April v. Indians who are such members

jurisdiction Industrial Court entertain complaint under MRTU and PULP Act and - 3 - therefore, the petition has been dismissed.

Mere glance through paragraph 10 of the impugned suffice dismissal present appeal in limine. Paragraph 10 of the impugned order reads thus - "The nature the work performed First Petitioner elaboration pleading submitted before Court proceedings Article 226 Constitution. In synopsis appended petition, First Petitioner describes background, qualifications nature follows: . "The petitioner holds Ph.D. degree in Biochemistry from Mumbai University. He is a life member of Endocrine Society of India and also an active member of New York Academy of Sciences of - 4 - U.S.A.The petitioner No.1 has distinguished service in reaearch having published several papers and was engaged in research relating to early detection of Human Esophagus cancer. " In

2.1 petition First Petitioner describes nature duties functions follows: . "The petitioner holds degree from University of Bombay which he obtained in the year 1979 in Biochemistry at the age of 28 years. The petitioner No. 1 is life member of Endocrine Society of India from 1981. The petitioner joined TMC as Scientific Officer "SC" (Tumor Maker Laboratory). Right from the initial appointment the First Petitioner has been working as a Research Scientist except for a brief period between April, 1987 to August, 1991, when he was required to perform - 5 - routine clinical Biochemistry tests in Biochemistry lab. of TMC. Prior to joining TMC, the petitioner worked as Research Assistant in Institute of Research in Reproduction. Thus by virtue of his qualification, training, experience and aptitude the petitioner No.1 is not attuned to carry out routine technical work during the period 1987-91, hence, the petitioner was transferred to Immuno Biochemistry Laboratory to carry out research work in August, 1991.

The petitioner No.1 has excellent record in research work having contributed several research papers which have been published in highly appreciated professional journals internationally. On 19-12-1994 the petitioner No.1 was elected as active member of New York Academy of Sciences of U.S.A. and continues to be so. The petitioner No.1’s biographical sketch was published in globally recognized Marquis "who’s who in the world" 14th - 6 - Ed. 1997. During the period from August 1991 to August, 2000 the petitioner No.1 carried out six research Projects and has to his credit five publications between 1st September 1991 to 31st August 2000. After his promotion as Scientific Officer (SD), the petitioner was carrying out research work in cancer related field viz: (1) Raising Monoclonal anti bodies (2) Radio Immuno Assay (RIA) for early detection of Human Esophagus cancer. The work related to first category involving mainly biology came to an end on 31-8-1998 on retirement of Dr.

J.S. Nadkarni who was senior most scientist in the department. The 2nd research project was personally handled by the 1st petitioner. If this project was continued it would have led to earlier detection of cancer of esophagus which would have helped early treatment and cure to innumerable human beings suffering from Esophagus cancer which is in large number in India. The - 7 - project work itself was sanctioned by scientific Advisory Committee of TMC in May, 1994. Although the funds allocated were exhausted the petitioner carried out further research work on his own initiative by gathering material from various sources. " Ex-facie, nature the work which First petitioner himself stated performing cannot fulfill description contained Section 2(s). Section 2(s) requires person engaged manual, unskilled, skilled, technical, operational, clerical supervisory reward. In Adhyanthaya Adhyanthaya Adhyanthaya (supra), (supra), (supra), Constitution Bench expression "skilled" context appears Section 2(s) "be construed ejusdem generis construed, skilled whether manual non-manual a - 8 - mentioned definition.

" Hence, promotion product services a establishment distinct The independent covered definition. contention medical representatives employed skilled within meaning definition, rejected. regards "technical" nature As work, expressly rejected Court Burmah Burmah Burmah Shell Shell Shell case. case. case.

Perusal of the records disclose that in the complaint filed by the petitioner, it was stated in paragraph 3.1 and 3.2 as under- "3.1 The complainant No.1 is a Research Scientist, having obtained Ph.D. degree from University of Bombay in Septembr, 1979 in Biochemistry at the age of 28 years. The complainant No.1 is life member of Endocrine - 9 - Society of India from 1981. Prior to joining the Hospital, the 1st complainant worked as Research Assistant in Institute of Research in Reproduction. The complainant No.1 joined the Hospital on 1-6-1983 as Scientific Officer "SC" (Tumor Maker Laboratory). Right from the initial appointment the first complainant has been working as a Research Scientist except for a brief period between April, 1987 to August, 1991 when he was required to perform routine clinical Biochemistry tests in Biochemistry lab, which is a separate section in Pathology department of the Hospital. By virtue of his qualification, training, experience and attitude the complainant No.1 is not attend to carry out routine technical work. Hence during the period 1987-91, two adverse remarks came to be mentioned in his confidential report, one in the year 1988 and second in the year 1989. The complainant No.1 however, did not - 10 - protest as the complainant No.1 was sure that he could excel as and when given research work. On 19-8-1991 the complainant No.1 was transferred to Immuno Biochemistry Laboratory i.e. once again to research work. Immediately thereafter the performance of the complainant No.1 improved substantially and he was promoted to Scientific Officer (SD) with effect from 1st February 1993 and his seniority in scientific cadre in the Tata Memorial Centre was maintained from 1-6-1993. Thus, from 19-8-91 to 31-8-2000, he was doing only research work. He was again transferred to routine work in Pathology Department of the Hospital and asked to do routine work by letter dated 23-11-2000.

3.2 The complainant No.1 excellent record in research work having contributed several research papers which have been published in highly appreciated professional - 11 - journals internationally. List of papers published by the 1st complainant Annexture-A hereto. On is at Annexture-A Annexture-A 19-12-1994 the complainant No.1 was elected as the active member of New York Academy of Sciences of U.S.A. and continues to be so. There are very few Indians who are such members. The complainant No.1’s biographical sketch was published in globally recognized Marquis "Who’s who in the world" 14th Ed. 1997. Annexed hereto and marked as Annexure-B Annexure-B collectively is a copy of Annexure-B the said sketch along with Doctorate certificate and certificate of N.Y. Academy of Sciences. During the period from August 1991 to August 2000 the complainant No.1 carried out six research Projects and has to his credit five publications between 1st September 1991 to 31st August 1998/2000."

The respondents in their reply in paragraph 3 stated thus- - 12 - "3. It is further submitted that this complaint is not maintainable as the complainant is not a workman as defined under Industrial Disputes Act and therefore, not an employee as defined under the MRTU & PULP Act. The complainant has been working in a senior managerial/administrative capacity drawing a monthly salary of about Rs.24000/-. The designation of the complainant as Scientific Officer SD is in the Managerial administrative cadre in the scale of Rs.1000-325-15200. Therefore the complainant is not a workman as defined under the Industrial Disputes Act and so not an employee under the MRTU and PULP Act. The complainant has therefore no locus standi to file the present complaint. The complaint deserves to be dismissed. It is prayed that thus Honourable Court may be pleased to hold accordingly and to dismiss the complaint on this ground alone. " - 13 -

When the matter came up for hearing before Industrial Court, counsel parties submitted complaint itself disposed documents produced record parties thereby neither appellants respondents produced evidence. Our attention learned advocate appearing appellant letter 23rd November 2000 contending apparently reveals appellant workman relevant time, though appointed Scientific Officer. It pertinent complaint

2004. Besides letter 23rd November 2000, duties required performed appellant. It merely refers program appellant required attend relevant course performing duties. As against this, averments complaint quoted above, observations learned Single Judge paragraph 10 impugned - 14 - apparently disclose duties performed appellant nature carried appellant employment respondent, relevant nowhere nature a workman required satisfy ingredients Section 2(s) Industrial Disputes Act Section 3(5) Maharashtra Recognition Trade Unions Prevention Unfair Labour Practices Act

1971. Considering same, infirmity impugned warrant interference appeal. The learned Single Judge taking consideration circumstances case, passing reasoned rejected petition appellant. Taking consideration limited jurisdiction learned Single Judge exercise against orders passed Labour Court Industrial Court, we find no case made out for interference.