Delhi District Court
Claimant/ vs M/S Mool Chand Khairati Ram Hospital on 3 May, 2023
IN THE COURT OF MS. BHAVNA KALIA,
ADDL. DISTRICT & SESSIONS JUDGE,
POLC-V: RADC: DELHI
LIR No : 4160/2016
In the matter of :
Sh. Ram Janam Yadav,
S/o Late Sh. Basgit Yadav,
R/o K-2/1200, Sangam Vihar,
New Delhi - 110 062
...Claimant/Workman
Versus
M/s Mool Chand Khairati Ram Hospital,
And Ayurvedic Research Institute
Lajpat Nagar-III,
A-43, Shivalik, Malviya Nagar,
New Delhi-110024.
......Management.
Date of Institution : 23.10.2015
Date of decision : 03.05.2023
AWARD
PART-A
REFERENCE
The Deputy Labour Commissioner, South while
exercising his powers U/S 10 (1) (c) and 12 (5) of the
Industrial Dispute Act, 1947 (hereinafter referred to as the Act)
R/w Notification No. F.1/31/61/616/Estt./2008/7458 dated
03.03.2009 vide letter no. F24 (349)/Lab./SD/2015/13110
dated 18.06.2015 has sent the following reference to this court
for adjudication.
"Whether the services of Sh. Ram Janam
Yadav S/o Late Sh. Basgit Yadav have been
terminated illegally and/or unjustifiably by the
management and if so, to what relief is he
LIR No. 4160/2016
Ram Janam Yadav Vs. M/s. Mool Chand Khairati Ram Hospital Page : 1/23
entitled and what directions are necessary in this
respect?"
PART-B
CLAIM
1.The Claimant has submitted in his statement of claim as follows:
a) that he joined the management as pharmacy Kota w.e.f 12.06.1987 vide appointment letter dated 19.10.1987 whereby he was designated as field boy, ward boy and posted at New Delhi at a salary of Rs.
750/- per month plus other allowances as admissible in the grade of Rs. 750-12-870-EB-14-940;
b) that he performed his duties to the utmost satisfaction of the management and never gave any chance of complaint to the management;
c) that he was confirmed by the institution/hospital vide Letter No. P-156/10048 dated 28.11.1987, as per which the letter terms and conditions remained same as enumerated in appointment Letter No. P- 156/9237 dated 19.10.1987;
d) that time to time the salary was received by him as per Govt. notification along with D.A and other allowances;
e) that in the month of September & October, he had fallen ill and when he came to join the institution, he received a transfer Letter dated 19.11.2010 stating that he had been transferred from Moolchand Charitable Clinic, Village Ali Pur to Moolchand Khairati Ram Hospital and Ayurvedic Reserch Institute, Lajpat Nagar-
LIR No. 4160/2016Ram Janam Yadav Vs. M/s. Mool Chand Khairati Ram Hospital Page : 2/23 III, New Delhi-110024 without mentioning specific reason of transfer and only mentioning administrative reasons;
f) that in the month of November he was instructed by Sh. Satish Kumar, his immediate Boss, to leave the services without any reason and he refused to do his duty from 19.11.2010 as he was not allowed to enter the hospital by the security guards on the instructions of Sh. Satish Kumar;
g) that thereafter he came to join the hospital in the month of January, 2011 but was completely denied for the same by the hospital/ management staff stating that he was not fit enough to work in the hospital;
h) that he filed a complaint before the Labour commissioner of Pushpa Bhawan and filed another complaint dated 06.04.2011 before the labour commissioner Pushpa Bhawan;
i) that he got medical treatment from AIIMS Hospital where the Doctor declared him on 13.01.2011 as physically fit to work in the hospital and on 18.01.2011 he got fitness certificate from Medical Superintendent AIIMS Hospital, New Delhi;
j) that even after producing both the certificates, the management declared him as not fit to work in the hospital;
k) that he gave 3 representations to the management on 21.03.2011, 24.03.2011 and 28.03.2011 through registered post but even after awaiting for positive response from the management, he never received any LIR No. 4160/2016 Ram Janam Yadav Vs. M/s. Mool Chand Khairati Ram Hospital Page : 3/23 reply from the management;
l) that the Labour Commissioner vide letter no. 9523 dated 20.09.2011 advised him to file his claim;
m) that thereafter, management called him and told him not to move to the Court stating that they would reinstate him;
n) that his services have been illegally terminated by the management on 19.11.2010 without any rhyme or reason without issuing any memo or charge sheet.
o) that no compensation was paid or offered by the management to him before termination of his services or thereafter;
p) that he was unemployed since 19.11.2010 and could not get any job despite his best efforts and that he was running his family with the help of friends and relatives.
2. Claimant in his statement of claim has prayed for reinstatement of his services with all his back wages and consequential relief.
PART-C MANAGEMENT'S STAND/REPLY
3. The management filed written statement stating therein that admittedly the workman had become paralytic since 29.09.2010 but his condition was still not improved enough to the extent that he was able to perform his duties as he was working as Ward Boy before his paralysis. It is stated that the workman was not physically able to perform his duties for which he was engaged by the Management. It is further submitted that LIR No. 4160/2016 Ram Janam Yadav Vs. M/s. Mool Chand Khairati Ram Hospital Page : 4/23 the services of the workman were not terminated by the Management and rather, prior to the paralysis, he was working in Alipur Charitable Medical Clinic (Ghaziabad). It is stated that he was transferred to the hospital at Lajpat Nagar, vide transfer letter dated 19.11.2010 by which he was asked to report for duties w.e.f. 04.12.2010, and report to Shri Yashpal, Assistant Manager (Housekeeping) in the Management's Hospital. It is stated that the workman had not joined/reported for his duties and had not even communicated that he was paralytic since 29.09.2010. It is stated that he did not join his duties even at the Alipur Clinic. It is stated that that the workman was given several opportunities to join his duties but he failed. It is stated that the dispute arose in the year 2010, but the workman raised the conciliation proceedings in the year 2015 and filed the present claim in the year 2016. It is stated that the claim of the workman is not maintainable as per the Section 2- A (3) of the Industrial Disputes Act, 1947 being delayed. It is further stated that the workman sent a fitness certificate dated 13.01.2011, through the office of the Ld. Assistant Labour Commissioner, which was not signed by the Medical Superintendent of the AIIMS Hospital and it was apparent that it was a fabricated fitness certificate. It is further stated that the Management sent a reply dated 20.04.2011, to the Assistant Labour Commissioner mentioning therein that the management never refused to take the workman back on duty and it was also requested to the authority LIR No. 4160/2016 Ram Janam Yadav Vs. M/s. Mool Chand Khairati Ram Hospital Page : 5/23 to direct the workman to get himself medically examined through Government hospital or to get himself medically examined by the management hospital and submit his original fitness certificate to join his duties. It is further stated that inspite of request, neither the authority directed the workman nor the workman ever got himself medically examined from any Government hospital or even from Mool Chand Hospital. It is further stated that as he was not physically fit to perform his duties, hence, the claim of the workman is liable for rejection. It is further stated that the claim of the workman is not maintainable as per Rule 10-B of the Industrial Disputes (Central) Rules, 1957. It is further stated that the workman had filed his identical claim before the Ld. Conciliation Officer on 07.11.2014, to which the Management had filed its reply dated 09.02.2015, inter alia apprising the concerned authority about the facts and inability of the workman to join his duties but inspite of that the workman filed the present claim. It is further stated that the appropriate Government had not referred the dispute of the workman for adjudication but he himself had filed the claim before the Court. It is further stated that in the absence of any reference, inspite of the conciliation proceedings, the present direct claim of the workman is not maintainable. It is further stated that the workman was working as Ward boy and his duties required being attentive to attend to situations which were of emergency in nature for which he required to move in LIR No. 4160/2016 Ram Janam Yadav Vs. M/s. Mool Chand Khairati Ram Hospital Page : 6/23 speed here and there in different departments in order to facilitate the indoor patients and also take care of the OPD patients. It is further stated that the workman could not able to perform his duties due to paralysis. It is further stated that the hospital could not afford such person who himself was a patient. It is further stated that the service record of the workman was full of warnings and charge sheets since 1999, issued to him from time to time for non-performing of his duties properly. It is further stated that the workman had not taken much interest in his duties, which is a matter of record. It is further stated that the management even initiated domestic enquiry in the year 2000, for his severe misconducts and he was found guilty of the charges but the Management had taken lenient view and taken him back on duty and his services were not terminated. A warning letter dated 13.06.2001 only was issued to him for his misconduct, which was duly received by him and another warning letter was issued to him on 03.07.2001 for his misconduct. It is further stated that a show cause notice dated 02.02.2002 was issued to him for his misconduct. It is further stated that another warning letter dated 25.04.2002 was issued to him for his misconduct and that a charge sheet was issued to him on 06.06.2002, however, he was let free by giving warnings only. It is further stated that a show cause notice dated 20.06.2002 was issued to him and he submitted his explanation dated 28.06.2002 which was not satisfactory but the management did not take any LIR No. 4160/2016 Ram Janam Yadav Vs. M/s. Mool Chand Khairati Ram Hospital Page : 7/23 action against him. It is further stated that the warning letters dated 15.11.2003, 03.12.2003, 04.12.2003, 17.12.2003, 28.01.2004 were issued to him which were duly received by him but every time lenient views were taken and no severe action was taken against him for the same; It is further stated that the Management opened the charitable Clinics at five different places and the workman was transferred from Alipur to Lajpat Nagar, however, the workman had not taken any interest even at the transferred place, hence, he was transferred back on 19.11.2011 to the Hospital. It is further stated that according to the workman he felt sick during this period and never reported for duties but this fact was not communicated to the Management at that time. It is further stated that at the first time the workman alleged that he sent a letter dated 21.01.2011, wherein he has stated that he was paralytic w.e.f 21.09.2010 and was under treatment of AIIMS and interested to join his duties. It is further submitted that the said letter was sent very late by him to the Management through a notice dated 07.04.2011 from the Assistant Labour Commissioner, which was replied by the Management vide letter dated 20.04.2011. It is further stated that as per letter dated 21.01.2011 the workman was paralytic and was not in a position to join his duties since 21.09.2010 but alleged he had fitness certificate dated 13.01.2011. It is further submitted that the workman is alleging that he was refused duties on 19.11.2010, while as per the record, the Management sent him a transfer LIR No. 4160/2016 Ram Janam Yadav Vs. M/s. Mool Chand Khairati Ram Hospital Page : 8/23 letter dated 19.11.2010 as he was remaining absent w.e.f 21.09.2010 without any information, therefore, the question of refusing him duties on 19.11.2010, is totally baseless and ill motivated. It is further stated that the workman himself has admitted that he became paralytic and was under treatment of the AIIMS w.e.f 21.09.2010. The AIIMS allegedly issued a Medical fitness Certificate dated 13.01.2011, which was received by the management on 07.04.2011 through the Ld. Assistant Labour Commissioner. It is further stated that the management found that the workman was not physically fit to perform his duties and that is why it was not ready to take risk of his life by placing him on the duty of ward boy, hence, it was humbly requested to the Ld. Authority at that time to direct the workman to get himself medically examined through the Government hospital or from the Mool Chand Hospital and file the original certificate on record but the workman neither ever appeared for medical examination nor he ever approached before the Management for job. It is further stated that the workman filed the present claim on 07.11.2014 which is highly belated. It is further stated that the Management was not aware about his whereabouts after the proceedings concluded by Ld. Assistant Labour Commissioner, Pushpa Bhawan, Pushp Vihar, Delhi in the year 2011. It is further stated that the Management had not terminated the services of the workman but he had abandoned his services of his own accord since 2011, after the proceedings were LIR No. 4160/2016 Ram Janam Yadav Vs. M/s. Mool Chand Khairati Ram Hospital Page : 9/23 concluded by the Ld. Assistant Labour Commissioner, Pushpa Bhawan, New Delhi. Moreover, the Management, after waiting for considerable period has employed another employee at his place for the said work, hence, the workman has no right to claim any reinstatement or re-employment in the job without making him a party and he is not entitled to any compensation, as alleged. It is further stated that the workman was not physical fit to perform his duties being a paralytic person. He was not physically fit to perform his duties due to his such illness. The workman may be un-employed due to the aforesaid reasons. Moreover, the Management had not enquired about his any gainful employment due to the reasons as it was treated by the Management that the workman has abandoned his job of his own accord.
PART-D REJOINDER
4. The Workman reiterated the contents of the Statement of Claim in his Rejoinder and denied the submissions made in the written statement filed by the management. He has stated that he was medically examined by doctor at AIIMS and it was stated in the medical certificate that the workman had recovered from his illness and was now fit to resume duties w.e.f. 18.01.2011.
PART-E ISSUES LIR No. 4160/2016 Ram Janam Yadav Vs. M/s. Mool Chand Khairati Ram Hospital Page : 10/23
5. From the pleading of the parties, the Court, vide its order dated 13.11.2017 had framed the following issues for trial, reading as under : -
1. Whether the claim is not maintainable as the same has not been referred to adjudicate by the competent authority? OPM
2. Whether the claim is not barred by provision of Section 2 (A) (3) Industrial Dispute Act? OPM
3. Whether the workman has suffered Paralysis attack on 29.09.2010, if yes, whether on account of said medical condition he was not competent to continue his services as ward boy and if yes, whether on account of his medical condition the management was within right to transfer the workman and workman failed to join duties? OPM
4. If issue No.3 is decided in negative, whether workman is entitled to relief? OPM
5. Relief.
Further the issue sent as per reference shall be taken up as issue no. 6 i.e. Whether the services of Ram Janam Yadav have been terminated illegally and/or unjustifiably by the management.
PART-F CLAIMANT'S EVIDENCE
6. In support of his claim, the claimant examined himself, as WW1, and filed his affidavit in evidence which is Ex.WW-1/A and relied upon the documents from LIR No. 4160/2016 Ram Janam Yadav Vs. M/s. Mool Chand Khairati Ram Hospital Page : 11/23 Ex.WW1/1 to Ex.WW1/6 (OSR). He also relied upon the documents marked as Mark-A to Mark-F. The documents relied upon by the workman are as follows:
i) Ex.WW1/1 (OSR) is the copy of appointment letter dated 19.10.1987;
ii) Ex.WW1/2 (OSR) is the copy of confirmation letter dated 28.11.1987;
iii) Ex.WW1/3 (OSR) is the copy of Transfer Letter dated 19.11.2010;
iv) Ex.WW1/4 (OSR) is the copy of fitness certificate of the claimant issued by AIIMS;
v) Ex.WW1/5 (OSR) (Colly 3 pages) are the copy of letter dated 21.03.2011, 24.03.2011 and 28.03.2011 sent by the claimant to Sh. Satish Kumar, HR Manager of the management requesting him to let him join the duty.
vi) Ex.WW1/6 (OSR) are the speed post receipts.
vii) Documents Mark-A to Mark-F are not on the record and are not even mentioned in the affidavit.
7. During cross examination WW-1 has deposed that he is 10th class pass and his date of birth is 25.02.1960. He has admitted that the retirement age of employees in the hospital was 60 years. He admitted that the management hospital was being run by a charitable trust. He has stated that he was 4th class employee with the management. He has deposed that he had his salary proof but he had not brought the same.
8. He has denied the suggestion that his salary was not the same as he had written in his affidavit. He has stated that his affidavit was prepared in the year 2018. He has stated that he LIR No. 4160/2016 Ram Janam Yadav Vs. M/s. Mool Chand Khairati Ram Hospital Page : 12/23 had worked with the management till 21.09.2010 thereafter he had not reported for duties as he was ill. He has stated that at the time when he was ill he was working in the Clinic situated at Alipur.
9. He stated that the management sent a letter to him that he had to report for duties in the hospital. He has admitted that he had not joined his duties because he was ill. He has stated that he sustained paralysis on 21.09.2010. He stated that he went to report for duties on 18.01.2011. He stated that he still had effect of paralysis attack as it was of his left side but he does not have paralysis now on the date of his deposition except the effect of it. He has stated that he had not given any thing in writing to the doctor regarding his working condition in the hospital and the work which was required to be done by him in the hospital. He has admitted that his fitness certificate was pertaining to his paralysis and that would not further affect him. He stated that he was still taking medicines as advised by the doctors.
10. He has stated that the management had not given any termination letter to him. He has stated that Mr. Satish Kumar, HR-Manager refused to take him on duty on 18.01.2011. He stated that he had not filed any complaint against Sh. Satish Kumar before labour department/ police/ management/ higher authorities. He voluntarily stated that he had filed a complaint in the Consumer Court. He has denied the suggestion that he had not reported for duty to Mr. Satish or that Mr. Satish had not refused him for duty as he was ill. He has stated that he had sent the letters Ex. WW1/5 (colly) through Speed post but he did not know whether the same had been received by the management or not. He has denied the suggestion that the said letters were forged and prepared LIR No. 4160/2016 Ram Janam Yadav Vs. M/s. Mool Chand Khairati Ram Hospital Page : 13/23 by him later on as each letter had a gap of only 03 days. He stated that he had not gone for medical check-up/ investigation when the management asked him for the same to be done in any Government hospital, and neither did he attend his witness check-up as suggested by the management through its letter. He has voluntarily stated that if the management was serious it would have gotten him medically checked up.
11. He has admitted that he was charge-sheeted and domestic enquiry was held. He has also admitted that Warning letters dated 17.12.2003, 04.12.2003, 20.03.2003, 15.11.2003, 06.06.2002, 25.04.2002, 02.02.2002 were issued to him. He has stated that he did not remember if any settlement had been arrived between the management and him after conducting domestic enquiry. He has also admitted that warning letters dated 03.07.2001, 13,06.2001, 31.07.2000, 25.07.2000 were issued to him. He has stated that he was under suspension in the year 1999 but suspension was revoked by the management and a list/notice was pasted on Notice Board regarding the revocation of the suspension. He has denied the suggestion that due to illness he had not reported till the date of his deposition. He denied the suggestion that he had filed wrong affidavit and further that he had deposed falsely just to take advantage of his own wrong and illness.
12.Thereafter, Workman's evidence was closed.
PART-G MANAGEMENT EVIDENCE
13.In support of its case, the management examined Sh.
Sulagno Basu as MW1 who tendered his affidavit in LIR No. 4160/2016 Ram Janam Yadav Vs. M/s. Mool Chand Khairati Ram Hospital Page : 14/23 evidence as Ex.MW1/A.
14.During cross examination MW-1 has deposed that he was working as Sr. Manager (Corporate Affairs) in the management. He has stated that he could not tell the exact date of appointment of the claimant with the management. He has voluntarily stated that it was a matter of record. He stated that he did not know what was the last drawn salary of the workman. He has stated that on 29.09.2010 the claimant became paralytic. He has stated that the claimant was transferred from Alipur Clinic to the hospital in the year 2010 and the transfer letter is a matter of record. He has stated that the claimant submitted fabricated medical certificate to the management which was pertaining to his medical but did not bear the signatures of any authorised person or Authority. He has stated that did not have any idea whether workman submitted any health document or any leave application to the management. He has stated that he was not aware if any case no. 321/16 was still pending in the court no. 301, RACC, New Delhi. He has stated that the claimant had not reported for duties to Sh. Yashpal, Assistant Manager, (House-keeping). He has stated that Sh. Yashpal was working with the management in the year 2010. He has stated that he had been working with the management w.e.f. 07.10.2008. He has stated that since the workman had become paralytic, hence, he was not in position to work as Ward Boy for which he was employed as it required that a healthy person could do the said work and that LIR No. 4160/2016 Ram Janam Yadav Vs. M/s. Mool Chand Khairati Ram Hospital Page : 15/23 workman was not in position to work because of his paralytic attack.
15.Thereafter ME was closed.
PART-H FINDINGS/CONCLUSION
16.After considering the claim, reply, documents and the evidence led on record and also the submissions made by the parties, the issue-wise decision of the court (on the issue framed by the Court and Issue referred as per the Reference Order) is as under:-
Issue No. 1) Whether the claim is not maintainable as the same has not been referred to be adjudicated by the competent authority? OPM
17.The present claim is maintainable as the same has been sent as a reference to this Court by the office of the Dy. Labour Commissioner vide order dated 18.06.2015. Issue No. 2) Whether the claim is not barred by provision of Section 2 (A) (3) Industrial Dispute Act? OPM
18.No evidence has been led by the management on this issue. Further, Section 2(A)(3) of the Act provides that any application made directly to the Court by the workman shall be made before expiry of 3 years from the date of discharge, dismissal, retrenchment or otherwise termination of services.
The present reference has been made U/s 10 (1) (c) of the Act hence the provision U/s 2(A)(3) of the Act is not LIR No. 4160/2016 Ram Janam Yadav Vs. M/s. Mool Chand Khairati Ram Hospital Page : 16/23 applicable.
Issue No. 3) Whether the workman has suffered Paralysis attack on 29.09.2010. If yes, whether on account of said medical condition he was not competent to continue his services as ward boy and if yes, whether on account of his medical condition the management was within right to transfer the workman and workman failed to join duties? OPM
19.The issue as to whether the workman had suffered paralytic attack on 29.09.2010, is not in dispute as the management has admitted the same in its written statement and also in Ex.MW1/A. Thus, on the basis of admission of the parties it is held that the workman had suffered paralysis attack on 29.09.2010.
20.Coming to the issue as to whether on account of the said medical condition the workman was competent/ not competent to continue his services as Ward Boy, the said issue is to be decided after seeing the evidence filed by the parties. The onus to prove this issue has been placed on the management and management has taken the stand that since the workman was working as a Ward Boy, which nature of duty required proper fitness to take care of emergency situations, the workman having suffered paralysis was not fit enough to do the said duty. Management has further taken the stand that proper fitness certificate had not been filed by the workman to show that he was fit enough to work as a Ward Boy in the hospital. Management has stated that the onus of producing proper fitness certificate was on the workman LIR No. 4160/2016 Ram Janam Yadav Vs. M/s. Mool Chand Khairati Ram Hospital Page : 17/23 which he failed to discharge. Workman has also admitted in his cross-examination that he had worked with the management till 21.09.2010 and thereafter did not report for duties as he was ill. Workman has stated that he had gone to report for duties on 18.01.2011 but the management refused for the same stating that workman must get proper medical checkup in a Government hospital or even at Moolchand Hospital which the workman failed to do. He has further stated in the cross-examination that he had not given anything in writing to the doctor regarding his working condition in the hospital and the work which was required to be done by him in the hospital. He voluntarily stated that if the management would have been serious, it would have got him medically checked-up. The management in its written statement has admitted that they received a fitness certificate during conciliation proceedings on 07.04.2011 but denied the authenticity of the same.
21.However, the issue before the court is not whether the fitness certificate was proper or not for the work to be done by the workman as a ward boy. The issue before the Court is whether the workman required a particular type of fitness certificate mandated by the management. The appointment letter issued by the management has been perused. No such condition is mentioned in the appointment letter as to the eligibility of a person to be appointed as a ward boy. During the course of the proceedings it has been mentioned that the ward boy requires a particular type of fitness which the workman LIR No. 4160/2016 Ram Janam Yadav Vs. M/s. Mool Chand Khairati Ram Hospital Page : 18/23 did not have due to his paralysis and thus he stopped being fit for the job. This was never told to the workman before the joining of job when he was given the appointment letter. The court is not competent authority to state whether on account of said medical condition workman was competent/ not competent to continue his services as ward boy but court definitely has the power to decide whether the same was a requirement/ eligibility condition for being a ward boy. Nowhere has the management stated what was the eligibility for being a ward boy. On that ground alone, management can not now come and say that the ward boy must be fast on his feet to do his job. The same cannot be presumed by the Court and hence, it is held that the management cannot be allowed to take the defence that workman was not fit to do the job in view of the medical certificate produced by the workman from AIIMS.
22.Coming to the authenticity of the medical certificate, it is stated by the workman that he got medical treatment from AIIMS Hospital where the Doctor declared him on 13.01.2011 as physically fit to work in the hospital and on 18.01.2011 he got fitness certificate from Medical Superintendent AIIMS Hospital, New Delhi and that even after producing both the certificates, the management declared him as not fit to work in the hospital. The management has stated that the workman sent a fitness certificate dated 13.01.2011, through the office of the Ld. Assistant Labor Commissioner, which was not signed by the Medical Superintendent of the LIR No. 4160/2016 Ram Janam Yadav Vs. M/s. Mool Chand Khairati Ram Hospital Page : 19/23 AIIMS Hospital and it was apparent that it was a fabricated fitness certificate. It is further stated that the Management sent a reply dated 20.04.2011, to the Assistant Labor Commissioner mentioning therein that the management never refused to take the workman back on duty and it was also requested to the authority to direct the workman to get himself medically examined through Government hospital or to get himself medically examined by the management hospital and submit his original fitness certificate to join his duties. It is further stated that in spite of request, neither the authority directed the workman nor the workman ever got himself medically examined from any Government hospital or even from Mool Chand Hospital. It is further stated that as he was not physically fit to perform his duties, hence, the claim of the workman is liable for rejection. The medical certificate dated 13.01.2011 has been perused. The same has been signed by the medical officer and appears to be countersigned by the medical superintendent. The management has taken the plea that the same has not been countersigned duly. In the opinion of the court, once the original has been shown in the court and no specific reason has been given by the management questioning authenticity of the same, the same is taken to be a duly issued medical certificate. It is stated in the medical certificate that the claimant had recovered from his illness and was now fit to resume his duties from 18.01.2011. Despite the medical certificate the workman LIR No. 4160/2016 Ram Janam Yadav Vs. M/s. Mool Chand Khairati Ram Hospital Page : 20/23 was not allowed to join work when he went to join the same on 18.01.2011 by Mr. Satish Kumar, HR-Manager who refused to take him on duty on 18.01.2011. He said that he had sent three letters dated 21.03.2011, 24.03.2011 and 28.03.2011 to Sh. Satish Kumar, HR Manager of the management requesting him to let him join the duty, but still he did not receive any reply. The sending of letters has been denied by the management but considering that the same were sent by way of speed post vide Ex. WW1/6, there is a presumption of receipt as per section 27 of General Clauses Act, 1897. Thus, it is clear that the management did not let the workman join work despite him showing his willingness to do so.
23.Now coming to the issue that whether on account of his medical condition the management was within right to transfer the workman and workman failed to join duties, it is held that the same is an irrelevant issue as the workman was transferred to the hospital at Lajpat Nagar, vide transfer letter dated 19.11.2010 by which he was asked to report for duties w.e.f. 04.12.2010, and report to Shri Yashpal, Assistant Manager (Housekeeping) in the Management's Hospital. Management has stated that the workman had not joined/reported for his duties and had not even communicated that he was paralytic since 29.09.2010. Since the management was not aware that workman was paralytic when he was issued the transfer letter, it is not possible to say whether on account of his medical condition the management was within right to transfer LIR No. 4160/2016 Ram Janam Yadav Vs. M/s. Mool Chand Khairati Ram Hospital Page : 21/23 the workman. Further, the management is a private body and has discretion to transfer employees from one place to another (which is also mentioned in the appointment letter).
Issue no. 4) If issue No.3 is decided in negative, whether workman is entitled to relief? OPM This issue take us to Issue no. 6 i.e. the issue of whether the workman was terminated illegally/ unjutifiably from services by the management.
24.As discussed above the workman had shown his willingness and intention to join work, yet he was not allowed to do so stating that he was not fit enough for the same. In the opinion of the court, the workman has been illegally/ unjustifiably terminated from work and is entitled to relief.
v) Relief.
25.Since the above issue has been decided in favor of the workman, he is entitled to relief under the Act. Since the workman has stated in court vide separate statement, that he does not want the reinstatement, the said relief is not considered.
26.Considering other relief, i.e. monetary relief and/or compensation, the court has considered the following points:
a) The workman worked with the management for almost 23 years;
b) The workman had been unwell, yet he was willing to join work (which he requested through his letters to Mr. Satish) and that during conciliation proceedings LIR No. 4160/2016 Ram Janam Yadav Vs. M/s. Mool Chand Khairati Ram Hospital Page : 22/23 management offered him to join work but then the workman refused;
c) The workman admittedly has many memos/ show cause notices issued against him by the management, yet he did not inform the management that he had been unwell and could not report for work;
d) The workman went on leave without intimation;
e) The workman has filed a belated claim there being almost 5 years delay which has not been explained by him.
27.Thus, considering the overall facts and law, this court is of the view that the workman be given lump sum compensation in sum of Rs. 5,00,000/- (five lakhs only) in lieu of all other reliefs/ consequential benefits claimed by him. The amount of compensation shall be paid to the workman by the management within one month from the date when this award becomes enforceable failing which the amount shall carry an interest @ 8% p.a. from the date it becomes due i.e. when award becomes enforceable, till the time it is realized.
28.Reference is answered accordingly. Let copy of the award be sent to the appropriate Govt for its publication as per rules.
Announced in the Open Court On 03.05.2023 ( BHAVNA KALIA) ADDL. DISTRICT & SESSIONS JUDGE, PRESIDING OFFICER LABOUR COURT-V, ROUSE AVENUE COURTS, NEW DELHI.
LIR No. 4160/2016Ram Janam Yadav Vs. M/s. Mool Chand Khairati Ram Hospital Page : 23/23