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4. Several tests have been prescribed in the text-books on the subject. In John Bowers "A Practical Approach to Employment Law", Second Edition, at pages 11 to 14, the following tests have been indicated : (a) The control test (b) The integration test (c) The economic reality test and in so far as this country is concerned, the relevant tests have been laid down by various decisions of the Supreme Court and the matter is not res integra. In Dharangadhara Chemical Works Ltd v. State of Saurashtra (1957-I-LLJ-477) it was held that the correct method of approach would be to consider whether having regard to the nature of the work, there was due control and supervision by the employer. It was also held that a person can be a workman even though he is paid not per day but by the job. The fact that Rules regarding hours of work etc., not being applicable to such workman as well as the manner and the method of their work not being regulated by any directions given by the management was held to be irrelevant. The Court pointed out that the broad distinction between a workman and independent contractor lies in that while the former agrees himself to work, the latter agrees to get other persons to work. It was held that a person who agrees himself to work and does so work is a workman, and does not cease to be such by reason merely of the fact that he gets other persons to work along with him and that those persons are controlled and paid by him. It was ruled that what determines whether a person is a workman or an independent contractor is whether he has agreed to work personally or not and if he has, then he is a workman and the fact that he takes assistance from other persons would not affect his status. In that case, it was also held that 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 and the decision of the Industrial Tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless at the least it is shown to be fully unsupported by evidence.

7. In Hussainbhai v. Alath Factory Tozhilali Union (1978-II-LLJ-397) V. R. Krishna Iyer, J., applied the test of economic control and he held that where a worker or group of workers labours to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer, as he had the economic control over the workers' subsistence, skill and continued employment. On the facts and circumstance of the case it was held that there was no change in the position just because there were intermediaries who had engaged the actual workers for service. In M/s. Shining Tailors v. Industrial Tribunal II U. P. (1983-II-LLJ-413) it was held that tailors working on piece-rate basis in a big tailoring establishment were workmen of the owner of the establishment. The Court cautioned that every piece-rated workman is not an independent contractor and that piece-rated payment meaning thereby payment correlated to production is a well-recognised mode of payment to industrial workmen. Once again, the employer's right to reject the end-product if it does not conform to the instruction of the employer was indicated as providing an element of control and supervision.

15. Learned counsel for the petitioner invites our attention to the provisions of Section 10 of the Banking Regulation Act, 1949. Under Section 10(1)(b)(ii), no banking company shall employ or continue the employment of any person whose remuneration or part of whose remuneration takes the form of commission or of a share in the profits of the company. The proviso contains the explanation that any commission to any broker, cashier, contractor, clearing and forwarding agent, auctioneer or any other person, employed by the banking company under a contract otherwise than as a regular member of the staff of the company will not be governed by the Section. According to learned counsel, when the Bank was statutorily prevented from employing any person for remuneration in the form of commission, and the Bank has entered into a contract of agency with a particular person for the purpose of making collections on behalf of the Bank from the customers of the Bank, it should be considered as a pure and simple contract for service and not a contract of service. According to learned counsel, the Bank cannot be presumed to have committed an illegality by contravening the provisions of the Banking Regulation Act. In our opinion, this contention is like seeking to put the cart before the horse. The question before us is whether on the terms of the employment as found in the written contract as well as the oral evidence adduced before the Tribunal, the second respondent is a workman as defined by the Act. If the definition contained in the Industrial Disputes Act in satisfied and if the various tests laid down by the Supreme Court are fulfilled, then there cannot be any doubt that the second respondent will be the workmen. Just because the Bank is prevented from employing a person on commission, the second respondent will not cease to be a workman as defined by the Act. The provisions of the Banking Regulation Act will not enable the Bank to contend that the second respondent must be held to be an independent contractor even if the second respondent satisfies the definition of a workman under Section 2(s) of the Industrial Disputes Act. Hence, this contention has to be rejected.

20. Learned counsel for the petitioner brings to our notice a later judgment of the Supreme Court in which a treasurer of the Bank was held to be an independent contractor and not a servant thereof. That case was reported in I. T. Commr. U. P. v. Manmohan Das (AIR) 1966 S.C. 789. On the facts of the case, the Supreme Court held that the person concerned was not an employees but only an independent contractor. Referring to the earlier judgment in Piyare Lal's case (supra), the Court distinguished the facts of that case, on the footing that there was no covenant in the case before them which either expressly or impliedly conferred upon the Bank such control and supervision over the work done by the Treasurer, and the agreement was not liable to summary determination, and also held that the duties, liabilities and responsibilities were to be such as either by custom or contract usually devolve upon the Treasurers and those which were specified in the agreement. Hence, the Supreme Court found that the ruling in earlier case could not apply to the latter case.