JUDGMENT Rakesh Tiwari, J.
1. Heard Counsel for the parties and perused the record.
2. This writ petition is directed against the award dated 2nd May, 1998 passed by the Labour Court, U.P., Agra in Adjudication Case No. 84 of 1996.
3. The brief facts of the case are that respondent No. 2 is a Cooperative Sugar Factory and is registered under the provisions of the Cooperative Societies Act. It advertised the post of Medical Officer in September, 1976. The petitioner applied for the said post and was selected. He was appointed as Part-time Medical Officer on a consolidated salary for performing duties atleast 3 hours per day. The petitioner joined his duties on 1st March, 1997. His services were alleged to have been terminated vide order dated 23rd/24th May, 1983 without any notice or opportunity. Aggrieved by his termination of services, he raised an industrial dispute. On conciliation proceedings having failed, a dispute regarding termination of the services of the petitioner was referred by the State Government to the Labour Court where it was registered as Adjudication Case No. 84 of 1996.
4. On receipt of summons respondent No. 2 filed written statement and also raised a preliminary objection regarding maintainability of the proceedings. The Labour Court decided the preliminary objection rejecting the objection holding that the dispute was maintainable vide order dated 23rd January, 1997. Thereafter evidence was led before the Labour Court. The petitioner entered into witness box and gave his evidence. Sri Om Gautam and Sri Ravindra Kumar Singh gave oral evidence on behalf of respondent No. 2. An application dated 14th August, 1996 was also moved by the petitioner for summoning certain records. Documentary evidence was also filed by the parties. The award was submitted by the Labour Court on 2.5.1998 and was enforced by publication on the Notice Board on 4th March, 1999.
5. The contention of the Counsel for the petitioner is that the dismissal of the petitioner is illegal, prejudicious and unlawful. He submits that the dismissal order states that the petitioner was a Part-time employee which is incorrect as he was working as a full-fledged time employee; that the dismissal order is, therefore, based on wrong facts and is liable to be set aside. He further submits that in the order of dismissal it has wrongly been stated that the petitioner was a temporary workman. In this regard he has relied upon the appointment letter dated 28.2.1977 which has been appended as Annexure-1 to the writ petition. He further submits that since the petitioner was continuously working in the hospital of the Mill on the post of Medical Officer, hence in view of the Standing Orders of the Mill he was a permanent and confirmed employee, as such the termination on this ground was also uncalled and illegal as his dismissal/termination from service is in violation of the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947 and the provisions of Section 135 of the U.P. Cooperative Societies Act, 1965. The appointment letter of the petitioner dated 28.2.77 is as under :-
"Dr. S.P. Singh is hereby engaged as a Medical Officer in the Kisan Sahkari Chini Mills Ltd., Satha, District Aligarh on a consolidated salary of Rs. 600/- per month. He must attend the factory dispensary for at least three hours in a day and he shall do free service besides that time also in emergency cases. His appointment is temporary and can be terminated at any time without assigning any reason.
Sd./-
(R.S. Mathur), District Magistrate, Aligarh."
6. Since the petitioner has challenged the order of his termination of services, as such it is necessary to refer the order of dismissal which is as under :-
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7. It is lastly contended that there is no justification now for not enforcing the provisions of Section 135 of the U.P. Cooperative Societies Act, 1965 even after the period of more than three decades and the petitioner is entitled to be regularized by other Rules and Regulations which are applicable to a employee of a Cooperative Societies and is not amenable to protection of Industrial Law.
8. The Labour Court on the basis of appreciation of oral and documentary evidence has held that the petitioner was a Part-time Medical Officer with the respondents-Cooperative Society and was also running his own Medical Private Hospital. The Labour Court has concluded that the petitioner was only giving his medical services to the respondents-Cooperative Society and was not appointed on a permanent post which is also evident from the terms and conditions of the appointment letter. The nature of the duties of the petitioner was supervisory and he was not a workman. The Labour Court held that when the employer had offered him full-time appointment, he refused to give his consent. Thereafter, his services were not utilized and the services of the petitioner were not terminated by the employer. It further held that the termination of the services of the petitioner was legal and justified and he was not entitled to any relief whatsoever.
9. Having given my anxious thought to the rival contentions of the parties and on perusal of the record in the writ petition it is evident that the terms and conditions of the appointment letter of the petitioner clearly show that he was only giving his services in the factory dispensary of the Mill as Part-time Medical Officer and free service in emergency hours. He was running his own private hospital and had, therefore, refused to full-time appointment in the Cooperative Society. A person may be given temporary appointment against a permanent nature of post and may render part-time services but that would not make him a permanent employee. Merely because he was given some benefits which were also given to other employees of the Cooperative Society would not make him a permanent employee of the Mill against the terms and conditions of service accepted by him as contained in the appointment letter.
10. A Division Bench of this Court in P.N. Gulati v. Presiding Officer, Labour Court, Gorakhpur, 1997 Lab. I.C. 1088, held that the doctor employed on part-time basis was a workman. In Govinbhai Kanabhai Maru v. N.K. Desai, 1988 Lab. I.C. 505/507, it has been held by a Single Judge Bench of Gujarat High Court that the definition of workman in the Act was wide enough to include a part-time employee, but a Single Judge Bench of Andhra Pradesh has taken view to the contrary in G. Ranagamaunar Chetty, Proprietor, Sri Satyanarayana Rice Mill, Nellore v. Industrial Tribunal, Hyderabad, AIR 1960 AP 371, has held that a part-time employee will not fall within the definition of 'workman'. Again it has been held by a Single Judge of Kerala High Court in W.H.D. Cruz and Sons v. M.E. Thomas, 1996 (1) LLJ 706/712, that an accountant working on part-time basis for long years and also looking after his own partnership business was outside the purview of "workman' in Section 2(s) of the Industrial Disputes Act, 1947.
11. The question whether a part-time Doctor is a workman or not would, therefore, depend upon the facts and circumstances and the nature of duties performed by him in a particular case. Reference in this regard may be made to the leading case of S.K. Maini v. Carona Sahu Co. Ltd., in which it has been held that:-
"the designation of an employee is not of much importance and what is important is the nature of duties performed by him. The determinative factor is the main duties of the concerned employee......... In other words what is in substance the work which employee does or what is in substance he is employed to do."
12. The case of P.N. Gulati (supra) is distinguishable on facts from the present case. In that case the services of P.N. Gulati were terminated on charge of misconduct. He had claimed that he was discharging technical nature of duties and not supervisory nature duties and was a permanent part-time employee of M/s. Swadeshi Cotton Mills Co. Ltd., on a salary of Rs. 350 per month. In the instant case on perusal of the appointment letter it is evident that the petitioner was engaged on a consolidated salary of Rs. 600/- per month i.e. more than the limit prescribed under the Industrial Disputes Act, 1947 i.e. Rs. 500/- per month. His appointment was temporary and liable to be terminated at any time without assigning any reason. Furthermore, the Court in P.N. Gulati's case has also considered this aspect of the matter thus :-
"According to the changed definition not only persons employed in an industry to do manual or clerical work, but persons employed for doing supervisory or technical work are also to be considered to be workmen. Of course, the section goes on to provide that if wages of person employed for doing supervisory work exceeds Rs. 500/- per month, he will not be considered to be a workman."
13. Viewed from this angle the petitioner working in the dispensary of the Mill run by the Cooperative Society would be a workman or not would not depend upon his designation but upon the nature of his duties. The petitioner has not given what duties he was performing either in the written statement or in the oral evidence. He has only stated that he was a workman in terms of Section 2(z) of the Industrial Disputes Act, 1947. The petitioner has not discharged his burden of proof thai he was a workman. There is not evidence regarding nature of his duties performed by him as such the onus could not be shifted on the employers in view of Range Forest Officer v. S.T. Hadimani, 2002 (94) FLR 622 and Maritech India Ltd. v. State of U.P. and Ors., 1996 (73) FLR 1754. On the other hand, it has been categorically come in the pleadings and evidence of the employer's witness Sri Om Gautam that Compounder, Nurse and Sweepers were working under him, hence he was discharging supervisory duties. It has, therefore, rightly been held by the Labour Court on the basis of evidence that he was not a workman.
14. The facts in the present petition are similar to the case of W.H.D. Cruz (supra) decided by the Kerla High Court as in this case the petitioner was not only discharging mainly supervisory nature of duties but was also running his own hospital after part-time working hours in the dispensary of the Mill and does not fail within the definition of workman.
15. For the reasons stated above, there is no infirmity or illegality in the impugned order. It is not a case for interference under Article 226 of the Constitution of India. The writ petition is dismissed. No order as to costs.