Punjab-Haryana High Court
R. B. Sewak Ram Maternity Hospital, ... vs Presiding Officer, Labour Court, ... on 21 July, 1998
Equivalent citations: (1999)IILLJ81P&H
Author: Iqbal Singh
Bench: Iqbal Singh
JUDGMENT G.S. Singhvi, J.
1. The employer, namely, R. B. Sewak Ram Maternity Hospital (Charitable Institution) has prayed for quashing the award dated January 5, 1993 passed by the Labour Court, Jalandhar in Reference No. 328 of 1986 on the ground that it suffers from an error of law requiring interference by the High Court in exercise of writ Jurisdiction under Article 226 of the Constitution of India.
2. Respondent - Smt. Veeran Devi whose service was terminated after almost 11 years of employment (from August 1, 1975 to May 5, 1986) raised an industrial dispute challenging the action of the employer on the ground of arbitrariness, mala fides and violation of Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'). An identical dispute was raised by Smt. Darshana Devi whose service was also terminated by the petitioner. The parties could not amicably settle the dispute. Therefore, in exercise of the powers vested in it under Section 10(1)(c) of the Act, the Government of Punjab referred the dispute to the Labour Court, Jalandhar for adjudication.
3. In the statement of claim filed by them, respondent-Smt. Veeran Devi and Smt. Darshana Devi pleaded that the termination of their services is arbitrary, illegal and mala fide, they pleaded that Dr. K. K. Pasricha who was, at the relevant time, Secretary to R. B. Sewak Ram Maternity Hospital as well as Gulab Devi Hospital has manipulated the termination of their services as a measure of victimisation because they happened to be the office bearers/active members of trade union. In the written statements filed on its behalf, the petitioner contested the assertion of the respondents-workmen that their services were terminated due to trade union activities. It was pleaded that the impugned action was taken in view of the fact that the workmen were not qualified to be appointed as nurse and they failed to produce the certificate of registration granted by the Punjab Nurses Registration Council.
4. After considering the respective pleadings and evidence, the Labour Court rejected the contention urged on behalf of the employer that the termination of the service of workmen should be treated as legal and justified because they were not qualified to be appointed as Nurse and they failed to produce the registration certificate granted by Punjab Nurses Registration Council. The learned Presiding Officer noted that the workmen had put in about 12 years and 2 years service respectively and had undergone Nurses Training Course organised by the Employer and held that there was no justification to terminate their services after 12 years of employment in the case of Smt. Veeran Devi and two years in the case of Smt. Darshana Devi. Paragraphs 12 and 13 of the award, which contain the findings of the Labour Court read as under :-
"I have not been able to agree with these contentions raised by the learned representative of the management. It is worth noting that the workman Veeran Devi had put in about 12 years of service and, Darshana Devi had put in about two years of service. It may also be noted that the respondent himself had been running two years course for the training of Nurses and both the workmen got the training from this Institution. The certificate issued to the workman Darshana Devi is Ex. WW2/1. It is not understood that how the respondent was running this training course of Nurses, if the students passed from this Institution were not competent to be appointed as Nurses or A.N.M. It is also surprising that how the respondents woke up to seek clarification from the Punjab Nurses Registration Council about the eligibility of the appointment of the workmen when they had already put in 11 years and two years of service respectively. Mr. Sarwan Dass examined by respondents admits that the management was served with a demand notice from the Union, copy of which is Ex.W. 2. He has also admitted that the slogans were raised and has also not denied whether any hunger strike of the workers took place. He has also admitted agreement reached between the workers and the Management effected on April 28, 1986. It is also worth noting that the termination of the workmen was effected immediately after this agreement on May 6, 1986. All this goes a long way in proving the assertions of the workmen that Dr. K. K. Pasricha, Secretary of the respondent of both the hospitals got vindictive towards the workmen because of their trade union activities which forced the Management to enter into an agreement with the workers and under the cover of seeking clarification from the Punjab Nurses Registration Council they terminated the services of both the workmen on the ground of not having requisite qualifications. I find absolutely no illegality in appointing the workmen as A.N.M. by management who were appointed after getting two years training from the training centre of Nurses run by the respondent-management. This clarification which was sought at such a belated stage should have been sought before appointing the workmen.
Practical experience would always and the persons to effectively discharge their duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for different posts is undoubtedly a factor to be reckoned with, it is so that the time of initial entry into service, whereas the appointment of both the workmen were made as A.N.M. and they were allowed to work as such for a considerable length of 5 time. It would be diversity of justice if their services were terminated under the cover of some guidelines by the Punjab Nurses Registration Council. The respondent was not competent to terminate the services of both the workmen supply on the receipt of the letter Ex. M26 from the, Registrar, Punjab Nurses Registration Council. Both the workmen had put in more than 240 days service, their services could only be terminated by complying with the mandatory provisions of Section 25F i.e. by giving one month notice or pay in lieu thereof as well as retrenchment compensation. Admittedly, the same was not done and, as such, I hold the termination of both the workmen is neither justified nor in order and decide the issue against the management and in favour of the workmen".
5. The petitioner has challenged the impugned award mainly on the ground that the respondents-workmen could not have been employed as Nurses in view of the prohibition contained in Section 17(3) of the Punjab Nurses Registration Council Act, 1932.
6. When the case was called for hearing, no one appeared on behalf of the parties. Therefore, we postponed the hearing for some time. However, none has appeared even in the second round and we do not find any rhyme or reason to delay the decision of the case which is pending for last almost 5 years.
7. The facts, which are borne out from the pleadings and the impugned award show that the services of respondent-Smt. Veeran Devi were ted after she had served for almost 11 years (the figure '12' appears to have been written in the award by over sight). Likewise, the services of respondent-Smt. Darshna Devi were terminated after she had served for about two years. However, before doing so the petitioner did not give notice or pay in lieu thereof to the workmen in terms of Section 25F(a) of the Act and compensation in terms of Section 25F(b) of the Act. Perusal of the record also shows that the employer had tried to justify the termination of the services of workmen solely on the ground that they do not possess the registration certificate. The learned Presiding Officer has considered this plea and held that the employer cannot take up the issue of ineligibility of the workmen after keeping them in employment for a long period of 12 and 2 years respectively, more so when they have undergone Nurses Training Course conducted by the employer. Indeed, the petitioner has not contested the fact that the respondent-workmen had in fact undergone Nurses Training Course and there was nothing which could cause adverse reflection on their capability to work as Nurse. In view of this, we do not find any error of law in the impugned award warranting interference by this Court in exercise of writ jurisdiction under Article 226 of the Constitution.
8. We are also of the considered opinion that the termination of the services of the respondents-workmen amounted to retrenchment within the meaning of Section 2(oo) of the Act and due to the non-compliance of mandatory provisions of Section 25F of the Act, the action of the employer has been rightly declared as void in view of the law laid down by the Supreme Court in The State of Bombay v. Hospital Mazdoor Sabha and others (1960-I-LLJ-251) (SC), State Bank of India v. N. Sundara Money (1976-I-LLJ-478) (SC), Santosh Gupta v. State Bank of Patiala (1980-II-LLJ-72)(SC), Surendra Kumar v. Central Government Industrial Tribunal-cum-Labour Court, New Delhi and another (1981-I-LLJ-386)(SC) and Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court, Chandigarh and another (1990-II-LLJ-70) (SC).
9. For the reasons mentioned above, the writ petition is dismissed. The stay order passed by the Court on August 23, 1993 automatically stands vacated. As a logical consequence, the respondents-workmen shall become entitled to get back wages. We also direct the petitioner to pay interest at the rate of 15 % on the arrears of back wages because it did not pay a single penny to the workmen for last 12 years and deprived them of livelihood.