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Dr. Surendra Kumar Shukla v. Union Of India And Others
Factual and Procedural Background
Until 1973, the Railways employed Assistant Medical Officers Class II, recruited through the Union Public Service Commission. After 1-1-1973, the post was upgraded to Class I and designated Assistant Divisional Medical Officer, also recruited via the Union Public Service Commission. Due to non-availability of Class I officers, the Railways Board authorized ad hoc appointments of Assistant Medical Officers Class II by General Managers of various Railways, with a lower pay scale than Class I officers.
The petitioner was recruited ad hoc as an Assistant Medical Officer Class II in 1975 for six months or until a regular Class I officer was available, with service terminable without notice. In 1979, the petitioner’s services were terminated, prompting him to file Writ Petition No. 48 of 1980 in the Lucknow Bench. An interim order allowed the petitioner to continue unless replaced. The respondents claimed replacement had occurred. The petitioner was reappointed on 5-9-1980 under similar terms. Subsequently, on 11-11-1983, the petitioner’s services were terminated again, and a replacement appointed. This termination order is challenged in the present writ petition.
Legal Issues Presented
- Whether the petitioner qualifies as a ‘workman’ within the meaning of the Industrial Disputes Act, 1947.
- Whether the termination of the petitioner’s services without compliance with Section 25-F of the Industrial Disputes Act renders the termination order invalid.
- Whether the petitioner can seek relief under Article 226 of the Constitution of India despite having an alternative remedy under the Industrial Disputes Act.
Arguments of the Parties
Petitioner’s Arguments
- The petitioner contended he was a ‘workman’ under the Industrial Disputes Act and that the termination order violated Section 25-F, which requires prior compliance before termination.
- The petitioner asserted there is no substantive difference between the duties of Assistant Divisional Medical Officer Class I and ad hoc Assistant Medical Officer Class II, and that the latter often functioned in higher capacity without promotion or allowances.
- It was argued that the right to livelihood, enshrined under Article 21 of the Constitution, protects the petitioner’s employment and justifies relief under Article 226.
Respondents’ Arguments
- The respondents denied the petitioner’s status as a ‘workman’ and contended that Section 25-F of the Industrial Disputes Act did not apply.
- They emphasized that the Assistant Medical Officer Class II post was ad hoc and subordinate to Assistant Divisional Medical Officer Class I, with no regular post existing for Class II officers.
- The respondents relied on a Patna High Court Full Bench decision which refused relief under Article 226 due to insufficient evidence of ‘workman’ status, suggesting the petitioner should pursue remedies under the Industrial Disputes Act.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Dr. P.N. Gulati v. The Presiding Officer, Labour Court, Gorakhpur | Held that a doctor’s work is technical and qualifies as a ‘workman’ under Section 2(s) of the Industrial Disputes Act. | The Court relied on this to support the petitioner’s classification as a workman. |
| Arkal Govind Raj Rao v. CIBA Geigy of India Ltd., Bombay | Clarified the test for ‘workman’ status is the primary and dominant nature of duties performed, not incidental managerial or supervisory roles. | The Court applied this test to conclude the petitioner was primarily engaged in technical medical duties, qualifying as a workman. |
| S.K. Verma v. Mahesh Chandra | Earlier precedent on the interpretation of ‘workman’ under the Industrial Disputes Act. | Referenced by the Supreme Court in Arkal Govind Raj Rao to refine the test for workman status. |
| Ved Prakash Gupta v. Delton Cable India (P) Ltd. | Considered in conjunction with other cases to determine ‘workman’ status. | Supported the principle that the primary nature of duties is determinative. |
| Olga Tellis v. Bombay Municipal Corporation | Recognized the right to livelihood as a fundamental right under Article 21 of the Constitution. | The Court invoked this to emphasize the petitioner’s right to employment and livelihood protection. |
| Dr. Sudha Bindu v. The Union of India (Patna High Court Full Bench) | Held that insufficient evidence on workman status precluded relief under Article 226, suggesting remedy under the Industrial Disputes Act. | The Court distinguished the present case by noting sufficient evidence was available to determine workman status. |
Court's Reasoning and Analysis
The Court examined the nature of the petitioner’s duties and the status of the post held. It noted that while Assistant Divisional Medical Officers have supervisory roles, the petitioner’s primary function was technical medical treatment of railway employees and their families. Supervisory duties were incidental and did not negate his classification as a ‘workman’ under Section 2(s) of the Industrial Disputes Act.
The Court observed that the respondents admitted non-compliance with Section 25-F of the Industrial Disputes Act before terminating the petitioner’s services. Established legal principles dictate that such non-compliance renders termination orders null and void, and the employee is deemed to continue in service.
The Court further considered the respondents’ objection that the petitioner should be relegated to remedies under the Industrial Disputes Act and not seek relief under Article 226. It distinguished this case from the Patna High Court Full Bench decision by noting that sufficient evidence was present to determine the petitioner’s status as a workman.
Additionally, the Court recognized the petitioner’s right to livelihood under Article 21 of the Constitution as a significant factor against denying relief on the ground of alternative remedies.
Holding and Implications
The Court quashed the impugned termination order dated 11-11-1983 and held that the petitioner shall be deemed to have continued in service. The petitioner is entitled to all emoluments and benefits as if the termination order had not been made, along with costs.
The direct consequence is the reinstatement of the petitioner’s employment status with back benefits. The Court did not set any new precedent beyond affirming established principles regarding workman status, compliance with Section 25-F, and the protection of the right to livelihood under Article 21.
B.N Sapru, J.:— Till the year 1973 there used to be Assistant Medical Officers Class II in the Railways. Recruitment was through the Union Public Service Commission. After 1-1-1973 the post of Assistant Medical Officer Class II was upgraded to Class I and they were designated as Assistant Divisional Medical Officer. These persons were again recruited through the Union Public Service Commission. Due to non-availability of Class I Assistant Divisional Medical Officer, the Railways Board authorised the General Managers of different Railways to make ad hoc appointments of Assistant Medical Officer in class II. The scale of pay of the Assistant Medical Officer Class II was lower than the pay scale of Assistant Medical Officer in Class I.
2. The System of making ad hoc appointments in Class II as Assistant Medical Officer appears to have continued even till now. The petitioner was recruited on an ad hoc basis as Assistant Medical Officer in 1975. The appointment was for six months or till a regular Assistant Divisional Medical Officer recruited through the Union Public Service Commission became available and the services could be terminated at any time without notice. In the year 1979 the petitioner's services as Assistant Medical Officer Class II were terminated. The petitioner filed a Writ Petition in the Lucknow Bench of this Court being Writ Petition No. 48 of 1980, Dr. Devendra Kumar Shukla…Petitioner v. Union Of India & Others…S, which was admitted and the Court passed an interim order to the effect that unless some other person had been appointed to the post held by the petitioner, he would continue as Medical Officer. In the counter-affidavit, it is stated that since some other person had joined in place of the petitioner, the interim order could not be given effect to. The petitioner made a representation to the Ministry of Railways through the General Manager to allow the petitioner to continue. Consequent upon the order of the Railways Boards, the petitioner was given an appointment order by the General Manager of the North Eastern Railway dated 5-9-1980. This appointment was again for six months or till a candidate approved of by the Union Public Service Commission became available. Then followed an order dated 11-11-1983 terminating the petitioner's services and appointing Smt. Radha Sinha on an ad hoc basis in his place. It is this order which is the subject of challenge in this writ petition.
3. Sri Shanti Swarup Bhatnagar appearing on behalf of the petitioner has attacked the order dated 11-11-1983 passed by the General Manager, North Eastern Railway, on several grounds. It is unnecessary to deal with all of them because the petition can be disposed of on one question alone.
4. It is submitted by Sri Shanti Swarup Bhatnagar that the petitioner was a ‘workman’ within the meaning of the Industrial Disputes Act and as his services had been terminated without complying with the provisions of Sec-25-F of the Industrial Disputes Act (hereinafter to be referred to as the Act 8) the order is invalid.
5. It is now well settled that if the services of a workman are terminated by an employer without complying with the provisions of Section 25-F of the Act, the order of termination is null and void and the employee is deemed to continue in service.
6. In the supplementary counter affidavit filed on behalf of the respondents the provisions of Paragraph 203(C)(17) of the Indian Railway Medical Manual, Chapter II, have been reproduced which gives the duties of an Assistant Divisional Medical Officer as under:
“Assistant Divisional Medical Officer.—He will treat Railway patients and meet other administrative requirements where he is incharge of a hospital or a health unit or any other institution, he will be responsible for its establishment and administration.”
7. In paragraph 5 of the supplementary counter affidavit, it is stated as follows:—
“That the Assistant Divisional Medical Officer/Assistant Medical Officer has to perform supervisory and managerial functions as well under the Assistant Divisional Medical Officer/Assistant Medical Officer. The staff is also under their administrative control. They are also required to place indents for medicines and is in overall control of the health unit.”
8. It will be immediately seen that paragraph 203(C)(16) prescribes the duties of an Assistant Divisional Medical Officer and not those of an Assistant Medical Officer Class II.
9. In paragraph 15 of the writ petition, it was asserted that there is no distinction between the functions and duties of Assistant Divisional Medical Officer Class I and the ad hoc doctors appointed as Assistant Medical Officers Class II and it is further asserted that the postings are interchangeable. It is also asserted that the Assistant Medical Officer Class II are allowed to function and officiate as in-charge in higher positions though they have not been favoured with any orders of promotion or officiating allowance.
10. In paragraph 19 of the counter-affidavit, the assertion made in paragraph 15 of the writ petition are described as wholly misconceived and wholly irrelevant. It is then stated that there is no regular post of Assistant Medical Officer Class II. It appears from the reading of the counter affidavit that the Assistant Medical Officer Class II are there only to assist the Assistant Divisional Medical Officers temporarily.
11. Sri Raja Ram Agrawal and Sri Lalji Sinha appearing on behalf of the respondents have urged that the petitioner was not a ‘workman’ within the meaning of the Act and consequently the provisions of Section 25-F did not apply in the case of the petitioner.
12. The question whether a doctor is a ‘workman’ within the meaning of the Act was considered by a Division Bench of this Court in the case of Dr. P.N Gulati v. The Presiding Officer. Labour Court, Gorakhpur 1. It was held that a doctor's work is of a technical nature and as such he is a workman within the meaning of Section 2(s) of the Act.
13. The question as to when a person is a ‘workman’ within the meaning of Section 2(s) of the Act has been considered by the Supreme Court in several cases. The latest decision is in the case of Arkal Govind Raj Rao v. CIBA Geigy of India Ltd. Bombay 2. After notice its earlier judgment in the case of S.K Verma v. Mahesh Chandra 3 and its decision in Ved Prakash Gupta v. Delton Cable India (P) Ltd. 4, it was observed by the Supreme Court in paragraph 16 as follows:
“The test that one must employ in such a case is what was the primary, basic or dominant nature of duties for which the person whose status is under enquiry was employed. A few extra duties would hardly be relevant to determine his status. The words like managerial or supervisory have to be understood in their proper connotation and their mere use should not detract from the truth.”
14. We have, therefore, to examine what was the primary duty for which the petitioner was employed. It is clear from the facts recited above that the primary purpose of the respondents in employing the Assistant Medical Officer Class II is to treat the patient who are employees of the Railways and their families. The duties of a Doctor are technical. Any supervisory functions such a Doctor may exercise, are incidental to the discharge of his duties as a Medical Attendant of the Railway employees and their families. Judged in this light, the petitioner was a ‘workman’ and not employed in supervisory capacity, within the meaning of Section 2(s) of the Act.
15. The provisions of Section 25-F have admittedly not been complied with before the impugned order of termination was made and as such the impugned order would be void and of no legal effect and the petitioner would be deemed to have continued in service despite the impugned order of termination.
16. Here we must notice the objection of the respondents that in case this Court comes to the conclusion that the petitioner is a ‘workman’, he must be relegated to his remedy under the Act and no relief should be given to him under Article 226 of the Constitution of India.
17. Strong reliance in this connection is placed by the respondents upon a Full Bench decision of Patna High Court in the case of Dr. Sudha Bindu v. The Union of India (Civil Writ Jurisdiction No. 3796 of 1982) decided on 28-2-1983. In that case, the Patna High Court held that there was no sufficient evidence before the Court to determine whether the Assistant Medical Officer Class II was or was not a ‘workman’ and as such refused to interfere under Article 226 of the Constitution of India. It was left open to the petitioner in that case to agitate the question as to whether she was or was not a ‘workman’ in appropriate proceedings.
18. In the case before us, the duties performed by the petitioner have been placed before this Court and this Court, has no difficulty in determining the question which could not be determined by the Patna High Court.
19. We must also say that the Railways have been disputing the petitioner's status as a ‘workman’ and it was so even during the course of arguments. It is not, therefore, proper for the Railway Administration to urge that the petitioner should have had the wisdom and the knowledge to know that he was a ‘workman’ and his remedy was under the Act. The petitioner, though he raised this plea, may himself have been doubtful as to whether the plea would succeed and, therefore: he came to this Court under Article 226 of the Constitution of India, as apart from this question, he has other questions to urge.
20. In the end, we must say that the petitioner has been out of employment since 1983 and it will be very hard to drive him to proceedings under the Act specially when we find that the impugned order is void. It is also urged by Sri Shanti Swarup Bhatnagar that the right to livelihood, which, in this case, mean employment of the petitioner, is also protected by Article 21 of the Constitution of India and he submits that as such this writ petition should not be rejected on the ground that the petitioner has an alternative remedy under the Act. The right to livelihood has been recognised as a fundamental right protected by Article 21 of the Constitution of India in the case of Olga Tellis v. Bombay Municipal Corporation 5 In respect of the employees, like the petitioner, the right to employment would be a right protected under Article 21 of the Constitution of India as his livelihood depends on his continued employment. This is an additional circumstance for not relegating the petitioner to his remedy under the Act.
21. In the result, the writ petition suceeds, and the impugned order dated 11-11-1983 (Annexure 4 to the writ petition) is quashed. The petitioner shall be deemed to be in service and shall be entitled to his emolum ents etc. to which he would have been entitled had the impugned order been not made. The petitioner is entitled to his costs.
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