E.S.IC. MEDICAL OFFICER'S ASSOCIATIONversusE.S.L.C. & ANR.

                 [2013] 12 S.C.R. 907


     E.S.l.C. MEDICAL OFFICER'S ASSOCIATION                A
                           v.
                    E.S.l.C. & ANR.
    (Special Leave Petition (Civil) No.35821 of 2013)

                 NOVEMBER 21, 2013
                                                           B
    [K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]

    Industrial Disputes Act, 1947 - s. 2(s) - A medical
professional, whether a workman - Held: A medical
professional, treating patients and diagnosing diseases C
cannot be termed as 'workmen' within meaning of s.2(s).

     Words and Phrases - 'Occupation' and 'Profession' -
Distinction between - Discussed.

    The question for consideration in the present petition D
was whether medical doctors discharging functions of
medical officers i.e. treating patients in Employees' State
Insurance Corporation's dispensaries/hospitals are
"workmen" within the meaning of expression contained
in Section 2(s) of the Industrial Disputes Act, 1947.       E

    Dismissing the petition, the Court

    HELD: A medical professional, treating patients and
diagnosing diseases, cannot be held to be a "workmen" F
within the meaning of Section 2(s) of the Industrial
Disputes 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 G
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,

                           907                             H
    908       SUPREME COURT REPORTS                 [2013] 12 S.C.R.


A 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 Act. [Para 11]
  [913-B-D]
B
       Muir Mills Unit of NTC (UP) Ltd. vs. Swayam Prakash
  Srivastava (2007) 1 SCC 491: 2006 (9) Suppl. SCR 1028;
  Heavy Engineering Corporation Ltd. vs. Presiding Officer,
  Labour Court and Ors. (1996) 11 SCC 236: 1996 (8) Suppl.
C SCR 92; A. Sundarambal vs. Govt. of Goa, Daman and Diu
    (1988) 4 sec 42: 1988 (1) Suppl. SCR. 604 - relied on.
                           Case Law reference:
          1996 (8) Suppl. SCR 92        relied on           Para 8
D         2006 (9) Suppl. SCR 1028 relied on                Para 11
          1988 (1) Suppl. SCR 604       relied on           Para 11
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    35821 of 2013.
E
        From the Judgment & Order dated 07.05.2013 of the High
    Court of Delhi at New Delhi in Writ Petition (C) No. 6760 of
    2010.
          Anil Kumar (for S.K. Verma) for the Petitioner.
F
          The Judgment of the Court was delivered by
          K.S. RADHAKRISHNAN, J. 1. Delay condoned.
       2. We are, in this case, concerned with the question
G whether medical doctors discharging functions of medical
  officers i.e. treating patients in Employees' State Insurance
  Corporation's dispensaries/hospitals are "workmen" within the
  meaning of expression contained in Section 2(s) of the
  Industrial Disputes Act, 1947 (for short "ID Act").
H
   E.S.l.C. MEDICAL OFFICER'S ASSOCIATION v.                909
     E.S.l.C. & ANR. [K.S. RADHAKRISHNAN, J.]
      3. Petitioner is an Association of medical officers A
employed in the ESCI after the year 1974. The Association
raised a claim for ESIC allowance of Rs.200/- per month on
the ground that they were performing the same duties as those
by doctors who are getting the said allowance and, therefore,
could not be discriminated against. The Central Government B
referred the above dispute on 19.11.1992 for adjudication by
the Central Government Industrial Tribunal, New Delhi (CGIT).
CGIT in l.D. No.104of1992 answered the reference in favour
of the Petitioner Association holding that the medical doctors
discharging functions of medical officers are "workmen" within c
 the meaning of Section 2(s) of the ID Act. The Tribunal also held
 that there was no material to show that the said medical doctors
 were employed in managerial or administrative capacity or in
 a professional capacity. Consequently, it was held that the
 officers could be defined as skilled workmen doing job of a D
 skilled nature. Further, it was also observed that engagement
 of the medical doctors in intellectual activities of treating
 patients cannot take them out of the definition of the expression
 "workmen".
     4. Aggrieved by the above-mentioned Award, the                 E
Corporation approached the Delhi High Court by filing Writ
Petition No.6760 of 2010. The learned Single Judge of the
Delhi High Court allowed the Writ Petition holding that the
Tribunal was in error in holding that medical doctors fell within
the expression "workmen" within the meaning of Section 2(s)         F
of the ID Act.
     5. Mr. Atul Kumar, learned counsel appearing for the
Petitioner, submitted that the High Court was in error in holding
that the members of the Petitioner Association are performing G
any managerial or supervisory functions. Further, it was pointed
out that their job is of a skilled nature and hence they are
workmen entitled to protection of ID Act. Further, it was also
pointed out that non-grant of medical allowance to the medical
doctors is discriminatory and violative or Article 14 of the H
     910     SUPREME COURT REPORTS               [2013] 12 S.C.R.


A Constitution of India. Learned counsel also submitted that the
   High Court has committed error in placing reliance on the
  judgment of this Court in Muir Mills Unit of NTC (UP) Ltd. V.
  Swayam Prakash Srivastava [(2007) 1 SCC 491] since it was
  hit by principle of casus omissus and there was no discussion
B in the judgment about the nature of the duties of the medical
  officers.

         6. We notice, after the formation of the ESIC in the year
   1956, the Corporation was drawing services of medical doctors
   from other organizations on deputation and was making
C payment of deputation allowance at the rate of Rs.200/- per
   month to such deputationists. The Corporation in the year 1974
   set up its own ESIC Medical Centre and under its regulations,
   the medical doctors recruited in the said medical centre were
   entitled to the same pay and allowances as admissible to
D medical doctors in the Central Government Health Services.
   Petitioner Association consists of medical officers employed
  by the ESIC after 1974. Members of Association also claimed
  allowance at the rate of Rs.200/- per month on the ground that
  they were performing the same duties as those doctors who
E were getting the said allowance and, therefore, could not be
  discriminated against. On merits, the claim was opposed by
  the Corporation stating that ESIC allowance was payable only
  to deputationists as it was a deputation allowance, whereas
  members of the Association have been directly recruited in the
F medical category of the Corporation.

       7. We are in agreement with the views of the High Court
  that the members of the Association being not deputationists
  are not entitled to such allowance, but we are in this case
G concerned with a larger question as to whether medical doctors
  discharging functions in ESIC dispensaries/hospitals are
  workmen within the meaning of Section 2(s) of the ID Act.

       8. We notice, the medical officers appointed in the various
  dispensaries/hospitals are entrusted with the task of examining
H and diagnosing patients and prescribing medicines to them
   E.S.l.C. MEDICAL OFFICER'S ASSOCIATION v.                911
     E.S.l.C. & ANR. [K.s.· RADHAKRISHNAN, J.]

and they are basically and mainly engaged in professional and A
intellectual activities to treat patients. This Court in Heavy
Engineering Corporation Ltd. V. Presiding Officer, Labour
Court & Ors. [(1996) 11 SCC 236] examined the question as
to whether General Duty Medical Officers Grade II were
performing supervisory functions. In that case, the medical B
officer was appointed as General Duty Medical Officer Grade
II by the Corporation and was posted in the First-Aid post for
providing emergency medical services in case of accidents,
etc. during the shifts. On termination of the services, an industrial
 dispute was raised by the medical officer that his services have  c
 been terminated in breach of Section 25-F of the Act. The Court
 observed that the duties of a doctor required that he performs
 supervisory functions in addition to treating the patients would
 mean that he had been employed in a supervisory capacity.
 Paragraph 12 of the judgment has some relevance and is D
 extracted hereinbelow:-

     "12. The aforesaid facts, in our opinion, clearly go to show
     that Respondent 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 E
     Respondent 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, sweeper
     and ambulance driver who would naturally be taking F
     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 2, whenever he was on duty. They were, in
      other words, under the control and supervision of the G
      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 H
    912        SUPREME COURT REPORTS                 [2013] 12 S.C.R.

A          regarded as a workman under Section 2(s) of the Act."

       9. Later, this Court in Muir Mills (supra) had occasion to
  consider whether a legal Assistant falls within the definition of
  ''workman" under the U.P. Industrial Disputes Act, 1947. In that
B judgment in paras 38 to 40, this Court hHld as follows :-

           38. Furthermore, if we draw a distinction between
           occupation and profession we can see that an occupation
           is a principal activity Oob, work or calling) that earns money
           (regular wage or salary) for a person and a profession is
c          an occupation that requires extensive training and the
           study and mastery of specialised ~;nowledge 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
D         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
E         in the meaning, value and importance of its particular oath
          in the practise of that profession.

          39. A membe.r 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
F         to any activity from which one earns one's living, so in that
          sense sport is a profession.
          40. Therefore, it is clear that Respondent 1 herein is a
          professional and never can a professional be termed as
G         a workman under any law.
       10. We may, in this respect, also refer to an earlier
  judgment of this Court in A. Sundarambal v. Govt. of Goa,
  Daman & Diu [(1988) 4 SCC 42), wherein this Court held that
H a teacher employed by an educational institution, who imparts
   E.S.l.C. MEDICAL OFFICER'S ASSOCIATION v.               913
     E.S.l.C. & ANR. [K.S. RADHAKRISHNAN, J.]

education (whether at primary, secondary, graduate or post- A
graduate level) cannot be called as 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 skilled or unskilled manual work or
supervisory, technical or clerical work.                        B

    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 C
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, D
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. Sundarambafs case (supra) and E
 in Muir Mil/s'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.

 K.K.T.                                        SLP dismissed.