Karnataka High Court
Dr. K. Bhasker Rai S/O K. Padmanabha Rai vs The Karnataka Soaps And Detergents Ltd. ... on 8 March, 2006
Author: H.N. Nagamohan Das
Bench: H.N. Nagamohan Das
ORDER H.N. Nagamohan Das, J.
Page 0204
1. In this petition the petitioner has prayed to declare his appointment as whole time Visiting Medical Officer with an incremental scale of pay is equal to that of Manager, to quash Annexure D, the newspaper publication inviting applications for appointment of Visiting Medical Officers, to quash the endorsement dated 02.07.2001, Annexure Q to the writ petition discontinuing the services of the petitioner and for other reliefs.
2. The first respondent - the Karnataka Soaps and Detergents Limited, is a company registered under the Companies Act, hereinafter called the Company. The Company appointed the petitioner as Visiting Medical Officer on monthly retainership basis in the year 1986 initially for a period of 12 months. This appointment of the petitioner came to be extended from time to time. The Company, by its order dated 15.05.2001, extended the appointment of the petitioner until further orders as per Annexure C to the writ petition. The retainer fee of the petitioner was also revised from time and time and the same was at Rs. 6,500/- per month and Rs. 1,000/- towards conveyance allowance as on May 2001. On 07.06.2001, the Company issued a newspaper publication inviting applications from eligible candidates for appointment as Visiting Medical Officer. Aggrieved by this, the petitioner has filed this writ petition.
3. During the pendency of this writ petition, this Court issued an order of stay, staying the newspaper publication dated 09.06.2001 issued by the Company. During the pendency of the writ proceedings, the Company issued a notice on 29.06.2001 to the petitioner offering a consolidated retainer fee of Rs. 5,000/- per month and to confirm the acceptance of the same on the same day before 5.00 PM This notice dated 29.06.2001 was served on the petitioner at 4.47 PM on 29.06.2001. The petitioner Page 0205 requested for some time to convey his acceptance. Reacting to this, the Company passed an order on 02.07.2001 discontinuing the services of the petitioner. In view of this development, the petitioner has also called in question the order dated 02.07.2001 discontinuing his services.
4. Sri. Pandit, learned Counsel for the petitioner contends, that as per Section 45 of the Factories Act, 1948 (the Act' for short) and the Karnataka Factories Rules, 1969 ('the Rules' for short the Company is liable to maintain an ambulance room and this ambulance room shall be under the charge of one whole time Medical Practitioner. In contravention of the provisions of the Act and the Rules, the Company appointed a temporary Visiting Medical Officer on retainership. The petitioner, though appointed as Visiting Medical officer, is a workman as defined under the Act. The petitioner's appointment as Visiting Medical Officer in the year 1986 is extended from time to time upto Jury 2001 and therefore, he is entitled for regularisation of his services. Arbitrarily and illegally, the Company discontinued the services of the petitioner by their order dated 02.07.2001. He contends, that the Company is not entitled to discontinue the services of the petitioner to appoint another Visiting Medical Officer on retainership. Reliance is placed on the following decisions.
1. T.I. Cycles of India v. E.S.I.C., Madras 1977(2) LLJ 222
2. State of Haryana and Ors. v. Piara Singh and Ors. `.
4. Per contra, Sri. MH. Motgi, learned Counsel for the Company contends, that the appointment of the petitioner is purely on retainership basis initially for a period of 12 months. From time to time, at the request of the petitioner, the retainership was extended by enhancing the retainer fee. The relationship between the petitioner and the Company is purely a contract Any violation of terms of contract will only result in a civil dispute. He contends, that a writ petition under Article 226 of the Constitution in respect of contractual disputes is not maintainable. He contends, that the petitioner is not entitled for regulatisation and he justifies me action of the Company.
5. Heard arguments oil both the sides and perused the entire writ papers.
6. Section 45(4) of the Factories Act, 1948 reads as under:
45. First-aid appliances.-(1) There shall in every factory be provided and maintained so as to be readily accessible during all working hours first-aid boxes or cupboards equipped with the prescribed contents, and the number of such boxes or cupboards to be provided and maintained shall not be less than one for every one hundred and fifty workers ordinarily employed [at any one time] in the factory.
(2) Nothing except the prescribed contents shall be kept in a first-aid box or cupboard.
(3) Each first-aid box or cupboard shall be kept in the charge of a separate responsible person [who holds a certificate in first-aid treatment recognised by the State Government] and who shall always be readily available during the working hours of the factory.] Page 0206 (4) In every factory wherein more than five hundred workers are [ordinarily employed] there shall be provided and maintained an ambulance room of the prescribed size, containing the prescribed equipment and in the charge of such medical and nursing staff as may be prescribed [and those facilities shall always be made readily available during the working hours of the factory.] Rule 92 of the Karnataka Factories Rules, 1969, reads as under:
92. Ambulance Room.- (1) Every ambulance room shall be under the charge of at least one whole-time qualified medical practitioner (hereinafter referred to as Medical Officer) assisted by at least one qualified nurse or dresser-cum-compounder and one nursing assistant in each shift.
7. Admittedly mere are more man 500 employees in the establishment of the Company. A combined reading of Section 45 of the Act and Rule 92 of the Rules specifies, that it is obligatory on the part of the Company to maintain an Ambulance Room. This Ambulance room shall be under the charge of atleast one whole time Medical Practitioner. In contravention of this statutory obligation, the Company appointed a Visiting Medkal Officer on temporary basis and on payment of monthly retainership. Admittedly the Company appointed the petitioner as Visiting Medical Officer on monthly retainer fee in the year 1986. This appointment of the petitioner was extended from time to time up to July 2001. The Company, without taking necessary steps to appoint a whole time Medical practitioner, cannot issue a newspaper publication on 09.06.2001 inviting applications from eligible candidates for appointment again as Visiting Medical Officers on the same terms and conditions. This act of the Company is contrary to Section 45 of the Act and Rule 92 of the Rules. The Supreme Court in the case of State of Haryana and Ors. v. Piara Singh and Ors. held, that an ad-hoc or temporary employee should not be replaced by another ad-hoc or temporary employee, he must be replaced only by a regular selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority. In view of this dictum of the Apex Court, the action of the Company in issuing the newspaper publication to appoint another Visiting Medical officer on retainership and on temporary basis in place of the petitioner who is also a Visiting Medical Officer on retainership and on temporary basis is illegal and arbitrary. Hence, the impugned newspaper publication dated 09.06.2001, Annexure D to the writ petition is liable to be quashed.
8. During the pendency of this writ petition the Company by notice dated 29.06.2001 called upon the petitioner to express his willingness by 5.00 PM on the same day as to whether he is willing to continue as Visiting Medical Officer on retainer fee of Ra. 5,000/- P.M. This notice dated 29.06.2001 was served on the petitioner at 4.47 PM. The petitioner on receipt of this notice requested the Company to grant some time to convey his consent about the offer made by the Company. The Company without extending time as requested by the petitioner discontinued the services of the petitioner as Visiting Medical Officer by their impugned endorsement dated 02.07.2001. It is not in dispute Page 0207 that the date on which the company notice dated 29.06.2001 was issued, me petitioner was drawing a retainership fee of Rs. 6,500/- per month plus Rs. 1,000/- as conveyance allowance. But in the impugned notice dated 29.06.2001 the Company offers a retainerhship fee of Rs. 5,000/- per month which is much lower than what was drawn by the petitioner. That apart, this notice dated 29.06.2001 was served on the petitioner at 4.47 PM asking him to convey his willingness about the offer made before 5.00 PM. Thus only 13 minutes time was left to the petitioner to accept or reject the offer made by the Company. When the petitioner requested for extension of time to convey his consent, the same was not granted by the Company. On the country, the Company by their endorsement dated 02.07.2001 discontinued the services of the petitioner. This act on the part of the Company is illegal, arbitrary and unjust.
9. The contention of the learned Counsel for the Company that the appointment of the petitioner in the year 1986 as Visiting Medical Officer on retainership fee on temporary basis is purely a contract and any breach of terms of this contract results in a civil dispute and therefore this Court cannot entertain the writ petition is unacceptable to me. Admittedly there is a statutory obligation on the part of the Company to maintain an ambulance room. Further, it is not in dispute that the ambulance room shall be under the charge of atleast one whole time Medical Practitioner. The Company instead of appointing a whole time Medical Officer appointed the petitioner as a Visiting Medical Officer cm temporary basis. The work of petitioner as Visiting Medical Officer of the Company is incidental to or preliminary or connected with the work of the factory of the Company. Therefore, though the petitioner is appointed as a Visiting Medical Officer, he is a worker as defined under the Factories Act and the Rules made thereunder. This view is supported by a decision of a Division Bench of Madras High Court in the case of T.I. Cycles India Limited v. ESIC Madras 1977 (2) LLJ 222. Therefore there m no substance and merit in the contention of the Company that the relationship between the petitioner and the Company is a simple contract and this Court has no jurisdiction under Article 226 of the Constitution.
10. For the reasons stated above, the following:
ORDER I. Writ petition is allowed in part.
II. The impugned paper publication issued by the Company dated 09.06.2001 Annexure D to the writ petition and the endorsement dated 02.07.2001, Annexure O to the writ petition discontinuing the services of the petitioner are hereby quashed.
III. The Company is directed to reinstate the petitioner as Visiting Medical Officer on the same terms and conditions when he was discontinued from service till the respondent - Company appoints a whole time Medical Practitioner as required under Section 45 of the Factories Act and Rule 92 of the Factories Rules.
IV. The petitioner is not entitled for any remuneration for the period from 01.07.2001 till the date of disposal of this writ petition.
V. Ordered accordingly with no order as to costs.