PETITIONER: G. RAMEGOWDA, MAJOR, ETC. Vs. RESPONDENT: SPECIAL LAND ACQUISITION OFFICER, BANGALORE. DATE OF JUDGMENT10/03/1988 BENCH: VENKATACHALLIAH, M.N. (J) BENCH: VENKATACHALLIAH, M.N. (J) <NAME>, S. (J) CITATION: 1988 AIR 897 1988 SCR (3) 198 1988 SCC (2) 142 JT 1988 (1) 524 1988 SCALE (1)479 ACT: Limitation Act , 1963: Section 5-Appeals filed by <ORG>- Condonation of delay- 'Sufficient cause' - Expression to receive liberal construction so as to advance substantial justice-Lapse on part of <ORG> Pleader- How far a 'sufficient cause'. Constitution of India, 1950: Article 136 - Appeal to <ORG> against order of <ORG> condoning delay in filing appeal-<ORG> meanwhile disposing the main appeal on merit-Does not bar <ORG> of consideration of correctness of <ORG> order condoning delay. HEADNOTE: % The lands of the appellants were acquired for the purpose of <ORG>' at Bangalore. The Civil Judge in Land Acquisition References under Section 18 of the Land Acquisition Act passed a common award in the three Land Acquisition References on 17.7.1970. Application for certified copies was made on 31.8.1971. Copies were obtained on 5.1.1972 and appeals were lodged in the <ORG> on 19.1.1972 in one appeal and on 10.4.1972 in the two other appeals. There was substantial delay in preferring the three appeals. The <ORG> in support of its prayer for condonation of delay narrated the chronological sequence of events and the protracted correspondence between the <ORG>-Pleader and the <ORG>, and the difficulties faced by the administration in even ascertaining the correct state of affairs owing to the negative and evasive attitude of the <ORG> Pleaders. In its appeals the <ORG> contended that both the Land Acquisition officer and the Civil Judge had steeply enhanced the compensation for the lands of the appellants. The lands that had been purchased by the claimant in the year 1962 for a sum of Rs. 7,000 per acre, were acquired pursuant to the notification dated 2.3.1963, that the Award of the Land 199 Acquisition Officer granting Rs.58,000 per acre was unduly generous for the acquisition was just about a year after the purchase. and that the further enhancement by <ORG> to Rs. 1,45,200 per acre. clearly suffered from the vice of extreme excessiveness. The <ORG> noticed that the <ORG> Pleader who was in office till 15.12.1970 had applied for certified copies on 20.7.1970, but the application was allowed to be dismissed for default and that in one case he appeared to have taken away the certified copy even after he had ceased to be a <ORG> Pleader. After consideration of the matter <ORG> of the <ORG> condoned the delay in the filing in the appeals. In the appeals to this Court by the appellants- claimants it was contended that the <ORG> fell into a manifest error in condoning the inordinate and wholly unjustified delay and that the explanation offered before and accepted by the <ORG> cannot. in law. be held to constitute 'sufficient cause' for purposes and within the meaning of. Section 5 of the Limitation Act. 963. The <ORG> contested the appeals. by contending that the <ORG> had heard and disposed of the appeals before it on the merits. substantially reducing the compensation and that the appellants had already preferred Special leave Petitions against the final order as such, and that the appeals against the mere condonation of delay do not survive at all and must be held to have become infructuous. It was further contended that the <ORG> Pleader whom the <ORG> had necessarily to and did trust had let down that trust, and there was therefore sufficient ground for the condonation of the delay so as to promote public interest and do substantial justice. Declining to interfere with the <ORG>'s order and dismissing the Appeals, ^ HELD: 1. The fact that the main appeals are themselves, in the meanwhile, disposed of finally on the merits by the <ORG> would not by itself detract from and bar the consideration of the correctness of the order condoning the delays. This is an instance of what are called "dependent orders". If the order excusing the delay is itself set aside in these appeals, the further exercise, made in the meanwhile, by the <ORG> finally disposing of the appeals, would be rendered nugatory. [203H; 204A-B] 2. There is no general principle saving the party from all mistakes of its counsel. [205F] 200 3. Each case will have to be considered-on the particularities of its own special facts. [205G] 4. If there is negligence, deliberate or gross inaction or lack of bona fides on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. [205F-G] 5. The expression 'sufficient cause' in Section 5 of the Limitation Act, 1963 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deli berate inaction or lack of bona fides is imputable to the party seeking condonation of the delay. [205G-H] 6(i) The law of limitation is, no doubt, the same for private citizen as for <ORG>al-authorities. <ORG>, like any other. litigant must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where <ORG> makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross purposes with it. [206D-E] (ii) If appeals brought by <ORG> are lost for such default, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. [206C] 7(i). In assessing what, in a particular case, constitutes 'sufficient cause'. for purpose of Section 5 it might, perhaps be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, factors which are peculiar to and characteristic of the functioning of the <ORG>. Implicit in the very nature of <ORG>al functioning is procedural delay incidental to the decision making process. [206E-H] (ii) Due recognition of these limitations on <ORG> functioning-within a reasonable limit-is necessary. It would be unfair and unrealistic to put <ORG> and private parties on the same footing in all respects in such matters. [206G] 8. In the opinion of the <ORG>, the conduct of the law officers of the <ORG> placed the <ORG> in a predicament and that it was one of those cases where the malafides of the officers should 201 not be imputed to <ORG>. It relied upon and trusted its law officers. It took quite some time for the <ORG> to realise that the law officers failed that trust. [206H; 207A,C] 9. The criticism that the delay on the part of the <ORG> even after 20.1.1971 for over one year cannot be said to be either bonafide or compelled by reasons beyond its control is not without substance. <ORG> could and ought to have moved with greater diligence and dispatch consistent with the urgency of the situation. The conduct of the <ORG> was perilously close to such inaction as might, perhaps have justified rejection of its prayer for condonation. But in the interest of keeping the stream of justice pure and clean the awards under appeal should not be permitted to assume finality without an examination of their merits. [207D- <CITATION> , 1 SCR 106; <CITATION> .,  3 SCR 694; <CITATION> ,  2 SCR 90; <CITATION> ,  2 SCC 107; <ORG>,  2 L.R.629 at 673 and <CITATION> ,  1 SCC 469, referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 856 and 857 of 1974 Etc.

From the Judgment and order dated 13/14.6.1973 of <ORG> in Misc. First Appeal Nos 290 and 293 of <NAME> and <NAME> for the Appellants. <NAME> for the Respondent.

The Judgment of the Court was delivered by <NAME>, J. These three appeals, by the claimant-respondents in certain Land Acquisition Appeals before <ORG>, are preferred, by Special Leave, against the common order dated 14.6 1973 of <ORG> of Mysore (Karnataka) condoning, under Section 5 of the Limitation Act, 1963, certain delays on the part of the Land Acquisition officer in preferring the three corresponding appeals in M.F.A. No. 290 of 1973, M.F.A. 293 of 1973 and M.F.A. No. 289 of 1973 respectively The appeals before <ORG> were directed against the common-award made by the Civil Judge, Bangalore District, in certain Land Acquisition References under Section 18 of the Land Acquisition Act steeply enhancing the compensation for the lands of the appellants acquired for the purpose of <ORG>' at Bangalore. The circumstances leading upto and necessitating the prayer for the condonation of the delays before <ORG> seem somewhat unfortunate, casting, as they do, as persions on the probity and rectitude of the conduct and good faith of the Government Counsel entrusted with the conduct of land acquisition cases.

2. The common award, in the three land acquisition references was passed by the learned Civil Judge on 17.7.1970. Application for certified copies was made on 31.8.1971; copies obtained on 5.1.1972 and M.F.A. No. 289 of 1973 was lodged before <ORG> on 19.1.1972 and the other two appeals viz., M.F.A. 290 of 1973 and 293 of 1973 on 10.4.1972. There were, thus, substantial delays in preferring the appeals.

The Land Acquisition officer, appellant before <ORG>, filed applications to have these delays excused. <ORG> of <ORG> was persuaded to make an order condoning the delay.

The grievance of the <ORG> in the appeals was that the lands which had been purchased in the year 1962 for a sum of Rs.7,000 per acre, were acquired pursuant to the preliminary notification dated 2.3.1963 and the award of the Land Acquisition officer granting Rs.58,000 per acre was itself unduly generous having regard to the fact that the acquisition was just about an year after the purchase by the claimants and that the further enhancement by <ORG> to Rs.1,45,200 per acre clearly suffered from the vice of extreme excessiveness

3. Sri<NAME>, learned counsel appearing in support of these appeals assailed the order of <ORG> on the ground that <ORG> fell into a manifest error in condoning these inordinate and wholly unjustified delays and that explanation offered before, and accepted by, <ORG> sarnat, in law, be held to constitute 'sufficient cause' for purposes and within the meaning of, Section 5 . Learned Counsel strenuously urged that the rights vesting in the successful parties to a litigation by the expiry of the period of limitation should not lightly be interferred with unless it was established that the appeal could not have been lodged in time despite the exercise of reasonable diligence on the part of the appellant. Learned counsel further contended that the fact that the <ORG> Pleaders had not discharged their duty to the <ORG>, even if true, would be wholly beside the point as that would be a matter of internal administration. If <ORG> was not able to set its own house in order, says learned counsel, the opposite party, who had the benefit of the adjudication should not be exposed to a time barred appeal. There cannot, says counsel, be one standard for an ordinary litigant and another for <ORG>.

On the merits of the cause shown, learned counsel said, the explanation served only to aggravate the negligence; that the explanation might, at best, amount to sufficient- cause for the delay upto 20.1.1971 when the Civil Judge wrote to the Government and the latter, admittedly, was put on notice of the award and decree passed in the cases and that the subsequent delays of over an year thereafter in preferring the appeals cannot, even on the most liberal construction of 'sufficient cause', be said to be justified.

4. <NAME>, learned counsel for the <ORG>, on the other hand, while seeking to support the order under appeal submitted that the circumstances of the case disclosed that the <ORG> was put in a predicament by its own law- officers and that where, as here, public interest had come to suffer owing to the bad-faith and divided loyalties on the part of the officers and advisers of <ORG>, the technicalities of procedure should yield to considerations which would promote public interest and substantial justice. <NAME> submitted that in the present case the <ORG>-Pleaders whom <ORG> had necessarily to and did trust had let down that trust and this was a case of 'salt having lost its savour'.

<NAME> submitted that, during the pendency of the present appeals, <ORG> had heard and disposed of the appeals before it on the merits substantially reducing the compensation; that appellants have already preferred SLP Nos. 2319, 2320, 2493 of 1974 against that Judgment and that the present appeals, preferred as they are against the mere condonation of delay, do not survive at all and must he held to have become infructuous.

5. We might, perhaps, deal with the latter submission of <NAME> first. The fact that the main appeals are themselves, in the meanwhile, disposed of finally on the merits by <ORG> would not by itself detract from and bar the consideration of the correctness of the order condoning the delays. This is an instance of what are called 'dependant-orders' and if the order excusing the delays is itself set aside in these appeals, the further exercise, made in the mean while, by <ORG> finally disposing of the appeals, would be rendered nugatory. The submission of <NAME> is, therefore, insubstantial.

6. In support of its prayer before <ORG> for condonation of the delays, <ORG> narrated the chronological sequence of events and the some-what protracted correspondence between <ORG>-Pleader and the <ORG> and the difficulties faced by the administration in even ascertaining the correct state of affairs owing to the negative and evasive attitude of the <ORG>- Pleaders. These events and correspondence are referred to and evaluated in paragraphs 5, 6 and 7 of <ORG>'s order. After a consideration of the matter, <ORG> was pursuaded to the view that in the circumstances of this case, it could not be said that the <ORG> was negligent. <ORG> observed:

"Taking into account all the circumstances of the case, we hold that there was not such negligence or inaction on the part of the <ORG>, as to induce as not to exercise our discretion under Section 5 of the Limitation Act to condone the delay in presenting the appeal."

Adverting to the conduct of the Government-Pleader <ORG> observed:

"But how could the L.A.O. anticipate that the <ORG> Pleader or the Assistant <ORG> Pleader would fail to do such elementary duties like applying for such certified copies, obtaining them and forwarding them to the <ORG> with his opinion? To say the least, the conduct of the <ORG> Pleader and / or, the Assistant <ORG> Pleader appears to us to be extraordinary."

(emphasis supplied) Indeed in the counter-affidavits filed on behalf of <ORG> in these appeals, the Land Acquisition officer avers:

"I beg to submit that due to the unusual conduct of the District <ORG> Pleaders who were in office during a particular period <ORG> had to face the problem of delay in filing of appeals in hundreds of cases. The <ORG> was not able to know the real state of affairs till the concerned <ORG> Pleaders relinquished their office. In fact, for some time, there was utter confusion and it became practically impossible to find out as to which are the Land Acquisition cases which has been disposed of and in which appeals were not filed though appeals ought to have been filed .. It is humbly submitted that the case of the <ORG> for condonation of delay was that on account of the fraud played by the concerned <ORG> Pleaders delay in filing the appeals has occurred and more than a crore of rupees would be a loss to the <ORG> on account of the said fraud played by the <ORG> Pleaders. In fact, in innumerable cases the Hon'ble High Court has condoned the delay in filing of the appeals, taking into consideration the most unusual conduct of <ORG> Pleaders which had landed the <ORG> in difficulties. I beg to further submit that almost all the appeals which had been entertained by the Hon'ble High Court after condoning the delay, have been allowed on consideration of their merits ........ "

(emphasis supplied)

7. The contours of the area of discretion of the <ORG> in the matter of condonation of delays in filing appeals are set out in a number of pronouncements of this <ORG>. See:

<CITATION> .,  2 SCR 762; <CITATION> ,  1 SCR 1006; <CITATION> .,  3 SCR 694; <CITATION> ,  2 SCR 90 and <CITATION> ,  2 SCC 107 etc. There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona fides on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression 'sufficient cause' in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay. In <NAME>'s case, (supra), this <ORG> said:

"When substantial justice and technical considerations are A pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay."

"It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

8. In litigations to which <ORG> is a party there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by <ORG> are lost for such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. The decisions of <ORG> are collective and institutional decisions and do not share the characteristics of decisions of private individuals.

The law of limitation is, no doubt, the same for a private citizen as for Governmental-authorities. Government, like any other litigant must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it.

Therefore, in assessing what, in a particular case, constitutes 'sufficient cause' for purposes of Section 5 it might, perhaps, be some what unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the <ORG>. <ORG>al decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red-tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of <ORG> must have 'a little play at the joints'. Due recognition of these limitations on <ORG>al functioning-of course, within a reasonable limits-is necessary if the judicial approach is not rendered unrealistic. It would, perhaps, be unfair and unrealistic to put <ORG> and private parties on the same footing in all respects in such matters. Implicit in the very nature of <ORG>al functioning is procedural delay incidental to the decision making process. In the opinion of <ORG>, the conduct of the law-officers of the <ORG> placed the <ORG> in a predicament and that it was one of these cases where the mala fides of the officers should not be imputed to <ORG>. It relied upon and trusted its law- officers. <NAME>, M.R., in the Re: National Bank of Wales Ltd., 1899 J 2 L.R. 629 at 673 observed, though in a different context:

"Business cannot be carried on, upon principles of distrust. Men in responsible positions must be trusted by those above them, as well as by those below them, until there is reason to distrust them."

In the opinion of <ORG>, it took quite sometime for the Government to realise that the law-officers failed that trust.

While a private person can take instant decision a "bureaucratic or democratic organ" it is said by a learned Judge "hesitates and debates, consults and considers, speaks through paper, moves horizontally and vertically till at last it gravitates towards a conclusion, unmindful of time and impersonally." Now at the end, should we interfere with the discretion exercised by <ORG>? <NAME> criticised that the delay on the part of <ORG> even after 20.1.1971 for over an year cannot be said to be either bonafide or compelled by reasons beyond its control. This criticism is not without substance. <ORG> could and ought to have moved with greater diligence and dispatch consistent with the urgency of the situation. The conduct of <ORG> was perilously close to such inaction as might, perhaps, have justified rejection of its prayer for condonation. But as is implicit in the reasoning of <ORG>, the unarticulated thought, perhaps was that in the interest of keeping the stream of justice pure and clean the awards under appeal should not be permitted to assume finality without an examination of their merits. <ORG> noticed that the <ORG> pleader who was in office till 15.12.1970 had applied for certified copies on 20.7.1970, but the application was allowed to be dismissed for default. In one case, however, he appears to have taken away the certified copy even after he ceased to be a <ORG> Pleader. In a similar context where delay had been condoned by <ORG>, this Court declined to interfere and observed:

"Having regard to the entirety of the circumstances, <ORG> thought that the State should not be penalised for the lapses of some of its officers and that in the particular circumstances there were sufficient grounds justifying the condonation of delay in filing the appeals. It was a matter for the discretion of <ORG>. We are unable to say that the discretion was improperly exercised .. "

(See C.A. No. 992/1971, 1127/1974 and SLP (C) 3450/1974 dated 22.1.1985) We think in the circumstances of this case, we should also decline to interfere. Appeals are dismissed, but without an order as to costs.

N.V.K. Appeals dismissed.


<NAME>, Vice President

1. M/s. Ravi Dughdhalaya have filed Revision Application dated 10-8-77 against order-in-appeal No. 599/77 dated 1-7-77 passed by the Appellate Collector of Customs and <ORG>, Bombay.

2. The appellant is a small milk vendor. He purchased a second hand air-compressor and copper tubes from the local market, had the copper tubes soldered together in a zigzag way and connected the wooden box with the compressor by means of these tubes. The wooden box was prepared locally and was called cabinet. The <ORG> officers seized the wooden box and the copper coils on the grouud that they were dutiable as parts of refrigerating machinery. In the show-cause notice dated 27-8-76 it was alleged that the appellants had got manufactured the wooden cabinet and the cooling coils without obtaining the <ORG> licence and used them after assembling the milk cooler which is a refrigeration appliance falling under T.I. 29A(i). The Dy. Collector of <ORG>, Ahmedabad held that the appellants were engaged in the manufacture of cabinet for the milk cooler and the cooling coils and using the saming in assembly a milk cooler in their shop. The Deputy Collector has further stated that the wooden cabinet, irrespective of the fact that it is manufactured from wood or other things, is made or meant for performance as a part of refrigeration machinery or appliance an accordingly attracts <ORG> duty under sub-item (iv) of item 29A of CET. Such cabinets are not exempt from payment of duty under Notification No. 80/62 dated 24-4-62. He held that the cabinet being made from wood and used in the assembly of the milk cooler from old machinery amounted to manufacture of excisable goods. He, therefore, confiscated the cabinet and the cooling coil and imposed a fine in lieu of confiscation of Rs. 50/-. He also imposed a personal penalty of Rs. 50/- on the appellants and also demanded the <ORG> duty at appropriate rate on the cabinet and cooling coil valued at Rs. 8500/-. The Appellate Collectors of <ORG> upheld the order of the Deputy Collector and rejected the appeal. He, inter-alia, observed that the appellants had got manufactured cooling coils from another party to which necessary charges had been paid. Accordingly, he held that the cooling coil in question was a saleable item. Besides, the cabinet and the cooling coil were fitted to the milk cooler and it was, therefore, evident that they are parts and are falling under item 29A of CET. As such duty was leviable on these parts. The Appellate Collector, however, reduced the penalty of Rs. 50/- to Rs. 10/-since the cabinet was meant for personal use and not for sale. In their appeal the appellants have stated that the cooling coils used by the appellants are not the type which are generally manufactured for sale or as as a saleable article. What they did was that they merely arranged copper tubes purchased in local market in a zigzag horizontal way to connect the cabinet with the compressor according to their requirements. Since these were made and soldered at site, similarly the wooden cabinet cannot be considered as a cabinet or a part of air conditioning machinery under item 29A(iii) of the Tariff. It is not a cabinet for using the air conditioning or refrigeration machinery but a storage tank which is usually provided in the milk chilling centres. These storage tanks are never held to be excisable requiring the units to take out a licence for their manufacture nor are they charged to duty. The appellants have cited the following cases in support of their appeal:

(1) <ORG> v. <ORG> & others (<ORG>) wherein it was held that simply because pipes of a particular size have been arranged in a particular manner so as to carry cooling gas, it cannot be said that they could form a condenser or a brine cooler. Such products are not saleable as condenser cooling coil or brine cooler nor are such understood to be so by the people in the trade or commercial world. Therefore, such parts are not liable to duty under item 29A(3) of the Tariff.

(2) <CITATION> Court) reported in 1980 E.L.T. page 600. Here <ORG> held that the central idea underlying entry 29A is that dutiable article must be an assembled unit which is ordinarily sold or offered for sale, If a person erects a unit with his own ingenuity, it is not liable to duty. Similarly, component parts erected at the site are equally outside the purview of item 29A as they are not assembled units. This entry covers only parts of the refrigeration or air-conditioning appliances which are liable to duty. In other words, such parts should be such as are ordinarily sold or offered for sale as ready assembled units.

3. The <ORG> representative <NAME> submitted that he was not in a position to offer any comments on the judgment of <ORG> cited by the appellants. In his opinion, the sub-item (3) of item 29A of the Tariff should be read independently and all parts of refrigration and air-conditioning appliance and machinery, whether they are assembled at site or they are ready for assembly or not, attract Central Excise duty. Saleability of such parts is not the criterion.

4. The Bench considered the submission made by both parties. The Bench is of the view that the facts of the case are fully covered by the citations referred to above. In particular, the judgment of <ORG> in the matter of <CITATION> is clear and following this judment we hold that the make-shift contrivance for milk cooling made by the appellants could not be considered excisable under entry No. 29A(3). We, therefore, set aside the order of the Appellate Collector and allow the appeal.


PETITIONER: <ORG> Vs. RESPONDENT: STATE OF SAURASHTRA. DATE OF JUDGMENT: 23/11/1956 BENCH: BHAGWATI, <NAME>: 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 <ORG>, 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 <ORG> and agreed with by <ORG> or they were independent contractors and the reference for adjudication made by the <ORG> competent under s. 10 of the Act. Held, that the finding of <ORG> that the agarias were workmen within the meaning of S. 2(S) of the 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. <ORG> v. <ORG>, and Another  1 A.C. 1, and <ORG>  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 <ORG> 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. <CITATION>  S.C.R. 696, referred to. Performing Right, Society Ltd. etc. v. <NAME> and <NAME> (Plaise De Danse)  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. <NAME> v. <NAME> (1855) 119 E.R. 209 and <NAME> v. <NAME> (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. <NAME> v. <NAME> : <NAME> v. <NAME> (1881) 6 Q.B.D. 182, <NAME> v. <NAME> (1825) 21 L.H., Q.B. 151 and <NAME> v. <NAME> (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.

Appeal from the judgment and order dated January 8, 1954, of <ORG>, at Rajkot, in Civil Misc. Application No. 70 of 1952.

<NAME> and <NAME>, for the appellant. <NAME> and <NAME>, for respondent No. 1. 1956. November 23. The Judgment of the Court was, delivered by <NAME> with a certificate of fitness granted by <ORG> 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 <ORG> 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 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.

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 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. <ORG>, by its letter of Reference dated November 5, 1951, referred the disputes for adjudication to <ORG>, Saurashtra <ORG>, 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 <ORG> 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 <ORG>, and having failed- to obtain stay of further proceedings before <ORG> pending the appeal, they moved <ORG> 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 <ORG> and in view of the same <ORG> passed an order on September 27, 1953, dismissing the appeal leaving the question raised therein to the decision of <ORG>. By their judgment dated January 8, 1954, the learned Judges of <ORG> agreed with the decision of <ORG> 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 (<ORG>). "

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 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 but how itself it ,;hall be done." (Per <NAME>, J. in <NAME> v. <ORG> (1).) The test is, however, not accepted as universally correct. The following observations of <ORG>, at pp. 110, III in <ORG> v. <ORG> (2) are apposite in this context:

"But in <NAME> v. <ORG> (3) Lord Justice <NAME>, 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 <NAME>, 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 <ORG> in <NAME> v. <ORG> (4) where Lord <NAME> 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.

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 <ORG> 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, <ORG> 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 <NAME> v. <ORG>, (supra), we may take it as the prima facie test for determining the relationship between master and servant, 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 <NAME> at page 23 in <ORG> v. <ORG> (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 <ORG> 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 (<ORG> observations of <ORG>, L.J., in <NAME> v. <ORG> (supra), and <ORG>, in <ORG> v. <ORG> (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 <NAME>, L.J., at page 549 in <ORG> (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 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.

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."

<ORG> 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 <ORG> had jurisdiction to decide that question and had come to its own conclusion in regard thereto, that <ORG>, exercising its jurisdiction under Arts. 226 and 227 of the Constitution, was not competent to set aside the finding of fact recorded by <ORG> and that we, here, entertaining an appeal from the decision of <ORG>, should also not interfere with that finding of fact.

Reliance was placed on the observations of <NAME>, J., as he then was, in <CITATION> (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.

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 <NAME>'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 <NAME> in <ORG> v. <NAME> and <NAME> (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. (<NAME> "Laws of England", <ORG> edition, Vol. 22, page 112, para. 191; <NAME> M.R. at page 547 and <NAME> L.J. at page 549 in <NAME> v. <ORG> (supra). It is equally well settled that the decision of the <ORG> 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. <NAME> for the appellants is that even if all the facts found by the <ORG> 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.

"The panholders are allotted work on the salt pans by oral agreement. The <ORG> has no control over the panholders in regard to the hours of work or days of work. The <ORG>'s permission is nor sought in matter of sickness or in matter of going out to some village. The <ORG> 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 <ORG> and as per standard determined by the <ORG> in matter of salt. , The company's supervision is limited to this extent.

The <ORG> 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 <ORG>, 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 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 <NAME>, an agaria, who was examined on behalf of the respondents:- " 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 <ORG> 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 <ORG> 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 regards the first, the argument of the appellants is that as, the <ORG> 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 <ORG> in <NAME> v. <NAME> (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 <NAME>, v. <NAME> (2) and <NAME>'s " Laws of England ", <ORG> 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 <ORG> are entitled to engage other persons to do the work, that these persons are engaged by the <ORG> 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 <ORG> 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 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.

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 <NAME>'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 <NAME> v. <NAME> : <NAME> v. <NAME> (1); <NAME> v. <NAME> (2) and <NAME> v. <NAME> (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 <ORG>. These difficulties, however, are no deterrent against holding the agarias to be workmen within the meaning of the definition if they fulfil its requirements. <ORG> 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.

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 <ORG> 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 <ORG> 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.