Delhi District Court
Devendra Dhyani vs M/S. Sant Parmanand Hospital And Ors on 18 January, 2025
IN THE COURT OF SH. ARUN KUMAR GARG
PRESIDING OFFICER : LABOUR COURT-III
ROUSE AVENUE COURTS COMPLEX : NEW DELHI.
CNR No. DLCT13-004773-2020
LID No. 41/2021
Sh. Devendra Dhyani, S/o Late Sh. Mathura Prasad,
R/o Flat No. 251, Om Apartment, DDA Flat, Pocket-2,
Sector 14, Dwarka, New Delhi-110075
Mobile no. 9818828608. ..... Workman
VERSUS
1. M/s. Sant Parmanand Hospital,
18, Sham Nath Marg, Civil Lines, Delhi-110054.
2. Dr. Shekhar Agarwal (Director)
M/s. Sant Parmanand Hospital,
18, Sham Nath Marg, Civil Lines, Delhi-110054.
3. Dr. S. Rajagopal (Director)
M/s. Sant Parmanand Hospital,
18, Sham Nath Marg, Civil Lines,
Delhi-110054.
Ph.: 011-23981260, 23994401-10 ..... Managements
Date of Institution of the case : 17.12.2020
Date on which Award is passed : 18.01.2025
AWARD
1. By this Award, I will dispose off the claim of the workman,
filed under Section 2-A of the Industrial Disputes Act, 1947 on
17.12.2020, pursuant to the Failure Report No. ID/107/ND/Co-
II/2019/942-43 dated 31.12.2019 of the Conciliation Officer,
Office of Joint Labour Commissioner (North), Labour
Department, Govt. of NCT of Delhi.
2. Brief case of the claimant, as per his statement of claim, is
LID No.41/2021
Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.
Award dated 18.01.2025 Page 1 of 27
that he had been in continuous employment of the management
as an Audiologist and Speech Therapist since 01.11.2004,
having been appointed vide an appointment letter dated
11.11.2004 of the management, and continued working with the
management until 30.03.2019 against last drawn wages of Rs.
36,268/- per month (excluding PF, ESIC and other statutory
benefits) besides, 50% share of VHS Centre of the ENT
Department of the management. It is further his case that the
management was not following the rules and regulations under
the labour law and was not providing any statutory benefits, such
as- sick leave, over-time wages, bonus etc. to the workman.
3. Upon demand by the workman in respect of the aforesaid
benefits, it is further alleged, instead of providing the aforesaid
benefits to the workman, the management stopped making the
payment of 50% share in profit of VHS Centre of management
to the workman w.e.f. 01.01.2018 on the pretext that the
management was undergoing losses. It is further his case that he
continued working with the management for almost 15 months
without any share in the profits from VHS Centre of the ENT
Department of the management, however, when on 27.02.2019
he reported on his duty, the management had handed over a
termination letter to the claimant, thereby, illegally terminating
his services w.e.f. 31.03.2019 without any genuine reason while
denying the payment of any service compensation as well as
privilege leave payment to the workman.
4. Under the aforesaid circumstances, according to him, he
was constrained to approach the Labour Department with formal
complaint dated 02.08.2019, however, the management has
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Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.
Award dated 18.01.2025 Page 2 of 27
neither appeared nor replied to the complaint of the workman
before the Labour Inspector despite receipt of several notices.
Since, according to him, all the efforts to settle the industrial
dispute between the parties had failed, a failure report dated
31.12.2019 was issued by the office of Joint Labour
Commissioner (North) on 31.12.2019, whereafter, he was
constrained to file the present claim against the management
under the provisions of Section 2-A of the Industrial Disputes
Act, 1947 challenging his illegal termination in violation of
provisions of Section 25-F of the Industrial Disputes Act, 1947.
The claimant has prayed for a direction to the management for
his reinstatement with full back wages since the date of his
illegal termination, besides his other dues such as 50% share in
the profit of VHS Centre for the period 01.01.2018 to
30.03.2019, service compensation, privilege leave payment,
three months notice pay and cost of litigation after computation
thereof.
5. A perusal of record reveals that the claimant in his
statement of claim has also impleaded two Directors of the
management, in their individual capacity, as respondents no. 2
and 3, one of whom has admittedly expired during the pendency of the present claim. However, in my considered opinion, since the claimant was admittedly an employee of respondent no. 1 hospital and no malafides have been alleged by him against its directors, the Directors of the respondent no. 1 hospital cannot be held to be responsible for the acts of respondent no. 1 in their individual capacity and hence, they are neither necessary nor proper parties to the present claim. Therefore, hereinafter, any LID No.41/2021 Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.
Award dated 18.01.2025 Page 3 of 27reference to the management in the present case shall be read as a reference to Sant Parmanand Hospital, 18, Sham Nath Marg, Civil Lines, Delhi-110054.
6. Written statement to the claim of workman was filed by the management, wherein, the management has denied the existence of any employer and employee relationship between the parties. It is the case of the management, as per its written statement, that the claimant does not fall within the definition of 'workman' under Section 2(s) of the Industrial Disputes Act, 1947, since, he was providing his services to the management as a Consultant Audiologist and Speech Therapist in VHS Centre of the management in partnership and on profit sharing basis and not as an employee of the management. It is further alleged in the written statement that though, initially the claimant was sharing 50% of the revenue, generated from the procedures carried out by VHS Centre of the management, however, w.e.f. 21.12.2017 the share was revised to 60% revenue of the Neonatal Hearing Screen Tests conducted at VHS Centre of the management.
7. Moreover, according to management, the nature of work which was being performed by the claimant was highly skilled and specialized involving significant mental input and special qualification bringing him out of the purview of definition of 'workman' under Section 2(s) of the Industrial Disputes Act, 1947. It is further the case of management that the claimant was single-handedly managing the VHS Centre exercising full autonomy and freedom without any interference, supervision or control of the management.
LID No.41/2021Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.
Award dated 18.01.2025 Page 4 of 278. It is further the case of management that in the year 2018, the management had decided to improve the facilities and services of VHS Department by out-sourcing the same to external agencies and the claimant was accordingly offered to join the new set-up while making it clear that the new set-up will be monitored by the management, however, the claimant had refused to join the new set-up leading to his termination. The present claim of the claimant, according to management, is thus also barred under the provisions of Section 25-E(i) of the Industrial Disputes Act, 1947.
9. It is further the case of management that the claim of the claimant for service compensation and privilege leave payment is neither based on any statutory provisions nor on any contract between the parties and hence is liable to be rejected. It is further alleged that the claim of the claimant for three months notice pay is also is not maintainable since the management had already given one month notice to the claimant, whereas, the claimant has failed to point-out any statutory provision or contractual obligation of the management to serve three months advance notice to the workman. Management has thus prayed for dismissal of claim of the claimant.
10. A Rejoinder to the aforesaid written statement of management was thereafter filed by the claimant on 08.04.2022, wherein, the claimant has once again reiterated the averments made by him in his statement of claim and has denied the contrary averments made by the management in its written statement.
LID No.41/2021Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.
Award dated 18.01.2025 Page 5 of 2711. Thereafter, on the basis of pleadings of the parties, following issues were settled by Ld. Predecessor of this Court vide order dated 13.07.2022:-
(i) Whether relationship of employer and employee exists in between the parties to the present claim petition? (OPW)
(ii) Whether the claimant is not a workman as stated by the management in the Preliminary Objections of the Written Statement? (OPM)
(iii) Whether the services of the workman were terminated illegally and unjustifiably by the management w.e.f. 31.03.2019? (OPW)
(iv) Whether the workman is entitled for reinstatement in service and continuity of service with full back wages and other consequential reliefs? (OPW)
(v) Relief, if any.
12. Claimant has thereafter examined himself as WW-1 i.e. as the sole witness in support of his case and tendered his evidence by way of affidavit Ex. WW1/A along with following documents:
(i) Ex.WW1/1: Statement of claim.
(ii) Ex.WW1/2 : Rejoinder.
(iii) Ex.WW1/3 : Evidence by way of affidavit.
(iv) Ex.WW1/4: Copy of bank statement of workman.
(v) Ex.WW1/5: Copy of pay slip issued by the management.
(vi) Ex.WW1/6: Copy of slips regarding deduction of provident fund.
(vii) Ex.WW1/7: Copy of medical facility card issued by the management.
(viii) Ex.WW1/8: Copy of ID card issued by the management.
(ix) Ex.WW1/9: Copies of Form 16 of workman issued LID No.41/2021 Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.Award dated 18.01.2025 Page 6 of 27
by the management
10. WW-1 was duly cross-examined by Ld. AR for management. No other witness was examined on behalf of the claimant despite opportunity and hence, on a separate statement of claimant, claimant's evidence was closed by the Ld. Predecessor of this Court vide order dated 02.12.2023.
11. On the other hand, Management has failed to examine any witness in support of its case despite repeated opportunities and hence, on the submissions of management, management's evidence was closed vide order dated 29.10.2024.
12. Final arguments were thereafter heard on behalf of both the parties. It is submitted by Ld. AR for claimant that the claimant in the present claim is seeking his reinstatement into the services of management and payment of other dues of the claimant against the management on account of illegal termination of his services by the management without payment of his accrued dues. He submits that though the management has denied the existence of an employer-employee relationship between the parties, however, the claimant has tendered a number of documents to prove the existence of employer-employee relationship between the parties.
13. In this regard, Ld. AR for workman has relied upon the appointment letter dated 11.11.2004, whereby, pursuant to an application as well as subsequent interview of the claimant, he was appointed as an Audiologist and Speech Therapist initially for a period of one year w.e.f. 01.11.2004 on a consolidated LID No.41/2021 Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.
Award dated 18.01.2025 Page 7 of 27salary of Rs. 7,000/- per month besides, 50% share in the income generated, beyond Rs. 5,000/- per month, from the VHS Centre of ENT Department of the management. It is pointed out by the Ld. AR for the claimant that as per the appointment letter, the claimant was placed under probation for a period of three months and his service conditions were to be governed by the relevant Rules and Regulations of the management. All the aforesaid terms and conditions of his appointment letter, according to him, clearly indicates the existence of an employer- employee relationship between the parties.
14. Even in his identity card Ex. WW-1/8, according to Ld. AR for workman, the claimant has been shown as an employee of the management under employee code no. 344 and the department, wherein, he had been deployed by the management is shown as VHS. Ld. AR for the claimant has also relied upon the statement of the salary account of the claimant Ex. WW- 1/4(Colly), wherein, he was receiving a fixed monthly salary from the management during his entire period of employment with the management. He submits that even the payslip Ex. WW1/5 and EPF slips Ex. WW1/6(colly) indicate that the claimant was an employee of the management since, otherwise, there was no occasion for the management to deduct and deposit EPF contribution on his behalf.
15. Ld. AR for claimant has also relied upon Form 16 Ex. WW- 1/9 issued by the management in the name of claimant for the financial years 2017-18 and 2018-2019, wherein, the claimant has been shown as an employee of the management and the payments made by the management to the claimant are shown as LID No.41/2021 Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.
Award dated 18.01.2025 Page 8 of 27his salary. He submits that the management has failed to lead any evidence to prove that the claimant was working in partnership with the management and was not its employee.
16. It is further submitted by him that the written statement, purportedly filed on behalf of the management, cannot be considered to be a written statement of the management since there is no authority letter signed by the competent authority of the management hospital authorizing Dr. Sushil Kumar Tyagi to sign and file the written statement on behalf of the management before the Labour Court. Even otherwise, according to him, the management has failed to prove the pleadings in the aforesaid written statement by examining any witness in support thereof. Ld. AR for the claimant has thus prayed for an award, in terms of prayers made by the claimant in his statement of claim, in favour of claimant and against the management.
17. On the other hand, it is submitted by the Ld. AR for management that the claimant does not fall within the definition of 'workman' under section 2 (s) of the Industrial Disputes Act, considering the nature of his duties during his association with the management, in as much as, the discharge thereof involved application of more of his mental faculties than his physical faculties. He submits that the job of the claimant was more akin to a doctor and hence, he cannot be considered to be a 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. In support of his aforesaid submission, Ld. AR for management has relied upon the judgment of Hon'ble Bombay High Court in M.M. Wadia Charitable Hospital v. Dr. Umakant Ramchandra Warerkar MANU/MH/0273/1996, LID No.41/2021 Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.
Award dated 18.01.2025 Page 9 of 27wherein, a doctor was held not to be a workman.
18. Ld. AR for workman further submits that in his statement of claim, the claimant himself has admitted that he had been receiving 50% share in the total income of VHS Centre of ENT Department of the management and hence, according to him, the claimant was working in partnership with the management. The aforesaid fact, according to him, negates the existence of any employer-employee relationship between the parties. Whatever consolidated remuneration, according to him, was being paid to the claimant by the management pursuant to his appointment letter dated 11.11.2004 and subsequent letters extending the aforesaid contract, were being paid by the management to the claimant towards his professional fee as a consultant and hence, he cannot be considered to be a workman by any stretch of imagination.
19. It is further submitted by him that even otherwise the claim of the claimant is barred under the provision of Section 25 (E) (i) of the Industrial Disputes Act, 1947, since he had refused to join the new set-up pursuant to the decision of the management to out-source the VHS Centre of the management. He has thus prayed for dismissal of the present claim of the workman.
20. I have heard the submissions made on behalf of the parties and have carefully perused the material available on the record, in the light of judgment relied upon by the Ld. AR for the Management and other relevant judgments. My issue-wise findings on the issues, settled by Ld. Predecessor of this Court vide order dated 13.07.2022, are as follows:-
LID No.41/2021Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.Award dated 18.01.2025 Page 10 of 27
Issue no. (i): Whether the relationship of employer and employee exists in between the parties to the present claim petition?(OPW)
21. As has already been observed hereinabove, one of the objections of the management to the maintainability of the present claim of the workmen is that there did not exist any employer-employee relationship between the parties and rather the claimant was working in partnership with the management for running the VHS Centre at the ENT Department of the management hospital. Under the aforesaid circumstances, in my considered opinion, it was incumbent upon the claimant to prove the existence of employer-employee relationship between the parties as a pre-condition for further consideration of his claim by this Court. In order to discharge the aforesaid onus, the claimant has examined himself as WW-1 i.e. as the sole witness and tendered his evidence by way of affidavit Ex. WW1/A besides, the documents Ex. WW1/4 (colly) to Ex. WW1/9.
22. There is no dispute about the fact that the claimant was first appointed by the management as an Audiologist and Speech Therapist, pursuant to the appointment letter dated 11.11.2004, for a consolidated salary of Rs. 7,000/- per month. Further, as per the terms and conditions of the said appointment letter, the claimant was initially appointed on a probation for a period of three months and his services were liable to be terminated without any reason and at the discretion of the management. The aforesaid appointment letter also contains a clause, in terms of which, the service conditions of the claimant were to be governed by relevant rules and orders of the management LID No.41/2021 Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.
Award dated 18.01.2025 Page 11 of 27enforced from time to time and he was also entitled to receive 50% of the income generated, beyond Rs. 5,000/-, from VHS Centre of the ENT Department.
23. Merely because, in addition to the consolidated salary of Rs. 7,000/- p.m., the claimant was also entitled to get 50% share of the income generated from the VHS Centre of the management hospital, beyond Rs. 5,000/- p.m., in my considered opinion, the aforesaid fact by itself is not sufficient to conclude that the said appointment letter was actually a contract for engagement of claimant as an independent professional on partnership basis. It is significant to note in this regard that the appointment letter dated 11.11.2004 is not the sole document which has been relied upon by the claimant as a proof of existence of employer-employee relationship between the parties.
24. The claimant has also tendered a copy of his identity card Ex.WW1/8 issued by the management, wherein, the employee code of the claimant has been mentioned as 344. He has also tendered a medical facility card issued in the name of the claimant as Ex. WW1/7, wherein, once again, he has been shown as an employee of the management. Had there been any truth in the plea of the management that the claimant was not an employee of the management, there was no occasion for the management to issue the payslip in his name for the month of June 2018 Ex. WW1/5, wherein, his employee code has been mentioned as 383 and his designation has been mentioned as Consultant Audiologist and Speech Therapist. The aforesaid payslip also mentions the basic salary of the claimant as Rs.
LID No.41/2021Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.
Award dated 18.01.2025 Page 12 of 2729,448/- besides, the admissible HRA to the extent of Rs. 3,410/- and Dearness Allowance of Rs. 3,410/-.
25. Ld. AR for the management has failed to point out any legal provision which entitles a partner/independent contractor, who is not an employee of the management, to receive HRA and DA besides, the salary. A bare perusal of the aforesaid payslip shows that the management has even deducted a sum of Rs. 1,800/- from the salary of the claimant for the month of June 2018 towards PF. Once again, Ld. AR of management has failed to point out any legal provision which entitles or mandates the management to deduct PF from the professional charges payable to an independent professional otherwise than an employee of the management. The claimant has also tendered three EPF slips for the years 2005-06, 2007-08 & 2008-09 as Ex. WW1/6 (colly) detailing the EPF contributions, deducted and deposited by the management in the name of the claimant with the EPF department, which, clearly indicate that the claimant had all along been working as an employee of the management and not as an independent contractor/partner.
26. The claimant has also tendered the copies of Form 16 under Rule 31 (1) (a) and Section 203 of the Income Tax Act, 1961 for the financial years 2017-18 and 2018-19 issued by the management in the name of claimant, wherein, the claimant has been shown as an employee of the management and all the payments made by the management to the claimant have been shown as the salary paid to the claimant. All the aforesaid documents, in my considered opinion, are sufficient to discharge the onus of the claimant to prove the existence of employer-
LID No.41/2021Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.
Award dated 18.01.2025 Page 13 of 27employee relationship between the parties and clearly negates the plea of the management regarding non-existence of any such relationship between them.
27. I also find force in the submission of Ld. AR for claimant that the management has failed to establish that the written statement, purportedly signed by Dr. Sushil Kumar Tyagi on behalf of the management, was in fact filed on behalf of the management, in as much, the authority letter dated 25.11.2021 which has not even been proved by the management, even if assumed to have been executed by the Executive Director of the management does not confer any authority upon Dr. Sushil Kumar Tyagi to sign and file the written statement on behalf of the management before this Court.
28. Issue no. (i) is thus decided in favour of the Claimant.
Issue no. (ii): Whether the claimant is not a workman as stated by the management in the Preliminary Objections of the Written Statement? (OPM)
29. Though the onus to prove the aforesaid issue, vide order dated 13.07.2022, has been placed upon the management, however, it is well-settled legal position that the onus to prove the claimant to be a 'workman' in an industrial dispute is always upon the workman.
30. Be that as it may, the aforesaid issue has been settled by the Ld. Predecessor of this Court vide order dated 13.07.2022 on the basis of specific objection of the management to the effect that the claimant is not a workman as denied under Section 2(s) of the Industrial Disputes Act, 1947, since the nature of work LID No.41/2021 Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.
Award dated 18.01.2025 Page 14 of 27performed by him was highly skilled and specialized work involving significant mental input and specific qualifications and he was working with full autonomy as a Consultant without interference, supervision and control from the management.
31. It is submitted by Ld. AR for management that the claimant, during his cross-examination, has admitted that he is a diploma holder in speech and hearing and in order to obtain the diploma he was required to attend physical classes. He submits that the claimant has also admitted that he was carrying out his work of speech and hearing therapist/consultant after getting himself enrolled with the Rehabilitation Council of India, which is a disciplinary body having its code of conduct to govern all the therapist registered with it. He submits that admittedly, entire documentation regarding the VHS department was being done by the management, whereas, the claimant was doing the work of audiometry and speech therapy only.
32. He submits that the claimant has also admitted that though in the audiometry he was performing hearing test by use of machine, but, to conduct the aforesaid test the involvement of claimant was necessary and even out-come of the test performed through machine was not automatic, in as much as, the results used to be on the basis of patients analysis done by him. So far as the work of speech therapy is concerned, according to him, admittedly, the claimant was not using any machine and he used to assist the children in improving their speech through verbal means.
33. The aforesaid admissions, according to him, coupled with LID No.41/2021 Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.
Award dated 18.01.2025 Page 15 of 27the admission that he used to treat patients from general public besides the employees of the hospital, who used to come to him on the basis of his expertise and goodwill, clearly indicates that the work performed by the claimant as an audiologist and speech therapist does not fall within the purview of the work which is required to make him a workman under Section 2(s) of the Industrial Disputes Act, 1947. In support of his aforesaid submission, Ld. AR for management has relied upon the judgment of Hon'ble Bombay High Court in M.M. Wadia Charitable Hospital v. Dr. Umakant Ramchandra Warerkar MANU/MH/0273/ 1996.
34. On the other hand, it is submitted by Ld. AR for workman that the judgment relied upon by Ld. AR for management was passed by Hon'ble Bombay High Court in a case where the issue was whether the doctors employed in a hospital are workman or not. He submits that in the case in hand, the claimant is not a doctor and hence, the judgment of Hon'ble Bombay High Court is not applicable to the facts of the present case. It is submitted by him that the work performed by the claimant as an audiologist and speech therapist involved the use of a machine, wherein, the reports were generated by the machine automatically without requiring any expertise on the part of workman. Under the aforesaid circumstances, according to him, the claimant was a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947.
35. I have heard the submissions made on behalf of the parties and have carefully perused the material available on record including the judgment relied upon by Ld. AR for management.
LID No.41/2021Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.
Award dated 18.01.2025 Page 16 of 2736. It is significant to note that here is a long line of judgments of Hon'ble Supreme Court, wherein, Hon'ble Supreme Court has dwelt upon the issue regarding interpretation of Section 2(s) of the Industrial Disputes Act, 1947 as amended from time to time. While interpreting the definition of 'workman' under Section 2(s) of the Industrial Disputes Act, 1947, Hon'ble Supreme Court has tried to draw distinction between an occupation and a profession by holding that though an occupation is a principal activity i.e. a job, work or calling that earns money for a person, however, a profession is an occupation that requires extensive training, study and mastery of specialized knowledge, usually having a professional association, ethical code and process of certification/licensing. It has further been held by Hon'ble Supreme Court that there are mainly three professions i.e. ministry, medicine and law, each holding to a specific code of ethics of almost universal application wherein members are required to swear some form of oath to uphold those ethics thereby professing to higher standards of accountability.
37. While making the aforesaid distinction, Hon'ble Supreme Court has held that a professional can never be termed to be a workman under any law. Applying the aforesaid test, Hon'ble Supreme Court in ESIC Medical Officers' Association Vs. ESIC & Ors. MANU/SC/1199/2013: AIR 2014 SC 1259 has held that medical professionals, treating patients and diagnosing diseases, cannot be held to be a 'workmen' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947, it being a noble profession mainly dedicated to serve the society demanding professionalism and accountability. Relevant LID No.41/2021 Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.
Award dated 18.01.2025 Page 17 of 27observations of Hon'ble Supreme Court in the aforesaid judgment are reproduced hereinbelow for ready reference:
"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."(emphasis mine)
38. Applying the same test, Hon'ble Supreme Court in Muir Mills Unit of NTC (UP) Ltd. Vs. Swayam Prakash Srivastava & Ors. MANU/SC/5244/2006: AIR 2007 SC 519 and in Sonepat Co-operative Sugar Mills Ltd. Vs. Ajit Singh MANU/SC/0105/2005: (2005)3 SCC 232 has held a legal assistant not to be a workman. Relevant observations of Hon'ble Supreme Court in Muir Mills case (supra), which was a case dealing with termination of a legal assistant are as follows:
"22. Furthermore if we draw a distinction between occupation and profession we can see that an LID No.41/2021 Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.Award dated 18.01.2025 Page 18 of 27
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 specialized 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 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, value, and importance of its particular oath in the practice of that profession.
23. A member of a profession is termed a professional. However, professional is also used for the acceptance of payment for an activity. Also a profession can also refer to any activity from which one earns one's living, so in that sense sport is a profession. Therefore, it is clear that respondent No. 1 herein is a professional and never can a professional be termed as a workman under any law."(emphasis mine)
39. In yet another case reported as A. Sundrambal vs. Govt. of Goa, Daman and Diu MANU/SC/0282/1988:(1988)4 SCC 42, Hon'ble Supreme Court has held that a teacher employed by an educational institution, imparting education cannot be called 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 a skilled or unskilled manual work. Relevant observations of Hon'ble Supreme Court in the aforesaid judgment are as follows:
"8. In order to be a workman, a person should be one who satisfies the following conditions: (i) he should LID No.41/2021 Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.Award dated 18.01.2025 Page 19 of 27
be a person employed in an industry for hire or reward; (ii) he should be engaged in skilled or unskilled manual, supervisory, technical or clerical work; and (iii) he should not be a person falling under any of the four clauses, i.e., (i) to (iv) mentioned in the definition of 'workman' in Section 2(s) of the Act. The definition also provides that a workman employed in an industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, an industrial dispute, or whose dismissal, discharge or retrenchment has led to that dispute.
9. We are concerned in this case primarily with the meaning of the words 'skilled or unskilled manual, supervisory, technical or clerical work'. If an employee in an industry is not a person engaged in doing work falling in any of these categories, he would not be a workman at all even though he is employed in an industry. The question for consideration before us is whether a teacher in a school falls under any of the four categories, namely, a person doing any skilled or unskilled manual work, supervisory work, technical work or clerical work. If he does not satisfy any one of the above descriptions he would not be workman even though he is an employee of an industry as settled by this Court in May and Baker (India) Ltd. v. Their Workmen., MANU/SC/0410/1961: (1961) IILLJ 94SC. In that case this Court had to consider the question whether a person employed by a pharmaceutical firm as a representative (for canvassing orders) whose duties consisted mainly of canvassing orders and any clerical or manual work that he had to do was only incidental to his main work of canvassing could be considered as a workman as defined in the Act. Dealing with the said question Wanchoo, J. (as he then was) observed thus:
As 'workman' was then defined as any person employed in any industry to do any skilled or LID No.41/2021 Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.Award dated 18.01.2025 Page 20 of 27
unskilled manual or clerical work for hire or reward. Therefore, doing manual or clerical work was necessary before a person could be called a workman. This definition came for consideration before industrial tribunals and it was consistently held that the designation of the employee was not of great moment and what was of importance was the nature of his duties. If the nature of the duties is manual or clerical, then the person must be held to be a workman. On the other hand if manual or clerical work is only a small part of the duties of the person concerned and incidental to his main work which is not manual or clerical, then such a person would not be a workman. It has, therefore, to be seen in each case from the nature of the duties whether a person employed is a workman or not, under the definition of that work as it existed before the amendment of 1956. The nature of the duties of Mukerjee is not in dispute in this case and the only question therefore is whether looking to the nature of the duties it can be said that Mukerjee was a workman within the meaning of Section 2(s) as it stood at the relevant time. We find from the nature of the duties assigned to Mukerjee that his main work was that of canvassing and any clerical or manual work that he had to do was incidental to his main work of canvassing and could not take more than a small fraction of the time for which he had to work. In the circumstances the tribunal's conclusion that Mukerjee was a workman is incorrect. 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 LID No.41/2021 Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.Award dated 18.01.2025 Page 21 of 27
tribunal would have no jurisdiction to order his reinstatement. We, therefore, set aside the order of the tribunal directing reinstatement of Mukerjee along with other reliefs.
10. The Court held that the employee Mukerjee involved in that case was not a workman under Section 2(s) of the Act because he was not mainly employed to do any skilled or unskilled manual or clerical work for hire or reward, which were the only two classes of employees who qualified for being treated as 'workman' under the definition of the expression 'workman' in the Act, as it stood then. As a result of the above decision, in order to give protection regarding security of employment and other benefits to sales representatives, parliament passed a separate law entitled the Sales Promotion Employees (Conditions of Service) Act, 1976. It is no doubt true that after the events leading to the above decision took place Section 2(s) of the Act was amended by including persons doing technical work as well as supervisory work. The question for consideration is whether even after the inclusion of the above two classes of employees in the definition of the expression 'workman' in the Act a teacher in a school can be called a workman. We are of the view that the teachers employed by educational institutions whether the said institutions are imparting primary, secondary, graduate or post graduate education cannot be called as 'workmen' within the meaning of Section 2(s) of the Act.
Imparting of education which is the main function of teachers cannot be considered as skilled or unskilled manual work or supervisory work or technical work or clerical work. Imparting of education is in the nature of a mission or a noble vocation. A teacher educates children, he moulds their character, builds up their personality and makes them fit to become responsible citizens. Children grow under the care of teachers. The clerical work, if any they may do, is only incidental to their principal work of teaching. We agree with the reasons given by the High Court LID No.41/2021 Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.
Award dated 18.01.2025 Page 22 of 27for taking the view that teachers cannot be treated as 'workmen' as defined under the Act. It is not possible to accept the suggestion that having regard to the object of the Act, all employees in an industry except those falling under the four exceptions (i) to (iv) in Section 2(s) of the Act should be treated as workmen. The acceptance of this argument will render the words 'to do any skilled or unskilled manual, supervisory, technical or clerical work' meaningless. A liberal construction as suggested would have been possible only in the absence of these words. The decision in May and Baker (India) Ltd. v. Their Workmen, (supra) precludes us from taking such a view. We, therefore, hold that the High Court was right in holding that the appellant was not a 'workman' though the school was an industry in view of the definition of 'workman' as it now stands." (emphasis mine)
40. While applying the aforesaid principles to the facts of the present case, the Court needs to examine whether the claimant in the present case was working as a professional so as to take him out of the definition of workman under Section 2(s) of the Industrial Disputes Act, 1947. As has already been pointed-out by Ld. AR for management, the claimant during his cross- examination has admitted that he is a diploma holder in speech and hearing, the course duration of diploma being one year, and in order to obtain the aforesaid diploma he was required to attend physical classes. He has further admitted that in order to work as a speech and hearing therapist/consultant, a person is required to be registered with Rehabilitation Council of India, which is a disciplinary body having its code of conduct and governing the therapists registered with it.
41. He has further admitted during his cross-examination that the entire documentation work in respect of speech and hearing LID No.41/2021 Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.
Award dated 18.01.2025 Page 23 of 27department of the management used to be done by the management, however, the reports in respect of the patients used to be prepared by him. He has further deposed that he was doing the work of audiometry and speech therapy. In audiometry, he was admittedly performing hearing tests by using a machine which could not automatically perform the tests, thereby, requiring his involvement and the out-come of the tests/results of the test used to be prepared by him on the basis of patient analysis and no automatic report used to be generated by the machine. In speech therapy, it has been admitted by him, he used to help the children in improving their speech through verbal means.
42. He has further admitted that he used to treat patients from general public including the employees of the hospital and the patients used to come to hospital based on his expertise and goodwill. The aforesaid admissions on the part of claimant during his cross-examination are sufficient to prove that the work performed by the claimant in the VHS Centre of the management was that of a professional and as has already been held by Hon'ble Supreme Court in a number of cases, referred to hereinabove, a professional can never be a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947.
43. In view of the aforesaid discussion, in my considered opinion, the claimant was working as a professional and hence, was not a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947.
44. Issue no. (ii) is thus decided in favour of the management.
LID No.41/2021Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.
Award dated 18.01.2025 Page 24 of 27Issue no. (iii): Whether the services of the workman were terminated illegally and unjustifiably by the management w.e.f. 31.03.2019? (OPW)
45. In view of my finding on issue no. (ii) hereinabove, since the claimant does not fall within the definition of workman Section 2(s) of the Industrial Disputes Act, this Court has no jurisdiction to deal with the present claim of the workman, in as much as, the dispute between the parties cannot be considered to an 'industrial dispute' within the meaning of Section 2(k) of the Industrial Disputes Act. However, considering the fact that the finding of this Court on issue no. (ii) hereinabove, is amenable to writ jurisdiction of Hon'ble Delhi High Court, this Court shall proceed to examine whether the services of the workman were terminated by the management w.e.f. 31.03.2019 either illegally or unjustifiably.
46. It is significant to note in this regard that even if, the claimant is assumed to be a 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, he was admittedly employed by the management pursuant to a fixed term contract dated 11.11.2004 initially for a period of one year w.e.f. 01.11.2004. The aforesaid contract of the claimant was thereafter renewed by the management from time to time. Admittedly, the said contract was lastly renewed by the management for a period of one year vide letter dated 08.03.2018 w.e.f. 01.04.2018. Thus, the last contract of employment of the claimant with the management expired by efflux of time as on 31.03.2019 and hence, the present case, at the best, is a case of termination of services of the workman by the management on account of non-
LID No.41/2021Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.
Award dated 18.01.2025 Page 25 of 27renewal of the contract of his employment on its expiry and hence, does not fall within the definition of retrenchment under Section 2(oo) of the Industrial Disputes Act in view of Proviso (bb) thereof.
47. Termination of services of the claimant by the management, consequent upon non-renewal of his contract of employment, thus cannot be termed to be illegal merely on account of violation of provisions of Section 25F of the Industrial Disputes Act, 1947.
48. The termination of services of the claimant, in my considered opinion, cannot also be termed to be unjustifiable, since, admittedly the management has decided to upgrade the department by outsourcing the department and the claimant was admittedly given an option by the management to join the department with the outsourced agency, which offer of the management was declined by the claimant.
49. Issue no. (iii) is thus decided against the workman.
(iv) Whether the workman is entitled for reinstatement in service and continuity of service with full back wages and other consequential reliefs? (OPW)
50. In view of my findings of issue no. (ii) and (iii) hereinabove, the claimant is not entitled for his reinstatement into the services of management with or without full back wages, continuity of service and other consequential benefits.
51. Issue no. (iv) is thus decided against the workman.
Issue no. (v): Relief, if any.
LID No.41/2021Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.
Award dated 18.01.2025 Page 26 of 2752. In view of my findings on issues no. (ii), (iii) and (iv) hereinabove, the claimant is not entitled to any relief.
53. The present claim of the claimant under Section 2A of the Industrial Disputes Act, 1947 is thus dismissed.
54. Ordered accordingly.
55. Requisite number of copies of this award be sent to the competent authority for publication as per rules.
Announced in the open Court on this 18th day of January, 2025.
This award consists of 27 number of signed pages. ARUN Digitally signed
by ARUN KUMAR
KUMAR GARG
Date: 2025.01.20
GARG 16:23:01 +05'30'
(ARUN KUMAR GARG)
Presiding Officer Labour Court-III
Rouse Avenue Court, New Delhi
LID No.41/2021
Devendra Dhyani Vs. Sant Parmanand Hospital & Ors.
Award dated 18.01.2025 Page 27 of 27