Dharangadhara Chemical Works Ltd. v. State of Saurashtra

152 SUPREME COURT REPORTS (1957) DHARANGADHARA CHEMICAL WORKS LTD. ##### "· STATE OF SAURASHTRA. (BHAGWATI, VENKATARAMA AYYAR, S. K. DAs and ###### GoVINDA MENON, JJ) _Industrial_ _J)ispute-Workman-lndependent_ _contractor-Test-_ _Distinction-Agarias,,_ _if_ _tvorkmen-Finding_ _by the Industrial Tribu-_ _nal,_ _if_ _a question_ _of_ _fact-Such_ _findinQ,_ _if_ _and rvhen can_ _be_ _set_ _aside-_ _lndustria/_ _Disfml_!s_ _Act_ _(XIV_ _af 1947),_ _s._ _2(s)-Constitrition of India,_ _Art._ 226. The appellants '"'·ere lessees holding a license for the manufacture of salt on the demised lands. The salt was manufactured by a class of professional labourers known as _agarias_ £Tom rain water that got mixed up with saline matter in the soil. The work was seasonal in nature and commenced in October after the rains and continued till June. Thereafter the _agarias_ left for their own villages for cultivation \Vork. The demised lands were divided into plots called _pattas_ and allotted to the _agarias_ with a sum of Rs. 400/· for each _patta_ to n1eet the initial expenses. Generally the same _patta_ was allotted to the same _agaria_ every year and if a _patta_ was extensive in area, it was allotted to two _agarias_ working in partnership. After the manufacture of salt the _agarias_ were paid at the rate of 5 as. 6 pies per maund. At the end of each season the accounts were settled and the _agarias_ paid the balance due to then1. The _agarias_ who worked themselves with the members of their families were free to engage extra labour on their own account and the appellants had no concern therewith. No hours of work were prescribed, no muster rolls 1naintained, nor were working hours controlled by the appellants. There were no rules as regards leave or holidays and the _agarias_ \Yere free to go out of the factory after making arrangements for the 1nanufacture of salt. The question for decision was whether in such circumstances the _agarjas_ could be held to be workmen as defined by s. 2( s) of the Industrial Disputes Act of 1947, as found by the Industrial Tribunal and agreed with by the High Court or they were independent contrac~ tors and the reference for adjudication made by the Government com.petent under s. I 0 of the Act. _Held,_ that the finding of the Industrial Tribunal that the _agarjas_ were,workmen within the meaning of s. 2(s) of the Industrial Disputes Act of 1947 was correct and the reference: was competent. The real test whether a person was a workman was whether he had been employed by the employer and a relationship of employer and employee or master and servant subsisted between them and it was well settled that the prima fade test of such 1956 _D1-gatlhara_ _Chemieal_ _Works_ ##### _w._ v. _Stolt_ _of_ _SaurashJra_ ; S.C.R. SUPREME COURT REPORTS 153 relationship was the existence of the right in the employer not merely to direct what work was to be done but also to control the manner in which it was to be done, the nature or extent of such control varying in different industries and being by its nature incapable of being precisely defined. The correct approach, therefore, was to consider whether, having regard to the nature of the work, there was due control and supervision of the employer. _Mersey Docks and Harbour Board_ v. _Coggins_ & _Griffeth (Liver-_ _pool) Ltd., and Another_ (1947] l A.C. 1, _and Simmons_ v. _Heath_ _Laundry Company_ (1910] 1 K.B. 543 referred to. The question whether the relation between the parties was :me as between an employer and employee or master and servant was a pure question of fact and where the Industrial Tribunal 1:!.aving jurisdiction to decide that question came to a finding, such finding of fact was not open to question in a proceeding under Art. 226 of the Constitution unless it could be shown to be wholly un warranted by the evidence. _Ebrahim Aboobakar_ v. _Custodian General of Evacuee_ _Property_ [1952 ]' S.C.R. 696, referred to. _Performing_ _Right, Society Ltd. etc._ v. _Mitchell and Booker_ _(Plaise De Danse)_ [1924] l K.B. 762, not followed. A person could be a workman even though he did piece-work md was paid not per day but by the job or employed his own labour and paid for it. _Sadler_ v. _Henlock_ (1855) 119 E.R. 209 and _Blake_ v. _Thirst_ ~1863) 32 L. J. (Exchequer) 188, referred to. The broad distinction between a workman and an independent :ontractor was that while the former would be bound by agreement to work personally and would so work the latter was to get die work done by others. A workman would not cease to be so !Veh though he got other persons to work with him and paid and :ontrolled them. _Grainger_ v. _Aynsley : Bromley_ v. _Tams_ (1881)6 Q. B. D. 182, _Weaver_ v. _Floyd_ (1825) 21 L.H., Q.B. 151 and _Whitely_ v. _Armitage_ (1864) 16 W. R. 144, referred to. As in the instant case the _agarias,_ who were professional labourers and personally worked with the members of their families in manufacturing the salt, were workmen within the meaning of the Act, the fact that they were free to engage others to assist them and paid for them, could · not affect their status as workmen. ###### CIVll. APPELLATE JuRISDICTION: Civil Appeal No. 85 of _1956._ 1956 _**Dharangadhara**_ _**Clremica.l**_ _**Works**_ _Lid._ v. _**State**_ _**of**_ _**SQMrashlra**_ 154 SUPREME COURT REPORTS Ll957] Appear from the judgment and order dated January 8, 1954, of the High Court of Saurashtra, at Rajkot, in Civil Misc. Application No. 70 of 1952. _R._ /. _Kolah_ and _A._ C. _Dave,_ for the appellant. _Poms_ _A._ _Mehta_ and _R._ _H._ _Dhebar,_ for respondent No. 1. 1956. November 23. The Judgment of the Court was delivered by BHAGWATI J.-This appeal with a certificate of fitness granted by the High Court of Saurashtra raises an interesting question whether the _agarias_ working in the Salt Works at Kuda in the Rann of Cutch are workmen within the meaning of the term as defined in the Industrial Disputes Act, 1947, hereinafter referred to as the Act. The facts as found by the Industrial Tribunal are not in dispute and are as follows. The appellants are lessees of the Salt \Vorks from the erstwhile State of Dharangadhara and also hold a licence for the manufacture of salt on the land. The appellants require salt for the manufacture of certain chemicals and part of the salt manufactured at the Salt Works is utilised by the appellants in the manufacturing process in the Chemical Works at Dharangadhara and the remaining salt is sold to outsiders. The appellants employ a Salt Superintendent who is in charge of the Salt \Vorks and generally supervises the Works and the manufacture of salt carried on there. The appellants maintain a ~ railway line and sidings and also have arrangements for storage of drinking water. They also maintain a grocery shop near the Salt Works where the _agarias_ can purchase their requirements on credit. The salt is manufactured not from sea water but from rain water which soaking down the surface becomes impregnated with saline matter. The operations are seasonal in character and commence sometime in October at the close of the monsoon. Then the entire area is parcelled out into plots called pattas and they are in four parallel rows intersected by the railway S.C.R. SUPREME COURT REPORTS 155 lines. Each _agaria_ is allotted a patta and in general the same patta is allotted to the same _agaria_ year ###### after year. If the patta is extensive it is allotted to two _agarias_ who work the same in partnership. At the time of such allotment, the appellants pay a sum of Rs. 400 for each of the pattas and that is to meet the initial expenses. Then the _agarias_ commence their work. They level the lands and enclose and sink wells in them. Then the densitv of the water in the wells is examined by the Salt Superintendent of the appellants and then the brine is brought to the surface and collected in the reservoirs called condensers and re. tained therein until it acquires by natural process a certain amount of density. Then it. is flowed into the pattas and kept there until it gets transformed into crystals. The pans have got to be' prepared by the _agarias_ according m certain _standards and they are tested by the Salt Superintendent. When salt crystals begin to form in the pans they are again tested by the Salt Superintendent and only when they are of a particular quality the work of collecting salt is allowed to be commenced. After the crystals are collected, they are loaded into the railway wagons and transported to the depots where salt is stored. The salt is again tested there and if it is found to be of the right quality, the _agarias_ are paid therefor at the rate of Rs. 0..5-6 per maund. Salt which is rejected belongs to the appellants and the _agarias_ cannot either remove the salt manufactured by them or sell it. The account is made up at the end of the season when the advances which have been paid to them from time to time as also the amounts due from the _agarias_ to the grocery shop are taken into account. On a final settlement of the accounts, the amount . due by the appellants to the _agarias_ is ascertained and such balance is paid by the appellants to the _agarias._ The manufacturing season comes to an end in June when the monsoon begins and then the _agarias_ return to their villages and take up agricultural work. The _agarias_ work themselves with their families on the pattas . allotted to them. They are free to engage extra labour but it is they who make the payme.nts to 1956 _D!iatangadhara_ _C/rmri&al_ _Works_ _Ltd._ v. _State_ _of S1J11ras!ara_ _Bhagwati_ _J._ 156 SUPREME COURT REPORTS [1957] # ~ _Ltd._ v. _Sta#_ _of_ _Saurashlra_ these labourers and the appellants have nothing to do y.rith the same. The appellants do not prescribe any hours of work for these _agarias._ No muster roll is maintained by them nor do they control how many hours in a day and for how many days in a month the _agarias_ should work. There are no rules as regards leave or holidays. They are free to go out of the works as they like provided they make satisfactory arrangements for the manufacture of salt. In about 1950, disputes arose. between the _agarias_ and the appellants as to the conditions under which the _.agarias_ should be engaged by the appellants in the manufacture of salt. The Government of Saurashtra, by its letter of Reference dated November 5, 1951; referred the disputes for adjudication to the Industrial Tribunal, Saurashtra State, Rajkot. The appellants contested the proceedings on the ground, inter alia, that the status of the _agai·ias_ was that of independent contractors and not of workmen and that the State was not competent to refer their disputes for adjudication under s. 10 of the Act. This question was tried as a preliminary issue and by its order dated August 30, 1952, the Tribunal held that the _agarias_ were workmen within the meaning of the Act and that the reference was intra vires and adjourned the matter for hearing on the merits. Against this order the appellants preferred an appeal being Appeal No. 302 of 1952, before the Labour Appellate Tribunal of India, and having failed to obtain stay of further proceedings before the Industrial Tribunal pending the appeal, they moved the High Court of Saurashtra in M.P. No. 70 of 1952 under Arts. 226 and 227 of the Constitution for an appropriate writ to quash the reference dated November 5, 1951, on the ground that it was without jurisdiction. Pending the disposal of this writ petition, the· appellants obtained stay of further proceedings before the Industrial Tribunal and in view of the same the Labour Appellate Tribunal passed an order on September 27, 1953, dismissing the appeal leaving the question raised therein to the dechiion of the High Court. By their judgment dated January 8, 1954, the learned Judges _Bhagwali_ _j._ S.c.R. SUPREME COURT REPORTS 157 ###### of the High Court agreed with the decision of the Industrial Tribunal that the _agarias_ were workmen within s. 2(s) of the Act and, accordingly, dismissed the application for writ. They, however, granted a certificate under Art. 133( I) ( c) of the Constitution and that is how the appeal comes before us. The sole point for determination in this appeal is whether the _agarias_ working in the Salt Works of the appellants at Kuda are workmen within the definition of that term ins. 2(s) of the Act. "Workman" has been thus defined m s. 2(s) of ###### the Act: "(s)-'Workman' means any person employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purposes of any proceedings under this . Act in relation to an industrial dispute, a workman discharged during that dispute, but does not include any person employed in the naval, military or air service of the (Government)." The essential condition of a person being a workman within the terms of this definition is that he should be _employed_ to do the work in that industry, that there should be, in other words, an employment of his by the employer and . that there should be the relationship between the employer and him as between employer and employee or master and servant. Unless a person is thus _employed_ there can be no question of his being a workman within the definition of the term as contained in the Act. The principles according to which the relationship as between employer and employee or master and servant has got to be determined arc well settled. The test which is uniformly applied in order to determine the relationship is the existence of a right of control in respect of the manner in which the work is to be done. A distinction is also drawn between a contract for services and a contract of service and that distinction is put in this way: "In the one case the master can order or require what is to be done while in the other case he can not only order or require what is to be done 1956 _D!it1TtJ11gadliara_ _CAemical_ _WorM_ _I.Id._ v. _State_ _qf Sauras.o!r•_ _Bliagwati_ _J._ 1956 _Dharangadhara_ _**Chemical**_ _**Works**_ _Ltd._ •v. _**State**_ **ef** _**Saurasldra**_ _Bhagu:ati_ _J,_ 158 SUPREME COURT REPORTS [1957] ###### but how itself it shall be done." (Per Hilbery, J. in _Collins_ v. _Hertfordshire County Council(_ ). ) The test is, however, not accepted as universally ###### correct. The following observations of Denning L.J., at pp. 110, 111 in _Stevenson, fordan_ _and_ _Harrison_ _Ltd._ v. _Macdonald and_ Evans(~) are apposite in this context : "But in _Cassidy_ v. _Ministry of Health(•)_ Lord Justice Somervell, pointed out that that test is not universally correct. There are many contracts of service where the master. cannot control the manner in which the work is to be done as in the case of a captain of a ship. Lord Justice Somervell, went on to say : One perhaps cannot get much beyond this : 'Was the contract a contract of service within the meaning which an ordinary man would give under the words'? ###### "I respectfully agree. As my Lord has said, '' 1s almost impossible to give a precise definition of the distinction. It is often easy to recognize ·a contract of service when you see it, but difficult to say wherein the defference lies. A ship's master, a chauffeur, and a reporter on the staff of a newspaper are all employed under a contract of service ; but a ship's pilot, a taximan, and a newspaper contributor are employed under a contract for services. One feature which seems to run thro1,1gh the instances is that, under a contract of service, a man is employed as part of the ~siness, 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." We may also refer to a pronouncement of the House of Lords in _Short_ v. _J._ & _W. Henderson, Ltd•(')_ where Lord Thankerton recapitulated the four indicia of a contract of service which had been referred to in the judgment under appeal, viz., (a) the master's power of selection of his ~ervant, (b) the payment of wages or (1) [19471 K. B. 598, 6.15. **(2) [1952 1 T.** **L. R.** **IOI,** **III.** (3) [1951 I T. L. R. 539, 543 s.c. (1951] 2 K. B. 343, 352-3. (4) [1946 62 T. L. R. 427, 429. S.C.R.· SUPREME COURT REPORTS 159 other remuneration, (c) the master's right to control the method of doing the work, and (d) the master's right of suspension or dismissal, but observed : "Modern industrial conditions have so much affected the freedom of the master in cases in which no one could reasonably suggest that the employee was thereby converted into an indep:ndent contractor that, _if_ and when an appropriate occasion arises, it will be incumbent on this House to reconsider and to restate these indicia. For example, (a), (b) and (d) and probably also ( c), are affected by the statutory provisions and rules which restrict the master's choice to men supplied by the labour bureaux, or directed to him under the Essential Work provisions, and his power of suspension or dismissal is similarly affected. These matters are also affected by trade union rules which are atleast primarily made for the protection of wage-earners." Even in that case, the House of Lords considered the right of supervision and control retained by the employers as the only method if occasion arose of securing the proper and efficient discharge of the cargo as sufficiently determinative of the relationship betw<;en the parties and affirmed that "the principal requirement of a contract of service is the right of master in some reasonable sense to control the method of doing the work and this factor of superintendence and control has frequently been treated as critical and decisive of the legal quality of relationship". The position in law is thus summarised in Halsbury's Laws of England, Hailsham edition, Vol. 22, page 112, #### para. 191 : "Whether or not, in any given case, the relation of master and servant, exists is a question of fact ; but in all cases tht: relation imports the existence of power in the employer not only to direct what work the servant is to do, but also the manner in which the work is to be done.": and until the position is restated as contemplated in _Short_ v. /. & _W. Henderson Ltd.,_ (supra), we may take it as the prima facie test for determining the relationship between master and servant. 1956 _D!iarangatfhara_ _Chemieal_ _Works_ _Ltd._ v. _Stat•_ _of Saurashtra_ _B!tagwati_ _J._ 160 SUPREME COURT REPORTS [1957} The principle which emerges from these authorities is that the prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work, or to borrow the words of Lord Uthwatt at page 23 in _Mersey Docks and Harbour Board_ v. _Coggins_ & _Griffith_ _(Liverpool) Ltd., and_ _Another(),_ "The proper test is whether or not the hirer had authority to control the manner of execution of the act in question". The nature or extent of control which is requisite to establish the relationship of employer and employee must necessarily vary from business to business and is by its very nature incapable of precise definition. As has been noted above, recent pronouncements of the Court of Appeal in England have even expressed the view that it is not necessary for holding that a person is an employee, that the employer should be proved to have exercised control over his work, that the test of control was not one of universal application and that there were many contracts in which the master could not control the manner in which the work was done (Vide observations of Somervell, L.J., in _Cassidy_ v. _Ministry of_ _Health_ (supra), and Denning, L.J., in _Stevenson, fordan and Harrison Ltd._ v. _MacDonald and_ _Evans_ (supra).) The correct method of approach, therefore, would be to consider whether having regard to the nature of the work there was due control and supervision by the employer or to use the words of Fletcher Moulton, L.J., at page 549 in _Simmons_ v. _Health Laundry_ _Com-_ _pany(_ [2] ) : "In my opinion it is impossible to lay down ·any rule of law distinguishing the one from the other. 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 (1) [1947] 1 A. C. 1, •3· (•) [1910] 1 K. B. ~3. 549. 550. **S.C.R.** SUPREME COURT REPORTS 161 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 of the nature of professional services and that the contract is not one of service." The Industrial Tribunal on a consideration of the facts in the light of the principles enunciated above, came to the conclusion that though certain features which are usually to be found in a contract of service were absent, that was due to the nature of the industry and that on the whole the status of the _agarias_ was that of workmen and not independent contractors. It was under the circumstances strenuously urged before us by the learned counsel for the respondents that the question as regards the relationship between the appellants and the _agarias_ was a pure question of fact, that the Industrial Tribunal had jurisdiction to decide that question and had come to its own conclusion in regard thereto, that the High Court, exercising its jurisdiction under Arts. 226 and 227 of the Constitution, was not competent to set aside the finding of fact recorded by the Industrial Tribunal and that we, here, entertaining an appeal from the decision of the High Court, should also not interfere with that finding of fact. Reliance was placed on the observations of ###### Mahajan, J., as he then was, in Ebrahim Aboobakar v. #### Custodian General of Evacuee Property : "It is plain that such a writ cannot be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong. Indeed, it must be shown before such a writ is issued that the authority which passed the order acted without jurisdiction or in excess of it or in violation of the principles of natural justice .... But once it is held that the court has jurisdiction but while exercising it, it made a mistake, the wronged party can only take the course prescribed by law for .5etting matters right inasmuch as a court has jurisdiction to decide rightly as well as wrongly." 1956 _Dluzran:atlluzra_ _C!itmieal_ _Works_ _Ltd._ v. _State_ _of Saurasfitra_ _Bhapati_ _J._ (1) (1952] S. C. R. 696, 702. 21 1956 _Dhamngadham_ _Clumi<al Works_ _lid._ v. _Stal#_ _of_ _Saumsldro_ 162 SUPREME COURT REPORTS [1957] There is considerable force in this contention of the respondents. The question whether the relationship between the parties is one as between employer and employee or between master and servant is a pure question of fact. Learned counsel for the appellants relied upon a passage from Batt's "Law of Master and #### Servant", 4th edition, at page 10 : "The line between an independent contractor and a servant is often a very fine one ; it is a mixed question of fact and law, and the judge has to find and select the facts which govern the true relation between the parties as to the· control of the work, and then he or the jury has to say whether the person employed is **a servant** **or** **a contractor."** This statement, however, rests upon a passing observa###### sion of McCardie, J. ih Performing Right Society Ltd. v. _Mitchell and_ _Booker_ _(Palais_ _de_ _Danse_ )(') and is contrary to the catena of authorities which lays down that whether or not in any given case the relation of master and servant exists is purely one of fact. (Vide Halsbury's "Laws of England", Hailsham edition, Vol. 22, page 112, para. 191 ; Per Cozens-Hardy, M.R. ###### at page 547 and Per Fletcher Moulton, L.J. at page 549 in _Simmons_ v. _Heath_ _Laundry_ _Company_ (supra). It is equally well settled that the decision of the Tribunal q_n a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Art. 226 of the Constitution unless at the least it is shown to be fully unsupported by evidence. Now the argument of Mr. Kolah for the appellants is that even if all the facts found by the Tribunal arc accepted they only lead to the conclusion that the _agarias_ are independent contractors and that the finding, therefore, that they are workmen is liable to be set aside on tl1e ground that there is no evidence to support it. We shall, therefore, proceed to determine the correctness of this contention. Apart from the facts narrated above .in regard to which there is no dispute, there was the evidence of the Salt Superintendent of the appellants which was recorded before the Tribunal : _J!llilgwotiJ._ S.C.R. SUPREME COURT REPORTS 163 "The panholders are -allotted work on the salt pans by oral agreement. The Company has no control over the panholders in regard to the hours of work or days of work. The Company's permission is not sought in matter of sickness or in matter of going out to some village. The Company has no control over the pan holders as to how many labourers they should engage and what wages they should pay them. The company's supervision over the work of the panholders is limited to the proper quality as per requirements of the Company and as per standard determined by the Government in matter of salt. The company's supervision is limited to this extent. The Company acts in accordance with Clause 6 of the said agreement in order to get the proper quality of salt. Panholders are not the workmen of the Company, but are contractors. The men who are entrusted with _pattas,_ work themselves. They can engage others to help them and so they do. There is upto this day no instance that any panholder who is entrusted with a _patta,_ has not turned up to work on it. But we do not mind whether he himself works or not. ###### If any panholder after registering his name (for a _patta)_ gets work done by others, we allow it to be done. We own 319 _pattas._ Some _pattas_ have two partners. In some~ one man does the job. In all the pans, mainly the panholders work with the help of their (respective) families." Clause 6 of the agreement referred to in the course of his evidence by the Salt Superintendent provided : " _6._ We bind ourselves to work as per advice and i;:istructions of the officers appointed by them in connection with the drawing of brine or with the process of salt production in the pattas and if there is any default, negligence or slackness in executing it on our part or ###### if we do not behave well in any way, the Managing Agent of the said Company can annul this agreement and can take possession of the _patta,_ brine, well etc., and as a result we will not be entitled to claim any 1956 _D/iar1J11 gadhar_ _Chemieal_ _W otk_ _/.Jd._ v. _Stau_ 'II _SOilrashtra_ _Bhagunrll_ 1956 _**D/UJran.aadhara**_ _Chuni<al_ _Works_ ###### _ua._ v. _**Siok**_ _**If**_ _**Saurashtro**_ 164 SUPREME COURT REPORTS [1957] sort of consideration or compensation for any half processed salt lying in our _patta;_ or in respect of any ###### expense incurred or labour employed in preparing kiwa _patta,_ well bamboo lining etc." There was also the evidence of Shiva Daya, an _agaria,_ who was examined on behalf of the respond###### ents: "There is work of making enclosures and then of sinking wells. The company supervises this work. While the wells are being sunk, the company measures the density of the brine of wells. In order to bring the brine of wells to the proper density, it is put in a condenser and then the Company tests this and then ###### this brine is allowed to flow in the pattas . .... . The bottom of a _patta_ is prepared after it i• properly crushed under feet and after the company inspects and okays that it is alright, water is allowed to fl.ow into it. When salt begins to form at the bottom of a _patta,_ an officer of the company comes and inspects it. At the end of 21 months, the water becomes saturated, i.e., useless, and so it is drained away und~r the supervision of the company. Then fresh brine is allowed to flow into the _patta_ from the condenser. This instruction is also given by the company's officer." It was on a consideration of this evidence that the Industrial Tribunal came to the conclusion that the supervision and control exercised by the appellants extended to all stages of the manufacture from beginning to end1 We are of opinion that far from there being no evidence to support the conclusion reached by the Industrial Tribunal there were materials on the record on the basis of which it could come to the conclusion that the _agarias_ are not independent contractors but workmen within the meaning of the Act. Learned counsel for the appellants laid particular stress on two features in this case which, in his submission, were consistent only with the position that the _agarias_ are independent contractors. One is that they do piece-work and the other that they employ their own labour and pay for it. In our opinion neither of these two circumstances is decisive of the question. As S.C.R. SUPREME COURT REPORTS 165 regards the first, the argument of the appellants is that as the _agarias_ are under no obligation to work for fixed hours or days and are to be paid wages not per day or hours but for the quantity of salt actually produced and passed, at a certain rate, the very basis on which the relationship of employer and employees rests is lacking, and that they can only be regarded as independent contractors. There is, however; abundant authority in England that a person can be a workman even though he is paid not per day but by the job. ###### The following observations of Crompton, J. in Sadler v. _Henlock(_ ) are pertinent in this behalf: "The test here is, whether the defendant retained the p.:>wer of controlling the work. No distinction can be drawn from the circumstances of the man being employed at so much a day or by the job. I think that here the relation was that of master and servant, not of contractor and contractee." (See· also _Blake_ v. _T hirst(_ _[1 ]_ _)_ and Halsbury's "Laws of England'', Hailsham edition, Vol. 22, page 119, para. 194, wherein it is stated that if a person is a worker and not a contractor, "it makes no difference that his work is piece-work".) 1956 _Dharangadluzr11_ _Chemi&al_ _Works_ _Ltd._ _v._ _Stal4_ _qf SIJlll'a.rhtr11_ _BhagwaJi_ _]._ As regards the second feature relied on for the appdlants it is contended that the _agarias_ - are entitled to engage other persons to do the work, that these persons are engaged by the _agarias_ and are paid by them, that the appellants have no control over them and that these facts can be reconciled only with the position that the _agarias_ are independent contractors. This argument, however, proceeds on a misapprehension of the true legal position. The broad distinction between a workman and an independent contractor lies in this that while the former agrees himself to work, the latter agrees to get other persons to work. Now a person who agrees · . ~himself to work and does so work and is, therefore, a workman does not cease to be such by reason merely of the fact that he gets other persons to work along (1) (1855) 4 EI. & BI. 570, 578; (1855) 119, E.R. 209, 212. (2) (1863) 32 L. J. (Exchequer) 188. 1956 _**DharoTJ.l!Odhara**_ _Chdniciil W orkl_ ###### w. Y. _81111<_ _of_ ## _s-.u.,,._ _Bhagwati_ _j._ 166 SUPREME COURT REPORTS [1957] with him and that those persons are controlled and paid by him. What determines whether a person is a workman or an independent contractor is whether he ###### has agreed to work personally or not. If he has, then he is a workman and the fact that he takes assistance from other persons would not affect his status. The position is "thus summarised in Halsbury's 'Laws of England', Yol. 14, pages 651-652 : "The workman must have consented to give his personal services and not merely to get the work done, but if he is bound under his contract to work personally, he is Rot excluded from the definition, simply because he has assistance from others, who work under **him."** (See also _Grainger_ v. _Aynsley:_ _Bromley_ v. _Tams(');_ _Weaver_ v. _Floyd(•)_ and _Whitely_ v. _Armitage(').)_ In the instant case the _agarias_ are professional labourers. They themselves personally work along with the members of their families in the production of salt and would, therefore, be workmen. The fact that they are free to engage others to assist them and pay for them would not, in view of the above authorities, affect their status as workmen. There are no doubt considerable difficulties that may arise if the _agarias_ were held to be workmen within the meaning of s. Z(s) of the Act. Rules regarding hours of work etc;., applicable to other workmen may not be conveniently applied to them and the nature as well as the manner and method of their work would be such as cannot be regulated by any directions given by the Industrial Tribunal. These difficulties, however, are no deterrent against holding the _agarias_ to be workmen within the meaning of the definition if they fulfil its requirements. The Industrial Tribunal would have t<? very well consider what relief, if any, may possibly be granted to them having regard to all the circumstances of the case and may not be able to regulate the work to be done by the _agarias_ and the r~muneration to be paid to them by the employer in . (t) (1881) 6 Q.B.D. 18•. (•) (185>) 21 L.J.,QB. 151. (31 (1804) 16 w.P.. 144. S.C.R. SUPREME COURT REPORTS 167 the manner it is used to do in the ~ase of other industries where the conditions of employment and the work to be done by the employees is of a different character. These considerations would necessarily have to be borne in mind while the Industrial Tribunal is adjudicating upon the disputes which have been referred to it for adjudication. They . do not, however, militate against the . conclusion which we have come to above that the decision of the Industrial Tribunal to the effect that the _agarias_ are workmen within the definition of the term contained in s. 2(s) of the Act was justified on the materials on the record. We accordingly see no ground for interfering with that decision and dismiss this appeal with costs. _Appeal_ _dismissed._ LALIT MOHAN DAS 1956 _D/uirantiadhara_ _Chemical_ _Works_ _Ltd._ v. _Stall_ ~·J Saurashtr~ _BhagwaJi]._ _.November_ 29 _fl._ ADVOCATE-GENERAL, ORISSA ### (S. R. DAS c. J., BHAGWATI, VENKATARAMA AYYAR, ##### B. P. SINHA and S. K. DAs JJ.) _Legal_ _Practitioner-Report-Procedure-Not_ _open_ _to_ _District_ _fudge_ _to_ _send back report_ _to_ _the Subordinate Civil fudge-Report_ _once made proceedings_ _can_ _terminate_ _by-Final_ _Order of the High_ _Court_ _only-Member of the Bar-Officer of the_ _Court-Duty to_ _client_ _and Court-Dignity and decorum of the Court must be upheld-Con-_ _duct-Not a_ _mattt:t:_ _between individual member of Bar_ _and a member_ _of_ _fudicial_ _Service-Disciplinary_ _action-Punishment-Mitigating_ _arcumstances-lnterference by Supreme Court-Legal Practitioners_ _Act_ _(XVIII_ _of_ _1879),_ _s._ _14._ . 11it appellant pleader who already had strained relation with the Munsif made certain objectionable remarks in open Court, suggesting partiality and unfairness on the part of the Munsif. The Munsif drew up a proceeding under ss. 13, 14 of the Legal Practitioners Act, 1879, against the pleader and submitted a ~port to the High Court through the District Judge. An appliption to the Additional District Judge was filed by the pleader, for time to movt" the High Court to ge~ an order to have the matter heard by some Judicial Officer other than the 4-76 S.C. India/69