SARJUPRASAD Vs. STATE OF M.P.

JUDGEMENT

(1.) BY this Order, Criminal Revision No. 169 of 1974 (Bhakauram v. State of MP) and Criminal Revision No. no of 1974 (Radhelal v. State of M.P.) are also disposed of as common questions are involved based on similar facts. The applicants in each of these cases have been convicted under section 22 (A) of the Minimum Wage., Act, 1948 for contravention of Rule 29 (2) framed under the Act and sentenced to pay fine of Rs. 50/ -each.

(2.) THE applicants are bidi contractors and they get bid is prepared by bidi rollers and supply them to the manufacturers. On 19 -8 -1972 the Labour Inspector inspected the establishments of the applicants and found by enquiry on the spot that the applicants had not issued wage slips in Form 12 as required under Rule 29 (2) read with section 18 of the Act. He, therefore, charge sheeted the applicants. The statement of the Labour Inspector has been duly corroborated by one of employees of the applicants examined in each of the cases. His version finds further corroboration from the inspection note Ex. -P -1 recorded by the Inspector at the time of inspection. The applicant abjured their guilt and submitted that they were neither employer nor the bidi rollers were their employees and so there was no question of issuing any wage slip. A defence witness was examined in support. It is not in dispute that the applicants used to supply bidi leaves and tobacco to bidi rollers who used to take the material to their home and prepare bidis there. The bidis so prepared used to be handed over to the applicants who used to reject the bidis which were not prepared according to specification. Then the applicant used to pay the bidi rollers on the basis of the number of bidis rolled by each of them. The learned trial Magistrate on appreciation of evidence came to the conclusion that the bidi rollers were the employees of the applicants and that the applicants had failed to issue wage slips as required under the provisions of the Act and the Rules. Therefore, they contravened the provision. The conviction has been affirmed in appeal by the Sessions Judge but the sentence has been reduced from Rs. 400/ to Rs. 50/. The only question is whether bidi rollers can be said to be employees of the applicants.

(3.) THE Supreme Court in D.C. Works Ltd. v. State of Saurashta AIR 1957 SC 264 has held that the principle which emerges from these authorities is that the prima -facie test for the determination of relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of direction that work the servant is to do but also the manner in which he shall do his work. Following this decision the Supreme Court in Chintaman Rao v. State of M.P. has held that bidi rollers employed by independent contractor are not workers of the manufacturer. It has also been held that the contractor was not under the control of manufacturer and he could manufacture bidis whenever he pleases. The management could not regulate the manner of discharge of his work. In Birdhichand v. First Civil Judge A1R 1958 SC 644 the Supreme Court held that benefit of Section 79 of the Factories Act for annual leave with wages is available to a bidi roller working with the contractor. It has been observed in that case as under: -