LABOUR AND INDUSTRIAL LAW

PROJECT REPORT

TOPIC: WORKMAN UNDER THE INDUSTRIAL

DISPUTE ACT, 1947.

SUBMITTED TO: SUBMITTED BY:

Dr. Virender Negi Name: Ekampreet Singh
UILS, Panjab University, Class: BA LLB(h)
Chandigarh Semester: 9
Section: A
Roll Number: 35/16

LABOUR AND INDUSTRIAL LAWS Page 1

 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Dr. Virender Negi, who
gave me the golden opportunity to do this wonderful project on the topic- Workman under
the Industrial Dispute Act, 1947, which helped me in doing a lot of Research and I came to
know about so many new things.

I am really thankful to him.

Secondly, I would also like to thank my parents and friends who helped me a lot in finishing
this project within the limited time.
I am making this project not only for marks but also to increase my knowledge.
THANKS AGAIN TO ALL WHO HELPED ME.

LABOUR AND INDUSTRIAL LAWS Page 2

 DECLARATION

I hereby declare that the project work entitled: Workman under the Industrial Dispute Act,
1947, submitted to Dr. Virinder Negi is a record of an original work done by me. The
material embodied in this project has not been submitted to any other University or Institute.

NAME- Ekampreet Singh

CLASS- B.A.LLB (H)
SEMESTER- 9
ROLL NUMBER- 35/16

LABOUR AND INDUSTRIAL LAWS Page 3

 TABLE OF CONTENTS

S. NO. CONTENT PAGE NO.

1. Acknowledgement 2
2. Declaration 3
3. Table of Cases 5
4. Introduction 6-7
5. Workman: Meaning 7-8
6. Essentials of Section 2(s) 8-18
7. Protected Workmen 18-20
8. Conclusion 21
9. Bibliography 22

LABOUR AND INDUSTRIAL LAWS Page 4

 TABLE OF CASES

S. NO. CASE NAME PAGE

NUMBER
1. Bangalore Water Supply and Sewerage Board v. A. Rajappa 9
2. Bombay Dyeing and Manufacturing Co Ltd v RA Bidoo 14
3. Burmah Shell Oil Storage & Distribution Co. of India v. 15
Burmah Shell Management Staff Association
4. Central Bank of India, Lucknow v. Assistant Labour 16
Commissioner
5. Delhi Cantonment Board v. Central Government Industrial 17
Tribunal
6. Devinder Singh v. Municipal Council Sanaur 18
7. Dharangadhara Chemical Works Ltd. v. State of Saurashtra 9, 11, 12
8. HLL Lifecare Ltd Vs. Hindustan latex Labour Union 20
(AITUC)
9. H.R. Adyanathaya v. Sandoz (India) Ltd 15
10. John Joseph Khokar v. B.S. Bhadange 16
11. Management of heavy engineering corporation ltd vs. 18
presiding officer labour court
12. Management of Puri Urban Co-op. Bank v. Madhusudan Sahu 10, 12
13. May and Baker (India) Ltd v. Their Workmen 14

14. Miss A. Sundrambal v. Govt. of Goa, Daman & Diu 15

15. S.K. Maini v. M/s. Carona Sahu Company Ltd 17
16. Workmen of Dimakuchi Tea Estate v. Management of 7
Dimakuchi Tea Estate

17. Workmen of Nilgiri Co-op. Mkt. Society v. State of Tamil 11

Nadu

INTRODUCTION

LABOUR AND INDUSTRIAL LAWS Page 5

The first enactment dealing with the settlement of industrial disputes was the Employers’ and
Workmen’s Disputes Act, 1860. This Act weighed much against the workers and was
therefore replaced by the Trade Disputes Act, 1929. The Act of 1929 contained special
provisions regarding strikes in public utility services and general strikes affecting the
community as a whole. The main purpose of the Act, however, was to provide a conciliation
machinery to bring about peaceful settlement of industrial disputes. The Whitely Commission
made in this regard the perceptive observation that the attempt to deal with unrest must begin
rather with the creation of an atmosphere unfavourable to disputes than with machinery for
their settlement.1
The next stage in the development of industrial law in this country was taken under the stress
of emergency caused by the Second World War. Rule 81-A of the Defence of India Rules
was intended to provide speedy remedies for industrial disputes by referring them
compulsorily to conciliation or adjudication, by making the awards legally binding on the
parties and by prohibiting strikes or lock-outs during the pendency of conciliation or
adjudication proceedings and for two months thereafter. This rule also put a blanket ban on
strikes which did not arise out of genuine trade disputes.
With the termination of the Second World War, Rule 81-A was about to lapse on 1st October,
1946, but it was kept alive by issuing an Ordinance in the exercise of the Government’s
Emergency Powers. Then followed the Industrial Disputes Act,1947. The provisions of this
Act, as amended from time to time, have furnished the basis on which industrial
jurisprudence in this country is founded.2
The Industrial Disputes Act, 1947 is an act which came into force on 1st April 1947. It
applies to all the establishments which fall within the definition of industry' as defined under
the Industrial Disputes Act, 1947. All the employees of the 'industry' which fall within the
definition of "workman" as defined under the Industrial Disputes Act, 1947, are entitled to
take the benefit of the Industrial Disputes Act, 1947.
The main object of the Industrial Disputes Act, 1947 is to investigate and settle the industrial
disputes. For the purpose of investigation and settlement of the industrial disputes, the Act
provides for the machinery and procedure for ensuring a speedy resolution of industrial
disputes. Speedy resolution of industrial disputes achieves two objectives, first smoothness in
the relationship between labour and management and second uninterrupted production in the

1
S.N. Misra, Labour &Industrial Laws With Latest Amendments. 43 (Central Law publication, New Delhi,
2020).
2
https://bnblegal.com/article/definition-of-workman/ (Last Visited on 10th December, 2020)

LABOUR AND INDUSTRIAL LAWS Page 6

industries. Other labour-management relationship and uninterrupted production achieves not
only industrial peace but also provides economic stability to any nation.
Regarding the objects of Industrial Disputes Act, 1947, the Supreme Court in Workmen of
Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate3, observed as follows:
"An examination of the salient provisions of the Act shows that the principal objects of the
Act are
(1) The promotion of measures for securing and preserving amity and good relations
between the employer and workmen;
(2) An investigation and settlement of industrial disputes between employers and employers,
or employers and workmen, or workmen and workmen, with a right of representation by a
registered Trade Union or federation of Trade Unions or association of employers, or
federation of association of employers;
(3) Prevention of illegal strikes and lock-outs;
(4) Relief to workmen in the matter of lay-off and retrenchment; and
(5) Collective bargaining.4

WORKMAN: MEANING

According to dictionary meaning A workman is a man who works with his hands, for
example building or repairing houses or roads. But according to definition in 1947 act a wider
meaning is given to work workman.

Section 2(s) of The Industrial Dispute Act, 1947 defines "workman" as follows:

"Workman" means any person (including an apprentice) employed Industry in to do any

manual, unskilled, skilled, technical, any 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 any 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-

3
AIR 1958 SC 353
4
Meenu. Paul, Labour and Industrial laws. 34. Allahabad Law Agency, Faridabad, 10th edition, 2020).

LABOUR AND INDUSTRIAL LAWS Page 7

 (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 a managerial or administrative capacity, or
(iv) Who, being employed in a supervisory capacity, draws wages exceeding ten
thousand rupees per m or exercises, either by the nature of the duties attached
to the office or by the reason of the power vested in him, functions mainly of a
managerial nature.5

ESSENTIALS OF SECTION 2(s)

According to Section 2(s) of the Industrial Disputes Act, 1947 to be a workman, a person
must satisfy the following conditions:

(1) Person must be employed in any industry.

(2) Person must be employed to do any of the following works

(i) Manual, skilled or unskilled;

(ii) Technical;
(iii) Operational;
(iv)Clerical;
(v) Supervisory.

(3) Person must not draw wages exceeding Rs. Ten thousands p.m. (Rs.10,000/- p.m.) if he is
employed to do supervisory work.

(4) Person must not be employed mainly to do managerial or administrative work.

(5) Person must not be specifically excluded from the definition of workman under Section
2(s) of the Industrial Disputes Act, 1947.6

Let’s discuss the points one by one.

5
Section- 2(s) of The Industrial Dispute Act, 1947.
6
http://lc2.du.ac.in/DATA/003_Industry,%20Industrial%20Disputes%20and%20Workman_Conceptual
%20Framwork%20and%20Judicial%20Activism%20(3-50).pdf(Last Visited on 12th December, 2020)

LABOUR AND INDUSTRIAL LAWS Page 8

(1) Person must be employed in any industry.

A person to be a workman under Section 2(s) of the Act must be employed in any industry.
The concept of employment involves three ingredients: (1) employer, (2)employee and (3)
the contract of employment. The employer is one who employs, i.e., one who engages the
services of other persons." The employee is one who works for another for hire. The
employment is the contract of service between the employer and the employee where under
the employee agrees to serve the employer subject to his control and supervision.

The Supreme Court in Dharangadhara Chemical Works Ltd. v. State of Saurashtra 7,

observed as follows-

“The essential condition of a person being a workman within the terms of definition in
Section 2(s) is that he should be employed to do the work in the industry. That there should
be, in other words,an employment of his by the employer. That their should be the
relationship between the employer and him as between employer and employee or master-
servant. Unless a person is thus employed there can be no question of his being a workman
within the definition of the term as contained in the Act.”

Definition of 'industry' as in force today under Section 2(j) of the Industrial Disputes Act,
1947 Section 2(j).-

"Industry' means any business, trade, undertaking, manufacture or calling of employers and
includes any calling, service, employment, handicraft or industrial occupation or avocation of
workmen."

Following are the guiding principles as laid down by the Supreme Court in Bangalore Water
Supply and Sewerage Board v. A. Rajappa8 to know that whether a particular enterprise is
an industry or not.

I. Triple Test Formulae.-According to the first guiding principle, an enterprise is

prima facie an "industry' if it is:
i. a systematic activity;
ii. organised by co-operation between employer and employee;
iii. for the production and/or distribution of goods and services calculated to
satisfy human wants and wishes (not spiritual or religious but inclusive of

7
AIR 1956 SC 264
8
AIR 1978 SC 548

LABOUR AND INDUSTRIAL LAWS Page 9

 material things or services geared to celestial bliss, ie., making, on a large
scale prasad or food).

II. Absence of profit motive or gainful objective is irrelevant, be the venture in

the public, joint, private or other sector.
III. The true focus is functional and the decisive test is the nature of the activity
with special emphasis on the employer-employee relations.
IV. If the organisation is trade or business-It does not cease to be one because of
philanthropy animating the undertaking.
V. Sovereign functions of Government are exempted from the definition of
"industry" -Sovereign functions, strictly understood; (alone) qualify for
exemption, not the welfare activities or economic adventures undertaken by
government or statutory bodies. Even in departments discharging sovereign
functions, if there are units which are industries and they are substantially
severable, then they can be considered to come within the definition of industry'
under Section 2(j).

Employer-employee relationship under "contract of employment" is a 9master-servant

relationship.

"Contract of employment" is the first condition to be satisfied by a person "workman" under

Section 2(s). The contract of employment requires be a to employer-employee relationship
between the parties to the contract. The employer-employee relationship is based on master-
servant relationship wherein employer acts like master and the employee like a servant.

In the master-servant relationship the master supervises and controls the work done by the
servant not only in the matter of directing what work the servant is to do but also the manner
in which that work is to be done by the servant.

In Management of Puri Urban Co-op. Bank v. Madhusudan Sahu 10, the Supreme Court
reiterated as follows

"It stands established that industrial law revolves on the axis of master and servant
relationship. By a catena of precedents it stands established that the prima facie test of

9
http://www.legalservicesindia.com/article/422/Which-employees-do-not-fall-under-the-ambit-of-Industrial-
Dispute-Act,-1947.html(Last Visited on 11th December, 2020)
10
1992 Lab IC 1462 SC

LABOUR AND INDUSTRIAL LAWS Page 10

relationship between master and servant is the existence of the right in the master to supervise
and control not only in the matter of directing what work the servant is to do but also the
manner in which he shall do his work."

The Supreme Court in Dharangadhara Chemical Works Ltd. v. State of Saurashtra 11,
held that, if a person agrees himself to do the work under the supervision of employer, he is a
workman and he does not cease to be a workman merely because he gets other persons to
work along with him and those persons are controlled and paid by him.

In Workmen of Nilgiri Co-op. Mkt. Society v. State of Tamil Nadu 12, a service society
was formed with object of protecting small growers growing vegetable and tea from being
exploited by traders. The society had two big market yards where the growers could bring
their vegetables or tea. In the yard there are always available porters for the job of loading
and unloading. These porters were always in waiting in yard to be engaged by the growers
and merchants themselves for loading, unloading or grading. Said porters were neither
appointed nor engaged by society nor was any control exercised on them by the society.
Except on authorisation by member of society, no direct payment made to them by the
society and there existed no master servant relationship between the porters and the society,
Due to the absence of masters servant relationship between the porters and the society, the
porters were not held workmen of the society within the definition of workman under section
2(s).

An employee is different from "independent contractor"

Supervision and control exercised by the employer is a deciding factor to know that whether
a person working for the employer is an employee or an independent contractor.

An employee like a servant works for the employer under the supervision and control of the
employer not only with regard to which is work to be done, but also with regard to the
manner in which the work is to be done. Whereas the independent contractor works for the
employer without submitting himself to the control and supervision of the employer with
respect to the manner in which the work is to be done.13

11
AIR 1957 SC 264
12
2004 Lab IC 905 SC
13
https://www.dawn.com/news/1512631(Last Visited on 11th December, 2020)

LABOUR AND INDUSTRIAL LAWS Page 11

Regarding the nature of supervision and control to be exercised by the employer over the
employee, the Supreme Court in Dharangadhara Chemical Works Ltd.14's case," made the
following observation:

"The question whether the relationship between parties is one as between employer and
employee as between masters and servant is a pure question of fact. The nature and extent of
control which is requisite to establish the relationship of employer and employee must
necessarily vary from business to business and is by its very nature incapable of precise
definition. The correct method of approach, therefore, should be to consider whether having
regard to the nature of the work, there was due control and supervision by the employers. A
person can be a workman even though he is paid not per day but by the job."

In Management of Puri Urban Co-op. Bank v. Madhusudan Sahu 15, the bank had
engaged an appraiser whom the bank gave the work to weigh gold ornaments and certify
about the quantity, purity and value of the same. Though the appraiser is paid by the bank for
the work of evaluation of gold ornaments, yet the Supreme Court held that the appraiser is
not a workman. Because the bank has no control over the manner in which the work of
evaluation of gold ornaments is done by the appraiser. There does not exist master-servant
relationship between the bank and the appraiser.16

(2) Person must be employed to do any of the following work manual,

skilled or unskilled; technical; operational; clerical; supervisory.

According to the definition of workman under Section 2(s), a person to be a workman must
be employed to do any manual, unskilled, skilled, technical, operational, clerical or
supervisory work for hire or reward.

Skilled or Unskilled Work

When some work requires a certain technique or certain training is required for doing that job
then it is skilled labour.

Manual

14
Dharangadhara Chemical Works Ltd. v. State of Saurashtra (AIR 1957 SC 264)
15
1992 2LLJ 6(SC)
16
https://www.slideshare.net/bibinssb/industrial-disputes-act-1947 (Last Visited on 12 th December, 2020).

LABOUR AND INDUSTRIAL LAWS Page 12

A manual worker is a worker who applies physical effort in doing his task.

Supervisory Work

A supervisor is a person who sees or looks after the work of other employees or in other
words supervises them.

He is not a worker when:

 He performs mainly managerial functions.

 He draws wages exceeding Rs. 10,000 a month.

Technical Work

An employee must possess the technical knowledge to be termed as a technical worker. Eg.
Draftsman, engineer,etc. Any person, who is engaged in doing any technical work which
involves special mental training or scientific or technical knowledge, will fall under the
definition of workman. However, every work of technical nature which involves technical
skill does not necessarily give rise to the relationship of employer and employee. Technical
work requires training or knowledge or expertise of a particular art or science to which that
works pertains. For example, a doctor performing the duties of examining patients,
diagnosing diseases and prescribing medicines is considered to possess specialized skills
required for performing the job. As a result, he will qualify as a workman doing technical
work only when it is established that he is employed in an industry, and where the condition
of an employer-employee relationship is fulfilled. Doctors rendering professional services to
various establishments or engaged in private practice where no relationship of employment is
created will not be entitled to claim the status of workmen.17

Any person, who is engaged in doing any technical work which involves special mental
training or scientific or technical knowledge, will fall under the definition of workman.
However, every work of technical nature which involves technical skill does not necessarily
give rise to the relationship of employer and employee. Technical work requires training or
knowledge or expertise of a particular art or science to which that works pertains. For
example, a doctor performing the duties of examining patients, diagnosing diseases and

17
P.L. Malik, Industrial Law (Covering Labour Law in India)54, (Eastern Book Company, Lucknow, 2017.)

LABOUR AND INDUSTRIAL LAWS Page 13

prescribing medicines is considered to possess specialized skills required for performing the
job. As a result, he will qualify as a workman doing technical work only when it is
established that he is employed in an industry, and where the condition of an employer-
employee relationship is fulfilled. Doctors rendering professional services to various
establishments or engaged in private practice where no relationship of employment is created
will not be entitled to claim the status of workmen.

In Bombay Dyeing and Manufacturing Co Ltd v RA Bidoo 18, it was held that a person is
said to be employed in a technical capacity if he possess some special skills. In the present
case, the respondent was employed as a camera operator in the company. He was working in
the screen-making department of textile mills and was responsible for testing new chemicals
and graphite films and, accordingly, advice the management of their suitability. The company
terminated the employment of the respondent without assigning any reason. The respondent
raised an industrial dispute contending that his termination was not justified. The Court
considered the nature of his work and held that the work done by him was not of a technical
nature as it did not require application of any special knowledge which would result in the
creation of a work peculiar to the talent of the respondent. Hence, the petition was dismissed.

Clerical Work

He is a person who works in an office and performs routine tasks like keeping records,
maintaining files, etc.

In May and Baker (India) Ltd v. Their Workmen 19, the Supreme Court dealt directly with
the question that whether an employee who does not fall within the four exceptions to the
definition of 'workman' even under Sec. 2(s) is a workman if he does not do any of the works
specified in the definition of 'workman' under Section 2(s) of the Act.

The Supreme Court in May and Baker's case held that "to be a workman a person must do
any of the works specified in the definition, even if the person does not fall in any of the
exceptions to the definition.

Following its three Judge Bench judgment in May and Baker's case the Supreme Court in
Burmah Shell Oil Storage & Distribution Co. of India v. Burmah Shell Management
Staff Association20, held that the Sales Engineering Representatives and District Sales
18
1990 1 LLJ 98 Bombay HC
19
AIR 1967 SC 678.
20
AIR 1971 SC 922.

LABOUR AND INDUSTRIAL LAWS Page 14

Representatives employed in the company were not "workmen" within the definition of
workman under Section 2(s) of the Act, because they did not perform any of the works
specifiedin the definition of workman under Section 2(s) of the Industrial Disputes Act, 1947.

The Court pointed out that the specification of different types of work under Section 2(s) was
obviously intended to lay down that an employee was to be workman only if he was
employed to do work of anyone of types specified in the definition of workman under Section
2(s).

The Supreme Court in Burmah Shells case held that the work of canvassing and promoting
sales could not be included in any of the categories of 'work' specified in the definition of
"workman" under Section 2(s) of the Act. Therefore the sales representative is not a
'workman' under Section 2(s) of the Industrial Disputes Act, 1947.

In H.R. Adyanathaya v. Sandoz (India) Ltd.21, it was contended on behalf of the medical
representative that a medical representative performs the duties of skilled and technical nature
and therefore is a workman. Rejecting this contention, the Full Bench of the Supreme Court
in this case, held that the connotation of the word skilled in the context in which it is used
will not include the work of a sales promotion employee such as the medical representative.
As regards the technical nature of their work, the Supreme Court held that the amount of
technical work done by the sales representative is ancillary to the chief work of promoting
sales. The mere fact that they possessed technical knowledge for such work does not make
their work technical.

Teacher and Research Fellow is not a workman

In Miss A. Sundrambal v. Govt. of Goa, Daman & Diu 22, the Supreme Court held that
though an educational institution has to be treated as an industry, the teachers in an
educational institution cannot be treated as workmen.

The Supreme Court in A. Sundramnbal's case held that teachers employed by educational
institution whether they are imparting primary, secondary, graduate or post-graduate
education cannot be called workmen. As imparting of education which is the main function
of a teacher cannot be considered as manual, unskilled, skilled, technical, operational, clerical
or supervisory.

21
AIR 1994 SC 2608.
22
1989 1 LLJ 61 SC

LABOUR AND INDUSTRIAL LAWS Page 15

 (3) Person must not draw wages exceeding ten thousand rupees per month
(Rs. 10,000/ p.m.) if he is employed to do supervisory work.

The definition of workman under Section 2(s) of the Industrial Disputes Act 1947,
specifically excludes a person from the definition of workman who, being employed in a
supervisory capacity, draws wages exceeding ten thousand rupees per month under clause
(iv) of Sec. 2(s).

Thus, any person who is employed in any industry for hire or reward to do supervisory work
is not a workman if he draws wages exceeding ten thousand rupees per month.

In John Joseph Khokar v. B.S. Bhadange23, the petitioner was working as Mistry' in
Mazagaon Dock Limited and was drawing wages of Rs. 2500/p.m. His duties involved
supervising work of about 30 workmen and getting work done by them according to
specification. He also used to decide who should do overtime. The Bombay High Court in
this case held that since the 'mistry' is employed in supervisory capacity and who is drawing
wages more than Rs 1600/ p.m. Therefore 'mistry' is not a "workman" under Section 2(s) of
the Industrial Disputes Act, 1947. Mistry in this case is specifically excluded from the
definition of workman under clause (iv) of Sec. 2(s).24

(4) Person must not be employed mainly to do managerial or

administrative work.

The definition of workman under Section 2 (s) of the Industrial Disputes Act, 1947,
specifically excludes any person who is employed mainly in a managerial or administrative
capacity under sub-clause (ii) of Section 2(s). Thus, a person who is employed mainly to do
managerial or administrative work is not a workman under Section 2(s). Therefore in Central
Bank of India, Lucknow v. Assistant Labour Commissioner 25, the person employed
mainly in managerial capacity was not held a "workman" according to Sec. 2 (s) (iii) of the
Industrial Disputes Act, 1947.

In S.K. Maini's case the appellant Shri S.K. Maini, was the employee who was working as the
shop manager in charge of Carona Sahu Co. Ltd. By virtue of his being in charge of the shop,
he was the principal officer in charge of the management of the shop. He was required to
manage the overall functioning in the shop with the aid of his subordinates. Thus the
23
1998 LAB 1C 236 (BOM)
24
Supra note 4 at 64.
25
2000 ILLJ I67 (ALL).

LABOUR AND INDUSTRIAL LAWS Page 16

principal function to be performed by Shri Maini was administrative and managerial in its
nature. Shri Maini had to do some clerical work by keeping accounts and filling up forms.
But such works by themselves were not indicative of the fact that the clerical functions were
the main functions of Shri Maini. As the clerical work to be performed by Shri Maini was
ancillary to the main work which as managerial in its nature, Shri Maini was not held to be a
workman under section 2(s) of the Industrial Disputes Act, 1947, by the Supreme Court.

Not the designation but principal nature of duty is important where a person performs
multifarious duties

Whether an employee can be regarded as workman under section 2(s) 1947 Act or not, the
Court must have regard to dominant nature of duties performed as designations are not
conclusive. It is not the nomenclature but nature of job of the workman which is important.
Onus of establishing, whether or not an employee is a workman or not lies on the employee.

The Supreme Court in S.K. Maini v. M/s. Carona Sahu Company Ltd.26 held as follows:

"Whether or not an employee is a workman under Section 2(s) of the Industrial Disputes Act
is required to be determined with reference to his principal nature of duties and functions."

The Supreme Court in S.K. Maini's case further held that to know whether a particular person
is a workman or not under Section 2(s), what is important is the nature of the duties
performed by the person and not his designation.27

Workman may be temporary, permanent or probationer

In Delhi Cantonment Board v. Central Governmnent Industrial Tribunal, 28 it was held

that "Every person employed in an industry irrespective of whether he is temporary,
permanent or probationer is a workman provided he is doing the kind of work mentioned in
section 2(s) of I.D. Act, 1947."

Recently in Devinder Singh v. Municipal Council Sanaur29, the Supreme Court held that,
"the definition of workman does not make any distinction between full time and part time
employee appointed on contract basis. There is nothing in the plain language of Section 2(5)
from which it can be inferred that only a person employed on regular basis or person
employed for doing whole time job is a workman and the one employed on temporary, part
26
AIR 1994 SC 1824.
27
Supra note 4 at 52.
28
2006 Lab IC 1140.
29
(2011) 6 SCC 584.

LABOUR AND INDUSTRIAL LAWS Page 17

time or contract basis or fixed wages or as a casual employee or for doing duty for fixed
hours is not a workman".

(5) Person must not be excluded from the definition of workman under
section 2(s).
According to the definition of “workman” under section 2(s), following persons are the
person who are specifically excluded from the definition of “workman”-
(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 a managerial or administrative capacity, or
(iv) Who, being employed in a supervisory capacity, draws wages exceeding ten
thousand rupees per m or exercises, either by the nature of the duties attached
to the office or by the reason of the power vested in him, functions mainly of a
managerial nature.30

In Management of Heavy Engineering Corporation Ltd Vs. Presiding Officer Labour

Court31, 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.

PROTECTED WORKMEN

According to explanation of section 33(3), “a protected workman in relation to an

establishment means a workman who, being an office bearer or member of the executive
committee of a registered trade union connected with the establishment, is recognised as such
in accordance with rules made in this behalf”.

According to the explanation to Section 33(3), a workman to be a "protected workman” must

fulfil the following conditions:

i. The workman must be a member of the executive or other office bearer of a registered
trade union.-

30
Section- 2(s) of The Industrial Dispute Act, 1947.
31
2000 (48) BLJR 449

LABOUR AND INDUSTRIAL LAWS Page 18

 Whereas Section 2(gg) of the Industrial Disputes Act, 1947 defines "executive" as
follows-"Executive in relation to a trade union, means the body by whatever name
called, to which the management of the affairs of the trade union is entrusted;

And "office-bearer" is defined under Section 2(11) of the Industrial Disputes Act,
1947 as follows- "Office-bearer, in relation to a trade union, includes any member of
the executive thereof, but does not include an auditor."

ii. The registered trade union must be connected with the establishment to which the
"protected workman" is related; and

iii. The "protected workman" must be recognised in accordance with the rules made in
this behalf.32
18Rule 61(1) of Industrial Disputes (Central) Rules, 1957, provides that every registered
trade union connected with an industrial establishment shall communicate to the employer
before the 30th April every year, the names and addresses of the officers of the union who are
employed in that establishment who should be recognised as protected workmen.

Rule 61(2) makes it obligatory on the part of employer to recognise such number of workers
as provided u/s 33 (4) of the Industrial Disputes Act, 1947, as ‘protected’ for a period of 12
months, within fifteen days of receipt of the proposal from the union. However, management
is entitled to decline recognition as protected workman to a person nominated by the union, if
any disciplinary proceeding is pending against such workman.

Union certainly cannot exercise their power under Rule 61(1) to give immunity to an
employee against whom disciplinary proceedings initiated by the management are pending,
by nominating his name for recognition as protected workman. [HLL Lifecare Ltd Vs.
Hindustan latex Labour Union (AITUC)33]

As per Section 33 (4) of the Industrial Disputes Act, 1947, the number of workmen to be
recognised as protected workmen shall be one per cent of the total number of workmen
employed therein subject to a minimum number of five protected workmen and a maximum
number of one hundred protected workmen.
32
Dhawan, Rahat. Protected Workmen Under Industrial Dispute Act. Journal of Legal Studies and Research
[VOL. 2 ISSUE 4] (Available at https://thelawbrigade.com/wp-content/uploads/2019/05/Rahat-Dhawan.pdf)
last visited on 14th December, 2020.

33
WA.No. 1171 of 2010

LABOUR AND INDUSTRIAL LAWS Page 19

LABOUR AND INDUSTRIAL LAWS Page 20
 CONCLUSION

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 act gives an elaborated definition of workman and great importance for the protection
and safely of the workman.

Industrial Disputes Act 1947 is a welfare legislation enacted for the workmen as defined
under section 2(s) of the Act Courts and scholars have been grappling with the question of
‘who is a workmen’ for centuries. The addition of a new intermediate category has the
potential of making the distinction easier. It also has the potential of preventing or at least
minimizing, the widespread avoidance of responsibilities by employers, which so far has
been authorized by the judiciary. For both advantages to materialize, the term ‘employee’ and
‘workmen’ must be interpreted positively to achieve the goals behind the regulations in
which they are found. These purposes may be best served if courts and tribunals maintain a
distinction between two basic vulnerabilities suffered by people who work for others.
Therefore dependency itself should be used to identify ‘workers’ and trigger the application
of protective labour laws.

It is submitted that uniform definitions in various labour statutes and their simplification is
the prime need of the day so that the time of the industrial adjudication machinery, as also of
the superior courts, is not wasted on adjudicating preliminary issues such as whether a person
is a ‘workman’, whether the dispute in question is an ‘industrial dispute,’ and whether the
activity in question is an ‘industry’. These definitions have become the main litigating areas
consuming time, energy and space of industrial adjudication. The legislative process has
promises to keep if industrial harmony, in tune with distributive economic justice and
continuity of active production, is to be accomplished.

LABOUR AND INDUSTRIAL LAWS Page 21

 BIBLIOGRAPHY

BOOKS:

1. Paul, Meenu. Labour and Industrial laws. Faridabad: Allahabad Law Agency, 2020.
2. Misra, S.N. Labour &Industrial Laws with Latest Amendments. New Delhi: Central
Law publication, 2020.
3. Malik, P.L. Industrial Law (Covering Labour Law in India). Lucknow: Eastern Book
Company, 2017.

ARTICLES:

1. Dhawan, Rahat. Protected Workmen Under Industrial Dispute Act. JOURNAL OF

LEGAL STUDIES AND RESEARCH [VOL. 2 ISSUE 4] (Avaiable at
https://thelawbrigade.com/wp-content/uploads/2019/05/Rahat-Dhawan.pdf) last visited
on 14th December, 2020.

WEBSITES:

1. https://bnblegal.com/article/definition-of-workman/ (Last Visited on 10th December,

2020)
2. http://www.legalservicesindia.com/article/422/Which-employees-do-not-fall-under-
the-ambit-of-Industrial-Dispute-Act,-1947.html(Last Visited on 11th December, 2020)
3. https://www.dawn.com/news/1512631(Last Visited on 11th December, 2020)
4. http://lc2.du.ac.in/DATA/003_Industry,%20Industrial%20Disputes%20and
%20Workman_Conceptual%20Framwork%20and%20Judicial%20Activism%20(3-
50).pdf(Last Visited on 12th December, 2020)
5. https://www.slideshare.net/bibinssb/industrial-disputes-act-1947 (Last Visited on 12 th
December, 2020)

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