Industrial Disputes Act 1947 came into effect immediately after independence and the object of the Act was to provide for machinery for investigation and settlement of Industrial Disputes. Section 2(s) of the Act provides for definition of Workman.
The employment pattern has undergone a change more particularly in the recent past. The courts have examined the definition of Workman from time to time based on various judgements. The note is prepared to give an idea in a nutshell as to who is a workman, who is not and what the Indian employment laws have to say about the issue.
A bare reading of the definition provided in Section 2(s) shows that workman means any person employed to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward and includes even dismissed, discharged or retrenched workmen in connection with Industrial Disputes but the definition also provides for exceptions. Exceptions III, IV need to be considered for this write up as I and II are applicable to Armed Forces and Police Service. The exceptions in III and IV take employees employed mainly in managerial or administrative capacity out of the definition of workman. The Supervisors drawing wages exceeding Rs 10,000/- is also out of the definition of Workman.
Under labour and industrial law, while deciding whether a particular person is a workman or not, his designation is not the only criteria. The dominant nature of the work is an important criterion. While deciding whether the person is a workman or not it is the dominant purpose of the employment that is relevant. The designation is not relevant but what is relevant is the nature of duties performed by the employee.
While deciding whether the person is discharging supervisory duties or not it has to be considered whether the nature of duties include directing the subordinates to do their work and/ or to oversee their performance.
One of the criteria is also to examine whether the employee has power either to recommend or sanction leave of the workman working under him and does he have power to take any disciplinary action against the workman.
Other important factors are whether the employee has power to indent material or has power to supervise work of men under him and his decisions can bind the Company.
It is very difficult to decide whether an employee is a workman or not. There are no clear cut distinctions laid down under labour laws in India either. The said issue shall have to be decided by the Courts based on evidence of the parties. The person claiming to be a Workman has to lead evidence in support of his contention. Such evidence can be oral as well as documentary.
While deciding whether an employee is a workman or not important aspects such as role played by the person in performance appraisal, benefits availed by the employee, authorisation to initiate disciplinary action against employees are also some of the considerations.
While examining whether the person is employed mainly in managerial or administrative capacity it is necessary to look into the duties performed by the person. Essentially if an employee engaged in a managerial capacity is called upon to look after the interest of the management, to discharge a part of the function of furthering the business of the employer and in a manner which would warrant a degree of independence in action within the limits of authority, then such a workman will not be covered under the definition of Workman.
The definition of Manager provided in the following dictionaries will have to also be seen –
According to ‘WORDS & PHRASES LEGALLY DEFINED’ (Butterworths, 3rd Edition, Page 93), the phrase, ‘Manager of the Company’ is explained as, “prima facie according to the ordinary meaning of the words, connotes a person holding, whether de jure or de facto, a post in or with the company of a nature charging him with the duty of managing the affairs of the company for the company’s benefit.”
Again, in WORDS & PHRASES, the word, ‘Managerial’ was explained as, “…something pertaining to or characteristic of a manager and it is equally obvious, that the word, ‘manager’ means one who manages….it (manage) apparently includes the action or manner of conducting affairs or administering and directing or controlling any matter. It is obvious, I think, that the essential meaning of the word is to control and direct and that must obviously include not only administration but direction of planning for any particular enterprise…”
Further, BLACK’S LAW DICTIONARY defines ‘Manager’ as;
“1) A person who administers or supervises the affairs of a business, office or other organization, General Manager: A manager who has overall control of a business, office or other organization including authority over other managers. A manager is usually equivalent to the President or the CEO of a Corporation.”
In WEBSTER ILLUSTRATED CONTEMPORARY DICTIONARY (Encyclopaedic Edition), the expression ‘Manager’ is defined as;
“1) One who manages, especially one who has the control of a business.
2) One who directs or oversees the affairs of a household, athletic team etc.”
BOUVIERS LAW DICTIONARY (Unabridged Rawl’es Third Revision Vo. 2 page 2073) defines ‘Manager’ as –
“A person appointed or elected to manage the affairs of another. A term applied to those Officers of a Corporation who are authorised to manage its affairs. One who has the conduct or direction of anything.”
Business in the recent years has been marked by rapid organizational changes. The swift evolution of technology has lead to changes in business environment. While providing for definition of workman in 1947, the present business environment in 2012 would have never been anticipated by anybody. Therefore, the Courts have accepted that business in recent years has been marked by rapid organizational changes and that the definition of workman will have to be considered in light of the present business environment.
While deciding the supervisory nature of work, even the work such as supervision over the quality of the work, machines is also considered as a part of supervisory work in the facts and circumstances of the particular case. The Courts have held that the concept that supervisory work means the person should have control over the subordinates and power to sanction/recommend leaves, give promotions etc. is only one of the facets of the supervisory work.
The case law on the subject is very wide as can be seen from various judgements. The issue whether an employee is a workman or not is not covered under Indian employment law but is subject to judicial scrutiny. The factors mentioned herein above such as dominant nature of duties, powers of taking decisions, power to sanction/ recommend leave are some of the important considerations.
The Hon’ble Allahabad High Court, Division Bench, in the matters of Dr PN Gulati V/s Presiding Office, Labour Court, Gorakhpur, 1977 as well as Dr Surendra Kumar Shukla V/s Union of India & Ors., has held that a Doctor is employed for doing the work of technical nature as predominant duty of the Doctor was to attend sick workers and render medical aid to them.
However, Bombay High Court, Single Judge, in the matter of Ramesh, son of Ram Rao V/s Commissioner, Revenue Division, Amravati, in WP No. 517/ 1994 dated 3.10.1994 in Para 11 has made the following observation –
“The word ‘technical’ has not to be read in contradistinction with the word ‘simple’. All the work which requires technical knowledge need not necessarily be technical work. The word ‘technical’ has different connotation. In the “technical” work, there would hardly be any scope for judging, opining or evaluating. It cannot, therefore, be held that a duty to treat the patient is merely of a technical nature. If that be so, even a surgeon will be doing a “technical job’. That cannot be the import of law. The labour law is meant for the welfare of labourers. If Labour Courts under that law waste their time in holding that the doctors and engineers are labourers and deciding their claims, it will be an unfortunate state of affairs.”
The judgements referred above will show how complex is the nature of the question of who is workman under industrial and labour laws in India.
Besides the factors mentioned herein above educational qualification is also another important consideration to determine whether a person can be termed as a worker. If the employee has educational qualifications and he is better equipped than other persons, if he has specialised educational background and experience and has acquired special skills, the Courts have held that such a person is not a Workman.
Some of the important judgements on the subject matter are –
1. HR Adyanathaya etc. etc. V/s Sandoz (India) Ltd., etc. etc. Civil Appeal No. 235 of 1983, Decided on 11.08.1994
2. Burmah Shell Oil Storage & Distribution Co. of India V/s Burmah Shell Management Staff Association, Civil Appeal Nos. 1477 and 1478 of 1970, Decided on 12.11.1970
3. Western India Match Co. Ltd. V/s Their Workmen, Decided on 03.05.1963
4. Ved Prakash Gupta V/s Delton Cable India Pvt. Ltd., Civil Appeal No. 1673 of 1982, Decided On: 08.03.1984
5. Arkal Govind Raj Rao V/s Ciba Geigy of India Ltd., Bombay, Civil Appeal No. 2638 of 1980, Decided On: 06.05.1985
6. Miss A Sundarambal V/s Government of Goa, Daman & Diu & Ors., Civil Appeal No. 1776(NL) of 1984, Decided On: 27.07.1988
The question whether the employee is workman or not is a matter of evidence and not clearly covered by employment laws in India and therefore all relevant factors shall have to be looked into before coming to the conclusion whether the employee is a workman or not. The write up is illustrative only.