M/S. KIRLOSKAR OIL ENGINES versus HANMANT LAXMAN BIBAWE

Citation: [1963] 3 S.C.R. 514 · Decided: 31-07-1962 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Appeal(s) allowed

Judgment (excerpt)

1~6! 
Jul131. 
•
514 
SUPREME COURT REPORTS (1963) 
M/S. KIRLOSKAR OIL ENGINES 
v. 
HANMANT LAXMAN BIBAWE 
'(P. B. GAGENDRAGADKAR,. K. C. DAS GUPTA and 
J. R. MuDHOLKAR, JJ.) 
lndu•trial Dupute-Master and servant-Workman con-
cerned in dispute-Police 8Cheme for providing u:atchman at 
req7lest-Who is 
employer~IndUBtrial DIBputes Act, _ 1947 
(14 of 1941), s. 33A. 
. 
. 
The respondent was engaged by 1he appellant as a 
watchman under a scheme framed by the Police Department. 
His services were discharged pending an in_dustrial dispute 
between the appellant and its workmen. The respondent 
complained to the Industrial Tribunal under s.1 33A of 
the Industrial Disputes . Act. . The Tribunal accepted the 
application. _The appeJlant· contended that the respondent 
was not its employee. The scheme provides that private 
persons requiring the services of watchmen may apply to the 
District Superintendent of Police who supplies a watchman 
if one suitable is available under the scheme. The amount 
. ,, 
towards pay Is recovered in advance .each month -by the Dis-
trict Superintendent of Police and credited to the watchman's 
fund. After deducting Rs. 250 _towards the uniform supp· 
lied, the rest is paid by the police Department to th_e, watch-
man. The Department requfres the persons to whom the 
watchman is supplied. to give a fortnight's notice if it is 
desired· to dispense with the services of the watchman. The 
watchmen arc mustered at the Police Station and their work 
supervised by the Police night patrol, They are under the ' 
disciplinary control of the District Superintendent of Police. 
. 
Held, 
that the decision of the question whether a 
person is the employee of another or not has to depend on the 
facts and circumstances of each individual case. The test 
as to who is entitled to tell the employee the way in which 
he is to do the work on which he Is engaged though in a given 
case satisfactory it woul_d be unroasonable to treat that test as 
the niost satisfactory as a general rule. Having regard· to 
all the relevant facts the respondent cannot be said to be the 
>-
employee of the appellant and could not claim to be an 
industrial employee-
concerned in the pending Industrial 
Disputes.· 
3 s.c.R. 
SUPREME COURT REPORTS 
515 
Shivananrlan Sharma v. Punjab National Bank, [1955]. 
1 S. C. R. 1427, referred to. 
Docks &: Harbour Board v. Googinns and Griffith (Liver-
pool) Ltd., [1947] A. C. 1, held inapplicable. 
CIVIL APPELLATE JURISDICTION: Civil Appeal 
..""{ 
No. 523 of 1961. 
· 
Appeal by speoial leave from the award 
dated September 2, 1960, of the Industrial Tribu-
nal, Maharashtra at Bombay in Complaint (I. T.) 
No. 38of1960. 
I. N. Shroff, for the:appellants. 
-
K. R. Ohoudhri, for the respondent. 
· 1962. July 31. The Judgment of the oourt wa.~ 
delivered by 
106S 
Kirloskar Oil 
tEnginu 
v. 
Hanmanl Laxman 
BibaWI 
GAJENDRAGADKAR, J.-The respondent Bibo.we Gajmiragaar-J. 
made an applioation to the Industri!i.l Tribu-
-J 
nal at· Bombay under s. 33-A of the Indus-
trial Disputes Aot, H}47, 
He alleged that he 
bad been 
employed 
by . the 
appellant 
M/s. 
Kir loskar Oil Engines, Limited, as a watohman sinoe 
July 21, 1958, and that he had been workingassuoh 
watchman with the appellant and had become its 
permanent workman. On May 15, 1960, the Security 
Officer of the appellant Company intimated to_ him 
that he had been discharged from service with efeot 
from that date. 
The respondent urged that at 
the time when this order of discharge was orally 
serV'ed on him, an industrial dispute was pending be-
tween the appellant and . its employees before an 
Industrial Tribunal and as such the respondent 
could not be discharged by the appellant without 
obtaining the approval of the Industrial Tribunal. 
In other words, his case was that his disoharge was 
in oontravention of the provisions of s. 33 and that 
is the basis of his application under s. 33-A. 
Eid o"skar Oil 
Engints 
•• 
H anmant Laxmon 
Bibaw1 
Gajendrag.adlar J. 
' 
516 
SUPREME COURT REPORTS [1963] 
The appellant denied that the respondant was 
its employee. It pleaded that the respondent's 
services had been made availa.ble to the appellant 
by an arrangement'. the terms of which clearly indi-
cated that even whilst the respondent was working 
as a watchman of the appellant, he was not the 
employee of the appellant in the legal sense. That 
being so, it was argued that s. 33 was not nontra· 
vened and the application under s

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