DAYANIDHI MOHANTY Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner impugns Annexure -1 dated 28 -5 -1991 by which he was informed by opp. party No. 2 M/s. Orissa Textile Mills Ltd. (hereinafter referred to as ' the Company' also the Mills') that he would no more be required as Legal Adviser with effect from 1 -6 -1991. His case is that he was an employee of the Company and the impugned communications amount to termination of service which had been ordered without complying with the principles of natural justice, and so, he seeks reinstatement.

(2.) TWO points in the main need our determination : (1) Whether the petitioner was an employee of the Mills or was mere retainer as Legal Adviser? (2) Whether a direction to reinstate, even if the present be a case of termination of service as an employee, can be issued ?

(3.) ON the aforesaid broad facts, let it be seen whether the petitioner was merely a retainer of the Company or its employee. As to when master and servant relationship comes into existence has been a subject -matter of various decisions of the apex Court. We may first refer to the Constitution Bench decision in State of U. P. v. A. N. Singh, AIR 1965 SC 360, in which the question for determination was as to when a Tahsildar appointed by the Government Treasurer was entitled to the protection of Article 311 of the Constitution. The question as to when master and servant relationship comes into existence was dealt in paragraph 8 by stating below : 'Whether in a given case the relationship of master and servant exists is a question of fact, which must be determined on a consideration of all material and relevant circumstances having a bearing on that question. In general, selection by the employer, coupled with payment by him of remuneration or wages, the right to control the method of work and a power to suspend or remove from employment are indicative of the relation of master and servant. But co -existence of all these indicia is not predicated in every case to make the relation one of master and servant. In special classes of employment a contract of service may exist, even in the absence of one or more of these indicia. But ordinarily the right of an employer to control the method of doing the work, and the power of superintendence and control may be treated, as strongly indicative of the relation of master and servant, for that relation imports the power not only to direct the doing of some work also the power to direct the manner in which the work is to be done. If the employer has the power, prims facie, the relation is that of master and servant.' (Emphasis ours)