30 Dec 2009

"Workmen" in today's context: Bombay High Court reexamines the law

In a recently delivered decision, the Bombay High Court has defined the meaning of 'workmen' in the context of industrial relations in the modern day context. The call for revival and rethink of the industrial disputes legislation in the country has been in vogue for long ever since the liberalization era redefined the parameters and symbolism associated with the working culture in which the archaic legislation were framed. The High Court in this recent decision has clarified and sought to adopt the meaning of workmen to define the contours of the term in a manner befitting the current era. 

The High Court was dealing with a challenge to the decision of an industrial tribunal which had directed Standard Chartered Bank to reinstate an employee in employment with back wages. It was argued in the High Court that since the said employee could not be considered as a workmen therefore the decision of the Tribunal could not be sustained. It was shown that the said employee had been employed in management cadre wherein the job description included “achieving allocated business targets, ensuring high quality customer service, ensuring external and internal compliance on all branch transactions, handling difficult customer situations and contributing to the overall achievement of business growth”. 

The High Court declared that it was settled law that a well settled principle of law that the burden lies on the person who asserts the status of a workman to establish with reference to the dominant nature of his / her duties that the work which is performed falls within one of the stipulated categories viz. manual, unskilled, skilled, technical, operational, clerical or supervisory. Thereon the High Court declared that a Personal Financial Consultant cannot be regarded as work of a clerical nature. The High Court inter alia declared as under;
On the contrary the work which was assigned to the First Respondent clearly shows that she was intrinsically associated with the provision of a high level of customer service to the customers of the bank. At one level the First Respondent constituted a public interface for the bank with its customers while at another level the First Respondent had to ensure that all the processes and mechanisms of the bank were duly complied with in relation to banking transactions. ... What the Court must have due regard to, however, is the overall nature of the duties and responsibilities that are attached to the job. The duties and responsibilities that were attached to the job of the First Respondent were not of a clerical nature. As an employee engaged in contributing to the business of the bank the First Respondent was recruited to perform duties which cannot be regarded of a clerical nature.
Virtual offices are now a reality and paperless transactions are no longer a novelty. Managerial organisation today is radically different from the preliberalization era. Tests of control which were appropriate to a society thirty years ago have become relics of an era which India has left behind in the annals of history. The law has kept pace with the times by recognizing that in order to determine whether a person is a workman under Section 2(s), contemporary notions of business cannot bestratified by notions of economic organisation developed for an era which is no more.
The fact that in an organizational structure the employee, in the course of the decision making process, is subject to checks and balances is not a matter which would establish that she / he is a workman within the meaning of Section 2(s). Modern forms of business in corporate organizations put into place a carefully crafted process of checks and balances. Rarely, if ever, would an employee have authoritarian control over business decisions. Employees are made subject to checks and balances both at the lateral and vertical level. Managerial decisions are subject to verification and approval. The fact that decisions of an employee are subject to verification or subject to a system of controls and balances does not establish that the employee is a workman within the meaning of Section 2(s). Managers do not become workmen because their decisions are structured by processes and approvals. Absolute autonomy is not the norm in managerial decision making. Nor does the law insist on absolute discretion or absolute autonomy for a person to be a manager. Basically the answer to the question must depend upon the dominant nature of the duties and responsibilities.

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