and Pundurang,
inasmuch as they indicate that the a.ppellant ha.d
no supervision and control over the details of the
work Pandurang did _in the factory. The following
are the established facts:
( l) There was no agreement or contra.ct of
service between the appellant and Pandurang.
(2l Pandurang was not bound to attend
the factory for the work of rolling bidis for
any fixed
hours of work or for any fixed
period. He was free to go to the factory at
any time he liked and was equally free to
leave the factory whenever he liked.
Of
course, he could be in the facto:·y during the
hours of working of the factory.
(3) Pandurang could be absent from work
on any day he liked.
He could be absent up
to ten days without even informing the
appellant. If he was to be a.bsent for more
than ten days he had to inform the appellant,
not for the purpose of taking his permission
or leave, but for the purpose of a~suring th"
appellant that he had no intention to give up
work at the fa.ctory.
(4) There was no actual supervision of the
work Pandurang did in the factory.
(5) Pandurang was paid at fixed rates on
the quantity of bidis turned out. There was
however no stipulation that he had to turn
out any minimum quantity of bidis in a day.
(6) Leaves used to be supplied to Pandu-
' arng for being taken home and cut there.
Bhankar Balqji Wajt
v.
St alt of M aluirashtra
Raglmbar Dayal J,
1961
Sliankar Ba/aji Woj1
Y.
State of M aJtorasl.tr•
Raghubar Da;·al J.
254
SUPREME OOURT REPORTS (1962] SUPP.
Tobacco to fill the bidis need to be supplied at
the factory. Pandurang was not bound to
roll the bidis at the factory. He could do so
at his place, on taking permission from the
appellant for taking tobacco homo.
The
permission was necessary in view of Excise
Rules and not on account of any condition of
alleged service.
(7) At the close of the day, the bid1'.,, used
to be delivered to the appellant and bidia not
up to the standard, used to be rejcete.d.
The second contention is based on the inapplicability of the provisions of ss. 79 and 80 of the Act
to the case of the appellant, insamuch as it is not
possible to calculate tho number of days he TI'Orked
or the total full time earnings for the days on
which he worked during the relevant period mentioned in s. 80.
On behalf of the respondent State, it is submitted that the appellant had the right to exerciRc
such supervision and control over the work of
l'andurang as was possible with respect to the
n><ture of Panduraug's work which was of a very
simple kind and that therefore Pandurang WM a
worker. It is further urged that there is no diffi
culty in calculating the number of working dayR or
the total full-time earnings contemplated by s. 80
of the Act.
We have given very anxious consideration to
this ease, as the view taken
by the Court
below in this case had been stated to be the
right view in the decision of this Court
in
Shri Birdhichand Sharma v. The first Cit-ii Judge,
Na.,7pur ('), on which reliance is placed by the
respondent. The facts of that <'.ase ~ro distinguiBha ble, and only some of the facts of that case arc
similar to some of tho facts of this r.asc.
Thi
~im ilar factH are only these : Pandurang as well
as the workers in that case could go to the factory
(II [I96!llS.C.R. !GI,
J
(1) S.C.R.
SUPREME COURT REPORTS
255
19'1
at any time and leave it at any time, within the
fixed hours of work and they were paid at piece
rates and the bidis below the standard were rejected. It is to be noticed that the decision in that case
is based on facts which do not exist in the present
case. That decision, therefore, is distinguishable
and the opinion about the view of the High Court
in the present case to be correct, appears to have
been expressed without noticing that the facts of
this case are different in material respects from the
faote of the case t4is Court .was deciding. The
decision of that case it based really on the following facts:
Sh.Dnkar Ba!aji U'aje
( l) The alleged workers had to work at
the factory.
(2) Their attendance was noted.
(3) If they came to the factory after
mid-day, they were not given any work and
they thus lost wages.
( 4) The management had the right to
remove them if they stayed away for a
, continuous period of eight days.
In the present case, Pandurang could work at the
house if the appellant permitted tobacco to be
taken home.
There is nothing on record to show
that the attendance is noted. bf course, the days
Pandurang worked could be found out from the
work register. It is not the case here that no work
was to be given to Pandurang if he went to the
factory after mid-day. There is no allegation that
the appellant had the power to remove him, as a
result of continued abRence for a fixed number of
days. We are therefore of opinion that the
decif.ion in Birdhichand's C11se (1) is distingu;shable
on facts and cannot be applicable to the facts of
this case.
(I} [1961] 3 S. <.:, 1<. 161,
v.
State oj A1ahara!htra
Raghuhar Dayal J.
'
1961
S'ranJ.ar Balaji H'ajt
v.
Stau of li1aharaJhffo
Pa1lmbar ·Da_H2l J.
266 SUPREME OOURT REPORTS [1962] SUPP.
The one essential ingredient which should
exist to make a person come within the definition
of 'worker' in cl. ( l) of s. 2 of the Act is that he be
employed in one of the processes mentioned in that
clause.
There is no dispute that the work which
PtJ.ndur'l.ng did came within one of such processes.
The sole question for determination then is whether
Pandurang can be said to be employed by tho
appellant.
This Court, in Shri Chintaman Rao v. The
Suite of Madhya Prad.esh ('),said :
"The concept of employment involves
three ingredients : (I) employer (2) employee
and (3) the contract of employment.
The
cmploy~r is one who employs, i.e., one who
engage.- the services of oth~r person.~. The
Pmployee is o 1e who works for another for
hire. The employment is the contract of sor·
vice between the employer and the employee
whcreunder the employee agrees to serve the
cmployrr subject to his control and supervision."
Employment brings in the contract of service bet·
ween tho employer and tho employed. We have men·
tioned already that in this case there was no agree·
ment or contract of service between the appellant
and Pandurang. What oan be said at th11 most is
that whenever PtJ.ndurang went to work, tho appellant agreed to supply him tobacco for rolling bidis
and that Pandurang agreed to roll bidis on being
paid at a certain rate for the hidis turned out. Tho
appellant exercised no control and supervision over
Pandurang.
Further s. 85 empowers tho State Govern.
mcnt to declare that crtaiI1 provisions of the Act
would apply to certain places where a man11fa1·turing process is carried on,
notwithstanding tho
persons therein are not employed by the owner
(I) [1918] S. C.R. 1340, 1346, 1349, JS50, 13SI.
J
•
(1)
S.C.R. SUPREME COURT REPORTS
257
thereof but are working ·vi th the permission of or
under agreement with such owner. This provi·
sion draws a
dist.inction between the person
wm:king being employed
by the owner and a
person working with the permission of
the
owner or under agreement with him. We are of
opinion that the facts of this case strongly point
to Pandurang's working with the permission of or
under agreement with the owner and not on any
tarm of employment by the owner.
Further, the facts of the case indicate that
the appellant had no control and supervision over
the details of Pandurang's work. He could not
r-ontrol his hours of work. He could not control
his days of work. Pandurang was free to absent
himself and was free to go to the factory at any
time and to leave it at any time according to. his
will. The appellant could not insist on any particular minimum quantity of bidis to be turned out
per day. He could not control the time spent by
Pandurang on the rolling of a bidi or a number of
bidi8.
The work of rolling bidis may be a simple
work and may require no particular supervision
and direction during the process of manufacture.
But there is nothing on record to show that any
such direction could be given.
In this connection reference may again be
made to the observation at page 1349 in Shri
Chintam<m Rao's Case\'). The Court was considering whether the · Sattedars were workers or were
independent contractors. The Sattedars used to
receive tobac<'o from the management and supply
them rolled bidis. They cnuld manufacture bidis
outside the factory and could also employ other
labour. It was, on these facts, that it was said:
''The management canliot regulate the
•
manner of discharge of his work."
In the present case too, Pandurang used to be
supplied toba.cco. He could turn out as many birlis
ill [1958] S. C.R. 1310, 1346, 1349, 1350, llSI.
8hanlca1 Ba/aji Waj1
v.
State of .. l! aharashtra
Raghubar Dayal J,
19&1
Sha.U:" B•l•ji Wqj1
••
Btat1 of M altar.sh.Ira
R!1gl11tbar Dayal J.
2118 SUPREME COURT REPORTS [1962) SUPP·
as he liked and could deliver them to the factory
when he wanted to cease working. · Doring hie
period of work, the management could not regulate
.the manner in which he discharged his work. Ho
could take his own time and could roll.in as many
bidia · as he liked. His liability under the daily
agreement was discharged by his delivering the
bidi.8 prepared and the tobacco remaining with
him unused. The appellant could only order or
require Pandurang to roll the bidis, using the
tobacco and
leaves
supplied to
him,
but
could not order him as to how it was to be done.
We are therefore of opinion that the mere fact that
the person rolling bidis has to roll them in a particular manner can hardly be said to give rise to
such a right in the management as can be said to
be a right to control the manner of work. Every
worker will have to tum out tho work in accordance
with the specifications. The control of the management, which is a necessary element of the relationship of master and servant, is not directed towards
providing or dictating the nature of the article to
be produced or the work to be done, but refers to
the other incidents having a bearing on the process
of work the person carries out in the execution of
the work. The manner of work is to be distinguish·
ed 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 tho management,
which is concerned only with getting bidia rolled in
a particular sty le with certain contents.
Further, this Court, in Shri Chintaman Rao's
CIJ8e ('), examined the various provisions of the Act
and then said :
"The scheme of the aforesaid provisions
indicates that the workmen in the factory arc
under the direct supervision and control of
the management. The conditions of service
(I) [IS38)S. C.R. 1340, fl46, 1349, 1330, 1!51.
-
...
•
....
•
.,,
(1) S.C;R.
SUPREME OOURT REPORTS
2159
are statutorily regulated and the manage·
ment is to 'conform to the rules laid down
at the risk of being penalised for derelic·
tion of any of the atatutoryd utiea. The
management obviously cannot fix the working
honra, weekly holidays, arrange for night
shifts and comply with other statutory requirements, if the persons like the Sattedars, work·
ing in their factories and getting their work
done by others or through coolies, are workers
within the meflning of the Act. It is well
nigh impossible for the management of the
factory to regulate their work or to comply
with the mandatory provisions of the Act.
The said provisions, thnefore, give a clear
indication
that
a
worker
uuder
the
definition of the Act is a person who
enters into a contract of service under the
management and does not include an independent contractor or his coolies or servants who
are not under the control and supervision of
the employer."
It can be said, in the present case too, that the
appellant could not fix the working hours or weekly
holidays or make arrangements for night shifts and
comply with other statutory requirements, if
Pandurang be helrl to be a wo~ker within the meaning of the Act. We are therefore of opinion that
Pandurang was not a worker.
It is true, as contended for the State, that
persona engaged to roll bidis on job work basis could
be workers, but only such persona would be workers
who work regularly at the . factory. and are paid
for the work turned out during their regular
employment on the basis of the work done. Piece.
rate workers can be workers within the definition
of 'worker' in the Act, but they must be regular
workers and not ·workers who come and work
according to their sweet will. It is also true, as
urged for the State that a worker, within the
1961
Bhanko.r Balaji Woje
v.
StaJ. of M a}l(uOJhtro
Raghuh.r Dayal J •
19&1
SMnkar Balnji lVaj1
••
SlaU of Maharalhlra
Rag.~ubar Da-,ol J.
260 SUPREME CX>URT REPORTS [1962) SUPP.
definition of that expression in the Act, need not
bo a whole.time worker. But, even then, the
worker must have, under his contract of Rcrvice,
a.n obligation to work either for a. fixed period or
between fixed hours. Th" whole conception of
service does not fit in well with a servant who has
full liberty to ntt3nd to his work according to his
plea.sure and not according to the orders of his
master.
We may sa.y that this opinion further finds
support from what we hold on the second contention. If Palldurang was a worker, the provisions
about leave a.nd leave wages should apply to him.
We are of opinion that they do not and what we
say in thnt connection reinforces our view that
Pandurang was not a worker as the three criteria
and conditions laid down in Shri Chintaman Rao's
Case (') for constituting him as such a.re not fulfiUed
in the prest>nt case.
Before discussing the provisions of ss. 79 a.nd
80 of the Act, which deal with leave and wages
for leave, we would like to state that the terms on
which Pandurallg worked, did not contemplate any
leave. He was not in regular employ. He wa.s
given work a.nd pa.id according to the work he
turned out.
It was not incumbent on him to
attend
to
the
work
daily
or
to
take
permission for absence before absenting himself.
It was only when he had to absent himself for a
period longer than ten days that he had to inform
t.hc management for administrative convenience,
but not with a. view to ta.kc leave of absence.
Section 79 provides for annual leave with
wages a.nd s. 80 provides for wages during leave
period. It is on the proper oonstruotion of the
provisions of these sections that it can be said
whether the appellant contravened the provisions
of sub·s. (11) of s. 79 of the Act a.nd committed the
offence under s. 92 of the Aot.
(I) [1958] S. C.R. 1340, 1340, 1349, 1'30, 1351.
..
..
_,
(1) S.C.R. SUPREME COURT REPORTS
261
Sub-section ( l) of s. 79 reads:
"(l) Every worker who hae worked for a
period of 240 days or more in a factory during
a calendar year shall be allowed
during
the subsequent calendar year, leave with
wages for a number of days calculated at
the rate of-
(i) if an adult, one day for every
twenty days of work performed by him during
the previous calendar year;
(ii) if a child, one day for every
fifteen days of work performed by him during
the previous calendar year.
Exp'tanation-1. For the purpose of this
sub·section-
(a) any days of lay off, by agreement
or contract or as permissible under the stand·
ing orders;
(b) in the case of a female worker,
maternity leave for any number of days not
exceeding twelve weeks; and
(c) the leave earned in the year prior to
that in which the leave is enjoyed;
shall be deemed to be daya on which the
worker has workedin a factory for the purpose
of computation of the period of 240 days or
more, but shall not earn leave for these days.
Explaootion-2.
The leave
admiasible
under this sub.section shall be exclusive of all
holidays whether ocourrin~ during or at either
end of the period of leave. '
It is clear that this applies to every worker. If it
does not apply to .lny type of person working in
the factory, it may lead to the conclusion that the
person does not come within the definition of the
word 'worker'.
1961
Shankar Balaji Waje
••
State of Maharashtra
Raghubar Dayal J.
l~l
SMnlrar Balaji JVojt
v.
SUJ/1 of M aMroshJra
llaghubM Dayal J,
262 SUPREID: COURT REPORTS [1962] SUPP.
Tho worker is to ge~ leave in a subsequent
year when he has worked for a period of 240 days
or more in the factory during the previous calendar
year. Who can be said to work for a period of
240 days?
According to cl. (c) of s. 2, 'day' means a
period of twenty-fore hours beginning at mid-night.
Section 51 lays down th~t no adult worker shall be
required or allowed to work in a factory for more
than forty-eight hours in any week, and, according
to s. 54, for not more than nine hours in any day.
Section 61 provides that there shall be displayed
and correctly maintained in every factory a notice
of periods of work for adults showing clearly for
every day the periods during which adult workers
may be required to work and that such periods
shall be fixed beforehand and shall be such that
workers working for those periods would not be
working in contravention of any of the provisions
of ss. 5 J, 52, 54, 55, 56 and 58.
Section 63 lays down that no adult worker
shall be required or allowed to work in any factory
otherwise than in accordance with the notice of
periods of work for adults displayed in the factory.
A 'day', in this context, would mean a period of
work mentioned in the notice displayed. Only that
worker can therefore be said to work for a period
of 240 days, whose work ia controlled by the hours
of work he is required to put in, according to the
notice displayed under s. 61.
Pandurang was not bound to work for the
period of work displayed in the factory and therefore his days of work for the purpose of s. 79
could not be calculated. It is urged for the State
that each day on
which Pandurang worked,
whatever be the period of time that he worked,
would count as one day of work for the purpose of
this section. We do not agree with this contention.
When the section provides for leave on the basis of
(1) S.C.R.
SUPREME COURT REPORTS
263
the period of working days, it must contemplate a
definite period of work per working day and not
any indefinite period for which a person may like
to work on any particular day.
Section 80 provides for the wages to be paid
during the leave period and its sub-s. ( 1) reads:
"For the leave allowed to him under
section 79, a worker shall be paid at a rate
equal to the daily average of his total full
time earnings for the days on which he worked
during the month immediately preceding his
leave, exclusive of any overtime and bonus
but inclusive of dearness allowance and the
cash equivalent of the advantage accruing
through the concessional sale to the worker
of foodgrains and other articles."
The question is how the daily average of his total
full time earnings for the days on which he worked
during the month immediately preceding his )!"ave
is to be calculated. It is necessary for the calcula-
->
tion of the rate of wages on leave, to know his to,tal
•full time earnings' for the days he had worked
during the relevant month. What does the expression 'total full time earnings' mean?
This .expreBBion is not defined in the Act. It can only
mean the earnings he earns in a day by working
full time on that day, full time to be in accordance
with the period of time given in notice displayed
in the factory for a particular day. This is furttier
apparent from the faot that any payment for ov.ertime or for bonus is not included in computing the
total full time earnings.
'Full time', according to Webster's International Dictionary, means 'the amount of time
considered the normal or standard amount for
working during a given period, as a day, week or
month'.
JOol
Shankar Balaji lYaJe
v.
State of Ma/W'asfilra
Razhubcr Dayal J.
SAon1:m'Q alllji lfoje
Y.
Stall of Mah.arOJl1tra
26! SUPREME COURT REPORTS [1962) SUPP.
In Words & Phrases, Permanent Edition,
published by West Publiahing Co., Vol. 17, with
regard to the expression 'Full time' it is stated:
"In an industrir 1 community, t<Jrm 'fuli
timo' ha.a acquired definite significance recognized by popular usage. Like terms 'part
time' and 'over time' it refers to customary
period of work; and all these terms assume
that a certain numb!'r of hours per day or
days per week constitute respectively a day's
or week's work within a givert industry or
factory."
It is also stated at page 79 l :
" 'Full time' as bssis for determination
of average weekly wages of injured employee
means time during which employee is offcrd
employment, excluding time during which
he has no opportunity to work."
We art• therefore of opinion that there can be no
ba.eiR for calculating the daily. average of tho
worker's total foll time earnings when the terms
of work be as they a.re in the present case and
that therefore the wages to be pa.id for the leave
period ci.nnot be ca.lcula.tcd nor the number of
days for which leave with wages can be allowed
be ca.l<>ulated in such a case. It does not appear
from the record, and it is not likely, that any
period of work is montioned in the notioe displayed under s. 61, with respect to suoh workers who
can come at any time they like and go at any
time 'they like and turn out as muoh work a.a they
like.
For the reasons stated a.hove, we a.re of
opinion that the conviction of the appellant for
an offence under s. 92, read with a. 79(ll) of the
Aot is wrong. We accordingly set a.side the order
of the Court below and acquit the appellant. Fine,
if pa.id, will be refunded.
•
(1) S.C.R.
SUPREME COURT REPORTS
265
SuBBA RAO, J.-I have had the advantage
of perusing the judgment prepared by my learned
brother Dayal, J. I regret my inability to agree.
The question raised in this appeal is directly
covered by t.he judgment of this Court. in Birdhi
Chand Sharma v. First Civil Judge, Nagpur (1).
As my learned brother has taken a different view,
I propose to give reasons for my conclusion.
This appeal by special leave is directed
against the judgment of the High Court of Bombay
in Criminal Reference No. 94 of 1959 made by the
Additional Sessions Judge, Nasik, under s. 438
of the Code of Criminal Procedure, and it raises
the question of interpretation of some of the
provisions of the Factories
Act, 1948 (63 of
1948), (hereinafter referred to as the Act).
The appellant is the owner of a factory
named "Jay Parka.sh Sudbir Private Ltd." engaged
in the manufacture of bidis.
He engaged 60
persons for the wo:rk of rolling bidis in his factory.
On August 12, 1257, the appellant issued a notice
to the said persons terminating their services with
effect from August 17, 1937. On August 22, 1957,
the Inspector
of Factories paid a visit. to the
factory and found that one of the said persons
by name Pandurang Trimbak had worked for 70
days in the factory . and ha.d f.)arned leave for 4
days which he had. not enjoyed nor was he paid
wages in lieu of the leave before his discharge. It is
not disputed that the position in regard tμ the other
59 persons is also similar. The Inspector of Factories filed 60 complaints against the _appellant in
the Court of the Judicial Magistrate, First Class,
Sinnar, for infringing the provisions 'of S; 79(2) of
the ·.Ac.t. The Magistrate .found the appellant guilty
and convicted and sentenced him to pay a fine of
Rs. 10. On revision, the. learned Additional Ses·
sions Judge, . Nasik, t!l.king tbA view that the conviction should be quashed~ referred the matter
(I) [1961] 3 S,C.R. 161.
1961
Shankar Balaji Waje.
v.
&at1 of M akara1htra
S..bba&o, J.
11161
Slwrd;.lll Balaji WaJ1
v.
Stat1 of Maltatoshlra
•ubba Rao. J.
266 SUPREME COURT REPORTS (1962] SUPP.
t'
to the High Court under s. 438 of the Code of
Criminal Procedure.
A division bench of the
High Court, on a consideration of the fact.a found
the material proviHions of the Act and the relevant
decisions cited, oame to the conclusion that a person rolling bidi.' in a factory is a "worker" within
the meaning of s. 2( I) of the Act and on that basis
upheld the order of conviction and sentence passed
by the learned Magistrate. Hence this appeal.
Learned counsel for the appellant contends
that the persons rolling bidis in the factory aro
not "workers" within the meaning of the Act;
as the said persons can come any day thoy like,
work as they like and, therefore, they cannot
be said to be employed by the manufacturer
under the Act. Alternatively he argues that even
if they were "workers", s. 79 of tho Act, which
deals with the question of leave with wages, cannot
apply to a worker who is paid wages according
to the quantity of work done by him and not per
day or per week.
At the out.aet it would be convenient to
ascertain exactly how these persona rolling bidis
are engaged by the appellant and how they work
in the fa!'tory. Admittedly, Pandurang Trimbak
and other 50 persona were engaged by the appellant for
rolling
bidi~ in his factory.
The
registers
maintained by the factory,
namely,
weekly register and wages register, had on their
rolls the names of the said persona as labourers for
doing the said work. It is also common case that
the said per8one attend the factory and roll bidis in
the premises of the factory during the working
hours of tho factory.
Leaves .arc supplied to the
labourers on the previous day, which they cut in
their houses after dipping them in water, and on
the next day, when they go to the factory, tobacco
is given to them. After they make the bidis the
master verifies whether they are a.ccording to th~
sample. Those that are not according to the
aa.mple a.re rejected. Thereafter the quantity of
(1) s.c.R..
SUPREME COURT ItEPOH'l'S
267
bidis rolled by each labourer ig entered in the
bidi-map register maintained by the factory. D. W.
l is a gumasta and general supervisor in the
factory. He supervises the work of the man who
supplies tobacco. He enters. the quantity of bidis
rolled by each labourer against his name in the
register and if a labourer is absent, his !J,bsence
is noted against his name in the said register. The
labourers are paid at the rate of Rs. 2-2-0, or
such other rate as agreed by them, per thousand
bidis rolled. .So far there is no difference between
a labourer working in the appellant's factory and
a labourer working in any other factory. Just
like any other manufacturer, the appellant engages the labour, allots work for them and extracts
work from them and pays them wages for the
work so done.
Now let us look at the differences between
the labourers in a bidi factory and those in other
factories on which much emphasis is laid by learn,
ed counsel for the appellant.
P. \V. 1, the Inspector of Notified Factories, says that during
their working in the factory, there, is no supervision
over them. P. W. 2, Pandurang Trimbak, admits
in the crose-examination that during the factory
hours he used to work in the factory of the appellant at any time and go at any time. He further
states that they can sit at any oompartment of
the factory and there is no compulsion on the
labouret to do a minimum quantity of work every
day and that the permission of the master is required only if a labourer wants to absent for more
than ten days or wh<'n he wants to bind bidis in
his house. D. W. 1, the gumasta and st1pervisor
in the factory, also says that a labourer can leave
the factory in the midst of work after giving the
finished product and after returning the tobacco.
He says that at the time of receiving the finished
goods, he verifies whether the goods are according
to sample and then makes the requisite entries in
1941
Slzankar Ba/aJi U'aj,
••
Slate oj Maharasht
Subba Rao J.
1961
Shanku1 Balaji 1.Yajt
V.
Stale of }.JaAa1aslttra
Suliba RaoJ.
268 SUPREME COCRT REPORTS
Llll6~] SUPP.
*•
the ll'giijtcr.
What emerge,; from t.hi,; evidenec
is that there in nci supervi"ion in the st•nsc that
nobody regulary w:1tches their work from start to
finish givin~ directions, if and when re111ired. But
the labourers undcrstaur! that, the /,,Jis to be rolled
in by them shall accord with the sample and, there·
fore, they roll the bidi;; to accord with that sample.
The names of persons that arn absent, the quantity of tobacco issued to each of the labourer, a.nd
the number of bidis rolled bv each of them a.re
entered in the appropriate registers. The rejected
bidis are given away to the !ll.bourers; it cannot
obviously mean that dereliction of <luty is rew:1rd.
ed but it only shows that the rejected bidis arc
insignificant in number.
In Hhort, the appellant
engages a labourer, extracts work from him, pays ,.
him wages in accordance with the quantity of bidi. '-
rolled by him, and exercises a right of supervision
as the nature of the work requires.
With this baekground let us look at the definition of"workcr'' ins. 2(1) ofthu ,\ct. "Worker"
is defined to m(•an ".i. person employed, directly
or through any agency, whether for wages or not
in any manufacturing process ............ "Under this
definition, a pcr6on employed in a manufa.cturin~
process is a worker. The question raised in this
case turns upon the interpretation of the word
"employed" in the definition.
This Court in
Chinte1man Ruo v. State of Jladhya Pradesh (1A)
defined the word "employed" thus:
"Tho concept of Pmployruent involves
three ingredientM: (I) employer (2) employee
, and (3) the contract of employment. The
employer is one who employs, i.e., one who
<'ngages tho services of other persons. The
employee is one who works for another for
hire.
Th<• employment is the contract of
(I Ai ~ 1958: S.C.R. 1340, 1346.
(I) s.o.R.
SUPREl\IB COURT REPORTS
260
service
between
the < mployer
and the
employee whereunder the employee agrePs to
serve the employer subject to his cont10l ar,d
supervision."
In making out the distinction between an employer
and an independent contractor, this Court in the
above case quoted the following observations of
Bhagwati, J., in Dharangadhara Chemicnl Works Ltd.
v. St'!te of Sau.rnshtrn (1):
"The test which is uniformly applied in
order to determine thP relationship is the
existence of a right of control in respect of
the manner in which tho work is to be <lone."
The same view was reiterated by this Court in
The State of Kcralri v. F. Jlf. Patel(').
That was a
case where 23 persons were employed in the process
of garbling pepper and packing them in bags.
Hidayatullah, J., speaking for the Court, stated:
"It was observed that, to determine
whether a person was a.