Indian Banks Association Vs. Workmen of Syndicate Bank and ors. - Court Judgment

Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - at best it leaves an option with the central government to take action under section 7b if, in its opinion, the questions involved are of such nature that industries situated in more than one state are interested or are likely to be affected by the dispute. 8. the next question of the reference being bad as in the guise of a reference the respondents were claiming modification of the terms of the agreement is also misconceived. it is well known, as a part of the jurisdpurdence applicable to the industrial law, that industrial tribunals are vested with the jurisdiction of also modifying the contract of service and in the process may entitle the workmen to better rights and facilities. the agreement did not prevent the deposit collectors to seek other employment of a different kind and that in fact, any such deposit collectors are employed otherwise, that there is no fixed time for the deposit collectors either to devote to their work or for their attendance in the bank, so that they, could come to the bank at any time to make the deposit and could make the collection at any time of the day, there is no qualification prescribed for working as agent and there is no age limit for a person to be engaged as a deposit collector and as a matter of fact many of them are well advanced in age beyond the retirement age of the regular staff of the bank (the age of w. 11. before the submission whether the deposit collectors are workmen or not be taken up, the question, even if the deposit collectors are workmen, whether they are entitled to be absorbed as regular staff of the banks in a clerical cadre and are entitled to pay scales, allowances and other service conditions as well, may be examined. a reading of the substantive provision as well as the exception unmistakably shows the intention of the parliament that the person to whom a commission is payable as remuneration cannot be a regular staff of the bank but that he may be employed on contract. a deposit collector, like the respondent, would be one who is squarely covered by the exception, i. the presiding officer, industrial tribunal (central) madras and another (1990-i-llj-50), where conclusion had been reached that the deposit collectors satisfied the tests laid down by various decisions of the supreme court of being workmen of the banks and that the provisions of the banking regulation act, 1949 would not be a bar. the court, however, administered the caution saying :we would however like to add that even if the question raised is one of fact and law, we would not readily interfere with the conclusion of the tribunal unless we are satisfied that such conclusion is manifestly or obviously erroneous'.in the latter case, even though the principle for decision of the question was not specifically mentioned, the court held the conclusion of the tribunal of the transport engineer to be a workman to be a misdirection to itself. the agarias are free to go as they like provided they make satisfactory arrangements for manufacture of salt. the tribunal had reached the conclusion of the agariis being workmen taking into account the fact of the clauses in the agreement under which they bound themselves to work as per the advice and instructions of the officers appointed by the company in connection with the drawing of brine or with the process of salt production in the pattas and that if there was any default, negligence or slackness in execution on their part, or if they did not behave well in any way, the managing agent of the company can annul the agreement and can take possession of the patta, brine, well etc. , as a result of which they would not be entitled to claim any sort of consideration for any half processed salt lying in their patta or in respect of any expense incurred or labour employed in preparing kiwa patta, well bamboo lining etc. the presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contracts is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that the real employer is the management, not the immediate contractor. myriad devices, half-hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like, may be resorted to when labour legislation casts welfare obligations on the real employer, based on articles 38, 39, 42, 43 and 43a of the constitution. 26. the argument has been resisted by sri narasimham by attempting to contend, feebly though, that to be a workman, a person need not necessarily be confined to the four categories as contemplated under section 2(s) of the industrial disputes act and that the thrust is to encompass all employees as such, the submission was advanced placing reliance on decision in s. he has also to do some clerical work like filling up relevant forms, ledgers, pass books etc. it reached the finding, on the basis of such factual considerations, that it is clear that these deposit collectors have duties which are manual as well as clerical and that many of them perform duties similar to the duties of cashier in the bank. we do not think that this argument halts the conclusion of their being treated as workmen since it is by now well settled that even jobrated and piece-rated workers can be workmen as was pointed out in s. we would hence uphold and apply the decision of the tribunal for payment of full back wages and incentive commission as well as conveyance go allowance and gratuity to the deposit collectors as workmen.lingaraja rath, j. 1. a common award of the industrial tribunal in several i.ds., where the reference was the one and the same, is assailed by the petitioner. in the reference originally 11 banks were shown in the annexure-i as parties, but sub-sequently by a communication of the government of india, ministry of labour and rehabilitation on april 21, 1983, 37 more banks were added as parties. even though the present petitioner was not one of the parties either in annexure-i or annexure-ii, yet we find from the award that it had been allowed to be represented in the dispute proceedings through counsel, had examined witnesses and was treated as a party to the dispute. hence, even though the petitioner was directly not impleaded as a party to the award yet since it was a de facto party to the acceptance of all concerned we decide to take up this de facto party to the acceptance of all concerned we decide to take up this petition, at the instance of the petitioner, as being properly presented. 2. the moot question that arose for consideration before the tribunal was whether deposit collectors, variously called by different banks as tiny deposit collectors, pigmy deposit collectors, etc. are entitled to be absorbed in the regular service of the banks in the clerical cadre and become entitled to the benefits thereof, or if they are not found to be so entitled, what other reliefs are due to them. it is on agreement on all hands that these deposit collectors in the different banks have more or less the similar terms of engagement. a sample agreement has been placed before us, entered into on august 1, 1980 by one deposit collector, mr. umesh r. pai with the syndicate bank wherein the terms reveal of his being appointed as an adarsh agent for the adarsh deposts, which is also described as pigmy deposit. for the deposits made by him in the bank, he is entitled to a commission under the terms. he is to deposit in the bank every day's collection on the next working day with a statement of account and the counter foils signed by the depositors. he has to make endeavours for enhancement of collections and furnish deposit security of rs. 500/- for faithful discharge of his duties and also to furnish every month, 10% of the commission paid by the principal to him or such other further security as may be desired by the principal from time to time. if he is unable to make collections for the reason of his absence, he has to make necessary alternate arrangements for collection of the deposits at his risk and responsibility. if the agent fails to make any arrangement the bank is at liberty to make alternate arrangements for the collection of the deposits during the period of the inability of the agent, to collect the same without reference to him and the security held by the bank is liable to be applied to recoup any loss or damage caused at the instance of the agent. the agent is liable to summary termination of the agency or to such other action that the bank may in its discretion decides upon. besides he is also liable for such damages or loss as the bank may sustain by reason of breach of the agreement. the agreement is terminable at any time without notice to the agent. in adjudication of the dispute, large number of documents were exhibited on either side besides examination of 47 witnesses on the side of the deposit collectors and 33 witnesses by the management of the different banks. the tribunal, on analysis of the evidence both oral and documentary and referring to the tests available from the decisions of the apex court and other courts, held the deposit collectors as workmen and decided the relief available to them as - (1) that all the deposit collectors and agents, who were below the age of 45 years on october 3, 1980 (the date of the first reference of the id), shall be considered for regular absorption for the post of clerks and cashiers if they are matriculates and above including qualified graduates and post graduates, and they may he taken to bank service as regular employees, if they pass the qualifying examinations conducted by the banks. those who are absorbed 5are to be treated on par with regular clerical employees of the bank; (2) those who are qualified with 8th class or below matriculation are to be considered for absorption as substaff by conducting qualifying examination; (3) the deposit collectors and agents who are above 45 years of age as on october 3, 1980 and also those who are unwilling to be absorbed in regular bank's service are to be paid the full back wage of rs. 7501/- per month linked with minimum deposit of rs. 7,500/- per month and should also be paid incentive remuneration of 2% for collection over and above rs. 7,500/- per month; (4) they should also be paid uniform conveyance allowance of rs. 5o/- per month for deposits of less than rs. 10,000/- and rs. 100/- per month for deposits of more than rs. 30,000/- per month and should be paid gratuity of 15 days commission for each year of service rendered. 3. the enhancement, so far as the percentage of commission is concerned is from 3% to 10% so far as the collection upto rs. 7,500/- per month is concerned. it has been submitted, on 0 facts, by mr. k. srinivasa murthy learned senior counsel appearing for the petitioner, that an agent was being paid 3% commission upto the collection of rs. 20,000/- and after that at the rate of 3.5%/ 4. in assailing the award mr. k. srinivasa murthy urges the question that the reference itself was had in law as such a dispute could be referred only to a national tribunal under section 7b of the industrial disputes act and not to a tribunal under section 7a, that the terms of the reference is a pseudo attempt by the deposit collectors to change the terms of their agreement, that the deposit collectors cannot be characterised as workmen, that as they are persons who are paid commission for their work there is bar of regularisation of their services in the bank as stipulated in section 10(b)(ii) of the banking regulation act, 1949 and that the reliefs allowed by the tribunal to the deposit collectors are highly irrational not only in making benefits available to them three times higher but also that it would impose a heavy financial burden upon the banks. 5. so far as the first submission is concerned the argument proceeds in drawing distinction between section 7a and 7b of the industrial disputes act. the referring of disputes, according to the submission, under see. 7a to an industrial tribunal are of those arising within the state only whereas the disputes which are exclusively referrable to the national tribunal under section 7b are those which involve questions of national importance or are of such nature that industrial establishments situated in more than one state are likely to be interested in, or affected by, such disputes. it is the argument that since the question whether the deposit collectors are workmen of the banks and are entitled to regularisation in service or other benefits is one not confined to the state of andhra pradesh but is one common to all states of the country, the question is liable to be resolved only by a national tribunal which under the provisions of section 7b of the industrial disputes act is to be presided over by a sitting or retired judge of a high court, whereas a dispute under section 7a of the industrial disputes act is referrable to a tribunal who though may be a present or past judge of the high court may also be a district judge or additional district judge of more than three years standing. usually the industrial tribunals under section 7a are manned by district judges or additional district judges. the dispute being one which is referrable only to a national tribunal, the reference was incompetent. 6. the contention was rejected by the tribunal on a joint reading of section 7a as it stood after the amendment by act no. 46 of 1982, and section 7b read with third proviso to section 10(1)(d) which was also added by the same amendment. 7. on a plain reading, section 7b does not cast any obligation, being not in mandatory form, directing the central government to refer a dispute which spreads over different states compulsorily to a national tribunal. at best it leaves an option with the central government to take action under section 7b if, in its opinion, the questions involved are of such nature that industries situated in more than one state are interested or are likely to be affected by the dispute. the provision is an enabling one only. this becomes more apparent in view of the amendment to sections 7a and 10(1)(d) of the industrial disputes act which came into effect on august 21, 1984. to sub-sec (1) of section 7a the words 'and for performing such other functions as may be assigned to them under this act' were added by act 46 of 1982 with effect from august 21, 1989 (sic. 1984) to bring in the effect that the appropriate government may refer to an industrial tribunal not only matters covered under second and third schedules but also call upon them to perform other functions that may he assigned to them under the act. coupled with this the third proviso was added to 9 section 10(1)(d) of the industrial disputes act, which reads as follows :- 'provided also that where the dispute in relation to which the central government, is the appropriate government, it shall be competent for that government to refer the dispute to a labour court, or an industrial tribunal, as the case may be, constituted by the state government.' thus a power is left under the proviso to the central government, where it is the appropriate government, to refer a dispute to the industrial tribunal constituted by the state government. there is, hence, intrinsically no lack of power for the central government to refer a dispute, which is either of national importance or covers more than one state, to the tribunal in the state. to answer the question that the amendment was not retrospective and would not cover disputes which had been referred prior to it, the tribunal rightly held that after the dispute had been referred on october 3, 1980, i.d. no. 108/84 was referred to the tribunal by letter dated december 14, 1984 by which time act no. 46/1982 had already been passed. in that view of the matter, this submission of mr. k. srinivasa murthy must be rejected. 8. the next question of the reference being bad as in the guise of a reference the respondents were claiming modification of the terms of the agreement is also misconceived. it is well known, as a part of the jurisdpurdence applicable to the industrial law, that industrial tribunals are vested with the jurisdiction of also modifying the contract of service and in the process may entitle the workmen to better rights and facilities. the question was considered by the apex court in co-operative central bank limited v. additional industrial tribunal, a.p. : (1969)iillj698sc with the observation : 'the jurisdiction which is granted to industrial tribunal by the industrial disputes act is not the jurisdiction of merely administering the existing laws and enforcing existing contracts. industrial tribunals have the right even to vary contracts of service between the employer and the employees which jurisdiction can never he exercised by a civil court or a registrar acting under the co-operative societies act, so that the circumstance that, in granting relief on issue no. 1, the tribunal will have to vary the special bye-laws framed by the co-operative bank does not lead to the inference that the tribunal would be incompetent to grant the reliefs sought in this reference. in fact, the reliefs could only be granted by the industrial tribunal and could not fall within the scope of the powers of the registrar dealing with a dispute under section 61 of the act.' 9. in advancing the argument in assailing the award, mr. srinivasa murthy has urged that the deposit collectors should not he treated as workmen since their engagement was purely as, matter of agreement between the parties, the agreement was for a specific period which in almost all cases was for one year though in some cases it was for five years; the agreement did not prevent the deposit collectors to seek other employment of a different kind and that in fact, any such deposit collectors are employed otherwise, that there is no fixed time for the deposit collectors either to devote to their work or for their attendance in the bank, so that they, could come to the bank at any time to make the deposit and could make the collection at any time of the day, there is no qualification prescribed for working as agent and there is no age limit for a person to be engaged as a deposit collector and as a matter of fact many of them are well advanced in age beyond the retirement age of the regular staff of the bank (the age of w.w. 2 was 69 years in 1985). there is no disciplinary control over the agents, there is no supervision and control of the work of the deposit collectors nor there is any control of the manner of their doing the work. 10. refusing the contentions of the banks, mr. narasimham learned counsel appearing for the deposit collectors urges the incidence of the engagement that entitled the deposit collectors to be treated as workmen. it is pointed out that the deposit mobilisation by the deposit collectors is for the purpose of the business of the bank, their daily attendance is required in the bank under the agreement itself, their discharge of job is both clerical and manual apart from the manual work of making collection of the deposits, the deposit collectors are also required to fill up all the necessary forms including ledgers in the bank, control is exercised by the banks' officials regarding the correctness and guanines of the filled up forms and ledger entries, alternative arrangement is to be made by the collector during his absence or incapability otherwise to collect the deposits, on the permission of the bank, the commission paid to the depositors is actually a form of remuneration, and that the deposit collectors of one bank cannot make collection on behalf of any other bank. 11. before the submission whether the deposit collectors are workmen or not be taken up, the question, even if the deposit collectors are workmen, whether they are entitled to be absorbed as regular staff of the banks in a clerical cadre and are entitled to pay scales, allowances and other service conditions as well, may be examined. even though in the award such benefit has been allowed to them in paragraph 69 of it, so far as those deposit collectors and agents who are below the age of 45 years as on october 3, 1980 (the date of first reference of the i.d.) yet mr. narasimham, learned counsel appearing for the deposit collectors fairly concedes that such relief is not available to be granted. in the reference itself the question referred was not whether the deposit collectors are to he allowed the facility to be absorbed as regular staff, but only that whether they are entitled to the pay scales, allowances etc. as are available to regular clerical employees. 12. obviously the question to be determined was whether the deposit collectors, by the very engagement, are regular staff of the bank. the award of the tribunal instead purported to frame a scheme for the regular absorption of the deposit collectors as clerks and cashiers of the bank. under the scheme, the deposit collectors and agents below the age of 45 years as on october 3, 1980 are to be considered for regular absorption in the posts of clerks and cashiers if they are matriculates and above, including qualified graduates and post graduates. they are to be taken to bank service as regular employees if they pass the qualifying examinations conducted by the banks and are to be treated on par with regular clerical employees of the bank. those who are qualified as 8th class and below matriculation are to be considered for absorption as sub-staff by conducting qualifying examinations. 13. that the deposit collectors are not regular staff of the banks is itself the admission of the deposit collectors themselves. many of them examined as witnesses stated, as is available from paragraphs 51, 61 and 65 of the award, that they had joined as deposit collectors with the hope that they would be ultimately absorbed as regular staff. the statement is an admission that when they joined they had the clear idea that they were not regular staff but eventually may become so. mr. k. srinivasa murthy has placed reliance on section 10(1)(b)(ii) of the banking regulation act, 1949 to contend that the deposit collectors cannot either be employed or continued to be employed as regular staff since their remuneration is in the form of a commission. mr. narasimham has contested the stand placing reliance on sub-para (b) to sub-section (1), which is an exception to the substantive provision and is to the effect that these payment, inter alia, of any commission to any person employed by the banking company under a contract otherwise than as a regular member of the staff of the bank is permissible. for appreciation of the submissions advanced, the provisions of section 10(1)(b)(ii) as is relevant of and sub-paragraph of the proviso needs extraction. they read : '10. prohibition of employment of managing agents and restrictions on certain forms of employment - (1) no banking company - (a) xxx xxx xxx xxx xxx xxx x (b) shall employ or continue the employment of any person - (i) xxx xxx xxxx (ii) whose remuneration or part of whose remuneration takes the form of commission or of a share in the profits of the company'. provided that nothing continued (sic. contained) in the sub-clause shall apply to the payment by a banking company of - '(a) xxxxx xxx xxx (b) any commission to any broker (including guarantee broker), cashier-contractor, clearing and forwarding agent, auctioneer or any other person, employed by the banking company under a contract otherwise than as a regular member of the staff of the company; or'. 14. there is no dispute that the payment to the deposit collectors is by way of commission on the collections made by them. there is also no dispute that the commission is the remuneration to them. the substantive provision of section 10(1)(b) prohibits employment or continuance of employment of any person whose remuneration or part of it takes the form of a commission. the proviso permits the payment of commission, as remuneration provided the payment is made not to a regular member of the staff but to a person who is employed under a contract otherwise than a regular member of the staff. a reading of the substantive provision as well as the exception unmistakably shows the intention of the parliament that the person to whom a commission is payable as remuneration cannot be a regular staff of the bank but that he may be employed on contract. employment on the basis of contract is, under the scheme of the section, treated on a different footing than a person who is a regular staff of the bank. a deposit collector, like the respondent, would be one who is squarely covered by the exception, i.e., the proviso, since his remuneration totally consists of commission for which reason he could not be a regular staff. if he would have been a regular staff from the date of his engagement as a deposit collector, he could not have been paid remuneration by way of commission. such engagement of him, and of the deposit collectors who were admittedly engaged after the 1949 act, would have been against the provision of law and would have been null and void. 15. a decision of the madras high court in writ appeal nos. 222, 545 and 546 of 1994 decided on september 7, 1994 has been brought to our notice to contend that a contrary view has been taken. we are afraid, this submission is not correct. their lordships of the madras high court referred to an earlier bench decision of the same court in the management indian bank v. the presiding officer, industrial tribunal (central) madras and another (1990-i-llj-50), where conclusion had been reached that the deposit collectors satisfied the tests laid down by various decisions of the supreme court of being workmen of the banks and that the provisions of the banking regulation act, 1949 would not be a bar. in the latter unreported decision, the question whether regular employment of persons on payment of commission was not specifically dealt with and with only a reference to the proviso, the question was disposed of. 16. a distinction has to be drawn between employment as regular staff of the bank and as workmen only without being regular staff. the concept of a person being a workman but not being a regular staff is conceivable. in different decisions of the supreme court, to which we shall presently refer, piece rated workers and job workers have been found to be workmen, though they may not be regular staff. what is prohibited under section 10(1)(b) of the banking regulation act, 1949 is to treat persons, who are in receipt of commission as remuneration, as regular workers. mr. narasirnham rightly concedes the respondents not to he regular staff and also not for such claim. we accordingly hold as such. 17. even so, the question yet remains whether the deposit collectors are workmen of the banks and, if so, to what relief they are entitled. that workmen are also in employment is apparent from the definition of workmen in section 2(s) of the industrial disputes act. it is the submission of mr. k. srinivasa murthy that the instances of employment of the deposit collectors show them as holding 'contract for service' instead of' contract of service' with the banks for which reason they cannot be said to be in employment of the bank but that they are independent contractors who have voluntarily taken up the job of popularising the scheme of voluntary deposits and to earn a commission therefor. it is the submission of mr. narasimham on the other hand that the various facets of the control exercised by the bank shows the respondents to be workmen and that the determination as to whether they are workmen, being a finding of fact reached by the tribunal, is not available to be varied in a writ of certiorari. contending as such, our attention has been invited to the decision in dharangadhara chemical works limited v. state of saurashtra and others, (1957-i-llj-477) (sc) wherein it has ruled that the question whether the relationship between the parties is one as between employer and employee or between master and servant is a pure question of fact which the tribunal has a jurisdiction to determine, and that the determination is not liable to be questioned in proceedings under article 226 of the constitution of india unless, at the least, it is shown to be fully unsupported by evidence. it is on the other hand argued by mr. k. srinivasa murthy placing reliance on the decision in lloyds bank v. panna lal gupta (1961-i-llj-18), and burmah shell oil storage and distribution company of india ltd., v. the burmah shell management staff association and others and vice versa, (1970-ii-llj-590) both decisions of the supreme court, that the determination of the question is a mixed question of fact and law i.e., it is a quastion of whether a proper inference has been drawn applying accepted principles. in lloyds bank case (supra), the court observed that if the inference drawn by the tribunal in regard to the status of the three workmen involved the application of certain legal decisions, that necessarily becomes a mixed question of law and fact and the respondent would not be justified in raising a preliminary objection that the appellant would not be allowed to urge against the correctness of the finding of the tribunal on such mixed question of fact and law. the court, however, administered the caution saying : 'we would however like to add that even if the question raised is one of fact and law, we would not readily interfere with the conclusion of the tribunal unless we are satisfied that such conclusion is manifestly or obviously erroneous'. in the latter case, even though the principle for decision of the question was not specifically mentioned, the court held the conclusion of the tribunal of the transport engineer to be a workman to be a misdirection to itself. the court held, from the admitted facts, the transport engineer as one would not have been held to be a workman. 18. even though in dharangadhra's case (supra), the question was held one to he one of pure fact and in lloyds bank's case (supra), as one of fact and law, yet there is necessarily no conflict between the two pronouncements and, closely analysed, both the decisions reflect the same view. in dharangadhra's case (supra) itself, their lordships observed that the finding of fact could be disturbed by a writ of certiorari if the finding was fully unsupported by evidence. this in itself was a statement of the parameters of the exercise of the writ jurisdiction under certiorari in respect of all findings reached by tribunals vested with the power of determining any fact. broadly stated, the situations which invite interference by the high court while exercising certiorari jurisdiction are that the finding is based on no evidence or that it is essentially based on extraneous considerations of facts which are not germane to the issue and thirdly, where the finding reached is such which cannot be reached by any reasonable process of inference. so far as the third one is concerned it would include in itself the question of perverse consideration, that is, where the conclusion is one which is manifestly contrary to accepted legal principles and has been reached either in ignorance or in avoidance of the same. in lloyds bank's case (supra) their lordships were reiterating the same thing while saying that it is a mixed question of law and fact, but that the court would not interfere with the conclusion of the tribunal unless it is manifestly erroneous. even after dharangadhara's case (supra) several decisions of the apex court bearing on the question as to whether a person is to be treated as a workman or not has been handed down and in all those cases the court has gone into the question of examining the various aspects of the work discharged by the workman and has laid down the tests as to when and when not the person concerned should be treated as workman. in deciding the question, the court was obviously going into appreciation of facts. but the limit is to be drawn where such aspects have been taken into consideration and applying the tests, the conclusion has been reached by the tribunal. where such is the case, the court would not interfere merely because the conclusion is one which is different from the one which could have been reached by the court. as has been observed in lloyds bank's case (supra), the conclusion must be manifestly and obviously erroneous. 19. now what are the tests to hold a person to be a workman the question has been a vexed one and has been time to time dwelt upon by the supreme. court. in dharangadhara's case (supra) itself, the court explained the test, which is uniformly applied to make the determination'as the existence of the right of control in respect of the manner in which the work is to be done. a distinction is also drawn between 'contract for service' and 'contract of service', the distinction between the two being that in one case the master can order or require what is to be done while in the other case he can not only order or require what is to be done, but also how it is to be done. the second test was drawn by justice hilbery in collins v. herloford shire county council 1947 6 kb 598 at 615. though there are some divergences of opinion regarding the second test, yet the supreme court, summing up the views, held that the principle which emerged from the different authorities primafacie for determination of the relationship between the master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work, or to borrow the words of lord uthwatt at page 23 in mersey docks and harbour board v. coggins and griffith (liverpool) limited 1947-1 a.c. 1, 'the proper test is whether or not the hirer had authority to control the manner of execution of the act in question'. their lordships also explained, in the context, that the nature or extent of control which is requisite to establish relationship of employer and employee must necessarily vary from business to business and is by its very nature incapable of precise definition, and that the correct method of approach therefore would be to consider whether, having regard to the nature of work, there was due control and supervision by the employer. the question that fell for consideration in the case was whether agarias employed by the company which manufactures salt held a 'contract of service' or a 'contract for service'. extraction of salt is seasonal in character and the entire area which is taken on lease by the company is parcelled out into plots, called 'pattas' and each agaria is allotted a patta and in general the same patta is allotted to the same agaria year after who are experts in the process of preparation of salt. if the salt prepared is found to be of the right quality, the agarias are paid therefor. the salt which is rejected belongs to the company and the agarias cannot either remove the salt manufactured by them, or sell it. the account is made up at the end of the season when the advances which had been paid to them from time to time as also the amount due from them are taken into account. after ascertainment of the amounts the balance is paid by the company to the agarias. the season comes to end in june. agarias work on the pattas and they are also at liberty to engage extra labour, but it is they who pay the labourers with whom the company has nothing to do. the company also does not prescribe any hours of work for the agarias. no muster roll is maintained by them in order to control how many hours in a day or for how many days the agarias should work. there are no rules as regards leave or holidays. the agarias are free to go as they like provided they make satisfactory arrangements for manufacture of salt. the claim of the agarias as workmen was refuted by the company contending that even if all the facts found by the tribunal are accepted, those only lead to the conclusion that they were independent contractors. reliance was also placed on the facts that the pan holders were allotted work on the salt pans by oral agreement and the company has no control over them in regard to the hours and days of work. the tribunal had reached the conclusion of the agariis being workmen taking into account the fact of the clauses in the agreement under which they bound themselves to work as per the advice and instructions of the officers appointed by the company in connection with the drawing of brine or with the process of salt production in the pattas and that if there was any default, negligence or slackness in execution on their part, or if they did not behave well in any way, the managing agent of the company can annul the agreement and can take possession of the patta, brine, well etc., as a result of which they would not be entitled to claim any sort of consideration for any half processed salt lying in their patta or in respect of any expense incurred or labour employed in preparing kiwa patta, well bamboo lining etc. it was also in evidence that there was work of making enclosures, and then of sinking wells of the company. while the wells are to he sunk, the company measures the density of the brine of wells. since on consideration of such evidence the tribunal came to the conclusion of the agarias being workmen, the court declined to interfere with the finding. 20. s. j. t. house v. c. i. shops and establishment (1973-ii-llj-495) (sc) was a case of piece-rated tailors. all the workers were paid on piece-rate basis. they generally attended the shop every day if there was work. the rate of wages paid to them were not uniform and depended upon the skill of the worker and the nature of the work. when cloth was given for stitching to a worker after it had been cut, the worker was told how he should stitich. if the stitching is not as per the instructions, the work is rejected and the worker is generally asked to restitch the same. when the work was not done by a worker according to the instructions, no further work was given to the worker who could absent himself from work without information and without submitting any leave application. if there was no work, the worker was free to leave the shop before the shop closed. some of the workers were also allowed to take cloth for stitching to their homes on certain days, but this was done with the permission of the proprietor of the shop. the machines. installed in the shop belonged to the proprietor and the premises and the shop in which the work was carried on also belonged to him. the court held that the right of control and the manner of the work is not an exclusive test and that it is also to be considered as to who provides the equipment and the tools and who has the right to reject the end product. the element of control and supervision of the employer has also to be considered. the fact that the employee works for more than one employer is also not a bar for him to be treated as workman. 21. in hussainibhai v. alath factory tozhilali union (1978-ii-lli-397) (sc), justice krishna iyer examining. the question observed at p 398 : 'the true test may, with brevity, be indicated once again. where a worker or group of workers labour to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer. he has economic control over the workers' subsistence, skill and continued employment. if he, for any reason, chokes off, the worker is, virtually, laid off. the presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contracts is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that the real employer is the management, not the immediate contractor. myriad devices, half-hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like, may be resorted to when labour legislation casts welfare obligations on the real employer, based on articles 38, 39, 42, 43 and 43a of the constitution. the court must be astute to avoid the mischief and achieve the purpose of the law and not be misled by the maya of legal appearances. if the livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefit and satisfaction of an enterprise, the absence of direct relationship or the presence of dubious intermediaries or the make-believe trappings of detachment from the management cannot snap the real-life bond. the story may vary but the inference defies ingenuity. the liability cannot be shaken off'. it would be seen that the supreme court not only considered the question of production of goods but also of services, and held that he services are for the business of another, that other is in fact the employer. 22. in management of puri urban co-op. bank v. madhusudan sahu, (1992-i-llj-61) (sc) on which reliance has been placed by sri k. srinivasa murthy, was a case of appraiser of ornaments appointed by the bank. the job of the appraiser of the bank was to be available to the bank when called for performing the duties of weighing and testing of gold ornaments offered to be pledged in the bank to secure loans. his commission was stipulated to be 0.25 ps. for rs. 100/- of loan, but in no case his remuneration was to be less than rs. 2/- per appraisal. besides the commission/wages the appraiser could claim no other sum for his service. his services were terminable at any time. though the appraiser could be directed by the bank to appraise quality, purity and value of the ornaments either for pledging, but the manner in which he shall do it could not he directed by the bank. he was responsible and accountable for the loss that the bank might suffer due to wrong valuation done by him. the court held that there was a fair element of freedom, though coupled widi responsibility, in the manner in which the appraiser could do his work, and that he was not 'employed' as such, so as to establish a master and servant relationship. the factors which were taken into consideration in the judgment were : (1) that the control exercised by the bank did not relate to the control of manner of doing the work, (2) the bank was covered by an indemnity bond for all acts and omissions of the appraiser and for him to be accountable for the loss sustained by the bank on account of under valuation of the gold pledged with it, and (3) there were also other appraisers and it was not obligatory for the bank to allot work to a particular appraiser and that in no cases, for not assigning any work, he could ask for any idling wages. for these factors, the court held that even though the appraiser had certain responsibility, yet he was not in employment of the bank and that he was holding only a 'contract for service'. 23. mr. k. srinivasa murthy has strenuously urged the two fold submission that tiny depositors are akin to sales promotion canvassers of commercial organisations who have been held by the decisions of the apex court in may & baker (india) ltd., v. their workmen (1961-ii-llj-94) and b. s. o. s. & d. co. v. management staff assocn, (1970-i-llj-363) to be not workmen and that so far as such depositors are concerned, the decisions of the punjab and harayana high court and kerala high court have held them to be not workmen. while referring to the unreported decisions of the two high courts, mr. k. srinivasa murthy also distinguishes the decision of the madras high court in writ appeals 222, 545 and 546 of 1996 decided on september 7, 1994 referred earlier submitting the case not to have been correctly decided as also the decision in (1990-i-llj-50) (supra) which was affirmed by it. the case so far as it is relevant dealt with the case of a medical representative of may & baker (india) limited who claimed to be a workman. explaining the position, the court held that the designation of the employee is not of great moment and what was of importance was the nature of his duties. if the nature of the duties is manual or clerical, the person is a workman. but on the other hand if manual or clerical work is only a small part of his duties and is incidental to his main work which is not manual or clerical, he would not be a workman. applying this, it was found that the nature of the duties assigned to the medical representative were that of canvassing and any clerical or manual work that he had to do was incidental to his such main work, and could not take more than a small fraction of the time he had to do work. in the circumstances the person was held not to be a workman. 24. the above decision was followed in burmah shell co., case (supra) in which it was held inter alia, district sales representatives as not workmen finding that they are principally employed for the purpose of promoting sales of the company and the clerical work that they had to carry out was only incidental to the main work. the court reiterated its earlier test for a person to be a workman that he must belong to the four categories of persons contemplated under the definition of section 2(s) of the industrial disputes act i.e., skilled or unskilled manual work, supervisory, technical, or clerical work (as the definition stood by virtue of amendment 15 act 36 of 1956). 25. the decision was followed in t. p. stivastava v. national tobacco company of india limited (1992-i-llj-86) wherein certain salesmen of national tobacco company of india limited, who had the duty of canvassing and promoting sales of the company's products which included the duty of suggesting ways and means to improve the sales, study of type or status of the public to whom the product has to reach, study of market condition and supervising work of other local sales men, but the work not involving procuring sale orders, selling the product, collecting the sale proceeds and depositing the same with the company, were held not to he workmen. 26. the argument has been resisted by sri narasimham by attempting to contend, feebly though, that to be a workman, a person need not necessarily be confined to the four categories as contemplated under section 2(s) of the industrial disputes act and that the thrust is to encompass all employees as such, the submission was advanced placing reliance on decision in s. k. verma v. mahesh chandra, (1983-ii-llj-429) (sc) but the decision has since been held per incuriam in h. r. adyanthaya v. sandoz (i) ltd., (1995-i-llj-303) (sc). 27. we have hence to proceed on the basis that a person to be a workman must belong to the four categories as was discussed in (1995-i-llj-303) (sc). 28. even so we are unable to accept that the deposit collectors are in the same group as canvassers of sales promoters and they have to he treated as not workmen applying the decision in may & baker (india) ltd v. their workmen (supra), b. s. o. s&d.; co. v. management staff association (supra) and h. r. adyanthaya v. sandoz (i) ltd.. co. (supra). in those cases the sales representatives were held as not workmen on the finding that their work was sales promotion and that whatever clerical or manual work they had to discharge was only incidental. in sandoz's case (supra) it was explained that there was no change in the categorisation of their work by amendment of the industrial disputes act by insertion of the words 'skilled' and operational in section 2(s) as neither of the words includes the type of work of the sales promoters or canvassers discharge. the work of canvassing for the purpose of promotion of the business or sate would mainly consist of neither clerical nor manual work and would call for some type of organisational work intended to further the prospects of the nature of the business activities. the work of deposit collectors, as has been seen, may no doubt also comprise the work of mobilising incentive to the depositors, to avail of deposits schemes, but in effect would go much beyond that by taking the burden upon themselves of regularly visiting the houses of the accounts maintained by them, getting their signatures wherever necessary, attending the bank and making the deposit, fill up the necessary papers and ledgers and carry out the other connected activities. we would hence hold that the decisions in may & bakers case (supra) b. s. o. s. & d. co v. management staff assocn. (supra) and sandoz's case (supra), though are determinative of the concept of 'workmen' yet those did not conclusively show the deposit collectors not to be workmen in the same way as the canvassers are not. 29. the question whether the tiny depositors are workmen was considered by the madras high court in w. a. nos. 222, 545 and 546 of 1994, where after extensive examination of the earlier decision of the same court in the management of the indian bank v. the presiding officer, industrial tribunal (central), madras and another (supra) the bench reaffirmed the decision of the deposit collectors being workmen. we have already adverted to the decision earlier. in the indian bank case (supra) the court had taken into consideration the different features of the job of deposit collectors to hold them to be workmen. they had the duty to prepare the duplicate statement of collection of the deposit amount in the collection sheets provided by the bank, remitting the amount on the next day to the branch assigned to them. the deposit mobilisation is one of the chief functions of the bank. opening of the account could be done only in the presence of an authorised official of the bank though the deposit collector is permitted to receive deposits from door to door. it is the bank official alone who can enroll the customers of the bank even if there is recommendation of the collection agent in his favour. the nature of the work demands in daily attendance of the deposit collector. he has to inform in advance if he is not a position to collect the deposits and if he appoints a delegate it has to be done with the prior permission of the bank. he has also to do some clerical work like filling up relevant forms, ledgers, pass books etc. he has also to fill up the weekly collection registers and also the corresponding challans. he has to pay 10% out of the commission due every month towards the security. the bank has the authority to instruct the agent not to enrol] new subscribers at any time. the fact that the agent could terminate the agency with a month's notice to the bank showed that it was a contract of service. the agent was required to produce physical fitness certificate which would not have been necessary had it only been a contract for service. lastly, it was also a condition that the agent is to be taken to task if any depositor closed the account within a period of two years of its opening in which event the agent was to suffer a reduction in the commission. in the latter case the court found such conditions also to be more or less present, which persuaded it to be in entire agreement with the conclusions reached in the earlier case. 30. the tribunal in coming to the conclusion that the deposit collectors are workmen has taken the almost identical factors into consideration. it reached the finding, on the basis of such factual considerations, that it is clear that these deposit collectors have duties which are manual as well as clerical and that many of them perform duties similar to the duties of cashier in the bank. they work as per the terms of the agreement and they also do work as per the instructions and guidelines given by the manager of bank. they are subject to the supervision and control of the bank. of course, in the day to day collection work there is no continuous supervision over their work and they have ample time to do the work according to their convenience. but placing reliance on the decision of the s.j.t. house case (supra) the tribunal held that the right to control the manner of work is not an exclusive test. we have already adverted to the different principles involved by the apex court to find the engagement of a person as a workman or not, and we have no doubt that all such principles applied to the deposit collectors have to lead inescapably to the conclusion of their being workmen. we are in complete agreement with the decisions of the madras high court in w.a. nos. 222, 545 and 546 of 1994 that the decisions of the supreme court in management of puri urban cooperative bank v. madhusudhan sahu and another (supra) does in no way alter the position. as we have discussed earlier, the terms of engagement of an appraiser in the bank are wholly different from that of the deposit collectors. 31. it cannot be said that the conclusion of fact reached by the tribunal is either perverse or unrelated to the facts or is such which could not have been reached by any reasonable process. as we have discussed earlier regarding the parameters of certiorari jurisdiction, the finding of the tribunal is not to be varied only because of a different conclusion that can be reached, though we must say that on facts also we do not see any scope for reaching a different conclusion. as long as some material is available on the basis of which the tribunal could reach the finding reached by it, it must be left as it is unless an interference is warranted by the infirmities of the consideration. because of such considerations we must hold the deposit collectors to be workmen in the respective banks. we must also however refer to the three decisions relied upon by mr. k. srinivasa murthy in his support. the first is one of the kerala high court in w.a. no. 260 of 1987 decided on january 10, 1990. the facts considered by their lordships in that case persuaded them to take the view of the deposit collector as not being an employee as defined in section 2(6) of the kerala shops and establishments act, 1960, that mere employment of the persons in connection with the establishment is not enough but their employment must be wholly or principally in connection with the establishment. the very definition of the expression 'employee' under the concerned act is of a person who is wholly or principally employed in and in connection with any establishment and includes an apprentice. the emphasis of the examination of their lordships was to explore as to whether the deposit collectors are wholly or principally employed in connection with the establishment, and taking into consideration the various features of their service, the conclusion was reached of their being not so employed. we have already held that the deposit collectors are not entitled to be regular employees of the banks. their lordships of the kerala high court were not examining as to whether the deposit collectors were entitled to be treated as workmen under the industrial disputes act. in the punjab and haryana high court case (civil writ petition no. 14219 of 1991, decided on july 28, 1992) relied upon by mr. k. srinivasa murthy learned single judge was examining the question as to whether the agents of the banks under such different schemes were employees of the banks. the case related to the claim of the widow of a deceased agent for 15 compassionate appointment. the court found the deceased husband 'not to be an employee or a workman', but also observed that in any event, the question whether relationship of an employer and employee exists between the parties is a mixed question of law and fact which cannot be appropriately decided in a proceeding under article 226 of the constitution. the question whether the deceased agent was a workman under the industrial disputes act had not come before the high court after factual investigation by the tribunal. a decision of this court, relied upon by mr. k. srinivasa murthy is w.a. no. 1543 of 1987 decided on march 5, 1991. that was a case whether the writ petition of some of the deposit collectors to prevent the bank from recovering from them the amounts collected by them as commission on the deposits having been allowed, the concerned bank, syndicate bank had preferred the writ appeal contending that relationship between the bank and the deposit collectors being purely contractual with the terms and conditions determined by agreement, a direction in the writ petition could not issue to stop the bank from recovering the commission. the case of bank was that some of the deposit collectors had resorted to the practice of earning high commission on the deposits made through them, and the depositors withdrawing their deposits after the deposit collectors had collected their commissions. the court held that it was not a matter to be decided in writ proceeding. taking the view that the relationship between the parties was governed by the terms of the contract, the appeal was allowed. there was no determination in the case as to the jural relationship between the deposit collectors and the bank and there was no examination as to whether they were workmen under section 2(s) of the industrial disputes act. 32. a further question has been raised by mr. k. srinivasa murthy of the deposit collectors being intrinsically not able to he treated as workmen since in the event of their, being treated so, the provisions of chapter v-a of them industrial disputes act would not be workable in relation to them. it is the argument that since their remuneration is not fixed and is variable they cannot be paid any determined amount as is required under section 25f of the industrial disputes act, in the event of their retrenchment. we do not think that this argument halts the conclusion of their being treated as workmen since it is by now well settled that even jobrated and piece-rated workers can be workmen as was pointed out in s.j.t. house case (supra) and some other cases. on conspectus of the consideration, we hence reach the conclusion that the deposit collectors are workmen of the respective banks though they are not, and also cannot claim to be regular employees. in view of the conclusion it necessarily follows that the scheme evolved by the tribunal in paragraph 69 of the award for absorption of the deposit collectors below the age of 45 years on october 3, 1980 has to go. but the award also directed the deposit collectors above the age of 45 years and those who are unwilling to be absorbed as regular employees to be paid full back wages of rs. 750/- per month linked with minimum deposit of rs. 7500/- per month plus the incentive remuneration at 2% for collection of over and above rs. 7,500/- besides such non-absorbed deposit collectors were also made entitled to conveyance allowance of rs. 50/- per month for deposit of less than rs. 10,000/- and rs. 100/- per month for deposits of more than rs. 10,000/- upto or above rs. 30,000/- per month. besides, they were also entitled to gratuity of 15 days commission for each year of service rendered. 33. now that we find that all deposit collectors are only workmen and none can be absorbed as regular employees all of them have to be treated as only one category. we would hence uphold and apply the decision of the tribunal for payment of full back wages and incentive commission as well as conveyance go allowance and gratuity to the deposit collectors as workmen. the award stands modified accordingly. 34. in the result the writ is partly allowed. no costs.