LAWS(KER)-2007-1-680

MAR BASELLIUS MEDICAL MISSION HOSPITAL Vs. JOSEPH BABU

Decided On January 17, 2007
MAR BASELIUS MEDICAL MISSION HOSPITAL Appellant
V/S
JOSEPH BABU Respondents

JUDGEMENT

(1.) An hospital against which a consultant physician employed by them filed a C. P. before the Labour Court, Emakulam as C. P. No. 47/ 1991 under Section 33-C (2) of the Industrial disputes Act claiming certain benefits due to him including Sunday and holiday wages is challenging the order in that C. P in this Original petition. The petitioner raised a preliminary point on the question as to whether the consultant physician, the 1 st respondent herein, is a workman or not. That question was considered as a preliminary point and by exhibit P1 preliminary order, relying on the supreme Court decision in the Burma Shell Oil storage and Distribution Company of India ltd. v. Burma Shell Management Staff association and Ors. AIR 1971 SC 922 : 1970 (3) SCC 378 : 1970-II-LLJ-590 the Labour Court held that the 1st respondent Consultant physician is a workman coming within the definition of Section 2 (s) of the Industrial disputes Act and therefore the claim petition under Section 33-C (2) is maintainable. Although the petitioner challenged that preliminary order in O. P. No. 6216/1994, this court dismissed the same without prejudice to the right of the petitioner to challenge that preliminary order also while the final order to be passed in the claim petition is challenged. Exhibit P 3 is the final order passed in the claim petition whereby the Labour Court held that the 1st respondent is entitled to realise from the petitioner an amount of Rs. 66,000/- as holiday and Sunday wages. Exhibits P1 and P3 orders are under challenge in this Original Petition.

(2.) Two contentions are raised before me. First is that the 1st respondent consultant physician is not a workman since he is performing a job of creativity which would take him out of the purview of the definition of section 2 (s). The second contention is that the finding in Exhibit P3 order is perverse since the labour Court has not correctly appreciated the contention of the petitioner to the effect that the 1st respondent had manipulated the attendance register and signed the same to make it appear that he had worked on Sundays and holidays also.

(3.) The learned counsel for the 1st respondent would submit that the 1st respondent-Doctor is only performing the duties of technical nature which is expressly included in the definition of workman under section 2 (s) and therefore, a doctor cannot be taken out of the purview of the definition. Hence, the finding that the 1st respondent-Doctor is workman is perfectly valid and correct. Regarding the second contention, he would submit that no acceptable evidence has been adduced by the management to the effect that the 1st respondent had in fact manipulated the attendance register to mark attendance on sundays and holidays also without actually working.