Chapter XX. Vetanasyānapākarma, Abhyupetyāshushrūshā and Svāmipālavivāda

Volume III pp. 476–485

Chapter XX. Vetanasyānapākarma, Abhyupetyāshushrūshā and Svāmipālavivāda

VETANASYĀNĀPAKĀRAMA, ABHYUPETYĀŚUŚRŪṢĀ AND SVĀMIPĀLAVIVĀDA

(Non-payment of wages, non-rendition of service, dispute between master and herdsman ).

The question about the payment or non-payment of wages to those whose services are hired for work is dealt with under this title (Nār. IX. 1) According to Br. there ¹ are three titles of law in which the question of hiring enters, viz. abhyupetyaśuśrūṣā, vetanasyānapakāma and svāmipālavivāda. Manu and Kaut. do not treat of the first of these three Here vetanasyānapakarma will be first dealt with, then abhyupetyāśuśrūṣā and svāmipālavivāda will be separately treated of. All these three topics are concerned with masters and servants or employers and employees The rules are different according as the contract of service is for a fixed term or for an indefinite period or is for executing a definite piece of work and according as the rate of wages or the hire is fixed beforehand or is not fixeḍ We have further to remember that the rules are spread over a large period i. e. from about 6th century B C. to about 500 A D. (from Gaut. and Āp. to Br. and Kāty ) The rules deal with the liabilities of both masters and servants Nār. IX. 2 states that the wages agreed upon may be paid at the beginning, in the middle or at the end of the work undertakeṇ But when no wages are settled beforehand Nār. IX. 3, Yāj. II. 194, Kaut. III. ² 13 provide that the (agent of a) trader, the cowherd, the husbandman should receive a tenth part respectively of the profit, of the milk and of the cropṣ This latter according to the Sṃ C. II p. 201 holds good where the crops are raised easily But Br. S. B. E. vol. 33 p. 345 ³ verse 13 ) lays down the rule that if the employer supplies food and clothing to the servant, the latter should get a fifth part of the crops ( if no wages are settled ) or a third part if the servant is given no food nor clothing by the employer. When no wages are settled Vrddha- Manu prescribes that proper wages will be determined by experts in carrying ⁴ maritime trade ( and other traders ) who take into consideration the time, the place and the purpose. Even when the wages were settled the employer could give less or more according to his pleasure in certain cases viz. when a servant or agent acts against the restrictions of time and place prescribed by his employer and consequently the profit is much less, the employer may give less than what is agreed but if the agent brings more profit (than expected) he may give more ( Yaj. II. 195 ). When two or more employees under- take to finish a work but cannot finish it (owing to ill-health or similar obstacle) each of them should be given the wages appropriate to the portion done by each (as settled by an arbitrator), but if the whole work is finished by them the agreed wages must be paid to all of them together (Yaj. II 196). Yaj. II. 193, Nar. IX. 4 and ⁵ Br. state that it is the duty of the employed or servant to take as much care of the utensils supplied by the employer as he would take of his own, and that he should not act in that respect wantonly ( or crookedly ) and that if he did so his wages would become lesṣ If a hired servant, after receiving his wages, does not do the work agreed to be done though able to do so, he should be made to repay to the employer the wages received and a fine equal to double of the wages and if he had not received wages but left the work without cause he should be made to pay to the employer an amount equal to the wages (Yāj II 193, Nār. IX. 5, Br. in S. B. E. vol. 33 p. 345 verse 15). Kaut (III. 14) prescribes a fine of 12 panas for a hired servant who does not undertake even after receiving the wages and that he should be compelled to do the work. Nār. IX. 5 and Kāt. 657 provide that the king should compel him to do the work and then the agreed wages may be paid to him; but if he does not do it he should be fined ⁸³² The fine in such cases according to Vrddhamanu was 200 panaṣ Manu VIII. 215 and Br. (S. B. E. 33 p. 345 verse 16) and Matsya 227. 9 provide that a hired servant, who though not ill, does not arrogantly do the work agreed should be fined eight krsnalas and would not get wages at all. This applies where a substantial portion is left undone, but where only a little of the work undertaken is left undone then the servant is not to be fined, but he would lose all the wages (Manu VIII. 217). But if a servant falls ill, then he may do the work after he becomes well and would get the agreed wages even if a long time may have elapsed (Manu VIII. 216). Kaut. (III. 14) also provides that if the servant suffers from illness or is overwhelmed by a calamity, concession may be given to him or he may offer a substitute. The Ap. Dh. S. (II. 11. 28. 2-4) prescribes that if a husbandman who is not a slave but is hired for work) gives up the work or a cowherd acts similarly he should be punished with flogging and the animals handed over to the cowherd should be taken back from hiṃ This may have been the ancient law, but it was modified in later ageṣ Kaut. (III. 13) states that if the employer does not pay the wages he should be fined six panas or a tenth part of the proper wages or the wages agreed upon and if the hired person denies the receipt of wages (though he really received them) he should be fined twelve panas or a fifth part of the wages ⁸³³ Kaut. (III. 14) further provides that in the contract of service it may be provided that the master is not to employ another servant or that the servant is not to work for another master during the period fixeḍ

Yāj. II. 197, Nār IX. 9, Kāt. 659, Viṣṇu Dh. S.⁹ V. 155–156 provide that if through the fault of a carrier (and not through act of God or the king) goods entrusted to him for carrying are lost or become deteriorated, he should be made to pay for the losṣ Vṛddha-Manu specifies that if the goods are lost through the negligence of the servant he has to pay only the price, but if through spite then he should be made to pay double the price. If a hired servant (such as a palanquin-bearer or an armed guard) causes obstruction (by refusing to work) at the time of starting for an auspicious matter (such as a marriage), he should be made to pay double the amount of the wages agreed upon and another servant may be engaged (Yāj. II. 197, Nār. IX. 8, Kāt. 658, Vṛddha-Manu in V R. p. 163). Yāj. II. 198, Nār. IX. 7 provide that if a servant abandons his work (as a bearer or guard) after a start is made (when not seized by illness) he should be made to pay ¼ or the whole of the wages according to the distance traversed and a master abandoning a servant in similar circumstances should be made to pay similarly.

If a servant agrees to take a lump sum for some work to be done for a certain period and leaves the work before the period elapses he would lose all the wages, but if he leaves in the middle of the period through the fault of the employer (such as scolding without any fault of the servant) he would be entitled to receive a proportionate part of the wages (Nār. q. by V. R. p. 161).¹⁰ Viṣṇu Dh. S V. 153-154 and 157–158 provide that in the same circumstances the servant would have to pay a fine of 100 panas and that if the employer abandons the servant before the period fixed has expired he would have to pay the whole of the wages to the servant and a fine of one hundred panas (except in the case of act of God and the king). Kāt (660) provides that a master deserting on a journey his servant that is tired or falls ill should be fined the first amercement if he does not wait for three days in the village. If a trader after engaging a vehicle or draught animals for carrying his merchandise for hire, does not employ them he should be made to pay a fourth of the hire settled and the whole of it if he discharges them when only a part of the journey has been made (Nār. IX. 7). If the merchandise be attached ¹¹ (by the king's officers for toll &c.) or be stolen the servant engaged to carry the goods will receive a proportionate amount (out of the lump sum agreed to be paid for a certain journey) according to the distance travelled (Kāt. 661). If the employer does not pay the wages of a servant even though the latter has done his work the king should make him pay the wages and also a proper fine (Br in S. B. E vol. 33 p 346 verse 18). If a man ¹² having hired elephants, horses, bulls, asses or camels does not return them even though the work (for which he hired them) is finished he should be made to restore them together with the hire (up to the day of return). The same rule applies to a man taking on rent a house or water (reservoir) or a market and not giving it up at the time fixed (Kāt. 662-663) Nār. (IX. 20-21) provides that if a person builds a house on another's land by paying rent (stoma) for the land, he may take away when vacating the land the bricks, the timber and grass (thatch) of the house built by him, but if a man builds a house on another's land without paying rent and against the owner's wish then he has to leave the materials of his house to the owner of the land when he has to give up the lanḍ An important rule is stated by Br. (S. B. E. vol. 33 p. 346 verse 17) that when a servant⁸³⁸ employ- ed by an employer does some improper act ( such as a theft ), to another for the benefit of his master, the latter would be held responsible for the losṣ The Matsyapurāṇa says that if a teacher having agreed to teach a lore or craft for money which he receives fails to do so, he should be fined the whole of the amount⁸³⁹ of the fee.

From the above it will be clear that contracts of service and letting on hire are lumped together under one head by the smṛtis

Kaut. III. 14 provides that persons may be paid wages by a guild or corporation of workers of which they are memberṣ The earnings of such guilds may be divided equally among all workers or as agreed upon among themselveṣ Yāj. II. 265 also refers to the fact that rules similar to those of partnerships may apply to guilds of husbandmen and artisanṣ

Certain rules are laid down in Nār. IX. 18, Yāj. II. 292 and Matsyapurāṇa 227. 144-146 about the monetary liabilities of prostitutes and persons visiting theṃ Vide H. of Dh. vol. II. pp. 638-39 above. The Matsyapurāṇa (227. 144-146) states that a brāhmaṇa who visits a prostitute should be fined as many panas as he paid to her, that if a prostitute after receiving her fee does not receive the visitor and goes elsewhere she should be made to pay to the visitor double of the fee and a similar sum as fine to the king, and that if one, after telling a prostitute that she is to visit a certain person, takes her to a different person, he should be fined one gold māsaka.

The Matsyapurāṇa (227.147) further states that a visitor who has had sexual intercourse with a prostitute and yet has not paid her fee should be made to pay double the (agreed) fee to her and a similar sum as fine to the king. Nārada provides that the chief prostitutes and the voluptuaries that stay with them should help in deciding monetary disputes in which prostitutes are concerned ⁸¹⁰ (q in Sṃ C. II p. 206 and others). Nār. (IX. 18-19) prescribes the payment of eight times the fee and a similar fine in the case contemplated in Matsya 227. 147.

Abhyupetyāśuśrūṣā (non-rendition of service after making a contract to serve or obey )⁸¹¹. Nār VIII. 1 defines it as the title in which after having undertaken to serve or obey one does not act up to it. The ancient dharmasūtras mention only two kinds of servants viz. agricultural labourers and herdsmen Vide Āp Dh. S. II. 11. 28. 2-3 and Gaut. XII. 16-17⁸¹². Acc. to Nār. VIII. 2 and 3 there are five kinds of servers (or atten- dants) viz. four that are called karmakara (performers of labour) and the fifth class comprehends slaves of fifteen kinds; and the four karmakaras are pupil (śisya), apprentice (antevāsin), a hired servant (bhṛtaka) and' one who supervises hired servants (adhikarmakṛt). Not being free to do as they like is the common attribute of these five kinds of attendants, but there is a distinction among them due to their castes, their peculiar actions and their mode of maintaining themselves (Nār VIII. 4). A śisya (pupil) is one who desires (from his teacher) instruc- tion in Vedic learning, an antevāsin is one who receives instruc- tion in some craft such as goldsmith's work or dancing, a hired servant is one that does some work for wages, an adhikarmakṛt is one who supervises hired servantṣ Work is of two kinds, śubha (i. e. pure, done by the four kinds of karmakaras) and aśubha i. e impure (done only by slaves). Aśubha acts com- prise ⁸¹³ (Nār. VIII. 6-7 and Kāt. 720) sweeping the doors of houses, pits in which leavings of food are thrown, roads, rubbish heaps; scratching or shampooing the private parts (of the masters); collecting and throwing away leavings of food, ordure and urine and making use of one's limbs (hand &c ) at the master's desire for wiping off the master's private parts, all other actions are pure Karmakaras do work for securing Vedic learning or vijñāna (art or craft ), some desire or money. The duties of a vedic student are described by Nāṛ. VIII 8-15 and have been set out above in H. of Dh. vol. II. pp. 305-312 viz. to wait upon the teacher, his wife and son, to beg for food, to sleep on the ground, to do the bidding of the teacher, to learn the vedas, to offer fee to the teacher at the end of vedic study. An apprentice is distinguished in his actions and mode of maintenance from a śisya. The antevāsin, acc. to Yāj. II. 134, Nāṛ. VIII. 16-21, Br. (S. B. E. vol. 33 p. 344 verse 6 ) and Kāt. 713, resides with a master craftsman to learn some⁸⁴⁴ art or craft (such as goldsmith's work, singing, dancing, house- building), agreeing to work under him for a stated period, the master craftsman gives him food and teaches him in his own house, does not put him to any other work; if the apprentice leaves the teacher even though the latter is willing to teach him, he (the pupil) should be made to stay with the teacher and may be whipped or confined; the pupil even though he may have become an adept has to stay with the master till the end of the agreed period and the teacher appropriates the fruits of the apprentice's labour. If the master does not instruct the appren- rice in the craft and makes him do other work, he would be liable to pay the first amercement and the pupil may leave him⁸⁴⁵.

Hired servants have different grades among them arising from the work they do, the wages they receive and the period for which they are employed and they are distinguished from apprentices in these respects and not as regards caste or mode of maintenance. According to Nāṛ. VIII. 22-23 and Br. (S. B. E vol. 33, p 344 verse 8 ) a hired servant is of three kinds and his wages depend on the work he does and his ability to do it. The three kinds are the highest ( viz a soldier ), middling ( an agriculturist ), the lowest⁸⁴⁶ (a porter ) A hired servant may be' engaged for a day, a fortnight, a month or for longer periods, should perform the work undertaken and get the wages agreed upoṇ' He may be paid in cash or by giving him a share of crops or a share in the milk of the cattle he tends⁸⁴⁷ A person who is employed and given authority over all servants and also one who looks to the affairs (expenditure &c.) of the household is called ‘adhikarmakṛta (or-kṛt), acc. to Nār. VIII. 24. All these four are called workers in clean occupations, while the fifteen kinds of slaves are employed in the lowest and dirtiest work (Nār. VIII. 25 ) The difference between the hired servants and slaves is this that the latter surrender all their freedom and themselves entirely to another, while the former, though dependent to some extent, do retain some freedom (Kāt 715), but a brāhmaṇa was not to be a slave⁸⁴⁸. In very ancient times the master's liability for the acts of his servant does not seem to have been recognizeḍ For example, Gaut XII 17 states that if cattle entrusted to a herdsman cause loss to crops, then the herdsman is to be held responsible (and not the owner who employs the herdsman). But Manu, VIII. 243, Yaj. II. 161, Nār XIV. 29 appear to hold the master liable to make good the loss caused by the herdsman's default Vide Br. quoted above under setanupṛ-nupakarma. The kinds of slaves and the incidents of slavery have been already dealt with in H. of Dh. vol. II pp 180–189. A few matters not referred to there may be dealt with here ‘Buddhist India’ p. 55 (by Rhys Davids ) shows how slavery in the Buddhist period was not as miserable as under the Greeks The Rajatarangini IV 39 states that king Vajrāditya of Kashmir (in the 8th Century A D. ) sold many men as slaves to Mlecchaṣ One cannot help blaming the British Indian Govern-ment for the Assam Labour and Emigration Act (VI of 1901) whereby a modified form of serfdom or slavery was legalised for the benefit of the tea planters of Assam, Bengal and other provinces and by sections 168-169 of which poor indentured labourers who were induced to labour on the sumptuous monthly wages of five rupees were liable to be sentenced to find or in default to imprisonment, if they left off the work to which by agreement they were tied down in unhealthy districts and unhealthier surroundingṣ

Kāt. (725) provides that ²² if a woman who marries a slave she becomes a slave since her husband is her lord and is dependent on his master. If a person buys or sells a brāhmaṇa woman ²³ as a slave the king should annul that transaction and all persons (concerned in it) should be fined by him and the same holds good in the case of a woman of a respectable family who took shelter with a person and was made a slave by him or transferred by him to another as a slave (Kāt. 726-727). The punishment of first amercement is prescribed for a person who has sexual intercourse with the nurse of his child or with another woman who is not a slave and the wife of his attendant as if she were a slave; and a fine of two hundred paṇas is provided in case a master who is not in difficulties and is well-off desires to sell a female slave who is faithful and weeps bitterly (being unwilling to leave him). Nār. VIII 40 provides that if a slave leaves his master and goes over to another saying ‘I am your slave’ that would not help the slave, as his former owner would be entitled to claim him back. Uśanas states ²⁴ that a guru (elderly person), a sapinda, a brāhmaṇa and persons of the lowest castes (caṇḍālas &c.) cannot be made slaves, nor can any one (of the higher castes) who is superior in learning be the slave of one of the same caste.