Judgment :-

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”).

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 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 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, 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 Asso