Employee vs. Workman: How to Differentiate?

The objective of a welfare state like India is social justice to all its citizens and particularly those at the bottom, thus, their problems have to be addressed and redressed through appropriate labour legislations. It is very difficult to decide whether an employee is a workman or not. There are no clear cut distinctions laid down under labour laws in India. The said issue are decided by the Courts based on evidence of the parties, be it oral or documentary.
As regards the concept of employees, different legislations in India provide for different definitions of employees. Depending on the nature of the matter in dispute, the definition has to be looked into in its corresponding legislation or Act, that is, if the dispute is in relation to gratuity of the employee, Section 2(e) of the Payment of Gratuity Act, 1972 will be relevant while if it’s in relation to provident fund, Section 2(f) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 will be looked into. Legislations dealing with the matters related to an ‘employee’ are Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 [Section 2F], Employees Provident Fund Scheme, 1952 [Section 2 (e)], Employee State Insurance Act, 1948 [Section 2(9)], Minimum Wages Act, 1948 [Section 2i], etc.
On the other hand, Section 2(s) of the Industrial Disputes Act, 1947 defines workman as 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, terms of employment be express or implied and includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of dispute. It excludes persons employed in army/Navy/Air Force/Police and those employed in mainly managerial or administrative, supervisory capacity and drawing wages above a certain threshold. The said threshold changes from time to time.
The Courts have interpreted this definition and have identified various determining factors to know whether a person is “workman” or not, such as:
i. Whether there is a Master-Servant relationship (Chintaman Rao v. State of Madhya Pradesh, AIR (1958) SC 358);
ii. When a person is performing various functions which overlap in their characteristics, the nature of main function for which the claimant is employed should be considered John Joseph Khokar v. Bhadange B. S. & Ors., 1998 (1) LLJ 447 (Bom);
iii. Work is either manual, skilled, unskilled, technical operational, clerical or supervisory in nature, the mere fact that it does not fall within the exception would not render a person to be workman; and
iv. That the exceptions are not applicable (Kirloskar Brothers Ltd. v. The Presiding Officer, Labour Court, Delhi and Anr., [1977(34)FLR206]..
Further, designation, source of employment, method of recruitment, terms and conditions of employment/contract of service, the quantum of wages/pay and the mode of payment should not be considered while determining whether a person can be termed as “workman” (Devinder Singh v Municipal Council, (2011) 6 SCC 584).
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:
a. The person is not employed in an industry,
b. His work is be for hire or reward and is free of charge,
c. He is not employed to do the type of work specified in the definition,
d. There is no contractual relationship of master and servant. Such relationship exists when the workman is under supervision, direction and control of the master.
e. A person employed in a supervisory work and drawing wages in excess of a certain monetary thresh hold.
f. He is within the specific category of employees as mentioned in section 2(s) of the Act.

II. Whether an IT employee is a ‘Workman’ for the purposes of the Industrial Disputes Act, 1947?
In a breakthrough judgement pronounced in May 2016, the Chennai Labour Court set aside the dismissal of an employee, maintaining that a person working in an Information Technology company can be termed a “workman”.
In a case before the Additional Labour Court Presiding Officer S. Nambirajan, Mr. K Ramesha was dismissed as Senior Service Programmer while working in HCL Technologies Limited, and sought to set aside his dismissal.
Rejecting the management’s contention that Mr. Ramesha was a supervisor and therefore exempted from the definition of the term “workman”, the court said, “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. Any person doing a skilled job is a workman under the definition of that term. So the petitioner is a workman.”
To this effect, the government of Tamil Nadu in India has recently issued a circular clarifying that employees of the IT Sector are covered under the ID Act, 1947 and have the right to form trade unions.