An interesting question followed by an enchanting debate! If I remember correct, once Mark Twain observed " the difference between an "exactly right word' and "the right word' is very vast like the difference between 'lightening' and 'the lightening bug". This is convincingly true because etimological interpretations change not only based on linguistics but also on anthropology. Of course, Pali Tripathy's initial query revolves around the practical difference between the terms 'workman' and 'employee' in the legal context and the brilliant answers given by people like Samvedan and Nalluchamy bring out the contextual and purposive differences in the different legislations employing either the word 'employee' or 'workman'. The recent renaming of the erstwhile " Workmen's Compensation Act,1923" as " The employees' Compensation Act,1923" is in tune with the reasons cited by the above two gentlemen by not only replacing the word 'workman' wherever it occured but also expanding its connotation by the deletions therein through the amending Act. However, the still-persistent confusion in the minds of friends like Krishna Prasath p and Tarsem Singh holds the quote of Mark Twain good, I think. So, let me try to explain the difference between the two terms that can be used interchangeably in a general context and the reasons for it from the angle of human relations. In the early stages of social living hard work was shared by all according to every one's physical strength. Eventually the stronger emerged as the leader of the group. The invention of agriculture paved way for the formation of feudalism from nomadism. This resulted in enslavement of the landless labour by the landed gentry. Thus came into existence a system of external or social human relationship called Master and Slave/Serf. Its negative impact caused its modification of the relationship to that of Master/Owner and Servant. The Industrial Revolution triggered by the advancement in Science and technology metamorphosed into large-scale manufacturing/ production which eventually culminated in the formation of giant industrial corporations or joint-stock companies to augment huge financial investments. The simultaneous problems associated with such growth like effective utilisation of the factors of production and large-scale employment of people under a single roof opened the gates for a new system called management. The harnessing of complicated multitudinal tasks rendered the system of management all the more complex which eventually resuted in the separation of ownership from management. Therefore, the owner need not be the master now. Since their relationship is strictly confined to the terms of employment or the contract of service, the master has become the employer and the servant has become the person employed or employee. In a way all the persons employed for hire or reward are employees. Therefore, 'employee' is a generic term indicative of the factum of being employed for hire. However, certain distinguishable authority-oriented features like the enabling powers of representation,hire and fire, supervision,control over the lower rungs of hierarchy call for distinction among the employees. Hence the species of Managers, Supervisors and Workmen or Workers. Thus, in the pyramidal structure of employment Managers occupy the highest position, the supervisors the middle and the workmen are at the bottom. Since the objective of a Welfare State is social justice to all its citizens and particularly those at the bottom are more, their problems have to be addressed and redressed through appropriate labour legislations. Hence the employment of different terms such as workman/worker, employee, person employed etc., depending upon the species to be protected by the respective employment legislations.
From India, Salem
6018From India, Salem
Meaning and coverage of Worker under Factories Act 1948
Section 2(1) under Factories Act, 1948 i.e. “Worker” means a person employed directly or by or through any agency (including a contractor) with or without knowledge of the principal employer, whether for remuneration or not, in any manufacturing process, or in any other kind or work incidental to, or connected with, the manufacturing process or the subject of the manufacturing process but does not include any member of the armed forces of the Union.
The definition contains following ingredients:
There should be ‘a person employed’ meaning of the word “employed”:
The concept of “employment” involves three ingredients, i.e.
• Employer,
• Employee, and
• Contract of employment.
The ‘employer’ is one who employs, i.e., one who engages the services of other persons whereas the ‘employee’ is one who works for another for hire.
Judgement of Chintaman Rao v. State of M.P. AIR 1958 S.C. 388 elaborate relationship between employee and employee as below:
The employment is the contract of service between employer and employee where under the employee agrees to serve the employer subject to employer control and supervision. The prima facie test for determination of the relationship between the employer and employee is the existence of the right of the employer to supervise and control the work done by the employee not only in the matter of directing what work the employee is to do but also the manner in which he shall do his work.
Therefore, ‘supervision and control’ is the natural outcome when a person is employed by another person.
In case Shankar Balaji Waje v. State of Maharashtra, AIR 1963 Bom. 236 the question arose whether bidi roller is a worker or not?
The management simply says that the labourer is to produce bidies rolled in a certain form. How the labourer carried out the work is his own concern and is not controlled by the management, which is concerned only with getting bidies rolled in a particular style with certain contents.
The Supreme Court held that the bidi roller is not a worker.
The whole conception of service does not fit in well with a servant who has full liberty to attend to his work according to his pleasure and not according to the orders of his master. Where the employer did retain direction and control over the workers both in manner of the nature of the work as ‘also its details they will be held as workers.
Whether all employees are workers?
In Works Manager, Central Rly. Workshop Jhansi v. Vishwanath and others, it was held that the definition of worker does not exclude those employees who are entrusted solely with clerical duties, if they otherwise fall within the definition of ‘worker. Timekeepers employed to maintain attendance of the staff, job cards particularly of the various jobs under operation, and time- sheets of the staff engaged in production of spare parts, repairs, etc.; and head time-keeper who supervise the work of the time-keepers, perform work which is incidental to or connected with the manufacturing process carried on in the factory and would therefore, fall within the definition of the worker in the Act.
Now it is very important to understand nature of work of departmental manager. Whether departmental manager works under supervision and control of employer or departmental manager have liberty to work as per his discretion.
In Shankar Balaji Waje v. State of Maharashtra, AIR 1963 Bom. 236, the question arose whether bidi roller is a worker or not. The management simply says that the labourer is to produce bidies rolled in a certain form. How the labourer carried out the work is his own concern and is not controlled by the management, which is concerned only with getting bidies rolled in a particular style with certain contents. The Supreme Court held that the bidi roller is not a worker.
The whole conception of service does not fit in well with a servant who has full liberty to attend to his work according to his pleasure and not according to the orders of his master. Where the employer did retain direction and control over the workers both in manner of the nature of the work as ‘also its details they will be held as workers.
In State of Kerala v. R.E.DSouza; Women and girls employed in peeling, washing etc., of consignment of prawns brought on the premises at any time of the day or night, without any specified hours of work and without any control over their attendance or the nature, manner or quantum of their work and who after finishing the work go to other premises in the locality where similar consignment of prawns are received, are not Workers.
So deciding factor about category of departmental manager whether falls under definition of worker or not; working conditions under employment are required to examine like:
1. Whether departmental manager working hours is as per his own sweet will or not?
2. Whether departmental manager working method is out of employer supervision or not?
3. Whether departmental manager working is out of employer control or not?
If answer of above three question's answer are "No"; then departmental manager falls under definition of worker if his works within factory for manufacturing process or not.
If answer of above three question's answer are "Yes"; then departmental manager do not falls under definition of worker even he works within factory for manufacturing process.
In question of whether all employees are workers court said as below:
Since the word employee has not been defined in the Act it follows that all the workers within the ambit of the definition under the factories Act would be employees, while all employees would not be workers (Harbanslal v. State of Karnataka, (1976)1 Karnt.J.111).
All persons employed in or in connection with a factory whether or not employed
as workers are entitled to the benefits of the Act (Union of India v. G.M. Kokil, 1984 SCC (L&S) 631).
Once it is established prima facie that premises in question is a factory within the meaning of the Act, the provisions of Section 103 as to the presumption of employment are immediately attracted and onus to prove the contrary shifts to the accused (Prafulbhai Patadia v. The State, 1976 (12) E.L.R. 329).
From Malaysia, Seremban
Section 2(1) under Factories Act, 1948 i.e. “Worker” means a person employed directly or by or through any agency (including a contractor) with or without knowledge of the principal employer, whether for remuneration or not, in any manufacturing process, or in any other kind or work incidental to, or connected with, the manufacturing process or the subject of the manufacturing process but does not include any member of the armed forces of the Union.
The definition contains following ingredients:
There should be ‘a person employed’ meaning of the word “employed”:
The concept of “employment” involves three ingredients, i.e.
• Employer,
• Employee, and
• Contract of employment.
The ‘employer’ is one who employs, i.e., one who engages the services of other persons whereas the ‘employee’ is one who works for another for hire.
Judgement of Chintaman Rao v. State of M.P. AIR 1958 S.C. 388 elaborate relationship between employee and employee as below:
The employment is the contract of service between employer and employee where under the employee agrees to serve the employer subject to employer control and supervision. The prima facie test for determination of the relationship between the employer and employee is the existence of the right of the employer to supervise and control the work done by the employee not only in the matter of directing what work the employee is to do but also the manner in which he shall do his work.
Therefore, ‘supervision and control’ is the natural outcome when a person is employed by another person.
In case Shankar Balaji Waje v. State of Maharashtra, AIR 1963 Bom. 236 the question arose whether bidi roller is a worker or not?
The management simply says that the labourer is to produce bidies rolled in a certain form. How the labourer carried out the work is his own concern and is not controlled by the management, which is concerned only with getting bidies rolled in a particular style with certain contents.
The Supreme Court held that the bidi roller is not a worker.
The whole conception of service does not fit in well with a servant who has full liberty to attend to his work according to his pleasure and not according to the orders of his master. Where the employer did retain direction and control over the workers both in manner of the nature of the work as ‘also its details they will be held as workers.
Whether all employees are workers?
In Works Manager, Central Rly. Workshop Jhansi v. Vishwanath and others, it was held that the definition of worker does not exclude those employees who are entrusted solely with clerical duties, if they otherwise fall within the definition of ‘worker. Timekeepers employed to maintain attendance of the staff, job cards particularly of the various jobs under operation, and time- sheets of the staff engaged in production of spare parts, repairs, etc.; and head time-keeper who supervise the work of the time-keepers, perform work which is incidental to or connected with the manufacturing process carried on in the factory and would therefore, fall within the definition of the worker in the Act.
Now it is very important to understand nature of work of departmental manager. Whether departmental manager works under supervision and control of employer or departmental manager have liberty to work as per his discretion.
In Shankar Balaji Waje v. State of Maharashtra, AIR 1963 Bom. 236, the question arose whether bidi roller is a worker or not. The management simply says that the labourer is to produce bidies rolled in a certain form. How the labourer carried out the work is his own concern and is not controlled by the management, which is concerned only with getting bidies rolled in a particular style with certain contents. The Supreme Court held that the bidi roller is not a worker.
The whole conception of service does not fit in well with a servant who has full liberty to attend to his work according to his pleasure and not according to the orders of his master. Where the employer did retain direction and control over the workers both in manner of the nature of the work as ‘also its details they will be held as workers.
In State of Kerala v. R.E.DSouza; Women and girls employed in peeling, washing etc., of consignment of prawns brought on the premises at any time of the day or night, without any specified hours of work and without any control over their attendance or the nature, manner or quantum of their work and who after finishing the work go to other premises in the locality where similar consignment of prawns are received, are not Workers.
So deciding factor about category of departmental manager whether falls under definition of worker or not; working conditions under employment are required to examine like:
1. Whether departmental manager working hours is as per his own sweet will or not?
2. Whether departmental manager working method is out of employer supervision or not?
3. Whether departmental manager working is out of employer control or not?
If answer of above three question's answer are "No"; then departmental manager falls under definition of worker if his works within factory for manufacturing process or not.
If answer of above three question's answer are "Yes"; then departmental manager do not falls under definition of worker even he works within factory for manufacturing process.
In question of whether all employees are workers court said as below:
Since the word employee has not been defined in the Act it follows that all the workers within the ambit of the definition under the factories Act would be employees, while all employees would not be workers (Harbanslal v. State of Karnataka, (1976)1 Karnt.J.111).
All persons employed in or in connection with a factory whether or not employed
as workers are entitled to the benefits of the Act (Union of India v. G.M. Kokil, 1984 SCC (L&S) 631).
Once it is established prima facie that premises in question is a factory within the meaning of the Act, the provisions of Section 103 as to the presumption of employment are immediately attracted and onus to prove the contrary shifts to the accused (Prafulbhai Patadia v. The State, 1976 (12) E.L.R. 329).
From Malaysia, Seremban
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