# SILVER JUBILEE TAILORING HOUSE AND OTHERS v. CHIEF INSPECTOR OF SHOPS AND ESTABLISHMENTS AND ANOTHER

- **Citation:** [1974] 1 S.C.R. 747
- **Court:** Supreme Court of India
- **Decided:** 1973-09-25
- **Case number:** Civil Appeal No. 1706 of 1969
- **Bench:** K. K. Mathew, M. H. Beg, A. K. Mukherjea
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/silver-jubilee-tailoring-house-and-others-v-chief-inspector-of-shops-and-6026
- **Pages:** 13

## Headnote

Andhra Pradesh 'Telengana Area' Shops and Establishments Act 1951, Sections
2(14)-Determination of relationship of employer and emp!<Jyee-Rigitt to control 1nanner of work 1101 an ·exclusive test-Factors relevant for determination
indicated- -Court 1nust balance the 1·arious factors.
·
The second respondent representing the tailors working with the appellants
filed certain claims under s. 37-A of the Andhra Pradesh (Telengana Area),
Shops and Establishments Act r/w s. 15 of the Payment of Wages Act, 1936,
contending that they were the employees of the appellants and that the Andhru
Act ·,vas applicable. The facts as established on evidence \Vere as follows :
·Tue petitioners generaUy attended the shops every day, if there was work.
The rate depended upon the skill of the \Vorker and the natμre of the work. When
the cloth is given for stitching to a worker, after it has been cut, the worker was·
told how he could stitch it. If he did not stitch it according to the instructions,
the employer reject~d the work and would generally ask the worker to re""Stitch
the same. When the work is not according to the instructions, generally, no fur·
ther work would be given to him. If a worker did not want to come for work
t0 the shop on a particular day, he did not make any application for leave nor
was there afly obhgatior. on his part to inform the employer that he would not
attend the work on that day. If there was no work, the employee was free to
leave the shop before the shop closed. Almost ali O:i.e workers worked in the
shop. Some workers were allowed to take the cloth fe;r stitching at their homes
on certain days, with the permission of the proprietor. The sewing machine
installed in the .shop belonged to the proprietor of the shop and the permises of
the shop in which the work was carried on also belonged to him. The material
part of Section 2 (14) reads as follow.:-
"Person employed means (i) in the case of a shop a person wholly or
principally employed therein in connection with, the business of the
shop."
•
The Chief Inspector or Shops and Establishments and the High Court of
Andhra Pradesh held that the tailors were the employees of the app<llants and
that the Andhra Pradesh Sh~ps and Establishment Act applied to them.
Rejecting the appeal,
HELD : (!) During the last two decades the emphasis in the field is shifted
from and no longer rests exclusively or so stronglv upon the question of control.
ln decidin3 upon the question of relationship of the employer and an employee,
"control" is obviously an important factor and in many cases, it may still be a
decisive factor.
But it is · wrong to say that in
evefy case it is
decisive. It is now no mor.e than a factor although an important one. A search
for a formula in the nature of a single test will not serve the useful purpose, and
all factors that have been referred to in the cases on topic, should be considered
to tell a contract of service.
Clearly, not all these factors would be relevant in
all th""" cases or have the same weight in all cases. It is equally clear that no
magic formula can be propounded which factors shoU.ld, in any case. be treated
as determining ones. The plain fact is that in a large number of cases, the Court
can only perform a balancing operation weighing up the factors which txJint in
one direction and balancing them against those pointing in the opposite direction.
[756H-757C]
(2) The 'Contrul' idea was more suited to the agricultural society prior io
Indnstrial Rovolution. It reflects a state of society in which the ownership of the
means of Droduction coincided with the profession of technical knowledge and
skill in which. that knowledge and skill was largelv acquired bv b•ine handed
down from one generation to the next by oral tradition and not by being systcma-
74.8
SUPREME COURT REPORTS
[ 1974 j 1 s.c.R.
tically imparted in institutions of learning_ from uniyersities do'!D to the te~cal
A
schools
The exclusive test of control Would not 1n modem time

## Text

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747
SILVER JUBILEE TAILORING HOUSE AND OTHERS
v.
CHIEF INSPECTOR OF SHOPS AND ESTABLISHMENTS AND
ANOTHER
September 25, 1973
(K. K. MATHEW, M. H. BEG AND A. K. MUKHERJEA, JJ.J
Andhra Pradesh 'Telengana Area' Shops and Establishments Act 1951, Sections
2(14)-Determination of relationship of employer and emp!<Jyee-Rigitt to control 1nanner of work 1101 an ·exclusive test-Factors relevant for determination
indicated- -Court 1nust balance the 1·arious factors.
·
The second respondent representing the tailors working with the appellants
filed certain claims under s. 37-A of the Andhra Pradesh (Telengana Area),
Shops and Establishments Act r/w s. 15 of the Payment of Wages Act, 1936,
contending that they were the employees of the appellants and that the Andhru
Act ·,vas applicable. The facts as established on evidence \Vere as follows :
·Tue petitioners generaUy attended the shops every day, if there was work.
The rate depended upon the skill of the \Vorker and the natμre of the work. When
the cloth is given for stitching to a worker, after it has been cut, the worker was·
told how he could stitch it. If he did not stitch it according to the instructions,
the employer reject~d the work and would generally ask the worker to re""Stitch
the same. When the work is not according to the instructions, generally, no fur·
ther work would be given to him. If a worker did not want to come for work
t0 the shop on a particular day, he did not make any application for leave nor
was there afly obhgatior. on his part to inform the employer that he would not
attend the work on that day. If there was no work, the employee was free to
leave the shop before the shop closed. Almost ali O:i.e workers worked in the
shop. Some workers were allowed to take the cloth fe;r stitching at their homes
on certain days, with the permission of the proprietor. The sewing machine
installed in the .shop belonged to the proprietor of the shop and the permises of
the shop in which the work was carried on also belonged to him. The material
part of Section 2 (14) reads as follow.:-
"Person employed means (i) in the case of a shop a person wholly or
principally employed therein in connection with, the business of the
shop."
•
The Chief Inspector or Shops and Establishments and the High Court of
Andhra Pradesh held that the tailors were the employees of the app<llants and
that the Andhra Pradesh Sh~ps and Establishment Act applied to them.
Rejecting the appeal,
HELD : (!) During the last two decades the emphasis in the field is shifted
from and no longer rests exclusively or so stronglv upon the question of control.
ln decidin3 upon the question of relationship of the employer and an employee,
"control" is obviously an important factor and in many cases, it may still be a
decisive factor.
But it is · wrong to say that in
evefy case it is
decisive. It is now no mor.e than a factor although an important one. A search
for a formula in the nature of a single test will not serve the useful purpose, and
all factors that have been referred to in the cases on topic, should be considered
to tell a contract of service.
Clearly, not all these factors would be relevant in
all th""" cases or have the same weight in all cases. It is equally clear that no
magic formula can be propounded which factors shoU.ld, in any case. be treated
as determining ones. The plain fact is that in a large number of cases, the Court
can only perform a balancing operation weighing up the factors which txJint in
one direction and balancing them against those pointing in the opposite direction.
[756H-757C]
(2) The 'Contrul' idea was more suited to the agricultural society prior io
Indnstrial Rovolution. It reflects a state of society in which the ownership of the
means of Droduction coincided with the profession of technical knowledge and
skill in which. that knowledge and skill was largelv acquired bv b•ine handed
down from one generation to the next by oral tradition and not by being systcma-
74.8
SUPREME COURT REPORTS
[ 1974 j 1 s.c.R.
tically imparted in institutions of learning_ from uniyersities do'!D to the te~cal
A
schools
The exclusive test of control Would not 1n modem times be consistent
with th~ Chahging modes and method of production and division of labour. [7'6F]
Casaidy v. Ministry of Health, (1951 1 All E.R. 574, 579, Montreal v. Montreal Locomotive Works Ltd. el-al, (1947] 1 D.L.R. 161 at p. 169, Bank Voor
Handel en Hebeepkaart N.V. v. Elatford Danning L.J., [1952] 2 All E.R. 956 at
971, U.S. v. Silk, 331 U.S. 704, Market Investigations Ltd. v. Minister of Social
Security (1968] 3 All.E.R. 732, Prof. Kahn-Freund in [1951] ·14 Modern Law
R
Rev. at p.· SOS. Atiyah P.S., "Vicarious Liability in the- Law of Torts" UP. 37·38
Argent v. Minister of Social Security and Anot/,,r, (1968] 1 W.L.R. 1749 at 1759,
referred to.
2. Held further
(i) When the services are performed generally in the employer's premises,
this is some indication that the contract is a contract of service.
(ii) If thC employer provides the_ machine and equipment on which the
C
worker works, this is some indication that the contract is a contract of service
whereas if the other party provides the equipment, this is some evidence that he
is an indCpendent contractor.
However, where it is customary for servants to
provide .their own equipment, no sensible inference can be drawn from this
factor. (757 F-G]
Aliyah P.S. "Vicarious Liability in the Law Torts" p. 65, referred to.
(iii) The employer's right to reject the end product if it does not conform
I>
to tho instructions of the employer speaks for the element of control and supervision.
So also, the right of removal of the worker or not to give the work has
the element of control and supervision. The degree of control and supervision
would be different in different types of business. However, if the element of
authority over the worker in the performance of his work rested in the employer
so that he is subject to latter's direction, he is an employee and not the independent contractor. [758E]
Humberstone v. Nor1her Timber Mills, (1949] 79 C.L.R. 389, referred to.
E
(iv) Working with more than one employers does not militate against being
the employee of the proprietor of the shop where he attends work. A servant
need not be under exclusive control of one master. So also, the· fact that the
workers are not obliged to work for the whole day in the shop is not very material. Sec. 2(14) of the Act does :iot rl!Quire that the person should be wholly
employed but it is sufficient that he is principally employed in the shop. (759D]
3. The right of the employer to reject the end product signifying the control
F'
and supervision is important in case of tailoring. The reputation of a tailoring
establishment depends not only on the cutter but also upon the tailor. In many
cases, stitching is a delicate operation when the cloth upon which it is
to be
carried on is expensive. The defect in stitching might mar the appearance not
only of the garment but aJso of its \vearer. So when the tailor returns the gar
ment the proprietor has got to inspect it to see that it is perfect.
He has to keep
the customers pleased and he has also to be punctual, which means that the
stitching must be done accor,ding to the .instructions of the employer and within
the time specified. The fact that sewing machines generally belong to the
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employer is an important consideration for deciding that the relationship ls that
of master and servant. That some employees take up the work from other tailoring es.(ablishments and !lo that work al~o does not militate against their being
employees of the establtshment 10 qu:esuon.
A servant need not be the exclusive
control of one master. That the workers are not obliged to work for the whole
day in the shop is not very material, as even part-time employment can suPgest
a contract of service. S. 2(14) of the Act merely requires that a pers<>n wholly
or principally
employed
therein
in
connection
with
the
business
of
the ahop.
Considering the above facts and circumstances, the Chief Inspector
H
of Shops and Establishment and High Court came to the right conclusion that
•mploycr and emP.loyee relationship existed between the parties and that the Act
. WE e.pplicable. [758 D, F, G; 759CJ
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SILVER .JUBILEE TAILORING HOUSE V. CHIEF INSPECTOR
749
(Mathew, /.)
Dharangadhara Chernical Works Ltd. v. State of Saurashtra. [1957]
S.C.R.
152, Birdhlchand Sharma v. The First Civil Judge, Nagpur and otl~rs, [1961],
3 S.C.R. 161, D.C. Dewa11 Mohldeen Sahib and Sons v. The lndustrial 1"ribunDl,
Madras, (1964] 7 S.C.R. 646,, Shankar Balail Wage v. State of Maharashtra.
[1962] Supp. 1 S.C.R. 249, V. P. Gopala Rao v. Public Prosecutor, Andhra Pradesh, [1969] 3 S.C.R. 875, at 880 and Stevanson Jordan and Harrison v.Macdonald and Ernna, [19521 1 T.L.R. 101 C.A., referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1706 of 1969.
Appeal by Special leave from the Judgment and Order dated the
31st December, 1968 of the High 'Court of Andhra Pradesh in Writ
Appeal No. 564 of 1968.
S. V. Gupte, and S. Markandya for the Appellant.
P. Rama Reddy and A. P. Nair, for Respondent No. 1.
B. P. Maheshwari and Suresh Sethi for Respondent No. 2.
The Judgment of the Court was delivered by_
MATHEW, J. In this appeal, by special leave, the. question for con·
sideration is whether the High Court of Andhra Pradesh was right in
accepting the conclusion arrived at by the Chief Inspector of Shops and .
Establishments, Hyderabad that, employer and employee relationship
existed between the Silver Jubilee Tailoring House and others, the appellants, and the workers represented by the second respondent, and
that the provisions of Andhra Pradesh (Telengana Area) Shops and
Estab!ishments Act, 19 51, hereinafter referred to as the Act, was therefore applicable to the establishments in question.
The second respondent representing the workers, made certain claims
before 'the competent authority' under Section 37A of the Act read ·
with Section 15 of the Paiyment of Wages Act 1936 against the Silver
Jubilee Tailoring House and Others, the appellants. . Thereafter, "the
competent authority" referred for the decision of the State Government
und·~r Section 49 of the Act, the question whether the provisions of the
Act are applicable to the establishments. The Government in turn referred the matter to the Commissioner of Labour to whom the power to
decide the question was delegated under S. 46 of the Act. He enquired
into the matter, heard the parties, but before he could pass the order,
the power to decide the question by the State Government under S. 49.
was deleg-dted to the Chief Inspector of Shops
and Establishments,
Hyderabad. The Chief Inspector of Shops and Establishments thereafter heard the parties and came to the conclusion that the provisions
of the Act were applicable to the establishments, as employer and employee relationship existed between the appellants and the workers represented by the second respondent.
·
The appellants filed a writ petition before the High Court to quash
this order. The writ petition was dismissed by a learned Single Judge
on the basis of his finding that the workers represented by the second
respondent union were employed in the establishment within the meaning
of S. 2( 14) of the Act, and, therefore, the Act was applicable.
They appellants filed an appeal against the decision to the Division,
Bench of the same Court. The Division Bench dismissed the appeal in
limite.
'
750
SUPREME COURT. REPORTS
[ 1974] l s.c.R.
The material part of S. 2 ( 14) reads as follows ; "per;on
employed" means·(l) in the case of a shop, a person wholly
or principally employed therein in connection with the business of the shop".
Two witnesses were examined to show the nature and character of
the work done by the workers. One was the proprietor of one of the
·establishments and the other the Assistant Inspector of Labour.
The following facts appear from the finding of the learned Single
.Judge. All the workers arc paid on piece-rate basis. The workers
generally attend the shops eveey day if there is work.
The rate of
wag~s paid t1J the workers is not uniform. The rate depends upon the
skill of the worker and the nature of the work. When cloth is given
·for stitching to a worker after it has been cut, the worker is told how
he should stitch it. If he does not stitch it according to the instruction,
the employer rejects the work and he generally asks the worka to re·
stitch the same.
When the work is not done by a worker according
to the instructions generally no further work would be given to him.
If a worker does not want to go for work to the shop on a day, he docs
not make any application for leave, nor is there any obligation on his
part to inform the employer that he will not attend for work on that
day. If there is no work, the employee is free to leave the shop before
the shop closes. Almost all the workers work in the shop. Some wor·
kers are allowed to take cloth for stitching to their homes on certain
days. But this. is done always with the permission of the proprietor of
shop.
The machines installed in the shop belong to the proprietor of
the shop and the premises and the shop in which the work i> carried
on also belong to him.
The question is whether from these circumstatoccs. the conclusion
drawn by the Chief Inspector of Shops and Establishc· nts and the
High Court that there existed employer and employee r·"lationship between the appellan:s and the workers represented by th-~ 2nd respondent
was correct.
It was arguerl for the appellants that according to the decisions of
this Court the test to det~rrnine whether employer and employee relationship existed between the parties is to see ,whether the so called emp!oyer has the right to control and supervise the manner of work done
by the workers and from the facts found by the High Court it is impossible to come to the conclusion that the appellants had anv. right to
·control the manner of work or that· they had actually exercised any such
control. It is therefore necessary to examine the question whether the
right to control the manner of work is an exclusive test to determine
the nature of the relationship and even if it is found that that is the test,
whether facts proved would satisfy the requirements of the test.
In Dharangadhara Chemical Works Ltd. v. State of Saurashtra(l)
the ap'peJlants before this Court were lesseses holding a licence for the
manufacture of salt on the lands in question there. The salt was manufactnred by a class of professional labourers known as agarias from
rain water t~at got mixed up with saline matter in the soil.
TI1e work
(I) [1957] S. C.R. 152 ..
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SILVER JUBILEE TAILORING HOUSE V, CHIEF INSPtCTOR
7 51
(Mathew, J.)
was seasonal in nature and commenced in October_ after the rains and
continued till June. After the manufacture of salt. the agarias were
paid at the rate of 5 as. 6 pies per maun4. At the end of each season
the accounts were settled and the agarias paid the balance due to them.
The agarias who worked themselves with the members of their families
were tree to engage extra labour on their own account and the appellants bad no concern therewith. No hours of work were prescribed,
and no muster rolls were maintained.
The appellants ha<l a~so no control over the working hours. There were no rules as regards leave or
holidays and the agarias were free to go out of the factony after making
arrangements for the manufacture of salt.
The question for .decision was whether the agarias were workmen
as defined by s. 2 ( s) of the Industrial Disputes Act of 194 7 or whether
they- were independent contractors.
The Court said that th·~ pdma
facie test to determine whether there was relationship between employer and employee 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 employee is to do but also the manner in which
he had to du the work. In other words, the proper test according to
this Court is, whether or not the master has the right to control the
manner of execution of the work.
The Court further said that the
nature of extent of the control might vary from business to business
and ls by its nature incapable of precise definition, 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 even the test
of control over the manner of work is not one of universal application
and that there are many contracts in which the master could not control
the manner in which the work was done.
In Birdhichand Sharma v. The First Civil Judge, Nagpur and
others(') the question was whether the bidi rollers in question there
were "workmen" within the meaning of that term in the Factories
Act, 1948.
The facts found were: The workers who rolled
the
bidis had to work at the factory and where not at liberty to work at
their houses : their attendance was noted in the factory and they
had to work within the factory hours, though they were not bound
to work for the entire period and could come and go away when they
liked, but if they came after midday they were not supplied with
tobacco and thus not allowed to work even though
the factory
closed at 7 p.m.
Further, they could be removed from -service if
absent for ·eight days.
Payment was made on piece rates according
to the amount of work done, and the bidis which did not come upto
the proper standard could be rejected.
On these facts, it was held that the workers were workmen under
the Factories Act and were not independent contractors.
This Court
pointed out that the nature and extent of contml varied in d'ff·rent
industries and could not bv its very nature be precisely defined.
The Court said that when the opera;ion was of a ~imple nature and
did not require supervision all the time, the control could be exercised
(ll {1961] 3 S. C. R. 161.
8-L392SupCI/74
752
SUPREME COURT REPORTS
[ 1974 j 1 S.C.R.
at the end of the day by the method of rejecting bidis which did not
come upto the proper standard : such supervision by the employer was
sufficient to make the workers, employees of the employer, and not
independent ccmtractors.
In D. C. Dewan Mohideen Sahib and Sons. v. The Industrial
Tribunal, Madras( 1) the question was
again considered
by this
Court.
On the basis of evidence led, the Industrial Tribunal found
as follows
The contradtors took leaves and tobacco from the appellant and
employed workmen for manufacturing bidis. After bidis 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 tabacco 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 the)\ bound to come for work every day;
sometimes they informed tlie 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 were delive(ed to the appellants. The system was that the
appellant paid a certain sum for the manufactured bidis, after deducting therefrom the cost of tobacco and the leaves already· fixed, to
the contractors, who, in their turn, and to the workmen who rolled
bidis, their wages.
Whatever remained after paying the workmen
would be contractors' commission for the work done.
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 be 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
supplied the raw materials. Further the price of raw materials and
finished products fixed by the appellants always remained the name
and never fluctuated according to market rate.
The Tribunal concluded that the bidi workers were .the employees of the appellants
and not of the so-called contractors who were themselves nothing
more than employees or branch managers of the appellants· Thereupon, the appellants filed writ petitions in the High Court, which
held that neither the bidi roller nor the intermediary was an employee
of the appellants, and allowed the writ petitions.
On appeal by the
workmen the appellate Court allowed the appeal and restored the
order of the Tribunal. On appeal by certificate, this Court said that,
on the fates found. the appellate Court was right in holding that the
conclusion reached by the Tribunal that the intermediaries
were
merely branch managers appointed by the management, and that the
relationship of employers and employees subsisted
between
the
appellants and the bidi rollers, was correct. In following the test
(1) r964] 7 S.C.R. 646.
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SILVER JUBILEE TAILORING HOUSE V. CHIEF !NSPECTuR
753
(Mathew, J.)
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laid down in Birdhic/Ja11d's case (supra) the Co~t said since the
work is of such a simple nature, supervision all the time is not
required, and that supervision was made through a system of reject·
ing the defective bidis at the end of day.
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In Sha11kar Balaji Wage v. S,1ate of Maharashtra(!) the question
again came up for consideration in this Court. The appellant before
the Court was the owner of a factory manufacturing bidis and one
Pandurang -alongwith other labourers used to roll bidis 5llc the factory
with tobacco and leaves supplied to him by the factory. The following facts were established in the evidence.
There was no contract
of service between the appellant and Pandurang. 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. 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. 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 supplied
to him. 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 upto the standard were rejected.
He
was paid at fixed rates on the quantity of bidis turned out and there
was no stipulation for turning out any minimum quantity of bidis.
The questionq which arose for decision were whether Pandurang
was a workman within .the meaning of that expression under !lie
Factories Act and whether he was entitled to
any leave wages
under S. 80 of that Act.
The. majority found that Pandurang was not "workman", and
distinguished the decision in Birdhichand's case (supra) and said that
the appellant had no control or supervision over the work of
Pandurang.
,
The reasoning of the majority was as follows :
H
"The appellant could not control his (Pandnrang's) hours of
work. He clould not control his days of work. Pandurang was
free to absent himself and was free to go to the factory at any time
. and 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 bidis. 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. 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.
The manner of work is to be distinguished from the type of work
(I) [1962] Supp. (I) S. C.R. 249.
754
SUPREME COURT IlEPORTS
[ 1974 J 1 s.c.R.
to be performed .. In !he present case, tbe management simply says
tbat the labourer is to produce bidis rolled in a certain form. How
the labourer carries out the work is his own concern and is
not
controlled by the management, which is concerned only with getting
bidis rnlled in a particular style with .certain contents"·
Subba Rao, J. as he then was, dissented. He said. The appellant
engages the labourers; he entrusts them with work of rolling bidis Mi
aocordance . witb tbe sample;
he insists upon their working in the
factory, ·maintains registers giving the particulars of the labourers
absent, amount of tobacco supplied and the number of bidis rolled
by each one of tbem, empowers tbe gumasta and superviser, wh•
regularly attends the factory to supervise the supply of tobacco and
leaves, and the receipt of the bidis rolled.
The nature and patient
of bidis to be rolled is obviously well understood, for, it is implicit
in the requirement that the rolled in bidfs shall accord with
the
sample. The rejection of bidis found not in accord with the sampl•
is· a clear indication of the right of the employer to
dictate tbe
manner in which the labourers shall manufacture the bidis.
The
fact that a labourer is not compelled to work throughout the working hours is not of much relevance, because, for.all practical purposes,
a. labourer will not do so since his wage depend upon the bidis ho
rolls, and, as he cannot roll them outside the factory necessarily he
will have to do so in the factory.
If he absents himself, it is only
at his own risk.
In V. P. Gopala Rao v. Public Prosecutor, Andhra Pradesh(')
the Court said that there in no abstract a priori test of the work co1Jo
trol required for establishing a contract of service and after refering
to Bridhichand's case (supra) observed that the fact that the workme•
have to work in the factory imply a certain amount of supervision by the
management, that the nature and extent of control varied in different
industries, and that when the operation was of a simple nature, the
control could be exercised at the end of the day by the method of
rejecting the bidis whic)l did not come upto the proper standard.
In Cassidy v.
Ministry of Health( 2 ) Lord Justice Sommerwell
pointed out that the test of control of the manner of work is not universally correct, that 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.
In many skilled employments, to apply the test of control over
the manner of work for deciding the questton whether the relationship of master and servant exists would be unrealistic.
In Momreal v. Montreal Locomotive Works Ltd. et-aU•) Lord
Wright said that a single test, such as the presence or absence of control,
was often relied on to determine whether the case was one of master
and servant, most'y in order to decide issues of tortious liability on
(ll [1969]3 s.c.R. 875, at 880.
(2) [195111, All. E. R. 574, 579.
(3) [1947] l D. L. R. 16! at p. 169.
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SILVER JUBILEE TAILORING HOUSE v. CHIEF INSPECTOR
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the part of the master or superior and that in the more complex con·
ditions of modem industry, more complicated tests have often to be
applied.
He said that it would be more appropriate to apply,
a
complex test involving (i) control; (ii) ownership of the tools; (iii)
chance of profit; (iv) risk of loss, and that control in itself is not
always conclusive. He further said that in many cases the question
can only be settled by examining the whole of the various elements
which con>titute the relationship between the parties.
In Bank Voor Handel en Scheepvaart N. V:v. Slatford( 1) Denning L. J ., .said :
" ... the test of being a servant doos not rest nowadays
on submission to orders. It depends on whether the person
is part and parcel of the organisation ..... "
In U.S. v. Silk(") the question was whether men working for the
plaintiffs, Silk and Greyvan, were "employees" within the meaning of
that word in the Social ~urity Act, 1935. The judg~s of the Supreme
Court of U.S.A., agreed upon the test to be applied, though not in
every instance upo~ its application to the facts. They said that the
test was not "the common Jaw test," viz., "power of control, whether
exercised or not, over the manner of performing service to the undertaking," but whether the men were employees "as a 1:uatter of eco·
nomic reality."
Important factors were said to be "the degrees of
control, opportunities of profit or Joss, investment in facilities, pcrma·
nency of relations and skill required in the claimed independent opera·
tion."
Silk sold coal by retail, using the services of two classes of workers·.
unloaders and truck drivers.
The unloaders moved the coal from railway vans into bins.
They came to the yard when they wished and
were given a wagon to unload and a place to put the c0al.
They
provided their own tools and were paid so much per ton for the coal
they shifted. All the nine judges held that these men were cmploye·
es :
"Giving full ccmsideration to the concurrence of the two
lower conrts in a contrary result, we cannot agree that the
unloaders in the Silk case were independ~nt contractors. They
provided only picks and shovels. They had no opportunity
to gain or lose except from the work of their hands and these
simple tools. That the unloaders did not work regularly is
not significant They did work in the course of the employ·
er's tract~ or business.
This brings them under the coverage
of the Act. Thev are of the group that the Social Security
Act was intended to aid.
Silk was in a position to exercise all necess~ry suoervision over their simple tasks. Un·
loaders hav~ often been held to be employees in tort cases."
(I) [1952) 2 All E. R. 956 at p. 971.
(2) 331 u. s. 704.
756
SUPREME COURT REPORTS
[ 19~5 ] 1 S.C.R.
In Market Investigations Ltd. v. Minister of Sociai Security( 1)
the Court said :
"I think it is fair to say that there was at one time a
school of thought acc!)rding io which the extent and degree
of the control which B. was entitled to exercise over A. in the
perform~ cl the work would be a decisive factor. How·
ever, it has for long been apparent that an analysis of the
extent and degree of such control is·not in itself decisive".
It is in its application to skilled and particularly professional work
that control test in its traditional form has really broken down.
It
has been said that in interpreting 'Control' as meaning the power to
direct how the servant should do his work, the Court has been apply·
ing a concept suited to a past age.
"This distinction (viz., between telling a servant what to
do and telling him how to do it) was based upoa tht: social
conditions of an earlier age; it assumed that the employer of
labour was able to direct and instruct the labourer as to the
technical methods he should use in performing his work. In
a mainly agricultural society and even in the earlier stages of
the Industrial Revolution the mai;_ter could be expected to be
superior to the servant in the knowledge, skill and experience
which had fu be brought to bear upon the choice and hand!·
ing of the tools.
The control test was well suited to govern
relationships like those between a farmer and an agricultural
labourer (prior to agricultural mechanization) a craftsman
and a journeyman, a householder and a domestic servant,
and even a factory owner and an unskilled 'hand'.
It reflects
a state of society in which the ownership of the means of
production coincided with the profession of technical know·
ledge and skill in which that knowledge and skill was largely
acquired by being handed down from one generation to the
next by oral tradition and not by being systematically im· -
parted in institntions of learning from universities down to
technical schools· The control test postulates a combination
of managerial and te_chnical functions in the person of the
employer, i.e. what to modern eyes appears as an imperfect
division of labour.{')
It is, therefore, not surprising that in recent years the control test
as traditionally formulated has not been treated as an exclusive test.
It is qceedingly doubtful today whether the search for a formula
in the nature of a single test to tell a contract of service from a con·
tract for service will serve any useful purpose. The most that profi·
tably can be done is to examine all the factors that have been referred
to in the qses on the topic.
Clearly, not all of these factors would be
relevant id all these cases or have the same weight in all cases. It
(!) [196&1 3 All. E. R. 732.
(2) See lrof. Kahn-Freund in (1951), 14 Modern Law Rev. at p. 505.
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SILVER JUBILEE TAILORING HOUSE V. CHIEF INSPECTOR
757
(Mathew, !.)
is equally clear that no l!!agic formula can be propounded which factors
should in any case be treated as determining ones. The plain fact is
that in a large number of cases, the court can only perform a balancing operation weighing up the factors which point in one direction
and balancing them against those pointing in
the opposite direc·
tion. (1)
During the last two decades the emphasis in the field has shifted
and no longer rests so strongly upon the question of control.
Con·
trol is obviously an important factor and in many cases it may still be
the decisive factor. But it is wrong to say that in every case it is
decisive.
It is now no more than a factor, although an
important
one.(')
The fact that generally the workers attend the shop which belongs
to the employer and work there, on the machines, also belonging to
him, is a relevant factor. When the services are performed · generally
in the employer's premises, this is some indication that the contract is
a contract of service. It is possible that this is another facet of the
incidental feature of employment. This is the sort of situation
in
which a court may well feel inclined to apply the "organisation" test
suggested by Denning, L.J. in Stevenson Jordan and Harrison v. Mac·
dona/ and Evans. (3 )
The further fact that "a worker can be removed" which means
nothing more than that the employer has the liberty not to give furJier
work to an employee who has not performed his job aC"cording to the
instructions of the employer, or who h_as been absent from the shop
for a long time as spoken .to by the Inspector of Labour in his evidence,
would bespeak of control and supervision consistent with the character of the business.
That the workers work on the machines supplied by the proprietor
of the shop is an important consideration in determirjng the nature
of the relationship. If the employer provides the equipment, this is
some indication that the contract is a contract of service, whereas if
the other party provides the equipment, this is some evidence that he
is an independent contractor. It seems that this is not based on the
theory that if the employer provides the equipment he retains some
greater degree of control, for, as already seen, where the control arises
only from the need to protect one's own property, little significance
can atta!;h to the power of control for this purpose. It seems, therefore, that the importance of the provision of equipment lies in
the
s<mple fact that, in most circumstances, where a person hires out a
piece of work to· an independent contractor, he expects the contractor
to provide all the necessary tools and equipment. whcrea> if he em·
ploys a servant he expects to provide them himself. It fo11ows from
(1) See Atiyah, P. S. "Vicarious Liability in the L':l.Y: of Tr-na" pr. 37-38.
(2) Se~ Argent U. Minister of Socia] Security and Anotl-er, [196811. W.T .R.
I 749 at I 959.
(3) [1952] I T. L. R, 101 C. A.
758
SUPREME COURT REPORTS
[ 1974 J 1 s.c.R.
this that no sensible. inference can be drawn from this factor in circumstances where it is customary for servants to provide their own equipment. ( 1)
Section 220(2) of the American Restatement, Agency 2d. includ·
es among the relevant factors :
" ( e) Whe,ther the employer or the workman supplies the
instrumentaiities, tools, and the place of work for the person
doing the work".
The comment on the first part of th.is paragraph is in these words :
"Ownership of instrumentalities· The ownership of the
instrumentalities and tools used in the work is of importance.
The fact that a worker supplies rt1> ~ .111 .tools is sJmc evidence that he is not a servant. On the other hand, if the
worker is using his employer's tools or
instrumeatalities,
especially if they are of .substantial value, it is
:1onnally
understood trat he will follow the directions of the owner in
their use, and this indicates that the owner is a master. This
fact is, however, 09ly of evidential value."
It might be that little weight can today be put upon the provisions of
tools of minor character. as opposed to plant and equipment on a large
scale. But so far as tailofing is concerned, I think the fact that sewing
machines on which the· workers do the work generally belong to the
emp!oyer is an important consideration for deciding that the relationship
is that of master and servant.
Quite apart from all these circumstances, as the. employer has the
right to reject the end product if it does not conform to the instruction of the employer and direct the worker to restitch it, the element
of control and supervision as formulated in the decisions of this court
is also present.
The reputation of a tailoring establishment depends not only on
the cutter but also upon the tailors. In a many cases, stitching is a
delicate operation when the cloth upon which it is to be carried, on is
expensive.
The defect in stitching might mar the appearance not only
of the garment but also of its wearer.
So when the tailor returns a
garment, the proprietor has got to inspect it to see that it is perfect.
He has to keep his customers pleased and he has also to be punctual,
which means that the stitching must be done, according to the instruction of the employer and within the time specified. The degree of
control and suoervision would be different in different types of business. If an ultimate authority over the worker in the performance
of his W<Jrk resided in the employer so that he was subject to the
latter's direction. that would be sufficient.
In Humberstone v. Norther Timba Mi/Ir('), Dixon, J. said :
"The question is not whether in practice the work was
in fact done subiect to a direction and control exercised by
(1) c;,,., 4.;.,.,.;. ?. 5 .. "\'i~1rious Liability in the L<J\\' of Torts". p. fi5.
(2) r1947J 79 C". L. R. )89.
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SILVER JUB1LEE TAILORING HOUSE V. CHIEF INSPECTOR
759
(Mathew, /.)
an actual supervision or whether an actual supervbion was
pcssible but whether ultimate authority over the man in the
performance of his work resided in the employer >o that he
was subject to the latter's order and directions".
That some of the employees take up the work from other tailoring establishments and do that work also !n the shop in which they
generally attend for work, as spoken to b; the proprietor in his evidence, would not in any way militate against their being employees
of the proprietor of the shop where they attend for work. A person
can be a servant of more than one employer. A servant necu not be
under the exclusive control of one master.