Workman


IN A RECRUITMENT FIRM THERE THOSE WORKS AS A RUCRUITER CAN THEY ELIGABLE AS A WORKMAN AND CAN THEY MAINTAIN CASE AS INDUSTRIL DISPUTE  ACCORDING TO SECTION 2 K OF INDUSTRIAL DISPUTE ACT.?

 
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Lawyer

My opinion is NO. Recruiters are working so as to take independent  decision using their skills. The work does not fall in any of the categories mentioned in section 2(s).  

 
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THANK U SIR FOR YOUR VALUABLE OPININ , SIR AS DESCRIBED IN SECTION 2S ITS DESCRIBE WHAT IS WORKMAN, , BUT SIR WE HAV SEEN   IN H.R.Adyanthaya vs Sandoz (India) Ltd on 11 August, 1994 WHERE THE SALES PERSON WAS DECLARED AS A WORKMAN AND THERE CASE WAS MAINTAINBLE .

 

SO  HERE I JUST WANT TO KNOW IF THE SALES PERSON CAN BE CALLED A WORMAN THEN WHY NOT A RECRUITER  ? 

 
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Lawyer

There is separate Act for Sales Promotion Employees.   

 
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yes sir there is a seperate act for sales promtion act, sir if u not mind can u look the case that i am sending as attachment...

THANKS

PRALAY MUKHOPADHYAY



Attached File : 162221956 case.docx downloaded 63 times
 
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Lawyer

I am aware of the judgment. Medical Represemtatives as per judgment did not fall into the category of workman. Court also considered whether the work performed by MR can be classified in to 'operational' which was added to he definition in the amending Act and the answer was against the MR.

In a judgment the Court has held that a painter is not a workman as he is using imagination and the work does not fall into any  category of section 2(s) . Similarly teachers were held not to be workmen. Neverthe less your duties as a recruiter if can be interpretted as a work manual, techinical, skilled, unskilled, operational  etc then you are a workman.    

 
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FIN

Learned Mr. Thukral has given valuable advice. Kindly follow it.

This is a very interesting thread. Kindly keep on updating and thus enriching the forum. It shall help many who may be in a similar situation.

Recruiter may show his appointment letter, service rule book, standing orders {if any}, HR policy of the company, tasks assigned even if by email, KRA’s, formats being filled by you and submitted, hierarchy in the company, reporting pattern to be followed by employee, system involved in the process of recruitment to be followed by recruiter and clear role of employee on the record and give inputs in person to the labor consultant /service lawyer.

Was the job of recruiter limited to telecalling only or arranging the docs of the candidate during the initial steps e.g. GD etc as per checklist of the employee’s/client company or filling up some formats as per the feedback by the candidate during initial meeting, and then refer the candidate to seniors of employee’s company/client company for final leg of the interview etc……

The staffing company must be having all docs signed by the employee hence employee should mention the facts to his lawyer.

In good/reputed and registered staffing companies the role of each one involved in the system is well defined.

The designation given to the recruiter may be a glorified designation and his exact nature of duties may help him to be within the umbrella of protection available top a workman.

The junior managers and executives may be drawing a salary which may be above the limit as expressed in the enactment however they may be performing duties which may fall within the category of workman.

“If the nature of duties discharged by the employee is multifarious then the further question that may arise for consideration is which of them is his principal duty and which are the ancillary duties performed.”

Managers & executives

Managers and executives are employees with executive or supervisory functions. These functions include the authority to influence or make decision on issues such as recruitment, discipline, termination of employment, assessment of performance and reward, or involvement in the formulation of strategies and policies of the enterprise, or the management and running of the business.

They also include professionals with tertiary education and specialized knowledge/skills and whose employment terms are comparable to those of managers and executives.

 

 

Valuable advice of learned experts/members is sought in this very interesting thread.

 

 

 

The Bombay HC observed in case of Sr. Commander {Pilot} Cedric D’Silva:

 

“In such a case mere descripttion of an employee is not of much importance and certainly, not conclusive whether the employee is a workman within the meaning of Section 2(5) of the I.D. Act. Normally in such a case a reference ought to be made when such a question arises for consideration.”

“The definition of workman given in Section 2(s) of the Industrial Disputes Act, 1947 brings within its ambit "any person employed in any industry to do any technical work for hire or reward: irrespective of the salary drawn by him. This is in contradiction with persons employed in a supervisory capacity who fall within the definition of a "workman" only when they draw wages not exceeding Rs. 500/-per mensem.”

 

 

“If the nature of duties discharged by the employee is multifarious then the further question that may arise for consideration is which of them is his principal duty and which are the ancillary duties performed.”

 

 

“On behalf of the management their learned Counsel sought to draw our attention to the various material including Agreements entered into with their pilots to contend that Senior Commanders are not workmen, but forming part of their management. In the agreement of 31st August, 2000 no doubt there was a clause which set out that the Pilots are an essential part of the Management team as the Pilots perform front-line Management functions while on board the aircraft and are responsible for maintenance of discipline and control of the crew as well as passengers”

 
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