umakanthan53A tricky situation indeed! Therefore, to find the most appropriate answer to the query finally raised in the post, we have to critically analyze the definitions of the terms " employer ", " workman " u/s 2(g) and 2(s) of the I.D Act,1947 respectively and " principal employer ", " workman " u/s 2(g) and 2(i) with specific reference to the deeming provision thereof to " contract labor " u/s 2(b) of the CLRA Act,1970 respectively juxtaposing the duty of works committee described u/s 3(2) of the I.D Act,1947.
Coming to the definitions mentioned above -
(1) the term " employer " u/s 2(g) of the I.D Act,1947 as defined is neither exhaustive nor inclusive but just illustrative only. Besides, the term "employer" has not at all been defined in the CLRA Act,1970 though the term "principal employer " has been defined in the same but more elaborate manner. Therefore, as held by the hon'ble Delhi High Court in Workmen of Swantara Bharat Mills Canteen v. Management [ (1984) Lab.I.C 1235 ], the term "employer" has to be given its ordinary grammatical meaning only. Automatically the same analogy holds good in respect of the term "principal employer" too.
(2) The definition of the term " workman "u/s 2(s) of the ID Act,1947 comprises of the heads viz., (a) Nature of Work (b)Terms of Employment (c)Persons included and (d)Persons Excluded. For the sake of brevity, let me skip the heads (a),(c) and (d) and focus on "(b) terms of employment" only. Simply put, the phrase "employed" used in the definition qualifies the terms of employment as a relationship of command and obedience or employer and employee which can be explicit or implied. If we carefully analyze the deeming provision explaining the term "contract labor" under the CLRA Act,1970, it would be crystal clear that there is no contractual relationship between the contract labor and the principal employer. That's why in Workmen of Food Corporation of India v. FCI [ 1985 (II) LLJ 4 (SC) ], the Supreme Court categorically held that when the contract system of work was in vogue in the Corporation, the workmen employed by the contractor were not the workmen of the Corporation.
Therefore, since the total no of regular workmen in the establishment remains less than 100, it need not constitute works committee u/s 3(1) though there are 200 contract labor.
Here, one should not get confused by the definition of the term "worker" u/s 2(l) of the Factories Act,1948 or the vicarious liability enjoined upon the principal employer u/s 21 of the CLRA Act,1970 because of the difference in the purposes.
From India, Salem
umakanthan53In continuation, I'd also like to add that in view of the absence of the relationship of Employer - Employee between the principal employer and the contract labor engaged by him, for applying the restrictions imposed by the ID Act, 1947 in chapter V-B on service conditions like lay-off, retrenchment,closure etc with reference to the number of workmen in the establishment, the no. of contract labor is not taken into account.
From India, Salem
PRABHAT RANJAN MOHANTY1. Your establishment is having total workmen strength of 275, out which 75 are in company role and rest are under contractor. As per the defination, where 100 is the strength it requires to form works Committee irrespective of their category but are workmen.
2. The ID act has came into force much before the CL(R&A)Act. Therefore, the strength of 100 is nothing but of regular nature whose name borne in company muster Roll.
The opinion provided is a logical conclusion in absence of clarity remain in defination. The peculiarity of our legal system is that they interprete the things comprising all acts in force.
Whether is there any stipulation from the labour department in regard to formation of works commitee? You can skip till, is being asked for. You need to see other organisations of similiar nature in around you for reference.
Therefore our senior collegue Mr Umakanthan termed is as "tricky".
From India, Mumbai
Bharat GeraDear Friends,
I beg to differ due the definition of workmen given in the Section 2s of the ID Act. The definition does not distinguish on category of workmen like permanent, casual, badli, temporary or contract workmen. It has simply used the term workmen.
So far as I understand the workmen employed in the factory has to be seen in totality and not by classifying separately.
Sir, you are requested to elaborate as your opinion matters.
From India, Thane
Special gratitude to Umakanth Sir. I am one of the follower to you sir.
Thanking you for your reply. And we need some clarification about Sec 3,
(1) In the case of any industrial establishment in which one hundred or more workmen are employed or have been employed on any day in the preceding twelve months,
WHY MENTION THIS : the appropriate Government may by general or special order require the employer to constitute in the prescribed manner a Works Committee consisting of representatives of employers and workmen engaged in the establishment so however that the number of representatives of workmen on the Committee shall not be less than the number of representatives of the employer.
And even 100 more workmen,
is it optional to constitute the works committee or statutory
is there any relaxation not to form the works committee
Kindly Guide me sir.
From India, Nizamabad
I would request you kindly to read again my two successive replies above. Even one can not find any contradiction between the definitions of " workman " under the ID Act,1947 and the CLRA Act,1970. By the defining aspects of both the definitions, I totally concur with you that there is commonality between a workman u/s 2(s) of the ID Act and u/s 2(i) of the CLRA Act as long as their contract of employment subsists with the employer as defined u/s 2(g) of the ID Act and with the contractor as defined u/s 2(c) of the CLRA Act respectively. But, when the provision of section 2(b) of the CLRA Act,1970 comes into play, by virtue of the contract for service between the employer of the ID Act and the contractor of the CLRA Act, the former becomes the principal employer and the latter's workmen become only contract labor to the former. Thus there is no contract of employment between them and that's why the PE is not empowered to take any disciplinary action against the C.L for any work-related lapses. The principle of totality of perception on the basis of similarity of the definitions of the term "workman" would apply only in matters involving vicarious liability on the part of the PE.
Regarding the query of the friend from Nizamabad, there is no choice ,if any for the employer having 100 or more workmen, if there is an order passed by the appropriate Govt by a general or special order to constitute works committee in the establishment.
From India, Salem
aravindan-balashanmugam1"order passed by the appropriate Govt by a general or special order" - Does this mean the government / government organisation (Labour Department) will be giving individual order / Notice / letter etc. to individual establishment / Industry that your establishment should form works committee?
umakanthan53The requirement of formation of works committee u/s 3 of the ID Act,1947 does not become automatic when the numerical strength of the workmen employed in the industrial establishment reaches 100 or more. It should be an industrial establishment as defined u/s 2(ka) and the 100 workmen should be ' workman' as defined u/s 2(s) of the Act. Besides, there should be an order issued by the appropriate Government which is not obligated to pass such order by the plain language employed in section 3(1) of the Act. Therefore, the order issued by the appropriate Govt may be a general order applicable to all such industrial establishments in the State or a special one requiring a particular industrial establishment to form works committee. Since works committee is designated as an authority in the matter of investigation of industrial disputes under chapter II of the ID Act,1947 and the appropriate Govt have been empowered to make its own Rules pertaining to the constitution, functioning etc., of works committee u/s 38(2)(b), it is suffice that there can be a general order in this regard and I also suppose that is the normal practice. The poster may check with the Rules of his State as well as the notifications issued by the State.
From India, Salem