D.L.MEHTA, J. - (1.) THE petitioner, in para 5 of the writ petition has submitted that he has performed the duties from Oct. '87 to March, '88 as specified the details of which have been given in para 5 for 143 days on contract basis. In para 6 of the writ petition it has been mentioned that he was getting 6 N. Ps. per enrolment form and 30 N. Ps. per mark-sheet for the preparation of the mark-sheet. He has submitted that the petitioner has been paid at the rate of the Rs. 350 per month in all and Rs. 1800 are outstanding under the University. In para 10 of the writ petition he has further submitted that from March, '88 to Oct. '88 he has worked for 211 days. Thus, the petitioner submits that in fact he was working for 354 days. THE subsequent period of 211 days is on the basis of salary of Rs. 750/- per month. He has produced Annexure 1 and Annexurh 2 to show that he was drawing the salary @ Rs. 750/- per month Annexure 3 is the certificate issued by the Dy. Registrar of the University in which it has been mentioned that the petitioner has worked for the period from 16-3-1988 to 13-6-1988, 18-6-1988 to 10-9-1988 and 13-9-1988 to 12-10-1988. THE petitioner was performing the clerical duties. THE learned counsel for the petitioner submits that some appointments were made, thereafter, and his name was deleted. He submitted the application Ex. 4. THE respondent has come with a case that for 143 days the petitioner has worked as an independent contractor on piece rated work basis only in the following days in the month of October, '87 to March, '88 and was paid Rs. 350/- for those days. Thus, the contention of the respondent is that he was a piece-rated workman and he was not paid salary on daily wages.
(2.) THE submissions made by the respondent also lead us to take the view that the petitioner him self was performing the duties and he was not taking assistance from any one. THE use of the word 'independent contractor' is only to show that the work was done on the basis of independent contract. THE respondent has never said that the petitioner has employed other persons. This fact is other evident that a poor man who has received Rs. 350/- within a period of six months or so he cannot employ any one else, he is the real employee. Thus, the respondent has admitted that the petitioner has worked for 211 days as mentioned in para 10 of the writ petition. THE contention of the respondent is that 143 days cannot be added with 211 days as the system of employment was different. As far as the 211 days is concerned, the contention of the respondent is that the petitioner was working as their employee on a fixed salary of Rs. 750/- per month. As far as the 143 days is concerned the contention of the respondent is that he was working on a piece rated work basis. Mr. Samdaria, the learned counsel for the petitioner has cited before me the case of Dharangadhra Chemical Works, Ltd. V. State of Saurashtra (1 ). THEir Lord-ships have held as under : "further the fact that the persons so engaged are paid on piece-rate basis and that they could employ their own labour and pay for it could not be considered to be decisive factors to hold them as independent contractors when the employer had power of supervision and control at all stages of the from work beginning to end. THEre is abundant authority that a person could be a workman even though he is paid not per day but by the job. A person who agrees himself to work and does so work and is therefore a workman does not cease to be such by reason merely of the fact that he gets other persons to work along with him and that these persons are controlled and paid by him. What determines whether a person is a workman or an independent contractor is whether he has agreed to work personally or not. If he has, then he is a workman, and the fact that he takes assistance from other persons would not affect his status. Whether or not in any given case the relation of master and servant exists is purely one of fact. Agarias engaged by a salt company to work on the plots of lands to manufacture salt were, as per the agreement, under the general supervision and control of the officers of the company at all stages of manufacture from beginning to end. In the circumstances they must be held to be "workman" within the meaning of S. 2 (s) of the Industrial Disputes Act and not as independent Contractors even though they had no fixed hours of work. THE facts that they were paid on piece rate basis and that they could employ others and pay them could not be considered to be decisive in holding them as independent contractors". Mr. Samdaria has also cited before me the case of Bhagaband Colliery v. Their Workmen Their Lordships have held as under: "the management of a colliery recruited labourer through some of their employees, who, besides doing their normal work and drawing their normal salaries, recruited and supplied the labourer for which they were paid commission on the output of the labour force supplied by them. These employees, who were called "sirdars" also carried out the duty of supervising the work of the labourer supplied by them. On the termination of this system of recruitment, the management intimated to these sirdars that the "sirdari commission' which was being paid to them would be stopped. On the question whether these sirdars were "workman" under the Industrial Disputes Act, 1947, so that their dispute with the management as to the continuation of payment of the commission could be an "industrial dispute" which could be referred to an Industrial Tribunal under the Act, Held, that these employees should be considered as "workmen" employed by the management even with respect to the supervisory work performed by them so that they held two kinds of employment under the management, viz. , their normal employment and also as supervisors of the labour force. The commission paid to them would also fall within the definition of "wages" in the Act as it is a remuneration "capable of being expressed in terms of money". Therefore, the dispute regarding the continuance of the payment of sirdari commission would be an 'industrial dispute' which could be referred to an Industrial Tribunal under the Act. " Mr. Samdaria has also cited before me the case of Shining Tailors v. Industrial Tribunal II UP Their Lordships have held the 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 workman and the notion at large. Their Lordships held that every piece rate workman is an independent contractor and payment the correlated to productions would be carved out of the expression 'workman' as defined in the Industrial Disputes Act. Their exists relationship of the master and servant even a piece rated workman/employee or a workman is under the control and supervision of the employer. He cannot do anything other than the work interested to him. He is satisfied that he is doing the work with sincerity, faithfully and correctly. Any mistake in the performing of the work may result in the reduction of his wages or the payment and also may lead to a position of discontinuation of employment. Thus, the piece-rated workman generally goes with sincerity devotion and single minded devotion to increase production and is beneficial to the respondents as well as to the employer. Mr. Samdaria has cited before me the case of this Court Yashwant Singh Yadav v. State of Raj. This Court has held that the part time emp-loyee is a workman. Mr. Soral also relied the case of Dharangadhra Chemical Works, Ltd. v. State of Saurashtra (supra), which was cited by the petitioner. This case does not help the respondent. The respondent has not come with a case that the petitioner employed others to work for him. Mere expression of the word 'contractor' will not take away the case out of the perview of the definition of the word 'workman'. It will not be out of place to mention here that the petitioner has received Rs. 350/- only and that too in 143 days. This is not a case of contractor but it is a case of contract between the University and the petitioner. The petitioner was working on job basis and in this case of Dharangadhra Chemical Works, Ltd. v. State of Saurashtra & ors. (Supra) which has been held that the piece rated work or work on job basis are also falls within the perview of workman. The petitioner was a workman even for 143 days referred to in para 5 of the writ petition. Thus,ithe admitted plea that the petitioner has worked for 143 days and Section 25-F can be invoked in his favour. No disputed questions are involved in this case. Without following the procedure laid down under Section 25-F, the services of the petitioner were terminated. Mr. Soral read out two affidavits filed later on, one of K. K. Mrttal and other of D. P. Sharma, It was submitted in the affidavit that they have employed 70 persons subsequently and now there is no vacancy. This will not take away the right of the petitioner. The petitioner has a preferential right also under Section 25-G to be considered for employment. In the result, the writ petition is accepted and the petitioner may be treated under employment for the purpose of continuation of service from 30-10-1988 to this date. He should be taken back in employment immediately. As far as the question of back wages is concerned, the petitioner can move under the Industrial Law particularly the provisions of Section 33 (c) (2) for the determination of the wages and the respondent will be at liberty to prove that the petitioner was in gainful employment some where else, if it is proved that the petitioner was in gainful employment some where else then the amount was earned by the petitioner can be deducted out of the back wages.
(3.) THE respondent will be at liberty to act in future according to law. The writ petition is disposed of accordingly. No order as to cost. .;