Delhi District Court
The vs Ms. Marykutty W/O. Sh. K.K. Kurian on 5 June, 2009
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IN THE COURT OF SHRI SANJAY GARG : POLC : V : KARKARDOOMA:
DELHI.
ID No. 337/08
BETWEEN
The management of M/s. Indraprastha Apollo Hospital, Sarita Vihar,
Delhi Mathura Road, New Delhi-44.
AND
The Workman Ms. Marykutty W/o. Sh. K.K. Kurian, A/87, Nehru Gali,
Mandawali Extn., Delhi-92.
DATE OF INSTITUTION : 1.7.98
DATE OF ARGUMENTS : 27.5.09
DATE OF AWARD : 5.6.09
AWARD
The Secretary (Labour) Govt. of N.C.T. of Delhi has referred the
Industrial Dispute for adjudication to this Court vide Order No. F.24(2365)/98-
Lab./20162-66 dated 16.6.98 in the following terms of reference :
"Whether the services of Ms. Marykutty Kurian have been
terminated illegally and/or unjustifiably by the management, and if
so, to what relief is she entitled and what directions are necessary
in this respect?"
2. The brief facts as mentioned by claimant in her statement of claim
are that she is a diploma holder in General Nursing & Midwifery. She joined
the services of the management on 10.6.96 and her last drawn wages were
Rs. 6082/-. She performed her duties diligently, sincerely and efficiently. She
was confirmed in the service by the management on 12.12.96. At the time of
appointment she was given high sounding designation of 'Nurse Manager" and
was assigned permanent night shift. She used to perform her duties of
ordinary nurse, mainly attending to emergency patient care during night shifts
without any independent decision making powers or managerial functions.
Due to change of some senior officers in the management, she and some of
her colleagues were harassed by the management by arbitrary changing the
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shifts and nature of work being performed by them. The management stopped
assigning any duty to her w.e.f. 1.7.97. She repeatedly reported for duties but
no duty was assigned to her. She met the Senior Officers requesting them to
assign her work but no work was assigned to her. He services were
terminated by the management vide letter dated 18.8.97 without giving any
chargesheet and conducting any enquiry. She sent a registered AD demand
notice to the management on 7.11.97 but it was not replied. She raised the
dispute before the Conciliation Officer and as management refused to attend
the conciliation proceedings, this effort also failed. It is stated that action of
the management is arbitrary and illegal. She has prayed to be reinstated with
full back wages and all consequential benefits.
3. Management contested the claim and filed written statement taking
preliminary objection that M/s. Indraprastha Apollo Hospital is not a legal entity
and no hospital with this name exists. It is stated that claimant is not a
workman within the meaning of section 2(s) of the I.D. Act as she was
appointed as a Nurse Manager. On merits, it is denied that claimant was
given a high sounding designation of Nurse Manager. It is stated that in fact
she was performing administrative and supervisory duties. It is denied that
claimant was performing duties of an ordinary nurse and she was mainly
attending emergency patients during night shifts. It is stated that services of
the claimant were terminated vide letter dated 18.8.97 in accordance with the
terms and conditions of her contract of employment. She was duly paid three
months salary in lieu of three months notice and a cheque for Rs.16284/- was
duly given to her in full and final settlement of her dues. It is stated that since
services of the claimant were lawfully terminated, she is not entitled to any
relief.
4. The claimant files rejoinder reiterating her submissions in
statement of claim and refuting the averments made by management in its
written statement.
5. On the basis of pleadings of the parties following issues were
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framed on 18.5.99 :-
1.Whether M/s. Indraprastha Apollo Hospital is separate legal entity? If so, to what effect?
2. Whether the claimant is a workman?
3. Whether services of the claimant were terminated illegally and/or unjustifiably?
4. Relief.
6. In evidence claimant examined herself as WW1. She filed her affidavit Ex.WW1/A and relied upon the documents Ex.WW1/1 to WW1/21. Ex.WW1/1 is the copy of advertisement dated 13.2.96, Ex.WW1/2 is the copy of brochure issued by management, Ex.WW1/3 is the letter dated April, 96 to Mrs. Gupta, Ex.WW1/4 is the letter of appointment dt. 10.6.96, Ex.WW1/5 is the copy of agreement dated 9.5.96, Ex.WW1/6 is the letter of confirmation dated 12.12.96, Ex.WW1/7 is the circular of CEO dated 7.6.97, Ex.WW1/8 is the letter from staff, Ex.WW1/9 is the copy of letter dated 2.3.97, Ex.WW1/10 is the copy of letter no. 010/1-79 dated 25.9.97, Ex.WW1/11 are the four registered A.D. Receipts, Ex.WW1/12 is the copy of letter dated 3.7.97, Ex.WW1/13 is the letter dated 18.8.97 from Managing Director, Ex.WW1/14 is the notice to Indraprastha Apollo Hospital, Ex.WW1/15 is the acknowledgment from dated 20.6.96 against receipt of original certificates, Ex.WW1/16 is the copy of letter dated 29.3.99 to D.G.M, Ex.WW1/17 is the complaint dated 31.3.99 to Commissioner of Police, New Delhi, Ex.WW1/18 is the reminder to Police Commissioner dated 8.4.99, Ex.WW1/19 is the legal notice to Indraprastha Apollo Hospital dated 18.1.99, Ex.WW1/20 is the postal receipt and Ex.WW1/21 is the copy of letter dated 18.4.99 from DGM Personnel. The management examined two witnesses in its evidence. MW1 is Sh. Rohit Kapoor. He filed his affidavit Ex.MW1/A and relied upon the documents Ex.MW1/1 to Ex.MW1/10. Ex.MW1/1 and MW1/2 are the letters dated 1.2.99 written by Director Nursing Services to the Nurse Managers Ms. Joshi and Ms. Khati, Ex.MW1/3 is the job specification and job description of Apollo Hospitals Madras, Ex.MW1/4 is inter office memo dated 3.7.97 issued by Director Health Education & Services (Nursing), Ex.MW1/5 and MW1/6 are the 4 inter office memos dated 10.7.97 and 31.7.97 issued by C.E.O., Ex.MW1/7 is the copy of the registered A.D envelope sent to the claimant, Ex.MW1/8 is the letter dated 18.8.97 issued by Managing Director to claimant intimating her about her termination with immediate effect, Ex.MW1/9 is the UPC receipt and Ex.MW1/10 is the copy of the postal receipt. MW2 is Ms. Sabita Subramaniam. She filed her affidavit Ex.MW2/A.
7. Heard arguments of Sh. N.A. Sabestian, Ld. AR for claimant and Sh. Alok Bhasin, Ld. AR for management. Both the parties also filed written submissions. Perused the record.
8. On my due consideration of material on record; submissions made by AR for the parties and relevant legal provisions and case law; my findings on issue are as follows:-
ISSUE NO.1
9. During the course of arguments Ld. AR for management did not press for issue No.1 which was framed on the basis of the preliminary objections taken by the management in its written statement. Accordingly, this issue is decided in favour of the claimant and against the management.
ISSUE NO.2
10. The Ld. AR for management contended that claimant was employed as a Nurse Manager and even her appointment letter Ex.MW1/4 shows that she was offered the position of Nurse Manager. It is argued that even her confirmation letter Ex.WW1/M-1 and her performance appraisal Ex.WW1/M-2 describes claimant as Nurse Manager. The Ld. AR vehemently urged that claimant was performing managerial, supervisory and administrative duties and management while assessing her performance was focusing on her management skills including her capability to control and supervise her subordinates. The Ld. AR has further submitted that even the 5 letters Ex.WW1/10 and WW1/14 sent by claimant to management mentions her designation as Nurse Manager and it has nowhere been alleged that she was merely designated as Nurse Manager but she was actually performing only clerical or manual duties.
11. Per contra Ld. AR for claimant submitted that claimant had in fact applied for post of Staff Nurse but she was appointed as Nurse Manager but the duties performed by her was of an ordinary nurse. Claimant was performing the duties of nurse giving injections to patients, bandaging, taking care of patients etc. and nobody was working under her and she was not supervising anybodies work.
12. The definition of workman is provided u/s. 2(s) of the I.D. Act which runs as follows :-
"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 (45of 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, 6 draws wages exceeding one thousand six hundred 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.
13. To support their contentions both the parties has relied upon various judgments. Few out of these which are found relevant and important are discussed herewith. The Ld. AR for claimant relied upon 1998 LAB I.C 2674. the case titled Secretary Larambha Service Co-operative Society Ltd. Vs. Suresh Chandra Chhuria, wherein the Court has observed as under :-
"The contention of the learned counsel for the petitioner proceeds on the assumption that as opp. Party No.1 was doing Office work, may be in managerial or in administrative capacity, he could not be said to be a workman. In our view, however, a mere reference to the designation of an employee would not by itself be sufficient to determine whether the said person was or was not a workman. What is to be seen is that dehors his designation what was the nature of duty that was assigned to the person in question and what was practically required to be done by him. Therefore, the true test would be to see the nature of the main duties of the employee or in other words, it will have to be seen what in substance the work he does or for what he was in substance, employed. There may be instances where a person may be mainly engaged to do or mainly doing a supervisory, managerial or administrative work, he may occasionally or incidentally be asked to do or may be doing some manual or technical work. On the other hand, there might be a case where a person is mainly employed to do manual, unskilled, skilled, technical or operational work, he may incidentally be asked to do or doing supervisory, managerial or administrative work. In the first case, by incidentally doing operational work, the person concerned, cannot call himself a 7 workman while in the second case, merely because a person is doing some managerial or administrative work, will not amount to mean that he was employed for managerial or administrative work. Thus, it is not casual or occasional work which a particular employee does which is decisive of what is the nature of his employment, nor is decisive of the question whether falls within the definition of workman. In the case at hand, the Presiding Officer, Labour Court on the basis of material produced before him has clearly held that though opp. Party No.1 was designated as the Assistant Secretary, he was in fact, all along performing the duty of a salesman and was dealing with the sales of fertilizers. No material whatsoever was adduced or has been adduced by the petitioner to show that opp. Party No.1 was, in fact, discharging the duties in the managerial or administrative capacity. On the contrary, it was more or less an admitted position that he was dealing with the sale of fertilizer. The Labour Court, therefore, was of the opinion that as Opp. Party No. 1 was discharging the duties of a salesman, all along, he was a workman within the meaning of the Act."
14. The Ld. AR for claimant has further relied upon 1985 3 SCC 371, the case titled Arkal Govind Raj Rao Vs. Ciba Geigy of India Ltd., Bombay, wherein the court has observed as follows :-
"Where an employee has multifarious duties and a question is raised whether he is a workman or someone other than a workman, the test that court must employ in order to determine the question is what was the primary, basic or dominant nature of duties for which the person whose status is under enquiry was employed. If he is incidentally asked to do some other work, may not necessarily be in tune with the basic duties, these additional duties cannot change the character and status of the person concerned. When primary or basic duties of a person are shown to be clerical but some stray assignments are made 8 to create confusion, the gloss has to be removed to peruse the reality. A few extra duties would hardly be relevant to determine his status. The words like managerial or supervisory have to be understood in their proper connotation and their mere use should not detract from the truth".
........"6. Where an employee has multifarious duties and a question is raised whether he is a workman or someone other than a workman the Court must find out what are the primary and basic duties of the person concerned and if he is incidentally asked to do some other work, may not necessarily be in tune with the basic duties, these additional duties cannot change the character and status of the person concerned. In other words, the dominant purpose of employment must be first taken into consideration and the gloss of some additional duties must be rejected while determining the status and character of the person. Appreciation of evidence by Labour Court cannot be faulted but it landed itself into an erroneous conclusion by drawing impermissible inference from the evidence and overlooking the primary requirement of the principal and subsidiary duties of the appellant".
15. The Ld. AR for management, to support his contentions has relied upon 2005 Volume 3 LLJ 95, Bombay, the case titled Inthru Noronha Vs. Colgate Palmolive (India) Ltd., wherein the Bombay High Court has observed as follows :-
"In deciding a case such as the present, the Court must be careful not to place its construction of legal categories into a strait-jacket. Business in recent years has been marked by rapid organizational changes. The swift evolution of technology has led to a quantum change in the business environment. Modern managements have to alter the structure of organization in order to meet the exigencies of the time. Every employee in the 9 managerial cadre may not necessarily have the power to appoint or dismiss personnel, nor indeed would an employee engaged mainly in a managerial or administrative capacity always have the power to sanction leave applications. Similarly, the rest [test?] of the existence of control over subordinates may be applicable in certain factual situations, but not necessarily in every conceivable case. In others, control over subordinates may not necessarily be by all personnel in the managerial cadre. The number and strength of the subordinate staff depends upon the nature of the business that is being conducted. It would, for instance, be wholly inappropriate to apply the same test which would govern the organization of a traditional form of manufacturing business to a business founded on software, bio- genetics or a business at the cutting edge of technology. The interpretation of Section 2(s) must be such as would not lead to stultifying innovation, development and change in managerial practice. Business managers should have a high degree of latitude to promote efficiency in a competitive business environment. Courts are of course vigilant to deal with subterfuge. The important thing for the Court is to evaluate the position of an employee with reference to nature of his duties in the context of the business where those duties are performed."
16. The Ld. AR has also relied upon Sonepat Cooperative Sugar Mills Limited Vs. Ajit Singh- (2005) 3 SCC 23. The Supreme Court has again surveyed the entire case laws as to who is workman and held as under :-
"Thus, a person who performs one or the other jobs mentioned in the aforementioned provisions only would come within the purview of the definition of workman. The job of a clerk, ordinarily implies stereotype work without power of control or dignity or initiative or creativeness. The question as to whether the employee has been performing a clerical work or not is required 10 to be determined upon arriving at a finding as regards the dominant nature thereof. With a view to give effect to the expression to do "any manual, unskilled, skilled, technical, operational, clerical or supervisory work", the job of the employee concerned must fall within one or the other category thereof. It would, therefore, not be correct to contend that merely because the employee had not performing any managerial or supervisory duties, ipso facto he would be a workman."
17. The ratio of these judgments has to be applied to the facts of this case brought on record by both the parties. The claimant in her affidavit Ex.WW1/A has reiterated the pleadings of her statement of claim. During her cross-examination she has admitted to have received letter Ex.WW1/M-1 vide which she was informed about her pay scale and grade. She admitted that Ex.WW1/M-2 is the copy of her performance appraisal bearing her signatures. She denied the suggestion that she has falsely deposed in her affidavit that during interview it was explained to her that she may be given duties of an ordinary nurse but her designation will be Nurse Manager. She denied that she has deposed falsely in her affidavit that at the time of her appointment she was told by Nursing Superintendent that her designation of Nurse Manager was given only to impress upon the general public. During cross-examination she admitted that as a Nurse Manager she used to do the work of handing and taking over the supervisory reports at various shifts about new admissions, all cases in critical care areas, deliveries, surgery, death and any untoward incident. She used to check the attendance and punctuality at the wards and departments at the start of her shift. She used to take rounds of the wards and departments and she also used to check the medical and nursing records of the patients and other related documents maintained by nurses. However, she denied the suggestion that she used to deploy man-power in the wards and departments. She further denied the suggestion that she was empowered to recommend leave for the staff working under her.
18. The management examined two witnesses to establish its defence.
11MW1 Sh. Rohit Kapoor, Dy. Manager (Personnel) in his affidavit Ex.MW1/A has deposed that claimant was employed as a Nurse Manager and she used to discharge supervisory and administrative duties. Explaining the hierarchy in the Nursing Department he deposed that Nurse Director holds No. 1 post to whom Nursing Superintendent directly reports. The Nurse Manager comes after Nursing Superintendent. After Nurse Manager comes the charge nurses, sisters incharge, staff nurses, nurse aides and general workers employed in the Nursing Department. The staff members like charge nurses, sister incharge, staff nurses used to work under her direct administrative and supervisory control. The claimant used to deploy manpower in the wards/departments, supervise and oversee the attendance and punctuality of her subordinates, take rounds of wards and departments, check the medical and nursing records of the patients and other related documents as maintained by her subordinates and provide orientation to the new staff in the Nursing Department. The claimant could have bind the management in respect to the decisions taken by her in performance of her duties. The claimant was competent to recommend leave for the staff working under her. It is stated that claimant's work was not to give injections to patients, bandaging, giving medicines etc. Subsequently, the designation of Nurse Managers was re-designated as Senior Nursing Supervisor. At no point of time management had given assurance or undertaking to the claimant that she would be put on duty only in the night shift. During cross-examination MW1 has deposed that he could not see any application for employment by the claimant made in response to advertisement of the management in the personal file of the claimant.
19. MW2 Ms. Sabita Sabramaniam, Dy. Nursing Superintendent also deposed on the similar lines as deposed by MW1. She stated that claimant was discharging supervisory and administrative duties. The claimant was competent to recommend leave for the staff working under her and she was instrumental for formulation and achievement of an annual plan for nursing activities, quality improvement and monitoring the use of budgeted resources etc. The claimant used to participate in Multi Disciplinary Group discussions to 12 review and formulate policies, protocols and procedures for Nursing Department. She used to regularly assess the performance of her subordinates and also used to identify individual nurses with potentials for professional development and skill enhancement. During cross-examination MW2 stated that she was appointed as Nurse Manager and she used to advise to initiate disciplinary proceedings against erring nurses. She had the power to sanction leave and to recommend the appointment. MW2 deposed that she did not participate in the strike of the employees and Nurses in 1998. She further deposed during her cross-examination that she has not brought any document to show that claimant used to recommend leave of her subordinates. She is not in possession of any document to show that claimant used to issue written instructions to her subordinate staff in discharge of her supervisory and administrative duties. The claimant had recommended individual Nurses for professional development and skill enhancement.
20. One of the main contention raised by Ld. AR for claimant is that she never applied for the post of Nurse Manager and this designation was given to her by the management was a camouflage. However, claimant has failed to bring any document on record to show that she only applied for the post of Nurse and not of Nurse Manager. Ex.WW1/4 is a letter of appointment dated 10.6.96 issued by management to the claimant bearing designation of the claimant as Nurse Manager in the Division of Nursing. It is not the plea of the claimant if she had ever objected to this designation. Ex.WW1/9 is a letter dated 2.3.97 written by claimant to Ms. A. David, Director (Nursing), wherein she has mentioned her designation as "Night Nurse Manager". In view of the aforesaid reasons, there remains no doubt that claimant was inducted into service as a Nurse Manager and till her cessation of service she continued working under the same designation.
21. To see the nature of duties being performed by claimant, let us see what were the duties assigned to Nurse Manager as per the rules and regulations of the management. To prove the job specification of the claimant, management has relied upon Ex.MW1/3 which is Job Specification and Job 13 Description of Apollo Hospital, Madras. What is the applicability of this document to the present management has nowhere been explained by the management. To explain the nature of duties which a Nurse Manager was required to perform, Ld. AR for management has drawn my attention to the advertisement filed by claimant as Ex.WW1/1. In this advertisement, the requirements and the nature of duties which Nurse Manager was required to perform is found mentioned as "Responsible for the efficient, co-ordination and management of nursing and patient care support services in the designated clinical sector." My attention is also drawn to the nature of duties of Charge Nurses and Staff Nurses mentioned in the same advertisement. To differentiate the nature of duties being performed by Nurse Manager from Charge Nurses and Staff Nurses, the requirements of the management for these posts is required to be looked into. The nature and place (department) of duty of Charge Nurses and Staff Nurses is as follows :-
CHARGE NURSES "Responsible for the day to day management of a designated unit to ensure high quality and skilled nursing is provided.
Cardio-thoracic ICU/stepdown Medical/Surgical (2 positions) Burns Unit.
Post-operative recovery room.
STAFF NURSES A variety of clinical positions are available for RNs with min.2-3 years experience in their preferred field of nursing. WE seek skilled nurses for :
Burns Unit Cardio-thoracic intensive care Operating theatres
- general
- orthopaedic
- plastic surgery"
22. Instead of being responsible for day to day management of a Unit and performing basic nursing duty, as apparent from the advertisement 14 Ex.WW1/1, the Nurse Manager was responsible for efficient co-ordination and management of nursing and patient care support services. Now coming to the actual duties being performed by the claimant, the relevant statement made by claimant during her cross-examination, explaining the nature of duties performed by her is as follows :-
"It is correct that as a Nurse Manager I used to do the work of handing and taking over the supervisory reports at various shifts about new admissions, all cases in critical care areas, deliveries, surgery, death and any untoward incidents. It is incorrect that I also used to deploy menpower in the wards and the departments. It is correct that I used to check the attendance and punctualities at the wards and departments at the start in my shift. It is correct that I also used to take rounds of the wards and departments. It is correct that during my shift I was also checking the medical and nursing records of the patients and other related documents maintained by nurses."
23. Before taking stock of various circumstances discussed above, the hierarchy in the Nursing Department of the management requires to be looked into. As per MW1 the hierarchy from top to bottom is as follows :- Nurse Director- Nursing Superintendent - Nurse Manager - Charge Nurses - Sisters Incharge - Staff Nurses - Nurse Aides - General Workers employed in the Nursing Department. This hierarchy has nowhere been denied by the claimant. The appointment of the claimant as Nurse Manager ipso facto shows the senior position held by her in the hierarchy from the bottom.
24. The claimant has specifically pleaded in her affidavit Ex.WW1/A that though the designation given to her was that of Nurse Manager but her duties and responsibilities were that of an ordinarily Nurse like mainly attending the emergency patients, care during night shifts, performing manual work and occasionally doing clerical work. Whereas as per management, claimant was mainly doing supervisory and managerial duties and was not performing routine nursing duties. What were the exact nature of duties being 15 performed by claimant, could have been easily established by production of the relevant record for the relevant duration. But neither management produced any such record nor claimant sought directions to the management to produce these records before this Court.
25. In view of the aforesaid reasons, the high designation of Nurse Manager held by the claimant in the hierarchy, inter-alia, the nature of duties being performed by her, as admitted by her during her cross-examination discussed in above paras, shows that claimant was mainly performing supervisory and managerial functions. As observed by the Court in Secretary Larambha (Supra), the claimant was mainly engaged to do or she was mainly doing supervisory, managerial or administrative work and she may be occasionally or incidentally doing some manual work of an ordinary Nurse or other clerical work. In these circumstances, claimant cannot be held to be a workman.
26. In view of the aforesaid reasons, this issue is decided in favour of the management and against the claimant.
ISSUE NO. 3 & 427. In view of the findings on issue No.2, both these issues get redundant. The claimant is accordingly held not entitled to any relief. Reference is answered accordingly.
A copy of this award be sent to the appropriate government for its publication.
File be consigned to record room.
Date: 5.6.2009 (SANJAY GARG)
PRESIDING OFFICER
LABOUR COURT: V
DELHI.