Case: Bhagaband Colliery Vs. Their Workmen

Mudholkar, J.1. This is an appeal by special leave against the award made by the Central Government Industrial Tribunal, Dhanbad, in a reference made to it by the Government of India, Ministry of Labour and Employment, by order No. LR. II/I (47)/59 dated 13 August, 1959 under S. 10(1)(d) of the Industrial Disputes Act, 1947 (14 of 1947). The issue which was referred for adjudication is as follows"Whether the management was justified in stopping the payments of sirdari commission to the following nine workmen with effect from 12 April 1959 :(1) Sri Ramdeo Shaw.(2) Sri Amar Singh.(3) Sri Bomesh Chatterjee.(4) Sri T. M. Bannerjee.(5) Sri Barhan Shaw.(6) Sri Jiblal Turi.(7) Sri A. K. Singh.(8) Sri B. K. Sarkar.(9) Sri R. C. Shaw."2. The tribunal held against the employers on this issue and they are now challenging its finding thereon.3. The relevant facts may be shortly stated thus. Borrea Coal Company, Ltd., are the owner of Bhagaband Colliery and F. W. Heilgers & Co. (Private), Ltd., are the managing agents in the said colliery. There are "miners sirdars" who are paid what is Known as "Sirdari Commission". On 31 March, 1959 the managing agents (hereinafter referred to as the company) terminated the sirdari commission of the nine sirdars whose names are set out above with effect from 20 April, 1959 on the ground that these sirdars were receiving the said commission without performing any corresponding duties and obligations.4. It may be mentioned that it was the practice in the past to recruit labour for the colliers through sirdars because the labour used to be migratory. The sirdars who recruited and supplied the labour were paid commission on the output of the labour force supplied by them. Some of the sirdars used, in addition, to carry out the duty of supervision. Sometimes this duty was performed by them voluntary while sometimes it was imposed on them by the management. The latter class of sirdars were known as working sirdars. It is the case of the respondents that they are working sirdars.It is common ground that each of the respondents is an employee in the colliery - six as clerks, one as a shotfirer, one as switch board attendant and one as chipping mazdoor - and they are paid separate salaries for performing the duties attached to these posts. It is also common ground that outside their regular working hours the respondents used to do supervisory work with respect to the labour force supplied by each of them. It is also common ground that recruitment of labour through sirdars is no longer permissible because it is obligatory upon the employer by virtue of the provisions of the "Employment Exchange (Compulsory Notification of the Vacancies) Act, 1959, (No. 31 of 1959), to notify all vacancies to the employment exchange and to recruit labour only through the employment exchange. The fact, however, remains that in the colliery in question the labour force recruited through and supplied by the respondents still continues to be employed by the colliery. By the notice referred to above, the company informed the respondents as follows :"It has been observed that you are receiving sirdari commission on the production of a gang of miners.There are no corresponding duties and obligations performed by you for the above.It has therefore been decided to stop sirdari commission with effect from 12 April, 1959. You are at liberty to withdraw your gang of miners if you wish."5. When the dispute went before the tribunal, it was contended on behalf of the appellants that as the sirdars were no longer required for recruitment and as they did not do any supervision work, they were not entitled to any sirdari commission. It was also contended that the dispute did not fall in the Second or the Third Schedule to the Industrial Disputes Act, 1947, that the respondents were not workmen as defined in the Act, that they are only contractors and what was paid to them was merely a commission and not a wage as defined in the Act. The tribunal negatived all the contentions raised by the company and held that the company was not justified in stopping the payment of sirdari commission to the respondents.The contentions raised before the tribunal are reiterated before us by Mr. Sanyal, the Additional Solicitor-General. The main questions to be considered is whether the reference was competent. The reference would be competent only if the respondents in so far as they are performing supervisory duties over the labour force supplied by them were workman as defied in the Act and the emoluments they received were wages as defined in the Act. If it is found in their favour on both these points, then the dispute would certainly fall within Sch. III and it would be within the competence of the Government to refer to for adjudication to an industrial tribunal under S.7A of the Act. The tribunal has found as a fact that the respondents were performing supervisory duties with respect to the labour force supplied by them. Now workman as defined in S.2(s) of the Act means"any person ... employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire of reward whether the terms of employment be expressed or implied ..." (only relevant portion quoted).6. It is no doubt true that the respondents were not expressly employed as supervisors by the company but from certain correspondence which has been placed on record it seems clear that the company regarded them as their employee even with respect to the supervisory work. In this connexion we would refer first to item 20 which is a letter dated 19 January, 1953 addressed by the manager to all the miners sirdars. Its reads thus :"Last year this colliery was the worst for excessive work being lost due to two full days being stopped for Pitha Parab."7. You are hereby warned that if you cannot arrange with your miners to keep the stoppage to a maximum of three shifts drastic action will be taken in consultation with the Dy. C.M.E."The threat of drastic action referred to in this letter could not have been possibly addressed to an independent contractor but could well be addressed to an employee. Then there is item 19 addressed to all the persons. That letter is dated 12 July, 1958. The relevant portion of that letter runs thus :"... Please arrange to be in the office on 18 and 19 July 1958 and explain your miners/loaders the real position if any complaint comes to you."8. The instructions contained in this letter could not reasonably be given to a contractor but rather to an employee. The same inference can be drawn from item 18 which is a letter addressed to the miners sirdars and dated 30 December, 1958. There it is said that no worker shall be allowed to go down the mine or work therein in any capacity except with the written authorization to that effect from the manager. Finally there is the letter dated 2 January, 1959 addressed by the manager to all the miners sirdars, the relevant portion of which is as follows :"You are hereby instructed to look after your miners as regards their working places and other facilities.You will keep a check on personification when your own miner goes on leave/sick, etc. If you fail to bring such cases to the management, we will not appoint any further miners in your name.Please note carefully."9. This is clearly indicative of the fact that the company exercised control over the supervisory work which the respondents performed in the mines. The only reasonable inference which we can draw from these letters is that the respondents must be regarded as workmen employed by the company even with respect to the supervisory work performed by them. It would thus follow that the respondents held two kinds of employment under the company, one as clerks, etc., and the other as supervisors of the labour forces supplied by each of them.What was paid to the respondents was no doubt commissions at the rate of 3 pice per tab raised by the miners and a sirdari of Rs. 2 per 100 tugs. According to the definition of "wages "in the Act, all renumeration "capable of being expressed in terms of money" payable to a workmen in respect of his employment or for the work done in such employment would mean wages. The commission payable to sirdars being expressed in terms of money thus falls within the definition.10. The respondents being thus employees even in their capacity as supervisors and being in receipt of wages, a dispute concerning the payment of wages would fall in entry 1 of the Third Schedule to the Act. The Central Government was, therefore, competent to refer the dispute in question to the Central Industrial Tribunal under S.7A of the Act.11. The only other question which has to be considered is whether the respondents were in fact doing any supervisory work. On that point the tribunal, after considering the material before it, arrived at the finding that they are in fact doing supervisory work. That is a finding of fact based on material which the tribunal was entitled to take into consideration and we would not go into the question of its correctness.

Decision:
0[ds]6. It is no doubt true that the respondents were not expressly employed as supervisors by the company but from certain correspondence which has been placed on record it seems clear that the company regarded them as their employee even with respect to the supervisory work. In this connexion we would refer first to item 20 which is a letter dated 19 January, 1953 addressed by the manager to all the miners sirdars. Its reads thusyear this colliery was the worst for excessive work being lost due to two full days being stopped for Pitha Parab.You are hereby warned that if you cannot arrange with your miners to keep the stoppage to a maximum of three shifts drastic action will be taken in consultation with the Dy. C.M.E."The threat of drastic action referred to in this letter could not have been possibly addressed to an independent contractor but could well be addressed to an employee. Then there is item 19 addressed to all the persons. That letter is dated 12 July, 1958. The relevant portion of that letter runs thusPlease arrange to be in the office on 18 and 19 July 1958 and explain your miners/loaders the real position if any complaint comes to you.The instructions contained in this letter could not reasonably be given to a contractor but rather to an employee. The same inference can be drawn from item 18 which is a letter addressed to the miners sirdars and dated 30 December, 1958. There it is said that no worker shall be allowed to go down the mine or work therein in any capacity except with the written authorization to that effect from the manager. Finally there is the letter dated 2 January, 1959 addressed by the manager to all the miners sirdars, the relevant portion of which is as followsare hereby instructed to look after your miners as regards their working places and other facilities.You will keep a check on personification when your own miner goes on leave/sick, etc. If you fail to bring such cases to the management, we will not appoint any further miners in your name.Please note carefully.This is clearly indicative of the fact that the company exercised control over the supervisory work which the respondents performed in the mines. The only reasonable inference which we can draw from these letters is that the respondents must be regarded as workmen employed by the company even with respect to the supervisory work performed by them. It would thus follow that the respondents held two kinds of employment under the company, one as clerks, etc., and the other as supervisors of the labour forces supplied by each of them.What was paid to the respondents was no doubt commissions at the rate of 3 pice per tab raised by the miners and a sirdari of Rs. 2 per 100 tugs. According to the definition of "wages "in the Act, all renumeration "capable of being expressed in terms of money" payable to a workmen in respect of his employment or for the work done in such employment would mean wages. The commission payable to sirdars being expressed in terms of money thus falls within the definition.10. The respondents being thus employees even in their capacity as supervisors and being in receipt of wages, a dispute concerning the payment of wages would fall in entry 1 of the Third Schedule to the Act. The Central Government was, therefore, competent to refer the dispute in question to the Central Industrial Tribunal under S.7A of the Act.11.The only other question which has to be considered is whether the respondents were in fact doing any supervisory work.On that point the tribunal, after considering the material before it, arrived at the finding that they are in fact doing supervisory work. That is a finding of fact based on material which the tribunal was entitled to take into consideration and we would not go into the question of its correctness.