My query is regarding the Employee Compensation Act, 1923. If an engineer working in a private limited company comes under the definition of "Employee" under the Employee Compensation Act, 1923 or the Industrial Disputes Act, 1947?
1. If a software engineer with a software company (private limited) is an employee under the Employee Compensation Act, 1923?
2. If a telecom engineer providing technical expertise to a telecom company is an "employee" under the Employee Compensation Act, 1923.
If they don't come under the purview of the Employee Compensation Act, 1923, then how should the compensation be calculated in case of the death of an engineer while in service in the above cases? Kindly provide any examples of the calculation of compensation in the case of the death of an employee by courts/companies in India.
From India, Delhi
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1. If a software engineer with a software company (private limited) is an employee under the Employee Compensation Act, 1923?
2. If a telecom engineer providing technical expertise to a telecom company is an "employee" under the Employee Compensation Act, 1923.
If they don't come under the purview of the Employee Compensation Act, 1923, then how should the compensation be calculated in case of the death of an engineer while in service in the above cases? Kindly provide any examples of the calculation of compensation in the case of the death of an employee by courts/companies in India.
From India, Delhi
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The engineer in both cases will be an employee under the Employee Compensation Act, and the calculation shall be done on the basis of the age factor as mentioned in the schedule attached to the Act, multiplied by 50% of monthly wages. If the salary is above Rs 8000, then it will be treated as Rs 8000.
Regards
From India, Delhi
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93Regards
From India, Delhi
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Dear Mr. Arora,
Let me first deal with your query whether a Software Engineer would be an 'employee' under the Employees Compensation Act, 1923.
Please kindly refer to the definition given in the Act after the latest amendment in 2009 under section 2(1)(dd). The definition comprising of 3 limbs states who an employee is and distinguishes clearly who is not an employee based on his capacity of employment. As per the first limb in clause (i), a railway servant not permanently employed in any administrative district or sub-divisional office and not employed in any such capacity specified in Schedule II is an 'employee' under the Act. Similarly, as per the second limb in clause (i)(a), a master, seaman, or other member of the crew of a ship registered in India, a captain, or other member of an aircraft registered in India, a person recruited as a driver, helper, mechanic, cleaner, or in any other capacity in connection with a motor vehicle registered in India, and a person recruited for work abroad by a company registered in India are employees under the Act. Finally, the 3rd limb in clause (ii) defines that any person employed in any such capacity as specified in Schedule II other than any person working in the capacity of a member of the Armed Forces of the Union is an 'employee'. From the above, it is discernible that a common thread which runs through the entire definition is "the capacity of employment" specified in Schedule II. Therefore, to be an 'employee' under the Act, a person must be (1) employed by an employer, that is to say there must be a master and servant relationship AND (2) must be one whose employment is not merely of a casual nature; but should have been employed for the purposes of trade or business even if it is of a casual nature. AND (3) must either be a railway servant subject to the qualifications mentioned or must be employed in any one of the capacities specified in Schedule II. AND (4) must not be a member of the Armed Forces. Thus, it is clear that all these 4 conditions must be satisfied before a person can be said to be an employee under the Act. In this connection, the following observations of the Division Bench of the Hon'ble High Court of Calcutta in its judgment in Ukhara Farming Corporation Ltd v. Satu Bala Bagini [1954 (II) LLJ-406] would shed more light: "It is to be noticed that the language of the definition is not that the term 'workman' includes certain classes of persons, but that it means them. In other words, the definition is exhaustive. If so, in order that a person may claim to be a workman within the meaning of the Act, he must, if he is not a railway servant and therefore does not come under clause (i) of the definition section, prove that he comes under one or other of the clauses set out in Schedule II." While dealing with the question whether a watchman working under the Official Liquidator could be a workman in Official Liquidator v. K.S.E Board [1990 (II) LLJ-321], the Hon'ble High Court of Kerala observed as follows, quoting the above judgment and others in this regard: "The words "in any such capacity" as are specified in Schedule II clearly indicate that the list given in Schedule II is exhaustive and not illustrative. If the employment is one that would not come under any of the categories mentioned in Schedule II, the definition of workman cannot be applied to such employment." Therefore, the inescapable conclusion, in the light of the foregoing analysis, is that a Software Engineer is not an employee under the Employees Compensation Act, 1923.
From India, Salem
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Let me first deal with your query whether a Software Engineer would be an 'employee' under the Employees Compensation Act, 1923.
Please kindly refer to the definition given in the Act after the latest amendment in 2009 under section 2(1)(dd). The definition comprising of 3 limbs states who an employee is and distinguishes clearly who is not an employee based on his capacity of employment. As per the first limb in clause (i), a railway servant not permanently employed in any administrative district or sub-divisional office and not employed in any such capacity specified in Schedule II is an 'employee' under the Act. Similarly, as per the second limb in clause (i)(a), a master, seaman, or other member of the crew of a ship registered in India, a captain, or other member of an aircraft registered in India, a person recruited as a driver, helper, mechanic, cleaner, or in any other capacity in connection with a motor vehicle registered in India, and a person recruited for work abroad by a company registered in India are employees under the Act. Finally, the 3rd limb in clause (ii) defines that any person employed in any such capacity as specified in Schedule II other than any person working in the capacity of a member of the Armed Forces of the Union is an 'employee'. From the above, it is discernible that a common thread which runs through the entire definition is "the capacity of employment" specified in Schedule II. Therefore, to be an 'employee' under the Act, a person must be (1) employed by an employer, that is to say there must be a master and servant relationship AND (2) must be one whose employment is not merely of a casual nature; but should have been employed for the purposes of trade or business even if it is of a casual nature. AND (3) must either be a railway servant subject to the qualifications mentioned or must be employed in any one of the capacities specified in Schedule II. AND (4) must not be a member of the Armed Forces. Thus, it is clear that all these 4 conditions must be satisfied before a person can be said to be an employee under the Act. In this connection, the following observations of the Division Bench of the Hon'ble High Court of Calcutta in its judgment in Ukhara Farming Corporation Ltd v. Satu Bala Bagini [1954 (II) LLJ-406] would shed more light: "It is to be noticed that the language of the definition is not that the term 'workman' includes certain classes of persons, but that it means them. In other words, the definition is exhaustive. If so, in order that a person may claim to be a workman within the meaning of the Act, he must, if he is not a railway servant and therefore does not come under clause (i) of the definition section, prove that he comes under one or other of the clauses set out in Schedule II." While dealing with the question whether a watchman working under the Official Liquidator could be a workman in Official Liquidator v. K.S.E Board [1990 (II) LLJ-321], the Hon'ble High Court of Kerala observed as follows, quoting the above judgment and others in this regard: "The words "in any such capacity" as are specified in Schedule II clearly indicate that the list given in Schedule II is exhaustive and not illustrative. If the employment is one that would not come under any of the categories mentioned in Schedule II, the definition of workman cannot be applied to such employment." Therefore, the inescapable conclusion, in the light of the foregoing analysis, is that a Software Engineer is not an employee under the Employees Compensation Act, 1923.
From India, Salem
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