The law relating to labour and employment in India is primarily known under the broad category of “Industrial Law”. Industrial law in this country is of recent vintage and has developed in respect of the vastly increased awakening of the workers of their rights, particularly after the advent of Independence. Industrial relations embrace a complex of relationships between the workers, employers and government, basically concerned with the determination of the terms of employment and conditions of labour of the workers. Escalating expectations of the workers, the hopes extended by Welfare State, uncertainties caused by tremendous structural developments in industry, the decline of authority, the waning attraction of the work ethics and political activism in the industrial field, all seem to have played some role.
Whether an employee is workman or not under the Industrial Disputes Act is most important factor under the industrial jurisprudence. The reason being that a workman enjoys job security to such an extent that howsoever unwanted, undisciplined or inefficient he may be, his employer cannot dispense with his service unless a meticulous and complicated procedure is followed. Even after his termination, the workman can challenge his termination before the Labour Court/ Industrial Tribunal. Hence, in industrial disputes pertaining to termination of workman, every employer raises an objection that concerned employee is not “workman” under S2(s).
The term “workman” has been defined in the Industrial Disputes Act as well as other legislations. However the law has not laid down a standardized, definite and irrefutable definition. The Industrial Disputes Act, 1947; the Contract Labour Act (1970), Employers Liability Act and other legislations have attempted to define and concretize the concept of “workman”. Under the Contract Labour Act a workman means a person engaged in skilled, semiskilled or un-skilled manual, supervisory, or clerical work for hire or reward but excludes person employed mainly in a managerial or administrative capacity. The Employer’s Liability Act includes any person who has been entered into or works under a contract of, service or apprenticeship with an employer whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, oral or in writing to be a workman. The definition of “workman” of Industrial Disputes Act will be looked at in detail later. Therefore, we see that the various legislations have tried to define and delimit their scope of application but still there exists the confusion if these criteria are exhaustive or illustrative and the court’s interpretation too has added to this confusion.
The definition of workman in S2(s) of the Industrial Disputes Act, in connection with persons employed in an industry falls in 3 parts :
I) Gives statutory meaning of workman. This part of the definition determines a ‘workman’ by reference to a person (including apprentice) employed in an industry to do any manual unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward.
II) By this part of the definition, person who have been (i) dismissed, discharged\or retrenched in connection with industrial disputes; or (ii) whose dismissal, discharge or retrenchment has led to an industrial dispute have been included in the definition of ‘workman’.
III) This part specifically excludes categories of persons specified in clauses (i) to (iv) of Sec2(s)of the Industrial Disputes Act.
The first part brings in the concept of contract of employment between employer and employee. Unless there is a relationship of employer and employee, the definition of ‘workman’ will not come into play. Moreover, every person employed in an industry irrespective of whether he is temporary, permanent or probationer- would be a workman. What is important to be noted is that to bring a person under the definition of ‘workman’ it must be proved that he is employed in an ‘industry’ as defined in Sec 2(j).
The employer employee relationship implies that the contract between the two is of ‘contract of service’ and not ‘contract for service’. By the former, the employer can order not only what is to be done but how the work shall be done but in the latter, the person can be asked what is to be done but not how it shall be done.
TESTS FOR DETERMINING THE RELATIONSHIP OF EMPLOYER- EMPLOYEE
Due control test
The earliest case in which Supreme Court had to consider whether the person is an employee or independent contractor was Shivanandan Sharma v. Punjab National Bank Ltd. The Court after referring to English decisions held that the correct test for determining relationship was the control and supervision test.
The Court in Dhangadhara Chemical Works Ltd. v. State of Saurashtra held that the prima facie test to determine whether there existed a relationship of employer employee was the existence of the right in the master to supervise and control the work done by the servant, not only in the matter of directing that work but directing the manner in which work had to be done- the greater the amount of due control over the person rendering service, the stronger the ground will be for holding it a contract of service.
However, the real difficulty in application of the test arose in cases relating to beedi industry viz.; Chintamani Roa v. State of M.P ; Birdichand Sharma v. First Civil Judge Nagpur ; Shankar Balaji v. State of Maharashtra and Mohinudeen Sahib v. Industrial Tribunal . In all beedi cases, the court in principle, consistently subscribed to supervision and control test, even as it was at the same time mindful of limitations of this principle in its application to concrete fact- situations. The court arrived at different conclusions by emphasizing the difference in factual situations while applying the control test.
Silver Jubilee Tailoring House case , the court observed that other factors like organizational test, working in premises of the employer, working on the machines in employers premises, power to remove if the work is not in conformity with standards prescribed, are relevant factors for determining the relationship. The court here realized that control and supervision test is one of the test in determining the relationship between employer- employee but it is not the sole decisive test.
Economic control test
Later in Hussainbhai case the court applied both the ‘control test’ and ‘integral business test’. Court here held that livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefit and satisfaction of an enterprise , the absence of direct relationship or presence of dubious intermediaries from the Management cannot snap the real life bond. Also, the court here extended the corporate law principle of lifting the corporate veil to the area of employment law jurisprudence and subsequent decisions. . The observed that where workers’ labour is used to produce the goods and services for the employer and employer has economic control over worker’s subsistence, skill and continued employment, then there exists a relationship of employer-employee.
The true test for determining whether an employee employed under contract of service is workman or not? This is a matter of debate. Three- judge bench decision of the Court in May & Baker case , WIMCO. case ; Burmah Shell case , took the view that a person to be qualified as a workman must be doing the work which falls in any of the four categories- manual, clerical, supervisory or technical.
As against this, in a set of cases viz. S.K Verma v. Mahesh Chandra , Ved Prakash Gupta v. Delton Cable India Ltd. , and Arkal Govind Rao v. Ciba Geigy India Ltd. , all three-judge bench decision which without referring to the decision in the former set of cases, took the other view, viz. if a person does not fall within the four exceptions to the said definition, he is a workman within the meaning of the Act. These decisions are also based on the facts found in those cases.
Following this, in Adyanthaya v. Sandoz (India) Ltd. , a three judge bench of Supreme Court referred to a five judge bench the question as to (i) how to determine whether a person employed in an industry is a workman and (ii) what is the status of medical/sales representative under the said definition. To the effect that a person to be a workman he must be employed to do any of the categories of work envisaged in sec 2(s) and that he should not be excluded by the excluding part of the definition, the constitutional bench in the instant case reaffirmed the laid down in May & Baker, WIMCO and Burmah Shell, thereby clearing the two different stands taken by the court. The Court held that the position in law as it obtains today is that a person to be a workman under the Act must be employed to do the work of any of the categories, viz., manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not enough that he is not covered by either of the four exceptions to the definition. On the second issue whether medical representative are ‘workman’, the court held that they did not perform duties of ‘skilled’ and technical nature and therefore are not ‘workman under Industrial Disputes Act.. It said that the connotation of the word “skilled” in the context in which it is used, will not include the work of sales representative, and it has to be construes ejusdem generis and thus construed would mean skilled work whether manual or non-manual which is a genre of other types of work mentioned in the definition. The technical nature of the work done by Medical Representatives has been expressly rejected in Burma Shell case.
Recently, the court in Ram Singh v. Union Territory, Chandigarh , has held that though ‘control’ is one of the important test in determining employer employee relationship, but it is not the sole test. All relevant facts and circumstances are to be considered including the terms and conditions of contract. Emphasizing the importance of an integrated approach, the court observed that it is necessary to take multiple pragmatic approach weighing up all the factors for and against an employment instead of going by the sole ‘test of control’. “Integration test” is one of the relevant tests.
The control and supervision test that used to be considered sufficient is no longer so, especially in case of employment in case of highly skilled individuals. There is no single test to determine if a person is an employee. The relevant factors in a particular case may include, in addition to control and integration- “method of payment, obligation to work only for that employer, stipulation as to hours; overtime, holidays etc. how contract maybe terminated, whether individual may delegate work; who provides tools and equipments who bears risk of loss and chance of profit, “mutual obligations” between them.
HEALTHCARE PROFESSIONALS AS WORKMEN
The question whether activity of running a hospital would fall within ambit of definition of an industry, came for consideration for the first time before High Court of Bombay in Hospital Mazdoor Sabha v. State of Bombay the High Court took a view that ‘undertaking’ used in the definition of industry in 2(j) would cover activities which have no commercial implications, such as hospital carried on with philanthropic motives. Mere fact that government is running such activity is not of any consequence. This decision was confirmed by the court in Bangalore water supply case where the court held that hospital services, research products and training services are ‘services’, hence they are within the purview of industry.
The point of discussion in this paper is- Whether Healthcare Professionals are ‘workmen’? The judiciary has taken divergent views in this regard. For this first one should seek to answer the question that is the work done by doctors is manual unskilled, skilled, technical, operational, clerical or supervisory in nature. Healthcare professionals includes physicians, dentists, nurses, pharmacists, therapists, psychologists, physical therapists, optometrists, paramedics, and a wide variety of other individuals regulated and/or licensed to provide some type of health care.
In Bengal United Tea Co. v. Ram Labhaya the court held that a medical officer and his work is of technical nature and is therefore a workman. The dictionary meaning of “technical” means a person skilled or conversant with some particular art or applied science (medical science being one of them). However, in this case there was no dispute as to the purpose of which the appointment of doctor was made or the functions which he performed. The case proceeded on the assumption that doctor performed functions of a medical attendant.
In Dr. Surendra Kumar v. UOI , the question was whether Assistant Medical Officer Class appointed in Railways was workman. The court observed that the duties of Assistant Medical Officer was not only to treat persons but to meet other administrative requirements where he is in charge of hospital or health unit and was responsible for its establishment and administration. The duties of the doctor required him to perform supervisory functions in addition to treating patients, which means he was employed in a supervisory capacity and by virtue of him earning more than Rs 1200/- per month he cannot be a workman.
Heavy Engineering Corp. Ltd. v. Presiding Officer, Labour Court – here Heavy Engineering Corp. Ltd. appointed a doctor on ad hoc basis for a period of 6 months which was later extended for 3 months. 3 more doctors were appointed along with him. They were given a notice stating termination of their service after one month. This was challenged. The Supreme Court observed that when he was on shift he was the sole person in charge of the first aid post and he had people working under him (male nurse, nursing attendants, sweepers etc.) to whom he used to give directions. Court held that when a doctor discharges his duty attending the patients and in addition supervises the work of persons subordinate to him he cannot be held a workman.
In Wadia Charitable Hospital v. Umakant , a Charitable hospital (a part of the money received was given in charity), employed doctors who were even allowed to have their own private practice. The hospital terminated services of one of the doctor. Prior to this, there existed a dispute with regard to better facilities for the doctor. After the termination, doctors announced an indefinite strike, therefore the hospital terminated services of all. The question before the court was doctors who are employed in hospitals and who are allowed private practice, are workmen? It was argued before the court that the doctors were providing “service” (under Sec 2(1)(o) of I.D Act) to the patients and are therefore workmen. The court held that when patients are allowed to come to the hospital, it cannot be said that the doctor is rendering services only to an employer who owns an industry or an undertaking. He renders service to the Society at large. Court, observed that in the cases cited by the counsels , the Medical Officer has been appointed for treating the workmen employed in Industries and were doing the work of the Industry for which they were paid salary and such a situation cannot be equated to the facts of the present case. Here the doctors are rendering only professional service to various institutions Therefore the doctors cannot be held to be workmen. It also added that there cannot be a strait jacket test or formula in these matters. It will ultimately depend on the fact of each case.
Ahmedabad Municipal Corporation v. Virendra Kumar Jayantibai the court held that a doctor being paid for visits for visiting the dental clinic of the corporation which provided medical service to the residents of the Corporation, was held not to be a workman.
A chemist-in-charge of performing, the work essentially of technical nature, having power to recommend leave but no power to grant leave or take disciplinary action was held to be a workman.- Sudhirkumar v. Ferro Alloys Corporation Ltd
In Bombay Hospital Trust v. Shailesh Hathi the question was whether physiotherapist is workman? The court observed that the job of Physiotherapist is not `perennial in nature of work. It is highly specialized skilled job and is in nature of job of Doctor. It was held that the person holding a degree of physiotherapist is not a workman because of his carrying work of helping a patient to exercise. In fact a treatment given by the physiotherapist is not a perennial nature of work. Therefore, a physiotherapist is not a workman under S 2(s) of I.D Act. The payments which were made by the Hospital was from the fees recovered from the various patients moreover, there was no material whatsoever produced by the petitioners to show any direct master servant relationship
Recently, a Division Bench of the Kerala High Court comprising Justice C.N. Ramachandran Nair and Justice V.K. Mohanan ruled that a consultant physician employed by the hospital did not come within the meaning of the term workman as defined in the Industrial Disputes Act, 1947.The Bench observed that there was a categorical finding by the Supreme Court on the issue. The apex court had held that a medical officer, being a professional, could not be termed as a workman under any law. The court observed that an employee engaged in supervisory work was outside the scope of workman. The claimant-doctor who was one of the senior doctors in the hospital was engaged in supervisory and technical work.
From the above cited cases it is evident that there is no straight jacketed formula adopted by the judiciary for determining if a person is a workman or not. The decision varies with facts and circumstances of each and every case. The Supreme Court has not given a concrete reason as to why doctors are not workman. In most cases the issue of doctors being engaged in supervisory work is raised and the court without applying the predominant nature of the work test and looking into the fact if a doctor is engaged in technical work or not, holds him not to be a workman. This approach of the court is highly erroneous as the Court is digressing from the main function of the doctor and holding him not to fall under the definition of the workman because of the ancillary function of supervision being carried out by him.
A single uniform definition for ‘workman’ is the need of the hour, considering all the confusion of the courts on the subject as to who is workman and who is not, under the various legislations. The First National Commission on labour (1969) had observed that in order to bring a feasible degree of simplification and uniformity in definitions it should be possible to integrate those enactments which cover subjects having common objects.
Report of the Second National Commission on Labour (2002) had also considered this issue and recommended that the coverage as well as definition of the term ‘worker’ should be the same in all groups of laws, subject to the stipulation that social security benefits must be available to all to all employees including administrative, managerial, supervisory and others excluded from the category of workmen and others not treated as workmen. The Commission proposed that instead of having separate, it maybe advantageous to incorporate all provisions relating to employment relations, wages, social security, safety and working conditions etc. into a single law.
It is high time to implement the recommendations of both the Commissions by integrating and amending labour legislations to bring uniformity in the definitions of various terms so it can avoid confusion so that there is no conflict or inconsistency in their interpretation by the courts.
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Industrial Disputes Act, 1947
Contract Labour Act, 1970
Employers Liability Act, 1938