According to Section 2(s) of the Industrial Dispute Act, 1947, workmen are those who fulfil the following conditions: –

1. Must be employed in an Industry.
2. Must be employed to do the following: –
   1. Manual, skilled or unskilled work.
   1. Technical work.
   1. Operational work.
   1. Clerical work.
   1. Supervisory work.
3. If person is employed for supervisory work, he must not draw wages exceeding ₹10,000/-
4. Person must not be excluded from the definition of workmen u/s 2(s) of the Industrial Dispute Act, 1947. The following are specifically excluded from the definition of workmen: –
   1. Person subject to Airforce Act, 1950 or the Army Act 1950 or the Navy Act, 1957.
   1. Person employed in Police Services; Officer or other employee of prison.
   1. Person mainly employed for managerial or administrative capacity.
   1. Person employed in capacity of supervisor and draw wages exceeding ₹10,000/month (either by nature of duty or powers vested, does mainly work of managerial nature)

Manual, skilled or unskilled work, 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. The courts have excluded works which need imagination or creative skill set. A work that requires training would imply that the work is of special nature and requires a distinct application of mind. It is not considered a manual/clerical/operational work or technical work.

Clerical work: – An office performing worker who does routine desk work such as keeping records, attending to correspondence or filing of papers etc. such work may be clerical, skilled or unskilled.

Divyash Pandit vs. The National Council for Cement and Building Materials 2012 LLR 463 In this case, the employee was an engineering graduate who was carrying out research work in the process engineering field related to cement industry and had special knowledge in this line of work. The court held that research work would not be skilled, unskilled, manual or technical work and such an employee would not be a workman under the Act.

Tata Sons Ltd. vs. S. Bandyopadhyay 111 (2004) DLT 489 An employee providing consultancy services for risk management and development of business for marketing purposes was not a skilled worker. The Court in this case held that the nature of work clearly involved a considerable number of mental inputs related to creativity and imagination and that such work would not fall within the meaning of the terms manual, skilled, unskilled or technical.

Miss A. Sundarambal vs Government of Goa, Daman And Diu JT 1987 (2) 101 The question before the court was – Educational institution being industry”, whether teachers employed therein comes under the definition of “workmen” or not. The court held 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, but the clerical staff of the institution comes under the meaning of workmen.

E Joseph v. Management of Bhopal Textile Mill (1975) ILLJ 136 Mad, the court for the question of lay-off, held that, badly workers are also included in the definition of the workmen.

Employee and Independent Contractor

Dharangadhara Chemical Works v. State of Saurashtra AIR 1956 SC 264

The company takes lease for salt work and licence for manufacturing salt, which is manufactured from rain water and sea water. Area was divided into small portions called Pattas. Agarias (worker) were allotted pattas and were paid year to year. when salt crystalises, the company examines the salt and pays agarias accordingly. The rejected salt was not allowed to sell by agarias. A supervisor was employed by the company to supervise all the system. Their was not rule, leave, any order for timing for agarias. Agarias leave to their villages in rainy season and return after. In 1957, agarias get in dispute with the company. The government referred the dispute to the Industrial Tribunal which held that agarias comes under the definition of the workmen.

Company moved to High Court u/a 226 and argued that agarias are not workmen but are private contractors.

Court held the: – A contract of service is different from a contract for service.

In Contract of service: – Master can order what is to be done.

In Contract for service: – Master can order what is to be done, and how it is done.

There was total supervision of master by supervisor over the agarias. Hence, what is to be done, and how it is done existed. Hence, agarias fall under the definition of workmen.

Conclusion

In order to determine whether an employee comes under the definition of workmen or not the emphasis is laid on the nature of duties and powers conferred on an employee rather than the designation.         

Reference: –

Meenu Paul- Labour & Industrial Laws.

Cases Referred: –

• Divyash Pandit vs. The National Council for Cement and Building Materials 2012 LLR 463.
• Tata Sons Ltd. vs. S. Bandyopadhyay 111 (2004) DLT 489.
• Miss A. Sundarambal vs Government of Goa, Daman And Diu JT 1987 (2) 101.
• E Joseph v. Management of Bhopal Textile Mill (1975) ILLJ 136 Mad.
• Dharangadhara Chemical Works v. State of Saurashtra AIR 1956 SC 264.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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