Oral Judgment:
1. The Industrial Court has dismissed the Complaint (ULP) Nos. 590 and 591 of 1987 by its common judgment and order dated 23rd February, 2009. The claim in the complaints was for direction to the employer to implement the agreement reached by resolution dated 07.11.1974 in the matter of pay-scale and to pay the members of the complaint Union salary in the scale of Rs.680-1500/- equivalent to the salary payable to the Medical Officers working under the Nagpur Municipal Corporation. The Industrial Court has recorded the finding that the members of the complainant Union are the Ayurvedic Doctors claiming parity in the scale of pay with M.B.B.S Medical Officers. The Industrial Court has held that the members of the complainant Union cannot be called as "employees' within the meaning of Section 3(13) of the Bombay Industrial Relations Act, 1946 (in short "B.I.R. Act").
2. The jurisdiction of the Industrial Court can be invoked by the "workman" as defined under Section 2(s) of the Industrial Disputes Act (in short "I.D. Act"). The definition of "workman" therein is reproduced below.
"2 (s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person â“
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding [Ten thousand 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.
3. While dealing with the case of Medical Doctors discharging functions in E.S.I.C. Dispensaries/Hospitals, the Apex Court has in its decision in the case of Employees' State Insurance Corporation Medical Officer's Association vrs. E.S.I.C. and Anr, reported in 2014 I CLR 1 has held that the Medical Officers are basically and mainly engaged in professional and intellectual activities to treat patients and 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. It has been further held that when a doctor 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 I.D Act. It has been further held that the respondent who was Medical Officer is a professional and never can a professional be termed as a workman under any law. Para 11 of the said decision is reproduced below.
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 I.D. 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 I.D.Act. We are of the view that the principle laid down by this Court in A.Sundarambal's case (supra) and in Muir Mill's case (supra) squarely applies to such professionals. That being the factual and legal position, we find no reason to interfere with the judgment of the High Court. The SLP lacks merit and is dismissed accordingly".
The question as to whether the Medical Officers are the "workmen" within the meaning of Section 2(s) of the I.D Act is, therefore, no longer res-integra in view of the aforesaid decision and it has to be held that the Medical Officers cannot be termed as workmen.
4. Shri Khan, the learned counsel appearing for the petitioner tried to carve out the distinction between the definition of "workman" under Section 2(s) of the I.D. Act and that of an "employee" under Section 3(13) of the B.I.R Act, to urge that the aforesaid ratio of the decision of the Apex Court cannot be applied in a case where the provisions of B.I.R Act are applicable. He has invited my attention to Section 3(13) of the B.I.R Act defining the "employee" which is reproduced below.
"3. (13) "employee" means any person employed to do any skilled or unskilled work for hire or reward in any industry, and includes â“
(a) a person employed by a contractor to do any work for him in the execution of a contract with an employer within the meaning of sub-clause (e) of clause (14);
(b) a person who has been, [dismissed, discharged or retrenched or whose services have been terminated, from employment] on account of any dispute relating to change in respect of which a notice is given or an application made under section 42 whether before or after his [dismissal, discharge, retrenchment or, as the case may be, termination from employment];
[but does not include â“
(i) a person employed primarily in a managerial, administrative, supervisory or technical capacity [drawing basic pay (excluding allowances) exceeding [six thousand five hundred rupees per month;
(ii) any other person or class of persons employed in the same capacity as those specified in clause (i) above irrespective of the amount of the pay drawn by such persons which the State Government may, by notification in the Official Gazette, specify in this behalf.
The aforesaid definition clearly indicate that an "employee" means any person employed to do any skilled or unskilled work for hire or reward in any industry, but does not include a person employed primarily in a managerial, administrative, supervisory or technical capacity [drawing basic pay (excluding allowances) exceeding [six thousand five hundred rupees per month). The complaint in the present case was filed in the year 1987 and at that time the amount specified under Section 3(13) was of Rs. 1,000/- per month. Shri Khan, the learned counsel for the petitioner has urged that the members of the complainant Union were drawing scale less than Rs.1,000/- per month and hence they can be termed as "employee" within the meaning of Section 3(13) of the B.I.R. Act.
5. In paragraph 2 of the complaint filed by the Union, the following averments are made.
"2. The workmen shown in Annexure' A' to this complaint are working for the respondent Municipal Corporation as Medical Officers. The said Medical Officers are discharging the duties of technical nature and are carrying out the duties of examination of the patients, administration of medicines, prescription of medicines, application of injunctions and all the kinds of duties of skilled nature. The said Medical Officers are not having any administrative or supervisory powers like making of appointments, taking disciplinary actions, fixation of payment of salary, grant of earned leave and other benefits and also are not having any power to fix the conditions of services. Although the persons shown in Annexure'
A' have been designated as Officers, they are workmen within the statutory definition.
In paragraph 4 it is stated that the members of the complainant Union who are Medical Officers are drawing pay-scale of Rs.600-30-750-EB-40-1150. 6] The definition of "workman" under Section 2(s) of the I.D. Act and the definition of an "employee" under Section 3(13) of the B.I.R. Act exclude the persons working in supervisory capacity. The ratio of the decision of the Apex Court that the Medical Officers are engaged in professional and intellectual activities to treat the patients and in addition thereto supervises the work of the persons subordinate to him viz., the male nurse, nursing attendant, sweeper, ambulance driver who would naturally be taking directions and orders from the Medical Officer, becomes applicable. In view of this position, there is no escape from the conclusion that the members of the complainant Union who are the Medical Officers as has been elaborately stated in para 2 of the complaint cannot be termed as an "employee" within the meaning of Section 3(13) of the B.I.R Act. Hence, no fault can be found with the view taken by the Industrial Court.
7. At this stage, Shri Khan, the learned counsel appearing for the petitioner, has invited my attention to the pursis dated 30.09.2015, wherein it is stated that the doctors shown in Annexure-A of the Complaint (ULPN) No. 590/1987 and the doctors shown in Annexure-A of the Complaint (ULPN) No. 591/1987 have retired from service on attaining the age of superannuation. It further states that the doctors shown in Annexure-A have been paid salary as per the order dated 11th December, 1988 passed by the Corporation to implement the interim order dated 2nd November, 1987 passed by the Industrial Court in the complaints in question. It is further pointed out that the interim order was further continued and as a result of that, the amount which has been paid has not been recovered from the Medical Officers. Shri Khan, therefore, submits that the respondents should be directed not to recover such amount from the employees.
8. Shri Bhattad, the learned counsel appearing for the Corporation has invited my attention to the decision of the larger Bench of the Apex Court in the case of Chandi Prasad Uniyal vrs. State of Uttarakhand and others, reported in AIR 2012 SC 2951, which considered the following question.
"2. The question that arises for consideration in this appeal is whether over-payment of amount due to wrong fixation of 5th and 6th pay scale of teachers/principals based on the 5th Pay Commission Report could be recovered from the recipients who are serving as teachers. The Division Bench of the High Court rejected the writ petition filed by the appellants and took the view that since payments were effected due to a mistake committed by the District Education Officer, the same could be recovered. Aggrieved by the said judgment, this appeal has been preferred."
Paras 16, 17 and 18 of the said decision being relevant are reproduced below.
"16. We are concerned with the excess payment of public money which is often described as âtax payers moneyâ? which belongs neither to the officers who have effected overpayment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.
17. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case (supra) and in Col. B.J. Akkara (retd.) case (supra), the excess payment made due to wrong/irregular pay fixation can always be recovered.
18. Appellants in the appeal will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in the condition of irregular/wrong pay fixation, the institution in which the appellants were working would be responsible for recovery of the amount received in excess from the salary/pension. In such circumstances, we find no reason to interfere with the judgment of the High Court. However, we order the excess payment made be recovered from the appellantâ™s salary in twelve equal monthly installments starting from October 2012. The appeal stands dismissed with no order as to costs. IA Nos.2 and 3 are disposed of".
9. I have perused the order dated 11th February 1988 passed by the Corporation implementing the interim order passed by the Industrial Court. It contains a stipulation that if the complaints are eventually dismissed, the excess amount paid to the employees on the basis of the interim order shall be deducted and recovered from their salaries, funds etc., as the case may, in one or more installments as the Corporation may deem fit. The interim order passed by the Industrial Court or by this Court would not protect the employees from recovery of the excess amount paid to them to which they were not entitled to. It will be open for the Corporation to recover the said amount, if it is deemed fit and proper by giving sufficient installments for payment to the employees. The writ petition is dismissed.