MAHESH KUMAR GOYAL Vs. UNIVERSITY OF AJMER

JUDGEMENT

(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".

(3.) THE respondent will be at liberty to act in future according to law.