Full Judgment Text
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PETITIONER:
M/S. KIRLOSKAR OIL ENGINES
Vs.
RESPONDENT:
HANMANT LAXMAN BIBAWE
DATE OF JUDGMENT:
31/07/1962
BENCH:
ACT:
Industrial Dispute--Master and servant--Workman concerned in
dispute--Police scheme for providing watchman at
request--Who is employer--Industrial Disputes Act, 1947 (14
of 1947), s. 33A.
HEADNOTE:
The respondent was engaged by the appellant as a watchman
under a scheme framed by the Police Department. His
services were discharged pending an industrial dispute
between the appellant and its workmen. The respondent
complained to the Industrial Tribunal under s. 33A of the
Industrial Disputes Act. The Tribunal accepted the
application. The appellant 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 Dis-
trict Superintendent,of Police and credited to the
watchman’s fund. After deducting Rs. 250 towards the
uniform supplied, the rest is paid by the police Department
to the watch. man. The Department requires 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 are 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 would be unreasonable to treat that test as
the most 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 employee concerned in the pending Industrial
Disputes.
515
Shivanandan 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. I, held inapplicable.
JUDGMENT:
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 523 of 1961.
Appeal by special leave from the award dated September 2,
1960, of the Industrial Tribunal Maharashtra at Bombay in
Complaint (I. T.) No. 38 of 1960.
I. N. Shroff, for the-appellants.
K. R. Choudhri, for the respondent.
1962. July 31. The Judgment of the court was delivered by
GAJENDRAGADKAR, J.-The respondent Bibawe made an application
to the Industrial Tribunal at Bombay under a, 33-A of the
Industrial Disputes Act, 1947. He alleged that be had been
employed by the appellant M/s. Kirloskar Oil Engines,
Limited, as a watchman since July 21, 1958, and that he bad
been working as such 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 effect from that date.
The respondent urged that at the time when this order of
discharge was orally served 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 discharge was in contravention of the
provisions of s. 33 and that is the basis of his application
under a. 33-A.
516
The appellant denied that the respondent was its employee.
It pleaded that the respondent’s services had been made
available 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 contravened and the
application under s. 33-A was incompetent.
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 contention of
the parties on this point and observed that it could not
accept either of the extreme 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 against this order that the
appellant has come to .his Court by special leave.
On behalf of the appellant Mr. Shroff contends that the view
taken by the Tribunal that the respondent was the appellants
employee is plainly inconsistent with the scheme under which
the respondent 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 is erroneous. In our opinion this contention
is well founded and must be upheld.
Turning to the scheme under which the respondent was asked
to do the work as a watchman by
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the appellant, most of its material terms emphatically bring
out the fact that the respondent cannot be treated as the
appellant’s employee and cannot claim 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
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evolved because it was found that there was a demand for
such watchman by private individuals. There are several
paragraphs 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 he 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 be
credited to the Watchman Fund on receipt of advance bills
submitted from the 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 watchman. It is
significant that the 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 super-
vised 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
section in which their employer’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 Superintendent of Police and he alone
can fine or punish them; the employers are not authorised to
do so. In supplying, watchmen the Superintendent has to be
very
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careful to see that the employer who asks for a watchman 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 the scheme under which the respondent’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 and servant did
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 respon-
dent 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
519
in support of his case. He admitted that after he was
selected he was instructed by the appellant to go the Police
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Office and take uniform so that he took the uniform from the
Police Office. When 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-inspector. Mr. Chorpade stated
that leave is sanctioned by the police office; though be
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 correct to suggest that sick
leave, privilege leave or casual leave were granted to the
respondent as a matter of course by the appellant. The
respondent admitted that he and the other watchmen were
taken to the gate of Kirloskar Company by Police Jamadar
when they were interviewed and he admitted that Mr. Pansare
came once or twice a month and enquired 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 sys-
tem to which we have already referred. The uniform 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
520
to them cannot be worn by a private person. A Jamadar is
posted at the Police Station and he supervises over all the
watchmen employed. At the place of duty one senior watchman
its asked to supervise the work of watchmen. The Jamadar at
the Kirloskar Oil Engines is a senior watchman. His pay is
fixed by the D.S.P, In factories where there are 10 or 15
watchmen the factory sends hajri of all 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 attendance. If the D.S.P. comes to know that
the watchman’s duty in not satisfactory he can withdraw him.
The police staff also go for checking and if a watchman is
found absent 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
transfer. It would thus be seen that this oral evidence
also corroborates the conclusion which follows irresistibly
from the conditions of the system under which the
respondent’s service was secured by the appellant.
Therefore it seems to us that the Tribunal was in error in
holding that the respondent is the appellant’s employee.
For the respondent Mr. Chaudhury has referred to a decision
of this Court in Shivnandan Sharma v. The Punjab National
Bank Limited. (1) 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. In discussing this question
this Court observed that the decision of such a. question
would always depend on the facts and circumstances of each
individual case. Then a passage was quoted from the speech
of Lord Porter in which Lord Porter observed:-
(1) [1955] 1 S. C.R. 1427, 1443.
521
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"Many factors have a bearing on the result.
Who if; paymaster. who can dismiss, 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 regarded to the
subject-matter under discussion but amongst
the money tests suggested I 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.
Naturally Mr. Choudhury very strongly relies on the last
mentioned test and he contends that it is the appellant who
used to tell the respondent the way in which he should do
the work of watching and so the respondent should be taken
to be the appellant employee. In our opinion as Lord Porter
himself has observed the decision of the question as to the
relationship of employer and employee must be 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 maybe 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 lord
Porter’s observation on which Dr. Choudhury relies some to
treat the particular test as most satisfactory; but, with
respect, though the said test may have 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 bungalowsoccupied by its officers gardeners
and watchmen. These gardeners and watchmen are the
522
employees of the industrial establishment, are paid by them
and are subject to their control and super. vision. 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 gardeners would take their orders from the
occupants of the bungalows, they can not be said to be
theservants of the officers who occupy the bungalows
during their tenure of office. It would thus be seen that
the test 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 testis 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
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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
523
industrial dispute pending adjudication at the relevant
time,
The result is that the appeal must be allowed the order
passed by the tribunal set aside and the respondent’s
application under s. 33-A is dismissed. There will be no
order as to costs.
Appeal allowed.
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