{"id":83202,"date":"1961-10-27T00:00:00","date_gmt":"1961-10-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shankar-balaji-waje-vs-state-of-maharashtra-on-27-october-1961"},"modified":"2017-08-11T19:45:19","modified_gmt":"2017-08-11T14:15:19","slug":"shankar-balaji-waje-vs-state-of-maharashtra-on-27-october-1961","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shankar-balaji-waje-vs-state-of-maharashtra-on-27-october-1961","title":{"rendered":"Shankar Balaji Waje vs State Of Maharashtra on 27 October, 1961"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Shankar Balaji Waje vs State Of Maharashtra on 27 October, 1961<\/div>\n
Equivalent citations: 1962 AIR 517, \t\t 1962 SCR Supl. (1) 249<\/div>\n
Author: R Dayal<\/div>\n
Bench: Dayal, Raghubar<\/div>\n
           PETITIONER:\nSHANKAR BALAJI WAJE\n\n\tVs.\n\nRESPONDENT:\nSTATE OF MAHARASHTRA.\n\nDATE OF JUDGMENT:\n27\/10\/1961\n\nBENCH:\nDAYAL, RAGHUBAR\nBENCH:\nDAYAL, RAGHUBAR\nKAPUR, J.L.\nSUBBARAO, K.\n\nCITATION:\n 1962 AIR  517\t\t  1962 SCR  Supl. (1) 249\n CITATOR INFO :\n E\t    1963 SC1591\t (1,5,13)\n R\t    1966 SC 370\t (10,11)\n RF\t    1970 SC  66\t (10)\n E\t    1974 SC  37\t (15)\n RF\t    1974 SC1832\t (62,65,68,88)\n E\t    1987 SC 447\t (9)\n\n\nACT:\n     Factory-Worker\t    employed-Definition-No\ncontract of  service  between  owner  and  labour-\nLabourer free to attend and go any time-If worker-\nFactories Act,\t1948 (63  of 1948),ss.\t2(1),  79,\n79(11), 80,90, 92.\n\n\n\nHEADNOTE:\n     The appellant  was the  owner  of\ta  factory\nmanufacturing bidis  and one  P along  with  other\nlabourers used\tto roll\t bidis in the factory with\ntobacco and leaves supplied to him by the factory.\nThe following were established facts:-\n\t  (1) There  was no  contract  of  service\nbetween the  appellant and  P.(2) He was not bound\nto and\tthe factory  for rolling  biding  for  any\nfixed hours  or period;\t he was\t free to go to the\nfactory at any time during working hours and leave\nthe factory  at any time he liked. (3) He could be\nabsent from  the work any day he liked and for ten\ndays without  even informing the appellant. He had\nto take\t the permission of the appellant if he was\nto be  absent for  more than  I O days. (4) He was\nnot bound  to roll  the bidies\tat the factory. He\ncould do  so at\t home with  the permission  of the\nappellant for  taking home the tobacco supplied to\nhim. (5)  There was  no actual\tsupervision of the\nwork done  by him  in the factory and at the close\nof the\tday rolled  bidis were\tdelivered  to  the\nappellant. Bidis  not  up  to  the  standard  were\nrejected. (6)  He was  paid at\tfixed rates on the\nquantity of  bidis turned  out and  there  was\tno\nstipulating for\t turning out  any minimum quantity\nof bidis. The Inspector of Factories found that he\nwas not\t paid the wages for 4 days' leave which he\nhad earned  after  having  worked  for\ta  certain\nperiod. The  appellant\twas  fined  Rs.\t 101-  for\ncontravening the  provisions of\t s. 79(11)  of the\nFactories  Act.\t The  questions\t which\tarose  for\ndecision were  whether P  was a\t worker within the\nmeaning of  that  expression  under  the  Act  and\nwhether he  was entitled  to any leave wages under\ns. 80 of the Act.\n^\n     Held (per\tKapur and  Raghubar  Dayal,  JJ.),\nthat the  decision of this Court in Birdhi Chand's\nCase was distinguishable on facts and could not be\napplicable to the facts of the present case.\n     The  appellant   exercised\t no   control  and\nsupervision over  P. He\t was not  a worker  as the\nthree criteria\tand conditions\tlaid down  by this\nCourt in Chintaman Rao's\n250\ncase  for   constituting  him  as  such\t were  not\nfulfilled in the present case.\n     Biardhi  Chand  Sharma  v.\t The  First  Civil\nJudge,\t Nagpur<\/a>\t  [1961]   3   S.   C.\t R.   161,\ndistinguished.\n     Chintaman Rao v. The State of Madhya Pradesh,\n[1958] S.C. R. 1340, applied.\n     Whether   the   appellant\t contravened   the\nprovisions of  sub-.(1) of  s. 79  depended on the\nproper construction  of ss.  79 and 80 of the Act.\nWith the  terms of  the work  as they  were in the\npresent\t case\tthere  could   be  no\tbasis  for\ncalculating the\t daily\taverage\t of  the  worker's\n\"total\tfull   time  earnings\"\t which\tmeans  the\nearnings he earns in a day by working full time on\nthat day,  the full  time to be in accordance with\nthe period  of time  given in the notice displayed\nin the factory for a particular day and. therefore\nthe wages  to be  paid for  the leave period could\nnot be calculated nor the number of days for which\nleave with wages could be allowed be calculated in\nsuch a case. The conviction of the appellant under\ns. 92 read with s. 79(1) of the Act was wrong.\n     Per Subba\tRao, J.,  dissenting,-The question\nraised in  the appeal  was directly covered by the\njudgment of  this Court\t in Birdhi,  Chand  Sharma\ncase.\n     It could  not be  said that the appellant had\nno  right  of  supervision  or\tcontrol\t over  the\nlabourers ill  the factory or did not supervise to\nthe extent required having regard to the nature of\nthe work done in the factory.\n     Under s.  2(1) of\tthe Act\t \"worker\" meant\t a\nperson employed,  directly    through  any  agency\nwhether for  wages or  not  in\tany  manufacturing\nprocess.  All\tthe  ingredients   of\tthe   word\n\"employed\" as laid down by this court were present\nin this\t case and  therefore  the  labourers  were\nworkers within the meaning of s. 2(1) of the Act.\n     Birdhi Chand  Sharma v.  First  Civil  Judge,\nNagpur.<\/a> [1961]\t3 S.  C. R. 161, Chaintaman Rao v.\nState  of   M.P.[1958]\t\t S.  C.\t R.  1340,\nDharangadhara\tChemical   Works   v.\tState\tof\nSaurashtra,<\/a> [1957]  S. C.  R. 152, State of Kerala\nv.  V.\t M.  Patel,  and  palaiappa  v.\t Court\tof\nAdditional First  Class Magistrate,  Kulitalai\tI.\nL. R. 1958 Mad. 999, considered.\n     For  the  purpose\tof  calculation\t of  wages\nduring the leave period under s. 80, the full time\nearnings for  a day  could be  taken to\t mean  the\namount earned  by a  worker for the daily hours of\nwork fixed  for a factory. In the instant case the\nworkers were entitled to work throughout the fixed\nworking hours  of the  factors though  they  could\nleave the  factory at  any time during those hours\nand hey\n251\nwere entitled  to be paid their wages on the basis\nof the\tnumber of  the bidis  rolled by\t them. The\nwages earned  by  them during the working hours of\nthe factory  would be  no their\t full time earning\nfor the\t day.  There  could,  therefore,    be\tno\ndifficulty in ascertaining the rate under s. 80 of\ntheir wages  during, the  leave period,\t for under\nthat section  the workers would have to be paid at\na rate\tequal to  the daily average of their total\nfull time earnings for the days they worked.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CRIMINAL  APPELLATE   JURISDICTION:  Criminal
\nAppeal No. 63 of 1960.\n<\/p>\n
     Appeal by special leave from the judgment and
\norder dated  October 9,\t 1959, of  the Bombay High
\nCourt in Criminal Reference No. 94 of 1959.\n<\/p>\n
     A. V.  Viswanatha Sastri,\tS. N.  Andley  and
\nRameshwar Nath, for the appellant.\n<\/p>\n
     R. Ganapathy  Iyer\t and  R.  H.  Dhebar,  for
\nrespondent.\n<\/p>\n
     1961. October  27. The  Judgment of Kanpur an
\nDayal, JJ.,  was delivered  by Dayal J. Subba Rao,
\nJ., delivered a separate Judgment.\n<\/p>\n
     RAGHUBAR DAYAL,  J.-This appeal,  by  special
\nleave, is  directed against  the order of the High
\nCourt of  Bombay, rejecting, the reference made by
\nthe  additional\t  Sessions   Judge,   Nasik,   and
\nconfirming the\tconviction of  the appellant under
\ns. 92  of the  factories Act,  1948 (Act  LXIII of
\n1948), hereinafter called the Act.\n<\/p>\n
     The appellant  is the  owner and  occupier of
\n“Jay Parkash  Sudhir Private Ltd., a factory which
\nmanufactures  bidis.   Pandurang  Trimbak  Londhe,
\nhereinafter called Pandurang, rolled bidis in that
\nfactory for a number of days in 1957. He ceased to
\ndo that\t work from August 17, 1957. It was alleged
\nby the\tprosecution that  the appellant terminated
\nPandurang’s services  by a notice put up on August
\n12, 1957.  The appellant,  however,  admitted  the
\nputting up  of such  a\tnotice,\t but  denied  that
\nPandurang, the\tlabourer, had  left his service of
\nhis own accord.\n<\/p>\n
252<\/span><\/p>\n
     Inspector Shinde, P.W.I, visited this factory
\nAugust on   22,\t 1957. He  found from  the  weekly
\nregister and  the wages\t register of  the  Factory
\nthat   Pandurang worked\t for 70\t days and earned 4
\ndays T.\t leave. Pandurang,  however, did not enjoy
\nthat leave  and was  therefore entitled to be paid
\nwages for  that period i.e., for 4 days’ leave. He
\nwas not\t paid  those  wages,  and  therefore,  the
\nappellant contravened  the provisions of s. 79(11)
\nof the\tAct. He consequently submitted a complaint
\nagainst the  appellant to the Judicial Magistrate,
\nFirst Class, Sinnar.\n<\/p>\n
     It was  contended for  the accused before the
\nMagistrate that\t Pandurang was not a worker within
\nthe  meaning  of  that\texpression,  according\tto
\ns.2(1) of  the Act  and that  therefore\t no  leave
\ncould be  due to  him and  the appellant could not
\nhave committed\tthe offence  of\t contravening  the
\nprovisions of s.79(11). The learned Magistrate did
\nnot agree  with the  defence contention\t and  held
\nPandurang  to\tbe  a  worker  and  convicted  the
\nappellant of  the offence under 8. 92 read with s.
\n79(11) of  the Act  and sentenced him to a fine of
\nRs. 10.\n<\/p>\n
     It may be mentioned that this case was a test
\ncase. Similar  cases against  the  appellant  with
\nrespect to the non-payment of leave wages to other
\nworkers were pending in the Court.\n<\/p>\n
     The appellant  went in  revision to the Court
\nof the\tlearned Additional  Sessions Judge, Nasik.
\nThe  Sessions\tJudge  was  of\tthe  opinion  that
\nPandurang was not a worker and that the conviction
\nof the\tappellant was bad. He accordingly referred
\nthe case  to  the  High\t Court.\t The  High  Court,
\nhowever\t did  not  agree  with\tthe  view  of  the
\nSessions Judge\tand, holding  that Pandurang was a
\nworker, rejected  the revision\tand confirmed  the
\nconviction and\tsentence. It is against this order
\nthat this appeal has been filed.\n<\/p>\n
     Two points\t have been raised on behalf of the
\nappellant. One is that Pandurang was not a
\n253<\/span>
\nworker within  the meaning  of that  expression in
\nthe Act. The other is that even if Pandurang was a
\nworker, he  was not  entitled to  any leave  wages
\nunder s. 80 of the Act.\n<\/p>\n
     The  first\t  contention  is   based  on   the
\nestablished  facts   of\t the  case  which,  it\tis
\nsubmitted, do  not make\t out the  relationship\tof
\nmaster\tand  servant  between  the  appellant  and
\nPandurang, inasmuch  as\t they  indicate\t that  the
\nappellant had  no supervision and control over the
\ndetails of  the work Pandurang did in the factory.
\nThe following are the established facts:\n<\/p>\n
\t  (1) There  was no  agreement or contract
\n     of\t service   between   the   appellant   and
\n     Pandurang. (2)  Pandurang was  not\t bound\tto
\n     attend the\t factory for  the work\tof rolling
\n     bidis for\tany fixed hours of work or for any
\n     filed period.  He\twas  free  to  go  to  the
\n     factory at\t any time he liked and was equally
\n     free to  leave the factory whenever he liked.
\n     Of course,\t he could be in the factory during
\n     the hours of working of the factory.
\n\t  (3) Pandurang\t could be absent from work
\n     on any day he liked. He could be absent up to
\n     ten   days\t  without   even   informing   the
\n     appellant. If  he was  to be  absent for more
\n     than ten days he had to inform the appellant,
\n     not for  the purpose of taking his permission
\n     or leave, but for the purpose of assuring the
\n     appellant that he had no intention to give up
\n     work at the factory.\n<\/p><\/blockquote>\n
\t  (4) There  was no  actual supervision of
\n     the work Pandurang did in the factory.
\n\t  (5) Pandurang was paid at filed rates on
\n     the quantity  of bidis  turned out. There was
\n     however no\t stipulation that  he had  to turn
\n     out any minimum quantity of bidis in a day.
\n\t  (6)  Leaves\tused  to  be  supplied\tto
\n     Panduarng for being taken home and cut there.\n<\/p><\/blockquote>\n
254<\/span><\/p>\n
     Tobacco to fill the bidis used to be supplied
\n     at the  factory. Pandurang\t was not  bound to
\n     roll the bidis at the factory. He could do so
\n     at his  place, on\ttaking permission from the
\n     appellant\tfor   taking  tobacco  homes.  The
\n     permission was  necessary in  view of  Excise
\n     Rules and\tnot on account of any condition of
\n     alleged service.\n<\/p><\/blockquote>\n
\t  (7) At  the close  of the day, the bidis
\n     used to  be delivered  to the  appellant  and
\n     bidis not\tup to  the standard,  used  to\tbe
\n     rejected.<\/p><\/blockquote>\n
     The  second   contention  is   based  on  the
\ninapplicability of the provisions of ss. 79 and 80
\nof the\tAct to the case of the appellant, inasmuch
\nas it  is not  possible to calculate the number of
\ndays he worked or the total full time earnings for
\nthe days  on which  he worked  during the relevant
\nperiod mentioned in s. 80.\n<\/p>\n
     On behalf\tof the\trespondent  State,  it\tis
\nsubmitted that\tthe appellant  had  the\t right\tto
\nexercise such  supervision and\tcontrol\t over  the
\nwork of\t Pandurang as was possible with respect to
\nthe nature of Pandurang’s work which was of a very
\nsimple kind  and that  therefore Pandurang  was\t a
\nworker. It  is further\turged  that  there  is\tno
\ndifficulty in  calculating the\tnumber of  working
\ndays or\t the total full-time earnings contemplated
\nby s. 80 of the Act.\n<\/p>\n
     We have  given very  anxious consideration to
\nthis case, as the view taken by the Court below in
\nthis case  had been stated to be the right view in
\nthe decision  of this  Court in\t Shri  Birdhichand
\nSharma. The  first Civil  Judge,  Nagpur  (1),\ton
\nwhich reliance\tis placed  by the  respondent. The
\nfact of that case are distinguished  and only some
\nof the\tfacts of  that case are similar to some of
\nthe facts  of this  class. The\tsimilar facts  are
\nonly these:  Pandurang as  well as  the workers in
\nthat case could go to the factory
\n     (1) [1961] 3 S. C. R. 161.\n<\/p>\n
255<\/span><\/p>\n
at any\ttime and  leave it at and time, within the
\nfiled hours  of work  and they\twere paid at piece
\nrates  and  the\t bidis\tbelow  the  standard  were
\nrejected. It is to be noticed that the decision in
\nthat case  is based on facts which do not exist in
\nthe present  case. That\t decision,  therefore,\tis
\ndistinguishable and  the opinion about the view of
\nthe High  Court in the present case to be correct,
\nappears to  have been  expressed without  noticing
\nthat the  facts of  this  case\tare  different\tin
\nmaterial respects  from the facts of the case this
\ncourt was  deciding. The  decision of that case it
\nbased really on the following facts:\n<\/p>\n
\t  (1) The  alleged workers  had to work at
\n     the factory.\n<\/p><\/blockquote>\n
\t  (2) Their attendance was notes.
\n\t  (3) If  they came  to the  factory after
\n     mid-day, they  were not  given any\t work  and
\n     they thus lost wages.\n<\/p><\/blockquote>\n
\t  (4) The  management  had  the\t right\tto
\n     remove  them   if\tthem  stayed  away  for\t a
\n     continuous period of eight days.\n<\/p><\/blockquote>\n
In the\tpresent case,  Pandurang could work at the
\nhouse if  the appellant\t permitted tobacco  to\tbe
\ntaken home. There is nothing on record to show the
\nattendance is noted. Of course, the days Pandurang
\nworked could  be found out from the work register.
\nIt is  not the\tcase here  that no  work was to be
\ngiven to Pandurang if he want to the factory after
\nmid-day. There is no allegation that the appellant
\nhad the\t power to  remove  him,\t as  a\tresult\tof
\ncontinued absence  for a  fixed number of days. We
\nare therefore  of opinion  that\t the  decision\tin
\nBirdhichand’s Case (1) is distinguishable on facts
\nand cannot be applicable to the facts of this
\n     (1)[1961] 3 S. C.K. 161.\n<\/p>\n
256<\/span><\/p>\n
     The one  essential\t ingredient  which  should
\nexist to  make a person come within the definition
\nof ‘worker’  in cl. (1) of s. 2 of the Act is that
\nhe be  employed in  one of the processes mentioned
\nin that\t Clause. There is no dispute that the work
\nwhich  Pandurang  did  came  within  one  of  such
\nprocesses. The\tsole  question\tfor  determination
\nthen is\t whether  Pandurang  can  be  said  to\tbe
\nemployed by the appellant.\n<\/p>\n
     This Court,  in Shri  Chintaman  Rao  v.  The
\nState of Madhya Pradesh (1), said:\n<\/p>\n
\t  “The\tconcept\t  of  employment  involves
\n     three ingredients:\t (1) employer (2) employee
\n     and (3)  the  contract  of\t employment,.  The
\n     employs is\t one who  employs, i.e.,  one  who
\n     engaged the  services of  other persons.  The
\n     employee is  one who  works for  another  for
\n     hire.  The\t employment  is\t the  contract\tof
\n     service between the employer and the employee
\n     whereunder the  employee agrees  to serve the
\n     employer\tsubject\t  to   his   control   and
\n     supervision.”\n<\/p><\/blockquote>\n
Employment  brings  in\tthe  contrast  of  service
\nbetween the  employer and  the employed.  We  have
\nmentioned already  that in  this case there was no
\nagreement  or  contract\t of  service  between  the
\nappellant and  Pandurang. What\tcan be said at the
\nmost is\t that whenever Pandurang went to work, the
\nappellant agreed to supply him tobacco for rolling
\nbidis and  that Pandurang  agreed to roll bidis on
\nbeing paid  at a certain rate for the bidis turned
\nout.  The   appellant  exercised  no  control  and
\nsupervision over Pandurang.\n<\/p>\n
     Further s.\t 85 empowers  the State Government
\nto declare  that certain  provisions  of  the  Act
\nwould\tapply\t to   certain\tplaces\t where\t a
\nmanufacturing\t process     is\t   carried     on,
\nnotwithstanding\t the   persons\ttherein\t  are  not
\nemployed by the owner
\n     (1) [1958]\t S. C.\tR.  1340,  1346,1349,1350,
\n1351.\n<\/p>\n
257<\/span><\/p>\n
thereof but  are working with the permission of or
\nunder agreement\t with such  owner. This\t provision
\ndraws a\t distinction between  the  person  working
\nbeing employed\tby the owner and a person working,
\nwith  the   permission\tof   the  owner\t or  under
\nagreement with\thim. We\t are of\t opinion that  the
\nfoots of  this case  strongly point to Pandurang’s
\nworking with  the permission of or under agreement
\nwith the  owner and  not on any term of employment
\nby the owner.\n<\/p>\n
     Further, the  facts of the case indicate that
\nthe appellant  had no control and supervision over
\nthe details  of Pandurang’s  work.  He\tcould  not
\ncontrol his  hours of  work. He\t could not control
\nhis days  of work.  Pandurang was  free to  absent
\nhimself and  was free  to go to the factory at any
\ntime and  to have  it at any time according to his
\nwill.  The  appellant  could  not  insist  on  any
\nparticular minimum  quantity of bidis to be turned
\nout per\t day. He  could not control the time spent
\nby Pandurang  on the rolling of a bidi or a number
\nof bidis.  The work  of rolling\t bidis\tmay  be\t a
\nsimple\twork   and  may\t  require  no\tparticular
\nsupervision and\t direction During  the process\tof
\nmanufacture. But  there is  nothing on\trecord\tto
\nshow that any such direction could be given.\n<\/p>\n
     In this  connection reference  may\t again\tbe
\nmade to\t the observation  at  page  1349  in  Shri
\nChintaman Rao’s\t Case. The  Court was  considering
\nwhether\t the   Sattedars  were\t workers  or  were
\nindependent contractors\t Sattedars used to receive
\ntobacco from the management and supply them rolled
\nbidis. They  could manufacture\tbidis outside  the
\nfactory and  should also  employ other\tlabour. It
\nwas in these facts, that it was said:\n<\/p>\n
\t  “The\tmanagement   cannot  regulate  the
\n     manner of discharge of his work.”\n<\/p>\n
In the\tpresent case  too, Pandurang  used  to\tbe
\nsupplied tobacco. He could turn out as many bidis
\n(1)[1958] S. C. R. 1340, 1346, 1349, 1350, 1351.\n<\/p>\n
258<\/span><\/p>\n
as he  liked and could deliver them to the factory
\nwhen he wanted to cease working. During his period
\nof work,  the management  could not  regulate  the
\nmanner in  which he  discharged his work. He could
\ntake his  own time and could roll-in as many bidis
\nas  he\t liked.\t His  liability\t under\tthe  daily
\nagreement was  discharged by  his  delivering  the
\nbidis prepared\tand the tobacco remaining with him
\nunused. The  appellant could only order or require
\nPandurang to roll the bidis, using the tobacco and
\nleaves supplied to him, but could not order him as
\nto how\tit was\tto be  done. We\t are therefore\tof
\nopinion that the mere fact that the person rolling
\nbidis has  to roll them in a particular manner can
\nhardly be said to give rise to such a right in the
\nmanagement as can be said to be a right to control
\nthe manner of work. Every worker will have to turn
\nout   the    work   in\t  accordance   with    the
\nspecifications. The  control  of  the  management,
\nwhich is  a necessary  element of the relationship
\nof master  and servant,\t is not\t directed  towards
\nproviding or  dictating the  nature of the article
\nto be  produced or the work to be done, but refers
\nto the\tother incidents\t having a  bearing on  the
\nprocess of  work the  person carries  out  in  the
\nexecution of the work. The manner of work is to be
\ndistinguish. ed\t from  the  type  of  work  to\tbe
\nperformed. In  the present  case,  the\tmanagement
\nsimply says  that the labourer is to produce bidis
\nrolled in a certain form. How the labourer carries
\nout the\t work  is  his\town  concern  and  is  not
\ncontrolled by  the management,\twhich is concerned
\nonly with  getting bidis  rolled in  a\tparticular
\nstyle with certain contents.\n<\/p>\n
     Further, this  Court, in Shri Chintaman Rao’s
\nCase (1)examined the various provisions of the Act
\nand then said:\n<\/p>\n
\t  “The scheme  of the aforesaid provisions
\n     indicates that the workmen in the factory are
\n     under the\tdirect supervision  and control of
\n     the management. The conditions of service
\n(1) [1858] S.C.R. 1340, 1346, 1349, 1350, 1951.\n<\/p><\/blockquote>\n
259<\/span><\/p>\n
     are statutorily  regulated and the management
\n     is to  conform to the rules laid down  at the
\n     risk of  being penalised  for dereliction\tof
\n     any of  the statutory  duties. The management
\n     obviously cannot  fix  the\t working    hours,
\n     weekly holidays, arrange for night shifts and
\n     comply with  other statutory requirements, if
\n     the persons  like the  Sattedars, working\tin
\n     their factories  and getting  their work done
\n     by others\tor through  coolies,  are  workers
\n     within the\t meaning of  the Act.  It is  well
\n     high impossible  for the  management  of  the
\n     factory to\t regulate their\t work or to comply
\n     with the mandatory provisions of the Act. The
\n     said  provisions,\ttherefore,  give  a  clear
\n     indication that a worker under the definition
\n     of the  Act is  a person  who enters  into\t a
\n     contract of  service under the management and
\n     does not include an independent contractor or
\n     his coolies or servants who are not under the
\n     control and supervision of the employer.”\n<\/p><\/blockquote>\n
It can\tbe said, in the present case too, that the
\nappellant could\t not  fix  the\tworking\t hours\tor
\nweekly holidays\t or asked  arrangements for  night
\nshifts\t and\tcomply\t with\t other\t statutory
\nrequirements, if  Pandurang be held to be a worker
\nwithin the meaning of the Act. We are therefore of
\nopinion that Pandurang was not a worker.\n<\/p>\n
     It is  true, as contended for the State, that
\npersons engaged\t to roll  his on  job  work  basis
\ncould be  workers, but\tonly such persons would be
\nworkers who  work regularly at the factory and are
\npaid for  the work turned out during their regular
\nemployment  on\t the  basis   of  the  work  done.
\nPiecerate  workers   can  be  workers  within  the
\ndefinition of  ‘worker’ in  the Act, but they must
\nbe regular  workers and\t not-workers who  come and
\nwork according\tto their  sweet will.  It is  also
\ntrue, as urged for the State that a worker, within
\nthe
\n260<\/span>
\ndefinition of that expression in the Act, need not
\nbe a whole-time worker. But, even then, the worker
\nmust have,  under  his\tcontract  of  service,\tan
\nobligation to work either for a fixed period or J.
\nbetween\t fixed\thours.\tThe  whole  conception\tof
\nservice does  not fit  in well\twith a servant who
\nhas full  liberty to  attend to his work according
\nto his pleasure and not according to the orders of
\nhis master.\n<\/p>\n
     We may  say that  this opinion  further finds
\nsupport\t from\twith  we   hold\t on   the   second
\ncontention.  If\t  Pandurang  was   a  worker,  the
\nprovisions about  leave\t and  leave  wages  should
\napply to  him. We  are of opinion that they do not
\nand what  we may in that connection reinforces our
\nview that  Pandurang was not a worker as the three
\ncriteria  and\tconditions  laid   down\t in   Shri
\nChintaman Rao’s\t Case (1)  for constituting him as
\nsuch are not fulfilled in the present case.\n<\/p>\n
     Before discussing the provisions of ss.79 and
\n80 of the Act. which deal with leave and wages for
\nleave, we  would like  to state\t that the terms on
\nwhich Pandurang\t worked, did  not contemplate  any
\nleave. He  was not in regular employ. He was given
\nwork and paid according to the work he turned out.
\nIt was\tnot incumbent on him to attend to the work
\ndaily or  to take  permission for  absence  before
\nabsenting himself.  It was  only when  he, had\tto
\nabsent himself\tfor a  period longer than ten days
\nthat  he   had\tto   inform  the   management  for
\nadministrative convenience, but not with a view to
\ntake leave of absence.\n<\/p>\n
     Section 79\t provides for  annual  leave  with
\nwages and  s. 80  provides for\twages during leave
\nperiod. It  is on  the proper  construction of the
\nprovision of  these sections  that it  can be said
\nwhether the  appellant contravened  the provisions
\nof sub-s.  (11) of  8. 79 of the Act and committed
\nthe offence under s.92 of the Act.\n<\/p>\n
(1) [1958] S. C. R. 1340, 1346, 1349,1350, 1351.\n<\/p>\n
261<\/span><\/p>\n
     Sub-section (1) of s. 79 reads:\n<\/p>\n
\t  “(1) Every  worker who  has worked for a
\n     period of\t240 days or more in factory during
\n     a calendar\t year shall  be allowed during the
\n     subsequent calendar  year, leave  with  wages
\n     for a  number of  days calculated at the rate
\n     of-\n<\/p>\n
\t       (1) if  an adult, one day for every
\n     twenty days  of work  performed by him during
\n     the previous calendar year;\n<\/p>\n
\t       (ii) if\ta child, one day for every
\n     fifteen days  of work performed by him during
\n     the previous calendar year.\n<\/p>\n
\t  Explanation-1. For  the purpose  of this
\n     sub-section-\n<\/p>\n
\t       (a)  any\t  days\tof   lay  off,\tby
\n     agreement or contract or as permissible under
\n     the standing orders,\n<\/p>\n
\t       (b) in the case of a female worker,
\n     maternity leave  for any  number of  days not
\n     exceeding twelve weeks; and\n<\/p>\n
\t  (c) the  leave earned in the` year prior
\n     to that in which the leave is enjoyed;
\n\t  shall be  deemed to be days on which the
\n     worker has\t worked a  factory for the purpose
\n     of computation  of the  period of 240 days or
\n     more, but\tshall not  earn\t leave\tfor  these
\n     days.\n<\/p>\n
\t  Explanation-2.  The\tleave\tadmissible
\n     under this\t sub-section shall be exclusive of
\n     all holidays  whether occurring  during or at
\n     either end of the period of leave.”\n<\/p>\n
It is  clear that this applies to every worker. If
\nit does not apply to any type of person working in
\nthe factory,  it may  lead to  the conclusion that
\nthe person  does not come within the definition of
\nthe word ‘worker’.\n<\/p>\n
262<\/span><\/p>\n
     The worker\t is to\tget leave  in a subsequent
\nyear when  he has  worked for a period of 240 days
\nor  more   in  the  factory  during  the  previous
\ncalendar year.\tWho can\t be said  to  work  for\t a
\nperiod of J. 240 days?\n<\/p>\n
     According to  cl. (e)  of 8. 2, ‘day’ means a
\nperiod of  twenty-fore\thours  beginning  at  mid-
\nnight. Section\t51 lays\t down that no adult worker
\nshall be  required or allowed to work in a factory
\nfor more  than forty-eight hours in any week, and,
\naccording to  s. 54,  for not more than nine hours
\nin any\tday. Section  61 provides that there shall
\nbe displayed  and correctly  maintained\t in  every
\nfactory a  notice of  periods of  work for  adults
\nshowing clearly\t for every  day the periods during
\nwhich adult  worker may\t be required  to work  and
\nthat such  periods shall  be fixed  beforehand and
\nshall be  such\tthat  workers  working\tfor  those
\nperiods would  not be  working in contravention of
\nany of\tthe provisions\tof ss.\t51, 52, 54, 55, 56
\nand 58.\n<\/p>\n
     Section 63\t lays down  that no   adult worker
\nshall be  required  or\tallowed\t to  work  in  any
\nfactory otherwise  than\t in  accordance\t with  the
\nnotice of  periods of work for adults displayed in
\nthe factory.  A ‘day’, in this context, would mean
\na  period   of\twork   mentioned  in   the  notice
\ndisplayed. Only\t that worker can therefore be said
\nto work\t for a\tperiod of  240 days, whose work is
\ncontrolled by  the hours of work he is required to
\nput in, according to the notice displayed under s.\n<\/p>\n
61.
\n     Pandurang was  not\t bound\tto  work  for  the
\nperiod\tof  work  displayed  in\t the  factory  and
\ntherefore his  days of\twork for the purpose of s.
\n79 could  not be  calculated. It  is urged for the
\nState that  each day  on which\tPandurang  worked,
\nwhatever be  the period\t of time  that he  worked,
\nwould count  as one day of work for the purpose of
\nthis  section.\t We  do\t  not  agree   with   this
\ncontention. When the section provides for leave on
\nthe basis of
\n263<\/span>
\nthe period  of working days, it must contemplate a
\ndefinite period\t of work  per working  day and not
\nany indefinite\tperiod for which a person may like
\nto work on any particular day.\n<\/p>\n
     Section 80\t provides for the wages to be paid
\nduring the leave period and its sub-s.(1)reads:\n<\/p>\n
\t  “For the  leave  allowed  to\thim  under
\n     section 79,  a worker shall be paid at a rate
\n     equal to  the daily average of his total full
\n     time earnings for the days on which he worked
\n     during the\t month immediately  preceding  his
\n     leave, exclusive  of any  overtime and  bonus
\n     but inclusive  of dearness\t allowance and the
\n     cash equivalent  of  the  advantage  accruing
\n     through the  confessional sale  to the worker
\n     of foodgrains, and other articles.”\n<\/p><\/blockquote>\n
The question is how the daily average of his total
\nfull time earnings for the days on which he worked
\nduring the  month immediately  preceding his leave
\nis to  be calculated.  It  is  necessary  for  the
\ncalculation of the rate of wages on leave, to know
\nhis, total  ‘full time\tearnings,’ for the days he
\nhad worked  during the\trelevant month.\t What does
\nthe expression\t‘total full  time earnings’  mean?
\nThis expression\t is not defined in the Act. It can
\nonly mean  the earnings\t he  earns  in\ta  day\tby
\nworking full  time of that day, full time to be in
\naccordance with the period of time given in notice
\ndisplayed in  the factory  for a  particular  day.
\nThis, is  further apparent  from the fact that any
\npayment for  overtime or for bonus is not included
\nin computing the total full time earnings
\n     Full   time’,    according\t   to\t Webster’s
\nInternational Dictionary, means the amount of time
\nconsidered  the\t  normal  or  standard\tamount\tor
\nworking during\ta given\t period, as a day? week or
\nmonth’.\n<\/p>\n
264<\/span><\/p>\n
     In\t Words\t &  Phrases,   Permanent  Edition,
\npublished by  West Publishing  Co., Vol.  17, with
\nregard to the expression ‘Full time’ it is stated:\n<\/p>\n
\t  In an\t industrial community,\tterm ‘full
\n     time’  has\t  acquired  definite  significance
\n     recognized by popular usage. Like terms ‘part
\n     time’ and\t‘over time’ it refers to customary
\n     period of\twork; and  all these  terms assume
\n     that a  certain number  of hours  per day\tor
\n     days per  week constitute respectively a days
\n     or week’s\twork within  a given  industry\tor
\n     factory.”\n<\/p><\/blockquote>\n
It is also stated at page 791:\n<\/p>\n
\t  ” ‘Full time’ as basis for determination
\n     of average\t weekly\t wages of injured employee
\n     means time\t during which  employee is offered
\n     employment, excluding  time during\t which\the
\n     has no opportunity to work.”\n<\/p><\/blockquote>\n
We are\ttherefore of  opinion that there can be no
\nbasis for  calculating the  daily. average  of the
\nworker’s total\tfull time  earnings when the terms
\nof work\t be as\tthey are  in the  present case and
\nthat therefore\tthe wages to be paid for the leave
\nperiod cannot be calculated nor the number of days
\nfor which  leave with  wages  can  be  allowed\tbe
\ncalculated in such a case. It does not appear from
\nthe record,  and it is not likely, that any period
\nof work is mentioned in the notice displayed under
\ns. 61,\twith respect  to such workers who can come
\nat any time they like and go at any time they like
\nand turn out as much work as they like.\n<\/p>\n
     For the  reasons  stated  above,  we  are\tof
\nopinion that  the conviction  of the appellant for
\nan offense under s. 92; read with s. 79(11) of the
\nAct is\twrong. We  accordingly set aside the order
\nof the Court below and acquit the appellant. Fine,
\nif paid, will be refunded.\n<\/p>\n
265<\/span><\/p>\n
     SUBBA RAO,\t J.-I have  had the  advantage\tof
\nperusing  the  judgment\t Prepared  by  my  learned
\nbrother day,  J. I  regret my  inability to agree.
\nThe question  raced in\tthis  appeal  is  directly
\ncovered by  the judgment  of this  Court in Birdhi
\nChand, Sharma v. First Civil Judge, Nagpur<\/a> (1). As
\nmy learned  brother has\t taken a different view, I
\npropose to give reasons for my conclusion.\n<\/p>\n
     This appeal  by  special  leave  is  directed
\nagainst the  judgment of  the High Court of Bombay
\nin Criminal  Reference No.  94 of 1955 made by the
\nAdditional Sessions  Judge. Nasik, under s. 438 of
\nthe Code  of Criminal Procedure, and it raises the
\nquestion  of   interpretation  of   some  of   the
\nprovisions of  the  Factories  Act,  1948  (63\tof
\n1948), (hereinafter referred to as the Act).\n<\/p>\n
     The appellant is the owner of a factory named
\n”Jay Parkash Sudhir Private Ltd.” engaged ill the
\nmanufacture of\tbidis. He  engaged 60  persons for
\nthe work  of rolling  bidis  in\t his  factory.\tOn
\nAugust 12,  1267, the appellant issued a notice to
\nthe said  persons terminating  their services with
\neffect from  August 17,\t 1957. On August 22, 1957,
\nthe Inspector  of Factories  paid a  visit to  the
\nfactory found that one of the said persons by name
\nPandurang Trimbak  had worked  for 70  days in the
\nfactory and  had earned\t leave for 4 days which he
\nhad not\t enjoyed nor  was he paid wages in lieu of
\nthe leave before his discharge. It is not disputed
\nthat the  position  in\tregard\tto  the\t other\t59
\npersons\t is   also  similar.   The  Inspector\tof
\nFactories  filed   60\tcomplaints   against   the
\nappellant in the Court of the Judicial Magistrate,
\nFirst Class, Sinnar, For infringing the provisions
\nof s.  79(2) of\t the Act.  The Magistrate found to
\nappellant guilty  and convicted\t and sentenced him
\nto pay\ta fine\tof Rs. 10 On revision, the learned
\nAdditional Sessions  Judge, Nasik, taking the view
\nthat the  convection should  be quashed.  referred
\nthe matter
\n     (1) [1961] 3 S.C.R. 161.\n<\/p>\n
266<\/span><\/p>\n
to the\tHigh Court  under s.  438 of  the Code\tof
\nCriminal Procedure. A division bench of the a High
\nCourt, on  a consideration  of the facts found the
\nmaterial provisions  of the  Act and  the relevant
\ndecisions cited,  come to  the conclusion  that\t a
\nperson rolling\tbidis in  a factory  is a “worker”
\nwithin the  meaning of\tB. 2(1)\t of the Act and on
\nthat basis  upheld the\torder  of  conviction  and
\nsentence passed\t by the\t learned Magistrate. Hence
\nthis appeal.\n<\/p>\n
     Learned counsel  for the  appellant  contends
\nthat the  persons rolling bidis in the factory are
\nnot “workers”  within the  meaning of  the Act, as
\nthe said  persons can come any day they like, work
\nas they\t like and,  therefore, they cannot be said
\nto by  employed by the manufacturer under the Act.
\nAlternatively he  argues that  even if\tthey  were
\n”workers”, s. 79 of the Act, which deals with the
\nquestion of  leave with\t wages, cannot\tapply to a
\nworker who is paid wages according to the quantity
\nof work done by him and not per day or par week.\n<\/p>\n
     At the  outset  it\t would\tbe  convenient\tto
\nascertain exactly  how these persons rolling bidis
\nare engaged by the appellant and how they work ill
\nthe factory.  Admittedly,  Pandurang  Trimbak  and
\nother 59 persons were engaged by the appellant for
\nrolling\t bidis\t in  his  factory.  The\t registers
\nmaintained by the factory, namely, weekly register
\nand wages  register, had  on their rolls the names
\nof the\tsaid persons  as labourers  for doing  the
\nsaid work.  It is  also common\tcase that the said
\npersons attend\tthe factory  and roll bidis in the
\npremises of  the factory  during the working hours
\nof  the\t  factory.  Leaves  are\t supplied  to  the
\nlabourers on  the previous  day, which they cut in
\ntheir houses  after dipping  them in water, and on
\nthe neat day, when they go to the factory, tobacco
\nis given  to them.  After they\tmake the bidis the
\nmatter verifies\t whether they are according to the
\nsample. Those that are not according to the sample
\nare rejected. Thereafter the quantity of
\n267<\/span>
\nbidis rolled  by each  labourer is  entered in the
\nbidi-map register maintained by the factory. D. W.
\n1 is  a gumasta\t and  general  supervisor  in  the
\nfactory. He  supervises the  work of  the man  who
\nsupplies tobacco.  He enters the quantity of bidis
\nrolled by  each labourer  against his  name in the
\nregister and  if a labourer is absent, his absence
\nis noted  against his  name in\tthe said register.
\nThe labourers  are paid\t at the rate of Rs. 2-2-O,
\nor such other rate as agreed by them, per thousand
\nbidis  rolled.\tSo  far\t there\tis  no\tdifference
\nbetween a  labourer  working  in  the  appellant’s
\nfactory\t and  a\t labourer  working  in\tany  other
\nfactory. Just  like any\t other\tmanufacturer,  the
\nappellant engages the labour, allots work for them
\nand extracts  work from\t them and  pays them wages
\nfor the work so done.\n<\/p>\n
     Now let  us look  at the  differences between
\nthe labourers in a bidi factory and those in other
\nfactories  on  which  much  emphasis  is  laid\tby
\nlearned counsel\t for the  appellant. P.\t W. 1, the
\nInspector of  Notified Factories, says that during
\ntheir  working\t in  the  factory,  there,  is\tno
\nsupervision over them. P. W. 2, Pandurang Trimbak,
\nadmits in  the cross-examination  that during  the
\nfactory hours  he used\tto work\t in the factory of
\nthe appellant  at any  time and go at any time. He
\nfurther\t states\t  that\tthey   can  sit\t  at   any
\ncompartment  of\t  the  factory\tand  there  is\tno
\ncompulsion  on\t the  labourer\tto  do\ta  minimum
\nquantity of work every day and that the permission
\nof the master is required only if a labourer wants
\nto absent  for more than ten days or when he wants
\nto bind\t bidis in  his house. D. W. 1, the gumasta
\nand supervisor\tin the\tfactory, also  says that a
\nlabourer can  leave the\t factory in  the midst\tof
\nwork after  giving the\tfinished product and after
\nreturning the tobacco. He says that at the time of
\nreceiving the  finished goods, he verifies whether
\nthe goods  are according  to sample and then makes
\nthe requisite entries in
\n268<\/span>
\nthe register. What  emerges from this evidence\tis
\nthat there  in no  supervision in  the sense  that
\nnobody regulary\t watches their\twork from start to
\nfinish giving  directions, if  and when\t required.
\nBut the\t labourers understand that the bidis to be
\nrolled in  by them  shall accord  with the  sample
\nand, therefore, they roll the bidis to accord with
\nthat sample. The names of persons that are absent,
\nthe quantity  of tobacco  issued to  each  of  the
\nlabourer, and  the number  of bidis rolled by each
\nof them\t are entered in the appropriate registers.
\nThe rejected bidis are given way to the labourers;
\nit cannot  obviously mean that dereliction of duty
\nis rewarded  but it  only shows\t that the rejected
\nbidis are  insignificant in  number. In short, the
\nappellant engages  a labourer,\textracts work from
\nhim,  pays   him  wages\t in  accordance\t with  the
\nquantity of  bidis rolled  by him, and exercises a
\nright of  supervision as  the nature  of the  work
\nrequires.\n<\/p>\n
     With this\tbackground  let\t us  look  at  the
\ndefinition of  “worker ‘  in s.\t 2(1) of  the  act
\n”Worker” is  defined to mean ”a person employed,
\ndirectly or  through agency,  whether for wages or
\nnot in\tany  manufacturing  process.  “Under  this
\ndefinition, a  person employed\tin a manufacturing
\nprocess in  a worker.  The question raised in this
\ncase turns  upon the  interpretation of\t the  word
\n’employed”  in\t the  definition.  This\t Court\tin
\nChintaman Rao  v. State\t of Madhya  Pradesh  (‘1A)
\ndefined the word ”employed” thus:\n<\/p>\n
\t  “The\tconcept\t  of  employment  involves
\n     three ingredients:\t (1) employer (2) employee
\n     and  (3)  the  contract  of  employment.  The
\n     employer is  one who  employs, i.e.,  one who
\n     engages the  services of  other persons.  The
\n     employee is  one who  works for  another  for
\n     hire. The employment is the contract of
\n     (1A) [1958] S.C.R. 1340, 1346.\n<\/p><\/blockquote>\n
269<\/span><\/p>\n
     service  between\tthe  employer\t  and  the
\n     employee whereunder  the employee agrees to s
\n     serve the employer subject to his control and
\n     supervision.”\n<\/p><\/blockquote>\n
In making  out the distinction between an employer
\nand an\tindependent contractor,\t this court in the
\nabove case  quoted the\tfollowing observations\tof
\nBhagwati J,  in Dharangadhara Chemical Works Ltd .
\nv. State of Saurashtra (1):\n<\/p>\n
\t  “The test  which is uniformly applied in
\n     order to  determine the  relationship is  the
\n     existence of a right of control in respect of
\n     the manner in which the work is to be done.”\n<\/p><\/blockquote>\n
The some  view was  reiterated.\t  by this Court in
\nThe State  of Kerala v. V.M. Patel (2). That was a
\ncase where 23 persons were employed in the process
\nof garbling  pepper  and  packing  them\t in  bags.
\nHidayatullah, J.”speaking for the Court stated:\n<\/p>\n
\t  “It  was  observed  that,  to\t determine
\n     whether a\tperson was a ‘”worker”, the proper
\n     test was to see whether or not the “employer”
\n     has control  and supervision  over the manner
\n     in which the work was to be done”.\n<\/p><\/blockquote>\n
Adverting   to\t  the\tdistinction   between\tan
\nindependent contractor\tand a servant, the learned
\nJudge proceeded to state:\n<\/p>\n
\t  “An independent  contractor  is  charged
\n     with a  work and  has to produce a particular
\n     result; but the manner in which the result is
\n     to he achieved left to him. A servant, on the
\n     other hand\t may also be charged with the work
\n     and asked to produce a particular result, but
\n     is subject to the directions of the matter as
\n     to the  manner in\twhich tho  result is to be
\n     achieved.”\n<\/p><\/blockquote>\n
     (1) [1957] S.C.R.152,157.<\/p><\/blockquote>\n
     (2) Criminal Appeal No. 42 of 1959 decided on
\n12-10- 60.\n<\/p>\n
270<\/span><\/p>\n
This decision  also emphasized\tthat  a\t right\tto
\ncontrol or  supervise is  one  of  the\ttests  for
\ndetermining  the   relationship\t of   master   and
\nservant. In  this context a judgment of the Madras
\nHigh Court  in Palaniappa  v. Court  of Additional
\nFirst Class  Magistrate, Kulitalai (1) is strongly
\nrelied upon on behalf of the appellant. There, the
\npetitioner was\tthe owner  of a weaving concern at
\nKarur. He  had put up a thatched shed where he had
\ninstalled a  certain number of handlooms and where
\ntowels\tand   bed-sheets  were\tmanufactured.  His
\noffice consisted of only two clerks, who were this
\npermanent members  of his  establishment. Some\tof
\nthe residents  of the  village, most  of whom were
\nagriculturists, but  who knew waving used to go to
\nthe petitioner’s  shed when  they had  e, and when
\nthey felt inclined to do to and they were supplied
\nwith yarn.  These, they\t wove into  bed sheets and
\ntowels and they were paid at certain rates for the
\narticles they wove. These persons came in and went
\nout when  they liked.  On those facts, Balakrishna
\nAyyar, J.,  held  that\tthey  were  not\t “workers”
\nwithin the definition of the word ‘”worker” in the
\nFactories  Act.\t After\tconsidering  the  relevant
\ndecisions cited and after distinguishing the cases
\narising under  the Industrial  Disputes\t Act,  the
\nlearned Judge proceeded to state thus:\n<\/p>\n
\t  “An  examination   of\t  these\t  decision
\n     confirms what  one was inclined to suspect at
\n     the outset,  viz., that  “employed” is a word
\n     with a varying content of meaning and that it
\n     signifies\tdifferent   things  in\t different
\n     places ………………\tOn the other hand,
\n     when we  say that\tX  is  employed\t by  Y\twe
\n     ordinarily imply that Y remunerates X for his
\n     services and that he has a certain measure of
\n     control over  his time  and skill and labour.
\n     But the  degree and  extent of conrlto may be
\n     nominal or extensive ………………..
\n     (1) I.L.R. 1958 Mad. 999, 1009, 1010.\n<\/p><\/blockquote>\n
271<\/span><\/p>\n
     In between lie infinite grades of control and
\n     supervision.  But\t a   certain   amount\tof
\n     supervision or control is necessarily implied
\n     in the connotation of the word `employed’.”\n<\/p><\/blockquote>\n
Having said  that, the\tlearned Judge  graphically
\ndescribes the  relationship  between  the  parties
\nthus:\n<\/p>\n
\t  “The worker  can come\t any day he likes,
\n     work as  long as  he likes\t or as short as he
\n     likes and go away. He may work fact or he may
\n     work slow.\t The petitioner\t cannot\t tell  him
\n     that he should work on towels and not on bed-
\n     sheets or\tvice versa……………………
\n     And, more\timportant of  all  the\tpetitioner
\n     cannot prevent  anybody from  working  for\t a
\n     competing manufacturer.  Come when\t you like,
\n     go when  you like,\t work when  you like, stop
\n     when you like, work as fast as you like, work
\n     as slow as you like, work on what you like or
\n     not at all, that  the position of the workers
\n     vis-a-vis\tthe   petitioner.   Such   persons
\n     cannot,  in   my  opinion,\t  be  said  to\tbe
\n     ’employed’\t by   the  petitioner  within  the
\n     meaning of\t clause (1)  of section\t 2 of  the
\n     Factories Act.”\n<\/p><\/blockquote>\n
It is not necessary to express our opinion whether
\nthe conclusion\tof the\tlearned Judge on the facts
\nof that\t case is correct or not. But the principle
\naccepted by  him, namely, that a certain amount of
\nsupervision or\tcontrol is  necessarily implied in
\nthe connotation\t of the\t word “employed”, has been
\naccepted by  this Court\t in earlier  decisions and
\nthis decision  is  only\t an  application  of  that
\nprinciple to a different set of facts.\n<\/p>\n
     The present  case falls  to be decided on its
\npeculiar facts.\t As we\thave pointed  out,  though
\nthere is  some laxity in the matter of attendance,
\nit cannot  be said that the appellant has no right
\nof  supervision\t or  control  over  the\t labourers
\nworking in  the factory\t or does  not supervise to
\nthe extent required having regard to the nature of
\nthe
\n272<\/span>
\nwork  done  in\tthe  factory.  All  the\t necessary
\n‘ingredients of\t the word  “employed” are found in
\nthe case.  The appellant engages the labourers, he
\nentrusts  them\twith  work  of\trolling\t bidis\tin
\naccordance with\t the sample,  insists  upon  their
\nworking in the factory, maintains registers giving
\nthe particulars\t of the\t labours absent, amount of
\ntobacco supplied and the number of bidis rolled by
\neach  one   of\tthem,  empowers\t the  gumasta  and
\nsupervisor, who\t regularly attends the factory, to
\nsupervise the supply of tobacco and leaves and the
\nreceipt of  the bidis\t  rolled. The  nature  and
\npattern of  bidis to  be rolled\t is obviously well
\nunderstood, for it in implicit in requirement that
\nthe rolled  in bidis shall accord with the sample.
\nThe rejection  of bidis\t found not  in accord with
\nthe sample  is a  clear indication of the right of
\nthe employer  to dictate  the manner  in which the
\nlabourers shall manufacture the bidis. Supposing a
\nworker uses  more quantity of tobacco than a bidis
\nis, expected  to contain,  it cannot  be suggested
\nthat the  supervisor cannot tell him that he shall
\nnot do\tto. If\the spoils  the leaves, which he in
\nnot expected  to do,  it cannot\t be said  that the
\nlabourer cannot\t be pulled up in the direction. So
\ntoo,  the  supervisor  can  certainly  compel  the
\nlabourers to  work in  a specified  portion of the
\nfactory\t or  direct  them  to  keep  order  a  rid
\ndiscipline in the course of the discharge of their
\nduties. The fact that they cannot take the tobacco
\noutside the  factory  without  the  leave  of  the
\nmanagement shows  that they  are  subject  to  the
\nsupervision of\tthe management.\t The  circumstance
\nthat they  cannot absent  them selves\tfor   more
\nthan  10   days\t without  the  permission  of  the
\nappellant also\tis a  pointer in  that\tdirection.
\nThat  a\t  labourer  is\t not  compelled\t  to  work
\nthroughout  the\t working  hours\t is  not  of  much
\nrelevance, because,  for all  practical purpose, a
\nlabourer will  not do  so since\t his wage  depends
\nupon the  bidis he  rolls, and,\t as he cannot roll
\nthem outside the factory, necessarily
\n273<\/span>
\nhe will\t have to  do so\t in  the  factory.  If\the
\nabsents himself,  it is\t only at his own risk.-For
\nall the\t aforesaid reasons  I hold  that  all  the
\ningredients of\tthe word “’employed”, as laid down
\nby this\t Court\t are present  in  this\tcase,  and
\ntherefore the  labourers are  workers  within  the
\nmeaning of s. 2(1) of the Act.\n<\/p>\n
     The next  contention of  learned counsel  for
\nthe appellant  was that\t even if  the labourers in
\nthe factory were workers within the meaning of the
\nAct, s.\t 79 thereof  would not\tapply to them and,
\ntherefore,  there   could  not\t have\tbeen   any
\ncontravention of  that section.\t The material part
\nof s. 79 of the Act reads:\n<\/p>\n
\t  “Every  worker  who  has  worked  for\t a
\n     period of\t240 days  or more  in  a  `factory
\n     during  a\tcalendar  year\tshall  be  allowed
\n     during the\t subsequent calendar  year,  leave
\n     with wages for a number of days calculated at
\n     the rate of-\n<\/p><\/blockquote>\n
\t  (1) if  an  adult,  one  day\tfor  every
\n     twenty days  of work  performed by him during
\n     the previous calendar year;.. “.\n<\/p><\/blockquote>\n
Section 80 says,
\n\t  (1) “For  the leave allowed to him under
\n     section 79,a  worker shall\t be paid at a rate
\n     equal to  the daily average of his total full
\n     time earnings for the days on which he worked
\n     during the\t month immediately  preceding  his
\n     leave, exclusive  of any  overtime and  bonus
\n     but inclusive  of dearness\t allowance and the
\n     cash equivalent  of  the  advantage  accruing
\n     through the  concessional sale  to the worker
\n     of foodgrains and other articles ”\n<\/p>\n
The argument is that SS. 79 and 80 have to be read
\ntogether and  that 8.  79 cannot  be applied  to a
\nworker to  whom s.  80 does not apply. Section 80,
\nthe argument proceeds, entitles a worker for
\n274<\/span>
\nleave allowed  to him  under s. 79 to be paid at a
\nrate equal  to the daily average of his total full
\ntime earnings  for the\tdays for  which he  worked
\nduring the  month immediately  preceding his leave
\nand that as the workers in question had the option
\nto work\t for the  full day or part of the day, the
\nwords “full  time earnings”  would  not\t apply\tto
\nthem. This argument, though at first blush appears
\nto be plausible, on a deeper scrutiny reveals that
\nit is unsound. The following words stand out in s.
\n80(1) full  time earning  and (ii) days. “Day” has
\nbeen defined  in s.  2(e) to  mean ‘”a\tperiod\tof
\ntwenty\tfour  hours  beginning\tat  midnight”.\tIt
\ncannot be suggested, and it is not suggested, that
\n“‘full time  earnings” for  a day  means  earnings
\nmade during  all the  twenty- four  hours. Such\t a
\ncontention cannot  be raised  for the  reason that
\nthe provision  of the  Factories Act  restrict the
\nnumber of  hours of work during the day of twenty-
\nfour hours.  Under s.  51 of  the Act,\t‘”No adult
\nworker shall  be required  or allowed to work in a
\nfactory for  more than\tforty-eight hours  in  one
\nweek”, and  under a 54, “Subject to the provisions
\nof section  51, no  adult worker shall be required
\nor allowed to work in a factory for more than nine
\nhours in any day”. A combined reading of these two
\nsections indicates  that subject  to  the  maximum
\nperiod of  working hours  fixed\t for  a\t week,\tno
\nworker shall  be allowed  to work  for more than a
\nhours a\t day. For  the purpose\tof calculation\tof
\nwages during  the leave\t period under  s. 80,  the
\nfull time  earnings for a day can be taken to mean
\nthe amount  earned be a worker for the daily hours
\nof work\t field for  a factory. In the instant case
\nit is  admitted that  the  working  hour  for  the
\nfactory are  filed and the workers are entitled to
\nwork throughout the working hours, though they can
\nleave the  factory  during  those  hours  if  they
\nchoose to do so. But they cannot be prevented from
\nworking for  all the  hours fixed  for the factory
\nand they are entitled
\n275<\/span>
\nto be  paid their wages on the basis of the number
\nof bidis  rolled by them. The wages earned by them
\nduring the  working hours  of the factory would be
\ntheir full time earnings for the day. If so, there
\ncannot be  any difficulty  for the  management\tto
\nascertain the  rate under B. 80 of the Act for the
\npayment of  wages during  the  leave  period,  for
\nunder that  section the\t management would  have to
\npay at\ta rate equal to the daily average of their
\ntotal full time earnings for the days they worked.
\nThe factory  registers would  show the\ttotal full
\ntime earnings  of each\tworker for the days during
\nthe month  immediately preceding  his  leave.  The
\naverage shall  be taken\t of the\t earnings of those
\ndays and the daily average of those earnings would
\nbe the\tcriterion for  fixing the wages during the
\nleave period.  I cannot, therefore, say that s. 79
\nof the Act by its impact on s. 80 thereof makes it
\ninapplicable to\t a worker  of  the  category  with
\nwhich  we   are\t now   concerned.  This\t argument,
\ntherefore, is rejected.\n<\/p>\n
     No other  question was  raised before  us. In
\nthe result, the appeal fails and is dismissed.\n<\/p>\n
     By Court.\tIn accordance  with the opinion of
\nthe majority  the appeal  is allowed, the order of
\nthe  Court  below  set\taside  and  the\t appellant
\nacquitted. Fine, if paid, will be refunded.\n<\/p>\n
\t\t\t\t   Appeal allowed.\n<\/p>\n
276<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Shankar Balaji Waje vs State Of Maharashtra on 27 October, 1961 Equivalent citations: 1962 AIR 517, 1962 SCR Supl. (1) 249 Author: R Dayal Bench: Dayal, Raghubar PETITIONER: SHANKAR BALAJI WAJE Vs. RESPONDENT: STATE OF MAHARASHTRA. DATE OF JUDGMENT: 27\/10\/1961 BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR KAPUR, J.L. SUBBARAO, K. CITATION: […]<\/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-83202","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nShankar Balaji Waje vs State Of Maharashtra on 27 October, 1961 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shankar-balaji-waje-vs-state-of-maharashtra-on-27-october-1961\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shankar Balaji Waje vs State Of Maharashtra on 27 October, 1961 - 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