ORDER : 1. Heard the parties. 2. In this writ application, the petitioner has prayed for quashing the Award dated 24.6.2003, passed by the learned Central Government Industrial Tribunal No. 2 at Dhanbad in Reference No. 80 of 1997, whereby and whereunder it has been held that Dr. Ashok Kumar Jha, Ex-Medical Officer(Orthopedic) of M/s Bharat Coking Coal Limited is a workman under section 2(s) of the Industrial Disputes Act and consequently the action of the Management in terminating his service is not justified and hence the Management was directed to reinstate the concerned workman with payment of 25% back wages from the date of dismissal i.e. 4.3.1993 with continuity of service. 3. The factual aspects of the case reveal that Dr. A.K. Jha, respondent, was appointed as a Medical Officer by letter dated 7.8.1983 in the executive cadre for performing supervisory duties of the hospital and was placed in Executive Cadre-2. An application for leave was submitted by Dr. A.K. Jha, on the ground that his mother was sick and he wanted to attend to her by giving proper medical treatment. Consequent to such application, he was granted leave from 3.2.1991 to 11.3.1991. However on 12.3.1991 on expiry of the period of leave, the respondent did not submit his joining but applied for extension of leave citing his own health reasons for 4-6 weeks. Even after expiry of six weeks, the respondent did not report for duty and continued absenting himself which led to issuance of a letter dated 9/11th December, 1991 directing him to show cause as to why action as provided under para 12.4 (iv) of the Common Coal Cadre dealing with general terms and conditions of services of executives will not be taken. In spite of the show cause notice, the respondent did not report for duty and continued absenting himself with a request to grant him leave for an indefinite period. Finally, by letter dated 9.5.1992, the Management conveyed its decision to the respondent to report for duty within 15 days, failing which action will be taken against him as per the earlier notice dated 9/11.12.1991. Accordingly, the Management considered the indefinite leave of the respondent and thereafter issued a letter dated 17.7.1992 terminating his services as per the service condition guided by the Common Coal Cadre. Accordingly, the Management considered the indefinite leave of the respondent and thereafter issued a letter dated 17.7.1992 terminating his services as per the service condition guided by the Common Coal Cadre. The respondent raised an industrial dispute by claiming himself to be a workman in terms of section 2 (s) of the Industrial Disputes Act and the appropriate government referred the dispute for adjudication vide order dated 14.8.1997on the following terms. 4. “Whether the claim of Dr. Ashok Kumar Jha, Ex-Medical Officer (Ortho) of M/s B.C.C.L. that he is a workman under Section 2(s) is legal and justified? If so, whether the action of the management in terminating his services is justified? If not, to what relief is the concerned workman entitled? 5. A written statement was filed by the respondent, in which it was stated that he was appointed as a Medical Officer (Orthopedic) and joined the services of M/s B.C.C.L. on and from 19.9.1989 and was posted at Kustore Central Hospital under BCCL with effect from 5.10.1989. After completing his probationary period, he was made permanent. It has been averred that nature of the job of the respondent was purely technical and he had no supervisory or managerial functions and no workman or any para medical staff was under his control and supervision and as such the respondent claimed himself to be a workman within the meaning and supervision of Section 2(s) of the Industrial Disputes Act. 6. It has been submitted that the respondent was never in the Executive Cadre nor he was in the administrative cadre. He has also referred to various ailments suffered by his mother as well as by himself, which has led him to request the Management to extend his period of leave. In the month of March, 1993, the respondent claims to have fully recovered and was fit to resume his duty and accordingly he went to Koyala Bhawan to join his duty on 4.3.1993 with a fitness certificate dated 1.3.1993 when he came to learn that his services have already been terminated. He has also stated that no charge-sheet was issued to him for committing misconduct nor any opportunity was given to him to put forward his defence prior to his termination and therefore the termination of his services is violative of the principles of natural justice. He has also stated that no charge-sheet was issued to him for committing misconduct nor any opportunity was given to him to put forward his defence prior to his termination and therefore the termination of his services is violative of the principles of natural justice. The respondent in his written statement has further reiterated that no enquiry was conducted or any disciplinary action taken against him and therefore his so called termination amounts to retrenchment. It has also been submitted that he was not given notice pay or any retrenchment compensation and therefore the order of termination is illegal, unjustified and void-ab-initio. The respondent further states that a writ petition was filed before this Court challenging his order of termination being CWJC No. 685 of 1994 R, which was withdrawn in order to approach the concerned authority for redressal of his grievances and in view of the same, the respondent had raised an industrial dispute by claiming himself to be a workman in terms of Section 2 (s) of the Industrial Disputes Act. 7. The Management had also preferred a written statement in which it has been categorically denied that the respondent was ever a workman in the Company rather he was selected in the Executive Cadre for performing supervisory duty of the hospital and was placed in Executive Grade-II. It has been stated that the respondent was offered benefits like Leave Travelling Allowance, Medical Facilities, Retirement Benefits meant for officer of the Company performing managerial and supervisory duties. Infact, the staffs like Nurses, Pharmacist, Dressers, Ward Boy and Sweeper in the hospital used to work under his administrative control and so was the clerical staff. The respondent was drawing salary of Rs.5,000/-per month and therefore considering the status of the respondent, the nature of job performed by him, the facilities being given to him would render himself to be an officer and not as a workman as claimed by him. It has also been stated in the written statement that the doctors although perform technical duties but their appointments are made for performing managerial and supervisory duties, for which technical knowledge is essential and technical jobs are also required to be performed. They form part and parcel of the Management and therefore the claim of the respondent to treat him in the status of a workman is liable to be rejected. They form part and parcel of the Management and therefore the claim of the respondent to treat him in the status of a workman is liable to be rejected. The written statement so far as termination of the respondent is concerned, has referred to the provisions of clause 12.4 (iv) of the Common Coal Cadre which reveals that if an executive cadre employee absents himself without leave for more than 8 calendar days or fails to report without sufficient reasons within 8 days of passing of notice or being otherwise duly notified he shall loss his lien and shall be deemed to have left the service of the company on his own accord with effect from the date he was due to return to work. 8. Equipped with the provisions of clause 12.4(iv) of the Common Coal Cadre, the Management has stated that in view of continuous and unauthorized absence of the respondent, his services were accordingly terminated. 9. Mr. Anoop Kumar Mehta, learned counsel for the petitioner, has submitted that the respondent admittedly was a doctor and since the supervisory function was exercised by him he could not be termed to have been a workman within the meaning of section 2(s) of the Industrial Disputes Act. It has further been submitted that the respondent was appointed in the Executive Cadre and was an officer guided by the Common Coal Cadre and not as per the certified standing orders of the petitioner company which guide a workman. Learned counsel submits that the learned Tribunal has erred in its conclusion by which it has been held that the respondent is a workman. It has been submitted that so far as the termination of service of the respondent is concerned, he after obtaining leave thereafter in spite of repeated reminders by the authorities of the petitioner company did not submit his joining and as such in terms of his service condition attached to him under the Common Coal Cadre, his services was terminated. 10. Mr. S.K. Laik, learned counsel appearing for the respondent, while refuting the contention of the Management has submitted that there is no evidence as could be produced by the Management that the respondent had supervisory and managerial functions. 10. Mr. S.K. Laik, learned counsel appearing for the respondent, while refuting the contention of the Management has submitted that there is no evidence as could be produced by the Management that the respondent had supervisory and managerial functions. It has been submitted that there was no control by the respondent over his subordinates and therefore in absence of any evidence produced by the Management regarding superintendence of the respondent over his subordinates, the supervisory functions as indicated by the Management so far as respondent is concerned becomes a misnomer. Learned counsel further submits that whether an employee is a workman or not to come within the domain of Section 2(s) of the Industrial Disputes Act has to undergo certain tests and designation of the employees should not be an obstacle in determining such question as to whether the petitioner who is a qualified medical practitioner would come within the purview of a workman in terms of section 2 (s) of the Industrial Disputes Act. It has further been submitted that the learned Tribunal has appropriately considered the tests necessary for determination as to whether the respondent was indeed a workman or not. Learned counsel adds so far as the termination of the respondent is concerned, by stating that the entire episode had taken place behind the back of the petitioner without affording him a reasonable opportunity to be heard or by initiating a departmental proceeding. It has been submitted that the respondent had submitted his explanation at the time of his joining but prior to the same without even issuing notice upon the respondent his services were terminated, which was rightly corrected by the learned Tribunal as the entire action of the Management was per se illegal. 11. The point for determination in this writ petition appears to be twofold. The first is as to whether the respondent is a workman in view of definition of Section 2(s) of the Industrial Disputes Act and as to whether the action of the Management in terminating the services of the respondent without initiating any disciplinary proceeding is sustainable or not. The point for determination in this writ petition appears to be twofold. The first is as to whether the respondent is a workman in view of definition of Section 2(s) of the Industrial Disputes Act and as to whether the action of the Management in terminating the services of the respondent without initiating any disciplinary proceeding is sustainable or not. Since both the issues are interlinked and co-related, it would be appropriate that the issue as to whether the respondent is a workman in view of section 2(s) of the Industrial Disputes Act has to be decided at the first instance and the subsequent issue will be dependent after the initial issue is settled. 12. It is admitted from the pleadings of both the parties that the petitioner is a medical practitioner who joined in the Executive Cadre as a Medical Officer by virtue of letter dated 7.8.1983. The respondent was appointed in Executive Cadre Grade-II. The continuous absence of the respondent after initially being sanctioned leave led to his termination in terms of clause 12.4(4) which states that if an Executive Cadre employee absents himself without leave for more than 8 calendar days or fails to report without sufficient reasons within 8 days of a notice or being otherwise duly notified, he shall loose his lien on his service. The respondent thereafter raised an Industrial dispute claiming himself to be a workman. 13. The respondent thereafter raised an Industrial dispute claiming himself to be a workman. 13. Section 2 (s) of the Industrial Disputes Act reads as follows:- (s) “workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person- (i) who is subject to the Air Force Act, 1950(45 of 1950), or the Army Act, 1950(46 of 1950), or the Navy Act, 1957(62 of 1957);or (ii) who is employed in the police service or as an officer or other employee of a prison, or (iii) who is employed mainly in a managerial or administrative capacity, or (iv) who, being employed in a supervisory capacity, draws wages exceeding (ten thousand rupees) per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.] 14. Mr. S.K. Laik, learned counsel for the respondent, has referred to the case of Prasar Bharati and others Vs. Amarjeet Singh and Others reported in 2007(2)JLJR 13(SC) while submitting that there was no control over his subordinates by the respondent and as such it cannot be inferred that he was exercising a supervisory function thus excluding him from the domain of a workman as defined in Section 2(s) of the Industrial Disputes Act. 15. In Prasar Bharati (Supra) while considering the aforesaid scenario, it was held as follows:- 19. The expression “control”, although is not defined, in the light of Article 235 of the Constitution of India, has been held to be conferring wide power upon the High Court. (See State of W.B. v. Nripendra Nath Bagchi, Madan Mohan Choudhary v. State of Bihar, Yoginath D. Bagde v. State of Maharashtra and High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal.) 20. The concept of control implies that the controlling officer must be in a position to dominate the affairs of its subordinate. (See State of W.B. v. Nripendra Nath Bagchi, Madan Mohan Choudhary v. State of Bihar, Yoginath D. Bagde v. State of Maharashtra and High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal.) 20. The concept of control implies that the controlling officer must be in a position to dominate the affairs of its subordinate. It unless otherwise defined would be synonymous with superintendence, management or authority to direct, restrict or regulate. It is exercised by a superior authority in exercise of its supervisory power. It may amount to an effective control, which may either be de facto or remote.” 16. It is to be seen in such context as to whether the respondent was indeed exercising supervisory function or otherwise which would indicate that he was a workman in terms of section 2(s) of the Industrial Disputes Act. 17. Mr. Anoop Kumar Mehta, learned counsel for the petitioner, has referred to the case of Heavy Engineering Corporation Ltd Vs. Presiding Officer, Labour Court and others reported in (1996) 11 SCC 236 . The relevant portion of the aforesaid pronouncements reads as follows:- “12. The aforesaid facts, in our opinion, clearly go to show that Respondent 2 could not be regarded as a workman under Section 2(s) of the Act as he was working in a supervisory capacity. While it is no doubt true that Respondent 2, along with the other doctors, used to work in shifts nevertheless during the time when he was in the shift he was the sole person in-charge of the first-aid post. He had, under him male nurse, nursing attendant, sweeper and ambulance driver who would naturally be taking directions and orders from the in-charge of the first-aid post. These persons obviously could not act on their own and had to function in the manner as directed by Respondent 2, whenever he was on duty. They were, in other like the respondent, discharges his duties of attending to the patients and, in addition thereto supervises the work of the persons subordinate to him, the only possible conclusion which can be arrived at is that the respondent cannot be held to be regarded as a workman under Section 2(s) of the Act. 18. They were, in other like the respondent, discharges his duties of attending to the patients and, in addition thereto supervises the work of the persons subordinate to him, the only possible conclusion which can be arrived at is that the respondent cannot be held to be regarded as a workman under Section 2(s) of the Act. 18. It was concluded in the said judgment that the doctor concerned was the sole person in-charge of a first aid post and he had under him male nurse, nursing attendant, sweeper and ambulance driver who would naturally be taking directions and orders from him and therefore it was construed that the said person had supervision and control over his subordinates and hence it was concluded that he was not a workman under the provisions of the Industrial Dispute Act. 19. A medical practitioner imparts diagnosis and treatment of patients having a specialized knowledge on the subject. He cannot operate unilaterally and has to be assisted in carrying out his functions by attendants, Nurses, technicians etc., over whom, there has to be a supervisory control in order to properly conduct his duties. Even if it is assumed that the Management has failed to provide any relevant documents which would suggest that the respondent was entrusted with supervisory/managerial work in the hospital but even then considering the wide range of supervisory duties and responsibilities of a medical practitioner in a government hospital, the same would not lead to a conclusion that the medical practitioner is a workman within the definition of Section 2 (s) of the Industrial Disputes Act. 20. In the case of Employees’ State Insurance Corporation’s Medical Officer’s Association Vs. Employees’ State Insurance Corporation And Another reported in (2014) 16 SCC 182 , the primary question, which fell for consideration was whether doctors discharging functions of Medical Officer i.e. treating patients in Employees State Insurance Corporation, Dispensaries/Hospitals are workmen within the meaning of expression contained in Section 2(s) of the Industrial Disputes Act or not. 21. The judgment rendered in the case of Heavy Engineering Corporation Ltd (supra) was also taken into consideration and ultimately it was held as follows:- “11. In the present case Respondent 2 had appeared as a witness before the Labour Court. He had, inter alia, stated that he had been appointed along with other doctors and had joined duties on 18-5-1978. The judgment rendered in the case of Heavy Engineering Corporation Ltd (supra) was also taken into consideration and ultimately it was held as follows:- “11. In the present case Respondent 2 had appeared as a witness before the Labour Court. He had, inter alia, stated that he had been appointed along with other doctors and had joined duties on 18-5-1978. He was posted at the first-aid post and along with him one dresser was working and the main duty of Respondent 2 was to give first-aid to the workers on duty. While he did state that he never sanctioned the casual leave of the dresser, who was working with him, but in the latter part of his statement it is recorded that “in the years 1978 and 1979 I had counter-signed on the casual leave register”. It was also stated by him that “the dresser used to work with him, his name was J. Dadel, along with three dressers and two labourers”. He, of course, categorically stated that he was not doing supervisory work. One of the witnesses who appeared on behalf of the management stated that the in-charge of the first-aid post is the doctor on duty and the male nurse, nursing attendant, sweeper and ambulance driver are subordinate to this in-charge. 22. If the case of the respondent is considered in the context of the judgment rendered in the case of Employees’ State Insurance Corporation’s Medical Officer’s Association (Supra), the same would lead to a solitary conclusion that the learned Tribunal has misconstrued the provisions of Section 2 (s) of the Industrial Disputes Act and has not at all taken into consideration the performance duties and responsibilities of a medical professional which is a specialized field in itself. The finding of the learned Tribunal with respect to the respondent being a workman within the definition of Section 2(s) of the Industrial Disputes Act is apparently illegal and a finding not based on proper appreciation of the facets of the case. It is thus held that the respondent is not a workman as defined in Section 2(s) of the Industrial Disputes Act. 23. It is thus held that the respondent is not a workman as defined in Section 2(s) of the Industrial Disputes Act. 23. Since the initial issue, which was to be determined has already been decided against the respondent by holding that he is not a workman in terms of Section 2 (s) of the Industrial Disputes Act, the question as to whether his termination was legal and valid automatically becomes redundant. 24. Accordingly, in view of the discussions made hereinabove, this writ application is allowed and the impugned Award dated 24.6.2003, passed by the learned Central Government Industrial Tribunal No. 2 at Dhanbad in Reference No. 80/1997 is hereby set aside. Application allowed.