The following the best judgment, decide yourself whether you comes under definition or not basing upon your nature of work:
KDK_1_GUJ_121343
Labor Court – Preliminary objection – Maintainability – Legality of rejection of reference – Workman – Definition – Held, petitioner would not come within purview of term workmen - A. Sundarambal v. Government of Goa, Daman and Dieu (1988) 4 SCC 42, relied upon - Claimant who is doctor and was appointed as full time doctor by respondent hospital - Petitioner was visited with notices and instruction to improve her conduct however there was no improvement - Petitioner was drawing salary in tune of Rs. 4200/- - Petitioner's duty included attending indoor patient prescribing and undertaking their treatment, checking orthopedic patients, attending orthopedic emergency - Claimant admitted that she exercised supervision over subordinate staff and she used to supervise work of matron, nurses etc - Petitioner was engaged and was working as doctor and she was performing duties and functions of supervisory – Petition dismissed - Industrial Disputes Act, 1947 S 2(s) (P 3, 17, 18, 22, 23 and 24)
1_GUJ_121343
The Judgment of the Court was delivered by
K.M. THAKER, J.:— Heard Ms. Himani learned Advocate for Mr. Majmudar, learned Advocate for the petitioner and Mr. Parikh, learned Advocate for the respondent.
2. In present petition the petitioner has prayed, inter alia, that:—
“7(B) Be pleased to issue a writ of certiorari or any other appropriate writ, order or directions, quashing and setting aside the judgment and order dated 28.9.2007 passed by the Hon'ble Labour Court (SD) Navsari in Reference LCN No. 154 of 2005 by which the said reference has been rejected and be pleased to hold that the said judgment and order is not just and proper”
3. The petitioner has challenged award dated 28.9.2007 passed by learned Labour Court at Navsari in Reference (LCN) no. 154 of 2005 whereby learned Labour Court accepted the opponent's preliminary objection against maintainability of the reference and rejected the reference at the behest of the claimant who is a doctor and was appointed as full time doctor by the respondent hospital. The learned Labour Court has held that the reference is not maintainable because “doctor” would not come within purview of definition of the term “workmen” as defined under Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as the “Act”).
4. The petitioner is aggrieved by the said decision hence, present petition.
5. So far as factual background is concerned the petitioner, original claimant has averred and stated that:—
3.1 That the petitioner is having the qualification of BAMS. That the petitioner was given appointment as R.M.O. in the respondent Hospital on 6.6.1997. The respondent Hospital is run, managed and administered by RF Daboo Charitable Trust. That the function of the petitioner was to check patients, prepare bills and to work in accordance with the instructions of doctors. That the function of the petitioner was not of supervisory nature. That the petitioner was receiving remuneration of Rs. 4200/- per month. That the petitioner was serving sincerely, diligently and honestly. That the entire tenure of the petitioner has remained dot-less.
3.2 It is most respectfully submitted that one Dr. Purohit used to harass the petitioner as he used to do private practice and, therefore, the petitioner had made a representation against the said Dr. Kirtibhai Purohit and in turn, the petitioner was insulted by the said Dr. Purohit. However, Dr. Purohit was only issued notice by the respondent Institution while the petitioner was terminated from service from 10.2.2004 without following due process of law and without following the principles of natural justice. That without issuing any prior notice, without holding any inquiry, in absolutely illegal and arbitrary manner, the petitioner was terminated with effect from 10.2.2004. It is respectfully submitted that since the respondent had terminated the services of the petitioner without following the provisions of Industrial Disputes Act, 1947, the petitioner had raised a dispute before the Assistant Commissioner of Labour, Navsari. That ultimately the Assistant Commissioner of Labour, Navsari had referred the matter for adjudication to the Labour Court, Navsari.
3.3 It is most respectfully submitted that thereafter the dispute was given Reference No. LCN 154 of 2005 by the Labour Court, Navsari. It was the case of the petitioner in her Statement of Claim that she was terminated by the respondent in absolutely illegal and arbitrary manner without following due process of law and more particularly, without following the provisions of Industrial Disputes Act…….. It was prayed by the petitioner in her Statement of Claim that the illegal and arbitrary action of the respondent in terminating her services with effect from 10.2.2004 be declared illegal and arbitrary and she may be ordered to be reinstated in service with all consequential benefits including continuity of service.
3.4 It is most respectfully submitted that the function of the petitioner was to check the patients, prepare bills and to work as per the instructions of doctors. That in the aforesaid reference, the respondent had filed its reply and contested the reference…… That the petitioner had also filed his written submissions in the said reference.
3.5 It is most respectfully submitted that ultimately, after hearing the parties, the Hon'ble Labour Court (SD) Navsari was pleased to pass judgment and order dated 28.9.2007 by which the reference has been rejected on the ground that the petitioner does not fall within the definition of ‘workman’ under Section 2(s) of the Industrial Disputes Act.”
6. Thus, by petitioner's admission he was appointed as resident medical officer with the respondent hospital in June 1997. She continued as such in the service until 10.2.2004 then her service came to be discontinued.
7. The petitioner challenged said action of the respondent by raising industrial dispute which was referred for adjudication to learned Labour Court at Navsari. Learned Labour Court registered the dispute as Reference No. 154 of 2005.
8. The petitioner filed statement of claim alleging inter alia, that her service was illegally and arbitrarily terminated without following procedure prescribed by law and in violation of principles of natural justice. She alleged that any notice was not issued to her before terminating her service and any inquiry was also not conducted and she was discontinued from service in violation of principles of natural justice. She also alleged victimization as well as breach of provisions of the Act.
9. With such allegations the petitioner demanded reinstatement in service with consequential benefits.
10. The reference was opposed by the respondent hospital. The respondent hospital claimed that though the claimant was engaged as medical officer her behavior and conduct towards patients was rude and several complaints were received against her. The respondent hospital also alleged that in June 1999 the claimant had resorted to strike for 3 days. It was alleged that subsequently i.e. in 2004 she was visited with a notice with regard to her behavior and conduct and subsequently her service came to be terminated w.e.f. 10.2.2004. In its written statement the hospital raised preliminary objection against maintainability of the reference on the ground that the claimant was appointed and was working as doctor and that therefore she would not come within purview of definition of term “workmen” defined under Section 2(s) of the Act and consequently reference at her behest was not maintainable.
11. In the written statement respondent hospital described nature of duty performed by the petitioner and on that basis also it was claimed that the petitioner claimant would not come within purview of the term workman, defined under Section 2(s) of the Act. Learned Labour Court adjudicated the reference.
12. During the proceedings both sides led evidence, oral and documentary. After the stage of evidence was concluded learned Labour Court heard submissions by learned Advocate for the petitioner claimant and the respondent hospital. Thereafter learned Labour Court passed award which is impugned in present petition. Learned Labour Court after considering evidence available on record reached to the conclusion that the claimant cannot be termed as workmen. Therefore, learned Labour Court rejected the reference.
13. Aggrieved by the said decision by learned Labour Court petitioner has filed present petition.
14. At the time of hearing of this petition learned Advocate for the claimant - petitioner reiterated the allegations in her statement of claim and she submitted that the] learned Labour Court failed to appreciate that her service was terminated by way of victimization and in breach of provisions under the Act.
15. Learned Advocate for the claimant - petitioner also submitted that the claimant's service was terminated in breach of principles of natural justice and statutory provision. She submitted that since the petitioner's service was terminated without following procedure prescribed by law and in violation of principles of natural justice the petitioner should be reinstated with consequential benefits.
16. Mr. Parikh, learned Advocate for the respondent opposed the petition. He reiterated preliminary objection against order of reference and submitted that the petitioner - claimant being non-workman could not be initiated proceedings under the Provisions of the Act and could not have approached learned Labour Court. He submitted that the reference proceedings are not maintainable and have been rightly rejected by the learned Labour Court.
17. Learned Advocate for the respondent relied on the incident of 18.6.1999 as well as notice dated 6.2.2004 and submitted that even otherwise conduct of the petitioner was unbecoming of the doctor. Learned Advocate for the respondent also submitted that the petitioner was visited with notices and instruction to improve her conduct however there was no improvement and therefore ultimately the respondent hospital was constrained to relieve the petitioner.
18. It is not in dispute that at the relevant time the petitioner was drawing salary in the tune of Rs. 4200/-. It is also not in dispute that the job description of the petitioner included attending the patients and prescribing/undertaking their treatment and the primary object of engaging petitioner was for treatment of the patients. According to the respondent the petitioner's duty included attending indoor patient prescribing and undertaking their treatment, checking orthopedic patients, attending orthopedic emergency.
19. In this background learned Advocate for the respondent relied on the decision in case of E.S.I.C. Medical Officers’ Association v. E.S.I.C.2013 (5) LLN 420 SC wherein Hon'ble Apex Court observed, inter alia, that:—
“8. We notice, the medical officers appointed in the various dispensaries/hospitals are entrusted with the task of examining and diagnosing patients and prescribing medicines to them and they are basically and mainly engaged in professional and intellectual activities to treat patients. This Court in Heavy Engineering Corporation Ltd. v. Presiding Officer, Labour Court [(1996) 11 SCC 236] examined the question as to whether General Duty Medical Officers, Grade II were performing supervisory functions. In that case, the medical officer was appointed as General Duty Medical Officer, Grade II by the Corporation and was posted in the First-Aid post for providing emergency medical services in case of accidents, etc. during the shifts. On termination of the services, an industrial dispute was raised by the medical officer that his services have been terminated in breach of Section 25-F of the Act. The Court observed that the duties of a doctor required that he performs supervisory functions in addition to treating the patients would mean that he had been employed in a supervisory capacity!. Paragraph 12 of the judgment has some relevance and is extracted hereinbelow:—
“12. The aforesaid facts, in our opinion, clearly go to show that respondent 2 could not be regarded as a workman under Section 2(s) of the Act as he was working in a supervisory capacity. While it is no doubt true that Respondent 2, along with the other doctors, used to work in shifts nevertheless during the time when he was in the shift he was the sole person in-charge of the first-aid post. He had, under him male nurse, nursing attendant, sweeper and ambulance driver who would naturally be taking directions and orders from the in-charge of the first-aid post. These persons obviously could not act on their own and had to function in the manner as directed by respondent 2, whenever he was on duty. They were, in other words, under the control and supervision of the respondent. When a doctor, like the respondent, discharges his duties of attending to the patients and, in addition thereto supervises the work of the persons subordinate to him, the only possible conclusion which can be arrived at is that the respondent cannot be held to be regarded as a workman under Section 2(s) of the Act.”
10. We may, in this respect, also refer to an earlier judgment of this Court in A. Sundarambal v. Govt. of Goa, Daman and Diu [(1988) 4 SCC 42: ((1988) 4 SCC 42 : AIR 1988 SC 1700)], wherein this Court held that a teacher employed by an educational institution, who imparts education (whether at primary, secondary, graduate or post-graduate level) cannot be called as a “workman” since imparting education which is the main function of a teacher, is in the nature of a noble mission or a noble vocation, which cannot be considered as skilled or unskilled manual work or supervisory, technical or clerical work.
11. We are of the view that a medical professional treating patients and diagnosing diseases cannot be held to be a “workmen” within the meaning of Section 2(s) of the ID Act. Doctors’ profession is a noble profession and is mainly dedicated to serve the society, which demands professionalism and accountability. Distinction between occupation and profession is of paramount importance. An occupation is a principal activity related to job, work or calling that earns regular wages for a person and a profession, on the other hand, requires extensive training, study and mastery of the subject, whether it is teaching students, providing legal advice or treating patients or diagnosing diseases. Persons performing such functions cannot be seen as a workman within the meaning of Section 2(s) of the ID Act. We are of the view that the principle laid down by this Court in A. Sundarambal's case (supra) and in Muir Mills's case (supra) squarely applies to such professionals. That being the factual and legal position, we find no reasons to interfere with the judgment of the High Court. The SLP lacks merit and is dismissed accordingly.
20. At this state it is also relevant to take into account the observation by Hon'ble Apex Court in case of Burmah Shell Oil Storage and Distributing Co. of India Ltd. v. Burmah Shell Management Staff Asscn. [(1970) 3 SCC 378 : AIR 1971 SC 922] wherein Apex Court emphasized that:—
“5. We are unable to accept, this submission. In the case of May and Baker (India) Ltd. v. Their Workmen, (1961) 2 Lab LJ 94 = (AIR 1967 SC 678) this Court had to consider the correctness of a decision of a Tribunal which had held that one, Mukerjee, an employee in an industry, was a workman under the Act because he was not employed in a supervisory capacity. The Court held:—
“The Tribunal seems to have been led away by the fact that Mukerjee had no supervisory duties and had to work under the directions of his superior officers. That, however, would not necessarily mean that Mukerjee's duties were mainly manual or clerical. From what the tribunal itself has found it is clear that Mukerjee's duties were mainly neither clerical nor manual. Therefore, as Mukerjee was not a workman, his case would not be covered by the Industrial Disputes Act and the tribunal would have no jurisdiction to order his reinstatement.”
In that case, the Court thus held Mukerjee not to be a workman on the ground that his work was neither clerical nor manual which was the nature of the work envisage in the definition to make an employee, a workman. It is true that decision was given on the definition of “workman” as it stood before the Amendment of 1956 where the words “supervisor by” and “technical” did not occur in the definition. Mr. Chari's submission is that the amendments is 1956 introduced the words “supervisory” and “technical” with the object of making the definition all-comprehensive” but, on the face of it, it cannot be so. If every employee of an industry was to be a workman except those mentioned in the four exceptions, these four classifications need not have been mentioned in the definition and a workman could have been defined as a person employed in an industry except in cases where he was covered by one of the exceptions. The specification of the four types of work obviously is intended to lay down that an employee is to become a workman only if he is employed to do work of one of those types, while there may be employees who, not doing any such work, would be out of the scope of the word “workman” having to resort to the exceptions. An example, which appears to be very clear, will be that of a person employed in canvassing sales for an industry. He may be required to do any paper work, nor may he required to have any technical knowledge. He may be doing any skilled or unskilled manual work. He would still be an employee of the industry and, obviously; such an employee would not be a workman, because the work, for which he emits played, is not covered by the four types mentioned in the definition and not because he would be taken out of the, definition under one of the exceptions.
6. The next aspect that has to be taken notice of is that, in-practice, quite a large number of employees are employed in industries to do work of more than one of the kinds mention-ed in the definition. In cases where an employee is employed to 766 do purely skilled or unskilled manual, work, or supervisory work, or technical work, or clerical work, there would be no difficulty in holding him to be a workman under the appropriate classification. Frequently, however, an employee is required to do more than one kind of work. He may be doing manual work as well as supervisory work, or he may be doing clerical work as well as supervisory work. He may be doing technical work as well as clerical work. He may be doing technical work a; well as supervisory work. In such cases, it would be necessary to determine under which classification he will fell for the purpose of finding out whether he does or does not go out of the definition of “workman” under the exceptions. The principle is now well-settled that, for this purpose, a workman must be held to be employed to do that work which is the main work he is required to do, even though he may be incidentally doing other type of work. In the case of May & Baker (India) Ltd., (1), the Court, in the quotation cited above, noticed the fact that Mukerjee's duties were mainly neither clerical nor manual. The signicance attaches to the word “mainly”, because Mukerjee's duties did involve some clerical and manual work; yet, he was held not to be a workman.”
21. When the facts of this case are examined in light of above quoted observations, it emerges that the claimant used to perform duties of diagnosing patients and prescribing treatment, injecting medicine, supervising matron, nurses, peon, wardboy and other staff.
22. At this stage it would be appropriate to take into account the observations in the the decision in case of Sonepat Cooperative Sugar Mills Ltd. v. Ajit Singh [(2005) 3 SCC 232] wherein Hon'ble Apex Court observed, inter alia, that:—
“In Miss. A. Sundarambal v. Government of Goa, Daman and Dieu [(1988) 4 SCC 42], teachers serving in an educational institution being not found to be performing any duty within the aforementioned category has been held not to be workmen. Similarly, an advertising manager, a chemist employed in a sugar mill, gate sergeant in charge of watch and ward staff in a tannery, a welfare officer in a commercial educational institution have also not been held to be workmen. The Respondent had not been performing any stereotype job. His job involved creativity. He not only used to render legal opinions on a subject but also used to draft pleadings on behalf of the Appellant as also represent it before various courts/authorities. He would also discharge a quasi-judicial functions as an Enquiry Officer in departmental enquiries against the workmen. Such a job, in our considered opinion, would not make him a workman.”
23. On consideration of the facts of present case and observations in above mentioned decisions and having regard to the fact that during her deposition the claimant admitted that she exercised supervision over subordinate staff and she used to supervise work of matron, nurses etc., there is no justification to interfere with the findings of fact recorded by learned Labour Court.
24. Learned Labour Court has taken into account her evidence and more particularly the description of the duty and function performed by the petitioner as described by her during her deposition and on that basis learned Labour Court reached to the conclusion that the petitioner was engaged and was working as doctor and she was performing duties and functions of supervisory nature drawing salary of Rs. 4200/- and that therefore she would not come within purview of term workmen and after reaching such conclusion learned Labour Court rejected the reference.
25. At the time of hearing of this petition learned Advocate for the petitioner failed to point out any material from the record which would convince this court to take view different from learned Labour Court and to reach to different conclusion.
26. From the material available on record and in light of the evidence more particularly deposition of the petitioner which is relied on by the learned Labour Court it cannot be said that the findings recorded by the learned Labour Court are perverse.
27. There is no justification to interfere with the findings of fact recorded by the learned Labour Court and/or with the final conclusion recorded by learned Labour Court. Any case contrary to the findings of learned Labour Court is not made out. Therefore, the petition does not deserve to be entertained and consequently the petition is rejected. Rule is discharged.
28. Orders accordingly.
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