JUDGMENT
R.S. Verma, J. for himself and on behalf of Rajendra Saxena, J.
1. These two appeals raise questions of vital importance for Hand Pump Mistries engaged in repairs and maintenance of hand-pumps throughout the State of Rajasthan. By consent of all concerned, they have been heard together and are being disposed of by a common order.
2. Potable water is the prime necessity for any human civilization to survive. Public Health Engineering Department (for short PHED) was initially charged with the duty of supplying neat and clean drinking water in the State. Hand Pumps were installed throughout the State for this purpose. These hand pumps were being repaired and maintained by the PHED. However, the PHED did not find it convenient and feasible to maintain and repair these handpumps in the far flung rural areas. By virtue of Section 23(2) of Raj. Panchayat Samitis and Zilla Parishad Act, 1959 (for short the Act) read with Entry 4(iii) of the Schedule to the Act, ‘provision of drinking water facilities’ was one of the functions with which Panchayat Samitis were charged. Eventually, repair and maintenance of hand pumps in the rural areas was entrusted to the care of Panchayat Samitis. How this was done, we shall notice shortly.
3. The Act by virtue of Sec. 31 read with Rajasthan Panchayat Samitis and Zila Parishad Rules, 1959 (for short ‘the Rules’) provided for the staff of the Panchayat Samitis. By virtue of said Section 31, the State Government was empowered to fix the strength of each category of posts for each Panchayat Samiti. It was also empowered to prescribe the pay scales and other conditions of service for such staff. By virtue of Rule 4 of the Rules as many as eighteen categories of posts were provided in the staff, of Panchayat Samitis. Sub-rule (2) of this Rule empowered the State Government to encadre ‘any other category of post in the service excluding class IV posts,’
4. It appears that on August 15, 1979, the Government of India launched ‘The National Scheme of Training of Rural Youths for Self Employment’, popularly known as TRYSEM. The main objective of this Scheme was the training of rural young in the 18-35 age group from the target group of families living below poverty line. The training was provided in technical-skills to enable them to take up self-employment in different vocations. The details of this Scheme are contained in a publication issued by the Rural Development Ministry of the Government of India published in the month of April, 1991 under the title
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Part II of this book deals with the said Scheme TRYSEM. We need not encumber this judgment by reproducing the details of the Scheme. Suffice it to say, that under the Scheme rural youth were to be provided training in different technical trades so that they could after training, engage themselves in self employment and play a useful role in the rural society, to which they belonged.
5. The Government of Rajasthan, being anxious to provide good drinking water to the rural public as also to uplift families living below poverty line, among other things, arranged for training of rural eligible youth as hand pump mistries. The training was provided at various Industrial Training Institutes. The Government provided stipend/honoraria to the trainees. Provision was made for making loans/subsidies available to trained persons so that they could engage themselves in self-employment and become useful citizens.
6. We may state that the Government at no point of time thought of employing whole-time hand pump mistries, nor it ever thought of encadring the posts of hand pump mistries in the categories of the staff of Panchayat Samitis. However, it took a policy decision to hand over the maintenance and repairs of hand pumps in rural areas to Panchayat Samitis within their respective jurisdictions. Panchayat Samitis were empowered to engage duly trained hand pump mistries for this purpose on contract basis. This was initially done by an order issued by Medical and Public Health Engineering Department being No. 14(11) (Group-4)82 dated June 8, 1982. A policy document was issued by the Government of Rajasthan in this regard on August 12, 1983 being F.I. (13) RDP/And-2/Part II
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7. This document noticed that the PHED was not in a position to discharge the heavy responsibility of maintaining the hand pumps. It then said that Panchayat Samitis could be entrusted with this duty. Persons trained under TRYSEM Scheme could be utilized for this purpose. Panchayat Samitis shall be responsible for selection, training and appointment of hand pump mistries. They shall also be responsible for payment of their honoraria. It then added that such hand pump mistries should not be treated as government employees. It said that hand pump mistries would be appointed on part-time basis on contract and Panchayat Samitis could entrust at least 30 and at most 40 hand pumps to one person for repairs and maintenance. It was for each Panchayat Samiti to fix up territorial limits within which each hand pump mistry was to function. The document further stated that each hand pump mistry would be free to carry on his personal business besides the repairs and maintenance of hand pumps. For each hand pump, a hand pump mistry was to be paid Rs. 150/- annually. Out of this amount Rs. 100/- was payable as remuneration and Rs. 50/- were payale on account of purchase of spare parts, used for repairs. If any savings were to be there against this head, the balance was to belong to the hand pump mistry. It was stipulated that if any hand pump mistry was found absent from his area, deductions could be made from his remuneration for the period he was absent. In case, any hand pump mistry even after reprimand and explanations being called did not perform his duty satisfactorily, his engagement could be terminated. It was reiterated that hand pump mistry was not a Government servant and State was under no obligation to provide him with any post. Certain other stipulations were also made in this policy document, which are not germane to the matters in hand.
8. It appears that different circulars were issued by the Rural Development Department of the Government of Rajasthan. By a Circular dated January 1, 1986, the amount of Rs. 150/-was enhanced to Rs. 200/- out of which Rs. 67/-were to go towards purchase of spare parts. By a circular dated February 5, 1987, it was inter alia provided that total remuneration payable annually to a Hand Pump Mistry was not to exceed Rs. 8000/- even if he was entrusted with more than 40 hand pumps. By another circular dated November 12, 1987, this position was inter alia reiterated. It was added that if repairs of any hand pump required assistance of a fitter for this purpose, the hand pump mistry concerned could take such assistance of a fitter. By a circular dated December 16, 1987, it was stipulated that if there was any saving out of Rs. 67/- allotted for purchase of spare parts, the money shall belong to the concerned hand pump mistry. By another circular dated April 23, 1988, a ceiling of Rs. 5320/- was imposed for repairs and maintenance of 40 hand pumps. It was inter alia reiterated that if any hand pump mistry was absent from his area and a hand pump needed repairs, the same could be got repaired by another mistry; a deduction from remuneration payable to the hand pump mistry of the area could be made and the mistry actually repairing the pump could be paid out of the said deductions. Gram Panchayats were charged with overseeing of the performance of the hand pump mistries of their respective areas. By a circular dated September 27, 1988, it was inter alia provided that if any hand pump mistry was summoned to Panchayat Samiti Head Quarter, he could be paid actual fare plus Rs. 107- per day as daily allowance but no hand pump mistry could be called for more than three such meetings in a month. However, posts of hand pump mistries were neither created in any Panchayat Samiti nor such posts were ever encadred in the staff of Panchayat Samitis.
9. It appears that hand pump mistries eventually started claiming status of an employee of the concerned Panchayat Samiti; they claimed regularisation with regular pay scales and other allowances as admissible to hand pump mistries under PHED. The concerned Panchayat Samitis and the Government did not accede to this request. This culminated in a batch of writ petitions being filed at the Jaipur Bench of this Court in which petitioner-hand pump mistries inter alia claimed that they were employees of concerned Panchayat Samitis and were serving for long periods and were entitled to regularisation. They also claimed regular pay scales. The writ petitions were opposed on behalf of the State and the concerned Panchayat Samitis. This batch of writ petitions being S.B. Civil Writ Petition No. 4556/1990 Radhey Shyam Dhobi v. State and Ors. (1991 (2) WLC (Raj). 142), and other connected writ petitions came to be decided on August 20, 1991 by a learned single Judge of this Court at Jaipur. The writ petitions were partly accepted and the claim of the petitioners that they were employees of the concerned Panchayat Samitis was accepted and orders for regularisation of their services were made. Of course, the claim of grant of pay scale as comparable to Hand Pump Mistries in other departments was negatived. This order was assailed before a Division Bench of this Court at Jaipur in D.B. Special Appeal No. 464/91- State of Raj v. Hand Pump Mistries Union. This Special Appeal was dismissed on October 24, 1991 and the order of the learned single Judge was upheld. It was held that services of Hand Pump Mistries were not contractual and they were entitled to regularisation of their services. It does not appear that the State challenged this judgment of the Division Bench by filing SLP before the apex Court. The order of the Division Bench of Jaipur, thus, appears to have attained finality. We were told at the Bar that in spite of this judgment, no regularisations were made and the things stand as they were.
10. Then, there was another batch of writ petitions filed at the principal seat of this Court wherein similar reliefs were claimed. One of these writ petitions viz. S.B. Civil Writ Petition No. 664/90- All Rajasthan Hand Pump Mistnes Union, Bhinder v. State and Anr. and connected writ petitions was decided by a learned single Judge of this Court on April 1, 1991. In these writ petitions, the claim of Hand Pump Mistries was negatived that a relationship of master and servant existed between the Panchayat Samitis and concerned Hand Pump Mistries. It was held that the Hand Pump Mistries served under a contract and hence the writ petitions were not maintainable. This judgment proceeded on the basis of another S.B.Civil Writ Petition No. 1712/90-. All Rajasthan Hand Pump Mistries’ Union, Ding v. State and Ors. decided on July 10, 1990 wherein another learned single Judge of this Court had taken this very view. An appeal was taken to a Division Bench of this Court against the order of the learned single Judge dated April 1, 1991, dismissing the writ petitions. This appeal was heard by a Division Bench at Jodhpur and by order dated January 16, 1992 (D.B. Civil Special Appeal No. 229/91 and connected other 29 Special Appeals All Raj. Hand Pump Mistries’ Union, Sarada v. State of Raj. and Ors.), it was inter alia held that the relationship between concerned Panchayat Samiti and its Hand Pump Mistries was not that of master and servant. The Hand Pump Mistries served under a contract giving rise to a special contractual relationship. Upon this finding, the appeals were dismissed.
11. Now, we come to the present appeals. D.B. Civil Special Appeal No. 155/90 has been filed against the order of learned single Judge dated September 9, 1991 whereby the learned Judge has dismissed the writ petition of the appellant-Union being S.B. Civil Writ Petition No. 4430/91. D.B. Civil Special Appeal No. 401/92 has been filed against the order of the learned single Judge dated April 1, 1991, whereby he has dismissed S.B. Civil Writ Petition No. 667/90.
12. We may state that when D.B. Civil Special Appeal No. 155/92 came up before Another Division Bench sitting at Jodhpur, the Division Bench noticed that the judgment rendered in Sarada Panchayat Samiti case and other connected cases (supra) ran counter to the judgment rendered in Radhey Shyam Dhobi’s case (supra). In view of this conflict, the Division Bench requested Hon’ble the Chief Justice to constitute a larger Bench for resolving the conflict. This is how this appeal came before us. In view of the constitution of the Full Bench, the Division Bench hearing D.B. Civil Special Appeal No. 4001/92 directed that the same be attached with D.B. Civil Special Appeal No. 155/92. This is how this latter appeal has also come to be heard by us. Looking to the importance of the issues involved, we directed issue of notices to the learned Advocate General. On his behalf, learned Addl. Advocate General has put in appearance and has provided us his valuable assistance.
13. In the present appeals, learned counsel for the appellant-Unions have contended that the relationship of Hand Pump Mistries employed by the two Panchayat Samitis was that of employee and employer, notwithstanding the fact that the orders employing the members of petitioner-appellant Unions gave the nomenclature of ‘contract’ to the relationship. It is urged that this Court can go behind the screen and unveil the same and ascertain the true nature of relationship existing between the Hand Pump Mis-tries and Panchayat Samitis employing them. It is contended that members of the appellant Unions were serving over long periods and deserved to be regularised and confirmed. They were being paid very paltry sums and on principle of ‘equal pay for equal work’ deserved to be granted pay scales as admissible to Hand Pump Mistries serving under other departments of the State. It was alternatively contended that Panchayat Samitis were an ‘industry’ and the members of the appellant-Unions were ‘workmen’ for all purposes of the Industrial Disputes Act. The members of the appellant-Unions were given wages much below the rates prescribed under the provisions of Minimum Wages Act and hence they were, at best, entitled to a proper living wage, which should not be below the wages payable under the provisions of the Minimum Wages Act. It is contended that Sarda Panchayat Samiti case (supra) was not correctly decided. This Bench should accept the ratio of Radhey Shyam Dhobi’s case (supra) and accept both the appeals as also grant the relief claimed in the two writ petitions.
14. On behalf of the respondents, the appeals have been opposed seriously and it is submitted that members of the appellant-Unions were neither employees, nor ‘workmen’ serving under respective Panchayat Samitis. Thier relationship was of a special nature; it was a contract assignment. Hence, the appeals deserved to be dismissed.
15. We have given our earnest consideration to the rival contentions and have carefully perused the record of the two cases. We have already outlined the Scheme under which hand pumps installed in the various Panchayat Samitis areas were taken out of the purview of the PHED and were handed over to the Panchayat Samitis. We have also outlined the TRYSEM Scheme and its objectives under which young-men belonging to identified families living under poverty line were trained as Hand Pump Mistries and were engaged for repairs and maintenance of hand pumps. In the policy document by which maintenance of hand pumps was entrusted to the Panchayat Samitis, trained Hand Pump Mistries were to be encouraged to engage themselves in self-employment and maintenance of hand pumps was to be done on a contract on part-time basis and remuneration was to be paid per hand pump with a specified calling. The Hand Pump Mistries were free to engage themselves in other avocations and callings and were not fettered to the job of repair and maintenance of hand pumps only, A special relationship emerged between the Hand Pump Mistries and Panchayat Samitis employing them. At no time they were treated as employees of the Government or of other Governmental agencies. It is in this background that we shall have to examine the nature of relationship which ensued between the Hand Pump Mistries and the Panchayat Samitis employing them.
16. We are conscious of the fact that this Court can always go behind smoke screen of apparent relationships, transactions etc. and can always pierce the veil to find out the true fact-situation, so as to do complete justice between parties to a lis. In Management of D.C. Dewan Mohinder Sahib’s case (1964-II-LLJ-633), the employer used the agency of contractors to employ the workmen and gave out that they were not his employees but employees of contractor. The apex Court, on the basis of available material, pierced this veil and smoke screen and found out that the workmen were really employees of the proprietor of the factory. Implicit in this finding is the power of the Court to remove the mask and see beneath it. A similar position obtained in Husain Bai’s case (1978-II-LLJ-397). The apex Court smashed the dark window-screen and observed: (p. 398):
“The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex-contractor is of no consequence when on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth though draped in different perfect paper arrangement that the real employer is the Management, not the immediate contractor. Myraid devices, half-hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like, may be resorted to when labour legislation casts welfare obligations on the real employer, based on Articles 38, 39, 42, 43 and 43A of the Constitution. The court must be astute to avoid the mischief and achieve the purpose of the law and not be misled by the maya of legal appearances.”
17. Hence, we shall have to examine if really a relationship of master and servant had emerged between the concerned Panchayat Samitis and the Hand Pump Mistries and engagement ‘on contract’ Was merely a legal device to deprive the Hand Pump Mistries of their legitimate rights obtaining under various pieces of labour welfare legislation or it was a genuine policy ‘decision with a view to encourage self-employment among rural unemployed youth. In view of what the policy document recites and the TRYSEM Scheme stands for, pursuant to which the Hand Pump Mistries were trained and eventually engaged, the burden lies heavily on the appellants to show that the ‘contract arrangement’ was only a ruse and device to defeat legitimate rights of workmen. It would not be proper for us to jump at a conclusion lightly that the scheme was devised to defeat the legitimate rights of employees or workmen.
18. At this juncture and before going into the question posed above, we may examine the contention is the Panchayat Samiti an ‘industry’ within the meaning of the provisions of the Industrial Disputes Act. We find that this plea has not been taken with sufficient clarity though in S.B.Civil Writ Petition No.667/90, a vague and generalised averment has been made in para 6 that “the relations will be guided and regulated by the provisions of the Act and Rules applicable to respondent-Samiti and also by the Industrial Disputes Act. In S.B. Civil Writ Petition No. 4430/90, even such a vague plea is missing. We shall have to see if such a plea can be sustained on the material available on record. As noticed elsewhere, one of the functions of the Panchayat Samitis is to provide drinking water. For such an end in view, hand pumps have been installed in all Panchayat Samitis. To keep them functional, they have to be maintained and repaired periodically. Thus there is a systematic activity conducted by the Panchayat Samiti, with cooperation between Panchayat Samiti and the Hand Pump Mistries employed by it. This activity is for production and distribution of potable water, calculated to satisfy human wants. Hence, Panchayat samiti squarely falls within the definition of ‘Industry’ as defined by Section 2(j) of the Industrial Disputes Act, as elucidated by the apex Court in Bangalore Water Supply case (1978-I-LLJ-349). Our view finds support from a catena of decisions of this Court viz Secretary, Zila Parishad v. Nathi Mali Chowkidar (1983 (3) SLR (Raj.), (ii) Panchayat Samiti, Shahpura v. Labour Court (1981 WLN (UC) 435) (iii) Kewal Ram v. State (1986 RLW 435), (iv) Chhutantal v. State (1989 (I) RLR 649), (v) B.D.O. Taranagar v. Bhani Ram (1991 WLR (S) Raj. 549) and (vi) Jai Singh Bhati’s case (1993(1) WLC (Raj.) 31.) Thus, this issue is no longer res Integra. Hence, we hold that Panchayat Samiti in maintaining hand pumps, functions as an ‘industry’ within the meaning of the provisions of the Industrial Disputes Act. However, it shall have still be examined if Hand Pump Mistries were workmen. This would depend upon the fact if such mistries could be called employees of the Panchayat Samitis.
19. Now, we may examine the question, if on a true interpretation of all facts and circumstances, the relationship between Panchayat Samitis and the hand pump employees is of master and servant. Much reliance was placed in this connection on Sedler v. Hendlock (4 English Reports 209). In that case, the defendant engaged a person to clean his drain. The drain was cleaned in an improper way and the adjoining highway was tinkered with and plaintiffs horse fell down while passing on the highway. Plaintiff sued on the basis that the person cleaning the drain was servant of the defendant. Defendant resisted the claim and pleaded that the person engaged for cleaning the drain was an independent contractor. The contention was negatived and Crompton J applied the test that the defendant retained the right of controlling the work of the person employed and hence there was a relationship of master and servant. In our opinion the test laid down in this case is of widest import and amplitude and may not be of much use in the context of the cases before us. To our mind, the true test for determination of this relationship was laid down in Dharangadhra Chemical Works Ltd. v. State of Saurashtra and Anr. (1957-I-LLJ-477) wherein the apex Court, after discussing the relevant case law, observed as follows: (p.481)
“The principle which emerges from these authorities is that the prima facie test for 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.”
In this very ruling, the following observations of Fletcher Moulton L J in Simmons v. Health Laundry Co. were cited with approval :
“It is a question of fact to be decided by all the circumstances of the case. The greater the amount of direct control exercised over the person rendering the services by the person contracting for them, the stronger the grounds for holding it to be a contract of service, and similarly the greater the degree of independence of such control, the greater the probability that the services rendered are professional services and that the contract is not one of service.”
To our mind, the true test would be as laid down by Fletcher Moulton J and approved by the apex Court and not the wider test laid down by Crompton J in Henlock (supra). It is not every contract that would create the relationship of master and servant. The contract has to be both in the matter of directing as to what the servant shall do as also regarding the manner in which he shall do this work.
20. No ruling has been brought to our notice, which might have devised any other test or test contrary to that mentioned above. Numerous rulings were cited before us, which were truly speaking besides the point. In A.Govind Raj Rao Case (1985 Lab. I.C. 1008), the dispute was not with regard to master and servant relationship, but if a servant was a workman or fell in the supervisory or managerial cadre. In Silver Jubilee Tailoring House case (1973-II-LLJ-495), the workmen were tailors attending the shop of the proprietor. They worked on the machines of the proprietor. Some of the tailors took work from other persons also but did the stitching in the shop of the proprietor. The tailors were subject to order and directions of the proprietor. It was held that the element of control and supervision was present to an extent that tailors could be held to be servants of the proprietor. M/s. Shining Tailors’ case (1983-II-LLJ-413), also pertained to a big tailoring establishment. The workmen were being paid on basis of piece rate. There was found an element of control and supervision to such an extent that relationship of master and servant was inferred. M/s. Daily Tej Private Ltd. Case (1979 FLR 302) pertained to a compositor engaged in a press but a plea was taken that he was an employee of a contractor. The plea was negatived on basis of evidence on record. In this case also, the test applied for was the same, as has been reproduced in para 19 of this judgment. The test laid down does not run counter to the said test. In that case, the workmen were to do the entire work at the press with the composing material and equipment supplied by it and were not entitled to take any other assignment. The entire work was to be one under supervision and control of the management; daily attendance of the workmen was to be marked. In Shalimar Tar Products case (1980 FLR 450), the dispute was if the employee performed the duties of a workman or his duties were supervisory. Hence, this ruling has no application on the facts of the present case.
21. Rex v.Walker [(1858) L J (M.C.) 207] deals with the distinction in relationship between master and servant on one hand and principal and agent on the other. The same is also of no assistance to us. Rex v. May [(1961) 30 LJ (MC) 81] lays down that a person, who is required to devote definite and specified time for work of the master, would still be a servant, though he may have liberty regarding place and manner of his work. This ruling has also no application on facts of the case, as we shall presently show.
22. Chintaman Rao’s case (1958-II-LLJ-252) deals with the question if the workmen were employees of the factory or of a contractor of the factory. In this case, the distinction between an employee and an independent contractor was delineated as follows: (p. 256):
“A ‘contractor’ is a person who, in the pursuit of an independent business, undertakes to do specific job of work for other persons without submitting himself to their control in respect to the details of work.”
This case follows the test laid in Dharangdhara’s case (supra) and does not in any manner help the appellants, as we shall demonstrate shortly. Hussain Bai’s case (supra) is on the same lines, so also is the position of D.C. De-wan’s case (supra), to which we have already referred earlier. Qamar Shaffi Tyabji case (AIR 1960 SC 1269) dealt with case of agent and principal. On the facts of the case, it was held that appellant was neither a servant nor a sub-agent but an agent of the Principal. This was a case dealing with taxation matter and has no applicability to the facts of this case.
23. Reliance was also placed on Burmah Shell Oil Storage (1970-II-LLJ-590), in which there were certain classes of employees and the question was which particular employee fell in which class. It was held that for determining this factor, a workman must be held to do that work which is the main work he is required to do even though he may be incidentally doing other types of work. The ruling has no application to the facts of the case.
24. J.K. Cotton Spinning and Weaving Mills Ltd. case (1964-II-LLJ-436) is an authority for the proposition that an industry in modern times comprises of several incidental operations and ail such operations in totality constitute an industry, hence ‘malis’ working in official bungalows of officers of a mill, and employed by the mill, whose work and performance was supervised and controlled by officers of the mill, were held to be ‘workmen’ serving under the mill. This authority, too, has no application to the facts of this case. The case turned upon the interpretation of Section 2(s) of the U.P. Industrial Disputes Act, 1947 and has no applicability whatever to the facts of the two appeals before us.
25. Malabar Industrial Co. Ltd. case (1958 AIR Kerata 202), is an authority for the proposition that designation given to an employee is not conclusive for determining the character of the employment and the main features, viz the pith and substance of his employment, must be seen to find out if he is a ‘workman’ or is engaged in a supervisory capacity. Ancillary or incidental duties performed do not alter the true nature of his employment. The same is the view taken in A. Govind Raj Rao’s case (supra).
26. P.M. Patel [(1986) 1 SCC 32) is an authority for the proposition that in the particular facts and circumstances, a home worker, rolling Beedis at his home, is a ‘workman’. The head-notes to the report give in details such facts and circumstances, which demonstrated that effective control and supervision was exercised in relation to such home workers. The element of control involved distinguishes the present cases from such Beedi workers and hence the ruling is of no assistance to the appellants.
27. Learned counsel for the appellants contended that mere use of the word ‘contract’ in the letter of engagement would not alter the real nature of employment. They have placed reliance in this connection on Mahesh Kumar Goyal case (1991 WLN (i) 211). We do not feel any hesitation in saying that mere use of expression like ‘contract’ and ‘contractor’ would not alter the true nature of employment and the court shall have to examine all the relevant attendant circumstances including the extent of control exercisable in relation to job performance.
28. Having considered the various rulings cited at the bar and having considered the fact that Panchayat Samitis constitute an ‘Industry’ within the meaning of the Industrial Disputes Act, we have to examine if the Hand Pump Mis-tries are ‘workmen’ or servants of concerned Panchayat Samitis. To recapitulate relevant and vital facts, we find that there are no posts of Hand Pump Mistries as such under the Panchayat Samitis. Hand Pump Mistries were picked up and trained under TRYSEM Scheme, with a view to generate self-employment for the rural youngmen, belonging to families below poverty line. They were trained at State expenses with this specific object in view. No particular working hours were provided for Hand Pump Mistries. They are not required to mark any attendance in any attendance register. They are free to engage themselves in vocations and callings of their own choice. Their work is most sporadic in nature i.e. their services were required only when a hand pump needs repairs and maintenance. Repaired properly, a hand pump, for aught we know, may not require repairs for months together. The job was never intended to be equated with a Government post. The Hand Pump Mistries are free to effect repairs to hand pumps in any manner they like. There is no right in Panchayat Samiti to suspend Hand Pump Mis-tries. There is of course a right to ensure that Hand Pump Mistries keep in proper repairs the hand pumps in their respective charges and are available as and when their services are required. There is a right to deduct amount from their remuneration if they are not available when a hand pump is required to be repaired. The deduction is not meant to be a punishment but is made so that Panchayat Samiti may get the hand pump repaired from another mistry and may pay him out of such deduction. There is no right in a Panchayat Samiti to hold a disciplinary enquiry against a Hand Pump Mistry. There is no right in a Panchayat Samithi to punish an erring Hand Pump Mistry except to make deductions as aforesaid with the sole objective of reimbursing any other mistry, who is required to effect repairs in absence of a Hand Pump Mistry. The payment is to be made on the basis of each hand pump and has no relation even to the actual job performed. If for a particular period, say six months or eight months or a year, no hand pump is in need of repairs, yet the Hand Pump Mistry would get his remuneration. Such is the nature of engagement. We may state that we have not been influenced in any manner by use of words like ‘contract’ or ‘contractor’. We have not been influenced by the fact that the job of the members of the appellant-Unions was a part time-job. It was strenuously contended that it was a job on piece rate basis payment. Actually, this is also a misnomer as demonstrated by us. To our mind, by no stretch of imagination, the members of the two appellant-Unions could be termed to be employees of the concerned Panchayat Samitis, nor they could be categorised as ‘workmen’ in the true meaning of the term. The element of control over them is minimal and there is no control whatsoever about the manner in which they would be performing their jobs.
29. We may advert to one more basic fact. There is a clear distinction between a contract of service and contract for service. A contract of service does give rise to relationship of master and servant but a contract for service does not give rise to such a relationship. The distinction in the two concepts, though fine and subtle, is nonetheless real. It is easy to distinguish one concept from other, though it may be difficult to formulate the distinction precisely. To illustrate this difference, we may cite the cases of a driver of a bus, attendant of a petrol pump or a night watchman employed under a contract. These all are illustrations of a contract of service giving rise to relationship of master and servant. But take the case of a taximan, usually hired by a neighbour on regular errands or the case of a car mechanic running his work-shop but very often, nay even regularly, engaged by owner of a fleet or taxis for their repairs and maintenance. These are persons employed under a contract for service. One broad feature of distinction between the two would be that in a contract of service, a man is employed as a part of the business or industry and his work is integral part of such business or industry but in a contract for service his work is not integrated into the industry. He is free to pursue his other calling or vocation. His work, though done for industry or business, is only accessory to it. This distinction was recognised by Lord Denning in Stevenson, Jordan and Harrison Ltd. v. Macdonald & Coens (1952-I TLR 101 at p. III), when he cited with approval the following observations of Somervell L.J.:
“It is often easy to recognise a contract of service when you see it, but difficult to say where the difference lies. A ship’s master, a chauffeur and a reporter on the staff of a news paper are all employed under a contract of service; but a ship’s pilot, a taximan and a news paper contributor are employed under a contract for service. One feature which seems to run through the instances is that under a contract of service a man is employed as part of business and his work is done as an integral part of the business; whereas, under a contract for services, his work although done for the business is not integrated into it but is only accessory to it.”
30. Keeping this distinction in mind, we are of the view that a Hand Pump Mistry, who is free to engage in other pursuits and is required to repair and maintain hand pumps as his side-business, serves only under a contract for service and is neither a ‘workman’ nor an employee. We would say that the relationship between Hand Pump Mistries and concerned Panchayat Sami-tis was of a special nature. If we may say so it is a relationship sue generis and does not partake of the character of a servant or an employee or for the matter of that, a ‘workman’ as envisaged under the provisions of the Industrial Disputes Act. We may illustrate and compare his case with a family physician, who takes care of ailing patients in a family for remuneration, but for that reason does not become a servant or employee. The Hand Pump Mistries, to borrow the metaphor, basically serve as family physicians to the family of hand pumps of a Panchayat Samiti. They are entitled to their fixed retainer and are entitled to be reimbursed for spare parts used by them but do not become employees, servants or ‘workmen’ of the concerned Panchayat Samitis. They are free to engage themselves principally in vocations of their choice and may very well use their spare hours for repairing and maintaining the hand pumps, no particular hours being prescribed for doing these repairs. The sequence in which each hand pump is to be looked after is also left to their choice. The only broad limitation and control is that every hand pump must be maintained in proper order.
31. Here, we may refer to the reasoning of Radhey Shyam Dhobi ‘s case (supra) for holding Hand Pump Mistries entitled to regularisation of their alleged services. The ratio of the case is that the work of repair and maintenance can only be done by technically trained persons, and therefore, schemes were devised to impart training to those who desired, to undertake this work. Employment of these persons as Hand Pump Mis-tries is due to the necessity of the continued repair and maintenance of the hand pumos. However, while employing these persons no mechanism has been evolved by the respondents of engaging these persons by way of contract. This was being done by providing employments in their factories and industries and is still being done. They engage persons on contract basis and make payment on piece rate basis. This is precisely what has been done by the Respondents in the present cases by issuing orders seeking to engage Hand Pump Mistries on contract basis.
Payment is made to them on annual basis with reference to each hand pump which is required to be repaired and maintained by such Hand Pump Mistries. Since the Respondents had the absolute say in the matter of employment/engagement of these persons, they laid down terms and conditions according to their choice and the petitioners were hardly in a position to bargain or to dictate the terms on the question of conditions of service. Nevertheless, it is more than clear that how-so-ever disguised the conditions of service are, the Hand Pump Mistries are engaged by the respective Panchayat Samitis. They were employed under the supervision and control of Panchayat Samitis and Gram Panchayats. Their continuance depends on satisfactory performance of duties. Leave etc., is sanctioned by the Panchayat Samitis/Gram Panchayats.” Their contractual service can be terminated at any time if the performance is found to be unsatisfactory. Reliance was placed in this connection upon Central Inland Water Transport Corporation Ltd. and Anr. v. Bro-jonath Ganguly and anr. (1986-II-LLJ-171) for holding the device of engaging on contract as unconscionable. Relying upon the dictum in the said case, it was said:
“On the strength of the aforesaid decision it must be held that the conditions laid down in the contract of employment of the petitioners which indirectly results in the denial of even of the minimum wages to the Hand Pump Mistries is wholly arbitrary and opposed to public policy and is liable to be declared as violative of the Article 14 of the Constitution of India.”
Now, we may state with utmost respect to the learned single Judge that in taking this view, he lost sight of the true perspective under which the Hand Pump Mistries had been trained and engaged. It was precisely to generate self-employment for rural youth, who after training could take to independent vocations, that the scheme was formulated. A lateral source of sustenance was provided to them by granting them contracts. The true extent of control exercisable upon them was really missed. We have already shown that the extent of control exercisable by Panchayat Samitis was minimal and was very much compatible with the fact that they were to be engaged on contract and were never intended to be employees of Panchayat Samitis. The Division Bench judgment upholding Radhey Shyam’s case (supra) also did not take into consideration this aspect of the matter. We do not find any justification for holding that relationship was a mere ruse, device, stratagem or subterfuge to defeat the rights of Hand Pump Mistries.
32. The concept of minimum wage is inapplicable to the case of Hand Pump Mistries, who were basically expected to take up self-employment and were only given a subsidiary or ancillary means of sustenance by employing them to look after the repairs and maintenance of hand pumps entrusted to them. When it is so, the contracts could not by any stretch of imagination be characterised as unconscionable. Nor could they be called cases of forced labour as defined in Sanjit Ray v. State of Raj. (1983-I-LLJ-220). The principle enunciated in this case was misapplied to the cases of Hand Pump Mistries by the learned single Judge, if we say so with utmost respect to him. It was on an erroneous and false assumption that they were servants of the concerned Panchayat Samitis that the said ratio was applied. The ratio of Sanjit Ray’s case (supra) could be applicable only when Hand Pump Mis-tries were really employees of Panchayat Samitis . When we find that Hand Pump Mistries were neither employees nor workmen there could be no question of regularisation of their services.
34. Now, on the finding of facts arrived at by us, there can be no scope of application of principle of ‘equal pay for equal work’. The appellants cannot ask that their members should be paid salaries comparable to Hand Pump Mistries serving under the PHED or for that matter under any other Government Departments. As pointed out above, even the question of granting them minimum wage would not arise as they are neither workmen nor employees serving under respective Panchayat Samitis. Certain rulings were cited on these aspects of the matter but they are wholly inapplicable to the fact-situation we have found to be existing. Hence, we have not referred to them.
35. The contentions which have been raised before us, were also raised before the apex Court in Delhi Development Horticulture Employees’ Union v. Delhi Administration, Delhi and Ors. (1992-II-LLJ- 452). In that case the apex Court found that: (p. 453):
“During the 5th Five Year Plan, the Central Government had formulated various schemes to provide wage-employment to agricultural and landless labourers during lean periods. One such scheme was ‘Food for Work’. Under this scheme, employment was given to the poorer sections of the population in the rural areas partly for food and partly for cash payment. During the 6th Five Year Plan, the objective of the programme was enlarged to include alleviation of rural poverty by distribution of income in favour of the poor and the needy population in the rural areas by providing employment opportunities to them. With this view, a new programme called the National Rural Employment Programme was started in October 1980 replacing the ‘Food for Work’ programme. During the period of the same plan, another scheme called ‘Rural Landless Employment Guarantee Programme’ was launched on August 15, 1983 with the same objective of generating additional employment in the rural areas. Under these programmes, works in rural areas resulting in durable community assets, social forestry, village roads etc. were taken up. Pursuant to them, a scheme for plantation of trees was taken up at various sites in the rural areas of Delhi. The entire said work was done by providing daily wage-employment to rural workers including the present petitioners. The labour was employed at these sites depending upon their availability in rural areas and without reference to any Employment Exchange either in the Union Territory of Delhi or anywhere else. Since the Social Forestry Programme involved knowledge of plantation and agricultural practices, some unemployed agricultural graduates/diploma-holders who were ready to work on daily wage employment and had approached the District Rural Development Agency (‘DRDA’ for short) through various officials and non-officials were also given daily wage employment under the said programmes.”
The apex Court further found that (p. 454):
“To identify the educated workers from the uneducated and unskilled workers and to facilitate payment of the wages, the educated workers were called Supervisors/Work Assistants etc. and others were known as labourers. At no stage any regular posts were created under the DRDA either for the Supervisors etc. or for the labourers, as it was not possible to do so since the schemes were financed by the Government of India, and the DRDA was only the implementing machinery for the employment programme under the said schemes.”
Eventually the responsibility to implement the programme was transferred to village panchayats. The DRDA was no longer directly concerned with the Social Forestry Work or the employment under it or with the payment of wages to the workers which is exclusively left to village panchayats.
36. The petitioners in the aforesaid circumstances claimed regularisation of their services. Reliance was placed upon Articles 21, 32, and 41 of the Constitution of India. The apex Court negatived the contention of the petitioners and observed, (pp. 458-459)
“The above figures show that if the resources used for the Jawahar Rozgar Yojna were in their entirety to be used for providing full employment throughout the year, they would have given employment only to a small percentage of the population in need of income, the remaining vast majority being left with no income whatsoever. No fault could, therefore, be found with the limited object of the scheme given the limited resources at the disposal of the State. Those employed under the scheme, therefore, could not ask for more than what the scheme intended to give them. To get an employment under such scheme and to claim on the basis of the said employment, a right to regularisation, is to frustrate the scheme itself. No court can be a party to such exercise. It is wrong to approach the problems of those employed under such schemes with a view to providing them with full employment and guaranteeing equal pay for equal work. These concepts, in the context of such scheme are both unwarranted and misplaced. They will do more harm than good by depriving the many of the little income that they may get to keep them from starvation. They would benefit a few at the cost of the many starving poor for whom the schemes are meant. That would also force the State to wind up the existing schemes and forbid them from introducing the new ones, for want of resources. This is not to say that the problems of the unemployed deserve no consideration or sympathy. This is only to emphasise that even among the unemployed a distinction exists between those who live below and above the poverty line, those in need of partial and those in need of full employment, the educated and uneducated, the rural and urban unemployed etc.
Apart from the fact that the petitioners cannot be directed to be regularised for the reasons given above, we may take note of the pernicious consequences to which the direction for regularisation of workmen on the only ground that they have put in work for 240 or more days, has been leading. Although there is Employment Exchange Act which requires recruitment on the basis of registration in the Employment Exchange, it has become a common practice to ignore the Employment Exchange and the persons registered in the Employment Exchanges, and to employ and get employed directly those who are either not registered with the Employment Exchange or who though registered are lower in the long waiting list in the Employment Register. The courts can take judicial notice of the fact that such employment is sought and given directly for various illegal considerations including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant rules, and is continued for 240 or more days with a view to give the benefit of regularisation knowing the judicial trend that those who have completed 240 or more days are directed to be automatically regularised, A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the Employment Exchanges for years. Not all those who gain such back-door entry in the employment are in need of the particular jobs. Though already employed elsewhere, they join the jobs for better and secured prospects. That is why most of the cases which come to the courts are of employment in Government Departments, Public Undertakings or Agencies. Ultimately it is the people who bear the heavy burden of the surplus labour. The other equally injurious effect of indiscriminate regularisation has been that many of the agencies have stopped undertaking casual or temporary works though they are urgent and essential for fear that if those who are employed on such works are required to be continued for 240 or more days have to be absorbed as regular employees although the works are time-bound and there is no need for the workmen beyond the completion of the works undertaken. The public interest is thus jeopardised on both counts.”
In the present case, it is nobody’s case that Hand Pump Mistries were engaged through the agency of Employment Exchanges. In view of the TRYSEM Scheme, which was similar to Rural Landless Employment Guarantee Programme and the Jawahar Rozgar Yojna, there never arose relationship of master and servant between the Panchayat Samitis and the Hand Pump Mistries. In our opinion, the members of the appellant-Union more or less stand on the same footing as the petitioners in the case of Delhi Development Horticulture Employees’ Union (supra). In our opinion, the claim of the members of the appellant-Unions for regualrisa-tion cannot be acceded to.
37. Learned counsel for the appellants in the end submitted that the remuneration of Rs. 200/-per hand pump annually was fixed way back in 1985, when a rupee had some value as a rupee. Over the years, the prices have spiralled up and the remuneration fixed in 1985 has lost all meaning and relevance and this Court should direct the respondents to revise the remuneration. Learned Additional Advocate General also could not refute the justness of this demand. We can take judicial notice of the fact that over the years, cost of living including everything else, has gone up and the remuneration fixed in 1985 has altogether lost its worth, its meaning and relevance. However, this Court is not in a position to spell out, what the revised remuneration should be. Normally we would have left this matter to the discretion of the Government. However, we find that the writ petitions have been pending since 1990 and we are in the latter half of 1993. Therefore, we have chosen to adopt the course, that follows hereinafter. Hence, we direct the State Government to constitute a committee within two months under the chairmanship of Shri Dharamvir, a retired I.A.S. Officer of the State, to go into this question. Other members of the Committee would be (i) a nominee of the Finance Commissioner, not below the rank of a Special Secretary, (ii) a nominee of the Secretary to Government in the P.H.E.D., not below the rank of a Chief Engineer, (iii) a nominee of the Secretary to the Government in the Under Ground Water Department and (iv) Director, Panchayat Raj Department of the Government of Rajasthan. Director, Panchayat Raj Department will also be Secretary to this Committee. The Committee shall evolve a suitable principle upon which remuneration payable to Hand Pump Mistries should be fixed and revised periodically. In this connection, the Committee shall hear Unions of Hand Pump Mistries and their representatives and if need be, may record all such evidence as may be adduced in this behalf. The Committee shall evolve its own procedure in the matter, such as is consistent with principles of natural justice. The revision may be, inter alia, linked to the revision of the national price index. The Committe shall then fix the revised remuneration payable to Hand Pump Mistries w.e.f. April 1, 1990. The Committee shall complete this exercise, as far as possible, within a period of four months, from the date it is constituted. Thereafter, the respondents shall pay within next 3 months the remuneration payable to Hand Pump Mistries as awarded by the Committee including arrears, if any, worked out on the basis of remuneration payable w.e.f. April 1, 1990. (It may be noted that one of the two writ
petitions was filed in February, 1990 and it is this factor, which has induced us to fix this date.)
38. We may state that such revised remuneration shall be payable to all Hand Pump Mistries, engaged under all Panchayat Samitis and Director, Panchayat Raj Department, Government of Rajasthan shall ensure that this directive is complied with by each and every Panchayat Samiti. He shall charge Vikas Adhikaris throughout this State to ensure compliance of this order and the Hand Pump Mistries would not be put in a position that they or their Unions are driven to file fresh writ petitions.
39. The Chairman of the Committee Shri Dharamvir shall enjoy the rank of a Secretary to the Government of Rajasthan during the period he functions as Chairman and shall be entitled to salary, allowances and other amenities and facilities admissible to a Secretary to the Government of Rajasthan (minus the pension drawn by him). The Government shall provide him with suitable accommodation for holding his office and shall also provide him with secretarial, ministerial and Class IV assistance.
40. We dispose of the two appeals accordingly. In the circumstances of the case, the parties shall bear their own costs.
41. A copy of this judgment may be sent to the Chief Secretary, Government of Rajasthan, Jaipur by registered post A.D. for compliance.
N.K. Jain, J.
42. I have gone through the elaborate judgment under reference and fully agree with the reasoning and finding given by my learned Brother Hon’ble Mr. Justice R.S. Verma, J. But, so far as the direction issued in paras 37 to 39 to the Government to constitute a Committee for revising the remuneration and ultimately fixing the revised remuneration payable to the Hand Pump Mistries are concerned, with great respect I am not agreeable, for the reason that it is only the function of the Government to constitute a Committee for the purpose, if any representation is made to this effect, and farther, this point was not in issue specifically under reference. Under these circumstances, in my humble opinion, it is not proper to issue such directions to appoint such Committee. However, the petitioner will be free to move representation to this effect before the Government and the Government will consider the representation sympathetically looking to the present economic standards, as early as possible.