Delhi District Court
Workmen vs . on 3 January, 2012
IN THE COURT OF SH. MAHAVIR SINGHAL: POIT,
KARKARDOOMA COURTS, DELHI
I.D. No 329/10/03
Workmen
Represented by Shanti Mukund Hospital Employees Union,
L-310-24, Veer Sawarkar Block, Vikas Marg,
Delhi
Vs.
Management
M/s Shanti Mukund Hospital,
2, Institutional Area,
Vikas Marg Extn.,
Delhi-92
Date of institution 28.08.2003
Date of reserving award 19.12.2011
Date of award 03.01.2012
Ref : F.24 (2977)/03/Lab./12487-91 dated 18.08.2003.
AWARD
1.Workmen have raised the present industrial dispute through Union and on failure of conciliation proceedings, GNCT of Delhi referred the dispute to this Tribunal for adjudication in following terms of reference:-
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1. "Whether the workmen are entitled to House Rent Allowance and if so, what directions are necessary in this regard ?"
2. "Whether the workmen are entitled for a 20%, one time increase in wages and if so, what directions are necessary in this regards ?"
3. "Whether the workmen are entitled for Conveyance Allowance and if so, what directions are necessary in this regard ?"
4. "Whether the workmen are entitled for payment of Rs. 700/- as Patient Care Allowance and if so, what directions are necessary in this regard ?"
5. "Whether the workmen are entitled for increment of 10% per annum and if so, what directions are necessary in this regard ?"
6. "Whether the workmen are entitled for the payment of Bonus at the rate of 20% for the years of 1999-2000, 2000-2001 & 2001-2002 and in future also and if so, what directions are necessary in this regard ?"
7. "Whether the workmen are entitled for free medical benefits for self and their family members and if so, what directions are necessary in this regard?"
8. "Whether the workmen are entitled for the payment of Rs. 150/- as uniform washing allowance and if so, what directions are necessary in this regard?"
9. "Whether the unmarried nurses are entitled for free accommodation in Hospital Premises and if so, what directions are necessary in this regard ?"
10. "Whether the workmen are entitled for two pairs of summer dresses, two pairs of winter dresses and two pairs of shoes every year and if so, what directions are necessary in this regard?"
11. "Whether the workmen are entitled for payment of one month's wages per year as Leave Traveling Allowance and if so, what directions are necessary in this regard?"
12. "Whether the workmen are entitled for 45 days I.D. No.329/10/03 Page 2 of 21 paternity leave and if so, what direction are necessary in this regard ?"
13. "Whether the workmen are entitled for 15 days medical leave and if so, what directions are necessary in this regard ?"
14. "Whether workmen are entitled for rest rooms and if so, what directions are necessary in this regard?"
15. "Whether the workmen are entitled for food from canteen on subsidized rates and if so, what directions are necessary in this regard ?"
16. "Whether the union is entitled for recognition by the management and an office with telephone and if so, what directions are necessary in this regard ?"
2. Statement of claim has been filed Shanti Mukund Hospital Employees Union (Regd.), wherein it is stated that applicant union is the only Trade Union of workmen of the management M/s Shanti Mukund Hospital and all workmen of the above hospital are members of their union; that the union has been registered vide Registration No. 4965 dated 3.1.2003 with the Registrar of Trade Unions, Delhi; that the management is a leading large private sector hospital employing around 500 workmen; that its workmen are the lowest paid among the private hospitals in Delhi despite the hospital earning huge profits; that workmen of the hospital are earning less than the workmen employed by the private hospitals in the neighbourhood, which is half its size; that the management hospital is having a bed strength of 100 and new buildings have been completed, I.D. No.329/10/03 Page 3 of 21 which are expected to be functional within next 3 months when the bed strength of the hospital would be 250 and the management hospital would be the largest private sector hospital in East Delhi; that the union in its General Body Meeting held on 7.3.2002 decided to raise some urgent demands of workmen before the management.
3. It is stated that the workmen vide their demand notice dated 8.3.2003 raised the following demands on the management :-
1. House Rent Allowance @ Rs. 1500/- per month.
2. An increase of 20% in their gross monthly wages.
3. Conveyance Allowance of Rs. 600/- per month.
4. Patient Care Allowance of Rs. 700/- per month.
5. Annual Increments of 10% of their gross salary every year.
6. Bonus @ 20% for the years 1999-2000, 2000-2002, 2001-2002 and in future years.
7. Annual Leave @ 30 days per year
8. Workmen employed under various contractors be regularized in the services of the hospital as their work is permanent and perennial in nature.
9. All medical facilities available in the hospital to self and family members free of cost along with free medicines. I.D. No.329/10/03 Page 4 of 21
10. Unmarried nurses working in the hospital be provided hostel rooms inside the hospital campus.
11. Three pairs of summer uniforms; two pairs of winter uniforms and two pairs of good quality shoes every year.
12. Rs. 150/- towards washing allowance/Uniform maintenance allowance.
13. Leave Travel Allowance every year @ 1 months gross wages.
14. Paternity leave to male workmen @ 45 days.
15. Casual leave for 12 days every year.
16. Medical leave for 15 days in case of sickness.
17. Holidays/rest days for 05 days monthly.
18. Two rest rooms in the hospital.
19. Separate staff canteen facilities with refreshments and food items at concessional rates.
20. Overtime payment @ double the regular wages and overtime wages for the last 3 years be calculated and paid to the workmen as per law.
21. Union be granted recognition and an office be provided to the union in the hospital complex with telephone facility etc.
4. It is stated that the demands as raised by the workman are fully I.D. No.329/10/03 Page 5 of 21 justified and the same are as per the industry norms prevalent in Delhi. It is stated that the management hospital is the largest private sector hospital in East Delhi and one among the biggest private sector hospitals in Delhi.
However, the salary and perks being paid to the workmen by the management are pittance as compared with other private sector hospitals of even smaller size. It is further stated that the benefits as demanded by the workmen are being provided to the workmen of Sir Gangaram Hospital, Rejinder Nagar, Delhi; Jaipur Golden Hospital, Rohini; Tirath Ram Shah Hospital, Civil Lines, Delhi; Sunder lal jain Charitable Hospital, Ashok Vihar, Delhi and Mool Chand Kharaiti Ram & Ayurvedic Research Institute, Lajpat Nagar, New Delhi etc. It is stated that the following categories of workmen are employed by the management hospital are under the definition of workmen as defined in Section 2 (s) of Industrial Disputes Act,1947 :-
Monographic Technicians, Eideo Mtry Technicians, Plumbers, O T Technicians, X-Ray Technicians, E C G Technicians, Dark Rook Assistants, Ultra Sound Assistants, O T Assistants and Junior O T Technicians, Lab. Attendents, Dialysis Technicians, Cashiers, Telephone operators, lab Technicians, Staff Nurses, CT Scan Technicians, Malies, Receptionists, Clerks, Lift Operators, Oxygen Plant Operator-Attendants, CSSD Technicians, Sweepers, Store Keepers, Peons, Accountants, Billing Clerks, Bio-Medical Technicians and Engineers, Library Attendants, Field Workers, O.T. Assistants and Technicians, Ward boys, Tailors, Painters, Carpenters, Mistry, Library Attendants, MRD Attendants, Stenographers, Dressers.
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5. It is stated that above categories of workmen are entitled to receive the benefits of any award, which may be passed by this Tribunal in favour of workmen in the present dispute. It is prayed that an award be passed in favour of the workmen awarding benefits as prayed in para 4 of the claim to the categories of workmen as mentioned in para No 8 of the claim.
6. The management has filed written statement, taking preliminary objection that the present dispute is not maintainable since the same is filed by the alleged union which is not locus-standi to file the present claim, as it does not have the recognition from the management; that the alleged union has not disclosed the name of the workmen, on whose behalf the present claim has been filed for general demands; that demands made in clauses vii, viii, xv, xvii, and xx have not been referred in the reference; that the management is providing all the facilities and amenities which are required as per labour laws; that it has not been disputed in statement of claim that the workmen are being paid as per Minimum Wages act; that the hospital runs on no profit & no loss basis;
that lab and imaging departments have been closed and thus, services of workmen working in these departments automatically come to close. Therefore, claim on behalf of these categories of workmen is not I.D. No.329/10/03 Page 7 of 21 maintainable.
7. In reply to statement of claim on merits, it is denied that hospital is employing 500 workmen and that it is making huge profits. It is further stated that it is not possible to consider the demands of workmen as same will have serious effect in the nature of exorbitant increase in the current cost, at which treatment is being offered by the management. It is stated that the appointment of workmen in this hospital is primary for providing care to the patient and thus, separate patient care allowance is not justified, as there is no provision in law for the same. As regards bonus, it is stated that the same is not applicable on the management as it is linked with profits and the hospital is running on no profit - no loss basis. It is stated that the medical facilities are being provided to the employees of the hospital. It is stated that hostel facilities to the nurses have already been provided as per Bye-Laws of the buildings and no further construction is permissible. It is stated that the supply of uniforms has no provisions in law and infact over-coat is already being provided by the management. It is further stated that in the absence of uniform, uniform maintenance allowance @ Rs. 150/- per month is not justified. As regards demand of medical leaves and paternity leaves, it is submitted that workmen are already enjoying 15 days EL, 12 days CL, 12 Holidays and 02 Restricted I.D. No.329/10/03 Page 8 of 21 Holidays, and thus, these demands are not justified. As regards demand of rest room, it is submitted that utility facilities are already available in the hospital and concept of rest room is not understood. It is stated that canteen facilities are already available in the hospital and workmen are being provided food stuff at highly concessional rates. As regards of demand of office and telephone facilities for union, it is stated that status and request of union is already in question. The union has failed to make available the relevant documents and informations as required by the management and as such, question of recognizing them does not arise. It is stated that work of maintenance, house keeping and security is already being looked after by the contractors. Therefore, sweepers, peons, electricians, field workers etc are not employees of the management and thus, claim on behalf of these categories of workmen is not maintainable. The management has denied all other contention made in the statement of claim.
8. Rejoinder has been filed on behalf of workmen, wherein they have denied the contentions made in the written statement and have reiterated the contents of statement of claim.
9. On the basis of pleadings of the parties, following issue was framed by my Ld Predecessor vide order dated 03.11.2004 :- I.D. No.329/10/03 Page 9 of 21
1. As per the reference.
2. Whether the claim is not maintainable in the light of preliminary objections raised by the management?
3. Relief.
10. On 25.01.2008, following additional issues were framed by Ld. Predecessor :-
1. Whether the laboratory and imaging department of the management have been closed ? If so, its effect. (OPM)
2. Whether the maintenance, security and housekeeping work is being done by the contractors ? If so, its effect. (OPM)
11. Sh. Subhash Chand Saklani, General Secretary of Shanti Mukand Hospital Workers Union has been examined as WW 1. In his affidavit, he has deposed that he was authorised by the Union to file the present affidavit in its meeting held on 9.11.2004. He has proved the Registration Certificate of the Union as Ex. WW1/1. Copy of minutes of meeting of the Union espousing the cause of the workmen has been proved as Ex. WW1/2. It is deposed that the demands raised by the workmen are legal and justified.
12. In his cross-examination, he (WW 1) has deposed that he has no knowledge about the income expenses, profit and losses of the hospital. It is admitted that no other record of any other hospital showing comparable I.D. No.329/10/03 Page 10 of 21 wages have been filed by them. It is deposed that names of other hospitals which are approximately ten years old and providing the facilities as demanded by them are Sunder Lal Jain Hospital, Dharam Shila, Chanan Devi, Jaisa Ram, Rajiv Gandhi Cancer Hospital, Deepak Memorial Hospital but he has not filed any document relating to these hospitals. He had no knowledge whether paternity leaves are provided by any private or government organisation. It is denied that management is providing medical facilities to their employees. He could not say which hospital provides one month leave travel allowance to its staff. It is further deposed that rates given in documents mark A and B are not correct and that the workmen are provided the refreshment at the higher rates. It is admitted that employees of hospital are getting 15 days earned leave and 12 days casual leave in one year.
13. Sh. Manoj Nair, AAO, Tirath Ram Hospital has been examined as WW 2. He has proved statement of payment fo salary and other wages to the workers of Tirath Ram Hospital, as Ex. WW2/A. In his cross- examination, he has deposed that the hospital is providing uniform as Summer Uniform every year, winter uniform like sweaters, jursey, every year and suits for male and over-coat for females after two years for housekeeping staff only. It is further deposed that other than these staff, if I.D. No.329/10/03 Page 11 of 21 required, the same is provided to other staff also.
14. WW 3 Sh. G R Trikha, Administrative Officer of Deepak Memorial Hospital has proved on record the latest salary record and record of staff other than the Doctor and Administrative Staff of the hospital, as Ex. WW3/A. He has also proved the record about the facilities provided to the Hospital as Ex. WW3/B. No cross-examination of this witness has been conducted.
15. WW 4 Sh. Vinod Kumar Sharma, Asst. Manager, Escorts Heart Institute and Research Center, Okhla Road, N. Delhi. He has proved the salary and perks record of the employees of the hospital as Ex. WW4/A. In his cross-examination, he has deposed that he cannot say as to what is the financial status of Shanti Mukand Hospital and Escorts Hospital.
16. WW 5 Sh. ML Dua, Personal Officer, Holy Family Hospital, has proved salary and perks records of employees of the hospital as Ex. WW5/A. In his cross-examination, he has deposed that there are 303 beds available in the hospital and there are approximately 350 workers working in the hospital. He could not tell the annual turn over of the hospital.
17. WW 6 Sh. R P Gupta, Administrative of Deepak Memorial Hospital has relied upon the documents, proved by WW 3, Ex WW3/A and Ex. WW3/B. In his cross-examination, he has deposed that there are I.D. No.329/10/03 Page 12 of 21 about 48 beds available in the hospital and occupancy of the hospital is more than 50%. It is deposed that there are approximately 100 workers in hospital. He could not tell the annual turn over of the hospital.
18. Management has examined Dr. G S Mathur, its Medical Superintendent as MW 1. He has proved on record certified copies of income tax return, balance sheet, income and expenditure account for different financial years, which are Ex. MW1/1 to Ex. MW1/12. In his affidavit, he (MW 1) has reiterated the contents of written statement filed by the management.
19. In his cross-examination, MW 1 has denied that hospital is not running in any losses and is earning huge profits. Exactly, he does not know what was the bed strength of the hospital in 1995 but to his mind, it was 90 and presently it is 140. It is denied that documents exhibited by him are false and fabricated. It is deposed that in para no.8 of his affidavit, the comparable hospitals are Deepak Memorial and Pushpanjali etc. He did not know the exact number of employees of Shanti Mukand Hospitals and the employees hired through the contractor. He was not aware the employees strength of Deepak Memorial Hospital and Pushpanjali Hospital. It is admitted that operations like canteen, kitchen, laboratory, imaging, security, housekeeping and maintenance are I.D. No.329/10/03 Page 13 of 21 essential services for the hospital. It is denied that demands made by the Union are justified, as per industry norms and are being provided by comparable hospitals in the region.
20. I have heard arguments from Sh. KK Makhija, Ld. Counsel/AR for management. No arguments have been advanced on behalf of workmen, despite sufficient opportunities given for the purpose. I have carefully gone through record of the case. My findings on the sole issue are as under :-
21. Findings on issue no.1 as framed on 3.11.04 Issue no.1 is As per terms of reference. MW 1 in his cross- examination has admitted that comparable hospital is Deepak Memorial Hospital. Officer of Deepak Memorial Hospital has proved on record salary and wage records of the said hospital as Ex. WW3/A and Ex WW3/B. Therefore, keeping in view the principle of industry-cum-region, documents Ex. WW3/A and 3/B shall be considered for all the demands of workmen as made in terms of reference.
22. Vide reference term no.1, workmen have demanded HRA @ Rs.1500/- pm. On industry-cum-region basis, if wage structure of Deepak Memorial Hospital is considered, perusal of documents Ex. WW3/A and 3/B shows that Deepak Memorial Hospital is giving HRA to its employees I.D. No.329/10/03 Page 14 of 21 at different rates. Keeping in view various categories of workmen and after averaging the rates of HRA being given by Deepak Memorial Hospital, I find that HRA @ Rs.250/- pm will be proper for the workmen in the present case. It is, therefore, held that workmen herein are entitled to HRA @ Rs.250/- pm. on the principle of industry-cum-region. However, it is clarified that if the workmen are already getting HRA from the management, they will be entitled to the same rate or @ Rs.250/- p.m., which-ever is higher.
23. Vide reference term no.2, workmen have demanded 20% one time increase in wages. From perusal of documents Ex. WW3/A and Ex. WW 3/B, demand of 20% one time increase in wages does not stand justified. Therefore, this demand is declined.
24. Vide reference term no.3, 4, 5 and 6 workmen have demanded Conveyance Allowance, Patient Care Allowance @ Rs.700/-, Increment @ 10% per annum and Bonus @ 20% respectively. On Industry-cum- region basis, perusal of documents Ex. WW3/A and 3/B shows that no such facilities are being given by comparable hospital i.e. Deepak Memorial Hospital to its employees. Therefore, workmen have failed to make out their case in this regard. Thus, this demand of the workmen as mentioned in reference term no. 3 to 6 are declined. I.D. No.329/10/03 Page 15 of 21
25. Vide reference term no.7, workmen have demanded free medical benefits for self and their family members. Perusal of document Ex. WW3/B shows that Deepak Memorial Hospital is giving medicines cost reimbursement upto Rs.3500/- per annum to its employees. In addition, they are providing free medical treatment outdoor/indoor including dependent members of family. Therefore, keeping in view the principle of industry-cum-region, it is held that workmen are entitled to the same medical facility as provided by Deepak Memorial Hospital to its employees, as stated above. The term 'family' is clarified as comprising spouse, minor sons and unmarried daughters.
26. Vide reference term no.8 workmen have demanded Washing allowance @ Rs.150/-. On Industry-cum-region basis, perusal of documents Ex. WW3/A and 3/B shows that no such facility being given by comparable hospital i.e. Deepak Memorial Hospital to its employees is proved on record. Therefore, workmen have failed to make out their case in this regard. Thus, this demand of the workmen is declined.
27. Vide reference term no.9 workmen have demanded free accommodation for unmarried nurses in hospital premises. On Industry- cum-region basis, perusal of documents Ex. WW3/A and 3/B shows that no such facility being given by comparable hospital i.e. Deepak Memorial I.D. No.329/10/03 Page 16 of 21 Hospital to its employees is proved on record. Therefore, workmen have failed to make out their case in this regard. Moreover, it is the case of management in the written statement that hostel facilities to the nurses have already been provided as per Bye-Laws of the buildings and no further construction is permissible. When already hostel facility is being provided by the management to nurses, separate demand of free accommodation is not justified. Thus, this demand of the workmen is declined. Workmen are entitled only to the hostel facilities as admitted by the management.
28. Vide reference term no.10, workmen have demanded summer and winter uniforms with shoes every year. Perusal of document Ex. WW3/B shows that Deepak Memorial Hospital is giving uniform to its employees after every two years. Therefore, keeping in view the principle of industry-cum-region, it is held that workmen are entitled to two pairs of summer dresses, two pairs of winter dresses and one pair of shoes after every two years.
29. Vide reference term no.11, workmen have demanded one month's wages per year as leave traveling allowance. Perusal of document Ex. WW3/B shows that Deepak Memorial Hospital is giving L.T.C. once in two years i.e. Rail Journey, 2nd class fare to its employees. Therefore, I.D. No.329/10/03 Page 17 of 21 keeping in view the principle of industry-cum-region, it is held that workmen are entitled to the same LTC facility as being given by Deepak Memorial Hospital to its employees.
30. Vide reference term no.12, workmen have demanded paternity leave for 45 days. On Industry-cum-region basis, perusal of documents Ex. WW3/A and 3/B shows that no such facility is being given by comparable hospital i.e. Deepak Memorial Hospital to its employees. Therefore, workmen have failed to make out their case in this regard. Thus, this demand of the workmen is declined.
31. Vide reference term no.13 workmen have demanded 15 days medical leaves. On Industry-cum-region basis, perusal of documents Ex. WW3/A and 3/B shows that comparable hospital i.e. Deepak Memorial Hospital is giving ten days medical leaves to its employees. Thus, it is held that workmen are entitled to ten days medical leave per annum.
32. Vide reference term no. 14, 15 and 16, workmen have demanded rest rooms, food from canteen at subsidized rates and recognition of union by management with office and telephone respectively. On Industry-cum- region basis, perusal of documents Ex. WW3/A and 3/B shows that no such facilities are being given by comparable hospital i.e. Deepak Memorial Hospital to its employees. Therefore, workmen have failed to I.D. No.329/10/03 Page 18 of 21 make out their case in this regard. Thus, this demand of the workmen as mentioned in reference term no. 14 to 1 6 are declined.
33. Findings on issue No 2 as framed on 3.11.04 Issue no.2 is Whether the claim is not maintainable in the light of preliminary objections raised by the management?
34. The preliminary objections raised by the management in its written statement are that the present dispute is not maintainable since the same is filed by the alleged union which is not locus-standi to file the present claim, as it does not have the recognition from the management; and that the alleged union has not disclosed the name of the workmen on whose behalf the present claim has been filed for general demands.
35. As to the first objection of the management that Union has no locus standi to file the present claim, though it is correct that the name of union as mentioned in the reference order is different from that of mentioned in the statement of claim, yet this position has been clarified by WW 1 in his affidavit filed by way of evidence, submitting that name of the Union has been wrongly mentioned in the reference order and steps have been taken to correct the same. It is worth noting that no corrigendum of reference in this regard has been received by this Tribunal. Therefore, this objection of the management is not sustainable. I.D. No.329/10/03 Page 19 of 21
36. As to the second objection of the management that Union has not disclosed the name of the workmen, on whose behalf the claim has been filed, it is worth noting that in statement of claim, so many categories of workmen have been mentioned and it is stated that these categories of workmen are entitled to receive the benefits of any award which may be passed by this Tribunal in favour of workmen. In view of this submission, in my considered opinion, there is no need to disclose the names of each and every workman. This objection of the management is, therefore, over ruled. Issues no.2 is decided accordingly.
37. Findings on additional issues no.1 as framed on 25.1.08 Additional Issues no.1 is Whether the laboratory and imaging department of the management have been closed? If so, its effect. (OPM)
38. MW 1 in his cross-examination has admitted that operation of Laboratory and Imaging Departments were not closed even for a single day. In view of this clear admission, it is held that Laboratory and Imaging Departments of management have not been closed and thus, the workmen working in these departments will be affected with this award.
39. Findings on additional issue no.2 as framed on 25.1.08 Additional Issue no.2 is whether the maintenance, security and housekeeping work is being done by the contractors ? If so, its effect. I.D. No.329/10/03 Page 20 of 21 (OPM)
40. MW 1 has specifically deposed in his affidavit that security, maintenance and housekeeping work has been outsourced. No suggestion to the contrary has been given on behalf of workmen to this witness. Therefore, in the absence of any denial to this effect, it is held that maintenance, security and housekeeping work is being done by the contractors. Thus, workmen working in these departments will not be affected with this award.
41. Issue no.3 Relief (as framed on 3.11.04) In view of my findings on above issues, it is held that workmen are entitled to HRA, medical facilities, Uniforms, LTC, and Medical Leaves to the extent as decided vide issue no.1. Workmen working in Security, Maintenance and Housekeeping departments will not be affected with this award. Award is passed accordingly and reference is answered in these terms.
42. Copy of award be sent to GNCT of Delhi for publication. File be consigned to Record Room.
Announced in open court
on 03.01.2012 (MAHAVIR SINGHAL)
Presiding Officer, Industrial Tribunal
Karkardooma Courts, Delhi.
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