9911796707
TMI Blog1960 (12) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... 1955, to January 1, 1956, and did not go to work during that period. The appellant did not pay their wages for these days and in consequence they applied to the Payment of Wages Authority (hereinafter called the Authority) for payment to them of wages which had been withheld. Their claim was that they were entitled to fifteen days' leave in the year under ss. 79 and 80 of the Factories Act, 1948. The Authority allowed the claim and granted them a sum of ₹ 90/16/- in all as wages which had been withheld for the period of leave. Thereupon, the appellant filed an application under Art. 226 of the Constitution before the High Court at Nagpur. His main contention was that respondents 2 to 4 were not workers within the meaning of the Fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, which defined "workman" that the word "employed" used therein implied a relationship of master and servant or employer and employee and it was not enough that a person was merely working in the premises belonging to another person. A distinCtion was also drawn between a workman and an independent contractor. The prima facie test whether the relationship of master and servant or employer and employee existed was laid down as 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 in different industries and being by its nature incapable of being precisely defined. The correct appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but if any worker comes after midday he is not supplied with tobacco and is thus not allowed to work, even though the factory closes at 7 p.m. in accordance with the provisions of the Factories Act and when it is said that they can return at any time, it is subject to the condition that they cannot remain later than 7 p.m. There are standing orders in the factory and according to those standing orders a worker who remains absent for eight days (presumably without leave) can be removed. The payment is made on piece-rates according to the amount of work done but the management has the right to reject such biris as do not come up to the proper standard. It is on these facts that we have to decide the question whether respondents 2 to 4 were e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the factory is open it is not in dispute that if they come after midday, they are not given any work and thus lose wages for that day, the payment being at piece- rates. Further though they can stay away without asking for leave, the management has the right to remove them if they so stay away for a continuous period of eight days. Lastly, there is some amount of supervision inasmuch as the management has the right of rejection of the biris prepared if they do not come up to the proper standard. The question therefore that arises is whether in these circumstances it can be said whether the appellant merely directs what work is to be done but cannot control the manner in which it has to be done; of course, the nature or extent of control ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared by him are liable to rejection if they do not come up to the standard, there can be no doubt that respondents 2 to 4 are workers within the meaning of s. 2(1) of the Factories Act. This is also the view taken by the Bombay High Court in State v. Shankar Balaji Waje (A.I.R. 1960 Bom. 296) in similar circumstances and that we think is the right view. Then it was urged that even if the respondents are workers under s. 2(1), s. 79 should not be applied to them as they can absent themselves whenever they like. In this very case it is said that the respondents remained absent for a longer period than that provided in the Act and therefore they do not need any leave. This argument has in our opinion no force. The leave provided under s. 79 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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