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Published : November 09, 2010 | Author : shuchi.lawstudent
Category : Company Law | Total Views : 44699 | Rating :

  
shuchi.lawstudent
shuchi pandey, final year law student at university of burdwan
 

Which employees do not fall under the ambit of Industrial Dispute Act, 1947

Prior to the year 1947, industrial disputes were being settled under the provisions of the Trade Disputes Act, 1929. Experience of the working of the 1929 Act revealed various defects which needed to be overcome by a fresh legislation. Accordingly the Industrial Disputes Bill was introduced in the Legislature. The Bill was referred to the select committee. On the recommendations of the Select Committee amendments were made in the original Bill.

The Industrial Disputes Act, 1947 came into existence in April 1947. It was enacted to make provisions for investigation and settlement of industrial disputes and for providing certain safeguards to the workers.

In India, the Industrial Disputes Act 1947 is the major disputes resolutions and processing mechanism. It is an Act to make provision for the investigation and settlement of industrial disputes, and for certain other purposes.

Industrial Disputes Act 1947 is a welfare legislation enacted for the workmen as defined under section 2(s) of the Act.

2. Who is a workman under I. D. Act 1947
Definition of "workman" , is provided under Sec. 2(s) of the Act is as under:
"Workman" is 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 proceedings 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.

· In Chintaman rao vs. state of Madhya Pradesh AIR (1958) SC 358 it was held that there should be a contractual relationship between master and servant i.e. the workman is under the supervision, direction and control of his master.

· In Atam prakash & ors vs. state of Haryana & ors 1997 (2) LLJ (P & H) it was held that to be a workman within section 2(s) of this Act he should be employed in an industry and there should be master servant relationship.

· In John joseph khokar vs. bhadange B. S. & ors 1998 (1) LLJ 447 (bom) it was held that in determining that whether a person is a workman or not the court has to principally see main or substantial work for which he is employed. Neither designation nor any incidental work done by him will get him outside the purview of this Act.

· In Pillai G. M. vs. A. P. lakhanikar, judge iii labour court & ors 1998 (2) LLJ 44 (bom) it was held to determine whether a person is a workman his main and substantial work have to be seen.

· In Physical Research Laboratory vs. K.G. Sharma (SUPREME COURT OF INDIA)
It was held that Laboratory Ahmadabad, would come within the definition of "workmen" under the Industrial Disputes Act and other similar legislation in the field of relations between employers and employees."

· In Standard Chartered Grindlays Bank Retired Employees Association v. Union of India 2007 II LLJ 887 (Cal) it was held that a retired employee can be included in the term "workman" as defined in section 2(s) of the Industrial Disputes Act, 1947 and can be a party to an industrial dispute.

· In Reserve Bank of India and Others vs. C.N. Sahasranaman and Others (SUPREME COURT OF INDIA)
it was held that employees are fully covered by the definition of the term "workman" in section 2(s) of the said Act.

3. Who is not a workman under I.D. Act 1947

There are certain employee who cannot be considered as workmen by the statute as per section 2 (s) :
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 managerial or administrative capacity, or

(iv) who, being employed in a supervisory capacity draws wages exceeding Rs. 6500/- per month or exercises, either by the nature of the duties attached tot he office or by reason of the powers vested in him, functions mainly of a managerial nature."

· In Ved prakash gupta vs. m/s delton cable India (p) ltd., AIR 1984 SC 914 it was held that a person employed in managerial capacity or administrative capacity is not a workman.

· In Bhaskaram vs. kerela state electricity board 1986 LLN 869 it was held that an apprentice cannot claim any privilege as workman.

· In Vimal kumar jain vs. labour court, Kanpur & anrs. , AIR 1988 SC 384 it was held that maintenance engineer supervising the work of maintenance with the power to grant leave, to initiate disciplinary proceedings and to make temporary appointments is not a workman.

· In Puri urban cooperative bank (m/s) vs. madhusudan saha & anr. , (1992) 3 SCC 323, an appraiser for weighing and testing gold ornaments brought to a bank as security for bank loan. It was held that he cannot be regarded as a workman.

· In Management of heavy engineering corporation ltd vs. presiding officer labour court 1996 it was held that appointed as general duty medical officer grade 11 on ad hoc basis for 6 months as sole in charge of first and post- a male nurse, nursing attendant, sweeper and one driver of ambulance working under him. It was held that he cannot be regarded as workman as he us doing supervisory work.

· In Sub divisional inspector of post vaikan vs. theyyan joseph 1996 (8) SCC 489 it was held that extra departmental agents in postal service were civil servants and not workmen.

· In M. M. wadia charitable hospital vs. umakant ramchandra warekar (Dr.), 1997 (2) LLJ (bom), it was held that it was never the object of I D Act that highly qualified doctors or esteemed surgeons would be entitled to claim the protection of this welfare legislation. In the case of medical men rendering only professional service to various institutions and no relationship is created between the parties which entitled them to claim the status of a workman.

· In Bombay telephone canteen employee’s association vs. union of India & anr. , 1997 (2) LLJ 647 ( SC), canteen employees were dismissed from service that led to an industrial dispute. Industrial tribunal held that departmental canteen is not an industry and in order to classify an employee as workman the condition precedent is that he is employed in an industry.

· In State of Maharashtra & ors vs. shaligram, s/o dhondbaji charjan & ors, 1998(2) LLR 1012 (bom) the above view regarding medical officers was confirmed. It was held that empowered with administrative work and supervisory work over the staff working under him cannot be regarded as workman.

· In Singer sewing machine co. (m/s) vs. presiding officer labour court iv, Kanpur & ors, 1998 (2) LLR 813 (ALL), driving car provided to him by the company will not make him come within the definition of workman as under I.D. Act.

· In Vilas dumale vs. siporex India ltd. & anr., 1998 (1) lab IC 1099 (bom), petitioner was initially appointed as a clerkand was promoted from time to time. when his service was terminated he was in a cadre above time keeper and below that of a personnel officer. He was paid a Rs. 1055 as salary and conveyance allowance which was not payable to workmen. Leave application was signed by him and he also signed for departmental heads and also worked as enquiry officer in departmental enquiries. Held, that I wont be justified to consider him as a workman.

· In Kamal kumar vs. J.P.S. mallick presiding officer labour court & ors. 1998 (2) LLR 628 (del), it was held that mere use of the word “apprentice” cannot confer a right over a trainee to be called a workman.

· In Mar Baselius Medical Mission Hospital v. Joseph Babu 2007 II LLJ 925 (Ker) it was held that a doctor examining patients, diagnosing diseases and prescribing medicines as a full-time employee of hospital cannot be a "workman", irrespective of his designation.

· In Bangalore Water Supply and Sewerage Board, Etc., Etc vs. A. Rajappa and Others, Etc., Etc (SUPREME COURT OF INDIA) the organization was excluded from the sphere of industry by necessary implication. It was held that the Act itself treats certain public utility services, run by governmental agencies as with the sphere of the strength of such provisions, that a particular set of employees are outside the scope of the I.D. Act for that reason. The special excludes the applicability of the general.

4. Conclusion
Thus, it can be said that an employee is not a workman and is not included with the ambit of Industrial Dispute Act 1947, when,
· The person is not employed in an industry,
· His work is be for hire or reward and is free of charge,
· He is not employed to do the type of work specified in the definition,
· There is no contractual relationship of master and servant. Such relationship exist when the workman is under supervision, direction and control of the master.
· A person employed in a supervisory work and drawing wages in excess of Rs. 1600/- p.m.
· He is within the specific category of employees as mentioned in section 2(s) of the Act.

Authors contact info - articles The  author can be reached at: shuchi.lawstudent@legalserviceindia.com




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Article Comments

Posted by vinod on October 19, 2016
article not includes the amendments in I.D. Act. (Sep. 2000, Sep. 2010 & others) so it is not updated with latest law.


Posted by Venkatachalapathy on August 14, 2016
I am working as foreman (s2 band) is I am belongs to workman or not according to labour law

Posted by Prabh on May 09, 2016
Hi Suchi
I want to know 'is labour act alco applied on govt contracual teacher'... if not then why???

Posted by ABHAY KUMAR on February 11, 2016
sir the artical is very usefull thank you very much

respected sir,
i hve one problem i am abhay kumar i joined sunpower and telecom company on 8 july 2015 the company has signed bond of six months and company has taken rs 30000 as security amount which is refundable after six months.the company has posted me in patna and company is vender of reliance jio so send me for work in reliance 4g jio sites company has given continious work to me for 2 months but not the salary i told to the boss but he said i will clear it but he did not clear and with out any notice he has stop giving work to me .after six months i complain is police station and labour court patna .the supretendent of labour court is saying that you are not come in labour court judiciary because your salary is more than 11000 .my salary is 15200 please help i am a workman i dont have any adminstrative power at work


Posted by ABHAY KUMAR on February 11, 2016
sir the artical is very usefull thank you very much

respected sir,
i hve one problem i am abhay kumar i joined sunpower and telecom company on 8 july 2015 the company has signed bond of six months and company has taken rs 30000 as security amount which is refundable after six months.the company has posted me in patna and company is vender of reliance jio so send me for work in reliance 4g jio sites company has given continious work to me for 2 months but not the salary i told to the boss but he said i will clear it but he did not clear and with out any notice he has stop giving work to me .after six months i complain is police station and labour court patna .the supretendent of labour court is saying that you are not come in labour court judiciary because your salary is more than 11000 .my salary is 15200 please help i am a workman i dont have any adminstrative power at work


Posted by chockalingam on November 20, 2015
BSNL TELEPHONE OPERATORIS WORKMAN OR NOT?

Posted by Manoj on September 27, 2014
Dear Suchi,

Thanks for excellent article.

I have one query.
A person hired in a student hostel by students under of HOSTEL WARDEN as MAHARAJ (COOK MAN) and is getting his salary/ WAGES from the amount collected by students in terms of mess bill. if he will be covered in Labour Law?
The hostel is owned by a Government engineering college being run on no-profit basis. In fact, this college always run on deficit due to extremely low fee of students and is being granted financially by State Government. The employee is not given any appointment letter by students or others.

With warm regards,

Dr. Manoj K. Shukla
Associate Professor
Dept. of Electronics Engineering
Harcourt Butler Technological Institute
(An Academically Autonomous Government Institution)
Kanpur, U.P. 208002
India
Ph.: 91 512 2534001-5 ext. 209
Mobile: 91 9721456021

Posted by Gobinda Chandra Das on November 12, 2010
Hi Suchi
Your artricle related ID Act-1947 is good and attractive and I will appreciate if any article related to hindu divorce may be be sent.
Thanks suchi

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