P.B.GAJENDRA GADKAR, J.

(1) THE respondent Bibawe made an application to the Industrial Tribunal at Bombay under s. 33-A of the Industrial Disputes Act, 1947. He alleged that he had been employed by the appellant M/s. Kirloskar Oil Engines, Limited, as a watchman since July 21, 1958, and that he had been working as such watchman with the appellant and had become its permanent workman. On May 15,1960, the Security Officer of the appellant Company intimated to him that he had been discharged from service with effect from that date. The respondent urged that at the time when this order of discharge was orally served on him, an industrial dispute was pending between the appellant and its employees before an Industrial Tribunal and as such the respondent could not be discharged by the appellant without obtaining the approval of the Industrial Tribunal. In other words, his case was that his discharge was in contravention of the provisions of s. 33 and that is the basis of his application under s. 33-A.

(2) THE appellant denied that the respondent was its employee. It pleaded that the respondents services had been made available to the appellant by an arrangement, the terms of which clearly indicated that even whilst the respondent was working as a watchman of the appellant, he was not the employee of the appellant in the legal sense. That being so, it was argued that s. 33 was not contravened and the application under s. 33-A was incompetent.

(3) IT would thus be seen that the narrow point of dispute between the parties before the Tribunal was whether or not the respondent was the appellants employee and as such could be said to be a workman concerned in the dispute which was pending industrial adjudication at the time of his discharge. The Tribunal set forth the rival contention of the parties on this point and observed that it could not accept either of the extreme contentions taken by both the sides; even so in substance the Tribunal seems to have taken the view that s.33 had been contravened by the appellant and so an order has been passed directing the appellant to reinstate the respondent with full back wages from the date of his discharge. It is against this order that the appellant has come to this Court by special leave.

(4) ON behalf of the appellant Mr. Shroff contends that the view taken by the Tribunal that the respondent was the appellants employee is plainly inconsistent with the scheme under which the respondent began to work as a watchman of the appellant and he argues that the oral evidence adduced by the parties in the present proceedings also show that the conclusion of the Tribunal is erroneous. In our opinion this contention is well founded and must be upheld.

(5) TURNING to the scheme under which the respondent was asked to do the work as a watchman by the appellant, most of its material terms emphatically bring out the fact that the respondent cannot be treated as the appellants employee and cannot claim the status of an industrial employee. It appears that the scheme has been evolved by which watchman are supplied by the police Department to different employers and this scheme was evolved because it was found that there was a demand for such watchman by private individual. There are several paragraphs which set out the material terms and conditions of the scheme. The private person who require the services of watchman have to apply to the District Superintendent of Police, The District Superintendent of Police supplies a watchman if ho thinks a suitable watchman is available. The amount on account of pay of the watchman is recovered per month in advance from the employer. This amount has to be credited to the Watchman Fund on receipt of advance bills submitted from the office of the Superintendent of Police. Out of the amount thus recovered from the employer Rs.5/8.00 per month are deducted on account of the cost of clothing supplied and the balance is pa