Issues related to definition of workman
skg
(Querist) 26 October 2009
This query is : Resolved
Dear legal experts
Please read the following facts related to service matter and solve the queries numbered from 1 to 5.
An employee joins a company as computer operater cum programmer with a total salary of Rs. 7000/- per month and was posted
to income tax department of company where during his attachment with the tax department he learn TDS work from his senior
colleagues who were all Chartered accountant.
With his programming knowledge and learning gained from his CA colleagues he prepared TDS software in which he himself feed
data (investment details) received from taxable employees and the software generates various reports like monthly tds list
that was sent to payroll department for preparation of salary, TDS estimates which he gives to employees and e-returns that
are filed by him to Income tax department. His knowledge in other areas of taxation was nil.At the time of efiling of income
tax returns of company he being a computer qualified person, assists CA's by feeding data provided by them in ITR forms in
excel format which he downloaded from Income Tax department site and then upload these forms on Income Tax department sites.
In Eight years because of his hardwork and dedication he rises from non executive staff to executive staff which is also
known as management cadre staff that has grades M1 to M10.He become Sr. Execuitive and was put in M2 grade and his total
salary reaches to 25000/- per month.
Because of MNC enteries his company's business declined and the company was not able to give susbtantial increments to his
CA colleagues so some of them left the company for better highly paid jobs. Since during the eight years this employee
become perfect in TDS work the company did not recruit any more CA to look after TDS work and in this way he started doing
the TDS work of company independently without the help of any subordinate and started advising those employees who approach
him on tax minimizing by investing in various government schemes.
Because of enteries of MNC and declining business , in the next two year the company become sick and got merged in other
profit making company which was also doing the same business but their Tax department was operated from other location and
has a full fledged employee strength.So after passing of one more year the management of transferee company told the
employee to put his resignation as he was surplus to them now which he refused by requesting them to adjust him to some
other department where his computer knowledge can be utilised. They didn't agreed to his request and keep on pressurizing
him to submit his resignation and never allowed him to attend the office from a specific date which later on become his
termination date as per the company.When the employee thru a written enquiry asked reasons why he is not allowed to resume
his service the company send letter of his termination stating that you were informed well in advance in presence of two
witnessess that your service has been terminated on account of surplusage and reorganisation of tax department and you were
advised on that day to collect your full and final settlement containing 1 month basic pay in lieu of notice and as per
terms of contract.
When he asked for retrenchment compensation they give the reason that your nature of duties includes advising
employees,supervising, controlling and independent decisions in respect of all taxation matters and of subordinate employees
and your gross package being 25000/- per month hence you were performing Managerial functions in taxation department as a
Senior executive and hence you are not a workman who is only entitled to such compensation under ID Act.
Now my questions to legal experts are :
1) How can an employee whose major job was only
a)calculation of income tax of employees of various department and helping/advising those employees to minimize their tax
(by investing in various tax saving schemes) who visit him when they came to know thru their salary slip of each month given
by payroll department where he sends the TDS list of each month b) computer operation and programming c) keeping hardcopy of
TDS record in files be said to doing managerial function. In fact, Is not this a clerical job of data feeding in computer
machine,computation,keeping records in files like that of an accountant?
2) How he is taking decisions of all taxation matter when he is only having knowledge of TDS and operating TDS software on
computer and other taxation issues are handled by retainers/account personnels/consultants recruited by company when the
CA's left in earlier years
3) In which manner he is controlling or supervising other employees who even do not belong to his department of taxation but
are from different departments?
4) Can he file a labour case as a workman for illegal termination and reinstatement of service with full back wages under ID
Act or he have to file case for retrenchment compensation as workman?
5) Whether Owing to lengthy and delayed procedures of Indian judicial system where 8 to 10 years passess in a case,he should
bend and take whatever the company is giving?
Please reply suggesting important case laws (if any exists) in favour of employees under this type of situations.
Rgds
skg
Raj Kumar Makkad
(Expert) 26 October 2009
You have a very long quarry. Better you engage a local lawyer and take his valuable suggestions and act accordigly.
H. S. Thukral
(Expert) 26 October 2009
The question whether an employee can be termed as a workman is of fact and law. The nature of duties are relavant in such determination and pay/salary has no consideration. Even in determining the status it is to be seen what were the main duties of the employee. I cant straightway say whether the duties you have mentioned bring you in category of workman or not but the earlier decision of courts are that a Computer programmer is not a workman. An accountant is a workman.
My advise to you is that you file a claim in labour court. In many states you can approach the Industrial Court directly in case of termination without first approaching the Labour Authorities. It will not cost you much. Try to grip knowledge of the Industrial Dispute Act on the subject i.e. section 2(s). Donot allow any advocate to appear from other side by moving an application under section 36 of the ID Act. That will give you advantage. I am sure, from the description of your query, containing phrases and words ( retrenchment/supervision) that you have already acquired some knowledge. I have seen some union representatives having little educational qualification doing well before the industrial courts. Best Wishes
Sachin Bhatia
(Expert) 26 October 2009
Better to engage a local lawyer, beacuse sill many things to know before giving a proper reply.
Arul Kumar
(Expert) 26 October 2009
Seeing the complexity of your case, my suggestion is to approach the Labour Court definitely the matter can be settled justly.
