ANANT RAM SANKHLA Vs. JUDGE INDUSTRIAL TRIBUNAL

JUDGEMENT

(1.) THE Pali Central Cooperative Bank Limited, Pali, started a Daily Saving Scheme (Dainik Bachat Yojna) in the year 1980, to inculcate in the people the habit of having of thrift and saving and, thus, to mobilize deposit under the Scheme. The petitioner was appointed as a 'Publicity cum Deposit Collection Agent' by the General Manager of the Pali Central Cooperative Bank Limited, Pali Marwar for the deposit -collection for a period of one year, vide appointment order dated 28.7.1980, on certain conditions and an agreement was entered into between the bank on the one hand and the petitioner on the other hand. After the expiry of the period of one year, the agreement was renewed for a further period of one year. In the year 1982, a decision was taken by the bank to discontinue the Scheme of 'Dainik Bachat Yojna' as it was uneconomical, The petitioner and other 'Publicity cum Deposit Collection Agents' were informed vide letter dated 6.10.82, that no fresh account of Dainik Bachat Yojna may be opened after 10.10.82, and the existing deposit account will run till October, 1983, and after that the Scheme will be closed. After the closure of the Scheme, the agency of the petitioner as the 'Publicity cum Deposit Collection Agent' came to an end. The petitioner raised a dispute before the Conciliation Officer, which resulted in failure and the Conciliation Officer submitted its 'Failure Report' to the State Government. The State Government, however, by its order dated 27.2.86, referred the following dispute for adjudication to the Judge, Labour Court, Jodhpur: .........[vernacular ommited text]........... The petitioner filed a claim before the Judge, Labour Court, Jodhpur. The respondents contested the claim filed by the petitioner. Both the parties led their evidence and the learned Judge of the Labour Court, by its Award dated 2.8.1988, held that the termination of the services of the petitioner by the Prabandhak/Sanchalak of the Pali Central Cooperative Bank Limited, Pali Marwar, by its order dated 10.10.1983, was legal and valid and the applicant (petitioner) is not entitled for any relief. The petitioner has challenged the Award dated 2.8.1988, passed by the Judge, Industrial Tribunal cum Labour Court, Jodhpur, by way of this writ petition.

(2.) IT is contended by the learned Counsel for the petitioner that the petitioner was in the employment of the bank and was doing the work of 'Publicity cum Deposit Collection Agent'. His further contention is that the mobilization of deposit is admittedly the chief function of the bank and, therefore, a person, who is appointed to collect the deposits from the customers of the bank, is a part and parcel of the organization of the bank and he is, therefore, a 'workman' and his services cannot be terminated arbitrarily without following the procedure prescribed under Section 25F of the Industrial Disputes Act, 1947. His further case is that as the petitioner has served for more than 240 days with the bank and, therefore, he is entitled for protection of the provisions of Sections 25F, 25G and 25J of the Industrial Disputes Act, 1947. He is, also, entitled to continue in service of the bank as according to the Bank Service Regulations he has completed 180 days of the service. It is, therefore, contended that the order, terminating the services of the petitioner, may be set -aside and the petitioner may be taken back on duty with all consequential benefits. In support of its case, the learned Counsel for the petitioner has placed reliance over a Division Bench judgment of the Madras High Court rendered in: the Management of Indian Bank v. Presiding Officer, Industrial Tribunal(C), Madras, and Ors. LLR 1990(XXI) 164. The learned Counsel for the respondents, on the other hand, has supported the Award passed by the learned Judge of the Industrial Tribunal cum Labour Court, Jodhpur, and further submitted that the petitioner was not in the employment of the bank but he was merely a deposit -collection agent who was collecting the tiny deposits on behalf of the bank from its customers and was depositing the same with the bank on commission basis. His further submission is that the learned Judge of the Tribunal, on the basis of the material available on record, held that the petitioner was not in the employment of the bank and the relationship of 'employer' and the 'employee' does not exist between the bank and the petitioner and this finding is purely a finding of fact and this Court is not expected to interfere in this finding of fact in a proceeding under Article 226 of the Constitution of India, as the findings arrived -at by the learned Judge of the Industrial Tribunal cum Labour Court were based on material on record.

(3.) SECTION 2(s) of the Industrial Disputes Act, 1947, defines the word 'workman'. The definition of the word 'workman' given in Section 2(s) refers to the nexus of a person being employed in an industry. Unless the person is employed in connection with the operation incidental to the industry, he cannot be said to be a 'workman' as defined under this Section. In order to bring a person within the ambit of the definition of the word 'workman', the work, for which he was employed, should be for hire or reward. Hire or reward may take any form but the work must be for wages or for any other remuneration. The question: whether a person is an employee or an independent contractor, came -up for consideration before the Hon'ble Supreme Court for the first time in the case of: Shiv Nandan Sharma v. Punjab National Bank 1955 (1) LLJ 668 (696) SC and 'supervision and control' were held to be crucial tests for determination of the relationship of employer and the workman. In Dhargandra Chemicals Limited v. The State of Saurastra 1957 (1) LLJ 477 (480 -81) SC, the Hon'ble Supreme Court reiterated the same tests, therefore, for determination of the relationship of employer and the workman is the existence of the rights in the master to 'supervise and control' the work done by the servant, not in the matter of directing what the servant does but also, in the manner in which he does his work. The Court further held that the correct method of approach would be to consider whether having regard to the nature of the work there was due 'control and supervision' of the employer? The 'control and supervision' tests, laid down by the Apex Court in Shiv Nandan Sharma's case and i the case of Dhargandra Chemical Limited, was reaffirmed by the Supreme Court in: Chiman Ram v. the State 1958 (11) LLJ 252 (257) SC. This decision was later on followed by the Supreme Court and the various High Courts in a number of cases. In view of the judgment of the Apex Court on the point, the 'supervision and control' are therefore, the salient factors in determination of the relationship of the employer and the employee. It is the element of control of the work that distinguishes the relationship of master and the servant from the independent contract relationship. The 'control' includes the power of deciding the thing to be done, the way in which it is to be done, the means employed in it, the time within which it is to be done and the place where it is to be done. 'Supervision and control are therefore, important factors in deciding the relationship. The distinction can, also, be made between the 'contract of service' and the 'contract for service'. 'Contract of service' is one in which a person undertakes to serve another and to obey his reasonable orders within the scope of its duties undertaken and the work done by him is an integral part of the organization, whereas under a 'contract for service' although the work done by the person is done for the business of the employer but it is not integrated into it but only an accessory to it. Thus, the real test is:whether the man is a part and parcel of the organization or not? In deciding the right of control, it is necessary to look -into the express terms of the contract. If the provisions of the contract are inconsistent with its being a contract of service then the person doing the work cannot be termed as a servant or the employee, but if the provisions are consistent with its being a contract of service then the person can be said to be an employee or a servant and the provisions of the Industrial Disputes Act, 1947, will be applicable. In the light of the law discernible from the various judgments of the Supreme Court and as has been stated above now, I will like to look -into the condition of appointment of the petitioner as a 'Publicity cum Deposit Collection Agent. The condition of agency and the agreement arrived -at between the parties, which have been placed on record by the respondents alongwith its reply as Annexures. Rule 2 and Annexure. Rule 3, show that (1) the appointment of the petitioner as a 'Publicity cum Deposit Collection Agent was for a period of one year; (2) he was required to deposit the security money of Rs. 1000/ -; (3) will be insured for an amount of Rs. 5000/ - by the bank; (4) Will be entitled to 3% as commission on the deposits brought by him; (5) will not be entitled for any commission on the amount deposited by the customer directly in the bank; (6) has to deposit the collected amount on the next day of its receipt and in case the amount is not deposited on the next date then 1/3 of the amount of commission will be deducted and if the collected amount is not deposited within three days then he will not be entitled for any amount of commission; (7) the commission amount will be paid in the first week of the next month of the collection. It was, also, mentioned in Clause (3) of the appointment order that the Collection Agent will not be treated as an employee of the bank and he will not be entitled for any amount in the form of T.A., D.A. or any other allowance except the amount of commission; he will, also; not. be entitled for any facilities provided to the employees of the bank. The agreement of the Agency excited between the petitioner and the bank and the conditions of Agency, thus, clearly show that the bank has entered into a 'contract of agency' with the petitioner for the purpose of making collection of the bank and the petitioner was getting the remuneration in the form of commission. His right as an agent was purely a contractual one. He was not required to attend the Office of the Bank daily nor was he required to attend the bank at any particular time or to remain in the bank during or after the office hours of the bank. He was merely required to deposit the amount collected by him from the customers on the previous date. He was neither required to remain in the office of the bank through -out the day nor was he required to do the work except the work to collect and deposit the amount received by him from the customers. His name was not entered in the list of the employees of the bank nor was he required to mark attendance. The bank has no control on the other activities of the petitioner and the management could not force the petitioner to collect the amount from the customers. It is only if the money is collected by him that he was required to deposit the same in the bank on the next date and if he deposits the amount on the next date then he is entitled to the commission @ 3% and if he hails to deposit the amount on the next date then 1/3 of the amount of his commission was to be deducted and if the amount is not deposited within three days then he was not entitled for any amount of commission. The petitioner was also, not T.A., D.A. or any other allowance. He was, also, not required to take permission for availing the leave. Even the Bank Service Code was not applicable to the petitioner. All these conditions clearly show that the petitioner was not in the employment of the bank and the relationship of 'master' and 'servant' or the 'employer' and 'employee' does not exist in the case of the bank and the petitioner. The petitioner acted on his own responsibilities and there is no question of any direction, command or control by the bank over the petitioner except in the case when the money is collected by him from the customers of the bank. According to the definition of the expression 'employee' the person claiming to be an employee, must be one wholly or principally an employee in and in connection with the establishment and is an integral part of the organization. The conditions mentioned in the appointment order of the petitioner as an agent and the agreement of agency clearly show that the petitioner was not a part and parcel of the organization. He was working as an agent of the bank and not as a servant or employee. He was working under a 'contract for service' and not under a 'contract of service'. The petitioner has placed reliance over a Division Bench judgment of Madras High Court in the case of: the Management of the Indian Bank (supra) where the tiny deposit collection agents of the bank, who were going door to door of the customers for collecting deposits, were treated as 'workmen' as per the definition of the relevant perssions. The facts of that case are different from the facts of this case. In the case of the: Management of Indian Bank, the Division Bench considered the various conditions over which the tiny deposit -collection agents were employed and on the basis of those facts and circumstances, held that tiny deposit -collection agents are workmen. The conditions, which have been relied upon by the Division Bench of Madras High Court, were that (1) the tiny deposit -collection agents were entitled to enroll the customers of the bank at its own; (2) they areengaged inthe business of the bank, viz., the deposit mobilization; (3) the remuneration is paid by way of commission and collection charge; (4) the nature and the work of the respondents demand daily attendance in the bank and the deposit of the collected amount by him on the prior date; (5) the agent is obliged to inform the bank in advance if he is not in a position to make the collection herself and whenever she appoints a delegate she must do so only with the prior permission of the bank and she is responsible for the conduct of such delegate/sub -agent; (6) she has to do some clerical work in the bank; (7) the agent has to pay 10% out of the commission amount due to her, every month towards the security deposit; (8) the bank can instruct the agent not to enroll new subscribers at any time and the services of the agent can be terminated by the bank be serving one month's notice; (9) the agent is bound under the agreement to produce physical fitness certificate to the bank; and (10) the agent is taken to task when any depositor closes the account within a period of two years from the commencement of the account. Most of these conditions do not find place in the present agreement of agency. The 'Publicity cum Deposit Collection Agent' in the present case could not open the accounts of the customers; he can only introduce the customer and it is only after the verification made by the officer concerned -that the account can be opened; the agent in the present case also, is not required to attend the bank office every day and to do any clerical work; he has merely to collect the amount, prepare the scroll and has to deposit the amount in the bank at any time required to do any clerical work; he was not paid any fixed salary/pay and was not required to collect the fixed amount; he is paid the commission on the deposit collections made by him and if he does not make any commission then he is not entitled for any amount of commission are not applicable on him; he was not required to take permission for any leave etc. He was also, not required to pay 10% of the commission every month towards the security deposit. Thus, the case of the: Management of Indian Bank v. the Presiding Officer, Industrial Tribunal, Madras, if distinguishable from the present case as the conditions in the appointment of the agent in Madras's case were different from the conditions of appointment of the agent in the present case. The petitioner is, therefore, not an employee of the bank and, therefore, is not a 'workman' and the provisions of the Industrial Disputes Act, 1947, are not applicable in the present case. The petitioner is, thus, not entitled for the benefits of the provisions of Sections 25F, 25G, and 25J of the Industrial Disputes Act, 1947, The learned Judge of the Tribunal was, therefore, justified in rejecting the claim of the petitioner.