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Definability of Workmen
Labour laws in India are enacted both by the Central and State Government with some overlap between the two in implementation. India over the years has had a multitude of laws governing labour and employment which has usually made compliance very arduous for businesses but has usually provided a fair amount of protection to employees. In 2020/2021, the Indian Government has subsumed over 29 Central laws and corresponding State laws into four major Labour Codes, with the aim to simplify, modernise and restructure the current regime and increase the ease of doing business in India. The Labour Codes have been enacted and are likely to be implemented in 2021. For most businesses, this year would involve straddling the requirements of the existing laws while modifying their current practices to comply with the changes coming with the implementation of the Labour Codes. The Government of India now has four Labour Codes: the Code on Wages, 2019; the Industrial Relations Code, 2020; the Occupational Safety, Health and Working Conditions Code, 2020; and the Code on Social Security, 2020. All the Labour Codes have been aimed at broadening the scope of coverage, rights and protections, reducing multiplicity in definitions, authorities and compliances, and embracing more digitisation in registrations/compliances. However, at the same time, the Labour Codes are largely a consolidation of existing laws rather than a significant overhaul of them, with there not being substantial changes in the position of law itself. The Code of Wages, 2019 (“Wage Code”) amalgamates four labour laws pertaining to minimum wages, payment of wages, applicable deductions, statutory bonus and equal remuneration to employees. The Wage Code covers the different aspects of wages payable to employees. The most significant aspect of the Wage Code is the uniform definition of wages which has also been adopted across the other three Labour Codes as well as broadening its applicability to all establishments. The Industrial Relations Code, 2020 (“IRC”) subsumes three major pieces of labour legislation that deal primarily with employee working conditions, separations from employment, industrial disputes and collective bargain. The IRC has been the most contentious legislation with workmen and trade unions in India believing that their existing rights have been curtailed and more benefits provided to the employer since threshold limits for applicability in terms of working conditions and termination have been increased and their right to strike without due notice having been more firmly regulated. However, the majority of right and protections have actually been retained for employees and in fact the coverage has broadened on account of certain changes in definitions. It also encourages more industries to expand operations since the law is not as onerous in some aspects as before. The Occupational Safety, Health and Working Conditions Code, 2020 (“OSHWC Code”) repeals 13 central labour laws which are applicable to various types of industries which deal and codifies in a single regulatory framework the applicable legal provisions for factories, mines, plantations, contract labour and construction establishments. The The Industrial Relations Code, 2020 (“IRC”) and The Occupational Safety, Health and Working Conditions Code, 2020 are yet to be notified by the government of India.
The Code on Social Security, 2020 (“SS Code”) combines and repeals nine laws that were primarily employee social welfare legislation and seeks to create a comprehensive social security system to provide retirement, health, old-age, disability, unemployment and maternity benefits to a vast majority of the population. The coverage for most of these has been expanded to cover the unorganised sector (self-employed or home-based) which constitutes a large segment of India’s working population as well as keeping in mind the vast number of services now provided with technology as a cornerstone such as gig (workers outside the traditional employer-employee relationship) and platform workers (who access organisations or individuals through an online platform and provide services or solve specific problems). The SS Code has certainly been beneficial for a number of classes of employees, but may prove to be a greater financial burden on employers. DEFINITION OF WORKMEN UNDER THE STATUTES: The Code of Wages, 2019 (“Wage Code”) Section 2 (k) "employee" means, any person (other than an apprentice engaged under the Apprentices Act, 1961), employed on wages by an establishment to do any skilled, semi- skilled or unskilled, manual, operational, supervisory, managerial, administrative, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and also includes a person declared to be an employee by the appropriate Government, but does not include any member of the Armed Forces of the Union; Section 2 (z) "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 — (i) 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 (ii) 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–– (a) who is subject to the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957; or (b) who is employed in the police service or as an officer or other employee of a prison; or (c) who is employed mainly in a managerial or administrative capacity; or (d) who is employed in a supervisory capacity drawing wage of exceeding fifteen thousand rupees per month or an amount as may be notified by the Central Government from time to time. The Industrial Relations Code, 2020 (“IRC”) Section 2 (l) "employee" means any person (other than an apprentice engaged under the Apprentices Act, 1961) employed by an industrial establishment to do any skilled, semi- skilled or unskilled, manual, operational, supervisory, managerial, administrative, technical
but does not include any member of the Armed Forces of the Union: Provided that notwithstanding anything contained in this clause, in case of a mine a person is said to be “employed” in a mine who works as the manager or who works under appointment by the owner, agent or manager of the mine or with the knowledge of the manager, whether for wages or not— (a) in any mining operation (including the concomitant operations of handling and transport of minerals upto the point of dispatch and of gathering sand and transport thereof to the mine); (b) in operations or services relating to the development of the mine including construction of plan therein but excluding construction of buildings, roads, wells and any building work not directly connected with any existing or future mining operations; (c) in operating, servicing, maintaining or repairing any part of any machinery used in or about the mine; (d) in operations, within the premises of the mine, of loading for dispatch of minerals; (e) in any office of the mine; (f) in any welfare, health, sanitary or conservancy services required to be provided under this Code relating to mine, or watch and ward, within the premises of the mine excluding residential area; or (g) in any kind of work whatsoever which is preparatory or incidental to, or connected with, mining operations Code on Social Security, 2020 Section 2(26) "employee" means any person (other than an apprentice engaged under the Apprentices Act, 1961) employed on wages by an establishment, either directly or through a contractor, to do any skilled, semi-skilled or unskilled, manual, operational, supervisory, managerial, administrative, technical, clerical or any other work, whether the terms of employment be express or implied, and also includes a person declared to be an employee by the appropriate Government, but does not include any member of the Armed Forces of the Union: Provided that for the purposes of Chapter III, except in case of the Employees’ Provident Fund Scheme and Chapter IV, the term "employee" shall mean such employee drawing wages less than or equal to the wage ceiling notified by the Central Government and includes such other persons or class of persons as the Central Government may by notification, specify to be employee, for the purposes of those Chapters: Provided further that for the purposes of counting of employees for the coverage of an establishment under Chapter III and Chapter IV, as the case may be, the employees, whose wages are more than the wage ceiling so notified by the Central Government, shall also be taken into account: Provided also that for the purposes of Chapter VII, the term "employee" shall mean only such persons as specified in the Second Schedule and such other persons or class of persons as the Central Government, or as the case may be, the State Government may add to the said Schedule, by notification, for the purposes of that Government; In the renowned case of S.K. Verma vs. Mahesh Chandra And Another, the court deduced that by keeping under the microscope the nature of duties performed and undertaken by the development officer of Life Insurance Corporation, can be held as “worker”. The duties executed and the powers so vested in such category of employees cannot be held equivalent to any administrative or managerial work. PRECEDENTS ON DEFINITION OF WORKMEN :
Chintaman Rao vs. State of Madhya Pradesh 1 , the Apex Curt said; “Worker is defined to mean a person employed, directly or through any agency, whether for wages or not, in any manufacturing process. The concept of employment involves ‘three ingredients: (1) employer (2) employee and (3) the contract of employment. The employer is one who employs, i.e., one who engages the services of other persons. The employee is one who works for another for hire. The employment is the contract of service between the employer and the employee hereunder the employee agrees to serve the employer subject to his control and supervision. The identifying mark of the latter is that he should be under the control and supervision of the employer in respect of the details of the work. The principle which emerges from these authorities is that the prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work.” Dharangadhara Chemical Works Ltd vs. State of Saurashtra^2 “The essential condition of a person being a workman within the terms of this definition is that he should be employed to do the work in that industry, that there should be, in other words, an employment of his by the employer and that there should be the relationship between the employer and him as between employer and employee or master and servant. Unless a person is thus employed there can be no question of his being a workman within the definition of the term as contained in the Act. The test which is uniformly applied in order to determine the relationship is the existence of a right of control in respect of the manner in which the work is to be done. The test which is uniformly applied in order to determine the relationship is the existence of a right of control in respect of the manner in which the work is to be done. A distinction is also drawn between a contract for services and a contract of service and that distinction is put in this way: ” In the one case the master can order or require what is to be done while in the other case she can not only order or require what is to be done but how itself it shall be done”. In the case of John Joseph Khokar vs. Bhadange B.S. & Ors^3 , the court said, “The position that emerges from the aforesaid discussion is that in determining the question whether a person employed by the employer is workman under section 2(s)of I.D. Act or not, the Court has principally to see main or substantial work for which the employee has been employed and engaged to do. Neither the designation of the employee is decisive nor any incidental work that may be done or required to be done by such employee shall get him outside the purview of workman, if the principal job and the nature of employment of such employee is manual, technical or clerical. In hierarchy of employees, some sort of supervision by the employee over the employees of the lower ladder without any control may not by itself be sufficient to bring that employee in the category of supervisor, yet if the principal job of that employee is to oversee the work of employees who are on the lower ladder of the hierarchy and she has some sort of independent discretion and judgment, obviously such employee would fall within the category of supervisor. (^1) 1958 AIR 388, 1958 SCR 1340. (^2) 1957 AIR 264, 1957 SCR 152. (^3) 1998 (1) LLJ 447 (Bom).
‘workman’ within the meaning of Section 2(s) of the act. When the said definition is looked into closely, it is apparent that an apprentice could be a workman under Section 2(s) of the Industrial Disputes Act, if she is employed to do any manual, clerical, supervisory or technical work. Therefore, on the facts and circumstances of the case it is to be seen as to whether the petitioner was employed as such to do any manual, clerical, supervisory or technical work.” In the case of M.M. Wadia Charitable Hospital vs. Dr. Umakant Ramchandra Warerkar^7 , the court said that, “The Supreme Court has now settled the law with regard to interpretation of the word ‘workman’ as defined under Section 2(s) of the Industrial Disputes Act to say that a person can acquire the status of a workman under Section 2(s)only if she falls within the first part of Section 2(s) of the Industrial Disputes Act, 1947. She must be employed to do manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward. If she fails in any of the above categories in the first part of Section 2(s), then the Court has to ascertain as to whether she stands excluded by the four exceptions carved out in the latter half of Section 2(s) of the act. In the present case, as stated herein above, respondents are eminent doctors. They have rendered service to the society which cannot be disputed. I do not wish to go into the merits of the matter because principally, in this matter, I am not inclined to accept the view of the Labour Court that the said respondents are ‘workman’ as defined under Section 2(s) of the Industrial Disputes Act, 1947 and if that be the case, then doctors were not entitled to raise a dispute under Section 10 of the Industrial Disputes Act.” In the case of Vimal Kumar Jain vs. Labour Court, Kanpur & Anrs 8 , the court said that, “The Labour Court has found that she is not a workman. The evidence is that she supervises the work of the maintenance department in the capacity of Maintenance Engineer and that he does the work through fitters and turners etc. who are his subordinates. It is also pointed out that he grants leave, initiates disciplinary proceedings etc. She has also power to make temporary appointments. We are of the view that the Labour Court is right in holding that the petitioner is not a workman.” In Ved Prakash Gupta vs. M/S Delton Cable India (P) Ltd 9 , it was held that a person employed in managerial capacity or administrative capacity is not a workman as per section 2 of the Industrial Dispute Act, 1947. Devinder Singh vs. Municipal Council^10 , Further, 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”. as per section 2 of Industrial Disputes Act, 1947. (^7) 1997 (75) FLR 814, (1997) IILLJ 549 Bom. (^8) AIR 1988 SC 384, (1998) IIILLJ 537 SC, 1987 Supp (1) SCC 40. (^9) AIR 1984 SC 914. (^10) (2011) 6 SCC 584.
Gobind vs. Presiding Officer, Labour Court and Another 11 , The The Industrial Disputes Act, 1947 does not differentiate between part-time, full time, casual, daily wage, regular or permanent workman. (^11) (2012) ILR 2 Punjab and Haryana 637.
