Delhi High Court
Managment Of Multan Sewa Samiti ... vs P.O. Labour Court-Ii & Others on 24 February, 2012
Author: Sanjiv Khanna
Bench: Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITON (CIVIL) NO. 1713/1996
Reserved on: 18th November, 2011
% Date of Decision: 24 February, 2012
MANAGMENT OF MULTAN SEWA SAMITI CHARITABLE
EYE HOSPITAL ...Petitioner
Through Mr. Vinay Sabharwal &
Ms. Neha Sabharwal, Advocats.
VERSUS
P.O. LABOUR COURT-II & OTHERS .....Respondents
Through Ms. Bhanita Patowary,
Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
SANJIV KHANNA, J.:
Sri Multan Sewa Samiti, a charitable eye hospital, has filed the present writ petition under Articles 226 and 227 of the Constitution of India impugning the award dated 3rd November, 1995 passed by the Labour Court in ID No. 112/1991. The aforesaid proceedings were initiated at the behest of Dr. A.K. Gupta, the respondent No. 3 herein.
2. The petitioner herein is a society and has set up and is running a hospital in Farash Khana, Old Delhi. It is the contention of the petitioner that they were/are a charitable society and were/are dependent upon monetary contributions received from members and non-member volunteers. They W.P.(C) NO. 1713/1996 Page 1 have set up a small hospital in an economically backward and congested area in the walled city.
3. The respondent No. 3 is a doctor and was appointed as a Resident Surgeon on 1st April, 1980. It is claimed that he was promoted as Junior Surgeon in 1981 and was performing operations in the hospital and eye camps organized by the management. His services were terminated on 30th May, 1990. The allegation of the respondent No. 3 is that the Medical Superintendent Dr. B.N. Khanna wanted his son Dr. R. Khanna to be appointed as a Medical Superintendent superseding the respondent No. 3. Thus, the services of respondent No. 3 were terminated.
4. Before the Labour Court, it was alleged that the petitioner had flouted the provisions of the Industrial Disputes Act, 1947 (Act, for short) as retrenchment compensation, notice period pay, etc., was not paid. It was wrongly stated that the financial grant had been withheld and, therefore, services of the respondent No. 3 were being terminated. It was also alleged that his juniors like Dr. R. Khanna, Dr. Bakshi etc. continued to remain in employment.
5. By the impugned award, the Labour Court has held that the respondent was a workman as per Section 2(s) of the Act. It W.P.(C) NO. 1713/1996 Page 2 has been held that there was violation of Section 25F as retrenchment compensation and notice pay was not tendered with the notice served upon the workman terminating his services. The plea of the petitioner that the respondent No. 3 had failed to collect notice pay and retrenchment compensation as per notice dated 30th May, 1990 was rejected. It has been accordingly held that the services of respondent No. 3 were illegally and unjustifiably terminated. The respondent No. 3, is entitled to reinstatement in service with continuity and full back wages.
6. On the filing of the present writ petition, vide order dated 1st May, 1996 operation of the impugned award was stayed and the stay has continued. The respondent No. 3 had filed an application under Section 17B of the Act but the same was dismissed as withdrawn vide order dated 19th January, 1998. Later on another application under Section 17B of the Act being CM No. 9068/1998 was filed but the same it is apparent was not pressed and Rule was issued on 15th February, 2000. The matter was referred to Continuous Lok Adalat to explore possibility of settlement but without success and positive results. Before me also, the parties had made an attempt to settle the matter but it did not fructify.
W.P.(C) NO. 1713/1996 Page 3
7. The term workman has been defined in Section 2(s) of the Act, which reads:-
"Section 2. Definitions xxx
(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person--
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding ten thousand rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
8. The question raised in the present writ petition is whether the respondent No. 3, a doctor, in the present case is a workman W.P.(C) NO. 1713/1996 Page 4 as defined in Section 2(s) of the Act or not. Learned counsel for the petitioner has relied upon Lakshmi Devi Sugar Mills Ltd. vs. State of U.P., AIR 1955 All. 578; Mr. Karthiyayni and Ors. vs. UOI (1984) 1 LLJ 259 (Kerala); M.M. Wadia Charitable Hospital vs. Umakant Ramchandra Warekar, (1997) II LLJ 549 Bom.; and have placed reliance on the observations and ratio in Burmah Shell Oil Storage and Distribution Company of India Ltd. vs. Burmah Shell Management Staff Association and Ors., (1970) 3 SCC 378; Indian Medical Association vs. V.P. Shantha and Ors. AIR 1996 SC 550; Muir Mills Unit of N.T.C. (U.P.) Ltd. vs. Swayam Prakash Srivastava and Anr. AIR 2007 SC 519.
9. Counsel for the respondent No. 3 on the other hand has relied upon Dr. Surendra Kumar Shukla vs. Union of India 1986 Lab.I.C. 1516 (All); Mar Baselios Medical Mission Hospital vs. Dr. Joseph Babu (2007) II LLJ 925 Ker.
10. The discussion below shows that earlier divervent views were expressed by different high courts on the said question. In Laxmi Devi Sugar Mills (supra), it was held that a compounder or doctor is not a workman within Section 2(s) of the Act. However, at that time the definition of the term „workman‟ was "any person employed (including an apprentice) in any industry W.P.(C) NO. 1713/1996 Page 5 to do any skilled or unskilled manual or clerical work for hire or reward". The definition was much narrow and in that context it was held that doctors and compounders do not do manual or clerical work. Doctor‟s main work, it was noticed that, was/is to observe patients, to hear their complaints, diagnose their disease and prescribe medication.
11. Allahabad High Court in the case of Dr. Surendra Kumar Shukla (supra) had taken a different view. In the said case, the question was whether Assistant Medical Officers were workmen. The management in the said case had taken the plea that the doctors were engaged in the managerial/supervisory work. This contention was rejected holding that the nature of the duties of the doctors were technical. It was held that the primary, basic or dominant nature of duties of an employee have to be seen.
12. The decision relied upon by the petitioner in the case of Mar Baselios Medical Mission Hospital (supra), has been overruled by a Division Bench of the same high court in the decision which is reported as (2010) 3 LLJ 606 Ker.
13. At this stage, it will be relevant to notice the decision of Supreme Court in Burmah Shell Oil Storage and Distribution Company of India Ltd. (supra). In this decision, it has been W.P.(C) NO. 1713/1996 Page 6 held that 5 categories of employees are workmen under Section 2(s) of the Act. These categories are (1) Manual workers both skilled and unskilled; (2) A person employed in technical work; (3) A person employed in operational work; (4) A person employed in clerical work; and (5) A person employed in supervisory work. Thereafter, there are four exceptions, which are mentioned in sub-clauses (i) to (iv) and the said category of employees are excluded. Reference was made to the case of May & Baker (India) Ltd. vs. Their Workmen, (1961) II LLJ 94, in which unamended definition of Section 2(s) was examined in interpreted. The Supreme Court thereafter held as under:-
"6. We are unable to accept this submission. In the case of May and Baker (India) Ltd. v. Workmen 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 W.P.(C) NO. 1713/1996 Page 7 envisaged in the definition to make an employee a workman. It is true that that decision was given on the definition of "workman" as it stood before the amendment of 1956 when the words "supervisory" and "technical" did not occur in the definition. Mr Chari's submission is that the amendment in 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" without 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 not be required to do any paper work, nor may he be required to have any technical knowledge. He may not be supervising the work of any other employees, nor would he 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 is employed, 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."
14. To decide whether a particular person is a workman, it was held that it is necessary to determine if the employee falls within the 5 specified categories. In case a worker falls within the five categories mentioned above, then we have to examine whether any of the four exemptions are applicable. The Supreme Court observed that to decide what work was undertaken by the workman, we have to look at the main work he was required to W.P.(C) NO. 1713/1996 Page 8 do, even though he may be incidentally doing other type of work. It was observed as under:-
"7. 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 mentioned in the definition. In cases where an employee is employed to 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 as well as supervisory work. In such cases, it would be necessary to determine under which classification he will fall 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 and Baker India Ltd., the Court, in the quotation cited above, noticed the fact that Mukerjee's duties were mainly neither clerical nor manual. The significance 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."
15. We may now notice judgment of the Bombay High Court in M.M. Wedia Charitable Hospital (supra). In this case, reliance was placed by the employee on the decisions of the Gauhati High Court in Bengal United Tea Co. vs. Ram Labhaya, (1962) II LLJ 37, and Gujarat High Court in Arun Mills vs. Dr. Trivedi, 1976 (32) FLR 323. In these two decisions it W.P.(C) NO. 1713/1996 Page 9 has been held that a doctor or a medical officer come within the meaning of the term technical and, therefore, are workmen. In M.M. Wedia (supra) the said decisions were distinguished holding that in both cases the doctor/Assistant Medical Officers were employed in an industry i.e. tea estate and a mill and not in a hospital. The management in these cases, had submitted that doctors were performing work of supervisory nature which was rejected. It was further observed that these doctors were required to treat the employees employed in the industry/undertaking. In M.M. Wadia Charitable Hospitals (supra), reference was made to H.R. Adyanthaya vs. Sandoz (I) Ltd., (1995) I LLJ 303, wherein it has been held that for an employee to be treated as a workman under the Act, he must be employed to do manual, skilled or unskilled; technical, operational, clerical or supervisory work for hire or reward. If he falls in any of the above categories then it has to be ascertained whether the said employee stands excluded by the four exceptions carved out in the latter half of Section 2(s) of the Act. Reference was also made to the judgment of the Supreme Court in Indian Medical Association (supra) and it was observed that there is a difference between a contract of service and a contract for service. Further, a distinction has to be drawn W.P.(C) NO. 1713/1996 Page 10 between profession and occupation. While examining the provisions of the Consumer Protection Act, the Supreme Court referred to certain English judgments wherein it was held that profession involves idea of occupation requiring intellectual or manual skill control, as in painting, sculpture or surgery by the intellectual skill of a person, as distinguished from an occupation which involves production or sale or arrangement for production or sale of commodities. This line of demarcation may vary but some of the tests which demarcate profession from occupation show that they have certain characteristic viz. nature of work which is skilled as specialized and intrinsically involves mental faculties more than manual faculties. Further commitment to moral principles is required in profession and these go beyond honesty.
16. After referring to the aforesaid judgment, it was highlighted in M.M. Wadia (supra) that there is a distinction between a person employed in a hospital and a person employed in an industry and it cannot be said that whenever a doctor is employed in an institution, she/he becomes a workman. Nature and character of the relationship between the employee and the employer has to be examined and ascertained to decide whether a doctor is a workman. A doctor is required to treat the W.P.(C) NO. 1713/1996 Page 11 patients / visitors to the hospitals and owes an obligation to them. A distinction was drawn between an employee performing technical work and the technical skill of a professional and it was held that the two are not synonymous. It was observed:-
"We are specifically concerned, as stated hereinabove, with the respondent-doctors in the Public Hospital whose services are terminated, as to whether they can claim reinstatement on the ground that they are workmen. In this connection, at this stage, it may be mentioned that under the Industrial Disputes Act, the nature of the work alone is not the sole test. Even in the case of a Medical Sales Representative, a person is required to acquire Educational qualification and technical experience which he is required to use in the course of his duty as a Medical Sales Representative. However the primary duty of a Medical Sales Representative is to sell the pharmaceutical products. It is for this reason that the Apex Court has held in the case of Sandoz (India) Ltd. (supra) and also in the case of Burmah Shell Oil Storage and distribution Co. of India Ltd. v. The Burmah Shell Management Staff Association & Ors. reported in (1970-II-
LLJ-590) , that the work of a Medical Representative is not of a technical nature. This is one of the important tests which also applies to the facts of the present case. Every work of a technical nature which involves technical skill does not give rise to the relationship of employer and employee. In fact, it is the other way round. It is first required to be proved as to whether there is a relationship of employer and employee and whether in the course of the work incidental to that relationship,the work done by the employee is of a skilled nature, unskilled nature, technical nature etc. which is required to be decided."
17. We may notice that in the case of M.M. Wadia Charitable Hospital's case (supra), the doctors were allowed to do private practice after devoting prescribed hours in the hospital. In the present case non practicing allowance was paid.
W.P.(C) NO. 1713/1996 Page 12
18. Aforesaid elucidation by Bombay High Court is relevant and material. It finds acceptance in the view taken by the Supreme Court in Sonepat Coop. Sugar Mills Ltd. vs. Ajit Singh, (2005) 3 SCC 232. The respondent therein was appointed to the post of Legal Assistant which required a degree in law with practicing licence. Question arose whether respondent therein was a workman as he had raised an industrial dispute. It was held that the respondent therein was not a workman within the meaning of Section 2(s).
19. Distinction between an employee rendering or doing work of technical nature and professional who has technical or educational degree, has been highlighted by the Supreme Court in Muir Mills (supra). The said case is of a Legal Assistant who was a professional and the question arose whether he was a workman. It was held as under:-
"36. Furthermore, if we draw a distinction between occupation and profession we can see that an occupation is a principal activity (job, work or calling) that earns money (regular wage or salary) for a person and a profession is an occupation that requires extensive training and the study and mastery of specialised knowledge and usually has a professional association, ethical code and process of certification or licensing. Classically, there were only three professions: ministry, medicine and law. These three professions each hold to a specific code of ethics and members are almost universally required to swear to some form of oath to uphold those ethics, therefore "professing" to a higher standard of accountability. Each of these professions also provides and requires extensive training in the meaning, W.P.(C) NO. 1713/1996 Page 13 value and importance of its particular oath in the practise of that profession.
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38. Therefore, it is clear that Respondent 1 herein is a professional and never can a professional be termed as a workman under any law."
20. In view of the aforesaid reasoning, I accept the plea and the contention raised by the petitioner that the respondent No. 3 was a professional and it cannot be said that he was engaged/employed for doing technical work. He did use his professional skills and knowledge for diagnosing the diseases and treating the patients but this does not fall within the ambit and scope of Section 2(s) of the Act. I need not in light of the said finding examine other contentions raised by the petitioner
21. Accordingly, the present writ petition is allowed and the impugned award dated 3rd November, 1995, passed by the labour court is quashed and set aside for want of jurisdiction. In the facts of the case, there will be no orders as to costs.
(SANJIV KHANNA)
JUDGE
FEBRUARY 24, 2012
kkb/VKR
W.P.(C) NO. 1713/1996 Page 14