{"id":268098,"date":"1964-04-06T00:00:00","date_gmt":"1964-04-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/d-c-dewan-mohideen-sahib-and-sons-vs-the-industrial-tribunal-madras-on-6-april-1964-2"},"modified":"2019-03-24T02:52:50","modified_gmt":"2019-03-23T21:22:50","slug":"d-c-dewan-mohideen-sahib-and-sons-vs-the-industrial-tribunal-madras-on-6-april-1964-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/d-c-dewan-mohideen-sahib-and-sons-vs-the-industrial-tribunal-madras-on-6-april-1964-2","title":{"rendered":"D. C. Dewan Mohideen Sahib And Sons vs The Industrial Tribunal, Madras on 6 April, 1964"},"content":{"rendered":"
Supreme Court of India<\/div>\n
D. C. Dewan Mohideen Sahib And Sons vs The Industrial Tribunal, Madras on 6 April, 1964<\/div>\n
Equivalent citations: 1966 AIR 370, 1964 SCR (7) 646<\/div>\n
Author: K Wanchoo<\/div>\n
Bench: Wanchoo, K.N.<\/div>\n
           PETITIONER:\nD.   C. DEWAN MOHIDEEN SAHIB AND SONS\n\n\tVs.\n\nRESPONDENT:\nTHE INDUSTRIAL TRIBUNAL, MADRAS\n\nDATE OF JUDGMENT:\n06\/04\/1964\n\nBENCH:\nWANCHOO, K.N.\nBENCH:\nWANCHOO, K.N.\nGAJENDRAGADKAR, P.B. (CJ)\nGUPTA, K.C. DAS\n\nCITATION:\n 1966 AIR  370\t\t  1964 SCR  (7) 646\n CITATOR INFO :\n RF\t    1970 SC  66\t (10)\n E&D\t    1974 SC  37\t (14)\n RF\t    1974 SC1832\t (36,87)\n RF\t    1978 SC 481\t (3)\n E&D\t    1987 SC 447\t (9)\n RF\t    1992 SC 573\t (37)\n\n\nACT:\nIndustrial   Dispute--Employer\tand   Employee--Relationship\nDepends upon circumstances of each case.\n\n\n\nHEADNOTE:\nOn  a  reference of industrial disputes between\t the  appel-\nlants, the proprietors of bidi concerns, and their  workmen,\nthe appellants contended before the Industrial Tribunal that\nthe workers in question were not their workmen, but were the\nworkmen\t of independent contractors.  The Tribunal found  on\nthe basis of evidence led, that the modus operandi was\tthat\ncontractors took leaves and tobacco from the appellant\tand'\nemployed workmen for manufacturing bidis.  After bidis\twere\nmanufactured, the contractors took them back from the  work-\nmen and delivered them to the appellants.  The workmen\ttook\nthe  leaves home and cut them there; however the process  of\nactual rolling by filling the leaves with tobacco took place\nin what was called contractors' factories.  The\t contractors\nkept  no attendance register for the workmen, there  was  no\ncondition  for their coming and going at fixed:\t hours,\t nor\nwere  they bound to come for work every day; sometimes\tthey\ninformed  the  contractors if they wanted to be\t absent\t and\nsome  times  they did not.  The contractors said  that\tthey\ncould take no action if the workmen absented themselves even\nwithout leave.\tThe payment was made to the workmen at piece\nrates after the bidis were delivered to the appellants.\t The\nsystem\twas  that the appellant paid a certain sum  for\t the\nmanufactured  bidis, after deduct-ing therefrom the cost  of\ntobacco and the leaves already fixed, to the contractors who\nin  their turn paid to the workmen, who rolled bidis,  their\nwages.\tWhatever remained after paying the workmen would  be\ncontractors' commission for the work done, The Tribunal held\nthat there was no sale either of the raw materials or of the\nfinished  products, for, according to the agreement, if\t the\nbidis were not rolled, raw materials had to, he returned  to\nthe  appellants\t and  the contractors  were  forbidden\tfrom\nselling\t the  raw  materials to anyone\telse.\tFurther\t the\nmanufactured bidis could only be delivered to the appellants\nwho  supplied  the  raw materials.   Further  price  of\t raw\nmaterials  and\tfinished products fixed\t by  the  appellants\nalways\tremained the same and never fluctuated according  to\nmarket\trate.  The Tribunal concluded that the bidi  workers\nwere  the  employees of the appellants and not\tof  the\t so-\ncalled\tcontractors  who were themselves nothing  more\tthen\nemployees or branch managers of the appellants.\t  Thereupon,\nthe appellants filed writ petitions in the High Court, which\nheld  that neither the bidi roller nor the intermediary\t was\nan   employee  of  the\tappellants  and\t allowed  the\twrit\npetitions.   On\t appeal\t by the\t workmen  the  appeal  court\nallowed the appeal and restored the order and conclusion  of\nthe Tribunal.  On appeal by certi-ficate:\nHeld:\t  On the facts found the appeal court 'was right  in\nholding that the conclusion reached by the Tribunal that the\nintermediaries were merely branch managers appointed' by the\n647\nmanagement  and the relationship of employers and  employees\nsubsisted  between the appellants and the bidi\trollers\t was\ncorrect.\nDharangadhara  Chemical Works Ltd., v. State of\t Saurashtra<\/a>,\n[1957]\tS.C.R.\t152, Shri Chintsman Rao v. State  of  Madhya\nPradesh<\/a>,  [1958]  S.C.R. 1340, Shri  Birdhichand  Sharma  v.\nFirst  Civil  Judge  Nagpur<\/a>, [1961] 3  S.C.R.  161,  Shankar\nBalaji\tWaje v. State of Maharashtra<\/a>, [1962] Supp. 1  S.C.R.\n249 and Bikusu Yamasa Kashtriya (P) Ltd. v. Union of  India<\/a>,\n[1964] 1 S.C.R. 860, discussed.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 721 and 791
\nof 1963.  Appeals by certificate and special leave from\t the
\njudgment  and  order dated February 16, 1962 of\t the  Madras
\nHigh  Court  in\t Writ  Appeals\tNos.  16  and  15  ,of\t1959
\nrespectively.\n<\/p>\n
V.   P.\t Ran an and R. Ganapathy Iyer, for the appellant  in
\nC.A. No. 721 of 1963).\n<\/p>\n
G.   B.\t Pai,  J. B. Dadachanji, 0. C. Mathur  and  Ravinder
\nNarain, for the appellant (in C.A. No. 791\/63).
\nT.   S. Venkataraman, for the respondent No. 2 (in both\t the
\nappeals).\n<\/p>\n
April 6, 1964.\tThe Judgment of the Court was delivered by
\nWANCHOO,  J.-These  two\t appeals by special  leave  raise  a
\ncommon\tquestion and will be decided together.\t The  appel-
\nlants are proprietors of two bidi concerns.  A reference was
\nmade  by  the Government of Madras of  dispute\tbetween\t the
\nappellants and their workmen with respect to three  matters.
\nIn  the present appeals however we are concerned  with\tonly
\none  matter, namely, whether reduction of annas two  in\t the
\nwages of workers employed under the agents of the appellants
\nwas justified and to what relief the workers were entitled.
\nThe  contention\t of the appellants before the  tribunal\t was
\nthat  the  workers in question were not\t their\tworkmen\t and
\ntherefore there being no relation of employers and employees
\nbetween\t them and the workmen, the reference itself was\t in-
\ncompetent  and there could be no industrial dispute  between
\nthem  and the workmen concerned, their case being  that\t the
\nworkmen\t concerned  were  the workmen  of  independent\tcon-
\ntractors.  It was found by the tribunal on the basis of evi-
\ndence led before it by both parties that the modus  operandi
\nwith respect to manufacture of bidis in the appellants’ con-
\ncerns was that contractors took leaves and tobacco from\t the
\nappellants  and\t employed workmen for  manufacturing  bidis.
\nAfter  bidis  were manufactured, the contractors  took\tthem
\nback from the workmen and delivered them to the appellants.\n<\/p>\n
648<\/span><\/p>\n
The workmen took the leaves home and cut them there; however
\nthe  process  of actual rolling by filling the\tleaves\twith
\ntobacco\t  took\tplace  in  what\t were  called\tcontractors’
\nfactories.  The contractors kept no attendance register\t for
\nthe  workmen.  There was also no condition that they  should
\ncome  and go at fixed hours.  Nor were the workmen bound  to
\ncome for work every day; sometimes the workmen informed\t the
\ncontractors  if they wanted to be absent and sometimes\tthey
\ndid not.  The contractors however said that they could\ttake
\nno action if the workmen absented them,-selves even  without
\nleave.\tThe payment was made to the workmen at piece  rates.
\nAfter the bidis were delivered to the appellants payment was
\nmade therefor.\tThe system was that the appellants fixed the
\nprice of tobacco and leaves supplied to the contractors\t who
\ntook  them to the places where work of rolling was done\t and
\ngave them to the workmen.  Next day, the manufactured  bidis
\nwere  taken by the contractors to the appellants who paid  a
\ncertain\t price\tfor the manufactured bidis  after  deducting
\ntherefrom  the\tcost of the tobacco and the  leaves  already
\nfixed.\tThe balance was paid to the contractors who in their
\nturn  paid  to the workmen, who rolled bidis,  their  wages.
\nWhatever  remained  after paying the workmen  would  be\t the
\ncontractors’  commission for the work done.  It may also  be
\nmentioned  that\t there were written agreements on  the\tsame
\npattern\t between the appellants and the contractors in\tthat
\nbehalf,\t though no ,such agreement has been printed  in\t the
\npaper books.\n<\/p>\n
as  if\tthere  was  a sale of  leaves  and  tobacco  by\t the
\nappellants  to contractors and after the bidis\twere  rolled
\nthere  was  a resale of the bidis to the appellants  by\t the
\ncontractors.   The; tribunal however held that it was  clear
\nthat there was no sale either of the raw materials or of the
\nfinished products, for, according to the agreement, if bidis
\nwere  not  rolled, raw materials had to be returned  to\t the
\nappellants  and the contractors were forbidden from  selling
\nthe raw materials to any one else.  Further after the  bidis
\nwere  manufactured  they  could only  be  delivered  to\t the
\nappellants  who\t supplied raw materials and not to  any\t one
\nelse.\t Further  price\t of  raw  materials  fixed  by\t the
\nappellant,  as\twell as the price of the  finished  products
\nalways\tremained the same and never fluctuated according  to
\nmarket\trates.\tThe tribunal therefore concluded that  there
\nwas  no\t sale  of raw materials followed by  resale  of\t the
\nfinished  products and this system was evolved in  order  to
\navoid  regulations  under the Factories Act<\/a>.   The  tribunal
\nalso found that the contractors generally got only annas two
\nper thousand bidis for their trouble.  The tribunal
\n649<\/span>
\nalso  referred\tto  a  clause  in  the\tagreement  that\t the
\nappellants would have no concern with the workers who rolled
\nbidis  for whom only the contractors would  be\tresponsible.
\nBut   it  was  of  the\tview  that  these  provisiors\twere
\ndeliberately  put  into the agreement by the  appellants  to
\nescape such statutory duties and obligations, as may lie  on
\nthem  under the Factories Act<\/a> or under the Madras Shops\t and
\nEstablishments\tAct<\/a>.   Finally\ton a review  of\t the  entire
\nevidence, the tribunal found that this system of manufacture
\nof  bidis  through  the so-called  contractors\twas  a\tmere
\ncamouflage  devised  by the appellants.\t The  tribunal\talso
\nfound that the contractors were indigent persons and  served
\nno  particular duties and discharged no\t special  functions.
\nRaw  materials\twere  supplied\tby  the\t appellants  to\t  be
\nmanufactured  into finished products by the workmen and\t the
\ncontractors  had  no other function except to take  the\t raw
\nmaterials  to  the  workmen  and  gather  the\tmanufactured
\nmaterial.  It therefore held that the so-called\t contractors
\nwere not independent contractors and were mere employees  or
\nwere  functioning as branch managers of\t various  factories,
\ntheir remuneration being dependent upon the work turned out.
\nIt  therefore came to the conclusion that the  bidi  workers
\nwere  the  employees of the appellants and not\tof  the\t so-
\ncalled\tcontractors  who were themselves nothing  more\tthan
\nemployees or branch managers of the appellants.\t It  finally
\nheld  that reduction in the wages by two annas per  thousand
\nbidis was not justified and the workmen were entitled to the
\nold  rates.  It therefore ordered the reduction in wages  to
\nbe restored.\n<\/p>\n
Thereupon  the\tappellants filed two writ petitions  in\t the
\nHigh  Court,  their contention being that the  tribunal\t was
\nwrong  in holding that the contractors and the\tworkmen\t em-
\nployed\tby  the contractors were the workmen of\t the  appel-
\nlants.\tIt seems that a sample agreement was produced before
\nthe High Court, which provided inter alia for the  following
\nterms: –\n<\/p>\n
\t      (1)   That  the proprietor should\t supply\t the
\n\t      tobacco and the bidi leaves;\n<\/p><\/blockquote>\n
\t      (2)   that  the  intermediary  should   engage
\n\t      premises\tof his own and obtain the  requisite
\n\t      license  to  carry on the work of\t having\t the
\n\t      bidis rolled there;\n<\/p><\/blockquote>\n
\t      (3)   that  at no time should more  than\tnine
\n\t      bidi  rollers  work in the  premises  of\tthat
\n\t      intermediary;\n<\/p><\/blockquote>\n
\t      (4)   that  the intermediary should  meet\t all
\n\t      the  incidental charges for rolling the  bidis
\n\t      including\t  the\tcost  of  thread   and\t the
\n\t      remuneration paid to the bidi rollers;\n<\/p><\/blockquote>\n
\t      650<\/span><\/p>\n
\t      (5)   that  for  every  unit  of\t1,000  bidis
\n\t      rolled  and delivered by the  intermediary  to
\n\t      the  proprietor,\tthe latter  should  pay\t the
\n\t      stipulated amount, after deducting the cost of
\n\t      the  tobacco and the bidi leaves\tsupplied  by
\n\t      the proprietor;\n<\/p><\/blockquote>\n
\t      (6)   that  the intermediary should not  enter
\n\t      into   similar  engagement  with\t any   other
\n\t      industrial concern;,
\n\t      (7)   that the price of the raw materials\t and
\n\t      price to be paid for every unit of 1,000 bidis
\n\t      rolled  and delivered were to be fixed at\t the
\n\t      discretion of the proprietor.\n<\/p><\/blockquote>\n
Besides these conditions, the contract also provided that it
\nwas   liable  to  termination  on  breach  of  any  of\t the
\nconditions, and that the proprietors had no connection\twith
\nand that they assumed no responsibility for the bidi workers
\nwho had to look to the intermediary for what was payable  to
\nthem for rolling the bidis.\n<\/p>\n
The  learned  Single Judge on a review of the terms  of\t the
\ncontract  and the evidence on record held that\tneither\t the
\nbidi  roller  nor the intermediary was an  employee  of\t the
\nappellants.   In  consequence there could be  no  industrial
\ndispute\t within\t the meaning of s. 2<\/a> (k) of  the  Industrial
\nDisputes  Act<\/a> between the appellants and the  bidi  rollers.
\nThe  petitions were therefore allowed and the award  of\t the
\ntribunal was set aside.\n<\/p>\n
Thereupon there were two appeals by the workmen.  The appeal
\ncourt  on a consideration of the terms of the  contract\t and
\nthe findings of the tribunal came to the conclusion that the
\nso-called  contractors were really the agents of the  appel-
\nlants  and  that there was no utter lack of control  by\t the
\nappellants on the bidi workers who actually rolled the bidi.
\nThe appeal court also found that the intermediaries were im-
\npecunious and according to the evidence could hardly  afford
\nto have factories of their own.\t It also found that the evi-
\ndence  revealed\t that the appellants took the real  hand  in
\nsettling  all  matters\trelating to  the  workers,  and\t the
\nintermediary was a mere cipher and the real control over the
\nworkers\t was  that  of the  appellants.\t  The  appeal  court
\ntherefore  held that the appellants were the real  employers
\nof the workmen and the so-called intermediaries or so-called
\nindependent contractors who were in some cases ex-employees,
\nwere no more than agents of the appellants.  In this view of
\nthe matter the appeal court held that the conclusion reached
\nby  the tribunal that the intermediaries were merely  branch
\nmanagers
\n651<\/span>
\nappointed by the management and the relationship of employer
\nand  employees\tsubsisted between the  appellants  and\tbidi
\nrollers\t was correct.  The appeals were\t therefore  allowed,
\nand the order of the tribunal was restored.  The  appellants
\nhave  come  before us on certificates granted  by  the\tHigh
\nCourt.\n<\/p>\n
The  question  whether relationship of\tmaster\tand  servant
\nsubsists  between  an  employer and employee  has  been\t the
\nsubject of consideration by this Court in a number of cases.
\nIn   Dharangadhara  Chemical  Works  Limited  v.  State\t  of
\nSaurashtra<\/a>(1) it was held that the question whether a person
\nwas  a workman depended on whether he had been\temployed  by
\nthe  employer and the relationship of employer and  employee
\nor  master and servant subsisted between them.\tIt was\twell
\nsettled that a prima facie test of such relationship was the
\nexistence of the right in the employer not merely to  direct
\nwhat  work was to be done but also to control the manner  in
\nwhich  it was to be done, the nature or extent of such\tcon-
\ntrol  varying in different industries and being by its\tvery
\nnature\tincapable of being precisely defined.\tThe  correct
\napproach therefore was to consider whether, having regard to
\nthe nature of the work there was due control and supervision
\nby  the\t employer.  It was further held\t that  the  question
\nwhether the relation between the parties was one as  between
\nan  employer and employee or master and servant was  a\tpure
\nquestion  of fact, depending upon the circumstances of\teach
\ncase.  In that case, the dispute was whether certain agarias
\nwho were a class of professional labourers, were workmen  or
\nindependent contractors.  The facts found in that case\twere
\nthat  the  agarias worked themselves with members  of  their
\nfamilies  and were free to engage extra labour on their\t own
\naccount.  No hours of work were prescribed.  No muster rolls
\nwere  maintained; nor were working hours controlled  by\t the
\nmaster.\t  There were no rules as regards leave\tor  holidays
\nand  the  agarias were free to go out of the  factory  after
\nmaking\tarrangements for the manufacture of salt.  Even\t so,
\nthough certain features which were usually to be found in  a
\ncontract  of service were absent, the tribunal held that  on
\nthe whole the status of agarias was that of workmen and\t not
\nthat of independent contractors, particularly as supervision
\nand  control  was exercised by the master extending  to\t all
\nstages\t,of manufacture from beginning to end.\t This  Court
\nupheld\tthe  view of the tribunal on a review of  the  facts
\nfound in that case.\n<\/p>\n
The  next  case\t to which reference has been  made  is\tShri
\nChintaman Rao v. The State of Madhya Pradesh<\/a>(2).
\n(1) [1957] S.C.R. 152.\n<\/p>\n
(2) [1958] S.C.R. 1340.\n<\/p>\n
652<\/span><\/p>\n
That  was a case of bidi manufacture, and the question\tthat
\narose for determination was whether certain persons known as
\nsattedars  and\tthose who worked under\tthe  sattedars\twere
\nworkmen\t or not.  It was found that the sattedars  undertook
\nto supply bidis by manufacturing them in their own factories
\nor by entrusting the work to third parties at a price to  be
\npaid by the management after delivery and approval.   Refer-
\nence  was made to the principles laid down in  Dharangadhara
\nChemical  Works Limited’s case(1) to determine\twhether\t the
\npersons employed were workmen or not, and it was found\tthat
\nthe  sattedars\twere not under the control  of\tthe  factory
\nmanagement  and\t could manufacture the bidis  wherever\tthey
\npleased.   It  was  therefore held  that  the  coolies\twere
\nneither\t employed  by  the management directly\tnor  by\t the
\nmanagement through the sattedars. A special feature of\tthat
\ncase was that none of the workmen under the sattedars worked
\nin factories.  The bidis could be manufactured anywhere\t and
\nthere was no obligation on the sattedars to work in the fac-
\ntory of the management.\t The sattedars were even entitled to
\ndistribute  tobacco to the workers for making bidis  in\t the
\nworkers’  respective homes.  It was in\tthese  circumstances
\nthat  this  Court held that the sattedars  were\t independent
\ncontractors  and the workers employed by them were  not\t the
\nworkers of the management.\n<\/p>\n
Then we come to the case of Shri Birdhichand Sharma v. First
\nCivil  Judge  Nagpur<\/a>(2).   That\t was also  a  case  of\tbidi
\nmanufacture.   The  facts found were that  the\tworkmen\t who
\nrolled the bidis had to work at the factory and were not  at
\nliberty to work at their houses; their attendance was  noted
\nin  the\t factory  and they had to work\twithin\tthe  factory
\nhours,\tthough\tthey were not bound to work for\t the  entire
\nperiod\tand could come and go away when they liked;  but  if
\nthey  came after midday they were not supplied with  tobacco
\nand thus not allowed to work even though the factory  closed
\nat  7  p.m. Further they could be removed  from\t service  if
\nabsent\tfor  eight days.  Payment- was made on\tpiece  rates
\naccording  to the amount of work done, and the\tbidis  which
\ndid not come upto the proper standard could be rejected.  On
\nthese facts it was held that the workers were workmen  under
\nthe  Factories\tAct<\/a> and were  not  independent\tcontractors.
\nThis Court pointed out that the nature and extent of control
\nvaried\tin  different industries and could not by  its\tvery
\nnature\tbe precisely defined.  When the operation was  of  a
\nsimple nature and did not require supervision all the  time,
\ncontrol\t could be exercised at the end of day by the  method
\nof rejecting bidis which did not come upto proper standard,
\n(1)[1957] S.C.R. 152.\n<\/p>\n
(2)[1961] 3 S.C.R. 161.\n<\/p>\n
653<\/span><\/p>\n
such supervision by the employer was sufficient to make\t the
\nworkers,  employees  of\t the employer  and  not\t independent
\ncontractors.   The nature of the control required to make  a
\nperson\ta servant of the master would depend upon the  facts
\nof each case.\n<\/p>\n
The  next  case\t is Shankar Balaji Waje v.  State  of  Maha-
\nrashtra(1).   That was also a bidi manufacturing  case.\t  On
\nthe  facts of that case the majority held that\tdecision  in
\nShri Birdhichand Shama’s case(2) was distinguishable and the
\nappellant  was not a worker within the meaning of  the\tFac-
\ntories\tAct.   It may be noted however that that  case\talso
\nfollowed  the  line  of decisions of this  Court  since\t the
\ndecision in the case Dharangadhara Chemical Works Limited(3)
\nas  to the criteria for coming to the conclusion  whether  a
\nperson was an employee or an independent contractor.
\nThe  last case to which reference has been made is  again  a
\nbidi  manufacturing case, namely, Bhikusa  Yamasa  Kashtriya
\n(P)  Limited  v. Union of India<\/a>(4).  In that case  the\tmain
\nquestion raised was about the constitutionality of s. 85<\/a>  of
\nthe  Factories Act and the notification issued by the  State
\nof  Maharashtra thereunder.  The Constitutionality of s.  85<\/a>
\nand  the  notification\tmade  thereunder  was  upheld.\t The
\nquestion  there involved was about the application of s.  79<\/a>
\nof  the,  Factories  Act<\/a> with reference\t to  leave  and\t the
\ndifficulty  felt in Shankar Balaji Waje’s case(1) as to\t how
\nleave could be calculated in the circumstances was explained
\nwith reference% to the decision in Shri Birdhichand Sharma’s
\ncase(2).\n<\/p>\n
It is in the light of these decisions that we have to decide
\nwhether the workmen who work under the so-called independent
\ncontractors  in\t these cases are the workmen of\t the  appel-
\nlants.\tIt has been found by the tribunal and this view\t has
\nbeen   confirmed   by  the  appeal  court   that   so-called
\nindependent contractors were mere agents or branch  managers
\nof  the appellants.  We see no reason to disagree with\tthis
\nview taken by the tribunal and confirmed by the appeal court
\non  the facts of these cases.  We are not unmindful in\tthis
\nconnection  of\tthe view taken by the learned  Single  Judge
\nwhen he held that on the agreements and the facts found\t the
\nso-called  intermediaries were independent contractors.\t  We
\nare  however  of opinion that the view taken by\t the  appeal
\ncourt  in this connection is the right one.  As\t the  appeal
\ncourt has rightly pointed out the
\n(1)[1957] S.C.R. 152.\n<\/p>\n
(2)  [1961] 3 S.C.R. 161.\n<\/p>\n
(3)  (1962) Supp 1.  I S.C.R. 249.\n<\/p>\n
(4) [1964] 1 S.C.R. 860.\n<\/p>\n
654<\/span><\/p>\n
so-called independent contractors were indigent persons\t who
\nwere  in all respects under the control of  the\t appellants.
\nThere  is in our opinion little doubt that this\t system\t has
\nbeen  evolved to avoid regulations under the Factories\tAct<\/a>.
\nFurther\t there\tis  also no doubt  from\t whatever  terms  of
\nagreement  are\tavailable on the record that  the  so-called
\nindependent contractors have really no independence at\tall.
\nAs  the\t appeal court has pointed out they  are\t impecunious
\npersons\t who could hardly afford to have factories of  their
\nown.  Some of them are even ex-employees of the\t appellants.
\nThe contract is practically one sided in that the proprietor
\ncan  at his choice supply the raw materials or refuse to  do
\nso, the so-called contractor having no right to insist\tupon
\nthe   supply  of  raw  materials  to  him.   The   so-called
\nindependent contractor is even bound not to employ more than
\nnine  persons  in his so-called factory.  The  sale  of\t raw
\nmaterials to the so-called independent contractor and resale
\nby him of the manufactured bidis is also a mere\t camouflage,
\nthe  nature of which is apparent from the fact that the\t so-
\ncalled\tcontractor never paid for the materials.   All\tthat
\nhappens is that when the manufactured bidis are delivered by
\nhim to the appellants, amounts due for the socalled sale  of
\nraw materials is deducted from the so-called price fixed for
\nthe  bidis.   In effect all that happened is  that  the\t so-
\ncalled\tindependent contractor is supplied with tobacco\t and
\nleaves\tand  is paid certain amount-, for the wages  of\t the
\nworkers employed and for his own trouble.  We can  therefore
\nsee  no difficulty in holding that the so-called  contractor
\nis merely an employee or an agent of the appellants as\theld
\nby the appeal court and as such employee or agent he employs
\nworkers to roll bidis on behalf of the appellants.  The work
\nis  distributed between a number of :-so-called\t independent
\ncontractors  who  are  told not to  employ  more  than\tnine
\npersons\t at  one  place\t to  avoid  regulations\t under\t the
\nFactories  Act<\/a>.\t  We  are not however  concerned  with\tthat
\naspect of the matter in the present appeals.  But there\t can
\nbe  no\tdoubt  that the workers employed  by  the  so-called
\ncontractors are really the workmen of the appellants who are
\nemployed  through their agents or servants whom they  choose
\nto call independent contractors.\n<\/p>\n
It  is\thowever urged that there is no control by  even\t the
\nagent  over the bidi workers.  Now the evidence\t shows\tthat
\nthe  bidi workers are permitted to take the leaves homes  in
\norder to cut them so that they might be in proper shape\t and
\nsize  for next day’s work; but the real work of filling\t the
\nleaves\twith  tobacco (i.e. rolling the bidis) can  only  be
\ndone  in the so-called factory of the so-called\t independent
\ncontractor.   No tobacco is ever given to the workers to  be
\ntaken  home to be rolled into bidis as and when they  liked.
\nThey have to
\n655<\/span>
\nattend\tthe so-called factory of the  so-called\t independent
\ncontractor  to\tdo the real work of rolling bidis.   As\t was
\npointed\t out  by  this Court in\t Shri  Birdhichand  Sharma’s
\ncase(1) the work is of such a simple nature that supervision
\nall  the  time\tis not required.   In  Birdhichand  Sharma’s
\ncase(1)\t supervision was made through a system of  rejecting
\nthe  defective\tbidis, at the end of day.   In\tthe  present
\ncases we have not got the full terms of the agreement and it
\nis  therefore not possible to say that there was no kind  of
\nsupervision  or\t control over the workers and that  the\t so-
\ncalled\tindependent contractors had to accept all  kinds  of
\nbidis  whether\tmade upto standard ‘or not.   It  is  hardly
\nlikely that the so-called independent contractor will accept
\nbidis  which are not upto the standard; for that is  usually
\nthe system which prevails; in this trade as wilt be apparent
\nfrom the facts of the many bidi manufacturing cases to which
\nwe have referred.  We are therefore not prepared to hold  in
\nthe absence of any evidence one way or the other that  there
\nis  no\tsupervision  whatsoever\t of the\t work  done  by\t the
\nworkers.   In the circumstances we are of opinion  that\t the
\nrelationship  of master and servant between  the  appellants
\nand  the  workmen  employed by\tthe  ;so-called\t independent
\ncontractors  is\t established.\tAs  the\t appeal\t court\thas’
\npointed out whenever there was a dispute in connection\twith
\nthe  manufacture of bidis the workers looked to\t the  appel-
\nlants  for redress.  In one of the cases the manager of\t one
\nof  the appellants sent a letter to the labour officer\tthat
\nthe  factory  was  agreeable to increase the  wages  of\t the
\nworkers from, Rs. 1\/14\/ – to Rs. 2\/- per thousand bidis.  In
\nthe  other case also a similar letter was addressed  showing
\nthat whenever there was increase or decrease in wages of the
\nworkers\t  who,\t work  under   the   so-called\t independent
\ncontractors  the real decision was taken by the\t appellants.
\nThis  conduct  on  the part of\tthe  appellants\t is  clearly
\ninconsistent with their plea that the workers are not  their
\nemployees and there is no privity between them and the\tsaid
\nworkers.   We  are therefore of opinion that  on  the  facts
\nfound  in these cases the appeal court was right in  holding
\nthat  the  conclusion  reached\tby  the\t tribunal  that\t the
\nintermediaries were merely branch managers appointed by\t the
\nmanagement  and the relationship of employers and  employees
\nsubsisted  between  the appellants and the bidi\t rollers  is
\ncorrect.   In  this  view the appeals fail  and\t are  hereby
\ndismissed with costs-one set of hearing costs.
\nAppeal dismissed
\n(1)[1961] 3 S.C.R. 161.\n<\/p>\n
656<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India D. C. Dewan Mohideen Sahib And Sons vs The Industrial Tribunal, Madras on 6 April, 1964 Equivalent citations: 1966 AIR 370, 1964 SCR (7) 646 Author: K Wanchoo Bench: Wanchoo, K.N. PETITIONER: D. C. DEWAN MOHIDEEN SAHIB AND SONS Vs. RESPONDENT: THE INDUSTRIAL TRIBUNAL, MADRAS DATE OF JUDGMENT: 06\/04\/1964 BENCH: WANCHOO, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-268098","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nD. C. 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