http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: MANAGEMENT OF HEAVY ENGINEERINGCORPORATION LTD.

       Vs.

RESPONDENT: PRESIDING OFFICER, LABOUR COURT AND ORS.

DATE OF JUDGMENT:       29/10/1996

BENCH: J.S. VERMA, B.N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Kirpal J.      The appellant  had appointed  respondent No.2 as Doctor in theGeneral  Duty Medical  Officer Grade-II  on 17th  May, 1978. Theappointment  was on  ad hoc  basis for  a period of six months with effect from 18th May, 1978.      Along with  respondent No.2  three other  doctors  were similarly appointed. All the four doctors were posted at the First Aid  Posts  which  are  being    maintained    by  the appellant  corporation   for  providing   emergency  medical services in  case of   accidents etc. during all the shifts. This ad  hoc appointment  to the  temporary post  was  first extended for  a period  of three  months by order dated 30th November, 1978. Second extension was granted for a period of two months by order dated 7th March, 1979.       The  aforesaid temporary appointment of respondent No. 2, along  with three  other doctors  who were appointed with him, thus continued for a period of eleven months. By office order dated  17th April,  1979 these  doctors were  informed that on  the completion  of their  term of appointment on ad hoc basis  they would be relieved of their duties Respondent No.2 made  representation dated  20th  April,  1979  on  the receipt of  the aforesaid  order dated  17th April, 1979. It was contended  therein that  he had  worked for  a period of more   than 240  days and  that his services were terminated without assigning  any reason.  It appears  form the  record that in  order to  fill the  said vacancies on regular basis advertisements were issued and interviews were held first in the year  1979 and  thereafter in  the year 1981. Respondent No. 2  had applied but was not found suitable for selection. It is  thereafter that respondent No. 2 raised an industrial dispute regarding  the   alleged illegal  termination of his services by  the order  dated 17th April, 1979. Conciliation proceedings took  place   but it resulted  in failure report being made  by the  Conciliation  Officer.  Thereupon    the Government of  Bihar made  a reference  to the Labour Court, under section  10(1) (c) of the Industrial Disputes Act 1947 for   short ’the Act’), for deciding the following dispute : "Whether the   termination  of services  of  Dr.  Chandrahas Prasad by  the management  from 17.04.1979 is justified ? If

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

not, whether  he is  entitled to  reinstatement/or any other relief ?      The main contention which was raised by respondent No.2 before the  Labour Court  was that he had completed 240 days of service  and was  entitled to  a notice  of one  month as provided by Section 25-F of the Act and as this has not been given, therefore,  his termination  was bad  in law.  It was also submitted  that retrenchment  compensation   under  the said section  had not been given and he was also entitled to the benefit  of Section  25-F of  the Act  were in  any  way attracted. It was also contended that respondent No. 2 after he had  been  relieved,  had  applied  for  fresh  selection against  open  advertisement  and,  therefore,  it  must  be regarded as  if he  had waived  his right  to challenge  his termination of service.      The parties  led  evidence  before  the  Labour  Court. Thereupon, by  award dated  25th February,  1986 the  Labour Court rejected  the appellant’s contention and held  that as no notice  of one month, as contemplated by  Section 25-F of the Act,  had been  given to respondent No.2, therefore, his termination    was  bad in  law. It  accordingly ordered the reinstatement of  respondent No.2  with full  back wages. It also awarded interest at the rate of twelve per cent annum.      The appellant  then filed   a  writ petition before the Ranchi Bench  of the  Patna High  Court challenging the said award without  success. Thereafter  special leave  petition, which was filed by the appellant, was granted on 17th March, 1988 and  it was  directed that  on the  second respondent’s filling an affidavit as required by section 17-B of the Act, the back  wages and   future  salary and allowances shall be payable to  him in accordance with the award. It was further directed that  it was open to the appellant, at any time, to call upon   the  second  respondent  to  join  duty  without prejudice to his right in this appeal and if respondent No 2 was so  called then  he should join the duty. It was further directed that  if respondent No.2, when called, did not join the duty  then  he  will  not  get  any  future  salary  and allowances.      Sh.  G.L.   Sanghi,  learned  senior  counsel  for  the appellant stated  that a  total  amount  of  Rs.  1,11,378/- became payable in respect of back wages and interest thereon and after deduction the income  tax payable thereon a sum of Rs.81,838/- was  paid to  the respondent  on  17th  October, 1990.  It   was  also   stated  that  respondent  No.2  vide appellant’ letter  dated 6th  November, 1989  was  asked  to resume duty  but he had failed to do so. Therefore, in terms of  the   orders  dated  17th  March,  1988  of  this  Court respondent No.2  became disentitled  to receive  any  future salary and allowances.      The principal contention urged by Sh. Sanghi is in this appeal is that respondent No.2 couldn’t be regarded as being a workman  within   the meaning of the expression as defined in Section  2(s) of  the Act.  At the  relevant  time  total monthly emoluments  of respondent No.2 were in excess of Rs. 1200/- and  he was  working in  a supervisory  capacity and, therefore, he  could   not be  regarded as  workman. On  the other hand  counsel  for respondent No.2 reiterated that the duties which  were being  performed by respondent No.2 could not be  regarded as being supervisory.      Reliance was  placed on  behalf of  the respondent on a decision of  the Allahabad  High Court  in the  case of  Dr. Surendra Kumar  Shukla Vs.   Union  of India  and Ors. (1986 Lab. I.C.  1516). The question which arose for consideration in that  case was  whether  the  Assistant  Medical  Officer Class-II appointed  in the  Railways could  be  regarded  as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

workman   to whom  the provisions of Section 25-F of the Act would  be  applicable.  In  that  case  the  duties  of  the Assistant Medical  Officer were  not only  to treat  railway patients but, according to the Indian Railway Manual, he was also to  "meet other administrative requirements where he is in-charge  of  hospital  or  a  health  unit  or  any  other institution"  and   he  was   also   responsible   for   its establishment and  administration. The  High Court held that the primary  purpose  of  employing  the  Assistant  Medical Officer was  to treat  the patients  and that  the duties of the doctor  were technical and that any supervisory function which such  doctor exercised  was only   incidental  to  the discharge of  his duties  and,   therefore, it  could not be said that  he was employed in a supervisory capacity  within the meaning  of Section  2(s) of the Act. In our opinion the conclusion so  arrived at by the High Court was not correct. The duties  of a  doctor required  that he  should   perform supervisory  function   in  addition  to  his  treating  the patients  would   mean  that  he  had  been  employed  in  a supervisory capacity.  The Railway Manual clearly stipulated that the  Assistant  Divisional  Medical  Officer  would  be responsible for the establishment  and administration of the hospital or  the health unit. This would obviously mean that the Assistant  Divisional Medical  Officer was employed in a supervisory capacity.      The decision  in the  case of The Bengal United Tea Co. Ltd. Vs Ram Labhaya, Presiding Officer, Industrial Tribunal, Assam and Ors. (AIR 1961 Assam  30) is also of no assistance to respondent  No.2 because  in that  case the only question which was considered was whether the functions discharged by the medical  officer were  of technical  nature or  not. The Court came  to  the  conclusion  that  the  medical  officer discharged technical  duties and,  therefore, was  a workman within the meaning of Section 2(s) of the Act. The Court did not have  an occasion to consider the question as to whether the medical  officer,  in  that  case,  was  employed  in  a supervisory capacity  or not.  This decision, therefore, has no relevance to the controversy in the present case.      In the  presence case respondent No.2 had appeared as a witness before  the Labour  Court. He had inter alia, stated that he  had been appointed along with other doctors and had joined duties  on 18th May, 1978. He was posted at the first aid post  and along with him one dresser was working and the main duty  of respondent  No.2 was  to give first aid to the workers on duty. While he did state that he never sanctioned the casual  leave of  the dresser, who was working with him, but in  the latter part of his statement it is recorded that "in the  year 1978  and 1979  I had  counter-signed  on  the casual leave  register". It was also stated by him that "the dresser used  to work with him, his name was J. Dadel, along with  these  dressers  and  two  labourers."  He  of  course categorically stated that he was not doing supervisory work. One  of   the  witnesses  who  appeared  on  behalf  of  the management stated  that the  in-charge of the first aid post is the doctor on duty and the male nurse, nursing attendant, sweeper and  ambulance driver  are subordinate  to  this  in charge.      The aforesaid facts, in our opinion, clearly go to show that respondents  No.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 No.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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

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 No.2, whenever  he was  no 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 workman under Section 2(s) of the Act.      For the aforesaid reasons while allowing this appeal the judgment of the High Court, under appeal, and the decision of the Tribunal, are set aside. The effect of this will be that the termination of the services of the respondents was valid. The respondents will refund  to the appellant the sum of Rs. 81,838/- received by him from the appellant pursuant to the interim orders passed in this case. The appellant will also be entitled to the refund of Rs. 29,540/- from the Income-tax Authorities being the income tax which was deducted and was liable to be deposited with the Income-tax department. There will, however, be no order as to costs.