I n d .

INDIA

Supreme Court of India

Workmen of Nilgiri Co-op. Mkt. Society Ltd v. State of Tamil Nadu
C. A. No. 1351-53 of 2002

Contract o f service or contract for services� characteristics of

employment relationship � casual employment

HEADNOTES

Facts
This case relates to the question whether the daily wage porters/graders
working at Nilgiri Co-operative Marketing Society's market yard are workmen
of the society or not. The said society is formed by the small and marginal vege-
table and tea farmers to assist them to make their produce available to the mar-
ket and to see that they are not exploited by the vegetable merchants. The
porters and graders are engaged by the member whether producers or merchants
and payment normally made by the persons engaging them. Some times society
makes payment to porters/graders only on the authorization on behalf of that
member. The facts are succinctly stated in the judgment below.

Decision
The decision of the court is that the casual persons working at the market
yard of the Nilgiri Co-operative Marketing Society are not workmen of the so-
ciety as they are engaged by the member merchant/producer and paid by them.
The said porters/graders are neither appointed/engaged by the society nor does
the society exercise any control over them nor make any direct payment to
them.

Law Applied
Industrial Disputes Act, 1947, section 2(s), which reads:
'''workman' means any person (including an apprentice) employed in any
industry to do any manual, unskilled, skilled, technical, operational, clerical or
supervisory work for hire or reward, whether the terms of employment be ex-
press or implied, and for the purposes of any proceeding under this Act in rela-
tion to an industrial dispute, includes any such person who has been dismissed,
discharged or retrenched in connection with, or as a consequence of, that dis-
pute, or whose dismissal, discharge or retrenchment has led to that dispute, but
does not include any such person -
(i) who is subject to the Air Force Act, 1950 (45 of 1950) or the Army
Act, 1950 (46 of 1950) or the Navy Act, 1957, (62 of 1957); or
(ii) who is employed in the police service or as an officer or other em-
ployee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity;
or
(iv) who, being employed in a supervisory capacity, draws wages ex-
ceeding one thousand six hundred rupees per mensem or exercises,
either by the nature of the duties attached to the office or by reason
of the powers vested in him, function mainly of a managerial
nature."

JUDGMENT

Determination of relationship
32. Determination of the vexed questions as to whether a contract is a con-
tract of service or contract for service and whether the concerned employees are
employees of the contractors has never been an easy task. No decision of this
Court has laid down any hard and fast rule nor it is possible to do so. The ques-
tion in each case has to be answered having regard to the facts involved therein.
No single test be it control test, be it organisation or any other test has been held
to be the determinative factor for determining the jural relationship of employer
and employee.
33. There are cases arising on the borderline between what is clearly an em-
ployer-employee relation and what is clearly the independent entrepreneurial
dealing.

Tests
34. This Court beginning from Shivanandan Sharma v. Punjab National
Bank Ltd. (1955) ... and Dharangadhara Chemical Works Ltd. v. State of
Saurashtra and others (1957), observed that supervision and control test is the