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Rajasthan High Court · body

2001 DIGILAW 890 (RAJ)

Ishwar Singh v. R. S. E. B.

2001-05-16

H.R.PANWAR, N.P.GUPTA, RAJESH BALIA

body2001
Honble BALIA, J.–The above appeal has been referred to a larger Bench by the Division Bench hearing aforesaid special appeal arising out of the judgment of learned Single Judge dated 10.08.1998. The appellant-petitioner has filed Writ Petition No. 1984/98 challenging the award passed by the Labour Court dt. 11.6.97 at the instance of the appellant-petitioner claiming himself to be an employee of Rajasthan State Electricity Board (for short `the Board) as then existed. The following disputes were referred to the Labour Court for adjudication: ^^¼1½ D;k jkt- jkT; fo|qr e.My }kjk muds vnZyh Jh bZoj flag iq= Jh eksrhflag jktiwr lkfdu jkeiqjk rglhy fljksgh tks fd e.My ds fljksgh vf/kdkfj;ksa ds ikl rSukr Fks] dk lsokdky fnukad 6-1-85 ls yxkrkj ugha ekuuk rFkk mls lgk;d vfHk;Urk ¼vks ,.M ,e½ jktLFkku jkT; fo|qr e.My] fljksgh }kjk lsok i`Fkd fd;k tkuk mfpr ,oa oS| gS\ ;fn ugha rks Jh bZoj flag vnZyh fdl jkgr dk vf/kdkjh gS\ ¼2½ D;k Jh bZoj flag dks jktLFkku jkT; fo|qr e.My }kjk tSlk fd e.My ds vnZfy;ksa dks nks o"kZ ls vf/kd lsokdky okyksa dks prqFkZ Js.kh ;k led{k in ij lek;ksftr djus ds vknsk dk ykHk ugha fn;k tkuk mfpr ,oa oS| gS\ ;fn ugha rks Jh bZoj flag fdl jkgr dk vf/kdkjh gS\** (2). The aforesaid dispute had been raised and referred to the Labour Court, as a result of termination of services of the petitioner by the respondents w.e.f. 19.5.89, and because of non- regularisation of petitioners services, to which he has laid claim before termination of his services. (3). The petitioner has claimed that he was appointed as an Orderly by the respondents in the first instance on 7.1.85 by the order of Executive Engineer, Sirohi (respondent No.2) for a period of three months to discharge duties at residence. This appointment continued uninterruptedly until his services were terminated by order dt. 19.5.89. During this period, quarterly appointment orders were issued from time to time by the such officer of the Board at whose residence he was required to discharge his duties. In this connection, after respondent No.2, has appointed him in the first instance, in 1985 and continued with him. Thereafter, his further appointment was renewed by the order of Assistant Engineer, Sirohi, vide his order dated 8.4.77 and that order was also continued from time to time by holder of that office. In this connection, after respondent No.2, has appointed him in the first instance, in 1985 and continued with him. Thereafter, his further appointment was renewed by the order of Assistant Engineer, Sirohi, vide his order dated 8.4.77 and that order was also continued from time to time by holder of that office. He was lastly working under R.K. Shah, Assistant Engineer, from 28.5.88. By order dated 19.5.89, his services were terminated. Throughout this period he was appointed on consolidated wages of Rs. 240/- per months in terms of the instruction of the Board dt. 6.1.79. (4). According to the appellant-petitioner all appointment orders were made as an office order of the Board, by the officer holding the post from time to time and under whom he was to discharge duties as Orderly at his residence as per orders of the Board dt. 6.1.79, as part of additional facilities provided by the Board to its officers in the rank of Assistant Engineer and above as per term of their appointment. Payment of salary was being made to the petitioner directly from the Board, on the basis of Bill sanctioned by drawing officer who was not necessarily the appointing authority for the time being. He claimed that persons who were appointed along with the petitioner, they have been made permanent in the service as Class IV servant on completion of two years satisfactory service as Orderly. He too was entitled to be regularised on completion of two years continuous service as an Orderly. However, he has not been so regularised and was illegally deprived of the benefits of regular appointment in Class IV servant as other Orderly had been given. On raising demand for justice to be treated alike, his services have been terminated. Therefore, he alleged the termination of service as well a denial of regular status and deprivation of regular emoluments for such a long period was as a result of unfair labour practice. He also alleged that before terminating the services of the petitioner, neither compliance of Sec. 25F of Industrial Disputes Act was made, nor seniority list was published and therefore, the termination was invalid, being not in accordance with the provisions of Section 25F and 25G of the Industrial Disputes Act. (5). With the aforesaid allegations he asked for declaring the termination of services vide order dated 19.8.89 to be invalid and reinstatement with full back wages. (5). With the aforesaid allegations he asked for declaring the termination of services vide order dated 19.8.89 to be invalid and reinstatement with full back wages. He also asked for regularisation as class IV servant and consequential benefits. (6). The respondent No. 3 in his reply to claim before Labour Court admitted the successive employment since order of appointment dt. 6.1.85 by the Executive Engineer. However, it was asserted that claimant being appointed as an Orderly to discharge domestic work at home was not a workman within the meaning of Sec. 2(s), employed in connection with any industry. He also alleged that in view of definition of employer u/Sec.2(g), the Chief Executive of RSEB is the employer of the claimant and not the Assistant Engineer, but he has not been impleaded as party to dispute. He further stated that since there was no supervision or control of the Board, over the petitioners work, no relationship of master-servant existed between the Board and the claimant. (7). With these preliminary objections it was alleged by the then incumbent on the post of respondent No. 3 on merit of the claim that he was in employment only for the period between 28.5.88 to 8.5.89, under appointment from him which was less than one year, he was neither entitled to protection under Chapter VA of the Industrial Disputes Act nor was he entitled to be regularised because he had not completed two years service. This plea obviously reflect, the respondent No. 3 was treating the petitioner to be his domestic servant, only with effect from the appointment given by him under order dt. 28.5.89 since he had assumed the office and issued order for deploying at his residence and was not treating the same in continuation of the earlier employment, which admittedly existed. With all these pleas on merit also he joined issue on two counts viz. that though termination of petitioners services does not come within the definition of retrenchment, he was informed by the office order No. 405 dt. 19.5.89 to obtain retrenchment compensation, and in fact a Cheque dt. 20.5.89 for Rs. 120/- (15 days wages for one years continuous service) was sent to him, which he has refused to accept. that though termination of petitioners services does not come within the definition of retrenchment, he was informed by the office order No. 405 dt. 19.5.89 to obtain retrenchment compensation, and in fact a Cheque dt. 20.5.89 for Rs. 120/- (15 days wages for one years continuous service) was sent to him, which he has refused to accept. Secondly his services have been terminated only because he has not completed two years services, therefore, he was not found eligible for regularisation and his services were terminated as per the orders of the Board. 20.5.89 for Rs. 120/- (15 days wages for one years continuous service) was sent to him, which he has refused to accept. Secondly his services have been terminated only because he has not completed two years services, therefore, he was not found eligible for regularisation and his services were terminated as per the orders of the Board. As these averments have important bearing on the question to be decided hereinafter, we reproduce the same: ^^¼1½ iSjk ,d ds lEcU/k esa dFku gS fd Jh bZojflag dks vf/kkklh vfHk;Urk ¼Vh-Mh-& 11½ jk-jk-fo- e.My] fljksgh ds vknsk la[;k 138 fnukad 6-1-85 }kjk rhu ekg ds fy, ?kjsyw ukSdj ¼vnZyh½ ds :i esa fu;qDr fd;k x;k FkkA ¼2½ iSjk ds lEcU/k esa ys[k gS fd izkFkhZ dks vknsk la[;k 48 fnukad 8-4-87 }kjk lgk;d vfHk;Urk ¼xzk-fo-fu-½ jk-jk-fo- e.My fljksgh }kjk rhu ekg ds fy;s ?kjsyw ¼vnZyh½ ds :i esa fu;qDr fd;k x;k Fkk rFkk vknsk la- 821 fnukad 28-5-88 }kjk izLrqr vizkFkhZ] }kjk iw.kZ :is.k rnFkZ fu;qfDr ij izFke :i ls rhu ekg ds fy, ?kjsyw ukSdj ¼vnZyh½ ds :i esa fu;qDr fd;k x;k Fkk rFkk fnukad 19-5-89 dks fu;ekuqlkj vknsk la[;k 405 fnukad 19-5-89 dks fu;ekuqlkj vknsk la[;k 405 fnukad 19-5-89 }kjk fjVªspesUV dEiulsku ysus gsrq lwfpr djrs gq, lsok ls i`Fkd~ fd;k x;k FkkA bl lEcU/k esa fuosnu ;g gS fd jkt- jkT; fo|qr e.My us 6-1-79 ds vius vknsk }kjk e.My vf/kdkfj;ksa dks ?kjsyw ukSdj ds :i esa :- 240@& izfr ekg ij vnZyh fu;qDr djus dh lqfo/kk iznku dh gqbZ Fkh vkSj e.My ds vknsk fnukad 9-5-89 }kjk ;g funsZk tkjh fd;s x;s fd ftu vnZfy;ksa us 9-5-89 dks yxkrkj nks o"kZ dh lsok iw.kZ dj yh gS mUgsa fu;fer lsok esa ysus gsrq lk{kRdkj ;ksX;k ekuk tk;s rFkk ftu vnZfy;ksa us fnukad 9-5-89 dks yxkrkj ¼Continuously½ nks o"kZ dh lsok iw.kZ u dh gks mUgsa /kkjk 25¼,Q½ ds rgr fjVªspesUV dEiulsku iznku djrs gq, lsok ls i`Fkd dj fn;k tk;A pwafd izkFkhZ Jh bZoj flag dks fnukad 9-5-89 dsk vnZyh ds :i esa nks o"kZ iw.kZ ugh gq, Fks] vr% bUgsa fu;ekuqlkj lsok ls i`Fkd djuk vko;d gks x;k FkkA (3) xx xx xx (4) xx xx xx ¼5½ iSjk ikap dk dFku ftl izdkj of.kZr fd;k x;k vLohdkj gSA budh lsok fnukad 9-5-89 dks yxkrkj nks o"kZ iw.kZ ugha gksus ds dkj.k fu;ekuqlkj lsok ls i`Fkd fd;k x;k FkkA (6) xx xx xx ¼7½ iSjk lkr dFku vlR; gksus ds dkj.k vLohdkj gSA gkykafd izkFkhZ ij vkS|ksfxd fookn vf/kfu;e dh /kkjk 25¼,Q½ ykxw ugha gksrh fQj Hkh lsok ls i`Fkd djus ij bUgsa NaVuh eqvkotk jkfk ysus gsrq bl dk;kZy; ds vknsk la[;k 405 fnukad 19-5-89 }kjk lwfpr dj fn;k x;k FkkA rFkk budk Hkqxrku jkfk dk fcy la- 34 fnukad 20-5-89 :i;s 120-00 dk ikl dj bUgsa Hkqxrku ysus gsrq lwfpr dj fn;k x;k Fkk] fdUrq mUgksaus ls jkfk ysus ls bUdkj dj fn;kA ¼8½ iSjk vkB dk dFku vLohdkj gSA izkFkhZ vnZyh ds :i esa yxkrkj lsok esa ugha jgk gSaA vkSj nks o"kZ dh yxkrkj lsok iw.kZ ugha djus ds dkj.k gh bUgsa e.My ds fu;ekuqlkj lk{kkRdkj ,oa fu;fer lsok ds ;ksX; ugha ekuk x;k gSA ¼9½ iSjk ukS ds kCn iSjk ¼v½ ls ¼g½ rd ds dFku vLohdkj gSA izkFkhZ dks e.My ds vknskkuqlkj gh lsok ls yxkrkj lsok iw.kZ ugha djus ds dkj.k i`Fkd fd;k x;k gSA iw.kZ fooj.k mijksDr tkp iSjk-1 ls 8 rd fn;k x;k gSA** (8). The Labour Court has rejected the claim of the petitioner solely on the ground that as he was appointed only as domestic help at the residence of AEN, he cannot be considered to be an employee of Board as per the decision of this Court in Rajasthan State Electricity Board and Anr. vs. Ashok Lal (1), decided on 29.01.1992. (9). The learned Judge, labour Court also placed reliance on another decision of learned Single Judge of this Court in RSEB vs. Judge, Labour Court and Anr. (2). (10). The order of Labour Court was challenged by way of writ petition as aforesaid. (11). Learned Single Judge after noticing the aforesaid finding reached by the Labour Court did not find any infirmity, illegality or error in the award and was of the opinion that evidence cannot be appreciated and the writ petition was dismissed. However, no discussion of issues arising out of claim finds place in the order, on merit of conclusion reached by the Tribunal. (12). When the matter was taken in appeal before the Division Bench, the Division Bench vide its order dt. 6.1.99 admitted the appeal recorded its disagreement with the view taken by the Division Bench in RSEB vs. Ashok Lal (supra) and required that matter may be placed before the larger Bench for examining the correctness of the decision. This is how the matter is before us. (13). The petitioner contends the existence of relationship of master and employee is not dependent on what duty is required to be discharged by the person engaged but depends on whether a person engages another person under a contract of employment, under which the employee agrees to serve the engagement subject to his control and supervision. (14). The employer has been defined under Sec. 2(g) of the Industrial Disputes Act as under: Sec. 2(g): ``employer means- (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; (ii) in relation to an industry carried on byor on behalf of a local authority, the Chief Executive Officer of the authority; (15). This definition is neither exhaustive nor inclusive. It defines only employer in relation to industries mentioned therein. No attempt has been made to define the term employer generally. This definition is neither exhaustive nor inclusive. It defines only employer in relation to industries mentioned therein. No attempt has been made to define the term employer generally. So also term `employment has not been defined in the Act anywhere. (16). Industry has been defined u/Sec. 2(j) and workman has been defined u/Sec. 2(s) of the Act of 1947. For the purposes of finding out that `employer-employee relationship exist between the workman with the industry at which he is working is relevant factor. The question has to be first viewed on first principle. (17). As seen from three definitions referred to above the definition of employer under the Act is not exhaustive but only illustrative. It only provides for determination of question as to who is treated to be employee in the case industry is carried out by the Central Government or by some local authority. Else expression `employer has to be given its ordinarily grammatical meaning. In its ordinary sense it means where a person is engaged to do something for another for remuneration. In that sense if a person is employed to do work for him, the person engaging him is employer, the person engaged is the employee, and if the work for which the employee is engaged can properly be termed as industry within the term as is understood, the employee shall be workman within the meaning of Sec. 2(s) if he discharges any function manually or mechanically as skilled or unskilled workman. (18). Any dispute then arising between such employer and employee relating to employment or non-employment becomes an industrial dispute, which may invite provisions of Industrial Disputes Act, 1947. These principles appear to us to be fairly well settled. (19). In Sukhnandan Thakur vs. State of Rajasthan (3), Ahmad J. said: ``One of the meanings of the word employment as given in Websters Dictionary is occupation, business; that which engages the head or hands as agricultural employment or mechanical employment. This clearly suggests that word employment refers to a condition in which a man is kept occupied in executing any work. (20). Ramaswami J., as he then was, drew the distinction between `an appointment and `an employment in the manner of appointment. According to him an appointment denoted an appointment to any office, under statutory terms. An employment on the other hand is contractual. (21). (20). Ramaswami J., as he then was, drew the distinction between `an appointment and `an employment in the manner of appointment. According to him an appointment denoted an appointment to any office, under statutory terms. An employment on the other hand is contractual. (21). In Chintaman Rao vs. State of M.P. (4), the Supreme Court said: ``The concept of employment involves three ingredients: (1) employer (2) employee and (3) the contract of employment. The employer is one who employs, i.e., one who engages the services of other persons. The employee is one who works for another for hire. The employment is the contract of service between the employer and the employee whereunder the employee agrees to serve the employer subject to his control and supervision. (22). In Shankar Balaji Waje vs. State of Maharashtra (5), the Court reiterated the view expressed in Chintaman Raos case and added: ``Employment brings in contract of service between the employer and employee. (23). In the said case the Court found that though the Pandurag, the concerned person, was engaged in the process which falls within the meaning of Sec. 2(s) defining workman, he could not still be called a workman because it lacked relationship of service through a contract of service. It was a contract of job work only. (24). In fact existence of contract between the petitioner and the Board in terms of instruction dt. 23.1.79 was never denied. What was contended that since he was not to work at the premises of the Board but at residence of the officer under whom he was to work as Orderly, he was not employed in an industry. (25). Apart from existence of contract, another important and relevant consideration in determining the master-servant relationship is that in order to be a workman within the meaning of Sec. 2(s), the person must be employed in an industry. The term industry has been defined in Sec. 2(j), which has since been invited attention of many a debates, but for the present it stands settled by statement of law made in Bangalore Water Supply vs. A. Rajappa (6). (26). The Court laid emphasis that word ``Industry in Sec. 2(j) has a wide import. The term industry has been defined in Sec. 2(j), which has since been invited attention of many a debates, but for the present it stands settled by statement of law made in Bangalore Water Supply vs. A. Rajappa (6). (26). The Court laid emphasis that word ``Industry in Sec. 2(j) has a wide import. Where there is systematic activity, organished 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 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. The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relations. (27). It has now been re-stated by the Supreme Court on a reference by constitution Bench that Bangalore water case, correctly lays down the contours of terms industry and does not call for reconsideration. (28). In fact this has not been argued and perhaps about which there cannot be any dispute that the Board which is engaged in generation, and distribution of electricity is an industry and any person employed at it is a workman, if he otherwise fulfills the requirement of the term. It cannot also be doubted that if the master-servant relationship is established on the anvil of an employment under the contract at the industry owned by the Board, the petitioner discharged such manual duties, which shall bring him within the definition of workman, on the basis of duties discharged by him as an Orderly. (29). With this definition of the industry and the emphasis on employer employee relationship and the definition of the workman to include discharging of any duties skilled or unskilled, manual, technical, operational, clerical or supervisory, we may examine the question of exercise of control. We shall notice that there is great deal of departure from traditional view of meaning of control as power to direct how the servant should do his work. The emphasis has shifted upon the question of control. More often than not it is an important, in some cases is decisive factor yet not always so. This becomes, an all important factor where work is discharged at the premises of the employer. The emphasis has shifted upon the question of control. More often than not it is an important, in some cases is decisive factor yet not always so. This becomes, an all important factor where work is discharged at the premises of the employer. However, where a workman is employed to discharge duties incidental to the industry at distant place, obviously this factor cannot exist, in the sense that the worker does not directly receive his instruction what to do at the industrial premise. Moreover where, as in the present case, the employee is not a natural person but a juristic person, or where he is employed to work in subordination to one or more of its officers, the instructions are imparted by such officer under whom he works and at a place where he is to discharge his duties. In such case supervision and control of manner of discharging duty is of the employer through its officers under whom a person is engaged to discharge his duties. This charge in shift can be gathered with reference to some recent decisions. (30). In Short vs. J&W Handerson Ltd. Lord Thankerton (7), recapitulated four indicia of contract of service resulting in master-servant relationship viz. (i) the masters power of selection of his servant; (ii) payment of wages or other remuneration; (iii) the masters right to control the method of doing work; and (iv) masters right of suspension and dismissal. However, he reflected: ``Modern industrial conditions have so much affected the freedom of the master in cases in which.......it will be incumbent on this House to consider and to restate these indicias. (31). In the language of Mocatta, J. in Whittaker vs. Minister of Pensions and National Insurance (8), ``the test of control is, therefore, not as determinative as used to be thought to be the case, though no doubt, it is still of value in that the greater the degree of control exercisable by the employer, the more likely it is that the contract is one of service. (32). In Argent vs. Minister of Social Security (9), Roskill J. stated: ``control is obviously an important factor. In some cases it may still be a decisive factor, but it is wrong to say that in every case it is the decisive factor. It is now, as I venture to think no more than a factor, albeit a very important one. (33). In some cases it may still be a decisive factor, but it is wrong to say that in every case it is the decisive factor. It is now, as I venture to think no more than a factor, albeit a very important one. (33). At home in V.P. Gopala Rao vs. Public Prosecutor (10), Bachawat, J. said that whether the relationship of master and servant exists between the management and the workman there is no abstract a `priori test of the work control required for establishing the contract of service. The Court also expressed that nature and method of control varies from industry to industry. In coming to this conclusion that Court relied on ratio laid by Lord Thankerton in Short vs. J.W Henderson Ltd. (supra) and Birdhichand Sharma vs. First Civil Judge (11). It was a case arising under Factories Act. (34). The view expressed by Mathew, J. in Silver Jubilee Tailoring House vs. Inspector of Shops and Establishments (12), spells out deviations in the approach to the traditional view of the test of control as part of determining the master-employee relationship. He said by referring to Roskill, J.s view in Argents case (supra): ``During the last two decades the emphasis in the field that shifted and no longer rest 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 say that in every case it is decisive. It is now no more than a factor, although an important one. (35). In Silver Jubilee Tailoring Houses case it was made clear that in interpreting `control in modern time 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 and may not provide a true test in all cases. He said: ``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 services 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 these cases or have the same weight in all cases. 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 these cases 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 weighting up the factors which point in one direction and balancing them against those pointing in the opposite direction. (36). The Court further held that right to remove a person from his engagement is sufficient evidence of control and supervision by the person having such right. It was said: ``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 as spoken to by the Inspector of Labour in his evidence, would be speak of control and supervision consistent with the charter of the business. (37). The above principle of right to remove to be a manifestation of control was reiterated by Desai, J. in Shining Tailors vs. Industrial Tribunal (13) wherein he observed: ``right of removal of the workmen or not to give work has the element of control and supervision. (38). While considering the different test for determining the question about existence of master-servant relationship, we are also tempted to refer in Atiyahs book - Vicarious Liability in the Law of Torts: ``The most that can profitably be done is to examine all the possible factors which have been referred to in these case as bearing on the nature of the relationship between the parties concerned. Clearly not all of these factors will be relevant in all cases, or have the same weight in all cases. Equally clearly no magic formula can be propounded for determining which factors should, in any given case, be treated as the determining ones. Clearly not all of these factors will be relevant in all cases, or have the same weight in all cases. Equally clearly no magic formula can be propounded for determining which factors should, in any given case, be treated as the 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. In the nature of things it is not to be expected that this operation can be performed with scientific accuracy (39). It is also relevant to consider in the context of an industrial dispute under Industrial Disputes Act, 1947 that a workman means `a person employed in an industry. In this connection we notice that the principle is well settled on high authority of Supreme Court that the expression `employed in any industry would take in also the employees who are employed in connection with operations incidental to the main industry. In the context of case at hand the question arises. Can person employed at residential Bungalow of officers as per terms and conditions of employment of such officer has held as persons employed in the industry so as to establish master-servant relationship on the test of `person employed in an industry? The question has been answered in positive by the Apex Court. (40). In M/s. J.K. Cotton Spinning & Weaving Mills Co. Ltd. vs. The Labour Appellate Tribunal of India (14), Gajendragadkar speaking for the Court said:- ``In this connection, it is hardly necessary to emphasis that in the modern world industrial operations have become complex and complicated and for the efficient and successful functioning of any industry, several incidental operations are called in aid and it is the totality of all these operations and ultimately constitutes the industry as a whole. Wherever it is shown that the industry has employed an employee to assist one or the other operation incidental to the main industrial operation, it would be unreasonable to deny such an employee the status of a workman on the ground that his work is not directly concerned with the main work or operation of the industry. Wherever it is shown that the industry has employed an employee to assist one or the other operation incidental to the main industrial operation, it would be unreasonable to deny such an employee the status of a workman on the ground that his work is not directly concerned with the main work or operation of the industry. While we are dealing with this point, it is necessary to bear in mind that the bungalow are owned by the appellant and they are allotted to the officers as required by the terms and conditions of the officers employment. Since the bungalows are allotted to the officers, it is the duty of the appellant to look after the bungalows and take care of the gardens attached to them. If the terms and conditions of service require that the officers should be given bungalows and gardens are attached to such bungalows, it is difficult to see why in the case of Malis who are employed by the appellant, are paid by it, and who work subject to its control and supervision and discharge the function of looking after the appellants property, it should be said that the work done by them has no relation with the industry carried on by the appellant. The employment is by the appellant, the conditions of service are determined by the appellant, the payment is substantially made by the appellant, the continuance of service depends upon the pleasure of the appellant, subject, of course, to the Standing Orders prescribed in that behalf, and the work assigned to the malis is the work of looking after the properties which have been allotted to the officers of the appellant...... the Malis who look after the gardens must, therefore, be held to be engaged in operations which are incidentally connected with the main industry carried on by the employer. (41). This case is nearer home. The worker employed to look after the gardens at the residential bungalows of officers of the Co., as per the requirement of terms of employment of Officer were held to be employed in industry as an activity incidental thereto. (42). This was followed in Ahmedabad MFg. & Calico Ptg. Co. Ltd. vs. Ramtahel Ramanand (15). This was a case of engagement of coolies to look after gardens, large part of which formed part of the residential quarters of the officers of the Co. (43). (42). This was followed in Ahmedabad MFg. & Calico Ptg. Co. Ltd. vs. Ramtahel Ramanand (15). This was a case of engagement of coolies to look after gardens, large part of which formed part of the residential quarters of the officers of the Co. (43). Likewise it is to be seen from the definition of workman that it refers to a person who has been employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward. It makes no distinction that where a person has been employed by owner of the industry to do work for him it must necessarily mean worker engaged in principal work of the industry and the workers employed for doing incidental services attached to the industry shall not be considered as a workman, on the ground that the workman was not actually engaged in the production, manufacture or distribution of electricity at any of the business premises of the Board, he cannot be excluded from being considered an employee of the Board, if otherwise he has been employed by the authority of the Board for its purposes. (44). As a matter of fact, the purport of finding reached by the Labour Court is that because the petitioner has not been engaged for the principal work of the industry, he is not an employee of the industry. This reason obviously erroneous on principle. (45). From the aforesaid discussion, we can safely deduce that in order to determine whether the master and employee relationship existed between two persons, the factors required to be seen are (i) relationship of employee and servant is constituted by contract expressly or impliedly between the employer and employee. The said contract involves that there is an employer who engages service of the other person, (ii) the other person wants to work for another for hire, (iii) the remuneration is paid by the person who engages the person engaged in consideration of service rendered, (iv) such engagement is subject to control and supervision of the employer. The said contract involves that there is an employer who engages service of the other person, (ii) the other person wants to work for another for hire, (iii) the remuneration is paid by the person who engages the person engaged in consideration of service rendered, (iv) such engagement is subject to control and supervision of the employer. Right to remove a person from engagement is one test which manifests control and supervision of person having control of that right, (v) for the purpose of considering a person as workman within the meaning of Sec. 2(s) of the Industrial Disputes Act, 1947 such employment must be in the industry carried on by the employer, (vi) the expression employed in any industry encompasses within its ambit the employees who are employed in connection with operation for discharging any service incidental to the main industry, (vii) A person required to be engaged for rendering services to another person employed by the same employer, under the terms and conditions of employment of such another person. Cumulative effect of all these factors is that person engaging services of another person and paying remuneration therefore, is called the employer, and the person engaged is called employee. (46). For the present purposes the engagement of any person for rendering services at the residence of other employees of the industry under the terms and conditions of whose employment sought, services of helping staff has to be made available at the residence of offices is an employment in relation to discharging the works incidental to the main industry. (47). We may now examine the facts of the present case in the light of aforesaid principles. (48). In the present case the appointment by the respective officers has been made in pursuance of circular dt. 6.01.1979 (Annexure-R/1) issued by the Board is as under:- RAJASTHAN STATE ELECTRICITY BOARD No. RSEB/Rules/F57(6)D.44 dt. 6.1.79 ORDER The Rajasthan State Electricity Board in its 266 meeting held on 20.7.78 decided that all the officers of the Board in its various branches with status/rank and in the pay-scale of Assistant Engineer and equivalent, Executive Engineer and equivalent, Superintending Engineer and equivalent, and for all posts above that of Superintending Engineer and equivalent be allowed one Orderly at their residence. However, it may be clarified that if under any of the existing order a separate Orderly has been already provided with the officers of the Board of such categories and classification, no additional Orderly will be allowed in terms of the said decision taken on 20.7.78. It was decided that appointment of Orderlies is to be made by the concerned officer, as per his discretion a consolidated pay of Rs.240/- p.m. The Board desired that since there are a large number of daily rated, workcharged Muster-roll, employee or casual workmen, the officers with facility, should made all possible efforts to recruit Orderlies as far as possible from such category or employee who are not in the regular pay-scale or have not become eligible to the fixed as regular employees in terms of the Arbitration award dt. 31.5.78, where such recruitment is not possible the officer enable for such facility can make appointment which initially should be for a period of three months to satisfactory performance, much appointment to the post of Orderly can be extended on quarterly basis. However, on satisfactory performance/completion of continuous service of two years, such persons recruited as Orderlies will become eligible and are to be considered for absorption on regular basis against the requi- rement of sanction strength of Class IV servants. In terms of the above decision, posts stand created w.e.f. 1.1.79 the date from which his scheme arrangement has been decided to come into force, creation of post is out of course, subject to the stipulations made above and that this sanction does not include such posts of orderlies as already stand created/covered by any previous order/approved by the Board. All the officers, covered by the above order, are hereby advised that they must immediately on recruitment/appointment of such Orderly furnish all necessary details and particulars of the person to his controlling officer as well to the concerned Accounts Officer. Detailed instructions as to how to prepare the bill and process to same should be issued expeditiously by the Financial Advisor and Controller of Accounts. By order, (Harish Nayyar) Secretary (49). Detailed instructions as to how to prepare the bill and process to same should be issued expeditiously by the Financial Advisor and Controller of Accounts. By order, (Harish Nayyar) Secretary (49). That order records after Board has decided that all the officers of the Board in its various branches with status and rank and in the pay-scale of Assistant Engineer and equivalent, Executive Engineer and equivalent, Superintending Engineer and equivalent and for all post above that of Superintending Engineer and equivalent be allowed one Orderly at their residence. It was also decided that appointment of Orderly could be made by the concerned officer as per his discretion at consolidated pay of Rs. 240/- p.m. However, the Board also indicated sources from which Orderlys are to be recruited. It has said that appointment of such Orderlys at the residence of the Officers, who were extended the facility of having Orderly at their residence should make all possible efforts to recruit Orderlys as far as possible from such category of employee who are now employed with the Board as daily rated, workcharged master-roll employee or casual workmen, and who are not in the regular pay-scale or have not become eligible to be fixed as regular employees with the Board. Thus, primarily the Orderlys were to be appointed from persons already employed by the Board, albeit not on regular basis. Such appointments were to be in addition to Orderlys already employed by the Board. This suggests that Board already has with categories of its employees persons engaged as Orderlys. (50). It also lays down the terms of appointment. Appointment of such Orderlys were envisaged to be made in the first instance for a period of three months subject to satisfactory performance, which could be extended on quarterly basis. Not only thus, on satisfactory performance on completion of continuous service of two years, such persons recruited as Orderlies were to become eligible to be considered for absorption on regular basis against the requirement of sanctioned strength of class IV servants. (51). Not only thus, on satisfactory performance on completion of continuous service of two years, such persons recruited as Orderlies were to become eligible to be considered for absorption on regular basis against the requirement of sanctioned strength of class IV servants. (51). From the aforesaid circular it is apparent that facility of having Orderly at the residence of offices of the rank and status of Assistant Engineer and above were extended as a part of terms and conditions of appointment of such officers of the Board by way of perquisites or emoluments as part of terms of their employment and Orderlys were to be employed by such officers of the Board only as part of fulfilling obligations of the Board towards terms of employment of its superior Officers. The employment was only at terms and conditions of service laid by the Board in the circular dt. 6.1.79 which not only provided primary source of recruitment but also terms on which they were to be engaged. Payment was to be made to such Orderlys as per the terms laid in the circular by the Board directly by preparing salary bill on certificate of satisfactory discharge of work by them. It was also laid by the Board, the place where such Orderlys were to discharge their assigned duties, viz. at the residence of officers of the Board, for whom it was undertaken to provide with one/two Orderlys. Significantly the payment of salary on satisfactory discharge of service and extention or renewal of appointment for each quarter on satisfactory discharge of duties by the Orderlys at a place for which they were to discharge their duties, to the satisfaction of officer in whose subordination he is to work betrays the control assigning that was exercisable by the Board on the appointment, place of working and payment and continued employment of such Orderlys. Stipulation of extension of employment on satisfactory discharge of duties, and ultimately regularisation on completion of two years such service, not only speaks about probationary nature of employment by the Board, but inheres right to remove such workman. In fact it is admitted case of the respondents that services of petitioner were terminated only as per the instruction of the Board. Para 9 of the reply to claim referred and reproduced above. (52). In fact it is admitted case of the respondents that services of petitioner were terminated only as per the instruction of the Board. Para 9 of the reply to claim referred and reproduced above. (52). Not only this a very significant condition of this employment was making them eligible for absorption as regular employee of the Board on two years satisfactory working as Orderlys at residence of concerned officer/officers. If the employment of Orderlies were not as a result of employer-employee relations between the Board and they Orderly, albeit on temporary basis (more akin to a probation period of two years satisfactory conduct, on completion of which, a person may be confirmed in service), the concept of making them eligible for consideration for absorption on regular establishment of the Board, would not have found place in the scheme at all. (53). The whole scheme betrays that the employment of the Orderlies was under the terms and conditions laid by the Board for appointment of Orderlies to work at the residence of its officers, for remuneration to be paid by the Board directly, in the first instance temporary for three months, which was to be renewed quarterly until the completing two years of satisfactory working. At the end of two years of satisfactory working, to the absorbed as regular employee on certificate of satisfactory working during that period. The periodical renewal of quarterly employment on satisfactory functioning and ultimately at the close of two years satisfactory work, to be evalued at the end of each quarter. This condition inheres in it right of the Board to refuse extension. His emoluments were to be paid at all times by the Board, through the procedure of preparing the salary bill and disbursing the payment by withdrawing authority. For convenient of administrator and looking to purpose and nature of work for which such Orderlys were to be appointed by the Officer at whose residence the Board has undertaken to provide an Orderly, was authorised to appoint a suitable person. However, the terms and conditions including duration of employment was fixed by the Board and not by such Officer. This only reflects that Officer concern was only designated as an appointing authority by the Board. On unsatisfactory working the services of such Orderlies were liable to be terminated. However, the terms and conditions including duration of employment was fixed by the Board and not by such Officer. This only reflects that Officer concern was only designated as an appointing authority by the Board. On unsatisfactory working the services of such Orderlies were liable to be terminated. In fact it is admitted by the respondents that services of the petitioner were terminated only because of the instruction of the Board. Attention may be invited to Para 9 of the reply to claim before the Labour Court. Extension of this right of termination an admitted fact, establishes the necessary amount of control and supervision exercisable by the Board, to establish master-servant relationship through an engagement of a persons services on hire subject to control and supervision of the engager of such person as an employer on principle laid by Mathew J. in Silver Jubilee Tailoring House case and Shining Tailors case referred to above. (54). These conditions establish a firm link of master and employee between the Board and the Orderly, who has been engaged to the services for reward. If employer-employee relationship was not intended to be established under the control of the Board, and only payment of an allowance for a domestic help at residence was envisaged, laying al such terms and conditions by the Board, does not make any sense. Because in that event, Board would have no concern with it, nor will make it consider giving any appointment to such employees on regular basis, on completion of any amount of service, if such Orderlys were not to be treated in the employment of the Board during his engagement at residence of its Officers. (55). Because in that event, Board would have no concern with it, nor will make it consider giving any appointment to such employees on regular basis, on completion of any amount of service, if such Orderlys were not to be treated in the employment of the Board during his engagement at residence of its Officers. (55). We therefore, hold that appointment of Orderlies by said Officers at their residence at the instance of the Board on the conditions spelt out by the Board in its circular dated 6.01.1979 for a period of three months, in the first instance and to be extended quarterly, and further stipulation of their absorption in regular cadre only suggests that employment on behalf of Board though not of regular nature but for two years at fixed remuneration in the stipulated period with stipulation of evaluation of work every quarterly and ultimately to be regularised on completion of two years service and if his work is found unsatisfactory liable to be terminated, resulted; in master and employee relationship between the Board and the Orderlys appointed by the Officer concerned as an appointing authority authorised by the Board, on a consolidated pay of Rs. 240/- p.m., under the control of the Board. (56). It is further relevant to find that entire financial burden of engaging Orderlys to work at the residences of its Officers was of the Board, inasmuch as not only the emoluments were fixed by the Board in its order dt. 6.1.79 but emoluments were also directly payment by the treasury of the Board to the persons so employed as Orderlys at the residence of the respective Officers. (57). In this connection attention of the Court has been invited to the decision of the Supreme Court in Indian Overseas Bank vs. I.O.B. Staff Canteen Workers Union & Anr. (16). It was a case where at the Central Office of Indian Overseas Bank (IOB) at Madras, canteen facilities were to be provided to the staff in the Banks premises. Initially, the contractor engaged by the management of the Bank. But subsequently on the representation of the employees union, the IOB agreed for floating a co-operative society to run the canteen. The Central Government agreed to provide all infrastructural facilities other than the cost of fuel subject to certain limits of the furniture, utensils, electricity. Initially, the contractor engaged by the management of the Bank. But subsequently on the representation of the employees union, the IOB agreed for floating a co-operative society to run the canteen. The Central Government agreed to provide all infrastructural facilities other than the cost of fuel subject to certain limits of the furniture, utensils, electricity. All the promoters of the co-operative canteen were actually the serving members of the staff of the Bank. The staffs required for canteen were employed by the promoters who were administering the canteen. The canteen was being run only with the funds provided exclusively by the Central Office and the amounts realised from day-do-day receipts. Some of the canteen workers services were terminated and an industrial dispute was raised against their termination contending IOB to be employer of the canteen employees. A question, as has been raised before us, was also raised before the Supreme Court that workers employed at the canteen were employed by the co-operative society and were not employed by the Bank, therefore no employer-employee relationship existed between the Bank and the employees working at the canteen. (58). The Court in the totality of circumstances took the view the nature and extent of assistance, financial and otherwise in kind provided would go to establish inevitably that the Bank has unmistakably and for reasons obvious always undertaken the obligation to provide the canteen services, though there may not be any statutory obligation and it will be too late to contend that the provision of canteen had not become a part of the service conditions of the employees. (59). The Court also observed that the materials placed on record also highlight the position that the Bank was always conscious of the fact that provision and availing of canteen services by the staff are not only essential but would help to contribute to the efficiency of service by the employees of the Bank. The cumulative effect of all such facts provided sufficient basis for recording of the findings by the Tribunal as well as the Division Bench of the High Court and by the Supreme Court to sustain the claim of the worker as an employee of the Bank. (60). The position of the present case is no different. The cumulative effect of all such facts provided sufficient basis for recording of the findings by the Tribunal as well as the Division Bench of the High Court and by the Supreme Court to sustain the claim of the worker as an employee of the Bank. (60). The position of the present case is no different. Here the petitioner employed by the authority of the Board for the purpose of extending facility of additional Orderly to its officers which became part of the service conditions of such Officers of the Board. The office orders have been issued for appointment quarterly from time to time. The total financial burden of employing the Orderly was on the Board and remuneration was directly payable by the Board to such Orderlys working at the residence of respective Officers. By dint of making the service of Orderly liable to be continued at the close of each quarter on satisfactory conduct of the incumbent and ultimately to be considered for regular absorption at the end of the two years service on aforesaid conditions, shows sufficient amount of control exercisable by the Board on discharge of their functions. (61). Merely because the terms and conditions are found to be different from regular employee, it cannot be said that their employment was not for and no behalf of Board. There is no escape from the conclusion that in the present case relationship of employer and employee between the Board and the petitioner came into existence when he was appointed as an Orderly in terms of the scheme envisaged under Boards resolution dt. 29.04.1979, by the Executive Engineer and continued by subsequent orders. It makes no difference whether a person is appointed on regular basis or no casual, temporary adhoc or probation basis. In any event master and servant relationship comes into existence. (62). This conclusion in further fortified with later resolution by the Board before services of the petitioner were terminated, resolution dated 9.5.89 (Annexure-R4) reads as under: RAJASTHAN STATE ELECTRICITY BOARD No. RSEB/Rules/F/57(6)D.31 Jaipur Dt. 9.5.89 The Board in its 86 meeting held on 29.04.1989 revised the existing scheme of Orderlies introduced by the Board vide order No. RSEB/Rules/F57(6)/D.44 dt. 6.1.79 and decided that: 1. The order No. RSEB/Rules/F.57(6)/D.44 dt. 6.1.79 is hereby withdrawn with immediate effect thereby discontinuing the existing scheme of engagement of Orderlies by Boards Officers. 9.5.89 The Board in its 86 meeting held on 29.04.1989 revised the existing scheme of Orderlies introduced by the Board vide order No. RSEB/Rules/F57(6)/D.44 dt. 6.1.79 and decided that: 1. The order No. RSEB/Rules/F.57(6)/D.44 dt. 6.1.79 is hereby withdrawn with immediate effect thereby discontinuing the existing scheme of engagement of Orderlies by Boards Officers. Henceforth, no new appointment of Orderlies in pursuance to the aforesaid scheme will be made at any level. 2. The services of those Orderlies who are at present working with the officers on the date of issue of this order would be dispursed with immediately on the issue of this order except of those who are covered by clause (3) below. 3. For those Orderlies who have completed one years of continuous services or more on the date of the issue of this order and still continuing with the officer, the existing scheme would remain operative till the required action is taken as per the instructions/orders being issued separately. 4. Henceforth, the reimbursement of the amount spent by the officers for maintaining office/official decorum at their residence according to their official status by utilising the services of person/persons will be admissible on submission of prescribed certificate and subject to the financial limits as under:- (i) Superintending Engineer and equivalent and above (For utilising the services of one/or more persons) Rs. 500/- p.m. (ii) Assistant Engineer and Executive Engineer and equivalent (For utilising the services of a person Rs. 350/-p.m. 5. The Members of the Board who are at present allowed a regular class IV employee to work as Orderly for attending the telephone, etc. at their residence may also have the option of keeping a class VI employee of claiming reimbursement under the new scheme at the rate allowed to officers of the rank of Superintending Engineer and above. Detailed administrative instructions/guidelines to implement this scheme of reimbursement are being issued separately. This order would come into force with immediate effect. Sd/- (Rajendra Jain) Secretary (63). It refers to the Board resolution dated 29.04.1989 by which the Board has decided to withdraw with immediate effect and discontinue the existing scheme of engagement of Orderlies by Boards Officers. Detailed administrative instructions/guidelines to implement this scheme of reimbursement are being issued separately. This order would come into force with immediate effect. Sd/- (Rajendra Jain) Secretary (63). It refers to the Board resolution dated 29.04.1989 by which the Board has decided to withdraw with immediate effect and discontinue the existing scheme of engagement of Orderlies by Boards Officers. It was resolved that the Orderlys who are at present working with the officers on the date of issue of this order would be dispursed with immediately on the issue of said order except class of workers saved from the operation of new scheme. The class of workers, excluded from the ignonimity of termination of their services, were those, who had become eligible for regularisation. Instead the Board decided to give fixed allowance to the rank of Superintending Engineer and above for utilising the services of one or more persons at the rate of Rs. 500/- p.m. and allowance of Rs. 350/- p.m. was envisaged in the case on Assistant Engineers and Executive Engineers and equivalent for utilising the services of one person. Thus, the term of providing with an Orderly at residence of such officers by the Board, was substituted by scheme of reimbursing a fixed sum to the respective Officer, on certifying that such allowance has been utilised by him at a fixed rate. By this resolution the circular dated 6.1.79 was withdrawn to which we have referred to above. This circular conclusively establishes that while under existing Scheme of 6.1.79 the Board provided at the residence of the officers, services of an Orderly, who was to be an employee of the Board, initially temporary but to be made regular on completion of two years satisfactory employment. Had it been not so, there was no reason to exclude these persons who as such temporary employees had become eligible to be regularised from the purview of sword of terminating the services of all the existing Orderlys on the withdrawal of the scheme under circular dt. 6.1.79. If there was no master-employee relationship existed between the Board and the Orderlies employed under scheme of 6.1.79, mere change in reimbursable allowance would not require termination of services of existing Orderlys, nor any amount of service, not under the Board, could give right to such workman of officer to claim regularisation of service by the Board. 6.1.79. If there was no master-employee relationship existed between the Board and the Orderlies employed under scheme of 6.1.79, mere change in reimbursable allowance would not require termination of services of existing Orderlys, nor any amount of service, not under the Board, could give right to such workman of officer to claim regularisation of service by the Board. It also does not stand to reason that if no master and servant relation was intended to be established under control of the Board between the Board and the Orderly employed under scheme dt. 6.1.79, why the Board, would at all care to lay down the source of recruitment, limit of emoluments, procedure of payment through salary bill, reporting of satisfactory conduct of the Orderly to the Board, periodical renewal of service and would undertake to regularise services of such Orderlys. Regularisation of services of any person is envisaged only when he is in employment of a person, though not as a regular employer, but in other capacity. (64). Coming to the decision of the Division Bench of this Court in Ashok Lals case, it was a case in which writ petition has been filed by the petitioner seeking prayer for regularisation of his services and to increase his salary from Rs. 240/- p.m. to regular pay-scale. (65). In the order of Division Bench, we find no reference to circular dt. 6.01.1979 nor it is very clear what has been contended before the Court, about the nature of employment given at the first instance. It appears that in the light of submissions made before the Court, the Court took the view that the petitioner was engaged as a domestic servant vide order dated 15.6.82 by the Assistant Engineer, there was no master and servants relationship between the Board and the petitioner and on this finding the Court rejected the prayer for regularisation of services by the Board. In the absence of any reason, it can only be said that the Court found as a fact in that case, on the basis of contention before it that no master and servant relationship was established. However, it cannot be read as a ratio laying down any preposition of law, to be applied in all cases of appointment of Orderlys at the residence of Officers irrespective of the material that comes before the Court. However, it cannot be read as a ratio laying down any preposition of law, to be applied in all cases of appointment of Orderlys at the residence of Officers irrespective of the material that comes before the Court. It is also well established that in each case the question, which is a question of fact, has to be decided on the basis of material before it. (66). Further, as discussed above having considered the circular dt. 6.1.79 and admitted facts we have come to conclusion that appointment was made by the Board itself under the terms laid by it. No other view is possible to take than that relationship of master and employee was established between the petitioner and the Board when the was appointed as Orderly by the concerned Officer as an appointing authority so authorised under order dt. 6.1.79 by the Board in this behalf, for fixed remuneration payable by the Board for services to be rendered by such person at the place fixed by the Board viz. the residence of the Officer, who too is an employee of the Board, and providing such services of supportive staff at his residence is part of terms and conditions of employment of such officer. Such appointment of a person to work at the residence of officers employed in the industry, as part of terms and conditions of their employment, which is incidental to the purpose of industry, it is well settled is employment in relation to industry run by the employers. Relationship of employee and employer would come into existence, there being a functional nexus between the employment of the respondent as workman for discharging work for reward at the residence of Officers employed by the Board as per orders of the Board itself. (67). Another Division Bench judgment relied on by the learned counsel for the respondent is in D.B. Civil Special Appeal (Writ) No. 523/91 decided on 8.05.1992. This was a case in which reference to circular dated 6.1.79 has been made. However, the conclusion reached by the Division Bench that no employer- employee relationship, by intending that payment of fixed Rs. 240/- p.m. was only by way of reimbursement of expenses to the officer, with respect, cannot be accepted as correctly reached. (68). As discussed above, the payment of Rs. However, the conclusion reached by the Division Bench that no employer- employee relationship, by intending that payment of fixed Rs. 240/- p.m. was only by way of reimbursement of expenses to the officer, with respect, cannot be accepted as correctly reached. (68). As discussed above, the payment of Rs. 240/- was not to be made to the officers by way of allowance which has been erroneously assumed to be so by the Division Bench for finding its conclusion. As basic assumptions on which the judgment proceeded was erroneous, the said judgment with respect, cannot be said to be laying down the law correctly on the true interpretation of circular dated 6.1.79 and the same is overruled. (69). As a result, earlier decision of Division Bench in D.B. Civil Special Appeal (Writ) No. 523/91 decided on 8.05.1992 and in D.B. Civil Special Appeal No. 559/91 decided on 28.01.1992 are overruled and we hold that on the true interpretation of terms and conditions envisaged in the circular dated 6.1.79 on this engagement since 1985, relationship between the petitioner and the Board as the servant and master was established. The Labour Court was patently in error in holding that no master and servants relationship existed between the claimant on the basis of Ashok Lals case. (70). The special appeal is allowed and the order of the learned Single Judge as well as the Labour Court is set aside and the matter shall now be before the Labour Court for deciding the industrial dispute referred to it in accordance with law on merits. (71). Before parting with this case, we may observe that we have noticed that in one of the appointment order dt. 8.01.1988, the mention of age of the petitioner shows that he was born in 1969 and was 18 yrs. of age. However, earlier appointment letters showing the age of the petitioner on such employment are not before us. It shall be open for the Labour Court to consider the correctness of such fact after affording opportunity to the petitioner as well as respondents to explain the same and also to consider the effect of such engagement, if found to be under age, on the reliefs claimed by the petitioner, in accordance with law, while considering the question of the period of continuous employment and the relief for regularisation on that basis. (72). There shall be no order as to costs.