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PETITIONER: T. DEVADASAN

       Vs.

RESPONDENT: M/S.  GORDON WOODROFFE & CO. (MADRAS) PRIVATELTD. & ANR.

DATE OF JUDGMENT18/04/1972

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN VAIDYIALINGAM, C.A. MATHEW, KUTTYIL KURIEN

CITATION:  1972 AIR 1479            1973 SCR  (1) 213  1972 SCC  (3) 700

ACT: Workmen’s Compensation Act-S.41(2)-Scope of-Whether the  em- ployee in question was a person employed within the  meaning of the Madras Shops and Establishments Act 1947.

HEADNOTE: The  appellant was appointed by Respondent No. 1,  a  Madras Company,  which  was  the  holding  company  of  another,  a subsidiary, known as the Pallavaram company. After  2  years, the holding company revised  the  terms  of engagement  of the appellant relating to basic salary,  D.A. and  Bonus, all other terms of service remaining  unaltered. The appellant was given training in the Madras Company for 2 months  and later, he was asked to go to Pallavaram  Company and  work  there, which the appellant did.  His  salary  was paid by the Madras Company; but by an agreement between  the two  companies,  his salary was debited  to  the  Pallavaram Company.   The appellant worked till 1966 when his  services were terminated ’by the holding company. The  appellant,  therefore,  filed  an  appeal  before   the Additional  Commissioner  for Workmen’s  Compensation  under S.41(2)  of the Workmen’s Compensation Act.  The  respondent raised the objection by saying that since the appellant  was a  person wholly or principally employed by  the  Pallavaram Company,  the appellant was not a "person  employed"  within the  meaning of the Madras Shops and  Establishments  Act, 1947 and therefore, the provisions of the said Act would not be  applicable to him.  The main Question for  decision  was whether the appellant was an employee of the holding company or of the subsidiary company. Allowing the appeal, HELD  :  On  the facts and circumstances of  the  case,  the Pallavaram  Company  is not the employee of  the  appellant. All relevant facts point to the conclusion that the employer is  the Madras Company.  It was this company that  appointed the  appellant.   The appointment order shows  that  he  was appointed as an Assistant in that Company.  The terms of the order further show that apart from the salary set out there, on  which  he  was appointed, he  was  to  receive  dearness allowances  at the rate of 35 per cent of the basic  salary, or  such other rate as the Board of that company may  decide

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from  time  to  time.   He has to become  a  member  of  the Provident  Fund to which both he and Madras Company have  to subscribe.   Annual bonus was to be calculated in  the  same manner  as the annual bonus payable to other  assistance  of the  company.   His service can only be  terminated  by  the Madras Company and the income-tax deductions were also  made by  the Madras company.  All these facts clearly  show  that the appellant was an employee of the Madras Company and  not Pallavaram Company, where the company directed the appellant to  work and the appellant was under an obligation  to  work wherever the company directs him to work. [220G] 214 The  Salem  Sri  Ramaswami  Bank  Ltd.  v.  The   Additional Commissioner for Workmen’s Compensation, Chepauk, Madras and another,  [1956]  2  M.L.J.  254,  T.  P.  Chandra  v.   The Commissioner for Workmen’s Compensation, Madras and Another, A.I.R.  1957  Vol.  44  p. 668 and T.  Prem  Sagar  v.  The. Standard  Vacuum  Oil Company Madras and  Others,  [1964]  5 S.C.R. 1030, discussed and distinguished.

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos. 1421  and 1422 of 1968. Appeals  by special leave from the order dated  January  18, 1968   of   the  Additional   Commissioner   for   workmen’s compensation,  Madras  in M.S.E. Case No. 131 of  1966,  and from   the  Order  dated  the  9th  January,  1968  of   the Commissioner  of  Labour, Madras in No. C2.  13897  of  1967 respectively. O.   P.  Malhotra,  Sat  Pal  and  Ashok  Grover,  for   the appellant (in both the appeals). M.   Natesan and D. N. Gupta, for respondent No. 1 (in  both the appeals). The Judgment of the Court was delivered by P.   Jaganmohan Reddy, J.-These appeals are by special leave in  which  the  question which falls  for  consideration  is whether  the  appellant  is a  person  employed  within  the meaning  of  section  2(12)  (iii) of  the  Madras  Shops  & Establishments  Act,  1947 (Madras Act No.  XXXVI  of  1947) (hereinafter  called  ’the Act’).  The first  respondent,  a private limited company, (hereinafter termed as ’the holding company’ or the ’Madras company’), having been empowered  by the  Memorandum  of Association,  promoted  another  company known as the Gordon Woodroffe Leather Manufacturing  Company (hereinafter   called   the  subsidiary  company’   or   the "Pallavaram company’) in which it held 80% preference shares and  70%  equity shares.  The holding company was  also  the managing  agent  of  the subsidiary company.   In  1959  the managing  agency of the holding company was  terminated  but nevertheless  in  view of its shareholding it  continued  to control  the  subsidiary company.  The appellant who  was  a Chartered Accountant qualified in London had applied for and was  offered  employment  as an  Assistant  in  the  holding company on the terms and conditions contained in the  letter dated 19-10-1963.  He accepted the employment and the  terms and  was accordingly appointed by the holding  company.   On 28-10-1965  the  holding company, in order to  simplify  the accounting   procedures,  informed  the  appellant  of   its decision  to offer revision of the terms of engagement  with effect  from  1st July, 1965 relating to the  basic  salary, D.A.  and  bonus,  all  other  terms  of  service  remaining unaltered.    The  Appellant  was  asked  to   confirm   his acceptance of these terms which it appears he did.  He was

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215 thereafter  permitted to cross the efficiency bar.   It  may here be mentioned that after his appointment, the  appellant was  given  training in the Madras company  for  two  months after which it is alleged that the Director had asked him to go  to  the Pallavaram company to work  there.   Even  while working  there  his  salary was being  paid  by  the  Madras company  though  it was by an. arrangement between  the  two companies  being  debited to the, Pallavaram  company.   The appellant  continued to work in the Pallavaram company  till 15th  October,  1966  on  which  date,  his  services   were terminated by the holding company.  The appellant  thereupon filed  an  appeal  before the  Additional  Commissioner  for Workman’s Compensation under section 41(2) of the  Workmen’s Compensation  Act.  The 1st respondent, however,  raised  an objection before the Additional Commissioner that the appel- lant was not a person employed within the meaning of the Act and, therefore, the provisions of the said Act would not  be applicable to him.  In view of this objection, was filed  by the.  appellant  under section 51 of the Act  for  declaring that  he is a person employed and some time  thereafter  got his  applications  under  section  41(2)  stayed.   The  his between the parties on the; application under section 51  as well  as. under section 41(2) was whether the appellant  was an  employee  of the holding company or  of  the  subsidiary company.  The appellant claimed that under the terms of  the offer  of  appointment  which was accepted  by  him  he  was required, to work either in the Madras office or the  Palla- varam office or at any other office or place of business  of the  company  and though he. was working in  the  Pallavaram office,  his salary was being paid by the  holding  company, his  bonus  for the year ending 1964 was also paid  by  that company  which  also,  terminated  his  services.   The  1st respondent  averred  that though the petitioner  might  have been  appointed  or dismissed by the Madras company  he  was actually  a person employed in the Pallavaram  company.   It was also admitted that while the salary of the appellant was paid  initially by the Madras company it was recovered  from the Pallavaram company as is evident from the, registers  of account maintained that such recoveries from the  Pallavaram company  was effected, and that for the purposes of the  Act what is relevant is not ’employment by’ but employment  in’. If  so as he was employed in the Pallavaram company  he  was not  a person employed within the definition of the  Act  by the Madras company.  The Commissioner of Labour by his order of   9th  January,  1968  accepted  the   1st   respondent’s contention  and held that the petitioner cannot be  declared to  be a person employed under section 2 (12) (iii)  of  the Act and that even under section 2 ( 12) (ii) of the Act, the petitioner cannot be treated as a person employed  vis-a-vis the Pallavaram Company as admittedly the appellant was not a member  of  the clerical staff employed  in  the  Pallavaram company.  The petition was accordingly dismissed. 216 After  this  appeal  was dismissed the  appeal  filed  under section 41(2) of the Act was disposed of by the,  Additional Commissioner  for  Workmen’s Compensation who held  that  in view of the findings given by the competent authority  under Section  51 of the Act on the question of  applicability  of the  provisions  of that Act to the appellant,  he  had  no, jurisdiction  to  go  into the merits  of  the  appeal.   He accordingly dismissed that appeal also. It may be stated that the appellant’s Special Leave Petition was  filed  against  both the Orders but  in  view  of  the, objection  raised by the office, two S.L.Ps. were filed  and

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this  Court  gave  leave on them.  These  two  appeals  were subsequently consolidated. On behalf of the appellant the following two questions  were urged  for  determination  : (1) whether on  the  facts  and circumstances  of  the case and on a  true  construction  of clause  (iii)  subsection (12) of section 2,  the  appellant being wholly and principally employed in connection with the business of the Madras establishment was a person  employed, (2) whether the jurisdiction of the authority under  section 41  sub-section  (2) is circumscribed by the  provisions  of section  51.   In  our view the second  question  is  purely academic because if the jurisdiction of the authority  under section 41(2) is circumscribed by the provisions of  section 51 the question whether the decision of the Commissioner  of Labour  under  section  51 that the appellant  is  a  person employed  will nevertheless arise for decision and if it  is not  even then that question would fall  for  determination. In  any view we have to ascertain what under the  provisions of  the  Act is meant by a person employed and  whether  the appellant is one such.  If he is a person employed then  the Additional Commissioner of Workmen’s Compensation has to, go into the allegation of the appellant that his services  were not terminated in accordance with the provisions of  section 41 (1 ). A  person employed has been defined under the Act and in  so far  as  it  is relevant for the  purposes  of  the  appeal, section 2(12) (ii) & (iii) alone need be considered.   These are set out as under               "2(12) "person employed" means-               (ii)  in   the  case  of  a  factory   or   an               industrial   undertaking,  a  member  of   the               clerical  staff  employed in such  factory  or               undertaking;               (iii) in    the   case   of    a    commercial               establishment other than a clerical department               of  a factory or an industrial undertaking,  a               person wholly or principally                217               employed  in connection with the  business  of               the establishment, and includes a peon;"’ It is not disputed that the Pallavaram company is a  factory and that the appellant is not a member of the clerical staff in that factory.  In view of this, admission, the  appellant cannot  be  a person employed under clause 2 (12)  (ii)  not because  he is employed in the Pallavaram company  which  is itself a matter that has to be determined, but because he is not a member of the clerical staff employed in that factory. The  appellants  case, therefore, has to be  examined  under clause (iii) of sub-section (12) of section 2. It has to  be noticed that an establishment for the purposes of the clause must be a commercial establishment and even if the  clerical department  of a factory or an industrial undertaking  falls within the definition of commercial establishment, he is not a  person  in  the clerical department of a  factory  or  an industrial  undertaking,  but  is  one  who  is  wholly   or principally employed in connection with the business of  the commercial establishment.  Before we examine the meaning  of these terms, it is also necessary to consider the definition given  in  the Act of the terms  ’commercial  establishment, ’employer  and  ’establishment’  given  respectively   under clauses (3), (5) & (6) of section 2.   These are as follows :-               "(3)   "commercial  establishment"  means   an               establishment  which is not a shop  but  which               carries   on  the  business  of   advertising,

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             commission,  forwarding or commercial  agency,               or which is a clerical department of a factory               or  industrial  undertaking  or  which  is  an               insurance company, joint stock company,  bank,               brokers’ office or exchange and includes  such               other establishment as the (State)  Government               may by notification declare to be a commercial               establishment for the purposes of this Act;               "(5)   "  employer" means a person owning,  or               having   charge   of,  the  business   of   an               establishment and includes the manager,  agent               or   other  person  acting  in   the   general               management or control of an establishment;               (6)   "establishment" means a shop, commercial               establishment,    restaurant,    eating-house,               residential  hotel,  theatre or any  place  of               public amusement or entertainment and includes               such  establishment as the (State)  Government               may  by notification declare to be  an  estab-               lishment for the purposes of this Act;" It  is  evident  that the Madras company  is  a  ’commercial establishment’  in terms of the definition as it is a  joint stock  company,  forwarding  agents  and  carries  on  other activities of a commercial 15-1208Sup CI/72 218 nature.  It may also be mentioned that under that definition the clerical department of the Pallavaram factory is also  a commercial establishment. As  we said earlier, the reason why in clause 12)  (iii)  of the  definition  a  person who is  employed  in  a  clerical department  of  a factory or an industrial  undertaking  has been  excluded  from the definition of a person  is  because without  those  words  of  exception  he  would  have   been included.  As it was the intention of the Act to confine the definition  of  a  person  employed  only  to  a  commercial establishment other than clerical department of a factory or an  industrial undertaking the words of exception had to  be introduced in the definition to reflect that intention.  The crucial  question  for  determining whether a  person  is  a person  employed  is  whether he is  wholly  or  principally employed   in   connection   with  the   business   of   the establishment.   It  would  not be  accurate  to  focus  our attention as was done by the Labour Commissioner only on the question   whether  the  appellant  was  ’employed  in’   or ’employed  by’ because these words employed in without  the further requirement that he should be employed in connection with the business of the establishment would be misleading. The Respondent’s Advocate has referred to the Preamble,  the Statement  of  Objects & Reasons and laid  emphasis  on  the intention of the Act which was to cover only cases of  those persons   who   were  actually  working  in   a   commercial undertaking and not those who were employed in a factory or indust rial  undertaking.   What is sought to  be  impressed upon is that the test to be applied for ascertaining whether a  person  is a person employed is not who employs  him  but where  he  is employed or works.  On this assumption  it  is contended  on behalf of the respondent that it  is  possible for  a  person  to  be employed  by  one  establishment  and assigned  to  work in another establishment  and  what  will determine  whether  the  person  so  assigned  is  a  person employed is whether the place where he works is or is not  a comme rcial  undertaking and if it is not then he is  not  a person employed.  Applying this thesis to the facts of  this case,  it  is submitted that though the Madras  Company  has

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employed the Appellant, it has employed him for working  in Pallavaram, the salary though paid by the Madras company was reimbursed  from  the  Pallavaram  company  and  since   the appellant  on  his own admission worked  in  the  Pallavaram company  ever  since  he was appointed he is  not  a  person employed  because he was wholly or principally  employed  in connection with the business of the Pallavaram company which is a factory registered under the Factories Act.  In support of  this  contention  he has referred us to  The  Salem  Sri Ramaswami  Bank  Ltd. v. The  Additional  Commissioner   for Workmen’s Com- 2 19 sensation, Chepauk, Madras and another(1), T. P. Chandra  v. The  Commissioner  for Workmen’s  Compensation,  Madras  and another(1) and T. Prem Sagar v. The Standard Vacuum Oil Com- pany Madras and Others (3 ). What  was  considered in the first case is not  whether  the person  is a person employed within the meaning  of  section 2(12)  of the Act but whether under section 4(1)  (a)  which provides  that nothing contained in the Act shall  apply  to persons  employed  in  any establishment in  a  position  of management,  the 2nd respondent therein was a person in  the position  of management and if so whether his  appeal  under section 41(2) was incompetent.  It is evident from this case that  the  two,  objections to the  maintainability  of  the appeal  preferred  by the second  respondent  under  section 41(2) of the Act    which  were taken before the  Additional Commissioner were : (1)    that   under   section    4(1)(a) of the Act the second    respondent had been employed in the Bank in a position of management and (2) that the contention of the second respondent that if he could not be  reinstated as  Secretary,  be,  could  be  reinstated  as  Cashier  was untainable  because  by a valid notification issued  by  the Government,  Cashiers had been excluded from the purview  of the  Act.   The Additional Commissioner did not  record  any specific findings on the issue whether the second respondent had  been employed as Cashier and whether he is en-,  titled to prefer the appeal under s. 41(2).  That Court did not  in view  of  the facts of that case consider  it  necessary  to pursue,  the  matter further.  It was only on  the  question whether  the second respondent was occupying a  position  of management,  as  such his appeal could  not  be  entertained under  section 4 ( 1) (a) that was considered  and  decided. The observations of Rajagopalan, J. at page 257 that he  was using  the expression employed only to mean assign the  work of  is  being sought to support the  contention  that  these words  would furnish a test in determining whether a  person is  a  person employed under section 2  (12)  (iii).   These observations have been torn out of the context, because what the learned Judge says immediately thereafter would negative any such con-               "In my opinion it is an assignment of work,  a               valid assignment of the work, by the employer,               that should furnish the real test in  deciding               whether a given employee is a person  employed               in a position of management within the meaning               of section 4 (1 ) (a)." We find that throughout the judgment the question whether  a person was a person employed within the meaning of section 2 1  2)  (iii)  has not been mooted.  In the  second  case  of Chandra (1)1956 Vol-2 L.J. p.254. (3)  [1964](5) S.C.R. 1030. (2) 1957 A.I.R. Vol. 44 p.668. 2 20

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also this question was not considered as is clearly apparent from   the  observations  of  the  learned   Chief   Justice delivering the Judgment of the Bench at page 669 that it was not  contended  before  them that the Appellant  was  not  a person  employed within the meaning of section 2(12) of  the Act. In  the  third  case similarly the decision  of  this  Court turned  on  the question whether the appellant  therein  was employed  in a position of management.  It was held  on  the facts  of that case that he was not a person employed  in  a position  of management and as such did not fall within  the exemption of section 4 ( 1 ) (a) On the other hand what  has been stated by reference to section 2(12) (iii) are  useful. Gajendragadkar, J. as he then was observed at page 1036 :               "The   test  which  has  to  be   applied   in               determining  the  question  as  to  whether  a               person    is   employed   in   a    commercial               establishment  is  whether  he  is  wholly  or               principally  employed in connection width  the               business  of the said establishment.  As  soon               as  it  is shown that tie  employment  of  the               person   is  either  wholly   or   principally               connected with the business of the  establish-               ment, he falls within the definition." The  key  to  section 2 (12) (iii) is whether  a  person  is wholly  or  principally  employed  in  connection  with  the business  of  the  commercial establishment.   On  the  very threshold  what  we  have to  determine  is  by  whom  the respondent  is  employed.   Is he  employed  by  the  Madras company or by the Pallavaram company which is a factory  and if he is by the former which it is not disputed he is, is he wholly or principally employed by it ? It is contended  that the  Appellant  is  employed wholly or  principally  by  the Pallavaram Company because it is the place where he has been working.   In  our  view  there  is  no  validity  in   this submission.   On  the  facts of  this  case  the  Pallavaram company is not the employer of the appellant.  All  relevant facts that have been established and are not disputed  point to the irrestible conclusion that the employer is the Madras company.  It was this company that appointed the  appellant. The,  appointment Order of 19th October, 1963 shows that  he was appointed as an Assistant in that company.  The terms of the  Order further show that apart from the salary  set  out therein  on  which  be  was appointed,  he  was  to  receive dearness  allowance at the rate of 35 per cent of the  basic salary  or such other rate as the Board of that company  may decide from time to time.  He has to become a member of  the Provident Fund to which both he and the Madras company  have to subscribe.  The annual bonus was to be calculated in  the same manner as the annual bonus payable to other 221 Assistants  of  the  company.   His  services  can  only  be terminated by the Madras company in terms of paragraph 6  of the  Order  and under paragraph 5 he was  required  to  work either  in  Madras Office (Office hours 9.15  a.m.  to  5.30 p.m.) or Pallavaram (office hours 8 a.m. to 4.30 p.m.) or at any other office or place of business of the company.  It is clear  from this letter of appointment that he has  to  work wherever the company directs him to work as such he would be a  person wholly or principally employed in connection  with the  business  of  the Madras company.  Inasmuch  as  it  is apparent that the obligation to work at Pallavaram is  under the directions of the company it will be considered to be  a part  of  the business of the company as  indeed  the  words "business of the company" in paragraph 5 govern not only the

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obligation  to work at Pallavaram but at any other place  or places  where the company directs him to work.  The  revised terms of employment of the appellant dated the 28th October, 1965  also  show  that those terms  are  applicable  to  the contracts  of all Assistants of the company.  It is also  to be noticed that the bonus was paid by the Madras company nor is  it disputed that his salary and bonus was being paid  by that  company.  The income-tax deductions were made  by  the Madras company which also furnished a certificate to the tax authority as per Ex.  P.9. That company further certified to the  Madras  Housing  Board  on January  8,  1966  what  the appellant’s  salary  per  month and  the  total  salary  and allowances  which are paid to him by that company were.   It may  also be mentioned that the appellant’s leave had to  be granted  by  the Madras company and not  by  the  Pallavaram company.  Ext.M-11 would show that the application for leave was  made by the appellant to the Managing Director  of  the Madras  company.   One  other fact which  appears  from  the evidence  of R.W.I., Director of the Madras company who  was also  the Secretary of the Pallavaram company is  that  the’ appellant  was signing bills for Tullies Woodroffee  factory at  Pallavaram  which is another subsidiary  of  the  Madras company.  He was also signing the bills of sale of all  such manufacture  purely  for  administrative  convenience.   All these  facts support the conclusion that the  appellant  was employed  on the business of the Madras company  because  he was working under their directions wherever they wanted  him to  work and whatever work was entrusted to him in terms  of the appointment order.  The mere fact that he was working in Pallavaram does not make him an employee of that company nor does  the  Pallavarm  company become  his  employer  because neither  that  company  pays his salary nor  does  it  grant leave,  nor has it any obligation towards the, appellant  in respect  of Provident Fund, bonus or any  other  emoluments, nor  for that matter can it suspend or dismiss him.   Indeed the very order of termination of his services was made by he Madras company and not by the Palla- 222 varm  company.  On the 15th October, 1966 this is  what  the Director of the Madras company wrote to the appellant .lm15   "  I  refer to our letter of appointment of 19th  October, 1963.  I have given very serious consideration to the question  of renewing your Agreement but have come to the conclusion that in  the period during which you have been employed  by  this company  your  work has not reached the standard  which  was expected  and  therefore it is not possible  to  renew  your appointment. Will  you  kindly therefore take this letter  as  being  the requisite one month’s notice of termination of your services in   accordance  with  paragraph  6  of  the  letter   under reference. If  you  wish  to  discuss this matter with  me  I  will  be available  at 3.30 p.m. on Tuesday the 18th October,  but  I must advise you that I have taken an irrevocable decision in the matter." This  letter clearly shows that the employer is  the  Madras company  because it is only the employer who  can  terminate the  services  of an employee.  It is,  therefore,  idle  to suggest that the Pallavaram company was the employer  merely because  the  Madras company had asked him to work  in  that company. It  is further submitted by the respondent that  the  Madras company  and the Pallavaram company being  two  incorporated

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companies they were separate and independent legal  entities and that merely because the Madras company has a controlling interest  in  the  Pallavaram  company  does  not  vest  the administration of Pallavaram company in the Madras  company. Whether  it is so or not we have no evidence, nor  is  there anything  to  show under what arrangements between  the  two companies,  the Madras company was managing the  affairs  of the Pallavaram company.  If we have to accept the contention of the learned Advocate for the respondent that because  the appellant was permitted by the Madras company to work in the Pallavaram company he was employed wholly or principally  in connection  with the business of the Pallavaram company,  he will  be  an  employer-less-employee  because  even   though Pallavaram  company has no control over him or his work  nor has  it  the  power to suspend or discharge  him,  he  would nonetheless be an employee of that company for the  purposes of section 2(12) (iii).  This would result in an incongruity and  would  have the effect of arming the  employer  with  a device  to circumvent the provisions of the Act inasmuch  as all that an employer has to do is to make the employee  work at places which  223 are factories or industrial undertakings and plead, when  he dismisses  him  without reasonable cause, that he is  not  a person  employed.   We do not think that such a  result  was intended, nor is a conclusion so baneful deducible from  the provisions of the Act. We  accordingly  allow the appeals with costs, one  set  and remand the case to the Additional Commissioner of  Workmen’s Compensation to hear and dispose of the appeal filed by  the appellant. S.N.                               Appeals allowed. 224