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MANU/KA/8150/2006 Equivalent Citation: ILR2006KAR3320, (2006)IIILLJ454Kant IN THE HIGH COURT OF KARNATAKA AT BANGALORE Writ Petition Nos.

10290 and 45880 of 1999 and 20256 of 2001 Decided On: 29.05.2006 Appellants: Agricultural Produce Market Committee Vs. Respondent: The Weighmen's Association and Ors.

Hon'ble Judges: N. Kumar, J. Counsels: For Appellant/Petitioner/Plaintiff: B.G. Sridharan, Adv. in W.P. No. 10290 of 1999, S.Z.A Kureshi, Additional Government Adv. in W.P. No. 45880 of 1999 and H.K. Thimme Gowda, Adv. in W.P. No. 20256 of 2001 For Respondents/Defendant: B.G. Sridharan, Adv. for Respondent 3 in W.P. No. 45880 of 1999, S.Z.A. Khureshi, Additional Government Adv. for Respondents 2 and 3 in W.P. No. 10290 of 1999, P.S. Rajagopal, Adv. for Respondent 1 in W.P. Nos. 10290 and 45880 of 1999 and P.S. Rajagopal and K. Puttegowda, Advs. for Respondent 3 in W.P. No. 20256 of 2001 Subject: Labour and Industrial Catch Words Mentioned IN Acts/Rules/Orders: Minimum Wages Act, 1948 - Section 2, Minimum Wages Act, 1948 - Section 2(1), Minimum Wages Act, 1948 - Section 3(1), Minimum Wages Act, 1948 Section 5, Minimum Wages Act, 1948 - Section 12, Minimum Wages Act, 1948 Section 20, Minimum Wages Act, 1948 - Section 27, Minimum Wages Act, 1948 Section 72, Minimum Wages Act, 1948 - Section 73, Minimum Wages Act, 1948 Section 74, Minimum Wages Act, 1948 - Section 79A;Karnataka Agricultural Produce Marketing (Regulation) Act, 1966 ;Karnataka Shops and Establishments Act, 1961 - Section 2, Karnataka Shops and Establishments Act, 1961 - Section 2(19A), Karnataka Shops and Establishments Act, 1961 - Section 3; Karnataka Agricultural Produce Marketing Committee Rules, 1961;Agricultural Produce Marketing Committee Act ;Karnataka Agricultural Produce Marketing (Regulation) Rules, 1968 - Rule 79; Constitution of India - Article 226 Cases Referred: Raghunath and Ors. v. State of Karnataka and Ors. 2000 (2) Kar. L.J. 237 : ILR 2000 Kar. 277 Disposition: Petition allowed Case Note: (A) KARNATAKA AGRICULTURAL RODUCE MARKETING COMMITTEE ACT, 1966 - SECTIONS 2(e) 5, 12, 27-KARNATAKA SHOPS AND COMMERCIAL ESTABLISHMENT ACT, 1961-SECTION 3-Whether the APMC Yard falls within the schedule employment under the provisions of the Karnataka Shops Commercial Establishment Act, 1961-HELD-APMC Act was enacted to provide for better regulation of the marketing of agricultural produce and the establishment and administration of markets for agricultural produce in the State of Karnataka and with that object in mind they have established these markets. Therefore, the establishment falls within the definition of 'Commercial Establishment' under the Shops and

Establishments Act. Section 3 of the Shops and Commercial Establishment Act specifies the category of shops to which the said Act is not applicable. As is clear from Section 3(l)(a), the Act shall not apply to officers of Central or State Government or Local Authority only commercial undertakings. Therefore, even if the APMC is the local authority, even if it is to be held that it is not a commercial undertaking, even then, only the officers appointed by the APMC are excluded from the application of this Act.In other words, the workers and employees who are not officers are entitled to payment of minimum wages under the Act. The criterion is if the establishment has employed such persons. Therefore, the contention that the Minimum Wages Act is not applicable to APMC and as the APMC as such is not mentioned in the schedule to the Shops and Commercial Establishment Act, is not applicable is without any substance. If the APMC employs any person mentioned in the Schedule, then they are liable to pay the minimum wages under the Act. (B) KARANTAKA AGRICULTURAL PRODUCE MARKETING COMMITTEE ACT, 1966 - SECTIONS 2(i) 2(19-A), 72, 79-A-KARNATAKA AGRICULTURAL PRODUCE MARKETING (REGULATION) RULES, 1968-RULE 79-Whether the weighman of the APMC Yard are the employer under the Act-HELD-The relationship between the petitioner and the weighman in the APMC yard, it is case of contract for service and not contract ofservice. There exists no relationship of master and servant between the APMC and the weighman. The relationship is that of a licensor and licensee. Therefore, what is paid by the APMC Yard to the weighman is not wages. Weighman are not employed in the APMC yard. They are neither employed for hire or reward, to do any work, by the APMC. Therefore, as the weighman do not satisfy the definition of employee as contained in Section 2(i) of the Act, the Act is not applicable to the weighman. Therefore, seen from any angle having regard to the material on record, the law declared by this Court in the aforesaid judgment, it is not possible to hold that these weighmen are employees under the Act, and that they are entitled to minimum wages under the Act. As such their claim for fixing the minimum rates of wages has to fail. Held: The aforesaid definition makes it very clear that, an employee is a person who is employed for hire or reward to do any work in a scheduled employment. Employer is one who employes whether directly or through another person in any scheduled employment. Therefore, the employment of a person in a scheduled employment is the determining factor. If there is no such employment, then such a person cannot claim to be the employee of the APMC. Under the Act, weighman is a market functionary. He is a licence holder permitted to carry on trade/ vocation in the market area. The licence has to be renewed from time to time on payment of free prescribed. The market committee has not issued any appointment order to the weighman, employing him as their employee. There is no obligation cast on the market committee to pay any fee, charge, consideration, remuneration, much less, salary to the weighman. There exists no jural relationship of master and servant or employer and employee. When the relationship is disputed, the burden of proof is on the workman to establish the employer and employee relationship. The question whether the relationship between the parties is one of employer and employee is a pure question of fact. Where a person asserts the relationship and it is denied by the employer, it is for the employee and not for employer to prove the fact. The employee has to plead and prove the relationship of employment

between him and the employer in relation to establishment by adducing evidence before the Tribunal. Once that evidence is adduced, the status of the employee has to be covered as a matter of law from the facts found and if the question involved is one of drawing a legal inference as to the status of a party from the facts found, thsi it is not a pure question of fact, but necessarily becomes a mixed question of facts of law. It is useful to remember in this context the difference between the contract for service and contract of service. A contract ofservice is one in which a person undertakes to serve the industry and to obey its rasonable orders withinthe scopre of the duty he undertaiks. The distinction is, in the one case the master can order or require what is to be done, while in the other case, he cannot only order or require what is to be done, but how itself is shall be done. Under a contract of service a man is employed as a part of business and his work is done as a integral part of the business, whereas, under a contract for service, his work, although done for the business, is not integrated into it but is only accessory to it. The test of being a servcant does not rest on subission to orders. It depends on whether the person is part and parcel of the organistion. Writ Petitions allowed. ORDER N. Kumar, J. 1. The weighmen who are working at APMC Yard at Tumkur and Tiptur have formed a Union. Through their Union they filed an application before the Competent Authority under Section 20 of the Minimum Wages Act, 1948 (for short, "the Act"). They contend that the APMC Yard is their employer within the meaning of Section 2(e) of the Act. In the schedule attached to the application they have given the particulars of wages paid to them, the difference between the minimum wages payable and the wages actually paid and they have sought for compensation of 50% of the difference in the minimum wages. On service of notice, the Agricultural Produce Marketing Committee (for short, 'APMC') entered appearance. They specifically contend that the weighmen, the members of the applicant-association are neither employees employed by the APMC nor the APMC is an employer within the meaning of the Act. These weighmen who carry on the business are hot employees and the incidents of employment such as monthly salary, allowances, provident fund, gratuity, bonus, periodical increments, ESI facility, etc., are not at all attracted. On the contrary, they are market functionary who carry on business under the provisions of Karnataka Agricultural Produce Marketing (Regulation) Act of 1966 (hereinafter referred to as the 'APMC Act'). They are on par with other businessmen such as Trader, Commission Agent, Exporter, Importer, Processor, Broker, etc. They obtain licence from the Market Committee for each area, and are performing their functions as weighmen and they are not paid salary or wages by the Market Committee as they are not employed by them. They also contend that the APMC is not a schedule employment as defined under Section 12 of the Act. Therefore, the Act itself is not applicable to these applicants and sought for dismissal of the said application. 2. Both the parties adduced evidence, produced documents, relied on the judgment of this Court rendered in connection with the claim of weighmen of APMC Yard at Bangalore. On consideration of all these materials, the authority under the Act, held that the "weighmen" are workmen or employee of the APMC, within the meaning of Section 2(e) of the Act. They are not paid the minimum wages under the Act and accordingly they are entitled to the difference of wages claimed by them, and allowed both the claim applications. Aggrieved by the same, the APMC Yard, Tumkur, APMC Yard, Tiptur and Director of Agricultural Marketing

in Karnataka, have preferred these writ petitions. As common questions of law arise for consideration, in these writ petitions, they are heard together and disposed of by this common order. 3. The learned Counsel for the petitioner, Sri B.C. Sreedharan contend, firstly that for application of Section 12 of the Act, their establishment should fall within the schedule employment under the provisions of the Act. Though, earlier they fell within the purview of the Act by virtue of the notification issued on 29-7-1976, subsequently, as it was deleted by virtue of notification dated 19-8-1987, the Act is not applicable at all. Secondly it was contended that as these weighmen are expected to function after obtaining licence from the APMC they are not employed by the APMC and are not employees as defined under the Act. Therefore, the Controlling Authority had no jurisdiction to entertain the claim much less pass the impugned award granting relief. 4. Per contra, the learned Counsel for the respondent Sri P.S. Rajagopal contended that it is a fact that the earlier notification was withdrawn. But the reasons given for withdrawal of the notification makes it very clear that as the APMC Yard is covered under the provisions of the Karnataka Shops and Commercial Establishments Act, 1961. Insofar as the status of the weighmen is concerned, he submits that though under the APMC Act and APMC Rules, 1961 they are expected to obtain licence before functioning in the Yard, the evidence on record, the nature of duties they perform, the way they are paid remuneration and the law on the point coupled with the decision of this Court in the case of weighmen of Bangalore, 1968 APMC Yard makes it very clear that notwithstanding the nomenclature of these weighmen they are employees under the Act and therefore, the provisions of the Act is attracted. Admittedly, they have not been paid the minimum wages prescribed in law and therefore, the authorities are fully justified in directing payment of difference in the wages as well as the compensation. As the authority has properly appreciated the oral and documentary evidence on record and has recorded finding of fact, it is not open for this Court to interfere with the said finding under Article 226 of the Constitution of India, in view of the fact that the Act is a beneficial piece of social welfare legislation and when the benefit of that legislation has been extended to these unorganized working class, he prayed for dismissal of the writ petition. 5. From the aforesaid facts and rival contentions, the point that arise for consideration in these writ petitions are as under: (1) Whether the APMC Yard falls within the schedule employment under the provisions of the Karnataka Shops and Commercial Establishments Act, 1961? (2) Whether the weighmen of the APMC Yard are the employees under the Act? (3) Whether the impugned orders passed by the Controlling Authority directing payment of difference in wages along with compensation requires to be interfered with? 6. Point No. 1.--Section 12 of the Act provides for payment of minimum rates of wages. It provides that in respect of any scheduled employment, a notification under Section 5 is in force, the employer shall pay to every employee engaged in a scheduled employment under him wages at a rate not less than the minimum rate of wages fixed by such notification for that class of employees in that employment without any deductions except as may be prescribed. Section 5 of the Act deals with the procedure for fixing and revising minimum wages. Before a claim is made for fixation of minimum wages as notified under Section 5 of the Act, the employment should be a scheduled employment. The word scheduled employment

has been defined under the Act at Section 2(g)meaning, an "employment specified in the Schedule of any process or branch of work forming part of such employment". Section 27 of the Act provides that the appropriate Government after giving notification in the Official Gazette, not less than three month's notice of its intention so to do, may, by like notification add, to either Part of the Schedule any employment in respect of which it is of opinion that minimum rates of wages should be fixed under this Act and thereupon the Schedule shall in its application to the State be deemed to be amended accordingly. 7. The Government of Karnataka by Gazette Notification No. SEL 99 LMW 75, dated 29-7-1976 added the following to the schedule to the Act.-39. Employment in regulated market, mandies, bazars and other similar places. However, the Government of Karnataka while considering fixation of the minimum wages to the Schedule employment, issued another Notification No. LD 37 LMW 93, dated 28-2-1994, thereby deleted the aforesaid item to the schedule on the ground that the category of the workers in the notification are covered under the schedule of shops and commercial establishment. The Government was of the opinion that the process of the regulated markets are duly covered under the schedule employment 'shops and commercial establishments' to which the minimum wages are fixed. 8. Therefore, it is clear that the liability to pay the minimum rates of wages is cast on the employer whose employment is one of the scheduled employment under the Act. The schedule attached to the Act, provides the employment which are covered under the Act. The employment in regulated market, mandies, bazars and other similar places were included in the schedule by virtue of Section 27 of the Act, by a notification dated 29th July, 1976, published on 30th July, 1976 in the Karnataka Gazette at item No. 39, employment in regulated markets, mandies, bazars and other similar places was added. However, by notification dated 28th February, 1984, published on 15th March, 1994, the same came to be deleted on the ground the employees employed by APMC are covered under the provisions of the Shops and Commercial Establishments Act, which is already included in the schedule as employment to which the Act applies. 9. The notification dated 19th August, 1987 fixed the minimum rates of wages for the employees engaged in any kind of work in the Shops and Commercial Establishment through out the State of Karnataka. Sl. No. 4 in Group 5 of the said notification deals with weighman. 10. The argument is, in the schedule to the Shops and Establishments Act, there is no mention about the employment in regulated market, mandies, bazars and other similar places and therefore the liability to pay the minimum wages to an employee of the APMC is not attracted. The said argument is though attractive on the face of it is without any substance. It is true that as in the case of Item No. 39 to the schedule to the Minimum Wages Act, 1948, after deletion, identical item is neither introduced in the schedule to the Shops and Establishments Act nor is available. A reading of the schedule to the Shops and Establishments Act makes it clear that it provides for payment of minimum wages to various persons mentioned in the said schedule such as Manager, Accountant, Supervisors, Stenographers, Clerk, Cashier, Typist, Salesman, Bill-collector, Watchman, Messenger, Weighing-man, Peon, etc. Therefore, if any of those persons are employed by the APMC then they are liable to pay the minimum wages if the establishment is a commercial establishment. The words "Commercial Establishment" has been defined under Section 2(e) of the Shops and

Establishments Act which reads as under: 2(e) "Commercial establishment" means a commercial or trading or banking or insurance establishment, an establishment or administrative service in which persons employed are mainly engaged in office work, a hotel, restaurant, boarding or eating house, a cafe or any other refreshment house, a theatre or any other place of public amusement or entertainment and includes such establishments as the State Government may by notification declare to be a commercial establishment for the purposes of this Act. 11. APMC Act was enacted to provide for better regulation of the marketing of agricultural produce and the establishment and administration of markets for agricultural produce in the State of Karnataka and with that object in mind they have established these markets. Therefore, the establishment falls within the definition of 'Commercial Establishment' under the Shops and Establishments Act. Section 3 of the Shops and Commercial Establishments Act specifies the category of shops to which the said Act is not applicable. As is clear from Section 3(1)(a), the Act shall not apply to officers of Central or State Government or Local Authority only commercial undertakings. Therefore, even if the APMC is the local authority, even if it is to be held that it is not a commercial undertaking, even then, only the officers appointed by the APMC are excluded from the application of this Act. In other words, the workers and employees who are not officers are entitled to payment of minimum wages under the Act. The criterion is if the establishment has employed such persons. Therefore, the contention that the Minimum Wages Act is not applicable to APMC and as the APMC as such is not mentioned in the schedule to the Shops and Commercial Establishments Act, is not applicable is without any substance. If the APMC employs any person mentioned in the Schedule, then they are liable to pay the minimum wages under the Act. 12. Point No. 2.--The question is whether the weighmen are employees of APMC, In order to find out the status of weighmen in the APMC Yard, we have to look into the provisions of the Act and the Rules framed thereunder. The word 'weighmen' has not been defined under the Act. However the word 'weighment' has been defined which includes 'counting' or 'measurement'. Section 72 of the Act deals with the meaning of licence. Once such person to whom licence is granted under Section 72 is a weighmen, The aforesaid provisions provides that on an application made by any person in the prescribed form and after making such enquiries as it deems fit, the Market Committee grants or renews licence for the use of any place in the market area for the sale of the notified agricultural produce or for operating therein as a trader, commission agent, broker, processor, weighmen, measurer, surveyor, warehouseman or any other market functionary in relation to the marketing of agricultural produce, or may, after recording its reasons in writing therefor, refuse to grant or renew any such licence. Section 73 deals with the power to cancel or suspend licences. Section 74 provides for remedy to aggrieved persons whose licence has been suspended or cancelled. 13. Rule 79 of the Karnataka Agricultural Produce Marketing (Regulation) Rules, 1968 (for short hereinafter referred to as the "Rules") provide that no person shall operate as a weighmen, measurer, surveyor, hamalis, cartmen, owner of public carrier or as any other market functionary in any market area except under a licence in Form 37 granted by the Market Committee. A weighmen who wants licence should apply in Form 44, and he shall also pay such fee not exceeding rupees one hundred as may be specified in the bye-laws for grant of such licence. If the APMC does not find any ground to refuse any such licence they shall grant licence in Form 37. On issue of such licence, the licensee shall execute an agreement in such form as the Market Committee may determine, agreeing to

comply with these rules and the bye-laws of the Market Committee. The duration of the licence is till the end of the market year in which it has been granted. It is liable to be renewed after the expiry of the said period. However, no person shall be entitled to do business as a market functionary other than that for which he holds a licence. One of the prerequisite for grant of licence as a weighmen is, he should not be in employment of another person or firm who has been granted a licence by the committee. Suppressing the said fact if any licence is obtained, it amounts to breach of conditions of licence and the committee reserved the power to cancel the said licence after hearing the said licensee. 14. Sub-section (19-A) of Section 2 defines Market Charges, which means all charges in connection with the handling of agricultural produce such as the commission of commission agents, brokerages, remuneration for weighment, loading, unloading, cleaning, sorting, counting, sieving and dressing of agricultural produce. Section 79-A of the Act provides that all market charges payable after the sale of the agricultural produce shall be recovered from the buyer. Therefore, it is clear that the remuneration for weighment made by weighmen falls within the definition of market charges and is payable by the buyer. The rates at which the said weighment charges are payable are prescribed under the bye-laws. 15. This Court had an occasion to consider whether a weighman employed by a Market Committee constituted under APMC Act is an employee of that committee. After noticing the various provisions of the APMC Act and the rules framed this Court in the case of Raghunath and Ors. v. State of Karnataka and Ors. MANU/KA/0104/2000 : ILR2000KAR277 has held as under: Having regard to the functions of the Weighman as a market functionary, as envisaged and enumerated in the Act and the Rules, it cannot be said that the relationship between the Market Committee and a Weighman is that of an employer and employee. He is only a licence holder permitted to carry on a trade/vocation in the market area. In the discharge of some of his functions, he may at best be an agent of the Market Committee. The market functionary has an obligation to pay licence fee to the Market Committee. But there is no obligation on the Market Committee to pay any fee, charge, consideration, remuneration, much less a salary to any market functionary under the Act. When the relationship is not that of employer and employee, the question of the Weighmen requiring the Market Committee to pay a minimum wage to them does not arise. The petitioners contend that the work of Weighmen is constantly supervised by the Market Committees, that the Market Committees allot the work to them; that apart from the work assigned to them by the respective Market Committees, they cannot operate independently in the market yard; that they are accountable to the Market Committee in regard to their work; that their hours of work and manner of work are regulated by the Market Committees; and that therefore there is a relationship of employer and employee between the Market Committee and the Weighmen and such relationship ought to have been recognised, if not for the purpose of other enactments, but at least for the purpose of applying the minimum wages to such Weighmen. It should however be remembers that the supervision, control and regulation, which is referred to by the petitioner is applicable not only to Weighmen, but all categories of market functionaries. The Market Committees are statutory Authorities established for supervising, controlling and regulating the marketing and merely because the Market Committee exercises supervisory control over the Weighmen, it cannot be said that the same would result in relationship of employer and employee. Having regard to the provisions of the Act and the Rules, Weighmen are licensed market

functionaries discharging the functions specified in the Act, Rules and the respective Bye-laws of the Market Committee, and it is not possible to hold that the Weighmen have any position or stands other than licensed market functionaries. 16. Learned Counsel for the respondent relied on several judgments of the Supreme Court in support of his contention that notwithstanding the fact that these weighman have to obtain licence under the Act and Rules perform the functions of weighman, if we look into the evidence on record, the nature of work they carry on, the type of control the Market Committee exercise over these weighman, the remuneration they receive for the work they perform and the way the business is carried on in the market yard it is clear that they are workmen employed by the Market Committee to perform the work on weighing in the market yard. They work from morning to evening and every day the Market Committee specifies the shop/place where they have to carry on their functions and after weighing the commodities it is they who make entry in the book maintained for the said purpose and in the end of the day the committee collects money from the buyers and payments are made once in a month to all these weighmen. In the event of these weighmen not reporting to work in time, not performing their work according to the stipulations the committee initiates disciplinary action. These undisputed facts would clearly show that these weighmen are employed by the committee and the committee has complete control and supervision over these weighmen and therefore the contention that there is no relationship of employer and employee has no substance. 17. Before the Controlling Authority, both the parties have adduced evidence to substantiate their respective contentions. Witnesses on behalf of the Market Committee have categorically stated the procedure prescribed for obtaining licence, the fee to be paid for obtaining the licence, issue of licence, how the contract is entrusted to these weighmen and what are the powers APMC exercises in respect of these weighmen and the nature of control they do possess against these weighmen. On behalf of the weighmen evidence has been adduced to show that they are expected to report at the market yard at a particular hour and they worked throughout the day, every day they are assigned to a shop where they carry on their function, if there is any default in performance of their function notices have been issued calling upon them to show cause why action should not be taken, they are not paid money directly by the buyer for the work they perform, the money is collected by the APMC and once in a month payments are made etc. 18. Similar evidence and contentions were considered by this Court in the aforesaid judgment and it was held that, notwithstanding all these material, in view of the statutory provisions and settled legal position these weighmen cannot be considered as employees as defined under the Act. In respect of weighmen of APMC Yard at Bangalore, in terms of the direction issued by this Court a scheme was formulated and in terms of the scheme certain benefits are given to the weighmen. In the aforesaid judgment this Court has held that weighmen who are working at APMC Yard, Bangalore, cannot be treated on par with the weighmen who are working at other APMC Yards. Even in the aforesaid judgment of the Division Bench on which reliance is placed by this Court it has not been held that weighmen at APMC Yard at Bangalore are employees and that they are entitled to be paid minimum wages. Having regard to the volume of work turned out in APMC Yard at Bangalore, and in view of the provisions contained in the scheme, probably

in the end of the day the total remuneration or commission they receive per month either is equal to the minimum wages or more than that. That is because, as held in the aforesaid judgment in APMC Yard at Bangalore, the work is there throughout the year and large quantity of products are sold, where as in other APMC yard the work is seasonal and quantity which is turned out has no comparison to the quantity of business which is turned out in APMC, Bangalore, Therefore, the said judgment is of no assistance. 19. In this context it is also necessary to look into the definition of employee contained in the Act. Section 2(i)defines "employee" as under; 2(i) "Employee" means any person who is employed for hire or reward to do any work, skilled or unskilled, manual or clerical, in a scheduled employment in respect of which minimum rates of wages have been fixed; and includes an out-worker to whom any articles or materials are given out by another person to be made up cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for the purposes of the trade or business of the other person where the process is to be carried out either in the home of the out-worker or in some other premises not being premises under the control and management of that other person; and also includes an employee declared to be an employee by the appropriate Government; but does not include any member of the Armed Forces of the Union. The aforesaid definition makes it very clear that, an employee is a person who is employed for hire or reward to do any work in a scheduled employment. Employer is one who employs whether directly or through another person in any scheduled employment. Therefore, the employment of a person in a scheduled employment is the determining factor. If there is no such employment, then such a person cannot claim to be the employee of the APMC. Under the Act, weighman is a market functionary. He is a licence holder permitted to carry on trade/vocation in the market area. The licence has to be renewed from time to time on payment of fee prescribed. The Market Committee has not issued any appointment order to the weighman, employing him as their employee. There is no obligation cast on the Market Committee to pay any fee, charge, consideration, remuneration, much less, salary to the weighman. There exists no jural relationship of master and servant or employer and employee. When the relationship is disputed, the burden of proof is on the workman to establish the employer and employee relationship. The question whether the relationship between the parties is one of employer and employee is a pure question of fact. Where a person asserts the relationship and it is denied by the employer, it is for the employee and not for employer to prove the fact. The employee has to plead and prove the relationship of employment between him and the employer in relation to establishment by adducing evidence before the Tribunal. Once that evidence is adduced, the status of the employee has to be covered as a matter of law from the facts found and if the question involved is one of drawing a legal inference as to the status of a party from the facts found, then it is not a pure question of fact, but necessarily becomes a mixed question of facts and law. It is useful to remember in this context the difference between the contract for service andcontract of service. A contract of service is one in which a person undertakes to serve the industry and to obey its reasonable orders within the scope of the duty he undertakes. The distinction is, in the one case the master can order or require what is to be done, while in the other case, he cannot only order or require what is to be done, but how itself it shall be done. Under a contract of service a man is employed as a part of business and his work is done as an integral part of the business, whereas, under a contract for service, his work, although done for the business, is not

integrated into it but is only accessory to it. The test of being a servant does not rest on submission to orders. It depends on whether the person is part and parcel of the organisation. 20. If we apply these tests to the facts of this case, the relationship between the petitioner and the weighman in the APMC yard, it is case of contract for service and not contract of service. There exists no relationship of master and servant between the APMC and the weighman. The relationship is that of a licensor and licensee. Therefore, what is paid by the APMC yard to the weighman is not wages, Weighman are not employed in the APMC yard. They are neither employed for hire or reward, to do any work, by the APMC. Therefore, as the weighman do not satisfy the definition of employee as contained in Section 2(1) of the Act, the Act is not applicable to the weighman. Therefore, seen from any angle having regard to the material on record, the law declared by this Court in the aforesaid judgment, it is not possible to hold that these weighmen are employees under the Act, and that they are entitled to minimum wages under the Act. As such, their claim for fixing the minimum rates of wages has to fail. 21. In view of my findings the impugned orders passed by the Controlling Authority are one without jurisdiction and that these weighmen as they are not employees under the Act are not entitled to payment of minimum wages under the Act. Hence, I pass the following order: Writ petitions are allowed. The impugned orders passed by the Controlling Authority are hereby quashed. Parties are directed to bear their own costs. Manupatra Information Solutions Pvt. Ltd.