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SUPREME COURT OF INDIA
27th October, 1961.
J.L. KAPUR, K. SUBBA RAO AND RAGHUBAR DAYAL, JJ.
Shankar Balaji Waje, Appellant
Versus
The State of Maharashtra, Respondent,
Criminal -Appeal No. 63 of 1960,
Advocates appeared
Mr. A. V. Viswanatha Sastri, Senior Advocate (M/s. S. N. Andley and Rameshwar Nath, Advocates of M/s. Rajinder Narain and Co. with him), for Appellant; M/s. R. Ganapathy Iyer and R. H. Dhebar, Advocates, for Respondent,
FACTORIES ACT - S. 2(1) - "WORKER" - DEFINITION - PERSONS ROLLING BIDIS IN FACTORY - WHETHER "WORKERS" - S. 79 - LEAVE WITH WAGES - APPLICABILITY - S. 80 - WAGES DURING LEAVE PERIOD - CALCULATION.
Fact of the Case:
The appellant, the owner of a factory that manufactures bidis, engaged 60 persons to roll bidis in his factory. On August 12, 1957, the appellant issued a notice to the said persons terminating their services with effect from August 17, 1957. The Inspector of Factories filed 60 complaints against the appellant for infringing the provisions of S. 79(2) of the Act. The Magistrate found the appellant guilty and convicted and sentenced him to pay a fine of Rs. 10. On revision, the learned Additional Sessions Judge, Nasik, taking the view that the conviction should be quashed, referred the matter to the High Court under S. 438 of the Code of Criminal Procedure. A division bench, of the High Court, upheld the order of conviction and sentence passed by the learned Magistrate.
Finding of the Court:
The Supreme Court held that the persons rolling bidis in the factory were "workers" within the meaning of S. 2(1) of the Act and that S. 79 of the Act, which deals with the question of leave with wages, can apply to a worker who is paid wages according to the quantity of work done by him and not per day or per week.
Issues: 1. Whether the persons rolling bidis in the factory were "workers" within the meaning of S. 2(1) of the Act? 2. Whether S. 79 of the Act, which deals with the question of leave with wages, can apply to a worker who is paid wages according to the quantity of work done by him and not per day or per week?
Ratio Decidendi: 1. The Court held that the persons rolling bidis in the factory were "workers" within the meaning of S. 2(1) of the Act because: * They were engaged by the appellant to roll bidis in his factory. * They worked in the premises of the factory during the working hours of the factory. * They were paid wages at the rate of Rs. 2-2-0, or such other rate as agreed by them, per thousand bidis rolled. * The appellant exercised a right of supervision as the nature of the work required. 2. The Court held that S. 79 of the Act, which deals with the question of leave with wages, can apply to a worker who is paid wages according to the quantity of work done by him and not per day or per week because: * The words "full time earnings" in S. 80 of the Act, which deals with the calculation of wages during the leave period, can be taken to mean the amount earned by a worker for the daily hours of work fixed for a factory. * The factory registers would show the total full time earnings of each worker for the days during the month immediately preceding his leave. * The average shall be taken of the earnings of those days and the daily average of those earnings would be the criterion for fixing the wages during the leave period.
Final Decision: Appeal allowed.
Judgment
RAGHUBAR DAYAL, J. : (Majority Judgment: on behalf of Kapur J. and himself.) This appeal, by special leave, is directed against the order of the High Court of Bombay, rejecting the reference made by the Additional Sessions Judge, Nasik, and confirming the conviction of the appellant under S. 92 of the Factories Act, 1948 (Act LXIII of 1948), hereinafter called the Act.
2. The appellant is the owner and occupier of Jay-Parkash Sudhir Private Ltd. , a factory which Manufactures bidis. Pandurang Trimbak Londhe, hereinafter called Pandurang, rolled bidis in that factory for a number of days in 1957. He ceased to do that work from August 17, 1957. It was alleged by the prosecution that the appellant terminated Pandurang s services by a notice put up on August 12, 1957. The appellant, however, admitted the putting up of such a notice, but denied that Pandurang, the labourer, had left his service of his own accord.
3. Inspector Shinde, P. W. 1, visited this factory on August 22, 1957. He found from the weekly register and the wages register of the Factory that Pandurang worked for 70 days and earned 4 day s leave. Pandurang, however, did not enjoy that leave and was therefore entitled to be paid wages for that period i. e., for 4. days leave. He was not paid those wages, an therefore, the appellant contravened the provisions of S. 79 (11) of the Act. He consequently submitted a complaint against the appellant to the Judicial Magistrate, First Class, Sinnar.
4. It was contended for the accused before the Magistrate that Pandurang was not a worker within the meaning of that expression, according to S. 2(1) of the Act and that therefore no leave could be due to him and the appellant could not have committed the offence of contravening the provisions of S. 79(11). The learned Magitstrate did not agree with the defence contention and held Pandurang to be a worker and convicted the appellant of the offence under S. 92 read with S. 79 (11) of the Act and sentenced him to a fine of Rs. 10.
5. It may be mentioned that this case was a test case. Similar cases against the appellant with respect to the non-payment of leave wages to other workers were pending in the Court.
6. The appellant went in revision to the Court of the learned Additional Sessions Judge, Nasik. The Sessions Judge was of the opinion that Pandurang was not a worker and that the conviction of the appellant was bad. He accordingly referred the case to the High Court. The High Court, however, did not agree with the views of the Sessions Judge and, holding that Pandurang was a worker, rejected the revision and confirmed the conviction and sentence. It is against this order that this appeal has been filed.
7. Two points have been raised on behalf of the appellant. One is that Pandurang was not a worker within the meaning of that expression in the Act. The other is that even if Pandurang was a worker, he was not entitled to any leave wages under S. 80 of the Act.
8. The first contention is based on the established facts of the case which, it is submitted, do not make out the relationship of master and servant between the appellant and Pandurang, inasmuch as they indicate that the appellant had no supervision and control over the details of the work Pandurang did in the factory. The following are the established facts :
1. There was no agreement or contract of service between the appellant and Pandurang.
2. Pandurang was not bound to attend the factory for the work of rolling bidis for any fixed hours of work or for any fixed period. He was free to go to the factory at any time he liked and was equally free to leave the factory whenever he liked. Of course, he could be in the factory during the hours of working of the factory.
3. Pandurang could be absent from work on any day he liked. He could be absent up to ten days without even informing the appellant. If he was to be absent for more than ten days he had to inform the appellant, not for the purpose of taking his permission or lea
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