AMBADAS RAMBHAU GUJAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is a petition filed to challenge the validity of the notification dated 9 January, 1963 issued by the State Government under S. 5(1) of the Bombay Shops and Establishments Act, 1948 (hereinafter referred to as the Act), and for an injunction restraining respondent 2 who is the Inspector of Shops and Establishments, Bombay Municipal Corporation, from proceeding with certain criminal proceedings adopted by him against petitioner 1 in the Court of the Presidency Magistrate. The petitioners carry on business of tailors and outfitters. They say that in most of the tailoring establishments including their establishment, the practice consistently has been to keep one or two persons who are full time cutters. Such cutters do the main work of taking measurements and marking and cutting out the cloth. These persons are truly called the tailors. In addition to these cutters, most of the tailoring establishments entrust the work or job of stitching of garments to other persons who are known in the trade as stitchers. The petitioners say that there is no supervision or control by the establishment over the details or the manner in which the work should be done by the stitches According to them, the relationship of master and servant does not subsist between the owner of the establishment and such stitchers; such stitches are really independent contractors. The petitioners, therefore, say that the stitches are outside the purview of the Act. The petitioners do not enter the names of such stitches in the register maintained by them under the Act. In July, 1957, petitioner 1 was prosecuted for failure to maintain a register of employment, leave register and leave book in respect of his stitchers. Petitioner 1 was acquitted in these proceedings by the Presidency magistrate. No appeal was preferred by the State from the decision of the learned Presidency Magistrate. In December 1958, nine of the stitches working in the petitioners' establishment filed applications under the Payment of Wages Act to recover weekly -off wages. In these applications, which were heard together by the Payment of Wages Authority, the petitioners raised a preliminary objection that these stitches were independent contractors, that the relationship of employer and employer did not subsist between the stitches and the owner of the establishment and, therefore, the Payment of wages Authority had no jurisdiction to entertain these applications. The preliminary contention urged on behalf of the petitioners was accepted in those applications. It was held in those applications that stitches were independent contractors and, therefore, the Payment of Wages Authority had no jurisdiction to entertain those applications. The petitioners further say that similar prosecutions were launched against proprietors of other tailoring establishments for alleged contravention of the provisions of the Act but in all the proceedings, the proprietors of the establishments were acquitted. Even the appeals preferred by the State Government from those orders of acquittal were rejected by this Court. The petitioners further say that in order to circumvent the effect and implication of these judgments of the High Court, the State Government, in purported exercise of the powers under S. 5(1) of the Act, issued a notification dated 9 January, 1963 whereby the State Government has declared that a person working as a tailor on piece -rate wages in the premises of an establishment to be a person to whom the provisions of the Act applicable in relation to persons employed in shops [except the provisions of Ss. 14 and 63(1) thereof] shall apply with effect from February 1, 1963. After this notification was issued in April 1963, the Bombay Merchants, Tailors and Outfitters' Association made a representation to the Hon'ble Minister or Labour stating that the notification issued was practically unworkable and caused considerable hardship and financial burden upon the tailoring establishment. To this representation no reply has so far been received by the association. In July, 1963, petitioner 1 was again prosecuted on a complaint filed by respondent 2 for failure to maintain a register of employment in the form J or H prescribed by the rules made under the Act in respect of some of the employees. That prosecution was still pending when this petition was filed. The petitioners are challenging the validity of this notification issued by the State Government on 9 January, 1963 and also contend that the criminal proceedings adopted against petitioner 1 are illegal and without jurisdiction. The petitioners have only made the State of Maharashtra and the Inspector of Shops and Establishments, Bombay Municipal Corporation, who filed the complaint against the petitioners, as party -respondents to this petition. Later on, it appears that the Maharashtra Tailoring Workers' Union and the Bombay Labour Union, which are the unions registered under the Trade Unions Act, have been made party -respondents on their respective application.

(2.) THE affidavit of Shanbaug, Under Secretary to the Government of Maharashtra, Industries and Labour Department, filed on behalf of respondent 1 shows that the Government does not accept the position that there is no relationship of master and servant between the owners of the establishment and the stitches and it is denied that there is no contract of service between the statuaries and the proprietor of the establishment or that such stitches are independent contractors. It is further stated that some tailoring establishments were deliberately avoiding to keep muster -rolls as required to be maintained under the Act with a view to deprive the stitches of the benefits and other facilities as are available to the other employees under the Act. The Government, therefore, with an intention to give such benefits issued the impugned notification dated 9 January, 1963.

(3.) THE entire basis of argument depends upon the question whether the relationship of master and servant or employer and employee subsists between the petitioners and the stitches working in the establishment. The question whether relationship of master and servant or an employer and employee subsists has been the subject of consideration by their lordships of the Supreme Court in a large number of cases. In Dhrangadhra Chemical Works, Ltd. v. State of Saurashtra : (1957)ILLJ477SC , the question that arose for consideration before their lordships was whether agarias, a class of professional labourers, who were working as labourers were workmen within the meaning of the Industrial Disputes Act of 1947. The facts of the case show that the agarias work themselves with the members of the family and were free to engage extra labour on their own account. No hours of work were prescribed and no muster -rolls were maintained. The working hours of these agarias were not controlled by the owners of the pattas. The owners had not made any rules as regards the leave or holidays. Agarias were free to go out of the factory after making arrangements for the manufacture of salt. Thus certain features which are normally to be found in the contract of service were absent in the case of Agarias. The industrial tribunal held that on the whole the status of Agarias was that of workmen and not that of independent contractors particularly as supervision and control was exercised by the owner of the salt pattas extending to all the stages of manufacture from beginning to end. The view taken by the industrial tribunal was ultimately upheld by their lordships no the view of the facts found. It was held in this case that the real test whether a person was workmen, was whether he had been employed by the employer and a relationship of employer and employee or master and servant subsisted between them and it was well -settled that the prima facie test of such relationship was the existence of the right in the employer not merely to direct what work was to be done but also to control the manner in which it was to be done, the nature or extent of such control varying indifferent industries and being by its nature incapable of being precisely defied. The correct approach, therefore was to consider whether, having regard to the nature of the work, there was due control and supervision of the employer. It was further held that the question whether the relation between the parties was one as between an employer and employee or master and servant was a pure question of fact depending upon the circumstances of each case.