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Judgment
Shah, J.—These are two petitions field under Art. 226 of the Constitution amongst others where common questions are involved. It is, therefore, proposed to dispose of the same at the 5 admission stage by a common judgment and order.
Petition No. 4587 of 1987 has been filed by Abad Dairy Dudh Vitaran Kendra Sanchalak Mandal against the State of Gujarat and the General Manager, Abad Dairy, inter alia for a writ, direction or order quashing and setting aside the order dated 19th July 1986 (Annexure C) as being illegal, perverse and contrary to the provisions of law and for an appropriate direction to the Government to refer the disputes in question to the Industrial Tribunal for adjudication. The said order was in respect of the demands made by the petitioner against respondent 2. After taking into consideration the report of the Conciliation Officer, the Government reached the conclusion that the members of the petitioner were not, workmen'' within the meaning of the Industrial Disputes Act, 1947 and so it was not possible to refer the disputes to the Industrial Tribunal for adjudication under the Act. Hence the said petition.
The same petitioner has filed another petition No. 2492 of 1988 against Abad Dairy, Gujarat Dairy Development Corporation Ltd., and the State of Gujarat wherein inter alia it has challenged the orders of termination of services such as Annexure BB of its members. By virtue of an order dated 30th June 1988 granted in Civil Application No. 1178 of 1988 permitting amendments, petitioner has prayed for further ''reliefs as under :-
"(a) for a declaration that the new agreement at Annexure ''W'' is an attempt to overreach the process of the Court, unconscionable, opposed to public policy, vitiated by extraneous considerations and is otherwise also arbitrary, inequitable, unfair and unconstitutional and for a permanent injunction restraining the respondent authorities from altering the status quo with regard to the service conditions of the members of the petitioner-Union;
(b) for a direction to respondents to grant the increase in commission of milk distribution as per the Circular No. 1 dated 26th April 1988 marked Annexure ''DD'' to all the Booth-in-charge, without insisting upon them to sign new agreement and for a further direction to the respondents to grant the complimentary gift of Steel Utensil (Tapeli) without any condition as mentioned in Annexure CC;" Both the petitions are opposed and it is submitted that both the petitions should be dismissed summarily.
Two questions which go to the root of the matter arise for consideration :-
(1) Whether the agreement or agreements, as the case may be, between the parties are service contracts so that the members of the petitioner-Union can be regarded as ''workmen'' within the meaning of the said Act ?
(2) If no, whether both or either of the agreements can be set aside on the grounds alleged by the petitioner ?
A copy of the old agreement is at pages 145-147 in Special Civil Application No. 2492 of 1988. A copy of the new agreement is at pages 151-153 of the said petition No. 2492 of 1988.
On behalf of the respondents 1 and 2 in Special Civil Application No. 2492 of 1988 an affidavit of Mr. Sitaram Lingam, Manager (Marketing) of respondents 1 and 2 dated 14th June 1988 has been put on record. It has been specifically stated in the said affidavit that relations between the dairy and the commission agents are contractual in nature; that once the contract is entered into between the parties, the parties are in the realm of contract and for any breach of the contract or the disputed issues arising out of the said contract, a writ petition under Art. 226 of the Constitution is not a remedy; and that the party aggrieved if it feels that there is a breach of contract, then it has a civil remedy which can be enforced in a Civil Court. It has been specifically contended that the petition involves disputed questions of facts and that the commission agents, whom the petitioner-Union purports to represent, are not the employees of the respondent I-Dairy; and that they are commission agents and independent contractors. It has also been averred in the said affidavit that there is no master and servant relationship between the commission agent and respondents 1 and 2.
The aforesaid agreements are for the purpose of selling milk at various booths in the city of is Ahmedabad. Both the aforesaid agreements do not seem to be contracts of service. They are not personal service contracts, as is normally understood. The agreements show that they bind the heirs and successors of the commission agents, which could never be in the case of personal service contracts. It is also to be noticed that under the agreements, the commission agent, who is selling milk of respondents 1 and 2 at various booths, does not sell the milk for and on behalf of the respondent-Dairy. The required quantity of milk by a particular commission agent is to be indented by him in advance, that is to say, on the previous day and the milk once indented and delivered to the commission agent becomes the property and responsibility of the commission agents. The unsold milk lying with the commission agent is not taken back by the dairy and once delivered as per the indent, the milk is not taken back except when there is a complaint 2 about curding of milk. If the said contracts were service contracts, then the dairy would be under an obligation to take back the unsold milk lying with the commission agents. Under the contract, the milk once delivered becomes the property of the commission agent, who becomes the owner of the milk so delivered.
Under the old agreement, there was no provision for time limit and so the commission agents were continued irrespective of the age of such commission agents. It is stated on affidavit that more than commission agents, out of total 900 commission agents, are presently above 60 years of age, about 18 of them are above 70 years; and about 5 have even crossed the age of 75 years. This is a clear indication that the old agreement between the parties was not a service contract and was not containing service conditions. The above deponent has given a complete statement at Annexure B to the affidavit, giving particulars of some such commission agents, who are presently above the age of 60 years. This is one of the vital features which do not support the theory advanced by the petitioner. It has further been stated in the said affidavit in the above connection that in the past, no agreement of any commission agent has been terminated on account of he or she reaching the age of 60 years.
In the said affidavit, it has further been stated that if a particular commission agent became incapable of carrying out the agreement due to old age or other physical infirmity, then the dairy has in the past transferred the agreement to the family member or nominee of such commission agent and that there are about 50 such instances, some of which have been stated in the statement at Annexure C to the said affidavit.
The contract of service is always personal in nature. It is stated in the said affidavit that in majority of the cases, the work under the agreement is not carried out personally by the commission agents; that in many cases the work is done by the persons who are totally strangers and not the family members or relatives of the commission agents; and that there are about 100 booths at which the milk is taken delivery of and sold to the consumers by the persons who are neither the family members nor the relatives of the commission agent and are persons with whom there is no agreement. The aforesaid would not have been possible had it been a contract of service.
It has further been averred in the said affidavit that there is no real supervision or control of the dairy over the manner and method of work carried out by the commission agents. The commission agent is free to sell the milk to any consumer. There are 900 booths in the city of Ahmedabad at which the milk is sold. There 20 are Area Supervisors who generally visit a booth once or twice in a month. At each booth, there is a complaint book and the supervision and control of the dairy through these supervisors is confined in respect of the complaints regarding overpricing, adulteration and refusal to sell the milk. The aforesaid supervision is of random type. It is submitted in the said affidavit that milk being an essential commodity and governed by the provisions of Prevention of Food Adulteration Act, 1956, the dairy has to look after the quality of milk because the adulteration may entail penal consequences on daily as well; and that the degree and manner of supervision does not render the agreement in question as one of contract of service. It has further been averred that the method of payments in respect of the milk sold would show that the commission agent does not deposit or pay the milk price every day and in some cases, entire milk price has also not been deposited. This aspect also militates against the theory propounded by the petitioner.
It has also been pointed out in the said affidavit that the dairy has its own full-time salesman; that the Recruitment Rules for the post of full-time salesman provide for minimum educational qualification of 7th Standard; that full-time salesmen, who are employees of the dairy, are in the pay-scale of Rs. 800-950; that there are about full-time salesmen; that they are deployed to work at various booths where the agreement of the commission agent is suspended or terminated for breach of the agreement; that it is a sort of stand-bye arrangement made by the dairy to see that the consumers of the said locality are not put to inconvenience as and when agreement of the concerned commission agent is suspended or terminated. As against the aforesaid, it is not necessary for the commission agent to possess any educational qualification. Besides, the salesman of the dairy is in fixed pay-scale whereas the commission agent would earn profit or commission depending upon the sale of milk and milk products made by him and that there are cases where the commission agent earns more than Rs. 30001/- per month, as is evident from the statement at Annexure 1 to the affidavit.
As is pointed out in the said affidavit, there are good chances in the case of commission agents to earn more and more profits and there is also a risk of loss for the commission agent, if milk remains unsold with him and is not taken back by the dairy. This cannot happen, if the agreements in question were service contracts.
All the aforesaid features clearly point in the direction that both the agreements are in the nature of contracts as between two principals; that the commission agents are independent contractors; and that there are no relations of master and servant or employer and employee between the petitioner and respondents 1 and 2 . The petitioner has, therefore, failed to point out that either or both the said agreements are service agreements and contain service conditions.
It is necessary to note another aspect of the matter, which has also relevance regarding the subject-matter of the petitions. Respondent Of No.I-Dairy was formerly owned and managed by the 5 Ahmedabad Municipal Corporation. It came to be transferred and entrusted to the respondent 2-Corporation in December 1979 under a tripartite by agreement reached between the Ahmedabad dis Municipal Corporation, Government of Gujarat had and respondent 2-Corporation. Since then, the dairy is known as Abad Dairy. When the dairy was taken over by the Corporation, there were about 600 milk booths in the city of Ahmedabad, as against 900 milk booths which are at present. It is to be noted that all the commission agents under the agreement with the Ahmedabad Municipal Corporation were continued by the respondent 2-Corporation and in some cases, there has also been transfer of agreements in the facts of and circumstances stated earlier. It has been specifically stated on oath in the said affidavit that there has been no termination of any agreement as and when the Corporation opened the milk booth after taking over the dairy, it adopted the form of agreement which was prevailing since the days when the dairy was run by Ahmedabad Municipal Corporation. Because of the experience gathered by taking over the dairy, it was noticed that there tb were some practical difficulties and so it was felt that the agreement required amendment or modification. Respondent No. 1, therefore, proposed the new agreement as per Annexure A to the affidavit. It has further been stated that there was no compulsion or force on any of the existing commission agents to enter into the new agreement; that those who did not want to sign the new a agreement were at liberty to work under the old agreement; that after understanding the terms and conditions of the new agreement, 820 commission agents signed the new agreement with free consent a whereas remaining 80 did not sign the new agreement. In this connection, it has been alleged in the said affidavit that at the instance of the petitioner-Union, a joint letter purported to have ben signed by commission agents, as per 2 Annexure AA of the petition at pages 96 to 98, received by the dairy; that thereafter a further conirunication purported to have been signed by commission agents on or about 19th May 1988 alleging that their signatures on the new agreement were not with consent and that new agreement was not binding on them was received. On behalf of respondents 1 and 2, it has been submitted in the said affidavit that 820 commission agents who had signed the new agreement had done so with free consent. The facts which have been alleged by the petitioner in this connection have been disputed by the respondents 1 and 2 and it. is hardly open to this Court in these petitions under Art. 226 of the Constitution to enter into such disputed questions of fact. The admitted fact, however, remains that except the aforesaid 26 commission agents, and a further lot of 65 commission agents, the rest of the commission agents have entered into new agreements and they have not challenged the new agreements. Be that as it may, we have a clear statement made on affidavit by the aforesaid deponent in the said affidavit that those who did not want to sign the new agreement were at liberty to work under the old agreement. It is true that there is a dispute as to what would happen to those commission agents who have entered into the new agreement and have claimed that the new agreement has been entered into by them under compulsion and duress. It is to be noticed in this connection that there is a term in the new agreement that after the commission agent enters into the new agreement, old agreement in his case comes to an end. In the aforesaid circumstances, it would seem that in the case of those commission agents who agitate that they had not entered into the new agreement with free consent and had done so under coercion and duress, the remedy if at all would lie elsewhere and certainly not by way of a writ petition under Art. 226 of the Constitution. Those commission agents may have to take recourse to a Civil Court for having the said agreement set aside on any of the grounds, which are available to them under law. It is absolutely clear that this Court in these writ petitions cannot entertain such disputes based on such disputed facts. On behalf of the respondent Dairy, as per Annexure BB at page 100 of the petition No. 2492/88, a letter dated : 5th May 1988 has been addressed to one of the commission agents wherein it has been made clear that as per Clause 23 of the now agreement, the old agreement has come to an end. It has been made clear in the said letter that since the commission agent concerned was claiming that the new agreement is not binding on her, so far as respondent-Dairy was concerned the said new agreement was brought to an end because of the said stand taken by the commission agent and such a representation on behalf of the commission agent was regarded as a representation to end the new contract between the parties and so the said new contract was terminated accordingly and possession of the booth was claimed from the commission agent on that basis. As stated above, the aforesaid stand taken by the respective party is also within the realm of disputed facts and whoever feels aggrieved by the said letter may take recourse to, such action according, to law, as he or she is advised. In the present writ petitions, it is not possible to enter into such disputed questions of contractual rights and obligations based on disputed facts and decide the matters.
In view of all the aforesaid, it is not possible to hold that either of the said agreements is a service contract as claimed by the petitioners. We endorse the view that the members of the petitioner-Union are not ''workmen'' within the meaning of the said Act.
In view of what we have observed hereinabove, it is not possible in these writ petitions to set aside both or either of the said agreements on the grounds alleged by the petitioner on behalf of some of the commission agents. We, however, make it clear that the members of the petitioner-Union, if they feel aggrieved, may have recourse to the Civil Courts to ventilate their grievances, if they are so advised.
In the aforesaid view of the matter, both the petitions fail and are hereby summarily dismissed. Notices in the above Special Civil Applications are hereby discharged. The ad interim relief granted in Special Civil Application No. 2492 of 1988 is hereby vacated. In the circumstances of the case, there will be no order as to costs.