Whether an employee is workman or not a workman under the Industrial Disputes Act, 1947.

To determine if an employee is a workman or not under the Act is a subject of intractable controversy. When an employee is involved in a dispute with the employer or in a situation where his employment is terminated and such individual wants to avail the protective umbrella of the Act, the employer contests by raising an objection that the employee is not a workman within the definition of the Act. This article discusses various factors which determine the circumstances when an employee will be considered a workman.

WORKMAN UNDER INDUSTRIAL DISPUTES ACT, 1947

The Industrial Disputes Act, 1947 (Act) means any business, trade, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen is the governing legislation that provides the machinery and procedure for the amicable settlement of conflicts between an employer and employee so that industrial peace is maintained. This Act applies to all industries and establishments which employ workers, irrespective of the number employed. Under Section 2(j) of the Act, the definition of "industry”. The term "industry" has evolved, and at present it covers even establishments run without any profit motive, such as government undertakings, statutory bodies and corporations, clubs, chambers of commerce, educational institutions, co-operatives, research institutions, charitable projects and other kindred activities.

The Industrial Disputes Act under Section 2(s) defines a “Workman” as–

Any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be expressed or implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-

• Who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
• Who is employed in the police service or as an officer or other employee of a prison; or
• Who is employed mainly in a managerial or administrative capacity; or
• Who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by nature of duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

STATUTORY DEFINITION & ITS ANALYSIS

The definition can be split into three parts:

The first part envisages that for any person employed in an industry to qualify as a workman, he must be engaged in a type of work mentioned in the definition. The second part gives an extended meaning to the word workman as it includes employees dismissed, discharged or retrenched in connection with an industrial dispute or whose dismissal, discharge or retrenchment has led to an industrial dispute. The third part is exclusionary in nature.

Therefore, it is clear that all workmen are employees but all employees may not be workmen for the purpose of the Act. In order to be a workman it is not necessary that a person must be employed in a substantive capacity. This means every person employed in an industry, regardless of his status of an apprentice (considered as a trainee), permanent or probationer will be treated as a workman. Not all apprentices will fall within the four corners of the definition; Indian jurisprudence has made it clear that an apprentice be treated as a workman provided he performs duties of a workman.

The important question is what does it mean to be a workman? The answer lies in the fact that every employee covered in the definition can avail various benefits under the Act. A workman can raise an industrial dispute with the employer regarding discharge, dismissal, retrenchment or termination of his services. Section 25F of the Act provides mandatory conditions for retrenchment of workers.

In Purandaran vs Hindustan Lever Limited the petitioner adopted the Voluntary Retirement Scheme (VRS)   introduced by the respondent and, subsequently, left employment. Thereafter, he learned that there was a change of terms in the VRS under which 15% in excess of what the petitioner got was payable. The petitioner claimed the payment of the enhanced amount from the respondent and raised an industrial dispute. The Court held that the petitioner had adopted the VRS, which amounted to his resignation, and, as a result thereof he is not entitled to claim the status of a workman and so cannot raise any industrial dispute. Clearly, the prerequisite for an industrial dispute is that the person raising it must fulfil the criteria of a workman.

IMPORTANT POINTS

• The object of Industrial Disputes Act, 1947 is to make provisions for the investigation and settlement of industrial disputes, and for certain other purposes between employer and workers. Therefore it is necessary to give an elaborate definition explaining what sort of persons come under the purview of ‘workman’. The approach of Section 2(s) is a positive one and not a negative one.
• The word ‘workman’ means any person employed in any industry etc. It is a very exhaustive term, including any person, apprentice employed in any industry to do any manual, skilled, unskilled, technical, operational, clerical or supervisory work for hire or reward etc.
• Certain categories of persons viz the persons having managerial or administrative capacity are excluded from the definition of workman. There is a difference between ‘supervisory’, ‘managerial’ or ‘administrative’ capacity.
• Whether the piece-rated workers are to be treated as workmen?

This is the most important question raised before the Courts on several occasions. In the leading case Silver Jubilee Tailoring House vs. Chief Inspector of Shops and Establishments and Shining Tailors vs. Industrial Tribunal, the Supreme Court gave judgments in favour of piece-rated workers holding them as workmen within the meaning of Section 2(s) of the Industrial disputes Act, 1947.

In Arkal Govind Raj Rao vs Ciba Geigy of India Ltd it was observed that: where an employee has multifarious duties and a question is raised whether he is a workman or some other than a workman the Court must find out what are the primary and basic duties of the person concerned and if he is incidentally asked to do some other work, which may not be necessarily in tune with basic duties, these additional duties cannot change the character and status of the person concerned. In other words, dominant purpose of the employment must first be taken into consideration and gloss of some additional duties must be rejected while determining the status and character of a person. Therefore, in determining which of the employees in various categories are covered by the definition of a workman one has to see what is the main or substantial work which he is employed to do.

In R.G. Makwana vs. Gujarat State Road Transport Corporation ( The High Court of Gujarat) has held that any person who has been dismissed, discharged or retrenched in connection with or as a consequence of a dispute is also included within the definition of the workman under Section 2(s). What is important and relevant is the date of reference. As on that date requisite conditions of the definition of the term ‘workman’ as per Section 2(s) have to be satisfied. In this case the workman was a dismissed workman and his salary on the date of reference was clearly covered by the main definition of the term workman and did not fall within the accepted category of clause (iv).

FACTORS WHICH DETERMINE WHEN AN EMPLOYEE WILL BE A WORKMAN

• Contract of employment: The first essential condition for a person to be a workman is that there must be a contract of employment between the parties and a relationship of employer-employee or master-servant must exist. Indian courts have ruled that the prima facie test to determine the relationship between master and servant is the existence of the right in the master to supervise and control the work done. It is important to be able to direct not only the work to be performed but also the manner in which it shall be done.

An employment contract also establishes an employer-employee relationship, and in the absence of which no person can claim to be a workman. For instance, professionals like doctors, lawyers, physicians who render part-time services in various institutions can claim the status of workman only when it is established that they render services to an employer who owns an industry.

Additionally, the employee must be paid some remuneration irrespective whether the terms of his employment are express or implied.

• Contract labour: At this stage, it is pertinent to discuss an important and a growing segment of the workforce - contract labour. Large industrial operations increasingly use the services of an independent contractor who, in turn, supplies people to an enterprise. Where a contractor employs a workman to do the work which he contracted with a third person (a company), the workman of the contractor will not become the workman of the management. For instance, employees engaged by a contractor running the canteen of a factory cannot be the employees of the company.

The contractor is responsible for payment of remuneration to the employees and not the management. However, under Indian law, the contract workers are legally bound to the contractor, but if the contractor defaults in providing any benefits that a

contract labour is entitled under the law, the principal employer is liable. The principal employer will be the company where the workers work. Contract labourers under the law are eligible to receive, from the contractor, benefits such as provident fund and employee state insurance.

There is ambiguity whether a contract worker will qualify as a workman. There have been situations where such workers have come within the ambit of the definition of a workman.

The terms of the contract between the contractor and the Company govern the employment of the contract labour. The triggers for creation of a potential industrial dispute for contract and temporary/casual employees may arise when there is: (i) a tendency/frequency to hire workers who are engaged in the activities that are contrary to any local notification prohibiting employment of contract labour, (ii) non- compliance with provisions of legislations which require employers to provide benefits to its employees including contract labour, and (iii) excessive control/check on the activities of contract labour. The Courts have held that if the principal employer keeps control on contract labour, including granting them leave or extending any salary advance, then the contract between the contractor and principal employer is a sham. In Ram Singh & Others v. U.T. of Chandigarh; both the contractor and contract labours were held to be direct employees of the principal employer.

• Employment in an industry: Another essential condition for a person to be a workman is employment in an "industry" as defined in Section 2(j) of the Act.

It is not essential that the employment in the industry should have direct nexus with the main industrial activity; the employees who are employed in connection with operations incidental to the main industry will also be treated as workmen. For instance, if workers are employed by a sugar factory to remove press-mud from the sugar factory, the workers will be considered workmen, as removing press-mud is an activity which is the part of the sugar factory.

• Nature of work: Another determinative factor is the nature of duties and functions enumerated in the definition of workman. This means that in order to become a workman, an employee must be engaged in mainly seven types of work i.e. manual, unskilled, skilled, technical, operational, clerical and supervisory work. However, under modern industrial conditions large numbers of employees are often required to do more than one work. In such a scenario, it becomes necessary to determine under which of the seven classifications the employee will fall in order to determine whether he qualifies as a workman. The scope of the present discussion is limited to the people who are engaged in doing technical, supervisory and managerial activities.

• In Bombay Dyeing and Manufacturing Co Ltd v RA Bidoo it was held that a person is said to be employed in a technical capacity if he possess some special skills. In the present case, the respondent was employed as a camera operator in the company. He was working in the screen-making department of textile mills and was responsible for testing new chemicals and graphite films and, accordingly, advice the management of their suitability. The company terminated the employment of the respondent without assigning any reason. The respondent raised an industrial dispute contending that his termination was not justified. The Court considered the nature of his work and held that the work done by him was not of a technical nature as it did not require application of any special knowledge which would result in the creation of a work peculiar to the talent of the respondent. Hence, the petition was dismissed.

  
  Technical work: Any person who is engaged in doing any technical work which involves special mental training or scientific or technical knowledge, will fall under the definition of workman. However, every work of technical nature which involves technical skill does not necessarily give rise to the relationship of employer and employee. Technical work requires training or knowledge or expertise of a particular art or science to which that works pertains.

For example, a doctor performing the duties of examining patients, diagnosing diseases and prescribing medicines is considered to possess specialized skills required for performing the job. As a result, he will qualify as a workman doing technical work only when it is established that he is employed in an industry, and where the condition of an employer-employee relationship is fulfilled. Doctors rendering professional services to various establishments or engaged in private practice where no relationship of employment is created will not be entitled to claim the status of workmen.

Therefore, it is pertinent to note here that there are two guiding factors which determine whether a technically qualified person is a workman or not. He will become a workman only when it is established that he is employed in an industry and performing work of a technical nature. However, in order to determine whether the nature of duties performed by a workman will fall under the technical category, the court has to consider the facts and circumstances of each case.

Supervisor’s predominant function is to see that work is done by workers under him in accordance with the norms laid down by the management: he has nopower to take any disciplinary action (G. M. Pillai v. A.P. Lakhmikar Judge, III Labour Court, 1998 LLR 310). In determining disputes regarding the nature of work performed by an employee and whether it was supervisory in nature or otherwise, the court considers the primary duties of an employee and functions assigned to him. An important consideration for this section is that it deals with persons doing supervisory work and earning below Rs10, 000 a month. An employee working in a supervisory capacity whose monthly salary is above the aforesaid limit will not qualify as a workman. In practice, very few people will earn the sum mentioned, and yet be supervisors. Therefore, the legislators need to evaluate the wisdom of retaining this amount.

• Supervisory work: Where the employee possess the power of assigning duties and distribution of work such authority of employee may be indicative of his being supervisor doing supervision. In a broad sense Supervisor is one who has authority over others: someone who superintends and directs others. An employee who in the interest of the employer has responsibility to directly control the work done by the other workers and if the work is not done correctly to guide them to do it correctly in accordance with norms shall certainly be a Supervisor. A supervisory work may be contra-distinguished from managerial and administrative work and, so also a supervisor from manager and administrator. In any event, Indian courts have ruled that where an employee has multifarious duties and a question is raised whether he is a workman or not, the court should consider the primary and basic duties of the person concerned. The determinative factor is the main duties of the concerned employee and not some work done incidentally. For instance, where an employee is mainly engaged in supervisory work and if he is asked incidentally to do some clerical work, these additional duties cannot change the character and status of the person and he will be considered as a workman doing supervisory work.

Moreover, if the workman is mainly engaged in work which is of manual, clerical or technical nature, the mere fact that some supervisory or other work is also done by him incidentally or as a small fraction of his work, will not take him out of the purview of the definition of a workman. In other words, the dominant purpose of employment must be first taken into consideration and the gloss of some additional duties must be rejected while determining the status and character of a person.

In Management of Sonepat Cooperative Sugar Mills Ltd. vs Ajit Singh, the respondent was appointed as a legal assistant by the appellant to prepare written statement and notices and draft legal opinions. He also used to perform some quasi- judicial functions like conducting departmental enquiries against the workmen employed in the industrial undertaking of the appellant. While he was employed by the appellant in that capacity, it was decided to abolish the position. The respondent raised an industrial dispute raising his contention that his termination was not justified. However, the appellant opposed the respondent's contention and pleaded that he was not performing any managerial or supervisory duties and, therefore, would not be a workman. The Supreme Court held that the job performed by the respondent was of "legal clerical nature" which involves creativity of mind. Further, merely because the respondent had not performed any managerial or supervisory duties did not disqualify him as a workman.

• Managerial or administrative work: The definition of workman specifically excludes a person working in a managerial or administrative capacity. The mere designation of a person as a manger or an administrator of an industry is not sufficient to conclude that he is not a workman. To ascertain his status as a workman the nature of duties assigned to him are relevant. For instance, while considering whether a software engineer is a workman or not it is essential to see whether his position has administrative or managerial powers. If he is working only in a managerial or administrative capacity he will not be a workman. Principal Nature of Duties and Functions: Whether or not an employee is a “workman” under Section 2(s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such question is determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any strait-jacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases (S. K. Maini v. M/s. Carona Sahu Company Ltd. & Ors., reported in 1994 2 CLR 359).

In Central Bank of India, Lucknow vs. Assistant Labour Commissioner, Kanpur and others, respondent was a bank manager performing managerial and administrative function as an executive officer of the branch. On account of his suspension, he raised an industrial dispute contending that his suspension is illegal. The court held that the role of a branch manager essentially consists of ensuring business development by continuously educating his customers along with his staff on various services the bank can offer. Therefore, on account of the nature of his duties which are purely of managerial and administrative nature like planning and organizing branch's performance, staff administration and development etc. he cannot come under the definition of workman. Hence, the petition was dismissed.

• The meaning of Workman Held: A person to be a workman under the IDA must be employed to do the work of any of the categories as mentioned under the Section 2(s). The same must be established even if a does not perform managerial or supervisory duties. It must be established that he performs skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward. It is not enough that he is not covered by any of the four exceptions to the definitions (Mukesh K. Tripathi v. LIC, (2004) 8 SCC 387).
• Full Time or Part Time: What is also important to note is that the definition of workmen doesn’t make any distinction between fulltime or part time employee or a person employed on contract basis. Labour/Industrial Court must determine whether a person is employed in an industry for hire or reward for doing manual/skilled/unskilled/operational/technical/or clerical work in an industry (New India Assurance Co Ltd. v A Sankaralingam, (2008) 10 SCC 698).
• In Case the person regarding whom the dispute is raised is not a Workman? Where the Workmen raise a dispute as against their employer, the person regarding whose employment, non-employment, terms of employment or conditions of labor the dispute is raised, need not be, strictly speaking, a ‘workman’ within the meaning of the Act, but must be one in whose employment, non-employment, terms of employment or conditions of labor the workmen as a class have a direct or substantial interest. The expression ‘any person’ in section 2(k) of the ID Act must be read subject to limitations and qualifications.

The Section 2(k) of the ID Act states that:

Means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labor, of any persons;

The two crucial limitations are (1) the dispute must be a real dispute between the parties to the dispute so as to be capable of settlement or adjudication by one party to the dispute giving necessary relief to the other; and (2) the person regarding whom the dispute is raised must be one in whose employment, non- employment terms of employment, or conditions of labor, the parties to the dispute have a direct or substantial interest (Workmen of Dimakatch Tea Estate

v. Management of D.T.E., AIR 1958 SC 353).

Power to take Disciplinary action

THINGS TO BE CONSIDERED WHILE DETERMINING WHETHER AN EMPLOYEE IS A WORKMAN OR NOT?

CASE LAWS: WHO IS A WORKMAN UNDER I. D. ACT 1947?

• In Chintaman rao vs. state of Madhya Pradesh AIR (1958) SC 358

It was held that there should be a contractual relationship between master and servant i.e. the workman is under the supervision, direction and control of his master.

•  In Atam prakash & ors vs. state of Haryana & ors 1997 (2) LLJ (P & H)

It was held that to be a workman within section 2(s) of this Act he should be employed in an industry and there should be master servant relationship.

• In John joseph khokar vs. bhadange B. S. & ors 1998 (1) LLJ 447 (bom)

It was held that in determining that whether a person is a workman or not the court has to principally see main or substantial work for which he is employed. Neither designation nor any incidental work done by him will get him outside the purview of this Act.

• In Physical Research Laboratory vs. K.G. Sharma (SUPREME COURT OF INDIA)

It was held that Laboratory Ahmadabad, would come within the definition of "workmen" under the Industrial Disputes Act and other similar legislation in the field of relations between employers and employees."

In Arun Kumar Ramkrishna Datta vs. Gujarat Co-operative Oilseeds Growers Federation Ltd., 2004 (100) FLR 7 (IT Ahmedabad) (Sum) the following test have been laid down :

1. It is the dominant purpose of the employment that is relevant and not some additional duties which may be performed by the employee.
2. It is not the designation of the post held by the employee which is relevant, but what is relevant is the nature of duties performed by the employee.
3. The Court has to find out whether the employee can bind the company in the matter of some decision taken on behalf of the company.
4. What is the nature of the supervisory duties performed by the employee? Do they include directing the subordinates to do their work and/or to oversee their performance?
5. Does the employee have power either to recommend or sanction leave of the workman working under him?
6. Does he have the power to take any disciplinary action against the workmen working under him?
7. Does he have the power to assign duties and distribute the work?
8. Does the employee have the authority to indent material and to distribute the same amongst the workmen?
9. Does the employee have power to supervise the work of men or does he supervise only machines and not the work of men?
10. Does the employee have any workmen working under him and does he write their confidential report?

WHO IS NOT A WORKMAN UNDER I.D. ACT 1947

There are certain employees who cannot be considered as workmen by the statute as per section 2 (s)

• In Ved prakash gupta vs. m/s delton cable India (p) ltd., AIR 1984 SC 914

It was held that a person employed in managerial capacity or administrative capacity is not a workman.

• In Bhaskaram vs. kerela state electricity board 1986 LLN 869

It was held that an apprentice cannot claim any privilege as workman.

• In Vimal kumar Jain vs. labour court, Kanpur & anrs. , AIR 1988 SC 384

It was held that maintenance engineer supervising the work of maintenance with the power to grant leave, to initiate disciplinary proceedings and to make temporary appointments is not a workman.

• In State of Maharashtra & ors vs. shaligram, s/o dhondbaji charjan & ors, 1998(2) LLR 1012 (bom)

The above view regarding medical officers was confirmed. It was held that empowered with administrative work and supervisory work over the staff working under him cannot be regarded as workman.

• In Mar Baselius Medical Mission Hospital v. Joseph Babu 2007 II LLJ 925 (Ker) It was held that a doctor examining patients, diagnosing diseases and prescribing medicines as a full-time employee of hospital cannot be a "workman", irrespective of his designation.

RECENT DISPUTES OVER STATUS OF WORKMAN

Pilots removed from workman category.

Govt says they perform managerial and administrative work.

Pilots of AI agitates for being removed from the workman category

CONCLUSION

Courts and scholars have been grappling with the question of ‘who is a workmen’ for centuries. A single uniform definition for ‘workman’ is the need of the hour, considering all the confusion of the courts on the subject as to who is workman and who is not, under the various legislations. While determining an employee is workman or not we have to assess the dominant nature of work, disciplinary powers, employer- employee relationship, supervision, power to assign leaves and other important things discussed above and it also varies from situation to situation.

REFERENCES:

• Websites:

• www.Indiakanoon.org
• www.legalservicesindia.com
• www.legalindia.com
• Labor Law Reporter

• E-paper:

• epaper.indianexpress.com
• www.thehindu.com

• Books:

• The industrial Disputes act – S.D Puri