The government of Tamil Nadu in India has recently issued a circular clarifying that employees of the IT Sector are covered under the ID Act, 1947 and have the right to form trade unions. This development has caused consternation in industry circles which believed that the IT Sector was outside the ambit of this Act. Obviously, for some reason, the IT Sector has been misinformed of the correct position under the law.
In the current state of the controversy it is necessary to illumine the rights of the employees and correct legal position. Except for supervisory or managerial level employees, all other employees are considered as "workmen" under the ID Act if they perform any manual, skilled, unskilled, technical, operational and clerical work. Even as recently as 2016 the Supreme Court in Raj Kumar Vs Director of Education re-iterated that its leading judgement in H.R Adyanthaya Vs. Sandoz (India) Ltd. in 1994 is decisive on the issue of who is a "workman", and succinctly re-stated the ratio that "a person to be workman under ID Act must be employed to do the work of any of the categories, viz., manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not enough that he is not covered by any of the four exceptions to the definition. We reiterate the said interpretation."
Clearly, no detailed argument is necessary to establish the proposition that an IT Professional performs a skilled function and is a workman. Only IT employees employed in supervisory or managerial roles would be exempt from the application of this Act. No doubt there are decisions of the Supreme Court which were decided on the unique facts of the case and have caused some confusion on the issue, hence the need to re-state the Court's latest reiteration of the law to dispel any doubt that the IT Sector enjoys no exemption from the law. Therefore, to avoid litigation and much acrimony with employees, lay-offs, retrenchments and terminations of employees must be in compliance with the requirements of the ID Act.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.