The definition of a worker/workman is the fundamental legal basis to invoke the jurisdiction of an Industrial Tribunal. Due to this, classification as a worker/workman becomes paramount. A person who does not fall within the definition cannot take recourse to the grievance redressal mechanism. In this light, it is vital to ensure that aggrieved persons do not face definitional issues while seeking remedies.
Considering the definition of a workman under Section 2(s) of the Industrial Disputes Act, 1947 (“IDA”), there are three broad elements: (i) employer-employee relationship, (ii) categories of work, and (iii) exceptions. To analyse the definition, it is pertinent to consider the judicial evolution of each of these elements.
Employer-Employee Relationship
Considering the first element, an employer-employee relationship is the foundation of the definition of a workman. Traditionally, the control and supervision test was the sole basis to determine such a relationship. However, the outlook of courts has changed over time. The current legal position adopts a pragmatic approach by considering various tests instead of relying on a single test:
The control and supervision test, propounded in Dharangadhra Chemical Works Ltd. v State of Saurashtra, provides that if the employer has a right to control and supervise the work of the employee, then there exists an employer-employee relationship. Furthermore, the court opined that such control and supervision must be considered in light of the nature of work being performed.
The integral business test, propounded in Hussainbhai v The Alath Factory Thezhilali Union, provides that if the work performed by the employees is integral to the business, then there exists an employer-employee relationship regardless of the presence of any intermediaries.
The integration test, propounded in Ram Singh v Union Territory, Chandigarh, involves determining whether an employee was fully integrated into the business of the employer or whether the employee was independent of it.
Additionally, the Supreme Court, in Workmen of Nilgiri v State of Tamil Nadu, laid down certain relevant factors viz. appointing authority, pay master, power of dismissal, nature of the job, nature of the establishment, and right to reject, to determine the existence of an employer-employee relationship.
In conclusion, the courts determine the existence of an employer-employee relationship by applying a mixture of these tests and factors.
Categories of Work and Exceptions
Considering the second element and third element together, initially, there were just four categories of work. However, after various amendments, there are seven categories of work and four exceptions provided in the IDA definition. There have been two different reasonings adopted by the Supreme Court considering these elements. The first reasoning, adopted in May & Baker (India) Ltd. case, Western India Match Co. Ltd. case and Burmah case provides that in order to qualify as a workman, the work performed by a person must fall within any of the categories in the definition. Per contra, the second reasoning, adopted in S.K. Verma case, Ved Prakash Gupta case, and Arkal Govind Raja Rao case, without considering the previous reasoning, provides that if any person does not fall within the exceptions under the definition, then such person would be considered as a workman. Finally, in H.R. Adyanthaya v Sandoz (India) Ltd, the Supreme Court settled the position of law and reaffirmed the first reasoning as the true test to determine whether a person is a workman or not. In essence, if the work performed by a person falls within any of the seven categories and neither of the exceptions applies, then the person will be considered as a workman.
Furthermore, as modern organisations are characterised by complex transactions, employees usually perform different types of work. In such scenarios, the test laid down in S.K. Maini v M/s Carona Sahu Co Ltd, is to be applied. According to the test, the principal duties and work performed by the person must be considered to determine the category of work rather than the work incidentally performed.
Shortcomings in the definition
After undergoing a series of amendments and judicial pronouncements, the legal position has been settled. However, the definition of a workman still suffers from various shortcomings.
For determining the employer-employee relationship, although a pragmatic approach is adopted by the courts, there is scope for discretion in applying the tests. There is no uniformity in imparting importance to the tests, or applying them in a particular order. Moreover, it may happen that the courts may not use a test altogether. In essence, it is completely upon the discretion of the courts to decide which tests to apply. Consequently, it may happen that different tests are adopted in similar factual scenarios. Thereby, resulting in inconsistent decisions. In the absence of uniformity, the purpose of a beneficial legislation such as the IDA gets defeated, the reason being that there may be conflicting decisions with respect to similarly placed individuals.
Furthermore, to qualify as a workman, the Adyanthaya judgment requires that the work performed by an individual must be specifically categorised in any of the given categories. This leads to a problematic outcome, the reason being that such determination may not be a straightforward exercise in majority situations. In the contemporary context, with the organisations being increasingly complex, various individuals perform a plethora of different functions. Accordingly, it becomes extremely difficult to categorise the work into a specific category. Moreover, the courts have usually resorted to a strict interpretation of the categories of work, thereby, excluding teachers and like professionals from the ambit of a workman. This results in a precarious position; distressed individuals are not able to take recourse to industrial tribunals.
Missed Opportunity under the Industrial Relations Code, 2020
With the enactment of the Industrial Relations Code, 2020 (“IRC”), the IDA stands repealed. Hence, there was an opportunity to incorporate a comprehensive definition of a workman. However, instead of adopting a new definition, the IRC provides the definition of a worker, which is identical to the definition of workman under the IDA. Unlike the IDA, the IRC provides a definition of an employee as well. This definition is broad as compared to the definition of a worker as it includes a person performing supervisory, administrative, or managerial work within its ambit. This distinction remains unwarranted and creates confusion regarding the applicability of the IRC. This is because the definition of an industrial dispute under Section 2(q) of the IRC entails only the word ‘worker’ and not an employee. This essentially means that only a worker would be able to approach the grievance redressal scheme under the IRC.
In essence, by retaining the old definition, the IRC fails to address the issues that existed in the erstwhile regime. Accordingly, the advent of the IRC can be considered as a missed opportunity to change the definition of a workman.
What could have been the approach?
The Supreme Court’s ruling in the Adyanthaya case was accurate because once the legislature had specifically provided the categories of work, it could not have been their intention to include every person who does not fall within the exceptions as a workman. However, specifically carving out categories of work was not warranted in the first place, the reason being that the courts are faced with the task to classify the work performed under any of the categories. As no straightjacket formula can be adopted, such determination is made on a fact-to-fact basis. This provides room for discretion. Accordingly, this task is time-consuming and complex. Moreover, in a country like India, the actual work performed is highly multifarious in nature and it may fall under more than one category. This may lead to a precarious position wherein an aggrieved person may not be able to present legitimate claims before an Industrial Tribunal. As the IRC is a beneficial legislation, such possibilities must be avoided.
To overcome this lacuna, instead of blindly incorporating the same definition, a new definition that does not lay down categories of works could have been adopted. The said definition would be exclusionary; it would exclude certain individuals from the definition of a workman. Resultantly, every other person would be considered a workman. By doing this, upon a balance of probabilities, it is less likely that an aggrieved person would be left remediless. Moreover, the new definition could have been uniformly adopted throughout different laws.
Rakshit Assudani, 5th Year, B.B.A. LL.B. (Hons.), Jindal Global Law School, O.P. Jindal Global University, Sonepat.
Picture Credits: VectorStock
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