Judgment Bhuvaneshwar Prasad, J. 1. The sole plaintiff is the appellant. This appeal is directed against the judgment dated 20-10-1982 and the decree signed on 29-11-1982 passed by Shri Manoher Lal Visa Additional Subordinate judge, Vth Court, Dhanbad, in Money Suit No.169/4 of 1975/82 dismissing the suit. The defendant is the sole respondent. 2. The case of the plaintiff, in short, is that he was working as Loaders sardar for Lodna and Baghdigi Collieries since the year 1953. Af that time the aforesaid collieries were owned and managed by Lodna Colliery company (Private) Limited. With effect from 17-10-1971 the Management of the these two collieries was taken over by the Central Government. Subsequently with effect from 1-5-1972. These collierier were nationalised. After the nationalisation ultimately ownership and management of these colleiries vested in the sole respondent. Further case of the appellant is that he was receiving the Sardari Commission since 1953 at the rate of Oil paise in some cases and 0.12 paise in others for each tub of coal loaded by the labourers. On this basis, for his contract of service- the average amount of commission payable to him was Rs.3,000/- per month. This amount was payable on any day of the following month. After taking over the management of the collieries for the period from 17-10-1971 to 30-4-1972 the appellant received part payment of his Sardari commission from the respondent, and for the balance he has preferred his claim under Sec.23 of Coking Coal mines Nationalisation) Act, 1972 in short the act ). Even after the nationalisation of these collieries with effect from 1-5-1972 the contract of service of the appellant continued on the same terms and conditions and it is still subsisting. The respondent has been preparing payment sheet of Sardari commission for each month with effect from 1-5-1972 but instead of making the full payment the defendant has been paying to the plaintiff, as his commission, approximately 25% of the total sum payable to him viz. The balance was withheld. The payment of the Sardari commission has, however, been totally stopped from November December, 1974 by the defendant in spite of the fact that the contract of the service of the plaintiff still subsisted. A registered notice through the lawyer was served on the respondent for this payment. The balance was withheld. The payment of the Sardari commission has, however, been totally stopped from November December, 1974 by the defendant in spite of the fact that the contract of the service of the plaintiff still subsisted. A registered notice through the lawyer was served on the respondent for this payment. No opportunity was given to the plaintiff for being heard in the matter in flagrant violation of the principle of natural justice as also of the provisions of the Act. The contract of services of the plaintiff still subsisted in absence of any refusal in writing by defendant to rectify or cancel the same. On these grounds, the plaintiff claimed the part payment of the commission withheld from 1-5-1972 to November/december, 1974 and the entire commission stopped thereafter upto 30-5-1975. Thus he claimed a total sum of Rs.75,000/- an this account. Hence the suit was brought for the realisation of this money. 3. The defendant-respondent contested this claim by filing a written statement. It was contended that the claim of the plaintiff is a simple claim for wages and he should have brought the claim under the provisions of the Payment of Wages Act. The claim of the plaintiff was based on some archaic practice obtaining before the nationalisation of the Coking coal Mines which could not be allowed to continue. The institution of the loaders Sardars was there only to exploit the labour and, therefore, it had to be stopped as it was opposed to the modarn, concept of social justice. When the management of the two collieries was taken over the prevalent practice of payment of commission to the plaintiff was continued though there was no contract to this effect between the plaintiff and the defendant. However, since this practice was continuing from before, it was not abruptly stopped though by the order dated 5-1-1972 it was reduced to 75% till further orders. In pursuance of the order of the custodian, some payments were made to the plaintiff for the period from 17-10-1971 to 30-4-1972. This defendant has arranged for sufficient supervisory staff for supervising the loading and there was no necessity of engaging the Loader Sardar. The payment of Sardari commission in all the collieries nationalised was stopped and the plaintiff was not entitled to get any such commission. This defendant has arranged for sufficient supervisory staff for supervising the loading and there was no necessity of engaging the Loader Sardar. The payment of Sardari commission in all the collieries nationalised was stopped and the plaintiff was not entitled to get any such commission. As such there could be no question of the payment of this commission and the claim of the plaintiff for a sum of Rs.75,000/-, is without any basis. On these grounds it was contended that the suit be dismissed. 4. From the record it appears that a preliminary objection was raised before the learned Subordinate Judge.1st Court, Dhanbad, where the suit was pending on the question whether the civil court will have jurisdiction in the matter or not. By an order dated 10-6-1976 the learned Subordinate judge, 1st Court, Dhanbad, held that the said Court had jurisdiction to try the suit. It further appears that against this order a revision application [cr 203/76 (R)] was filed before this Court which was subsequently permitted to be withdrawn by an order dated 31-7-1979. Prom this it would appear that the question whether the Civil Court had or had no jurisdiction the matter appears to have been concluded. 5. Shri Jai Prakash, the learned counsel appearing on behalf of the appellant, has seriously contended before me that his claim for a money decree is claim for civil rights. Admittedly, the respondent has not paid the dues of the appellant which it should be asked to pay. In the present case there is no question whether the appellant is a workmen or not He has only claimed 75% of his bills. Also no issue has been framed by the learned court below whether the appellant was workman or not. 6. As against it, the learned counsel appearing on behalf of the respondent, has submitted that the agreement, if any, between the appellant and erstwhile owners of these two collieries would not be binding on the respondent. Under this circumstance, it has been contended that the respondent is not liable to pay the claim put forward by the appellant. 7. In paragraph 5 of the plaint the plaintiff-appellant has stated that ever since 1953 he was receiving sardari commission for each tub of coal loaded by the loaders in the two collieries for his contract of service. Under this circumstance, it has been contended that the respondent is not liable to pay the claim put forward by the appellant. 7. In paragraph 5 of the plaint the plaintiff-appellant has stated that ever since 1953 he was receiving sardari commission for each tub of coal loaded by the loaders in the two collieries for his contract of service. The management of these collieries was taken over with effect from 17-10-1971, in paragraph 9 of the plaint, the plaintiff stated that he has received part payment of sardari commission from the defendant-respondent tor the period from 17-10-1971 to 30-4-1972 and for the balance he had preferred his claim under Sec.23 of the Act. Paragraph 5 of the plaint has been replied in paragraph 13 of the written statement in which it has been stated that after the management of the two collieries was taken over it was found that the commission was being paid to the plaintiff at the rate of 0.11 paise and 0 12 paise respectively for each tub of coal loaded by the loaders. However, no paper showing any such contract of service was available in the collieries. Paragraph 9 of the plaint has been replied in paragraph 17 of the written statement in which it has been stated that in pursuance of the order of the custodian, some payment was made during the management period namely, for the period from 17-10-1971 to 30-4-1972 but the defendant was not aware if any claim was preferred under Sec.23 of the Act before the compensation Commissioner for the so called balance of commission. From these statements made in written statement it appears that the defendant has not challenged the position (hat before the management of the two collieries was taken over the plaintiff was working as the loaders sardar in the two collieries and that he was being paid the commission at particular rates. It further appears to be admitted that for the period from 17-10-1971 to 30-4-1972 some payment was made to the plaintiff under the orders of the custodian towards payment of this commission. From this it would appear that the plaintiff had received this commission or part thereof not only during the period. When these two collieries were owned by erstwhile owners but also during the period after their management was taken over by the respondent. From this it would appear that the plaintiff had received this commission or part thereof not only during the period. When these two collieries were owned by erstwhile owners but also during the period after their management was taken over by the respondent. As a matter of fact, in paragraph 8 of the plaint it has clearly been stated that the difficulties in receiving the regular payment of Sardari commission arose only after taking over of these two collieries by the Central Government. 8. In paragraph 11 of the plaint, it has been stated that the defendant was preparing toe payment sheet of Sardari commission of the plaintiff for each month with effect from 1-5-1972 but instead of making the full payment only 25% of the total amount was being paid to the plaintiff. In paragraph 12 of the plaint, it has been stated that this payment was stopped only with effect from November/december, 1974. Paragraph 11 of the plaint has been replied in paragraph 19 of the written statement in which it has been stated that though the Act passed on 17-8-1972 was given retrospective effect from 1-5-1972 the status quo wiih respect to both these two collieries was maintained and instead of abruptly stopping the payment of the commission the plaintiff, it was being paid to him as per bis repeated request and in accordance with the interim decision of the custodian. There was no question of withholding balance as such. From these averments made in the pleadings it becomes clear that even after 1-5-1972 when the Act came into force and the collieries were nationalised the payment sheet for Sardari commission of the plaintiff was being prepared by the defendant. It further appears that out of the total amounts payable as per balance sheet approximately 25% was being paid to the plaintiff. In this connection, my attention, has been drawn to Ext.2 series which are various bills prepared in the name of the plaintiff for the months beginning from November, 1973 to July, 1974. These bills were prepared by the office of the respondent and were signed by the Sub-Area Manager. They show that the monthly payment required to be made to the plaintiff was assessed though on these bills is an endorsement "not to be paid". This clearly goes to show that the facts stated in this regard in paragraph 11 of the plaint are correct. They show that the monthly payment required to be made to the plaintiff was assessed though on these bills is an endorsement "not to be paid". This clearly goes to show that the facts stated in this regard in paragraph 11 of the plaint are correct. 9. The learned counsel appearing on behalf of the appellant has seriously contended before me that bis claim is based on an implied contract between the parties. The respondent has accepted the service rendered by the appellant. As such it is obliged to pay the necessary commission to him as per the terms of Sec.73 of the Contract Act. Under this circumstance, it has been contended that it is necessary to go into the question whether the appellant is workman or not and no such issue was over framed by the learned court below. According to the appellant, his suit is a simple suit baked on an implied contract and the respondents acceptance of the service rendered by him. Hence even if there is no written contract the parties would be bound by the implied contract and by receiving the services rendered by the appellant. I do find force in this contention of the learned counsel for the appellant. Under this circumstance, 1 do not think any useful purpose will be served by going into the question whether the appellant is a workman or not. The claim pt the appellant appears to be only a claim for money which according to him is still due from the respondent. Thus, it appears to be a civil claim. Shri M. M. Banerjee, the learned counsel appearing on behalf of the respondent, has submitted that any such agreement between the appellant and the erstwhile owner of those two collieries will not be binding on the respondent. Technically he might have been correct if the respondent would not have taken service of the appellant and would not have continued the contract whether written or oral between the appellant and the erstwhile owners. However, since the respondent has continued this contract and has not only received the services from the appellant in this regard but has also made part payment for the same, it cannot now be allowed to say that it is not binding on it. However, since the respondent has continued this contract and has not only received the services from the appellant in this regard but has also made part payment for the same, it cannot now be allowed to say that it is not binding on it. In this connection, a reference may be made to Sec.73 of the Contract Act which clearly shows that if the party receives any service or goods from another and appropriates the same it is bound to compensate for it to the person from whom it receives such service or goods. Hence, I do not find any force in this contention of the learned counsel for the respondent. 10. In this connection, the learned counsel for the respondent has placed reliance on the case of Bhagaband Colliery V/s. Their Workmen (1962 (5) SCC 347 ). This was also a case of Sardari Commission. It was held that where it is found that the Sirdars were performing supervisory duties with respect to the labour force supplied by them, and even though not expresbly employed as such they would be so treated, if it is proved that the company treated them as such from this it would appear that even when the Sardari were performing only supervisory duties they should be treated as such even though they were not so expressly employed. 11. The learned counsel appearing on behalf of the respondent has further contended that the appellant should not be paid any commission because it did not perform any duty. No money can be paid to a person without performing any corresponding duty. In the written statement also it has been made out that since after the nationalisation of the collieries the respondent is having a number of officers to supervise the loading operations. The post of loaders sardar had become redundant. As against it, the learned counsel for the appellant has submitted that is such a situation it was open to the respondent to terminate the services of the appellant. This has not been done either orally in writing. On its basis the respondent has been receiving the services rendered by the appellant and has been making part payment on this account till November/decembers 1974. As such it will not lie in the mouth the respondent at this stage to say that it was not taking the services of the appellant after the nationalisation of the collieries. On its basis the respondent has been receiving the services rendered by the appellant and has been making part payment on this account till November/decembers 1974. As such it will not lie in the mouth the respondent at this stage to say that it was not taking the services of the appellant after the nationalisation of the collieries. 12. The learned counsel for the respondent has drawn my attention to the evidence of P. W.1 (the present appellant ). In paragraph 13 of his evidence, he has stated that after taking over of the collieries he had not gone inside the collieries. My attention has also been drawn to the evidence of D. W.1 who is acting as Assistant Manager of the Colliery since 1959. He has stated that the appellant had never gone inside the Colliery. In paragraph 6 of his cross-examination, however, he has admitted that the loaders sardar was not required to go inside the colliery. He has further admitted that he does not know whether the respondent had addressed any letter to the appellant that his services were no longer needed. Also no such letter was addressed to him that he will get only 23% of sardari commission. On behalf of the appellant it has been stated that if actually he would have been informed by the respondent that his services were no longer needed, he would have taken up some other job. He could not so since he continued acting as loaders sardar even alter the nationalisation of the colliery. In paragraph 9 of his evidence, D. W.1 has stated that he has not seen the appellant doing any other work" This also lends support to the case of the appellant on this point that a loaders sirdar is not required to do any physical work. Ext.1 is the order passed by the Commissioner of Payments appointed under the said Act. As stated in paragraph 9 of the plaint, the appellant received only part payment of his sardari commission during the period ot take over of the management from 17-10-1971 to 30-4-1972. Before the Commissioner of Payments plaint as well as written statement of the present suit were produced according to which only 25% of sardari commission was being paid by the Government Company to the appellant during the management period. Before the Commissioner of Payments plaint as well as written statement of the present suit were produced according to which only 25% of sardari commission was being paid by the Government Company to the appellant during the management period. This payment was being made towards the commission for continuing the work at the loading side etc. The claim of the present appellant was for the payment of the full amount. From paragraph 2 of this order it would appear that after discussions between the representatives of the two parties the claim was established for a sum of rs.9,000/- with observation this amount will be released only on undertaking being furnished that any claim pending in the Civil Court will not be pressed to the extent of the payment being made. From this also it would appear that the respondent had admitted its liability to pay the balance of 75% of the commission to the appellant. This also shows acceptance of the services rendered by the appellant and also the claim of the appellant tor payment of sardari commission. 13. Shri M. M. Banerjee, the learned counsel for the respondent, has drawn my attention to sub-section (3) of Sec.17 of the Act which runs as follows ; "section 17 (3), Save as otherwise provided in sub-sections (1) and (2), the services of every person employed by the owner or occupier of a coking coal mine or coke oven plant before the appointed day shall stand terminated on and from the specified date". He has submitted that since the appellant was a workman being employed by the erstwhile owner of the mine his services will stand terminated on and from the specified date. It was therefore, his submission that he will not be entitled to any wages or commission for any service said to have been rendered by him. 14. As against it, the learned counsel for the appellant has submitted that the relationship between the appellant and the erstwhile owner of the collieries was not that of the employer and the employee. The appellant was only a commission agent and he used to receive commission for the work done by him as loaders sardar. As a matter of fact, he was not requirtd to go inside the colliery or to do any manual work. Hence the learned counsel for the appellant has challenged this contention of the respondent. 15. The appellant was only a commission agent and he used to receive commission for the work done by him as loaders sardar. As a matter of fact, he was not requirtd to go inside the colliery or to do any manual work. Hence the learned counsel for the appellant has challenged this contention of the respondent. 15. Before proceeding to consider the respective submissions of the parties on this point I would like to mention that by Sec.5 of the Coal mines Nationalisation Laws (Amendment) Ordinance, 1986 which was subsequently indicated also converted into, an Act Sec.17 of the Act of 1972 was substituted. The use of word "substitution" will show that the entire Sec.17 of the Act of 1972 was effaced or removed from the statute and in its place a new section (for Sec.17) was substituted and by legal fiction it was deemed to have come into force from 1-5-1972. According to this substituted section notwithstanding anything contained in the industrial Disputes Act, 1947 or in any other law for the time being force, the service of any officer or other employee employed in a coking coal mine or coke oven plant shall be liable to be transferred and any such transfer shall net entitle the employee to any compensation. Since the entire Section 17 of the Act of 1972 was substituted by a new section which came into force with effect from 1-5-1972 it will mean that the entire section including sub-section (3) quoted above was removed from the statute. Under this circumstance, it would appear that the provision made in Sec.17 (3) of the Act of 1972 that the services of every person employed by the owner before the appointed day shall stand terminated will cease to have any effect, it, however, appears in the present case there is no question ot relationship of any employer or an employee between the parties. On behalf of the appellant it has been submitted that he was acting as leaders sardar to supervise the loading ot the coal of the two collieries for which he used to commission. He was not an employee of those two collieries and as such the commission that he used to receive properly speaking, will not amount to wages, la this connection, he has drawn my attention to the case of dharangadhra Chemical Works Ltd. V/s. State of Saurashtra, AIR 1957 SC 264 . He was not an employee of those two collieries and as such the commission that he used to receive properly speaking, will not amount to wages, la this connection, he has drawn my attention to the case of dharangadhra Chemical Works Ltd. V/s. State of Saurashtra, AIR 1957 SC 264 . According to this decision the broad distinction between a workman and an independent contractor lies in this that while the former agrees himself to work, the latter agrees to get other persons to work. Now a person who agrees himself to work and does so work and is therefore, a workman does not cease to be such by reason merely of the fact that he gets other persons to work along with him and that these persons are controlled and paind by him. What determines whether a personm is a workman or an independent contractor is whether he has agreed to work personally or not. If ho has, the he is a workman and the fact that he takes assistance from other persons would not affect his status The Hon ble Supreme Court, in this connection, has referred to pages 631-652 Volume 14 of Halsburys Laws of England, to find out who will come within the meaning of definition workmen. It runs as follows ; "pages 651-653-The workman must have consented to give his personal services and not merely to get the work done, but if he is bound under his contract to work personally, he is not encluded from the definition, simply because he has assistance from others, who worfe under him. " 16. This decision of the Hon ble Supreme Court has been affirmed in the case of the Workman of the Food Corporation of India V/s. M/s. Food corporation of India, AIR 1985 SC 670 . In this decision while following the decision in the above mentioned case it has been observed that the essential condition of a perandon 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 that there should be, a relationship between the employer and him as between employer and employees or master and servant. Unless a person is thus employed there can be no question of this being a workman within the definition of the terms as contained in the Industrial Disputes Act. 17. In the present case the plaintiff-appellant has nowhere contended that he was himself working as an employee under the erstwhile owners. All that he has stated that he used to receive sardari commission for each tube of coal loaded by the loaders. In the written statement filed on behalf of the defendant also it has nowhere been stated that the appellant was doing any work under erstwhile owners so as to bring him within the definition of an employee. All that he was stated is that the commission was being paid to him for each tube of coal loaded by the loaders in the two collieries. In this connection, I have already referred to the evidence of the appellant (P W.1) and D. W.1 on behalf of the respondent. From their evidence it would appear that the appellant had never gone inside the collieries nor he was required to do so in course of performing his duty as Loaders Sirdar. Under this circumstances, it becomes clear that he will not come within the definition of workman under the Industrial Disputes Act as per the above mentioned two decisions the Hon ble Supreme Court. Hence, he will not come within the mis-chief Sec.17 of the Act as substituted by Sec.5 of the Ordinance of 1986. 18. On behalf of the appellant it has been stated that his claim is only a claim for money and, is therefore, a claim for a civil right. He has already received part payment of the commission the balance of which has been held up by the respondent. As such it cannot be said that he is an employee of the respondent or that his claim for payment of commission will amount to the claim of his wages. On these grounds, it has been contended that the suit is maintainable. 19. From the detailed discussion made above, It becomes perfectly clear to me that the appellant is entitled to get the amount claimed by him. It further appears that the suit has wrongly been dismissed by the learned count below and that the appellant is entitled to a decree. 20. 19. From the detailed discussion made above, It becomes perfectly clear to me that the appellant is entitled to get the amount claimed by him. It further appears that the suit has wrongly been dismissed by the learned count below and that the appellant is entitled to a decree. 20. In the result, this appeal is allowed and the judgment and decree passed by the learned court below are hereby set aside. The suit is decreed on contest with cost throughout. Pleaders fee Rs.250/-. Appeal allowed.