Judgment :- 1. Dispute arose between three dealers in umbrella and their workmen and also between eight dealers in textile goods and their workmen. All the parties belong to Alleppey. In both cases, the workmen are represented by the General Secretary, Commercial Employees' Union, Alleppey. The cases were referred by the State Government under S.10 (1)(d) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) for adjudication to the Industrial Tribunal, Alleppey. The reference relating to the umbrella dealers is I. D. 58 of 1964, and the reference relating to the dealers in textile goods is I. D. No. 59 of 1964. The nature of the work as well as the demands made by the workmen in both cases were the same. Naturally the issues referred for adjudication were also the same, and they are 1. Revision of wage rates of the packing and loading workers under the managements of the above mentioned piece goods wholesale shops. 2. Special batta for night work to these workers. 3. Noon-meal allowance to these workers. . 4. Bonus to these workers for the year 1138 M. E. 5. Medical benefit for employment injury to these workers. 6. Extra allowance to these workers for opening and closing the shops. 7. Gratuity. 8. Inclusion of the names of these workers in the muster rolls of these establishments.". The employers in both the cases contended that the references were not maintainable, as the workmen were only casual labourers and there was no employer-employee relationship in their engagement. The employers also contended that the workmen were not entitled to any of the demands made by them. The Industrial Tribunal rejected the first contention. On the merits of the demands, the Tribunal made the same decision in both cases. It held as follows on the above issues: 1.Revision of wage rates-The workmen should be paid a lump-sum enhancement of 10 paise over and above the existing rates. 2. Special batta for night work-The workmen should be given a batta of Re. one per night for working after 10 P. M. 3. Noon-meal allowance-Disallowed. 4. Bonus for the year 1138 M. E.-Each worker should be paid Rs. 40 5. Medical benefit-Disallowed. 6. Extra allowance for opening and closing shops-The workmen employed for the said work should be paid Rs. 25/- per month. 7. Gratuity-Disallowed. 8. Inclusion of the names of the workmen in the muster rolls-Allowed. Noon-meal allowance-Disallowed. 4. Bonus for the year 1138 M. E.-Each worker should be paid Rs. 40 5. Medical benefit-Disallowed. 6. Extra allowance for opening and closing shops-The workmen employed for the said work should be paid Rs. 25/- per month. 7. Gratuity-Disallowed. 8. Inclusion of the names of the workmen in the muster rolls-Allowed. OP. Nos. 2240 and 2256 have been filed by two of the umbrella dealers to quash the award in I.D. 58 of 1964; and the other OPs. have been filed to quash the award in I.D. No. 59 of 1964. The points arising for decision in these cases are the same. Hence they have been heard jointly, and are being disposed of by this single judgment. 2. The main contention advanced by counsel for the petitioners is that the references were not maintainable, as the workers were casual employees, and there was no employer-employee relationship. First I shall examine the legal aspect of this contention. The term "workman" is defined in S.2 (s) of the Act as follows: "Workman" means any person (including an apprentice) employed in any-industry to do any skilled or unskilled manual, supervisory, technical or clerical 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, discharge or retrenchment has led to that dispute; but does not include any such person (i) who is subject to the Army Act, XLVI of 1950, or the Air Force Act XLV of 1950, or the Navy (Discipline) Act, XXXIV of 1934; 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 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." The definition is very wide; and it embraces a person, who may be called a casual worker, provided he falls within the ambit of the definition. The principles for deciding whether an employer-employee relationship exists have been discussed and laid down by the Supreme Court in Dharangadhra Chemical Works, Ltd. v. State of Saurashtra & Others 1957 I LLJ. 477. After referring to the different tests or principles laid down by English Courts, the Supreme Court said: "The principle which emerges from these authorities is that the prima facie test for determination of the relationship between master and servant is the existence of the right in the master ro supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work, or to borrow the words of Lord Uthwatt at p. 23 in Mersey Docks and Harbour Board v. Coggins and Giffith (Liverpool) Ltd. ((1947) 1 AC. 23) "The proper test is whether or not the hirer had authority to control the manner of execution of the act in question." " The court also held that the correct method of approach to decide whether the employer had the authority to control the manner of execution of the work would be to consider whether having regard to the nature of the work, there was due control and supervision by the employer; and quoted the following passage from the judgment of Fletcher Moulton, Q. in Simmons v. Health Laundry Company, (1910) 1 KB. 543 with approval: In my opinion it is impossible to lay down any rule of law distinguishing the one from the other. It is a question of fact to be decided by all the circumstances of the case. The greater the amount of direct control exercised over the person-rendering the services by the person contracting for them, the stronger the grounds for holding it to be a contract of service, and similarly the greater the degree of independence of such control the greater the probability that the services rendered are of the nature of professional services and that the contract is not one of service." The above decision was referred to and the principles laid down therein were approved by the Supreme Court in Dewan Mohideen Sahib and Sons v. United Bidi Workers Union 1964-11-LLJ. 633. 3. I shall now examine the. facts of the case, in the light of the above principles. 633. 3. I shall now examine the. facts of the case, in the light of the above principles. For doing so, it is necessary to refer to the nature of the employment. All the workers concerned in these cases do the same kind of work for their employers; and the following are the different items of work they do. 1. Conveyance of parcels or bales of goods from Out-Agency or Parcel Office to the godowns and shops. 2. Loading goods in lorries and unloading therefrom. 3. Loading goods in Valloms (country boats) and unloading therefrom, 4. Conveyance of packages in hand-carts. 5. Conveyance of packages to and from shops and gadowns. 6. Opening the packages and re-stacking goods. 7. Packing the goods sold to customers or for transfer to branches. The workers are generally called head load workers, as they transport the goods mostly by carrying them on their heads. They are paid daily at specified rates for each item. The rates vary to some extent from employer to employer. Some of the workers are also employed for opening the shop in the morning and closing the shop in the night after business hours regularly everyday. For that, the worker concerned is paid a fixed amount on monthly basis.' 4. In I.D No. 58 of 1964, there are only six workmen; their period of service is between 10 and 12 years. One of them each claims to be the work in under two of the employers, and the remaining four claim to be the workmen under the third employer. In I. D. No. 59 of 1964, there are 23 workers claiming to be employed under the 8 employers concerned in that case. The number of workmen under each employer varies from 1 to 4, and their period of service vary from 2 to 37 years. All the details are given in the two awards; and it is not necessary to refer to them here. In support of their contention that there was no employer-employee relationship, the employers pleaded that the workmen concerned were not attached to any particular employer, that they work for any person who offers work, that the items of work in which the workers were being engaged were not regular in nature, and that the employers engage not only these workmen but others also, as and when they please, for carrying out these items of work. Evidence was let in by both parties. It is obvious and it was also admitted by some of the employers' witnesses that the items of work executed by these workers are necessary for the carrying on of the business and are regular in character, though they may not be continuous. Whenever goods arrive, they have to be unloaded from the vehicle and transported and put into the godowns or shops, as is necessary. Goods have also to be taken delivery of from the Out-Agency, or Parcel Office and transported into the godowns or shops. Transport of goods between the godown and shops as well as packing and unpacking are also necessary items of work. It was not disputed that the workers concerned had been doing the above items of work continuously for several years. The employers have not given any evidence, except their own oral testimony to show that any of their workers, are doing these kinds of work for other persons, or that employers are engaging other persons also for the said purpose. In these circumstances, the objection taken by the petitioner's counsel to the riding of the Industrial Tribunal that there is employer-employee relationship between the employers and workmen concerned in these cases cannot be sustained. 5. Counsel for the petitioners contended that the following facts, which have been established on the evidence, show that the workers are casual labourers and there is no employer-employee relationship. They are: (I) there is no regular hours of work; (2) the workers are not required to report for work at any particular time, or be available for work until a particular hour; (3) they are not bound to be present on all days, and there is no question of taking any leave for absence; (4) the employers do not exercise any supervision or control over the work; and (5) the employers have no disciplinary authority over the workers. The Industrial Tribunal has examined the above contention, and held that most of these facts have not been established. It is true that there are no regular or fixed hours of work; but the workers, as a matter of practice and necessity report for work everyday in the morning and make themselves available for work according to the volume of work which has to be done on each day. On some, days, they have to work even during the nights. On some, days, they have to work even during the nights. The question of reporting for work regularly at a fixed time and of being present regularly until a fixed hour on every day does not arise in the nature of the work. Admittedly there are no written rules or standing orders regulating the conduct of work. In such circumstances, the question of granting leave or exercise of disciplinary authority would not also arise. The contention that the employers do not have any supervision or exercise any control over the work was rightly rejected by the Industrial Tribunal. In the nature of the work, the workers cannot do it as they please. It has to be done in the manner directed by the employers. Some of the items are done in the presence of the employers or of their representatives. At any rate the right of supervision and control exists in respect of every item of work. 6. In support of the contention that there is no employer and employee relationship in the instant case, counsel for the petitioners referred me to the decision of the Supreme Court in Shankar Balaji Waje v. State of Maharashtra 1962 II LLJ. 119. The question for decision in that case was whether a person was a "worker" as defined in S.2 (1) of the Factories Act, 1948. That definition is similar to the definition of "workaian" in S.2 (s) of the Industrial Disputes Act, 1947, though different in language. In that case, the majority held that on the facts of the case the employer did not exercise control and supervision over the worker, and he was not, therefore, a worker as defined in S-2 (1) of the Factories Act. This decision has been referred to by the Supreme Court in Dewan Mohideen Sahib's 1964 II LLJ. 633 case already referred to, and the court said that it has only followed the line of decisions of the court since the decision in the case of Dharangadra Chemical Works Ltd. 1957 I LLJ 477. Therefore, the decision relied on by the petitioners' counsel does not lay down any different principles, nor does it support his arguments. The contention that there is no employer and employee relationship between the petitioners and the workmen concerned cannot, therefore, succeed. 6. Therefore, the decision relied on by the petitioners' counsel does not lay down any different principles, nor does it support his arguments. The contention that there is no employer and employee relationship between the petitioners and the workmen concerned cannot, therefore, succeed. 6. The next question for consideration is whether the decision of the Industrial Tribunal on the different issues can be sustained under law. On the first issue, which relates to the "rates of wages, the Tribunal has awarded a uniform increase of 10 paise on every item of work. In awarding the above enhancement, the Tribunal states as follows: "Now, the Union has alleged that the present wage rates were fixed as far back as in 1944. Any how the present wage rates appear to be meagre when compared with the inordinate rise in cost of living of the area. But since there is no such data for me to revise the various items of piece rates prevailing in the establishment, I told that it is only just and reasonable on my part to provide a lump sum enhancement of 10 paise over and above the rates existing on the date of publication of this award per package for the various items of work in the establishments." The same passage appears in both the awards. Now looking at the existing rates of wages as shown in the relevant schedule, it is seen that the rates vary from 9 paise per package to Rs. 1.25 per package. The rates for the same work are also different for different employers. The uniform enhancement of 10 paise per packet would, therefore, work out from 8% to 11% on each item. This is patently erroneous. In determining the fair wages, the "nature of the work, the quantum of work available for a worker, the average wages that he would earn in respect of each item of work during a month, and the paying capacity of the industry have all to be taken into consideration. Enhancement can be awarded only having due regard to all the above factors. It may be that the rates paid by some employers would be quite reasonable, and may. not require any enhancement at all. Uniform rates of enhancement also cannot be given in the case of all employers, as the rates that they are giving vary in a large measure. It may be that the rates paid by some employers would be quite reasonable, and may. not require any enhancement at all. Uniform rates of enhancement also cannot be given in the case of all employers, as the rates that they are giving vary in a large measure. The enhancement of wages awarded by the Industrial Tribunal has been purely arbitrary; and it has been made in total disregard of all the relevant considerations in the fixation of fair wages. The award on this issue has, therefore, to be quashed, and the Tribunal has to be directed to decide that issue afresh after taking necessary evidence. 7. The petitioners have taken objection to the award of one rupee to each of the workers who are obliged to work after 10 P. M. as special batta for night work, and also to the award of Rs. 40/-, each as bonus. These payments are very reasonable; and no point has been made out against the said payments. Another payment objected to is the fixation of the remuneration for opening and closing the shop at Rs. 25/-per month., The Industrial Tribunal, has not found how many of the workers were actually engaged in that work and who they are. Admittedly, closing and opening of the shop is not part of the work of the headload workers, nor is it incidental to the said work. It is a part-time job, which the employer may entrust to any one of the head-load workers; as an extra work or to any other person whom the employer desires. So the workers concerned in these cases cannot claim the fixation of remuneration for that extra employment. In the nature of that work, there is no employer and employee relationship. The award in this respect cannot therefore, be sustained. The last matter for consideration is the direction to include the workers in the muster. In the light of the finding that there is employer and employee relationship between the employers and workers, this direction is only reasonable, and the objection thereto has to be rejected. No other point has been raised in these cases. 8. In the result, I uphold the awards in I.D. Nos. In the light of the finding that there is employer and employee relationship between the employers and workers, this direction is only reasonable, and the objection thereto has to be rejected. No other point has been raised in these cases. 8. In the result, I uphold the awards in I.D. Nos. 58 'and 59 of 1964 except in respect of the findings on issue No.1 relating to the enhancement of rates of wages and on issue No. 6 relating to extra-allowance for opening and closing the shops. The finding on these two issues are set aside, and both the cases are remitted to the Industrial Tribunal to decide afresh the issue relating to enhancement of wages according to law and in the light of the observations contained in this, judgment. The writ, petitions are allowed to the above limited extent and dismissed in all other respects. In the circumstances of the case, the parties will bear their own costs.