M/S.Vijaya Hospital vs The Presiding Officer on 5 June, 2012

[Cites 8, Cited by 0]

Madras High Court

M/S.Vijaya Hospital vs The Presiding Officer on 5 June, 2012

2.The petitioner is the Management of Vijaya Hospital, Chennai. In this writ petition, the petitioner Management challenges the order dated 16.03.2007 passed by the Industrial Tribunal, Chennai, in Approval Petition No.2/2005. The Tribunal, by the impugned order, declined to grant approval and dismissed the petition filed by the petitioner Management.

3.The writ petition was admitted by this Court on 05.04.2007 and an order of interim injunction was also granted. Subsequently, the contesting second respondent filed two applicatinos in M.P.Nos.2 and 3 of 2007 seeking for a direction to pay the last drawn wages as well as to vacate the interim order passed by this Court. Those applications were disposed of by a common order dated 16.08.2007. It was stated that the Management was willing to provide employment to the second respondent in the status of Executive Secretary and she can also report for duty as Executive Secretary of the Hospital in the week commencing from 27.08.2007. In the event of the Management permitting her to join duty as Executive Secretary, there will be no direction for payment of last drawn wages. But in case there was a refusal to permit the second respondent to join duty in the post of Executive Secretary, a direction will be issued to pay Rs.3,400/- per month starting from September 2007 pending disposal of the writ petition. In the said order, the interim injunction already granted was also made absolute and this Court directed the Management to pay Rs.1,00,000/- (Rupees One Lakh only) to the second respondent towards backwages.

4.An additional affidavit dated 31.12.2011 was filed by the petitioner Management stating that pursuant to the direction issued by this Court, the second respondent joined duty in the Laboratory on 27.08.2007 and a sum of Rs.1,00,000/- (Rupees One Lakh Only) was also paid by way of a cheque and after joining duty, she abstained herself from work on and from 14.09.2007. In para 7 of the additional affidavit, it is averred as follows:

"7.I submit that immediately after receiving the cheque, the 2nd Respondent, once again abstained herself from work on and from 14/09/07. I submit that the Petitioner wrote to the 2nd Respondent vide notice dated 09/10/07 calling upon her to report for duties. However, the 2nd Respondent did not report for duties. I submit that the Petitioner had been constantly writing to the 2nd Respondent to report for duties. However, the 2nd Respondent has not report for duties. I submit that left with no other alternative, the Petitioner, once again issued a show cause notice dated 11/08/10 for the unauthorized absence of the 2nd Respondent was issued. I submit that the 2nd Respondent, instead of report for duties, has sought to give frivolous reasons. I respectfully submit that obviously, it is evidence that the 2nd Respondent is not interested in employment."

The second respondent has not filed any counter affidavit rebutting the allegations.

5.It is seen from the records that the petitioner Hospital is a Multi-Speciality Hospital run by a Trust. The second respondent was appointed as a Ward Secretary on 26.03.1997. According to the petitioner Management, even as per the terms of appointment, the second respondent was liable to be transferred to any other wing of the petitioner Hospital or the Health Centre or in any other location under the Vijaya Medical and Educational Trust. The second respondent was initially posted as a Ward Secretary in the Cardio Thoracic Department. Since several corporate companies were approaching the petitioner Hospital for regular treatment / health checkup in respect of their employees, the petitioner Hospital has decided to have an experienced Executive Secretary in the Master Health Checkup Department and based on the request of the Consultant Physician in-charge, the second respondent was transferred to Master Health Checkup Department through letter dated 17.05.2000. The said Department is situated in the same building, in which the second respondent was working earlier. In essence, the transfer only resulted in the petitioner shifted from the second floor of the building to the ground floor. She was given the same posting, pay and other benefits. The work in both the Departments are more or less identical. As soon as the order of transfer was served on her, she applied for leave in the same day afternoon and thereafter, sought for extension of leave from time to time vide letters dated 19.05.2000, 30.05.2000, 08.06.2000 and 21.06.2000 claiming that she was sick.

6.It is the stand of the Hospital that she did not submit any proof for her sickness. The petitioner, by its letter dated 30.06.2000 informed the second respondent that in the absence of proper medical certificate, no action will be taken on the application for leave. The second respondent submitted a medical certificate dated 05.07.2000 advising rest for six weeks retrospectively from 03.06.2000. After the expiry of the period of leave namely on 17.07.2000, the second respondent did not attend for duty. However, she submitted further letters for leave claiming that she was sick and without disclosing her ailment to the hospital and merely states that she is undergoing treatment for "Gynecological problems" from time to time. She also reiterated for recall of her transfer order and insisted to permit her to continue work in the Cardio Thoracic Department as Executive Secretary. She also expressed her apprehension that by the transfer, her service condition will be affected. The Hospital informed her that her apprehension will not be valid and her service condition will not be affected. Once again the Hospital advised her to report for duty. Excepting her medical certificate dated 05.07.2000 advising rest for six weeks, no other medical certificate or proof are forthcoming from the second respondent. The second respondent was informed by the Hospital that she was entitled to get medical facilities at concessional rates in the petitioner hospital, but however, she has not chosen to avail the same and therefore, the Management suspected the bonafide of her claim for sickness. The second respondent was called upon to subject herself to medical examination to ascertain her fitness to continue to work as Executive Secretary. The second respondent sent a letter dated 16.01.2001 making baseless allegations against the Hospital and also states that she was undergoing treatment in a private hospital. Once again, the petitioner hospital, by a letter dated 20.01.2001 informed the second respondent that her absence was not valid and it was done immediately to avoid the transfer. The medical examination that was sought to be done is only to assess her sickness. The second respondent was asked to report for medical checkup by Doctor Mala Vijaykrishnan, who is a Specialist in Obstetrics and Gynecology on or before 30.01.2001 and if she fails to report before the said Doctor, then the entire period of absence from 17.05.2000 will be considered as unauthorised absence and further action will be taken against the second respondent for disobeying the order of transfer. However, the second respondent did not choose to report to the Doctor and sent a letter dated 27.01.2001 claiming that she cannot be compelled to undergo parallel treatment. Once again, by a letter dated 10.02.2001, the second respondent was given a last opportunity to appear for medical examination with supportive documents. It was also informed that in case of her failure to report for medical examination, the entire period of absence will be treated as unauthorised absence and also her failure to obey the reasonable orders of the superiors. The second respondent sent a letter with another medical certificate dated 15.02.2001 stating that she was advised for three weeks rest from 15.02.2001. Thus, she continued to abstain herself from duty.

7.In the meanwhile, the second respondent also filed a suit in O.S.No.1252 of 2001 before the V Assistant City Civil Court challenging the order of transfer and the same was dismissed on 08.09.2005 as not maintainable.

8.When the Management suspected her absence, once again, by a letter dated 09.08.2001, the second respondent was directed to report before the Hospital Doctor by fixing up prior appointment. She was also informed that this was without prejudice to any further action being initiated by the Management. Despite the hospital directing her to report for medical checkup, and was offered that she will be given treatment on concessional rates, she did not do so and insisted for getting treatment in a private hospital, which is located only within 300 metres from the petitioner hospital. As she refused to report for work and also failed to subject herself for medical examination, a charge memo was framed and a show cause notice was issued on 08.03.2004. The second respondent sent a reply on 19.03.2004 and thereafter, an outside advocate was appointed as an Enquiry Officer to conduct enquiry against the second respondent. She was also given the assistance of co-workers. The enquiry was commenced on 10.04.2004 and it was adjourned from time to time. She sought for assistance of an advocate to help her in the enquiry, though the standing orders do not provide for any such contingency. She refused to participate in the enquiry and finally, the enquiry was held exparte on 17.07.2004. A copy of the enquiry report holding her guilty was sent to her with a request to offer her explanation. The second respondent sent a detailed reply on 27.11.2004. Thereafter, a second show cause notice was issued on 03.12.2004 asking her as to why she should not be terminated from service. The second respondent sent a reply on 11.12.2004 and after considering the same, she was terminated from service vide order dated 18.12.2004.

9.As at the time of termination, an industrial dispute was pending before the Tribunal in I.D.No.5/2003 relating to the working hours of the hospital employees, an approval petition was filed under Section 33(2)(b) of the Industrial Disputes Act, 1947, before the Tribunal seeking approval of the termination.

10.Even during the pendency of the approval petition, the second respondent raised a dispute before the Conciliation Officer which finally resulted in the reference came to be made in I.D.No.539 of 2005, which was pending on the file of the II Additional Labour Court, Chennai. On notice from the Tribunal, the second respondent filed objection and the Tribunal held that the service of the enquiry notice for the hearing held on 20.05.2004 was unfair and against the principles of natural justice. Therefore, the Tribunal held that the domestic enquiry conducted was vitiated on account of violation of principles of natural justice. Since the petitioner Management sought an opportunity to lead fresh evidence, the Tribunal directed the Management to lead evidence vide its preliminary order dated 31.08.2006.

11.Therafter, on behalf of the petitioner hospital, one Subramanian was examined as M.W.1 and 65 documents were filed and marked as Exs.M1 to M65. The second respondent examined herself as W.W.1 and on her side, 18 documents were filed and marked as Exs.W1 to W18. The Tribunal, on the basis of these materials, rendered the following findings:

"20.It is to be noted that the right of the petitioner / employer to transfer its employee / respondent is implicit and inherent in the contract of employment itself and it is part and parcel of the employment. Ex.M1 order of appointment dt. 26.3.97 issued to the respondent clearly mentions that her services are transferable and therefore it is quite clear that Ex.M1 appointment order dt.26.3.97 issued to the respondent / employee visualises transfer and even the Standing Order Ex.M65 clause 17 at p.27 transfer is contemplated.........

31.At this juncture, it is relevant to point out that transfer from one place to another is generally a condition of service and an employee has no choice in the matter in the considered opinion of this Tribunal. Moreover, transfer from one place to another is necessary for efficiency in the administration too. As a matter of fact, no employee holding transferable post has a right to work at a fixed place, in as much as transfer is an incident of service as per decision 2003 LLR p 895 between Continental Construction Limited Vs. Workmen of Continental Construction Limited.

39.It is to be noted that generally leave must be sanctioned before it can be availed of. It is the managerial function to grant leave at a particular time. Employee cannot claim leave as a matter of right, but the discretion vested in the employer for refusing to grant leave has to exercised in accordance with the well recognised principles of law. As a matter of fact, the leave requirement is to be special.

42....... it is quite apt to point out that unless the leave is granted to an employee he / she has no right to stay away from work and as such, the management will not be bound to grant medical leave just on production of medical certificate by the concerned employee who has produced the same only when he / she desired to resume duties.

49........... i) no proof for sickness was produced by the Respondent / employee when her absence is for more than 1000 days.

50.It is to be noted that the Respondent / employee cannot claim leave as a matter of right. In as much as the respondent / employee was given the Show cause notice Ex.M58 dt.8.3.2004 for the alleged acts of misconduct stated therein the initiation of disciplinary action by the petitioner / hospital against the respondent / employee cannot be stated to be unjust and malafide in the considered opinion of this Tribunal. Furthermore, the initiation of disciplinary action against the respondent / employee as per Ex.M58 dt.8.3.2004 cannot be construed as a case of victimisation or Unfair Labour Practice.

51.......... Moreover, the transfer of the Respondent / employee was effected on 17.5.2000 as per Ex.M3 in order to improve the quality of service at Master Health Checkup Department due to administrative exigencies and therefore the Transfer order Ex.M3 dt. 17.5.2000 is not malafide and the same is valid in law......

52........... Though WW1 Tmt. S.Sashikala the respondent / employee has deposed that she does not know whether Dr.Mala Vijaykrishnan is the Maternity Doctor, her evidence in this regard is not convincing and reasonable and as a matter of fact cannot be believed in the considered opinion of this Tribunal.......

53.........In as much as the petitioner / hospital has initiated disciplinary action against the respondent / employee as per Ex.M58 dt.8.3.2004 Show Cause notice for the misconduct of refusal to obey lawful and reasonable orders of Superior and continuing to remain absent without leave or proper prior permission etc. and since the Respondent / employee cannot claim leave as a matter of right, and since the suspicion could arise because of not attaching the Medical certificate by the respondent / employee the petitioner / Hospital is well within its right to take disciplinary action in the mater by taking such disciplinary action it cannot be said that the respondent / employee was victimised and the petitioner / hospital has committed Unfair Labour Practice in the said process.

54........ The Standing order was not given to the respondent / employee for submitting her reply. Inspite of the requests for the supply of Standing Order made by the Respondent / employee the same was not complied with at the earliest point of time by the petitioner / management and only on 19.6.2004 the Employee was given the Standing Order copy which clearly indicates that the petitioner / hospital has violated the principles of natural justice. ......................... the punishment of termination of respondent / employee services is so shocking that no reasonable person will impose, having regard to the acts of misconduct for which it was sought to be imposed an inference of malafide and Unfair Labour practice clearly inferred as far as the present case is concerned, in the considered opinion of this Tribunal and therefore, this Tribunal comes to the inevitable conclusion on the basis of available material and evidence on record, that the approval action taken by the petitioner / hospital is not proper and valid in law..............."

12.The parameters under which the jurisdiction under Section 33(2)(b) of the Industrial Disputes Act can be exercised by the Competent Authority came to be considered by the Honourable Supreme Court in Lalla Ram vS. D.C.M. Chemical Works Ltd. [1978 (1) LLJ 507]. The findings rendered by the Tribunal does not show that the Tribunal kept in its mind the parameters for exercising the power under Section 33(2)(b) of the Industrial Disputes Act. The charge levelled against the second respondent that she did not report before the Medical Officer to explain her sickness despite several opportunities given, it is a clear case of disobedience of the orders of the superiors. In fact, the Tribunal itself found that leave cannot be availed as a matter of fact and the plea taken by the workman that she was victimised was also not accepted. When a person is availing medical leave and when the employer directs him to appear before the Medical Board to satisfy himself about the genuineness of the leave and if the employee do not appear before the Medical Board, the matter cannot be viewed lightly.

13.In this context, it is necessary to refer to the judgment of the Supreme Court in Secretary to Govt. vS. A.C.J. Britto [1997 (3) SCC 387] and in paragraphs 9 to 11, the Supreme Court had observed as follows:

"9.The Rules applicable in this case do not specify acts of misconduct for which a delinquent officer can be punished. Rule 2 empowers the competent authorities to impose upon members of the Service penalties specified therein for good and sufficient reason. Therefore, the decision of this Court in A.L. Kalra case is clearly distinguishable. Before holding that there was no justification to initiate disciplinary proceeding against the respondents, the Tribunal ought to have considered whether there was good and sufficient reason for initiating such proceedings against him. It was not justified in taking that view on the ground that such an act of delinquency has not been specified in the Rules as an act of misconduct. Not obeying a legitimate order of his superior by a member of the Police Force has to be regarded as an act of indiscipline and would certainly provide a good and sufficient reason for initiating a disciplinary proceeding.

10.It was next contended by the learned counsel for the respondent that the intention of the respondent was not to flout the order passed by the Superintendent of Police and non-compliance was due to bona fide reason, namely, that he did not have sufficient money for travelling from Madras to Trichy and he was denied a railway warrant for that purpose. In support of his contention that mere non-compliance with an order of a superior officer should not be regarded as an act of misconduct unless there is an intention to flout the same, the learned counsel relied upon the decision in Union of India v. Giriraj Sharma. In that case the employee was deputed to undergo a course as an electrician. He sought leave and then applied for extension of leave. That request was rejected. For overstaying the period of leave his services were terminated. The said order was challenged in the High Court by filing a writ petition. The High Court having set aside the order, the Union of India preferred an appeal to this Court. While dismissing the appeal this Court observed that the punishment of dismissal for overstaying the period of 12 days in the circumstances of the case was really harsh as the said circumstances showed that it was not his intention to wilfully flout the order, but the circumstances had forced him to do so.

11.As against that, it was submitted by the learned counsel for the appellants that in this case the respondent had started remaining absent on medical grounds immediately after he was transferred to Trichy from Madras and that clearly indicated that he did not like the transfer and wanted to remain at Madras to carry on activities of the Association of which he was the Secretary. We find some force in this contention. The certificates produced by the respondent for obtaining medical leave clearly show that he was not all the times at Madras but had gone and stayed for quite a long period at Dindigul and Madurai. This circumstance was sufficient to raise a suspicion in the mind of the authorities that the ground given by the respondent for remaining absent at Trichy was really an excuse and he was not genuinely sick. It was under these circumstances that he was directed on 24-4-1981 to appear before the Medical Board. Without assigning any reason he did not do so. Therefore, he was again directed by an order dated 4-6-1981 to appear before the Board on 9-6-1981. This communication was received by the respondent. On 8-6-1981 he addressed a letter to the Superintendent of Police expressing his inability to appear before the Medical Board on 9-6-1981 on the ground that he had no money to travel from Madras to Trichy and that he would appear before the Board only on completion of his leave. He had also stated therein that a railway warrant for the journey may be granted to him. What we find from the material on record is that the respondent was already in Trichy on 4-6-1981 when the said order was personally served upon him. Even though he knew on that day that he was required to appear before the Medical Board at Trichy on 9-6-1981 he went away to Madras and from there sent a letter on 8-6-1981. The learned counsel for the respondent could not point out any provision requiring the police authorities to provide a railway warrant to a member of the Service under such circumstances.Mr.R.Balakrishnan, Deputy Superintendent of Police has filed an additional affidavit stating clearly that there is no such provision. This statement made in the affidavit has not been controverted. It, therefore, clearly appears to us that the reason given by him for not remaining present before the Medical Board was a false excuse. It was his intention not to comply with the said order. His not appearing before the Medical Board was with a view to avoid an enquiry regarding his true state of health so that he was not compelled to resume duty. It was thus an act of disobedience and indiscipline. Therefore, in the facts and circumstances of the case it cannot be said that there was no good and sufficient reason for initiating a disciplinary proceeding against the respondent."

14.Having found the second respondent was absent for more than 1000 days and was dodging in appearing before the Medical Officer of the hospital with lame excuses and has willfully disobeyed the order of transfer issued, for which, power is available with the petitioner hospital, the Tribunal was not justified in setting aside the enquiry on the ground that the principles of natural justice are violated for not giving the second respondent a copy of the Standing Orders. On the other hand, it must be noted that having set aside the domestic enquiry held by the employer, fresh evidence was let in before the Tribunal and therefore, the Tribunal has only to find out whether there is a prima facie case of holding the misconduct proved. The Tribunal apparently did not apply its mind to the case on hand. In fact, it is the very same Tribunal, which had set aside the earlier enquiry and fresh evidence was let in before the Tribunal.

15.The Supreme Court while construing the scope of Section 33(2)(b) vis-a-vis Section 10 held that the Tribunal in exercise of power under Section 33(2)(b) should confine itself only within its parameters vide its judgment in Cholan Roadways Ltd. vS. G.Thirugnanasambandam [2005 (3) SCC 241] and in paragraphs 13,18 and 37, it was observed as follows :

"13.It is neither in doubt nor in dispute that the jurisdiction of the Industrial Tribunal under Section 33(2)(b) of the Industrial Disputes Act is a limited one. The jurisdiction of the Industrial Tribunal under Section 33(2)(b) cannot be equated with that of Section 10 of the Industrial Disputes Act.......

18.The jurisdiction of the Tribunal while considering an application for grant of approval has succinctly been stated by this Court in Martin Burn Ltd. v. R.N.Banerjee. While exercising jurisdiction under Section 33(2)(b) of the Act, the Industrial Tribunal is required to see as to whether a prima facie case has been made out as regards the validity or otherwise of the domestic enquiry held against the delinquent, keeping in view the fact that if the permission or approval is granted, the order of discharge or dismissal which may be passed against the delinquent employee would be liable to be challenged in an appropriate proceeding before the Industrial Tribunal in terms of the provision of the Industrial Disputes Act. In Martin Burn case this Court stated: (AIR p. 85, para 27) A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record. (See Buckingham & Carnatic Co. Ltd. v. Workers of the Company.)

37.Ordinarily, we would have remitted the matter back to the Industrial Tribunal for its consideration afresh but as the matter has been pending for a long time and as we are satisfied having regard to the materials placed before us that the Industrial Tribunal should have granted approval of the order of punishment passed by the appellant herein against the respondents, we direct accordingly. The respondents may, however, take recourse to such remedy as is available to them in law for questioning the said order of dismissal.

16.Apart from this, it is stated in the affidavit that the workman has already raised an industrial dispute in I.D.No.539 of 2005 and the same is pending adjudication before the II Additional Labour Court, Chennai and the second respondent will have to work out her remedy before the appropriate forum and certainly, refusal to grant approval is not justified. Though Mr.S.Saiprasad, learned counsel for the petitioner stated that subsequent to the interim order passed on 16.08.2007, the second respondent was allowed to report for work and that having worked for two days, she disappeared without any further intimation and thus, a show cause notice was issued to her on 11.08.2009, they are all issues to be raised before the regular Labour Court and this Court, is not inclined to go into the said issue in the approval petition as it was not the subject matter before the Tribunal.

17.Hence, the impugned order stands set aside and the writ petition is allowed. No costs.

05.06.2012 Index : Yes Internet : Yes TK To The Presiding Officer Industrial Tribunal Chennai.

K.CHANDRU, J.

TK PRE-DELIVERY ORDER IN W.P.NO.12744 OF 2007 05.06.2012

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