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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 Code. Thus, the concept of workman is central to the concept of an industrial dispute as an industrial dispute can be raised either by a “workman” or an “employer.” This article discusses various factors which determine the circumstances when an employee will be considered a workman/worker.

According to Section 2(q) of the Industrial Relations Code, 2020, “industrial dispute” means any dispute or difference between employers and employers or between employers and workers or between workers and workers which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person and includes any dispute or difference between an individual worker and an employer connected with, or arising out of discharge, dismissal, retrenchment or termination of such worker.

According to Section 2(zr) of the Industrial Disputes Act, 2020, “worker” means any person (except an apprentice as defined under clause (aa) of section 2 of the Apprentices Act, 1961) 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 includes working journalists as defined in clause (f) of section 2 of the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 and sales promotion employees as defined in clause (d) of section 2 of the Sales Promotion Employees (Conditions of Service) Act, 1976, and for the purposes of any proceeding under this Code in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched or otherwise terminated 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—

(i) who is subject to the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 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 is employed in a supervisory capacity drawing wages exceeding eighteen thousand rupees per month or an amount as may be notified by the Central Government from time to time:

Provided that for the purposes of Chapter III, “worker”—

(a) means all persons employed in trade or industry; and

(b) includes the worker as defined in clause (m) of section 2 of the Unorganised Workers’ Social Security Act, 2008.

Who is not workman?

Under the definition of worker under Code, following are not workman:

An apprentice as defined under clause (aa) of section 2 of the Apprentices Act, 1961; or

A person who is subject to the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957; or

a person who is employed in the police service or as an officer or other employee of a prison; or

A person who is employed mainly in a managerial or administrative capacity; or

A person who is employed in a supervisory capacity drawing wages exceeding eighteen thousand rupees per month or an amount as may be notified by the Central Government from time to time.

Who is worker?

He is not excluded in the definition.

Any person 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.

The definition includes working journalists as defined in clause (f) of section 2 of the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 and sales promotion employees as defined in clause (d) of section 2 of the Sales Promotion Employees (Conditions of Service) Act, 1976, and

for the purposes of any proceeding under this Code in relation to an industrial dispute, the definition includes any such person who has been dismissed, discharged or retrenched or otherwise terminated in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute,

In Purandaran v. Hindustan Lever Limited, 2001 (89) FLR 522 case, 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.

Factors to be Considered:

1. The existence of master-Servant Relationship.
2. When the claimant is performing various functions, the main one for which he is employed should be considered.
3. Work is manual, skilled, unskilled, technical, operational, clerical or supervisory in nature.
4. Claimant does not fall into any of the exceptions.

Since the Industrial Disputes Act, 1947 (Now the Industrial Relations Code, 2020) is a piece of beneficial legislation, the courts have enlarged the scope and applicability of this Act by giving wide interpretation to the term “workman/worker.”

In Chintaman Rao v. State of Madhya Pradesh AIR 1958 SC 358 case, the Supreme Court held that a person is a workman when there is a Master-Servant relationship.

In Atam Prakash v. state of Haryana, 1997 (2) LLJ (P & H) case, the Court 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 Physical Research Laboratory vs. K.G. Sharma, 8 April, 1997 case, the Supreme Courtheld 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 John Joseph Khokar v. Bhadange B. S 1998 (1) LLJ 447 (Bom) case, the Court held that when a person is performing various functions which overlap in their characteristics, the nature of main function for which the claimant is employed should be considered.

In Arun Kumar Ramkrishna Datta vs. Gujarat Co-operative Oilseeds Growers Federation Ltd., 2004 (100) FLR 7 case, the Court laid down following test to determine employer-employee relations and to find whether an employee is a workman or not under Industrial Disputes Act:

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?

In Devinder Singh v Municipal Council, (2011) 6 SCC 584 case, the Supreme Court held that designation, source of employment, method of recruitment, terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment should not be considered while determining whether a person can be termed as “workman.”

Piece rate pay occurs when workers are paid by the unit performed (e.g. the number of tee shirts or bricks produced) instead of being paid on the basis of time spent on the job.

In Silver Jubilee Tailoring House v. Chief Inspector of Shops, 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 (S. 2(q) of the Industrial Relations Code, 2020).

In Bhaskaram vs. Kerela State Electricity Board, 1986 LLN 869 case, the Court held that an apprentice cannot claim any privilege as workman.

Supervisory and Managerial Work:

A person working in purely managerial and/or supervisory capacity does not fall within the definition of workman under ID Act. However, when a person performs multifarious functions, the nature of the main function performed by the person has to be considered to determine if the person is a “workman.” The managerial functions may not be performed as a consequence of a written contract but may be implied from the powers vested in a person or the nature of his duties. A managerial work includes powers and duties related to hiring and firing of new employees, grant of leave to employees and actual participation in the policy of the business.

The designation of a person is not a conclusive factor in determining the nature of work. 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. Thus, a supervisor is a person who sees or looks after the work of other employees or in other words supervises them. He is not a worker when:

1. He is employed in a supervisory capacity;
2. He performs mainly managerial functions; and
3. He draws wages exceeding Rs. 10,000 a month.

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 example: 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.

In Delta Jute & Industries Ltd. Staff Association v. State of West Bengal, 2015(145) FLR 105 case, the Court held that even if a person is designated as supervisor, the employer has to prove that his work and his duties were in nature of a supervisor.

In Arkal Govind Raj Rao v. Ciba Geigy of India Ltd, AIR 1985 SC 985 case,the Supreme Court 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 Burmah Shell Oil Storage and Distributing Company of India Ltd. v. Burmah Shell Management Staff Association, AIR 1971 SC 922 case, the Court held that a mere leader of a team who makes checks and forwards it to seniors for consideration cannot be said to be covered within the exception.

In The Workmen v. Greaves Cotton & Co. Ltd., 1972 SCR 1373 case, the Supreme Court held that a supervisor earning less than 6,500/- (Now Rs. 10,000) may also raise an industrial dispute for an increment in wages which may eventually exclude him from the definition of workman.

In Ved prakash gupta vs. m/s delton cable India (p) ltd., AIR 1984 SC 914 case, the Supreme Court held that a person employed in managerial capacity or administrative capacity is not a workman.

In Vimal kumar Jain v. labour court, Kanpur, AIR 1988 SC 384 case, the Apex Court 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 v. Shaligram, s/o Dhondbaji Charjan, 1998(2) LLR 1012 (Bom) case, the Court held that medical officers 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) case, the Court 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.

In Management of Sonepat Cooperative Sugar Mills Ltd. v. Ajit Singh, 14 February, 2005 case, where 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.

In Central Bank of India, Lucknow v. Assistant Labour Commissioner, Kanpur, case,whererespondent 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.

Technical Work:

An employee must possess the technical knowledge to be termed as a technical worker e.g., Draftsman, engineer, etc. 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. A technically qualified person 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.

In Bombay Dyeing and Manufacturing Co Ltd v RA Bidoo, 1989 (2) Bom CR 367 case, where 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. The Court observed that a person is said to be employed in a technical capacity if he possess some special skills. Hence, the petition was dismissed.

Skilled and Unskilled manual and operational work:

Courts have not formulated an explanation as to who are considered as people employed in “manual and operational work.” Manual or operational work may be classified as one that requires no special set of skills. It is mostly associated with physical labour. Manual work is work that is done using physical strength and effort, either with or without tools and machines. This type of work involves using human muscles to complete tasks, such as lifting heavy objects, digging, or carrying things. It can be hard work, but it is an important part of many jobs and industries.

A Skill is the knowledge of the principles and the processes of a job and the ability to apply them in practice in a proper and approved way. 

• Unskilled Work: This work needs little or no judgment to do simple duties that can be learned on the job in a short period of time. An example of an unskilled job is one that involves putting materials on or in, or taking them off or out of a machine. A person does not gain skills by doing unskilled work.
• Semiskilled Work: This work needs some skills but does not require complex work duties. An example of a semiskilled job would be one that requires alertness and close attention to watching machine processes.
• Skilled Work: This work requires that a person use judgment. For example, a skilled job may require that a person determine the machine and manual operations to be performed in order to obtain the proper forms.

In Chandrasekhara Sharma v. C. Krishnaiah Chetty Jewellers Private Limited, 2012 (4) Kar LJ 279 case, the Court said that a salesperson may use various techniques to convince the consumers but that is not considered as use of creative or imaginative faculty and such sales person, even if he goes through a training to acquire knowledge about the product, will not be excluded from the definition of a workman.

Part Time and Full Time workman:

The number of working hours is not considered while determining whether a person qualifies as “workman” or not. However, there must exist a master-servant relationship between the employee and his employer. An independent contractor cannot be termed as a workman. The employer must be in a position to control the manner of employee’s work.

In New India Assurance Co Ltd. v A Sankaralingam, (2008) 10 SCC 698 case, the Court observed that what is 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.

In Dinesh Sharma v. State of Bihar, 1983 (31 ) BLJR 207 case, the Court observed that the ID Act does not differentiate between part-time, full time, casual, daily wage, regular or permanent workman. All such individuals are subject to ID Act if they fulfill the ingredients as provided in section 2(s) IDA.

Contract Labourers:

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.

In Ram Singh v. U.T. of Chandigarh, 7 November, 2003 case, the Supreme Court held that both the contractor and contract labours were held to be direct employees of the principal employer.

Conclusion:

For decades, courts and academics have debated the definition of “workmen” in various contexts. Given the conflicting legal interpretations of what constitutes a “workman” under the numerous laws, a single, universal definition of the term is urgently needed. Instead of the title, the type of responsibilities and authority granted to an employee is emphasised. While determining an employee is workman or not under present code 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.