Case: Kirloskar Oil Engines, Limited Vs. Hanumant Laxman Bibawe

it is prepared according to rule 426 of the Police Manual. These watchmen are given buckle number and the uniform supplied to them cannot be worn by a private person. A jamadar is posted at the police station and he supervises over all the watchmen employed. At the place of duty one senior watchman is asked to supervise the work of watchmen. The jamadar at the Kirloskar Oil Engines is a senior watchmen. His pay is fixed by the District Superintendent of Police. In factories where there are ten or fifteen watchmen the factory sends hajri of all watchmen to the police office in the first week of the month for the preceding month. In the polices station there is a muster-roll for making attendance. If the District Superintendent of Police comes to know that the watchmans duty is not satisfactory, he can withdraw him. The police staff also go for checking and if a watchmen is found absent or indulging in undesirable activities, he is withdrawn even without the consent of the owner. The power to withdraw rests with the District Superintendent of Police and so is the power to transfer. It would thus be seen that this oral evidence also corroborates the conclusion which follows irresistibly from the conditions of the system under which the respondents service was secured by the appellant. Therefore, it seems to us that the tribunal was in error in holding that the respondent is the appellants employee.For the respondent Mr. Chaudhury has referred to a decision of this Court in Shivnandan Sharma v. Punjab National Bank, Ltd. [1955 - I L.L.J. 688]. In that case this Court had occasion to consider the question as to the tests which should be applied in determining whether a particular person is the employee of another or not. In discussing this question this Court observed that the decision of such a question would always depend on the facts and circumstances of each individual case. Then a passage was quoted from the speech of Lord Porter in which Lord Porter observed at p. 696 :"Many factors have a bearing on the result. Who is pay master, who can dismiss, how long the alternative service lasts, what machinery is employed, have all to be kept in mind. The expression used in any individual case must always be considered in regard to the subject-matter under discussion but amongst the many tests suggested I think that the most satisfactory, by which to ascertain who is the employer at any particular time, is to ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged."6. Naturally Mr. Chaudhury very strongly relies on the last mentioned test and he contends that it is the appellant who used to tell the respondent the way in which he should do the work of watching and so the respondent should be taken to be appellants employee. In our opinion as Lord Porter himself has observed the decision of the question as to the relationship of employer and employee must be determined in the light of all relevant facts and circumstances and it would not be expedient to lay down any particular test as decisive in the matter. A test which may not be important, and which may appear even as decisive in one set of circumstances, may not be important or decisive at all in the circumstances of other cases. It is true that Lord Porters observation on which Mr. Chaudhury relies seems to treat the particular test as most satisfactory; but, with respect, though the said test may have been satisfactory in the facts of the case with which Lord Porter was dealing, it would, we think, be unreasonable to treat that test as most satisfactory in all cases as a general rule. Take, for instance, the common case where an industrial establishment allots to the bungalows occupied by its officers gardeners and watchmen. These gardeners and watchmen are the employees of the industrial establishment, are paid by them and are subject to their control and supervision. Even so, in doing their work as gardeners and watchmen from day to day, they would naturally take orders from the establishments officers who, for the time being, are in occupation of the bungalows. The officers in occupation of the bungalows may change from time to time and the watchmen and gardeners may also be transferred from one bungalow to another by the establishment. It is plain that though the watchmen and gardeners would take their orders from the occupants of the bungalows, they cannot be said to be the servants of the officers who occupy the bungalows during their tenure of office. It would thus be seen that the test as to who is entitled to tell the employee the way in which he is to do his work would completely break down in such a case. That is what we are not prepared to accept Mr. Chaudhurys argument that this particular test is of universal application and can be held to be satisfactory in all cases.In the present case, where the respondent became the watchman of the appellant under a scheme which has been evolved for supplying watchmen to private employers, the fact that the private employer may issue orders to the watchmen will not be an important consideration at all. It is the other terms and conditions of the system under which the arrangement has system under which the arrangement has been made which may have to be borne in mind and it is in the light of all the relevant facts that one has to reach the final decision. Having regard to all the relevant facts in this case, we are satisfied that the respondent cannot be said to be an employee of the appellant; and so, he cannot claims to be an industrial employee and as such, a workman concerned in the above industrial dispute pending adjudication at the relevant time.7.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In our opinion this contention is well founded and must beour opinion, having regard to these terms of the scheme, it is difficult to accept the view taken by the tribunal that the respondent was an employee of the appellant, that he was an industrial employee and therefore he was a workman concerned in the dispute which was pending adjudication on the date of hiswould thus be seen that this oral evidence also corroborates the conclusion which follows irresistibly from the conditions of the system under which the respondents service was secured by the appellant. Therefore, it seems to us that the tribunal was in error in holding that the respondent is the appellantsour opinion as Lord Porter himself has observed the decision of the question as to the relationship of employer and employee must be determined in the light of all relevant facts and circumstances and it would not be expedient to lay down any particular test as decisive in the matter. A test which may not be important, and which may appear even as decisive in one set of circumstances, may not be important or decisive at all in the circumstances of other cases. It is true that Lord Porters observation on which Mr. Chaudhury relies seems to treat the particular test as most satisfactory; but, with respect, though the said test may have been satisfactory in the facts of the case with which Lord Porter was dealing, it would, we think, be unreasonable to treat that test as most satisfactory in all cases as a general rule. Take, for instance, the common case where an industrial establishment allots to the bungalows occupied by its officers gardeners and watchmen. These gardeners and watchmen are the employees of the industrial establishment, are paid by them and are subject to their control and supervision. Even so, in doing their work as gardeners and watchmen from day to day, they would naturally take orders from the establishments officers who, for the time being, are in occupation of the bungalows. The officers in occupation of the bungalows may change from time to time and the watchmen and gardeners may also be transferred from one bungalow to another by the establishment. It is plain that though the watchmen and gardeners would take their orders from the occupants of the bungalows, they cannot be said to be the servants of the officers who occupy the bungalows during their tenure of office. It would thus be seen that the test as to who is entitled to tell the employee the way in which he is to do his work would completely break down in such a case. That is what we are not prepared to accept Mr. Chaudhurys argument that this particular test is of universal application and can be held to be satisfactory in all cases.In the present case, where the respondent became the watchman of the appellant under a scheme which has been evolved for supplying watchmen to private employers, the fact that the private employer may issue orders to the watchmen will not be an important consideration at all. It is the other terms and conditions of the system under which the arrangement has system under which the arrangement has been made which may have to be borne in mind and it is in the light of all the relevant facts that one has to reach the final decision. Having regard to all the relevant facts in this case, we are satisfied that the respondent cannot be said to be an employee of the appellant; and so, he cannot claims to be an industrial employee and as such, a workman concerned in the above industrial dispute pending adjudication at the relevant time.