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PETITIONER: DHARANGADHARA CHEMICAL WORKS LTD.

       Vs.

RESPONDENT: STATE OF SAURASHTRA.

DATE OF JUDGMENT: 23/11/1956

BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. AIYYAR, T.L. VENKATARAMA DAS, S.K. MENON, P. GOVINDA

CITATION:  1957 AIR  264            1957 SCR  152

ACT: Industrial   Dispute-Workman-Independent    contractor-Test- Distinction-Agarias,  if workmen-Finding by  the  Industrial Tribunal,  if a question of fact-Such finding, if  and  when can be set aside--Industrial Disputes Act (XIV Of 1947),  S. 2(s)-Constitution of India, Art. 226.

HEADNOTE: The  appellants  were  lessees holding  a  license  for  the manufacture  of  salt on the demised lands.   The  salt  was manufactured  by a class of professional labourers known  as agarias from rain water that got mixed up with saline matter in the soil.  The work was seasonal in nature and  commenced in  October  after  the  rains  and  continued  till   June. Thereafter  the  agarias  left for their  own  villages  for cultivation work.  The demised lands were divided into plots called Pattas and allotted to the a-arias with a sum of  Rs. 400/-   for  each  Patta  to  meet  the  initial   expenses. Generally  the same patta was allotted to the  same  aigaria every  year  and if a patta was extensive in  area,  it  was allotted  to two agarias working in partnership.  After  the manufacture  of salt the agayias were paid at the rate Of  5 as.  6  pies  per  maund.  At the end  of  each  season  the accounts  were settled and the agarias paid the balance  due to them. The agarias who worked themselves with the  members of their families were free to engage extra labour on  their own account and the appellants had no concern therewith.  No hours  of work were prescribed, no muster rolls  maintained, nor were working hours controlled by the appellants.   There were  no rules as regards leave or holidays and the  agarias were free to go out of the factory after making arrangements for the manufacture of salt.  The question for decision  was whether  in such circumstances the agarias could be held  to be workmen as defined by S. 2(s) Of the Industrial  Disputes Act of 1947, as found by the Industrial Tribunal and  agreed with by the High Court or they were independent  contractors and  the reference for adjudication made by  the  Government competent under s. 10 of the Act. Held,  that the finding of the Industrial Tribunal that  the agarias  were workmen within the meaning of S. 2(S)  of  the

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Industrial  Disputes  Act  of  1947  was  correct  and   the reference was competent. The real test whether a person was a workman was whether  he had  been  employed by the employer and  a  relationship  of employer  and  employee  or  master  and  servant  subsisted between  them and it was well settled that the  prima  facie test of such 153 relationship was the existence of the right in the  employer not  merely to direct what work was to be done but  also  to control the manner in which it was to be done, the nature or extent  of such control varying in different industries  and being  by its nature incapable of being  precisely  defined. The  correct approach, therefore, was to  consider  whether, having  regard  to  the nature of the work,  there  was  due control and supervision of the employer. Mersey Docks and Harbour Board v. Coggins & Griffith (Liver- Pool)  Ltd.,  and Another [1947] 1 A.C. 1,  and  Simmons  v. Heath Laundry Company [1921] 1 K.B. 543, referred to. The  question whether the relation between the  parties  was one  as  between  an employer and  employee  or  master  and servant was a pure question of fact and where the Industrial Tribunal having jurisdiction to decide that question came to a finding, such finding of fact was not open to question  in a  proceeding under Art. 226 of the Constitution  unless  it could be shown to be wholly unwarranted by the evidence. Ebrahim  Aboobakar v. Custodian General of Evacuee  Property [1952] S.C.R. 696, referred to. Performing  Right, Society Ltd. etc. v. Mitchell and  Booker (Plaise De Danse) [1924] i K.B. 762, not followed. A  person could be a workman even though he  did  piece-work and was paid not per day but by the job or employed his  own labour and paid for it. Sadler  v. Henlock (1855) 119 E.R. 209 and Blake  v.  Thirst (1863) 32 L.J. (Exchequer) 188, referred to. The  broad distinction between a workman and an  independent contractor  was  that  while the former would  be  bound  by agreement  to work personally and would so work  the  latter was  to  get the work done by others.  A workman  would  not cease  to  be so even though lie got other persons  to  work with him and paid and controlled them. Grainger  v. Aynsley : Bromley v. Tams (1881) 6 Q.B.D.  182, Weaver  v.  Floyd (1825) 21 L.H., Q.B. 151  and  Whitely  v. Armitage (1864) 16 W.R. 144, referred to. As  in the instant case the agayias, who  were  professional labourers  and personally worked with the members  of  their families in manufacturing the salt, were workmen within  the meaning  of the Act, the fact that they were free to  engage others  to assist them and paid for them, could  not  affect their status as workmen.

JUDGMENT: CIVIL APPELLATE JURISDICTION: CiVil Appeal No. 85 of 1956. 20 154 Appeal from the judgment and order dated January 8, 1954, of the  High  Court of Saurashtra, at Rajkot,  in  Civil  Misc. Application No. 70 of 1952. R. J. Kolah and A. C. Dave, for the appellant. Porus A. Mehta and R. H. Dhebar, for respondent No. 1. 1956.   November  23.   The  Judgment  of  the  Court   was, delivered by BHAGWATI  J.-This  appeal  with  a  certificate  of  fitness

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granted   by  the  High  Court  of  Saurashtra   raises   an interesting question whether the agarias working in the Salt Works  at Kuda in the Rann of Cutch are workmen  within  the meaning  of the term as defined in the  Industrial  Disputes Act, 1947, hereinafter referred to as the Act. The  facts  as found by the Industrial Tribunal are  not  in dispute  and are as follows.  The appellants are lessees  of the Salt Works from the erstwhile State of Dharangadhara and also hold a licence for the manufacture of salt on the land. The appellants require salt -for the manufacture of  certain chemicals  and  part of the salt manufactured  at  the  Salt Works  is  utilised by the appellants in  the  manufacturing process  in  the  Chemical Works at  Dharangadhara  and  the remaining salt is sold to outsiders.  The appellants  employ a Salt Superintendent who is in charge of the Salt Works and generally  supervises the Works and the manufacture of  salt carried on there.  The appellants maintain a a railway  line and  sidings  and  also have  arrangements  for  storage  of drinking water.  They also maintain a grocery shop near  the Salt Works where the agarias can purchase their requirements on credit. The  salt is manufactured not from sea water but  from  rain water  which  soaking down the surface  becomes  impregnated with   saline  matter.   The  operations  are  seasonal   in character  and commence sometime in October at the close  of the  monsoon.   Then the entire area is  parceled  out  into plots  called  pattas  and they are in  four  parallel  rows intersected by the railway 155 lines.   Each agaria is allotted a patta and in general  the same  patta is allotted to the same agaria year after  year. If the patta is extensive it is allotted to two agarias  who work  the  same  in  partnership.   At  the  time  of   such allotment, the appellants pay a sum of Rs. 400/- for each of the  pattas and that is to meet the initial expenses.   Then the  agarias commence their work.  They level the lands  and enclose  and  sink wells in them.  Then the density  of  the water in the wells is examined by the Salt Superintendent of the appellants and then the brine is brought to the  surface and  collected in the reservoirs called condensers  and  re- tained  therein  until  it acquires  by  natural  process  a certain  amount  of  density.  Then it is  flowed  into  the pattas  and  kept  there until  it  gets  transformed  ’into crystals.   The pans have got to be prepared by the  agarias according  to certain standards and they are tested  by  the Salt  Superintendent.  When salt crystals begin to  form  in the  pans they are again tested by the  Salt  Superintendent and  only when they are of a particular quality the work  of collecting  salt  is  allowed to be  commenced.   After  the crystals  are  collected, they are loaded into  the  railway wagons  and transported to the depots where salt is  stored. The  salt is again tested there and if it is found to be  of the  right  quality, the agarias are paid therefore  at  the rate of Rs. 0-5-6 per maund.  Salt which is rejected belongs to  the appellants and the agarias cannot either remove  the salt  manufactured by them or sell it.  The account is  made up  at  the end of the season when the advances  which  have been paid to them from time to time as also the amounts  due from the agarias to the grocery shop are taken into account. On a final settlement of the accounts, the amount due by the appellants to the agarias is ascertained and such balance is paid  by the appellants to the agarias.   The  manufacturing season  comes to an end in June when the monsoon begins  and then  the  agarias  return to their  villages  and  take  up agricultural work.

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The  agarias  work  themselves with their  families  on  the pattas  allotted  to them.  They are free  to  engage  extra labour but it is they who make the payments to 156 these  labourers and the appellants have nothing to do  with the same.  The appellants do not prescribe any hours of work for these agarias.  No muster roll is maintained by them nor do  they  control how many hours in a day and for  how  many days in a month the agarias should work.  There are no rules as  regards leave or holidays.  They are free to go  out  of the  works  as  they like provided  they  make  satisfactory arrangements for the manufacture of salt. In  about 1950, disputes arose between the agarias  and  the appellants  as  to the conditions under  which  the  agarias should  be engaged by the appellants in the  manufacture  of salt.   The  Government  of Saurashtra,  by  its  letter  of Reference dated November 5, 1951, referred the disputes  for adjudication  to the Industrial Tribunal, Saurashtra  State, Rajkot.   The  appellants contested the proceedings  on  the ground, inter alia, that the status of the agarias was  that of  independent contractors and not of workmen and that  the State  was  not  competent  to  refer  their  disputes   for adjudication under s. 10 of the Act. This  question was tried as a preliminary issue and  by  its order  dated  August 30, 1952, the Tribunal  held  that  the agarias were workmen within the meaning of the Act and  that the  reference was intra vires and adjourned the matter  for hearing  on the merits.  Against this order  the  appellants preferred an appeal being Appeal No. 302 of 1952, before the Labour  Appellate Tribunal of India, and having  failed-  to obtain  stay  of further proceedings before  the  Industrial Tribunal  pending the appeal, they moved the High  Court  of Saurashtra in M.P. No. 70 of 1952 under Arts. 226 and 227 of the  Constitution  for  an appropriate  writ  to  quash  the reference dated November 5, 1951, on the ground that it  was without  jurisdiction.   Pending the disposal of  this  writ petition,   the   appellants  obtained   stay   of   further proceedings  before the Industrial Tribunal and in  view  of the  same the Labour Appellate Tribunal passed an  order  on September  27,  1953,  dismissing  the  appeal  leaving  the question  raised therein to the decision of the High  Court. By their judgment dated January 8, 1954, the learned Judges 157 of the High Court agreed with the decision of the Industrial Tribunal  that the agarias were workmen within s.  2(.s)  of the  Act  and, accordingly, dismissed  the  application  for writ.   They,  however,  granted a  certificate  under  Art. 133(1)  (c) of the Constitution and that is how  the  appeal comes before us. The  sole point for determination in this appeal is  whether the  agarias working in the Salt Works of the appellants  at Kuda  are workmen within the definition of that term  in  s. 2(s) of the Act. " Workman " has been thus defined in s. 2 (s) of the Act:- "(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).  " The  essential condition of a person being a workman  within the  terms of this definition is that he should be  employed to  do the work in that industry, that there should  be,  in

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other  words, an employment of his by the employer and  that there  should be the relationship between the  employer  and him as between employer and employee or master and  servant. Unless a person is thus employed there can be no question of his  being  a workman within the definition of the  term  as contained in the Act. The  principles  according  to  which  the  relationship  as between employer and employee or master and servant has  got to  be  determined  are well settled.   The  test  which  is uniformly applied in order to determine the relationship  is the existence of a right of control in respect of the manner in  which  the work is to be done.  A  distinction  is  also drawn  between  a contract for services and  a  contract  of service  and that distinction is put in this way: "  In  the one case the master can order or require what is to be  done while  in  the other case he can not only order  or  require what is to be done 158 but  how  itself  it ,;hall be done." (Per  Hilbery,  J.  in Collins v. Hertfordshire County Council (1).) The  test is, however, not accepted as universally  correct. The following observations of Denning L.J., at pp. 110,  III in  Stevenson,  Jordan and Harrison Ltd.  v.  Macdonald  and Evans (2) are apposite in this context: "But  in  Cassidy  v. Ministry of Health  (3)  Lord  Justice Somervell, pointed out that test is not universally correct. There are many contracts of service where the master  cannot control the manner in which the work is to be done as in the case  of a captain of a ship.  Lord Justice Somervell,  went on to say: One perhaps cannot get much beyond this: ’Was the contract  a contract of service within the meaning which  an ordinary man would give under the words’? "  I respectfully agree.  As my Lord has said, it is  almost impossible to give a precise definition of the  distinction. It is often easy to recognize a contract of service when you see it, but difficult to say wherein the difference lies.  A ship’s master, a chauffeur, and a reporter on the staff of a newspaper are all employed under a contract of service;  but a ship’s pilot, a taxi man, and a newspaper contributor  are employed  under a contract for services.  One feature  which seems to run through the instances is that, under a contract of  service, a man is employed as part of the business,  and his  work  is  done as an integral  part  of  the  business; whereas., under a contract for services, his work,  although done for the business, is not integrated into it but is only accessory to it." We  may also refer to a pronouncement of the House of  Lords in  Short  v.  J.  &  W.  Henderson,  Ltd.  (4)  where  Lord Thankerton  recapitulated the four indicia of a contract  of service  which  had been referred to in the  judgment  under appeal,  viz.,  (a) the master’s power of selection  of  his servant, (b) the payment of wages or (1)  [1947] K.B. 598, 615. (2)  [1952] T.L.R. 101, Ill. (3)  [1951] 1 T.L.R. 539, 543 s.c. [1951] 2 K.B. 343, 352-3. (4)(1946)62T.L.R. 427,429. 159 other  remuneration, (c) the master’s right to  control  the method  of  doing the work, and (d) the  master’s  right  of suspension or dismissal, but observed: - "Modern  industrial  conditions have so  much  affected  the freedom  of  the  master  in cases in  which  no  one  could reasonably  suggest that the employee was thereby  converted into  an  independent  contractor  that,  if  and  when   an appropriate  occasion arises, it will be incumbent  on  this

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House  to  reconsider  and to restate  these  indicia.   For example,  (a),  (b)  and  (d) and  probably  also  (c),  are affected  by  the  statutory  provisions  and  ,rules  which restrict the master’,% choice to men supplied by the  labour bureaux,  or  directed  to  him  under  the  Essential  Work provisions,  and  his power of suspension or  dismissal.  is similarly  affected.   These matters are  also  affected  by trade  union rules which are atleast primarily made for  the protection of wage-earners." Even  in that case, the House of Lords considered the  right of supervision and control retained by the employers as, the only  method  if occasion arose of securing the  proper  and efficient   discharge   of   the   cargo   as   sufficiently determinative  of the relationship between the  parties  and affirmed  that " the principal requirement of a contract  of service  is the right of master in some reasonable sense  to control  the  method of doing the work and  this  factor  of superintendence  and control has frequently been treated  as critical and decisive of the legal quality of relationship. The position in law is thus summarised in Halsburv’s Laws of England, Hailsham edition, Vol. 22, page 112, para. 191:- " 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.": and until the position is restated as contemplated in  Short v.  J. & W. Henderson Ltd., (supra), we may take it  as  the prima  facie test for determining the  relationship  between master and servant, 160 The  principle which emerges from these authorities is  that the   prima  facie  test  for  the  determination   of   the relationship between master and servant is the existence  of the  right in the master to supervise and control  the  work done by the servant not only in the matter of directing what work  the servant is to do but also the manner in  which  he shall do his work, or to borrow the words of Lord Uthwatt at page  23  in  Mersey Docks and Harbour Board  v.  Coggins  & Griffith  (Liverpool)  Ltd., and Another (1), "  The  proper test  is whether or not the hirer had authority  to  control the manner of execution of the act in question The  nature  or  extent of control  which  is  requisite  to establish  the  relationship of employer and  employee  must necessarily  vary  from business to business and is  by  its very  nature incapable of precise definition.  As  has  been noted above, recent pronouncements of the Court of Appeal in England  have  even  expressed  the  view  that  it  is  not necessary for holding that a person is an employee, that the employer should be proved to have exercised control over his work,  that  the test of control was not  one  of  universal application and that there were many contracts in which  the master  could not control the manner in which the  work  was done  (Vide observations of Somervell, L.J., in  Cassidy  v. Ministry of Health (supra), and Denning, L.J., in Stevenson, Jordan and Harrison Ltd. v. MacDonald and Evans (supra).) The  correct  method  of approach, therefore,  would  be  to consider  whether  having regard to the nature of  the  work there was due control and supervision by the employer or  to use  the  words of Fletcher Moulton, L.J., at  page  549  in Simmons v. Health Laundry Company (2):- "  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

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person rendering the services by the person contracting  for them the stronger the (1) [1947] 1 A.C. 1. 23.   (2) [1910] 1 K.B- 543, 54 550. 9 161 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 Industrial Tribunal on a consideration of thes facts  in the  light of the principles enunciated above, came  to  the conclusion that though certain features which are usually to be found in a contract of service were absent, that was  due to  the  nature of the industry and that on  the  whole  the status   of  the  agarias  was  that  of  workmen  and   not independent  contractors.   It was under  the  circumstances strenuously urged before ,us by the learned counsel for  the respondents  that the question as regards  the  relationship between  the appellants and the agarias was a pure  question of  fact, that the Industrial Tribunal had  jurisdiction  to decide  that question and had come to its own conclusion  in regard   thereto,  that  the  High  Court,  exercising   its jurisdiction  under Arts. 226 and 227 of  the  Constitution, was not competent to set aside the finding of fact  recorded by  the Industrial Tribunal and that we, here,  entertaining an  appeal from the decision of the High Court, should  also not interfere with that finding of fact. Reliance  was placed on the observations of Mahajan, J.,  as he  then was, in Ebrahim Aboobakar v. Custodian  General  of Evacuee Property (1) "It is plain that such a writ cannot be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong.  Indeed, it must be shown before such a writ is issued that the authority which passed the ’order acted without jurisdiction or in excess of it  or in violation of the principles of natural justice......  But once  it is held that the court has jurisdiction  but  while exercising  it made a mistake, the wronged. party  can  only take the course prescribed by law for setting matters  right inasmuch  as a court has jurisdiction to decide  rightly  as well as wrongly.  " (1)  [1952] S.C.R. 696,702. 21 162 There  is  considerable  force in  this  contention  of  the respondents.  The question whether the relationship  between the  parties  is  one as between employer  and  employee  or between  master  and  servant is a pure  question  of  fact. Learned  counsel for the appellants "relied upon  a  passage from  Batt’s  "Law of Master and Servant", 4th  edition,  at page 10:- "  The line between an independent contractor and a  servant is often a very fine one; it is a mixed question of fact and law,  and the judge has to find and select the  facts  which govern  the  true  relation between the parties  as  to  the control  of  the work, and then he or the jury  has  to  say whether the person employed is a servant or a contractor.  " This statement, however, rests upon a passing observation of Mc  Cardie, J. in Performing Right Society Ltd. v.  Mitchell and  Booker  (Palais  de Danse)(1) and is  contrary  to  the oaten& of authorities which lays down that whether or not in any given case the relation of master and servant exists  is purely  one  of fact. (Vide Halsbury’s  "Laws  of  England", Hailsham edition, Vol. 22, page 112, para. 191; Per  Cozens-

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Hardy,  M.R. at page 547 and Per Fletcher Moulton,  L.J.  at page 549 in Simmons v. Heath Laundry Company (supra).  It is equally well settled that the decision of the Tribunal on  a question  of fact which it has jurisdiction to determine  is not liable to be questioned in proceedings under Art. 226 of the Constitution unless at the least it is shown to be fully unsupported by evidence. Now  the  argument of Mr. Kolah for the appellants  is  that even  if  all the facts found by the Tribunal  are  accepted they  only  lead  to the conclusion  that  the  agarias  are independent  contractors  and that the  finding,  therefore, that  they  are  workmen is liable to be set  aside  on  the ground  that there is no evidence to support it.  We  shall, therefore,  proceed  to determine the  correctness  of  this contention. Apart from the facts narrated above in regard to which there is   no  dispute,  there  was  the  evidence  of  the   Salt Superintendent  of the appellants which was recorded  before the Tribunal:- (1)  [1924] 1 K.B. 762. 163 "The  panholders are allotted work on the salt pans by  oral agreement.   The Company has no control over the  panholders in  regard  to  the  hours of work or  days  of  work.   The Company’s permission is nor sought in matter of sickness  or in matter of going out to some village.  The Company has  no control  over the panholders as to how many  labourers  they should  engage  and what wages they should  pay  them.   The company’s  supervision  over the work of the  panholders  is limited  to  the proper quality as per requirements  of  the Company and as per standard determined by the Government  in matter  of salt. , The company’s supervision is  limited  to this extent. The  Company  acts in accordance with Clause 6 of  the  said agreement in order to get the proper quality of salt.  Panholders  are  not the workmen of the  Company,  but  are contractors.   The men, who are entrusted with pattas,  work themselves.  They can engage others to help them and so they do.   There is upto this day no instance that any  penholder who is entrusted with a patta, has not turned up to work  on it.  But we do not mind whether he himself works or not. If  any penholder after registering his name (for  a  patta) gets work done by others, we allow it to be done. We own 319 pattas.  Some patta8 have two partners.  In some, one  man  does  the  job.   ID  all  the  pans,  mainly  the panholders   work  with  the  help  of  their   (respective) families.  " Clause  6 of the agreement referred to in the course of  his evidence by the Salt Superintendent provided:- "   6.  We  bind  ourselves  to  work  as  per  advice   and instructions of the officers appointed by them in connection with  the  drawing  of brine or with  the  process  of  salt production  in  the  pattas and if  there  is  any  default, negligence or slackness in executing it on our part or if we do  not  behave well in any way, the Managing Agent  of  the said   Company  can  annul  this  agreement  and  can   take possession  of the patta, brine, well etc., and as a  result we will not be entitled to claim any 164 sort of consideration or compensation for any half processed salt  lying  in  our patta; or in  respect  of  any  expense incurred  or labour employed in preparing kiwa  patta,  well bamboo lining etc.  " There  was also the evidence of Shiva Daya, an  agaria,  who was examined on behalf of the respondents:-

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"  There  is work of making enclosures and then  of  sinking wells.   The company supervises this work.  While the  wells are  being  sunk, the company measures the  density  of  the brine of wells.  In order to bring the brine of wells to the proper  density,  it  is put in a  condenser  and  then  the Company tests this and then this brine is allowed to flow in the pattas...... The  bottom  of  a patta is prepared after  it  is  properly crushed under feet and after the company inspects and  okays that it is alright, water is allowed to flow into it.   When salt begins to form at the bottom of a patta, an officer  of the company comes and inspects it.  At the end of 21 months, the  water  becomes saturated, i.e., useless, and so  it  is drained  away  under the supervision of the  company.   Then fresh  brine  is  allowed to flow into the  patta  from  the condenser.  This instruction is also given by the  company’s officer." It  was  on  a  consideration  of  this  evidence  that  the Industrial   Tribunal  came  to  the  conclusion  that   the supervision and control exercised by the appellants extended to all stages of the manufacture from beginning to end.   We are  of  opinion that far from there being  no  evidence  to support  the conclusion reached by the  Industrial  Tribunal there were materials on the record on the basis of which  it could  come  to  the conclusion that  the  agarias  are  not independent  contractors but workmen within the  meaning  of the Act. Learned counsel for the appellants laid particular stress on two  features  in this case which, in his  submission,  were consistent  only  with  the position that  the  agarias  are independent contractors.  One is that they do piece-work and the other that they employ their own labour and pay for  it. In  our  opinion  neither  of  these  two  circumstances  is decisive of the question.  As 165 regards  the first, the argument of the appellants  is  that as,  the agaria8 are under no obligation to work  for  fixed hours or days and are to be paid wages not per day or  hours but  for the quantity of salt actually produced and  passed, at a certain rate,, the very basis on which the relationship of  employer and employees rests is lacking, and  that  they can only be regarded as independent contractors.  There  is, however, abundant authority in England that a person can  be a workman even though he is paid not per day but by the job. The following observations of Crompton, J. in Sadler v.   Henlock (1) are pertinent in this behalf :- " The test here is, whether the defendant retained the power of  controlling the work.  No distinction can be drawn  from the circumstances of the man being employed at so much a day or  by the job.  I think that here the relation was that  of master and servant, not of contractor and contractee." (See  also  Blake, v. Thirst (2) and Halsbury’s  "  Laws  of England  ", Hailsham edition, Vol. 22, page 119, para.  194, wherein it is stated that if a person is a worker and not  a contractor, " it makes no difference that his work is piece- work ".) As  regards the second feature relied on for the  appellants it  is  contended that the agaria8 are  entitled  to  engage other persons to do the work, that these persons are engaged by  the  agaria8 and are paid by them, that  the  appellants have  no  control  over them and that  these  facts  can  be reconciled  only  with  the position that  the  agaria8  are independent  contractors.  This argument, however,  proceeds on a misapprehension of the true legal position.  The  broad distinction between a workman and an independent  contractor

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lies  in this that while the former agrees himself to  work, the  latter  agrees  to get other persons to  work.   Now  a person  who agrees himself to work and does so work and  is, therefore,  a  workman does not cease to be such  by  reason merely of the fact that he gets other persons to work along (1)  (1855) 4 El. & Bl. 570, 578 ; (1855) 119 E.R. 209, 212. (2)  (1863) 32 L.J. (Exchequer) 188. 166 with  him and that those persons are controlled and paid  by him.   What determines whether a person is a workman  or  an independent  contractor  is whether he has  agreed  to  work personally or not.  If he has, then he is a workman and  the fact  that he takes assistance from other persons would  not affect  his  status.   The position is  thus  summarised  in Halsbury’s ’Laws of England’, Vol. 14, pages 651-652:- "  The  workman  must have consented to  give  his  personal services  and not merely to get the work done, but if he  is bound  under  his  contract to work personally,  he  is  not excluded   from  the  definition,  simply  because  he   has assistance from others, who work under him." (See also Grainger v. Aynsley : Bromley v. Tams (1);  Weaver v. Floyd (2) and Whitely v. Armitage (a).) In the instant case the agarias are professional  labourers. They  themselves personally work along with the  members  of their  families  in  the  production  of  salt  and   would, therefore,  be  workmen.   The fact that they  are  free  to engage  others to assist them and pay for them would  not,in view  of  the  above authorities,  affect  their  status  as workmen. There are no doubt considerable difficulties that may  arise if the agarias were held to be workmen within the meaning of s.  2 (s) of the Act.  Rules regarding hours of  work  etc., applicable to other workmen may not be conveniently  applied to  them and the nature as well as the manner and method  of their  work  would  be such as cannot be  regulated  by  any directions   given  by  the  Industrial   Tribunal.    These difficulties, however, are no deterrent against holding  the agarias  to be workmen within the meaning of the  definition if  they fulfil its requirements.  The  Industrial  Tribunal would  have to very well consider what relief, if  any,  may possibly  be  granted  to  them having  regard  to  all  the circumstances  of the case and may not be able  to  regulate the  work to be done by the aqarias and the remuneration  to be paid to them by the employer in (1)  (1881) 6 Q.B.D. 182. (2)  (1852) 21 L.J., Q.B. 151. (3)  (1864) 16 W.R. 144. 167 the manner it is used to do in the case of other  industries here the conditions of employment and the work to be done by the   employees   is  of  a  different   character.    These considerations  would necessarily have to be borne  in  mind while  the  Industrial  Tribunal is  adjudicating  upon  the disputes  which have been referred to it  for  adjudication. They do not, however, militate against the conclusion  which we  have come to above that the decision of  the  Industrial Tribunal  to the effect that the agarias are workmen  within the definition of the term contained in s. 2 (s) of the  Act was justified on the materials on the record. We  accordingly  see  no ground for  interfering  with  that decision and dismiss this appeal with costs. Appeal dismissed.