Punjab-Haryana High Court
Mohinder Kumar vs Presiding Officer Labour Court Patiala ... on 10 November, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Civil Writ Petition No. 14270 of 2013
Date of decision: 10.11.2014
Dr. Mohinder Kumar
... Petitioner
Versus
State of Punjab and others
... Respondents
CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr.Mohinder Kumar petitioner in person.
Mr.Bhupinder Banga, Advocate,
for respondents No.3 & 4.
*****
1. To be referred to the Reporters or not? Yes
2. Whether the judgment should be reported in the Digest? Yes
RAJIV NARAIN RAINA, J.
Dr.Mohinder Kumar, the petitioner, is a Medical Doctor and Consultant Surgeon. His wife Dr.Suchitra Malhotra is also a Medical Doctor. Dr.Mohinder Kumar joined M/s Jangi Lal Oswal Cancer Hospital, Ludhiana run and managed by M/s Mohan Dai Oswal Cancer Treatment and Research Foundation, Ludhiana. Dr.Mohinder Kumar joined his assignment on 4th August, 1995 while his wife Dr.Suchitra Malhotra followed suit and joined the same hospital on 7th August, 1995.
2. On 30th June, 1999, both applied for special leave for a period of 10 months and 15 days ex India. Both of them left for Saudi Arabia on a work assignment on 3rd July, 1999. Their leave was not sanctioned. They did not receive a reply to their request for special leave. Later, they received letters from the Vice President (P&A) requesting them separately to join PARITOSH KUMAR duty as patients and hospital work were suffering. A few days short of 10 2014.11.25 14:35 I attest to the accuracy and authenticity of this document CWP No.14270 of 2013 :2: months and 15 days, they returned to the hospital and attribute that they were not allowed to join duty by Dr.Satish Jain and Mr.K.S.Verma of the management. The Medical Director of the hospital asked them the reasons of taking up an assignment in Saudi Arabia along with copy of passports and Visa. When they were not allowed to join, both went back to Saudi Arabia on 14th June, 2000 to return on 30th April, 2001. They both proceeded to the hospital once again offering to join duties but were not allowed to. Meanwhile, their services were terminated. The petitioner says that this was without issuing him or his wife a charge sheet or holding an enquiry. They made a demand for justice questioning the legality of the termination of their services and of the act of the management in not permitting them to join duties, which according to them, amounted to retrenchment.
3. They raised a dispute under Section 2-A of the Industrial Disputes Act, 1947 (for short, "I.D. Act"). On demand notices being served on the management and the Assistant Labour Commissioner-cum Conciliation Officer of the area, conciliation proceedings were conducted to resolve the disputes and differences arising between the parties. The conciliation proceedings bore no fruit and led to the failure report being submitted to the Government. The appropriate Government made two separate references bearing reference No.112 of 2005 and 111 of 2005 respectively to the area Labour Court which has resulted in two separate awards dated 25th July, 2008 and 23rd July, 2008 respectively declining relief.
4. In this petition, both the awards are challenged by arraying Mohinder Kumar as petitioner No.1 and Suchitra Malhotra as petitioner No.2. In both the cases, reference has been answered against Mohinder Kumar and Suchitra Malhotra with the findings that a fair and proper PARITOSH KUMAR 2014.11.25 14:35 I attest to the accuracy and authenticity of this document CWP No.14270 of 2013 :3: enquiry was conducted by the management against them which led to orders of termination both dated 29th August, 2000 well before they returned from Saudi Arabia on 8th May, 2001 when they asked the management to permit them to join their respective duties.
5. In his challenge to the impugned award before this court, Mohinder Kumar has appeared in person to argue his own case which this Court permitted him to. He claims that he represents petitioner No.2 as well in this joint petition since Section 36 of the ID Act permits parties to be represented before the Labour Court by an authorized representative and that right continues before this Court. Mohinder Kumar submits that he has right to represent his wife in the present proceedings in exercise of his wife's right to be represented through an authorized representative. I did not agree with this. I passed an order on 10th November, 2014 observing that two awards have been challenged in this petition. A common petition is not maintainable against two separate awards of different dates though by and large the case facts may be similar and identical. It was observed that the petitioner has every right to appear in person and for which reason, I have heard him. However, he could not represent his wife Suchitra Malhotra before this Court as he has no licence to practice as an Advocate before this Court to represent clients. Therefore, I ordered that the award relating to Suchitra Malhotra be separated from this petition and that award would not form part of this order. I have thus issued separate notice to Suchitra Malhotra that her case has been separated and she is at liberty to file fresh petition against her award. In case, she files a separate petition against her award, she would be within her right to appear in person or to be represented through counsel.
6. It is not necessary in the adjudication of this case to enter upon the validity of the termination. An enquiry conducted and the termination PARITOSH KUMAR 2014.11.25 14:35 I attest to the accuracy and authenticity of this document CWP No.14270 of 2013 :4: order was passed on ex parte inquiry proceedings which the petitioner forsook by his own act and conduct of remaining away without sanctioned leave. I see no reason to interfere in the dispensation by the respondents. Besides, the challenge to the award has been laid in this petition after over 5 years making a lame excuse that the award has not been published in the Punjab Gazette. The award in the case of Mohinder Kumar is dated 25th July, 2008. Before this Court proceeds to dismiss this petition by reason of long delay in approaching the Court, it would be necessary to notice that on 8th July, 2013, the petitioner made an application under the Right to Information Act, 2005 to the Labour Court, Punjab at Patiala to provide him information if the award had been published in the official gazette in terms of Section 17 of the ID Act and if so, to supply the date of notification. This request was processed and he was informed by the PIO-cum-ALC that the awards dated 25th July, 2008 and 23rd July, 2008 were forwarded to the Labour Commissioner, Punjab, Chandigarh for purposes of publication in the Gazette. The further fact which is necessary to be mentioned and to put the matter in its right perspective is that Mohinder Kumar moved an application No.15 of 2010 before the Presiding Officer, Labour Court, Patiala praying for review of the awards on the ground that they are illegal and influenced by pleas which have not been considered and have been obtained by fraud of the management. Since the order was passed by the then PO, LC, Patiala, the review application was transferred by the Government to the PO, LC, Jalandhar and thereafter to the Presiding Officer, Industrial Tribunal, Ludhiana.
7. The Management contested the application and rightly submitted that the Labour Court is bereft of power to review its own order or award. The Labour Court did well to dismiss the application for want of PARITOSH KUMAR 2014.11.25 14:35 I attest to the accuracy and authenticity of this document CWP No.14270 of 2013 :5: jurisdiction. It said that the ID Act provides no power to the Labour Court to review its own award which can be questioned only by way of a writ petition. The ruling in Indian Bank v. Satyam Fibres (India) Pvt. Ltd.1 relied upon by Mohinder Kumar and cited before the court a quo was rendered under the Consumer Protection Act and has no bearing on the jurisdiction of the Labour Court to review its orders or awards. It had no application to the jurisdiction of the Labour Court. The Court a quo dismissed the application on 12th December, 2012 after which Mohinder Kumar began to ferret information under the Right to Information Act as narrated above. The Court observed that no fraud was practiced in obtaining the award. It appears from Annexure P-5 that the application for recalling of the award was made on 5th November, 2008 for whatever it may be worth and that too after over three months of the awards.
8. When this matter came up for motion hearing for the first time before this Court on 8th July, 2013, petitioner in person Mohinder Kumar was asked to file a specific affidavit to the effect whether he had filed an application for recalling of the impugned award before its publication in the Gazette. He was granted time till 24th September, 2013. He sought more time and the matter was posted for 4th October, 2013. On 4th October, 2013, he made an oral statement before the Court that the award had not been published in the official gazette and the Labour Court had become functus officio and, therefore, the application dated 5th November 2008 would be taken as remaining pending and this aspect was not taken cognizance of when the order dated 12th December, 2012 (P-6) was passed.
9. The petitioner as was required to by this Court filed a short affidavit dated 24th September, 2014 narrating his correspondence 1 PARITOSH KUMAR AIR 1996 SC 2593 2014.11.25 14:35 I attest to the accuracy and authenticity of this document CWP No.14270 of 2013 :6: exchanged with the Public Information Officer of the Labour department and in paragraph 5 of the affidavit swore that no information is available or forthcoming with respect to publication of the awards in the Punjab Government Gazette.
10. I have heard the petitioner-in-person.
11. One of the objections taken by the management is that it is not an industry. There can be no doubt that a hospital qualifies as an industry within the meaning of Section 2(j) of the Act [see Management of Safarganj, New Delhi v. Kuldip Singh Sethi2]. The objection holds no water and the issue has been correctly decided by the labour court but without noticing the five judge bench in the Safdarganj case which is the leading authority on the point and holds good till today. However, the scope of the word "industry" is subject to reference to a still larger bench to be constituted to test the correctness of Bangalore Water Supply & Sewerage Board v. A Rajappa, vide reference order passed in State of Uttar Pradesh v. Jai Bir Singh case in 2005 to examine an apparent conflict between the decisions of two Benches of the Supreme Court in the cases of Chief Conservator of Forests v. Jagannath Maruti Kondhare3 of three judges and State of Gujarat v. Pratamsingh Narsinh Parmar4, of two judges though in the context of whether the 'social forestry' department of the State falls in the definition of industry in the ID Act, 1947. But the issue remains open.
12. The core question lies in answer to issue No.1 framed by the Labour Court to the effect whether the petitioner qualifies as a "workman" within the meaning of Section 2(s) of the I.D. Act. The onus to prove the issue was on the petitioner. He appeared as his own witness. The petitioner 2 AIR 1970 SC 1407 : (1971) 1 SCC 735 3 [1996] 2 SCC 293 4 PARITOSH KUMAR[2001] 9 SCC 713 2014.11.25 14:35 I attest to the accuracy and authenticity of this document CWP No.14270 of 2013 :7: admitted that he was a surgeon; that he was getting monthly salary from his employer; that he was working under another doctor; that he was not working in a supervisory capacity; that he was not doing any private practice; that he was whole time employee of the hospital and, therefore, he falls within the definition of the "workman". Per contra, the Management examined MW1 and MW2 in support of its case that the petitioner was not a workman by definition. The management witness deposed that Mohinder Kumar worked as a Consultant Surgeon and being a doctor, he is not covered under the definition of the term 'workman'. They relied on judicial precedents including Bombay Hospital Trust & another v. Shailesh Hathi and another5, M.M. Wadia Charitable Hospital v. Dr.Umakant Ramchandra Warekar6 and Management of Heavy Engineering Corporation Limited v. Presiding Officer, Labour Court and others7,. The Labour Court took the following view on the issue: -
"Dr.Mohinder Kumar was working as surgeon in the respondent hospital, at the time of termination of his services. It is evident that he was getting monthly wages from the respondent hospital and he was not doing any private practice. The copy of appointment letter of Dr.Mohinder Kumar is placed on the file by the management. As per said appointment letter, it is clear that Dr.Mohinder Kumar was the whole time employee of the hospital and he was not allowed private practice or any other activity of profit. There is nothing on the record to prove that he was working in supervisory capacity. In Bombay Hospital Trust's case (supra), which is relied upon by AR of the management, the concerned doctor was carrying on private practice. Even in M.M.Wadia Charitable Hospital's case (supra), the concerned doctor was allowed to conduct private practice. So, facts of both these cases are distinguishable from the facts of the case in hand. Also in the instant case there is nothing on the record 5 2006 (iv) LLJ (Suppl.) 679 6 (1997) II LLJ 549 (Bom.) 7 PARITOSH KUMAR1996 LLR 1119 (SC) 2014.11.25 14:35 I attest to the accuracy and authenticity of this document CWP No.14270 of 2013 :8: to prove that Dr.Mohinder Kumar was working in the supervisory capacity. So, the facts of Management of Heavy Engineering Corporation's case (supra) are also distinguishable from the facts of the case in hand. In Banglore Water Supply's case (supra), which has been relied upon by Dr.Mohinder Kumar, the Hon'ble Supreme Court observed that, "we cannot possibly agree that running a hospital, which is a welfare activity and not a sovereign function, cannot be an industry...Hospital facility, research products and training services are surely services and hence industry". The Hon'ble Apex Court further observed that it is difficult to agree that a hospital is not an industry.
In the light of above discussion, it is held that respondent hospital is to be considered as industry under the provisions of Industrial Disputes Act, 1947 and Dr.Mohinder Kumar comes under the definition of workman as per the provisions of the Industrial Disputes Act, 1947. This issue is decided accordingly in favour of workman and against the respondents."
13. The Labour Court has unfortunately held the petitioner to be a workman. The award though has been answered against the petitioner by entering on a discussion on two other points which were good enough to reject the reference, one, that prior permission was not sought by Mohinder Kumar before proceeding on leave and two, that the disciplinary proceedings were initiated by the management and intimation of it was sent at his permanent address. The petitioner failed to join the domestic enquiry proceedings at the opportune time as he preferred to join a hospital in Saudi Arabia. The ex parte enquiry report went against him.
14. The petitioner admitted in his cross-examination while appearing in the witness box before the Labour Court that he received 2nd show cause notice dated 9th May, 2000 (Ex.M16). He admitted that he sent a reply to the show cause notice (Ex.M17). Mohinder Kumar was clearly moonlighting, wanting to remain on the staff strength of the respondent PARITOSH KUMAR 2014.11.25 14:35 I attest to the accuracy and authenticity of this document CWP No.14270 of 2013 :9: management while working in Saudi Arabia for personal gain. He admitted that he returned to Saudi Arabia having met a stone wall in his effort to join back the respondent hospital. Even at that stage, no permission or leave was taken by him from his employer to proceed abroad. In the circumstances, the management had no alternative but to terminate his services. After coming back from Saudi Arabia, Mohinder Kumar remained gainfully employed in Adesh Institute of Medical Sciences, Bathinda.
15. The Labour Court rightly observed that strict rules of evidence are not applicable in a domestic enquiry which is required to be conducted in consonance with the principles of natural justice. Intentional failure to participate in the enquiry would not give rise to a right to question the validity of the enquiry. The enquiry was held to be fair and proper for which reason, the petitioner was non-suited and denied relief. I affirm those findings.
16. To return to the question whether a consultant surgeon is a "workman", has to be examined on various tests and legal principles judicially evolved by Courts in a large number of leading cases handed down over five decades by the Supreme Court in illuminating and leading verdicts in myriad fact situations while dealing with different avocations, callings etc. Some of these judicial verdicts are rendered in leading cases in Burmah Shell Oil Storage & Distribution Company of India ltd v. The Burmah Shell Management Staff Association8, Chintaman Rao v. State of M.P.9, Shankar Balaji Waje v. State of Maharashtra10; and more directly on the point of doctors in Muir Mills Unit of NTC (UP) Ltd v. Swayam Prakash Srivastava11 as well as in a case involving medical 8 AIR 1971 SC 922 9 AIR 1958 SC 1340 10 AIR 1962 SC 517 11 PARITOSH KUMAR (2007) 1 SCC 491 2014.11.25 14:35 I attest to the accuracy and authenticity of this document CWP No.14270 of 2013 : 10 : doctors discharging functions of medical officers working in Employees' State Insurance Corporation's dispensaries and hospitals in E.S.I.C. Medical Officer's Association v. E.S.I.C & Anr.12, where the question involving doctors being workman was answered. To paraphrase, it was held that doctors appointed in such capacity in ESI hospitals are entrusted with the task of examining and diagnosing patients and prescribing medicines to them and in this capacity provide professional and intellectual services while treating patients. There is a distinction between being in occupation and in a profession. Occupation is a principal activity that relates to job, work or calling that earns regular wages for a person whereas profession on the other hand requires extensive training, study and mastery of the subject, be it teaching students, providing legal advice or treating patients or diagnosing diseases. Persons falling under the latter category thus cannot be seen as workman as defined in the Industrial Disputes Act. The Supreme Court more specifically observed:
"We are of the view that a medical professional treating patients and diagnosing diseases cannot be held to be a "workmen" within the meaning of Section 2(s) of the ID Act. Doctors' profession is a noble profession and is mainly dedicated to serve the society, which demands professionalism and accountability. Distinction between occupation and profession is of paramount importance. An occupation is a principal activity related to job, work or calling that earns regular wages for a person and a profession, on the other hand, requires extensive training, study and mastery of the subject, whether it is teaching students, providing legal advice or treating patients or diagnosing diseases. Persons performing such functions cannot be seen as a workman within the meaning of Section 2(s) of the ID Act. We are of the view that the principle laid down by this Court in A. Sundarambal's case (supra) {(1988) 4 SCC 42} and in Muir Mills's case (supra) {(2007) 1 SCC 491} 12 PARITOSH KUMAR (2007) 1 SCC 491 2014.11.25 14:35 I attest to the accuracy and authenticity of this document CWP No.14270 of 2013 : 11 : squarely applies to such professionals."
17. The Sundarambal case involved teachers where the Supreme Court reaffirmed its view that a teacher does not fall in the definition of "workman" as it is a noble profession. There is a plethora of case law from different High Courts where several principles have been culled out to determine the question as to who is a workman. The tests broadly are the due control test to determine relationship, the organizational test, the economic control test, the test of control and supervision not only on the work which has to be done but the manner in which it is to be performed and so on and so forth. A medical doctor who performs surgical operations controls and supervises a host of attending paramedical staff, nurses, technicians, wards servants etc. as well as junior doctors who learn hands on while he operates with the professional skill he has earned to high standards of medical care in managing patients. He is in that sense not an industrial worker and hence not a workman. The Courts have been more or less consistent with the view that medical doctors are professionals dedicated to serve society and cannot be termed as 'workmen' under any law.
18. It is not enough for the petitioner to say that there was some person superior to him and therefore he is a workman which assertion is not alone determinative of the test of workman. Since the onus was upon the petitioner he was expected to lead adequate evidence in support of the jurisdictional fact by applying more than one of the many tests necessary to determine the issue. But no strait jacket formula can be adopted by the Court in determining such a question. The decision would vary from the facts and circumstances and from case to case. When a surgeon performs an operation, there is nothing between him and the patient neither has any superior person be it a medical doctor got to do with his professional skill PARITOSH KUMAR 2014.11.25 14:35 I attest to the accuracy and authenticity of this document CWP No.14270 of 2013 : 12 : and experience or to dictate the manner in which it is to be performed. He is the master of his own skill achieved through gains of learning. This is not an ordinary activity or skill required of a workman under the first part of section 2(s) of the ID Act. It is also not enough to say that the doctor is not allowed private practice and therefore it follows that he is a workman. A consultant surgeon may not be a manager or an administrator exercising executive control or supervision of performance of work or discharge of duties of an administrative character but all the same he is a distinctly a part and parcel and falling broadly on the managerial side of the organization which has employed him as an independent professional though under contract or employment.
19. In M.M.Wadia Charitable Hospital v. Dr.Umakant Ramchandra Warerkar13, the Bombay High Court held that it was never the object of the ID Act that highly qualified medical doctors and esteemed surgeons would be entitled to claim the protection of a welfare legislation. In Mar Baselius Medical Mission v. Joseph Babu14, the Kerala High Court held that a doctor examining patients, diagnosing diseases and prescribing curative medicines while working as a full time employee of a hospital cannot be a workman irrespective of his designation. There may be cases where Courts have held doctors to be workmen for the reason that they perform the work of a skilled and technical nature but the Supreme Court has not so far categorically held so. A consultant surgeon's job is one of creativity which stands taken out from the purview of the definition of workman in section 2(s). The Labour Court award contains no discussion of the large number of principles worth consideration as are known to be involved in determining this question and has done a rather sketchy job in 13 (1997) II LLJ 549 14 PARITOSH KUMAR (2007) IILLJ 925 2014.11.25 14:35 I attest to the accuracy and authenticity of this document CWP No.14270 of 2013 : 13 : jumping to the conclusion that Dr. Mohinder Kumar was a workman on scant oral and documentary evidence, the onus and burden of which was on the petitioner to lead and prove.
20. The law is now well settled with regard to interpretation of the word, "workman' as defined under Section 2(s) of the ID Act to say that a person can acquire the status of a workman under Section 2(s) of the ID Act only if he falls within the first part of Section 2(s). One may be employed to do manual, unskilled, skilled or technical, operational, clerical or supervisory work for hire or reward. If he falls in any of these categories in the first part of Section 2(s), the Court has to ascertain as to whether they stand excluded by the four exceptions carved in the latter half of Section 2(s) which legal position has been explained by the Supreme Court in H. R. Adyanthaya v. Sandoz (India) Ltd.15.
21. This Court finds that neither party has produced on record the contract of employment or letter of engagement of the petitioner which could have been useful to the determination on the issue of job content and whether the petitioner is a workman or not to start with. The impugned award on this point is a vacant lot and bereft of supporting reasoning. The prime evidence is not forthcoming from the record. The best evidence has not been led by either party but the one who must fail is the one who has approached the court for relief.
22. There is, however, a decision of the Assam High Court in the case of Bengal United Tea Co. Ltd. v. Ram Lubhaya16 in which ruling it was held that a person employed as an Assistant Medical Officer in a Tea estate to be a workman whose primary duty is to look after the workmen who work in the industry/tea estate. The High Court took the view that the 15 (1994) 4 SCC 164: (1995) I LLJ 303 16 PARITOSH KUMAR 1962 (2)LLJ 37 2014.11.25 14:35 I attest to the accuracy and authenticity of this document CWP No.14270 of 2013 : 14 : doctor has to possess knowledge of human anatomy; that a doctor is required to spend a number of years acquiring this knowledge; that his function includes prognosis and diagnosis and therefore his work is of a highly technical nature which a layman cannot perform and since a doctor is required to possess knowledge of a specialized character, it cannot be said that a Medical Officer does not come within the meaning of the word 'technical' as defined under Section 2(s) of the said Act as it cannot be said that his work is not of a technical nature.
23. A similar view was taken by the Gujarat High Court in the case of Arun Mills v. Dr. Chandra Parshad C. Trivedi17. Here the doctor was employed in an industrial establishment. He claimed dearness allowance which was rejected. The Labour Court had been moved under Section 33(C) (2) of the ID Act. Here again the issue was whether the doctor was doing the work of a technical nature because he discharges duties of specialized nature which are technical, he may fall within the definition.
24. After noticing a large number of precedents, the Supreme Court did not see any relevance of the opinions of the Assam High Court and the Gujarat High Court (Supra). The Supreme Court observed, "it is not only an argument of fear, but these are the arguments which indicate that, as a general rule, it can never be laid down per se that all doctors and Medical Officers, no sooner they are employed by Institutions, they become 'workman' because they are required to do work for fixed hours or because they are doing work of a skilled nature". The Supreme Court found after reviewing numerous judgments sufficient merit in the contention of the hospital that the respondent doctors who were highly qualified professionals and who performed responsible work cannot be treated as workman as 17 PARITOSH KUMAR 1976 (32) FLR 323 2014.11.25 14:35 I attest to the accuracy and authenticity of this document CWP No.14270 of 2013 : 15 : defined under Section 2(s) of the ID Act. The Court went into the philosophy of the industrial disputes law and returned a firm judicial opinion that it was never thought that highly qualified doctors and esteemed surgeons or pediatricians would be entitled to claim the protection of welfare legislation such as the ID Act. There is a distinction between the doctors employed by a Government, private and industrial undertaking to render services to their employees which is the situation in the Assam case. Mohan Dai Hospital caters for patients and from the community at large and is not geared for its own employees alone. The nature of a consultant surgeon's work is in a position of extreme trust and confidence and to a certain extent, the doctors have a fiduciary duty to act solely in the interest of their patients whom they treat which concept will be totally obliterated in the words of the Supreme Court if these doctors are treated as workmen.
25. For the many reasons recorded above, I am not prepared to sustain the findings of the Labour Court and hold that the petitioner was a "workman" at least on the sketchy evidence adduced before the Labour Court on both sides, the onus being on the petitioner to lead his best evidence and not just a mere oral statement made during the cross- examination as noticed above. If the factual position is that the award has not being published in the Government Gazette, then this petition is premature and for that reason alone, it deserves to be dismissed but that would keep the petitioner in limbo which he himself appears to have asked for, conscious of the consequences of his inactions. I would, in this case, go to the extent of saying that even if the award is not published I would still not interfere so that the petitioner has no further misgivings on his lack of industrial rights and leave an empty hope of success and would leave him to make a prognosis of the subject of "workman" and dispel his own doubts on PARITOSH KUMAR 2014.11.25 14:35 I attest to the accuracy and authenticity of this document CWP No.14270 of 2013 : 16 : the issue that has beset him today at the hearing. The Presiding Officer, Labour Court, Patiala, I am constrained to say, has by its lack of research on the question of "workman" going to the root of maintainability of the reference itself, was evidently ill-equipped with the law on the subject and without past precedents on its finger tips was unable to understand the issue and failed to deliver proper justice to the parties on Issue No 1. This has raised false hopes in the petitioner which impels him to argue his case so passionately on the point little realizing that this Court has to race mentally through many legal principles as facts unfold on the dais while hearing arguments and at the same time searching for the most appropriate of those principles that might appeal and appear to be the best possible answer to bring a durable end to the litigation. This is where the inaudible creeks and cranks of the court's mind are tried and tested as it proceeds to discard irrelevant facts and pick up the essential ones and apply the best legal principles as may be involved by casting aside those which offer no help in search of the judicial equipoise, the golden equilibrium to bring a dispute to rest on facts and law and by its intuition, reflex, common sense and prudence to find on which side equity and justice lies and which party has in all probability a better case.
26. To return to the case. It is noteworthy that the award was passed long ago in 2008 while the petition has been filed in 2013. The petitioner expects a miracle to happen in court in the matter of grant of relief by testing the providence of the court. A claim for reinstatement and back wages going back to 14 years is incapable of a judicial cure even if he were, for the sake of argument, to be accepted as a "workman" [which he is not] even then relief claimed cannot automatically flow to the petitioner even if he had a scintilla of dependable evidence in the looming presence of the domestic PARITOSH KUMAR 2014.11.25 14:35 I attest to the accuracy and authenticity of this document CWP No.14270 of 2013 : 17 : inquiry albeit ex parte is not open to be faulted for any of the grounds taken in challenge to the award. When the petitioner is found wanting to qualify as a "workman" by definition in the ID Act, the labour court would lose jurisdiction to decide the reference. Therefore, it is held that the findings on the inquiry proceedings being fair and proper and consequentially the punishment inflicted on the petitioner are rendered otiose, redundant and meaningless. The claim, if any, lay before the civil court exercising territorial jurisdiction and to repeat, not before the industrial adjudicator.
27. Besides, I find no presence or evidence of fraud being practiced by the management as alleged by the petitioner and pressed at the hearing. What I mean to say is that in the totality of facts and circumstances of the case, tinkering with the award, which is sustainable in its conclusion but not on issue No 1, is neither judicially advisable, neither called for, nor required. No substantial injustice has resulted to the petitioner who abruptly left his employer in the lurch without proper warning or awaiting sanction orders on his leave application and now works elsewhere. There can hardly be any sympathy for a doctor under the Hippocratic Oath, forsaking his employer, his patients, the operation theatre, the recovery room to promote his personal professional career in Saudi Arabia, which he had every right to, but not at the cost of others he left behind all of a sudden. He cannot have his cake and eat it too.
28. As a result of the above discussion, this petition fails and is dismissed qua Dr. Mohinder Kumar-petitioner No 1.
29. However, as per directions contained in paragraph 5 above, Office to issue notice to petitioner No 2 at the address given in the cause title returnable by 22nd December 2014 informing her of the separation of her case from the present petition to enable her to approach this Court by way of PARITOSH KUMAR 2014.11.25 14:35 I attest to the accuracy and authenticity of this document CWP No.14270 of 2013 : 18 : a fresh petition presented in proper form, in case she desires or is advised to do so.
(RAJIV NARAIN RAINA) JUDGE November 10, 2014 Paritosh Kumar PARITOSH KUMAR 2014.11.25 14:35 I attest to the accuracy and authenticity of this document