Decided on December 22,1969

GOPAL Respondents


SHIV DAYAL J - (1.) THIS is a petition under Articles 226 and 227 of the Constitution for a writ, order and directions to quash the orders passed by the Labour Court, Jabalpur, and the Industrial Court, Indore, for reinstatement of respondent No. 1 and payment of back wages.
(2.) THE petitioner is the Manager of a Bidi factory belonging to firm M/s Vrajlal Manilal and Co., Sagar. During the course of the business, the petitioner receives readymade bidis in bundles of 25 each, popularly known as "kattas". THE work of wrapping kattas with tissue paper (known as 'Jhilli') and affixing labels on the kattas is colloquially known as "Relai". THE petitioner engages Relaiwalas to wrap kattas. THE petitioner further alleges that Gopal (respondent No. 1) did Relai work for the petitioner. He was permitted to come to the petitioner's factory to do Relai work; he was paid on the basis of the quantity of work done at the agreed rates on the total output per week; no time was fixed for arrival or departure of Relaiwalas in the factory, nor they had to perform any stipulated quantity of work during the factory hours ; there was a room in the premises of the factory in which Relaiwalas worked; no instructions were given for the work to Relaiwalas; there was no supervision or control of the management on the manner of the work of respondent; he was not treated as a monthly paid employee in the factory and his attendance was never recorded ; he was not given any bonus or leave with wages ; he was not given any holidays, nor was required to apply for any leave; and in the course of the period of five months from November 19, 1958 to April 12, 1959, he worked only for 26 days. Gopal (respondent No. 1) made an application under section 16 of the G. P. and Berar Industrial Disputes Settlement Act, 1947 (hereinafter called the Act) to the Labour Court, Jabalpur, alleging that he was an employee of the petitioner as a Bidi packer. By an order dated April 22, 1959, he was dismissed on mala fide and baseless allegations. No charges were given to him. No notice was given to him, nor was any enquiry made against him. He contended that his dismissal was contrary to law. The petitioner resisted the application of respondent No. 1 before the Labour Court contending that he was not an employee as defined in the Act and that the provisions of section 16, or any other section of the Act, did not apply to the case. The jurisdiction of the Labour Court was challenged. The Labour Court held that Gopal (respondent No. 1, hereinafter called the respondent) was an "employee" within the meaning of section 2 (10) of the Act and that the dismissal order was in contravention of the principles of natural justice as it was made without giving to the employee a proper charge- sheet and without any enquiry. Accordingly, it directed reinstatement of the respondent No. 1 within 15 days from the date of the order and further directed the petitioner to pay back wages for the whole period, that is, from April 27, 1959 to the date of reinstatement; in default, to pay Rs. 500 by way of compensation in addition to the wages from April 27, 1959 to November 21, 1964 (the date of the order). The petitioner went in revision before the Industrial Court, Indore. The revision was dismissed.
(3.) THE following facts are not in dispute :-(1) THE respondent was paid at piece rate for putting wrappers and labels on kattas. (2) He could absent himself on any day, but on the day that he wanted to work, it was necessary for him to be present in the factory before 9 a. m. (3) Except as above, there was no time fixed for his going to the factory premises. He was free to leave the factory whenever he chose to do so. THEre were no fixed working hours for him. He had to work during the working hours of the factory only, that is, neither before 9 a.m. nor after 6 p.m. (4) He was required to work within the premises of the factory only. He could not take any material home and to insure this, whenever he left the factory, a search was taken of his person. (5) His work was supervised by a Munim and a Babu and the supervision consisted merely of examining at the end of the day whether the wrapping and labelling were proper. The question is whether on these facts, the respondent could be held to be an "employee" within the meaning of section 2 (10) of the Act, so as to give jurisdiction to the Labour Court under section 16. It runs thus :- "2. (10) 'Employee' means any person employed by an employer to do any skil'ed or unskilled manual or clerical work for contract or hire or reward in any industry and iacludes an employee dismissed, discharged or removed on account of any industrial dispute." ;

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