The Industrial Disputes Act, 1947 (hereinafter the “Act”) is a welfare legislation enacted for the investigation and settlement of industrial disputes arising between the employers, or between the employers and the workmen, or between the workmen in connection with the employment or non-employment or the terms of employment or with the conditions of labour. Given the benefits such as compensation for termination or reinstatement of services extended to an employee who falls within the definition of a workman under the Act; a prominent topic of debate in the field of employment law has been whether an engineer, teacher, lawyer, doctor can be treated as a workman under the Act or not?
Benefits of being a Workman under the Industrial Disputes Act, 1947
If an employee is a workman as per the definition given under the Industrial Disputes Act, then in cases of any dispute such an employee can approach the authorities provided under the Act. Due to the pandemic and imposition of lockdowns the businesses have been gravely impacted and the unemployment rate has increased. A person who is a workman has been wrongfully laid off or retrenched by his/her employer can approach the conciliation officer appointed under the Act and then a labor court. If an industrial establishment closes down or if a workman is retrenched or laid-off, then such a workman should be compensated as per the provisions of the Act.
Legally speaking termination of services is carried out either through the route of (i) lay-off; or (ii) through retrenchment route. The Act defines Lay off and Retrenchment as follows:
“(kkk) “lay-off” (with its grammatical variations and cognate expressions) means the failure, refusal or inability of an employer on account of shortage of coal, power or raw materials or the accumulation of stocks or the break-down of machinery or natural calamity or for any other connected reason to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched.
Explanation.—Every workman whose name is borne on the muster rolls of the industrial establishment and who presents himself for work at the establishment at the time appointed for the purpose during normal working hours on any day and is not given employment by the employer within two hours of his so presenting himself shall be deemed to have been laid-off for that day within the meaning of this clause:
Provided that if the workman, instead of being given employment at the commencement of any shift for any day is asked to present himself for the purpose during the second half of the shift for the day and is given employment then, he shall be deemed to have been laid-off only for one-half of that day:
Provided further that if he is not given any such employment even after so presenting himself, he shall not be deemed to have been laid-off for the second half of the shift for the day and shall be entitled to full basic wages and dearness allowance for that part of the day;”
“(oo) “retrenchment” means the termination by the employer of the service of a workman for any any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include—
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or
(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill-health;”
In order to determine whether or not an engineer, teacher, lawyer or doctor is a workman under the Act we first have to understand the definition of “workman”. Further, to determine the scope and applicability of the definition of workman, it is also necessary to interpret the meaning of the term ‘industry’ which has been defined under the Act.
Section 2 (s) of the Industrial Disputes Act, 1947 defines the term “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 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, 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 (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 ten thousand 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.”
Section 2 (j) of the Act defines the term “industry” as:
“industry” means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen”
On a literal interpretation of the term industry, it is clear that the scope of the definition is very wide, and it includes all kinds of companies including technology companies.
The issues for consideration with respect to the term Workman under the Industrial Disputes Act 1947 are:
- Who is a Workman?
- Is a Doctor, Lawyer and a Teacher considered to be a Workman?
- Is an Engineer considered to be a ‘Workman’?
There are several case laws which lay down and reiterate the principles around which the term ‘Workman’ is required to be interpreted. Relevant extracts from the leading case laws, which contain within them the present legal position around the term Workman and also answer the above-mentioned questions, are set out and discussed below.
- Who is a Workman? –
The position of law on the meaning of ‘workman’ under the Industrial Disputes Act 1947 has been crystallized clearly in Sundarambal vs. Government of Goa, Daman and Diu and Ors., AIR 1988 SC 1700, (the “Sundarambal Case”). The relevant extracts from the case have been set out for the reader. In the Sunderbal Case, Hon’ble E.S. Venkataramiah and N.D. Ojha, JJ. held as follows:
“8. In order to be a workman, a person should be one who satisfies the following conditions : (i) he should be a person employed in an industry for hire or reward; (ii) he should be engaged in skilled or unskilled manual, supervisory, technical or clerical work; and (iii) he should not be a person falling under any of the four clauses, i.e., (i) to (iv) mentioned in the definition of ‘workman’ in Section 2(s) of the Act. The definition also provides that a workman employed in an industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, an industrial dispute, or whose dismissal, discharge or retrenchment has led to that dispute.
9. We are concerned in this case primarily with the meaning of the words ‘skilled or unskilled manual, supervisory, technical or clerical work’. If an employee in an industry is not a person engaged in doing work falling in any of these categories, he would not be a workman at all even though he is employed in an industry. The question for consideration before us is whether a teacher in a school falls under any of the four categories, namely, a person doing any skilled or unskilled manual work, supervisory work, technical work or clerical work. If he does not satisfy any one of the above descriptions he would not be workman even though he is an employee of an industry as settled by this Court in May and Baker (India) Ltd. v. Their Workmen., MANU/SC/0410/1961 : (1961) IILLJ 94 SC . In that case this Court had to consider the question whether a person employed by a pharmaceutical firm as a representative (for canvassing orders) whose duties consisted mainly of canvassing orders and any clerical or manual work that he had to do was only incidental to his main work of canvassing could be considered as a workman as defined in the Act. Dealing with the said question Wanchoo, J. (as he then was) observed thus:
As ‘workman’ was then defined as any person employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward. Therefore, doing manual or clerical work was necessary before a person could be called a workman. This definition came for consideration before industrial tribunals and it was consistently held that the designation of the employee was not of great moment and what was of importance was the nature of his duties. If the nature of the duties is manual or clerical, then the person must be held to be a workman. On the other hand if manual or clerical work is only a small part of the duties of the person concerned and incidental to his main work which is not manual or clerical, then such a person would not be a workman. It has, therefore, to be seen in each case from the nature of the duties whether a person employed is a workman or not, under the definition of that work as it existed before the amendment of 1956. ….”
Ratio (a principle that the case established)
It can be interpreted from the Sundarambal Case that a person can be a workman if employed in an industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward. The court was of the view that the nature of the person’s duties is of importance and not the designation while determining if a person is a workman or not. If a person is an employee in an industry and is not engaged in doing work falling under any of the four categories, namely, a person doing any skilled or unskilled manual work, supervisory work, technical work or clerical work such an employee would not be a workman at all even though he is employed in an industry.
Further, the Act also provides that following persons will not be treated as a workman under the Act a subject of the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957; or a person 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, being employed in a supervisory capacity, draws wages exceeding ten thousand 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.
- Is a Doctor, Lawyer and a Teacher also considered to be a Workman?
a) Is a Teacher considered to be a Workman?
While considering whether or not a teacher is a ‘workman’, the Hon’ble Supreme Court in the Sunderbal case went onto hold as follows:
“10. … . … whether … a teacher in a school can be called a workman. 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 ‘workmen’ 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 work or technical work or clerical work. Imparting of education is in the nature of a mission or a noble vocation. A teacher educates children, he moulds their character, builds up their personality and makes them fit to become responsible citizens. Children grow under the care of teachers. The clerical work, if any they may do, is only incidental to their principal work of teaching. We agree with the reasons given by the High Court for taking the view that teachers cannot be treated as ‘workmen’ as defined under the Act. It is not possible to accept the suggestion that having regard to the object of the Act, all employees in an industry except those falling under the four exceptions (i) to (iv) in Section 2(s) of the Act should be treated as workmen. The acceptance of this argument will render the words ‘to do any skilled or unskilled manual, supervisory, technical or clerical work’ meaningless. A liberal construction as suggested would have been possible only in the absence of these words. The decision in May and Baker (India) Ltd. v. Their Workmen, (supra) precludes us from taking such a view. We, therefore, hold that the High Court was right in holding that the appellant was not a ‘workman’ though the school was an industry in view of the definition of ‘workman’ as it now stands.”
Therefore, Teachers are not considered as ‘workman’.
b) Is a Lawyer considered to be a Workman?
In Muir Mills Unit of N.T.C (U.P.) Ltd. V. Swayam Prakash Srivastava and Ors. (AIR 2007 SC 519) (“Muir Mills Case”), the principal issue that came up for the court’s consideration was:
Whether or not a ‘legal assistant’ falls under the definition of workman under the Act? In this regard, in the Muir Mills Case, it was held as follows:
“… 38. Furthermore, if we draw a distinction between occupation and profession we can see that an occupation is a principal activity (job, work or calling) that earns money (regular wage or salary) for a person and a profession is an occupation that requires extensive training and the study and mastery of specialised knowledge and usually has a professional association, ethical code and process of certification or licensing. Classically, there were only three professions: ministry, medicine and law. These three professions each hold to a specific code of ethics and members are almost universally required to swear to some form of oath to uphold those ethics, therefore “professing” to a higher standard of accountability. Each of these professions also provides and requires extensive training in the meaning, value and importance of its particular oath in the practise of that profession.
39. A member of a profession is termed a professional However, professional is also used for the acceptance of payment for an activity. Also a profession can also refer to any activity from which one earns one’s living, so in that sense sport is a profession.
40. Therefore, it is clear that Respondent 1 herein is a professional and never can a professional be termed as a workman under any law. …”
In view of the Muir Mill Case, lawyers do not fall within the definition of ‘Workman’.
c) Is a Doctor considered to be a workman?
In ESIC Medical Officer’s Association Vs. E.S.I.C. and Ors., AIR 2014 SC 1259, (“ESIC Case”), Hon’ble K.S. Panicker Radhakrishnan and A.K. Sikri, considered the issue of whether medical doctors discharging functions in ESIC dispensaries/hospitals are workmen within the meaning of Section 2(s) of the ID Act. While relying on the principles in the abovementioned Sundarambal Case and the Muir Mills Case, they held that:
“… 11. We are of the view that a medical professional treating patients and diagnosing diseases cannot be held to be a “workmen” within the meaning of Section 2(s) of the ID Act. Doctors’ profession is a noble profession and is mainly dedicated to serve the society, which demands professionalism and accountability. Distinction between occupation and profession is of paramount importance. An occupation is a principal activity related to job, work or calling that earns regular wages for a person and a profession, on the other hand, requires extensive training, study and mastery of the subject, whether it is teaching students, providing legal advice or treating patients or diagnosing diseases. Persons performing such functions cannot be seen as a workman within the meaning of Section 2(s) of the ID Act. We are of the view that the principle laid down by this Court in A. Sundarambal’s case (supra) and in Muir Mills’s case (supra) squarely applies to such professionals. That being the factual and legal position, we find no reasons to interfere with the judgment of the High Court. The SLP lacks merit and is dismissed accordingly….”
Therefore, in view of the ESIC Case, the current position of law with respect to a lawyer who is engaged in providing legal advice, a doctor who is treating patients or diagnosing diseases or a teacher who is teaching students, is that such a professional cannot be seen as a workman under the Industrial Disputes Act 1947.
3) Is an Engineer considered as a ‘Workman’ under the Act?
While relying on the findings in the abovementioned Muir Mill Case, followed by the ESIC Case (also discussed above), it may be argued that because in the Muir Mill case it has been clearly held that “never can a professional be termed as a workman under any law”; and because Engineers are also professionals (when working as an engineer), they will not fall under the definition of Workman. However, the weakness in this argument is that the Muir Mill case or the ESIC Case do not take into consideration the findings with respect to engineers in Burmah Shell Oil Storage and Distribution Company of India Ltd. vs. The Burma Shell Management Staff Association and Ors., 1970 (3) SCC 378 (“Burmah Shell Case”). This case categorically discusses the scope of the term ‘technical’ in the definition of workman under the Act, with respect to an Engineer. The relevant part of the Burmah Shell Case states as follows:
“… 7. The next aspect that has to be taken notice of is that, in practice, quite a large number of employees are employed in industries to do work of more than one of the kinds mentioned in the definition. In cases where an employee is employed to do purely skilled or unskilled manual work, or supervisory work, or technical work, or clerical work, there would be no difficulty in holding him to be a workman under the appropriate classification. Frequently, however, an employee is required to do more than one kind of work. He may be doing manual work as well as supervisory work, or he may be doing clerical work as well as supervisory work. He may be doing technical work as well as clerical work. He may be doing technical work as well as supervisory work. In such cases, it would be necessary to determine under which classification he will fall for the purpose of finding out whether he does or does not go out of the definition of “workman” under the exceptions. The principle is now well-settled that, for this purpose, a workman must be held to be employed to do that work which is the main work he is required to do, even though he may be incidentally doing other type of work. In the case of May & Baker (India) Ltd.  2 L.L.J. 94, the Court, in the quotation cited above, noticed the fact that Mukerjee’s duties were mainly neither clerical nor manual. The significance attaches to the word “mainly”, because Mukerjee’s duties did involve some clerical and manual work; yet, he was held not to be a workman.
… 16. We may, to clarify this aspect, take an example of a qualified technical Engineer who is concerned with manufacture of machines. If he himself creates a machine with the use of his technical knowledge, he will certainly be held to be employed to do technical work. On the other hand, if the machine is being made by others and all he does is to give advice or guidance, the actual technical work will have to be held to be done by the mechanics carrying on the work, while his duty will only be supervisory. A more clear illustration which may be useful is that of a painter. If a person is employed to paint walls of a house or paint furniture, it would clearly be employment to do manual labour. If, on the other hand, he is an artist who paints works of art as a result of his own creative and imaginative faculty, he would be held to be employed on technical work, even though, in creating the work, he will all the time be using his own hands to paint the picture. There can be a third case where a good artist may have pupils working under him who paint artistic pictures and he only guides their work. He may, on occasions, even make some improvements by retouching the work done by the pupils. On the face of it, such a person cannot be held to be employed to do technical work; he would be a technical supervisor. These examples clearly indicate that, in the case of the Transport Engineer, whose principal duties are to see that the work is properly done by the skilled and unskilled workmen working under him, he is really employed to do supervisory work and not technical work. …”
Ratio for Engineers: Therefore, in view of the Burma Shell Case, our view is that an engineer who is employed to carryout technical work will be treated as a workman under the Industrial Disputes Act 1947. However, such an engineer should not fall under any of the categories of exclusion under clause A. Also, the main job requirement of an engineer should be that of doing technical work.
On a reading of the definitions provided under the Act along with the case laws cited under this article the following principles emerge:
In India there are approximately 40 labor laws as these laws aim to provide humane working conditions to the labor and protect the interests of these workers and regulate the sector in a manner which guarantees them those fundamental rights listed under the Indian Constitution. In order to simplify, improve the ease in compliance with the laws and ensuring uniformity in the labor laws the Ministry of Labour and Employment had introduced four Bills on labour codes to consolidate 29 central laws in 2019.
The four bills which were introduced are as follows:
- a) The Code on Wages, 2019
- b) The Code on Social Security, 2020
- c) The Occupational Safety, Health and Working Conditions Code, 2020; and
- d) The Industrial Relations Code, 2020.
The codes have been passed by the Parliament and received the President’s assent. The government of India was aiming to implement these codes by 1st April 2021 but few states are yet to notify rules under these codes. The implementation of the codes has been deferred for the time being as the Centre is of the view that they will notify the codes once states are ready with applicable rules because ‘Labour’ is a subject which falls under the concurrent list i.e. both Parliament and State legislatures have the power to make laws on this subject and the Centre wants to avoid any kind of conflict between the codes, rules framed by the Centre and states.
Written by Pritika Kumar and Simran Nandwani
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