Decided on October 28,1969

East India Carpet Co. (P) Ltd. Gwalior Branch Appellant


A.P SEN,J. - (1.) THIS petitioner under Articles 226 and 227 of the Constitution is directed against an award of the Madhya Pradesh Industrial Court, dated 18.8.1966 made on a reference by the State Government under section 51 (a) of the Madhya Pradesh Industrial Relations Act, 1960, of a dispute concerning the conditions of service of certain weavers employed by the petitioner -Company on a contract basis, for the manufacture of its carpets outside its factory (hereinafter referred to as the "Act", the "management" and the "weavers", respectively).
(2.) THE petition arises in the following circumstances. The management raised an objection before the Tribunal as regards the competence of the reference on the ground that the weavers were in reality not their employees but were independent contractors and therefore, there could be no industrial adjudication of a dispute, if any, relating to their terms of employment as an industrial dispute. The Tribunal by its order dated 23.3.1965, overruled the objection and proceeded to render the impugned award that the weavers were entitled to the benefits of the Provident Fund Scheme, bonus, additional wages and some other benefits which the workmen employed in the factory enjoy. The main challenge before us is to the validity of the Tribunal's order holding the reference to be competent. The correctness of the award is also questioned, but it is not necessary for us in this case to deal with the ultimate award, on the view that we take of the invalidity of the reference. Under section 51 (a) of the Act, the State Government are empowered to make a reference to the Tribunal only of an 'industrial dispute' as defined in section 2 (17), meaning a dispute which touches upon or arises out of the relationship of employer and employee. Now, the question whether the weavers are 'employees' of the management depends on a construction of section 2(13) of the Act, which reads as follows: - "2(13) 'employee' means any person employed in any industry to do any skilled, unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied and includes." The legal connotation of the word 'employed' is well known. It connotes the existence of a jural relationship of master and servant between the employer and the employee. In other words, it involves the concept of employment under a contract of service.
(3.) THE matter relates to a subject which has been discussed in a long line of authorities. We do not propose to make any discussion of authority at all and for a very good reason. The right approach to cases of this kind lies not so much by reference to facts of other cases arising under similar legislation, sometimes under different legislation but by reference to the facts of the particular case and then, in the light of those facts as so found, to apply the well settled principles for the purpose of determining whether a particular contract of employment is a contract of service or for services. The principles are so well settled that we need only re -state them and then, ascertain from the facts of this particular case, whether the weavers fall on one side of the line or the other. The principles are these. The relation of master and servant imports the power in the employer not only to direct what work tae servant is to do, but also the manner in which the work is to be done. The extent of control is apt to vary in different industries and is by its very nature incapable of being precisely defined. In contra -distinction, an independent contractor is to be regarded a, a person carrying on an independent business.;

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