# SUPREME COURT REPORTS (1963) M/S. KIRLOSKAR OIL ENGINES v. HANMANT LAXMAN BIBAWE '(P. B. GAGENDRAGADKAR,. K. C. DAS GUPTA and

- **Citation:** [1963] 3 S.C.R. 514
- **Court:** Supreme Court of India
- **Decided:** 1960-09-02
- **Case number:** Civil Appeal ..""{ No. 523 of 1961
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-reports-1963-m-s-kirloskar-oil-engines-v-hanmant-laxman-bibawe-p-2641
- **Pages:** 10

## Headnote

1~6!
Jul131.
•
514
SUPREME COURT REPORTS (1963)
M/S. KIRLOSKAR OIL ENGINES
v.
HANMANT LAXMAN BIBAWE
'(P. B. GAGENDRAGADKAR,. K. C. DAS GUPTA and
J. R. MuDHOLKAR, JJ.)
lndu•trial Dupute-Master and servant-Workman concerned in dispute-Police 8Cheme for providing u:atchman at
req7lest-Who is
employer~IndUBtrial DIBputes Act, _ 1947
(14 of 1941), s. 33A.
.
.
The respondent was engaged by 1he appellant as a
watchman under a scheme framed by the Police Department.
His services were discharged pending an in_dustrial dispute
between the appellant and its workmen. The respondent
complained to the Industrial Tribunal under s.1 33A of
the Industrial Disputes . Act. . The Tribunal accepted the
application. _The appeJlant· contended that the respondent
was not its employee. The scheme provides that private
persons requiring the services of watchmen may apply to the
District Superintendent of Police who supplies a watchman
if one suitable is available under the scheme. The amount
. ,,
towards pay Is recovered in advance .each month -by the District Superintendent of Police and credited to the watchman's
fund. After deducting Rs. 250 _towards the uniform supp·
lied, the rest is paid by the police Department to th_e, watchman. The Department requfres the persons to whom the
watchman is supplied. to give a fortnight's notice if it is
desired· to dispense with the services of the watchman. The
watchmen arc mustered at the Police Station and their work
supervised by the Police night patrol, They are under the '
disciplinary control of the District Superintendent of Police.
.
Held,
that the decision of the question whether a
person is the employee of another or not has to depend on the
facts and circumstances of each individual case. The test
as to who is entitled to tell the employee the way in which
he is to do the work on which he Is engaged though in a given
case satisfactory it woul_d be unroasonable to treat that test as
the niost satisfactory as a general rule. Having regard· to
all the relevant facts the respondent cannot be said to be the
>-
employee of the appellant and could not claim to be an
industrial employeeconcerned in the pending Industrial
Disputes.·
3 s.c.R.
SUPREME COURT REPORTS
515
Shivananrlan Sharma v. Punjab National Bank, [1955].
1 S. C. R. 1427, referred to.
Docks &: Harbour Board v. Googinns and Griffith (Liverpool) Ltd., [1947] A. C. 1, held inapplicable.

## Text

1~6!
Jul131.
•
514
SUPREME COURT REPORTS (1963)
M/S. KIRLOSKAR OIL ENGINES
v.
HANMANT LAXMAN BIBAWE
'(P. B. GAGENDRAGADKAR,. K. C. DAS GUPTA and
J. R. MuDHOLKAR, JJ.)
lndu•trial Dupute-Master and servant-Workman concerned in dispute-Police 8Cheme for providing u:atchman at
req7lest-Who is
employer~IndUBtrial DIBputes Act, _ 1947
(14 of 1941), s. 33A.
.
.
The respondent was engaged by 1he appellant as a
watchman under a scheme framed by the Police Department.
His services were discharged pending an in_dustrial dispute
between the appellant and its workmen. The respondent
complained to the Industrial Tribunal under s.1 33A of
the Industrial Disputes . Act. . The Tribunal accepted the
application. _The appeJlant· contended that the respondent
was not its employee. The scheme provides that private
persons requiring the services of watchmen may apply to the
District Superintendent of Police who supplies a watchman
if one suitable is available under the scheme. The amount
. ,,
towards pay Is recovered in advance .each month -by the District Superintendent of Police and credited to the watchman's
fund. After deducting Rs. 250 _towards the uniform supp·
lied, the rest is paid by the police Department to th_e, watchman. The Department requfres the persons to whom the
watchman is supplied. to give a fortnight's notice if it is
desired· to dispense with the services of the watchman. The
watchmen arc mustered at the Police Station and their work
supervised by the Police night patrol, They are under the '
disciplinary control of the District Superintendent of Police.
.
Held,
that the decision of the question whether a
person is the employee of another or not has to depend on the
facts and circumstances of each individual case. The test
as to who is entitled to tell the employee the way in which
he is to do the work on which he Is engaged though in a given
case satisfactory it woul_d be unroasonable to treat that test as
the niost satisfactory as a general rule. Having regard· to
all the relevant facts the respondent cannot be said to be the
>-
employee of the appellant and could not claim to be an
industrial employeeconcerned in the pending Industrial
Disputes.·
3 s.c.R.
SUPREME COURT REPORTS
515
Shivananrlan Sharma v. Punjab National Bank, [1955].
1 S. C. R. 1427, referred to.
Docks &: Harbour Board v. Googinns and Griffith (Liverpool) Ltd., [1947] A. C. 1, held inapplicable.
CIVIL APPELLATE JURISDICTION: Civil Appeal
..""{
No. 523 of 1961.
·
Appeal by speoial leave from the award
dated September 2, 1960, of the Industrial Tribunal, Maharashtra at Bombay in Complaint (I. T.)
No. 38of1960.
I. N. Shroff, for the:appellants.
-
K. R. Ohoudhri, for the respondent.
· 1962. July 31. The Judgment of the oourt wa.~
delivered by
106S
Kirloskar Oil
tEnginu
v.
Hanmanl Laxman
BibaWI
GAJENDRAGADKAR, J.-The respondent Bibo.we Gajmiragaar-J.
made an applioation to the Industri!i.l Tribu-
-J
nal at· Bombay under s. 33-A of the Industrial Disputes Aot, H}47,
He alleged that he
bad been
employed
by . the
appellant
M/s.
Kir loskar Oil Engines, Limited, as a watohman sinoe
July 21, 1958, and that he had been workingassuoh
watchman with the appellant and had become its
permanent workman. On May 15, 1960, the Security
Officer of the appellant Company intimated to_ him
that he had been discharged from service with efeot
from that date.
The respondent urged that at
the time when this order of discharge was orally
serV'ed on him, an industrial dispute was pending between the appellant and . its employees before an
Industrial Tribunal and as such the respondent
could not be discharged by the appellant without
obtaining the approval of the Industrial Tribunal.
In other words, his case was that his disoharge was
in oontravention of the provisions of s. 33 and that
is the basis of his application under s. 33-A.
Eid o"skar Oil
Engints
••
H anmant Laxmon
Bibaw1
Gajendrag.adlar J.
'
516
SUPREME COURT REPORTS [1963]
The appellant denied that the respondant was
its employee. It pleaded that the respondent's
services had been made availa.ble to the appellant
by an arrangement'. the terms of which clearly indicated that even whilst the respondent was working
as a watchman of the appellant, he was not the
employee of the appellant in the legal sense. That
being so, it was argued that s. 33 was not nontra·
vened and the application under s. 33-A was incom·
petent.
It would thus be seen that the narrow point
of dispute between the parties before the Tribunal
was whether or not the respondent was the appellant's employee and as such could be said . to be
a workman concerned in the dispute which was
pending industrial adjudication at the time of his
discharge. The Tribunal set forth the rival conten·
tio'n of the parties on this point and observed that
it could not accept either of the e:x:treme contentions
taken by both the sides; even so in substance the
Tribunal seems to have taken the view that s.33 had
been contravened by the appellant and so an order
has been passed directing the appellant to reinstate
the respondent with full back wages from the date
of his discharge. It is agQinst this order that the
appellant has come to this Court by special leave.
On behalf of the appellant Mr. Shroff contends
that the view taken by the Tribunal that the respo·
ndent was the appellant's employee is plainly inco·
nsistent with the scheme under which the respon·
dent began to work as a watchman of the appellant
and he argues that the oral evidence adduced by
the parties in the present proceedings also show that
the conclusion of the Tribunal
i~ erroneous, In our
opinion this contention ia well founded and must
be upheld.
Turning to the scheme under which the respondent was asked to do the work as a watchman by
-
3 S.C.R.
SUPREME OOURT REPORTS
517
·1
' .
' '
the appellant, most of its material ·terms emphatically brin~ out the fa.ct that the respondent cannot
be treated as the appellant's employee and cannot
cla.im the status Of an industrial employee: It appears that the scheme has been evolved by which
watchman are supplied by ·'the police · Department
to different employers and this scheme was evolved
because it was fqund th"t-there was a demand for
such watchman by private individuab. ; There are
several . para~raphs which set out the material
terms and conditions 'of the scheme, The private
person who require the services of watchman have
to apply to the District Superintendent of Police,
The District Superintendent of Police supplies a
watchman if ho thinks a suitable watchman is available. The amount on account of pay of the watchman is recovered per month in advance from the
employer. This amount has to he credited to the
Watchman Fund on receipt of advance bills submitted from thA office of the Superintendent of Police.
Out of the amount thus recovered from the employer
Rs.5/8/- per month are deducted on account of the
cost of clothing supplied and the balance is paid to
the wa~chman. It is significant that t~e I.O.P. is
authorised to vary this rate in any district under
his control subject to the maximum of Rs. 30/- per
annum. · The work done by the watchman is supervised by the , subordinate police,· particularly at
night·by the night patrols who know 'where police
watchmen are employed and look ·them up to see
if they are alert. The men thus sent· as ' watchmen
are mustered for duty in the police sedtion in which
their emyloyer's bungalows are situated. They are
paid by the Superintendent of Police direct. like
ordinary.police. They are entirely under the · departmental control and orders of Supetintendent of
Police and he alone can fine or punish them; the
employers a.re not authorised 'to do so. In supply-
. ing watchmen the Superintendent has' to be very
1962
KirlQakar 0 fl
Engines
v.
Hanmant Laxmatt
Bibawe
Gaj•ndragadk1f' J.
1968
Ei,loalar OJ
Euginu
••
Hanmant Laxman
Bib1.to1
GaJentlrogatlkar J,,
518
SUPREME COURT REPORTS (1963]
careful to see that the employer who asks for a wat·
chnian is a person likely to be punctual in his
payments and likely. to pay without . the amount
having to be demanded and without correspondence .
An employer is requested to give a fortnight's
notice in case he wants ·to dispense with the service ·Of the watchman. The credits on account of the
pay of watchmen ·are made to the Watchman Fund.
· Under this system the Superintendent of Police is
the agent through whom such watchmen are employed and he alone is vested with such powers as vest
in a master over his servant, and he takes this
special duty upon himself in the interest of the
public safety which it is his duty to secure. These
are the. main features of tbe scheme under which
the respendent's services were made available as
watchman to the appellant.
' It would be noticed that almost each one of
these terms emphatically brings out the fact that
though the respondent was working as a watchman
of the appellant, strictly speaking in law the relationship of master nnd servant <lid not subsist
between the two.
The payment was not made
directly by the appellant to the respondent.
He
could not supervise his work ; he could not take
any action against him in case his conduct was
found to be unsatisfactory and in terms the scheme
provides that it is the D. S. P. in whom the rights
of the master vested qua, persons like the respondent ·whose. services were loaned to private individuals. In our opinion having regard to these terms
of the scheme it is difficult to accept the view taken
by the Tribunal that the respondent was an employee of the appellant, that he was an industrial
employee and therefore he was a workman concerned in the dispute which was pending adjudication
on the date of his discharge.
When we turn to the oral evidence, the position is just the same; The respondent gave evidence
.v
,_
"I.
3 s.c.R..
SUPREME COURT REPORTS
519
in support of his CMe. He admitted that after he
was selected he was instructed by the appel!ant to
go the Police Office and take uniform so that he
took the uniform from the Police Office. Whf'ln he
joined service he was asked to fill a form and it
may be that whilst he was working as a watchman
some orders may have been given to him by the
appellant's officer. The respondent stated that
when he took casual leave, sick leave and privilege
leave he applied to the ·appellant; but this statement does not appear to be correct in view of the
terms of the scheme to which we have already referred and in view of the categorical · statement made
' by Mr. Chorpade the Sub-inspeetor. Mr. Chorpade
stated that leave is sanctioned by the police office;
though he added that if the watchman wants casual
leave he sometimes makes application through the
employer. or direct to the office. so that it would
not be o'lrrect to suggest that sick leave, privilege
leave or casual leave were granted to the respondent
as a matter of course by the appellant. The respon·
dent admitted that he and the other watchmen were
taken to the gate of Kirloskar Company by Police
Jamada.r when they were interviewed and he admitted that Mr. Pansare came once or twice a month
and enq!tired. with the management about the
quality of the work of the watchmen. _He .also ad-
. mitted 'that his wages were· not .decided by any
talk between him and appellant. When we turn to
the evidence of Mr. Chorpade we find that the
terms of employment and the subsequent treatment
of the respondent by the appellant as watchmen
were all consistent with the condition of the, system to which we have already referred. The uni-
. form supplied to the watchmen· is no doubt a
little different from the
constable's uniform,
but
it
is
prepared according · to Rule 426
of The
Police
Manual.
These watchmen
. are given buckle number and.the uniform supplied
""
!Cirlorkar Oil
Engin11 ·
..
HJnm •n' £.,~m1n
B1bOW4
--
Chjsndra1adkar J.
1961
··-· -
Ki,.los,Mr Oil
E,ngir:es
,
••
Hi.nmant Loxman
• Bihaw1
'· -.-·
Gajendragadkar J,
.•
\~ ""
t~~- '-:": J
520
SUPREME COURT. REPORTS [1963]
t.
~.,
.'~/·' - _·f
i~ .. ~
.. '
;
to them. cannot be w-0rn ·.by' a pdvi;i;te · person. A
Jamadar is ·posted at· the ·Polioe Station and he
supervises over all :the watchmen employed. At
the place of' duty one senior watchman' is asked to
supervice the. work of watchmen.• The Jamadar
at the Kirloska.r Oil Engines. is a. senior watchman.
His pay is fixed byr the D.S.P, In factories where
there are IO· or 15 watchmen· the factory sends hajri
. of a.II watchmen to the •Police Office in the first week
of the month for-the• preceding month. In the
police ·station, there is muster• roll for marking
attend'l.nce. ·If !the D.S.P. comes to know that the
watchman's duty in not ·satisfactory he can with·
draw him. The police staff also go for checking
and if a· watchman is found • abaent or indulging in
undesirable activities he in withdrawn even without
the consent of the owner. The power to-withdraw
vests in the D.S.P. and so is the power to transfAr.
lt would thus be seen that this ore.I evidence also
corroborates the•concluoion which follows irresistibly from the conditions of the system under which
the respondent's service w a:s secured by the appellant. Therefore· it seems to1 us that the Tribunal
was in error in; holding that the respondent is the
appellant's employee.
.
'! r'
,
;,. ,I
~ ~ . ,,_
"·t ··
•
r
•
•
For the respondent Mr. Chaudhury has referred to a deoision .of this Court in Shivnandan
Sharma v. The .Punjab"National' Bank Limited. {')
In that . case this Court had occasion to consider
the· question as to the tests. which should· be applied
in determining whether a particular person is the
employee ·of another -or· not, 1In discussing this
question this :Court observed •tha' the· decision of
such a question would always- depend . on .the facts
and circumstances·- of ea.oh individual case. Then
a. passage .was quoted from the ·speech of Lord
Porter in-which.L()rdrPorter observed:·
. (I) [195S] I S.C.R. H27, 1443.
·-
'
,_..
. _,
3.S.C.R.
SUPREME COURT REPORTS
521
"Many factors have & bearing on the
result. Who is paymaster, who can dis'lliss,
how long the alternative service lasts, what
machinery is employed, have all to be kept
in mind. The expressions used in any individual case must always be considered in
regared to the subject-matter under discussion
but amongst the money tests suggested l think
that the most satisfactory, by which to as certain who is the employer of any particular
time, is to ask who is entitled to tell the employee the way in which he is to do the work
upon which he is engaged, -
.Na.tu.rally Mr. Choudhury very strongly relies on the
last mentioned test and he contends that it is the
appeJlant who used to tell the respondent the way
in_ which he should do the work of watching and so
the respondant should be taken to be the appellan't employee. In our opinion as Lord Porter
himself has observed the decision of the question as
to the relationship of employer and employee must
\}e determined in the light of all relevant facts and
circumstances and it would not be expedient to lay
down any particular test as decisive ·in the matter.
A test which may be important, and which may
appear even as decisive in one set of circumstances,
_ may not be important or decisive at all in the
circumstances of other cases. It is true that I.ord
Porter's observation on which Dr. Chondhury relies
some to treat the particular test as most satisfactory; but, with respect, though the said test may
ha Te been satisfactory in the facts - of the case
with which Lord Portar was dealing, it would,
we think, be unreasonable to treat that test as
most - satisfactory in
all cases as a general
rule.
Take,
for
instance the
common case
where
an
industrial
establishment
allots to
the bungalows occupied by its officers gardeners and
watJ hmen. These gardeners and watchmen are the
1961
KirZ.skar Oil
EnglnlS
v." ..
Hanmanl La:cman
Bibaw1
Gajendragadkar J!
1 •
•
1962
Kirloskar Oil
Entines
••
lfaamant Laxlnan
Bibaw1
•aj,,.ar.,atfkar J.
•
522
SUPREME COURT REPORTS [1963]
employees of the industrial establishment, are paid
by them and are subject to their control and supervision. Even so, in doing their work as gardeners
and watchmen from day to day, they would naturally take orders from the establishment's officers
who, for the time being, are in occupation of the
bungalows.
The officers in occupation of the bungalows may change from time to time and the
watchmen and gardeners may also be transferred
from one bungalow to another by the establishment. It is plain that though the watchmen and
gardners
would
take their
orders
from the
occupants of the bungalows, they can not be said
to be the servants of the officers who occupy the
bungalows during their tenure of office. It would
thus be seen that the te9t as to who is entitled to tell
the employee the way in which he is to do his work
would completely break down in such a case. That
is why we are not
prepared
to accept Mr.
Choudhury's argument that this particular test is of
universal application
and can be
held to be
satisfactory in all cases.
In the present case, where the respondent
became the watchman of the appellant under a
scheme. which has been evolved for supplying
watchmen to private employers, the fact that the
private employer may issue orders to the watchmen
will not be an important consideration at all. It is
the other terms and conditions of the system under
which the arrangement has been made which may ~
have to be borne in mind and it is in the light of all
the relevant facts that one has to reach the final
decision. Having regard to all the relevant facts
in this case, we are satisfied that the respondent
cannot be said to be an employee of the appellant;
and so, he cannot claim to be an industrial employee
and as such, a workman concerned in the above •--
, .. 1
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•
•
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"><I
.. _.
3 S.C.R.
SUPREME COURT REPORTS
523
industrial
dispute pending:
adjudication at the
relevant; time,
The result is that the appeal must be allowed
the order passed hy the tribunal set aside and the
respondent's application under s. 33-A is dismissed.
There will be no order as to costs.
Appeal dllowed.
ABDUL MATEEN
v.
RAM KAILASH PANDEY AND OTHERS
(B· P. SINHA, C. J., K. N. WANOHOO, and
J. c. SH.AH, JJ.)
Motor Vehicles-stage carriage
permits-Applications
invited by Regional Transport Authority for two vacanciesMinister of Transport gave an additional permit-Whether lega~
-Scope of s. 64-A-Motor Vehicles Act, 1939, (4 of 1939), as
amended by Bihar Amen<lment Act No. XXVII of 1950, ss. 47,
48, 57, 64, 64-A.
A new route was advertised by the Regional Transport
Authority and applications were invited for two permanent
stage carriage permits. The Regional Transport Authority
granted the two permits to the appellant and another person.
An appeal against that order failed.
Sudhakar Sharma, one
of the respondents, moved the High Court under Art. 226 and
the order of the appellate authority was quashed.
When the
case went back to the Appellate Authority, the permit granted
to the appellant was cancelled and was given to Sudhakar
Sharma. The appellant made an application to the State
Government under s. 64· ~ of the Motor Vehicles Act, 1939,
as amended by the B1har Amendment Act No. XXVII
of 1950. The Minister of Transport upheld the order of the
appellate authority cancelling the permit of the appellant and
granting the same to Sudhakar Sharma, but granted an additional permit to the appellant. Ram Kailash Pandey filed a
~rit petiOon in the Hi~h Coiμ-t
challen~i~ tP.e 9rder of tll(i
190B
Kirloskar fi>il
Engines
. v.
llanmant Loxman
Bibawe
Gojendragadknr J.
191J2
July 31.