Workers employed in a factory are entitled to leave under Section 79 of the Factories Act, 1948, if they have worked for the required number of days in the previous calendar year and have not taken more leave than they are entitled to.

Judgment

WANCHOO, J. : This is an appeal by special leave in an industrial matter. The appellant is the manager of a biri factory in Nagpur. Respondents 2 to 4 are working in that factory. They applied for leave for fifteen days from December 18, 1955, to January 1, 1956, and did not go to work during that period. The appellant did not pay their wages for these days and in consequence they applied to the Payment of Wages Authority (hereinafter called the Authority) for payment to them of wages which had been withheld. Their claim was that they were entitled to fifteen days leave in the year under Ss. 79 and 80 of the Factories Act, 1948. The Authority allowed the claim and granted them a sum of Rs. 90/6/- in all as wages which had been withheld for the period of leave. Thereupon, the appellant filed an application under Art. 226 of the Constitution before the High Court at Nagpur. His main contention was that respondents 2 to 4 were not workers within the meaning of the Factories Act and could not therefore claim the benefit of S. 79 thereof. The respondents contended that they were workers within the meaning of the Factories Act and were entitled to the sum awarded to them by the Authority. The High Court on a consideration of the circumstances came to the conclusion that respondents 2 to 4 were workers under S. 2(1) of the Factories Act and therefore the order of the Authority was correct and dismissed the petition. The appellant then applied for a certificate to appeal to this Court which was refused. He then obtained special leave from this Court and that is how the matter has come up before us.

2. Section 2 (1) defines a worker to mean a person employed, directly or through any agency, whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process. The main contention of the appellant is that respondents 2 to 4 are not employed in the factory within the meaning of that word in S. 2(1). Reliance in this connection is placed on two decisions of this Court, namely, Dharangadhara Chemical Works Ltd. v. State of Saurashtra, 1957 SCR 152 and Chintaman Rao v. State of Madhya Pradesh, 1958 SCR 1340.

3. In Dharangadhara Chemical Works, 1957 SCR 152, this Court held with reference to S. 2(s) of the Industrial Disputes Act, which defined "workman" that the word "employed" used therein implied a relationship of master and servant or employer and employee and it was not enough that a person was merely working in the premises belonging to another person. A distinction was also drawn between a workman and an independent contractor. The prima facie test whether the relationship of master and servant or employer and employee existed was laid down as 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 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 to the question was held to be whether having regard to the nature of the work, there was due control and supervision of the employer.

4. The matter came up again for consideration in Chintaman Rao s case, 1958 SCR 1340 which also happened to relate to biri workers, and S. 2 (1) of the Factories Act had to be considered in it. It was held that the test laid down in Dharangadhara Chemical Works, 1957 SCR 152 with respect to S. 2 (s) of the Industrial Disputes Act would also apply to S. 2(1) of the Factories Act. Finally, it was pointed out that the question whether a particular person working in a factory was an independent contractor or a worker would depend upon the terms of the contract entered into between him and the employer and no general proposition could be laid down, which woul