JUDGMENT

D. A. DESAI, J.:— The State of U. P. referred an industrial dispute between the appellant M/s. Shining Tailors, the employer and the respondent workmen for adjudication to the Industrial Tribunal, Lucknow.

2. Chronology of events leading to the surfacing of the dispute may be briefly stated. Appellant-employer has a fairly big tailoring establishment at Subhashnagar, Faizabad. Respondent workmen in number formed a Union named Faizabad Tailoring Workers Union (Union for short). The Union espoused the cause of the workmen by making a demand for increasing the tailoring charges and there was a strike in support of the demand. The timeworn usual response of the employer was to dismiss some workmen and then declare a lockout, a fact in dispute and terminate the service of all the workmen. This led to the industrial dispute being referred to the Industrial Tribunal under Section 4K of the U. P. Industrial Disputes Act, 1947. The reference was not happily worded but the Tribunal was called upon to adjudicate on the question whether the lockout declared by the employer on July 27, 1974 and the subsequent action of termination of service of the workmen was legal and valid; if not, what relief should be given to the workmen ?

3. After the workmen submitted the statement of claim, the employer resorted to the usual clitich of contending that there is no relationship of master and servant or employer and workmen between the appellant and the respondents. A preliminary issue was raised to the effect whether there has been no relationship of master and servant between M/s. Shining Tailors, Faizabad and the persons mentioned in the annexure to the order of reference for reasons mentioned in para 5 of the written statement of the employer? Reasoning of the Tribunal is jumbled and confusing but when properly analysed the Tribunal appears to have reached the conclusion that the respondent-workmen were independent contractors paid on piece rate and were not the workmen of the appellant employer. As a corollary, the Tribunal further held that as the respondents were not the workmen of the appellant, there was no question of declaring a lockout in respect of them. So saying the tribunal rejected the reference.

4. The Union filed Writ Petition. No. 2466 of 1978 in the Allahabad High Court sitting at Lucknow. The Division Bench of the High Court in terms held that the reference was competent and accordingly issued a writ of certorari quashing the award of the Tribunal and remitted the case to the Tribunal for disposing of the reference on merits. Hence this appeal by special leave.

5. We have gone through the record and especially the evidence recorded by the Tribunal. The Tribunal has committed a glaring error apparent on record that whenever payment is made by piece rate, there is no relationship of master and servant and that such relationship can only be as between principal and principal and therefore, the respondents were independent contractors. Frankly, we must say that the Tribunal has not clearly grasped the meaning of what is piece rate. If every piece rated workman is an independent contractor lakhs and lakhs of workmen in various industries where payment is correlated to production would be carved out of the expression workman, as defined in the Industrial Disputes Act. In the past the test to determine the relationship of employer and the workman was the test of control and not the method of payment. Piece rate payment meaning thereby payment correlated to production is well-reognised mode of payment to industrial workmen. In fact, wherever possible that method of payment has to be encouraged so that there is utmost sincerity, efficiency and single minded devotion to increase production which would be beneficial both to the employer, the workmen and the nation at large. But the test employed in the past was one of determining the degree of control that the employer wielded over the workmen. However, in the identical situation in S