Delhi District Court
The Secretary (Labour) Govt. Of The ... vs Burmah Shell Management Staff ... on 24 March, 2007
1
IN THE COURT OF SH. R.K. JAIN, PRESIDING OFFICER,
LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI.
ID NO. 238/2000
BETWEEN
Its work-woman
Smt. Rita Joy,
59-B, J&K Pocket, Dilshad Garden,
Delhi 95.
AND
The Management
M/s. Indraprastha Medical Corporation Ltd.,
Indraprastha Apollo Hospitals, New Delhi,
Sarita Vihar, Delhi - Mathura Road,
New Delhi - 44.
AWARD
1.The Secretary (Labour) Govt. of the National Capital Territory of Delhi has referred this dispute arising between the parties named above for adjudication to this labour court vide notification No. F. 24 (471)/00-Lab./12147-51 dated 27.3.2000 with the following terms of reference:-
'Whether the services of Mrs. Rita Joy 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. After receipt of the reference, notice was sent to the work-
woman who filed her statement of claim submitting therein that she 2 was employed with the management on 1.8.96 as a Charge-nurse by the Chief Executive Officer (Operations) of the management on a consolidated salary of Rs. 5400/- per month. It is further submitted that on 5.8.1997 she was placed in pay-scale of Rs. 3500-5230 in the grade of NS3 w.e. f. 2.8.96 and confirmed in the service of the management w.e. f. 2.8.97. Vide letter dated 29.8.97 the management granted her a sum of Rs. 570/- as special increment and her salary was revised to Rs. 6270/- per month w.e. f. 1.8.97 with next increment due on 1.8.98. After that in the month of September, 1997 the claimant was promoted as Nursing Manager and vide letter dated 7.9.97 the claimant informed the management thereby explaining the difficulties to accept the said post as it involved shift duties and that the management accepted her said request on 16.9.97 and retained the claimant in the old post of Charge-nurse.
3. It is further submitted that on 13.1.98 the management issued a show cause notice leveling certain baseless charges, which was replied vide reply dated 19.1.98 and that the management served a charge- sheet on her on 4.2.98 mentioning that her reply to the show cause notice was found to be unsatisfactory and thereupon the management conducted a domestic enquiry into the above allegations and placed the work-woman under suspension with subsistence allowance by the 3 Deputy Manager Personnel. On 28.2.98 a letter was received from the enquiry officer, thereby, advising the claimant to appear on 14.3.98 either in person or through a representative, but on that day the work- woman could not appear before the enquiry officer and that the enquiry officer granted one more opportunity to participate in the proceedings for 28.3.98 on which the enquiry officer gave her two weeks time to file reply and the management could not file the statement of fact and that on 11.4.98 the work-woman filed her reply and requested the enquiry officer to treat the said reply dated 19.1.98 as the reply to the charge-sheet and the said document was taken on record by the enquiry officer but the management again asked for more time to file their statement of facts. On 9.5.98 the management again sought adjournment which was granted for 20.6.98 and then for 27.6.98. The management filed certain documents on 27.6.98 and the enquiry proceedings were again adjourned for 3.7.98 and on 4.7.98 the enquiry was closed by the enquiry officer and the enquiry officer told the work- woman that the decision of the management based on the enquiry report will be communicated to the work-woman by the management in due course. On 3.8.98 the work-woman requested the management to supply copy of enquiry report as well as the decision of the management. She reminded the management vide reminder dated 4 16.9.98 and that the management on 26.9.98 sent subsistence allowance w.e. f. 4.2.98 to 31.7.98 and on 10.10.98 the management released the subsistence allowance for the period w.e. f. 1.8.98 to 30.9.98.
4. It is further submitted that on 7.10.98 the request for increase in subsistence allowance from 50% to 75% and from 75% to 90% under the existing provisions was made and again requested the management for supply of copy of report of enquiry and again a reminder was sent to the management on 20.11.98 and lastly on 11.3.99.
5. It is further submitted by work-woman that however on 18.3.99 the management released the subsistence allowance up to said date and terminated her services w.e.f. same date without supplying a copy of the enquiry report.
6. It is further submitted that the letter of termination dated 18.3.99 is null and void as the management did not supply a copy of enquiry report.
7. It is prayed that the management should be directed to reinstate her in service with all back wages and arrears.
8. The notice of the claim was sent to the management and the management in its written statement admitted that the work-woman was working as a charge-nurse and claimed that she was not covered 5 within the definition of workman within the meaning of section 2(s) of I.D. Act, 1947.
9. It is further submitted that by virtue of the position held by the work-woman , Sr. Staff Nurses, Staff Nurses and Nurses Aides have been working under her supervision and administrative control. Apart from supervisory and administrative duties performed by the claimant, she was also required, as part of her duty, to maintain stock register and drug account which included narcotics drugs account register.
10. It was further submitted that narcotics drugs being dangerous, it was imperative upon the claimant that the strength of dosages administered to the patients is duly recorded in the drugs register to avoid drug abuse.
11. It was further submitted by management that on 18.11.97 Ms. Rajeshwari Ravi Kumar Nursing Superintendent, during her checking of the stock register, drug account register, indent book as well as narcotics drugs accounts book found that those registers were not maintained properly. The work-woman made nurses to over write on the balance of few drugs and that the narcotics drugs account book was not maintained properly. The nursing Superintendent made her remarks in the register with pencil which were found erased on the next day and instead some entries were made thereafter. Nursing 6 Superintendent upon further checking the imported drug account found that no proper account was available and on physical verification the balance shown in the register did not tally with the actual stock available. Further random checking of items mentioned in Inventory Stock register, showed unauthorised alterations of record in the stock balance of Glocometers.
12. It was further submitted that when the Nursing Superintendent found various irregularities in the said register, the claimant was issued a letter dated 13.1.98 bringing to her notice the various lapses and was called upon to submit her reply and thereupon the claimant submitted her reply on 19.1.98, accepted her responsibility and functions as Charge-Nurse Incharge of the department. Thereafter, the management decided to conduct a fact finding enquiry. The claimant did not controvert the statement made by Ms. Rajeshwari Ravi Kumar while cross-examining her nor controverted/challenged the contents of the report dated 18.11.97.
13. It was further submitted that accordingly, the management came to the conclusion that the claimant being working as Sr. Charge- Nurse Incharge of all CTVS and was holding a supervisory and administrative post and as such aforesaid conduct of the claimant was incompatible with the faithful discharge of her duties and so the 7 management came to the conclusion that her retention in the employment was no longer conducive to the interests of the hospital in general and patients in particular and that no further confidence could be reposed in her and accordingly, her services were terminated vide letter dated 18.3.99.
14. It was further submitted that enquiry officer had conducted a fact finding enquiry and he collected the evidence and passed on the same to the management and the management while taking action against the claimant duly examined all the relevant documents and material on record.
15. In rejoinder the averments made in the claim were reiterated and those made in written statement were denied. The claimant contended that she was not holding any managerial post and she was not having any power supervisory or managerial and had to act according to the directions and control of the nursing Superintendent.
16. On the pleadings of the parties, following issues were framed on 30.5.2001:-
1. Whether the claimant is a workman as defined u/s 2(s) of I.D. Act, 1947?
2. Whether the services of Mrs. Rita Joy have been terminated illegally and/or unjustifiably by the management?8
3. Relief.
17. An award was passed on 17.12.02 when the work-woman failed to lead evidence. That award was set aside and work-woman was allowed to lead evidence but again another award was passed on 6.10.2003 when the work-woman again failed to lead evidence. That award was also set aside by my Ld. Predecessor vide order dated 17.2.2004.
18. After setting aside of the earlier awards, the work-woman examined herself as WW1 and filed her affidavit Ex. WW1/A in support of her case. She also relied on documents photocopies of which are Ex. WW1/1 to WW1/24. The management examined its Manager (Personnel) as MW1 who also filed his affidavit Ex. MW1/A.
19. The written arguments were filed on behalf of the work- woman. I have heard Ld. ARs for the parties and have gone through the relevant record and the written arguments filed on behalf of the work-woman. My findings on the issues above are as follows. ISSUE NO. 1
20. Section 2(s) of Industrial Disputes Act, 1947 defines the 'workman' as under :-
"'Workman' means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, 9 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 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."
21. Under the definition reproduced above, it is manifest that a person to be a 'workman', it is necessary that he must be employed to do :
a) Manual Work
b)Unskilled Work
c)Skilled Work
d)Technical Work
e)Operational Work
f)Clerical Work
g)Supervisory work 10
22. In Burmah Shell Oil Storage & Distribution Co. of Indis Ltd. vs. Burmah Shell Management Staff Association 1970 2 LLJ 590 SC, it was held by three judges bench of the Hon'ble Supreme Court that in order to bring an employee within the ambit of the definition of 'workman' the nature of the work performed by him must fall within one or other of the above seven classifications. The rationale of this holding was that if every employee of an industry was to be workman, except those in the four exceptions, these seven classifications need not have been mentioned in the definition and a workman could have been defined as a person employed in an industry except in a case where he was covered by one of the exceptions. Hence, the specifications of the seven types of work obviously was intended to lay down that an employee is to become a 'workman' only if he is employed to do the work of one of those types while there may be employees who, in doing any such work would not be out of the scope of the work without any resort to exceptions. An apposite example was that of a person employed in canvassing and promoting sales for an industry. Though such a person may be an employee but he would not fall within the definition of 'workman' because his work would not fall within any one of the classifications enumerated in the definition.
23. It is well settled law that the designation of an employee is not 11 of much importance and what is important is the nature of duties being performed by him. The determinative factor is the main duties of the concerned employee and not some work incidentally done. In other words, what is in substance the work which employee does or what is in the substance he is employed to do. Viewed from this angle, the employee is mainly doing supervisory work but incidentally or for a fraction of time, does also some manual or clerical work, the employee should be held to be doing supervision work. Conversely, if the main work is of manual , clerical or technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory work, the employee will come within the purview of the 'workman' as defined in section 2(s) of the Industrial Disputes Act.
24. As per the definition, Supervisor is also 'workman' unless he falls within the exception of clause (iv) of the definition. It is evident from the definition that the employee in order to fall within the definition of 'workman' must have been employed in supervisory capacity. Merely performing some supervisory duty does not take the employee out of the definition of 'workman'.
25. The word 'supervise' and its derivatives are not words of precise import and most often been construed in light of the context, for 12 unless controlled, they cover an easily simple oversight and direction as manual work coupled with a power of inspection and superintendence of the manual work of others.
26. Keeping in view the law laid down by Hon'ble Supreme Court and various contexts which have been coated above, it has to be seen whether the claimant in the present case falls within the definition of 'supervisor' or not because admittedly she was getting a salary of Rs. 5400/- per month. If she was working as a Supervisor with the management then she would be excluded from the definition of workman by virtue of clause (iv) of Section 2(s) of I.D. Act.
27. The claimant in her affidavit Ex. WW1/A stated that she was a 'workman' because she was doing technical work and was not holding any managerial post. Many authorities were cited in the affidavit itself to show that the claimant was not holding any managerial post. But nothing was stated about supervisory work. Rather, in para 8 of the affidavit it was stated that 'by virtue of position held by the claimant paving the way for the staff nurses and nursing aides bringing under her, providing patient care and treatment and holding the charge of equipment, imported drugs and narcotics has not in any way changed her position from workman to managerial post.' Thus, the claimant admitted that some staff nurses and nursing aides were working under 13 her and she was holding the charge of equipment, important drugs and narcotics drugs.
28. In her cross-examination, the claimant admitted that before joining the management she was working as sister Incharge in Dharamshila hospital. She admitted that the appraisal report of two staff nurses Ex. WW1/M2 and WW1/M3 were prepared by her. She admitted that she used to conduct the performance appraisal of her subordinates.
29. In her further cross-examination, the claimant admitted that she did not know the meanings of word 'technical', 'managerial', 'administrative' and 'supervisory' as used in the definition of 'workman' in Industrial Disputes Act. She admitted that she was forwarding leave applications of her subordinates to Nursing Manager. She admitted that she used to be present during meetings called by Nursing Directors.
30. MW1, Rohit Kapur was not cross-examined at all on this aspect.
31. Ex. WW1/1 is the appointment letter of the work-woman according to which she was appointed as 'Charge-Nurse'. Ex. WW1/12 is the charge-sheet in which it is stated that:
'You have been working with the management as a Charge Nurse, Incharge of CTVS. As Charge Nurse Incharge of CTVS, you are required to assign 14 the duties to the staff nurses working under you. Your are also required to take care of the entire equipment which is kept and used for the patients post-operatively. You are also required to maintain account of all imported drugs and narcotics which have been classified as dangerous drugs. As Incharge you have been expected to supervise the functions of the staff nurses working under you and to coordinate with the consultants the patient care and treatment.
32. Ex. WW1/13 is the reply to the charge-sheet in which she admitted that she was working with management as described in para no. 1 of charge-sheet reproduced above. In the reply, Ex. WW1/13 she stated that 'any positive attitude and corporation towards my subordinates were always discouraged by the Nursing Director and expressed her displeasure when pleading for their lawful rights and redressing their grievances. Thus she admitted that there were subordinates working under her.
33. In the written arguments filed on behalf of the claimant, Ld. AR has tried to emphasis that the claimant was skilled/technical worker and in Bengal United Tea Co. Ltd. vs. Ram Labhaya 1962(2) LLJ & Air 1961 Assam 30, even a doctor was held to be 'workman'. Dr. Surendra Kumar Shukla vs. Union of India & Others 1986 Lab. I 1516 has also been relied on.
34. Ld. AR for management has relied on Management of Heavy 15 Engineering Corporation Ltd. vs. Presiding Officer, Labour Court & Others(1997) 1 LLJ 569, in which Hon'ble Supreme Court, while considering case of Doctor who was issuing directions to lower staff, held that such a Doctor was not a workman. Srikant Vishnu Palwankar & Presiding Officer First Labour Court and Another (1992) 2 LLJ 378 has also been relied on by Ld. AR for the management in which it was held that 'foreman' who was supervising 6- 8 employees, making recommendations regarding grant of leaves and making appraisal of workmen working under him was not a 'workman' Deepak Kumar & Presiding Officer, Labour Court & Others (1993) 2 LLJ 224 has also been relied on by Ld. AR for the management in which it was held that when substantial function was managerial or supervisory in nature he cannot be workman simply because one of the function was to get service and repair of tractors.
35. In the present case, the work-woman admittedly had prepared performance appraisal in respect of two staff nurses, she had been forwarding leave applications, she was expected to supervise the functions of staff nurses and co-ordinate with the consultants. The oral evidence read with documentary evidence leaves no doubt that the claimant was not a 'workman' within the definition given in Section 2(s) 16 of Industrial Disputes Act.
36. The issue is, accordingly, decided in favour of the management and against the work-woman.
ISSUE NO. 2
37. While deciding issue no. 1 it has been held that claimant was not a 'workman'. So section 25 F of Industrial Disputes Act has no application to the facts of the present case. Accordingly, I hold that the services of the work-woman have not been terminated illegally and/or unjustifiably.
38. The issue is, accordingly decided in favour of the management and against the work-woman.
RELEIF
39. In view of my findings on the issues above, I hold that the work-woman is not entitled to any relief and no directions in this respect are necessary.
40. The reference is answered accordingly. Copy of this Award be sent to Secretary (Labour), Govt. of NCT Delhi.
Dated : 29.3.2007 (R.K. JAIN)
Presiding Officer
Labour Court No. IX
Karkardooma Courts, Delhi