E.S.I.C. Medical Officer’s Association V. E.S.I.C. & Anr.

IN THE HON’BLE

SUPREME COURT OF INDIA

In the matter, of
E.S.I.C. Medical Officer’s Association
(Appellants)
v.
E.S.I.C. & Anr.
(Respondent)

MEMORANDUM FOR THE RESPONDENT

COUNSEL FOR RESPONDENT
(PRAVAS NAIK)

ROLL NO. – 119

SECTION - A

SEM – IV

Memorandum on behalf of Respondent Page 1

 E.S.I.C. Medical Officer’s Association V. E.S.I.C. & Anr.

TABLE OF CONTENTS

LIST OF ABBREVIATIONS…………………………………….…..….I

INDEX OF AUTHORITIES…………………………………………….II

 STATUTES & OTHER AUTHORITIES

 CASES
 BOOKS REFERRED
 DICTIONARIES
STATEMENT OF FACTS……………………………………………….6

ISSUES RAISED………………………………………………………...8

SUMMARY OF ARGUMENTS…………………………………………...9

WRITTEN SUBMISSION……………………………………………….10

PRAYER OF RELIEF...………………………………………………....18

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 E.S.I.C. Medical Officer’s Association V. E.S.I.C. & Anr.

LIST OF ABBREVIATIONS

& And

AIR All India Reporter

Edn. Edition

Etc. Et Citra.

Govt. Government

Hon’ble Honorable

HC High Court

P. Page Number

SC Supreme Court

SCC Supreme Court Cases

Vol. Volume

v. Versus

www world wide web

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 E.S.I.C. Medical Officer’s Association V. E.S.I.C. & Anr.

INDEX OF AUTHORITIES

STATUTES, ACT/RULES/ORDERS
 Industrial Disputes Act, 1947

BOOKS & DICTIONARY

 S.N. MISHRA, The Labor law Act, 2015
 Concise Oxford Dictionary, 10th. Edn, Oxford University Press, 2002
 Garner Bryan, Black’s Law Dictionary, 7th Edn, West Group Publications, 2002.

CASES REFERRED
1. Muir Mills Unit of NTC (UP) Ltd. V. Swayam Prakash Srivastava (2007) 1 SCC 491

2. Heavy Engineering Corporation Ltd. V. Presiding Officer, Labour Court & Ors. (1996) 11 SCC 236

3. A. Sundarambal v. Govt. of Goa, Daman & Diu (1988) 4 SCC 42

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 E.S.I.C. Medical Officer’s Association V. E.S.I.C. & Anr.

STATEMENT OF FACTS

1. 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.1

2. 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 Act2.

3. 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.

4. 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 of Article 14 of the Constitution of India. Learned

1
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”).

2
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 patients cannot take them out of the definition of the
expression “workmen”.

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counsel also submitted that the High Court has committed error in placing reliance on the
judgment of this Court in Muir Mills Unit of NTC (UP) Ltd. Case.3

5. 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.

6. 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, 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. 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.

7. 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. 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
capacity4.

3
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.

4
Heavy Engineering Corporation Ltd. V. Presiding Officer, Labour Court & Ors. [(1996) 11 SCC 236] examined the
question as to whether General Duty Medical Officers Grade II were performing supervisory functions. that the
respondent cannot be held to be regarded as a workman under Section 2(s) of the Act. as he was working in a
supervisory capacity.

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 E.S.I.C. Medical Officer’s Association V. E.S.I.C. & Anr.

ISSUES RAISED

The following questions are presented before the Hon’ble Court in the
instant matter:

I. 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?
II. whether E.S.I.C. Medical Officer’s Association are eligible for the
allowance?

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.

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SUMMARY OF ARGUMENTS

I. 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?

No, the medical doctors discharging functions of medical officers are not
“workmen” within the meaning of Section 2(s) of the ID Act.

II. Whether E.S.I.C. Medical Officer’s Association are eligible for the
allowance?
The non-grant of medical allowance to the medical doctors is nethier discriminatory nor
violative of Article 14 of the Constitution of India. The members of the Association being not
deputationists are not entitled to such allowance.

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WRITTEN SUBMISSION

I. E.S.I.C. Medical Officer’s Association are not workman

No, the medical doctors discharging functions of medical officers are not “workmen”
within the meaning of Section 2(s) of the ID Act. As stated by dEHLI high court on the
following refered cases

1.Muir Mills Unit of NTC (UP) Ltd. V. Swayam Prakash Srivastava [(2007) 1 SCC
491] it is concluded that 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. Therefore, it is clear that petitioner herein is a professional and never can a
professional be termed as a workman under any law.

2.Heavy Engineering Corporation Ltd. V. Presiding Officer, Labour Court & Ors.
[(1996) 11 SCC 236] examined the question as to whether General Duty Medical Officers
Grade II were performing supervisory functions. that the respondent cannot be held to be
regarded as a workman under Section 2(s) of the Act. as he was working in a supervisory
capacity.

3.A. Sundarambal v. Govt. of Goa, Daman & Diu [(1988) 4 SCC 42] the works
includes in the nature of a noble mission or a noble vocation, that cannot be considered as
skilled or unskilled manual work or supervisory, technical or clerical work.

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.

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 E.S.I.C. Medical Officer’s Association V. E.S.I.C. & Anr.

II. E.S.I.C. Medical Officer’s Association are not eligible for the
allowance

The non-grant of medical allowance to the medical doctors is nethier discriminatory nor
violative of Article 14 of the Constitution of India. Because 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.

But Petitioner Association consists of medical officers employed by the ESIC after 1974 are not
gaining the allowance Rs.200/- per month. 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, 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. 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.

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 E.S.I.C. Medical Officer’s Association V. E.S.I.C. & Anr.

PRAYER FOR RELIEF

Wherefore, in light of the facts, stated, arguments advanced and authorities cited,
the respondent, humbly prays before the hon’ble supreme court, that:

The said agreement dated 21st November 2013 did not provide for a formal appeal.
It only stated that the said agreement was based on the detail discussion and
negotiations. 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 it should have dismissed
accordingly.
The Court may also be pleased to pass any other order, which the Court may deem
fit in light of justice, equity, and good conscience.

All of which is respectfully submitted.

Date- 21st November 2013 Respectfully

Submitted Pravas Naik
Place –Delhi Semester IV (Roll No.-119)

(Counsel for the respondent)

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