STATE OF WEST BENGAL & ANR. v. WEST BENGAL REGN. COPY WRITERS ASSN. & ANR.

.' A laid down the attributes of employer-employee relationship, which principles were followed in the latter decision. In that case, the following four indicia of contract of service were laid down:

(a) The master's power of selection of his servant; 8 (b) The master's responsibility of payment of wages or other remuneration ; ~ ... (c) The master's right of suspension or dismissal; c (d) The master's right to control the method of doing the work.

Undoubtedly, it was observed that a contract of service may still exist if some of these elements are absent altogether, or present only in an unusual form. It was, however, treated that ~ - the factor of superintendence and control has always been a critical and decisive of the legal quality of the relationship.

36Copy pinpoint36. The Court then proceeded to consider the law laid down in Morren Vs. Swinton and Pendlebury Borough Council reported in 1965 (2) All ER 349, which made a slight departure by saying that though in many cases, the importance of the factor of superintendence and control was emphasized, but that f-._ is not the determining test. The Court noted the law laid down in Morren's Case to the effect that superintendence and control cannot be a decisive test, when one is dealing with a professional man or a man with professional skill and experience. Lastly, the Court referred to the decision in the case of Argent Vs. Minister of Social Security reported in 1968 (3) All ER 208, in which it was suggested that though in earlier cases, the most important test, if not the all-important test, was ._ ~

the extent of control exercised by the employer over the servar1 but with the development of law in recent times, the emphasL has shifted and no longer rests so strongly on the question o control. Control is obviously an important factor. In some cases it may still be a decisive factor, but it is wrong to say that in

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COPY WRITERS ASSN. [V.S. SIRPURKAR, J.] ~~- .. every case, it is the decisive factor. The Court then went on to consider the law laid down in the case of Kanakchandra Dutta (cited supra) in para 15 and came to the conclusion that indicia laid down in this case this case could not be the only test for determining the person holding a civil post under the Union Territory or State. Ultimately, in para 23, the Court observed that the principle laid down in the case of Kanakchandre Dutta (cited supra) did not advance the case of the respondent in any ,,. • manner, as certain other factors like the process of recruitment in accordance with relevant service rules were not followed and certain other incidents of service like transfer, disciplinary c action, pension and the facility of General Provident Fund were absent in his case. Lastly, the Court also considered the decision in State of UP. Vs. Chandra Prakash (cited supra), where the question was whether the Kurk Amins appointed on commission basis by Collectors for realization of outstanding ---.\ D dues of various cooperative societies as arrears of land revenue can be treated to be employees of the State Government. It was pointed out that Kurk Amins hqd not been appointed on contract basis as is the case of Respondent No. 1, but they were in fact, regularly appointed and had to perform E Govt. duty of recovering arrears of land revenue. The Court, therefore, did not hold the said person as a Government employee. A look at this case would suggest that the rules for ,• the appointment were given the utmost importance. Admittedly, in the present matters there were no rules for appointment of any service. The rules merely provided the manner in which the F licenses were to be created and controlled. That is a distinction. According to us, even this case does not help the respondents herein. In fact, the observations in para 15 to the effect that the decision in Kanakchandra Dutta (cited supra) provided the complete test, go rather against the respondents. G " >

37Copy pinpoint37. This takes us to the case of State of Gujarat & Anr.

... Vs. Raman Lal Keshav Lal Soni & Ors. reported in 1983 (2) SCC 33. The question, which fell for consideration was as to whether personnel drawn from different sources, namely, H

386 SUPREME COURT REPORTS (2009] 8 ·S.C.R.

c!- ... A Government departments, as well as, the local authorities or Municipalities merged together to constitute a single integrated civil service under the State by a legislative enactment, would become the State Government employees, irrespective of their original status. The question was answered in affirmative. This B decision was very heavily relied upon by Shri Mitra, Learned Senior Counsel for the respondents, since the end result went in favour of the employees and they were held to be holding the civil posts. In para 27, the Court observed:- .,,

"We do not propose and indeed it is neither politic nor c possible to lay down any definitive test to determine when a person may be said to hold a civil post under the Government. Several factors may indicate the relationship of master and servant. None may be conclusive. On the

D other hand, no single factor may be considered absolutely essential. The presence of all or some of the ,,._, factors, such as, the right to select for appointment, the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by the employee, the right to control the employee's manner and method of the work, the right to issue directions and the right to determine and the source from which wages or salary are paid and a host of such y ... circumstances, may have to be considered to determine the existence of the relationship of master and servant. In each case, it is a question of fact whether a person is a servant of the State or not." (Emphasis Supplied)

Reference was made to the cases in Gurugobinda Basu G Vs. Sankari Prasad Ghosal reported in AIR 1964 SC 254, State of U.P. Vs. Audh Narain Singh reported in AIR 1965 SC 360, case of Kanakchandra Dutta (cited supra), D.R. . ~ ,

Gurushantappa Vs. Abdul Khuddus Anwar reported in 1969(1) SCC 466 and S.L. Agarwal Vs. G.M. Hindustan Steel Ltd. reported in 1970 (1) SCC 177. ln para 31, this Court noted that ~ H

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. COPY WRITERS ASSN. [V.S. SIRPURKAR, J.] ..>--,.+. the Panchayat Service constituted under Section 203 of the A Gujarat Panchayats Act was a civil service of the State and members of the service were Government servants. It was . • . , , • • ; I ' J ' 'I ' ' l .~

noted that this question was decided by the High Court of Gujarat more than 15 yeqrs back in G.L Shukla Ys. State of Gujarat reported in ILR 1967 Guj 560 by Hon'ble Bhagwati, J. a (as he then was). In that judgment, Hon'ble Bhagwati, J. observed:- ,,. .i <' "The mode of recruitment, the conditions of service and matters relating to appointments, transfers and promotions of persons employed in the panchayat service as also c disciplinary action against them are all determined by the State Government and that is consistent only with the State being the master in the entire panchayat service. The mandatory provision for promotion from panchayat service to State service which is required to be made in the rules D also shows that both the services are services of the State. There could be no question of promotion from one service to another if the masters in the two services were different. Then it would be a case of termination of one service and appointment of another..... ...... ... ... . .. .." E

The Learned Judge further said:-

"It is not possible to believe that the officer or servant could have been intended by the Legislature to be treated like a chattel which can be tossed about from one master to F another. The only reasonable way of looking at the matter seems to be and that conclusion is inevitable on the language of these provisions, that the panchayat service is a civil service of State like the State service and since both the services are civil services of the State with the G State as the master, an officer or servant can be allocated from the State service to the panchayat service and reallocated from the panchayat service to the State service .... ........... ." H

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~--.... A Considering other provisions, ultimately, this Court held the employees to be belonging to the Government service and found that there existed the master and servant relationship. The situation is entirely different in the present case and as has been oft quoted by this Court that every case would have to be B decided on the facts. We do not find any parity of the facts in this case with the case at hands. It was tried to be argued feebly by Shri Mitra, Learned Senior Counsel for the respondents that there was a power of transfer in the present rules also and that l

showed the ultimate control. In the first place, that power of c transfer is not an absolute power of transfer. It depends upon contingency of the availability of the adequate number of Copywriters in a particular district. That, in our opinion, would· not be a decisive factor. On the other hand, what we find is that there is no payment of wages to the Copywriters from the Government coffers nor is there any control on the work or on D the way the work is to be conducted. Further, there are no rules creating any such service like the rules, which were considered in the case of State of Gujarat & Anr. Vs. Raman Lal Keshav Lal Soni & Ors. (cited supra). This case is, therefore, of no use to the respondents herein. E

38Copy pinpoint38. Shri Jayant Mitra, Learned Senior Counsel for the respondents relied on the judgment in Dharamgadhra Chemical Works Limit Vs. State of Saurastra reported in AIR ....... 1957 SC 264. This case obviously will not apply for the simple reason that the question there was as to whether a person, if paid not per day, but by the job, could be held as a workman. The observations have been made to the effect that the rules regarding hours of work etc. applicable to other workmen may not be conveniently applied to them, is no deterrent against holding the persons to be workmen within the meaning of the definition. We do not think . . that - these . observations or the law laid down in this case, is apposite to the present controversy. The other case relied on was Chintaman Rao Vs. State of Madhya Pradesh reported in AIR 1958 SC 388. This was the case under the Factories Act. The Court was called upon to H

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COPY WRITERS ASSN. [V.S. SIRPURKAR, J.] ·.,;.- decide upon as to whether who is a contractor and distinction between a contractor and a workman. Thi~ w11s the case under the labour jurisprudence and, therefore, the observations made therein in paras 10 and 11 would not apply to the present controversy. Relying on this case, the Learned Senior Counsel tried to contend that the State supervises and controls the work done by the Copywriters. For this purpose, reliance was made on the Copywriters' Rules of 1979. That was tried to be viewed r ( as a control by the State Government on the working of the Copywriters. We have already held that the rules do not have any such scope as to spell out an absolute control on the work c of Copywriters.

39Copy pinpoint39. The Learned Senior Counsel also relied on the case of The Superintendent of Post Offices Vs. P.K. Rajamma reported in 1977 (3) sec 94. This was a case regarding the extra departmental branch Post Masters and ext•a departmental • delivery agents. The question was as to Whether such persons could be held to be holding the civil post. The Court came to the conclusion that considering the elaborated provisions of rules controlling the appointment, leave, termination of services, the nature of penalties, procedure for imposing penalties and other matters relating to the conduct and service of extra departmental agents, such persons were holding the civil post. ,-ir We have closely seen the ruling and find that the rules relating to extra departmental branch Post Masters are entirely different. Those extra departmental branch Post Masters were being paid from the coffers of the Government and their service was also controlled in the manner of penalties. Such is not the case here. The ruling is of no consequence. Further reliance was made on the case of G.B. Pant University of Agriculture Vs. State of Uttar Pradesh reported in 2000 (7) SCC 109, where G (A. the question was as to whether the employees of the Cafeteria run in the University could be recognized as regular employees of the University. The Canteen workers were ultimately held to be the employees of the University. We have compared the conditions of service. The law laid down in this case cannot H

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A apply, since on facts, this case is entirely different. There can be no comparison between the Canteen workers of a University, who were actually in the employment and the Copywriters, who were merely license holders.

40Copy pinpoint40. For canvassing his case on employer-employee 8 relationship, Shri Mitra relied on the case of Ram Singh Vs. Union Territory, Chandigarh reported in 2004(1) SCC 126. Our attention was drawn to the finding that the control is only one of the important tests, but not the only test and in determining such relationship, all the relevant factors have to be considered. Reference is also made to the integration test for examining as to whether an employee is fully integrated into the employer's concern or has remained apart from and independent of it. There can be no question with the ratio. Ho)Never, in our opinion, even applying the integration test, it cannot be said in the present case that the Copywriters have the integral part of .;

the Government machinery. We have already commented upon the other factors like power of selection, dismissal, the remuneration etc. This case refers to insurance contributions, supply of tools and materials etc., which is absent in the present case. Therefore, even this case would be no consequence. Lastly, the reliance was made on the case of Workmen of Nilgiri Cooperative Marketing Society Vs. State of T.N. & Ors. reported in 2004(3) sec 514. That was the case regarding the claim of the workers that they were the workmen of Nilgiri F Cooperative Marketing Society. The Court, undoubtedly, culled out some principles like the appointing authority, the paymaster, the person who can dismiss, the length of the alternative service, the extent of control, the nature of job, the nature of establishment etc. in para 37 of the judgment. Ultimately, the G Court decided against the workrnen in para 98 of the judgment and held:- "98. It has been found that the employment of the workmen for doing a particular piece of work is at the instance of the producer or the merchants on H

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COPY WRITERS ASSN. [V.S. SIRPURKAR, J.] -.. - ... an ad hoc basis or job to job basis and, thus, the same may not lead to the conclusion that relationship of employer and employee has come into being. Furthermore, when an employee has a right to work or not when an offer is made to him in this behalf by the producer or by the merchants will also assume significance." ~ ; This was the case, where in Cooperative Marketing Society, having about 22,000 members, who brought their agricultural produce in the marketing yards of the society by c hired lorries or trucks. The concerned persons, who claimed to be the workmen, helped for unloading of the gunny bags containing potatoes from the lorries, unpacking the gunny bags and keeping the potatoes in lots inside the godown, grading the potatoes into different sorts, weighing the auctioned D -- t potatoes in 45 kg and packing them into gunny bags brought by the merchants, stitching the gunny bags and loading them into lorries hired by the merchants. These persons, who claimed to be the workmen, were paid on the basis of the work output. The growers and merchants were free to engage their own porters and graders. There had been no obligation on the Society's godown to engage service of these workers, waiting in the yard. There were no attendance registers or wage r'< registers and the Society was found to have no control' as to who should do the work and the members were free to engage any worker available in the yard. There were no working hours fixed for porters and graders and they were free to come and . go at will. They had no obligation to report to work everyday nor was there any control regarding the number of workers to be engaged and the work to be turned out by the porters and graders. There were no appointment orders issued by the G {_.+ Society and there was no disciplinary control over the porters and graders exercised by the Society. In the light of these facts, this Court came to the conclusion that the workmen could not claim to be the workmen of the Society. The situation is no different, though in some matters, some distinguishing features H

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A can be seen. In our opinion, this case would come nearest to the facts of the present case. In our opinion, this case would, therefore, help the appellants more than the respondents; who :

have chosen to rely on the same. The integrated approach suggested by this Court in this decision, when made applicable B to the present case would be of no assistance to the respondents.

41Copy pinpoint41. On the other hand, Shri Gupta, Learned Senior Counsel for the appellants, invited our attention to the decision in Divisional Manager, Aravali Golf Club Vs. Chander Hass C reported ih 2008 (1) Sec 683. Here, the daily wager Malis who were working for a long period as daily wager Tractor Drivers without there being any sanctioned post of Tractor Driver, Were ordered to be regularized as Tractor Drivers, by the High Court. This direction was struck down by this Court, hoidihg that when D there was no sanctioned post of Tractor Driver, the Court could not direct to creation of such posts and regularize the Malis ih such posts. Thus, it has been clearly held that where there are no sanctioned posts, the creation of posts is impermissible.

42Copy pinpoint42. Shri Mitra, Learned Senior Counsel for the respondents tried to distinguish this case on the ground that it is different on facts. However, we may rely on this case to the limited extent that where there are no sanctioned posts of a particular nature, the workmen cannot be directed to be accommodated in the post and for that matter, no direction can be given to create any such post. In Principal, Mehar Chand Polytechnic Vs. Anu Lamba reported in 2006(7) SCC 161, the ad-hoc/temporary appointees and promotees, who were not appointed in terms of any statutory rules, claimed regularization. This Court pointed out that the project, under which they were employed, was a time bound project and no a regular service and, therefore, the High Court's direction to create the post and regularize the services of the respondents therein, was quashed by this Court. Again, to the limited extent that the posts cannot be directed to be created in complete disregard to the rules, this decision H

STATE OF WEST BENGAL v. WEST BENGAL REGN.393 COPY WRITERS ASSN. [VS. SIRPURKAR, J.] ' ~+ helps the appellants. A

" 43. Shri Mitra, Learned Senior Counsel for the respondents, tried to suggest that in the present case, the Copywriters were engaged to perform duties of the State on regular basis, in pursuance of the so-called licenses issued by B the State Government. We have already clarified that such a grant of license cannot clothe the Copywriters with the status of Government servant nor were they doing any Government . ti' ' duty. In State of Haryana Vs. Navneet Verma reported in 2008 (2) sec 65, this Court approved of the abolition of the post of Accounts Executive by the Government. That was challenged c before the High Court. This Court observed that an action taken by the Government in good faith cannot be challenged and the Courts do not have any competence to go into such matters, particularly on the basis of scant materials. We have no .•· ·~ hesitation to say that in the present case, there is very little or D no material to suggest any master and servant relationship between the Copywriters and the Government.

44Copy pinpoint44. Lastly, Shri Gupta, Learned Senior Counsel for the respondents relied on the decision in Official Liquidator Vs. E Dayananda & Ors. reported in 2008(10) sec 1. That was a case, where the staff employed in the office of the Official ,cy Liquidator attached to different High Courts claimed the status ' of permanent Central Government employees. The • employments were undoubtedly of temporary nature, but this F staff was attached to the Official Liquidator and were doing the Government duty. The mode and source of their recruitment and remuneration were also controlled by the Central Government.

. However, this Court came to the conclusion, on the basis of the decision in Secretary, State of Kera/a Vs. Umadevi reported G -'· in 2006 (4) sec 1, that such staff formulated a different class . This Court noted that from the inception of their employment, ' the staff there were being paid from the fund created by disposal of assets of the company (in liquidation). Thus, this Court was of the view that the directions given by the High Court H

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~- A for creation of supernumerary posts to facilitate absorption of company paid staff were not legally sustainable. In many ways, the facts are common, inasmuch as, the duty, which were done by the staff was undoubtedly an official duty. This Court took into account the fact that they were never paid the wages by B the Central Government nor were they on the Central Government establishment. This staff, undoubtedly, worked . under the control of the Official Liquidators, who were none else but the Central Government employees and yet the Court came J

to the conclusion that they could not be given the status of the ' c Central Government employees. This case comes very near to the facts of the present case and would be much helpful to the appellants, inasmuch as, firstly, this staff, though appointed by the Central Government, was working in the premises provided by the Central Government and sometimes in the High Court premises, and secondly, though they were on ad-hoc basis, they were working continuously and the nature of their duties was ~ ..- \ official. Further, they were under the direct control of the Official Liquidator, as is being claimed in the present case and yet it was held by the court that they could not claim the status of the Central Government employees. The situation is more or the less identical in the present case. We are, therefore, convinced that the law relied upon by Shri Mitra, Learned Senior Counsel, as also the other Learned Senior Counsel like Shri Ranjit Kumar, Shri P.P. Rao, and Learned Counsel like Shri Dipak y\

Kumar Jena, does not help the respondents and it cannot be held that there was master-servant relationship between State Government and the Copywriters.

45Copy pinpoint45. Shri Gupta contended that if all the Copywriters were to be accommodated as the Clerks in the Government service, then more than 6000 posts would have to be created and that would be a practical difficulty. Further majority of these ~-) Copywriters did not have the basic qualification required and I

thus there would be a practical problem in accommodating these Copywriters. He further reiterated that all that would not be possible without there being any Rules under Article 309 of

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COPY WRITERS ASSN. [Y.S. SIRPURKAR, J.] ~·-,.4.. the Constitution of India. The contention is undoubtedly correct. A This factor of the practical difficulty has been completely ignored in the impugned judgment.

46Copy pinpoint46. Shri Gupta pointed out that such licenses are given in number of other Departments where the creation of service B cannot be even conceived. He pointed out that the claim of the Copywriters that they were doing the essential service of the ti ,j Government is falsified from the fact that in the Districts of Burdwan, Purba Medinipur, Paschim Medinipur, Maldah, Uttar Dinajpur and Dakshin Dinajpur the Copywriters Rules, 1999 have never been implemented since inception and there are c no such eopywriters available. In those Districts the Xerox copies of the documents are provided as their true copies. Had the work of copywriters been essential, Government would not have dispensed with the services of the Copywriters in these ,.,"-- ~ six Districts. According to the learned counsel this clearly D suggest that the Copywriters did not execute any Governmental work nor was their work essentially required for the working of Registration Office. The argument is undoubtedly correct. Learned counsel also pointed out that there are 6466 Deed- writers, 1200 Marriage Registrars, 20,000 Post-office Agents, E 40,000 Insurance Agents and 1100 Stamp Vendors in the State of West Bengal. He pointed out that clothing the Copywriters ,- 'f with the Government Service would mean a financial debacle for the State. The argument is undoubtedly correct as each and every licence granted by the Government does not amount to F Service.

47Copy pinpoint47. The conclusion of all the above discussion is as under:

(i) That the original Writ Petitioners-Copywriters are mere licensees. G ( -+ (ii) Though the Rules have been formulated by the Government for awarding these licenses the Rules do not spell out an absolute control over the working of these Copywriters. The Rules merely pertain to H

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A the grant of licences and control of those licences, how~ver, did not control the working and duties of the Copywriters.

(iii) The Copywriters do not do any Government duty. They are merely required to copy the deeds which B are to be presented for registration. Though the filing of a fresh copy is necessary for registration, the making of that copy does not amount to a Government duty.

C (iv) The Copywriters are not controlled in the matters of their attendance, working hours, leave, pension and output of work etc., by the Government.

(v) The Copywriters are not on the establishment under D the Rules, more particularly the Rules formulated under Article 309 of the Constitution of India.

(vi) The Copywriters are not paid from the Government coffers. On the other hand they are paid by the private parties who require those copies for E Registration of the deeds. Therefore, there is no fiduciary relationship between the Government and the Copywriters nor is the government responsible for any such payment.

F (vii) In short the grant of licence for copywriting does not amount to creating a service. Hence there is no master-servant relationship between the Copywriters and the Government nor can they said to be Government servants entitling them to so- called equal treatment with the other Government G servants. + )

(viii) The High Court has erred in directing the creation of service and for that purpose framing the Rules as also providing the nomenclature for such a H

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COPY WRITERS ASSN. [V.S. SIRPURKAR, J.] service. In that the High Court has traveled beyond A the scope of the original application and the writ petition.

48Copy pinpoint48. The appeals thus deserve to be allowed and they are accordingly allowed. The common judgment of the High 'Court B is set aside and that of the Tribunal is restored. Under these circumstances, however, there shall be no order as to costs.

N.J. Appeals allowed .