LABOUR LAW

“IS TEACHER A WORKMEN”

SUBMITTED TO:-
MS. PALLAVI SHANKAR,
PROFESSOR OF LAW

SUBMITTED BY:-
SAHIL SUMAN
FOURTH SEMESTER
ROLL NO. :-1849
B.B.A., LL.B. (HONS)
SESSION - (2017-2022)

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR MITHAPUR, PATNA

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 DECLARATION

I, Sahil Suman, student of Chanakya National Law University, hereby declare that the project
work entitled “IS TEACHER A WORKMEN” submitted to the Chanakya National Law
University, Patna is a record of an original work done by me under the guidance of Ms. Pallavi
Shankar, teacher in subject, Chanakya National Law University, Patna.

THANK YOU,

NAME: Sahil Suman

COURSE: B.B.A., LL.B. (Hons.)

ROLL NO: 1849

SEMESTER – 4th

SESSION- 2017-2022

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 ACKNOWLEDGEMENTS

I would specially like to thank my guide, mentor, Ms. Pallavi Shankar without whose constant
support and guidance this project would have been a distant reality.

This work is an outcome of an unparalleled infrastructural support that I have received from
Chanakya National Law University, Patna.
I owe my deepest gratitude to the library staff of the college.

It would never have been possible to complete this study without an untiring support from my
family, specially my parents.

This study bears testimony to the active encouragement and guidance of a host of friends and
well-wishers.

THANK YOU,

NAME: Sahil Suman

COURSE: B.B.A., LL.B. (Hons.)

ROLL NO: 1849

SEMESTER – 4th

SESSION- 2017-2022

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 CONTENTS

AIMS AND OBJECTIVES

HYPOTHESIS

RESEARCH METHEDOLOGY

LIMITATION

SOURCE OF DATA

INDUSTRY

WORKMAN

INDUSTRIAL DISPUTE

IS EDUCATIONAL INSTITUTE A INDUSTRY?

BANGLORE WATER SUPPLY CASE

COCLUSION

BIBLIOGRAPHY

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INTRODUCTION

The Industrial Disputes Act, 1947 (hereinafter the ‘Act’) is a beneficial piece of legislation, and
hence the definitions of terms therein, including that of the term ‘workman’, are given wide
interpretations. An attempt has been made to include a large number of categories of employees
in the meaning of the term ‘workman’. The definition of ‘workman’ in the Act is as under:

Section 2(s):

“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, dischasrge or retrenchment has led to that dispute, 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 a managerial or administrative capacity; or

(iv) Who, being employed in a supervisory capacity, draws wages exceeding one thousand six
hundred rupees per mensem 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.

Ordinarily, the primary function of a teacher is to impart education. There is usually a syllabus to
be followed, but the teacher has the independence to teach the syllabus in such manner as he
thinks fit, and normally it requires creativity and initiative on the part of the teacher to carry out
his functions.

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In Miss A. Sundarambai v. Government of Goa, Daman and Diu & Ors. [1989 1 LLJ 61], the
Supreme Court of India held as under:

“… we are of the view that the teachers employed by educational institutions, whether the said
institutions are imparting primary, secondary, graduate or post-graduate education cannot be
called as ‘workman’ within the meaning of Section 2(s) of the Act. Imparting of education which
is the main function of teachers cannot be considered as skilled or unskilled manual work or
supervisory or technical work or clerical work… The clerical work, if any they may do, is only
incidental to their principal work of teaching.”

Thus, a teacher, though performing work that requires skill, and even technical knowledge and
application, is not a workman.

AIMS AND OBJECTIVES

1. The researcher tends to analyse the various aspects of the case and the relationship of
the facts of case with the industrial law, and

2. The researcher tends to analyse the basic reason and criteria for an industrial dispute.

HYPOTHESIS
The researcher is of the opinion that teacher is not a workmen.

RESEARCH METHODOLOGY
This study is oriented to study and analyse whether teacher is a workmen or not. Secondary
data involves the collection of data through past research studies, journals, magazines,
books, leading databases, articles and internet. This study also highlights the common
different types of market structure.

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LIMITATION OF THE STUDY
The researcher intends to cover only the facts and judgements of the case and other relevant
judgements to the proposed study.

As study was done within a limited time, the researcher could not select sufficiently large
sample for the study.

SOURCES OF DATA
PRIMARY SOURCES

1. Industrial disputes act, 1947

2. Legislative Provisions
3. Case laws

SECONDARY SOURCES

• Books

• Newspaper

• Websites

• Journals

• Magazines

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INDUSTRY, WORKMEN AND INDUSTRIAL DISPUTES

INDUSTRY
The definition of “industry” has evolved and expanded significantly over a period of time by the
legislative acts and judicial decisions. The journey of such evolution has been symbolic primarily
because of lack clarity in the legislative intent as embodied in the law and conflicting judicial
approaches regarding the ambit of such definition.

Section 2 (j) of the Industrial Disputes Act, 19471 can be divided into two components. The first
component enumerates as the statutory meaning of ‘industry’; the second component provides as
to what does an industry includes within its definition. This definition is not exhaustive and cannot
be treated as restricted in any sense has therefore been subjected to immense judicial scrutiny. The
landmark judgement is the Bangalore Water Supply case, enlarged the definition to a large extent
and over-ruled case precedents which were a part of narrow interpretation, that is to say, before
the Bangalore Water Supply case clubs2, hospitals3, universities4, solicitor firms5, government
departments were excluded from the definition of industry but after the Bangalore judgement they
have been declared as industry. The triple test of the Bangalore case forms the quintessential part
of the amended definition of industry in 1982. The triple test provides that a) systematic activities
b) organized by cooperation between employer and employees c) for the production of goods and
services calculated to satisfy human wants and wishes would constitute industry. However, this

1
Hereinafter referred as the Act, 1947
2
Cricket club of India v Bombay Labour Union (1969 AIR 276)
3
Management of Safdarjung Hospital v. Kuldip Singh (AIR 1970 SC 1406); Dhanrajgiri Hospital v. Workmen (AIR
1975 SC 2032)
4
University of Delhi Vs. Ram Nath (1963 AIR 1873)
5
National Union of Commercial Employees v. M.R. Meher (AIR 1962 SC 1080) ; Osmania University v Industrial
Tribunal Hyderabad (AIR 1960 AP 388)

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test was subjected to exceptions, namely, industry does not include spiritual or religious services;
absence of profit motive or gainful objective is irrelevant (although an organization will not cease
to be a trade or business because of philanthropy animating the undertaking) The main test is the
nature of activity with emphasis of employer-employee relationship therefore all organized
activities that satisfy the triple test will constitute industry including undertakings, callings and
services, adventures’ analogous to the carrying on of trade or business. Thus, professions, clubs,
educational institutions, cooperatives, research institutes, charitable projects and (vii) other
kindred adventures will not be exempted from Section 2(j) of the Act, 1947 provided the triple test
is fulfilled. The Apex Court also enunciated the dominant nature criterion or test according to
which a limited category of professions, clubs, co-operatives little research labs, and
even gurukuls may qualify for exemption if substantively no employees are hired but only in
minimal matters some marginal employees are hired without disturbing the non-employee
character of the unit. Also, lawyers volunteering to run a free legal services clinic or doctors
serving in their spare hours in a free medical Centre or if such services are supplied at a nominal
cost and the those who serve are not paid remuneration based on master servant relationship then
such an institution would not constitute industry even if servants, manual or technical, are hired.

WORKMAN
The concept of workman is central to the concept of an industrial dispute as an industrial dispute
can be raised either by a "workman" or an "employer." Since the Industrial Disputes Act, 1947
("ID Act") is a piece of beneficial legislation, the courts have enlarged the scope and applicability
of this Act by giving wide interpretation to the term "workman." Section 2(s) 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 of more than INR 6500.

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The Courts have interpreted this definition and have identified various determining factors to know
whether a person is "workman" or not. The factors which should be considered are (a) whether
there is a Master-Servant relationship;6 (b) 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;7 (c) 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 (d) that the exceptions are not applicable.8 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."9

Over a period of time, courts have interpreted specific points of contention in the definition under
the ID Act which has enlarged the scope of the legislation.

6
. Chintaman Rao v. State of Madhya Pradesh AIR (1958) SC 358

7
John Joseph Khokar v. Bhadange B. S. & ors 1998 (1) LLJ 447 (Bom)

8
Kirloskar Brothers Ltd. v. Respondent: The Presiding Officer, Labour Court, Delhi and Anr. [1977(34)FLR206]

9
Devinder Singh v Municipal Council, (2011) 6 SCC 584

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INDUSTRIAL DISPUTES
The Industrial Disputes Act, 1947, is an effort on the part of the government to normalize industrial
relations in India. This legislation is premeditated to ensure industrial peace by recourse to a given
procedure and machinery for investigation and settlement of industrial disputes. Its foremost
objective is to provide for an unbiased and equitable settlement of disputes by negotiations,
conciliation, mediation, voluntary arbitration and compulsory adjudication instead of by trial of
strength through strikes and lockouts. But, when the industrial disputes act came, labour disputes
had gained new grounds, large and scary. There were clashes between workmen and employers on
several occasions. The word industrial dispute express meaning to the everyday person that the
dispute must be such as would affect large groups of workmen and employers ranged on opposite
sides on some general question on which each group is bound together by community of interests,
such as wages, bonuses, allowances, pensions and so on. Even with reference to a business that is
carried on, one would hardly think of saying that there is industrial dispute where the employee is
dismissed by his employer and dismissal is questioned as wrongful; but at the same time, having
regard to modern conditions of the society where capital and labour have organized themselves
into groups for the purpose of fighting their disputes and settling them on the basis of the theory
that union is strength, and collective bargaining have come to stay, a single employees case might
develop into industrial dispute, when it is taken up trade union of which he is a member and there
is concerned demand by the employees for redress. Such trouble may arise in a single
establishment of a factory. It may well arise also in such a manner as to cover the industry as a
whole in a case where grievance passes from region of individual complaint into general complaint
on behalf of all the workers in the industry. Such widespread extension of labour unrest is not a
rare phenomenon but is of frequent concern. The purpose of the researcher under this project
assignment is to put a meticulous view on section 2(K) under the act, which in definition may have
look small but holds larger proportions. It becomes subsequently essential to interpret and
understand the terms used in the Act with as wide import as reasonable possible.

Industrial Dispute: A Dispute of Substance

“Trade Dispute exists, wherever a ‘difference’ exists and ‘difference’ can exist long before the
parties become locked in a combat. It is not necessary that they should have come to blows. It is
sufficient that they should fight from an opening”.

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What we can assume from the quotation above is the meaning of dispute or difference that Lord
Denning tried to convey, which is something of real substance and not of personal quarrel or some
grumbling agitation.

“The term ‘Industrial Dispute’ predicts a real and substantial difference which has some element
of persistency, and likely if not adjusted, then has the potential to endanger the industrial peace of
the community”. The usage of the phrase ‘dispute’ or ‘difference’ is one of the phrases which have
been used, to determine the nature of a dispute, industrial or otherwise.

A ‘dispute’ or ‘difference’, in an industrial context can only arises when a demand is made by
workmen on the employer and rejected by him. The definition of ‘industrial dispute in section 2(k)
of the Industrial Disputes Act 1947, shows that where there is a dispute or difference between the
parties contemplated by the definition and that dispute of difference is connected with the
employment or non-employment or terms of employment or with the conditions of labour of any
person, there comes into existence an industrial dispute10. In other words, only those controversies
would fall within the definition “in which the opponents are seeking to raise definite disputes of
substance in which both the parties are themselves directly and substantially interested”. Hence, a
dispute or difference arises only when a demand is raised by the workmen and rejected by an
employer. Further it must be grievance felt by workmen which the employer is in a position to
remedy. The contention must be present; it must be a grievance of the workmen themselves and it
must be a grievance which the employer as an employer is in a position to put right .

In Sindhu Resettlement Corporation vs. Industrial Tribunal11 , the Supreme Court has held that
mere demand asking appropriate to refer the dispute for adjudication, without a dispute being
raised by workmen with their employer regarding such demand can’t become an ‘Industrial
Dispute’. Hence an Industrial Dispute cannot be said to exist until and unless a demand is made
by workman or workmen on the employer and it has been rejected by him.

A Division Bench of Delhi High Court in ‘Fedders Lloyd Corporation Ltd vs. Lieutenant
Governor went a step further in holding that a demand by the workmen must be raised first on the

10
Section 2(k) of Industrial dispute act
11
1968 AIR 529, 1968 SCR (1) 515

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management and rejected by it before an Industrial dispute can be said to arise and ‘exist’ and that
the making of such a demand to conciliation officer and its communication by him to the
management, who rejected the demand is not sufficient to constitute an “Industrial Dispute”. To
summarize it further, if the workmen do not make a demand on the employer no ‘industrial dispute’
will come into existence.

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IS EDUCATIONAL INSTITUTE IS AN INDUSTRY?

The education industry comprises all types of schools and education services pertaining to the
provision of training and instruction on a wide range of subjects. It covers academic education
(ranging from kindergartens to junior colleges), commercial and information technology and
technical schools, tertiary institutions, music and dancing schools, language schools, driving
schools and supporting services to education ( eg. agencies of foreign education institutions
which recruit students for institutions overseas), etc. These establishments could operate as for-
profit or non-profit organisations.
The issue whether educational institution is an ‘industry’, and its employees are ‘workmen’
for the purpose of the Industrial Disputes Act, 1947 has been answered by a Seven-judge Bench
of this Court way back in the year 1978 in the case of Bangalore Water Supply (supra). It was
held that educational institution is an industry in terms of Section 2(j) of the Industrial Disputes
Act, 1947, though not all of its employees are workmen.

CASE:
Raj Kumar vs Dir.Of Education & Ors on 13 April, 2016

The appellant was employed as a driver by the DAV Public School, Pocket ‘C’, LIG Flats, East
of Loni Road, Delhi and became permanent on the said post in the year 1994. His terms of
service are covered under Sections 2(h), 8(2), 10 and other provisions of the Delhi School
Education Act, 1973 (hereinafter referred to as the “DSE Act”).

On 01.05.2001, the DAV College Managing Committee in its 72nd meeting of Public Schools
Governing Body, passed a resolution to buy new school buses with CNG facility in compliance
with the directions of this Court dated 26.03.2001 passed in the case of M.C. Mehta v. Union of
India and allowed the management of the DAV Schools to raise loan from nationalized banks for
the said purpose.

The respondent-Managing Committee in its meeting dated 24.08.2002, passed a resolution to

retrench the services of the two junior most surplus drivers, namely the appellant and one Amar
Nath, for the reason that the school had two old mechanically unfit vehicles namely, a Matador
(registration No. DL- IV-1481) and a Maruti Van bearing registration No.DL-5C-3107 which

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were disposed of on 01.09.1995 and 13.06.1997, respectively. As an alternate arrangement,
private buses had to be hired for the transportation of students as per instructions in the earlier
resolution, but the respondent- Managing Committee could not purchase new buses due to
shortage of funds, which resulted in the appellant being declared surplus on account of non-
availability of job.

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TRIPLE TEST LAID DOWN IN BANGALORE WATER SUPPLY CASE

In Bangalore Water Supply vs. A. Rajappa12 a seven judge’s bench of the Supreme Court
exhaustively considered the scope of industry and laid down the following test which has
practically reiterated the test laid down in Hospital Mazdoor Sabha13 case.

Triple Test: where there is systematic activity, organized by cooperation between employer and
employee for the production and/or distribution of goods and services calculated to satisfy
human wants and wishes, prima facie, there is an “industry” in that enterprise. This is known as
triple test. The following points were also emphasized in the case:

1. Industry does not include spiritual or religious services or services geared to celestial bliss,
example, making, on a large scale, Prasad or food. It includes material services and things.

2. Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint,
private or other sector.

3. The true focus is functional and the decisive test is the nature of the activity with special
emphasis on the employer-employee relations.

4. If the organization is a trade or business it does not cease to be one because of philanthropy,
animating the undertaking.

Therefore, the consequences of the decision in this case are that professions, clubs, educational
institutions cooperatives, research institutes, charitable projects and other kindred adventures, if
they fulfill the triple test stated above cannot be exempted from the scope of section 2(j) of the
act.

12
AIR 1978 SC 548
13
Supra

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CONCLUSION

To give effect to the objects of this Act, the courts have followed a purposive approach while
interpreting the term workman‟ and industrial dispute‟. The emphasis is laid on the nature of
duties and powers conferred on an employee rather than the designation.

Considering the above cases and the judgements given by the supreme courts, teachers cannot be
said as workmen, though educational institute is considered as industry but still teacher is not
considered as a workmen. The reason for the said decision are that the job of the teacher is for
imparting education.

Such job cannot be considered as skilled or unskilled, manual, supervisory, technical or cleric
work. It has been held that imparting education is in the nature of a mission or a noble vacation.
A teacher educates children, he mould their character, builds up their personality and makes
them fit to become responsible citizens. Children grow under the care of children. The clerical
work, if any, they may do is only incidental to their principal work of teaching.

Ordinarily, the primary function of a teacher is to impart education. There is usually a syllabus to
be followed, but the teacher has the independence to teach the syllabus in such manner as he
thinks fit, and normally it requires creativity and initiative on the part of the teacher to carry out
his functions.

In Miss A. Sundarambai v. Government of Goa, Daman and Diu & Ors. [1989 1 LLJ 61], the
Supreme Court of India held as under:

“… we are of the view that the teachers employed by educational institutions, whether the said
institutions are imparting primary, secondary, graduate or post-graduate education cannot be
called as ‘workman’ within the meaning of Section 2(s) of the Act. Imparting of education which
is the main function of teachers cannot be considered as skilled or unskilled manual work or
supervisory or technical work or clerical work… The clerical work, if any they may do, is only
incidental to their principal work of teaching.”

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BIBLIOGRAPHY
The researcher has consulted following sources to complete the rough proposal:

Primary sources:

Primary sources include statutes, acts etc.

STATUTES AND ACTS:

1. Industrial Disputes Act 1947

Secondary sources:

Secondary sources include books, articles, magazines, journals, websites etc.

 BOOKS:

1. Author: Singh Avatar (Dr.) & Kaur Harpreet, Labour and Industrial Law, Published by
Lexis Nexis, 2ND Edition, 2008
2. Author: Prof. S.N. Mishra, Labour And Industrial Law, Published by
Central Law Agency, Edition: 28th, 2016

 WEBSITE:

1. https://www.sci.gov.in/jonew/judis/2266.pdf

2. https://www.casemine.com/judgement/in/5609aac6e4b014971140af36

3. http://www.whatishumanresource.com/the-industrial-disputes-act-1947

4. https://www.lawteacher.net/free-law-essays/employment-law/definition-of-industrial-
dispute-employment-law-essay.php#ftn2

5. https://www.legalcrystal.com/case/835225/madras-gymkhana-club-represented-hon-y-
secretary-island-grounds-vs-c-sukumar

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