Common Concepts

Concepts used in labour laws
A common criticism of labour laws in India is relates to the multiplicity of

the laws and lack of uniformity in the definitions adopted in the laws. The
Council of Indian Employers in a document prepared for a discussion on the
Administration of Labour laws observed: Over the years, about hundred
central and State labour Acts have been added to our statute book and
many of their provisions vary from one another The concepts and terms
used in various enactments have been differently defined that one wonders
what exactly is the real intention of the legislature in so far as coverage of
workers is concerned. For instance, the definition of the term workman is in
terms of salary drawn by him, while in some enactments the coverage the
coverage if of those who draw wages upto Rs.500, in some others the limit
is Rs.1000 and in still others Rs.1600. Take for instance, the definition of the
term Shops and Commercial establishments . While ESI authorities in Delhi
have gone by the definition of shops generally understood but in
Maharashtra the authorities under the same a
Act are insisting on the coverage of commercial establishments also. The
multiplicity of interpretations arises out of the ambiguity of terms and
concepts used .
The Second National Commission on Labour stated that One of the

important steps that one needs to take in rationalizing and simplifying the
existing labour laws is in the area of simple definitions of terms that are in
constant use; such terms include worker wages and establishment. The
commission made certain suggestions in this regard .
A few years back the National Labour Law Association undertook a major
research project called Simplification Rationalisation and Consolidation of
Labour Laws at the end of which produced the India Labour Code, 1994
consolidating all the existing laws . The salient features of the Code were as
follows:
The India Labour code was in the nature of a general law applicable to all
classes of employees. It represents the minimum labour standards to be
observed in the employment of men and women in any activity. If and when
adopted it will replace all the existing laws .
The code fills in the gaps in the existing laws by making provision for
matters for which there is no provision in the existing laws such as follows
Rights of workers
Employment and training
Housing
Workers Participation in management
Labour Administration , etc
It contains also special provisions for the labour released from bondage,
agricultural workers and other categories of unorganized labor rural as well
as urban.
It envisages special provisions being made in respect of those categories of
employees for whom or in respect of those aspects for which such special
provisions are considered necessary.
The Code uses the term employee wherever the term worker is used in
the existing laws and the term activity wherever the term industry is used in
the existing laws so as to broaden the application of the relevant legal
provisions.
There is a common and uniform set of definitions applicable to the entire
Code except where the context requires a different definition
Similarly there is a common provision for the enforcement of labour laws
settlement of claims penalties for contravention of laws etc..
In this publication we have tried to compile the definitions of the various
terms used in the existing laws and their interpretation by the Courts.
Definitions suggested in the India Labour code where available are also
given .
Definitions
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
used in the exiting laws
Definition of employment
Definition of employed
Ingredients of employment
Contract of Service
Master and servant
Contract of Service vs. Contract for Service
Definition of employer
Definition of principal employer
Definition of intermediate employer
Definition of agent
Definition of contractor
Definition of occupier
Definition of owner
Definition of employee
Definition of workman and worker
Definition of building worker
Definition of inter-state worker
Definition of newspaper employee
Definition of non-journalist newspaper employee
Definition of motor transport worker
Definition of seaman
Definition of sales promotion employee
Definition of working journalist
Definition of establishment
Definition of industrial establishment or undertaking
Definition of industrial or other establishment
Definition of newspaper establishment
Definition of establishment in private sector
Definition of establishment in public sector
Definition of factory
Definition of industry
Definition of industrial premises
Definition of godown
Definition of mine
Definition of open cast working
Definition of plantation
Definition of workshop
Definition of shop
Definition of restaurant
Definition of theatre
Definition of premises
Manufacturing process
Definition of work
Definition of Employment
The term employment has been defined in the Emigration Act, 1983 (Act
No31 of 1983) to mean any service, occupation or engagement (not being
service occupation or engagement under the Central Government or a State
Government) in any kind of work for wages or for reward and all its
grammatical variations and cognate expressions should be construed
accordingly1
The term employment refers to a condition in which a man is kept occupied
in executing any work and it means not only an appointment to any office for
the first time but also the continuity of the appointment 2
The concept of employment brings in contract of service between employer
and employee3
To be a worker there must be a contract of service and not a contract for
services. There must also be a right of supervision and control as to the
manner in which the work has to be done 4. It is important to establish that
the person is employed under a contract of service 5. When the services of a
1 Emigration Act, 1983 Act No. 31 of 1983, Section 2 (h)

2 SukhanandanThakur v State of Bihar ;AIR 1957 Pat 621
3 Shankar Balaji Waje v State of Saurashtra (1962) 1 LLJ 119
46 (a) AIR 1958 SC 388
6b AIR 1959 MAD 362
6C Niligirs Cooperative Marketing Society v. Chief Inspector of Factories
AIR 1959 (Mad ) 203
5 AIR 1964 (HC) Bom 236
worker are performed in the employers factory that is itself an indication that
he is under a contract of service 6 .
The real test for deciding whether the contact is of employment or not is to
find out whether the agreement was for personal labor of the person
engaged.7.
2. Definition of employed
According to the Mines Act, 1952, Act No 35 of 1952 , a person is said

to be employed in a mine who works as the manager or who works under
appointment by the owner agent or manager of the mine or with the
knowledge of the manager whether for wages or not(i) in any mining operations (including the concomitant operations of handling
and transport of minerals up to the point of despatch and of gathering sand
and transport thereof to the mine);
(ii) in operations or services relating to the development of the mine including
construction of plant therein but excluding construction of buildings , roads
wells and any building work not directly connected with any existing or
future mining operations;
(iii)in operating , servicing maintaining, or repairing any part of any machinery used in or about the mine;
(iv) in operations, within the premises of the mine, of loading for despatch of minerals;
(v) in any office of the mine;

(vi) in any welfare , health, sanitary or conservancy services required to be provided under the Act or
watch and ward, within the premises of the mine excluding residential area; or
6 AIR 1974 SC 378a 1969 I SCC 704
7 Dharangadhar Chemical Works Ltd. v State of Saurashtra (1957) 1 LLJ 447

SC
(vii) in any kind of work whatsoever which is preparatory or incidental to , or

connected with, mining operations.8
The word employed as used in the various Acts is capable of two meanings:
(1) in the sense of being engaged or occupied and also (2) in the sense of a
contract of service being established between the workers and the owner or
occupier of the factory ; it has been used in the latter sense in the Factories
Act, 1948, Act No.63 of 1948.9
Two different meanings are suggested to the expression employed. One is

that the expression employed means merely engaged; and the other is that
the expression means no doubt engaged, but it is something more than that,
it involves the connotation of the relationship between a person employed
and the employer as being one of master and servant 10
The expression employed has at least two known connotations but as used
in the definition of the term workman in the Industrial Employment
8 Mines Act, 1952 ( Act No.35 of 1952), Section 2 (1) (h)

9 Ramnath Shankarlal Chandak v State of Bombay (1953) 1 LLJ 329
10 AIR 1955 Bom 209
(Standing Orders) Act, 1946, Act 20 of 1946, the context would indicate that
it is used in the sense of a relationship brought about by express or implied
contract of service in which the employee renders service for which he is
engaged by the employer and the latter agrees to pay him in cash or kind as
agreed between them or statutorily prescribed. It discloses a relationship of
command and obedience. The essential condition of a person being a
workman within the terms of the definition is that he should be employed to
do the work in that industry and that there should be, in other words, an
employment of his by the employer and there should be a relationship
between the employer and him as between employer and employee or
master and servant .11
The word employed is used with reference to the person employed and also
to the person by whom the employment is made. 12
The expression employed (referred to in Section 2(1) of the Factories Act, 1948) does not necessarily
involve the relationship of master and servant . If one is employed for wages there may be a relationship
of master and servant . There are many other conceivable cases in which a relationship of master and
servant may not exist at all ; yet the person would continue to be a worker under the Act. 13 The expression
employed does not necessarily involve the relationship of master and servant .14
The expression employed used in Section 2 (s) of the Industrial Disputes Act has two known
connotations. The context would indicate that it is used in the sense of a relationship brought about by
express or implied Contract of service in which the employee renders service for which he is engaged by
the employer and the latter agrees to pay him in cash or kind as agreed upon between them or statutorily
prescribed. It discloses a relationship of command and obedience. The essential condition of a person
being a workman within the term of the definition is that he should be employed to do the work in the
industry and that there should be an employment of him by the employer and that there should be
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 workman within the definition of
the term as contained in the Act. Now where a contractor employs a workman to do the work which has
contracted with a third person to accomplish, on the definition as it stands, the workman of the contractor
11 Workmen v Food corporation of India (1985) 2 SCC 136; 1985 Lab IC 876
AIR 1985 SC 670 (1985) 66 FJR 453, relying on Dharangadhara Chemical
works Ltd. v State of Saurashtra 1957 SCR152; AIR 1957 SC 264; (1957) I LLJ
477
12 Chanan Singh v E.S.I. Corporation 1964 ILLJ 314 (HC ) Punj
13 State v Alisaheb Kashim Tamboli AIR 1955 (Bom) (HC) 209; 1955 II LLJ
( Bom) ( HC) 182; 1955 Cri LJ 932 ( Bom ) (HC)
14 State v H.B.Namjoshi AIR 1956 (Bom (HC) 1891
would not without something more become the workman of the third person. An employee is generally
defined as an individual who has entered into or works under a contract, whether expressed or implied,
oral or in writing, with a view to rendering service for remuneration.15
The Payment of Wages Act, 1936, Act No.4 of 1936 defines the term
employed person as including the legal representative of a deceased
employed person16
3. Ingredients of Employment
The concept of employment involves three ingredients:

i
Employer one who employs, i.e., engages the services of other

persons;
ii
Employee- one who works for another for hire; and
iii
Contract of employment- the contract of service between the employer
and the employee where under the employee agrees to serve the
employer subject to is control and supervision. 17
The concept of employment implies a contract of service between employer
and employee The relationship of employer and employee is constituted by a
contract , express or implied between the employer and the employees. A
contract of service is one in which a person undertakes to serve another and
to obey his reasonable orders within the scope of the duty undertaken 18The
terms of contract creating such relationship of employment may be express
15 Workmen v food corporation of India 1985 2 SCR 1065; 1995 2 LLJ 4
16 Payment of Wages Act, 1936 Act No.4 of 1936 s 2 (i).The Act does not
define the expression employed person; it says only that it includes the legal
representative of the employed person
17 Chintaman Rao v State of MP 1958 SCR 1340; AIR1958 SC 388, 391; 1958
SCJ 753; (1958) 2 CR LLJ 803; (1958-59) 14 FJR 103
18 Vamplew v Parkgate Irona nd Steel Co. (1903) 1 KB 851; smith v General
Motor Cab Co. (1911) AC 188 (HL) ; Williams v Larsen Ltd; (1928) 21 BWCC
339 (CA)
or implied, i.e., a contract of employment may be inferred from the conduct

which goes to show that such a contract was intended although never
expressed.19In other words, creation of relation need not be, by written or
verbal consent;20 it may and very often does rest, on the implications of
circumstances.21Any such inference is open to rebuttal 22 Proof of existence of
the relation can be made out as fairly and fully by circumstantial evidence
as it can be by evidence which is direct. 23.
19 Thorn v London corporation (1875 LR 10 Exch 112 (123), per Brett - on

appeal (1876) 1 AC 120 (HL) See also Fitzpatrick v Evans & co. (19901 ) 1 KB
576 affirmed in appeal (1902) 1 KB 505
20 Thacker coal and Coke Co. v Burke 5 LRA (NS) 1091-8 Annotated cases
885
21 Pugmire v Oregon Short Line R.Co. 13 LRA (NS) 565 ; 14 Annotated Cases
384
22 R v Pendleton ( Inhabitants) (1812 ) 15 East 449 per Lord Allenborough
CJ ; Broadshaw v Hayward(1842) Car and M. 591
23 Kassler s Estate 41 A, St. rep 74
4.Contract of Service
The decision of the question as to the relationship of employer and employee
must be determined in the light of all relevant facts and circumstances and it
would not be expedient to lay down any particular test as decisive in the
matter.24
.There are four indicia of contract of service:
i
the masters power of selection of his servant;
ii
the payment of wages or other remuneration
iii
the masters right to control the method of doing the work; and
iv
the masters right of suspension or dismissal 25
In particular, many cases have stressed the importance of the right to control
not only what work the employee is to do, but also the manner in which the
work is to be done.26 However, none of these tests is of universal
application.27 It essentially depends on the type of persons employed and
where superior staff with professional qualifications are employed such as
senior hospital staff 28 or eminent journalists,29 the employer can have little
control of what the employee is to do and no control at all of the manner in
which it is to be done. In other words, the employer may have complete
control over the manner in which a worker is to work for him and the work
24 Kirloskar Oil Engines v Hanmant Laxman Bibawe ; (1963)3 SCR 514;
(1963) 1 LLJ 126
25 Short v J.W.Henderson Ltd. 1946 AC24 (HL); (1946 ) 62 TLR 427
26 Sadler vHenlock 1855 4 E. & B 570 ; Yewens v Noakes 1880 6 QBD 530 ;
Simmons v Heath Laundry Co. 1910 1 KB 543
27 Cassidy v Ministry of health 1951 2 KB 343; 1951 1 all ER 574CA;
Stevenson and Pendlebury Borough council 1965 2 All ER 349; 1965 1 WLR
576 dc; Ready Mixed Concrete ( South East ) Ltd. v Minister of Pensions and
National Insurance 1968 1 QB 497; 1968 1 All ER 433; Whitaker v Minister
of Pensions and National Insurance 1967 1 QB 156; 1966 3 all ER 208; 1968
1 WLR 1749; Bloff v Pressdram Ltd. 1973 1 All ER 24; Fall ( Inspector ofTaxes )
v Hitchen 1973 1 All Er 368; 1973 1 WLR 286
28 Collins v Hertfordshire County council 1947 KB 598; 1947 1 All ER 633
29 Beloff v Pressdram Ltd. 1973 1 All Er 241
may be of a kind usually done by an employee but the worker may

nevertheless be an independent contractor and such cases may be known as
a labor only sub contractor.30 One test which emerges from the recent
authorities is whether on the one hand the employee is employed as part of
the business and his work is an integral part of the business, or whether on
the other hand his work is not integrated into the business but is only
necessary to it 31 or is it is done by him on his own account
5.Master and servant
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 should do it 32The
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. 33 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. 34The
question whether the relationship between the parties is one as between
30 Ready Mixed Concrete ( South East ) Ltd. v Minister of Pensions and
National Insurance 1968 2 QB 497: 1968 1 All ER 433: Re.C W and A.L.
Hughes Ltd. 1966 2 All Er 702; 1966 1 WLR 1369; Construction Industry
Training Board v Labor force Ltd. 1970 3 All ER 202 D.C; Jones V Minton
Construction Ltd. 1973 15 KLR 309
31 Stevenson Jordan and Harrison Ltd. v Macdonald and Evans 1952 1 TLR
101 CA; Bank voorHandel en Scheepwaart NV v Slatford 1953 1 QB 248 :
1952 2 All Er 956CA
32 Dharangadhara Chemical Works ltd. v State of Saurashtra ; 1957 SCR 152;
AIR 1957 SC 264; 1957 SCJ 208; (1957) 1 llj 477; (1956-57 ) 11 FJR 439.See
also AIR 1962 SC 517; (1962) 1 LLJ 119; AIR 1966 SC 264; (1964 ) 2 LLJ 633;
26 FJR 238; followed in AIR 1957 SC 444 and AIR 1960 SC 997
employer and employee or between master and servant is a pure question of

fact depending on the circumstances35
The identifying mark of the servant is that he should be under the control or
supervision of the employer in respect of the details of the work 36
The most satisfactory test to ascertain who is the employer at any particular
time is to ask who is entitled to tell the employee the way in which he is to do
the work upon which he is engaged 37
The test which is uniformly applied to determine the relationship of master

and servant is the existence of a right of control in respect of the manner in
which the work is to be done. The test is, however , not accepted as
universally correct and there are many contracts of service in which the
master cannot control the manner in which the work is to be done. Though
the right to control the manner of doing the work continues to be the prima
facie test ,the nature or extent of control to constitute the relationship varies
from business to business and is by its very nature incapable of precise
determination. The correct approach will be to consider whether having
regard to the nature of work there was due control and supervision 38
36 Chintaman Rao v State of Madhya Pradesh (1958) II LLJ 252 (256) (SC)
37 Mercy Docks & Harbour Board v Coggins & Griffith Liverpool Ltd (1947) AC
1 (CA) ; (1946) 2 All ER 345
38 Dharangadhara chemical Works v State of Saurashtra 1957 SCR 152; AIR
1957 SC 264;1957 SCJ 208;(1957) 1 LLJ 477 ; (1956-57) 11 FJR 439
The test of control of the manner of work was not universally correct. There
are many contracts of service where the master could not control the manner
in which the work was to be done as in the case of a captain of a ship. 39
The test of being a servant does not rest nowadays on submission to orders.
It depends on whether the person is part and parcel of the organisation, 40
The test to be applied was not that of power of control but whether the men
were employees as a matter of economic reality. 41
A master is one who not only prescribes to the workman the end of his work,
but directs or at any moment may direct the means also , or, as it has been
put, retains the power of controlling the work, a servant is a person subject
to the command of his master as to the manner in which he shall do the work
An independent contractor is one who undertakes by produce a given
result but so that in the actual execution of the work he is not under the order
or control of the person for whom he does it, and may use his own discretion
in things not specified 42
6.Contract of service vs contract for service
The distinction between contact of service and contract for service is that in
one case the master can order or require what is to be done, while in the
39 Cassidy v Ministry of health (1951) 1 All Er 574 (579); (1951) 2 KB 343

40 Bank Voor Handel en Scheepvaart NV v Slatford ; (1952) 2 All Er 956(971);
(1953) 1 QB 279
41 United States v Silk; 331 US 704 (1947); 91 Law ed 1757
42 Shivanandan Sharma v Punjab National Bank Ltd; AIR1955 SC404; 8
FJR150; (1955) 1 LLJ 688
other case he can not only order or require what is to be done , but how
itself it should be done.43
The test of the distinction between a servant and an independent contractor

is the existence of a right of control over the agent in respect of the manner
in which his work is to be done. A servant is an agent who works under the
supervision and direction of his employer; an independent contractor I one
who is his own master. A servant is a person engaged to obey his employers
orders from time to time; an independent contractor is a person engaged to
do certain work; but to exercise his own discretion as to the mode and time
of doing it- he is bound by the contract, but not by his employers orders. 44
Under a contract of service, a man is employed as a 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. 45
A contractor is a person who, in the pursuit of an independent business

undertakes to do specific jobs of work for other person without submitting
himself to their control in respect of the details of the work . There is
therefore a clear cut distinction between a contractor and a workman. The
identifying mark of the latter is that he should be under the control and
supervision of the employer in respect of the details of work. 46
43 Collins v Hertfordshire County council (1947) 1 All E.R. 633 (638); See also
Stevenson Jordan & Harrison Ltd.Macdonald & Evans (1952) 1 TLR101(111),
per Lord Denning; See also Halsbury Laws of england ( Third Edition) Vol 25,
para 872Contract of Service at p. 452 , para 878 Conract for work and
labor and for service, p. 497-498, para 959 Employer and contractor
Chintaman Rao V State of Madhya Pradesh (1958) II LLJ 252 (256) SC per
Subba Rao J
44 Salmonds Treatise on the Law of Torts 11th Edition, p.98
45 Stevenson , Jordan & Harrison Ltd. v Macdonald & Evas (1952) 1 TLR 101
(111) (CA) per Lord Denning
46 Chintaman Rao v State of Madhya Pradesh AIR 1958 SC 388; 1958 SCR
1340; (1958) 2 LLJ 252; (1958-59) 14 FJR 103
An independent contractor is charged with a work and he has to produce a

particular result but the manner in which the result is to be achieve is left to
him; a servant on the other hand, may also be charged with a work and asked
to produce a particular result but is subject to the directions of the master as
to the manner in which the result is to be achieved. 47
The determination of the question would depend on the terms of the contract
between the parties; no general proposition of universal application could be
laid down.48
The fundamental test to be applied is this. Is the person who has engaged
himself to perform these services performing them as a person in business on
his own account? If the answer to that question is yes, then the contract is
a contract for service. If the answer is no, then the contract is contract of
service. No exhaustive list has been compiled and perhaps no exhaustive list
can be compiled of the considerations which are relevant in determining that
question, nor can strict rules be laid down as to the relative weight which the
various considerations should carry in particular cases. The most that can be
said is that control will no doubt always have to be considered, although it
can no longer be regarded as the sole determining factor; and that factors
which may be of importance are such matters as whether the man
performing the service provides his own equipment, whether he hires his own
helpers, what degree of financial risk he takes, what degree of responsibility
for investment and management he has, and whether and how far he has an
opportunity of profiting from sound management in the performance of his
task.49
It is almost impossible to give a precise definition of the distinction between a

contract of service and a contract for service. It is often easy to recognise a
47 State of Kerala v V.M.Patel (1961) 1 LLJ 549 SC ; 1960 Ker LJ 1524
48 Birdhichand Sharma v First Civil Judge; AIR 1961 SC 644; (1961) 3 SCR
161; (1961) 2 LLJ 86
49 Market Investigation Limited v Minister of Social Security (1969) 2 WLR1 ;
(1969) 2 QB 173; (1968) 3All E.R. 732
contract of service when you see it but it is difficult to say wherein the
difference lies. A ships master, a chauffeur, and a reporter on the staff of a
newspaper are all employed under a contract of service; but a ships pilot, a
taxi man, and a newspaper contributor are employed under a contract for
service. 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 of
service, his work, although done for the business is not integrated into it but
is only accessory to it50
There is no abstract a priori test of the work control required for establishing
a contract of service. The fact that the workmen have to work in the factory
implies a certain amount of supervision by the management but the nature
and extent of control varied in different industries. When the operation is of
simple nature the control could be excercised at the end of the day by the
method of rejecting the goods produced which do not come to standard. 51
The test of control is therefore not as determinative as used to be thought to

be the case though it is still of value in that the greater the degree of control
excercisable by the employer the more likely it is that the contract is one of
service.52
To distinguish between an independent contractor and a servant ,the test is

whether or not the employer retains the power , not only of directing his
work. If a person can be overlooked and directed in regard to the manner of
doing his work, that person is not a contractor . 53
50 Cassidy v Ministry of Health; (1951) 1 TLR 539 (543) ; (1951) 2 KB 343

( 352)
51 V.P.Gopala Rao v Public Prosecutor ; AIR 1970 SC 66 ; (1969) 3 SCR 875;
1970 Lab IC 56; (1970) 2 LLJ 59; 37FJR1
52 Whittaker v Minister of Pensions and National Insurance (1966) 3 All E.R.
531 (537)(QBD)
53 Halsburys Laws of England (Third Edition Vol 25, p.498
The scope as also the manner of the exercise of supervision and control in a
given case must of necessity depend on a variety of factors such, for
instance, as the nature of the work done by a person, the circumstances in
which and the place where he is asked or permitted to do the work, the skill
or technique or method , if any, required of him in performance of the work ,
the status and the number of persons engaged in the performance of the
work,
and in a large majority of cases on the mode or manner of
remuneration adopted in respect of the particular work required of a
person.54
The control of management, which is necessary element of the relationship of

master and servant, is not directed towards providing or dictating the
nature of the article to be produced or the work to be done, but refers to the
other incidents having a bearing on the process of work the person carries
out in the execution of the work. The manner of work is to be distinguished
from the type of work to be performed.55
It is in its application to skilled and particularly professional work that control

test in its traditional form has really broken down. It has been said that in
interpreting control as meaning the power to direct how the servant should
do his work the court has been applying a concept suited to a past age.
During the last three decades ,the emphasis has shifted and no longer rests
so strongly upon the question of control. Control is obviously an important
factor and in many cases it may still be the decisive factor . But it is wrong to
state that in every case it is decisive .It is now no more than a factor,
although an important factor56
The fact that generally the workers attend the shop which belongs to the
employer and work there , on the machines, also belonging to him, is a
relevant factor. When the services are performed generally in he employers
premises , this is some indication that the contract is a contract of service
54 Shankar Balaji Waje v State of Maharashtra (1961)II LLJ 8 (Bom)
55 Shanker Balaji Waje v State of Maharashtra (1962) 1 LLJ 119(124) (SC)
56 Silver Jubilee Tailoring House v Chief Inspector of shops and
Establishments (1973) II LLJ 495
and it is possible
employment.57
that this is another facet of the incidental feature of
Likewise the fact that the workers work on the machines supplied by the
proprietor of the shop is an important consideration in determining the
nature of the relationship.58
The further fact that a worker can be removed which means nothing more
than that the employer has the liberty not to give further work to an
employee, who has not performed his job according to the instructions of the
employer or who has been absent from the shop for a long time would
speak of control and supervision consistent with the character of the
business.59
The supply of equipment is also some indication. If the employer provides the
equipment it may indicate that the contract is a contract of service whereas
if the other party provides the equipment it may provide some evidence
that he is an independent contractor. This is not based on the theory that if
the employer provides the equipment he retains some degree of control,
for the control arises only from the need to protect ones property, little
significance can be attached to the power of control for the purpose of
determining the nature of
the contract.. It seems therefore that the
importance of the provision of equipment lies in the simple fact that in most
circumstances , where a person hires out a piece of work to an independent
contractor to provide all the necessary tools and equipment , where as if he
employs a servant he expects to provide them himself. Hence no sensible
inference can be drawn from this factor in circumstances where it is
customary for servants to provide their own equipment. 60

It is a question of fact in each case whether the relationship of master and

servant exists between the management and the workmen and there is no
abstract a priori test of the work control required for establishing the
contract of service . It is therefore that in recent years, the control test, as
traditionally formulated, has not been treated as an exclusive test. It is
exceedingly doubtful today whether the search for a formula in the nature of
a single test to tell a contract of service from a contract for service will
serve any useful purpose. The most, that profitably can be done, is to
examine all the factors that have been referred to in the cases on the topic.
Clearly, not all of these factors would be relevant in all the case or have the
same weight in all cases . It is equally clear that no magic formula can be
propounded which factors should in any case be treated as determining
ones. The plain fact is that in a large number of cases , the court can only
perform a balancing operation weighing up the factors which point in one
direction and balancing them against those pointing in the opposite
direction.61
Where a worker or a group of workers labours to produce goods or services

and these goods and services are for the business of another, that other is, in
fact, the employer. He has economic control over the workers subsistence,
skill and continued employment. If he, for any reason, chokes off, the worker
is, virtually, laid off. The presence of intermediate contractor with whom
alone the workers have immediate or direct relationship ex contractu is of no
consequence when on lifting the veil or looking at the conceptus of factors
governing employment, we discern the naked truth, though draped in
different perfect paper arrangement, that the real employer is the
Management, not the immediate contractor. If the livelihood
of the
workmen substantially depends on labor rendered to produce or services for
the benefit and satisfaction of an enterprise, the absence of direct
relationship or the presence of dubious intermediaries or the make believe
trappings of detachment from the management cannot snap the real life
bond. The story may vary but the inference defies ingenuity. The liability
cannot be shaken off. Of course, if there is total dissociation , in fact,
between the disowning management and the aggrieved workmen, the
employment is in substance and in real terms by another. The managements
adventitious connection cannot ripen into real employment. 62

61 V.P.Gopala Rao v Public Prosecutor (1970) II LLJ 59(SC)
7. Definition of Employer63
(1)
Employer
in relation to apprentices appointed under the
Apprentices Act, 1961, is any person who employs one or more other
persons to do any work in an establishment for remuneration and includes
any person entrusted with the supervision and control of employees in such
establishment64
62 Hussainbhai v Alath Factory Thezhilali Union (1978) 4 SCC 257; 1978 Lab
IC 1264; (1968 ) 2 LLJ 397; 53 FJR 278
63 The term èmployer' is defined in the laws in various ways. There are
however certain common
elements in these definitions. Taking them all
together the term employer would mean a person or body of persons,
incorporated or not, including an agent who may be called as manager,
managing agent, managing director or by any other name , a legal
representative , a liquidator or receiver ,who employs another person or
persons for the work of an establishment, who has control over the affairs
of the establishment or who is entrusted with the supervision or control over
the affairs of the establishment and the person or persons employed ; where
the services of an employee or workman are lent temporarily to another
person, such other person so long as the workman works for him.; in the
case of establishments under the control of a Government
or a local
authority, the head of department or the chief executive officer or any
other person appointed for supervision and control over the employees is
regarded as the employer.
Some laws make a distinction between the principal employer and
the contractor or immediate or intermediate employer
64 Apprnetices Act, 1961, Section 2 (f)
(2)Employer in relation to beedi workers means-(a) in relation to contract labour the principal employer, and
(b) in relation to other labour the person who has the ultimate
control over the affairs of any establishment or who has by reason of
his advancing money, supplying goods or otherwise, a substantial
interest in the control of the affairs of any establishment and includes
any other person to whom the affairs of the establishment are
entrusted whether such other person is called managing agent,
manager, superintendent or by any name65.
(3) Employer in relation to an establishment in the building and
other construction industry means the owner thereof, and includes,-(i)
in relation to a building or other construction work carried on by or
under the authority of any department of the Government., directly without
any contractor, the authority specified in this behalf, or where no authority is
specified, the head of the department
v
in relation to a building or other construction work carried on by or on

behalf of a local authority or establishment, directly without any
contractor, the chief executive officer of that authority or
establishment;
vi
in relation to a building or other construction work carried on by or

through a contractor, or by the employment of building workers
supplied by a contractor, the contractor 66.
(4) Employer when used in relation to a coal mine, means any person
who is the immediate proprietor or lessee or occupier of the coal mine or of
any part thereof and in the case of a coal mine the business whereof is
being carried on by a liquidator or receiver, such liquidator or receiver, and in
the case of a coal mine owned by a company the business whereof is being
carried on by a managing agent, such managing agent, but does not include
a person who merely receives royalty, rent or fine, from the coal mine or is
merely the proprietor of the coal mine, subject to any lease grant or license
for the working thereof, or is merely the owner of the soil and not interested
in the coal or coal mine; but any contractor for the working of a coal mine or
65 Beedi and Cigar Workers ( Conditions of Employment) Act, 1966 ( Act
no.32 of 1966) Section 2 (g)
66 Building and Other constructions Workers ( Regulation of Employment and
conditions of Service) Act, 1996, Section 2(i)
any part thereof shall be subject to this Act in like manner as if he were an
employer but not so as to exempt the employer from any liability 67.
(5) Employer , in relation to the operator of any dangerous machine
means the person by whom such operator has been employed, whether for
any remuneration or otherwise, for operating such machine
(6)Employer, in relation to a dock worker , means the person by whom
he is employed or to be employed (in, or in the vicinity of, any port on work
in connection with the loading, unloading, movement or storage of cargoes or
work in connection with the preparation of ships or other vessels for the
receipt or discharge of cargoes or leaving port.) 68
(7) Employer in relation to a dock worker means the person by whom
he is employed or is to be employed on dock work, whether for remuneration
or not69
The function of a dock labour board is to register the names of the dock
workers under various categories, determine wages and other conditions of
service and fix the rate of contribution to be made by the registered
employers to the dock workers welfare fund and to allocate the registered
dock workers in the reserved pool for work to registered employers.
Therefore, the board is deemed to act as an agent for the employer and the
payment to each daily worker is made by the board as agent of the registered
employer and the workers are bound to carry out their duties in accordance
with the directions of the registered employer. This shows that the board
cannot be considered as employer of the dock labour worker. 70
(8) Employer, in relation to an emigrant means, any person providing or
offering to provide , employment in any country or place outside India 71
67 Coal Mines Provident funds and Miscellaneous Provisions Act,1948 ( Act no. 46 of 1948)Section 2(e)
68 Dock Workers ( Regulation of Employment) Act, 1948 Act no.9 of 1948)

Section 2(c) read with Section 2(b)
69 Dock workers ( Safety Health and Welfare) Act, 1986, Section 2 ( f)
70 Vizagpatam Dock Labor Board v Stevedores Assn 1970 2 SCR 303 ; 1970
1 LLJ 46
71 Emigration Act, 1983, Section 2 ( g)
(9) Employer
for purposes of the schemes framed under the
Employees Provident Funds and Misc. Provisions Act , 1952, meansi. in relation to an establishment which is a factory, the owner or occupier of
the factory, including the agent of such owner or occupier , the legal
representative of a deceased owner or occupier and where a person has
been named as a manager of the factory...the person so named;
ii. in relation to any other establishment, the person who , or the authority
which, has the ultimate control over the affairs of the establishment, and
where the said affairs are entrusted to a manager, managing director, or
managing agent, such manager, managing director or managing agent. 72
Clauses (I)and (ii) of Section (e) are wide in their sweep. In clause (i) are
included not only the owner or occupier but even the agent or manager.
When it comes to establishments other than factory it is not confined to
owner or occupier but to all those who have control over or are responsible
for affairs of, the company. It includes even a director. 73
A person who is merely the owner of a place on which the premises of a
factory are situate, or a person who is merely the owner of the premises in
which the machinery is installed or who is merely the owner of the machinery
with the help of which the manufacturing process is carried on but who is
having no control over manufacturing process, nor any connection with the
engagement of workers therein, will not be owner so as to be proceeded
against as an employer.74
Where a unit of an existing establishment was given on lease and eleven
employees working therein were made over to the lessee who as liable to pay
their salaries but he (the lessee) was not given the right to discharge them
from service without obtaining the written permission of the lessor, the
ultimate control like dismissal or discharge continued to be vested in the
lessor and the lessee was therefore not liable as an employer. 75
72 Employees Provident Funds and Miscellaneous Provisions Act, 1952,
Section 2 (e)
73 Srikanta Dutta Narasimharaja Wodiyar v enforcement Officer , Mysore;
1993 3 SCC 217; 1993 SCC (L&S) 751; (1993) 2 LNN 69
74 Jumnabai Purushottam Asar v State of Maharashtra (1964 ) 2 LLJ 7 ; AIR
1964 Bom 267
75 Provident fund Inspector v P.S Mani (1967) 2 LLJ 647 (Ker)
Where the receiver appointed under the orders of the court had full control
over the affairs of an establishment and the existing staff subject to the
courts supervision in certain matters, the receiver would be the employer. 76
A liquidator having the ultimate control for all practical purposes ove the
affairs of a factory including the power to carry on the factory or to sell it as
a going concern is employer under the Act 77 But if the liquidator is asked to
wind up a factory and close it down, the liquidator will not be liable under the
Act because it will no longer be a factory in the specified industry. 78
In case of a partnership firm where all the partners are treated as employer
the mere fact that the partnership firm has been dissolved would not absolve
them from liability to pay provident dues. 79 However the expression
employer makes it clear that ordinarily all the partners of a firm are not
liable to be punished in criminal cases but only the person who has ultimate
control over the affairs of the establishment, or the manager, managing
director, or managing agent who has ultimate control over the affairs of the
establishment is liable to be prosecuted under Sections 14 (1-A) and 14 (1B). so also in case where he person committing the offence under the Act ,
the Scheme, the Family Pension Scheme, or the Insurance Scheme, is a
company as provided under sub-section (1) of Section 14 A, it is not all the
persons but the person who at the time of commission of the offence was in
charge of, and was responsible to, the company for the conduct of the
business of the company as well as the company shall be deemed to be guilty
of the offence and shall be liable to be proceeded against and punished
accordingly.80
Section 2 (e) gives different definitions of the term employer in relation to a
factory and in relation to another establishment. The definition contained in
Section 2 (e) (ii) is not applicable to a factory 81 Hence a Managing director or
a Director of a company cannot be held liable as employer for an offence
76 Provident fund Inspector v Venkatachalam Chettiar (1970) 1 LLJ 455; 1969
Ker LT 499
77 Mahalakshmi Cotton Mills Ltd. (in liquidation) , In re AIR 1960 Cal 199
78 Mahalakshmi Cotton Mills Ltd. (in liquidation) , In re AIR 1960 Cal 199
79 Mukhtiar Singh Sodhi v RPF Commissioner 1972 All LJ 265
80 Anantharamiah Woollen Factory v State 1981 Lab IC 538; 91981) 1 LLN
170 (Kant)
committed by an establishment which was a factory. In such a case the

prosecution must prove that the company was an employer under Section 2
(e) (i) and that having failed to discharge its statutory duties the company
committed the alleged offences and that the director and the managing
became culpable under Section 14 A (1)82
(10) Employer, for notification of vacancies to employment
exchanges ,means any person who employs one or more other persons to
do any work in an establishment for remuneration and includes any person
entrusted with the supervision
and control
of employees in such
83
establishment.
(11)Èmployer for purposes of the Employers Liability Act, 1938,

includes any body of persons whether incorporated or not, any managing
agent of an employer, and where the services of a workman are temporarily
lent or let on hire to another person by the person with whom the workman
has entered into a contract of service or apprenticeship, means such other
person while the workman is working for him 84
(12) Employer, in the Equal Remuneration Act, 1976, has the same
meaning assigned to it in clause (f) of s.2 of the Payment of Gratuity Act 85
(13)Employer
1947,means -
for
purposes
of
the
Industrial
Disputes
Act,
i. in relation to an industry carried on by or under the authority of any

department of the Central Government or a State government the authority
prescribed in this behalf or where no authority is prescribed the head of the
department;
81 Kalika Press v State (1986) 1 LLN 362 ( Cal)
82 AIR 1955 Mad 387: (1955) 1 LLJ 674
83Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 Act no.31 of 1959Section 2
(c)
84 Employers Liability Act, 1938, Section 2 (b)

85 Equal Remuneration Act, 1976, Section 2 ( c ). For definition of the term
employer in the Payment of Gratuity Act see
ii. in relation to an industry carried on by or on behalf of a local authority the

chief executive officer of that authority 86
The definition of the term employer in s.2(g)(i) of the Industrial Disputes Act
is neither exhaustive nor inclusive. No attempt is made to define the term
employer generally or in relation to persons other than government carrying
on industries or running undertakings. 87
The preamble to the Act does not limit its sphere to businesses run only by
government or local authorities. The scheme of the Act fits in with this
interpretation of the expression employer and any other construction of it
would create incongruity and repugnancy between sections of the Act. The
term employer included within its scope not only industries owned and
carried on by the government or th local authorities but other industries as
well.88 The term not having been defined in the statute it is the task of the
courts to give meanings to the words which are intended to lay down the full
connotation. 89
The definition of employer in s. 2(g) of the Act suggests that an industry
carried on by or under the authority of the Government means either the
industry carried on directly by a department of the Government such as the
Posts and Telegraphs or the railways, or one carried on by such department
through the instrumentality of an agent.90
An incorporated company has a separate existence and the law recognises it
as a juristic person separate and distinct from its members. The mere fact
that the entire share capital of a company is contributed by the Central
86 Industrial Disputes Act 1947 ( Act no.14 of 1947), Section 2 ( g)
87 Western India Automobile Assn v Industrial Tribunal 1949 FCR 321; 1949
LLJ 245 5J
88 Western India Automobile Assn v Industrial Tribunal 1949 FCR 321; 1949
LLJ 245 5J
89 Madras Gymkhana Club Mazdoor Union v Madras Gymkhana Club 1968 1
SCR 742; 1967 2 LLJ 720
90 Heavy Engineering Mazdoor Union v Bihar 1969 3 SCR 996: 1969 2 LLJ
549; Carlsbad Mineral Water Mfg Co. Ltd v Sarkar P.K. 1952 1 LLJ 488 C :
Cantonment board v Punjab 1961 1 LLJ 734 PB: Gafur ARA V Mrs. E.P aul 1962
2 LLJ 693 B; A. 1963 B. 267
Government and the fact that all its shares are held by the President and
certain officers of the Central Government does not make any difference. 91
A firm is not a legal person within the meaning of the Industrial Disputes Act.
It is the partners of the firm who are the employers. 92
A partner is liable to be convicted for an offence committed by the firm if he
was in charge of and responsible to the firm for the conduct of the business of
the firm or if it is proved that the offence was committed with the consent or
connivance of or was attributable to any neglect on the part of the partner
concerned.93
The employer of workmen
employed through the contractor is the
94
contractor. Where a worker or a group of workers labor to produce goods or
services and these goods or services are for the business of another , that
other is in fact the employer. He has economic control over the workers
subsistence , skill, and continued employment .If he for any reason, chokes
off, the worker , is virtually choked of the worker is virtually laid off. The
presence of intermediate contractors with whom alone the workers have
immediate or direct relationship ex contractu, is of no consequence when, on
lifting the veil or looking at the conspectus of factors governing employment
courts discern the naked truth that the real employer is the management
not the immediate contractor. 95
91 Heavy Engineering MazdoorUnion v Bihar 1969 3 SCR 995; 1969 2 LLJ 549Salomon v Salomon & co.
1897 AC 22; Janson v Driefontian Consolidated Mines 1902 AC 484; Kuenigi v Donnersmarck 1955 1 QB
515; Graham v Public Works Commissioners1901 (2) KB 781 ; State Tradinf corporation of India Ltd.
Commercial Tax Officer 1964 4 SCR 99; AIR 1963 SC 1811 9J ; Tamlin v Hannford 1950 1 KB 18;
London county and auxiliary Forces Assn v Nochlos 1948 2 All ER 432 referred to
92 Wenger & co. v Workmen 1963 S 2 SCR 862; 1963 2 llj 403 4J ; Tulsias
Khimji v Workmen 1963 1 SCR675; 1962 435 5J refereed to
93 Karnataka v Chand P.58 FJR 246 SC
94 India General Navigation and Rly Co. v Workmen 1966 1 LLJ 735 SC ;
Kurup K v Gujarat Refinery AIR 1987 SC 163; 1986 4 SCC 375
95 Hussainbhaiv althFactory Tozhilali Union `1978 3 SCR 1073; 1978 2 LLJ
397
In the case of an industry carried on by a local authority the chief executive

would be the employer of the workmen irrespective of the person who
employed them .96
A municipal corporation is itself an employer being a juristic person. 97
Where work carried on by an institution which is not an industry within the
meaning of the Act, there would be no industrial dispute nor an employer
within the meaning of the Act.98
The word employer occurring in s.33 and s. 33A of the Industrial Disputes
Act means the identical employer concerned with the industrial dispute which
is the subject matter of the adjudication, and cannot include an employer
who merely happens to discharge or punish or alter the conditions of service
of workman unless such employer can be shown to be a mere nominee or
benamidar of the former or falls within the category of his heirs, successors
or assigns within the meaning of s. 18(3) of the Act. 99
(14) Employer, for purposes of the Industrial Employment ( Standing

Orders ) Act, 1946, means the owner of an establishment to which the law
for the time being applies and includes(i) in a factory any person named as manager of the factory
(ii) in any industrial establishment under the control of any department of
Government in India the authority appointed by such Government in this
behalf or where no authority is so appointed
the head of department;
(iii) in any other industrial establishment any person responsible to the
owner for the supervision and control of the industrial establishment. 100
96 Dhar Gram Panchayt v Brahad Saurashtra Safai Kamdar Mandal 1971 1

LLJ 508 (Guj)
97 Workmen, Fire Brigade Section v Gosain KL AIR 1970 (Pun) 287
98 University of Delhi v Nath R. 1964 2 SCR 703; 1963 2 LLJ 335
99 SK.G Sugar Mills Ltd. v Ujagar R. 1959 S 1 SCR 254; 1959 1 LLJ 420 5J
(15) Employer, for purposes of the Maternity Benefit Act, 1961,

meansi. in relation to an establishment which is under the control of the
Government, a person or authority appointed by the Government for the
supervision and control of employees or where no person or authority is so
appointed, the head of department;
ii. in relation to an establishment under any local authority the person
appointed by such authority for the supervision and control of employees or
where no person is so appointed the chief executive officer of the local
authority;
iii. in any other case, the person who or the authority which has the ultimate
control over the affairs of the establishment and where the said affairs are
entrusted to any other person whether called a manager, managing director,
managing agent, or by any other name , such person. 101
(16) Employer for purposes of the Minimum Wages Act, 1948, means
any person who employs whether directly or through another person, or
whether on behalf of himself or any other person, one or more employees in
any scheduled employment in respect of which minimum rates of wages
have been fixed under the Act, and includes except in subsection (3) of
Section 26-
i. in a factory where there is carried on any scheduled employment in respect

which minimum wages have been fixed under this Act any person named
under ... as manager of the factory;
ii. in any scheduled employment under the control of any Government in

India in respect of which minimum rates of wages have been fixed under this
Act, the person or authority appointed by such Government for the
supervision and control of employees or where no person or authority is so
appointed the chief executive officer of that authority ;
.
100 Industrial Employment (Standing Orders ) Act, 1946 (Act no.20 of 1946),
Section 2 (d)
101 Maternity Benefit Act 1961 (Act no.53 of 1961), Section 3 (d)
iii. in any scheduled employment under any local authority in respect of

which minimum rates of wages have been fixed under this Act, the person
appointed by such authority;
iv. in any other case where there is carried on any scheduled employment in
respect of which minimum rates of wages have been fixed under this Act, any
person responsible to the owner for the supervision and control of the
employees or for payment of wages.102
(17) Employer, for purpose of the Motor Transport Workers Act,

1961, means , in relation to any motor transport undertaking, the person
who , or the authority which, has the ultimate control over the affairs of the
motor transport undertaking and where the said affairs are entrusted to any
other person whether called a manager managing director, managing agent
or by any other name such other person.103
(18)Èmployer, for payment of bonus, includes i.. in relation to an establishment which is a factory the owner or occupier of
the factory including the agent of such owner or occupier, the legal
representative of a deceased owner or occupier and where a person has been
named as a manager of the factory under... the person so named; and
ii. in relation to any other establishment the person who or the authority
which , has the ultimate control over the affairs of the establishment and
where the said affairs are entrusted to a manager, managing director, or
managing agent, such manager, managing director or managing agent 104
(19) Èmployer, for payment of gratuity, means, in relation any

establishment, factory, mine oilfield, plantation, port , railway company or
shop-102 Minimum Wages Act, 1948 (Act no.11 of 1948), Section 2 (e)
103 Motor Transport Workers Act, 1961 (Act no.27 of 1961), Section 2 (e)
104 Payment of Bonus Act, 1965 (Act no.21 of 1965), Section 2 (14)
i. belonging to or under the control of the Central Government or a State

Government a person or authority appointed by the appropriate Government
for the supervision and control of employees or where no person or authority
has been so appointed the head of department concerned;
ii. belonging to or under the control of any local authority the person
appointed by such authority for the supervision and control of employees or
where no person has been so appointed the chief executive officer of the
local authority;
iii. in any other case, the person who, or the authority which has the ultimate
control over the affairs of the establishment factory, mine, oilfield plantation,
port railway companies or shop and where the said affairs are entrusted to
any other person whether called manager, managing director or by any other
name such person.105
(20) Employer, for payment of wages, includes the legal representative of

a deceased employer.106
(21) Employer for payment of compensation for personal injuries,

includes any body of persons whether incorporated or not and any managing
agent of an employer and the legal representative of a deceased employer
and when the services of a workman are temporarily lent or let on hire to
another person by the person with whom the workman has entered into a
contract of services or apprenticeship, means the latter person while the
workman is working for that person.107
(22) Employer when used in relation to a plantation means the person

who has the ultimate control over the affairs of the plantation and where the
affairs of any plantation are entrusted to any other person, whether called a
managing agent, manager, superintendent or by any other name, such other
person shall be deemed to be the employer in relation to that plantation 108
105 Payment of Gratuity Act, 1972 (Act no.39 of 1984), Section 2 (f)
106 Payment of Wages Act , 1936 (Act no.4 of 1936) Section (i-a)
107 Personal Injuries (Compensation Insurance ) Act, 1963 (Act no. 37 of
1963), Section 2(a)
(23) Èmployer for payment of compensation for work injuries,

includes any body of persons whether incorporated or not and any managing
agent of an employer and the legal representative of a deceased employer
and when the services of a workman are temporarily lent or let on hire to
another person by the person with whom the workman has entered into
contract of service or apprenticeship, means such other person while the
workman is working for him. 109
Within this comes a contractor and any person responsible for the putting
up of a building who gets workmen supplied by a sirdar and pays through the
Sirdar. Here sirdar is not the employer110
It is a question of fact depending on the facts of the particular case as to who

is an employer within the meaning of Section 2(e) The General manager of a
Railway is employer of its worker.111
Definition of employer suggested in the India Labour Code

Employer means an individual or an association of persons incorporated or
otherwise, irrespective of the nature of his avocation, employing an
employee and includes a person engaging or employing an outworker or
an agricultural worker
8.Definition of principal employer
108 Plantation Labor Act, 1951 (Act no.69 of 1951), Section 2(e)
109 Workmens Compensation Act, 1923 (Act no.8 of 1923), Section 2(e)
110 42 CWN 803
111 AIR 1960 All 362
(1)The Beedi and Cigar Worker ( Conditions of Employment ) Act,

1966 ( Act No.32 of 1966) defines the term principal employer to mean a
person for whom or on whose behalf any contract labour is engaged or
employed in an establishment 112
(2)The Contract Labour (Regulation and Abolition) Act, 1970 (Act

no.37 of 1970) defines the term principal employer to mean (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 this
behalf;
(ii) in a factory, the owner or occupier of the factory and where a person
has been named as the manager of the factory under the Factories Act, 1948
( Act No.63 of 1948)
(iii) in a mine the owner or agent of the mine and where a person has
been named as the manager of the mine the person so named; (the
expressions mine, owner and agent will have the same meanings as are
assigned to them in the Mines Act, 1952 Act No. 35 of 1952)
(iv) in any other establishment any person responsible for the supervision
and control of the establishment.113
(3)The Dock Workers (Safety Health and Welfare) Act, 1986 ( Act
no.54 of 1986) defines the term principal employer, in relation to a dock
worker employed or to be employed by or through any agency ( including a
contractor) means the person in connection with whose work he is employed
or is to be employed by such agency. 114.
112 Beedi and Cigar Workers ( Condition of Employment) Act, 1966, Section
2 (m)
113 Contract Labor (Regulation and Abolition) Act, 1971, Section 2 (1) (g)
114 Dock Workers (Safety Health and Welfare) Act, Section 2 (g)
(4)The Employees State Insurance Act, 1948 defines the term `principal
employer to mean i.. in a factory, the owner or occupier of the factory and includes the
managing agent of such owner or occupier, the legal representative of a
deceased owner or occupier, and where a person has been named as the
manager of the factory under the Factories Act, 148 (.63 of 1948), the person
so named.
ii. in any establishment under the control of any department of any

Government in India, the authority appointed by such Government, in this
behalf, or where no authority is so appointed the head of the department;
iii. in any other establishment, any person responsible for the supervision and
control of the establishment.115
(5) Inter-State Migrant Workmen Regulation of employment and

conditions of Service Act, 1979 defines principal employer to mean
i
ii
iii
iv
in relation to any office or department of the Government or a local

authority ,the head of that office, department or authority or such
other officer as the Government or the local authority ,as the case may
be, specify, in this behalf;
in relation to a factory, the owner or occupier of the factory and where
a person has been named as the manager of the factory under the
Factories Act, 1948 (63 of 1948);
in relation to a mine the owner or agent of the mine and where a
person has been named as the manager of the mine ,the person so
named;
in relation to any other establishment any person responsible for the
supervision and control of the establishment. 116
9. Definition of the term intermediate employer
The Employees State Insurance Act, 1948 ( Act no.34 of 1948)

defines the term ìmmediate employer in relation to employees employed by
115 Employees Sate Insurance Act, 1948, Section 2(17)
116 Inter-State Migrant workmen (RECS) Act, 1979, Section 2 (1) (g)
or through him, means a person who has undertaken the execution, on the
premises of a factory or an establishment to which the Act applies or under
the supervision of the principal employer or his agent, of the whole or any
part of any work which is ordinarily part of the work of the factory or
establishment of the principal employer or is preliminary to the work carried
on in, or incidental to the purpose of , any such factory or establishment
and includes a person by whom the services of an employee who has
entered into a contract of service with him are temporarily lent or let on hire
to the principal employer.0
10.Definition of agent
The Mines Act, 1952 Act No.35 of 1952, uses the term agent and
defines it, when used in relation to a mine, to mean every person whether
appointed as such or not who acting or purporting to act on behalf of the
owner takes part in the management, control, supervision or direction of the
mine or of any part thereof.0
11.Definition of the term contractor
(1)The Beedi and Cigar Workers ( Conditions of Employment) Act,

1966, act No.32 of 1966, defines the term contractor to mean a person
who, in relation to a manufacturing process, undertakes to produce a given
result by executing the work through contract labor or who engages labor
for any manufacturing process in a private dwelling house and includes a
sub-contractor, agent, munshi, thekedar or sattedar 0
(2)The Cine workers and Cinema Theatre Workers ( Regulation of

Employment ) Act, 1981, Act No. 50 of 1981, defines the
term
contractor to mean a person who furnishes or udertakes to furnish cine
0 Employees State Insurance Act, 1948, Section 2 (13 )
0 Mines Act, 1952 ( Act No. 35 of 1952), Section 2
0 Beedi and cigar workers ( Conditions of Employment Act), 1966, Section 2
(d)
workers for being employed in or in connection with the production of a

feature film and includes a subcontractor or agent 0
(3)The Contract Labor ( Regulation and Abolition) Act, 1971, Act

No.37 of 1971, defines the term contractor , in relation to an establishment,
to mean a person who undertakes to produce a given result for the
establishment , other than a 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. 0
(4) Inter- State Migrant workmen ( Regulation of Employment and

Conditions of Service) Act, Act No.30 of 1979, defines contractor in
relation to an establishment to mean a person who undertakes (whether as
an independent contractor, agent, employee or otherwise) to produce a
given result for the establishment, other than a mere supply of goods or
articles of manufacture to such establishment, by the employment of
workmen or to supply workmen to the establishment, and includes a subcontractor, Khatadar, Sardar, agent, or any other person, by whatever name
called, who recruits or employs workmen.0
Thekedars or jamadars engaged to recruit labourers or workers for mine

lessees or owners from other States directly or through labourers or workers
already working are contractors and the persons so recruited are Inter-State
migrant workmen and are, hence, entitled to all the benefits of the Act. 0
12.Definition of
Occupier
0 Cine Workers and Cinema Theatre Workers (Regulation of Employment) Act

1981, Section 2 (e)
0 Contract Labor ( Regulation and Abolition) Act, 1971 Act No.37 of 1970,
Section 2 (c )
0 Inter- State Migrant Workmen ( RECS) Act, 1979, Section 2 (1) (b)
0 Bandhua Mukthi Morcha v Union of India 91984) 3 SCC 161; 1984 SCC (L
&S) 389
(1)The Child Labor ( Prohibition and Regulation) Act, 1986 Act No.61 of 1986 defines the term
occupier to mean in relation to an establishment or a workshop to mean the person who has the ultimate
control over the affairs of the establishment or workshop.0
(2) The Employees Provident Funds and Miscellaneous Provisions

Act, 1952 defines occupier of a factory to mean the person who has
ultimate control over the affairs of the factory, and where the said affairs are
entrusted to a managing agent, such agent should be to be the occupier of
the factory.0
(3)Factories Act ,1948 ( Act no.63 of 1948) defines the term

occupier
of a factory to mean the person who has ultimate control over the affairs of
the factory provided that
I. in the case of a firm or other association of individuals any one of the
individual partners or members thereof who shall be deemed to be the
occupier;
ii. in the case of a company , any one of the directors shall be deemed to be
the occupier;
iii. in the case of a factory owned or controlled by the Central Government or
any State government, or any local authority, the person or persons
appointed to manage the affairs of the factory by the Central government,
the State government or the local authority , as the case may be, shall be
deemed to be the occupier;
In the case of a ship which is being repaired, or on which maintenance work is

being carried out, in a dry dock which is available for hire-
the owner of the dock will be deemed to be the occupier for the
purposes of any matter provided for by or under Sections 6, 7, 7-A, 7
B, 11 or Section 12, Section 17 , in so far as it relates to the providing
and maintenance of sufficient and suitable lighting in or around the
0 Child Labor ( Prohibition and Regulation ) Act, 1986, Act No.61 of 1986,
Section 2 (vi)
0 Employees provident funds and Miscellaneous Provisions Act, 1952, Section
2(k)
dock; Sections 18, 19,42,46,47 or 49 , in relation to the workers

employed on such repair or maintenance of the Factories Act, 1948.
ii. the owner of the ship or his agent or master or other officer in charge of
the ship or any person who contracts with such owner, agent, or master or
other officer in charge to carry out the repair or maintenance work will be
deemed to be the occupier for purposes of any matter provided for by or
under. Sections 13, 14,16, or Section 17 (save as otherwise provided in the
proviso) or Chapter IV ( except Section 27) or Section 43, 44 or Section 45,
chapters VI VII , VIII or Chapter IX , or Sections 108, 109,or Section 110 in
relation to (a) the workers employed directly by him, or by or through any
agency; and (b) the machinery, plant or premises in use for the purpose of
carrying out such repair or maintenance work by such owner. 0
The word occupier, in the context of the Factories Act, means a person who
occupies the factory either by himself or his agent. He may be an owner, a
lessee or mere licensee but he must have the right to occupy the property
and dictate how it is to be managed 0 .
The expression, ultimate control, implies the right to take a policy decision
in respect of the running of the factory 0
The question who is the occupier must depend among others upon three
considerations, namely (i) who alone has the right of using the factory for the
purpose for which it was constructed; (ii) who has the right to regulate and
control its working, and (iii) who is in the predominant position of general
superintendence over it 0 .
The term, occupier, is not to be equated with, owner 0 .
0 Factories Act, 1948, Section 2 ( r)
0 Emperor v Jamshedji Naservanji Modi AIR 1931 Bom 308; The occupier
should be a proprietor or at any rat be in the possession of the factory and
control its working . He cannot therefore be anyone who is a mere servant
charged with specific duties in regard to the control of the machinery,
workmen or office.
0 E.S.I. Corporation v G.N.Mathur 1993 Lab IC 1867
0 10 Bom LR 38
An occupier may be a firm or association of individuals and any of the

individual partners or members thereof. 0 . The term person as defined in the
General Clauses Act includes a company or association or body of individuals,
whether incorporated or not. Such a person could be a company or a
partnership or an association of persons or an individual. Where the factory is
owned or run by a company it would be that company which would be the
occupier of the factory 0
A remote but ultimate control clothes a person with the position of occupier
General Manager of factory nominated by board of Directors as factory

occupier is occupier even if he was not one of the directors. 0 Where a person
had been specifically entrusted with the ultimate control of the factory the
chief Inspector of Factories was wrong in taking theview that a person other
than Director of company could not be an occupier 0
A director of the company is normally not the occupier of the factory. 0
In the absence of a managing agent all the owners must be held occupiers
The manager of a factory who resides in a part of the premises of the factory
is not an occupier of a factory within the meaning of the Act 0
0 John Donald Mackenji v Chief Inspector of Factories 1961 III LLJ 412
0 AIR 1956 All 4
0 J.K.Industries Ltd. etc. v Chief Inspector of Factories, etc. 1996 LLR 961
0 AIR 1958 Pat 620
0 British India Corporation v State of U.P 44 FLR 343
0 British India Corporation v State of U.P. 1982 Lab IC 1499 ( All)
0 Suresh Tulsida Kailshchand v collector of Bombay 91980) 2 LLJ 81 (Bom)
0 AIR 1959 All 555
The 1987 amendment did not intend to permit only a director to be the
occupier of the factory in case of a company 0Proviso (ii) to Section 2 (n) can
come into play only when the company has not nominated an occupier. 0
In the case of a company which owns a factory it is only one of the directors
of the company who can be notified as the occupier of the factory for the
purposes of the Factories Act, 1948. The company cannot nominate any
other employee to be the occupier.0
Where the company fails to nominate one of its directors as the occupier of
the factory, the Inspector of Factories shall be at liberty to proceed against
any of the directors of the company treating him as the deemed occupier 0
13.Definition of owner
(1) The Collection of Statistics Act defines the term owner, in relation to
a commercial or an industrial concern , to mean the person who , or the
authority which has the ultimate control over the affairs of the concern and
where the said affairs are entrusted to a manager managing director or
0 Emperor v Ram Pratap 20 Bom 423
0 Indo Flogates Ltd. Chief Inspector of Factories and Boilers (1993) 1 Cur LR
64; (1993) 66 FLR 171 concurring with W.S.Industries India Ltd. v Inspector
of Factories (1990) 2 cur LR 818 (Kant) and Kirloskar Pneumatic co. Ltd. v
V.A.More (1992) 2 Cur LR 575; (1992) 2 LLN 979; 1993 Lab IC 1802 ( Bom)
and dissenting from Bhatia Metal containers (P) Ltd. v State of U.P ; 1989
Lab IC 2275 (All) See also Wimco Ltd. Union of India (1994) 2 Cur LR 312 ;
1994 Lab IC 1964 ; (1995) 70 FLR 429 ( Gau)
0 Kirloskar Pneumatic Co. Ltd. v V.A.More (1992) 2 cur LR 575; 1993 Lab IC
1802 L (1992) 2 LLN 979 ( Bom)
0 J.K. Industries Ltd. v Chief Inspector of Factories and Boilers and others
1996 (2) LLN 937 SC
0 J.K. Industries Ltd. v Chief Inspector of Factories and Boilers and others
1996 (2) LLN 937 SC1996 LLR 961 SC ; 1997 SCC (L&S) 1; 1996ii CLR 832
SC ; 19971 LLJ772 SC ; (1997) 90 FJR 65 SC ; 1996 (2) LLN 937 SC; 1996 (74)
FLR 2608 SC
managing agent such manager, managing director, or managing agent will

be deemed to be the owner of the concern 0
(2) Mines Act, 1952 (Act no. 35 of 1952) defines the term òwner
when used in relation to a mine to mean any person who is the immediate
proprietor or lessee or occupier of the mine or of any part thereof and in the
case of a mine the business whereof is being carried on by a liquidator or
receiver , such liquidator or receiver, but does not include a person who
merely receives a royalty rent or fine from the mine, or is merely the
proprietor of the mine, subject to any lease, grant or license for the working
thereof or is merely the owner of the soil and not interested in the minerals
of the mine; but any contractor or sub-lessee for the working of a mine or any
part thereof shall be subject to this Act in like manner as if he were an owner
but not so as to exempt the owner from any liability. 0
Owner does not include agent or manager
Managing Agents are not occupiers of the mine within the meaning of s. 2
(1). The managing agent is not either agent, manager, or owner of the mine
and therefore no question of contravention of regulations by the managing
agency company or its directors can arise. 0
(3) Public Liability Insurance Act, 1991 (Act no.6 of 1991) defines the
term Òwner to mean a person who owns or has control over handling any
hazardous substance at any time of accident and includesi. in the case of a firm any of its partners;
0 Collection of Statistics Act, 1953 Act No XXXII of 1953, Section (e)
0 Mines Act, 1952 ( Act No. 35 of 1952), Section 2 (1) (l)
0 Chief Inspector of Mines v Karam Chand Thapar AIR 1961 SC 838; (1961) 2
LLJ 146; ( 1961-62) 20 FJR 282
0 Chief Inspector of Factories v Karam Chand Thapar; 1961 (2) Cr LJ 1 ; AIR
1961 SC 838 ; 20 FJR 282
ii. in the case of an association any of its members,; and

iii. in the case of a company, any of its directors, managers, secretaries or
other officers who is directly in charge of, and is responsible to, the company
for the conduct of the business of the company 0
14. Definition of Employee0
0 Public Liability Insurance Act, 1991, Section 2 (g)

0 A person employed is called èmployee in some laws and `workman or
`worker in others. The term èmployee is broader in concept than the term
`workman or `worker These terms are also defined differently in different
laws. Again there are certain common elements in these definitions. Taking
them altogether an employee would generally mean .a person employed
directly or indirectly, through an agent or contractor, whether for wages or
not, in any establishment to do any work skilled, unskilled, manual or
clerical.. The definitions however vary with respect to inclusion or exclusion
of certain classes of persons.
The definition is inclusive of--
I. home workers and workers working independently with the permission of

or under an agreement with an employer. ( Beedi and Cigar Workers
( Conditions of Employment Act) , 1966;
ii. out workers ( Minimum Wages Act, 1948)
iii. persons in supervisory capacity drawing wages below a specified amount (
Rs.500 in the Contract Labor Regulation and Abolition Act, 1971; Rs.1600 in
the Industrial Disputes Act, 1947)
iv. apprentices engaged outside the Apprentices Act, 1961 and the Standing
Orders ( Employees State Insurance Act, 1948 , Employees Provident Funds
and Miscellaneous Provisions Act, 1952)
v. apprentices and trainees receiving remuneration or stipend ( Coal Mines
Provident Funds Act
1948)
(1).Beedi and Cigar Workers(Conditions of Employment) Act, 1966

defines the term Employee to mean a person employed directly or through
any agency, whether for wages or not, in any establishment or godown to do
any work, skilled, unskilled, manual or clerical, and includes(i) any labour who is given raw materials by an employer or a contractor for
being made into beedi or cigar or both at home(hereinafter referred to in this
act as home worker), and
(ii) any person not employed by an employer or a contractor or both but
working with permission of, or under agreement with, the employer or
contractor.
(2)Coal Mines Provident Fund and Misc. Provisions Act,1948 defines
employee to mean any person who is employed for wages of any kind of
work, manual or otherwise, in connection with a coal mine and who gets his
wages directly from the employer and includes(1) any person employed by or through a contractor in or in connection with a
coal mine, and
(2) for the purposes of the Coal Mines Provident Fund Schemes, also(i) any other person who is employed as a sanitary worker, Mali, teacher, or
domestic servant in or in connection with a coal mine and who receives
wages directly from the employer, and
(ii) any apprentice or trainee who receives stipend or other remuneration
from the employer.0
(3) Employees Provident Funds and Misc. Provisions Act, 1952

defines employee to mean any person who is employed for wages in any
kind of work, manual or otherwise, in or in connection with the work of an
establishment, and who gets his wages directly or indirectly from the
employer, and includes any person (i) employed by or through a contractor in or in connection with the work
of the establishment;
(ii) engaged as an apprentice, not being an apprentice engaged under the
Apprentices Act, 1961,or under the standing orders of the establishment. 0
Definition of employee embraces a part time employee as also an employee who is engaged for any work
in the establishment which may not necessarily be connected with the work of the establishment. 0
A person employed as a temporary substitute for a short period is not an employee 0
Workers engaged by the beedi manufacturers directly or through contractors for rolling beedis at home
subject to rejection of defective beedis by the manufacturers are employees0
The inclusion in the statutory definition of an employee, the employee of a

contractor in or in connection with the work of the establishment is certainly
not based on any common law concept of master and servant. The question
has, therefore, to be decided with reference to the statutory definition of
employee in Section 2(f).0
The definition of the word employee in the Act is completely different from
the definitions of worker and workman respectively in the Factories Act
and the Industrial Disputes Act and decisions relating to the meaning of
worker or workman under the said Acts may not be useful in interpreting
the definition of employee under the Employees Provident Funds and
Miscellaneous Provisions Act, 1952. The definition of the term employee in
Section 2(f) of this Act includes all employees who are engaged in or in
connection with the work of the establishment , including a person employed
by or through a contractor in such work, provided they have completed the
period of working days laid down in the scheme for entitling an employee to
the benefits of the fund.0

The definition of the term employee in Section 2(f) of the Act is limited in
scope in comparison to the definition of employee in Employees State
Insurance Act, 1948. It does not include persons who are employed on any
work incidental to or preliminary to the work of the factory, as for example
the work of putting up construction of the factory and staff quarters. 0

A contractor should not be confused with a person employed on piece-rate
basis as it is well recognised that merely because a person is paid on piece-
rate basis, he does not cease to be a servant. A servant can be employed on
time-rate basis as well as on piece-rate basis. 0

Employees employed through a contractor for a work connected with the
work of the establishment have to be considered to be employees as defined
in Section 2(f) irrespective of the fact that the contractor himself was covered
by the Act.0 It is not necessary for taking the employees of the contractor
within the purview of the Act that such employees should be known to the
principal employer. Nor is it necessary that they should be employed after
taking the consent of the principal employer. 0

Under the definition, an employee is a person employed for wages.
Wages may be interpreted to mean compensation paid to a hired person for
his service. Compensation to the labourer may be a specified sum for a given
time of service or a fixed sum for a specified work, that is, payment made by
the job. The word wages by itself does not imply that the compensation is
to be determined solely upon the basis of time spent in service; it may be
determined by the work done. It means compensation estimated in either
way0
The definition of employee takes in the employees of an employer as well
as the employees of the contractor. But it should be clear that the contractor
himself would not be an employee. If the position of the worker or labourer
under scrutiny is that of a contractor, what would be payable to him under
contract could not be wages, and the contract itself could only be a contract
for service and not a contract of service. 0

The real meaning of the terms employee and wages must be gathered
from this very Act and it was not legitimate to import into it the provisions of
another Act. There was nothing in this Act to exclude from the category of
employees any person who might be in receipt of remuneration exceeding
Rs.200 per month.
Both salary and wages are emoluments paid to an employee by way of

recompense for his labour. The Act does not make any distinction between
salary and wages and it applies to both. 0

The terms of the definition of the word employee are wide. They include not
only persons directly employed by the employer but also those employed
through a contractor. They include not only those employed in the factory but
also those employed in connection with the work of the factory. 0This
discussion may not be complete without referring to the oft quoted four
indicia of a contract of service recapitulated by Lord Thankerton in the
pronouncement of the House of Lords in Short v. J & W Henderson Ltd.0,

viz., (1) the masters power of selection of his servant, (2) the payment of
wages or other remuneration, (3) the masters right to control the method of
doing the work, and (4) the masters right of suspension or dismissal. 0
Analysing the four indicia in the context of the language employed in Section
2(f), it is obvious that since the persons employed by or through a
contractor are covered, the first and the last indicia relating to the masters
power of selection of his servant and his right of suspension or dismissal
become irrelevant considerations so far as an employee under this Act is
concerned. The stipulation that the employee must be employed for wages
and must be one who gets his wages directly or indirectly from the
employer takes care of the second indicium, viz., payment of wages ot other
remuneration.0As regards the third indicium, namely, the masters right to

control the method of doing work, firstly, it also retains its relevance, if at all,
only where an employee has to be distinguished from a contractors
employee as the definition covers contractors employees also. 0

The definition of employee as contained in Section 2(f) was wide enough to
take within its sweep a person permitted to work at his residence as well and
further that even if a person was not wholly employed, but was principally
employed in connection with the business of the shop, he would be a person
employed within the meaning of the statutory language. 0

In order to answer the question (whether a person is an employee) some
other questions have to be asked and answered, viz.,:
1
Was he doing the work for monetary payment?
Was the work done by him the work of the establishment or did it have
a nexus with such work?
Was the payment made wages in the sense of being remuneration for
the physical or mental effort in connection with such work?
Was the work such that it had to be done as directed by the

establishment or under its supervision and control are possible having
regard to the specialised nature of the work or the skill needed for its
performance?
Was the work of such a nature and character that ordinarily a masterservant relationship could exist and but for the agreement styling it as
a contract, common practice and commonsense would suggest a
master-servant bond?
Was the relation indicative of master-servant status in substance

having regard to the economic realities irrespective of the
nomenclature devised by the parties?
Was he required to do the work personally without the liberty to get it
done through someone else?0

If these answers nod their heads , a master-servant relationship can be spelt
out with safety and certainty. The relationship is not less a master-servant
relationship in case the person is allowed to work, (1) at his own place and/or
(2) at the hours of his own choice, and/or (3) for someone else? 0
The reason is neither obscure nor far to seek. In private employment there is
no legal bar to work for someone else. Nor to doing the work elsewhere than
at the masters place. Concept of flexible hours is also a well-known concept
since many years.0

A cashier employed during daytime by a chemist is no less than an employee
of the master merely because after his day is over he works at another
chemists shop as cashier at night. Thus, a master-servant relationship exists
and parties cannot make it a different relationship by applying the label of
contract.0
An employee called by any other name remains an employee for the juridical
relationship does not depend on the nomenclature devised in order to defeat
the law. And the law will not countenance a slap in its face by its nonrespectors who choose to flout it by disingeneous and circuitous devices. If
entry is prohibited, it is prohibited, regardless of whether one effects it
through the front door or the back door.0

The mere fact that the terms of the contract provided that the work should
be done within the precincts of the factory, gave the owner no more control
over the time of the worker than what he would have if the worker could take
the yarn away, weave the fabrics anywhere he liked, bring back the finished
goods and claim the remuneration payable. The time spent by the worker
was not at the disposal of or under the orders of the owner of the factory.
Judged by that test it would be difficult to hold that the relationship between
the worker and the owner of the factory was that of servant and master; the
worker could only be an independent contractor with reference to each
contract work. It should be clear that the contractor himself would not be an
employee.0
In view of the provisions of Section 2(e) of the Act and Sections 2(13), 2(26)
and 5 of the Companies Act, 1956, the managing director or the director
cannot be treated to be employees of the company. 0
The scope of the words in connection with occurring in the definition of

employee in Section 2(f) is not confined to the work performed in the
factory itself as a part of the total process of manufacture. The definition is
wide to cover the home workers of a beedi manufacturing establishment, who
receive the raw material from the establishment, roll beedis at home and
deliver the same to the manufacturer, subject to the manufacturers right of
rejection of the beedis of inferior quality. Such a right of rejection represents
the manufacturers control and supervision over the home worker and
evidences the master and servant relationship between them. 0
Persons manufacturing beedi and supplying to manufacturer were persons

engaged in or in connection with the work of an establishment. The wages
might be paid to them directly by the employer or indirectly from the
employer through a contractor. The definition in Section 2(f) covered even
persons working at their own homes but working in connection with the
business of the employer.0
Workers preparing khadi at different places and supplying the same to the
Saharsa Zila Khadi Gramodyog Sangh, although not employed in the factory,
were employed in connection with the work of the factory and as such the Act
was applicable to the Sangh.0
The term employee includes not only those persons who actually
manufacture goods but also those who are employed in the office of the
factory or establishment and those who do any other work, for example,
watch and ward in connection thereto. 0
Persons engaged in putting up the factory building and staff quarters of an

establishment manufacturing teleprinters are not employed in or in
connection with the work of the establishment , namely, the manufacture of
teleprinters and hence they do not fall within the definition of employee in
Section 2(f) of the Employees Provident Funds Act. 0
In the pre-1988 period, the term employee could not be extended to
apprentices.0 An apprentice was not an employee as defined in Section 2(f).

Prior to 1988 amendment, no,category of apprentice was covered within the
definition of employee under Section 2(f).36
The heart of the matter is the apprenticeships dominant object and intent is
to impart training on the part of the employer and to accept on the part of
the other person learning under certain agreed terms. That certain payment
is made during the apprenticeship, by whatever name called, and that the
apprentice has to be under certain rules of the discipline do not convert the
apprentice to a regular employee under the employer. Such a person remains
a learner and is not an employee. It is inherent in the words apprentice that
there is no element of employment as such in a trade or industry. 0

By and large, the question whether a part time worker is an employee,
depends upon the facts and circumstances of each case The fact that a
person is a part-time employee and that he is not employed directly in
connection with the work of the establishment alone would not take him out
of the ambit of the term employee. The definition embraces a part-time
employee as also an employee who is engaged for any work in the
establishment which may not necessarily be connected with the work of the
establishment. The person need not be employed in connection with the work
of the establishment but he may be employed in any kind of work, manual or
otherwise, in the establishment. Further, an employee can have more than
one employer.0
Thus, a sweeper who worked twice or thrice a week, a night watchman who
kept watch on other shops also in the same locality and a gardener who
worked on the employers premises ten days in a month and was working
elsewhere also were held to be employees.
The important part of the definition is the fact that the employee in question
must either be working in the establishment or working in some manner in
connection with the work of the establishment; this limits the type of
employee who is covered by the Act. Every employee does not work
necessarily in an establishment or in connection with the work of an
establishment. A municipal employee who is paid bakshish for the purpose
of cleaning the front of a shop would be doing municipal corporations work
which is unconnected with the establishment or the work of the
establishment; he is not covered by the definition. In fact, the sweeper is an
employee of the municipal corporation. Similarly, a chowkidar employed by a
community cannot be said to be working in an establishment nor in
connection with the work of an establishment although he is paid bakshish for
doing something he is already paid to do by somebody else. 0

Where under the bye-laws of a co-operative society, the secretary was a
government servant lent to the society was lent by the Registrar of Cooperative Societies for appointment as secretary of the society, and he
continued to remain as a government servant with all the conditions of
service applicable to him including the rules of pension, he could not be
considered as an employee of the establishment within the meaning of
Section 2(f) even though his salary was paid by the establishment. The
payment of salary was necessitated by the terms of deputation and also
perhaps as per bye-laws of the society and it was certainly not by reason that
he was an employee as defined in Section 2(f) of the Act.0

The associate members of a public charitable trust without right to
participate in the management of the trust who were supplied raw materials
and who prepared eatables, sold by the trust and they were paid wages on
piece rate basis
were employees0
The words in any kind of work, manual or otherwise in the definition of

employee in Section 2(f) would take in all kinds of work. A person doing
liaison work in New Delhi for an establishment situated in Vijayawada would
fall within the definition as there is a direct connection or nexus with the work
of the establishment and as he is a part and parcel of the organisation. 0
Lady members of a society working for wages in the establishment and

manufacturing papad and badis were employees of the establishment within
the meaning of Section 2(f) of the Act.0

Members of a weavers cooperative society who were supplied yarn by the
society and they wove it in their homes and supplied finished cloth to the
society which in turn paid them wages for the work done were employees for
the reason that they were working in connection with the work of the
establishment and were being paid wages on the basis of the work done. 0
The concept of employment has itself undergone a change with the growth of
labor legislation. When employment was a personal relationship between the
master and the servant, the test could be whether the master can order or
require not only what is to be done, but how it shall be done, in which case it
is a contract of service. But, as observed by Lord Parker, C.J. in Morren v.
Swinton and Pendlebury Borough Council, that perhaps is an
oversimplificationThe cases have over and over again stressed the
importance of the factor of superintendence and control, but that it is not the
determining test is quite clear. In Cassidy v. Ministry of Health, Somervell, L.J.
referred to this matter and instanced, as did Lord Denning in the later case of
Stevenson, Jordan & harrison Ltd. v. McDonald & Evans, that clearly
superintendence and control cannot be decisive tests when one is dealing
with a professional man, or a man of some particular skill and experience.
Instances of that have been given in the form of the master of a ship, an
engine driver, or a professional architect, or a consulting engineer. In such
cases there can be no question of the employer telling him how to do work,
therefore, the absence of control and direction in that sense can be of little, if
any, use as a test. These remarks equally apply to the circus artistes who are
skilled persons and whose method of performance cannot be controlled by
the employer. This is why Section 2 (2) (i) of the Act defines employer to
mean the owner or the occupier of a factory or a person in the ultimate
control of an establishment. the definition does not require that the method
of the work of the employees should be controlled by the employer .
Similarly, the definition of an employee in Section 2 (f) of the Act includes any
person who is employed for wages in any kind of work or in connection with
the work and includes a person employed by or through a contractor in or in
connection with the work. The usual distinction between an employee and an
independent contractor is thus abandoned in the Act. 0
Sons of an employer who were employed in his establishment and were paid
wages were employees.0

In case of a driver employed to drive a car for the proprietor of a firm the
driver could either be the employee of the person he drives or an employee
of the company; if he happens to be an employee of the company he would
be deemed to be working in the establishment or in connection with the
work of the establishment. In the case of an individual, the situation is
different. In order to be included as an employee of the establishment he
must be shown to be working either in the establishment or in connection
with the work of the establishment
Partners although drawing salary from the establishment cannot be taken to
be employees within the meaning of S.2(f). 0
An employee will continue to be an employee after his employer stops his
business till his services are terminated as per procedure. 0
(4). Employees State Insurance Act,1948 defines employee to mean

any person employed for wages in or in connection with the work of a factory
or establishment to which this Act applies and(i) who is directly employed by the principal employer on any work of, or
incidental or preliminary to, or connected with the work of the factory or
establishment, whether such work is done by the employee in the factory or
establishment or elsewhere; or
(ii) who is employed by or through an immediate employer on the premises
of the factory or establishment or under the supervision of the principal
employer or his agent on work which is ordinarily part of the work of the
factory or establishment or which is preliminary to the work carried on in or
incidental to the purpose of the factory or establishment; or
iv
whose services are temporarily lent or let on hire to the principal

employer by the person with whom the person whose services are so
lent or let on hire has entered into a contract of service. 0

The term includes any person employed for wages on any work connected
with the administration of the factory or establishment or any part,
department or branch thereof ,or with the purchase of raw materials for or
the distribution or sale of the products of the factory or establishment or any
person engaged as an apprentice, not being an apprentice engaged under
the Apprentices Act,1961(52 of 1962), or under the standing orders of the
establishment.0
But the term employee in the Employees State Insurance act, 1948 does
not include(a) any member of the Indian naval, military or airforce; or
(b) any person so employed whose wages (excluding remuneration for

overtime work) exceed such wages as may be prescribed by the Central
Government a month.0
An employee whose wages excluding remuneration for overtime work

exceed such wages as may be prescribed by the Central Government a
month at any time after (and not before) the beginning of the contribution
period, shall continue to be an employee till the end of that period. 0

Any person employed for wages in or in connection with the work of a factory or establishment or who
satisfies the test propounded in clause (i), (ii).or (iii) of S. 2(9) (of the ESI Act, 1948) is an employee. The
two elements contemplated by the main clause and any of the clauses (i) to (iii), need not exist before a
person could satisfy the definition of an employee. The word and at the end of the main clause is
disjunctive..It need not be read cumulatively with one or the other of the clauses (i) to (iii) because if the
employment must of necessity be in connection with the work of the factory, the provisions of clause (ii)
would b unintelligible as that clause provides for the work which is inter alia incidental to the purpose of
the factory or establishment0
The expression employed involves the connotation of the relationship between a person employed and the
employer in being one of master and servant0
The staff in a canteen attached to a factory come within the definition of the term employee 0
An intellectual or artistic labour , who received wages as remuneration for work, if done in a manufacturing
process is a person employed0
A person who does anything directly or indirectly towards the making of an article manufactured in a
factory up to any stage till they ready to be delivered and put in the market is employed in the factory.0
A person employed need not be for manual work 0

The work which is the prime factor is the work of the factory. Factory means the premises wherein a
manufacturing process is being carried on. It follows that only persons who are in some manner or another
connected with the said work, viz., manufacturing process, that can be said to be employees within the
meaning of the definition.0

Once a factory or establishment falls within the scope of the Act it is the intention of the law that every
employee of the employer however employed is to be covered by the Act and if there is to be any
discrimination between different classes of employees in respect of the beneficent provisions of the Act
there might be an infringement of Article 14 of the Constitution unless it could be shown that there was
some reasonable ground for discriminating between different classes of persons employed by the employer 0
Any work that is conducive to the work of the factory or establishment or that is necessary for the
augmentation of the work of the factory or establishment will be incidental or preliminary to or connected
with the work of the factory or establishment 0 The work of construction of additional buildings required
for the expansion of a factory must be held to be ancillary incidental or having some relevance to or
linkwith the object of the factory because it will result in expansion of the factory and increase in the
production. Such work need not always have some direct connection with the manufacturing process that
is carried on in the factory0

Any process of cleaning raw materials for the preparation of food is a work incidental to or connected with
the manufacturing process of preparing food. Hence persons engaged in a hotel ,which operated an electric
peeler and other electric appliances for its works, for peeling potatoes before using the potatoes for
making edible items could be counted for the purpose of ascertaining the number of persons employed for
the purpose of Section 2 (12)0
Gardeners, building workers, office attenders , watchmen etc. , employed in respect of a factory are
employees within the meaning of Section 2(9) 0
The definition of an employee in the Employees State Insurance Act is wider than that of worker in the
Factories Act.0 The benefits of the Factories Act do not extend to field workers outside the factory. The
benefits of the employees State Insurance Act extends , inter alia, to the employees mentioned in Section
2(9) (i) whether working inside the factory or establishment or elsewhere 0. A person doing non- manual
work can also be an employee under the ESI Act if he is employed in connection with the work of the
factory. 0The duties of the administrative staff are directly connected with the work of the factory. The
clerical and administrative staff engaged for the work the factory are also covered under the ESI Act.0
A person employed in a companys office at a place far off from the companys factory but doing the work
which was incidental or preliminary to or connected with the work of the factory was an employee within
the meaning of Section 2(9)0Only those employees of the administrative office of the employer are
employees within the meaning of Section 2 (9) who have anything to do either directly or incidentally with
the work of the factory. 0

The members of administrative staff and of the editorial staff of the printing presses are employees within
the meaning of Section 2(9) even in absence of a notification under Section 1(5) making the Act applicable
to them because they were directly employed by the management concerned on work incidental or
preliminary to or connected with the work of the factory. The work of the factory, being printing and
publishing of a newspaper could not be carried on without the assistance of the members of the editorial
staff who prepare the necessary material for printing the newspaper and of the administrative staff which
is needed for managing the affairs of the factory. The members of the editorial staff fall clearly under clause
(I) of Section 2(9).It is so even in the case of administrative staff. They fell under the clause containing the
words includes any person employed for wages on any work connected with the administration of the
factory0
Persons engaged in the distribution or sale of the products of a factory come within the definition of the
term employee. 0If certain person are employed principally for the work of a particular factory although
they do some other work also, would nevertheless be attracted by the definition 0
The work of a factory cannot be confined to manufacturing process. Even sales clerks working in the
factory for selling its products have been held to be its employees within the meaning of Section 2(9) 0
Persons doing the work of transforming and transmitting electrical energy as well as the employees of
substations are covered under the ESI Act0
A person employed in ginning and pressing cotton, 0a person who works in a factory (whether for wages or
not) in any of the capacities enumerated in the clause,0 a person employed in repairing machinery or putting
up new machinery even if such machinery is not in actual use at the time, in erecting a new boiler for an
electric Supply company though it cannot then be used for generating power,0 an intellectual or artistic
person, if he receives wages or remuneration for work connected with the manufacturing process,0 a
watchman, if employed in any other kind of work whatsoever , incidental to connected with the subject of
manufacturing process,0 a person employed in a kitchen in preparing articles for sale, a person employed in
cleaning any part of the premises where manufacturing process is carried on are all covered under the
definition of worker in the Factories Act or employee in the ESI Act0
Persons employed in manufacturing of cigars on piece work system are workers. The fact that they are not
paid time wages does not take them out of the definition of worker0
A person working in the soap works as a carpenter and preparing the packing cases could be included as
worker because he could be legitimately be considered to be engaged in a kind of work incidental to or
connected with , the subject of the manufacturing process, viz., packing of soaps for being sent out for sale.
The fact that he might have been a casual worker would make no difference because to enable a person to
be a worker it may be that he may receive wages upon the basis of time work or it may be that he may
receive remuneration upon the basis of piece work or he may even be an apprentice or merely a honorary
worker the expression worker has a very wide import and would take in all these persons.0
Persons employed in the kitchen in preparing articles for sale must be held to be worker 0. A person
employed in cleaning the premises in any part of which such manufacturing process is carried on will also
be a worker 0
Workers employed in a hospital attached to and maintained by a factory as defined in Section 2 (12)
exclusively for the benefit of its employees and their families are employees employed in connection with
the work of the factory even though the maintenance of such hospital was not for compliance with any
statutory provision. Hence they were employees within the meaning of Section 2 (9)0
Where the agreement between parties amounted to a contract of employment and the consideration for the
work amounted to wages within the meaning of Section 2 (22) the party alleged to be stockists comprised
salesmen and not stockists. Mere entitlement to commission on sales could not exclude them from the
definition of employee0
The watch and wad staff, the accounts staff, the transport staff the canteen staff, are employees in
connection with the work of the factory and are employees within the meaning of Section 2(9) 0
Employees in the office of the Executive Engineer of Rajasthan State Electricity Board are employees
within the meaning of Section 2 (9) 0

The period need not necessarily indicate that one is in the service of the other. An employment of a person
may be governed by a contractual obligation in executing a particular work. Such a person is not
employed.. A porter or a plumber may be working for wages but he is not the person employed
It is neither the length of time for which a person serves nor the manner in which the parties choose to refer
to such services that would be relevant; the question would be whether there was a contract of service
resulting in the relationship of master and servant. In the absence oft his there would be no scope for
coverage0
A shareholder of a cooperative society can be an employee of the society and be entitled to be covered
under the Employees State insurance Act 0
The question whether there is employer employee relationship between an employer and a worker depends
upon several factors. Control is an important factor and in many cases it may be the decisive factor.0 The
place of work may be another factor; when the services are performed in the employers premises would
be an indication of a contract of service.0 If the employer provides the equipment that would also be an
indication of contract of service. 0If the employer has the right to reject the end product if it does not
conform to his instructions and to direct the worker to redo it, it would be indicative of the control and
supervision excercised by the employer which is an essential element of the employer employee
relationship0
A part time worker can be an employee0 A part time doctor who is required to be n charge of the
ambulance room under the Factories Act, is nonetheless engaged in a work incidental or preliminary to or
connected with the work of the factory or establishment. Hence such a doctor is an employee within the
meaning of Section 2(9)0

The language used in the definition of the term employee is extensive and diffusive imaginatively
embracing all possible alternatives of employment by or through an independent employer. In such cases,
the principal employer has no direct employment relationship since the immediate employer of the
employee is someone else. Even so, such an employee ,if he works (a) on the premises of the
establishment, or (b) under the supervision of the principal employer, or his agent, on work which is
ordinarily part of the work of the establishment or which is preliminary to the work carried on in or
incidental to the purpose of the establishment qualifies to be an employee under the Act 0. The plurality of
persons engaged in various activities who are brought into the definitional net is wide and considerable;
and all that is necessary is that the employee be on the premises or be under the supervision of the
principal employer or his agent0. Assuming that the last part of Section2 (9) (ii) qualifies both these
categories , all that is needed to satisfy that requirement is that the work done by the employee must be
such (a) such as is ordinarily ( not necessarily non statutorily) part of the work of the establishment , or (b)
which is merely preliminary to the work carried on in the establishment; or (c) is just incidental to the work
carried on in the establishment.0All that the statute requires is that the work should not be irrelevant to the
purpose of the establishment. It is sufficient if it is incidental to it. A thing is incidental to another if it
merely appertains to something else as primary. Surely, such work should not be extraneous or contrary to
the purpose of the establishment but need not be integral to it either. .Much depends on time and place,,
habits and appetites, ordinary expectations and social circumstances0

The question whether an office establishment where no manufacturing process is carried on is part of an
establishment where a manufacturing process is carried on depends on the consideration of the following
aspects:; firstly whether there is any geographical or physical unity in the premises.; secondly, whether
there is unity of ownership or occupation of the two premises; thirdly, whether there is any unity of
employment in the sense that the employees of the two premises are engaged either by th principal
employer or by him through the immediate employer and lastly whether there is unity in the work carried
on in the factory premises and the office establishment.0
The principal requirement of a contact of service is the right of the master in

some reasonable sense to control the method of doing the work , the nature
and extent of the control must necessarily vary from business to business
and it is by its very nature incapable of precise definition 0
(5)Employment Exchanges(Compulsory Notification of Vacancies) Act, 1959 defines employee to
mean any person who is employed in an establishment to do any work for remuneration0
(6)Minimum Wages Act, 1948 defines employee to mean any person

who is employed for hire or reward to do any work, skilled or unskilled,
manual or clerical, in a scheduled employment in respect of which minimum
rates of wages have been fixed; and includes an out-worker to whom any
articles or materials are given out by another person to be made up, cleaned,
washed, altered, ornamented, finished, repaired, adapted or otherwise
processed for sale for the purposes of the trade or business of that other
person where the process is to be carried out either in the home of the outworker or in some other premises not being premises under the control and
management of that other person; and also includes an employee declared
to be an employee by the appropriate Government; but does not include any
member of the Armed Forces of the Union.0
The term employee includes an ex employee.0
The term employee does not include ex-employee. 0
If an outworker prepares goods at his residence and then supplies them to

the employer , he for the purpose of the Minimum Wages Act to be treated as
an employee.0
The definition of the term employee does not exclude daily rated casual or
temporary employees from the purview of the Act.0

Weavers are outworkers to whom articles or materials are given by the
master weavers to be processed for the purpose of their trade or business.
Even if the process is carried out in the home of the outworker the said
worker is an employee
An employee who has been dismissed discharged or retrenched from the

employment or whose employment has been otherwise terminated will in
respect of all claims arising our of less than the minimum rates of wages or in
respect of the payment of remuneration for days of rest or for work done on
such days or of wages at the overtime rate during the period of his
employment be deemed to be an employee for purpose of the Act. 0
The term employee includes any person who has been an employee and who has ceased to be so by reason
of superannuation, retirement, dismissal, removal, discharge, termination of service or otherwise howsoever
The term employee includes any person who has been an employee and who has ceased to be so by reason
of superannuation, retirement, dismissal, removal, discharge, termination of service or otherwise howsoever
for purpose of S.20 to S22D relating to claims offences and penalties.0
(7) Payment of Bonus Act, 1965 defines employee means any person(other than an apprentice)
employed on a salary or wage not exceeding three thousand and five hundred rupees per month in any
industry to do any skilled or unskilled, manual, supervisory, managerial, administrative, technical or
clerical work of hire or reward, whether the terms of employment be express or implied.0.
(8)Payment of Gratuity Act, 1972 defines employee to mean any person (other than an apprentice)
employed on wages in any establishment, factory, mine, oilfield, plantation, port, railway company or
shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether
the terms of such employment are express or implied, and whether or not such person is employed in a
managerial or administrative capacity, but does not include any such person who holds a post under the
Central Government or a State Government and is governed by any other Act or by any rules providing for
payment of gratuity.0
Whether a person is an employee can be determined
on the basis of his
duties and not on the basis of his qualification or hierarchy of the office. 0
Definition of the term employee suggested in the India Labour

Code
Employee means any person employed by an employer, irrespective of the

nature of his avocation to do any work for wages , hire or reward and
includes an outworker and and an agricultural worker but does not include
a person
(1) who is subject to Army Act, 1950 (46 0f 1950 or the Airforce Act
1950 of the navy Act 1957 or;
(2) who is employed in the police service or an officer or other employer
of a prison or;
(3) who is employed as Managing director , director, general manager or
person in charge of an establishment and excercises substantial
powers of management
15. Definition of workman and worker
(1) In the Contract Labor (Regulation and Abolition Act), 1970, Act 37
1970, the term workman has been defined to mean any person employed
in or in connection with the work of any establishment to do any skilled, semiskilled or unskilled manual, supervisory, technical or clerical work for hire or
reward, whether the terms of employment be express or implied t does not
include any such person(A) who is employed mainly in managerial or administrative capacity;
or
(B) who, being employed in a supervisory capacity draws wages
exceeding five hundred rupees per month 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
and 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 purposes 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 othewr premises, not being premises under the
control and management of the principal employer. 0
The essential condition of a person being a workman is that he should be
employed to do the work in that industry. 0.
A person mainly doing supervisory work and incidentally or for a fraction of

time doing some clerical work would be treated to be employed in a
supervisory capacity. But if the main work is clerical mere doing of some
supervisory duties incidentally or as a fraction of the main work would not
convert his employment into one of supervisory capacity. 0
The expression work of an establishment used in the definition of

workman or contractor is not the same as the expression other work in
any establishment in Section 10 [of the Contract labor ( Regulation and
Abolition )Act 1970}. Workmen need not be doing work same or incidental to
that of principal employer0
(2)Employers Liability Act, 1938, Act No. 24 of 1938, defines

workman to mean any person who has entered into or works under a
contract of service or apprenticeship with an employer whether by way of
manual labour, clerical work or otherwise, and whether the contract is
express or implied, oral or in writing.0
(3)Equal Remuneration Act, 1976, Act 25 of 1976, defines worker to

mean a worker in any establishment or employment in respect of which this
Act has come into force.0
(4)Factories Act,1948, Act 63 of 1948, defines worker to mean a

person employed , directly or by or through any agency (including a
contractor) with or without the knowledge of the principal employer, whether
for remuneration or not, in any manufacturing process or in cleaning any part
of the machinery or premises used for a manufacturing process, or in any
other kind of work incidental to, or in connection with, the manufacturing
process, or the subject of the manufacturing process but does not include any
member of the armed forces of the Union.0

The expression employed referred in Section 2(1) of the Act does not
necessarily involve the relationship of master and servant. If one is
employed on wages, there may be a relationship of master and servant.
There are many other conceivable cases in which a relationship of master
and servant may not exist at all, yet the person would continue
to be a
worker under the Act.0
The expression employed referred to in Section 2(10 of the Act, does not
necessarily involve the relationship of master and servant
To be a worker there must be a contract of employment ; in other words, a

contract of service and not a contract for service . There must also be a right
of supervision and control as to the manner in which the work has to be
done.0 It is important to establish that the person is employed under a
contract of service .0When the service of a worker are performed in the

employers factory that itself gives some indication that the contract is a
contract of service.0
The expression directly or through any agency indicate that employment is

by the management either directly or through some kind of employment
agency and in either case there is a contract of employment; in other words,
contract of service between the management and the person employed. 0
The words within the brackets , namely, including a contractor were added
by the Act.94 of 1976. The effect of the said amendment is that even a
worker engaged through a contractor and working in a factory falls within the
definition of worker for the purpose of the Factories Act. All the beneficial
provisions in the Act apply with equal force to such workers/ labourers
employed through a contractor. This was done evidently with a view to
ensure that the benefits of the several regulatory and welfare measures,
provided by the Act extends to such contract labor as well. Prior to
amendment an occupier of a factory could well say that the contract
labourers have no right to avail any of the benefits provided by him as
required by the Act; for example, canteen facility . It is well known that the
food items supplied in the canteens are made available at almost nominal
charges. If the contract labour is not included within the meaning of the
expression of worker; the contract labor would not been entitled to the said
benefit/ facility
A factory may employ workers who receive wages as remuneration for the
work done by them; the same factory may also employ an honorary worker or
a learner /apprentice who works in the factory to learn work. The expression
whether for wages or not denotes that such workers who donot receive
wages or remuneration for the work done in connection with a manufacturing
process should also be treated as workers of the factory. 0
All workers within the meaning of Section 2(l) would be employees while
employees would not be workers.0
Worker does not contemplate the existence of relationship of master and
servant between employer and employee0
In absence of relationship of master and servant person engaged on piece
rate basis is not worker0
Persons receiving fixed wages or being paid according to quantum of work
are workers0. Workers engaged by piece rate contractors are workers of the
establishment engaging such contractors. 0
Persons working without the knowledge or intervention of the employer
cannot lead to the presumption that they are workers. 0
The provision of Section 80 cannot apply to a person who comes and works at
his sweet will in the factory and such person will not fall within the definition
of worker.0The mere fact that the worker is not bound to come on every day,
that he would come and join the work on any day, that he could go on leave
whenever he liked after informing the owner or occupier and that he could
work in any factory or not are material in determining the relationship of
master and servant. The definition of factory itself sufficiently indicates that
the liberty of the person to come or not on a particular day would not detract
from his being a worker. According to another view a person who comes and
works at his sweet will is not a worker
(0)
Whether a person is a worker depends upon the terms of contract between

him and the employer . Worker does not include an independent contractor
or his coolies or servants who are not under the control and supervision of
the employer. There should be privity of contract between management
and employees. If an employer has no control over the work done by the
employees, they are not workers. So where the management could not
regulate the manner of discharge of the work of a Bidi contractor that
contractor was an independent person who performed his part of the
contract of making bidis and delivering at the factory and bidi workers are
not the workers of the accused factory 0
The question whether a person is a worker or not depends on the facts and
circumstances of each case, whether he works in a factory and whether he is
connected with the manufacturing process. If the nature of his work is such
that it is incidental to the manufacturing process then he would be a worker
under the Act.
A person working in a factory to be a worker must be employed exclusively

in that manufacturing process or in cleaning the machinery or the premises
used for the manufacturing process or in any other kind of work incidental to
or connected with the manufacturing process. 0
Persons employed in manufacture of cigars
on piecework system are
workers.0
Workmen in a motor transport company are not workers. 0
Persons engaged by Manager directly or through any other agency and their
wages are paid either by the manager directly or through the agency
through whom he engages them, will be workers. 0
Partners working in their concern are not workers 0
Field workers who are employed for guiding, supervising, and controlling the
growth and supply of sugarcane to be used in a factory will not be governed
by the provisions of the Act.0
Any person whatever be the designation working in a place which is declared
as a factory is a worker.
Any person whatever be his designation whether employed or not, working in
a place which is or is declared to be a factory is a worker 0
The term person means both male and female. It includes any company or
association or body of individuals, whether incorporated or not. 0

A person is a worker under Section 2 (l) if he is a person employed in the
premises or precincts of the factory in any kind of work connected with the
subject of the manufacturing process. 0 A person will be a worker only when

the said person is employed in the premises or precincts of the factory, in any
kind of work, which is connected with the manufacturing process 0.
There are four indices to determine whether there is a contract of service;

they are:
1.the masters power of selection of his servant
2.
payment of wages or other remuneration
3.
the masters right to control the method of doing the work; and
4.
the masters right of suspension or dismissal. The critical test of
relationship of relationship of master and servant is the masters right of
superintendence and control of the method of doing the work. 0
A worker engaged through a contractor and working in a factory falls within

the definition of worker. All the beneficial provisions of the Act apply to such
worker with equal force
(0)
A factory may employ workers who receive wages as remuneration for the
work done by them. It may also employ honorary workers or learners or
apprentices who work in the factory to learn work. Such persons who do not
receive wages or remuneration are also workers 0 .

The distinction between an independent contractor and a servant lies in the
fact that the independent contractor would be charged with a work and he
must produce a specified result but the manner in which the result would be
achieved is left to him. A servant, on the other hand, though charged with a
work and required to produce a result , is subject to the direction of the
master pertaining to the manner in which the result may be achieved 0 .
A person who cleans not only any part of the machinery installed in the
premises but also the premises used for the manufacturing process is a
worker 0.
Duties performed by time keepers in a factory is a kind of work incidental to
or connected with the manufacturing process. They are therefore workers 0 .
The work of maintaining accounts in a factory is a kind of work incidental to
the manufacturing process 0.
Repairs of machinery are incidental to or connected with the manufacturing
process 0.
A canteen is incidental to or connected with the manufacturing process 0 .
The subject of the manufacturing process refers not only to the finished
product but also to articles to which manufacturing activity is being applied
for deriving such finished product or end product 0.

The words the subject of the manufacturing process must be read with the
preceding words in the definition which contemplates employment in a
manufacturing process or in any work incidental to or connected with it.
Therefore, these words refer to an article while it is in process of manufacture
The basic raw materials such as waste paper rags etc., used in the
manufacturing process for producing paper constitute the subject of the
manufacturing process 0.
When the provisions of the Factories Act, 1948 are extended under Section 85
of the Act the persons who are not strictly workers will become deemed
workers 0.
Casual and temporary workers are workers under the Act 0.
The term worker would include persons like manager, typist, physicist, store
keeper, accountant, and assistant manager if their work is incidental to or
connected with the manufacturing process 0.
Persons working in the administrative or accounts section though not
working on the shop floor of the factory are also workers 0

The work of maintaining or keeping of accounts is a factory is a work
incidental to the manufacturing process. Therefore the munim or accountant
who keeps the accounts will be a worker. 0Clerks or accountants may be

found physically working in the administrative block inside the factory
campus but it must be shown that such clerks or accountants are governed
by the provisions of the Act.0If an accountant of a factory is a worker a time
office clerk could also be considered as a worker under the Act. 0 the work
performed by the time keepers working in a factory can be said to be
incidental to or connected with the manufacturing process and therefore
they are covered under the definition of worker.
Persons employed in clerical work indispensably connected with any
manufacturing process are workers 0 .

A Sectional Officer, in the waste paper department of a paper factory,
engaged in supervising and checking quality and weighment of waste papers
and rags, which are the basic raw materials for the manufacturing of paper,
dealing with the receipts and maintaining records of stocks, passing bills of
the suppliers of the waste paper and rags and checking the quality of the
supplies is a worker since his work is connected with the work or the subject
of the manufacturing process, namely the raw materials. 0
Persons working in various capacities in a dispensary attached to a factory
are workers 0 .
Salesmen 0, field workers

Act, 1948.
and drivers
are not workers under the Factories
A member of the watch and ward staff, whether he is a permanent employee

of the factory or whether he has been engaged on contract basis o through
an agency will be a worker.0
Persons employed for construction or repair of a workshop are workers ( 0).
In absence of relationship of master and servant, a person engaged on
piece rate basis is not worker 0.
Persons receiving fixed wages or being paid according to quantum of work
are workers.0
Casual, heterogeneous, miscellaneous and irregular group of women and girls

doing the peeling and washing etc., of prawns brought to the premises at
piece rate are not workers.0
Canteen workers supplying basic and essential amenities to the workers
engaged in manufacturing process are deemed as workers. 0
Employees of canteen maintained by company under Section 46 are
workmen within ID Act.0

The following are not workers :
The work of the factory ends with the production of manufacturing products.
As such a salesman is not a worker as his work is not connected with the
manufacturing process or incidental to or connected with or the subject of
the manufacturing process.0
Field workers who are employed in guiding supervising and controlling the
growth and supply of sugarcane used in the premises of a registered factory
are not employed either in the precincts of the factory or in the premises of
the factory and therefore such field workers are not workers under the Act
The benefits of the Act are not applicable to the field workers working
outside the factory as they are not workers under the Act
Persons being tested for suitability for appointment are not workers in spite of
their working in connection with the manufacturing process until they are
accepted and employed0
Drivers not connected with the manufacturing process cannot be treated as
workers.0 Workers working in a motor transport company are not workers
under the Factories Act
Dismantling of machinery plant and equipments, etc., installed in an existing

factory and transporting them for purposes of shifting to a new premises is
not covered by the definition of manufacturing process . Persons engaged on
such work are not workers under the Act.0
Persons doing work without the knowledge or intervention of the employer
cannot lead to the presumption that they are workers. 0
A person who comes and works at his sweet will is not a worker. 0
Partners working in their concerns are not workers. 0
(5) Industrial Disputes Act, 1947 defines Workman to mean any person
(including an apprentice) employed in any industry to do any manual,
unskilled, skilled, technical, operational, clerical or supervisory work for hire
or reward, whether the terms of employment be express or implied, and for
the purposes of any proceeding under this Act in relation to an industrial
dispute, includes any such person who has been dismissed, discharged or
retrenched in connection with, or as a consequence of that dispute, or whose
dismissal, or discharge or retrenchment has led to that dispute, but does not
include any such person(I) who is subject to the Air Force Act, 1950(45 of 1950), or the Army
Act,1950(46 of 1950), or the Navy Act, 1957(62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee
of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages
exceeding one thousand six 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. 0
For an employee in an industry to be a workman under this definition, it is

manifest that he must be employed to do skilled or unskilled manual work,
supervisory work, technical work or clerical work. If the work done by an
employee is not of such a nature, he would not be a workman. The
specification of the four types of work obviously is intended to lay down that
an employee is to become a workman only if he is employed to do work of
one of those types, where there may be employees who, not doing any such
work, would be out of the scope of the word workman without having to
resort to the exceptions. It cannot be held that any employee of an industry
has to be a workman except those mentioned in the four exceptions as in
that case these four classifications need not have been mentioned in the
definition and a workman could have been defined as a person employed in
an industry except in cases where he was covered by one of the exceptions.
In case where an employee is employed to do purely skilled or unskilled
manual work, or supervisory work, or technical work, or clerical work, there
would be no difficulty in holding him to be a workman under the appropriate
classification. Frequently, however, an employee is required to do more than
one kind of work.0
In such cases, it would be necessary to determine under which classification

he will fall for the purpose of finding out whether he does not go out of the
definition of workman under the exceptions. The principle is now well
settled that, for this purpose, a workman must be held to be employed to do
that work which is the main work he is required to do, even though he may
be incidentally doing other type of work. 0
The definition of workman in Section 2(s) of the Act includes within its fold,
only for the purpose of a proceeding under the Act in relation to an industrial
dispute, persons who have been dismissed, discharged or retrenched in
connection with or as a consequence of that dispute or, whose dismissal,
discharge or retrenchment has led to that dispute. The definition specifically
excludes from its purview four categories of persons employed in an industry,
who would have otherwise been within the periphery of the definition. But,
because the definition includes only specified types of dismissed, discharged
or retrenched workmen, for limited purposes and expressly excludes certain
categories of persons, it cannot, on that account, be contended that the
definition is precise and exact and cannot be extended to other dismissed,
discharged or retrenched workmen whose claim requiring computation is in
respect of an existing right arising out of his relationship as an industrial
workman of his employer.0
The amendment to Section 2(s) of the Industrial Disputes Act in 1956

introduced among the categories of persons already mentioned as workman
persons employed to do supervisory and technical work. So far the language
of the earlier provisions was used. When, however, exceptions were
engrafted, that language was departed from in clause (iv) partly because the
draftsmen followed the language of clause (iii) and partly because from
persons employed on supervision work some are to be excluded because
they draw wages exceeding Rs.500 per month and some because they
function mainly in a managerial capacity or have duties of the same
character. But the unity between the opening part of the definition and clause
(iv) was expressly preserved by using the word such twice in clause (iv) in
the opening part. The words, which bind the two parts are but does not
include any person showing clearly that what is being excluded is a person
who answers the description employed to do supervisory work and he is to
be excluded because being employed in a supervisory capacity he draws
wages exceeding Rs.500 per month or exercises functions of a particular
character.0
Workman here includes an employee employed as supervisor. There are

only two circumstances in which such a person ceases to be a workman. Such
a person is not a workman if he draws wages in excess of rs.500 p.m. or if he
performs managerial functions by reason of a power vested in him or by the
nature of duties attached to his office.
He goes out of the category of
workman on proof of the circumstances excluding him from the category. 0
The words any skilled or unskilled manual, supervisory, technical or clerical work are not intended to
limit or narrow the amplitude of the definition of workman. On the other hand they indicate and
emphasise the broad sweep of the definition which is designed to cover all manner of persons employed in
an industry, irrespective of whether they are engaged in skilled work or unskilled work, manual work,
supervisory work, technical work or clerical work. Quite obviously the broad intention is to take in the
entire labour force and exclude the managerial force. That, of course, is as it should be. The Parliament
could never be credited with the intention of keeping out of the purview of the legislation small bands of
employees who, though not on the managerial side of the establishment, are yet to be denied the ordinary
rights of the forces of labor for no apparent reason at all.0
The literal construction of the clause employed in any industry cannot be

accepted and that means that employed in any industry must take in
employees who are employed in connection with operations incidental to the
main industry. Once this concept of incidental connection with the main
industry is introduced the literal construction has to be rejected. Thus an
employee who is engaged in any work or operation which is incidentally
connected with the main industry of the employer would be workman
provided the other requirements of Section 2(s) are satisfied. 0
The expression employed has at least two known connotations but as used
in the definition, the context would indicate that it is used in the sense of a
relationship brought about by express or implied contract of service in which
the employee renders service for which he is engaged by the employer and
the latter agrees to pay him in cash or in kind as agreed between them or
statutorily prescribed. It discloses a relationship of command and obedience.
The essential condition of a person being a workman within the terms of the
definition is that he should be employed to do the work in that industry and
that there should be a 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 that term as contained in the Act. 0
The mere fact that a worker was a piece-rate worker would not necessarily
take him out of the category of a worker. 0 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. 0
The word wages in Section2(s) iv)must be read in the light of the definition
of wages contained in Section 2(rr)which includes allowances within the
meaning of wages.0 The Industrial Disputes Act does not require that the
workman should necessarily receive wages or remuneration in the ordinary
way. Any reward for hire is sufficient and this would include remuneration on
the basis of a rate per unit or measure of work done. 0
Letters Challan workers do not fall within the expression ordinary unskilled
workers which means such unskilled workers as work for the prescribed
period of a full day.0
Where an employee has multifarious duties and a question is raised whether

he is a workman or someone other than a workman, the test that court must
employ in order to determine the question is what was the primary, basic or
dominant nature of duties for which the person whose status is under enquiry
was employed. If he is incidentally asked to do some other work, which may
not necessarily be in tune with the basic duties, these additional duties
cannot change the character and status of the person concerned. When
primary or basic duties of a person are shown to be clerical but some stray
assignments are made to create confusion, the gloss has to be removed to
peruse the reality. A few extra duties would hardly be relevant to determine
his status. The words like managerial or supervisory have to be understood in
their proper connotation and their mere use should not detract from the
truth.0
There is a distinction between accountants who are really officers and

accountants who are merely senior clerks with supervisory duties. A senior
clerk doing merely clerical duties, going by the designation accountant was in
reality a clerk as defined in the Act though doing an element of supervisory
work. Such a person, therefore, does not cease to be a workman on his being
appointed as an accountant.0
Where the person has to write ledgers, file correspondence, enter the cash
book, etc., he is a workman.0
C rank officers in a bank are workmen. 0
The work of preparing bank reconciliation statements cannot be said to be of

supervisory nature. In order to see that there are no error in credits and
withdrawals and the balance is drawn at regular intervals, reconciliation of
figures in the account of both the parties is undertaken. This is one of the
most mechanical types of clerical work.0
The work of putting up indent for printed stationery also does not indicate
any administrative work. If the department collects the details from every
employee working in the department and one of them undertakes the same,
it hardly makes any difference in the status and character of the employee.
Directions given by the appellant-clerk to other clerks to take note of certain
documents and report them to him cannot be said to be either managerial or
supervisory function but in fact clerical inasmuch as he used to give such
directions as part of his duty. Similarly, endorsement made by the appellantclerk on the extract of the minutes of the meeting of the board of directors
and request made by him to other colleagues to take note of the same is the
work of the clerk attached to the department connected with meeting of the
board. Difference in salary is hardly decisive. Focus has to be on the nature of
the duties performed.0
A head-clerk in a transport authority is a workman. 0
The question whether a particular workman is a supervisor within or without

the definition of workman is ultimately a question of fact, at best one of
mixed fact and law and will really depend upon the nature of the industry, the
type of work in which he is engaged, the organisational set-up of the
particular unit of industry and like factor. 0
Occasional entrustment of supervisory functions will not take a person,
mainly discharging clerical duties, out of the purview of Section 2(s). 0
The work of checking up books of accounts and entries made in them is

primarily a process of accounting, and the use of the word checking cannot
be permitted to introduce a consideration of supervisory nature. The work of
checking the authority of the person, passing the voucher or to enquire
whether the limit of authority has been exceeded is also no doubt work of a
checking type but the checking is purely mechanical, and it cannot be said to
include any supervisory function. Characterising the work of these clerks as
internal auditors obviously is an over-statement. Audit in the sense in which
the word internal audit is understood is very different from the work of
checking which is entrusted to the clerks in the audit department. It would be
legitimate to say that the work done in the audit department is important for
the proper and efficient functioning of the bank, but it would be idle to
elevate the work to the status of officers who supervise the work of
everybody concerned with the banks establishment. 0
Distribution of work may easily be the work of a manager or an administrator

but checking the work so distributed or keeping an eye over it is certainly
supervision. A manager or administrators work may easily include
supervision but that does not mean that supervision is the only function of a
manager or administrator.0
The word supervise and its derivatives are not words of precise import and
must often be construed in the light of the context, for, unless controlled they
cover simple oversight and directions of manual work of others. It is,
therefore, necessary to see the full context in which the words occur and the
words of the Act are the surest guide.
Supervisor or officer should occupy a position of command or decision and

should be authorised to act in certain matters within the limits of his
authority without the sanction of the manager or other supervisors. 0
Supervision contemplates direction and control. Further, ordinary supervision

is not supervisory within the meaning of Section 2(s); rather supervision of
a higher type over ordinary supervision would be entitled to be called
supervisory within the meaning of Section 2(s). The word supervisory is
not used in Section 2(s) in relation to the supervision of an automatic plant.
Many machines can automatically run on power. They do not have to be run
by human beings. Their running and functioning has only to be watched and
repaired in case of anything going wrong. The person who attends to such a
machine may do either technical or manual work within the meaning of
Section 2(s). But he does not do supervisory work merely because he looks
after the machine. The essence of the supervisory nature of the work under
Section 2(s) is the supervision by one person over the work of others. 0
The question whether a person is employed in a supervisory capacity or on

clerical work depends upon whether the main and principal duties carried out
by him are those of a supervisory character or of a nature carried out by a
clerk. If a person is mainly doing supervisory work, but incidentally or for a
fraction of the time, also does some clerical work, it would have to be held
that he is employed in supervisory capacity, and, conversely, if the main
work done is of clerical nature, the mere fact that some supervisory duties
are also carried out incidentally or as a small fraction of the work done by him
will not convert his employment as a clerk into one in supervisory capacity.
The mere designation as a manager cannot be decisive of the nature of
employment.0
Where the main duties performed by a foreman are supervisory and he draws
a salary of more than Rs.500 per month (since raised to Rs.1600 per month)
he is not a workman under the Act. 0
On assessment of actual duties performed, persons designated as a) security
inspector,0 b) factory superintendent,0 c) chemist, 0d) sales representative,0 e)
blending supervisors,0 f) development officer0 and g) field area organiser 0

have been held to be workmen within the meaning of the Act.
The word apprentice is not defined in the Act. In ordinary acceptance of the
term apprentice, a relationship of master and servant is not established by
law. The dictionary meaning does not accept such a relationship. The heart of
the matter or the dominant object in apprenticeship is the intent to impart on
the part of the employer, and to accept on the part of the apprentice,
learning, under certain agreed terms. Such a person remains a learner and
not an employee. The fact that certain payment is made does not convert the
apprentice into a regular employee. The Apprentices Act, 1961, defines an
apprentice as a person who is undergoing apprenticeship training in a
designated trade in pursuance of a contract of apprenticeship. Whenever the
legislature intends to include an apprentice in the definition of a worker it has
expressly done so, for instance, defining a worker under Section 2 of the
Industrial Disputes Act, 1947.0
A municipal employee is a workman. 0
Tindals falls within the main body of the definition contained in Section 2(s).
Essentially a job of a tindal is analogous to that of a foreman or laskars. The
job brings him into a position of direct employment under the boat owner as
a workman, with the additional job of supervising a specified number of
laskars under him. The duties of a tindal continued to be principally those of a
foreman of laskars, and in a subsidiary degree certain suoervisory duties. A
tindal, therefore, is a workman and does not fall within the exceptions of
clause (iii) or second part of clause (iv) of Section 2(s). 0
The decision was set aside in appeal by the Division Bench.
In Wilsons glossary, tindal is explained thus: tandelu, vulgarly, tindal,

telugu (thandelu). The head or commander of a body of men; in ordinary
use, a petty native officer employed on board ship head of a gang of
labourers.
If a tindal exercises supervisory functions, which he undoubtedly does, and

draws wages exceeding Rs.500 per mensem, his case will be out of
jurisdiction of the labour court. Alternatively, if he exercises functions
mainly of a managerial nature, either by the nature of the duties attached to
his office or by reason of his powers, he will again be protected by the
exceptions in Section 2(s).
At least while at sea and in charge of his sailing vessel, it would be difficult to
hold that he does not exercise functions of a managerial nature as well as of
a supervisory character, at any rate, that is the view which seems to be
prima facie justified, in the absence of further light afforded by reliable
evidence. Whether the supervisory functions predominate, or his functions
are mainly of a managerial nature is very difficult to assess, and almost
impossible to determine, without clear and adequate evidence. 0
The duties performed by the district sales representative and the sales
engineering representative is primarily that of sales promotion and any
technical work done by them is ancillary to their main work of promoting sale
and giving advice and therefore they were not workmen under the Act. 0
The duties assigned to a medical representative is that of canvassing and any

clerical or manual work that he had to do was incidental to his main work of
canvassing and did not take more than a small fraction of the time for which
he has to work. He is not a workman even if the representative has no
supervisory duties and has to work under the direction of his superior officers
as that would not necessarily mean that such an employees duties are
mainly manual or clerical.0
In the case of Western India Match Co. the salesman and retail salesman
were considered as workmen.0
Teachers employed by educational institutions, whether the said institutions

are imparting primary, secondary, collegiate or post-graduate education, are
not workmen under Section 2(s). 0
(6) Inter-State Migrant Workmen(R.E.C.S.) Act,1979 defines Workman to mean any person
employed in or in connection with the work of any establishment to do any skilled, semi-skilled, manual,
supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or
implied, but does not include any such person-
(I) who is employed mainly in a managerial or administrative capacity; or

(ii) 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.0
(7)Personal Injuries(compensation Insurance) Act, 1963 defines

Workman to mean any person(other than a person whose employment is
of a casual nature and who is employed otherwise than for the purposes of
the employers trade or business) who is employed in any of the
employments specified in Section 3
(8)Plantation Labour Act, 1951 defines Worker to mean a person

employed in a plantation for hire or reware, whether directly or through any
agency,to do any work, skilled, unskilled, manual or clerical, but does not
include-
(I)a medical officer employed in the plantation

(ii) any person employed in the plantation (including any member of the
medical staff0 whose mothly wages exceed rupees seven hundred and fifty;
(iii) any person employed in the plantation primarily in a managerial capacity,
notwithstanding that his monthly wages do not exceed rupees seven hundred
and fifty;
(iv) any person temporarily employed in the plantation in any work relating to
the construction, development or maintenance of buildings, roads, bridges,
drains or canals.0
(9)Workmens Compensation Act,1923 defines Workman means any person (other than a person whose
employment is of a casual nature and who is employed otherwise than for the purposes of the employers
trade or business) who is-
(I) a railway servant as defined in [clause (34) of Section 2 of the railways

Act, 1989(24 of 1989)], not permanently employed in any administrative
district or sub-divisional office of a railway and not employed in any such
capacity as is specified in Schedule II,or
(i-a)(a) a master, seaman or other member of the crew of a ship,
(b) a captain or other member of the crew of an aircraft,
(c) a person recruited as driver, helper,mechanic, cleaner or in any other
capacity in connection with a
motor vehicle
(d) a person recruited for work abroad by a company,and who is
employed outside india in any such capacity as is specified in Schedule II and
the ship,
aircraft or motor vehicle, or company, as the case may be, is
registered in India,or
(ii) employed in any such capacity as is specified in Schedule II, whether the
contract of employment was made before or after the passing of this Act and
whether such contract is expressed or implied, oral or in writing; but does not
include any person working in the capacity of a member of the Armed Forces
of the Union and any reference to a workman who has been injured
shall,where the workman is dead, include a reference to his dependants or
any of them.
In absence of a contract of employment a person cannot come within the
definition of workman0
However in case of petty workmen, documentary proof of such a contract is
not necessary.0
In order to show that a person is not a workman within the definition of this
section two things must be proved: (1) his employment was of casual nature ,
and (2) his employment was otherwise than for the purpose of employers
trade or business0.
Where the regularity or periodicity of the employment indicated such a

degree of mutuality between two persons so as to regard one as employee
and the other as employer, the employment cannot be treated. as casual . 0
The concept of business is wider than that of trade
The activities of the
Public works Department , though not trade amount to business 0
If a person can be overlooked and directed as to the manner of doing work
such a person is not a contractor.0
The definition of workman under clause (ii)to Sch II must be contrued with
the definition of manufacturing process which include a printing press under
the Factories Act,1948..0
Where a person received fatal injuries in the course of his work of

construction of a building being constructed
for letting on rent such
construction was for the benefit of the employer as his subsidiary business
and he could not escape liability for compensation. 0
A workman who was injured while transporting barrels of oil of dealer whose business was sale of oil was
regarded as employed for the trade or business of the employer.0 Duties and not the designation are the
chief factors to see if a particular person is a workman.0
Chowkidar in the office of PWD is a workman. 0
A khalasi employed for the purpose of loading or unloading of truck is a
workman.
A driver of a vehicle
even if the vehicle belongs to government is
workman.0
A worker looking after the milch cattle in dairy farm where water is supplied for the cattle with the help of
electric motor pumps is a workman. 0
Threshing of wheat is a process of farming. Hence a person engaged for threshing wheat of his employer
with a thresher run with a tractor is a workman0
A civil servant does not
stand ipso facto excluded from the definition of
workman
A person employed in a factory where the manufacturing process has not

commenced does not merely for that reason stand excluded from the
definition of worker0
A watchman appointed by the official liquidator of a company is not a
workman.0
From the mere fact that a person worked for two days before he died in an accident , it would not
automatically follow that his employment was of a casual nature, for it is possible that even a regular
employee may meet with an injury either ordinary or fatal after he joined duty0.
Business of transporting oil is connected with the purchase and sale of oil and
so a workman employed in course of transporting oil on behalf of clearing
agents is deemed to be in the employment of principal business. 0
High courts have taken different views as to whether the entries in Schedule
II are illustrative or exhaustive.0
16.Definition of building worker
The Building and other Construction Workers ( Regulation of Employment and

Conditions of Service Act , 19
96 defines the term building worker. To mean a person who is employed to
do any skilled , semi skilled, manual supervisory technical or clerical work for
hire or reward, whether the terms of employment be express or implied, in
connection with any building or other construction work but does not include
any such person
(i)who is employed mainly in a managerial or administrative capacity,
(ii) or who being employed in a supervisory capacity draws wages exceeding
one thousand six hundred rupees per mensem or excercises either by the
nature of the duties attached to the office or by reasons of the powers vested
in him, functions mainly of a managerial nature. 0
17 Definition of Inter-State Migrant Workman

The Interstate Migrant Workmen ( Regulation of Employment and Conditions of Service) Act, 1979, Act 30
of 1979, defines inter-state migrant workman to mean any person who is recruited by or through a
contractor in one State under an agreement or other arrangement for employment in an establishment in
another State, whether with or without the knowledge of the principal employer in relation to such
establishment.0
vi. a person declared to be an employee by the appropriate

employees ( Minimum Wages Act, 1948)
Government
vii. persons belonging to the managerial and supervisory capacity (Payment

of Bonus Act,1965 and Payment of Gratuity Act, 1972)
viii. persons employed in any capacity specified in the Schedule II , a master
seaman, or other member of the crew of a ship, a captain or other member of
the crew of an aircraft, a person recruited as driver helper mechanic cleaner
or in any other capacity in connection with a motor vehicle, a person
recruited for work abroad by a company (WC. Act, 1923)
The definition is exclusive of-ii. out workers ( Contract Labor Regulation and Abolition Act , 1971)
iii. persons employed in managerial and supervisory capacity ( Industrial
Disputes Act, 1947; Inter State Migrant
Workmen
( Regulation of
Employment and Conditions of Service) Act, 1979)
iv. apprentices engaged under the Apprentices Act,1961
v. persons belonging to armed forces (Minimum Wages Act, 1948)
vi persons drawing wages in excess of specified amount ( Rs.6,500 in the ESI
Act, 1948; Rs.3,500 in the Payment of Bonus Act, 1965 Rs.1600 in the
Payment of Wages Act, 1936, Rs.750 in the Plantation Labor Act, 1951)
vii. a person who holds a post under the Central or State government and is
governed by any other Act or rules ( Payment of Gratuity Act, 1972)
viii. a person whose employment is of a casual nature and who is employed
otherwise than for the purposes of the employers trade or business
( Workmens Compensation Act, 1923
18. Definition of newspaper employee

The Working Journalists and other Newspaper Employees(Conditions of Service and Miscellaneous
provisions) Act , 1955 Act No. 45 of 1955, defines the term newspaper employee to mean any working
journalist, and includes any other person employed to do any work in, or in relation to, any newspaper
establishment0.
19. Definition of the term non-journalist newspaper employee
Working Journalist and Other Newspaper Employees (Conditions of

Service) and Miscellaneous provisions Act, 1955 Act No. 45 of 1955
defines the term non journalist newspaper employee to mean a person
ix, a railway servant permanently employed in any administrative district or
sub divisional of a railway
0 Coal Mines Provident Fund and Miscellaneous Provisions Act 1948, Act
No.46 of 1948, Section (d)
0 Employees Provident funds and Miscellaneous Provisions Act, 1952, Section
(f)
0 Railway Employees Cooperative Banking society Ltd. v Union of India 1980
Lab IC 1212 (Raj HC)
0 Kweens Bar & Restaurant v RPF.Commisssioner (1992) 2 Cur LR 909;
(1992) 65 FLR 492
0 P.Mpatel v Union of India (1986) 1 SCC (L& S ) 155
0 Annamalai Mudaliar & Bros v Regional provident fund Commissioner AIR
1955 Mad 387; (1955 ) 1 LLJ 674
0 Kumar Bros (Bidi) (P) Ltd. v Regional Provident fund Commissioner 1968 Lab
IC 1578; See also Malws Vanaspathi and Chemical Co.Ltd. v R.P.F.
Commissioner (1976) 1 LLJ 307 MP
0 Workmen of Hindusthan Tele printers Ltd. v R.P.F Commissioner 91977) 35
FLR 311 ( Mad)
employed to do any work in or in relation to any newspaper establishment

but does not include any such person who (I) is a working journalist, or (ii)is
employed mainly in a managerial or administrative capacity, or (iii) being
employed in a supervisory capacity performs either by the nature of the dutie
attached to his office or by reason of the powers vested in him, functions
mainly of a managerial nature.0
An ex-employee would also be a working journalist. It is clear that the

definitions of a newspaper employee and a working journalist have to be
0The employee as contemplated in the definition must be (a) employed for
wages (b) in any kind of work, manual, or otherwise, (c) in or in connection
with the work of the establishment, and (d) he must get his wages directly or
indirectly from the employer. The term employee includes any person
employed by or through a contractor in or in connection with the work of the
establishment or engaged as an apprentice, not being one engaged under
the Apprentices Act, 1961or under the Standing Orders of the
establishment.Thus the essential condition for a person to be an employee
within the terms of this definition is that he should be employed far wages in
or in connection with the work of the establishment. The words employed for
wages necessarily imply some sort of a contract of service. In other words,
there must be a master-and-servant relationship.
The employee as contemplated in the definition must be (a) employed for

wages (b) in any kind of work, manual, or otherwise, (c) in or in connection
with the work of the establishment, and (d) he must get his wages directly or
indirectly from the employer. The term employee includes any person
employed by or through a contractor in or in connection with the work of the
establishment or engaged as an apprentice, not being one engaged under
the Apprentices Act, 1961or under the Standing Orders of the establishment.
Thus the essential condition for a person to be an employee within the terms
of this definition is that he should be employed far wages in or in connection
with the work of the establishment. The words employed for wages
necessarily imply some sort of a contract of service. In other words, there
must be a master-and-servant relationship.
Dharangadhara Chemical works Ltd. v State of Saurashtra AIR 1957 SC 264: (1957) 1 LLJ 477;
State of Bombay v Alisaheb Kashim Tamboli; (1955) 2 LLJ 182; AIR 1955 Bom 209; Bridge and Roof co.
(India ) Ltd. v Union of India; 91962) 2 LLJ 490 ; AIR 1963 SC 1474
construed in the light of and subject to the context requiring otherwise. Since
the definition of an employee in the Industrial Disputes Act, 1947 and the
Central Provinces and Berar Industrial Disputes Settlement Act, 1947 are, in
language, similar to the one used in the Working Journalists (Conditions of
Service) and Miscellaneous Provisions Act, the word employee would include
newspaper employee and working journalists and the benefit of the
provisions under the Working Journalists Act is available to an ex-employee.
The scheme of all the Acts dealing with industrial matters is to permit an exemployee to avail himself of the benefits of these provisions, the only
requirement being that the claim in dispute be one which has arisen or
0 D.C.M.Ltd. v RPF. Commissioner 91998) 1 LLJ 979 ( Raj)
0 D.C.M. Ltd. v R.P.F. Commissioner , (1998) 1 LLJ 979 ( Raj)
0 Annamalai Mudaliar & Bros v Regional Provident Fund Commissioner AIR
1953 Mad 387: (1955) 1 LLJ 674
0 Annamalai Mudaliar & Bros v Regional Provident Fund Commissioner; AIR
1953 Mad 387 : 91955) 1 LLJ 674
0 Regional Provident Fund Commissioner v Lakshmi Ratan Engineering Works
Ltd. (1962) 2 LLJ 604 reversing Hindusthan electric co. v R.P.F. Commissioner
: (1960) 1 LLJ 640.
0 (1953) 1 LLJ 29
0 P.M.Patel v Union of India (1986) 1 SCC 32: 1986 SCC (L&S) 155: (1986) 1
LLN 55
0 (1946) AC 24 (HL) : 91946) 62 TLR 427
0 1946) AC 24 (HL) : 91946) 62 TLR 427
0 1946) AC 24 (HL) : 91946) 62 TLR 427
0 1946) AC 24 (HL) : 91946) 62 TLR 427
0 Satish Plastics v R.P.F. Commissioner 91981) 2 LLJ 277(1982) 44 FLR 207:
(1981)22 Guj LR 686
accrued whilst the claimant was in the employment of the person against
whom it is made.
The question whether part-time workers are workmen was left open in the
case of Mahesh Transport Co. though in an earlier decision under the Working
Journalists Act, the Court had answered the question in the affirmative saying
that on a fair construction of Section 2(b) of the Working Journalists Act,
1955, it would be impossible to hold that a part-time employee who satisfies
(1981)22 Guj LR 686
(1981)22 Guj LR 686
(1981)22 Guj LR 686
(1981)22 Guj LR 686
(1981)22 Guj LR 686
0 Annamalai Mudaliar & Bos v R.P.F. Commissioner AIR 1955 Ma 387: (1955)
1 LLJ 674
0 Santan Ghosh v R.P.F. Commissioner (1990) 2 LLN 718; (1990) 2 CLR 838:62
FLR97;(1991) 2 LLJ 466
0 P.M.Patel v Union of India 91986 1 SCC 32: 1986 SCC (L&S) 155 affirming
Birdhichand Sharma v first Civil Judge, Nagpur ; AIR 1961 SC 644; (1961) 2 LLJ
86
0 S.K.Nasiruddin Beedi Merchant (P) ltd. v R.P.F. Commissioner (1991) 1 CLR
342 : (1991) 1 LLJ 19 (Pat)
0 Saharsa Zila Khadi Gramodyog Sangh v Union of India 91996) 2 CLR 678:
(1996) 3 LLN 246 (Pat)
the test prescribed by Section 2(b) can be excluded from its purview merely
because his employment is part time.
20.Definition of motor transport worker
0 Delhi cloth & General Mills Co. Ltd. v RPF Commissioner 91961) 2 LLJ 444;
AIR 1961 All 309
0 Workmen of Hindusthan Tele printers Ltd. v R.P.F. Commissioner 1978 Lab
IC (noc) 27
0 RPF Commissioner v Lord Krishna Bank Ltd. (1983) 63 FJR 107 confirming Lord Krishna Bank Ltd v
RPF Commissioner (1980) 40 FLR 105 36.Polyclinic v RPF Commissioner 91983) 1 LLJ 449 (Mad)
;Kelvin Cinema v State of cinema 1973 Lab IC 963 ( Gau)
0 Regional provident Fund Commissioner v Management of Hotel Highway

Limited Mysore : (1991) 2 LLN 678 (Kant) a case under s.2 (f0 as it stood
prior to 1998
0 Rly Employees Coop Banking Services Ltd. v Union of India1980 Lab IC
1212 ( Raj) Se also Silver Jubilee Tailoring House v Chief Inspector of shops &
Establishments (1974) 3 SCC 498; 1974 SCC(L&S) 31; 1974 Lab IC 133
0 Ratanlal v RPF Commissioner 1977 Lab IC 1765
0 Mysore State Coop printing works Ltd. v RPF Commissioner 1976 Lab IC
1307
0 Shree Kutchi Visha Oshwal Mahila Mandal v Union of India 91993) 1 LLJ 77:
1992 Lab IC 1449; (1992) 1 CLR 805; 65 FLR 72
0 South India Research Institute v RPF Commissioner 91981) 59 FJR 160
0 Sri Mahila Grih Udyog Lijat Papad , Jabalpur v Union of India (1994) 2 LLJ
610 ; 1994 Lab IC 1308; (19094 _ 1CLR 90; (1994)68 FLR 1129(MP)
The Motor Transport Workers Act, 1961, Act No. 27 of 1961, defines th term
motor transport worker to mean a person who is employed in a motor
transport undertaking directly or through an agency, whether for wages or
not, to work in a professional capacity on a transport vehicle or to attend to
duties in connection with the arrival, departure, loading or unloading of such
transport vehicle and includes a driver, conductor, cleaner, station staff, line
checking staff, booking clerk, cash clerk, depot clerk, time keeper, watchman
or attendant but except in Section 8(relating to canteens), does not include i
any such person who is employed in a factory as defined in the

Factories Act, 1948 Act No. 63 of 1948;
0 Madhupatti Weavers Coop production and Sales society, Ltd. v RPF

Commissioner (1997) Lab IC 2957; (1998) 1 LLJ 824; (1999) 2 LLN 203 (Mad);
based on Pondicherry state Weavers Coop Society ltd. v Regional director ESI
Corporation 1983 Lab IC 902; (1983) 1 LLJ 17 ( Mad)
0 K.Gopalan v Union of India 1973 Lab IC 287
0 Goverdhan Lal Puroht v RPF Commissioner (1994) 2 LLN 1359 ; (1994) 2
CLR 880; (1993) 67 FLR 450
0 Ratanlal v RPF Commissioner 1977 Lab IC 1765
0 Jay Kay v RPFCommissioner91993) 2 LLJ 222 (Ori) following Regional
Director , ESI Corporation v Ramanuja Match Industries (1985) 1SCC 218;
1985SCC (L&S) 213;(1985) 1 LLJ 69
0 Imambhai Gulamhusain Shaikh vRPF Commissioner (1982) 45 FLR 166
( Guj)
0 Employees State Insurance Act, 1948, Section 2 (9)
0 Employees State Insurance Act, 1948 ; Proviso to Section 2 (9)
0 Sirsilk Ltd. v Regional director, ESI Corporation AIR 1964 AP 291; (1964) 1
LLJ 71; 26 FJR 266
ii
any such person to whom the provisions of any law for the time being
in force regulating the conditions of service or persons employed in
shops or commercial establishments apply.0
The definition does not make any distinction between a casual or temporary
employee and a permanent or regular employee. 0
0 AIR 1955 Bom 209

0 State of Punjab v British India corporation Ltd; AIR 1963 SC 1459 quoted in
Sirsilk Ltd v Regional Director ESI Corporation : AIR 1964 APA 291 ; (1964) 1
LLJ 71; 26 FJR 266.In this judgement while interpreting the words used for
the purposes of a factory, in the Punjab Urban Immovable Property Tax Act,
1940 the Divisional Bench of the supreme Court had held that buildings used
for housing a canteen or for other allied purposes must be held to be used for
the purpose of the factory. In reaching that conclusion their Lordships had
referred to the various provisions of the Factories Act which were conceived
for the welfare of the workmen employed in the factory and said that in order
that a factory may function in accordance with law, buildings had to be
provided by the owner for the use of the workmen for the purpose mentioned
in the several sections and that such use of the buildings must be held to be
used for the purposes of a factory. It was added advance in scientific
knowledge as to how industrial efficiency can be improved have made it clear
that even other facilities and amenities, other than those required by the
factory legislation conduct in a great measure to a rise in the efficiency of the
industrial worker and that some of these are indeed necessary to the
maintenance of a proper standard of efficiency the use of buildings for the
provision of such facilities and amenities which are necessary to the
maintenance of a proper standard of efficiency of the factory workers must
also be held to be use for the purpose of the factory Hence the division
bench held that the staff in the canteen, which was attached to the factory
came within the definition of employee under the Act.
0 AIR 1953 Mad 269. The expression employed as used in Section 2 (j) of
the Factories Act, 1948 does not necessarily involve the relationship of
master and servant, and a person would be a worker whether he is paid fixed
wages or whether his remuneration is determined on the basis of the given
terms of work done by him. ( AIR 1956 Bom 189)
21.Definition of seaman
The Workmens Compensation Act, 1923, Act No.8 of 1923, defines

the term seaman to mean any person forming part of the crew of any ship
but does not include the master of the ship. 0
22.Definition of Sales Promotion Employee

Sales Promotion Employees (Conditions of Service Act), 1976 defines
the term sales promotion employee to mean any person by whatever name
0 Prag Narain v Crown 109 IC 599; AIR 1928 Lab 78; It is not correct to say
that the Factories Act affected only the manual worker ( Supdt and
Remembrancer of legal Affairs v H.E.Watson AIR 1934 Cal 730)
0 AIR 1955 Bom 209; the word employed is used with reference to the
person employed and also to the person by whom the employment is made.
In-defining the word worker the word employed appears to have been
deliberately used its full legal import as carrying with it the idea of having
been engaged by the employer. The employer contemplated is the person
who has the ultimate authority over the business carried on the premises
where the workers are employed One of the essential conditions to be
satisfied to bring a person within the definition of worker in Section 2(j) of
the Factories Act, 94 is that he must be a person employed directly or
through an agency , whether for wages or not by the person having the
ultimate control of the affairs of the concern in which such person is engaged.
((1952) 2 MLJ 917; ILR (1953) Mad 775 and AIR 1955 BOM 209)
0 Chanan Singh v E.S.I. Corporation ; 1964 1 LLJ 314 (HC) Punj
0 Chana Singh v E.S.I. Corporation 1964 1 LLJ 314 (HC Punj)
0 Regional Director E.S.I. Corporation v South India Flour Mills (1986) 3 SCC
238 ; 1986 SCC (l& S) 511; (1986) 2 LLN 358; See also E.S.I. Corporation v
A.L.Puri (1971) 73 Pun LR178 (DB)
0 Regional Director E.S.I. Corporation v South India Flour Mills (1986) 3 SCC
238 ; 1986 SCC (l& S) 511; (1986) 2 LLN 358; See also E.S.I. Corporation v
A.L.Puri (1971) 73 Pun LR178 (DB)
0 E.S.I. Corporation v Spencer & co. 1978 Lab IC1759 ( Mad ) (DB)
called (including an apprentice) employed or engaged in any establishment

for hire or reward, to do any work relating to promotion of sales or business
or both, but does not include any personi
who , being employed or engaged in a supervisory capacity draws

wages exceeding sixteen thousand rupees per mensem;
ii
who is employed or engaged mainly in a managerial or administrative
capacity.0
For the purpose of this clause the wages per mensem of a person will be
deemed to be the amount equal to thirty times his total wages (whether or
0 K.Thiagarajna Chettiar v E.S.I. Corporation : AIR 1963 Mad 361 ; 24 FJR
400; 7 FLR 169; (1963) 2 LLJ 207. The court held It cannot be disputed that
for the proper functioning of the factory there should be builder or persons
who maintain buildings. Equally so, in regard to watchmen, office boys and
gardeners. The factory maintains a garden evidently for the purpose of
keeping the factory I healthy surroundings. There can be little doubt that the
maintenance of the garden would be conducive to the health of its manual
workers and would also enhance their efficiency and health. It can therefore
be said that all the workers would be employees within the definition of the
term in the Act. In that view the order of the learned judge directing the
appellant to pay contributions is fully justified.( K.Thiagarajan Chettiar v E.S.I.
Corporation (AIR 1963 MAD 361;24 FJR 400; 7 FLR 169 ; (1963) 2LLJ 207)
0 Nagpur Electric Light & Power co. v Regional Director ESIC (1967) 3 SCR 92;
AIR 1967 SC 1364; (1967) 2 LLJ 40 ;32 FJR 263
AIR 1967 SC 1364; (1967) 2 LLJ 40 ;32 FJR 263
AIR 1967 SC 1364; (1967) 2 LLJ 40 ;32 FJR 263
0 Nagpur Electric Light & Power co. v Regional Director ESIC (1967) 3 SCR 92; AIR 1967 SC 1364;
(1967) 2 LLJ 40 ;32 FJR 263Prior to 1966 amendment of Section 2(9) there was no unanimity about the
status of the persons employed in the administrative offices of factories. The amended definition is an
exhaustive one. It is beneficial piece of legislation and it has to be given a meaning that would give benefit
to those for whom it is intended. After the amendment the administrative staff engaged in the purchase of
raw materials or the distribution or sale of the products of a factory whether the work is done in the factory
or elsewhere would be employees within the Act. Section 38 of the Act does not appear to be an
impediment. .The section opens with the words subject to the provisions of this Act. these words bring
within their scope the amended definition of employee .there is therefore no difficulty in covering
employees who are not actually working in the factory premises provided that they do any type of work
specified in Section 2(9) as it now stands. Hence where a person had factories at one place and an office ,
being a commercial establishment, at another it was held that the employees in the office engaged in the
type of work referred to in Section 2 (9) were employees within the Act. ( India Jute co. Ltd. v Regional
not including, or comprising only of, commission) in respect of the continuous

period of his service falling within the period of twelve months immediately
preceding the date with reference to which the calculation is to be made
divided by the number of days comprising that period of service. 0
A sales representative is not a workman within the meaning of the s 2 (s) of
the Industrial disputes Act, 1947. 0
director E.S.I. Corporation 1977 Lab IC 816 ( Cal ) ; 34 FLR 278; 50 FJR 449; (1977) 1 LLN 554; See
also Raleigh Ltd. v E.S.I. Corporation 34 FLR 292 (Cal) ; 1977 Lab IC 541 ; 51 FJR 213)
0 Hindusthan Lever Ltd. v ESI Corporation 1973 Lab IC 706; 42 FJR 263;
(1972) 1 LLN 444; (1973)1 LLJ 259 ( Del) .See also Hukumchand Mills v E.S.I.
Corporation 1984 MPLJ 49
0 D.V.Jakati v ESI corporation (1981) 59 FJR 259 (Kant ) (DB); 44 FLR 125
0 Navakesari Prakashan Ltd. v E.S.I. Corporation ; (1984 )4 SCC (L&S) 123 ;
1985 Lab IC 596
0 Tata Oil Mills Co. v E.S.I. Corporation 1978 Lab IC 585 ; (1977) 2 LLN 486: (1978) 2 LLJ 182 ; 35 FLR
341
0 If, for example, an employee sells the products of a factory principally

although in the course of his work he sells the products of some other
factories also in addition to his principal work he does not cease to be an
employee under the act in relation to the factory with which he is principally
connected. It is therefore a question of degree of relationship with the factory
with which he is sought to be connected for the purpose of the Act. If his
relationship is mostly and basically with the factory and not with any other
factory he is an employee of that factory for the purpose of the Act this is a
question of fact which has to be ascertained by a general appreciation of
the various circumstances connected with the employment ( Tata Oli Mills Co.
v ESI Corporation 1978 Lab IC 585 ; (1977) 2 LLN 486; (1978) 2 LLJ 182; 35
FLR 341)
23.Definition of working journalist
The
Working
Journalists and
other Newspaper Employees
( conditions of Service )and other Miscellaneous Provisions Act, 1955
Act No. 45 of 1955 defines the term Working Journalist to mean a person
whose principal avocation is that of a journalist and who is employed as such
either whole time or part time, in, or in relation to, one or more newspaper
establishments and includes an editor a leader writer, news editor, subeditor,
0 E.S.I. Corporation v. Prabhulal Brothers; 1974 Lab IC 701 (Mad) (DB) ; 43 fjr
97; (1973) 1 lln 304 ; (1973) 1 LLJ 304 reversing Prabhulal Bros v E.S.I.
Corporation (1966) 1 LLJ 687 ( Mad) and overruling Mahalakshmi Oil Mills v
E.S.I. Corporation , 1971 Lab IC 825 ( Mad) ;38 FJR 185; 1970 2 LLJ 528;
21FLR 399
0 Nagpur Electric Light and Power co. V E.S.I.C 1967 II LLJ 40 (SC)
0 ILR 1937 Nag 88; 1937 Nag 311
0 61 Cal 332; 151 IC 763; AIR 1934 Cal 353
0 AIR 1947 Nag 83; ILR 1947 Nag 43; 235 IC 560
0 AIR 1953 Mad 269
0 (1952) 2 MLJ 195; M.K.P.Kadar Moideen v State ,; 4 FJR 1312; air 1953 Mad
406
0 AIR 1956 Mad 600
0 AIR 1954 Mad 324 ( A case under the Factories Act )
0 Chinniah A.M. In re AIR 1957 Mad 755; 1957 Cr.LJ 1418; also see 1957 I LLJ
280
0 Chinniah A.M. In re AIR 1957 Mad 755; 1957 Cr.LJ 1418; also see 1957 I LLJ
280
0 Taj Mahal Caf Ltd v Inspector of Factories (1956) 1 LLJ 273
feature writer, copy tester, reporter, correspondent, cartoonist, newsphotographer, and proof reader. 0 The term does not include any such persons
who (i)is employed mainly in a managerial or administrative capacity, or (ii)
being employed in a supervisory capacity performs either by the nature of
the duties attached to his office or by reason of the powers vested in him,
functions mainly of a managerial nature.0
Working Journalist means a person whose principal avocation is that of a
journalist. One has only to read the definition to realise the word avocation
used in S.2(b) of the Working Journalists Industrial Disputes Act, cannot
possibly mean a distraction or diversion from one's regular employment. On
the contrary, it plainly means ones vocation, calling or profession. The plain
0 Taj Mahal Caf Ltd v Inspector of Factories (1956) 1 LLJ 273
0 E.S.I. Corporation v Associated Cement Co. Ltd ; 55 FJR 307; 39 FLR 220;
1979 Lab IC 1060; (1979) 1 LLN 418; AIR 1979 (NOC) 145 (Kant) FB)
0 E.S.I. Corporation v Namibisans D.V.Dairy Farm ; 58 FLR (Sum) 11 ( Mad );
(1988) 2 LLN 88
0 Modi Industries Ltd. v E.S.I. Corporation (1986) 56 FLR 196 (All)
0 Rajasthan State Electricity Board v E.S.I. Corporation (1988) 56 FLR 468
(Raj)
0 E.S.I. Corporation Trichur v A.I.Coop. Pharmacy; 1980 Lab IC 557
0 Pondicherry State Weavers Coop. Societies Ltd v Regional Director ESI
corporation, Madras; 1983 Lab IC 902 ( 1983) 1 LLJ ( Mad) 17 (DB)
0 Argent v Minister of social Security (1968) 1 WLR 1769
0 (1952) 1 TLR 101 CA
0 Atiyah , P.S ., vicarious :Liability in the law of Tortz, p.65
0 Jubilee Tailoring House v Chief Inspector of Factories; (1974) 3 SCC 498
0 Jubilee Tailoring House v Chief Inspector of Factories; (1974) 3 SCC 498
idea underlying S2(b)

is that if a person is doing the work , say of a
correspondent, and at the same time is pursuing some other calling or
profession, say that of a lawyer , it is only where his calling as a working
journalist can be said to be assigned to him. That being the plain object of S.
2(b) it would be on the whole inappropriate to adopt the dictionary or the
etymological meaning of the word avocation. In case a journalist is not in full
0 T.I.Cycles of India v Regional Director E.S.I. Corporation 1977 Lab IC 1335

( Mad) ( DB); (1977) 1 LLN 317; 50 FJR 317 ; (1977) 2 LLJ 222; 35 FLR 130
0 Regional Director, ESIC, v Manager, Associated Cement co. Ltd. 1979 Lab IC
1060 ( Kant) (FB)
1060 ( Kant) (FB)
1060 ( Kant) (FB)
1060 ( Kant) (FB)
0 Noorullah Gazanfarullah v E.S.I. Corporation ; 1982 Lab IC 56 (All ) (DB) ;
59 FJR 146
0 Kandaswami Weaving Factory & co. v Regional director, E.S.I. Corporation,
madras 1969 Lab IC 362; (1969) 1 LLJ 572 ( Mad). The Supreme court has
laid down the principles for distinguishing a contact of service from a
contract for service in Dharangadhara Chemical works, Ltd v State of
Saurashtra ( AIR 1957 SC 264; (1957) 1 Lab LJ 477
0 Employment Exchanges ( Compulsory Notification of Vacancies) Act, 1959,
Section 2 (b)
0 Minimum Wages Act, 1948, Section 2 (I)
0 Murugan Transport v P.Radhakrishnan AIR 1961 Mad 310 ; (1961) 1 LLJ 283;
(1961) 1 Mad LJ 251 and labor Enforcement Officer (Central) v Presiding
time employment the income from journalism should be compared with the
income from other sources.0
Even ex-employees will fall in the definition of the word working journalist. 0
The word working journalist has been defined to mean a person whose
principal avocation is that of a journalist who is employed as such. The
definition also specifically includes some categories like correspondents. It
was contended that as regards these categories it need not be shown that
Officer 1975 Lab IC 1235; (1975) 1 LLJ 492 (Pat)
0 MunicipalCommittee v shamLal Kaura (1966) 1 LLJ 674 ( Pnj); Mahiya v
State of Haryana (1982) 1 SLR 26 ( P&H) and Chairman, ManagingCommittee,
Army School v Inderjeet Singh 1995Lab IC 850 (P&H)
0 Loknath Nathu lal v State of M.P. AIR 1960 MP 181; (1960) 2 LLJ 348
0 Sri Champawathi Ynatrmag Ayodyogik Sahakari Sanstha Maryadit Beed v
State of Maharashtra AIR 1969 SC 976
0 Budida Appalswamy v Assistant Inspector of labor 1978 Lab IC 206
0 Explanation below Section 2 (ee) as inserted in the Minimum Wages
( Madhya Pradesh Amendment and Validation) Act,1961 , MP. Act 23 of 1961
0 Minimum Wages ( Maharashtra Amendment) Act, 1962, Maharashtra Act
No. III of 1963 s.2 (i)
0 Payment of Bonus Act, 1965, Section 2 (13)
0 Payment of Gratuity Act, 1972, Section 2( e)
0 Khanderao P. Rajopadyaya v United Western Bank, (1985) 1 LLN 55: 1984 Lab IC 1910 ( Bom)
0 Contract Labor ( Regulation and Abolition) Act, 1970, Section 2(1) (i)
0 Workmen v Food corporation of India (1985) 2 SCC 136 1985 SCC (L&S) 420
they were employed as such in relation to an establishment for the

production or publication of a newspaper. The construction is erroneous. The
object of the second clause is to make clear that the persons specified in
that clause are journalists and nothing more and the object was not to
dispense with the main conditions prescribed by the definition before the
journalists can be regarded as a working journalists and, therefore the test of
employment should be specified in case of correspondents as well. 0
0 Burmah Shell Oil Storage v Burmah Shell Management; (1970) 3 SCC 376
0 Gammon India Ltd. v Union of India (1974) 1 SCC 596; 1973 SCC (L&S) 252
0 Employers Liability Act, 1938, Section 2 (a)
0 Equal Remuneration Act, 1976, Section 2 ( i)
0 Factories Act, 1948, Section (l)
0 State v Alisaheb Kashim Tamboli v AIR 1955 (HC ) (Bom) 209; 1955 II LLJ
182 (HC) )Bom) : 1955 Cri LJ 932 (HC) ( Bom)
0 State v H.B.Namjoshi AIR 1956 (Bom)(HC) 189
0 AIR 1959 (Mad) (HC) 203
0 AIR 1964 (HC Bom) 236
0 AIR 1974 SC37
0 ChintmanRao v State of M.P. AIR 1958 SC 388; 1958 II LLJ SC 252; 1958 SCR
1340; 1958 Cri LJ 803 (2) SCJ
0 Government of Anhra Pradesh v Bhadrachalam Paper boards ltd. 1990 (60)
FLR 517 AP; 1991 1 LLJ 115 AP; (1990) 76 FJR 58; ( 1989) 1 LLN 338 AP
0 AIR 1959 Mad (HC) 269
Employment must necessarily postulate exclusive employment, because a

working journalist cannot serve two employers, for that would be inconsistent
with the benefits which he is entitled to claim from his employer under the
Act. The whole scheme of the Act by which provisions of the Industrial
Disputes Act have been made applicable to working journalists, necessarily
assumes the relationship of employer and employee and that must mean
exclusive employment by the employer on terms and conditions of service
agreed between the parties. Normally employment contemplated by S (2(b)
of the Working Journalists Industrial Disputes Act, 1955, would be fulltime
employment but part time employment is not excluded. However the extent
0 S.Harbaslalv State of Karnataka 1976 Lab IC 538 (Kar); (1977)50 FJR 92
0 AIR 1955 Bom 2019
0 Shanker Balaji Waje v State of Maharashtra AIR 1962 SC 517; 1962 Suppl 1
SCR249; (1962) 1 LLJ 119
0 AIR 1956 Bom 189
0 Union of Indiav G.M.Kokil 1994 SuppSCC196; 1984 SCC (L&S) 631
0 AIR 1954 All 44
0 Shanker Balaji Waje v State of Maharashtra (1961-62 ) 21 FJR 293
0 (1966) 2 LLJ 3; 28 FJR 386 (HC)
0 AIR 1958 SC 388
0 Automac (M) (P) Ltd.vv Deputy ommissioner of Labor and another 1992 I LLJ
17 (Mad ) ( HC)
0 Dr. P.S.Ssundar Rao ( Christian Medical college and Hospital vellore) 1984
KK LLJ 238 (Mad ) ( HC); 1985 Lab IC 555 ( Mad ) (HC)
0 AIR 1954 Mad 324
0 AIR 1955 NUC 6121
of time devoted to the work of journalist is not decisive. What is decisive is

the amount earned by the journalist by pursuing the profession of journalism.
The onus to prove is on the employee concerned 0
In order to come within the definition of calligraphists three conditions have

to be satisfied by an employee, namely-(a) he must be an artist, (b)he should
perform journalistic work and (c)he should also calligraph matters. As the
Katibs are artists who perform journalistic work and who also calligraph
0 AIR 1959 Mad 362
0 AIR 1960 Bom236
0 State of UP v M.P.Singh 17 FJR 395
0
0
0 General Clauses Act, 1987 (10 of 1987)
0 Rohtas Industries Ltd. v Ramlakhan Singh (1978) 2 SCC 140 ; 1978 SCC (L&
S) 161; 1978 1 LLJ 515 SC ; 1978 II LLN 95 SC (1978) 36 Fac LR 470SC; AIR
1978 SC 849
0 Rohtas Industries Ltd. V Ram Lakhan Singh (1978) 2 SCC 140
0 (1969) 1 SCC 704
0 Govt. of A.P. V Bhadrachalam Paper Boards 1990 (60) FLR 517 AP The A .P . State Electricity
Employees Union V Commissioner of Labor
1996 LLR 238 (HC) (AP)
0 AIR 1959 (HC) (Mad) 269

0 State of Kerala V V.M. Patel 1961 I LLJ 549 (HC) (Ker)
0 AIR 1956 (HC) (Mad) 600
matters, they satisfy the definition of calligraphists as per the Wage Board
Recommendations and they are working journalists under S. 2(f) of the Act.0
When a person had been working as Editor and the managerial and
administrative functions were additional to his work as Editor and he is
expressly included in the definition, then the finding that the Editor is a
working journalist is not perverse.0
0 Central Railway Workshop V Viswanath 1970 I LLJ 851 SC

0 Abdul Latif V Karmat Ali 1962 II LLJ 335 (HC) (All)
0 Harikrishna V State of U.P. AIR 1959 All 794
0 MMR Khan V Union of India AIR 1990 SC 937
0 Govt. Soap Factory, Bangalore V Labor Court AIR 1970 Mys 225
0 Ramlanshan Jogeshar V. Bombay Gas Co. 1961 I LLJ 38 (Bom)
0 Rohtas Industries Ltd. V. Ramlakhan Singh AIR 1978 SC 849
0 1968 II LLJ 64
0 Public Prosecutor V. Venkataramanayya AIR 1963 (HC) (AP) 106
LLJ 42 (All)
Harikrishna V. State of UP 1960 I
0 State of Madras (Public Prosecutor)V. S. Rajagopal 1984 LW CRI 71 (HC)

(Mad)
0 Chief General Manager Telecom Factory, Bombay and others v All India
Telecom Engineering Employees Union and others 1996 (1) LLN 543 ( Bom)
(HC)
0 Abdul Latif v Krmat Ali 1962 II LLJ 335 All; 1961 (3) FLR 500 All
24.Definition of establishment
The term establishment has been defined in the Apprentices

Act, 1961 to include any place where any industry is carried on. 0
It distinguishes between the establishment in the private sector and an establishment in the public sector as
follows:
0 Automac (M) (P) Ltd. v Deputy Commissioner of Labor and another 1992 I
LLJ 18 (Mad)
0 Gramophone Co. Ltd. Calcutta v Workmen of Gramaphone Co. Ltd (196566) FJR Vol 28 p. 186
0 Central Railway Workshop Jhansi v Viswanath and others 1966 II LLJ 717
All; (1966) 12 FAC LR 388 (All); 1970 1 LLJ 351 SC; AIR 1970 SC 488 QUOTED
IN (1993) 67 FAC LR 627 ( Mad) ; (1970) 21 FAC LR 68 SC
0 Inspector of factories, Cuddalore V. A.K. Kanguli 1998 I LLN 791 (HC) (Mad)
0 Rohtas Industries Ltd. v Ramlakhan singh and Others; AIR 1978 SC 849; 53
FJR 114 SC; 1978 Lab IC 817 SC ; 1978 I llj 515 SC; 1978 II LLN 9 SC
0 H.H.Datar (Dr.) AMO V. P.S. Shivaram, General Manager, India Security Press 1995 LLJ (Bom)
Chief General Manager, Telecom Factory, Bombay V. All India Telecom Engineering
Employees Union 1996 I LLN 543 (Bom)
0 Mahalakshmi Oil Mills V.ESIC 1970 I LLJ 528 (HC) (Mad)

0 State of U.P. V. M.P.Singh 1960 I LLJ SC 270
0 Workmen of Standard Pharmaceutical Works Ltd. V. Standard Pharmaceutical Works Ltd.
LLJ 616
1962 I
0 South India Sugars v First Additional Labor Court, Madras and another,
1990 LLR 88 Mad
establishment in the private sector means an establishment which is not an

establishment in the public sector;0
establishment in the public sector means an establishment owned ,
controlled or managed by (a) the Government or a department of the
government;; (b) a government company as defined in Section 617 of the
Companies Act, 1956(1 of 1956)
or (c) a corporation ( including a
cooperative society ) established by or under a Central, Provincial or State
Act, which is owned , controlled or managed by Government 0
0 AIR 1955 BOM 2019

0 Shanker Balaji Waje v State of Maharashtra 1962 SC 517
0 AIR 1956 Bom 189
0 State of Kerala v RED Souzha of Kerala (1971) I SCC 533; 1971 SCC ( Cri)
241
0 N.Jagga Rao V Union of India (1975) 30 FLR 38
0 Indian Explosives v State(1981) 1 LLJ 423
0 Mahalakshmi Ol Mills v E.S.I. Corporation; 1970 ILLJ 528 (Mad) (HC) ; 1971
Lab IC 825 ( Mad HC)
0 State of,UP v M.P.Singh 1960 ILLJ SC 569; (1960) 2 SCR 605 SC; 1960 All LJ
SC
0 Nagpur Electric Light and Power Co. Ltd. v E.S.I. Corporation; AIR 1967 SC
1364; 1967 II LLJ SC 401
0 State v Najindas Manganlal ;AIR 198 Bom 162 ; 1958 CRI LJ 493 Bom; 59
Bom LR 652
0 Workmen of Standard Pharmaceutical Works Ltd. v Standard
Pharmaceutical Works Ltd. and others1962 (1) LLJ 616;(1962) 4 FAC LR 197
0 AIR 1955 NUC 6121
(2) The Beedi and Cigar workers ( Conditions of Employment ) Act,

1966 Act No.32 of 1966, defines the term establishment to mean any place
or premises including the precincts thereof in which or in any part of which
any manufacturing process connected with the making of beedi or cigar or
both is being , or is ordinarily, carried on and includes an industrial premises 0
0 Government Soap Factory v Labor Court 1970 (1) Mys LJ 104 ; 1970 Lab IC
1288 Mys; AIR 1970 Mys 225
0 AIR 1954 All 44
0 Sanker Balaji Waje V State of Maharashtra (1961-62) 21 FJR 293
0 AIR 1960 Bom 236
0
Industrial disputes Act, 1947, Section 2 (s); To be a workman under the Act, a person has to be
employed in an industry for hire or reward, whether the terms of employment be express or
implied. The section itself specifies the categories of persons who would b included in the
definition and they are;manual workers, skilled or unskilled;
ii
clerical employees
iii
technical employees
iv
operational employees
v
supervisory employees
The term workman includes an apprentice but by implication such an apprentice should be employed in
one or other of the specified categories. The definition also includes any person in the above categories who
has been dismissed, discharged, or retrenched in connection with or as a consequence of an industrial
dispute or whose dismissal or retrenchment has led to an industrial dispute.
The definition specifically excludes four categories of persons from the scope and ambit of the definition
and they are:
i
ii
iii
iv
armed forces personnel,

a person employed in the police services or in prisons;
a person employed in managerial or administrative capacity;
a person employed in a supervisory capacity and who draws a salary in excess of rupees one
thousand six hundred
The various words used in the definition like technical, operational, supervisory managerial and
administrative have neither been defined nor their exact connotation explained in the Act.
To determine whether a person is employed in a particular category or capacity, his designation itself may
not be sufficient unless it is supported by the nature of the duties assigned to and performed by him.
The definition originally included within its ambit only manual and clerical employees and it is by
successive amendments to the definition that the other categories were included. Neither the preamble or
(3)The Building and Other Construction Workers ( Regulation of

Employment and Conditions of Service) Act, 1996, has defined the term
establishment to mean any establishment belonging to or under the control
of, Government, any body corporate or firm, an individual or association or
other body of individuals which or who employs building workers in any
building or other construction work and includes an establishment belonging
to a contractor, but does not include an individual who employs such workers
in any building or construction work in relation to his own residence. 0.
the various provisions of the Act give any indication as to why a more comprehensive definition of
workman was not included in the Act. It is also not clear as to why employees like salesmen or primary
school teachers should be excluded from the protection of the enactment while highly paid employees like
air-line pilots should be accorded such benefits.
The interpretation of the unhappily worded definition has been the subject matter of considerable litigation
in the tribunals and the courts and even in the Supreme Court. A definition couched in simpler and more
comprehensive terms would have avoided such litigation and made available the benefits of the legislation
to a large number of deserving employees.
The apparent reason for confining the ambit of the definition as originally drafted to certain specified
categories is evident from the report of the Committee on Fair Wages which expressed the view, that for the
time being at least, the benefits of the labor laws should be confined to categories below the supervisory
level.
0 Burmah shell Oil Storage and Distributing Co. of India v Staff Association
1971 2 SCR 758
0Burmah shell Oil Storage and Distributing Co. of India v Staff Association 1971 2 SCR 758National
Building Construction corporation v Gill PS ; 1973 1 SCR 40; AIR 1972 SC 1579
East India Coal co. Ltd., v Rameshwar ; 1968 1SCR 140; 1968 1 LLJ 6;
Uup Electric Supply co. Ltd. v Shukla P.K. 1970 1 SCR 507;1969 2 LLJ 728;
R.B. Banasilal Abirchand Mills Co. Ltd. v Labor court 1972 2 SCR 580; 1972 1 LLJ 231 ;
Bennet Coleman & Co. Pvt Ltd v Gupta PPD 1970 1 SCR 181; 1969 2 LLJ 554 referred to
Central Bank of India Ltd., Rajagopalan P.S 1964 3 SCR 140; 1963 2 LLJ 89
Kesoram Cotton Mills Ltd. v Gangadhar 1964 2 SCR 809; 1963 2 LLJ 371 distinguished
Tiruchi Srirangam Transport Co. Pvt Ltd. v Labor Court; 1961 1 LLJ 729 (Mad);
Mudaliar M.M v Labor Court 1961 1 LLJ 592 (Mad);
Singh B v Labor court AIR 1969 PB 187;
1969 LIC 699;
Government Soap Factory v Labor Court ; AIR 1970 MY 225; 1970 LIC 1288;
UP Electric Supply co. Ltd., v Assistant Labor Commissioner 1966 2 LLJ 714
(4) The Child Labor ( Prohibition and Regulation ) Act, 1986 Act
No.61 of 1986 defines the term establishment to
include a shop,
commercial establishment, workshop firm, residential hotel, restaurant,
eating house, theatre, or other place of public amusement or entertainment. 0
(5)The Contract Labor (Regulation and Abolition) Act, 1970 , Act No.37
of 1970, defines the term
establishment to
mean (i) any office or
0 All India Reserve Bank Employees Assn v Reserve Bank of India 1966 1 SCR
25; 1965 2 LLJ 175
25; 1965 2 LLJ 175;
0 Verma SK c Chandra M 1983 3 SCR 799; 1983 2 LLJ 429
0 J.K.Cotton and Wvg Co. Ltd v Badr Mali 1964 3 SCR 724; 1963 2 LLJ 436
0 Workmen v Food Corporation of India 1985 2 SCR 1065; 1985 2 LLJ 4
0 Sharma V. First civil Judge 1961 3 SCR 161; 1961 2 LLJ 86;T.M. Abdual Rahim & Co. v North Arcot
Dist Beedi Workers Union 1958 2 LLJ 736 (Mad)
0 Dharangadhara Chemical Works Ltd. Saurashtra 1957 SCR 152; 1957 I LLJ
477
0 Mc leod & co. v Industrial Tribunal AIR 1958 (Cal) 273
0 Dharangadhara Chemical works Ltd. Saurashtra AIR 1955 Sau 33
0 Pabbojan Tea Co. Ltd v Deputy commissioner 1968 1 SCR 260; 1967 2 LLJ
872
0 Rao AGR v Ciba Geigy of India Ltd. 1985 S 1 SCR 282; 1985 2 LLJ 401
0 South Indian Bank Ltd. v Chacko AR 1964 5 SCR 625; 1964 1 LLJ 19
department of the Government or a local authority, or (ii) any place where

any industry, trade, business manufacture or occupation is carried on. 0
A ship or vessel in which repair work is carried is a place and an establishment within the meaning of
s.2(1)(e). The work site or place may not belong to the principal employer , but that will not stand in the
way of application of the Act or in holding that a particular place or work site where industry, trade,
business, manufacture, or occupation is carried on is not an establishment 0
Any object for the time being covering the surface and where industry , trade, business, manufacture, or
occupation is carried on would be a place under s. 2(1)(e) (ii). A ship anchored or berthed in a port would
be a work site and the workmen employed for loading and unloading of the cargo security, repairs to the
ship would be all in connection with the business or trade. The dock in which a ship may be berthed is
0 Indian Iron & Steel Co. Ltd. V Workmen 1958 SCR 667; 1958 1 LLJ 260Punjab Cooperative Bank Ltd.
Bhatia RS 19752 LLJ 373 SC; AIR 1975 SC 1898
0 Syndicate Bank Ltd. v Workmen 1966 2 LLJ 194 SC ; 30 FJR 519

0 Rao AGRv Ciba Geigy of India 1985 S 1 SCR 282 ; 1985 2 LLJ 401
0 Rao AGRv Ciba Geigy of India 1985 S 1 SCR 282 ; 1985 2 LLJ 401
0 Bihar State Road Transport Corporation v Bihar 1970 3 SCR 708; 1970 2 LLJ
138
0 Ford Motor Co. of India Ltd. Staff Union 1953 2 LLJ 344 LAT
0 Maheswari DPv Delhi Admn 1983 3 SCR 949 ; 1983 2 LLJ 425
0 Lloyds Bank Ltd. v Gupta PL 1961 1 LLJ 18 SC; AIR 1967 SC 428National Engineering Industries Ltd.
b Bhageria K.A. 1988 SC 329; 56 FLR 148
0 Mc Leod & Co. Industrial Tribunal AIR 1958 (Cal) 273

25 ; 1965 2 LLJ 175
0 Lloyds Bank v Gupta PL 1961 1 LLJ 18 SC; AIR 1967 SC 428
0 Blue Star Ltd. v Sharma NR 31 FLR 102 ( Del)
controlled by the Port authorities and the ship owners agencies would be unable to provide facilities for
canteens, rest rooms, etc. but these defects cannot be a ground for totally excluding a ship in a port from
the ambit of establishment.0
Food Corporation of Indias regional offices and their warehouses , godowns, etc. in the States, constitute
establishments within the meaning s.2(1)(e) where trade of the corporation is being carried on.0
Pune Cantonment board is an establishment0
Residential quarters of a bank are no covered by the definition of establishment0
(6)The Employees Provident Funds and Miscellaneous Provisions Act, 1952.(19 of 1952) does not
define the word establishment. In the absence of a definition the term should be given its ordinary
0 Anand Bazar Patrika Pvt Ltd., v Workmen 1969 2 LLJ 670 SC; 1970 3 SCC 248;South India Bank Ltd. v
Chacko AR 1964 5 SCR 625; 1964 1 LLJ 19;
May and Baker (India ) Ltd. v Workmen 1961 2 LLJ 94 SC ;AIR 1967 SC 678
0 Hindusthan Antibiotics Ltd. v workmen 1967 1 SCR 652; 1967 1 LLJ 114;Burmah shell Oil Storage &
Distributing Co. of India Ltd. v Staff Assn 1971 2 SCR 758; 1970 2 LLJ 590
0 Gupta VCPv Delton Cable India Ltd 1984 3 SCR 169; 1984 1 LLJ 546
0 Burmah Shell Oil Storage & distributing Co of India Ltd. v Staff Assn 1971 2
SCR 758; 1970 2 LLJ 590
0 Verma SK v Chandra M 1983 3 SCR 799; 1983 2 LLJ 429
0 New India Motors Pvt Ltd. v Morris KT 1960 3 SCR 350; 1960 1 LLJ 351
0 ESICorporation v Tata engg & Locomotive Co. Ltd 1976 2 SCR 199; 1976 1
LLJ 81
0 Howrah Municipality v Dey MD 1965 2 LLJ 135 SC; 11 FLR 6Corporation of City of Nagpur v
Employees 1960 2 SCR 942; 1960 1 LLJ 523 followed
meaning. It means an organisation which employs persons between whom and the establishment the
relation of employee and employer comes to exist.0
An establishment which involves the running of a factory may also require a staff for procuring raw
materials and disposing of the manufactured products and also for the maintenance of accounts. There can
be integral relation between all these items of work and it may not be proper to separate the process of
manufacture in the factory from the office establishment which attends to work connected with the factory
and its raw materials or products and its accounts. Establishment for this purpose must be viewed in a
larger sense than the process of manufacture0
0 Villayar M v Workmen 1961 2 LLJ 761 (Mad) AIR 1962 (Mad0 205 Standard vacuum Oil co. v
Commissioner of Labor 1959 2 LLJ 771 distinguished and explained. Dharangadhara chemical Works
Ltd. v Saurashtra 1957 SCR 152 ; 19571 LLJ 477
0 Villayar M v Workmen 1963 2 LLJ 203 (Mad) ; AIR 1963 (Mad) 351
0 Burmah Shel Oil Storage & Distributing co. of India ltd. v Staff Assn 1971 2
SCR 758; 1970 2 LLJ 590
0 May and Baker (India) Ltd. Workmen 1961 2 LLJ 94 SC ; AIR 1967 SC 678
0 Western India Match co. Ltd. v Workmen 1964 3 SCR 560 ; 1963 2 LLJ 459
0 University of Delhi v Nath R 1964 2 SCR 703; 1963 2 LLJ 335;Vishnu Sugar Mills ltd. v Bihar AIR
1964(Pat) 94;
Sundarambal A v Goa Daman and Diu 1989 1 LLJ 61; AIR 1988 SC 1700
0 Inter- State Migrant Workmen ( Regulation of Employment and conditions of

Service ) Act, 1980, Section 2(1) (j)
0 Plantation Labor Act, 1951, Section 2 (k)
0 Workmens Compensation Act, 1923, Section 2(1) (n)
0 Ganesh foundry works v Bhagwani (1985) 1 LLN 387 (P&H): (1985 ) 1
LLJ 95 See also Rebathi Gantayat v Haguru Sthi ; 1986 Lab IC 1511 (Ori)
0 C.Muniswamy v T.Rajmoorthy; (1988) 56 FLR 609 (Mad)
The Employee Provident Funds and Miscellaneous Provisions Act , 1952 has declared that where an
establishment consists of different departments or has branches whether situate in the same place or in
different places, all such departments or branches should be treated as parts of the same establishment 0
Firms having functional unity and integrality even though separately registered under the Companies Act
and represented separately by the members of a Hindu Undivided Family constitute a single establishment. 0
The important test for the determination of one establishment or factory for the purposes of the Act would
be the unity of employment. The test of unity of ownership, unity of control and management would not be
of much help in such cases For the purposes of the enforcement of the Act, the general unity of purpose and
also the functional integrality would not be a material test. It could be that one unit might be dependent
0 Sitharama v Ayyaswami ; AIR 1956 Mad 212; Amri narayan v suken Emplyeers Coop.
Society; 1987 Lab IC 1197 (Guj)
0 Kochppan v Krishnan (1987) 2 LLN 177 (Ker)

0 Bai Mani v Executive Engineer ; (1986) 2LLJ 426 ( Guj)
0 S.L.Kapur v Emperor AIR 1937 Lah 547
0 Khuda bux v Caledonian Press AIR 1954 Cal 484
0 Vinayak Mudaliar v Mindula Pottiamma AIR 1953 Mad 432
0 Laxmibai Atma Ram v Chairman and Trustees, Bombay Port Trust; AIR 1954
Bom 180
0 Dukhini Raaharsi v Corporation of Calcutta AIR 1957 Cal 653
0 Satiya v sub Div Officer ,PWD (1975) 1 LLJ 394
0 Orissa Coop. Insurance society Ltd v Sarat ChandraChawpathi 1976 Lab IC
371 (Ori)
0 Radhamoyv Secretary Department of Home (1995) 1 LLN 370
0 Amri narayan v Suken Employees Coop. Society 1987 Lab IC 1197 (Guj)
0 Sampuran Singh v Mukhtiar singh (1993) 1 LLJ 45 ; (1992) 1 Cur LR
704; (1992) 64 FLR 441 (P&H)
upon another for the supply of materials or might otherwise be independent but f the employees of a unit
governed by the Act and the scheme were not working for and had nothing todo with the other unit, it
would be wrong to hold that for the purposes of the Act also the various units could not be treated as such.
The maintenance of separate accounts also could not be of much help. Many efficient concerns maintain
separate profit and loss accounts for each department to ensure that there is no slackness in any department
and that all the departments run on profit and do not suffer any loss. Maintenance of separate profit and
loss accounts for each department assists the management in excercising proper control and supervision
over the departments. When there are employees who work not only for one unit or section but for others
also, they will be deprived of the benefits of the Act if the unit or the section is treated as the basis of one
factory or establishment. Consequently for the purposes of the Act, one factory or establishment shall be
that unit of employees who are complete by themselves and who do not work for any other unit or section
beyond the factory or establishment so determined. 0
0 State of Gujarat v R.K.Deshdia (1991) 1 LLN 536 ; (1991) Cur LR 582 (Guj)
0 Juthi Deviv Pine Chemicals Ltd. 1989 Lab IC 2310; (1991) 2 LLJ 386 (J&K)
0 Offiical Liquidator v KSE board (1990) 2 LLJ 321 ; 60 FLR 879 (Ker)
0 Patel Engg Co. v Commr for Workmens Compensation 1978 Lab IC
1279 (AP)
0 K.Ranaswmai v Poonagavanam AIR 1954 Mad 218; (1953) 1 LLJ 735
0 Rebathi Gantayat v Haguru Sthi 1986 Lab IC 1511 (Ori)
0 Building and Other construction workers ( Regulation of Employment and
conditions of Service) 1996, Section 2(e)
0 Inter-State Migrant Workmen (RECS) Act, 1979, Section 2 (1) ( e)
0 Working Journalists and other Newspaper Employees( Conditions of
Service) and Miscellaneous Provisions Act, 1955 , Act No.45 of 1955, Section
2 (c)
0 Working Journalist and other Newspaper Employees (Conditions of Service )
and Miscellaneous provisions Act, 1955, Act No. 45 of 1955, Section 2 (dd)
0 Motor Transport Workers Act, 1961, Section 2 (h)
0 Depot Manager v Mammanna AIR 1971 AP 144
Where two units belong to a proprietor ,there is almost always likelihood also of unity of management .In
all such cases the court has to consider with care how far there is functional integrity meaning thereby such
functional interdependence that one unit cannot exist conveniently and reasonably without the other and on
the further question whether in matters of finance and employment the employer has actually kept the two
units distinct and integrated.0
Mere fact of common ownership by itself is not sufficient to satisfy the test of functional integrality.
Similarly mere fact of supply of raw materials or purchase of raw materials for the factory or the sale of
finished goods would not be sufficient to satisfy the test of functional integrality. All the relevant tests must
0 Workmens Compensation Act, 1923, Section 2(1) (k)

0 Sales promotion Employees ( Conditions of Service) Act , 1976, Act No. 11
of 1976, Section 2 (d)
0 Sales promotion Employees ( Conditions of Service) Act , 1976, Act No. 11
of 1976Explanation to Section 2(d)
0 Addison Paints and Chemicals Ltd. Assistants Association v Addison Paints
and Chemical Ltd (1994 Lab IC 1779: (1994) 1 LLN 716 affirming Addison
Paints and Chemicals Ltd. v Government of TN ; (1992 ) 1 LLN 1032; By
virtue of s.6(2) of the Sales Promotion Employees ( Conditions of Service)
Act, 1976 the provisions of the Industrial Disputes Act became applicable to
sales promotion employees with effect from 6.5 1987
0 Working Journalists and other Newspaper Employees (Conditions of
Service )and Miscellaneous Provisions Act, 1955, Act No.45 of 1955, Section 2
(f)
0 Working Journalists and other Newspaper Employees (Conditions of
Service )and Miscellaneous Provisions Act, 1955, Act No.45 of 1955, Section 2
(f)
0 Express Newspapers Ltd. v B. Somayajulu (1964) 3 SCR 100; AIR 1964 SC
279; (1963) 2 LLJ 385; (1962-63) 25 FJR 14
0 Bennett colman & co. v Punya Priya Das Gupta 91969) 2 SCC ; (1970) 1SCR
181; AIR 1970 SC 426; (1969) 2 LLJ 554; 37 FJR 498
0 Express Newspapers Ltd. v B.Somayajulu (1964) 3 SCR 100; AIR 1964 SC
279; (1963) 2 llj 385: 25 fjr 14
be considered and applied before deciding the issue as to applicability of Section 2-A or of functional
integrality between the two units.0
In absence of an interconnection of mutual dependence of one over the other so that one could not function
without the other, mere unity of management and control, unity of ownership, unity of finance and
geographical proximity were insufficient for treating two cinemas and a petrol pump of the same person as
one establishment.0
For the purpose of application of the beneficial legislation such as provident fund, deposit linked insurance
pension scheme etc. the courts will have to go behind the legal entity to discover the real management and
control which alone can show as to who is the real employer. Where on facts behind
0 Express Newspapers Ltd. v B.Somayajulu (1964) 3 SCR 100; air 196 SC 279;
(1963) 25 FJR 14; (1963) 2LLJ 385
0 Daily Pratap v Katibs (1972) 2 SCC 342; 1973 SCC (L&S) 105; (1973) 2 LLJ
247; 1972 Lab IC 1111
0 Rashtradoot Jaipur, v Journalists Union,(1971) 3 SCC 96; (1970) 20 FLR 1;
(197) 1 LLJ 58
0 Apprentices Act, 1961, Section 2(g)
0 Apprentices Act, 1961, Section 2 (h)
0 Apprentices Act, 1961, Section 2( i)
0 Beedi and Cigar Workers (Conditions of Employment ) Ac, 1966, Section 2
( h)
0 Building and Other construction Workers ( Regulation of Employment and
Conditions of Service ), 1996, Section 2 (f)
0 Child Labor (Prohibition and Regulation ) Act, 1986, Section (iv)
0 Contract Labor ( Regulation and Abolition) Act, 1970, Section 2(1)(e)
0 Lionel Edwards Ltd. v Labor Enforcement Office (1977) 51 FJR 199 (Cal)
0 Lionel Edwards Ltd. v Labor enforcement Officer ; (1978) 53 FJR 416 (Cal)
the artificial legal entity it is found that the control and the management is held by an individual then the
Court is bound to take note of the same and hold that the two ostensibly separate legal entities are part of
the same management.0
If there is financial, managerial and functional integrality between two units and one cannot exist without
the other, they should be treated as one single unit. The fact that the premises where the two units are
situated are not adjunct and they are registered under two separate enactments is not quite material in
deciding the question as to whether the two activities form part of one and the same establishment.
Although an important test to find out whether different units form part and parcel of one establishment is
whether the employees of one unit can be transferred to another unit it could not be taken as an absolute
and indispensable test .0
0 Workers Union v Food corporation of India (1985) 2 SCC 294: 1985 SCC
(L&S) 456
0 Poona Cantonment board v S.K.Das (1993) 2 LLJ 487 : 1993 Lab IC 1462
0 Powar v Labor Enforcement Officer ( c ) ; (1993) 1 LLJ 521: (1993) 66 FLJ
833 Ker : 1972 2 Cur LR 593 (Ker)
0 Sri Varadarajaswami Transports (P) ltd. v RPF Commissioner AIR 1965 Mad
466 concurred with in Central India Excise Traders v RPF Commissioner
91990) 2 LLN 852 ; (1990) 2 CLR 605; (1992) 1 LLJ 498 (MP)
0 P.S.N.S Ambalavana Chettiar & Co. (P) Ltd. v Regional Provident Fund
Commissioner AIR 1970 Mad 194; 91970)1 LLJ 296
0 Employees provident Funds and Miscellaneous Provisions Act, 1952, Section
2-A
0 RPF Commissioner v Naraini Udyog (1996) 5 SCC 522; 1996 SCC (L& S)
1284; (1996) 2 LLJ 1063
0 Delhi Cloth & General Mills Co. Ltd v RPF Commissioner (1961) 2 LLJ 444 All
0 Management of Pratap Press New Delhi, v Secretary Delhi Press Workers
Union, Delhi (1960) 1 LLJ 497
0 Ebrahim Currim & sons Regional provident fund commissioner (1994) 1 LLJ
369
0 Majestic Trading House v Union of India (1990) 2 LLN 626; 60 FLR 793 All
The test of integral dependency was the most relevant test of functional integrity which involved the
question whether the establishment could survive even if the other establishment was to close. Mere
commonness of the premises or the relation of supply or purchase of raw material for the factory or sale of
finished goods between the petitioners and the said units would not be sufficient to satisfy the functional
integrality. All the relevant tests must be considered and applied before deciding the issue of applicability
of S. 2-A or of functional integrality between the the units in question.0
Where a unit of an existing establishment was given on lease but the lessee was not given full and effective
control over employees working in the unit, the unit would remain a part of the earlier establishment. 0
Mere common ownership of two units and their location in the same premises is not by itself conclusive
test of functional integrity of the two units. Moreover, mere working of the two units for each other also
does not satisfy the test of functional integrity. The proper test is whether the second unit would survive
absence of the first unit or whether the second unit can continue to do its business despite the closure of the
first unit. 0
Where a person had established in the same building, a lodge on the first floor and a restaurant on the
ground floor but subsequently leased out the restaurant to a stranger the two establishments were regarded
as independent establishments different from each other and that they could not be treated as a common
establishment within the meaning of Section 2(f). Hence, the applicability of the Act could not be
determined by the total number of the employees of both the establishments taken together.0
An establishment may well fall within the meaning of factory under Section 2 (g) but any administrative
or branch offices maintained by such an establishment for the working and running of the factory cannot be
dissociated from the factory. Rather , such an establishment and such offices constitute a single unit for
determining the number of persons employed.0
0 Subbaraya Picture Palace v R.P.F. Commissioner 91990) 1 LLN 832 ; 91990)

1 CLR 532(AP)
0 A Gangadharan v Government of India 91978) 2 LLJ 317; 1978 Lab IC 1625
(Mad)
0 Rastogi Brothers v Union of India (1999) 81 FLR 71 All
0 Provident fund Inspector v P.S.Mani (1967) 2 LLJ 647 (Ker)
0 Devesh Sandeep Associates V RPF Commissioner (1997) 1 LLJ 1167 :
(1997) 1 CLR 273 : (1997) 2 LLN 867; (1997 ) 76 FLR 35 ( Kant)
0 K.V.Raman v Government of India (1987) 2 LLN 239; 1987 Lab IC 1288; 56
FLR 473 (AP)
0 Leo Mercantle Corporation v Secy ,Ministry of Labor 1987 Lab IC 557;
(1986) 2 LLN 965; (1987) 2 LLJ 35 (Mad) following Antiseptic v Gangadhara
(1984) 2 LLJ 232
An establishment which involves the running of a factory may also require a staff for procuring raw
material and disposing of the manufactured products and also for the maintenance of accounts. There can
be integral relation between all these items of work and it may not be proper to separate the process of
manufacture in the factory from the establishment which attends to work connected with the factory and its
raw materials or products and its accounts.0
Section 2-A was inserted to make it clear that the Act was applicable to composite factories. 0 It did not
intend to exclude an establishment which was a factory engaged in an industry mentioned in Schedule I
from the purview of the Act merely because it was part of larger organisation engaged in some other
activities which were outside the scope of the Act.0
If the activities carried on in the branches or even departments are not such as would fall under the Act,
then the branches and the departments must normally be outside the Act. But if the branches and
departments form an intimate part of the establishment, in which an activity specified in Schedule I to the
Act is carried on as to form an integral whole with the establishment on the principles laid down for
holding that the establishment with the departments and branches really make one industrial establishment,
then and then only will the branches and departments and the employees therein come within the purview
of the Act. That is the effect of Section 2 A.0
An establishment need not in all circumstances continue to be the same establishment. A disruption of that
establishment is possible on a real ad bona fide partition of the estate. And when a disruption has taken
place to give rise to distinct and separate establishments Section 2 a has no application for the distinct and
separate establishments cannot be treated as as departments or branches of another establishment. the only
question therefore in such a case is whether there has been a real and bona fide division which disrupted the
original establishment and gave birth to new and separate and distinct establishments. 0
Where the original establishment ceases to exist, Section 1(5) does not apply. It applies where there is a
mere change of ownership as mere change of hands does not clothe the establishment with newness. But
change in ownership is different from the cessation of an establishment by disruption into more than one
establishment by partition amongst the partners. The questions to be decided in such a case are:
a
b
c
Is the partition real and bona fide?

Did it disrupt the integrity of the establishment and create separate establishments?
And does the separated establishment concerned employ less than twenty persons?
0 P.S.N.S Ambalavn Chettiar & co. Ltd. v RPF Commissioner AIR 1970 Mad
194: (1970) 1 LLJ 296
0 Andhra University v RPF Commissioner (1985) 4 SCC 509; 1986 SCC (L& S) 134; 1986 Lab IC
103;Union of India v Ogale Glass works; (1971)2 SCC 678; (1971) 2 LLJ 513 EXPLAINING RPF
Commissioner v Shree Krishna Metal Mfg.co. (1962) 1 LLJ 427
0 Andhra University v R.P.F. Commissioner (1985) 4 SCC 509; 1986 SCC ( L&S)
134; 1986 Lab IC 103; overruling Visva Bharathi v RPF Commissioner (1983)
1 LLJ 332 ( Cal)
0 Kramunni v RPF Commissioner ILR (1974) 1 Ker 11
0 P.Madhavan Thampi v RPF Commissioner (1978) 2 LLJ 467 ; (1978) 37 FLR
298 (Ker)
If the answers to the three questions are in the affirmative, the Act will not apply.0
There is no rule that could be spelt out from the provisions of the Act that an establishment covered by the
Actor the Scheme cannot be split up, and in spite of such split up, the Act or the Scheme which was earlier
applied to the original establishment will continue to apply to the split up entities even though each or all of
them would not come within the category of establishment to attract the provisions of the Act/ Scheme. A
disruption of the establishment is possible and if the disruption is real and bona fide then the test that has
got to be applied is to find out as to whether the split up establishment will be independently covered by
the provisions of the Act/ Scheme. If the disruption, by whatever manner it is effected is a ruse or a
camouflage with a view to go out of the ambit of the provisions of the Act/Scheme then it will be
legitimately ignored.0
A partnership firm may finance and manage different types of business. All those business units may be
completely independent of each other in which case they cannot be said to be departments of branches of
the partnership firm. Only because those units are financed managed or controlled by the firm they cannot
be said to be one establishment. If one of those units is an establishment coming within any of the subsections of Section 1 of the Act, then that establishment with its branches and departments wherever situate
will come within the purview of the Act.0
Members of a joint Hindu family can have their own separate business separate income and therefore
unless it is established that the different owners of the different concerns pool their income and the
employees are paid out of their joint or pooled income their employees cannot be said to be employees of
on establishment. 0
Merely because one institution could exist without the existence of the other, it could not be inferred that
there was absence of functional integrality0
(7) The Inter State Migrant Workers ( Regulation of Employment and Conditions of Service) Act,
1979, Act defines establishment to mean
(i) any office or department of the Government or a local authority; or
(ii) any place where any industry trade, business manufacture, or occupation is carried on
(8) In the Labor Laws ( Exemption from Furnishing Returns & Maintaining Registers by certain
Establishments) Act, 1988 , Act 51 of 1988, the term establishment is stated to have the meaning
assigned to it in a Scheduled Act and to include
i
an industrial or other establishmentas defined in Section 2 of the Payment of Wages, Act, 1936 (4
of 1936);
ii
a factoryas defined in Section 2 of the Factories Act, 1948 ( 63 of 1948);
0 Moh Kutti v RPF Commissioner (1968) 2LLJ 466

0 N.Jogie Gounder v RPF Commissioner (1983) 1 LLJ 179
0 Navi Bros v RPF Commissioner (1977) 35 FLR 80
0 Khoja Lime Udyog v RPF Commissioner (1991) 1 CLR 75; 62 FLR 252
0 SriNarayan Guru English Medium School v RPF Commissioner (1998) 2 LLJ
993; (1997)3LLN 585 (Kant)
iii
iv
v
a factory, workshop or place where employees are employed or work is given out to workers, in
any scheduled employment to which the Minimum Wages Act, 1948 )11 of 1948) applies;
a plantation as defined in Section2 of the Plantation Labor Act, 1951 (69 of 1951); and
a newspaper establishment as defined in Sections 2 of the Working Journalists and other
Newspaper Employees (Conditions of service and Miscellaneous Provisions Act, 1955.0
(9) Maternity Benefit Act 1961, Act 53 of 1961, defines establishment to mean:i
a factory;
ii
a mine;
iii
a plantation;
iv
an establishment wherein persons are employed for the exhibition of equestrian, acrobatic and
other performances;
v
a shop or establishment;
vi
an establishment to which the provisions of the Act (Maternity Benefit Act, 1961) have been
declared under Section (1) of Section 2 to be applicable.0
(10) The Sales Promotion Employees ( Conditions of Service ) Act, 1976, Act No.11 of 1976, defines the
term establishment to mean an establishment engaged in pharmaceutical industry or in any notified
industry.0
(11)The Weekly Holidays Act, 1942 defines establishment means a shop restaurant or theatre0
Definition of establishment in the India labour code

Establishment means any place where any industry, trade business,
manufacture, occupation or other activity is carried on and one or more
persons are employed.
25. Definition of industrial establishment
The Industrial Disputes Act, 1947, Act 14 of 1947 defines industrial

establishment or undertaking to mean an establishment or undertaking in
0 Labor Laws ( Exemption from Furnishing Returns and Maintaining Registers
by certain Establishments) Act, 1988, Section 2 (1) (b)
0 Maternity Benefit Act, 1961, Section 23 (e)
0 Sales Promotion Employees ( conditions of Service Act, 1976, Act No. 11) of
1976, Section 2 (a)
0 Weekly Holidays Act, 1942, Section 2(a)
which any industry is carried on. Where several activities are carried on in an
establishment or undertaking and only one or some of such activities is or are
an industry or industries, then,(a) if any unit of such establishment or undertaking carrying on
any
activity ,being an industry, is severable from the other unit or units of such
establishment or undertaking, such unit shall be deemed to be a separate
industrial establishment;
(b) if the predominant activity or each of predominant activities carried on in
such establishment or undertaking or any unit thereof is an industry and the
other activity or each of the other activities carried on in such establishment
or undertaking or unit thereof is not severable from and is, for the purpose of
carrying on, or aiding the carrying on of, such predominant activity or
activities, the entire establishment or undertaking or, as the case may be,
unit thereof shall be deemed to be an industrial establishment or
undertaking.0
Where two units belong to a proprietor, there is almost always likelihood also
of unity of management. In all such cases , therefore, the Court has to
consider with care how far there is functional integrality meaning thereby
such functional interdependence that one unit cannot exist conveniently and
reasonably without the other and on the further question whether in matters
of finance and employment the employer has actually kept the two units
distinct or integrated.0
Where two concerns run by the employer are allied to each other, the
question would have to be considered whether they are functionally
integrated or mutually interdependent. If they are that would be an important
factor in favour of the plea that the two concerns constitute one unit. 0
0 Industrial Disputes Act, 1947, Section 2(ka)

0 Pratap Press v workmen 1960 1 LLJ 497SC; AIR 1960 SC 1213;GG Industries Mazdoor Union v GG Tin
Factory 1952 1 LLJ 507 LAT;
Pipe Mill Mazdoor Union v Indian Hume Pipe Co. Ltd. 1951 1 LLJ 379LAT;
Workers v Hindi Pracha Press 1958 2 LLJ 358 LC (Mad);
Associated Cement Co. Ltd. Workmen 1960 1 SCR 703; 1960 1 LLJ 1
The Act not having prescribed any specific tests for determining what is one
establishment we must fall back on such consideration as in the ordinary
industrial or business sense determine the unity of an industrial
establishment, having regard no doubt to the scheme and object of the act
and other relevant provisions of the Mines Act, 1952 or the Factories Act,
1848. What then is one establishment in the ordinary industrial or business
sense? The question of unity or oneness presents difficulties when the
industrial establishment consists of parts, units, departments, branches, etc.
If it is strictly unitary in the sense of having one location and one unit only,
there is little difficulty in saying that it is one establishment. Where however,
the industrial undertaking has parts, branches, departments, units, etc., with
different locations, near or distant, the question arises what tests should be
applied for determining what constitutes one establishment. It is perhaps
impossible to lay down any one test a an absolute and inevitable test for all
cases. The real purpose of these tests is to find out the true relation between
the parts, branches units, etc. If in their true relation they constitute one
integrated whole, we say that he establishment is one; if on the contrary they
donot constitute on integrated whole, such unit is then a separate unit. How
the relation between the units will be judged must depend on the facts
posed, having regard to the scheme and object of the statute. Thus in one
case the unity of ownership, management and control may be the important
test; in another case functional integrality or general unity maybe the
important test; and in still another case, the important test maybe the unity
of employment. Indeed , in a larger number of cases several tests may fall for
consideration at the same time. The difficulty of applying these tests arises
because of the complexities of modern industrial organisation; many
enterprises may have functional integrality between factories which are
separately owned; some may be integrated in part with units or factories
having the same ownership and in part with factories or plants which are
independently owned.0
26. Definition of industrial or other establishment
0 South India Mill Owners Assn v Coimbatore District Textile Workers Union
1962 S 2 SCR 926 ; 1962 1 LLJ 223
0 Associated Cement Companies Ltd. v Workmen AIR 1960 SC 56; (1960) 1
LLJ 1; (1960) 1 SCR 703
(1)The Industrial Employment ( Standing Orders) Act, 1946, Act 20 of 1946, defines industrial
establishment to mean
i
an industrial establishment as defined in Clause (ii) of Section 2 of the
ii
iii
iv
Payment of Wages Act, 1936 , or

a factory as defined in clause (m) of Section 2 of the factories Act,
1948;or
a railway as defined in clause(4) of Section2 of the Indian Railways Act,
1890, or
the establishment of a person who, for the purpose of fulfilling a
contract with the owner of any establishment employs workmen. 0
The term industrial establishment is to be given the meaning contained in the Payment of Wages Act,
1936,at the time of enactment of the Industrial Employment (S.O) Act, , i.e.,1946. Any subsequent
amendment to the former Act would not affect the position vis-a vis the latter Act.0
(2)The Payment of Wages Act, 1936, Act No.4 of 1936, defines industrial or other establishment to mean
any
(a) tramway service, or motor transport service engaged in carrying

passengers or goods or both by road for hire or reward;
(b) air transport service, other than such service belonging to , or exclusively
employed in the military, naval or air forces of the Union or the Civil Aviation
Department of the Government of India;
(c )dock, wharf or jetty;
(d) inland vessel mechanically propelled;
(e) mine quarry or oilfield;
(f) plantation;
(g) workshop or other establishment in which articles are produced adapted
or manufactured with a view to their use , transport or sale;
(h)establishment in which any work relating to the construction,
development, or maintenance of buildings roads, bridges or canals, or
relating to operations connected with navigation irrigation or the supply of
water , or relating to the generation, transmission and distribution of
electricity or any form of power is being carried on;
(i) any other establishment or class of establishment which the Central
Government or a State Government may, having regard to the nature
0 Industrial Employment ( Standing Orders) Act, 1946, Section 2 (e)
0 Valsad JillaSahakari Bank Ltd. v D.K.Patel 1991 Lab IC 655; (1991 ) 2 LLN
669; 63 FLR 212 ( Guj)
thereof, the need for protection, of persons employed therein and other
relevant circumstances, specify, by notification in the Official Gazette.
27. Definition of newspaper establishment

The
Working
Journalists and
other Newspaper Employees
( Conditions of Service) and Miscellaneous Provisions Act, 1955, Act
No. 45 of 1955 defines the term newspaper establishment to mean an
establishment under the control of any person or body of persons, whether
incorporated or not, for the production or publication of one or more
newspapers of for conducting any news agency or syndicate and includes
newspaper establishments specified as one establishment under the
Schedule.0
For purpose of this clause different departments branches and centres of

newspaper establishments will be treated as parts thereof. 0
A printing press will be deemed to be a newspaper
principal business thereof is to print newspaper. 0
establishment if the
Two companies although distinct and separate persons under the Companies
Act can be considered to be one establishment if they are so connected as to
establish
unity of ownership , management and control or functional
integrity.0
0 Working Journalists ( Conditions of Service and Miscellaneous Provisions)

Act, 1955, Section 2 ( d)
Act, 1955Explanation(a) to Section 2(d)
Act, 1955 Explanation (b) to Section 2 (d)
0 Associated Cement Companies Ltd. v Workmen AIR 1960 SC 56; (1960) 1
SCR 703 ; (1960) 1 LLJ 1.
28.Definition of establishment in the private sector
The Payment of Bonus Act, 1965, Act No.21 of 1965, defines the term
establishment in the private sector to mean any establishment other than an
establishment in public sector0
In considering whether several units are part of one, several factors are to be considered such as unity of
ownership, management and control, unity of two concerns, unity of finances , geographical location and
functional integrality. Unity of purpose or design are parallel of coordination intended to achieve common
object. The mere functional integrality cannot be a decisive test in the complex and complicated forms
which modern industrial
Enterprise assumes. The importance and significance of the test would vary
according to the facts in each case. The test of functional integrality is
important where two concerns run by the employer are allied to each other
but not when the same business is run at two different places. The context in
which the plea of unity s raised cannot be ignored. 0
The tests to decide whether different operations carried on by an employer

form one integrated whole are such as integrality of functions,
interdependence of finances, community of control and management ,
community of manpower and of recruitment and discipline and how the
different parts have been treated by the employer. The application of one
single test in preference to the others should be avoided and weightage given
to the different tests will depend on the circumstances 0

0 South India Mill owners Association v Coimbatore District Textile Workers , 1962 Supp 2 SCR 926; air
1962 SC 1221; (1962) 1 LLJ 223; (1961-62 ) 21 FJR 543; (1962 ) 4 FLR 262Associated Cement
companies Co Ltd. v Workmen (1960) 1 SCR 703; AIR 1960 SC 56
Pratap Press (1960) 1 LLJ 497; AIR 1960 SC 1213;
0 Workmen of Joint Steamer Companies v Joint Steamer Companies and another (1964) 3 SCR 456; AIR
1963 SC 1710; (1963) 7 FLR 197: (1963) 2 LLJ 349; (1964-65) 26 FJR 402ACC Ltd. v their Workmen
(1960) 1 SCR 703; AIR 1960 SC 56; Pratap Press v Their workmen AIR 1960 SC 1213; (1960) 1 LLJ 497 ;
Pakshiraja Studio v workmen AIR 1966 SC 1410; (1961) 2 LLJ 380
Fine Knitting Co. Ltd. v Its workmen 1962 (4) FLR 409 referred to
29. Definition of establishment in public sector
The Payment of bonus Act, 1965,Act No. 21 of 1965, defines the term
establishment in public sector to mean an establishment owned controlled or
managed by
a
b
a Government Company as defined in the Section 617 of the Companies

Act, 1956 ( 1 of 1956)
a corporation in which not less than forty percent of its capital is held
( whether singly or taken together ) by (i) the Government , or (ii) the
Reserve Bank of India, or (iii) a corporation owned by the Government or
the Reserve Bank of India.0
30.Definition of Factory0:
(1)The Factories Act, 1948 Act No.63, of 1948 defines factory to mean
any premises including the precincts thereof :
(a)whereon ten or more workers are working of were working on any day of
the
preceding twelve months, and in any part of which a manufacturing
process is
being carried on with the aid of power or is ordinarily so carried
on; or
(b)
whereon twenty or more persons are working or were working on any
day of
the preceding twelve months and in any part of which a
manufacturing process
is being carried on without the aid of power, or is
0
ordinarily so carried on.
0 The term factory has been defined in the Employees State Insurance Act , 1948 and the Factories Act,
1948. Basically they cover the same ingredients They differ in the following respects:(a)The Factories
Act uses the words workers and working. The ESI Act uses the words persons and employed thereby
widening the definition
.(b) The ESI Act distinguishes between factories and seasonal factories while the Factories Act does not
make any such distinction;
(c ) The Factories Act excludes from the ambit of the definition a mine subject to the operation of the Mines
Act, a mobile unit belonging to the armed forces of the Union, a railway running shed. And a hotel
restaurant or eating place. The ESI Act excludes only a mine subject to the operation of the Mines Act and
a railway running shed..
0 Factories Act, 1948, Section 2 (m)
But the term factory does not include a mine subject to the provisions of
the Mines Act, 1952 (XXXV of 1953) or a mobile unit belonging to the armed
forces of the Union, a railway shed or a hotel, restaurant or eating place. 0
For computing the number of workers for determining whether the premises
is a factory, all the workers in different groups and relays in a day should be
taken into account.0
For the purpose of this definition, the mere fact that an electronic data
processing unit or a computer unit is installed in any premises or part thereof
should not be construed to make it a factory if no manufacturing process is
being carried on in such premises or part thereof. 00
(2)Employees Provident Funds and Miscellaneous Provisions Act

1952 Act No.19 of 1952 The defines factory to mean any premises
including the precincts thereof, in any part of which a manufacturing process
is being carried on or is ordinarily so carried on, whether with the aid of
power or without the aid of power.0
(3)The Employees State Insurance Act, 1948 Act No.34 of 1948

defines factory to mean any premises including the precincts thereof
a
whereon ten or more persons are employed or were employed for wages
on any day of the preceding twelve months and in any part of which a
0 Factories Act, 1948, Section 2 (m)

0 Factories Act, 1948, Section 2 (m) Explanation I
0 Factories Act, 1948, Section .2(m) Explanation II
2( g)
manufacturing process is being carried on with the

ordinarily so carried on; or
whereon twenty or more persons are employed or
wages on any day of the preceding twelve months,
which a manufacturing process is being carried on
power or is ordinarily carried on.
aid of power or is
were employed for
and in any part of
without the aid of
But the term does not include a mine subject to the operation of the Mines Act, 1952 (35 of 1952) or a
railway running shed.
From a bare perusal of the definition of factory under S.2(m) of the

Factories Act, it is patent that if on any premises including the precincts
thereof ten or more workers are working or were working on any day of the
preceding twelve months and in any part thereof a manufacturing process is
being carried on with the aid of power, it would be a factory. Ordinary
meaning of the word premises is a piece of land including the buildings or
a building together with its grounds or appurtenances and precincts mean
the areas surrounding a place. The words any premises including the
precincts thereof under Section 2 (m)
are therefore wide enough to
include all buildings with its surroundings which form part of one unit. If
therefore, in such an area ten or more workers are working and in any part
thereof manufacturing process is being carried on with the aid of power it
would be a factory.0
Sub-clause (I) of clause (m) of Section 2 of the Act refers to working of ten or
more workers. Those workers must work in the premises of the factory
connected with the work of manufacturing process ,with the aid of power. 0
Sub-clause (ii) of clause (m) of Section 2 refers to working of twenty

workers in the premises of the factory on any day of the preceding twelve
months. Such workers must have been employed and carry out the work
connected with the manufacturing process. They must also be workers under
the Act.0
0 Grauer and Weil (India) Ltd. v Collector of Central Excise Baroda 1995 II
LLJ 648 SC ; AIR 1995 SC 543
0 Sttate of bombay v Alisaheb Tamboli AIR 1955 Bom 109; 1995 II LLJ 182
Bom
0 AIR 1958 (Ker) 237; 1958 Cri LJ 1026 (Ker); State of Bombay v Alikashim Tamboli AIR 1955 Bom 109
The expression were working on any day of the preceding twelve months
indicates that if preceding
the date on which the Inspector of Factories
inspects a premises and finds that there were ten or more workers, or
twenty or more workers, as the case may be, worked in the premises, then it
will be a factory, even thought the Inspector of Factories finds less than ten or
twenty workers on the day of his inspection. 0
The term power applies to any form of energy transmitted mechanically.

Always it cannot be called as a form of energy. In any boiler , if constant
pressure is maintained and steam as well as heat energy are transmitted to
the cloth printing tables, then the definition of power is satisfied. 0
The State Government may direct that for all or any of the purposes of the
Act different departments or branches of a factory as separate factories or
that two or more factories should be treated as a single factory. Any such
direction should be by an order in writing. It may be subject to such
conditions as the Government may deem it fit to specify. The directions may
be given by the Government on its own motion or on an application by an
occupier. But no order may be made by the Government on its own unless an
opportunity of being heard is given to the occupier. 0 If manufacturing process
is done at two different places they are factories. 0
0 AIR 1960 Mad 405

0 UshaPrints India (P) Ltd. v E.S.I.Corporation AIR 1964 Bom 94 ; (1963) II LLJ
544 Bom : (1963) 7 Fac LR 369
0 Factories Act, 1948, Section 4
0 AIR 1955 All 702
A factory may consist of more than one premises. 0 Premises include land as
well. 0The factory must occupy a fixed site or premises 0(4).
The following premises are factories :

The Publication and Press Department of a University
Railway workshops but not railway running sheds
(5)
(6)
Salt works which consist mainly of open stretches of land with some
temporary shelters (7)
A hotel where food is prepared in a part of the premises
(8)
Establishments which prepare articles of food and drink and cater them
to members of public who visit them and in which the number of workmen
employed is more than the required minimum . 0
The process of garbling paper with the aid of more than twenty persons in
certain premises will make the premises a factory. 0
The cutting of wood or converting the wood into planks is essentially a part
of the manufacturing activity even if carried out only in a part of the
premises.0
0 S.G.Chemicals and Dyes Employees Union v Management; (1986) 2 SCC

624
0 AIR 1956 Bom 219
0 Workmen Delhi Supply Undertaking v Management Delhi Electric supply
Undertaking ; (1974) 3 SCC 108
0 AIR 1959 Mad 542; see also 1980 Lab IC 100 (Bom)
0 58 Cri LJ 1026
0 Bharat Udyog v Regional director ESI 1982 Lab IC1644 (Bom)
Where seven persons are employed permanently in the premises, and three
persons are employed temporarily in repairs of part of the machinery, while
the manufacturing process goes on is a factory. 0
Where within the same premises a number of departments are engaged in

the work connected with or incidental to a manufacturing process of the
factory they would prima facie all form part of the factory. 0
A canteen is part of a factory as it is used for feeding the people working in

the factory and is incidental to the process of manufacture carried on in the
factory.0
In order to constitute a factory it is not necessary that twenty or more persons should be employed
entirely in the manufacturing process.0
It is sufficient if the manufacturing process is being carried on in any part of

the premises or precincts. Such manufacturing process need not be carried
on it in its entirety with the aid of power . 0
The following are not factories :

Substations and zonal stations where no manufacturing process is carried on
(10)
0 AIR 1959 All 794

0 Regional Director, E.S.I Corporation v Sriramulu Naidu; (1960) 2 LLJ 699; 19
FJR 238
0 Littman v Imperial Chemical Industries Ltd. (1955) 3 All ER 481
0 1981 Lab IC 939 ( Raj) ;(1981) 2 LLN 126; (1981) 2 SLJ 443; 44 FLR 39
0 Yemniganur Weavers Cooperative Production and Sale Society ltd Regional
director ESI Corporation 1977 Lab IC 1514; 51 FJR 322;35 FLR 409 (AP) ; See
also ESI Corporation Vs.m.Sriramulu AIR 1960 MAD 248;(1960) 2 LLJ 699; 19
FJR 238
Where the workers are free to come and go as and when they like and
the work could be stopped on rainy days or for lack of tobacco without any
responsibility for payment of any salary for days when work was not done
and where work was remunerated only on the quantity turned out by the
worker and the workers were not compelled to stay in the factory between
specified hours of work (11)
The activity of exhibiting cinema films
Dock Labour Board
0(12)
Temporary work done with the aid of power at certain place. 0

Laundry of a hospital meant for working only the linen used in the hospital
and being run by engaging the employees of the hospital by turns 0
Mere existence of a refrigerator will not make the premises a factory. 0
The State Government may by notification in the Official Gazette, declare

that all or any of the provisions of the Act shall apply to anyplace wherein a
manufacturing process is carried on with or without the aid of power or is
ordinarily carried on, notwithstanding that (i) the number of persons
employed therein is less than ten, if working with the aid of power and less
than twenty, if working without the aid of power; or (ii) the persons working
therein are not employed by the owner thereof but are working with the
permission or under agreement with such owner. 0After a place is so declared
it will be deemed to be a factory for the purposes of the Factories Act, and
0 AIR 1959 Bom371

0 Calcutta Dock Labor Board v Payment of Wages Authority 1982 Lab IC
657 ( Cal)
0 Simon Carves India Ltd. v State 41 FLR 75
0 Christian Medical College Hospital v Inspector of Factories (1984) 2 LLN
315 (Mad) ; (1984) 2 LLJ 237; 1985 Lab IC 657
0 AIR 1956 Mad 600
0 Factories Act, 1948, Section 85 (1)
the owner will be deemed to be the occupier and any person working therein
a worker.0
The State government may on its own or on an application made in this

behalf by an occupier direct by an order in writing, and subject to such
conditions as it may deem fit that for all or any of the purposes of the Act
different departments or branches of a factory of an occupier should be
treated as separate factories or that two or more factories of an occupier
should be treated as a single factory. 0 No such order should be made by the
State Government on its own unless an opportunity is given to the occupier of
being heard.0
31.Definition of industry
Industrial DisputesAct, 1947 defines Industry to mean any business,

trade, undertaking, manufacture or calling of employers and includes any
calling, service, employment, handicraft, or industrial occupation or avocation
of workmen.
In the ordinary or non-technical sense, according to what is understood by

the man in the street, industry or business means an undertaking where
capital and labor co-operate with each other for the purpose of producing
wealth in the shape of goods, machines, tools, etc., and for making profits.
The concept of industry in this ordinary sense applies even to agriculture,
horticulture, pisciculture and so on and so forth. 0
It is also clear that every aspect of activity in which the relationship of

employer and employee exists or arises does not thereby become an industry
as commonly understood. We hardly think in terms of an industry, when we
0 Factories Act, 1948, Section 85 (2)
0 Factories Act, 1948, Section 4
0 Factories Act, 1948 proviso to Section 4
0 Banerji DN v Mukherjea PR 1953 SCR 302 ;1953 1 LLJ 195
have regard, for instance, to the rights and duties of master and servant, or
of a Government and its secretariat, or the members of the medical
profession working in a hospital. It would be regarded as absurd to think so;
at any rate, the layman unacquainted with advancing legal concepts of what
is meant by industry would rule out such a connotation as impossible. 0
There is nothing, however, to prevent a statute from giving the word

industry and the words industrial dispute a wider and more
comprehensive import in order to meet the requirements of rapid industrial
progress and to bring about in the interests of industrial peace and economy,
a fair and satisfactory adjustment of relations between employers and
workmen in a variety of fields of activity. 0
It is obvious that the limited concept of what an industry meant in early times
must now yield place to an enormously wider concept so as to take in various
and varied forms of industry, so that disputes arising in connection with them
might be settled quickly without much dislocation and disorganisation of the
needs of society and in a manner more adapted to conciliation and
settlement than a determination of the respective rights and liabilities
according to strict legal procedures and principles. 0
The conflicts between capital and labour have now to be determined more
from the standpoint of status than of contract. Without such an approach, the
numerous disputes cannot be tackled satisfactorily, and this is why every
civilised government has thought of the machinery of conciliation officers,
boards and tribunals for the effective settlement of disputes. 0
It is therefore incumbent to ascertain what the statute means by industry

and industrial dispute leaving aside the original meaning attributed to the
words in a simpler state of society, when we had only one employer perhaps,
doing a particular trade or carrying on a particular business with the help of
his own tools, material and skill and employing a few workmen in the process
of production or manufacture, and when such disputes that occurred did not
go behind individual levels into acute fights between rival organisations of
workmen and employers, and when large-scale strikes and lock-outs throwing
society into chaos and confusion were practically unknown. Legislation has to
keep pace with the march of times and to provide for new situations. Social
evolution is a process of constant growth, and the State cannot afford to
stand still without taking adequate measures by means of legislation to solve
large and momentous problems that arise in the industrial field from day to
day almost.0
Though the word undertaking in the definition of industry is wedged in

between business and trade on the one hand and manufacture on the other,
and though therefore it might mean only a business or trade undertaking, still
it must be remembered that if that were so, there was no need to use the
word separately from business or trade. The wide4r import is attracted even
more clearly when we look at the latter part of the definition which refers to
calling, service, employment, or industrial occupation or avocation of
workmen. Undertaking in the first part of the definition and industrial
occupation or avocation in the second part obviously mean much more than
what is ordinarily understood by trade or business. The definition was
apparently intended to include within its scope what might not strictly be
called trade or business venture.0
A public utility service such as railways, telephones and the supply of power,
light or water to the public may be carried on by private companies or
business corporations. Even conservancy or sanitation may be carried on,
though after the introduction of local self-government this work has in almost
every country been assigned as a duty to local bodies like our municipalities
or district boards or local boards.0

If the public utility service is carried on by a corporation like a municipality

which is the creature of a statute, and which functions under the limitations
imposed by the statute, does it cease to be an industry for this reason? The
only ground on which one could say that what would amount to the carrying
on of an industry if it is done by a private person ceases to be so if the same
work is carried on by a local body like a municipality, is that in the latter there
is nothing like the investment of any capital or the existence of a profit
earning motive as there is in a business. But neither the one nor the other
seems a sine qua non or a necessary element in the modern conception of
industry.0
The definition of the word industry in Section 2(14) of the CP and Berar
Industrial Disputes Settlement Act,1947, although in a language somewhat
different from that of Section 2(j) of the Industrial Disputes Act,1947, is very
comprehensive. It is in two parts, clause (a) defines it from the standpoint of
employers and clause (b) from that of the employee. An activity that falls
within any of the two clauses must be an industry. 0
It is not necessary that an activity of the corporation must share the common
characteristics of an industry before it can come within the section. The
words in Section 2(14) C.P. and Berar Industrial Disputes Settlement Act,
1947, are clear and unambiguous and the maxim noscitur a sociis can have
no application. The history of industrial disputes and the legislation, however,
recognises the basic concept that the activity must be an organised one and
not one that pertains to private or personal employment. 0
The real test as to whether a service undertaken by a corporation is an

industry must be whether that service, if performed by an individual or a
private person, would be an industry. Monetary consideration cannot be an
0 Corporation of the city of Nagpur v Employees 1960 2 SCR 942: 1960 1 LLJ 523;Banarji DN v
Mukherjea PR 1953 SCR 302: 1953 1 LLJ 195; Baroda Borough Municipality v workmen 1957 SCR 33;
1957 1 LLJ 8
0 Corporation of the city of Nagpur v employees 1960 2 SCR 942; 1960 1 LLJ 523;Bombay v Hospital
Mazdoor Sabha 1960 2 SCR 866; 1960 1 LLJ 251
essential characteristic of industry. In a modern State, it is, therefore,

incorrect to say that only such activities as were analogous to trade or
business could come within Section 2(14) of the C.P. and Berar Industrial
Disputes Settlement Act.0
The definition of an industrial dispute in Section 2(k) does not in so many

words refer to industry. But on the grammar of the expression itself, an
industrial dispute must necessarily be a dispute in an industry and
moreover the expression employer and workman used in the definition of
industrial dispute carry the requirement of industry by virtue of their their
own definitions in Sections 2(g) and 2(s). 0
According to the dictionary , the meaning of undertaking means anything

undertaken; any business or work or project which one engages in or
attempts; an enterprise. It is a term of very wide connotation. But an
undertaking to be within the definition in Section 2(j) of the Act must be
read subject to a limitation, viz., that it must be analogous to trade or
business. In order that an undertaking should be analogous to trade or
business, profit-motive and capital investment are not essential requisites.
There can be such an undertaking without the presence of both or either of
these attributes or features. No rigid and doctrinaire approach can be
adopted in considering the question as to what are the attributes or features
of which make an undertaking analogous to trade or business. Such an
approach would fail to measure up to the needs of the growing welfare State
which is constantly engaged in undertaking new and varied activities as part
of its social welfare policy. The concept of industry, which is intended to be a
convenient and effective tool in the hands of industrial adjudication for
bringing about industrial peace and harmony, would lose its capacity for
adjustment and change. It would be petrified and robbed of its dynamic
content.0
0 Corporation of the city of Nagpur v Employees 1960 2 SCR 942; 1960 1 LLJ 523;Banerji DN v
Mukherjea PR 1953 SCR 302;1953 1 LLJ 195
0 Workmen v Indian Standards Institution 1976 2 SCR 138; 1976 1 LLJ 33

0 Workmen v Indian Standards Institution 1976 2 SCR 138
Any activity can be regarded as an industry within the meaning of Section

2(j) only if there is relationship of employer and employees and the former is
engaged in business, trade, undertaking, manufacture or calling of
employers and the latter in any calling, service, employment, handicraft or
industrial occupation or avocation.0
Though undertaking is a word of large import and it means anything

undertaken or any project or enterprise, in the context in which it occurs, it
must be read as meaning an undertaking analogous to trade or business. In
order that an activity may be regarded as an undertaking analogous to trade
or business, it must be organised or arranged in a manner in which trade or
business is generally organised or arranged. It must not be casual nor must
it be for oneself nor for pleasure. And it must rest on co-operation with a view
to production, sale or distribution of material goods or material services. 0
It is entirely irrelevant whether or not there is profit-motive or investment of

capital in such activity. Even without these two features, an activity can be an
undertaking analogous to trade or business. It is also immaterial that its
objects are charitable or it does not make profits or even where profits are
made, they are not distributed amongst its members, or that its activity is
subsidised by the Government. 0
Again it is not necessary that the employer must always be a private

individual. The Act, in terms, contemplates cases of industrial disputes,
0 Workmen v Indian Standards Institution 1976 2 SCR 138: 1976 1 LLJ 33Bombay v Hospital Mazdoor
Sabha 1960 2 SCR 866 ; 1960 1 LLJ 251;
Safdarjung Hospital v Sethi KS1971 1 SCR 177; 1970 2 LLJ 26
Madras Gymkhana Club Employees Union v management 1968 1 SCR 742; 1967 2LLJ 720
National Union of Commercial Employees v Industrial Tribunal 1962S3 157; 1962 1 LLJ 241;
University of Delhi v Nath R. 1964 2 SCR 703; 1963 2 LLJ 335;
Cricket Club of India Ltd. v Bombay Labor Union 1969 1 SCR 600; 1969 1 LLJ 775
0 Cricket Club of India Ltd. v Bombay Labor Union 1969 1 SCR 600; 1969 1
LLJ 775
LLJ 775
where the Government or a local authority or a public utility service may be

the employer.0
It also makes no difference that the material services rendered by the

undertaking are in public interest.0
The concept of public interest in a modern welfare State, where new social
values are fast emerging and old dying out, is indeed so wide and so broad
and comprehensive is its spectrum and range of that that many activities
which admittedly fall within the category of industry are clearly designed to
subserve public interest. In fact, whenever any industry is carried on by the
Government, it would be in public interest, for the Government can act only
in public interest. Whether an activity is carried on in public interest or not,
can, therefore, never be a criterion for determining its character as an
industry.0
Industry as defined in section 2 (j) and explained in the case of Banerji DN v

Mukherjea PR has a wide import: 0
IWhere there is systematic activity, organised by co-operation between

employer and employee (the direct and substantial element is chimerical) for
the production and/or distribution of goods and services calculated to satisfy
human wants and wishes (not spiritual or religious, but inclusive of material
LLJ 775
LLJ 775
LLJ 775
0 Bangalore Water supply & Sewerage Board v Rajappa R 1978 3 SCR 207;
1978 1 LLJ 349; 1978 2 LLJ 73
things or services geared to celestial bliss, e.g. making, on a large scale,

prasad or food), prima facie there is an industry in that enterprise. 0
Absence of profit-motive or gainful objective is irrelevant, be the venture in
public, joint, private or other sector. 0
The true focus is functional and the decisive test is the nature of the activity
with special emphasis on the employer-employee relations. 0
If the organisation is a trade or business it does not cease to be one because
of philanthropy animating the undertaking.0
Although Section 2(j) uses words of the widest amplitude in its two limbs,
their meaning cannot be magnified to overreach itself. 0
IIUndertaking must suffer a contextual and associated shrinkage as

explained in the case of Banerji DN v Mukhejee PR and in this judgment; so
also, service, calling and the like. This yields the inference that all organised
activity possessing the triple elements in I (supra) referred to above although
not trade or business, may still be an industry provided the nature of the
activity, viz. the employer-employee basis, bears resemblance to what we
find in trade or business. This takes into the fold of industry undertaking,
callings and services, adventures analogous to the carrying on of trade or
business. All features, other than the methodology of carrying on the
activity, viz. in organising the co-operation between employer and employee,
0 Bangalore Water supply & Sewerage Board v Rajappa R. 1978 3 SCR 207;
1978 1 LLJ 349; 1978 2 LLJ 73
1978 1 LLJ 349; 1978 2 LLJ 73
1978 1 LLJ 349; 1978 2 LLJ 73
1978 1 LLJ 349; 1978 2 LLJ 73
1978 1 LLJ 349; 1978 2 LLJ 73
may be dissimilar. It does not matter, if on the employment terms there is

analogy.0
III Application of these guidelines should not stop short of their logical reach by invocation of creeds,
cults or inner sense of incongruityor outer sense of motivation for or resultant of the economic
operations.The ideology of the Act being industrial peace, regulation and resolution of industrial disputes
between employer and workmen, the range of this statutory ideology must inform the reach of the statutory
definition. Nothing less, nothing more.0
The consequences are (i) profession, (ii) clubs, (iii) educational institutions, (iv) co-operatives, (v) research
institutes, (vi) charitable projects and (vii) other kindred adventures, if they fulfil the triple tests listed in
I (supra), cannot be exempted from the scope of Section 2(j)0
A restricted category of professions, clubs, co-operatives and even gurukulas and little research laboratories
qualify for exemption if, in simple ventures, substantially and going by the dominant nature criterion,
substantively no employees are entertained but in minimal matters, marginal employees are hired without
destroying the non-employee character of the unit.0
If, in a pious or altruistic mission, many employees themselves,work free or

for small honoraria or like return, mainly drawn by sharing in the purpose or
cause, such as lawyers volunteering to run a free services clinic or doctors
serving in their spare hours in a free medical centre or asramites working at
the bidding of the holiness, divinity or like central personality, and the
services are supplied free or at nominal cost and those who serve are not
engaged for remuneration or on the basis of master and servant relationship,
then the institution is not an industry even if stray servants , manual or
technical, are hired. Such eleemosynary or like undertaking alone are exempt
not other generosity, compassion, development passion or project. 0
1978 1 LLJ 349; 1978 2 LLJ 73
1978 1 LLJ 349; 1978 2 LLJ 73
1978 1 LLJ 349; 1978 2 LLJ 73
1978 1 LLJ 349; 1978 2 LLJ 73
The lynch-pin of the definition of industry is to ascertain the systematic activity which the organisation is
discharging namely whether it partakes the nature of a business or a trade, or is an undertaking or
manufacture or calling of employers. If it is that and there is a co-operation of the employer and the
employee resulting in the production of material services, it is an industry notwithstanding that its objects
are charitable or that it does not make profit or even when profits are made, they are not distributed among
the members.0
A systematic activity can be a business activity even if no dividends are

declared or profits shared.0
In effect when an association has been established to carry on research with

respect to textile industry jointly for the benefit of its members and but for
this, each member-mill might have had to establish its own research
department which would be a part of its activity, it should be considered as
purely an adjunct of the industry and not as an educational institution. 0
1978 1 LLJ 349; 1978 2 LLJ 73
0 Federation of Indian Chambers of commerce and Industry v Mittal RK 19722 SCR353; 1971 2 LLJ
630;Madras Gymkhana club Employees Union v management 1968 1SCR 742; 1967 2 LLJ 720;
Bombay v Hospital Mazdoor Sabha 1960 2 SCR866; 1960 1 LLJ 251;
Banerji DN v Mukherjea PR 1953 SCR 302; 19531 LLJ 195;
Baroda Borough Municipality v workmen 1957 SCR 33; 1957 1 LLJ 8;
Corporation of the city of Nagpur v Employees 1960 2 SCR 942; 1960 1 LLJ 523;
University of Delhi v Nath R. 1964 2 SCR 703; 1963 2 LLJ 335;
Ahmedabad Textile Industry Research Assn v Bombay 1961 2 SCR 480;
National Union of commercial Employees v Industrial Tribunal 1962 S3 SCR 157; 1962 1 LLJ 241;
Harinagar Cane Farm v Bihar 1964 2 SCR 458; 1963 1 LLJ 693
Cricket club of India Ltd. v Bombay Labor Union 1969 1 SCR 600; 1969 1 LLJ 692
Safdarjung Hospital v Sethi KS 1971 1 SCR 177 ; 1970 2 LLJ 266;
CIT v Andhra Chamber of Commerce 1965 1 SCR 565; AIR 1965 1SC1281
Hyderabad Stock Exchange Ltd. v CIT 1967 ITR 195;
CIT v Bengal Home Industries Assn 1963 ITR 181;
Bombay anjarapole v Workmen 1972 1 SCR 202; 1971 2 LLJ 393 ;
Lalit Hari Ayurvedic College Pharmacy v workmen 1960 1 LLJ 250 SC; AIR 1960 SC 1261;
Workmen v Madras Pinjarapole 1962 2 LLJ 472 (Mad0
0 Chief Commissioner v Federation of Indian Chambers of Commerce and

Industry 1975 1 SCR 348; 1974 2 LLJ 271
0 Ahmedabad Textile Industry Research assn v Bombay 1961 2 SCR 480;
1960 2 LLJ 720
Limited companies which have been formed, inter alia, for the express
purpose of carrying on trade or business, having invested a large amount of
capital or carrying on their agricultural operations in order to make profit and
the workmen employed contribute to the production of agricultural
commodities which bring in profit fall within the definition of industry in
Section 2(j).0
If a department of a municipality discharges many functions, some within and

some without the definition of industry given by the Act, the predominant
functions of the department shall be the criterion for the purposes of the Act. 0
Where a complex of activities, some of which qualify for exemption, others

not, involves employees of the total undertaking, some of whom are not
workmen as in the case of University of Delhi v Nath R or some
departments are not productive of goods and services if isolated, even then,
the predominant nature of the services and the integral nature of the
departments as explained in the case of Corporation of the City of Nagpur v
Employees will be the true test. The whole undertaking will be industry
although those who are not workmen by definition may not benefit by the
status.0
The definition, however wide, cannot include the regal, primary and
inalienable, functions of the State though statutorily delegated to a
corporation and ambit of such functions cannot be extended so as to include
the welfare activities of a modern state and must be confined to legislative
power, administration of law and judicial power. 0
0 Harinagar Cane Farm v bihar 1964 2 SCR 458; 1963 I LLJ 692
0 Corporation of the city of Nagpur v Employees 1960 2 SCR 942; 1960 I LLJ
335
0 Bangalore Water Supply & Sewerage Board v Rajappa 1978 3 SCR 207;
1978 1 LLJ 349; 1978 2 LLJ 573
Notwithstanding the previous clauses, sovereign functions, strictly

understood, (alone), qualify for exemption, not the welfare activities or
economic adventures undertaken by Government or statutory bodies. 0
Even in departments discharging sovereign functions if there are units which

are industries and they are substantially severable, then they can be
considered to come within Section 2(j).0
The definition of industry could be justified under Entry 27 even if this is

not covered by Entry 29 of List III (of Schedule VII of the Constitution) 0.
The wide sweep of expression industry as interpreted therein will

comprehend Bihar Khadi Gramodyog Sangh and, therefore, following the
decision in Bangalore Water Supply & Sewerage Board v Rajappa R it must be
held that Bihar Khadi Gramodyog Sangh is an industry within the meaning of
the expression of Section 2(j) of the Industrial Disputes Act, 1947. 0
The act of sale of blankets by the Khadi Board falls within the definition of
trade or business as contemplated in Section 2(19) of the Madhya Pradesh
Industrial Disputes Act, 1960. Hence, the Board was held to be an industry. 0
0 Corporation of the city of Nagpur v Employees 1960 2 SCR 942; 1960 1 LLJ
523
0 Bangalore Water Supply and Sewerage Board v Rajappa R. 1978 3 SCR
207; 1978 1 LLJ 349; 1978 2 LLJ 573
0 Bangalore Water Supply and Sewerage Board v Rajappa R. 1978 3 SCR
207; 1978 1 LLJ 349; 1978 2 LLJ 573
0 Nirmala Textile Finishing Mills Ltd. Second Industrial Tribunal 1957 SCR 335;
1957 1 LLJ 460
0 Shastri GJ v Bihar 1983 2 LLJ 22SC; 47 FLR 128
Pharmacy is an industry. The activity (of the appellant) in running the

pharmacy and the hospital is an undertaking under Section 2(j) and is an
industry.0
The activities of Indian Standards Institution fall within the category of

undertaking analogous to trade or business and constitute an industry
within the meaning of Section 2(j).0
It is difficult to state definitely or exhaustively the possible attributes the

presence of which makes an activity, an undertaking within Section 2(j); as a
working principle it may be stated that an activity systematically or habitually
undertaken for the production or distribution of goods or for the rendering of
material services to the community at large or a part of such community with
the help of employees is an undertaking. Such an activity generally involves
the co-operation of the employer and employees;; and its object is the
satisfaction of material human needs. It must be organised or arranged in a
manner in which trade or business is generally organised or arranged. It must
not be casual nor must it be for oneself nor for pleasure. Thus the manner in
which the capacity in question is organised or arranged, the condition of the
co-operation between employer and the employee necessary for its success
and its object to render material service to the community can be regarded
as some of the features which are distinctive of activities to which Section 2(j)
applies.0
The activities of the Government which can be properly described as regal or

sovereign activities are outside the scope of Section 2(j). 0
0 Gopal v Madhya Pradesh Khadi & Village Industries Board 1986 1 LLJ 58 SC;
AIR 1986 SC 504
0 Lalit hari Ayurvedic College Pharmacy v workmen 1960 1 LLJ 250 SC; AIR
1960 SC 1261
0 Workmen v Indian Standards Institution 1976 2 SCR 138; 176 1 LLJ 33
0 Tocklai Experimental Station v workmen 1962 S1 SCR 557; 1961 2 LLJ 694
Though it is difficult to state definitely exhaustively the attributes which

would make an activity an undertaking under Section 2(j), on the ground that
it is analogous to trade or business, it can be said, as a working principle, that
the manner in which the activity in question is organised or arranged, the
condition of the co-operation between the employer and employee necessary
for its success and its object to render material service to the community can
be regarded as some features which are distinctive of activities to which
Section 2(j) applies.0
The electrical department of the municipality which generates and supplies

energy to private consumers is an industry. 0
Agricultural operations carried on by the companies involved fall within the

term industry under Section 2(j). The larger question whether all
agricultural operations would fall within the terms industry is left open. 0
The board functioning under Dock Workers (Regulation of Employment) Act

and Scheme cannot be said to be carrying on any industry. 0
0 Tocklai Experimental Station v workmen 1962 S1 SCR 557; 1961 2 LLJ 694
0 Ahmedabad Textile Industry Research Assn v Bombay 1961 2 SCR480; 1960 2 LLJ 720;Bombay v
Hospital Mazdoor Sabha 1960 2 SCR 866; 1960 1 LLJ 251
0 Barods Borough Municipality v workmen 1957 SCR 33; 1957 1 LLJ 8Corporation of the city of nagpur v
employees 1960 2 SCR 942 ; 1960 1 LLJ 523
0 Harinagar Cane Farm v Bihar 1964 2 SCR 458; 1963 1 LLJ 692
0 Vizagpatam Dock Labor Board v Stevedores Assn 1970 2 SCR 303; 1970 1 LLJ 46;Workmen v Calcutta
Dock Labor board 1973 2 LLJ 254 SC; AIR 1973 SC 2251
In the main scheme of imparting education, the subordinate staff (with

functions like those of the respondents) play such a minor, subsidiary and
insignificant part that it would not be reasonable to allow the work of this
subordinate staff to lend its industrial colour to the principal activity of the
university which is imparting education. From a rational point of view, it
would be regarded as inappropriate to describe education even as a
profession. Education in its true aspect is more of a mission and vocation
rather than a profession or trade or business, however wide may be the
denotation of the two latter words under the Act. 0
The definitions of industrial dispute, employer and workman show that

an industrial dispute can only arise in relation to an industry. The definition
of industry is in two parts, the first, from the point of view of the employees
and the second, from the angle of employees. In its first part it means any
trade, business, undertaking, manufacturer calling of employers. This part
determines an industry by reference to occupation of employers in respect of
those activities specified by the five words and they determine what an
industry is, and what the cognate expression industrial is intended to
convey. But the second part standing alone cannot define industry. If the
existence of an industry viewed from the angle of what the employer is doing
is established, all who render service and fall within the definition of
workman come within the fold of industry, irrespective of what they do.
Thus, the cardinal test is to find out whether there is an industry according to
the denotation of the word in the first part. 0
Taking the word in the definition of industry the word trade means
exchange of goods for goods or goods for money or, any business carried on
with a view to profit, whether manual or mercantile as distinguished from the
liberal arts or learned professions and from agriculture. The word business
means an enterprise which is an occupation as distinguished from pleasure,
and manufacture is a kind of productive industry in which the making of
articles or material, often on a large scale, is by physical labor or mechanical
power. The word calling denotes the following of a profession or trade. 0
0 University of Delhi v Nath R. 1964 2 SCR 703; 1963 2 LLJ 335
0 Madras Gymkhana Club Employees Union v Management 1968 1 SCR 742; 1967 2 LLJ 720Cricket club
of India v Bombay labor union 1969 1SCR 600; 1969 1LLJ 775
0 Harinagar Cane Farm v Bihar 1964 2 SCR 458; 1963 1 LLJ 692
The word undertaking figured in the case of DN Banerjee v PR Mukherji. 0 It

was observed that the word is not to be interpreted by association with the
words that precede or follow it in the definition of industry. But the settled
view of the Supreme Court is that primarly industrial disputes occur, when
the operation undertaken rests upon co-operation between employers and
employees with a view to production and distribution of material goods, in
other words, wealth, but they may arise also in cases where the co-operation
is to produce material services. For an undertaking to be an industry, it is
not necessary that it must be carried out with capital by private enterprise or
that it must be commercial or result in profit but there must be systematic
activity and it must be analogous to the carrying on of a trade process. But
every human activity in which the relationship of employers and employees
enters, is not necessarily creative of an industry. Personal services rendered
by domestic and other servants, administrative services of public officials,
services in aid of occupations of professional men such as doctors, lawyers,
etc., employment of teachers and so on, may result in relationships in which
there are employers on the one side, and employees on the other, but they
have been excluded because they do not come within the connotation of the
term "industry as the services rendered is not a material service. Therefore,
the word undertaking, though elastic, must take its colour from other
expressions used in the definition of industry and must be defined as any
business or any work or project resulting in material goods and material
services and which one engages in or attempts as an enterprise analogous to
business or trade.0
32.Definition of industrial premises
The Beedi and Cigar Workers ( Conditions of Employment ), Act, 1966 defines the term industrial
premises to mean any place or premises (not being a private dwelling house ) , including the precincts
thereof, in which or in any part of which any industry or manufacturing process connected with the making
of beedi or cigar or both is being, or ordinarily, carried on with or without the aid power and includes a
godown0
0 1953 SCR 302; 1953 1 LLJ 195

0 Madras Gymkhana Club Employees Union v management 1968 1 SCR 742; 1967 LLJ 720;Cricket Club
of India Ltd. Bombay labor union 1969 1 SCR 600; 1969 1 LLJ 775
33. Definition of godown
The Beedi and Cigar Workers ( Conditions of Employment) Act , (Act No.32 of
966) defines the term godown to mean any ware house or other place, by
whatever name called, used for the storage (a ) any article or substance
required for any manufacturing process; (b) or beedi or cigar or both 0
34. Definition of Mine

Mine means any excavation where any operation for the purpose of searching for or obtaining minerals has
been or is being carried on, and includesi
all borings bore holes oil wells, and accessory crude conditioning plants, including the pipe
conveying mineral oil within the oilfields;
ii
all shafts, in or adjacent to and belonging to a mine, whether in the course of being sunk or not;
iii
all levels and inclined planes in the course of being driven;
iv
all open cast workings;
v
all conveyors or aerial rope ways provided for the bringing into or removed from a mine of
minerals or other articles or for the removal of refuse there from
vi
all adits, levels, planes, machinery, works, railways tramways and
vii
viii
ix
xi
sidings in or adjacent to and belonging to a mine;

all protective works being carried out in or adjacent to a mine;
all workshops and stores situated within the precincts of a mine and
under the same management and used primarily for the purposes
connected with that mine or a number of mines under the same
management;
all power stations , transformer substations, converter stations,
rectifier stations and accumulator storage stations for supplying
electricity solely or mainly for the purpose of working the mine or a
number of mines under the same management;
any premises for the time being used for depositing sand or other
material for use in a mine or for depositing refuse from a mine or in
which any operations in connection with such sand, refuse, or other
material is being carried on, being premises exclusively occupied by
the owner of the mine;
any premises in or adjacent to and belonging to a mine on which any
process ancillary to the getting, dressing, or preparation for sale of
minerals or of coke is being carried on.0
0 Beedi and Cigar Workers ( Conditions of Employment ) Act, 1966, Act No. 32
of 1966, Section 2 (i)
0 Beedi and Cigar Workers ( Conditions of Employment ) Act, 1966, Act No.
32 of 1966, Section 2 (hh)
0 Mines Act, 1952, Act No. 35 of 1952, Section 2 (j)
The definition of mine is very wide. It includes every kind of operation. 0

Mine includes a quarry.0
Mine does not include office of a mine even though situated at the surface of
the mine itself0
An establishment carrying on the work of mica finishing and neither adjacent
to , nor belonging to amine could not be governed by the Mines Act merely
because the proprietor of the establishment was a lessee of mica mine
owners.0
The word mine is not a definite term, but is one susceptible of limitation of
expansion according to the intention with which it is used.. 0The original or
primary meaning of the word is an underground excavation made for the
purpose of getting minerals.0 In particular context, however, the word has
been given a number of differing secondary meanings. Thus, it has been
interpreted so as to include a place where minerals commonly worked
undergroundare in the particular case being worked on the surface, as in
certain iron-miens and open-cast coal workings. 0 It may also denote a
stratum, vein or seam of minerals, as in the phrase, all that mine, vein, or
0 Tarakeshwar v Dar Dass Dey (1979) 3 SCC 106
0 Rani Umeswari vMember, board of Revenue (1967) 1 SCA 413 See also
Bandhua Mukthi Morcha v Union of India (1984 ) 3 SCC 161; 1984 SCC (L&S))
389
0 Serajuddin v Workmen AIR 1966 SC 921; (1962 ) 1 LLJ 450
0 PrbhuDayal gupta v State of Bihar (1993) 66 FLR 398 (Pat)
0Glasgow Corporation v Faric (1888)13 AC 657(H.L..) Midland Rail Co. v
Haunchwood Brick & TILE Co. (1882) 20 Ch. D 552
0 Glasgow Corporation v Fabric (1888) 13 AC 657 (H.L) Bell v Wilson (1866) 1
Ch. App 303; Midland Rail Co. v Haunchwood Brick & Tile co. (1882) 20 Ch. D
552
0 Glasgow Corporation v Faric (1888) 13 AC 657 (H..L) 678; (1875) 23 W.R.
730
seam of coal0. If, in such a case the mine is unopened, it is clear that the
word is used in the sense of a stratum minerals. 0 A grant of lands and
mines, where some of the mines are open, includes, however, only the open
mines.0 Where so used, the primary meaning of the word mine is that of a
vein or seam, but it may be used in a wider sense to denote a number of
veins or seams,0 or in a narrower sense to denote only that part of a vein or
seam which is within a particular tenement. 0
A further meaning of the word mine comprehends not only the mineral
deposits but also so much of the adjoining strata, whether superjacent or
subjacent, as it may be necessary to remove for the purpose of working the
mineral in a proper manner.0
The word has even been given, in some cases, a meaning which includes not
only the mineral itself but also the space created as the mineral is being
worked, and the space left when the mineral has been worked out. 0
0 Midland Rail co. v Haunchwood Brick & tile co. (1882) 20 Ch. D 552;
Glasgow corporation v Faric (1888) 13, AC 657; Lord Abinger v Ashton (1973)
LR 17 Eq. 358; Ramsay v Blair (1878 1 AC 701; Batten Poll v Kennedy (1907)
1 ch. 256
0 Ramsay v Blair(1876) 1 AC 701 Glasgow Corporation v Faric (1888) 13 AC
657; Midland Rail co. v Haunchwood Brick & Tile Co.(1882) 20 CH. D 552
0 Astry v Ballard (1677) 2 Mod .Reo 193;
0 Spencer v Scurr (1862) 31 Beav 334
0 Ivimey v Stocker (1866) 1 Ch App 396; Van Mining co. v Llanidloes
Overseers (1876) 1 Ex.d 310; R v Foleshill (inhabitants) (1835) 2 Ad & El 593
0 Bbatten Poll v Kennedy (1907) 1 ch. 256; Duke of Hamilton v Graham
(1871) LR 2 Sc & Div 166: Eardly v Granville (1876) 3 Ch.D 826
0 Bowser v Maclean (1860) 2 De . G.F. &j 415; Proud v Bates (1865) 34
L.J.Ch 406; duke of Hamiton v Graham (1871) L.R. 2 SC & Div 166; Ramsay
and Blair (1876) 1 AC 701 (H.L.) ;Glasgow Corporation v Faric (1888) 13 AC
657 HL ; Batten Poll v Kennedy (1907) 1 Ch 256
Where the word mine occurs in a statute it may be used in a special sense
and it is sometimes expressly defined for the particular statutory purposes.
The word mine is susceptible of different meanings; in its primary and

restricted sense it denotes an underground excavation for the purpose of
getting minerals. In its broad or enlarged sense it denotes the vein, lode, or
deposit of minerals; the place where such mineral vein or deposit is found.
The word mine is not a definite term, 0 but is susceptible of limitation or

expansion according to the intention with which it is used in a particular
instrument or statute,0 and in construing it regard must be had not only to
the instrument or statute in which it occurs, but also to the relative positions
of the parties interested and the substances of the transaction or
arrangement which the instrument or statute embodies. 0
Consequently, in itself, the term mine is incapable of a definition which

would be universally applicable. 0
In its primary and restricted sense, as ordinarily accepted, the word mine
as a noun standing alone, denotes, an underground excavation made for the
purpose of getting minerals.0
0 Northern Pac .Rly Co. v Mjelde 137 p.386: 48 Mont 287

0 Certainteed Products Corporation v Comly 87 p.2d.21
0 Northern Pac Rly Co. Mjelde 137 .386: 48 Mont 287
0 Northern Pac Rly Co. Mjelde 137 .386: 48 Mont 287
0 Jones v Vermont Asbstos Corporation 182 A 291 : 108Vt. 79
It is an underground excavation for digging out ore metals, or coal. 0 A pit or

excavation in the earth from which metallic ores or other mineral substances
are taken by digging ,0 is also a mine.0
As a verb mine means to dig a pit or mine;0 to dig in the earth to get ore, metals , coal or precious stones0
The dictionary meaning of mine is a place from which the minerals are dug.
Mine, therefore, means an excavation for searching or winning minerals and
activities connected thereto. According to Oxford English Dictionary and
Chambers Dictionary,the word work in plural, i.e., works means a factory, a
manufactory. Therefore, a place where manufacturing process is carried on is
a works. By no stretch of imagination mine can be included within the
meaning of works. A place where mica is cut and processed can never be
included in the definition of mine, in such as the activities cannot be held to
be connected with searching for or winning minerals. By the inclusive
definition of mine, mine may include a works or workshop, but not vice
versa.0
If the coal is being dressed in a washery, it may be held to be a mine within

the definition of the Mines Act. 0
0 In re. Geat Western Petroleum corporation D.C. Cal . 16 F.Supp.247

0 Ozark Chemical Co. v Jones CCA Okl ., 125 F. 2d. 1
0 Richards v Fleming Coalco. 179 para 380; 104 Kan 330; Anderson v
Industrial commission , 27 NW 2d499: 250 Wis 330 Atlas Milling co. v Jones
CCA Old 115.F. 2d.61
0 Kreps v Braady 133 para 216; 37Okl 754; 47 LRANS 106; Anderson v
Industrial Commission 27NW .2d 499; Commonwealth ex. rel Stein v
Brookwood Coalco. 10 Pa Dist 253; 25 Pa .Co. 55
0 Kreps v Brady 133 P. 216; 37 Okl 754
0 Chatturam Darsanram v Union of India 1960 (II) LLJ, 465
Where the suit land is adjacent to a coal mine and is being used for the
purposes of the said mine, namely, stacking of the coal and effecting local
sale there it is a mine as defined under the Act. 0
In a broad or enlarged sense, the term mine denotes the vein, lode or
deposit of mineral,0 and is also used to denote the place where, or the parcel
of land on which, such mineral vein or deposit is found. 0 In this sense it is a
certain part of the soil or of the earths surface in which there are mineral
deposits0 and in which a person may obtain not only a full right of ownership
of the soil, but a right to remove the minerals therefrom and to dispose of
them as he sees fit.0
35. Definition of open cast working
0 Jarwan Mistry v Presiding Officer , Central Government Industrial Tribunal

cum Labor Court No.3 1987 P.L.J.R. 749
0 Kali Prasad Agarwala v M/S Bharat Cooking Coal Ltd. AIR 1989 SC 1530
0 Ozark Chemical co. v Jones C.C.A. Okl 125 F.2d.1;Atlas Milling co. v Jones
CCA Okl 115 F.2d 61
0 Sovereign Camp W.O.W v Arthur
0 222S.W. 429 ; 144 Ark 114; Crichfield v Julia N.Y ;147 F 65; 77 CCA 297 ;
Byers v Byers 36A 1027; 193 Pa. 509; 63 AmSR. 765
0 Crichfield v Julia N.Y. 147 F.65 ; 77 CCA 297
Open cast working means a quarry , that is to say, an excavation where any
operation for the purpose of searching for or obtaining minerals has been or
is being carried on, not being a shaft or an excavation which extends below
superjacent ground.0
36. Definition of plantation
Plantation Labor Act, 1951, Act 69 of 1951, defines plantation to mean

any plantation to which the Act , whether wholly or in part, applies and
includes offices, hospitals, dispensaries, schools, and any other premises
used for any purpose connected with such plantation, but does not include
any factory on the premises to which the provisions of the Factories Act 1948
( 63 of 1948), apply.0
37 Definition of the term Workshop
The term workshop is used in the Child Labor ( Prohibition and

Regulation ) Act, 1986 (Act No.61 of 1986) and it is defined to mean
any premises (including the precincts thereof) wherein any industrial process
is carried on, but does not include any premises to which the provisions of
Section 67 of the Factories Act, 1948 (63 of 1948) for the time being apply 0
38.Definition of the term shop
The Weekly Holidays Act, 1942 defines shop to include any premises where
any retail trade or business is carried on, including the business of a barber or
0 Mines Act, 1952 Act No 35 of 1952
0 Plantation Labor Act, 1951, Section (f)
0 Child Labor ( Prohibition and Regulations ) Act, 1986, Section 2 (x)
hair dresser, and retail sales by auction, but excluding the sale of
programmes, catalogues and other similar sales at theatres 0.
39. Definition of restauarant
The Weekly Holidays Act, 1942, Act No 18 of 1932, defines restaurant

to mean any premises in which is carried on principally or wholly the business
of supplying meals or refreshments to the public or a class of the public for
consumption on the premises but does not include a restaurant attached to a
theatre.0
40. Definition of theatre
Weekly Holidays Act, 1942, Act No. 18 of 1942, definesthe term

theatre to include any premises intended principally or wholly for the
presentation of moving pictures, dramatic performances, or stage
entertainments.0
41. Definition of the term Premises
The word premises in clause (m) of Section 2 (of the Factories Act, 1948),
means not only buildings but includes lands as well. The words and in any
part of which occur in the latter part of the sub-clause (i) of clause (m) are
not inconsistent with premises being inclusive of lands They mean that a
manufacturing process may be carried on in any part of the land upon which
a factory may be situated. 0
0 Weekly Holidays Act, 1942 Act No. 18 of 1942, Section 2 (d)

0 Weekly Holidays Act, 1942, Section 2 (c)
0 Weekly Holidays Act, 1942, Act No. 18of 1942, Section 2 (e)
0 AIR 1956 Bom 219; See also (1956) 2 LLJ 26
The expression premises including precincts merely shows that there may
be some premises within precincts and some premises without precincts.
The expression does not exclude lands. 0
Premises within which mechanical power is used for manufacture are factory
and include everything machine, rooms, sheds. godowns yards. The drying
yard used for drying groundnuts ,where machinery for decorticating the
groundnuts was working is a part of the factory. 0
Premises is a generic term meaning open land or land with buildings or

buildings alone0 The term precincts is a space enclosed by walls 0
The word premises has now come to refer to either land or buildings or to
both depending on the contextThe expression, premises including
precincts does not necessarily mean that the premises must always have
precincts. Even buildings need not have any precincts. 0
Section 85 empowers the State Government to declare that all or any of the
provisions of the Act shall apply to any place wherein a manufacturing
process is carried on with or without the aid of power or is ordinarily carried
on notwithstanding certain matters mentioned therein. The word place is
again a general word which is applicable to both open land and to buildings
and its use in this Section indicates that the Act can be applied to works
carrying on a manufacturing process on open land. There is thus internal
evidence in the Act itself to show that the word premises is not to be
confined in its meaning to buildings alone. 0
0 AIR 1956 Bom 219; See also (1956) 2 LLJ 26
0 AIR 1927 Mad 345
0 Ardeshir H Bhiwandiwala v State of Bombay AIR 1962 SC29
0 AIR 1953 Mad 269
0 A.H.Bhiwandiwala v State of Bombay AIR 2 LLJ 77
The premises of a factory may be a building or open land or both. Inside the
same compound wall, there may be two or more premises used in connection
with the manufacturing process. 0 The premises need not have boundary wall
or fence y0The factory must occupy a fixed premises or site 0
The whole premises would be a factory even though the manufacturing

process is carried on only in a part of the premises. 0
The expression premises is a wide expression and takes within itself not
merely a building but a series of buildings also. That this is so is also quite
clear from the use of the words precincts which, according to some
authorities, mean a place which is bound by metes and bounds. Therefore,
the true test for the purpose of determining whether a particular place is or
is not premises including the precincts thereof is whether the place is such
as defined my metes and bounds. It cannot be disputed that the aforesaid
expression does not merely include
a building
but also the place
surrounding it such as the compound. The aforesaid expression, therefore,
takes within its connotation not merely the building but the open area or the
compound round about that particular building. If the latter is included in
the connotation of the expression premises all buildings which are included
in the precincts and which are defined by a compound and separated by
common mete and bound must be regarded as one premises for the
purposes of the Act.0
0 A.H.Bhiwandiwala v State of Bombay AIR 2 LLJ 77

0 Nagpur Electric Light & Power Co. Ltd v ESIC AIR 1967 SC 1364
0 Barry v Cleveland Bridge and Engineering Co. Ltd. 1963 (1) All ER 192Workmen DESU v Management
Delhi Electric Supply Undertaking AIR 1973 SC 365
0 1957 I LLJ 280

0 (1957) 1 LLJ 280
0 Swastik Textile Tading Co. v Union of India (1965) 2 LLJ 254 Guj
Before a building can be said to be in the precincts of another premises it has

to be in the boundary of the latter.0
The words precincts occurring in s. 2 (12) of the ESI Act, merely explains
premises the former being subordinate to the latter. The premises can in
themselves constitute the factory being subordinate to the latter. The
premises can in themselves constitute the factory building alone or can
include other buildings also in the complex of the factory. The main buildings
and other subservient buildings can either exist within the same compound
wall or outside.0
The definition of factory does not require it to be located within a single

premises or building. In the prevailing circumstances it may not be possible
or convenient to find one common place to run different units of an
establishment. Unity of purposes of the units is more important than their
separate location. Hence , where a printing firm ran its machine sections in
two different premises and the composing section in a third one it was held
that notwithstanding absence of contiguity the three units constituted a
factory.0
The ambit of the definition of factory should not depend on what the
employer either for the sake of efficiency or convenience of management or
even with a view to avoid application of the Act, may do. If the employer
diversifies the same manufacturing process and conducts it in different
places, the workers should not lose the benefit of the act merely for that
0 E.S.I. Corporation v Sankarlal (1971) 40 FJR 498

0 Hukumchand Mills v E.S.I. Corporation 1984 MPLJ 49; See also Central
Glass Emporium v E.S.I. Corporation 1981 Lab IC (NOC) 67 (AP)
0 E.S.I, Corporation v Bengal Printing works 1984 Lab IC 1 (Cal); (1983) 2 LLN
793; See also P.D.Vidawakta v Regional director, ESI Corporation 1974 Lab IC
874 (Gau); Agents and Manufacturers v ESI Corporation 1974 Lab IC 220;
44FJR 57 (Del); Dharma Paul Aggarwal v ESI Corporation 31 FJR 82 (Punj) ; ESI
Corporation v S.M.Sriramulu AIR 1960 Ma 248; (1960) 2 LLJ 699; 19 FJR 238
reason if other conditions are satisfied, viz., unity of ownership, management

and control of different places of work as well as unity of employment . 0
42. Manufacturing Process
The Employees Provident Funds and Miscellaneous Provisions Act, 1952 Act
No 19 of 1952 defines manufacture and manufacturing process to mean any
process for making altering, repairing ornamenting, finishing, packing, oiling,
washing, cleaning, breaking up, demolishing, or otherwise treating
or
adapting any article or substance with a view to its use, sale, transport,
delivery or disposal.0
The fact that the definition of the word manufacture has been placed on par
with the words manufacturing process indicates that the legislature intended
to a meaning different from the ordinary meaning of the word. The ordinary
meaning cannot therefore be applied.0
In order to constitute a manufacture , there must be a transformation. Mere

labor bestowed on an article, even if the labor is applied through machinery,
will not make it a manufacture, unless it has progressed so far that a
transformation ensues and the article becomes commercially known as
another and different article from that at which it began its existence. 0
The question of transformation was not material in view of the very
comprehensive scope of the definition.0
0 S.P.Verma v Regional director , 1972 AWR 498 dissenting from Hindusthan

Construction Co Ltd. v ESI corporation 1969 Lab IC 769.
2 (1c)
0 S.S.Mussandi v RPF. Commissioner 1978 Lab IC 1401 ( Cal)
0 Chinniah (A.M.) ( Sangu Soap Works (1957) 1LLJ 280 : AIR Mad 755
Making of bodies for buses and trucks out of appropriate material with the
help of carpenters is a manufacturing process. 0
The processes involved in making beedis also amount to manufacturing
process.0
Subjecting the sun cured tobacco leaves to the processes or moistening for10
to 14 days by sprinkling water on stacks , stripping of stacks by breaking
them up and packing of the leaves by bundling them up and putting them
into gunny bags with a view to transport to company' main factory for their
use in manufacturing cigarettes amounts to a manufacturing process. 0
The printing of text books, journals, registers, forms, and various items of
stationery constitutes manufacture within the meaning of Section 2(I-c). 0
Preparing and transporting grinding wheels for sale is a manufacturing
process.0
A confectionery manufacturing sugar cubes would be an industry engaged in
the manufacture of sugar.0
0 State of Kerala v Madhgaria 91959) 2 LLJ 50 : AIR 1959 Ker 200; State of
Bombay v Alishaheb Kashim Tamboli (1955) 2 LLJ 182 ( Bom);Alkali Metals (P)
Ltd. v ESI Corporation 1976 LabIC 186
0 Metro Metals vRPF Commissioner AIR 1963 Mad 455; (1962) 2 LLJ 479
0 Chintaman Rao v State of M.P. AIR 1958 SC 388 ; State of Bombay v
Alisaheb Kashim Tamboli (19550 2LLJ 182
0 V.P..Gopala Rao v Public Prosecutor 91969) 1 SCC 704; AIR 1970 SC 66 ;
(1970) 2 LLJ 59
0 Andhra University v RPF Commissioner (1985)4 SCC 509; 1986 SCC (L&S)
134; 1986 Lab IC 103 ;followed in Osmania University v Regional Director
ESIC 91985) 4 SCC 514; 1986 SCC (L&S) 139 ; (1986) 1 LLJ 136 affirming
RPF Commissioner v Osmania University 1973 La IC 91 2 (AP)
0 State v Jagraj AIR 1961 All 556; 91961) 1 LLJ 671
The work of stitching old gunny bags and making them fit for use amounts to
manufacture process.0
Repairing of watches clocks and time pieces etc is a manufacturing process. 0
The definition of manufacture includes not only making but also altering or
otherwise treating or adapting any article with a view to its use, sale,
transport, delivery or disposal. Accordingly,renewing and reconditioning of
worn out machine parts by metallisation would be treatment by repair for use
and therefore a manufacturing process. 0Even if the person carrying out those
jobs
did not sell the goods conditioned
by him but only charged
remuneration for repair he should be deemed to have treated the goods
and it would come under the definition of manufacture. 0
The work of surfacing , grinding and glazing done on ordinary glass for
converting it into opthalmic lenses would be a manufacturing process. 0
In the absence of any specific provision it is difficult to say that the definition
should be applied only when the various operations mentioned therein were
carried on by the employees of an establishment under the same employer
and not under different employers.0
0 Delhi cloth & General Mills co. Ltd. v RPF Commissioner 91961) 2 LLJ 444;
AIR 1961 All 309
0 Ekambaranatha Chettiar v Inspector of Factories 91966) 2 LLJ 3 (Mad)
0 Limton (P) Ltd. v ESI Corporation (1961) 2 LLJ 361
0 Metallising Corporation (P) Ltd. v RPF Commissioner 91966) 2 LJ 528;
(1964 ) 9 FLR 253
0Metallising Corporation (P) Ltd. v RPF Commissioner 91966) 2 LJ 528; (1964 )
9 FLR 253
0 Ram Narain & Co.v Union of India 1971 Lab IC 927
0 S.S.Mussadi v RPF Commissioner 1978 Lab IC ( Cal)
The work of cutting grooves in the bangles which would later on be filled with
colouring material is a stage in ornamentation of the bangle with a view to its
subsequent use or sale and is therefore a manufacturing process. 0
Preliminary packing of raw material for delivery to

manufacturing process .0
the factory is not a
The word treating in the definition of the term manufacturing process is not
used in the sense of a chemical treatment. It refers to any treatment of an
article with a view to its use, sale etc.0
Treating of paper and gunny bags with tar for making waterproof packing
paper and tarpaulin respectively amounts to manufacturing paper and
textiles.0
Conversion of raw cinematograph film into a finished product fit to be

screened in a cinema house will come within the meaning of the term
treating or adapting any article or substance with a view to its use. 0
Ironing of readymade garments produced in an establishment is a process of

treating the articles with a view to their use for sale in the market and would
therefor, be a manufacturing process. 0
0 .K.H.Panjani v State of UP (1958 ) 2 llj 667 ; air 1959 All 24

0 Shree Gopal Paper Mills Ltd. v Inspector of Factories AIR 1969 All 547; 1968
All LJ 381
0 State of Bombay v A.H.Bhiwandiwala AIR 1956 Bom 219: (1956) 2 LLJ 26
0 East India Industries ( Mad) (P) Ltd. v RPF Commissioner (1964) 1 LLJ 706;
AIR 1964 Mad 371
0 Gemini Studios v State AIR 1953 Mad 269Aravamudha Chettiar v MA.K.Rowther AIR 1953 Mad
268;IndrapuriStudio (P) Ltd. v ESI Corporation (1961) 2 LLJ 306 ;AIR 1961 Cal 381
Mere storage as such will not be part of the manufacturing process . it will
not even amount to treating or adapting an article with a view to its sale or
disposal.0
The process of converting seawater into salt carried on in the salt

comes within the definition of manufacturing process. 0
works
The process of conversion of milk into curd, butter, buttermilk and ghee
constitutes a manufacturing process. 0Preparation of foodstuffs and other
eatables in a restaurant would be a manufacturing process. 0The process of
making bread in a bakery as well as cutting of bread into slices are both
manufacturing processes.0
The work of gathering pepper by winnowing, cleaning, washing, and drying it

on concrete floor and a similar process of curing ginger dipped in lime and
lad out to dry in a warehouse are manufacturing processes. 0
0 Kalpana Dresses v ESI Corporation 1976 Lab IC 1791

0 Kalpana Dresses v ESI Corporation 1976 Lab IC 1791
0 Ardeshir H.Bhiwandiwala v State of Bombay (1961) 2 LLJ 77; AIR 1962 SC
29 affirming AIR 1956 Bom 219; (1956) 2LLJ 26
0 Ernakulam Coop Milk Supply Union Ltd. v Government of India 1969 Lab IC
223;(1968) 2 LLJ 666 Ker
0 P.Lakshman Rao & sons ( Welcome Hotel) v Addl Inspector of Factories.
(1959) 1 LLJ 5; AIR 1959AP 142; Syed Moosa Kazimi v Sheriff (K.M.) AIR 1959
Mad 542; (1959) 2 LLJ 344; Poona Industrial Hotle Ltd. v I.C.Sarin 1980Lab IC
100
0 New Grand High Class Bakery v ESI Corporation 1976Lab ICC 1466
0 State of Kerala v V.M..Patel (1961) 1 LLJ 549
The work of washing, peeling and cleaning of prawns before they are sent
out to the cold storage plant owned by another person is a manufacturing
process.0
Production of cloth carried on in an industrial school only for the purpose of

demonstration and instruction in weaving to the students is not a
manufacturing process.0
The pumping of petrol/diesel

dealer forth purpose of sale
petrol/diesel in such a case is
available to the customers.
manufacturing process.0
at the petrol /diesel pump carried on by the

is not a manufacturing process. Pumping of
only casual and is done with a view to make it
Such casual act
cannot be treated
a
The term manufacturing process is defined in the Factories Act, 1948 to

mean a process for (i)
making, altering, repairing, ornamenting, finishing, packing, oiling,
washing,
cleaning, breaking up, demolishing, or otherwise treating or
adapting any
article or substance with a view to its use, sale, transport,
delivery or disposal, or
(ii)
pumping oil, water, sewage, or any other substance, or
(iii)
generating, transforming or transmitting power
(iv)
composing types for printing, printing by letter press, lithography,

photogravure or other similar processes or book binding; or
(v)
constructing, reconstructing, repairing, refilling, finishing or breaking
up ships
or vessels; or
0 R.E.D souza v Skrishnan Nair 1968 Lab IC 1366; (1968)2 LLJ 473
0 State of Keral v V.M.Mullah (1961) 1LLJ 184
0 Ravi shanker Sharma v State of Rajasthan 1993 Lab IC 987; (1999) 2 LLJ
1124; AIR 1993 Raj 117 dissention from Gateway Auto Services v Regional
Director ESI Corporation 1981 LabIC49; (1980) 2 LLJ 255; (1980) 2 LLN
481(Bom)
(vi)
preserving or storing any article in cold storage
If a process brings about a particular result, not necessarily a commercially

different product, then it should be understood that there is a manufacturing
process.0 (2)
The definition of the term manufacturing process is very wide. The various
processes carried out in a premises taken together will fall within the
expression. It is not correct to view each process in isolation. The cumulative
effect of all the processes together must be considered as manufacturing
process 0 .
Each of the expressions in the definition of manufacturing process must be

considered
independently and there is nothing to indicate that
manufacturing process could be applied only if a different produce emerges
out of a factory.0
Law makers had no intention to add the meaning of
transformation or emergence of new marketable commodity to the meaning
of the expression manufacturing process.0 .
Courts have ruled that

manufacturing processes :
the
following
types
of
activities
constitute
0 Factories Act, 1948, Section 2(k)

0 Col Sardasr C.S.Angre v State of Rajasthan AIR 1965 ( Raj) 65; 1965 I LLJ Raj
214; 1965 (1) Cri LJ 333 ( Raj)
0 Col Sardasr C.S.Angre v State of Rajasthan AIR 1965 ( Raj) 65; 1965 I LLJ
Raj 214; 1965 (1) Cri LJ 333 ( Raj)
0 Nilgiris Cooperative Society Ltd. v Chief Inspector of Factories 1984 LLJ I
Mad 71
0 Baranagar Service Station v ESI Corporation 1988 Lab IC 302 (Cal); 1989
58 FLR 648 Cal ; (1988) 73 FJR 345 Cal HC)
Cooking and preparing food in a hotel
or a cricket club
or a canteen 0
Dry Cleaning0
Activities connected with supply of water to the people
Making salt from sea water
Stitching old gunny bags and making them fit for use
Blending of tea
Removal of outer cover of coffee seeds

Repairing of watches
0 GI Hotels Ltd. and others v TC. Sarin and another 1994-I LLN 15 SC
0 Cricket Club of India and other v ESIC 1994 I LLN 664 Bom HC
0 Workmen employed in the canteen run by SRF Ltd. v Government of TN
1995 I LLN 487 Mad HC
0 ESIC v amar Dry cleaners 1992 II LLN 561 (P&H) ; (1992 65FAC LR 126 (P&
H)
0 Tamilnadu Water Supply and Drainage Board Employees Union v Tamilnadu
Water Supply and Drainage Board and others 1993 I LLN 449 Mad HC
0 State of bombay v A.H.Bhiwandiwala AIR 1956 Bom 219; 1961 II LLJ 77
Bom
0 E.chettiar v Inspector of Factories 1966 II LLJ 3
0 Regional director v Brooke bond India Ltd. 1978 Lab IC 1075 Cal
0 Venkatachalamv State of Madras 1974 28 FLR 438: 1974 Vol 45 FJR 288
Mad
0 Lipton (P) Ltd v ESI Corporation 1961 II LLJ 361
Cutting grooves in bangles and filling them with different colouring

materials
Grading and packing of coconuts into bags with a view to transport it for sale 0
Conversion of raw film into a finished product for screening in cinema halls
Collection, sampling, analysing and packing of ghee for transportation and

sale
Washing, cleaning and oiling a vehicle with a view to its use, sale, transport,
delivery or disposal
Peeling, washing and cleaning of prawns

Pumping of oil in a petrol pump
Cleaning, oiling, washing, lubricating or repairing of vehicles at a service

station
0 K.H.Panjani v State of UP AIR 1959 All 24 : 1958 II LLJ 667 All: 1958 All LJ
597
0 Liladhar Mulji v Inspector of Factories 1959 II LLJ 750 Ker HC
0 AIR 1953 Mad 269
0 Premji Ghee Merchants v Regional Inspector of Factories AIR 1960 AP HC
147; 1959 I llj 55 AP HC
0 1981 Lab IC 49
0 R.E.DSouza v Inspector of Factories 1968 II LLJ 473 Ker HC
0 Gateway Auto Services v ESI Corporation 1981 Lab IC 49Bom ; 1980 II LLJ
260 Bom; 1980 II LLN 481 Bom : 1980 II LLJ 225
0 Ravi shankar Sharma v State of Rajasthan & another 1993 II LLJ 1124 Raj
HC : 1993 AIR 117 Raj HC : 1993 Lab IC 987 Raj HC
The processing, cutting and sawing of logs in a saw mill. 0

The breaking up, adaptation and packing of tobacco leaves with a view to its
use or sale and transport
In a rice mill paddy is broken up by running huller and sheller and the rice is
polished.
The process of breaking up the article falls within the definition of
manufacturing process
Providing air-conditioning facilities to tenants of a building
Milking of buffaloes and treating the milk for transportation and distribution
Ironing of clothes for its use or sale in the market
Petrol pump engaged in pumping oil and washing, oiling and servicing
vehicles 0
Pumping of water in water works managed by a municipality
0 Prema v Thankappan1997 (76) FLR 2 (Karn) (HC) ; ILR 1997 (Karn) (HC)
0 V.P.Gopala Rao v Public prosecutor AIR 1970 SC66; 1970 Lab IC 56 SC;
1970 CiLJ 22 SC; (1970) 2 Lab LJ 57
0 1976 I LLJ (Karn) 1 ; (1976) 49 FJR 285 (Karn)
0 Employees State Insurance Corporation v Tiecicon (P) Ltd. 1995 II LLN 106
Bom HC
0 Amir Narayan v Suken employees Cooperative Society Ltd. 1987 Lab IC
1197 Guj HC
0 Kalpana Dresses v ESI corporation 1976 Lab IC 1991
0 Ravi shankar Sharma v State of Rajasthan and another ; 1993 II LLJ 1124
Raj HC
0 Hathras Municipality v Union of India AIR 1975 All HC 364
Transforming electrical energy from a high to low potential and the process of
transmitting the energy through supply lines 0
Composing and setting of types for printing in a composing section of
printing press 0
Preservation of articles in cold storage
Decorticating groundnuts by a machine electrically operated

Conversion of liquid latex into sheet rubber
Cutting of wood or converting wood into planks 0

Tailoring
Cutting and drying of arecanuts and garbling of pepper

Cotton ginning
Photography
0 Nagpur Electric Light & Power Co Ltd. v Regional Director ESIC : AIR 1967
SC 1364;1967 (3) SCR92 SC
0 V.K.Press v Authority AIR 1955 All HC 702
0 Employees State Insurance Corporation v v Tiecicon (P) Ltd 1995 II LLN 106
Bom HC
0 J.Manikkar Gounder v Inspector of Factories AIR 1959 Mad HC 430
0 AIR 1966 Mad 448; 1966 II LLJ 238 Mad
0 Bharti Udyog v ESI Corporation 1982 Lab IC 1644
0 ESI Corporation v Ramachander AIR 1988SC 113; 1988 Lab IC 336 SC
0 State of Kerala v Madhogaria 1959 II LLJ 50 Ker HC : AIR 1959 Ker HC 200
0 ILR 1965 (2) Pun 687
0 1972 Cri LJ 1428
Filling gas in cylinders

Preparation of soap
Production of films
The following activities do not constitute a manufacturing process :

The use, transport, delivery or disposal of a manufactured product
Mere exhibition of films in a theatre
Sub-stations
Receiving news and editing it
Weaving of cloth in a technical school for purpose of instruction

A laundry attached to a hospital
Digging and excavating of trenches for laying of pipes

Painting the sign board in a soap factory
0 Prabhat Singh v State 1976 Lab IC 1708 Delhi

0 AIR 1957 Mad 755; (1957) I Mad LJ 115
0 BengalMotion Pictures Employees Union v Kohinoor Pictures 1965 I LLJ 387
Cal; AIR 1974 Cal 519
0 Mahalakshmi Oil Mills v ESI Corporation 1971 Lab IC 825
0 Shankaer Madhava Rao Solav v M.K.Sarode AIR 1959 Bom 371
0 Workmen , Delhi Electric Supply Undertaking v The management Delhi
Electric Supply Undertaking AIR 1973 SC 365
0 Hindustan Journal Ltd. v Dinesh Awasthi AIR1957 Madh B 125
0 State of Keral v V.M. Muloth 1961 1 LLJ 184Ker HC (1961) 2 Fac lR 189
0 Christian Medical College and Hospital v Inspector of Factories Vellore 1984
II LLJ 238 Mad : 1985 Lab IC 555 Ma;
43. Definition of work
The term work has been defined in the Emigration Act ,1983, Act No.31
of 1983, to mean
i
ii
iii
any unskilled work, including any form of industrial or agricultural labor;

any domestic service;
any service , not being a service in a managerial capacity, in any hotel,
restaurant, tea house, or other place of public resort;
iv
work as driver of a truck or other vehicle, mechanic, technician, or skilled
labor
v
work as an office assistant or accountant or typist or stenographer or
salesman, or nurse or operator of any machine;
vi
work in connection with or for the purposes of, any cinema exhibition or
entertainment;
any such work of a professional or any other nature as the Central Government
may, having regard to the need for the protection of citizens of India who may be
employed in such work outside India and other relevant circumstances, specify by
notification.0
0 Ramlanshan Jagashar v Bombay Gas co. Ltd. AIR 1961Bom HC 184; (1961) I LLJ 38
Bom HC : 1961 2 Fac LR 22 Bom HC
0 1957 I LLJ 280
0 Emigration Act, 1983 Act No. 31 of 1983, Section 2 (1) (vi)

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Concepts used in labour laws

A common criticism of labour laws in India is relates to the multiplicity of

The Second National Commission on Labour stated that One of the

used in the exiting laws

1 Emigration Act, 1983 Act No. 31 of 1983, Section 2 (h)

5 AIR 1964 (HC) Bom 236

According to the Mines Act, 1952, Act No 35 of 1952 , a person is said

(v) in any office of the mine;

7 Dharangadhar Chemical Works Ltd. v State of Saurashtra (1957) 1 LLJ 447

(vii) in any kind of work whatsoever which is preparatory or incidental to , or

Two different meanings are suggested to the expression employed. One is

8 Mines Act, 1952 ( Act No.35 of 1952), Section 2 (1) (h)

The concept of employment involves three ingredients:

Employer one who employs, i.e., engages the services of other

or implied, i.e., a contract of employment may be inferred from the conduct

19 Thorn v London corporation (1875 LR 10 Exch 112 (123), per Brett - on

may be of a kind usually done by an employee but the worker may

5.Master and servant

employer and employee or between master and servant is a pure question of

The test which is uniformly applied to determine the relationship of master

6.Contract of service vs contract for service

39 Cassidy v Ministry of health (1951) 1 All Er 574 (579); (1951) 2 KB 343

The test of the distinction between a servant and an independent contractor

Under a contract of service, a man is employed as a part of the business and

A contractor is a person who, in the pursuit of an independent business

An independent contractor is charged with a work and he has to produce a

It is almost impossible to give a precise definition of the distinction between a

The test of control is therefore not as determinative as used to be thought to

To distinguish between an independent contractor and a servant ,the test is

50 Cassidy v Ministry of Health; (1951) 1 TLR 539 (543) ; (1951) 2 KB 343

The control of management, which is necessary element of the relationship of

It is in its application to skilled and particularly professional work that control

that this is another facet of the incidental feature of

57 Silver Jubilee Tailoring House v Chief Inspector of shops and

It is a question of fact in each case whether the relationship of master and

Where a worker or a group of workers labours to produce goods or services

60 Silver Jubilee Tailoring House v Chief Inspector of shops and

64 Apprnetices Act, 1961, Section 2 (f)

in relation to a building or other construction work carried on by or on

in relation to a building or other construction work carried on by or

68 Dock Workers ( Regulation of Employment) Act, 1948 Act no.9 of 1948)

committed by an establishment which was a factory. In such a case the

(11)`Employer for purposes of the Employers Liability Act, 1938,

i. in relation to an industry carried on by or under the authority of any

84 Employers Liability Act, 1938, Section 2 (b)

ii. in relation to an industry carried on by or on behalf of a local authority the

In the case of an industry carried on by a local authority the chief executive

(14) Employer, for purposes of the Industrial Employment ( Standing

96 Dhar Gram Panchayt v Brahad Saurashtra Safai Kamdar Mandal 1971 1

(15) Employer, for purposes of the Maternity Benefit Act, 1961,

i. in a factory where there is carried on any scheduled employment in respect

ii. in any scheduled employment under the control of any Government in

iii. in any scheduled employment under any local authority in respect of

(17) Employer, for purpose of the Motor Transport Workers Act,

(19) `Employer, for payment of gratuity, means, in relation any

i. belonging to or under the control of the Central Government or a State

(20) Employer, for payment of wages, includes the legal representative of

(21) Employer for payment of compensation for personal injuries,

(22) Employer when used in relation to a plantation means the person

(23) `Employer for payment of compensation for work injuries,

It is a question of fact depending on the facts of the particular case as to who

Definition of employer suggested in the India Labour Code

8.Definition of principal employer