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N.H. BHAGWATI, J. – This Appeal with a certificate of fitness granted by the High Court of
Saurashtra raises an interesting question whether the agarias working in the Salt Works at
Kuda in the Rann of Cutch are workmen within the meaning of the term as defined in the
Industrial Disputes Act, 1947, hereinafter referred to as “the Act”.
- The facts as found by the Industrial Tribunal are not in dispute and are as follows. The
appellants are lessees of the Salt Works from the erstwhile State of Dharangadhara and also
hold a licence for the manufacture of salt on the land. The appellants require salt for the
manufacture of certain chemicals and part of the salt manufactured at the Salt Works is
utilised by the appellants in the manufacturing process in the Chemical Works at
Dharangadhara and the remaining salt is sold to outsiders. The appellants employ a Salt
Superintendent who is in charge of the Salt Works and generally supervises the Works and
the manufacture of salt carried on there. The appellants maintain a railway line and sidings
and also have arrangements for storage of drinking water. They also maintain a grocery shop
near the Salt Works where the agarias can purchase their requirements on credit. - The salt is manufactured not from sea water but from rain water which soaking down
the surface becomes impregnated with saline matter. The operations are seasonal in character
and commence sometime in October at the close of the monsoon. Then the entire area is
parcelled out into plots called pattas and they are in four parallel rows intersected by the
railway lines. Each agaria is allotted a patta and in general the same patta is allotted to the
same agaria year after year. If the patta is extensive it is allotted to two agarias who work the
same in partnership. At the time of such allotment, the appellants pay a sum of Rs 400 for
each of the pattas and that is to meet the initial expenses. Then the agarias commence their
work. They level the lands and enclose and sink wells in them. Then the density of the water
in the wells is examined by the Salt Superintendent of the appellants and then the brine is
brought to the surface and collected in the reservoirs called condensers and retained therein
until it acquires by natural process a certain amount of density. Then it is flowed into the
pattas and kept there until it gets transformed into crystals. The pans have got to be prepared
by the agarias according to certain standards and they are tested by the Salt Superintendent.
When salt crystals begin to form in the pans they are again tested by the Salt Superintendent
and only when they are of a particular quality the work of collecting salt is allowed to be
commenced. After the crystals are collected, they are loaded into the railway wagons and
transported to the depots where salt is stored. The salt is again tested there and if it is found to
be of the right quality, the agarias are paid therefor at the rate of Rs 0-5-6 per maund. Salt
which is rejected belongs to the appellants and the agarias cannot either remove the salt
manufactured by them or sell it. The account is made up at the end of the season when the
advances which have been paid to them from time to time as also the amounts due from the
agarias to the grocery shop are taken into account. On a final settlement of the accounts, the
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amount due by the appellants to the agarias is ascertained and such balance is paid by the
appellants to the agarias. The manufacturing season comes to an end in June when the
monsoon begins and then the agarias return to their villages and take up agricultural work. - The agarias work themselves with their families on the pattas allotted to them. They are
free to engage extra labour but it is they who make the payments to these labourers and the
appellants have nothing to do with the same. The appellants do not prescribe any hours of
work for these agarias. No muster roll is maintained by them nor do they control how many
hours in a day and for how many days in a month the agarias should work. There are no rules
as regards leave or holidays. They are free to go out of the Works as they like provided they
make satisfactory arrangements for the manufacture of salt. - In about 1950, disputes arose between the agarias and the appellants as to the
conditions under which the agarias should be engaged by the appellants in the manufacture of
salt. The Government of Saurashtra, by its letter of Reference dated November 5, 1951,
referred the disputes for adjudication to the Industrial Tribunal, Saurashtra State, Rajkot. The
appellants contested the proceedings on the ground, inter alia, that the status of the agarias
was that of independent contractors and not of workmen and that the State was not competent
to refer their disputes for adjudication under Section 10 of the Act. - This question was tried as a preliminary issue and by its order dated August 30, 1952,
the Tribunal held that the agarias were workmen within the meaning of the Act and that the
reference was intra vires and adjourned the matter for hearing on the merits. Against this
order the appellants preferred an appeal being Appeal No. 302 of 1952 before the Labour
Appellate Tribunal of India, and having failed to obtain stay of further proceedings before the
Industrial Tribunal pending the appeal, they moved the High Court of Saurashtra in M.P. No.
70 of 1952 under Articles 226 and 227 of the Constitution for an appropriate writ to quash the
reference dated November 5, 1951 on the ground that it was without jurisdiction. Pending the
disposal of this writ petition, the appellants obtained stay of further proceedings before the
Industrial Tribunal and in view of the same the Labour Appellate Tribunal passed an order on
September 27, 1953 dismissing the appeal leaving the question raised therein to the decision
of the High Court. By their judgment dated January 8, 1954 the learned Judges of the High
Court agreed with the decision of the Industrial Tribunal that the agarias were workmen
within Section 2(s) of the Act and accordingly dismissed the application for writ. They,
however, granted a certificate under Article 133(1)(c) of the Constitution and that is how the
appeal comes before us.
The essential condition of a person being a workman within the terms of this definition is
that he should be employed to do the work in that industry, that there should be, in other
words, an employment of his by the employer and that there should be the relationship
between the employer and him as between employer and employee or master and servant.
Unless a person is thus employed there can be no question of his being a workman within the
definition of the term as contained in the Act.” - The principles according to which the relationship as between employer and employee
or master and servant has got to be determined are well settled. The test which is uniformly
applied in order to determine the relationship is the existence of a right of control in respect of
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the manner in which the work is to be done. A distinction is also drawn between a contract for
services and a contract of service and that distinction is put in this way: “In the one case the
master can order or require what is to be done while in the other case he can not only order or
require what is to be done but how itself it shall be done”. [Per Hilbery, J. in Collins v.
Hertfordshire County Council (1947) KB 598, 615]. - The principle which emerges from these authorities is that the prima facie test for the
determination of the relationship between master and servant is the existence of the right in
the master to supervise and control the work done by the servant not only in the matter of
directing what work the servant is to do but also the manner in which he shall do his work.
“The proper test is whether or not the hirer had authority to control the manner of execution
of the act in question”. - The nature or extent of control which is requisite to establish the relationship of
employer and employee must necessarily vary from business to business and is by its very
nature incapable of precise definition. As has been noted above, recent pronouncements of the
Court of Appeal in England have even expressed the view that it is not necessary for holding
that a person is an employee, that the employer should be proved to have exercised control
over his work, that the test of control was not one of universal application and that there were
many contracts in which the master could not control the manner in which the work was done
(Vide observations of Somervelle, L.J. in Cassidy v. Ministry of Health [(1951) 2 KB 343,
352-3]. - The correct method of approach, therefore, would be to consider whether having
regard to the nature of the work there was due control and supervision by the employer. - The Industrial Tribunal on a consideration of the facts in the light of the principles
enunciated above came to the conclusion that though certain features which are usually to be
found in a contract of service were absent, that was due to the nature of the industry and that
on the whole the status of the agarias was that of workmen and not independent contractors. It
was under the circumstances strenuously urged before us by the learned counsel for the
respondents that the question as regards the relationship between the appellants and the
agarias was a pure question of fact, that the Industrial Tribunal had jurisdiction to decide that
question and had come to its own conclusion in regard thereto, that the High Court, exercising
its jurisdiction under Articles 226 and 227 of the Constitution, was not competent to set aside
the finding of fact recorded by the Industrial Tribunal and that we, here, entertaining an
appeal from the decision of the High Court, should also not interfere with that finding of fact. - Reliance was placed on the observations of Mahajan, J., as he then was, in Ebrahim
Aboobakar v. Custodian General of Evacuee Property [(1952) SCR 696, 702:]
“It is plain that such a writ cannot be granted to quash the decision of an inferior
court within its jurisdiction on the ground that the decision is wrong. Indeed, it must
be shown before such a writ is issued that the authority which passed the order acted
without jurisdiction or in excess of it or in violation of the principles of natural
justice…. But once it is held that the court has jurisdiction but while exercising it, it
made a mistake, the wronged party can only take the course prescribed by law for
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setting matters right inasmuch as a court has jurisdiction to decide rightly as well as
wrongly”. - There is considerable force in this contention of the respondents. The question
whether the relationship between the parties is one as between employer and employee or
between master and servant is a pure question of fact. Learned counsel for the appellants
relied upon a passage from Batt’s Law of Master and Servant 4th Edn., at p. 10:
“The line between an independent contractor and a servant is often a very fine
one; it is a mixed question of fact and law, and the judge has to find and select the
facts which govern the true relation between the parties as to the control of the work,
and then he or the jury has to say whether the person employed is a servant or a
contractor.”
It is equally well settled that the decision of the Tribunal on a question of fact which it has
jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the
Constitution unless at the least it is shown to be fully unsupported by evidence. - Now the argument of Mr Kolah for the appellants is that even if all the facts found by
the Tribunal are accepted they only lead to the conclusion that the agarias are independent
contractors and that the finding, therefore, that they are workmen is liable to be set aside on
the ground that there is no evidence to support it. We shall, therefore, proceed to determine
the correctness of this contention. - Apart from the facts narrated above in regard to which there is no dispute, there was
the evidence of the Salt Superintendent of the appellants which was recorded before the
Tribunal:
“The Panholders are allotted work on the salt pans by oral agreement. The
Company has no control over the panholders in regard to the hours of work or days of
work. The Company’s permission is not sought in matter of sickness or in matter of
going out to some village. The Company has no control over the panholders as to how
many labourers they should engage and what wages they should pay them. The
Company’s supervision over the work of the panholders is limited to the proper
quality as per requirements of the Company and as per standard determined by the
Government in matter of salt. The Company’s supervision is limited to this extent.” - The Company acts in accordance with clause 6 of the said agreement in order to get
the proper quality of salt. - Panholders are not the workmen of the Company, but are contractors. The men who
are entrusted with pattas, work themselves. They can engage others to help them and so they
do. There is upto this day no instance that any panholder who is entrusted with a patta, has not
turned up to work on it. But we do not mind whether he himself works or not. - If any panholder after registering his name (for a patta) gets work done by others, we
allow it to be done. - We own 319 pattas. Some pattas have two partners. In some, one man does the job. In
all the pans, mainly the panholders work with the help of their (respective) families”.
119 - Clause 6 of the agreement referred to in the course of his evidence by the Salt
Superintendent provided:
“6. We bind ourselves to work as per advice and instructions of the officers
appointed by them in connection with the drawing of brine or with the process of salt
production in the pattas and if there is any default, negligence or slackness in
executing it on our part or if we do not behave well in any way, the Managing Agent
of the said Company can annul this agreement and can take possession of the patta,
brine, well, etc., and as a result we will not be entitled to claim any sort of
consideration or compensation for any half processed salt lying in our patta; or in
respect of any expense incurred or labour employed in preparing kiwa patta, well
bamboo lining, etc.” - There was also the evidence of Shiva Daya, an agaria, who was ex amined on behalf
of the respondents:
“There is work of making enclosures and then of sinking wells. The company
supervises this work. While the wells are being sunk, the Company measures the
density of the brine of wells. In order to bring the brine of wells to the proper density,
it is put in a condenser and then the Company tests this and then this brine is allowed
to flow in the pattas….
The bottom of a patta is prepared after it is properly crushed under feet and after
the company inspects and okays that it is alright, water is allowed to flow into it.
When salt begins to form at the bottom of a patta, an officer of the company comes
and inspects it. At the end of 2½ months, the water becomes saturated i.e. useless,
and so it is drained away under the supervision of the company. Then fresh brine is
allowed to flow into the patta from the condenser. This instruction is also given by
the company’s officer.” - It was on a consideration of this evidence that the Industrial Tribunal came to the
conclusion that the supervision and control exercised by the appellants extended to all stages
of the manufacture from beginning to end. We are of opinion that far from there being no
evidence to support the conclusion reached by the Industrial Tribunal there were materials on
the record on the basis of which it could come to the conclusion that the agarias are not
independent contractors but workmen within the meaning of the Act. - Learned counsel for the appellants laid particular stress on two features in this case
which, in his submission, were consistent only with the position that the agarias are
independent contractors. One is that they do piece-work and the other that they employ their
own labour and pay for it. In our opinion neither of these two circumstances is decisive of the
question. As regards the first, the argument of the appellants is that as the agarias are under no
obligation to work for fixed hours or days and are to be paid wages not per day or hours but
for the quantity of salt actually produced and passed, at a certain rate, the very basis on which
the relationship of employer and employees rests is lacking, and that they can only be
regarded as independent contractors. There is, however, abundant authority in England that a
person can be a workman even though he is paid not per day but by the job.
120 - As regards the second feature relied on for the appellants it is contended that the
agarias are entitled to engage other persons to do the work, that these persons are engaged by
the agarias and are paid by them, that the appellants have no control over them and that these
facts can be reconciled only with the position that the agarias are independent contractors.
This argument, however, proceeds on a misapprehension of the true legal position. The broad
distinction between a workman and an independent contractor lies in this that while the
former agrees himself to work, the latter agrees to get other persons to work. Now a person
who agrees himself to work and does so work and is therefore a workman does not cease to be
such by reason merely of the fact that he gets other persons to work along with him and that
those persons are controlled and paid by him. What determines whether a person is a
workman or an independent contractor is whether he has agreed to work personally or not. If
he has, then he is a workman and the fact that he takes assistance from other persons would
not affect his status. The position is thus summarised in Halsbury’s Laws of England, Vol.
14, pp. 651-52:
“The workman must have consented to give his personal services and not merely
to get the work done, but if he is bound under his contract to work personally, he is
not excluded from the definition, simply because he has assistance from others, who
work under him”. - In the instant case the agarias are professional labourers. They themselves personally
work along with the members of their families in the production of salt and would, therefore,
be workmen. The fact that they are free to engage others to assist them and pay for them
would not, in view of the above authorities, affect their status as workmen. - There are no doubt considerable difficulties that may arise if the agarias were held to
be workmen within the meaning of Section 2(s) of the Act. Rules regarding hours of work,
etc., applicable to other workmen may not be conveniently applied to them and the nature as
well as the manner and method of their work would be such as cannot be regulated by any
directions given by the Industrial Tribunal. These difficulties, however, are no deterrent
against holding the agarias to be workmen within the meaning of the definition if they fulfil
its requirements. The Industrial Tribunal would have to very well consider what relief, if any,
may possibly be granted to them having regard to all the circumstances of the case and may
not be able to regulate the work to be done by the agarias and the remuneration to be paid to
them by the employer in the manner it is used to do in the case of other industries where the
conditions of employment and the work to be done by the employees is of a different
character. These considerations would necessarily have to be borne in mind while the
Industrial Tribunal is adjudicating upon the disputes which have been referred to it for
adjudication. They do not, however, militate against the conclusion which we have come to
above that the decision of the Industrial Tribunal to the effect that the agarias are workmen
within the definition of the term contained in Section 2(s) of the Act was justified on the
materials on the record. - We accordingly see no ground for interfering with that decision and dismiss this
appeal with costs.
