Chhatpar, J.:— The facts giving rise to the present petition are that the petitioners, the Dhrangadhra Chemical Works Ltd., are a Company at Dhrangadhra manufacturing chemicals which require salt in the manufacture. The Company own salt works at Kuda in the Ran of Cutch and hold a lcase of land from the State for making salt. The entire salt produced at Kuda Salt is not utilized by the Company in the manufacturing process of chemicals at Dhrangadhra; the remaining salt is sold in the market. One of the Superintendents of the Company is in charge of, and supervises, the Salt Works at Kuda. The Company have a permanent Railway line and sidings and some arrangement for storage of water at Kuda.
2. The process of the manufacture of salt is peculiar and different from the usual manufacture directly from the sea water. After the monsoon water dries up, the season for salt making begins somewhere in October. Wells are dug in the ground and from these salt water or brine is brought to the surface. This water is stored in reservoirs which are called condensers in order to condense it to the required density, where after it is transferred to Pattas or Pans or cry-stallisers. In the pans after some time salt crystals begin to form at the bottom and this salt is collected and loaded in the wagons and transported to the place where it is stored. The wells are dug every year after the monsoon is over and similarly the condensors and cry-stallizers have to be newly constructed every year in the beginning of the season. This process of manufacture of salt at Kuda has been going on for a very long time and usually the work is done year after year by the same class of workmen who are known as ‘Agarias’. After the monsoon is over, they come with their families and bullocks to the Salt Works and usually get the same Pattas or Pans for making salt. After the season is over in about June and during the monsoon, they remain in their villages and very often cultivate their land. There is no written contract between them and the Company relating to this work, but usually Pattas are given to those Agarias who have been working from year to year. After the allotment of the Pattas, they use their implements and employ their labour for manufacturing salt.
3. Usually one family gets a Patta and sometimes one Patta is given to two families. Usually the Pattas are worked by the members of the family and no extra labour is employed. But extra labour is sometimes employed, which is paid by the Agarias themselves. Bullocks required for drawing water from the wells belong to the Agarias. The work of the Agarias is to dig the wells every year, prepare the condensors or reservoirs and collect and lift salt from the pans or crystallizers and load it on the wagons supplied by the Company. The Company does not prescribe any hours of work for them, nor is there any muster roll maintained. For how many hours in a day and for how many days in a month they should work are also left to their choice. Further there are no rules as regards their leave or holidays.
4. The only understanding between the Company and the Agarias is that the latter should not leave the Pattas allotted to them unworked and should sell the entire produce of salt prepared to the Company at a rate fixed in advance; but there is a distinct agreement between the company and the Agarias that the salt manufactured must be of a particular standard. Salt which does not conform to the standard is rejected by the Company but at the same time the Agarias have no right to take it away or market it. The agarias do not hold any licence for the manufacture of salt, nor do they hold in any sense any lcase of the Pattas given to them by the Company. The Company in the beginning pays Rs. 400/- to each Agaria for each Patta. This, it seems, forms the consideration of digging the wells, preparing the condensors and Pans. Further incidents of relationship between the Agarias and the Company will be discussed hereafter.
5. There is a Trade Union of the workmen of the Company known as the Dhrangadhra Chemicals Kamdar Sangh, which is duly registered. Some disputes arose between the Agarias represented by the Sangh and the Company, which were referred by the Government of Saurashtra for adjudication to Mr. N.L Vyas, the Industrial Tribunal, by order dated 13-3-1950 in exercise of powers under Section 10(1)(c) of the Industrial Disputes Act, 1947. Before the Industrial Tribunal two preliminary questions were raised, on which an award was given by the Tribunal on 304-1952. These two questions were whether the Agarias were workmen within the definition in Section 2(s) of the Industrial Disputes Act, 1947 and whether the Agarias could properly be represented before the Tribunal by the Sangh on the allegation that they had ccased to be members of the Sangh by reason of non-payment of the membership fees at the material time.
6. The Tribunal held, though in a halting manner, that the Agarias were workmen within the meaning of the definition and as regards the second question, the Tribunal thought that the question did not lie within its powers remarking:
“Once the reference is made by the Government under Section 10 of the Industrial Disputes Act, the Tribunal has to hear that dispute, and to give its award on the dispute; whether the reference was made at the instance of a representative Union or not is not a matter which can be considered by the Tribunal. I see no force in this contention urged on behalf of the Company.”
7. From the award the Company preferred an appeal to the Appellate Tribunal on the two points stated above. Pending this appeal, the Company applied for stay of proceedings before the Industrial Tribunal of the disputes referred to it by the Government. The stay was refused, whereupon the present petition was filed in this Court and they also filed along with the petition an application for stay of proceedings before the Industrial Tribunal. This Court granted stay whereupon the Appellate Tribunal being of the opinion that the matter was seized of by the High Court and the questions involved would be decided by it dismissed the appeal of the Company without going into the merits on the two questions involved. The petition has now come before us for hearing.
8. The petition is not happily worded but at the time of arguments, Mr. Patwari the learned Advocate for the Company has restricted the prayers under two heads; he claims a writ of certiorari challenging the decision of the Industrial Tribunal on the ground of want of jurisdiction as also an error patent on the face of the proceedings, his contention being that the question whether the Agarias are workmen was one which was collateral to the assumption of jurisdiction and this Court can properly give its decision overriding that of the Industrial Tribunal. The second point urged is tile same as regards the representative capacity of the Sangh. It may be mentioned that two of the Agarias have been made parties to this petition and they have been served under O. 1, R. 8 of the CPC to represent the Agarias.
9. On the other hand, the learned Advocate General, who appears for the State of Saurashtra, as also Mr. H.V Trivedi, who appears for the Sangh, have raised several preliminary contentions against this Court exercising its extraordinary jurisdiction either under Article 226 or 227. Constitution of India, both of which have been invoked by the petitioners. The learned Advocate General contends in the first instance that the order of the Government to refer the disputes to the Industrial Tribunal involves a decision, whether an Industrial Dispute exists, which in its turn involves the decision whether the Agarias are workmen within the definition of the Act. The order of the Government referring the disputes to the Industrial Tribunal is final being within their discretion and in any case should not be lightly interfered with. This argument is prima facie unsound and we repel it.
10. The Government, have not been given any power to decide whether a person is a workman or not before making an order of reference; such a decision involves the question of the very application of the Act. The Government cannot by their order of reference be deemed to have decided any question by any stretch of imagination. We have therefore no hesitation in overruling this preliminary contention of the learned Advocate General.
11. The next contention raised by him is that the question whether the Agarias are workmen or not lies within the adjudication by the Industrial Tribunal. But he has not been able to point out any provision in the Act whereby the adjudication on such a point by the Industrial Tribunal is final.
12. This leads us to the distinction made where the jurisdiction of an inferior Tribunal depends not upon some preliminary proceeding but upon the existence of some particular fact. If the fact be collateral to the actual matter which the Tribunal has to try, the Tribunal cannot by a wrong decision with regard to it give itself jurisdiction which it would not otherwise possess. The Tribunal must indeed decide as to the collateral fact in the first instance but the Superior Court may upon certiorari inquire into the correctness of the decision, and may quash the proceedings of the Tribunal if such decision is erroneous or at any rate if there is no evidence to support it.
13. On the other hand if the fact in question be not collateral, but a part of the very issue which the Tribunal has to inquire into, certiorari will not be granted, although the Tribunal may have arrived at an erroneous conclusion with regard to it. (See in this connection Halsbury's Laws of England, Hailsham Edition, Vol. 9 pages 881 and 882, para 1485). This question recently came before the Supreme Court in — ‘Brij Raj Krishna v. Shaw & Bros.’, AIR 1951 SC 115 (A). At ‘page 227’ the Supreme Court referred to the observations of Lord Esher, M.R in — ‘Queen v. Commissioner for Special Purposes of the Income-Tax’, (1888) 21 Q.B.D 323 (B). These observations in substance form the basis of the above article in Halsbury's Laws of England cited above.
14. We had occasion to refer to the observations in Chandrasinhji v. Kanbi Vaghji Thakershi’, 6 Sau LR 227 (C) at pp. 231 & 233. We need not reiterate them. Reading the various provisions of the Act, we are clearly of the opinion that the question whether a person is a workman within the definition of the Act is a fact collateral to the assumption of jurisdiction by the industrial Tribunal and the Tribunal cannot by a wrong decision with regard to it give jurisdiction which it would 2101 otherwise possess. It is competent for this Court on a writ of certiorari to call for and examine the decision of the Industrial Tribunal. We, therefore, overrule the objection of the learned Advocate General in this connection.
15. We may incidentally refer to — ‘Province of Bombay v. Khushaldas S. Advani,’ A.I.R 1950 SC 222 (D) wherein the Supreme Court held that wherever any body of persons having legal authority to determine questions affecting the rights of subjects having the duty to act judicially, act in excess of their legal authority a writ of certiorari may issue. The Rajasthan High Court in — ‘Gangadhar v. State of Rajasthan’ A.I.R 1953 Raj 71 (5), held that where the Superior Court comes to the conclusion that an inferior Tribunal is exercising jurisdiction which is not vested in it the Superior Court will issue a writ of prohibition, even though there may be an alternative remedy.
16. A Division Bench of our Court in — ‘Bharwad Chama v. State of Saurashtra’, AIR 1953 Sau 3 (F), while considering an order purported to be issued by the District Magistrate under S. 47-C, Saurashtra District Police Ordinance, observed that when an appeal is provided, the High Court will not issue a writ as a general rule but if the High Court is satisfied that the District Magistrate purported to act under S. 47-C, Saurashtra District Police Ordinance, without applying his mind to the question whether the conditions which gave him jurisdiction existed or not he contravened the fundamental rights of a citizen & it became the duty of the High Court to interfere.
17. The Next point urged by the learned Advocate General is that since a right of appeal existed from the decision of the Industrial Tribunal and which was in fact availed of by the petitioners Company, this Court should not grant the discretionary relief under the constitution. The Company had filed an appeal, but the question involved goes to the very root of jurisdiction. Whether or not we should in such a case stay our hands and ask the party aggrieved to exhaust its right of appeal before approaching the Court need not be considered as the Appellate Tribunal by dismissing the appeal without going into the merits thereof, have deprived the petitioners of their right of appeal and we must assume as if cither the Appellate Tribunal has decided the appeal to the detriment of the petitioners or refused to exercise jurisdiction as an Appellate Court. In either event this Court cannot accept the argument that because a right of appeal lay and such right was actually availed of, this court should not grant the relief under the Constitution. Even if the Appellate Tribunal had given its finding on the question whether the Agarias are workmen within the definition of the Act, its decision would not be final and binding, as the question was collateral to the assumption of jurisdiction by the Industrial Tribunal. Under the circumstances, we overrule this contention of the learned Advocate General as well. We are clearly of the opinion that this is a fit case in which we should exercise our powers under the Constitution and decide this important question whether the Agarias are workmen within the definition of the Act. It has been argued at considerable length before us and has also been dealt with ably by the Industrial Tribunal.
18. We next consider the contention of Mr. Patwari for the petitioners Company that the Sangh could not represent the Agarias. We overrule this objection too. It appears from the proceedings before the Industrial Tribunal that Agarias were members of the Sangh. This is not disputed. Mr. Patwari has drawn our attention to some rules of the Sangh which lay down that if membership fee is not paid, the defaulters will case to be members. But there is also a further rule that if arrears are paid, their membership will be continued. From the evidence on the record it appears that arrears were paid and therefore the exclusion from membership, if any, must be considered as having been set aside by the payment of the arrears. The Agarias were, therefore, properly represented by the officers of the Sangh under Section 36 of the Act.
19. Having disposed of the technical objections by the parties, we now proceed to deal with the main question at issue whether the Agarias are workmen within the definition of the Act. This definition reads as under:
“(s) ‘Workman’ means any person employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purposes of any proceedings under this Act in relation to an industrial dispute, a workman discharged during that dispute, but does not include any person employed in the naval, military or air service of the (Government).”
20. Now the word “employed” in the definition is capable of two meanings, (1) in the sense of being engaged or occupied and (2) in the sense of being employed under a contract of service, implying the relationship of master and servant between the employer and the workman. Understood in the first sense it is clear that Agarias would come within the definition as they are engaged or occupied in an industry which is that of a salt making and the employment is compensated by hire or reward in the shape of a rate on the standard salt produced.
21. But we are of the opinion that the word ‘employed’ is used in the latter sense importing a contract of service. In support of this interpretation, we find a clear indication in the Act itself. Section 33 of the Act says:
“During the pendency of any conciliation proceedings or proceedings before a Tribunal in respect of any Industrial dispute, no employer shall alter, to the prejudice of the workmen concerned in such dispute, the condition of service applicable to them immediately before the commencement of such proceedings;……”
22. The conditions of service referred to in this Section can only relate to a contract of employment as a servant.
23. Now there is a marked difference between a ‘contract of service’ and a ‘contract for services’. The distinction has been pointed out in — ‘Simmons v. Health Laudry Company’, 1910-1 KB 543 (G), where the meaning of the term ‘contract of service’ in the definition of the word “workman’ in the Workmen's Compensation Act was considered. The question in that case was whether the appellant who was giving music lessons to a neighbour's children, in respect of which she received remuneration, was under a contract of service. Cozens-Hardy M.R in delivering judgment observed:
“I confess my inability to lay down any complete or satisfactory definition of the term ‘contract of service’. Various tests were suggested by counsel, no one of which was beyond criticism. Some light is thrown by the definition of ‘workman’ in Section 13 of the Act, for the Act applies only to workman. The material words are these, “‘workman’ …. means any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, clerical work, or otherwise, and whether the contract is expressed or implied, is oral or in writing”.
24. I am far from saying that a teacher may not be within the Act, the words “or otherwise” being sufficient to cover such a case. An usher in a private school, or a teacher in a provided or non-provided school, or a nursery governess would, under ordinary circumstances, be entitled to claim the benefit of the Act. On the other hand it would, I think, be absurd to hold that a skilled music master who gives lessons to a pupil, either in his own house or in the pupil's house, is to be regarded as the “workman” and the pupil as the “employer”. In such a case there may be a contract for services, but there is not contract of service. In any particular case it will be for the arbitrator, after considering all the circumstances, to decide whether the injured professional person is or is not a “workman”. This is not a question of law, but a question of fact…….”
25. Supporting the judgment, Fletcher Moulton, L.J observed:
“Some cases present no difficulty. For example, where the proprietor of a private boarding school engages ushers to teach the boys and to maintain discipline, it does not, in my opinion, admit of reasonable doubt that the contracts into which those ushers enter are ‘contracts of service’ within the Act. On the other hand it is in my mind equally clear that where a person son goes to a music or singing master to take lessons it would be absurd to hold that the person giving the lessons is the servant of the person taking them in any sense of the word. The contract between them is a contract for service, but it is not a contract of service.
Between these two extreme cases lie an infinite number of intermediate case where the special circumstances point with greater or less force towards the one conclusion or the other, and in my opinion it is impossible to lay down any rule of law distinguishing the one from the other. It is a question of fact to be decided by all the circumstances of the case. The greater the amount of direct control exercised over the person rendering the services by the person contracting for them the stronger the grounds for holding it to be a contract of service, and similarly the greater the degree of independence of such control the greater the probability that the services rendered are of the nature of professional services and that the contract is not one of service.
The place where the services are rendered, i.e, whether at the residence of the person rendering the services or not, will also be an element in deciding the case, but is not in my opinion decisive, nor is the question whether the services are rendered to a person in the way of business or to a parent in respect of his children”.
26. And Buckley L.J, discussing the question observed:
“The parties to the contract are spoken of as employer and workman and the contract between them is spoken of as a contract of service. It is not, of course, every contract under which services are rendered that can be described as a contract of service. If I take a railway ticket the company enters into a contract with me to render me service, but there is not contract of service and the railway company is not my servant.
A contract of service is one which necessarily involves the existence of a servant, and the parties contemplated by this Act may be called, I think, either employer and workman or master and servant, but subject to the limitation that the servant must be one who falls within the definition of workman as contained in S. 13. “A servant”, said Bramwell, L.J in — ‘Yewens v. Noakes’, (1880) 6 QBD 530, at p. 532(H), “is a person subject to the command of his master as to the manner in which he shall do his work”. To distinguish between an independent contractor and a servant the test is, says, Crompton, J. in — ‘Sadler v. Kenlock’, (1855) 4 E1 & B1 570, at p. 578 (I), whether the employer retains the power of controlling the work.
27. Sir Frederick Pollock in his book on Torts, p. 79, says “the relation of master and servant, exists only between persons of whom the one has the order and control of the work done by the other”. This definition I think requires some qualification. Suppose that a motor car can lawfully be driven only by a person who holds a certain licence and is thereby bound to conform to certain public regulations. The driver may be the servant of the owner of the car, although the owner cannot control his work in the particulars in which the driver is controlled by the regulations. But broadly stated a contract of service does import that there exists in the person serving the contract an obligation to obey the orders of the person served.”
28. Halsbury's Laws of England, Hailsham Edition, Vol. 21 pages 112 to 115, give the relationship between the master and the servant in the following terms:
“Whether or not, in any given case, the relation of master and servant exists is a question of fact; but in all cases the relation imports the existence of power in the employer not only to direct what work the servant is to do, but also the manner in which the work is to be done. A person may be the servant of another although a third party has the power of appointing or dismissing him or of requiring his dismissal, or has power of direction and control in regard to his work, or pays him his wages. A person may be a servant although remunerated otherwise than by wages, or although only employed at will; and the relation is not destroyed because the master works with the servant. A person may be a servant to different masters; and a contract for exclusive personal service does not necessarily establish the relation of master and servant.
The difference between the relations of master and servant and of principal and agent may be said to be this a principal has the right to direct what work the agent has to do; but a master has the further right to direct how the work is to be done.
A person who is subject to no directions as to the time he is to devote to the work of another is an agent and not a servant; but a person who is required to give a definite amount of his time thereto, although allowed to exercise his discretion as to the place and manner of his work, is a servant and not an agent.
The circumstances that a person is remunerated by commission only is not conclusive as showing him to be an agent and not a servant; and an agent may, in part, be remunerated by salary……
The relation between employer and contractor does not give rise to the same liability of the employer as does the relation between master and servant. A contractor is to be regarded as a person carrying on an independent business.
To distinguish between an independent contractor and a servant, the test is whether or not the employer retains the power, not only of directing that work is to be done but also of controlling the manner of doing the work. If a person can be overlooked and directed in regard to the manner of doing his work, such person is not contractor, and it makes no difference that his work is piecework. Similarly a sub-contractor is not the servant of the contractor employing him and a person may occupy the position of contractor in respect of one matter and in respect of another to the same employer.”
29. It would be thus seen that the crucial test to determine a contract of service is control by the master over the work of the servant and an obligation on the part of the servant to obey the orders of the master. The method of payment of wages or remuneration is not so material.
30. Bearing in mind these principles, we have to judge whether the Agarias could be legitimately deemed to be workmen under a contract of service as distinguished from a contract for services. In the ordinary popular sense Agarias may appear not to be servants of the Company. They are not paid any salary or wages and their hours of work are also not prescribed by the Company. After they are allotted Pattas for manufacturing salt, they are free to work in any way they like; they can also employ their own labour. But we have to see whether the test of control and obedience to orders of the Company applies to a sufficient degree to establish the relationship of master and servant. The Act does not require that the workman should necessarily receive wages or remuneration in the ordinary way. Any reward or hire is sufficient and this would include remuneration on the basis of a rate per maund of salt prepared.
31. In addition to the incidents of employment mentioned in the preamble of this judgment, we may reproduce the following passage from the judgment of the Industrial Tribunal, which summarises the conditions of employment and embodies the conclusion arrived at:
“There is no dispute that these Agarias work themselves with their families on the Pattas allotted to them. They themselves manufacture salt by their own labour. They no doubt in some cases are free to engage extra labour. But mainly it is they who do the work. It was admitted by the Salt Superintendent that no Agaria, who does not work himself, is allotted a Patta. It was also admitted by the Salt Superintendent that no Agaria can leave his work incomplete, and at the same time retain the right to manufacture salt on the Patta allotted to him. It was also admitted that each Agaria is given Rs. 400/- over & above the price of the salt produced by him. This amount of Rs. 400/- would in reality represent the cost of construction of wells and the condensors and crystal-lizers. The Agaria cannot market freely the salt manufactured on his Patta. He is under the obligation to sell the salt to the Company. Even the salt not accepted by the Company cannot be removed by the Agarias out of the salt works.
At every stage of the manufacturing process the work is supervised and controlled by the Company. When the well is dug, and salt water or brine is brought to the surface it is tested by the Company, and only when it is found of a particular density, the well is passed by the Company. Then the water in the condensor is tested by the Company, and only when it is of particular density that it is allowed to be poured in the pans or crystallizers. When salt crystals begin to form in the pans, they are tested by the Company, and only when they are of particular quality, the work of collecting salt is allowed to be commenced. Even the Pans have to be prepared by the Agarias according to certain standard, and they are tested by the Company. It would clearly, therefore, appear that the Agarias are not free to work in any manner they like. There is control of the Company from beginning to end of the manufacturing process.
The Agarias are also not free to market their produce. Consequently the Agarias are neither the lessees nor the licensees pure and simple. As a matter of fact, the licensee or the lessee is the Company from the State, and it is the Company who carries out the terms of the licence of case granted by the State by employing these Agarias. Moreover the Company not only pays a lump sum of Rs. 400/- to each Agaria, but also gives advances every month to them so that they can carry on their work. The Company has also made provision for drinking water for Agarias and for obtaining their necessary supplies. The grocer's shop is being maintained by the Company, where the Agarias can obtain the supplies on credit, and the payments are made by the Company direct to the grocer by deducting from the price of salt payable to the Agarias. All these circumstances would go to show that the relationship of the Company with the Agarias is of a peculiar nature, and can be classed as one of employment to do a certain class of work for a certain remuneration.
The nature of the work is such, and the practice heretofore has been such that the Company gives a great deal of latitude to the Agarias as regards the conditions of work. Nevertheless there is no doubt that these Agarias are employed by the Company to manufacture salt on its land on certain conditions, and are not simply independent contractors with whom, after the contract is given to them, the Company has no concern whatsoever except to obtain rent or premium for use of the land. I am, therefore, inclined to hold that these Agarias must be classed as ‘workmen’ within the meaning of the expression defined in the Industrial Disputes Act.
The question is certainly not free from doubt; but on consideration of the exact relationship between these Agarias and the Company, I feel that they must be classed as workmen, and should be afforded protection granted to the workmen employed in other industries under the various Labour Legislations. I am quite conscious of the difficulty that may arise if they are classed as workmen, and rules regarding hours of work etc., applicable to other workmen are applied to them. But that difficulty can be surmounted by adopting suitable changes in the manner and method of the work that is being done by the Agarias.
As the Company has refused in its written statement to recognise these Agarias either as sub-lessees or licensees entitled to certain rights in the Pattas they have been holding for several years, the only course that can be adopted for giving relief to these workmen, is to recognise them as workmen of the Company. I therefore hold that these Agarias working in the Salt Works at Kuda are the workmen within the meaning of the expression defined in the Act, and consequently the dispute referred by the Government can be heard by this Tribunal. I, therefore, direct that the date be fixed to hear the dispute on merits.”
32. The facts stated in the above passage are either admitted or proved from the evidence recorded before the Industrial Tribunal. We see no reason to differ from these findings. Mr. Patwari's main crux of the argument was that apart from the generalisation that the Agarias were free to work in whatever manner they liked for which they were paid on the basis of piece-work at a rate to be fixed between the parties, the Agarias need not work themselves but could employ independent labour to work for them. For this he tried to rely upon the evidence of the Superintendent of the Company; but we do not find any justification for this inference from his evidence. What comes out as a fact is that the Agarias can and do employ extra labour, but no instance has been cited where an Agaria has handed over the entire work to the labour employed by him.
33. So far as we are able to judge, Pattas are given to Agarias for themselves to work along with their families and in case they require some extra labourers to implement the work, they are at liberty to employ and pay them independently. The Agarias have no right to assign the contractor work to be done by them to somebody else or to entirely substitute others for themselves as workmen. Under the circumstances, the mere fact they are at liberty to engage extra labour will not take them out of the category of workmen, if they are otherwise so by reason of the incidents of control and obedience to orders stated above.
34. Giving the matter our anxious consideration, we agree with the conclusion arrived at by the Industrial Tribunal that the Agarias are workmen within the definition in the Act. Under the circumstances, this petition is dismissed and the order of stay is discharged.
35. As the points involved were not free from doubt and both parties have partly failed in their contentions, we think this is a matter in which we should make no order as to costs.
36. Baxi, J.:— I agree.
37. Petition dismissed.