SHANKAR BALAJI WAJE versus STATE OF MAHARASHTRA

Citation: [1962] SUPP. 1 S.C.R. 249 · Decided: 27-10-1961 · Supreme Court of India · Bench: J.L. KAPUR · Disposal: Appeal(s) allowed

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Judgment (excerpt)

(1) S.C.R. 
SUPREME COURT REPORTS 
240 
SHANKAR BALAJI WAJE 
v. 
STATE OF MAHAR.ASHTRA 
(J. L. KAPUR, K. SUBBA RAO and R.AGHUBAR 
DAYAL, JJ.) 
Faclory-Worktr employed-Definition-No contract of 
service between owner and labour-Labourer free fo attend and 
go any time-If worker-Factories Act, 1948 (63 of 1948), 
88. 2(1), 79, 79(11), 80,90, 92. 
The appellant was the owner of a factory manufactur-
ing bidi• and one P along with other labourers used to roll bid is 
in the factory with tobacco and leaves supplied to hiin by 
the factory. The following were established facts :-
( l) There was no contract of service between 
the appellant and P. 
(2) He was not bound to attend 
the factory for rolling bidis for any fixed hours or period; 
he was free to go to the factory at any time during working 
hours and leave the factory at any time he liked. (3) He 
could be absent from the work any day he liked and for ten 
days without even informing the appellant. 
He had to take 
the permission of the appellant if he was to be absent for 
more than 10 days. 
(4) 
He was not bound to roll the 
bidis at the factory. 
He could do so at home with the 
permission of the appellant for taking home the tobacco 
sup,ilied to him. 
( 5) 
There was no actual supervision 
of the work done by him in the factory and at the close 
of the day rolled bidis were delivered to the appellant. 
Bidis not up to the standard were rejected. 
(6) He was 
paid at fixed rates on the quantity of bidis turned out and 
there was 
no stipulating for, turning out any minimum 
quantity of bidis. The Inspector of Factories found that 
he was not paid the wages for 4 days' leave which he had 
earned after having worked for a certain period. The appel-
lant was fined Rs. 10/· for contraveving the provisions of 
s. 79( 11) of the Factories Act. The questions which arose 
for decision were whether P was a worker within the mean-
ing of that expression under the Act and whether he was 
entitled to any leave wages under s. 80 of the Act. 
Held (per Kapur and Raghubar Dayal, JJ.), that the 
decision of this Court in Birdhi Ohand's Gase was <listing· 
uishable on facts and could not be applicable to the facts 
· of the present case. 
The appellant exercised no control and supervision 
over P. He was not a worker as the three criteria and 
conditions laid down by this Court in Ohintaman Rao'• 
1161 
Oclober 21. 
1961 
Sliankttr Ralajl M'oje 
V. 
Stclt of !iloharashtra 
250 SUPREME COURT REPORTS (1962) SUPP. 
cas"C for constituting him as such were not fulfilled in the 
present case. 
Bird/ii Chand Sharma v. The Firs! Ciril Jucb;e, Nagpur 
[1961] 3 S. C.R. 161, distinguished. 
Chintaman 
Rao 
v. 7'/w Slate of JI t1dhya 
Pradesh, 
[1958] S. C. R. 1340, applied. 
Whether the appellant contravened the provisions of 
sul>-s. (I) of s. 79 depended on the proper constmction of 
ss. 79 and 80 of the Act. 
With the terms of the work as 
they were in the present case there could be no basis for 
calculating 
the daily 
average of the worker's "total full 
time earnings" which means the earnings he earns in a day 
by working full time on that day, the full time to be in 
accordance 
with 
the period of tinl.c given in the uotice 
displayed in the factory for a particular day and therefore 
the wages to be paid for the leave period could not be 
calculated nor the number of days for which leave with 
wages could be allowed be calculated in such a case. 
The 
couviction of the appellant under s. 92 read withs. 79( 1) 
of the Act was wrong. 
Per Subba Rao, J., disscnting,-The question raised 
in the appeal wa.s directly covered by the judgment of this 
~rt in Birdhi Chand Shamia's case. 
It could not be said that the appellant had no right 
of supervision or control over the labourers in the factory 
or did not supervise to the extent required having regard to 
the nature of the work done in the factory. 
Under s. 2(1) of the Act "worker" meant a person 
employed, directly or through any agency whether for wages 
or not in any manufacturing process. All the ingredients 
of the \vord ''employed" as laid down by this court were 
present in this case and therefore the labourers were workers 
within the meaning ofs. 2(1) of the Act. 
lJirdhi Chand Sharma v. First Cit-ii 
Judge, Nagp1<r. 
11961] 3 S. C. R.161, Chi1./ama11Roo v. State of M. /'. [1958) 
S. C. R. 1340, Dharangadhara Chemical Works v. State uf 
Sau.raahtra, [1957] S. C, R. 152, State of Kerala v. 1'. M. 
Patel, and J'alaniappa 

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