imp/urg

Y V Vishweshwar Rao (Advocate ) 18 August 2009

AIR 1958 SUPREME COURT 388 "Chintaman Rao v. State of M.P."(V 45 C 60)

18th February, 1958.

Coram : 3 B. P. SINHA, S. J. IMAM, K. SUBBA RAO, JJ.

Criminal Appeal No. 93 of 1955, D/- 18 -2 -1958

Chintaman Rao and another, Appellants v. State of M.P., Respondent.

(From : Criminal Revn. No. 295 of 1954, D/- 16-9-1954-Nag.)

(A) Factories Act (63 of 1948), S.2(1) - FACTORIES - Manufacturing process - Bidis.

The making of bidis is a manufacturing process. (Para 9)

(B) Factories Act (63 of 1948), S.2(1) - FACTORIES - INDUSTRIAL DISPUTE - Employment - Its ingredients.

Industrial Disputes Act (14 of 1947), S.2(s).

The concept of employment involves three ingredients : (1) employer (2) employee and (3) the contract of employment. The employer is one who employs, i.e., one who engages the services of other persons. The employee is one who works for another for hire. The employment is the contract of service between the employer and the employee whereunder the employee agrees to serve the employer subject to his control and supervision. (Para 9)

(C) Factories Act (63 of 1948), S.2(I) - FACTORIES - INDUSTRIAL DISPUTE - Independent contractor and worker- Distinction between - Test.

Industrial Disputes Act (14 of 1947), S.2(s).

@page-SC389

A 'contractor' is a person who, in the pursuit of an independent business, undertakes to do specific jobs of work for other persons, without submitting himself to their control in respect to the details of the work. There is, therefore, a clear-cut distinction between a contractor and a workman. The identifying mark of the latter is that he should be under the control and supervision of the employer in respect of the details of the work. The prima facie test for the determination of the relationship between the employer and employee is the existence of the right in the employer to supervise and control the work done by the employee not only in the matter directing what work the employee is to do but also the manner in which he shall do his work. (S) AIR 1957 SC 264, Foll (Paras 10, 11)

An agreement between the management of a bidi factory and an independent contractor was that the contractor should receive tobacco from the management and supply them rolled in bidis for consideration. He was not under control of the factory management and he could manufacture bidis wherever he pleased. The management could not regulate the manner of discharge of his work. His liability was discharged by his supplying bidis and delivering them in the factory. The terms of the contract between the management and the contractor did not enjoin on the latter to work in the factory.

Held that the contractor in this case was not employed by the management as worker but was only independent contractor who performed his part of the contract by making bidis and delivering them at the factory. (Para 12)

(D) Factories Act (63 of 1948), S.2(1) - FACTORIES - "Directly or through any agency" - Coolies employed by independent contractor are not workers.

The words "directly or through any agency" in S. 2 (1) indicate that the employment is by the management directly or through some kind of employment agency and in either case there is a contract of employment between the management and the persons employed. There should be a privity of contract between them and the management. Where coolies are not employed by the management directly nor are they employed by the management through the agency of an independent contractor it follows that coolies employed by the said contractor are not workers within the meaning of the definition in the Act. (Para 13)

The various provisions contained in different sections of the Act give a clear indication that a worker under the definition of the Act is a person who enters into a contract of service under the management and does not include an independent contractor or his coolies or servants who are not under the control and supervision of the employer. AIR 1947 Nag 83 and AIR 1953 Nag 172, Expl.; AIR 1954 All 44, Ref. (Para 15)

Whether a particular person, under whatever designation he may be known, is a worker or not under the Act depends upon the terms of the contract entered into between him and the employer. Hence, no general proposition can be laid down that under no circumstances an independent contractor can be considered to be a worker within the meaning of its definition in the Act. (Para 21)

vikram singh (advocate) 19 August 2009

sir kindly send the entire judgment for necessary filing.

thanks and regards.

Y V Vishweshwar Rao (Advocate ) 19 August 2009

Dear Shahidhar !

You are in Hyderabad - Vanasthalipuram under RR District Courts !

The AIR1958 SC is available in RR District Court Libreray

Your Email ID is not avaialble

I Will Send Xerox copy of the Full Judgment by Post

with Regards ! YVVRAO Advocate Hanamkonda Warangla AP .

vikram singh (advocate) 21 August 2009

SIR THANK YOU VERY MUCH FOR NECESSARY INFORMATION.

any way i will mention here under my e-mail ID for further necessary compliance.

sashidharmarampudi@yahoo.com

Y V Vishweshwar Rao (Advocate ) 25 August 2009

Dear Shahidhar !

I have forwarded a Xerox copy of the aobve Judgment AIR 1958 SC Page 388 - to Your Regiustered Address - through Professional Courienr - but the same is returned to me as not calimed / or/ not residing !