Karnataka High Court
National Airport Authority, Delhi vs Bangalore Airport Service Coop. ... on 4 July, 1991
Equivalent citations: ILR1991KAR2619, 1991(2)KARLJ287, (1992)IILLJ534KANT
Author: S. Mohan
Bench: S. Mohan
JUDGMENT Hanumanthappa, J.
1. This appeal is directed against an order issued by the learned Single Judge of this Court in Writ Petition No. 3513 of 1986, dated 30th June 1986 confirming the order passed by the Labour Court (Central), Bangalore, in CCA No. 2 of 1984, dated January 29, 1986 whereby the application was allowed directing the 1st appellant to pay arrears of wages to the applicants as claimed in the application with a further direction that the 1st appellant is at liberty to recover the same from the 1st respondent herein.
2. A few facts are :
Applicants 50 in number filed an application before the Labour Court under Section 33-C(2) of the Industrial Disputes Act, 1947 (herein referred to as the Act) seeking, for computation of amounts due to them on the ground that they were working as porters under the 1st respondents herein at Bangalore Airport. The 2nd appellant was overall in-charge of the Bangalore Airport. The services at the Bangalore Airport, viz., the Porterage Services, were entrusted to the 1st respondent by the appellants. The 1st respondent was the licensee. From 1979 the 2nd appellant was holding the Porterage Services Contract at Bangalore Airport. The 2nd appellant was collecting a fee of Rs. 1/- per head from the applicants and was permitting them to act as Porters at the Bangalore Airport. Subsequently, the said Porterage Services Contract was entrusted to one N. Chandrasekharaiah on a monthly license fee. The services of the Porters continued by the said contractor also. However, the said contractor was not paying the minimum wages to the applicants and, thus, the applicants were exposed to unfair labour practice. Therefore, applicants formed a Union called "Bangalore Airport Porters Union" which raised a dispute on September 12, 1979 before the Labour and Conciliation Officer, Bangalore II. During the course of conciliation the said contractor Chandrasekharaiah offered to settle the dispute amicably. On October 5, 1978 the said contractor undertook to pay wages at Rs. 10/- per day to each worker. The said settlement was signed before the Conciliation Officer. The 1st respondent was offered the Contract of Porterage Services with effect from May 1, 1979 who in turn agreed to fix the wages of the applicants at Rs. 10/- per day. But, the 1st respondent was paying a sum of Rs. 125/- per month instead of Rs. 300/- to the applicants. When questioned, the 1st respondent informed the applicants the Society was running under loss and the issue regarding the reduction of licence fee is under consideration before the authorities concerned, as soon as it is decided the wages at the rate of Rs. 10/- per day would be paid to them. Subsequently, the licence that was granted to the 1st respondent was determined for the period subsequent to 1984 as it quoted lower licence fee and in its place the application of one Chandrasekharaiah was accepted and he became the licensee.
According to the applicants, the licence that was earlier obtained by the 1st respondent was the one under the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as the 1970 Act) under which the appellants became the principle employers. As per Section 21 of 1970 Act any failure on the part of the Contractor to pay wages, etc., the same shall be paid by the principle employer and shall recover the same from the Contractor. As there was failure on the part of the 1st respondent to pay wages to the applicants the applicants requested the appellants to pay the same. But their request was turned down by the appellants. Hence, they filed application before the Labour Court.
The application before the Labour Court was opposed by the appellants herein contending that (i) the application filed under Section 33-C(2) and (5) of the 1947 Act was not maintainable both in law and in facts; (ii) there was not relationship of employer and employee between the appellants and the applicants; (iii) Aerodrome is not an industry within the meaning of the Act; (iv) the applicants were carrying out the Porterage Services in the Aerodrome under the contract dated May 1, 1979 which was earlier granted for 3 years and continued for a further period of 3 years. The contract came to an end with effect from 1984; (v) the 1st respondent herein was a Co-operative Society and the applicants were the workers of the said Society under the terms and conditions of the contract; (vi) the appellants are not bound by the terms and conditions of the contract entered into between the 1st respondent and the appellants, thus, the appellants were not the principle employer so as to attract the provisions of the 1970 Act; (vii) the application presented by the applicants was not a bona fide one. It was filed at the instance of the 1st respondent in that earlier the 1st respondent had filed a civil suit in O.S. No. 441 of 1984 on the file of the XVI Additional City Civil Judge, Bangalore, against the appellants and obtained an order of injunction which was later vacated and the suit also subsequently came to be dismissed. After the dismissal of the suit, the 1st respondent instigated the applicants to file a writ petition and thus Writ Petition No. 12769 of 1984 came to be filed; (viii) even on the question of law, the request made by the applicants cannot be considered as their services were made not made use of in the establishment of 2nd appellant/Aerodrome Officer; (ix) under similar circumstances, according to the appellants, the Kerala High Court took a view that Aerodrome Officer is not the principle employer and, therefore, the workers doing porterage services are not the employees of the Aerodrome Officer.
The 1st respondent also filed its counter almost denying the contentions raised by the appellants. The 1st respondent contended that, though it is a contractor, the 2nd appellant is the Principle Employer under the 1970 Act. According to the 1st respondent, there was relationship of employer and employee between the appellants and the applicants. The present denial of the appellants to pay wages to the applicants is an evasive approach.
On these pleadings, the Labour Court raised the following points for consideration :
"(1) Whether there is a relationship of employer and employee between the applicants and the respondent no. 1 ?
(2) Whether the applicants are entitled to the amounts claimed in this application ?"
Before the Labour Court no oral evidence was let in and on the basis of the averments made in the affidavits and the averments made in the pleadings the Labour Court held both points in favour of the applicants.
The material for the Labour Court to arrive at a conclusion that there was relationship of employer and employee between the 2nd appellant and the applicants and the applicants were entitled for the wages are the following :
Exhibit R-6 is a Circular issued by the Government of India, Ministry of Labour wherein it is observed as follows :
"That majority of the principle employers who have registered their establishment under the said Act and Rules have not been complying with the statutory obligations and responsibilities under the said Act and Rules. Apart from the registration of establishment of carrying out work through the contractors, the principle employers are required to apply for amendment of Registration Certificate issued, maintain a register of contractors employed, provide certain welfare amenities for the contract labour in case where the contractor fail to provide the same, etc. Some of these major requirements are mentioned below for your information and for taking necessary action to comply with the same immediately.
1. Maintenance of Register of Contractors in;
2. Amendment of Certificate of Registration as required under Rule 18(4);
3. Provision of Welfare amenities in case of default by the contractor as required under Section 20 of the said Act;
4. Responsibility in the matter of payment of wages to the Contract Labour as specified under Rules 72 and 75;
5. Submission of return in Form VI-B intimating the date of commencement/completion of contract work Rule 81(3); and Exhibit R-5 is a letter dated May 28, 1979 from the Aerodrome Officer to the President of the 1st respondent/Society asking him to apply for licence in the prescribed form to the Assistant Labour Commissioner.
Exhibit R-3 is a letter dated April 18, 1981 addressed to the Secretary by the 1st respondent, regarding the award of licence for Porterage Service rights of Civil Aviation Enclave, Bangalore.
Exhibit R-7 is a letter dated October 8, 1979 from the Aerodrome Officer to the Secretary to the 1st respondent/Society.
Likewise, Exhibit R-8 to 12 are some of the letters.
In view of these letters, according to the Labour Court, the 2nd appellant was the employer as the applicants had to obtain passes and badges and also their work was supervised by the appellants. Further, the appellants had the power to suspend the workers and even to remove them from the porterage services. The appellants had the power to revoke the suspension and direct the workers to wear the particular uniform and badges and also to carry on the instruction given by the appellants from time to time. Further the appellants had the right to control the entry of the porters to the airport enclave and to refuse the issue of licence.
The Labour Court also relied upon some of the decisions of the Supreme Court to hold that there was relationship of Employer and Employee and those are :
In Silver Jubilee Tailoring House & Ors. v. Chief Inspector of Shops and Establishments & Anr.. (1973-II-LLJ-495) the Supreme Court held as follows : (p. 503) "The right to control the manner of work is not the exclusive test for determining the relationship of employer and employee. It is also to be considered as to who provides the equipment. It might that little weight can nowadays be put upon the provisions of tools of minor character as opposed to plant and equipment on a large scale. But as far as tailoring is concerned, the fact that sewing machines on which the workers do the work generally belong to the employer is an important consideration for deciding that the relationship is that of master and servant."
In the same case it has been further observed as follows (p. 503) "Apart from this when the employer has the right to reject the end product if it does not confirm to the instructions of the employer and direct the worker to restitch it, the element of control and supervision is also involved."
Another decision on which the Labour Court placed reliance is of the Division Bench of the Kerala High Court in K. Narayanan v. Divisional Superintendent, Southern Railway, Madurai & Anr. (1980-II-LLJ-359) wherein it is held as follows (pp. 363-364) :
"Providing facilities for handling or carrying luggage of passengers who travel in trains is an obligation cast on the railway administration. The system of licensing porters is adopted in discharge of that obligation. Though they are licensees, the terms and conditions for the issue of licence clearly indicate that the Railway administration has power of supervision over the work of the licensed porters. The work and conduct of the licensed porters are being regulated by the railway administration. The time of work is fixed by the railway administration. They are to receive the payment for the work from the railway administration or as the case may be from the passengers at rates fixed by the railway administration. They are to wear uniforms and badges supplied by the railway administration during the period of work. They are afforded medical facilities so long as they remain licensed porters. The railway administration has disciplinary control over them. The terms of the contract of licence and the overall control vested in the administration are sufficient indicia for holding that the licensed porters are railway servants, employed by the railway administration in connection with the service for a railway as mentioned in Section 3(7) of the Railways Act and, therefore, workmen under Section 2(n) of the Workmen's Compensation Act."
By making reference to the above decisions, the Labour Court came to the conclusion that the facts involved in the said 2 cases were similar to the one involved in the present case and thus held that there was relationship of master and servant between the appellants and the applicants. The Labour Court also placed reliance on the decision of this Court in Verky & Co. v. Regional Labour Commissioner ILR 1985 Kar. 3559. This Court while interpreting the scope of some of the sections of the Minimum Wages Act, 1948, and of the 1970 Act, held that the principle employer is liable to pay the wages if the contractor fails to pay wages legally payable by him.
Aggrieved by the same the appellants herein preferred Writ Petition No. 3513 of 1986 before this Court. Before the learned Single Judge, it was once again contended that : (1) the applications of the applicants was not maintainable under Section 33(2) and (5) of the Act. (2) Permission that was issued by the Aerodrome Officer to the 1st respondent was to carry on the porterage service exclusively for the purpose of regulating and safeguarding the flow of traffic in the aerodrome by way of awarding contract to the contractor and get the work done through the contractor; (3) The Aerodrome Officer was not entrusting any work to the porters, but on the contrary the porters were rendering services to the passengers; (4) There was no relationship of employer and employee between the Aerodrome Officer and the applicants as the applicants were the workers of the 1st respondents/ Society and they were bound by the terms and conditions entered between them and the 1st respondent/society; (5) There was no private of contract between the Aerodrome Officer and the applicants. However, the learned Single Judge refused to accept the contentions raised by the appellants and dismissed the writ petition holding that the facts involved in this case are similar to the facts involved in Silver Jubilee's case (supra) and in Writ Petition No. 3460 of 1986 disposed of on April 25, 1986 which was subsequently reported in (1987-I-LLJ-407), FCI Loading & Unloading Workers Union v. Food Corporation of India. Another reason which prompted the learned Single Judge to dismiss the writ petition was for the reasons given by the Supreme Court in Silver Jubilee Tailor's case (supra) wherein it is held that the test of control is one of the factors to determine whether there is relationship of employer and employee. According to the learned Single Judge, in the present case control over the porters carrying on the porterage service in the Aerodrome enclave was very much available to the Aerodrome Officer including the method of selection and the power to take disciplinary action against them. For the reasons, the learned Single Judge held that there was relationship of employer and employee. Regarding the other contention that Airport is not an industry, the learned Single Judge rejected the same by placing reliance on the decision of the Supreme Court in Rajappa's case (1978-I-LLJ-349). According to him, the 2nd appellant having obtained the certificate under Section 7 of the 1970 Act and the Contractor having obtained licence under Section 12 of the same Act, it is not open for the 2nd appellant to contend that the Airport Authority is not an 'industry' under the Act. Regarding the decision rendered by the Kerala High Court in Kerala Civil Aviation General Worker's Co-operative Society v. Union of India (1984-II-LLJ-314), the learned Single Judge held that the same is not applicable to the present case on the ground that was a case where the members of the Union were the employees of the Society fell within the ambit of the definition of 'Contract Labour' and were entitled to be absorbed in the Civil Aviation Department. For the above reasons, the learned Single Judge held that the findings given by the Labour Court as correct and thus dismissed the writ petition.
Challenging the same, the appellants have preferred this writ appeal with a request to set aside the order of the Single Judge and the order of the Labour Court allowing the writ appeal on the same grounds which were urged in the writ petition.
3. After hearing both the sides and going through the records, we are of the opinion that the views of the Labour Court and the Single Judge are incorrect.
4. Before going into the question whether there was relationship of employer and employee between the appellants and the applicants, it is proper to extract some of the provisions of the 1970 Act which are relevant to know who are the Principle Employer, Contractor and the workmen.
Section 2(1)(c) of the 1970 Act defines 'Contractor' thus :
"'Contractor' in relation to an establishment means a person who undertakes to produce a given result for the establishment, other than mere supply of goods or articles of manufacture to such establishment, through contract labour or who supplies contract labour for any work of the establishment and includes a sub-contractor."
Section 2(1)(g) defines 'principle employer' thus :
"Principle employer" means -
(i) in relation to any office or department of the Government or a local authority, the head of that office or department or such other officer as the Government or the local authority, as the case may be, may specify in their behalf;
(ii) in a factory, the owner or the occupier of the factory and where a person has been named as the manager of the factory under the Factories Act, 1948 (63 of 1949), the person so named.
(iii) in a mine the owner or agent of mine and where a person has been named as the manager of the mine, the person so named;
(iv) in any other establishment, any person responsible for the supervision and control of the establishment."
Section 2(1)(i) defines 'workman' thus :
"'Workman' means any person employed in or in connection with the work of any establishment, to do any skilled, semi-skilled or un-skilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, but does not include any such person -
(A) who is employed mainly in a managerial or administrative capacity; or (B) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature; or (C) who is an out-worker, that is to say, a person to whom any articles or materials are given out by or on behalf of the principal employer to be made up, cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for the purpose of the trade or business of the principal employer and the process is to be carried out either in the home of the out-worker or in some other premises, not being premises under the control and management of the principal employer."
Section 7 deals with Registration of certain establishments. It reads thus :
"(1) Every principal employer of an establishment to which this Act applies shall within such period as the appropriate Government may, by notification in the Official Gazette fix in this behalf with respect to establishment generally or with respect to any class of them, make an application to the registering officer in the prescribed manner for registration of the establishment;
Provided that the registering officer may entertain any such application for registration after expire of the period fixed in this behalf if the registering officer is satisfied that the applicant was prevented by sufficient cause from making the application in time.
(2) If the application for registration is complete in all respects, the registering officer shall register the establishment and issue to the principal employer of the establishment certificate of registration containing such particulars as may be prescribed."
Section 8 deals with revocation of registration in certain cases that, if the registering officer is satisfied either on a reference made to him in this behalf or otherwise, that the registration of any establishment has been obtained by misrepresentation or suppression of any material fact, or that for any other reason the registration has become useless or ineffective and, therefore, requires to be revoked, the registering officer may after giving an opportunity to the principal employer of the establishment to be heard and with the previous approval of the appropriate Government, revoke the registration.
Section 9 deals with the effect of non-registration that no principal employer of an establishment, to which this Act applies, shall (a) in the case of an establishment required to be registered under Section 7 but which has not been registered within the time fixed for the purpose under that section, (b) in the case of an establishment the registration in respect of which has been revoked under Section 8, employ contract labour in the establishment after the expire of the period referred to in clause (a) or after the revocation of the registration referred to in clause (b), as the case may be.
Section 12 deals with the leasing of contractors that, (1) with effect from such date as the appropriate Government may, by notification in the Official Gazette appoint, no contractor to whom this Act applies, shall undertake or execute any work through contract labour except under and in accordance with a licence issued in that behalf by the licensing officer, (2) subject to the provisions of this Act, a licence under sub-section (1) may contain such conditions including, in particular conditions as to hours of work, fixation of wages and other essential amenities in respect of contract labour as the appropriate Government may deem fit to impose in accordance with the rules, if any, made under Section 35 and shall be issued on payment of such fees and on the deposit of such sum, if any as the security for the due performance of the conditions as may be prescribed.
Section 13 deals with the grant of licenses that (1) Every application for the grant of a licence under sub-section (1) of Section 12 shall be made in the prescribed form and shall contain the particulars regarding the location of the establishment, the nature of process, operation or work for which contract labour is to be employed and such other particulars as may be prescribed, (2) the licensing officer may make such investigation in respect of the application received under sub-section (1) and in making any such investigation the licensing officer shall follow such procedure as may be prescribed, (3) a licence granted under this Chapter shall be valid for the period specified therein and may be renewed from time to time for such period and on payment of such fees and on such conditions as may be prescribed.
Section 14 deals with revocation, suspension and amendment of licenses that (1) if the licensing officer is satisfied, either on a reference made to him in this behalf or otherwise, that (a) a licence granted under Section 12 has been obtained misrepresentation or suppression of any material fact, or (b) the holder of a licence has without reasonable cause, failed to comply with the conditions subject to which the licence has been granted to has contravened any of the provisions of this Act, the licensing officer may after giving the holder of the licence an opportunity of showing cause, revoke or suspend the licence or forfeit the sum, if any, or any portion thereof deposited as security for the due performance of the conditions subject to which the licence has been granted, (2) subject to any rules that may be made in this behalf, the licensing officer may vary or amend a licence granted under Section 12.
Section 21 deals with the responsibility for payment of wages that (1) a contractor shall be responsible for payment of wages to each worker employed by him as contracted labour and such wages shall be paid before the expire of such period as may be prescribed, (2) every principal employer shall nominate a representative duly authorised by him to be present at the time of disbursement of wages by the contractor and it shall be the duty of such representative to certify the amount paid as wages in such manner as may be prescribed, (3) it shall be the duty of the contractor to ensure the disbursement of wages in the presence of the authorised representative of the principal employer, (4) in case the contractor fails to make payment of wages within the prescribed period or makes short payment then the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the contractor and recover the amount so paid from the contractor either by deduction from any amount payable to the contractor under any contract or as as a debt payable by the contractor.
Section 24 of the 1970 Act prescribes that, if any person contravenes any of the provisions of this Act or of any rules made thereunder for which no other penalty is elsewhere provided, he shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to one thousand rupees, or with both.
From the above definition of "workman" it is clear that the workman has to establish that he was 'employed in or in connection with the work of any establishment'. In the instant case, it is not in dispute that the porterage service, i.e., carrying the luggage of the passengers etc. was neither the work in the establishment nor in connection with any of the functions of the Airport. At best it can be said that carrying out the porterage service was on the one hand to regulate and to safeguard the safety to the luggage of the passengers and on the other hand to avoid any traffic congestion. To avail the benefit under the Act, it should be proved that the establishment had registered itself as the principal employer under Section 7 of the 1970 Act and the contractor had obtained the licence under Section 12 of the 1970 Act. In the instant case there is nothing to show that the Aerodrome Officer had obtained the registration certificate as required under Section 7. Further, the applicants were the workers of the Co-operative Society. There service conditions were governed by the terms and conditions of the bye-laws of the Society. There was no private of contract between the appellants and the applicants. The licence that was obtained by the 1st respondent expired in the year 1984 itself. Subsequently the licence was issued to some other person. In any way, if the applicants were aggrieved, it was for them to approach the 1st respondent for necessary relief and not the appellants. Apart from these, the approach of the learned Single Judge and the Labour Court to draw sustenance from some of the decisions referred to in the said orders is quite incorrect. On the other hand the points involved in the present case are almost identical to the case of the Kerala High Court in Kerala Civil Aviation's case, (supra) wherein it is held that the workmen doing porterage in an airport are not the workmen of the airport and the airport authority is not their principal employer and thus there does not exist any relationship of employer and employee. The Civil Aviation Department who grants the privilege to do porterage in its premises cannot be considered to be the principal employer within the meaning of the 1970 Act, as the work done by the contract laborer is not part of the work of the establishment. Para 3 of the decision in Kerala Civil Aviation's case reads thus (pp. 316-318) "The only other ground urged on behalf of the petitioners in these original petitions is that the members of the Union as well of the Society are workmen falling under the definition of 'contract labour' in Section 2(1)(b) of the Central Labour (Regulation and Abolition) Act, 1970, (Act 37 of 1970) and they are therefore entitled to be absorbed in the service of the Civil Aviation Department or at any rate they are entitled to be engaged in the work of the porterage in the Civil Aerodrome, Trivandrum. The contract in the present case is relating to a licence or privilege that the Civil Aviation Department is conferring on the contractor. The work involved is not a work in connection with the establishment and the Civil Aviation Department is not obliged to do the porterage service to the air travel passengers. By the award of the contract the contractor is given the privilege or a licence to enter the premises of the Trivandrum Airport for the purpose of rendering service to the air travel passengers and earn wages for the work of porterage upto the point of delivery of goods and baggages at the booking counter and removal of the same from the delivery point. It cannot therefore be said that by doing such work the members of the Union and the Society had been rendering any service to the Civil Aviation Department. On the other hand they were only employees of the respective contractors who were given the privilege of entering the airport area for the purpose of doing the service at a price settled on acceptance of the highest tender for such privilege or licence. The Civil Aviation Department is not therefore in any way bound to absorb the members of the Society or the Union into its service. The Civil Aviation Department is not obliged to insist that the successive contractors should employ these workmen. It is the case of the petitioners in these writ petitions that the members of the Union as well as of the Society are contract labourers entitled to the privilege of the Contract Labour (Regulation and Abolition) Act, 1970. As per the said 'Act' a workman shall be deemed to be employed as 'Contract Labour' in or in connection with the work of an establishment when he is hired in or in connection with such work by or through a contractor, with or without the knowledge of the principal employer (vide Section 2(1)(b)). The Act, as its preamble shows, is to regulate the employment of contract labour in certain establishments and to provide for abolition of contract labour in certain circumstances. As per sub-section (4) of Section 1 the Act applies to the establishments mentioned therein as well as to every contractor of establishment who employs the number of workmen referred to in clause (b). The Expressions 'contract labour' 'contractor', 'establishment' and 'principal employer' are defined in Section 2 of the Act. Section 3 provides for the constitution of the Central Advisory Contract Labour Board by the Central Government and Section 4 deals with the constitution of a similar Advisory Board by the State Government. Chapter III deals with the registration of Establishment employing contract labour. Section 10 empowers the appropriate Government after consultation with the Central Board or the State Board, as the case may be, to prohibit by notification if the Official Gazette employment of contract labour in any process, operation or other work in the establishment. Chapter IV relates to the licensing of contracts and Chapter V provides for the welfare and health of the contract labour. Chapter VI relates to penalties and procedure Chapter VII deals with miscellaneous matters. Section 29 makes it obligatory to maintain the registers and records as provided for therein. Section 21 makes it obligatory on every principal employer to nominate a representative duly authorised by him to be present at the time of disbursement of wages by the contractor. The sub-section also casts a duty on such representative to certify the amounts paid as wages prescribed by the rules. Sub-section (4) makes the principal employer liable to pay wages in full or the unpaid balance due, as the case may be, in case the contractor fails to make the payments within the period prescribed. It also enables the principal employer to recover from the contractor the amount so paid to the contractor labour. The Act does not provide for permanency of employment of contract labour. A succeeding contractor is not obliged to absorb the workers of a previous contractor into his service. The Civil Aviation Department who sells the privilege to do porterage in its premises cannot be considered to be the principal employer within the meaning of the Act, for, the work done by the contract labour is not part of the work of the establishment. The members of the Union were the employees of the Society and the Society was the contractor on whom the licence or the privilege to enter the premises of the airport and do porterage service for the air travel passengers was conferred for a period of two years commencing on December 6, 1980. The rights if any of the contract labour are only against their employer, viz. the Society. If on the other hand the Society is to be understood as consisting of its members as contended by the counsel for the petitioner, the members of the society do not fall within the definition of 'contract labour'. They were only persons doing service on behalf of the Society of which they are members."
5. In order to determine whether the applicants were the workmen of the appellants and thus there was the relationship of employer and employee between the appellants and the applicants, both the learned Single Judge and the Labour Court should have considered, firstly, whether there was a contract of employment between the appellants and applicants through the 1st respondent atleast indirectly. Secondly whether the porterage service was incidental or integral part of the functions of the airport authorities. The Labour Court and the learned Single Judge committed an error to arrive at a conclusion that there was relationship of employer and employee between the appellants and the applicants, merely because the appellants had a little control over the activity and attitude of the applicants while discharging their duties of porterage service, without noticing that mere exercise of control is not sufficient to hold that the authority so exercising the control is a principal employer, without noticing from where that power of control emerges. So also, the power to suspend or to recommend to remove from service is also not an important factor. Because the test of control in order to establish relationship of master and servant may be a relevant factor, but it is wrong to say that it is the decisive factor in all cases.
6. Since both the Labour Court and the learned Single Judge arrived at a conclusion that there existed relationship of employer and employee between the appellants and the applicants on the basis of control and supervision it has to be held that the said approach is an incorrect one. Hence, the findings and the orders passed by the learned Single Judge and Labour Court deserve to be set aside.
7. Accordingly, this writ appeal is allowed and the award passed by the Labour Court is quashed reversing the judgment of the learned Single Judge. No costs.