1. The petitioner in this Writ Petition, Dr. T.N. Lakshmipathi was engaged by respondent 1, the Standard Vacuum Oil Company, Madras, in 1944, and in 1946, he entered into an agreement regarding his conditions of service with respondent 1. One of the conditions of this agreement was that the service would be terminable at the instance of either party by two months' notice. Belying on this clause, respondent 1 company terminated the petitioner's service on 19 August 1958, to be effective from 1 September 1958. Urging that he was a person employed within the definition in Section 2(12) of the Madras Shops and Establishments Act of 1947, the petitioner sought for relief under Section 41 of the above Act from respondent 2, the Additional Commissioner for Workmen's Compensation, Board of Revenue, Chepauk, Madras. The respondent 2, after considering the evidence before him adduced by the petitioner, as well as respondent 1 company, came to the conclusion that the petitioner's employment did not satisfy the definition in Section 2(12)(iii) of the above Act, and dismissed the appeal. The present writ petition is filed against the above order.
2. The contention of the petitioner was that a careful analysis of the nature of his duties would show that he was a 'person employed' within the meaning of Section 2(12) of the Madras Shops and Establishments Act and that respondent 2 failed to exercise his Jurisdiction in deciding the above question, without taking into account all the materials placed before him. This claim was disputed in the counter-affidavit of respondent 1 who urged that there was no error of law apparent on the face of the record justifying the interference with the order of respondent 2 in a writ proceeding. It was urged specifically that the work on which the petitioner was employed was to render medical service to the employees of respondent 1 and this was in no way connected with the work of import, storage, or distribution of petroleum product which is the business of respondent 1 company.
3. Section 2(12) of the Madras Shops and Establishments Act, 1947, defines a 'person employed' as
(i) in the case of a shop, a person wholly or principally employed there in connexion with the business of the shop;
(ii) in the case of a factory or an industrial undertaking, a member of the clerical staff employed in such factory or undertaking;
(iii) Jin the case of a commercial establishment other than a clerical department of a factory or an industrial undertaking, a person wholly or principally employed in connexion with the business of the establishment, and includes a peon....
It is common ground that respondent 1 company, though under, a single management, has two premises called the Kasimode terminal and the Royapuram terminal which are treated as 'factory' within the meaning of the Factories Act, 1948, while the head office or territory office does not come under the Factories Act, and it could be more properly treated as a commercial establishment 'as defined in Section 2(3) of the Act. The petitioner's contract with the company was marked before the Assistant Commissioner, as Ex. A1, and I was given an opportunity of perusing it. Under the contract, the petitioner was required to visit Kasimode and Royapuram terminals and the territory office daily, starting from the Kasimode terminal at 9 a.m. and devote adequate time to each of these places
to give adequate time to each of these places, to give adequate and necessary medical attention to all members of the staff requiring attention.
He has also got to 'attend to accident oases occurring while present at the terminals.' In other cases of accidents it might be necessary for the petitioner to visit the injured persons either at the hospital or at their home for investigation and report. In such oases he would be given visiting fee. There is also a clause that, if, for any reason, the petitioner could not attend the territory office or terminals for any period, such as during illness, absence from Madras, etc., the petitioner should arrange for a qualified doctor to attend in his place. There is a separate fee for Kasimode, Royapuram and the territory office amounting to Rs. 350 in all. Subsequently this was increased. The petitioner was also required to examine candidates for employment in the territory office or terminals with a lee of Rs. 5 per candidate, payable by the candidate himself. There is a final clause that under the agreement the petitioner would not be considered as an employee of the company and that the fees stated above will cover all the services rendered by him. He was not entitled to any other remuneration or benefits, such as company's annuity and Insurance plan. The agreement concluded with a clause that the agreement was terminable with two months' notice at the instance of either party.
4. An examination of the above contract shows clearly that the petitioner was engaged as a medical officer for attending on the employees of the company in its three establishments, dally, at a prescribed time, and for which he was paid a fee in the shape of a retainer. With the passage of time some additional duties were given to him but they were all duties connected with the work of a consulting medical officer for which he was engaged on the above contract. The important thing to notice is that he could, at his discretion, engage another medical officer to attend to the same duties in his absence. This is a clear pointer to his status being more than of a consulting physician who was being paid a retainer fee, rather than that of a paid employee.
5. The further and more important question is whether the petitioner falls within the definition of 'person employed' in Section 2(12). So far as the factory portion of the establishment is concerned, he would be a 'person employed,' if he is a member of the clerical staff under Section 2(12)(ii). The petitioner is admittedly not one. In the case of the head office, which, as mentioned above, should be viewed as a commercial establishment, to satisfy the test in Section 2(12)(iii), the petitioner should be a person wholly or principally employed in connexion with the business of the establishment. The business of this establishment has been explained by respondent 1 as import, storage and distribution of petroleum products and this is not controverted. Now the question is whether the person who is engaged as a medical officer to attend to the health needs of the employees of a commercial establishment under a contract with a retainer fee, can be described as a person wholly or principally employed in, connexion with the business of the establishment. The word 'wholly' appears to indicate that the entire scope of the duties of his employment was in connexion with the business. The word 'principally' would imply that the principal scope of his employment with the concern was in connexion with the business of the establishment, even if he has some other less important duties. This takes us to the consideration of the question as to what is meant by 'employment in connexion with the business.'
6. During the hearing of the arguments before me, my attention was drawn to the definition of 'worker' in the Factories Act in Section 2(1). 'Worker' is defined as
a person employed directly or through any agency, whether for wages or not, in any manufacturing process; or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing: process, or the subject of the manufacturing process.
Therefore for the purpose of defining worker, a direct concern in the work of the manufacturing process, or any other kind of work incidental to, or connected with, the manufacturing process or the subject of the manufacturing process, is contemplated. So, stress is laid on the very proximate connexion between worker and the manufacturing process. Now the definition of a 'person employed' has to be construed with reference to Section 2(12) of the Madras Shops and Establishments Act. The importance of the reference to the definition of 'worker' in the Factories Act was only to show the stress laid on the proximity of the connexion between an employee of the business, in an analogous enactment dealing with industrial conditions, but an almost exact parallel to the language of Section 2(12) is found In the case reported in Prance v. London County 1915 1 K.B.D. p. 688. That decision arose out of the Shops Act, 1912. Section 19, Sub-section 1 defined the expression 'shop assistant' to mean 'any person wholly or mainly employed in a shop in connexion with the serving of customers....' The question that arose was whether a potman employed in a public house and mainly employed In putting up tables for the customers' dinners, cleaning knives, polishing the vessels and so on would fall within the above definition. It was held by the Court that the above duties were sufficiently proximate to the serving of the customers to justify the magistrate in holding that they were discharged in connexion with the serving of customers within the meaning of the Act. We can borrow the principle from this decision that stress should be laid on the very proximate connexion while construing such definitions, between the 'person concerned' and the 'business of the establishment.' Since the admitted business of the establishment Is the import, storage and distribution of petroleum products, the work of a medical attendant whose duty is to look after the health conditions of the workers cannot be considered as having a proximate connexion with the business of the establishment sufficiently close to warrant the application of the definition:
7. The further question whether a person is proximately employed so as to fall within that definition is a question of fact and the conclusion which respondent 2 has reached is one which he could reasonably form on the data before him. It is not a conclusion which could be properly, interfered with in a writ of certiorari on the ground that there Is an error apparent on the face of the record.
8. For the abovesaid reasons, I hold that the decision of respondent 2 is not one appropriate for being quashed in the writ proceeding.
9. The petition is dismissed with costs. Counsel's fee Rs. 100.