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Employees
engaged in jobs outsourced by the Principal Employer
to outside factories/establishments which are not
having independent Code Nos. but such outsourced job
is being undertaken under the supervision of the
Principal Employer or his agent are to be covered
under Section 2 (9) (ii) of the Act. In this case
also compliance in respect of employees engaged in
such work is to be made by the Principal Employer.
Although the degree of
control and supervision would be different in
different types of industries, the following
parameters for construing supervision will be kept
in view:-
(a) In case where
the employee is put to work under the eye and gaze
of the Principal Employer, or his agent, where he
can be watched secretly, accidentally or
occasionally, while the work is in progress so as to
scrutinize the quality thereof and to detect faults
therein, as also put to timely remedial measures by
direction given, finally leading to the satisfactory
completion and acceptance of work amounts to
supervision, for the purpose of Section 2 (9) of the
Act. This has been held by the Hon’ble Supreme Court
in the case of CESE ltd. Vs. S.C. Bose & Ors. (Civil
Appeal Nos. 3197-98 of 1988 : SC)
(b) The right of the
Principal Employer to reject the finished product
after the work is over would not alone constitute
supervision. The ‘supervision’ has to be established
while the work is in progress. This has been held by
the Hon’ble Supreme Court in the case of CESE Ltd.
Vs. S.C. Bose & Ors. (Civil Appeal Nos. 3197-98 of
1988 : SC)
(c) The right to
control the manner of work is not the exclusive test
for determining the relationship of employer and
employees. It is also to be considered as to who
provides the equipment. The fact that the sewing
machines on which the workers do the work, generally
belong to the employer, is an important
consideration for deciding that the relationship is
that of Master and Servant. This has been held by
Hon’ble Supreme Court in the case of M/s. Silver
Jubilee Tailoring House and others Vs. Chief
Inspector of Shops and Establishments (AIR 1974 : SC
37)
However, these parameters are illustrative in nature
and Inspecting authorities will examine the process
of outsourcing in each case based on on the spot’
verification as well as verification of records so
as to ascertain factual position. |
