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Advocates
  • For the Appellant: T.R.G. Warrier, K. Rama Kumar, Advocates.
  • For the Respondent: K. Sudhakaran, R1, N. Dharmadan, R2, A.V.G. Nair, Advocates.
Judges
  • Subramonian Poti
  • A.C.J
  • G. Viswanatha Iyer
  • U.L Bhat, JJ.
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Advocates
  • For the Appellant: T.R.G. Warrier, K. Rama Kumar, Advocates.
  • For the Respondent: K. Sudhakaran, R1, N. Dharmadan, R2, A.V.G. Nair, Advocates.
Judges
  • Subramonian Poti
  • A.C.J
  • G. Viswanatha Iyer
  • U.L Bhat, JJ.
Acts
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Smart Summary

Structured Summary of the Opinion (G. Viswanatha Iyer, J.)

Factual and Procedural Background

Two proceedings were considered together concerning whether Canara Bank and Bank of India, both nationalised banks, fall within the expression “establishments under the Central Government” and are therefore exempted from the Kerala Shops and Establishments Act, 1960 under S. 3(1)(c).

The question arose because employees of the banks (the second respondent in the writ appeal and the first respondent in the original petition) moved the Appellate Authority under S. 18 of the Act against the banks' termination of their engagements. In the appeal concerning Canara Bank the Appellate Authority held that Canara Bank did not fall within the exemption; the High Court Single Judge affirmed that view in the original petition by Canara Bank. Bank of India filed an original petition seeking a writ of prohibition to prevent the Appellate Authority from proceeding with an appeal by an employee, also contending that it is an “establishment under the Central Government” and thus exempt from the Act.

The Court also considered a separate question in the writ appeal: whether the second respondent (a gold appraiser engaged by a branch) was an employee of the bank or an independent contractor under a written contract (Ext. P-1).

Legal Issues Presented

  1. Whether the Canara Bank and the Bank of India are “establishments under the Central Government” and thus exempted by S. 3(1)(c) of the Kerala Shops and Establishments Act, 1960.
  2. Whether the Appellate Authority under S. 18 of the Kerala Act had jurisdiction to entertain the appeal filed by an employee of a nationalised bank (contingent on the exemption question).
  3. Whether the second respondent (a gold appraiser engaged under Ext. P-1) is an “employee” of the bank within the meaning of the Act or an independent contractor.

Arguments of the Parties

Pleadings and Arguments Advanced by the Banks (Canara Bank and Bank of India)

  • Reliance on the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970: counsel for the banks argued that new nationalised banks were established under that Act and, by virtue of provisions vesting capital in the Central Government, appointment of boards by the Central Government, Government power to give policy directions (S. 8) and other controls, the banks are under Central Government control.
  • From that statutory scheme counsel contended that the banks are “establishments under the Central Government” and therefore exempted from the Kerala Shops and Establishments Act.
  • Bank of India additionally contended that, because it is such an establishment, the Appellate Authority had no jurisdiction to entertain the employee's appeal (hence the writ of prohibition).
  • Petitioner's counsel further argued that because the entire paid-up capital belongs to the Government and the Government alone can order dissolution, the undertaking should be regarded as property of the Government and its managing organisation an establishment under the Government.

Contentions Advanced by the Employee / Second Respondent

  • The second respondent relied on the written contract (Ext. P-1) and the factual matrix to argue (and the Appellate Authority found) that he was an employee engaged principally for the work of jewel appraising, required to attend the branch during banking hours and bound to follow the bank's rules and supervision.
  • The Appellate Authority treated the contractual term declaring him “not an employee” as not determinative and placed weight on control, attendance during banking hours, obligation to obey bank regulations and the fact that the manager exercised control analogous to that over other employees.

Relevant Factual Positions Adopted by the Parties (as recorded)

  • Ext. P-1 (the contract): expressly describes the second respondent as not an employee but an independent contractor; permits him to carry on his own trade; provides for termination by one month's notice; provides remuneration by commission (12 paise per Rs.100 originally); no salary, no age limit, no applicability of Bank Service Code, and no attendance on acquittance roll was indicated.
  • Bank's factual position: terminated the contract during suspension of gold loans, issued notice received on 6-2-1973 and treated termination as effective 6-3-1973.
  • Appellate Authority's factual findings: the second respondent attended daily during working hours, was under control and supervision, had to obey bank rules, needed prior permission for leave, and these facts justified treating him as an employee despite contractual language.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Ramona v. I.A. Authority of India (1979 S.C. 1628) Demonstrates that statutory corporations or bodies can be treated as an “authority” or instrumentality of the Government and thereby included within “the State” under Article 12 for purposes of Part III of the Constitution. The Court noted this as part of authorities showing how the corporate veil may be lifted for purposes of identifying State action under Article 12, but held these authorities are not determinative for interpreting “establishment under the Central Government” in S.3(1)(c) of the Kerala Act.
Som Prakash v. Union of India (1981 S.C. 212) Support for the proposition that corporations constituted under statute can be treated as State instrumentalities for the limited purpose of Part III enforcement. Referred to as part of the line of decisions on Article 12; the Court placed reliance on the limited scope of those decisions and distinguished them from the statutory exemption language in S.3(1)(c).
Ajay Hasia v. Khalid Mujib (1981 S.C. 487) Held that even a society registered under the Societies Registration Act might be an authority under government control for the purpose of Part III; exemplifies piercing the corporate veil only to identify State action affecting fundamental rights. Used to explain the limits of treating statutory bodies as State for Part III purposes; Court emphasized that such identification is confined to constitutional adjudication and does not automatically convert a corporation into an “establishment under the Central Government” for statutory exemption under the Kerala Act.
Karunamakaran Nair v. Authority (Payment of Wages Act, 1971 KLT 661) Adopted a meaning of “establishment” from the Shorter Oxford English Dictionary — an organised staff of employees or servants, sometimes referring to the building — relevant to interpreting “establishment” in labour statutes. The Court adopted that ordinary meaning to construe “establishment” in S. 3 of the Kerala Act, concluding it refers to the group of persons constituting the organisation that manages an undertaking, not the undertaking or its capital ownership.

Court's Reasoning and Analysis

The Court approached the exemption issue by analysing the statutory scheme under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 and the actual content of the term “establishment” in S. 3(1)(c) of the Kerala Shops and Establishments Act.

Key points in the Court's analysis:

  1. Examination of the 1970 Act: The Court acknowledged that the new nationalised banks were created with paid-up capital belonging to the Central Government, corporate status (corporations with perpetual succession), transfer of undertakings, head-office location by notification, a Board of Directors constituted by the Central Government, and a power in S. 8 for the Central Government to give directions in matters of policy. The Central Government can make schemes relating to capital structure, board constitution, amalgamation, etc., and the Government receives audit reports.
  2. Distinction between State action for Part III and the statutory phrase “establishment under the Central Government”: The Court emphasised that precedents which treat statutory corporations as State instrumentalities (for Article 12 purposes) permit piercing the corporate veil only to the limited extent of identifying State action for enforcement of fundamental rights. That jurisprudential principle does not equate to construing the phrase “establishment under the Central Government” in S. 3(1)(c) as encompassing every statutory corporation having Government shareholding or limited Government control.
  3. Corporate personality and limits of control: Although the State owns the share capital and has certain policy controls, the Court observed that the bank as a corporation has a separate juristic personality; in day-to-day administration, appointment and dismissal of staff and ordinary operational matters, the banks exercise autonomy. The presence of Government ownership and limited policy direction did not suffice to classify the banks' establishments as establishments “under” the Government.
  4. Meaning of “establishment”: Relying on the adopted dictionary meaning and earlier decision in Karunamakaran Nair, the Court construed “establishment” as the organised staff/personnel constituting the organisation that manages an undertaking, rather than the undertaking or its capital. Consequently, even where the undertaking is Government-owned, the staff running it are not thereby necessarily “establishments under the Central Government.”
  5. Legislative indication via separate exemption for Reserve Bank of India: The Court noted that S.3(1)(c) separately exempts establishments under the Reserve Bank of India — an institution whose ownership and control structure is similar in some respects — and reasoned that the legislature's separate explicit exemption for the RBI was a clue that nationalised banks were not intended to be included by the general phrase “establishments under the Central Government.”
  6. Lexical point on “under”: The Court considered the ordinary meaning of “under” (e.g., “beneath” or “subject to”) and concluded that the phrase connotes establishments directly constituted by or within departmental control of the Central Government, able to change setup and staff at Government direction. The nationalised banks' internal staffing and service rules being independent supported exclusion.
  7. Application to jurisdiction question: Because the banks are not exempted establishments, the Appellate Authority under S. 18 has jurisdiction to hear appeals by employees; the Bank of India’s writ petition challenging jurisdiction had therefore to be dismissed.
  8. Employee-status analysis and remitting for reconsideration: On the separate question of whether the second respondent was an “employee”, the Court scrutinised the statutory definition (a person wholly or principally employed in connection with an establishment) and the contractual and factual matrix (Ext. P-1). The Court found that the Appellate Authority emphasised control and attendance but had not sufficiently weighed other relevant factors (freedom to pursue separate trade, commission-only remuneration, absence of salary and service code application, absence from attendance registers, lack of provident fund deductions, branch-limited engagement, and contractual express terms). Given these omitted considerations, and because the question affected the Appellate Authority’s jurisdiction, the Court concluded that a fresh, careful assessment of all relevant factors was required and therefore set aside the prior conclusions and remitted the question to the Appellate Authority for reconsideration.

Holding and Implications

Holding:

Canara Bank and Bank of India are not “establishments under the Central Government” within the meaning of S. 3(1)(c) of the Kerala Shops and Establishments Act, 1960; accordingly, they are not exempted by that provision.

Direct consequences and remedial orders made by the Court:

  • Original Petition filed by Bank of India (O.P. No. 1419 of 1978) challenging the Appellate Authority's jurisdiction was dismissed because the Bank is not an exempted establishment; no costs were awarded in that dismissal.
  • The Appellate Authority has jurisdiction under S. 18 of the Kerala Act to deal with the employee's appeal since the bank is not exempted.
  • On the separate employment-status question in the writ appeal, the Court set aside the orders of the Single Judge and the Appellate Authority on the ground that the Appellate Authority had not adequately considered all factors material to whether the second respondent is “wholly or principally employed” within the meaning of the Act. Appeal No. 13 of 1973 was remitted to the Appellate Authority for reconsideration on that specific question; the Court made no order as to costs in respect of this remittal.
  • The Court's decision is corrective of the parties' positions and determines jurisdiction and the need for reconsideration; the opinion does not record the creation of new legal doctrine beyond applying established principles of statutory and constitutional interpretation to the facts of these cases.

Final disposition: Allowed (the writ appeal insofar as it required reconsideration of employee status was allowed; the original petition was dismissed).

Show full summary ...

    Canara Bank & Others v. Appellate Authority

    G. Viswanatha Iyer, J.:— One common question arises for consideration in both these cases and that is whether the Canara Bank and Bank of India both nationalised banks are “establishments under the Central Government” exempted under S. 3(1)(c) of the Kerala Shops and Establishments Act 1960. The question arose in both the cases because the second respondent in the writ Appeal and the first respondent in the Original Petition moved the Appellate Authority under S. 18 of the Act against the action taken by the concerned Banks terminating their engagements. The Appellate Authority has in the appeal filed by the second respondent found that the Canara Bank will not come within the scope of “establishments under the Central Government” to claim exemption of the provisions of the Act. That view has been affirmed by the learned Single Judge in the original petition filed by the Canara Bank against the decision of the Appellate Authority. The Bank of India filed the original petition for a writ of prohibition against the Appellate Authority from proceeding with the appeal filed by the concerned respondent against the action taken by the Bank. They have also taken up the contention that their establishment is an “establishment under the Central Government” and hence exempted under S. 3 from the scope of the Kerala Shops and Establishments Act. How far this contention raised by both Banks is correct is the question.

    2. According to the counsel for the Banks, under the provisions of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 5 of 1970, these Banks have been established and under the scheme of that Act these Banks are under the control of the Central Government and therefore the establishments of these Banks are “establishments under the Central Government”. To understand their contention we have to briefly notice the scheme of the above Act before proceeding further. Under this Act new banks were established and the paid up capital of each new bank was equal to the paid up capital of the existing bank in relation to which the new bank is a corresponding bank. The entire capital of each new bank belongs to the Central Government. Each bank is a body corporate with perpetual succession and a common seal with power to hold and dispose of property, to contract and to sue and be sued in its name. The undertakings of the existing banks were transferred to the new banks and the undertaking was deemed to include all assets, rights, powers, authorities and privileges and all property, movable and immovable. The Head Office of each corresponding new bank shall be at such places as the Central Government may notify. The general superintendence, directing and management of the affairs of the new bank shall vest in a Board of Directors constituted by the Central Government. S. 8 provides for the new bank to be guided by such directions in regard to matters of policy involving public interest as the Central Government may give. Central Government is also empowered to make a scheme for carrying out the provisions of the Act with special reference to matters like the capital structure, the constitution of the Board of Directors, the reconstitution of any new bank into two or more corporations, the amalgamation of any corresponding new bank with any other new Bank; and every scheme made by the Central Government must be placed before both the Houses of Parliament. The accounts are to be audited by an Auditor appointed by the new bank and the audit report must be presented to the Government and the Central Government has to lay such report before the Parliament. For the purpose of Income-tax Act a new bank is to be an Indian company in which the public are substantially interested, but at the same time, the provision of law regarding winding up of corporations are not made applicable to the new banks and the power to liquidate the new bank is vested only in the Central Government. This is substantially the scheme of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. From this counsel for the new Banks argue that full control of the new banks is practically vested in the Central Government and therefore it is an establishment under the Central Government. Various decisions were cited to show that corporations constituted under legislative enactments have been treated as other ‘authorities’ and therefore ‘State’ within the meaning of Article 12 of the Constitution particularly the decisions of the Supreme Court in Ramona v. I.A Authority of India (1979 S.C 1628), Som Prakash v. Union of India (1981 S.C 212) and Ajay Hasia v. Khalid Mujib (1981 SC. 487). In the first of these decisions, it is true, the Supreme Court, has held that for the purpose of Part III of the Constitution authorities like International Air Port authority, though a statutory corporation, is an agency or instrumentality of the Government and as such an authority under the control of the Government within the meaning of that expression under Art. 12 of the Constitution. In the third case even a society registered under the Societies Registration Act has been held to be an authority under the control of the Government for the purpose of Part III of the Constitution. If the State through the instrumentality of another agency, whether created by itself or constituted under any statute violates any provision of Part III of the Constitution, that action will be taken as a State action for the purpose of considering the limitations imposed on State action by Part III. That is because of the wording of the Art. 12 which reads as follows:

    “12. Definition.—In this Part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

    3. The veil of the corporate personality of these new banks is not allowed to be pierced except to the extent of finding out the nature of the action taken by the State through them and to see whether that action violates Part III of the Constitution. In other words, in the matter of finding out whether the State action violates any of the fundamental rights the agency or instrumentality through which the State activity is carried on, is identified with the State. To that extent alone the veil of the corporate personality is permitted to be pierced and this is because of the definition of the expression ‘State’ in Art. 12 of the Constitution. In all other respects the separate corporate personality of the State remains in tact. This is clear from the recent decisions of the Supreme Court referred to above and also the decision in Ajay Hasia v. Khalid Mujib (1981 SC. 487). The control of the Government over these nationalised banks, is only limited to matters of policy, for, S. 8 provides that in the discharge of its functions the new bank shall be guided by such directions in regard to matters of policy involving public interest as the Central Government may after consultation with the Governor of the Reserve Bank give. Beyond this provision, there is no scope for identifying a corporation constituted by this Act with the Government. The corporation as a legal person with the right to hold and acquire property is liable to Income-tax as any other Indian citizen and in the matter of day-to-day administration and appointing and dismissing officers and staff it has full freedom and it is not under the Government.

    4. The counsel for the petitioner/appellant contended that since the capital of the new company belongs to the Government and the Government alone can order dissolution of the company, it is a property of the Government and therefore the establishment to manage this property is an establishment under the Government. This contention ignores the fundamental difference between the company and the share-holders of the company. The shareholders are different from the company. They have right over the shares. That does not mean they are part-owners of the company to the extent of their shares. The company has its own separate existence distinct from the share-holders and therefore the fact that the entire share capital of the bank belongs to the Government does not make the new bank a Government. It has a juristic personality distinct from the State. But at the same time it is linked with it. This is the essential feature of a State undertaking. But it will be difficult to call it an establishment under the Government. Further the expression “establishment” used in S. 3 cannot be equated with the undertaking. Establishment can only mean the group of persons who form the organisation managing the undertaking. In the matter of policy this establishment may have to obey the directives but in the day-to-day management the State has absolutely no control and never inferferes with it. Hence it cannot be said that the establishments of these nationalised banks are establishments under the Government. In the Shorter Oxford English Dictionary the meaning of the word “establishment” as “an organised staff of employees or servants including or occasionally limited to, the building on which they are located” was adopted by this Court in Karunamakaran Nair v. Authority under Payment of Wages Act (1971 KLT. 661). We find that expresses the correct idea of that word used in S. 3 of the Act. Besides this exemption there are five other exemptions and all of them convey the same idea, namely the staff of employees or servants belonging to a certain concern. The entire concern does not come under the expression “establishment”, but only the group of persons who run the establishment. So even if the undertaking belongs to the Government, by the fact that all the shares of the Company are owned by the Government the establishment of that undertaking is not an establishment under the Government. In this view the number of authorities cited at the Bar and all of which equate an instrumentality with the Government for the purpose of Part III of the Constitution have no application to the facts of this case. Therefore we are unable to agree with the argument of the petitioner's counsel that the nationalised bank like the Canara Bank or the Bank of India will be an establishment under the Central Government as that expression is used in S. 3(1)(c) of the Act.

    5. In the same clause—S. 3(i)(c)—the establishment under the Reserve Bank of India is exempted. The Reserve Bank of India is also one established under Act 2 of 1934 read along with the Reserve Bank Transfer to Public Ownership Act (Act 62 of 1948) After the 1948 Act which came into force on 1-1-1949 all the shares in the capital of that Bank belonged to the Central Government and the Bank is required to conform to the control of the Government. The provisions in that Act are more or less similar to the Banking Companies (Acquisition and Transfer of Undertakings) Act 5 of 1970 in regard to surplus Profits. Liquidation and Direction. The Governor and the Deputy Governor are all appointed by the Government. It is that Bank which regulates the issue of Bank notes and keeps the reserves with a view to secure the monetary stability in India, purely a Government function. If the appellant's argument is accepted the Reserve Bank is ‘an establishment’ under the Central Government. But the State Legislature has not understood it to be so and that is why the establishment under the Reserve Bank of India is exempted separately. That gives a clue to the content of the expression “establishment under the Central Government”, the content being that it does not take in the establishment of the Nationalised Banks.

    6. In Chamber's Dictionary the word “under” means beneath: below or to a position lower than that of especially vertically lower. This meaning also explains the establishment exempted. Only establishments constituted by the Central Government with freedom to change the set up and also with the freedom to appoint and dismiss the staff can be establishments under the Central Government. But in the case of the Bank of India and the Canara Bank they have their own staff pattern, their own conditions of service unconnected with the Government or the service rules of the Government and so are not establishments under the Central Government Therefore we are unable to accept the larger contention put forward by the petitioner's counsel that the establishment of Bank of India or Canara Bank is an establishment under the Central Government. To this extent we agree with the decision of Khalid, J. challenged in the writ appeal.

    7. It follows the Canara Bank and the Bank of India are not exempted by the Legislature from the provisions of the Shops and Commercial Establishments Act. The only point on which the writ petition, O.P No. 1419 of 1978, is filed by the Bank of India is that the Appellate Authority under the Act has no jurisdiction to deal with the appeal filed by an employee of the Bank. That contention is not correct because the Bank is not an exempted establishment. Therefore the Appellate Authority has got jurisdiction under the Act to deal with the appeal. It follows the Original Petition has to be dismissed. We do so. No costs.

    8. But this does not dispose of the appeal. In the writ appeal a further question arises, namely whether the second respondent is an employee of the Bank. The Bank was advancing money on the security of gold. For this purpose the service of appraisers was necessary and that work was entrusted to experienced goldsmiths. The terms of their engagement were reduced to writing Ext. P1 is the contract between the Bank and the second respondent. In para 2 of Ext. P-1 it is provided that the second respondent is not an employee, but only an independent contractor. Para 3 provides that he can engage himself in his own business or trade. Para 13 provides for termination of the contract by one month's notice in writing. No salary or wages is payable to him. The stipulation is to pay him at 12 Paise commission per loan amount of Rs. 100/-. This rate was subsequently revised. There is no age restriction or provision for termination of the engagement on his reaching a particular age. While he was attending to the jewel apparising on this contract in February, 1973, Bank found that there was no space to keep further gold ornaments, and the issue of gold loan was suspended for some time. Therefore there was no work for the second respondent to do so the Bank issued notice to the second respondent intimating termination of the contract. The notice was received by the second respondent on 6-2-1973 and according to the Bank the contract of engagement terminated with effect from 6-3-1973. The employee filed an appeal before the Appellate Authority and the latter has found that the terms of Ext. P-1 and the other evidence let in the case justify a conclusion that the second respondent is an employee.

    9. In holding that the appellate authority said that the appellant was employed principally for doing the work of jewel appraising and by the terms of the agreement he is bound to attend to the work of the Bank during such time or hours as may from time to time be determined by the Bank and notified to him. The Appellate Authority further found that the second respondent is required to attend office every day from the commencement of the working hours just like any other employee and required to work till the time fixed for public transaction was over. The appellate authority also was of the view that the mere fact that the particular employee is working by a contract and receiving wages linked with the quantum of work done does not make him any the less an employee. The mode of payment, monthly, daily or piece rate according to the appellate authority is not the criterion to determine the status of the person. The stipulation in the contract that the appellant was not an employee cannot be a ground for concluding that he is not an employee. The fact that his name is not in the acquittance roll, attendance register or list of workmen and staff for the year 1972 is according to the authority, also not a deciding factor because the Shops and Commercial Establishments Act does not contemplate that to be an employee his name should be in the said register. The Bank Manager exercises control over the appellant just like in the case of other employees. Prior permission was necessary for the appellant as any other employee to avail leave. Para 4 of the contract, Ext. P1 stipulated that the appellant was obliged to observe and obey all regulations, circulars, rules, orders, directions or instructions in force in the Bank or from time to time issued by the Bank or by any person or persons placed in authority over him in respect of or in relation to the work assigned to him. According to the Appellate Authority these facts are sufficient to make him an employee within the meaning of the Act though the contract expressly mentions that he is not an employee. The further fact that the Bank Service Code will not apply to him was also held to be insufficient to hold that he is not an employee. The learned Single Judge was of the view that as the Appellate Authority has discussed the materials in detail and as the scope of interference under Article 226 is limited, namely, that the court will be slow in interfering with the conclusion unless the court is Satisfied that the conclusions are unreasonable or that there is a clear error of law committed by the Tribunal, interference is not called with the finding.

    10. But we are afraid that the Tribunal has not kept in mind the scope of the definition of the expression ‘employee’ in the Act to enter a finding that the second respondent is an employee. According to the definition the person claiming to be an employee must be one wholly or principally employed in and in connection with any establishment. The terms of Ext. P1 give freedom to the second respondent to engage himself in his business for Ext. P1 limits his availability for work only during certain working hours. Clause 3 of Ext. P1 is clear on this point. If the person engaged is free to engage himself in the profession to which he belongs, namely, jewellery making or dealing in items of jewellery whether he can still be said to be a person wholly or principally employed in or in connection with the establishment requires consideration. The Appellate Authority's finding is only based on the fact that the second respondent has to be in the office during banking hours and he is under the control and supervision of the head of the branch. These have to be looked into in the background of other factors, namely, he is not required to mark any attendance, he is not paid any wages or salary as is done to other employees, he is not required to remain in the office after the bank hours are over, whereas the above conditions are applicable to the staff of the Bank. He is not engaged under any service order. The Service Code of the Bank does not apply to him. No age limit for engagement is specified. No sum is deducted for any provident fund or other employee's welfare benefits. He is engaged under a special contract which asserts that none of the provisions of the Service Code will apply to him, that he is not an employee but only an independent contractor. He is to work in a particular branch alone and cannot be asked to attend to the work of any other branch unless he agrees. What is required is an assessment of all such facts with reference to the nature of the engagement, the work done by the respondent, the consideration paid for it and the period of his service or engagement. We are not satisfied that there has been a proper consideration of the various factors which are relevant to come to the conclusion whether the 2nd respondent is an employee or not as per the provisions of the Act. This being a matter relating to the jurisdiction of the Appellate Authority we are of the view that a re-consideration of the whole question is called for by the Appellate Authority. In the result this writ appeal is allowed to this extent. The order passed by the learned Single Judge and the Appellate Authority are set aside and the Appeal No. 13 of 1973 is sent back to the Appellate Authority for a re-consideration of the question whether the second respondent is an employee or not. In the circumstances of this case we make no order as to costs.

    11. Allowed.

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    Canara Bank & Others v. Appellate Authority
    (Apr 5, 1981)