(1) On a reference under S. 10(1)(c) of the Industrial disputes Act, the Industrial Tribunal, Madras, adjudicated that the non-employment from a certain date of Dr. Srinivasan, whose cause has been espoused by the second respondent Union, was not justified. It was of the view that, in the circumstances, no reinstatement should be directed but it would meet the ends of justice if the specified sum of money was directed to be paid to him. this petition is to quash the Tribunal's award.
(2) On behalf of the petitioner two points have been urged. The first is that Dr. Srinivasan was not a 'worker' within the meaning of the definition of that term in the Industrial disputes Act. The second is that the second respondent Union is a general Union and was not competent to take up the cause of Dr. Srinivasan and raise an industrial dispute. As part of this point it is also contended that, in any case, there was no community of interest between Dr. Srinivasan and the other workers under the particular management, and, therefore, no collective dispute in respect of the non-employment of Dr. Srinivasan could possibly arise. I think the second point may conveniently be disposed of first. The argument for the second respondent in respect of it is that although the point was raised in the counter-statement filed by the Management before the Tribunal, no evidence was let in and no argument was addressed on the question. It is true that when a challenge is made to the validity of an industrial dispute on the ground of competence on the part of the Union to take up the cause of the aggrieved workman, it is for the Union to establish its competence and the validity of the dispute. In this case it appears that, on behalf of the workmen, only the doctor was examined.
Sri Govind Swaminathan for the petitioner states that as in the chief-examination of the doctor no point was elicited in respect of the competency of the community of interest, there was no obligation on the part of the Management to cross-examine him on the point. Whether this be so or not, it is quite clear that the parties before the Tribunal concentrated solely on the question whether the doctor was a 'workman'. Sri Govind Swaminathan candidly stated that on account of that no argument was addressed to the Tribunal on the question of competency or of the community of interest in respect of the point as to whether the dispute was an individual one or a collective one but what should be noted is that this Court sitting in certiorari will not upset the award of a Tribunal on a point not argued before it and, therefore, it had no occasion to decide the same. On this view, the second point urged for the petitioner cannot be accepted.
(3) It seems to me that the first point for the petitioner is of substance. Before dealing with this point, it is necessary to notice the actual finding recorded by the Tribunal. It observed, after reviewing the evidence on the matter, that the duties of Dr. Srinivasan as a medical officer were both professional and supervisory. But at the same time, it considered that his professional work was the main and primary function and the supervisory work was only secondary or ancillary to his main function. In reaching this conclusion the Tribunal kept in view certain tests which may be set out in its own language.
'And so we have to examine the duties which Dr. Srinivasan was performing as medical officer of Murugalli hospital and its dispensaries and find out whether those duties were professional or supervisory (or even managerial or administrative) and further assess whether his professional duties were his main functions or whether his supervisory or managerial duties ere his main functions. If his duties were both professional and supervisory or managerial, and the professional duties constituted the main or primary part of his functions, then he would be a workman....If on the other hand, the supervisory or managerial or administrative functions of the doctor are his main duties, and his professional work is only secondary, he will not be a workman'.
It is this approach of the Tribunal to the question that was under attack on behalf of the petitioners.
(4) The relative statutory provisions to be noticed in deciding the point are the definition of 'workman' and the exceptions therein and also the definition of 'industrial dispute'. An 'industrial dispute', as defined in the Act, means a dispute or difference between the employer and his workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person. a 'workman' is defined to mean a person employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward. the remaining part of the definition is not material. But from the scope of the definition of 'workman' are taken out certain categories of persons mentioned in clauses (i) to (iv). The word 'supervisory' (technical) as well as the exceptions were added by Act 36 of 1956. Clauses (iii) and (iv), on which turned the argument, are to the effect that a person who is employed mainly in a managerial or administrative capacity, or who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature, is not a workman.
Before the amendment, the tribunals in the country, and following their opinion, the Courts were of the view, in deciding whether a person was a workman within the scope of the definition, that the substance of the matter should be taken into account and not merely the nomenclature of the employment, and in regarding the substance it is the main duties or functions which are discharged by the person concerned that should from the basis for a determination of the question and not the incidental or ancillary duties performed by that person. after the amendment, it is argued, the position is not the same. according to Sri Govind Swaminathan, unlike in clause (iii) in the definition of 'workman' in clause (iv) the word 'mainly' has not been used and that this shows that the legislature while enacting clause (iv) did not think that, for the purpose of that clause, the person should be employed mainly in a supervisory capacity. Learned counsel says that to interpret clause (iv) did not think that, for the purpose of that clause, the person should be employed mainly in a supervisory capacity. Learned counsel says that to interpret clause (iv), in any other manner would be adding to its language. On that view of the learned counsel, he argues further that the approach of the Tribunal, as I mentioned, to the question whether Dr. Srinivasan was a workman was wrong and showed a misconception of the true scope of the definition of 'workman' as it stands today. He adds that merely because as a technical man Dr. Srinivasan was called upon to do the normal work of a medical man, that did not detract from the fact that he was employed in a supervisory capacity. Learned counsel says that the very basis for the appointment of Dr. Srinivasan in a supervisory capacity was his technical knowledge and on that account the nature of his work in a supervisory capacity cannot be regarded as merely technical so as to put him in the category of a workman as defined.
(5) On the other hand, Sri Dolia for the second respondent, urges that the amendment to the definition of 'workman' in 1956 has made no difference to the fact that what in decisive, as to whether a person is a workman or not are the main functions or duties that he discharges. According to him, the word 'supervisory' in S. 2(s) has to be read in the sense of mainly supervisory, and, in the same way, should be read the words 'supervisory capacity' in clause (iv) of that provision. He points to decided cases, before and after the amendment, in support of his proposition. There can be no doubt that for the purpose of S. 2(s) the test, which is generally applicable, is to find, notwithstanding the nomenclature of the employment, what the main functions or duties are, that are discharged by the person concerned. In most cases this test may be decisive. But, in my view, there may be facts and circumstances to which that test may not be apposite of conclusive.
In the instant case, we are dealing with a doctor who has been employed for a particular purpose, on account of his technical qualification. In such a case, it is the purpose of the employment rather than the work sheet is done on account of the technical qualification and equipment, that should weigh in deciding whether he is a workman within the definition. The original appointment order on probation and the following covenant which the doctor entered into for his services, clearly show hi duties. They are: (1) management and running of a Central Hospital on Murugalli estate, (ii) supervision over the work of the hospital staff, (iii) supervision of the dispensaries, (iv) inspection of lines and quarters, (v) malaria control work, and (vi) supervision of creches. In addition to these duties, the doctor also attended to patients. Great reliance has been placed by Sri Dolia on the fact that major part of the doctors time was taken up in attending to patients and comparatively only a little time was spent on supervisory work. On that basis he says that the doctor mainly did technical or professional work by attending to patients and in that sense he was mainly a technical man rather than he was employed in a supervisory capacity.
In urging that contention, learned counsel as I said, has pressed into service a number of decided cases on different facts in which the test has been applied as to what is the main function or duty discharged by the person concerned. That is also the view, as already indicated, that prevailed with the Tribunal in this case. In my opinion, this view overlooks the fact that Dr. Srinivasan was charged with particular duties of supervisory character, because of his technical qualification and level of his ability and skill. It is that qualification which the management recognised as enabling the doctor to be in charge of the supervisory work of the nature mentioned above. That being the purpose of the employment, merely because, being a technical man, Dr. Srinivasan was called upon to attend to patients, it could not be stated that he did any the less supervisory work. It may be that if the duties are measured by time, he spent more time in attending to patients. But that, I consider, cannot be regarded as determining the main functions of Dr. Srinivasan. The main functions for which he was appointed may not occupy as much time as the medical attendance on patients. All the time, the fact that it is a technical employment for a particular purpose, because of particular qualification, should not be lost sight of in determining the character of the employment.
The test to be applied, to my mind, to cases of technical employment, such as in this case, should be the purpose for which the employment is made, irrespective of whether the performance of duties may or may not occupy the entire time of the employee. That is because the employment is made on the basis of the particular level of professional efficiency and technical qualifications. If an employee is found suitable for supervisory work, because of those reasons it cannot be said that his functions are mainly those of a medical attendant, as on account of his professional qualification, he happened to be engaged in the capacity as well. On that view, I think the matter should go back. I do not think, therefore, that it is necessary to deal with the several cases cited before me, or even the question whether, on the evidence, it can be said whether at all Dr. Srinivasan was employed in a supervisory capacity. Sri Dolia attempted to show that on the evidence of Management which is available on record, it could be established that Dr. Srinivasan was not at all entrusted with supervisory work but that, I think, is a matter for the Tribunal to decide.
(6) The award of the Tribunal is quashed and the petition is allowed. The Tribunal will dispose of the reference afresh. Both parties will be at liberty to adduce such further evidence as they may desire. They will also be at liberty to urge such fresh points of fact and law as may occur to them, including the question of the competency of the Union and the community of interest I have referred to above. No costs.
(7) Petition allowed.