The Judgment of the Court was delivered by

Ray, J.:— This appeal is from the judgment and order of Mitter, J. dated 27 July and 24 August 1965 discharging the Rule obtained by the appellant.

2. The appellant obtained the Rules requiring the respondent to show cause as to why a writ of Mandamus should not go to recall, rescind and withdraw the order dated 9 October, 1963 and why a writ of Certiorari should not be issued quashing the order dated 9 October, 1963. the appellant's case in short is that the appellant was appointed an insurance medical practitioner under the State of West Bengal by virtue of provisions contained in Employees' State Insurance Act, 1948. The appellant further contended that it was a permanent post under the State Government. On 9 October 1963 a letter was written by the Deputy Secretary to the Government of West Bengal addressed to the appellant that “in exercise of the powers conferred by sub-clause (1) of Clause 11 of Schedule I to the West Bengal Employees' State Insurance (Medical Benefit) Rules, 1965, the Governor has been pleased to direct that the services of Dr. N.G Ghose under the Employees' State Insurance Scheme, West Bengal, will not be required by the Government after the expiry of three months from the date of receipt of the order by the Insurance Medical practitioner concerned.”

3. The appellant impeached the order dated 9 October, 1963 to be first, a violation of the provisions contained in Article 311 of the Constitution and secondly, that the termination of service was in infraction of Rules 21 to 25 contained in the West Bengal Employees' State Insurance Medical Benefit Rules. The second ground was allowed to be added pursuant to an application of the appellant dated 27 May, 1964 to be found at page 106 of the paper book. The second contention was based on the allegations that in the month of May, 1963 some complaint was made by an insured person and the termination of service was on the ground of misconduct or negligence because of those complaints and therefore. Rules 21 to 25 should have been followed.

4. The learned Judge was pleased to arrive at two, conclusions. First, on an analysis of the Act and the Rules the appellant was not in the employment of the State Government and was not holding a post under the State Government. Secondly Article 311 of the Constitution was not applicable.

5. The contentions on behalf of the appellant with regard to the appellant holding a civil post were based on sections 3, 4, 21, 57, 58, 92, 95 and 96 of the Employees' State Insurance Act, 1948 and Rules 4, 8 and 9 of the West Bengal Employees' State Insurance Rules and paragraphs 7 and 11 of the first schedule to the Rules and paragraph 6 of Schedule 3 to the Rules. It is not out of place to mention here that the Employees' State Insurance Act contemplated in sections 95, 96 and 97 Rule making power. Section 95 conferred power on the Central Government to make Rules. Section 96 conferred power on the State Government to make Rules. Section 97 conferred power on the Corporation to make regulations. The Corporation is called the Employees' State Insurance Corporation and section 3 of the Employees' State Insurance Act, 1948 hereinafter referred to as the said Act enacted the establishment of the Corporation and further enacted that the Corporation shall be a body corporate known by the name of Employees' State Insurance Corporation having perpetual succession and a common seal and shall by the said name sue and be sued. The constituents of the Corporation are nominees of the Central Government, representatives of the State Government and other representatives to be nominated by the Central Government or the State Government and the Director General of the Corporation is the ex-officio member of the Corporation.

6. The appellant became an Insurance Medical Practitioner. The system of insurance medical practitioners is to be found in the Rules made by the State Government under section 96 of the said Act. The Rules are in several parts. Part I is general, part II relates to provisions relating to medical benefits, part III relates to disputes and appeals and part IV contains miscellaneous provisions. The three Schedules to the Rules are as follows:— the first schedule contains terms of service for insurance medical practitioners, the second schedule contains the prescribed form of application for inclusion in medical list and the third schedule refers to what is known as the allocation scheme.

7. It will appear from the Rules that the medical benefit that is contemplated is that the State Government shall arrange to provide general medical services to insured persons at clinics of medical practitioners. The terms of service of the medical practitioners shall include the provisions contained in the first schedule of the Rules. The Allocation Committee which is contemplated in the Rules is a committee to be set up by the State Government consisting of not more than two persons appointed on the recommendation of the Director of Health Services, West Bengal and certain other representatives. It will appear in Rule 7 sub-r. (6) that the Allocation Committee shall discharge the duties and responsibilities placed on it by these rules or by the State Government in accordance with the allocation scheme in Schedule III. The Rules contemplate a medical list containing the names of medical practitioners who have undertaken to provide general medical services under these Rules and in accordance with the terms of service and who have been approved by the Allocation Committee. The Rules further contemplate a practitioners' list and provision of temporary arrangements and alternative arrangements. Rules in part III which relate to investigation and disposal of appeal contemplate investigation of disputes by the medical service committee. The procedure of the committee is regulated there and the Rules also contemplate action on behalf of the medical Committee.

8. The first schedule which deals with medical practitioners generally relates to the persons for whose treatment the medical practitioner is responsible, right of the medical practitioners to have a patient removed from the list, the range of service and duties of medical practitioners, arrangements for their practice, removal and withdrawal of names from medical list, casual absence of an insurance medical practitioner, remuneration of insurance medical practitioner. The allocation scheme in schedule III refers to the clinics of the practitioner, assignment of persons to practitioners and limitations of practitioners list namely the number of persons who will be within the list of the medical practitioners.

9. The two sections which are relied on in support of the contention that the appointment is by the State Government are 58 and 96 of the Act. Section 58 inter alia states that the State Government shall provide for insured persons and (where such benefit is extended to their families) their families in the State, reasonable medical, surgical and obstetric treatment. Section 96 which speaks of rule-making power refers to the power of the State Government to make rules and it is contended on the strength of the said rules under section 96 that in particular Rules 8, 9 and 14 have the effect of making a medical practitioner an employee of the State Government. Rule 4 states that an insurance medical practitioner shall be deemed to be appointed as an insurance medical officer for the purposes of the Employees' State Insurance (General) Regulations. Rule 4 also states the State Government shall arrange to provide general medical services to insured persons at clinics of medical practitioners. It is contended that since the State -Government is to provide general medical services as will appear from section 58 and Rule 4 the persons who are appointed as medical practitioners are employees of the State Government. Rules 8 and 9 on which Counsel for the appellant relied relate to the medical list. Both the Rules which refer to the medical list speak of an application by a medical practitioner for inclusion in the medical list and further enact that the Director of Health Services West Bengal, shall prepare a list to be called the Medical list of Insurance Medical practitioners who have undertaken to provide general medical services under the rules and in accordance with the terms of service and who have been approved by the Allocation Committee. Rules 8 and 9 were said by Counsel for the appellant to be the method of appointment. Rule 14 which was also relied on by Counsel for the appellant relates to practitioners' list and the Director of Health Services West Bengal prepares and maintains an up-to-date list of insured persons for whose treatment each insurance medical practitioner is for the time being responsible and any deletion otherwise than by reason of death, shall take effect as from the date on which the notice of deletion is sent by the Director of Health Services.

10. The other provision on which Counsel for the appellant relied namely, schedule I to the Rules states in Rule 11 that the State Government may have the name of the insurance medical practitioner removed from the medical list within a period of less than three months. Rule 16 of the first schedule was also relied on by Counsel for the appellant to contend that the rate of payment of remuneration of insurance medical practitioners was to be fixed by the State Government and therefore, it was said that there was an appointment under the State Government.

11. In short, it was said that the appointment was by the State Government, payment was by the State Government, termination was by the State Government and there was control by the State Government over the services of the medical practitioners. These four tests which were said by Counsel for the appellant to be indicia for determining whether there was an appointment by the State Government or not are extracted from various decisions of the Supreme Court as also of this Court on which Counsel for the appellant relied. The decisions of the Supreme Court are the cases of Dharangadhra Chemical Works Ltd. v. State of Saurashtra, reported in AIR 1957 SC 264, Abdul Shakur v. Rikhab Chand, reported in AIR 1958 SC 52, Gazula Dasaratha Rama Rao v. State of Andhra Pradesh, reported in AIR 1961 SC 564, State of Uttar Pradesh v. Audh Narain Singh, reported in AIR 1965 SC 360 and the case of the State of Assam v. Kanak Chandra Dutta, reported in AIR 1967 SC 884. The decisions of this Court on which Counsel for the appellant relied are Brojo Gopal Sarkar's case, reported in 59 Cal WN 628 (also reported in AIR 1955 Cal. 556) and the case of Ena Ghosh v. State of West Bengal, reported in 66 Cal WN 931 : (AIR 1962 Cal 420).

12. In Dharangadhra Chemical Works Ltd. case, 1957 SCA 216 : AIR 1957 SC 264, a question for consideration was whether certain, persons working in the ??? works were workmen within the meaning of the word workmen in the Industrial Disputes Act. The Supreme Court referred to the statement of law in Halsbury's Laws of England that determination of the relation of master and servant was a question of fact and in all cases the relation imports the existence of power in the employer not only to direct what work the servant is to do, but also the manner in which the work is to be done. The Supreme Court further said in that case that the nature or extent of control which is requisite to establish the relationship of employer and employee must necessarily vary from business to business and is by its very nature incapable of precise definition. It follows therefore that there should be control and supervision by the employer in relation to the work.

13. The decision in Abdul Shakur's case, (1958 SCA 279 : AIR 1958 SC 52) was on the question whether the office of manager of the Madras Durgah Khwaja was an office of profit of Government of India. The Supreme Court reiterated that the committee of the Durgah was a body acting within the four corners of the Act and merely because the members of the Committee were removable by the Government of India it could not be said that they were holders of office of profit. The appointment in that case was said not to come within the test of appointment by the Government of India; and it was found that the appellant there was neither appointed by the Government nor was he paid out of the revenue of the Government.

14. In Gazula Dasaratha Rama Rao's case, AIR 1961 SC 564 the Supreme Court considered whether the office of Village Munsif under the Madras State was an office under the State. At page 569 of the report the Supreme Court said that the provisions showed that the office was an office under the State because the appointment was made by the Collector, the emoluments were paid by the State and the Collector had disciplinary powers including the power to remove, suspend or dismiss and that the office was not a private office under a private employer but was one under the State.

15. In Audh Narain Singh's case, AIR 1965 SC 360 the Supreme Court considered the position of the Tahsildars in cash department of the Government Treasury. The Supreme Court reiterated the proposition that the existence of the relationship of master and servant was a question of fact which must be determined on a consideration of all material and relevant circumstances coupled with the payment of remuneration or the right to control the method of work and power to suspend and removal and the co-existence of all the factors could not be predicated to make the relation one of master and servant. In that case the Tahsildars were found to perform the duties of cashier, the payment was made by the Government Treasury and it was made for the purpose of public duties and the remuneration was paid by the State directly.

16. In Kanak Chandra Dutfa's case, AIR 1967 SC 884 the Supreme Court considered the question whether a Mauzadar in the State of Assam held a civil post. The civil post is distinguished from a post connected with defence and the Supreme Court said that a post was a service or employment and a relation of master and servant might be established by the indicia of selection, appointment, suspension, dismissal, control over the manner and method of doing the work and payment of remuneration.

17. The decision of this Court on which Counsel for the appellant relied is the case of Brojo Gopal Sarkar v. Commissioner of Police, reported in 59 Cal 628 (also in AIR 1955 Cal 556). The question for consideration there was the status of a Special Constable. It was said that mere fact that the holder of an office; under the Government does not get any, remuneration, does not make him any the less a holder of a ‘Civil Post’ under the Government and Counsel for the appellant relied on that decision. It was found there that the removal or dismissal of a special Constable would have the effect on the character of that person and that the discharge of such a Constable was held to be an infraction of Article 311 of the Constitution.

18. The other decision on which Counsel for the appellant relied is the case of Ena. Ghosh, 66 Cal WN 931 : (AIR 1962 Cal 420) which dealt with the question of termination of the services of the petitioner there who was a Vice-principal of a Government Sponsored College. It was said there that no governmental functions were discharged by the Vice Principal and the Government did not exercise control over day to day administration.

19. The four tests which have been applied to these cases were stated by Lord Thankerton in the case of Short v. J. and W. Henderson, Limited, reported in (1946) 174 LT 417. These four, tests are:— (a) the master's power of selection of his servant, (b) the payment of wages or other remuneration, (c) the master's right to control the method of doing the work, and (d) the master's right of suspension or dismissal. Lord Thankerton referred to the observation of Lord Justice Clerk in the judgment under appeal in that case that a contract of service may still exist if some of these elements are absent altogether, or present only in an unusual form, and that the principal requirement of a contract of service is the right of the master in some reasonable sense to control the method of doing the work, and that this factor of superintendence and control has frequently been treated as critical and decisive of the legal quality of the relationship.

20. In the present case section 58 of the Act enacts that the Government shall provide for insured persons reasonable medical, surgical and obstetric treatment. Such provision cannot be said to be synonymous with appointment of medical practitioners as employees of the State. The Proviso to section 58 sub-sec. (1) makes it clear that the State Government may with the approval of the Corporation arrange for medical treatment clinics of medical practitioners on such scale and subject to such terms and conditions as may be agreed upon. In other words, the State Government with the approval of the Corporation may arrange for medical treatment. The arrangement of medical treatment is not to be equated with the power of appointing medical practitioners as employees of the State of West Bengal. This position is manifest from the Regulations made by the Corporation under sec. 97 of the Act. Regulation no. 2(n) defines ‘Insurance Medical Officer’ meaning a medical practitioner appointed as such to provide medical benefit and to perform much other functions as may be assigned to him and shall be deemed to be a duly appointed medical practitioner for the purposes of Chapter V of the Act. Chapter V of the Act of 1948 deals with benefits in relation to medical services. Chapter V, contains sections 46 to 59A, Counsel for the appellant relied on the provisions contained in section 59-A under the heading ‘benefits’ to contend that the provisions of medical benefit by the Corporation in lieu of the State Government suggested that employees would be under the State. This contention is not supported either by the Act or by the Rules. Rule 4 read with sec. 58 indicates that a medical practitioner is one who has undertaken to provide general medical services under the Rules and who has also agreed in accordance with the terms of service to act as medical practitioner. Again Rule 8 puts the matter beyond any measure of doubt that a medical practitioner is one who has not only undertaken to provide services but is one who is approved by the Allocation Committee. The Allocation Committee is neither the State nor the Central Government but it is an independent committee set up by the State Government to consist of various representatives. The Allocation Committee is a part of the Corporation. The Corporation is a body-corporate and is not the same as the State Government. The prescribed application form for inclusion in medical list indicates that a candidate for inclusion in the medical list agrees to abide by the terms of service if included in the medical list. These terms of service indicate that a medical practitioner will make arrangements at his clinic for giving services to the insured persons. The medical practitioner employs his own staff, serves in his own clinic and the remuneration he is paid his what is described as the capitation fee, that is to say, fee per person for whom the renders services.

21. As regards appointment of medical practitioner the provisions of the Act and in particular section 58 and Rules 4, 8, 9, 15, 16 and Regulation no. 2 and Regulation 3(2) indicate that a medical practitioner is included in the medical list on his application to undertake to provide general medical services under the Rules and in accordance with the terms of service when he is approved by the Allocation Committee. The removal of such a person is not removal from service but removal from medical list. Paragraph 11 in the first schedule to the Rules enacts that the State Government may have the name of any individual medical practitioner removed from the medical list after giving due notice of not less than three months to the insurance medical practitioner, except in case of gross negligence and misconduct when the period of notice need be only one month. Similarly, an insurance medical practitioner at any time may cease to be insurance medical practitioner by giving notice of 3 months or in some cases a shorter notice. These provisions indicate that the State Government and the medical practitioner have reciprocal rights to have the name removed. The services rendered by the medical practitioner are as a result of the undertaking that he himself gives in his application form and he has the right to withdraw his name on giving notice. The temporary arrangements as will appear from Rule 13 are that the State Government may appoint one or more medical practitioner or practitioners to undertake the treatment of insured persons. The word ‘appoint’ has been used in Rule 13 and again in Rule 14 and Counsel for the appellant emphasised on the user of the word ‘appoint’ but that in my opinion, will not be decisive of the question for the obvious reason that the work which is done speaks of the undertaking given by a medical practitioner with regard to the treatment of persons.

22. Mr. Advocate General, in my opinion, rightly contended that the medical practitioners were really undertaking and offering services and if the under taking was treated as a contract between the medical practitioner and the persons in charge of preparation of medical list, namely, the State or the Corporation it was a mere contract for services and not a contract of services. This proposition was extracted from the decision in Gould v. Minister of National Insurance, reported in (1951) 1 K.B 731 and also in (1951) 1 All E.R 368. That case was on the construction of the provisions of the National Insurance Act, 1946 and the question was whether the appellant in that case who was a music-hall artist and who had entered into a written contract with the second respondent acting on behalf of several companies, under which he undertook to appear in a variety “act” at a theatre for one week from September 6, 1948 was an employed person within the meaning of the Act. The first respondent, the Minister of National Insurance, had decided that during that week the appellant was not an “employed person” within the meaning of the Act it was held that the question would turn on the particular facts of each case and the authority of cases based on different statutes would not always be of assistance. It was said that it would be easy in some cases to say that the contract was a contract of service and in others that it was a contract for services, but between these two extremes there was a large number of cases where the line was much more difficult to draw. In Gould's case it was said with reference to the observations of Lord Than-kerton in the case of (1946) 174 LT 417 to which I have already referred and in particular the test of master's right to control the method of doing the work that there was nothing in the contract which imposed on the appellant any control over the method in which he performed his act. It was said in the case of Gould, (1951) 1951-1 KB 731 : 1951-1 All ER 368 that the management had the right to prohibit any part of the performance which they thought might offend the audience, and that the right was reserved to require the appellant to produce a new song or sing on old one, and so on, but the performing of the act depended entirely on the skill, the personality and the artistry of the appellant, and this was a matter with which the contract gave the management no right to interfere. In the present case the undertaking that the appellant medical practitioner gave was for treatment of the insured persons and that, undertaking was making an offer to give services of medical treatment to the insured persons. It was, therefore, rightly said by Mr. Advocate General that the position in the present case is one of contract for services and it was not an appointment by the State of West Bengal.

23. With regard to the method of doing the work it was said by Counsel for the appellant that there was some restriction on the work to be done by the medical practitioner and reference was made to paragraph 6 of schedule 3 to the Rules which relates to the limitation of practitioners' list. That limitation, in my opinion, has no relevance to the method of doing the work nor has it any control over the work.

24. The question of removal which was said by Counsel for the appellant to be within the province of the State was a matter within the reciprocal rights of the medical practitioner and of the State or the Corporation. The remuneration which was payable to the insurance medical practitioner was paid not by the State Government or out of the fund of the State but was paid out of the contribution of the employers of the insured persons and of the Corporation. In this connection reference may be made to two sections to which the learned Judge also referred. They are section 3 which enacts that the Corporation shall be a body-corporate and section 26 which says that all contributions paid under this Act and all other monies received on behalf of the Corporation shall be paid into a fund called Employees' State Insurance Fund which shall be held and administered by the Corporation for the purposes of this Act. The learned Judge in dealing with the contention of the appellant said that the fund out of which the medical practitioner received his remuneration was a fund belonging not to the Government but to the Corporation. There was no doubt some amount of superintendence and control of the work of the medical practitioners under Rule 6 of Schedule I of the West Bengal Employees' State Insurance Rules, 1955 but the Government did not seem to have any power to direct the doing of the work or power to direct the manner in which the work is to be done. It will also appear from section 28 in the Act of 1948 that the purposes for which the fund might be spent were inter alia on account of payment of fees and allowances to members of the corporation and the payment of salaries, leave and joining allowances and also the payment to the medical practitioners in connection with the provision of medical treatment and attendance of insured persons. Therefore these provisions indicate beyond any measure of doubt that the fund is not of the State and the expenses are made out of a fund which does not vest in the State.

25. Mr. Advocate General also relied on the decision in Pauley's case, reported in 1953 (1) All E.R 226 in support of the proposition that a contract of service was distinct from a contract for service and the observations in 1951-1 KB 731 : 1951-1 All ER 368 were referred to in Pauley's case.

26. Mr. Advocate General rightly relied on the decision of the Supreme Court in the Gram Panchayat case, reported in AIR 1959 SC 589 and the observation at page 595 of the report in support of the contention that the services rendered by the medical practitioner in the present case in the scheme were not exercise of functions in the service of the State or the Government

27. It was contended by Counsel for the appellant that the directive principles adumbrated in Articles 39, 41 and 47 of the Constitution contemplated that the Government had to make contribution towards securing health and education of workers and further that the State was to make an effective provision for, securing the public assistance in case of old age, sickness and disablement and the State was under the duty to raise the level of nutrition and standard of living. In the context of the directive principles the Act was contended to be an expression of the directive principles in the Constitution and as a pattern of one of the forms and norms of multifarious activities of the Government in a welfare State. But these Articles in my opinion do not assist the appellant in any manner whatever in establishing the case that the medical practitioner is a civil post under the Government. A contention was advanced relying on the decision in the case of Lokanath Misra v. State of Orissa, reported in AIR 1952 Ori 42 where it was said that the functions of the Government were to be considered in the light of the principles of welfare State in finding out whether the nature of control exercised by the Government authorities was constitutional or not. I am unable to see that this decision can give any support to the appellant's case.

28. It was also contended by Counsel for the appellant relying on the decision of M. Verghese v. Union of India reported in AIR 1963 Cal 421 that the welfare State in setting up the system of medical practitioners was exercising governmental function. In the case of Verghese the question arose as to whether a person who was in the employment of Durgapur Steel Project came within the provisions of Article 311 of the Constitution. A corporation set up under the statute has its own authority as embodied in the statute and one cannot go beyond the four corners of the Statute. In the present case the statute and the Rules contemplate a system of making a panel of medical practitioners for giving services to the insured persons. These medical practitioners apply themselves for inclusion in the medical list. Their payment is not out of the government revenue but out of a special fund consisting of contribution made by the employers. Therefore such a fund over which the government has no legal title and which is vested in the corporation under the combined effect of sections 3 and 26 of the Act to which I have already referred indicates beyond any doubt that the remuneration of medical practitioners is paid not out of the public exchequer. The contention of Mr. Advocate General is correct that medical practitioner in the present case gave nothing more than a voluntary undertaking to offer services in lieu of fees for professional service rendered and the inclusion of names in the list and the preparation of the list did not have the effect of making the medical practitioner an employee of the State.

29. The second contention which was advanced in the present case is not discussed in the judgment of the trial court the contention was based on paragraph 14 in schedule I to the Rules which states that the terms of service relating to the matters mentioned in paragraph 1 of the Schedule to the Rules attract rules 21 to 25. Paragraph 14 states that rules 21 to 25 will apply first in matters of investigation between insurance medical practitioners and their patients and other investigations to be made by the Medical Service Committee and the action which may be taken by the Director of Health Services West Bengal, as the result of such including the withholding of remuneration from the insurance medical practitioner where there has been a breach of the terms of service and secondly in investigation in respect of prescribing treatment, thirdly in investigation of certification and finally in investigation of record-keeping. Rules 21 to 25 contemplate provision for setting up of a Medical Service Committee and investigation by Medical Service Committee of any question between insurance medical practitioners and the persons who claim to be entitled to treatment from that practitioner in respect of treatment rendered by the medical practitioner or alleged failure to render treatment. The Committee gives a hearing and thereafter there is a report and the rules contemplate action on the report. Counsel for the appellant contended that after complaints had been made by Karuna there should have been an investigation. The authorities have not proceeded on the basis of any investigation as contemplated in these rules. Paragraph 11 in the first schedule which speaks of removal from medical list is a provision independent of any investigation as contemplated in the rules. It may be that it was open to the authorities to make an investigation but Mr. Advocate General was right in his contention that if there was any investigation by the Medical Service Committee the appellant would have been given opportunities in that behalf. In view of the fact that there was no such investigation by the Medical Service Committee the rules have no application in the present case. The removal of the name in the present case was by virtue of paragraph 11 of the first schedule and such a removal of name from the list does not contemplate giving any reason. As I have already indicated, it is open to the medical practitioner as also to the State Government, to have the names removed by giving notice as contemplated in paragraph 11. Paragraph 11 also contemplates that in the case of gross negligence and misconduct there will be one month's notice and it is further said in the said paragraph that if there is any representation that the inclusion of a practitioner would be prejudicial to the efficiency of State Insurance Scheme then he shall not, except with the con-Bent of the corporation and subject to such condition as the corporation may propose, be entitled to have his name removed from the list pending the termination of the proceedings on such representations. In the present case there was neither any allegation of gross negligence or misconduct which occasioned the removal nor was there any case which made the inclusion of the name of the practitioner prejudicial to the efficiency of State Insurance Scheme. Both the contentions of the appellant fail the Judgment is affirmed. The appeal is dismissed for the reasons given above. Each party will pay and bear its own costs.

S.K Mukherjea, J.:— I agree.

30. Appeal dismissed.