Gujarat High Court
Indian Red Cross Society Through ... vs Valsala Varghese on 20 March, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/3105/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3105 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
INDIAN RED CROSS SOCIETY THROUGH CHAIRMAN DIPAK M NAROLA
Versus
VALSALA VARGHESE
==========================================================
Appearance:
MR A.H. DESAI, SENIOR COUNSEL WITH MS.VENU H NANAVATY(7458)
for the PETITIONER(s) No. 1
MR VAIBHAV A VYAS(2896) for the RESPONDENT(s) No. 1
RULE SERVED(64) for the RESPONDENT(s) No. 2
==========================================================
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 20/03/2018
ORAL JUDGMENT
1. Heard Mr.Desai, learned senior counsel with Ms.Nanavaty, learned advocate for the petitioner and Mr.Vyas, learned advocate for the respondent. 1
C/SCA/3105/2015 JUDGMENT
2. In this petition, the petitioner has prayed, inter alia, that:
"9(B) YOUR LORDSHIPS may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction by quashing and setting aside the impugned order at AnnexureA dated 18.12.2013 passed by Ld. Labour Court in L.C.R. No.105 of 2006 in the interest of justice;
(C) YOUR LORDSHIPS may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction by quashing and setting aside the impugned order at AnnexureB dated 20.12.2014 passed by Ld. Labour Court in Review Application No.1 of 2014 in the interest of justice;"
3. So far as the factual background is concerned, it has emerged from the record and from rival submission that the respondent herein raised industrial dispute with the allegation that her employer terminated her service illegally. The respondent demanded that she should be reinstated in service with all benefits. The appropriate government referred the dispute for adjudication to learned Labour Court. The dispute is registered as Reference (LCR) No.105 of 2006.
3.1 In her statement of claim, the claimant 2 C/SCA/3105/2015 JUDGMENT (present respondent) alleged that she was serving with the opponent as Staff Nurse from September 1990 and that she was confirmed in service vide order dated 7.5.1991. She further alleged that when she demanded proper pay scale and regular salary and other benefits, the opponent employer terminated her service vide order dated 1.2.2006 on the ground that she does not possess requisite qualification as well as registration with the Gujarat Nursing Council and that, therefore, she is not eligible and qualified to be employed as Nurse. According to the claimant, the opponent employer concocted the ground for termination and though she possessed requisite qualification and fulfilled eligibility criteria, her service came to be arbitrarily and illegally terminated. The claimant alleged violation of statutory provisions and violation of principles of natural justice. With such allegation, the claimant demanded reinstatement in service with all consequential benefits.
3
C/SCA/3105/2015 JUDGMENT 3.2 The opponent employer (Red Cross Society) opposed the reference as well as the demand of the claimant. In its reply, the opponent contended that the conduct of the claimant was far from satisfactory. The opponent mentioned several instances of petitioner's improper conduct and behaviour and contended that despite the claimant's such conduct and behaviour she was continued in service until the time it came to the notice that she does not possess qualification necessary for being employed as Nurse and she also does not possess the registration with Gujarat Nursing Council, which is a prerequisite for being employed as qualified Staff Nurse and that, therefore, a notice was served and explanation was called for from the claimant. The opponent employer also claimed that she was also given opportunity to acquire qualification and get the registration, however, the claimant did not take any steps for acquiring requisite qualification and registration. Thus, there was no option but to 4 C/SCA/3105/2015 JUDGMENT discontinue her service because a person who does not possess requisite qualification and registration, cannot be continued in service as Staff Nurse. With the said explanation, the opponent employer claimed that there is no illegality in the action and the claimant is not eligible and qualified to continue in service as Staff Nurse and that, therefore, the demand for reinstatement and consequential benefit is also not justified. With such submission, the opponent employer opposed the reference and the demand by the claimant.
3.3 After the parties completed the pleadings, the learned Labour Court received and recorded evidence from both sides. Upon conclusion of evidence, the learned Labour Court heard rival submissions and thereafter passed impugned award. The learned Labour Court, having reached to the conclusion that the employer terminated service of the claimant in violation of statutory provisions and in violation of principles of 5 C/SCA/3105/2015 JUDGMENT natural justice, directed the opponent employer (present petitioner) to reinstate the claimant's original post with continuity of service, however, without backwages.
3.4 Feeling aggrieved by the said award and directions, the opponent employer has taken out this petition.
4. Mr.Desai, learned senior counsel for the petitioner society assailed the award and submitted that the learned Labour Court failed to appreciate that since the claimant had not completed recognised course and since she did not possess registration with Gujarat Nursing Council, she was neither eligible nor qualified to serve as Nurse and actually, she could not have been appointed and could not have been continued in service because she lacked requisite qualification and she did not fulfill the pre condition for the employment. Learned senior counsel for the petitioner society submitted that the society had no option but to continue service 6 C/SCA/3105/2015 JUDGMENT of the claimant because even though the society granted opportunity to the petitioner, she did not take any steps to get registration and/or acquire necessary qualified. Mr.Desai, learned senior counsel for the petitioner society relied on the communication from the Gujarat Nursing Council which informed the petitioner society that the claimant is not registered with the Gujarat Nursing Council and qualification / certificate which the claimant possesses, is not registered qualification. He submitted that the course which the claimant had, allegedly, completed and the qualification which she, allegedly, possessed, was not recognised course by the Gujarat Nursing Council and the institute is not a recognised institute and therefore, the Gujarat Nursing Council informed the society that the certificate issued by the institute (hospital)is not registrable and that, therefore, the petitioner society could not further continue the respondent in service and the society was left with no option but to relieve her. 7
C/SCA/3105/2015 JUDGMENT Consequently, the society passed an order dated 31.1.2006 and relieved the respondent with effect from 1.2.2006. Learned senior counsel for the petitioner society further submitted that the learned Labour Court should have taken into account the fact that the behaviour and conduct of the respondent (claimant) was improper which did not befit a Staff Nurse. According to the petitioner, ti would not be in the interest of the society as well as in the interest of the patients to continue such person in employment. Learned senior counsel for the petitioner submitted that the society had issued several notices and given intimation to the respondent and called for her explanation and thereafter the society passed the order. Under the circumstances, the finding by the learned Labour Court that the service of the claimant came to be terminated without enquiry and the society committed breach of principles of natural justice, is unjustified and the premise on which the award is based, is faulty, erroneous and the 8 C/SCA/3105/2015 JUDGMENT decision by the learned Labour Court is unjust and arbitrary.
5. Per contra, learned advocate for the respondent submitted that the petitioner society terminated the service of the claimant without following procedure prescribed by law and in violation of principles of natural justice. He submitted that before terminating service of the claimant, the petitioner did not grant opportunity of hearing and though allegation about improper conduct and behaviour came to be levelled against the respondent in the reply filed before the learned Labour Court, neither chargesheet was issued nor even show cause notice was issued and domestic enquiry was also not conducted. Therefore, the respondent did not get any opportunity to put forward her explanation and defence. Learned advocate for the respondent further submitted that before terminating the service of the claimant the opponent employer did not issue notice and did 9 C/SCA/3105/2015 JUDGMENT not pay compensation in accordance with section 25F of the Act and subsequently other person came to be engaged. According to the respondent, the petitioner society committed breach of section 25F, section 25G and section 25H and that the said violation is established before the learned Labour Court and that, therefore, the relief granted by the learned Labour Court is just and reasonable and the award does not suffer from any error. According to learned advocate for the respondent, the petition should be rejected and the award should not be interfered with.
6. I have considered rival submissions and material available on record as well as impugned award.
7. At the outset, it is relevant to mention that before the petitioner appointed and engaged the respondent, it had not issued any advertisement (inviting applications for the post of Staff Nurse) with details about requisite qualification i.e. it had not published and not notified 10 C/SCA/3105/2015 JUDGMENT eligibility criteria.
7.1 It is also relevant to note at the outset that at the time when the respondent came to be appointed as Staff Nurse, the petitioner society had not framed any rules prescribing minimum qualification and/or other eligibility criteria for the post of Staff Nurse.
7.2 Differently put, at the relevant time, there was no rule and no provision in force in the society, which, in any manner, prescribed minimum qualification or any other eligibility criteria. 7.3 Even the condition that the candidate / applicant should possess registration with Gujarat Nursing Council, was not in force and the respondent was never informed about such requirement. Neither there was any provision (in force in society) which prescribed that the candidate / applicant should have completed prescribed course and should possess certificate issued by recognised institute.
11
C/SCA/3105/2015 JUDGMENT
8. It is relevant to note at this stage that it is not the case even of the petitioner that all other staff nurses (employed by the petitioner society) possess prescribed qualification and the certificate issued by recognised institute as well as registration with Gujarat Nursing Council.
9. It is not the case of the petitioner society that the respondent was the only person in th society who did not possess registration with Gujarat Nursing Council and who did not possess requisite qualification.
10. Actually, it has emerged from the record as well as from the submission by learned advocate for the petitioner that at the relevant time any criteria either about educational qualification or for specific course or with regard to experience, were not framed by the petitioner society.
11. In absence of any rules which prescribe 12 C/SCA/3105/2015 JUDGMENT minimum qualification and/or minimum experience or the condition about registration and when such requirements were not informed to the respondent / candidates, it cannot be said that the respondent was irregularly appointed and/or that the respondent did not possess requisite qualification and/or requisite experience and/or that she did not fulfill the condition viz. registration with the Nursing Council.
12. It is also pertinent to note that the petitioner continued the respondent in service from 1990 to 2006, i.e. for almost 16 years and during said long span of 16 years, the petitioner never raised any issue with regard to respondent's qualification and/or registration with Gujarat Nursing Council.
12.1 At the time when the respondent came to be appointed, her application was considered by the petitioner society.
12.2 The certificate / credentials which the 13 C/SCA/3105/2015 JUDGMENT respondent submitted at the time of her interview, were also examined by the petitioner society and the respondent came to be appointed after such verification.
12.3 After her appointment, she continued in service on probation basis.
12.4 Even during said period any question with regard to her qualification or registration was never raised.
12.5 Thereafter the petitioner came to be confirmed and she continued with the same for almost 16 years, during which the issue with regard to her qualification or registration was never raised.
13. In fact, in absence of any rule / provision with regard to the qualification and experience, there was no scope for the petitioner society to claim that the petitioner did not possess prescribed / requisite qualification and/or experience.
14
C/SCA/3105/2015 JUDGMENT 13.1 It is also not the case of the petitioner society that the respondent was aware / informed, at the time when she was appointed, that she should possess registration with Gujarat Nursing Council and/or that she should acquire such qualification within prescribed time limit. 13.2 In absence of such intimation and in absence of any rule to such effect, the petitioner society could not have invalidated the respondent's appointment on such ground, without following any procedure - even principles of natural justice - that too after continuing her in service for almost 16 years.
13.3 When the service of the respondent came to be terminated on such ground, then, it was necessary for the petitioner society to establish that at the time when the petitioner came to be appointed, such provisions (which prescribed minimum qualification and minimum experience) were framed and in force and applicable in the 15 C/SCA/3105/2015 JUDGMENT petitioner society and that the respondent (a candidate at the relevant time) was informed said requirement and that accordingly she was aware about said requirement at the time of her appointment. The petitioner failed to establish the said aspect before the learned Labour Court. 13.4 It is pertinent that before discontinuing the respondent, the petitioner did not conduct formal enquiry. The termination does not fall under any of the three exceptions prescribed under Section 2(oo).
13.5 Under the circumstances, the termination of respondent's service would fall within purview of the term 'retrenchment' as defined and contemplated under section 2(oo) of the Industrial Disputes Act {see: paras 8 & 9 in State Bank of India vs. Sri N. Sundara Mani [(1976) 1 SCC 822] and in paras 14, 61, 71 & 82 in Punjab Land Development and Reclamation Corporation Limited vs. Presiding Officer [(1990) 3 SCC 682] and paras 4 to 11, 15 & 16 in D.K. 16 C/SCA/3105/2015 JUDGMENT Yadav vs. JMA Industries Limited [(1993) 3 SCC 259]}. According to the said decision termination for 'any reason' - other than the three instances mentioned under section 2(oo) would amount to 'retrenchment'.
13.6 Therefore, the provision under section 25F of the Act would be attracted and applicable in present case.
14. On this count, it is relevant to note that the petitioner, undisputedly, did not follow the procedure prescribed under section 25F of the Act, at the time when the petitioner terminated service of present respondent. The petitioner neither issued notice as contemplated under section 25F nor paid retrenchment compensation in accordance with the procedure and formula prescribed under section 25F. Even the procedure prescribed under section 25G and Rule 81 of the Industrial Disputes (Gujarat) Rules was not followed. This aspect (i.e. the procedure prescribed under the said provision was not followed) is not in dispute.
17
C/SCA/3105/2015 JUDGMENT
15. Under the circumstances, the learned Labour Court's finding that the petitioner terminated service of the respondent in violation of statutory provision cannot be faulted.
16. So as to wriggle out of the said position, the petitioner society tried to take recourse to the notices allegedly issued by the petitioner.
17. In this context, it is relevant to note that the said defence is an afterthought inasmuch as in the order whereby the service of the respondent came to be terminated, the only reason (for terminating her service) which is mentioned in the order, is that 'her Nursing degree is not registrable' i.e. she did not possess requisite qualification / registration with the council.
18. Even if the petitioner's allegations against the respondent are taken into account, then it emerges that the petitioner society had, undisputedly, not issued any chargesheet specifically mentioning the allegations and 18 C/SCA/3105/2015 JUDGMENT instances of alleged misbehaviour and alleged inappropriate conduct of the respondent.
19. Further, formal domestic enquiry in respect of the allegation was not conducted before the order terminating her service came to be passed.
20. Besides this, when the order (whereby the respondent's service came to be terminated) is examined, it comes out that the order does not speak about any disciplinary action and plain reading of the order does not disclose that the respondent's service came to be terminated on account of misconduct and by way of disciplinary action. If the petitioner claims that the respondent's conduct was in nature of misocnduct and that was the cause as well as motive and premise for the termination then the termination should have preceded by action in accordance with law and the order should reflect that it is disciplinary action. On the other hand if termination is not for misconduct or it is not by way of disciplinary action then such termination 19 C/SCA/3105/2015 JUDGMENT would be 'for any other reason' and it would not fall within purview of three exceptions under section 2(oo) of the Act. This would entail compliance with conditions and procedure under section 25F. Either way the petitioner's action should fail since on both counts the petitioner did not follow requisite procedure.
21. Further, as mentioned above, the petitioner did not conduct domestic enquiry against the petitioner to prove the allegation about misconduct.
22. Before proceeding further, it is relevant to note that learned senior counsel for the petitioner society made an attempt, a lame and feeble attempt, to place reliance on the document at AnnexureN, page 75 which purports to be the rules framed by the Government for granting benefit of grant to voluntary organisations (NGOs).
23. The said rules are not discipline and conduct 20 C/SCA/3105/2015 JUDGMENT rules of the petitioner society. The object of said rules is altogether different. The said Rules are not framed by the petitioner and in any case the said Rules are not framed for prescribing Selection and Recruitment Rules for the society. Actually, the said rules are framed by the Government for considering any institute / establishment or an undertaking eligible for grant and the said rules prescribe the terms and conditions subject to which the Government may extend benefit of grantinaid to an institute.
24. Therefore, the said rules do not render any assistance to the petitioner in supporting the claim that the respondent did not possess requisite qualification.
25. From the foregoing discussion, it emerges that the findings recorded by the learned Labour Court are neither incorrect nor contrary to evidence on record. The findings recorded by the learned Labour Court cannot be termed arbitrary or perverse. The findings recorded by the 21 C/SCA/3105/2015 JUDGMENT learned Labour Court are supported by cogent and satisfactory reasons which, in turn, are supported by the relevant evidence available on record of the reference case. The final conclusion by the learned Labour Court that the petitioner terminated service of the respondent without following procedure prescribed by law and in violation of principles of natural justice, cannot be faulted.
26. This leaves behind the issue about appropriate relief.
27. From the award, it emerges that the learned Labour Court directed the petitioner society to reinstate the claimant on original post with continuity of service, however, without backwages.
28. When the propriety of the relief granted by the learned Labour Court is examined in light of the facts of the case, then it emerges that the learned Labour Court lost sight of the fact that 22 C/SCA/3105/2015 JUDGMENT the claimant does not possess registration with Gujarat Nursing Council and that according to Gujarat Nursing Council, the qualification which the respondent possesses and/or the certificate which she possesses are not registrable. Meaning thereby the correction which the respondent seems to have undergone and the institute (hospital) wherefrom the petitioner, allegedly, completed the course, are not duly recognised by Gujarat Nursing Council.
29. While it is true that at the time when the petitioner appointed the respondent, there was no provision which prescribed that appointee on the post of Staff Nurse should possess qualification determined by Gujarat Nursing Council and/or the qualification recognised by Gujarat Nursing Council and that the appointee to the post of Staff Nurse should possess registration with Gujarat Nursing Council.
30. However, that does not mean that the said minimum requirement should be overlooked or 23 C/SCA/3105/2015 JUDGMENT ignored. When the issue about determining appropriate relief is being considered by the Court, then it is the duty of the Court to weigh pros and cons and to also consider as to whether the direction to reinstate a person who does not possess proper qualification and registration with Gujarat Nursing Council would be just and proper or not. It should also be taken into account that the health and life of patients are, more often than not, in hands of the Staff Nurse and importance of the trained and duly qualified Nurse cannot be underscore. Unfortunately, the learned Labour Court seems to have lost sight of this relevant aspect.
31. From the record, it emerges that the petitioner had asked the respondent to acquire proper qualification and also to get registration with Gujarat Nursing Council. It has come on record that neither during the proceedings before the learned Labour Court nor during pendency of present petition the respondent even took any 24 C/SCA/3105/2015 JUDGMENT steps to acquire qualification and about to get registration with Gujarat Nursing Council. Reply to the query by the Court, learned advocate for the respondent clarified that even as of now the respondent has not acquired with Gujarat Nursing Council.
32. In this view of the matter, this Court is of the view that the direction to reinstate the respondent is not proper and just. Though it is established that the petitioner committed breach of statutory provisions and principles of natural justice at the time when it terminated the service of the respondent, however, such illegality need not, necessarily and mechanically, entail the consequence in form of reinstatement. Instead, the learned Labour Court should have considered the action of moulding the relief appropriately. Actually, this is a fit case where the relief should be appropriately moulded.
33. In view of this Court, the facts and 25 C/SCA/3105/2015 JUDGMENT circumstances involved in present case justify relief in form of lump sum compensation in lieu of reinstatement.
34. On this count, learned advocates for the petitioner as well as the respondent brought to the notice of the Court, the claim which the respondent filed before the learned Labour Court by invoking provision under section 33(C2) of the Industrial Disputes Act. In the application filed by the respondent, she claimed wages and other benefits for the period from 30.1.2014 to 31.12.2014. The calculation and quantification made by the claimant is page 72 of the record of present petition. From the said calculation and quantification, it is noticed that the claimant quantified the salary and other benefits at about Rs.94,000/ for the period of 12 months (i.e. from January 2014 to December 2014). When the said amount is taken into account, it appears that if the respondent were to be awarded backwages for the intervening period, i.e. from 26 C/SCA/3105/2015 JUDGMENT the date of termination till 31.1.2018 then the amount would approximately come to Rs.3,20,000/. At the same time if the benefit payable towards gratuity, at the same rate of salary, is taken into account, then the amount would be approximately Rs.1,90,000/. Having regard to the said amount, the Court is of the view that if the respondent is awarded lump sum compensation at Rs.4,50,000/, then it would balance equity and also meet ends of justice. Consequently, the following order is passed.
35. In light of the foregoing discussion and for the reasons mentioned above, the petition is partly allowed. The award passed by the learned Labour Court with the direction to reinstate the claimant with continuity of service is set aside and modified with the direction that the respondent shall be entitled to lump sum compensation at Rs.4,50,000/ (Rupees Four Lakh Fifty Thousand only) in lieu of the reinstatement and the other benefits. The petitioner shall pay 27 C/SCA/3105/2015 JUDGMENT the said amount to the respondent as lump sum compensation in compliance of the award. The award accordingly stands modified. On payment of the said amount, the award shall stand complied. Having regard to the request made by learned advocate for the petitioner that the petitioner society being chartable and voluntary organisation would require some more time to pay compensation determined by the Court, it is clarified that the petitioner shall pay the aforesaid amount of lump sum compensation in 9 (nine) equal installments (each of Rs.50,000/) starting from 1.4.2018.
With the aforesaid clarifications, directions and observations, the petition is disposed of. Adinterim relief, if any, stands vacated. Rule is discharged.
Sd/ (K.M.THAKER, J) Bharat 28