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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO.35821 OF 2013                                                                  (CC 18666/2013)

E.S.I.C. Medical Officer’s Association … Petitioner

Versus

E.S.I.C. & Anr. … Respondents

J U D G M E N T

K.S. Radhakrishnan, J.

1. Delay condoned.

2. We  are,  in  this  case,  concerned  with  the  question  

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”).

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3. Petitioner  is  an  Association  of  medical  officers  

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 referred the above dispute on 19.11.1992 for  

adjudication  by  the  Central  Government  Industrial  

Tribunal,  New Delhi  (CGIT).  CGIT in I.D.  No.104 of 1992  

answered  the  reference  in  favour  of  the  Petitioner  

Association holding that the medical doctors discharging  

functions  of  medical  officers  are  “workmen”  within  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 skilled nature.  

Further,  it  was  also  observed  that  engagement  of  the  

medical  doctors  in  intellectual  activities  of  treating

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patients  cannot  take  them  out  of  the  definition  of  the  

expression “workmen”.

4. Aggrieved  by  the  above-mentioned  Award,  the  

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) 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  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  

Constitution of India.  Learned counsel also submitted that  

the High Court has committed error in placing reliance on

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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 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 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  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 were getting the said allowance and,

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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  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 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  and  diagnosing  patients  and  prescribing  

medicines  to  them  and  they  are  basically  and  mainly  

engaged in professional and intellectual activities to treat  

patients.    This  Court  in  Heavy  Engineering  

Corporation Ltd. V. Presiding Officer, Labour Court  

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& 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  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 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 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 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

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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  2, whenever he was on 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 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 judgment in paras 38 to 40, this Court  

held as follows :-

38. Furthermore, if we draw a distinction between  occupation  and  profession  we  can  see  that  an  occupation is  a  principal  activity  (job,  work  or  calling) that earns money (regular wage or salary)  for  a  person and a  profession is  an occupation  that requires extensive training and the study and  mastery of specialised knowledge 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 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

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accountability.  Each  of  these  professions  also  provides  and  requires  extensive  training  in  the  meaning,  value and importance of its  particular  oath in the practise of that profession.

39. A  member  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  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 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  a  teacher  employed  by  an  educational  

institution,  who  imparts  education  (whether  at  primary,  

secondary,  graduate  or  post-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.  

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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  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, 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. Sundarambal’s  

case  (supra)  and in  Muir Mills’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.

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…..………………………J. (K.S. Radhakrishnan)

………………………….J. (A.K. Sikri)

New Delhi, November 21, 2013