REGULATORY FRAMEWORK:
The Industrial Disputes Act, 1947 (hereinafter the ‘Act’) is a beneficial piece of legislation, and hence the definitions of terms therein, including that of the term ‘workman’, are given wide interpretations. An attempt has been made to include a large number of categories of employees in the meaning of the term ‘workman’. The definition of ‘workman’ in the Act is as under:
Section 2(s):
“workman” means 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 express or implied, and for the purposes 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, dischasrge or retrenchment has led to that dispute, but does not include any such person–
(i) 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
(ii) Who is employed in the police service or as an officer or other employee of a prison; or
(iii) Who is employed mainly in a managerial or administrative capacity; or
(iv) Who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
As aforestated, the Act is a beneficial piece of legislation, aimed at protecting the rights and welfare of workers. The definition of ‘workman’ in the Act has been left sufficiently open ended so as to allow a wide gamut of persons to be covered by it, included workers employed through contractors, temporary workers, etc. Judicial interpretation of the term ‘workman’ has been aimed covering more and more categories of employees, as changing elements in industries tend to create work of newer and different kinds. However, although no straight jacket formula is available to determine who can be a workman, a large number of judicial precedents exist whereby many types of employment have been excluded from the definition of ‘workman’ under the Act.
In examining the question of whether an employee is a ‘workman’, the primary factor is a proper analysis of the nature of work performed by the employee, the actual nature of his functions. A common error is to assume that the designation of an employee is a determining factor as to his status as a ‘workman’. This is, however, an incomplete view, as many a time persons are designated as officers, but the nature of their functions are such as are performed by a ‘workman’. In such cases, such an employee is considered to be a workman only, regardless of his designation, and the protections available under various labour laws thereby extend over such a person.
Another important factor to be noted is that, on occasion, the duties actually performed by an employee might be substantially different from the duties that may have been stated in his Letter of Appointment, service contract, etc. For example, the duties listed in the Letter of Appointment may require an employee to identify new market opportunities, correspond with existing and potential clients, and make presentations to his superiors of his analysis of market conditions. But in reality, he may only be collecting payments from customers. This is just a simplified illustration to show that the actual duties performed by an employee may differ from what he has been employed to do. In such a case also, the courts will look at the actual duties performed instead on what is on paper.
One of the important tests that the Courts have laid down while examining the nature of work performed by an employee is to see if the work involves a certain minimal degree of creativity and exercise of intellectual skill, and taking an initiative in the absence of supervision or control. Simply put, if the employee is required to think on his feet in performing his functions, is required to make certain decisions independently as to his functioning, and is not subject to supervision and control in respect of matters in which he makes independent decisions, then such factors can lead to a conclusion that he is not a workman. This should be differentiated from the ideas of ‘skilled’ and ‘technical’ work as laid down in the definition of ‘workman’ in the Act. A driver of staff cars of a factory is a skilled worker. Similarly a typing clerk is a skilled worker. A railway engine driver may be considered a workman doing technical work. But an editor of a newspaper, or a chartered accountant, whose main duties are not clerical and are of the type which require some application of the mind and initiative, are not workmen.
For the purpose of this Note, we shall examine the examples of a teacher, a marriage counselor and a computer software / hardware professional to determine whether these may fall within the definition of ‘workman’ under the Act.
Teacher:
Ordinarily, the primary function of a teacher is to impart education. There is usually a syllabus to be followed, but the teacher has the independence to teach the syllabus in such manner as he thinks fit, and normally it requires creativity and initiative on the part of the teacher to carry out his functions.
In Miss A. Sundarambai v. Government of Goa, Daman and Diu & Ors. [1989 1 LLJ 61], the Supreme Court of India held as under:
“… we are of the view that the teachers employed by educational institutions, whether the said institutions are imparting primary, secondary, graduate or post-graduate education cannot be called as ‘workman’ within the meaning of Section 2(s) of the Act. Imparting of education which is the main function of teachers cannot be considered as skilled or unskilled manual work or supervisory or technical work or clerical work… The clerical work, if any they may do, is only incidental to their principal work of teaching.”
Thus, a teacher, though performing work that requires skill, and even technical knowledge and application, is not a workman.
Marriage Counselor:
The work of a Marriage Counselor to examine whether the relations between spouses has so irretrievably broken as to warrant a divorce, is one that requires a significant degree insight, judgement, knowledge, skill and creativity. Even though a marriage counselor may have a set of more or less standard questions which s/he may ask each couple, yet the counselor is expected to understand the purport of each such question, and must ultimately make an assessment based on his / her judgement as to whether or not an amicably settlement can be arrived at between the spouses.
The Bombay High Court has held in Chandrakant Devu Shinde, Kolhapur v. Director, Chhatrapati Shah Central Institute of Business Education & research, Kolhapur [2005 LLR 1206 (Bom HC)] that a Social Case Worker, helping to settle matrimonial disputes, will not be a ‘workman’.
Thus, from our analysis above, and the pronouncement of the Bombay High Court shows that a marriage counselor is not workman.
Software Engineer:
On the question of whether a software professional or a computer hardware engineer is a ‘workman’, there appear to be no judicial pronouncements. In the circumstances, the nature of work done by such professionals need to be examined.
A computer software / hardware installation professional, from the nature of his job, is required to be aware of the software / hardware that he may be installing. A software professional must be aware of the software, how it functions, what problems may arise in the use of the software and how to tackle such problems, system requirements for effective use of the software, and many other factors. Also, when installing new software at customer locations, often the software professional is required to impart basic training to the customer in the usage and maintenance of the new software. Although these functions may be seen as highly skilled and technical in nature, these are not expected out of a workman, nor does a workman perform such functions.
In the case of installation of computer hardware, the technician is also required to check if the hardware has been installed properly, and whether its components are working properly. Inevitably, there is some kind of software associated with the functioning of the hardware, and hence, in case there is any problem in installing the hardware or associated software, or carrying out maintenance activity thereon, the technician must be aware of discovering the problem, isolating it and finding the solution. The technician is required to be creative in finding quicker and lasting solutions, and works more or less independently without control or supervision while carrying out his activities. Also, when installing hardware, the technician is often required to impart some basic information to the customer as to the effective use and basic maintenance of the hardware. In such circumstances, it may be stated that such a technician is not a workman.
As has been aforestated, in the absence of case law on the subject, the cardinal rule in determining whether a computer software or hardware professional can be classified as a ‘workman’ will be to look at the actual nature of work performed and will naturally be on a case to case basis. But, as seen from the points above, the general functions of a computer software or hardware professional are such that he may be considered to be excluded from the definition of a ‘workman’ under the Act.
CONCLUSION
In conclusion, the following points emerge:
- The definition of workman is intentionally open ended and courts tend to interpret it as widely as possible to protect more and more employees.
- There is no straight jacket formula in determining whether an employee is a workman. Reference to his designation is not sufficient, and the true nature of his functions must be examined.
- Certain general tests to show that an employee is not a workman are to examine if his job mainly involves a certain amount of creativity, initiative, independent judgement, and is not mainly of a clerical nature, or only involving manual labour without proper application of mind, or any such clerical or manual work is only incidental to his main working. However, these should not be considered the only guidelines to determine whether or not an employee is a workman, and it may differ on a case to case basis.
- There seem to be no court decisions on whether a computer software / hardware professional is a workman. However, an examination of the functions generally performed by such employees shows that they are not likely to be considered as workmen.