Bombay High Court
Anthony Lewis And Anr vs Jaslok Hospital And Research Centre And ... on 8 June, 2018
Author: S.C. Gupte
Bench: S.C.Gupte
Chittewan 1/10 238. WP 3119-06.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.3119 OF 2006
Anthony Lewis And Another ... Petitioners
Versus
Jaslok Hospital & Research Centre
And Others ... Respondents
.....
Ms. Nayna Buch I/b Mr. Amol B. Desai for the Petitioners.
None for the Respondents.
....
CORAM : S.C.GUPTE, J.
DATE : 8 JUNE 2018
ORAL JUDGMENT :
. This petition challenges an order passed by the Industrial court at Mumbai in an unfair labour practices' complaint. The complaint is filed by two complainants, who are the petitioners before this court, under Section 28 read with Item Nos.5, 9 and 10 of Schedule IV of The Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter in short "the Act").
2 The case of the complainants is that complainant No.1, who joined services of the Respondent-hospital on 2 April 1973, has, since 1 July 1989, been working as OT X-ray Technician, whereas complainant No.2 joined services of the Respondent-hospital and has been working from 1 January 1993 as an OT X-ray technician. Both complainants have been working on ::: Uploaded on - 14/06/2018 ::: Downloaded on - 15/06/2018 00:33:35 ::: Chittewan 2/10 238. WP 3119-06.doc X-ray machines, such as C-ARM/U-ARM X-ray machine, Pulsolith laser letho tripsy machine and portable X-ray machine in the operation theater of the hospital, which have also been operated and used in other departments of the hospital including cath-lab. Their grievance is four fold. Firstly, it is submitted that unlike other technicians such as X-ray technicians in cath-lab, they do not get technician fees and allowances per operation. Secondly, it is their grievance that unlike others, they do not get taxi fare or conveyance for attending emergency duty in the hospital. Thirdly, they claim that as technicians working on X-ray machines, they are entitled to seven hours duty per shift. Lastly, they claim up- gradation/promotion on the basis of seniority, i.e. after completion of twelve years of service for non-graduates and after 10 years of service for graduates, as per the promotion policy declared by the Respondent- management on 14 September 1990.
3 It is important to note at this juncture that the reliefs concerning the last two items, namely, work shift of seven years and up- gradation/promotion on the basis seniority, were prayed for by the Petitioners as complainants in two earlier complaints filed under the Act, namely, Complaint (ULP) No.994 of 1993 and Complaint (ULP) No.4 of 1993. Both reliefs were denied to them by the Trial Court. The matter was thereafter carried by them before this Court in a writ petition, being W.P. No.1728 of 1997. The writ petition was dismissed by a learned Single Judge of this Court by his order dated 3 November 1997. The learned Judge at the very outset noted the grievance of the Petitioners that others who were similarly situated worked for seven/eight hours and that the Petitioners were made to work for eight hours in the same or similar posts.
::: Uploaded on - 14/06/2018 ::: Downloaded on - 15/06/2018 00:33:35 :::Chittewan 3/10 238. WP 3119-06.doc The learned Judge also noted their grievance concerning promotion. Learned Judge found that the Petitioners were unable to substantiate their contention that other similarly situated technicians were working for seven hours. The learned Judge also noted that there was no case for promotion to the post of OT Senior Technician, as there was no material before the Court that there was any post of Senior Technician or that by virtue of number of years in services, or recruitment rules or policy of the Respondent-hospital, they were entitled to the promotion to any such post. This Court, accordingly, refused to interfere with the order of the Trial Court. This order has become final. The third grievance which was sought to be voiced before the learned Judge concerned incentives paid to other technicians (presumably, technicians in cath-lab department) which were not paid to the Petitioners. The learned Judge observed that this grievance was not the subject matter of the complaint and hence could not be entertained by the Court. The learned Judge accordingly reserved liberty to the Petitioners to file a separate complaint for the same, observing that the disposal of the petition before him would not stand in their way, if they chose to do so. The Industrial Court, in the fresh complaint in which the impugned order came to be passed, accordingly treated the issues concerning seven hours shift and up-gradation/promotion on the basis of seniority as having been heard and finally decided in the earlier two complaints and barred for any fresh agitation on account of the principle of res-judicata. The Industrial Court noted that the grievances were not only barred on the principle of res-judicata, but that raising of such grievance amounted to overstepping the order of this Court passed in Writ Petition No.1728 of 1997. The Court accordingly entertained the fresh complaint only in respect of the first two issues, namely, admissibility of allowances ::: Uploaded on - 14/06/2018 ::: Downloaded on - 15/06/2018 00:33:35 ::: Chittewan 4/10 238. WP 3119-06.doc payable to the Petitioners as OT Technicians on the lines of the technicians in cath-lab and taxi fare or other conveyance for attending emergency duty in the hospital. No fault can be found with this part of the order of the Trial Court.
4 It is submitted by Ms. Buch, learned Counsel for the Petitioners, that, firstly, the earlier two complaints were for a different period, that is to say, period prior to December 1997. (The complaints, filed in the year 1993, related to the period prior to the complaint as also the period during the complaint, namely, January 1993 to November, 1997.) Learned Counsel secondly submitted that even for the purpose of deciding the allowances payable, the issue of duty hours and up-gradation/promotion based on seniority needs to be gone into. Neither of the two submissions has any substance. Even if the benefits claimed towards the number of hours of duty shift and seniority pertain to a different period (i.e. later period), the basis and material for claiming these benefits is the same as in the complaints of 1993. The relevant considerations placed before the Court are the same as those that formed part of the earlier complaints. The rules and policy of the hospital including the promotion policy of 14 September 1990, under which the benefit of up-gradation/promotion is claimed, are the same as were applicable and made the basis for claiming up-gradation/promotion based on seniority in the earlier complaints. The arguments premised on comparable working hours of technicians in other departments, on the basis of which reduced duty hours are claimed in the present complaint, are also the same as in the case of the earlier complaints. These issues, as rightly held by the Industrial Court in the impugned order, were covered in the earlier complaint and were heard and ::: Uploaded on - 14/06/2018 ::: Downloaded on - 15/06/2018 00:33:35 ::: Chittewan 5/10 238. WP 3119-06.doc finally decided against the complainants and could not be re-agitated in a fresh complaint.
5 Coming now to the two issues on which the Industrial Court heard the complaint, namely, taxi fare for attending emergency duty in the hospital and allowances payable at par with technicians in other departments like cath-lab, this Court at the outset must record that the issues have been thoroughly and satisfactorily examined by the Trial Court in a detailed speaking order and after consideration in extenso of rival evidence led by the parties before the Court. At the outset, the Industrial Court noted that with effect from 1 July 2004, the Respondent-hospital had started paying taxi fare to both complainants for attending work after duty hours. As for their claim for taxi fare prior to 1 July 2004, the Court noted that there was no case for claiming such fare either on the basis of the service contract or on the basis of any settlement. The Court noted that the complainants' claim was simply on the basis of alleged extra charges claimed by the hospital and its doctors from patients (i.e. over and above the normal charges) in case of emergency and not on the ground that such conveyance was in fact paid to other similarly placed staff members in case of emergency or that the Respondent-hospital was discriminating between the complainants and others similarly placed. The Court noted that taxi fare allowance made available with effect from 1 July 2004 was an incentive given by the Respondent-hospital and not legal entitlement of anyone including the complainants. Grant of such incentive to workmen being a matter of discretion of the management, the Court held, no workman could compel the management to exercise discretion in his favour. The entire analysis of the issue is based on perfectly legitimate ::: Uploaded on - 14/06/2018 ::: Downloaded on - 15/06/2018 00:33:35 ::: Chittewan 6/10 238. WP 3119-06.doc considerations and requires no interference at the hands of this Court.
6 Much debate took place before the Industrial Court as also extensive arguments addressed to this Court on the issue of allowances payable to OT technicians on par with technicians such as cath-lab technicians. It was submitted before the Industrial Court by the Petitioners and vehemently argued before this Court by their learned Counsel that considering the nature of work performed in OT and particularly, by OT technicians, the job of OT technicians was more hazardous than the job performed by technicians working in cath-lab. Learned Counsel relied on material such as specifications of X-ray machines used in OT and risk to the operators indicated in the manuals. On this issue, the Industrial Court has extensively discussed the oral and documentary evidence before the Court. The Industrial Court has placed considerable reliance on the testimony of the Respondent's witness, Dr. S.R. Handa, Honorary Cardiologist working with the hospital as also one Miss Z. Shaikh, Assistant matron General at the hospital. Dr. Handa in his evidence deposed to the nature of work performed by cath-lab technician in performing angiography, angioplasty and perfusion. Dr. Handa explained that C-ARM machines used in ordinary OT were basic X-ray machines unlike machines used in cath-lab. He distinguished the features and specifications of these machines from those used in OT. He also deposed to the special training received by cath- lab technicians to operate these machines as well as other machines used in cath-lab. He deposed to the minimum training and qualifications required by cath-lab technicians. Cath-lab technicians are required to be Science graduates with one year training of cath-lab technician. As against this, technicians like Petitioner No.1 in the present case, who had studied ::: Uploaded on - 14/06/2018 ::: Downloaded on - 15/06/2018 00:33:35 ::: Chittewan 7/10 238. WP 3119-06.doc upto fifth standard, have had no formal technical education in X-ray technology. Petitioner No.1, for example, joined the Respondent-hospital as an OT boy and was subsequently confirmed as an OT Assistant and later promoted to the post of an OT Technician. Dr. Handa also referred to the vital functions performed by cath-lab technicians concerning heart rhythm, by giving external shocks with the help of a defibrillator. These functions are neither required to be performed by OT Technicians nor are they competent to do so. As for perfusionists, Dr. Handa's evidence makes clear that their duty is to keep the vital organs such as brain, lungs, kidneys, etc. in physiological condition and maintain blood gas, PH etc.; any neglect in these duties would bring the patent's life in jeopardy. Perfusionists are required to mandatorily possess the knowledge of pathophysiology of cardio vascular perfusion; their minimum qualifications having to be B.Sc. with diploma in Perfusion Technology of one year. In other words, qualifications as well as nature of duties performed by cath-lab technicians and perfusionists are substantially and materially different from the qualifications and nature of duties performed by OT Technicians and there is no parity between the two from the point of view of the benefits extended to both categories by a hospital.
7 Ms. Buch, on the other hand, accepted that both qualifications and nature of duties performed by cath-lab technician might be different from the qualifications and nature of duties performed by OT technician. She, however, submitted that in the matter of exposure to radiation, both are similarly placed. Even this submission has been adequately considered by the Industrial Court. The Court, in the first place, noted that there was sufficient evidence on record to show that all safety measures were being ::: Uploaded on - 14/06/2018 ::: Downloaded on - 15/06/2018 00:33:35 ::: Chittewan 8/10 238. WP 3119-06.doc taken in the OT for preventing exposure to radiation for technicians. The machines were sophisticated; the technicians were mandatorily required to use safety equipments; they also had to wear badges recording exposure to radiation, which badges were periodically sent to B.A.R.C. to find out the extent to which the concerned person was exposed to radiation. The Court noted as an admitted fact that the complainants were never exposed to any radiation. The entire thrust of the complainants' case before the Court was on a possibility of over-exposure to radiation and health hazards ensuing thereby and not on the ground of duties performed by them in the operation theater. The Court rightly held that this cannot be a criterion for considering parity between technicians working in different departments. There was no evidence led by the complainants to prove the exact duties they were performing in OT and how they stood on the same footing as the cah-lab technicians and others vis-a-vis performance of such duties. Lastly and more importantly, the Court noted that the health hazards which the complainants apprehended might be the same as in the case of cath-lab technicians, but that could not be a criterion to judge parity in the matter of duties performed by cath-lab technicians on the one hand and OT technicians on the other. It is important to remember that the whole thrust of this enquiry was whether or not OT technicians were entitled to be treated at par with cath-lab technicians for the purpose of allowances. There is nothing to indicate that any specific allowance is being paid to cath-lab technicians towards or on account of possible exposure to X-ray radiation. It is simply a matter of benefit given to them having regard to the vital functions performed by them in cath-lab concerning most vital organs of the patients and their role in life saving operations. If, having regard to the nature of their work, incentives are granted to cath-lab ::: Uploaded on - 14/06/2018 ::: Downloaded on - 15/06/2018 00:33:35 ::: Chittewan 9/10 238. WP 3119-06.doc technicians, which are not extended to OT technicians, that is no case of impermissible discrimination resulting into an unfair labour practice.
8 Ms. Buch sought to contend that Dr. Handa had made certain vital admissions which were not considered by the Industrial Court. I am not impressed with any of these so called admissions of Dr. Handa. Insofar as the controversy at hand is concerned, namely, nature of duties performed by cath-lab technicians as against OT technicians from the point of view of grant of allowances, Dr. Handa was extensively cross-examined on the point and his so called admissions do not lead to any different outcome.
9 Besides Dr. Handa's evidence on the nature of duties performed by cath-lab technicians, there was extensive material placed on record by the Respondent-hospital through other witness, namely, the Assistant matron (General) on the tasks performed and machines handled by OT Technicians.
10 Based on rival oral and documentary evidence tendered by the parties, the Industrial Court has come to a pre-eminently possible view of the matter and held that there was no discrimination in the matter of allowances as between cath-lab technicians and OT technicians and there was no case of an unfair labour practice. The Industrial Court has considered all relevant material and submissions bearing on the issues which were placed before the Court and has not disregarded any relevant or germane material or circumstances or considered any irrelevant or non- germane material or circumstances. It is not permissible, in the premises, to invoke writ jurisdiction of this Court under Articles 226 or 227 of the ::: Uploaded on - 14/06/2018 ::: Downloaded on - 15/06/2018 00:33:35 ::: Chittewan 10/10 238. WP 3119-06.doc Constitution of India to interfere with the impugned order.
11 The petition, accordingly, has no merit and is dismissed. Considering, however, that the Petitioners were workmen who have long ceased to be in services of the Respondent-hospital, no order of costs is being made.
(S.C. GUPTE, J.) ::: Uploaded on - 14/06/2018 ::: Downloaded on - 15/06/2018 00:33:35 :::