An agreement for service/employment agreement is incapable of being transferred unilaterally. Such a transfer of service from one employer to another can only be effected by a tripartite agreement between the employer, the employee and the third party, the effect of which would be to terminate the original agreement of service/employment agreement by mutual consent and to make a new employment agreement between the employee and the third party.
So long as the agreement of service/employment agreement is not terminated, a new agreement is not made as aforesaid, and the employee continues to be in the employment of the employer. Therefore, when an employer orders him to do certain work for another person the employee still continues to be in his original employment. The only thing that happens in such a case is that he carries out the orders of his master. The employee has the right to claim his wages from the employer and not from the third party to whom his services are lent or hired. It may be that such a third party may pay his wages during the time that he has hired his services, but that is because of his employment agreement with the employer. That does not preclude the employee from claiming his wages from the employer. The third party hirer may also exercise control and direction in the doing of the thing for which the employee is hired or even the manner in which it is to be done. But if the employee fails to carry out his direction he cannot dismiss him but can only complain to the employee. The ‘right of dismissal’ vests only with the employer.
The above view was taken by the Hon’ble Supreme Court of India in Manager, Pyarchand Kesarimal Porwal Bidi Factory V/s Onkar Laxman Thenge as decided on 27.09.1968.
In Manager, Pyarchand Kesarimal Porwal Bidi Factory, the Apex Court laid down that the general rule in respect of relationship of master and servant is that, when an agreement of service/employment agreementsubsists with one master it works as a bar to service with any other master, unless the agreement otherwise provides or the master consents. Further, it was observed that in certain cases, however, it is possible that an employee has different employers, this happens when the employer, in pursuance of an agreement between him and a third party, lends or hires out the services of his employee to that third party for a particular work
An agreement of service/employment agreement being thus incapable of transfer unilaterally, such a transfer of service from one employer to another can only be effected by a tripartite agreement between the employer, the employee and the third party, the effect of which would be to terminate the original agreement of service by mutual consent and to make a new agreement between the employee and the third party. Therefore, so long as the agreement of service/employment agreement is not terminated, a new agreement is not made as aforesaid and the employee continues to be in the employment of the employer.
An agreement for service/employment agreement is incapable of being transferred unilaterally. Such a transfer of service from one employer to another can only be effected by a tripartite agreement between the employer, the employee and the third party, the effect of which would be to terminate the original agreement of service/employment agreement by mutual consent and to make a new employment agreement between the employee and the third party.
So long as the agreement of service/employment agreement is not terminated, a new agreement is not made as aforesaid, and the employee continues to be in the employment of the employer. Therefore, when an employer orders him to do certain work for another person the employee still continues to be in his original employment. The only thing that happens in such a case is that he carries out the orders of his master. The employee has the right to claim his wages from the employer and not from the third party to whom his services are lent or hired. It may be that such a third party may pay his wages during the time that he has hired his services, but that is because of his employment agreement with the employer. That does not preclude the employee from claiming his wages from the employer. The third party hirer may also exercise control and direction in the doing of the thing for which the employee is hired or even the manner in which it is to be done. But if the employee fails to carry out his direction he cannot dismiss him but can only complain to the employee. The ‘right of dismissal’ vests only with the employer.
The above view was taken by the Hon’ble Supreme Court of India in Manager, Pyarchand Kesarimal Porwal Bidi Factory V/s Onkar Laxman Thenge as decided on 27.09.1968.
In Manager, Pyarchand Kesarimal Porwal Bidi Factory, the Apex Court laid down that the general rule in respect of relationship of master and servant is that, when an agreement of service/employment agreementsubsists with one master it works as a bar to service with any other master, unless the agreement otherwise provides or the master consents. Further, it was observed that in certain cases, however, it is possible that an employee has different employers, this happens when the employer, in pursuance of an agreement between him and a third party, lends or hires out the services of his employee to that third party for a particular work
An agreement of service/employment agreement being thus incapable of transfer unilaterally, such a transfer of service from one employer to another can only be effected by a tripartite agreement between the employer, the employee and the third party, the effect of which would be to terminate the original agreement of service by mutual consent and to make a new agreement between the employee and the third party. Therefore, so long as the agreement of service/employment agreement is not terminated, a new agreement is not made as aforesaid and the employee continues to be in the employment of the employer.