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

The respondent Bibawe made an application to the industrial tribunal at Bombay under S.33A of the Industrial Disputes Act, 1947. He alleged that he had been employed by the appellant Kirloskar Oil Engines, Ltd., as a watchman since 21 July, 1958, and that he had been working as such watchman with the appellant and had become its permanent workman. On 15 May, 1960, the security officer of the appellant company intimated to him that he had been discharged from service with effect from that date. The respondent urged that at the time when this order of discharge was orally served on him, an industrial dispute was pending between the appellant and its employees before an industrial tribunal and as such the respondent could not be discharged by the appellant without obtaining the approval of the industrial tribunal. In other words, his case was that his discharge was in contravention of the provisions of S. 33 and that is the basis of his application under S. 33appellant denied that the respondent was its employee. It pleaded that the respondents services had been made available to the appellant by an arrangement, the terms of which clearly indicated that even whilst the respondent was working as a watchman of the appellant, he was not the employee of the appellant in the legal sense. That being so, it was argued that S. 33 was not contravened and the application under S. 33 A waswould thus be seen that the narrow point of dispute between the parties before the tribunal was whether or not the respondent was the appellants employer and as such could be said to be a workman concerned in the dispute which was pending industrial adjudication at the time of his discharge. The tribunal set forth the rival contentions of the parties on this point and observed that it could not accept either of the extreme contentions taken by both the sides; even so in substance the tribunal seems to have taken the view that S. 33 had been contravened by the appellant and so an order has been passed directing the appellant to reinstate the respondent with full back-wages from the date of his discharge. It is against this order that the appellant has come to this Court by special leave.

Reasoning: 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.