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From India, Madras
Babu AlexanderIT professionals challenging their termination have made headlines in Newspapers, in Chennai. In one such news it was reported the Additional Labour Court at Chennai directed the reinstatement of the petitioner employee with continuity of service and to pay full back wages and all other benefits from the date of dismissal to the date of reinstatement. (Source -The Hindu May 11, 2016). It was reported that this Learned Court has inter-alia observed the following:
"It cannot be denied that the job of an engineer in a software company involves skills and technical knowledge. Therefore it can be concluded that the job of a software engineer can be termed as the skilled or technical one." It was further observed by the Learned Judge that "any person doing a skilled job is a workman under the definition of that term. So I conclude that the petitioner is a workman,"
In the above case, before the Madras High Court it was contended the concerned petitioner being a Project Assistant Consultant he is a workman since his main duties and responsibilities are technical in nature and the Company being a Industry within the purview of the I.D Act and hence the termination is contrary to the provisions of the I.D Act. Without getting into the merits the High court directed the Conciliation Officer to decide on the issue and if the concerned employee is found to be a workman and Company to be industry to conciliate the matter as per the provisions of the Industrial Dispute Act. When the matter went up in appeal before the Division Bench, their Lordships has set aside the judgment of the Learned Single Judge mainly on the ground that the Conciliation Officer under the I.D Act is not competent to settle a dispute whether the concerned employee is a workman as per Â meaning provided in the Industrial dispute Act as the same can only be adjudicated by the Industrial Tribunal or Labour Court having adjudicatory power.
Whether an employee is a "workman' within the purview of the Industrial Disputes Act is the very foundation of the jurisdiction of the Industrial Tribunal. If the answer is affirmative an IT professional can reap advantage under section 2A of the Act in case of their termination, discharge, dismissal and retrenchment or else they have to approach civil court for relief.
Section 2 (s) of the ID Act which defines Workman is reproduced herein below:
"Workman" means 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 (45of l950),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 month 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.
It is evident from the definition that a person working in purely managerial and/or supervisory capacity drawing wages exceeding Rs 10,000/- per month does not fall within the definition of workman under the Act. However, in case of multifarious functions, the nature of the main function performed by the person has to be considered to determine if the person is a "workman." Designation is not a conclusive factor in determining the nature of work of a person. Undue importance need not be also accorded to designation. Rather the work performed, the principal nature of duties and functions will determine whether the person will fall under the purview of workman under section 2 (s) of the Act. There cannot be any straight jacket formula for determining whether the person is a workman under the Act as it will be determined upon the facts and circumstances of each case. If a person is mainly doing supervisory work but incidentally or fraction of time also does clerical or technical job as the case may be it would be held he is employed in supervisory work. Conversely if his main work is clerical and/or technical but at the same time performs some supervisory job incidentally his supervisory functions he will be treated as a workman under the Act. In another case the Supreme Court did not agree with the submission that, if a technical employee even gives advice or guides other workmen, it must be held that he is doing technical work and not supervisory work. Relying upon the above, If the man is employed because he possesses such faculties and they enable him to produce something as a creation of his own he will have to be held to be employed on technical work, even though, in carrying out that work, he may have to go through a lot of manual labour. If, on the other hand, he is merely employed in supervising the work of others, the fact that, for the purpose of proper supervision, he is required to have technical knowledge will not convert his supervisory work into technical work. The work of giving advice and guidance cannot be held to be an employment to do technical work."
Here it may be pertinent to mention that work that need imaginative or creative quotient are treated differently by the Courts, a Legal Assistant it was inter-alia held by the Supreme Court as follows:
The respondent was not performing any Stereotype job. His job involved creativity. He not only used to render legal opinions on a subject but also used to draft pleadings on behalf of the appellant as also represent it before various courts/authorities. He would also discharge quasi-judicial functions as an Enquiry Officer in departmental enquiries against the workmen. Such a job, in our considered opinion, would not make him a workman”
The main argument that goes in favor of the Software professional is that they perform the job which is technical in nature and therefore they should fall with the purview of workman as defined by the Act. Till 29-8-1956 the definition of workman under the ID Act was confined to skilled and unskilled manual or clerical work and did not include the categories of persons who were employed to do 'supervisory' and 'technical' work. They came to be included by virtue of the Amending Act 36 of 1956. There is no difficulty in treating a person as workman under the Act. When he/ she is performing technical job which is stereo type in nature, (especially in BPO) as this kind of job does not require imaginative or creative faculties or extensive training or mastery. However, before the constitution bench judgment, it was extended, to be a workman under the Act it is not enough that the concerned person is not covered by any of the four exceptions to the definition. As it appears courts have distinguished works which need imaginative or creative quotient from the job which are stereo type in nature. Hence, a person may be doing a technical job but may need imaginative and creative faculties for performing the job. Such persons will be excluded from the purview of the definition of workman. It will therefore not be correct to straight jacket all professionals in an IT industry doing technical job as workman under the Act. Persons whose main functions are managerial and supervisory will also remain outside the purview of the definitions of Workman. As held, employees giving advice and technical guidance or otherwise cannot be held to do the job of the Workman as defined under the Act. A Software Programmer, Developer, Web designer, Content Writer may be doing a technical job but this kind of job entails creative and imaginative faculties. Hence, this class of IT professional cannot be treated as workman under the Act. In this context it may be noteworthy to mention, the Supreme Court opined that Medical professional treating patients and diagnosing diseases cannot be held to be a workman under the Act. The court in this judgment laid emphasis on the distinction between occupation and profession and inter-alia observed: "Distinction between occupation and profession is of paramount importance. An occupation is 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".
Hence, from the above discussion the overview is that, it will be utterly wrong to straight jacket all IT professionals as workmen under section 2 (s) of the Act as because they are performing either technical nature of job or not falling within the four exceptions to the definition of the Act. Their status as workmen will be determined by their Job description, responsibilities, creativeness required to perform the job and the kind of training they had to undergo for performing the job. However, nothing can be said with certainty till a case is put to judicial scrutiny as each case will be determined by its own merits.
Besides the factors mentioned herein above educational qualification is also another important consideration to determine whether a person can be termed as a worker. If the employee has educational qualifications and he is better equipped than other persons, if he has specialized educational background and experience and has acquired special skills, the Courts have held that such a person is not a Workman.
Hence to decide whether an employee is a workman, it shall be of prime importance to ascertain the nature of work being done by the employee and not the designation or the position he occupies in the company.
From India, Madras
jagadish347Very exhaustive feedback indeed. It would be useful if the name of the citation before the High court is also provided. Regards.
From India, Pune
a-a-valjeeDear Babu A, Kindly provide the Soft Copy of citation for the Citehr Members. Regards,
From India, Andheri