2 INDUSTRIAL JURISPRUDENCE L INTRODUCTION ‘The Impact of the Industrial Revolution on the western society has been two-fold, Firstly, its emergence put an end to the system of slave-labour which had existed in Europe for more than a thousand years and which Christianity, despite its emphasis on charity and universal brotherhood of man, could not abolish. Secondly, it created the modem wage-carning class, the Proletariate, on the ashes of the handicraft and the ‘domestic’ system of enterprise, by ushering in the modem factory in which the Inbour virtually free to sell his labour in a competitive market, had been converted into # mere “factory hand!’ Not that labour did not exist before the Industrial Revolution, but it id not cxist as a distinct class, conscious of itself and trying to make ‘a.common cause over an area wider than that of a single occupation or industry, and at times even of a state, The consciousness, however, took time to strike root. Since the Industrial Revolution came first in England, the process of social. transformation, too, started first in that century. It started with an impact of the new industrialisation on the situation of the worker. In India the study ofthe history of industrial legislation obviously implies first, tracing the origin and development of industrial laws in + this country, and secondly, finding out the extent of correlation between the growth of Indian industries and the development of Indian industrial legislation. Again, the history of Indian industrial legislation may be ivided into three periods as follows : (a) 1850-1918; Origin period, | (@) 1919-1945; Development perio, and (¢) 1946 onwards; Consolidationperiod. Today India can very well boast of having up-to-date labour legislation, whether for resolving industrial disputes or for providing, ‘Social security to the working class, Al this legislation taken together may be Said to have introduced a new jurisprudence: in our country—a Jurisprudence which is at times at variance with the hitherto accepted ‘concepts of law, ‘The present dynamic age in India is marked by trememdous ‘growth in the Geld of industrialisation. With the growth and development ‘of industrialisation, a new branch of jurisprudence, Le., industrial jurisprudence is coming into prominence. It means. in its broadest Sense, the science of industrial law which aims at reconciliation and maintaining a proper balance bexween the conflicting interests in industrial society by regulating the relations betwcen employers and employees, ‘employers and employers, employees and employees and industry and ‘the state, As referred earlier today is the age of indusirialisation, With ihe growih of indusrialisation, the relationship between the employers ‘and employees, employees and employees, employers and employers ‘and industry and the state, is. growing more and more complicated. Industrialisation though an essential clement af developed national ‘economy, cannot attain its aim without the help of a sound system of Tndustrial jurisprodence. Evolution of a sound system of industrial jurisprudence is an essential element for the attainment of planned. Progressive and purposeful industrialisation. It will not be-out of place ‘ossiate here that broadly speaking the expression indusirial jurispruxtence ‘connotes certain basic principles regulating the industrial life and employer-employces relationship with the aim of converting them ‘nto co-operaters and maintaining and encouraging amicable relations between the employers and the employees. ‘This chapter briefly reflects upon the Industrial jurisprudence in today’s world. It describes some of the major causes of Industrial Jurisprudence, It also attempts to fecus the trends in the development of Industrial jurispredence in the India of the 2ist century. Lastly, the present author offer some suggestions to promote better Industrial Jurisprudence in India, IL, DEFINITION ‘The word ‘jurisprudence’ has been much talked about and explained among jurists, judges and lawyers and has been assigned different meaning by different people. Inspite of it and basically itsmeaning remains what Latin derivation of the word means. It is either “Knowledge of Law’ or ‘Skill of Law’. “Jurisprudence, is ward of a varied import! but in the sense in which the word has been used in this place it means an abstract, general and theoretical investigation into law which seeks to lay bare the essential principles of law and legal system—a research into the fundamentals. According to Salmond ‘jurisprudence’ is the name given to a certain type of investigation into lnw, an investigation of an absiraci, general and theoretical nature which seeks to lay bare the essential peinciples of law and legal system. But Dias went a step further and defined it in a wider sense. He opined that it is used also to describe egal connections of any body of knowledge. He also paints out that under French law ‘La jurisprudence’ is the term applied to the body of law buill up by the decisions of particular courts.’ Jurisprudence is its etymological and widest sense is said to be the science of law. ‘The term “Industrial jurisprudence’, is of a much modern origin. Ibis scarcely used and narrowly interpreted. No doubt, the ideas behind the concept of industrial jurisprudence find expression in thoughts and activities of the past as well as of ihe present. But only a few modern writers have specifically referred to or used the term? He further inform us that Casselman’s ‘Labour Dictionary” defines industrial jurisprudence as “the code of a firm's employer-employee relations behaviour as established through the precedent of decisions on day-to- day issues." In the opinion of Smith, it is a code which ‘consists of Precedents established by decisions made in setting employee problems and gricvances.""” Gagliarda describes it as “'some custom and rules by which relationships between employers and employees, or master and servant, (are) governed.'"® According to Foenander, the fruits of the administration of industrial tribunals fairly merit the title and description of industrial jurisprudence.’ Thus they have used, the expression ‘industrial jurisprudence’ in its loose rather than strict meaning. Industrial jurisprudence would be the term spplied to the body of law built up by decisions of courts dealing with special problems in the field of Industrial Relations. It may be also said to be the science of industrial law or the philosophy of industrial law or the general theory of industrial law. S.R, Samant opines that ‘Industrial jurisprudence’ means the basic principles underlying the code of conduct to which the day-to-day relations of employers and employees in industry ought to conform."“The discussion and the consequent attempt at precisely defining the word ‘industrial jurisprudence” still go on adding precious volumes to the already vast existing literature, Tt is neither the place nor the ‘oceasion to study all these definitions nor any one of them as referred above is sufficient to define what we propose to include in this present study. ‘Industria! jurisprudence in India is based oa the three sources—the Constitution, Legislative Acis and Judge made law. Therefore, the Constitution is the touch-stone of our values ard the bed-rack of our Industrial jurispradence, secondly, the body of statute law is the second source of our Industrial jurisprudence and lastly the third and the richest source: Of Industrial jurisprudence comprises the judicial decisions, Harking back to the nature of Industrial jurisprudence in India Justice Krishna Iyer'' in a case remarked that “Industrial jurisprudence fs not static, rigid or textually code but dynamic, bourgeoning and worm with life, It answers in emphatic negative the biblical interrogation, ‘What man is there of you if his son asks bread will give him a stone? The Industrial Tribunals of India in areas unoccupied by precise Block Tatler Jaw, go by the constitution mandate of social justice in the claims of the little people."* IIL AIMS AND OBJECTS Industrial Jurisprudence is a dynamic and evergrowing subject, Under the concept of police slate or laissez faire state, the scope of Industrial jurisprudence was very limited. The sae was a mere spectator of what was happening in industries. In modem times, Industrial jurisprudence does not deal only with the basic principles goveming amicable relations between the ‘employer and employees. It also includes the basic principles determining the Felationship between the employer and employees, employees inter se, employers inter se and industry and the state. The main sources of Industrial jurisprucdence are industrial legislation, industrial agreements, indusirial case law, industrial custom and indus:rial justice, ‘The object of Industrial jurisprudence, is snd must be to convert the competitors into co-operators. It is to create a community of interest ‘and sense of partnership between the employers and employees. The employer and his employees came together with a common purpose of efficient and profitable production of goods and services. Their primary bject is and must be to produce efficiently for the good of the communityand their secondary object is and must be to produce profitably for their own good, But for both, to produce efficiently as well as profitably, it is highly essential that the relationship between the employer and his employees is harmonious and amicable. Without clase co-operation between the employer and his employees any efforis to increase production, improve services and enhance profits aré bound Lo become fruitless, Thus the main object of Industrial jurisprudence is to maintain ‘a proper balance between the conflicting interests in industrial society, ie., to reconcile between excessive profit motive af employers and excessive wage eaming of the workers, So the ultimate object of Industrial jurisprudence is to achieve social engineering in industrial society. IV. SCOPE AND IMPORTANCE Industrial jurisprudence is a very vast subject. Both the words industrial" and jurisprudence’ possess a very wide meaning. Previously the scope of Industrial jurisprudence was limited to determination of relationship between the employer and employees. The relationship between the employer and the employee was strictly based on the. principle of ‘master and servant’, At that time the law of master and servant accepted labour as a saleable commodity and, hence, clothed and recognised the master right to ‘hire and fire’ the labour at his convenience and sweet will. ‘Today ‘Industrial jurisprudence" encompasses a variety of legal problems concerning a variety of industrial persons. It can be vicwed. now from four important angle, viz., (i) a8 the analysis of industrial law, where we will have to see what are the fundamental rights and duties of industrial employers and employees; who are the two principal parties to industry, (ii) a8 the history of industrial law, where we will ave to trace the origin and development of these rights and duties during the course of the past industrial progress. Here also the changes. in the industrial law made through the various amendments, re-enactments. and repeals during the past is to be study exhaustively and thoroughly as far as possible, (iii) a8 the ethics of industrial law, where we will have to find out what is the purpase behind laying dawn these rights. and duties, how far this purpose is fulfilled by them, and what are: their shortcomings if any. Also we will have to see what makes the ideal employer and the ideal employee, and lastly, (iv) as the sociology ‘of industrial law, where we will have to sce whether the existingtights and duties are really respected, if not then why not, and what is their general effect on the industrial community. The importance of ‘Industrial jurisprudence’ is manifold. It is ‘very important subject, Apart from to the employers and the employees and significance end value of it is there to both the government and the public. The importance of the Industrial jurisprudence can be stressed from different dimensions. They are as follows: (i) it is a ‘subject of all pervading nature. It affects the industrial society as well as rest of the world, (ii) it helps industrial peace and comity which is a major part of social peace and comity. Further the basic needs of the worker as a human being and the fundamental rights of the worker, which is essential for securing the welfare of a nation is theré, (iii) the study of the subject involves an atiempt at defining the basic rights and duties of employers and employees in industry, which is important not only from the academic but also from the practical point of view. ‘The study is beneficial both to employers and employees alike as it aims at increasing the real wages of the worker and the profits of the producer through increased efficiency, (iv) it is essential to maintain co-operation between the employers and employees which is essential for increased industrial production, and finally, (¥) as industrial law has now come Lo be recognised as a specific and important division of the law and the study of Indusirial jurisprudence would surely make a valuable contribution to this important branch of the law. Therefore, the importance of Industrial jurisprudence as a means of bringing about better employer-cmployce relationship and greater production cannot be over-emphasised, ¥. DEVELOPMENT OF INDUSTRIAL JURISPRUDENCE IN INDIA. 11 is recorded in Indian legal history that in ancient India there existed an advanced body of principles dealing with Industrial jurisprudence. Ancient jurists of India like Kautilya and Manu were its chief exponents. At the beginning of Chapter II in the Kautilya Arthasasira., Kautilya about 298 B.C. wrote upon this subject more than 2000 years ago, He classify the labours as Free labources and slaves and ordains a law known as Karmakara law (Free labour law). The Institute of Manu (200 B.C. to AdD. 200) dlso deal partly with this subject. They Inid down many rules regarding the relations between the master and the servant in the matter of wages, punishment forbreach of contract, sick leave, festival holidays, efficiency bonus and the like. In those days of small family units of industries facilitating loser personal contract between the master and the servant, as opposed to the present day mass production factories employing thousands of men and women, the existence of such a system of Industrial jurisprudence must be appreciated and considered to be progressive. But this ancient law mostly have became obsolute with the role of time. In the later part of the nineteenth century not withstanding ta development of large-scale industries, it was not until First World War thai Indian workers became conscious of their tights. After First World War their struggle led to a number of work stoppages. ‘Thus after the above war labour legislation in India grow at a rapid pace. This legislation comprises four sectors, namely, those relating to establishments, to wages, to industrial disputes and to social security and welfare, But today Inbour law claims a share in the regulation of normal behaviour between the employer and the employee, eg,, safety and bealth provisions, hours of work, weekly days of rest, minimum wages, guarantees against loss through abnormal events, periods of notice, payment of retrenchment compensation, obedience to the rule of last frst go, remedies for unfair dismissals. and promotion of other VI. INDUSTRIAL JURISPRUDENCE AND THE, INTERNATIONAL LABOUR ORGANISATION The LL.O. was established to secure fair and humane conditions of labour and to promote better relationship between the ‘employers and the employees all over the world, It was established to bring about a beiter intemational order in the industrial legislation of the world and to give to the worker his just and proper place in the law of all nations. So after the establishment of LL.O. large number of beneficial industrial laws have appeared on the statute book of many countries of the world including India. Furthermore, the work of the 1.1.0. has in the past done and is presently doing in shaping system of intemational Industrial jurispredence.VIL INDUSTRIAL JURISPRUDENCE AND ‘THE FUNDAMENTAL RIGHTS OF THE WORKER Previously the employers possessed almost all rights and the employees owned almost all duties. In fact, the employers deprived the employees of their rights which thing they could do chiefly because ‘of their power of possession of economic wealth and social status. Again, most of the workers were “lliterale, ignorant and poor. But today the fundamental rights of the worker assumes great importance. ‘The maintenance of industrial peace largely depends upon the defence of the fundamental rights of the worker, Every worker must possess, by reason of his being a human being, certain minimum basic rights. ‘These rights and freedoms can be termed bis human rights and fundamental freedoms. There is also Universal Declaration of Human. Rights (UDHR) proclaimed by the General Assembly of the United Nations on 10th December, 1948. It recognises the importance of the role of man as a worker and of bis dignity and worth as a human being. The Constitution of India embodies, in the form of either “fundamental rights" or ‘fundamental directive principles of state policy", almost all human rights and fundamental freedoms of the worker as contained in the UDHR. VIII. THE CONSTITUTION OF INDIA-A RESERVER OF INDUSTRIAL JURISPRUDENCE Alter independence the Constitution of India came into being. It represents the brosd mores of emerging Industrial jurisprudence. The preamble indicates the grand objectives of socio-economic justice slong with the political service. Article 38 provides similar objectives and provides certain principles to be observed by the states in furtherance of these objectives which are fundamental in the governance of the country, Articles 39, 39-A, 40, 41, 42 and 43-A provide the basic norms on which the edifice of the Industrial jurisprudence can be built up. The principles contained in these Articles adumberate the basic principles aiming to provide equality among men and women in industrial concern, control of material resources to serve the common good, check the concentration of wealth as to serve common people, equal pay for men and women irrespective of sex, ensuring the health of workers, men and women and children, legal sid, right to-work, securingjust and humane conditions for work, and workers” participation in the management. IX. ROLE OF JUDICIARY IN EVOLUTION OF INDUSTRIAL, JURISPRUDENCE IN INDIA Respect for right and avoidance of wrong are the conditions precedent to order. The welfare of the workers, obviously, cannot be measured by the number of industrial laws availablé for their aid, for, unfortunately, these Iaws are not voluntarily respected either by employers or by employees. More important than the industrial laws is the method of their administration. In other words, the part the industrial judiciary has to play in evolving, interpreting, applying and enforcing these industrial laws, i8 more important than thal played by the legislatures which enact them. With the growth of industrialisation and consequent increase in work force, the case for an independent industrial judiciary is receiving momentum. An industrial court is constituted with 2 definite purpose and for the benefit of definite persons. ‘The aim of its establishment is to administer industrial law which is based upon social justice. It is mainly meant for and mostly used by industrial workers who are mone often than nol poor, insecure and illiterate. It possesses, therefore, certain salient characteristic features in order that it can properly fulfil its purpose and serve the workers. In the evolution of Industrial jurisprudence the judiciary seems to be well aware of the socio-economic requirements of the industrial society, It is also conscious of the requirements of the society. It has tried to maintain # proper balance between the indusirial requirements and the social good, ‘The judiciary has also appreciated the functional role of law, in Industrial jurisprudence, by reconciling the right to form trade unions, with that of industrial and social peace. It has appreciated the growth of trade unionism as a corollary of industrialisation. It has also accepted the emerging concept of collective bargaining in Industrial jurisprudence, Chief Justice Ramaswamy of the Patna High Court upheld the action of trade union as immune under Section 18 of the Trade Union Act, 1926, where the trade union resorted to strike in furtherance of its genuine demands."? The judiciary has recognised the right to form, tirade unions and continue them, as fundamental right! but in order to- maintain proper peace and comity in society, it has negatived the contention that the right Lo form association includes a right to collectivbargaining on right to strike." The concept of "gherao’ is the recent one to join industrial jurisprudence. The judiciary has attempted to bring the concept of free legal aid to the poor in Industrial jurisprudence. Workers participation in management is also a dynamic step in the evolution of Industrial jurispradence. ‘As we are naturally concerned with the development of our Industrial Jurisprudence by various methods, il is submitted here that the evolution of more appreciable Industrial jurisprudence would depend on the degree of co-operation between the employer-cmployces and the Government. Finally, in order to develop a new Industrial jurisprudence, the trade unions also need to exercise more and more resiraints. X. RECENT DEVELOPMENTS “Industrial Law’, which is also known by mames ‘labour law', ‘the law of employment’ or ‘the law of master and servant’, is a term now fairly widely used. Though the term has gained currency lately, the institution of industrial law is as old as industry. Its policy is to protect the poor against the rich, the weak against the strong, the undet-privileged against the privileged and have-nots against the haves, its liberality in conferring upon tribunals very wide powers to decide disputes according to the principles of law, equity, justice and good conscience, to ‘disregard labour"s contractual obligations owing to the presumed economic inequality of labour vis-a-vis the emplayer’’."° Again the body of industrial law in force at any given time consists mainly of the following five components. They are : (i) Industrial Legislation, (ii) Industrial agreements, (iii) Industrial Case law, (iv) Industrial Customs, and (v) Industriel justice. Recently, the evolution of labour retations law reocived an impetus in @ case! in whieh the Supreme Court of India has heralded a new eta by adding a new dimension to the Industrial Jurisprudence, This judgment is a testimony to the fact that the labour—even in the present impoverished condition has the potential of carrying on the industry provided other institutions including the government are ready to lend @ helping hand. This new approach clearly shows that the indusiry is no longer the exclusive preserve of a few who might have higher stake in operating it for the well-being of all. It ean no longer be taken for granted that the workers could be relegated into a dormant condition by the artifice of the employers and be deprived of their livelihood and hence the life as wellXI. CONCLUSIONS AND SUGGESTIONS ‘On having noticed, referred and distinguished the cntire spectrum of principles and case law on the subject under discussion, it can be safely concluded that heavens will have to move to properly define what is Industrial jurisprudence, According 1 Pound,"” “ Jurisprudence’ has developed a functional altitude asking not merely what law is and how it has come to be, bul ‘what (in all its senses) it does, how it does it, and how it may be made to do it better. It takes up from different standpoints the problems of values, of criterion of measuring or weighing interests or claims or exceptions ns one lying bebind the whole process of recognising, delimiting and securing interests, af making or finding and shaping precepis, and/or interpreting and applying them when made or found, ‘The government of India is constitutionally committed to secure justice, social, economic and political to sil its citizens. It has obligations under Directive Principles of State Policy to direct its policy towards securing adequate means of livelihood to all citizens, proper distribution of the material resourees of community for the commen good, prevention of concentration of wealth to the common detriment and so on, it may be achieved only if the industrial production is increased and smooth functioning of the industry is maintained. It is, therefore, highly desirable that state should intervene in industrial matters in cases of bitter differences between ihe employer and employees. ‘The constitutional norms laid down for the evolution of Industrial jurisprudence have been very much appreciated and applied by both the legislature and the judiciary. The evolution of Industrial jurisprudence in India has been the effect of continuous and appreciable co-operation of the legislative and judicial organs of the government. Side by side they should try to evolve the principle of “tone trade union in one industry’* and educaie the trade union members properly, so may they be aware not of their own interest, but the welfare of sociely and interest of national economy too. Here the trade unicn should also help in the evolution of healthy Industrial jurisprudence. It is submitted in this place that compulsory recognition of registered trade unions by the employers; in-corporation and enforcement provisions dealing with unfair labour practice and victimisation ctc. should be conceded by government in order to develop Industrial jurisprudence suitable to the eventualities of the time.Indian ‘Industrial jurisprudence, li industrial development, is the product of post-independence era and has to be studied and appreciated in the wider national context. The urge to develop a truely indigenous and non-violent cult is as much a part of industrial culture as it is the national character. Taking lessons from history and aspirations of the people, the leadership fixed objectives to be achieved in the context of national needs. The Industrial jurisprudence seems to have discarded the capitalist's exploitation of the mass as well as the “dictatorship of the proletariate’* and seems to be marching ahead towards a ‘Socialist Republic’*," with the help of the “rule of law’ in atypical Indian style, which is more Gandhian than anything else. Lastly, some of the Acts in the sphere of labour legislations should be made more potent, the teeth and the claws which ate already blunt on account of genital defects and non-user should be made to undergo therapeutic exercises and surgical operations so thal the lost vitality may be resorted. This is very much important for the proper development of Industrial jurisprudence in the 21st century of India,3 MASTER AND SERVANT RELATIONSHIP L INTRODUCTION Industrial Jurisprudence of a country should be well knit with the golden threads of social justice and socio-economic thought. Thus since the Lime of the Industrial Revolution, the law and practice of master and servant relationship—which is the most important aspect of capital and labour relationship have undergone a great evolution. Before the Industrial Revolution labourers were treated as a slaves. Without trying to be too academic it can be defined that a slave is a person who is deprived of all rights and devoid of any legal status. He is n0 better than a chattel and is a piece of property. He can neither possess any property and always in complete subjection to his master. His life depends on the whims of his owner who can engege him in rural industrial or household work, can sell him or dispose him off at his will. Therefore, 2 slave according to the present author can be rightly be defined as a machine with a voice, Later on with the evolution of the industrial society and particularly after the slavery period is over the employer and emplayee were mainly governed by the implied terms of contract and customs and usages of ihe trade, Afterwards duc to the progress of the society it was increasingly realised that employer and employee both are free human being and the only equitable basis is to place the relationship on the basis of contract freely entered into by both sides, Even the implied terms could be modified by the parties by express contract, ‘This was an advancement over the previous position in which the relations were sought to be governed by status and this was more in ‘consonance with the principle of human equality and liberty. ——_—_—Employment involves a contract between the employer and the employee. The contract between the employer and employee regulates a number of important aspects of their future relationship. It will deal with the mature of the job, the pay, and the conduct for which the employer can sack the employee. The whole basis of the relationship is an agreement of work in return for a wage, But the exact terms of the agreement can come from several sources. Again, one of the characteristics of employment is that the employee should be in exclusive employment of the mplayer on terms and conditions agreed between the parties. An agent or contractor can simultaneously work for two masters, but as far as an employee is eoncemed, he has to work for one master during a particular period. It may be that an employee is in whole-time employment at one place and in part-time employment at another place during the periods fixed with both the employers, but within the specified periods he can serve only one employer and cannot do the work of both. The concept of employment involves three ingredients: (a) employer, (b) employee; and (¢) the contrect of employment. The employer is onc who employs, ix, one who engages; and the employee is he who work for another for hire. The employment is the contract of service between the employer and the employee. Where- under the employee agrees to serve the employer subject to his control and supervision. An employer should have the power to select employees as well as terminate their services. ‘This is obvious but oq some occasions an employce may be selected by persons who derive their authority from the employer. Further an employer can also delegate the right to lerminale the services of his employees to some other persons oc authority. To sum up the position of master and servant which boils down on this score is that a master is one who not only prescribes to the workman the end of his work but directs or at any moment may direct the means also, or as it has been put, ‘retains the power of controlling work’, a servant is a person subject to the ‘commend of his master or to the manner in which he should do his ‘work. Further on having noticed referred and distinguished the backgrounds of the enlite spectrum of master and servant relationship in employment at this juncture the author will narrate the test as to how to determine it.I, TEST TO DETERMINE ‘Whether in a given case the relationship of master and servant exists is a question of fact, which musi be determined on a consideration ‘of all material and relevant circumstances having a bearing on that question, In several selection by the employer, coupled with payment by him of remuneration or wages, the right to control the method of work, and a power to suspend or remove from employment are indicative of the relation of master and servant, But co-existence of all these indicia is not predicted in every case to make the relation one of master and servant. In special classes of employment, a contract of service may exist, even in the absence of onc or more these indicia, But ordinarily the right of an employer to control the method of doing the work, and the power of superintendence and control may be treated as strongly indicative of the relation of master and servant, for that relation imports the power not only to direct the doing the same work, but also the power to direct the manner in which the work is to be done, If the employer has the power, prima facie, the relation is that of master and servant.' The criterion to judge whether a person is the servant of the master is whether the alleged servant was under the control of and bound to obey the orders of the alleged master in which way he should do his work. A servant is a person who voluntarily agrees during the period of his service to obey the lawful orders and direction of another in respect of the work to be done by him. A master is the person who is legally entitled to give such orders and to: have them - obeyed. The test is the right to control? A person is said to be a servant where by agreement, express or implied, the places himself under the control of another—the master. A person is under the control of another if he is only as to the work which be shall execuie but also as to the details of the work and the manner of its execution.’ ‘The prima facie test for the determination of the relationship between master and servant is the existence of the right in the master lo supervise and coatrol the work done by the servant not only in the * matter of directing whet work the servant is to do bul also the manner in which he shall do-his work. If a master employs a servant and authorizes him to employ a number of persons.to do a particular job and to guarantee their fidelity and efficiency for a cash consideration, the employees thus appointed by the servant would be, equally with the employer, servants of themaster. The question as to whose employce a particular persons has is to be determined with reference to the facts and circumstances of each individual case. According to Lerd Porier, “‘many factors have a bearing on the result who is paymaster, who-can dismiss, how long the alternative service lasis, what machinery is employed, have all to be kept in mind, The expressions used in any individual case must slways be considered in regard to the subject-matter under discussion but amongst the many tesis suggested. I think thet 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. ‘The principles regarding the test to determine the relationship of master and servant are now well established.* In order to establish that the workmen in a particular case were employed under the management the following four conditions must be satisfied, They are the indicias of the relationship of master and servant. They are as follows. : 1, the master’s power of selection of his servants, 2. the payment of wages or other remuneration, 3. the master’s right to control the method of doing the work, and 4. the master’s right to suspension or dismissal. ‘Whether in a given case the relationship of master and servant exists is a question of fact whieh must be determined on a consideration of all material and relevant circumstances having a beating on that question. In general, selection by the employer coupled with payment by him of regulation of wages, the right to control the method of work, and a power to suspend or remove from employment are indicative of the relation of master and scrvant, bul co-existence of all these indicia is not predicted in every case to make the relation one of master and servam. In special classes of employment, 8 contract of service may exist, even in the absence of one or more of these indicia. But ordinarily the right of an employer to control may be treated as sirongly indicative of the relation of master and servant for that relation imports the power to direct the manner in which the work is 10 be done. If the employer has the power prima facie the relation is that of master and servant.’ In order to constitute the relationship of masier and servant il is not necessary that there should be a payment of‘salary--for commission will do—nor that the rent, — for it may be only occasional or ina single instance—if, at the lime, the person is engaged a8 a servant.® II. PRINCIPAL AND AGENT A principal has the right to direct what work the agent has to do; bul a master has the further right to direct how the work is to be done. An ‘agent’ has to be distinguished on the one hand from a servam and on the other from an independent contractor, A servant acis under the direct control and supervision of his master. An agent though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the direct control or supervision cof the principal.® A Principal Employer must be exercising both supervision and ‘control over the establishment. Such a person may be an owner, a lessee or even a licensee, but he must have a right to supervise and ‘control the establishment. If the workers emplayed by 2 contractor do not perform any work which can be said to be part of the work of the establishment of the person awarding the contract, such person who awards the contract cannot be considered to a ‘Principal Employer’. ¥. CONTRACT OF SERVICE AND CONTRACT FOR SERVICE Whether a person is an employee or not is a question of fact.!* A contract may be in respect of either piece-work or time-work, but it does not follow from the fact that it must be a contract of employment. ‘There is in law a well established distinction between a contract for service and a contract of service. In the ane case the master can order ‘of require what is to be done. While in the other case be cannot only order or require what is to be done but how it shall be done. The real test for deciding whether the contract is one of employment is to find whether the agreement is for the personal labour of the person engaged, and if that is so, the contract is one of employment whether the work is time-work or piece-work or whether the employce did the whole of the work himself or whether he obtained the assistance of other personsTo distinguish between an independent contractor and a servant the lest is whether the employer retained the power of controlling the work.'' A contract of service does import that there exist in the person serving under the contract an obligation to obey the order of person served.'* In the concluding part of this article the present author wish to highlights the duties of the employee, employer and trade unions because very often an employee is asked to sign a statement, He should only do this if he fully understands and accepts the contract. {a) Duties of the Employee An employee has ccnain general obligations towards his employer. ‘They are as follows : (i) He must give loyal and faithful service. This means not competing with his employer ‘on the side’, (ij) He must ‘obey all lawful and reasonable order from his employer. If ihe employce refuses this will be @ breach of his contract. (iii) He must carry out the job personally, The employee cannot arrange for someone else 10 do the job because the employer has contracted for the employee himself io do the work, and (iv) He must obey all lawful and reasonable order from his employer. If the employee refuses this will be a breach of his contract. (b) Duties of the Employer ‘The employer also has general responsibilities towards his employees. They sre as follows : (I) He must allow the employee to work normally where he is being paid by commission or is in piece rales, (ii) He must pay the agreed wages. This can be a weekly or monthly wage or salary, can be paid on a commission basis or by “piece-rates”, whereby the employee gets paid according to the number of units of production he completes, (ii) He must ensure that employees are safe at work, and (iv) He must indemnify employees. This means to reimburse an employee who has incurred expense on behalf of his employer. (©) Duties of Trade Unions All trade unions have certain aims in common. These are as follows: G@) Ensuring job security for their members, (i) Negotiating maximum wages and better working conditions for their members,(ii) Providing legal advice and services 10 their members, e.2., Fepresenting members at industrial tribunals, (iv) Ensuring that their members get all the benefits to which they are entitled, and (¥) Participating in public bodies. ores AND REFERENCES State of LLP.» Andh Narain Singhy 1968(2) FLR 283: AIR, 1965 5.0. 360. Goolbai v. Pisionji, AIR 1935 Bombay 333; Sohan Sahu « S.J. Raza, 1957 BLIR ‘259: TLR 26 Pat. 542, Janandan Bhowaaiji ». DUC. Amrawati, AIR 1957 Bom. 238, sl dav Sharma v. Punjab National Bank Lid, 1955 [LLJ 688. S.C, Chiatamaat Rao », Sinic of MP. 1958 2 LLI 252 S.C. Nanking Restaurant v Employees, 1958 | LLI 173(1T) : Katheb E, Hagee Abdul Samad Sabed & Co v. 1T, 1963 1 LJ 504 Madims High Cour; Ram Krishna Ramesh Bidi Factory, Kamil v, Saiall Cause Court, 1963 11 LL 247, Bombay High Court, Chandra Ball « Tata Tron & Steel Co. Led. 1965 Tl LILI 214 Patma High Court ‘State of U.P.», Audh Marsia Singh, AIR 1965 S.C Pyo Gyi, 1919, AIR LB 66, 41955 $C) 393 : AIR 1954 S.C. 34. 360 ; 1964 7 SCR 89, . AIR 1935 Bombay 333, Sadler v. Hemlock, 4 E ke B 570, Scmmons v. Health Laundry Co., 1¥10 | KB S43,