Should teachers be included in the definition of ‘workman’ under the Industrial Disputes Act?

If teachers are classified as 'workmen', they would fall under the ambit of the Industrial Disputes Act, and would benefit from the dispute resolution mechanism therein.

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TEACHERS should be considered within the ambit of the definition of 'workman' as provided by Section 2(s) of the Industrial Disputes Act, 1947. My argument is made on three prongs.

The first prong analyses the classification of educational institutions as 'industry', and explores the argument of keeping professions out of the ambit of industry and the triple test as given by the Supreme Court in Bangalore Water Supply & Sewerage Board versus A. Rajappa (1978). The second prong analyses why teachers have been kept out of the definition of 'workman' and puts forward the argument that teaching can be considered work of 'technical' nature, and hence, teachers can fall within the ambit of the definition of 'workman'. The third prong focuses on the need to include teachers within the ambit of 'workmen'.

Why are educational institutions an 'industry'?

Whether educational institutions are to be considered an industry or not has been considered by the judiciary in the light of education being a 'profession'. Professions have been excluded in a blanket manner from the ambit of 'industry' by the Supreme Court in multiple verdicts before the judgment in Bangalore Water Supply came about.

Further, the question of educational institutions being 'industry' was elaborately discussed by the Supreme Court in the case of University of Delhi versus Ram Nath (1963) to hold that educational institutions do not fall within the ambit of industry. The rationale of the said judgment was countered by Bangalore Water Supply.

The rationale of the relevant judgments to exclude educational institutes from the ambit of 'industry' is analysed in light of the said case.

Does 'profession' come under the ambit of 'industry'?

In Secretary, Madras Gymkhana Club Employees Union versus Management of the Gymkhana Club (1967), the Supreme Court put forward the following two propositions to hold that a 'profession' would not be considered an 'industry':

1. Professions are not based on the cooperation of employer and employee.
2. Material services are not produced by professions.

In the context of employer–employee cooperation, the court gives an example of a solicitor whose earnings depend on their 'own efforts', and the fact that they might take help from other employees does not change the nature of their work. It appears that the court not only focuses on the existence of cooperation between employer and employee, but the extent of cooperation as well.

Now the question arises as to what is meant by 'material services'. 'Material services' were defined by the Supreme Court in Safdarjung Hospital versus Kuldip Singh Sethi (1970). The court identifies the following characteristics of material services:

1. Focus is not on an individual and does not substantially depend on the professional knowledge or skill of an individual.
2. Cooperation between employer and employee is necessary.
3. Service is provided to the community.
4. The service is commercially valuable.

However, these arguments were addressed in Bangalore Water Supply. Justice V. Krishna Iyer gave the example of the importance of a typist's job for an engineer seeking a competitive contract which demonstrates that there is an element of cooperation in professions too, and the theory of 'direct cooperation' does not stand. Further, he gave the example of 'highly skilled technicians' in traditional factories whose work may be much valued, which shows that 'material services' provided by regular industries can be substantially dependent on the knowledge or skill of an individual.

It was laid down that the success of a professional venture cannot be a result of the professional alone but is a result of the cooperation present within the unit. The Safdarjung Hospital verdict was referred to, and it was laid down that schools provide community service and can be considered an industry. Moreover, the commercial element cannot mean profit-orientation, because profits are irrelevant for an establishment to be considered an industry.

In cases like Muir Mills Unit of NTC (U.P.) Ltd. versus Swayam Prakash Srivastava (2006) and ESI Corpn. Medical Officer's Assn. versus ESI Corpn. (2013), the Supreme Court distinguished between 'occupation' and 'profession' (professions require 'extensive training' or 'specialised knowledge') and held that professionals could not be considered workmen. However, no reasoning was given for the same, unlike in the pre-Bangalore Water Supply cases.

Triple test

The Triple Test for identifying an industry was laid down in Bangalore Water Supply. As per the test, an industry has the following three characteristics:

1. It should be a systematic activity.
2. There should be cooperation between employer and employee.
3. Goods or services must be produced.

As per this test, a college or a university would be considered an industry. Even though it was held that cooperation between employer and employees existed in a university, the court refused to consider it industry in University of Delhi because it would be "somewhat strange" to bring education under the ambit of industry, it stated. However, no reason was given for this assertion.

In the aforesaid case, the court said that on applying the 'predominant character test', it is seen that only a small proportion of individuals working in a university can qualify as 'workmen'; hence, the University would not be considered an industry. In Bangalore Water Supply, it was clarified that the predominant character test relates to the nature of the activity and not the numerical strength of employees, and a university would indeed be considered an industry.

Also read: In pursuit of labour market dreams: Need for new and pragmatic thinking

Teachers: Are they 'workmen' under the Industrial Disputes Act?

Even though Bangalore Water Supply laid down that a university can be considered an industry, it was silent on whether teachers can be considered workmen or not. This question was considered by the Supreme Court in the case of A. Sundarambal versus Govt. of Goa, Daman and Diu (1988). The court held that teachers would not be considered workmen. The rationale of the court was two-tiered:

1. Imparting education is a noble vocation
2. Consequently, imparting education is not skilled or unskilled manual work, supervisory work, technical work or clerical work.

In A. Sundarambal, the court said that imparting education is a "noble vocation", a teacher "moulds the character" of the students, and it does not qualify as manual work (skilled or unskilled), supervisory work, technical work, or clerical work. However, the court does not explain how a noble character precludes a vocation from falling within any of the categories mentioned in Section 2(s) of the Act.

The noble character of imparting education should not be a reason to exclude teachers from the definition of 'workman' because teaching can be considered as work of technical nature.

Can teaching be considered work of a 'technical' nature?

As discussed above, even though courts have excluded teachers from the definition of 'workmen' by asserting that the nature of the vocation is such that it does not qualify as manual work (skilled or unskilled), supervisory work, technical work, or clerical work, but they did not explain what each of these terms would entail. They also did not explain why being of noble character and being categorised into any of the terms mentioned in Section 2(s) of the Act has to be mutually exclusive.

It is obvious that teaching cannot be classified as manual work. Any clerical or supervisory work assigned to teachers would be incidental in nature because their principal work is teaching. But what about teaching being classified as work of technical nature?

The case of Bombay Dyeing and Manufacturing Company Limited versus R.A. Bidoo (1989) explained what 'technical work' would entail. The following are the elements of technical work:

1. Expertise
2. Special knowledge.
3. Training or experience.

Teachers undoubtedly have to have special knowledge in the subjects which they are supposed to teach. Moreover, teachers have to undergo training to gain expertise in the pedagogy adopted by them. It can be said that there is a possibility to categorise teaching as work of technical nature to bring teachers under the ambit of 'workmen'.

Also read: Politics of welfare, or lack thereof, of labour: Part I

Why should teachers be included in the definition of 'workmen'?

In cases like T.M.A. Pai Foundation versus State of Karnataka (2002) and A. Sundarambal, the court emphasised the need for establishing a dispute resolution mechanism to settle disputes involving teachers. The Educational Tribunals Bill was introduced in the Lok Sabha in 2010 and it aimed to establish such a tribunal. However, one of the major criticisms of the bill was that it did not rely on any empirical data, which makes the viability of the establishment of the Educational Tribunals suspect.

The object of the Industrial Disputes Act is to provide social justice to both employer and employee, maintain peace and harmony, pre-empt industrial tensions and provide for a dispute resolution mechanism within the industrial setup. If teachers are classified as 'workmen', they would fall under the ambit of the act, and would benefit from the dispute resolution mechanism therein. Moreover, it would not require the establishment of an altogether different dispute resolution mechanism.

Conclusion

Although Bangalore Water Supply adequately addressed why universities and other educational institutions can be considered 'industry', it remained silent on whether teachers would be considered 'workmen'. A. Sundarambal held that teachers are not to be considered workmen as they don't fit into the categories of work mentioned in Section 2(s) of the Act (manual, technical, supervisory, clerical) because of the noble character of teaching.

The existence of disputes between the management of educational institutions and teachers has been acknowledged by the Supreme Court. Teaching can very well be classified as work of technical nature owing to the fact that teachers need to gain expertise in their discipline. Hence, teachers must be classified as 'workmen' as defined by Section 2(s) of the Act, which would enable them to benefit from the dispute resolution mechanism provided in the act.