Kerala High Court
Mar Baselius Medical Mission Hospital vs Joseph Babu on 17 January, 2007
Equivalent citations: 2007(1)KLJ622, (2007)IILLJ925KER
Author: S. Siri Jagan
Bench: S. Siri Jagan
JUDGMENT S. Siri Jagan, J.
1. An hospital against which a consultant physician employed by them filed a C.P. before the Labour Court, Ernakulam as C.P. No. 47/ 1991 under Section 33-C(2) of the Industrial Disputes Act claiming certain benefits due to him including Sunday and holiday wages is challenging the order in that C.P in this Original Petition. The petitioner raised a preliminary point on the question as to whether the consultant physician, the 1 st respondent herein, is a workman or not. That question was considered as a preliminary point and by Exhibit P1 preliminary order, relying on the Supreme Court decision in the Burma Shell Oil Storage and Distribution Co. of India Ltd. v. Burma Shell Management Staff Association and Ors. the Labour Court held that the 1st respondent Consultant Physician is a workman coming within the definition of Section 2(s) of the Industrial Disputes Act and therefore the claim petition under Section 33-C(2) is maintainable. Although the petitioner challenged that preliminary order in O.P. No. 6216/1994, this Court dismissed the same without prejudice to the right of the petitioner to challenge that preliminary order also while the final order to be passed in the claim petition is challenged. Exhibit P 3 is the final order passed in the claim petition whereby the Labour Court held that the 1 st respondent is entitled to realise from the petitioner an amount of Rs. 66,000/- as holiday and Sunday wages. Exhibits P1 and P3 orders are under challenge in this Original Petition.
2. Two contentions are raised before me. First is that the 1st respondent consultant physician is not a workman since he is performing a job of creativity which would take him out of the purview of the definition of Section 2(s). The second contention is that the finding in Exhibit P3 order is perverse since the Labour Court has not correctly appreciated the contention of the petitioner to the effect that the 1st respondent had manipulated the attendance register and signed the same to make it appear that he had worked on Sundays and holidays also.
3. The learned Counsel for the 1st respondent would submit that the 1st respondent-Doctor is only performing the duties of technical nature which is expressly included in the definition of workman under Section 2(s) and therefore, a doctor cannot be taken out of the purview of the definition. Hence, the finding that the 1st respondent-Doctor is workman is perfectly valid and correct. Regarding the second contention, he would submit that no acceptable evidence has been adduced by the management to the effect that the 1st respondent had in fact manipulated the attendance register to mark attendance on Sundays and holidays also without actually working.
4. 1 have considered the rival contentions in detail.
5. Section 2(s) of the Industrial Disputes Act defines the "workman" as follows:
(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(45of 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 one thousand six hundred rupees per mensem or exercise, 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.
I am of opinion that the Doctor would certainly be performing duties of a technical nature which is expressly included in the definition. Of course, the petitioner relies on a decision of the Supreme Court in Sonepat Co-operative Sugar Mills Ltd. v. Ajith Singh in which the Supreme Court held that legal assistant would not come within the purview of the definition of the workman. Relevant portion is paragraph 17, which reads thus:
17. In A. Sundarambal v. Government of Goa, Daman and Diu teachers serving in an educational institution being not found to be performing any duty within the aforementioned category have 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 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.
The petitioner would specifically stress the words, "stereotype job" and "job involving creativity". He would submit that the job of a doctor is not a stereotyped job, but involves creativity just like that of a legal assistant and therefore, a doctor would not be a workman as defined in the Industrial Disputes act. Going through the above decision, relevant portion of which has been quoted above, I am not satisfied that the Supreme Court had held that the legal assistant is not a workman simply on the ground that his job involved creativity. The Supreme Court specifically noted that the legal assistant not only used to render legal opinions on a subject but also used to draft pleadings on behalf of the appellant as also represent before various Courts/authorities. It was found that by acting as a enquiry officer in the departmental enquiries he was discharging the quasi-judicial functions also. It is taking into account all these duties performed by a legal assistant that the Supreme Court has come to the conclusion that a legal assistant is not a workman under the Industrial Disputes Act. In the decision in S.K. Maini v. Carona Sahu Co. Limited and Ors. in paragraph 9 the Supreme Court has detailed the determinative factors for deciding the question as to whether an employee is a workman under the Industrial Disputes Act, in the following words at p. 1158 of LLJ:
9. After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned Counsel for the parties, it appears to us that whether or not an employee is a workman under Section 2(s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any strait-jacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition of workman under Section 2(s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organizations quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it. In this connection, reference may be made to the decision of this Court in Burmah Shell Oil Storage and Distribution Co. of India Ltd. v. Burmah Shell Management Staff Association (supra). In All India Reserve Bank Employees' Association v. Reserve Bank of India , it has been held by this Court that the word 'supervise' and its derivatives are not words of precise import and must often be construed in this light of context, for unless controlled, they cover an easily simple oversight and direction as manual work coupled with the power of inspection and superintendence of the manual work of others. It has been rightly contended by both the learned Counsel that the designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the employee concerned and not some works incidentally done. In other words, what is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is or manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done, by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of 'workman' as defined in Section 2(2) of the Industrial Disputes Act.
Therefore, the determinative factor is main duties and functions of the employee concerned. Of course, the question as to whether the first respondent is exercising any supervisory duties is not an issue here. But from the above decision, it is clear that for determining the question as to whether a particular person is a workman as defined in the Industrial Disputes Act, what is relevant is the functions and duties performed by him and the designation given to an employee is not of much importance. In this case, the petitioner terms the 1st respondent as "consultant physician". But it is not disputed before me that he is a full time employee of the petitioner hospital. The only duties he performs in the hospital is of examining the patients, diagnosing their diseases and prescribing medicines for them. This would certainly come within the ambit of the words "skilled and technical". Unlike in the case of a legal assistant, the 1st respondent herein is not expected to exercise any other duties involving creativity as mentioned in the Ajith Singh's case (supra). I am of opinion that a doctor who performs- the duties of examining patient, diagnosing diseases and prescribing medicines, whatever designation by which he is called would certainly be doing work of a skilled and technical nature and therefore would be a 'workman' as defined in Section 2(s) of the Industrial Disputes Act. In the above circumstances, I do not find any merit in the contention of the petitioner that the 1st respondent is not a workman as defined in Section 2(s) of the Industrial Disputes Act. That being so, I do not find any infirmity in Exhibit P1 preliminary order of the Labour Court that the 1st respondent herein is a workman under the 1st appellant (sic) and entitled to file a claim petition under Section 33-C(2) of the Industrial Disputes Act.
6. As far as the question of findings of merit is concerned, I am unable to accept the contention of the petitioner that the findings of the Labour Court are perverse. Admittedly the 2nd respondent had signed in the attendance register for 96 Sundays. The allegation of the petitioner is that the 1st respondent put his signature on Sundays subsequent to the regular signing of the document without the concurrence of the opposite party. This cannot be accepted as correct for a moment since the 1st respondent continued to sign the attendance register on Sundays for 96 days. One cannot expect an employer to miss this for a continuous period of almost two years. They have no case that the petitioner took objection to the 1st respondent signing the register on Sundays without working. In the said circumstances, I am unable to find any perversity in the finding that the 1st respondent had in fact worked on Sundays and holidays. The jurisdiction of this Court under Article 226 of the Constitution of India in such cases is very limited, only to the extent of finding whether there is any perversity in the findings of the Labour Court. Since I am unable to find any such perversity, I do not find any merit in the contention of the petitioner on merits also. In the above circumstances, there is no merit in the Original Petition and accordingly, the same is dismissed.
7. Interlocutory applications stand closed.