The right to supervise and control the manner in which the work is to be done is the prima facie test for determining the relationship of employer and employee.

JUDGMENT - (1) This Reference by the Additional Sessions Judge, Nasik, raises the vexed question of the connotation of the expression "employed" in S. 2(1) of the Factories Act which gives the interpretation of a "worker." It involves a decision trifling in pecuniary amount, but of considerable consequence to a large number of persons engaged as bidi rollers by manufacturers of bidis. The decided cases do not lay down any definition exclusive or inclusive of the expression "employed" nor any criterion of absolute applicability as to the exact conception of that expression used in the Factories Act (to be referred to by us as the Act). The question tha we have to determine is whether the relationship of employer and employee subsisted between the owner of a Bidi factory and a person rolling bidis in that factory and the question arose when the Inspector of Factories prosecuted the owner for contravening the provisions relating to leave in S. 79 of the Act. Four indices of a contract of service were discussed in a decision of the House of Lords in England and have been referred to in a recent decision of our Supreme Court. Of this mor hereafter.

(2) The accused is the owner and occupier of a Bidi factory, Jay Prakash Sudhir Private Limited and oe Pandurang Londhe did the work of rolling bidis in that factory. The services of Pandurang Londhe and 59 other persons doing similar work were terminated by the accused as from 17-8-1957 by putting up a notice dated 12-8-1957. The Inspector of Factories paid a visit to the factory of the accused on 22-8-1957 and found that Pandurang Londhe had worked for 70 days and had earned leave for 4 days which he had not enjoyed and took the view that he should have been paid wages for the leave period. The position as regards the other 59 persons was similar and the Factory Inspector filed sixity complaints against the accused alleging contravention by him of the provisions of S. 79(2) of the Act. The principal defence of the accused and one with which we are here concerned was that Pandurang Londhe was no a "worker" within the meaning of that expression as defined in the Act as he wa not "employed" by the accused Accused is the owner of a number of bidi factories where inter alia the work of rolling bidis is done by hundreds of persons. The learned First Class Magistrate, Sinnar, held against the accused and convicted and sentenced him to pay a fine of Rs.10/-. The matter was carried in revision to the Sessions Court at Nasik and the learned Additional Sessions Judge being of the view that the order of conviction against the accused should be quashed has made a report to this Court under S. 438 of the Criminal Procedure Code.

(3) Certain facts which are not in dispute and not disputable in this case are that in case of the persons who attend the factory of the accused for the work of rolling bidis the hours of work are fixed but there is no compulsion to attend the factory during those hours. They may attend the factory and may leave it at any time they choose during the working hours and can remain absent. There is no actual `supervision on their wor in the ordinary sense of that expression. They are not paid a fixed daily or weekly wage but are paid at fixed rates on the quantity of bidis turned out by them. It is also clear from the evidence that there was no express contract between the accused and Pandurang Londhe about the "work" and there was no stipulatin about the minimum quantity of work to be done by him every day. The learned Judge below has referred to a decision of the Supreme Court. Chintaman Rao v. State of Madhya Pradesh, AIR 1958 SC 388 and to some other decisions and observed that it is clear from the decided cases that the real test to find out if a person is a worker or not is to see whether the owner or occupier of the factory exercises any supervision and control over him as to the details of his work and on a cosideration of the facts stated above he has expressed the view t

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