{"id":31702,"date":"1996-10-29T00:00:00","date_gmt":"1996-10-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/management-of-heavy-vs-presiding-officer-labour-court-on-29-october-1996"},"modified":"2016-01-28T05:32:14","modified_gmt":"2016-01-28T00:02:14","slug":"management-of-heavy-vs-presiding-officer-labour-court-on-29-october-1996","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/management-of-heavy-vs-presiding-officer-labour-court-on-29-october-1996","title":{"rendered":"Management Of Heavy &#8230; vs Presiding Officer, Labour Court &#8230; on 29 October, 1996"},"content":{"rendered":"<div class=\"docsource_main\">Supreme Court of India<\/div>\n<div class=\"doc_title\">Management Of Heavy &#8230; vs Presiding Officer, Labour Court &#8230; on 29 October, 1996<\/div>\n<div class=\"doc_author\">Author: Kirpal<\/div>\n<div class=\"doc_bench\">Bench: J.S. Verma, B.N. Kirpal<\/div>\n<pre>           PETITIONER:\nMANAGEMENT OF HEAVY ENGINEERINGCORPORATION LTD.\n\n\tVs.\n\nRESPONDENT:\nPRESIDING OFFICER, LABOUR COURT AND ORS.\n\nDATE OF JUDGMENT:\t29\/10\/1996\n\nBENCH:\nJ.S. VERMA, B.N. KIRPAL\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n<p>\t\t      J U D G M E N T<br \/>\nKirpal J.\n<\/p>\n<p>     The appellant  had appointed  respondent No.2 as Doctor<br \/>\nin theGeneral  Duty Medical  Officer Grade-II  on 17th\tMay,<br \/>\n1978. Theappointment  was on  ad hoc  basis for\t a period of<br \/>\nsix months with effect from 18th May, 1978.\n<\/p>\n<p>     Along with\t respondent No.2  three other  doctors\twere<br \/>\nsimilarly appointed. All the four doctors were posted at the<br \/>\nFirst Aid  Posts  which\t are  being    maintained    by\t the<br \/>\nappellant  corporation\t for  providing\t  emergency  medical<br \/>\nservices in  case of   accidents etc. during all the shifts.<br \/>\nThis ad\t hoc appointment  to the  temporary post  was  first<br \/>\nextended for  a period\tof three  months by order dated 30th<br \/>\nNovember, 1978. Second extension was granted for a period of<br \/>\ntwo months by order dated 7th March, 1979.\n<\/p>\n<p>      The  aforesaid temporary appointment of respondent No.<br \/>\n2, along  with three  other doctors  who were appointed with<br \/>\nhim, thus continued for a period of eleven months. By office<br \/>\norder dated  17th April,  1979 these  doctors were  informed<br \/>\nthat on\t the completion\t of their  term of appointment on ad<br \/>\nhoc basis  they would be relieved of their duties Respondent<br \/>\nNo.2 made  representation dated\t 20th  April,  1979  on\t the<br \/>\nreceipt of  the aforesaid  order dated\t17th April, 1979. It<br \/>\nwas contended  therein that  he had  worked for\t a period of<br \/>\nmore   than 240\t days and  that his services were terminated<br \/>\nwithout assigning  any reason.\tIt appears  form the  record<br \/>\nthat in\t order to  fill the  said vacancies on regular basis<br \/>\nadvertisements were issued and interviews were held first in<br \/>\nthe year  1979 and  thereafter in  the year 1981. Respondent<br \/>\nNo. 2  had applied but was not found suitable for selection.<br \/>\nIt is  thereafter that respondent No. 2 raised an industrial<br \/>\ndispute regarding  the\t alleged illegal  termination of his<br \/>\nservices by  the order\tdated 17th April, 1979. Conciliation<br \/>\nproceedings took  place\t  but it resulted  in failure report<br \/>\nbeing made  by the  Conciliation  Officer.  Thereupon\t the<br \/>\nGovernment of  Bihar made  a reference\tto the Labour Court,<br \/>\nunder section  10(1) (c) of the Industrial Disputes Act 1947<br \/>\nfor   short &#8216;the Act&#8217;), for deciding the following dispute :<br \/>\n&#8220;Whether the   termination  of services\t of  Dr.  Chandrahas<br \/>\nPrasad by  the management  from 17.04.1979 is justified ? If<br \/>\nnot, whether  he is  entitled to  reinstatement\/or any other<br \/>\nrelief ?\n<\/p>\n<p>     The main contention which was raised by respondent No.2<br \/>\nbefore the  Labour Court  was that he had completed 240 days<br \/>\nof service  and was  entitled to  a notice  of one  month as<br \/>\nprovided by Section 25-F of the Act and as this has not been<br \/>\ngiven, therefore,  his termination  was bad  in law.  It was<br \/>\nalso submitted\tthat retrenchment  compensation\t  under\t the<br \/>\nsaid section  had not been given and he was also entitled to<br \/>\nthe benefit  of Section\t 25-F of  the Act  were in  any\t way<br \/>\nattracted. It was also contended that respondent No. 2 after<br \/>\nhe had\tbeen  relieved,\t had  applied  for  fresh  selection<br \/>\nagainst\t open  advertisement  and,  therefore,\tit  must  be<br \/>\nregarded as  if he  had waived\this right  to challenge\t his<br \/>\ntermination of service.\n<\/p>\n<p>     The parties  led  evidence\t before\t the  Labour  Court.<br \/>\nThereupon, by  award dated  25th February,  1986 the  Labour<br \/>\nCourt rejected\tthe appellant&#8217;s contention and held  that as<br \/>\nno notice  of one month, as contemplated by  Section 25-F of<br \/>\nthe Act,  had been  given to respondent No.2, therefore, his<br \/>\ntermination    was  bad in  law. It  accordingly ordered the<br \/>\nreinstatement of  respondent No.2  with full  back wages. It<br \/>\nalso awarded interest at the rate of twelve per cent annum.\n<\/p>\n<p>     The appellant  then filed\t a  writ petition before the<br \/>\nRanchi Bench  of the  Patna High  Court challenging the said<br \/>\naward without  success. Thereafter  special leave  petition,<br \/>\nwhich was filed by the appellant, was granted on 17th March,<br \/>\n1988 and  it was  directed that\t on the\t second respondent&#8217;s<br \/>\nfilling an affidavit as required by section 17-B of the Act,<br \/>\nthe back  wages and   future  salary and allowances shall be<br \/>\npayable to  him in accordance with the award. It was further<br \/>\ndirected that  it was open to the appellant, at any time, to<br \/>\ncall upon   the\t second\t respondent  to\t join  duty  without<br \/>\nprejudice to his right in this appeal and if respondent No 2<br \/>\nwas so\tcalled then  he should join the duty. It was further<br \/>\ndirected that  if respondent No.2, when called, did not join<br \/>\nthe duty  then\the  will  not  get  any\t future\t salary\t and<br \/>\nallowances.\n<\/p>\n<p>     Sh.  G.L.\t Sanghi,  learned  senior  counsel  for\t the<br \/>\nappellant stated  that a  total\t amount\t of  Rs.  1,11,378\/-<br \/>\nbecame payable in respect of back wages and interest thereon<br \/>\nand after deduction the income\ttax payable thereon a sum of<br \/>\nRs.81,838\/- was\t paid to  the respondent  on  17th  October,<br \/>\n1990.  It   was\t also\tstated\tthat  respondent  No.2\tvide<br \/>\nappellant&#8217; letter  dated 6th  November, 1989  was  asked  to<br \/>\nresume duty  but he had failed to do so. Therefore, in terms<br \/>\nof  the\t  orders  dated\t 17th  March,  1988  of\t this  Court<br \/>\nrespondent No.2\t became disentitled  to receive\t any  future<br \/>\nsalary and allowances.\n<\/p>\n<p>     The principal contention urged by Sh. Sanghi is in this<br \/>\nappeal is that respondent No.2 couldn&#8217;t be regarded as being<br \/>\na workman  within   the meaning of the expression as defined<br \/>\nin Section  2(s) of  the Act.  At the  relevant\t time  total<br \/>\nmonthly emoluments  of respondent No.2 were in excess of Rs.<br \/>\n1200\/- and  he was  working in\ta supervisory  capacity and,<br \/>\ntherefore, he  could   not be  regarded as  workman. On\t the<br \/>\nother hand  counsel  for respondent No.2 reiterated that the<br \/>\nduties which  were being  performed by respondent No.2 could<br \/>\nnot be\tregarded as being supervisory.\n<\/p>\n<p>     Reliance was  placed on  behalf of\t the respondent on a<br \/>\ndecision of  the Allahabad  High Court\tin the\tcase of\t Dr.<br \/>\nSurendra Kumar\tShukla Vs.   Union  of India  and Ors. (1986<br \/>\nLab. I.C.  1516). The question which arose for consideration<br \/>\nin that\t case was  whether  the\t Assistant  Medical  Officer<br \/>\nClass-II appointed  in the  Railways could  be\tregarded  as<br \/>\nworkman\t  to whom  the provisions of Section 25-F of the Act<br \/>\nwould  be  applicable.\tIn  that  case\tthe  duties  of\t the<br \/>\nAssistant Medical  Officer were\t not only  to treat  railway<br \/>\npatients but, according to the Indian Railway Manual, he was<br \/>\nalso to\t &#8220;meet other administrative requirements where he is<br \/>\nin-charge  of  hospital\t or  a\thealth\tunit  or  any  other<br \/>\ninstitution&#8221;  and   he\twas   also   responsible   for\t its<br \/>\nestablishment and  administration. The\tHigh Court held that<br \/>\nthe primary  purpose  of  employing  the  Assistant  Medical<br \/>\nOfficer was  to treat  the patients  and that  the duties of<br \/>\nthe doctor  were technical and that any supervisory function<br \/>\nwhich such  doctor exercised  was only\t incidental  to\t the<br \/>\ndischarge of  his duties  and,\t therefore, it\tcould not be<br \/>\nsaid that  he was employed in a supervisory capacity  within<br \/>\nthe meaning  of Section\t 2(s) of the Act. In our opinion the<br \/>\nconclusion so  arrived at by the High Court was not correct.<br \/>\nThe duties  of a  doctor required  that he  should   perform<br \/>\nsupervisory  function\tin  addition  to  his  treating\t the<br \/>\npatients  would\t  mean\tthat  he  had  been  employed  in  a<br \/>\nsupervisory capacity.  The Railway Manual clearly stipulated<br \/>\nthat the  Assistant  Divisional\t Medical  Officer  would  be<br \/>\nresponsible for the establishment  and administration of the<br \/>\nhospital or  the health unit. This would obviously mean that<br \/>\nthe Assistant  Divisional Medical  Officer was employed in a<br \/>\nsupervisory capacity.\n<\/p>\n<p>     The decision  in the  case of The Bengal United Tea Co.<br \/>\nLtd. Vs Ram Labhaya, Presiding Officer, Industrial Tribunal,<br \/>\nAssam and Ors. (AIR 1961 Assam\t30) is also of no assistance<br \/>\nto respondent  No.2 because  in that  case the only question<br \/>\nwhich was considered was whether the functions discharged by<br \/>\nthe medical  officer were  of technical\t nature or  not. The<br \/>\nCourt came  to\tthe  conclusion\t that  the  medical  officer<br \/>\ndischarged technical  duties and,  therefore, was  a workman<br \/>\nwithin the meaning of Section 2(s) of the Act. The Court did<br \/>\nnot have  an occasion to consider the question as to whether<br \/>\nthe medical  officer,  in  that\t case,\twas  employed  in  a<br \/>\nsupervisory capacity  or not.  This decision, therefore, has<br \/>\nno relevance to the controversy in the present case.\n<\/p>\n<p>     In the  presence case respondent No.2 had appeared as a<br \/>\nwitness before\tthe Labour  Court. He had inter alia, stated<br \/>\nthat he\t had been appointed along with other doctors and had<br \/>\njoined duties  on 18th May, 1978. He was posted at the first<br \/>\naid post  and along with him one dresser was working and the<br \/>\nmain duty  of respondent  No.2 was  to give first aid to the<br \/>\nworkers on duty. While he did state that he never sanctioned<br \/>\nthe casual  leave of  the dresser, who was working with him,<br \/>\nbut in\tthe latter part of his statement it is recorded that<br \/>\n&#8220;in the\t year 1978  and 1979  I had  counter-signed  on\t the<br \/>\ncasual leave  register&#8221;. It was also stated by him that &#8220;the<br \/>\ndresser used  to work with him, his name was J. Dadel, along<br \/>\nwith  these  dressers  and  two\t labourers.&#8221;  He  of  course<br \/>\ncategorically stated that he was not doing supervisory work.<br \/>\nOne  of\t  the  witnesses  who  appeared\t on  behalf  of\t the<br \/>\nmanagement stated  that the  in-charge of the first aid post<br \/>\nis the doctor on duty and the male nurse, nursing attendant,<br \/>\nsweeper and  ambulance driver  are subordinate\tto  this  in<br \/>\ncharge.\n<\/p>\n<p>     The aforesaid facts, in our opinion, clearly go to show<br \/>\nthat respondents  No.2 could  not be  regarded as  a workman<br \/>\nunder Section  2 (s)  of the  Act as  he was  working  in  a<br \/>\nsupervisory  capacity.\tWhile  it  is  no  doubt  true\tthat<br \/>\nrespondent No.2 , along with the other doctors, used to work<br \/>\nin shifts  nevertheless during\tthe time  when he was in the<br \/>\nshift he  was the  sole person\tin-charge of  the first\t aid<br \/>\npost. He  had, under  him  male\t nurse,\t nursing  attendant,<br \/>\nsweeper and  ambulance driver  who would naturally be taking<br \/>\ndirections and\torders from  the in-charge  of the first aid<br \/>\npost. These persons obviously could not act on their own and<br \/>\nhad to\tfunction in  the manner\t as directed  by  respondent<br \/>\nNo.2, whenever\the was\tno duty.  They were, in other words,<br \/>\nunder the  control and supervision of the respondent. When a<br \/>\ndoctor,\t like  the  respondent,\t discharges  his  duties  of<br \/>\nattending  to\tthe  patients\tand,  in   addition  thereto<br \/>\nsupervises the\twork of\t the persons subordinate to him, the<br \/>\nonly possible conclusion which can be arrived at is that the<br \/>\nrespondent cannot  be held  to be  regarded as workman under<br \/>\nSection 2(s) of the Act.\n<\/p>\n<p>     For the aforesaid reasons while allowing this appeal<br \/>\nthe judgment of the High Court, under appeal, and the<br \/>\ndecision of the Tribunal, are set aside. The effect of this<br \/>\nwill be that the termination of the services of the<br \/>\nrespondents was valid. The respondents will refund  to the<br \/>\nappellant the sum of Rs. 81,838\/- received by him from the<br \/>\nappellant pursuant to the interim orders passed in this<br \/>\ncase. The appellant will also be entitled to the refund of<br \/>\nRs. 29,540\/- from the Income-tax Authorities being the<br \/>\nincome tax which was deducted and was liable to be deposited<br \/>\nwith the Income-tax department. There will, however, be no<br \/>\norder as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Supreme Court of India Management Of Heavy &#8230; vs Presiding Officer, Labour Court &#8230; on 29 October, 1996 Author: Kirpal Bench: J.S. Verma, B.N. Kirpal 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 [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-31702","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.0 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Management Of Heavy ... vs Presiding Officer, Labour Court ... on 29 October, 1996 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/management-of-heavy-vs-presiding-officer-labour-court-on-29-october-1996\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Management Of Heavy ... vs Presiding Officer, Labour Court ... on 29 October, 1996 - Free Judgements of Supreme Court &amp; 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