Last Updated :
Often used interchangeably, servant and agent are far different as far as the legal connotation is concerned. Hence, their difference becomes important to understand the liabilities for two respective positions. Philosophically and legally, their difference is drawn out in the following article.
Introduction
In the commercial world, and that too in a digitalised and over-competitive world, the increasing demands of consumer satisfaction need more and more hands to mete out with the transactions. Thus, only one person would fall short of manpower to conduct this mammoth task. Since the same person cannot be present everywhere, the commercial prudence demands, that the person conducting the transaction appoints another person to perform some or all of the duties as allotted.
On this basis, two classes of people arise. One in a dominating role and the other in a subordinate role. The ones in the former can be Master or the Principal, whereas in the second category would be Servants or Agents respectively. There are independent contractors also appointed to do the adjoining tasks. But in the present article, the distinction between a servant and agent would be highlighted.
Points of Difference
1. Degree of Control
The oft-quoted passage from the landmark judgment of Lakshminarayan Ram Gopal & Sons Ltd. v. Govt. of Hyderabad,[1] is as follows-
“An agent is to be distinguished on the one hand from a servant, and on the other from an independent contractor. A servant acts under the direct control and supervision of his master, and is bound to conform to all reasonable orders given to him in the course of his work; and independent contractor, on the other hand, is entirely independent of any control or interference and merely undertakes to produce a specified result, employing his own means to produce that result.
An agent, though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the direct control or supervision of the principal. An agent, as such is not a servant, but a servant is generally for some purposes his master’s implied agent, the extent of the agency depending upon the duties or position of the servant.”
The said passage is taken from the Halsbury Laws of England.[2] This shows the test of control exercised by the person in the dominating position. On this basis, the court has crafted a distinction between the two categories of persons at the subordinate position.
For a servant, the degree of control is higher whereas, for an agent, the same is lower. It is because the Principal can ask his/ her servant what to be done but the Master can certainly direct how it is to be done is.[3]
2. Substance and Procedure
The difference between the relations of master and servant and of principal and agent is also highlighted when a principal has the right to direct what work the agent has to do: but a master has the further right to direct how the work is to be done. [4]
Hence, the Master can determine the substance as well as the procedure of the task whereas the Principal only has a right over the substance of the task, rest the procedure is in the hands of the agent.
3. Directness of supervision
A servant acts under the direct control and supervision of his master and is bound to conform to all reasonable orders given to him in the course of his work; whereas, for an agent, that direct supervision is thus, absent.[5]
4. Control over means
In Pollock’s Law on Torts, the distinction has thus been brought out. “A master is one who not only prescribes to the workman the end of his work but directs or at any moment may direct the means also or as it has been put, ‘retains the power of controlling the work’, a servant is a person subject to the command of his master as to the manner in which he shall do his work”[6]
But for the agent, there is substantial discretion provided so as to control the means of performing the task.
Conclusion
This distinction shows the level of subordination that exists between the two levels differs and partakes different shades of liabilities for specific persons. Law has taken care of both the positions band according to the needs has provided with legal liabilities.
[1] Lakshminarayan Ram Gopal & Sons Ltd. v. Govt. of Hyderabad, AIR 1954 SC 364: (1954) 25 ITR 449.
[2] Halsbury’s Laws of England (Hailsham Edn.) Volume 1, at p. 193.
[3] Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, (1966) 3 SCR 527: AIR 1966 SC 1697.
[4] Qamar Shaffi Tyabji v. CEPT, (1960) 3 SCR 546: AIR 1960 SC 1269 : (1960) 39 ITR 611.
[5] Id.
[6] Shivnandan Sharma v. Punjab National Bank Ltd., AIR 1955 SC 404: (1955) 1 SCR 1427.
