1
HI Raktha,
Refer the link below:
http://www.erlaws.com/showfullact.asp?act=IDA
Regards,
Binoy Babu
From India, Bangalore
Refer the link below:
http://www.erlaws.com/showfullact.asp?act=IDA
Regards,
Binoy Babu
From India, Bangalore
Section 2J:
Industry
Any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen
__________________________________________________ ________________________________
Section 2(j) shall stand substituted as under w.e.f. the date to notified:
Any systematic activity carried on by cooperation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or service with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not,--
(i) any capital has been invested for the purpose of carrying on such activity
(ii) such activity is carried on with a motive to make any gain or profit, and includes-
(a) any activity of the Dock Labour Board established under Section 5-A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948)
(b) any activity relating to the promotion of sales or business or both carried on by an establishment,
but does not include-
(1) any agriculture operation except where such agricultural operation is carried on in an intergrated manner with any other activity (being any such activity as is referred to in the foregoing provisions of this clause) and such other activity is the predominant one.
Explanation.-For the purposes of this sub-clause, "agricultural operation" does not include any activity carried on in a plantation as defined in clause (f) of Section 2 of the Plantations Labour Act, 1951
(2) hospitals or dispensaries
(3) educational, scientific, research or training institutions; or
(4) institutions owned or managed by organisations wholly or substantially engaged in any charitable, social or philanthropic service; or
(5) khadi or village industries; or
(6) any activity of the Government relatable to the sovereign functions of the government including all the activities carried on by the departments o the Central Government dealing with defence research, atomic energy and space; or
(7) any domestic service; or
(8) any activity, being a profession practised by an individual or body of individuals, if the number of persons employed by the individuals or body of individuals in relation to such profession is less than ten; or
(9) any activity, being an activity carried on by a co-operative society or a club or any other like body of individuals, if the number of persons employed by the co-operative society, club or other like body of individuals in relation to such activity is less than ten
regards
yes,
From India, Bahadurgarh
Industry
Any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen
__________________________________________________ ________________________________
Section 2(j) shall stand substituted as under w.e.f. the date to notified:
Any systematic activity carried on by cooperation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or service with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not,--
(i) any capital has been invested for the purpose of carrying on such activity
(ii) such activity is carried on with a motive to make any gain or profit, and includes-
(a) any activity of the Dock Labour Board established under Section 5-A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948)
(b) any activity relating to the promotion of sales or business or both carried on by an establishment,
but does not include-
(1) any agriculture operation except where such agricultural operation is carried on in an intergrated manner with any other activity (being any such activity as is referred to in the foregoing provisions of this clause) and such other activity is the predominant one.
Explanation.-For the purposes of this sub-clause, "agricultural operation" does not include any activity carried on in a plantation as defined in clause (f) of Section 2 of the Plantations Labour Act, 1951
(2) hospitals or dispensaries
(3) educational, scientific, research or training institutions; or
(4) institutions owned or managed by organisations wholly or substantially engaged in any charitable, social or philanthropic service; or
(5) khadi or village industries; or
(6) any activity of the Government relatable to the sovereign functions of the government including all the activities carried on by the departments o the Central Government dealing with defence research, atomic energy and space; or
(7) any domestic service; or
(8) any activity, being a profession practised by an individual or body of individuals, if the number of persons employed by the individuals or body of individuals in relation to such profession is less than ten; or
(9) any activity, being an activity carried on by a co-operative society or a club or any other like body of individuals, if the number of persons employed by the co-operative society, club or other like body of individuals in relation to such activity is less than ten
regards
yes,
From India, Bahadurgarh
Industrial Disputes Act - Definition
Section 2J:
Industry
Any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen
__________________________________________________ ________________________________
Section 2(j) shall stand substituted as under w.e.f. the date to notified:
Any systematic activity carried on by cooperation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or service with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not,--
(i) any capital has been invested for the purpose of carrying on such activity
(ii) such activity is carried on with a motive to make any gain or profit, and includes-
(a) any activity of the Dock Labour Board established under Section 5-A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948)
(b) any activity relating to the promotion of sales or business or both carried on by an establishment,
but does not include-
(1) any agriculture operation except where such agricultural operation is carried on in an intergrated manner with any other activity (being any such activity as is referred to in the foregoing provisions of this clause) and such other activity is the predominant one.
Explanation.-For the purposes of this sub-clause, "agricultural operation" does not include any activity carried on in a plantation as defined in clause (f) of Section 2 of the Plantations Labour Act, 1951
(2) hospitals or dispensaries
(3) educational, scientific, research or training institutions; or
(4) institutions owned or managed by organisations wholly or substantially engaged in any charitable, social or philanthropic service; or
(5) khadi or village industries; or
(6) any activity of the Government relatable to the sovereign functions of the government including all the activities carried on by the departments o the Central Government dealing with defence research, atomic energy and space; or
(7) any domestic service; or
(8) any activity, being a profession practised by an individual or body of individuals, if the number of persons employed by the individuals or body of individuals in relation to such profession is less than ten; or
(9) any activity, being an activity carried on by a co-operative society or a club or any other like body of individuals, if the number of persons employed by the co-operative society, club or other like body of individuals in relation to such activity is less than ten
This means hospital is not an industry as proved in the Safdarjung Hospitals Case
From India, Bangalore
Section 2J:
Industry
Any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen
__________________________________________________ ________________________________
Section 2(j) shall stand substituted as under w.e.f. the date to notified:
Any systematic activity carried on by cooperation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or service with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not,--
(i) any capital has been invested for the purpose of carrying on such activity
(ii) such activity is carried on with a motive to make any gain or profit, and includes-
(a) any activity of the Dock Labour Board established under Section 5-A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948)
(b) any activity relating to the promotion of sales or business or both carried on by an establishment,
but does not include-
(1) any agriculture operation except where such agricultural operation is carried on in an intergrated manner with any other activity (being any such activity as is referred to in the foregoing provisions of this clause) and such other activity is the predominant one.
Explanation.-For the purposes of this sub-clause, "agricultural operation" does not include any activity carried on in a plantation as defined in clause (f) of Section 2 of the Plantations Labour Act, 1951
(2) hospitals or dispensaries
(3) educational, scientific, research or training institutions; or
(4) institutions owned or managed by organisations wholly or substantially engaged in any charitable, social or philanthropic service; or
(5) khadi or village industries; or
(6) any activity of the Government relatable to the sovereign functions of the government including all the activities carried on by the departments o the Central Government dealing with defence research, atomic energy and space; or
(7) any domestic service; or
(8) any activity, being a profession practised by an individual or body of individuals, if the number of persons employed by the individuals or body of individuals in relation to such profession is less than ten; or
(9) any activity, being an activity carried on by a co-operative society or a club or any other like body of individuals, if the number of persons employed by the co-operative society, club or other like body of individuals in relation to such activity is less than ten
This means hospital is not an industry as proved in the Safdarjung Hospitals Case
From India, Bangalore
Please read and compare
Industrial Disputes Act
The object of the Act is to make provisions for investigation and settlement of industrial disputes. However, it makes other provisions in respect of lay off, retrenchment, closure etc. The purpose is to bring the conflicts between employer and employees to an amicable settlement. [The Act is achieving exactly opposite]. The Act provides machinery for settlement of disputes, if dispute cannot be solved through collective bargaining.
‘Industry’ under Industrial Disputes Act – The definition of ‘industry’ is as follows – ‘Industry means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen. [section 2(j)]. Thus, the definition is very wide. - - The scope is much wider than what is generally understood by the term ‘industry’.
In Bangalore Water Supply & Sewerage Board v. Rajappa (1978) 2 SCC 213 = 36 FLR 266 = 1978(2) SCR 213 = 1978(1) LLJ 349 = AIR 1978 SC 548 (SC 7 member bench 5 v 2 judgment), a very wide interpretation to the term 'industry' was given. It was held that profit motive or a desire to generate income is not necessary. Any systematic activity organized by cooperation between employer and employees for the production and/or distribution of goods and services calculated to satisfy human wants and wishes is ‘industry’.
Thus, many hospitals, educational institutions, universities, charitable institutions and welfare organisations have got covered under the Act. Professions, clubs, cooperatives, research institutes etc. are also covered.
Regards
Arun K Mishra
From India, Bahadurgarh
Industrial Disputes Act
The object of the Act is to make provisions for investigation and settlement of industrial disputes. However, it makes other provisions in respect of lay off, retrenchment, closure etc. The purpose is to bring the conflicts between employer and employees to an amicable settlement. [The Act is achieving exactly opposite]. The Act provides machinery for settlement of disputes, if dispute cannot be solved through collective bargaining.
‘Industry’ under Industrial Disputes Act – The definition of ‘industry’ is as follows – ‘Industry means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen. [section 2(j)]. Thus, the definition is very wide. - - The scope is much wider than what is generally understood by the term ‘industry’.
In Bangalore Water Supply & Sewerage Board v. Rajappa (1978) 2 SCC 213 = 36 FLR 266 = 1978(2) SCR 213 = 1978(1) LLJ 349 = AIR 1978 SC 548 (SC 7 member bench 5 v 2 judgment), a very wide interpretation to the term 'industry' was given. It was held that profit motive or a desire to generate income is not necessary. Any systematic activity organized by cooperation between employer and employees for the production and/or distribution of goods and services calculated to satisfy human wants and wishes is ‘industry’.
Thus, many hospitals, educational institutions, universities, charitable institutions and welfare organisations have got covered under the Act. Professions, clubs, cooperatives, research institutes etc. are also covered.
Regards
Arun K Mishra
From India, Bahadurgarh
Also read
[DELHI HIGH COURT]
All India Institute of Medical Sciences
v
O.P.Chauhan and Others
S.N. Dingra
20 Dec 2006
BENCH
S.N. Dingra
CASES REFERRED TO
Rajasthan State Road Transport v. Zakir Hussain 2005 Indlaw SC 472
Nedungadi Bank Limited v K. P. Madhavankutty and Others 2000 Indlaw SC 123
Messrs. Shalimar Works Limited v Their Workmen 1959 Indlaw SC 102
UP State Road Transport Corporation v. Babu Ram, [2006 (3) LLJ 15]
Assistant Engineer, CAD, Kota v. Dhan Kumwar [2006 (3) LLJ 12]
Bangalore Water Supply and Sewerage Board v. A. Rajappa [1978 (36) FLR 226]
ACTS REFERRED
Industrial Disputes Act, 1947
CASE NO
W.P.(C) No. 896-A of 1999
EDITOR'S NOTE
Petitioner challenged validity of the award whereby the Labour Court , Delhi directed the reinstatement of the respondent with 50% back wages - Held, services of a person can be terminated simpliciter even for those reasons which are not recorded in the order the order would not become illegal - Observation of the Tribunal that this dismissal was illegal, is bad in law and perverse - Petition allowed.
KEYWORDS
Labour & Industrial Law, Theft, Back Wages
LAWYERS
B.K.Aggarwal, Mukul Gupta
.JUDGMENT TEXT
The Order of the Court was as follows :
1. By this writ petition, the petitioner has challenged the validity of the award dated 29.7.1998 whereby the Labour Court No.-III, Delhi answered the reference in favour of the respondent no.1 (hereinafter- the respondent) and directed the reinstatement of the respondent with 50% back wages from October, 1987 till the reinstatement.
2. Briefly the facts are that the respondent was initially appointed as a Lab Attendant in March, 1968 by the petitioner. In October, 1970 the post of Lab Assistant fell vacant and he was temporarily appointed to the post of Lab. Assistant. It was not a promotion but a fresh appointment of the respondent in officiating capacity on the same terms and conditions on which he was appointed as Lab Attendant. The respondent indulged in a theft of chemicals and equipments from the Laboratory along with his accomplice Pareshwar Prasad and a FIR was registered against him and his accomplice under Sections 379/34/411 at Police Station Vinay Nagar bearing FIR No. 454/77. The incident of theft took place on 27.7.1997. The secuirty guards of petitioner had noticed two bags in the hands of Pareshwar Prasad. The respondent had handed over the articles in bags to his co-accused Pareshwar Prasad and it was noticed by the security guards. The security guards chased Pareshwar Prasad and caught him red handed along with stolen articles. He disclosed receiving stolen articles from the respondent. After this incident the services of the respondent were terminated by the petitioner vide order dated 28.9.1977 invoking Clause 2 (v) of the appointment letter whereunder the services of the respondent could be terminated by giving one months notice or pay in lieu thereof. The respondent was given one month pay in lieu of the notice period and his services were terminated and he was advised to return I.Card etc. The respondent did not challenge this order of 28.9.1977 for 10 years. He was acquitted by the Court of MM vide judgment dated 8.9.1987 and after that he served a notice upon the petitioner dated 22.9.1987 asking the petitioner to reinstate him on the ground that he has been acquitted by the Court of MM. He also asked for continuity of service and full back wages. His application for reinstatement was turned down so he raised an industrial dispute which was referred for adjudication in following terms:
"Whether the termination of service of Sh. Om Prakash Chauhan is illegal and or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect"?
3. The Labour Court after recording evidence of both the sides came to the conclusion that the petitioner was an industry in view the Bangalore Water Supply and Sewerage Board v. A. Rajappa 1978 (36) FLR 226 case and since the services of the respondent were terminated without payment of retrenchment compensation, his termination was illegal. The plea of the petitioner that the termination of the respondent was simpliciter in accordance with the terms of employment was rejected by the Labour Court holding that the Court could pierce the veil and see the real reason behind the termination. In this case, the real reason behind termination was involvement of respondent in theft case and the management was duty bound to hold an enquiry before terminating the services of respondent. Since no enquiry was held and the respondent had been acquitted by the Criminal Court, the petitioner was bound to reinstate the respondent. The Labour Court directed reinstatement with 50% back wages from October, 1987 till the passing of award.
4. The award of the Labour Court has been challenged by the petitioner on the ground that the petitioner was not an 'industry' and also on the ground that there was no occasion for intervention of the Labour Court since the termination of the respondent was covered under Section 2 (oo) (bb). The finding of the Labour Court were perverse and the award was passed ignoring the evidence on record and was contrary to law. The award was without jurisdiction, the reference was itself without jurisdiction and void ab initio.
5. I have heard the counsel for the parties and perused the record. The counsel for petitioner argued that the reference made by the appropriate Government was bad in law for two reasons; one the reference was made after more than ten years of the dismissal of the workman the workman was dismissed in 1977 while the reference was made in 1988 and in view of the latest law laid down by Supreme Court this reference was bad. It is also argued that the judgment of Supreme Court in Safdarjung Hospital has not been overruled and the question of industry has been referred to a larger bench of Judges of the Supreme Court. The petitioner was not an 'industry'. The petitioner was not indulging in any commercial activity but was performing the governmental duty of looking after the health of the people and doing research in the field of medicines and treatment. It is stated that the petitioner institute was primarily an institute of research. The patients are admitted so that the research of the institute gets a helping hand. The petitioner gets huge grants for research. The research budget of petitioner was more than the patient care budget. It is further argued that the trial court erred in not considering the fact that the respondent was involved in a case of theft, he and his accomplices were caught red-handed by the guards of the petitioner. The judgment of the Criminal Court acquitting the respondent does not say that the respondent was falsely implicated but the respondent was acquitted because the Court considered that the proof was not beyond reasonable doubt. The witnesses of the management before the Criminal Court had supported the case and identified the stolen property but this identification was not believed because no specific marks of the AIIMS Hospital was there on chemicals and because receipts and stock register could not be produced. It is further submitted that such an acquittal does not stand in the way of termination of the services of the respondent the respondent was terminated simpliciter in accordance with the contract of service. It was not a case of retrenchment where retrenchment compensation should have been paid.
6. The counsel for respondent argued that no evidence to prove misconduct was adduced before the Labour Court. The acquittal of the respondent gives a clean chit to the respondent that he was not involved in the theft. He was terminated because of his involvement in theft. Since he has been acquitted by the Criminal Court, he is entitled for reinstatement with full back wages. The respondent also filed a writ petition bearing WP(C) No. 1348/99 challenging the part of the award by which the respondent had been granted only 50% back wages. He seeks full back wages.
7. It is now settled law that the appropriate Government while referring an industrial dispute must be careful and should not refer those disputes that have become stale or dead. In this case the respondent was dismissed from service on 28.9.1977. He did not send any representation against his dismissal, he did not prefer any appeal against the dismissal, he did not challenge his dismissal before any forum and accepted his dismissal. He was involved in a case of theft and the stolen material was recovered from his accomplice by the guards of the petitioner. A theft case was registered against him. His termination had become settled. He accepted the termination and went to his village where he started doing agricultural work. The dispute of his termination did not survive after 10 years, when he was acquitted by the Criminal Court. There was no reason for the appropriate Government to refer a dead/stale dispute and this reference was without a jurisdiction. In 2006 (3) LLJ 12 Assistant Engineer, CAD, Kota v. Dhan Kumwar, the respondent workman raised an Industrial Dispute after about eight years. The reference of dispute was made to the Labour Court by appropriate Government. The Labour Court awarded reinstatement with 30% back wages which was upheld by the High Court Supreme Court observed that though the law does not prescribe any time limit for the appropriate Government to exercise its powers under Section 10 of the Act, it is not that this power can be exercised at any point of time and to revive matters which had since settled. Power is to be exercised reasonably in a rationale manner and allowed the appeal. In Nedungadi Bank Ltd. v. K.P.Madhavankutty, 2000 Indlaw SC 123 Supreme Court laid down the same law and held the reference of the Industrial Demand by the Government as ex facie bad and incompetent. The appropriate Government should not refer the stale and dead disputes. In Shalimar Works Ltd. v Workmen 1959 Indlaw SC 102 Supreme Court held that a delay of four years was fatal and dis-entitled the workman to any relief. In 2006 (3) LLJ 15, UP State Road Transport Corporation v. Babu Ram, Supreme Court again held that a delay of 15 years in raising the dispute was fatal to the case.
8. I consider that in this case the reference was bad in law, the workman had not raised any dispute for 10 years, he had not challenged his involvement in theft before the department for 10 years. The termination of the workmen had become a settled fact. The vacancy of Lab Assistant could not have been kept vacant for long. The department was bound to fill up the vacancy by another person. By referring an industrial dispute after eleven years, the appropriate Government in fact acted contrary to the spirit of Industrial Disputes Act, 1947. The Act was enacted to bring Industrial harmony and peace by providing an adjudicating machinery for industrial disputes. It is not meant to disturb industrial peace by racking up stale and dead disputes. I consider that the reference was bad in law and without jurisdiction. The award is liable to be set aside only on this ground.
9. It is true that in this case the management had not held any enquiry and terminated the services of the respondent simpliciter by giving him one months notice pay. The respondent was governed by service conditions as he was a temporary employee of the institute and the following condition was mentioned in his appointment letter The appointment may be terminated at any time by a month's notice given by either side, viz. the appointee or the appointing authority without assigning any reason. It will be open to the Institute to pay in lieu of notice pay for the period by which the notice falls short of one month. Similarly, if he/she wishes to resign his/her post, he/she may do so by depositing with the Institute pay and allowances in lieu of the notice period by which it falls short of one month and three months in case of permanent employees.
10. I consider that management is not obliged to keep thieves under its employment. There is no doubt that the respondent was acquitted by the Criminal Court but the standards of proof required by a Criminal Court are always different from the standards of conduct which are required to be seen by a management for employing a person. The respondent was working in the laboratory of AIIMS as Lab. Assistant. He was handling all the chemicals and equipments stored in the laboratory, the chemicals which are used in the research. Many chemicals and equipment are quite costly while some may not be costly but very crucial for research. A laboratory is required to be handled by those persons (Lab. Assistants) who are trustworthy and have high integrity and who, protect the property i.e. chemicals and equipments in the Laboratory from pilferage and wastage. If a Lab Assistant himself is found involved in theft of chemicals and equipments and caught red handed along with his accomplices by the security guards of the management, the management is well within its right to invoke the relevant clause of service contract and terminate the services of such employee.
11. It would have been worthwhile for the Labour Court to go through the judgment of the Criminal Court to see whether the respondent had been acquitted on the ground that he was falsely implicated or he has been acquitted because of benefit of doubt. A perusal of the judgment of the Criminal Court would show that the Criminal Court observed that since the receipts and stock register of the stolen property, recovered from the accused, were not produced in the Court the property cannot be considered that of the AIIMS. The Criminal Court brushed aside the evidence of the security guards who, had caught the respondent and his accomplices red handed, stating that they were not believable without giving any reason as to why the security guards were not believable. The Criminal Court seemed to be labouring under a conception that poor persons cannot speak truth and only rich and high class are credit- worthy and believable. The Criminal Court without giving any reason disbelieved the testimony of the security guards who had caught the respondent's accomplices red handed with chemicals and equipments. However, the Labour Court was under an obligation to see at least if, the acquittal was the basis of doubts or it was a clean chit to the respondent stating that he was not involved or it was held that he was falsely implicated.
12. The Labour Court observed that an order of dismissal simpliciter can be considered as a colored order by piercing the veil and looking at the circumstances under which the person was terminated. I consider that where the management shows magnanimity and mercy to a person and does not record the real reasons in the order of his termination so that the person, if wants to work somewhere else and improves himself, he may improve himself, this magnanimity and mercy should not be misconstrued and should not be considered as an illegality. The services of a person can be terminated simpliciter even for those reasons which are not recorded in the order the order would not become illegal. # In Rajasthan State Road Transport v. Zakir Hussain 2005 Indlaw SC 472 Supreme Court observed as under:
"The termination order in the instant case would clearly show that the misconduct on the part of the workman-respondent is not the foundation of the order of discharge. For an order to be 'founded' on misconduct, it must be intended to have been passed by way of punishment, that is, it must be intended to chastise or cause pain in body or mind or harm or loss in reputation or money to be concerned worker. Such an intention cannot be spelled out of the present order of discharge. It cannot be regarded as an order of dismissal. Such would be the case when the employer orders discharge in the interests of the Corporation. So, the real criterion which formed the touchstone of a test to determine whether an order of termination of services is an order of discharge simpliciter or amounts to dismissal is the real nature of the order, that is, the intention which it was passed." *
13. I, therefore, consider that the observation of the Tribunal that this dismissal was illegal, is bad in law and perverse. As far as the petitioner not being an 'industry' is concerned I would not like to express any opinion in view of the fact that this question is pending before a larger bench of Supreme Court.
14. I consider that the Labour Courts while exercising jurisdiction under Section 10 must be careful and see that they do not put a premium on the persons who sleep and approach the appropriate Government with delay. Similarly, the Labour Court must be careful that the employees of doubtful integrity and the employees who are involved in criminal cases are not thrust upon the management. It is not necessary that in every case the where a person is involved in theft, forgery and where a criminal case is registered, the management has to hold an enquiry and then only terminate the services. The management can always terminate the services in terms of service conditions of an employee, for loss of faith and confidence, where the employee involved is handling sensitive post or a high degree of integrity and honesty is expected from him because of responsibilities. #
15. In view of my above discussion, I allow this writ petition. The award dated 29.7.1998, passed by the Labour Court is hereby set aside.
Regards
Arun K Mishra
From India, Bahadurgarh
[DELHI HIGH COURT]
All India Institute of Medical Sciences
v
O.P.Chauhan and Others
S.N. Dingra
20 Dec 2006
BENCH
S.N. Dingra
CASES REFERRED TO
Rajasthan State Road Transport v. Zakir Hussain 2005 Indlaw SC 472
Nedungadi Bank Limited v K. P. Madhavankutty and Others 2000 Indlaw SC 123
Messrs. Shalimar Works Limited v Their Workmen 1959 Indlaw SC 102
UP State Road Transport Corporation v. Babu Ram, [2006 (3) LLJ 15]
Assistant Engineer, CAD, Kota v. Dhan Kumwar [2006 (3) LLJ 12]
Bangalore Water Supply and Sewerage Board v. A. Rajappa [1978 (36) FLR 226]
ACTS REFERRED
Industrial Disputes Act, 1947
CASE NO
W.P.(C) No. 896-A of 1999
EDITOR'S NOTE
Petitioner challenged validity of the award whereby the Labour Court , Delhi directed the reinstatement of the respondent with 50% back wages - Held, services of a person can be terminated simpliciter even for those reasons which are not recorded in the order the order would not become illegal - Observation of the Tribunal that this dismissal was illegal, is bad in law and perverse - Petition allowed.
KEYWORDS
Labour & Industrial Law, Theft, Back Wages
LAWYERS
B.K.Aggarwal, Mukul Gupta
.JUDGMENT TEXT
The Order of the Court was as follows :
1. By this writ petition, the petitioner has challenged the validity of the award dated 29.7.1998 whereby the Labour Court No.-III, Delhi answered the reference in favour of the respondent no.1 (hereinafter- the respondent) and directed the reinstatement of the respondent with 50% back wages from October, 1987 till the reinstatement.
2. Briefly the facts are that the respondent was initially appointed as a Lab Attendant in March, 1968 by the petitioner. In October, 1970 the post of Lab Assistant fell vacant and he was temporarily appointed to the post of Lab. Assistant. It was not a promotion but a fresh appointment of the respondent in officiating capacity on the same terms and conditions on which he was appointed as Lab Attendant. The respondent indulged in a theft of chemicals and equipments from the Laboratory along with his accomplice Pareshwar Prasad and a FIR was registered against him and his accomplice under Sections 379/34/411 at Police Station Vinay Nagar bearing FIR No. 454/77. The incident of theft took place on 27.7.1997. The secuirty guards of petitioner had noticed two bags in the hands of Pareshwar Prasad. The respondent had handed over the articles in bags to his co-accused Pareshwar Prasad and it was noticed by the security guards. The security guards chased Pareshwar Prasad and caught him red handed along with stolen articles. He disclosed receiving stolen articles from the respondent. After this incident the services of the respondent were terminated by the petitioner vide order dated 28.9.1977 invoking Clause 2 (v) of the appointment letter whereunder the services of the respondent could be terminated by giving one months notice or pay in lieu thereof. The respondent was given one month pay in lieu of the notice period and his services were terminated and he was advised to return I.Card etc. The respondent did not challenge this order of 28.9.1977 for 10 years. He was acquitted by the Court of MM vide judgment dated 8.9.1987 and after that he served a notice upon the petitioner dated 22.9.1987 asking the petitioner to reinstate him on the ground that he has been acquitted by the Court of MM. He also asked for continuity of service and full back wages. His application for reinstatement was turned down so he raised an industrial dispute which was referred for adjudication in following terms:
"Whether the termination of service of Sh. Om Prakash Chauhan is illegal and or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect"?
3. The Labour Court after recording evidence of both the sides came to the conclusion that the petitioner was an industry in view the Bangalore Water Supply and Sewerage Board v. A. Rajappa 1978 (36) FLR 226 case and since the services of the respondent were terminated without payment of retrenchment compensation, his termination was illegal. The plea of the petitioner that the termination of the respondent was simpliciter in accordance with the terms of employment was rejected by the Labour Court holding that the Court could pierce the veil and see the real reason behind the termination. In this case, the real reason behind termination was involvement of respondent in theft case and the management was duty bound to hold an enquiry before terminating the services of respondent. Since no enquiry was held and the respondent had been acquitted by the Criminal Court, the petitioner was bound to reinstate the respondent. The Labour Court directed reinstatement with 50% back wages from October, 1987 till the passing of award.
4. The award of the Labour Court has been challenged by the petitioner on the ground that the petitioner was not an 'industry' and also on the ground that there was no occasion for intervention of the Labour Court since the termination of the respondent was covered under Section 2 (oo) (bb). The finding of the Labour Court were perverse and the award was passed ignoring the evidence on record and was contrary to law. The award was without jurisdiction, the reference was itself without jurisdiction and void ab initio.
5. I have heard the counsel for the parties and perused the record. The counsel for petitioner argued that the reference made by the appropriate Government was bad in law for two reasons; one the reference was made after more than ten years of the dismissal of the workman the workman was dismissed in 1977 while the reference was made in 1988 and in view of the latest law laid down by Supreme Court this reference was bad. It is also argued that the judgment of Supreme Court in Safdarjung Hospital has not been overruled and the question of industry has been referred to a larger bench of Judges of the Supreme Court. The petitioner was not an 'industry'. The petitioner was not indulging in any commercial activity but was performing the governmental duty of looking after the health of the people and doing research in the field of medicines and treatment. It is stated that the petitioner institute was primarily an institute of research. The patients are admitted so that the research of the institute gets a helping hand. The petitioner gets huge grants for research. The research budget of petitioner was more than the patient care budget. It is further argued that the trial court erred in not considering the fact that the respondent was involved in a case of theft, he and his accomplices were caught red-handed by the guards of the petitioner. The judgment of the Criminal Court acquitting the respondent does not say that the respondent was falsely implicated but the respondent was acquitted because the Court considered that the proof was not beyond reasonable doubt. The witnesses of the management before the Criminal Court had supported the case and identified the stolen property but this identification was not believed because no specific marks of the AIIMS Hospital was there on chemicals and because receipts and stock register could not be produced. It is further submitted that such an acquittal does not stand in the way of termination of the services of the respondent the respondent was terminated simpliciter in accordance with the contract of service. It was not a case of retrenchment where retrenchment compensation should have been paid.
6. The counsel for respondent argued that no evidence to prove misconduct was adduced before the Labour Court. The acquittal of the respondent gives a clean chit to the respondent that he was not involved in the theft. He was terminated because of his involvement in theft. Since he has been acquitted by the Criminal Court, he is entitled for reinstatement with full back wages. The respondent also filed a writ petition bearing WP(C) No. 1348/99 challenging the part of the award by which the respondent had been granted only 50% back wages. He seeks full back wages.
7. It is now settled law that the appropriate Government while referring an industrial dispute must be careful and should not refer those disputes that have become stale or dead. In this case the respondent was dismissed from service on 28.9.1977. He did not send any representation against his dismissal, he did not prefer any appeal against the dismissal, he did not challenge his dismissal before any forum and accepted his dismissal. He was involved in a case of theft and the stolen material was recovered from his accomplice by the guards of the petitioner. A theft case was registered against him. His termination had become settled. He accepted the termination and went to his village where he started doing agricultural work. The dispute of his termination did not survive after 10 years, when he was acquitted by the Criminal Court. There was no reason for the appropriate Government to refer a dead/stale dispute and this reference was without a jurisdiction. In 2006 (3) LLJ 12 Assistant Engineer, CAD, Kota v. Dhan Kumwar, the respondent workman raised an Industrial Dispute after about eight years. The reference of dispute was made to the Labour Court by appropriate Government. The Labour Court awarded reinstatement with 30% back wages which was upheld by the High Court Supreme Court observed that though the law does not prescribe any time limit for the appropriate Government to exercise its powers under Section 10 of the Act, it is not that this power can be exercised at any point of time and to revive matters which had since settled. Power is to be exercised reasonably in a rationale manner and allowed the appeal. In Nedungadi Bank Ltd. v. K.P.Madhavankutty, 2000 Indlaw SC 123 Supreme Court laid down the same law and held the reference of the Industrial Demand by the Government as ex facie bad and incompetent. The appropriate Government should not refer the stale and dead disputes. In Shalimar Works Ltd. v Workmen 1959 Indlaw SC 102 Supreme Court held that a delay of four years was fatal and dis-entitled the workman to any relief. In 2006 (3) LLJ 15, UP State Road Transport Corporation v. Babu Ram, Supreme Court again held that a delay of 15 years in raising the dispute was fatal to the case.
8. I consider that in this case the reference was bad in law, the workman had not raised any dispute for 10 years, he had not challenged his involvement in theft before the department for 10 years. The termination of the workmen had become a settled fact. The vacancy of Lab Assistant could not have been kept vacant for long. The department was bound to fill up the vacancy by another person. By referring an industrial dispute after eleven years, the appropriate Government in fact acted contrary to the spirit of Industrial Disputes Act, 1947. The Act was enacted to bring Industrial harmony and peace by providing an adjudicating machinery for industrial disputes. It is not meant to disturb industrial peace by racking up stale and dead disputes. I consider that the reference was bad in law and without jurisdiction. The award is liable to be set aside only on this ground.
9. It is true that in this case the management had not held any enquiry and terminated the services of the respondent simpliciter by giving him one months notice pay. The respondent was governed by service conditions as he was a temporary employee of the institute and the following condition was mentioned in his appointment letter The appointment may be terminated at any time by a month's notice given by either side, viz. the appointee or the appointing authority without assigning any reason. It will be open to the Institute to pay in lieu of notice pay for the period by which the notice falls short of one month. Similarly, if he/she wishes to resign his/her post, he/she may do so by depositing with the Institute pay and allowances in lieu of the notice period by which it falls short of one month and three months in case of permanent employees.
10. I consider that management is not obliged to keep thieves under its employment. There is no doubt that the respondent was acquitted by the Criminal Court but the standards of proof required by a Criminal Court are always different from the standards of conduct which are required to be seen by a management for employing a person. The respondent was working in the laboratory of AIIMS as Lab. Assistant. He was handling all the chemicals and equipments stored in the laboratory, the chemicals which are used in the research. Many chemicals and equipment are quite costly while some may not be costly but very crucial for research. A laboratory is required to be handled by those persons (Lab. Assistants) who are trustworthy and have high integrity and who, protect the property i.e. chemicals and equipments in the Laboratory from pilferage and wastage. If a Lab Assistant himself is found involved in theft of chemicals and equipments and caught red handed along with his accomplices by the security guards of the management, the management is well within its right to invoke the relevant clause of service contract and terminate the services of such employee.
11. It would have been worthwhile for the Labour Court to go through the judgment of the Criminal Court to see whether the respondent had been acquitted on the ground that he was falsely implicated or he has been acquitted because of benefit of doubt. A perusal of the judgment of the Criminal Court would show that the Criminal Court observed that since the receipts and stock register of the stolen property, recovered from the accused, were not produced in the Court the property cannot be considered that of the AIIMS. The Criminal Court brushed aside the evidence of the security guards who, had caught the respondent and his accomplices red handed, stating that they were not believable without giving any reason as to why the security guards were not believable. The Criminal Court seemed to be labouring under a conception that poor persons cannot speak truth and only rich and high class are credit- worthy and believable. The Criminal Court without giving any reason disbelieved the testimony of the security guards who had caught the respondent's accomplices red handed with chemicals and equipments. However, the Labour Court was under an obligation to see at least if, the acquittal was the basis of doubts or it was a clean chit to the respondent stating that he was not involved or it was held that he was falsely implicated.
12. The Labour Court observed that an order of dismissal simpliciter can be considered as a colored order by piercing the veil and looking at the circumstances under which the person was terminated. I consider that where the management shows magnanimity and mercy to a person and does not record the real reasons in the order of his termination so that the person, if wants to work somewhere else and improves himself, he may improve himself, this magnanimity and mercy should not be misconstrued and should not be considered as an illegality. The services of a person can be terminated simpliciter even for those reasons which are not recorded in the order the order would not become illegal. # In Rajasthan State Road Transport v. Zakir Hussain 2005 Indlaw SC 472 Supreme Court observed as under:
"The termination order in the instant case would clearly show that the misconduct on the part of the workman-respondent is not the foundation of the order of discharge. For an order to be 'founded' on misconduct, it must be intended to have been passed by way of punishment, that is, it must be intended to chastise or cause pain in body or mind or harm or loss in reputation or money to be concerned worker. Such an intention cannot be spelled out of the present order of discharge. It cannot be regarded as an order of dismissal. Such would be the case when the employer orders discharge in the interests of the Corporation. So, the real criterion which formed the touchstone of a test to determine whether an order of termination of services is an order of discharge simpliciter or amounts to dismissal is the real nature of the order, that is, the intention which it was passed." *
13. I, therefore, consider that the observation of the Tribunal that this dismissal was illegal, is bad in law and perverse. As far as the petitioner not being an 'industry' is concerned I would not like to express any opinion in view of the fact that this question is pending before a larger bench of Supreme Court.
14. I consider that the Labour Courts while exercising jurisdiction under Section 10 must be careful and see that they do not put a premium on the persons who sleep and approach the appropriate Government with delay. Similarly, the Labour Court must be careful that the employees of doubtful integrity and the employees who are involved in criminal cases are not thrust upon the management. It is not necessary that in every case the where a person is involved in theft, forgery and where a criminal case is registered, the management has to hold an enquiry and then only terminate the services. The management can always terminate the services in terms of service conditions of an employee, for loss of faith and confidence, where the employee involved is handling sensitive post or a high degree of integrity and honesty is expected from him because of responsibilities. #
15. In view of my above discussion, I allow this writ petition. The award dated 29.7.1998, passed by the Labour Court is hereby set aside.
Regards
Arun K Mishra
From India, Bahadurgarh
[KERALA HIGH COURT]
Mar Baselius Medical Mission Hospital
v
Joseph Babu
S. SIRI JAGAN
17 Jan 2007
BENCH
S. SIRI JAGAN
COMPARATIVE CITATIONS
2007 (1) KLT 783
CASES REFERRED TO
Management of Messrs Sonepat Cooperative Sugar Mills Limited v Ajit Singh 2005 Indlaw SC 107
ACTS REFERRED
Industrial Disputes Act, 1947[s. 2(s), s. 2(2), s. 33(c)(2)]
Air Force Act, 1950
Army Act, 1950
Navy Act, 1957
Constitution Of India, 1950[art. 226]
CASE NO
Crl M C No 7450 of 2003
KEYWORDS
Labour & Industrial Law, Corporate, Petition dismissed, Industrial, Constitution Of India, 1950, Kerala, SERVICE, Industrial Disputes Act, 1947, Quasi-Judicial, CONSTITUTION, WATER, DEFENCE & SECURITY FORCES, Doctor, Industrial Dispute, Labour Court, Enquiry Officer, Co-Operative, Educational Institution, Industrial Disputes, Reserve Bank, AIR LAW, Labour, Army Act, 1950, Air Force Act, 1950, Navy Act, 1957, Interlocutory Applications
LAWYERS
S. Sreekumar, Paulson C. Varghese, Surarshan
.JUDGMENT TEXT
The Judgment was delivered by : S. SIRI JAGAN
An hospital against which a consultant physician employed by them filed a C.P. before the Labour Court, Ernakulam as C.P.No.47/1991 under S.33(C)(2) of the Industrial Disputes Act, 1947 claiming certain benefits due to him including Sunday and holiday wages is challenging the order in that C.P. in this Original Petition. The petitioner raised a preliminary point on the question as to whether the consultant physician, the 1st respondent herein, is a workman or not. That question was considered as a preliminary point and by Ext.Pl preliminary order, relying on the Supreme Court decision in the Burma Shell Oil Storage and Distribution Company of India Ltd. v. Burma Shell Management Staff Association & Ors. 1970 (3) LLJ 590 the Labour Court held that the 1st respondent Consultant Physician is a workman coming within the definition of S.2(s) of the Industrial Disputes Act, 1947 and therefore the claim petition under S.33C(2) is maintainable. Although the petitioner challenged that preliminary order in O.P.No.6216/1994, this court dismissed the same without prejudice to the right of the petitioner to challenge that preliminary order also while the final order to be passed in the claim petition is challenged. Ext.P3 is the final order passed in the claim petition whereby the Labour Court held that the 1st respondent is entitled to realise from the petitioner an amount of Rs.66, 000/- as holiday and Sunday wages. Exts.Pl and P3 orders are under challenge in this Original Petition.
2. Two contentions are raised before me. First is that the 1st respondent consultant physician is not a workman since he is performing a job of creativity which would take him out of the purview of the definition of S.2(s). The second contention is that the finding in Ext.P3 order is perverse since the labour court has not correctly appreciated the contention of the petitioner to the effect that the 1st respondent had manipulated the attendance register and signed the same to make it appear that he had worked on Sundays and holidays also.
3. The learned counsel for the 1st respondent would submit that the 1st respondent-Doctor is only performing the duties of technical nature which is expressly included in the definition of workman under S.2(s) and therefore, a doctor cannot be taken out of the purview of the definition. Hence, the finding that the 1st respondent-Doctor is workman is perfectly valid and correct. Regarding the second contention, he would submit that no acceptable evidence has been adduced by the management to the effect that the 1st respondent had in fact manipulated the attendance register to mark attendance on Sundays and holidays also without actually working.
4. I have considered the rival contentions in detail.
5. S.2(s) of the Industrial Disputes Act, 1947 defines the "workman" as follows:-
(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
(i) who is subject to the Air Force Act, 1950(45 of 1950) or the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service 'or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercise, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
I am of opinion that the Doctor would certainly be performing duties of a technical nature which is expressly included in the definition. Of course, the petitioner relies on a decision of the Supreme Court in Sonepat Co-operative Sugar Mills Ltd. v. Ajith Singh reported in 2005 Indlaw SC 107, in which the Supreme Court held that legal assistant would not come within the purview of the definition of the workman. Relevant portion is paragraph 17, which reads thus:
17. In A.Sundarmbal v. Government of Goa, Daman and Diu teachers serving in an educational institution being not found to be performing any duty within the aforementioned category have been held not to be workmen. Similarly, an advertising manager, a chemist employed in a sugar mill, gate sergeant in charge of watch and ward staff in a tannery, a welfare officer in a commercial educational institution have also not been held to be workmen. The respondent had not been performing any stereotype job. His job involved creativity. He not only used to render legal opinions on a subject but also used to draft pleadings on behalf of the appellant as also represent it before various courts/authorities. He would also discharge quasi-judicial functions as an enquiry officer in departmental enquiries against the workmen. Such a job, in our considered opinion, would not make him a workman."
The petitioner would specifically stress the words, "stereotype job" and "job involving creativity". He would submit that the job of a doctor is not a stereotyped job, but involves creativity just like that of a legal assistant and therefore, a doctor would not be a workman as defined in the Industrial Disputes Act, 1947. Going through the above decision, relevant portion of which has been quoted above, I am not satisfied that the Supreme Court had held that the legal assistant is not a workman simply on the ground that his job involved creativity. The Supreme Court specifically noted that the legal assistant not only used to render legal opinions on a subject but also used to draft pleadings on behalf of the appellant as also represent before various courts/authorities. It was found that by acting as a enquiry officer in the departmental enquiries he was discharging the quasi-judicial functions also. It is taking into account all these duties performed by a legal assistant that the Supreme Court has come to the conclusion that a legal assistant is not a workman under the Industrial Disputes Act, 1947. In the decision in S.K.Maini v. M/s.Carona Sahu Company Limited & Ors. reported in 1994 (3) SCC 510 in paragraph 9 the Supreme Court has detailed the determinative factors for deciding the question as to whether an employee is a workman under the Industrial Disputes Act, 1947, in the following words:
"9. After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that whether or not an employee is a workman under S.2(s) of the Industrial Disputes Act, 1947 is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any strait-jacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition of workman under S.2(s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organizations quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it. In this connection, reference may be made to the decision of this Court in Burmah Shell Oil Storage and Distribution Co. of India Ltd. v. Burmah Shell Management Staff Association. In All India Reserve Bank Employees' Association v. Reserve Bank of India it has been held by this Court that the word 'supervise' and its derivatives are not words of precise import and must often be construed in the light of context, for unless controlled, they cover an easily simple oversight and direction as manual work coupled with the power of inspection and superintendence of the manual work of others. It has been rightly contended by both the learned counsel that the designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the employee concerned and not some works incidentally done. In other words, what is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also due, by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of 'workman' as defined in S.2(2) of the Industrial Disputes Act, 1947."
Therefore, the determinative factor is main duties and functions of the employee concerned. Of course, the question as to whether the first respondent is exercising any supervisory duties is not an issue here. But from the above decision, it is clear that for determining the question as to whether a particular person is a workman as defined in the Industrial Disputes Act, 1947, what is relevant is the functions and duties performed by him and the designation given to an employee is not of much importance. In this case, the petitioner terms the 1st respondent as "consultant physician". But it is not disputed before me that he is a full time employee of the petitioner hospital. The only duties he perform in the hospital is of examining the patients, diagnosing their diseases and prescribing medicines for them. This would certainly come within the ambit of the words "skilled and technical". Unlike in the case of a legal assistant, the 1st respondent herein is not expected to exercise any other duties involving creativity as mentioned in the Ajith Singh's case (supra). I am of opinion that a doctor who performs the duties of examining patient, diagnosing diseases and prescribing medicines, whatever designation by which he is called would certainly be doing work of a skilled and technical nature and therefore would be a 'workman' as defined in S.2(s) of the Industrial Disputes Act, 1947. In the above circumstances, I do not find any merit in the contention of the petitioner that the 1st respondent is not a workman as defined in S.2(s) of the Industrial Disputes Act, 1947. That being so, I do not find any infirmity in Ext.P1 preliminary order of the Labour Court that the 1st respondent herein is a workman under the 1st respondent and entitled to file a claim petition under S.33C(2) of the Industrial Disputes Act, 1947.
6. As far as the question of findings of merit is concerned, I am unable to accept the contention of the petitioner that the findings of the Labour Court are perverse. Admittedly the 2nd respondent had signed in the attendance register for 96 Sundays.
The allegation of the petitioner is that the 1st respondent put his signature on Sundays subsequent to the regular signing of the document without the concurrence of the opposite party. This cannot be accepted as correct for a moment since the 1st respondent continued to sign the attendance register on Sundays for 96 days. One cannot expect an employer to miss this for a continuous period of almost two years. They have no case that the petitioner took objection to the 1st respondent signing the register on Sundays without working. In the said circumstances, I am unable to find any perversity in the finding that the 1st respondent had in fact worked on Sundays and holidays. The jurisdiction of this Court under Art.226 of the Constitution Of India, 1950 in such cases is very limited, only to the extent of finding whether there is any perversity in the findings of the Labour Court. Since I am unable to find any such perversity, I do not find any merit in the contention of the petitioner on merits also. In the above circumstances, there is no merit in the Original Petition and accordingly, the same is dismissed.
Interlocutory Applications stand closed.
From India, Bahadurgarh
Mar Baselius Medical Mission Hospital
v
Joseph Babu
S. SIRI JAGAN
17 Jan 2007
BENCH
S. SIRI JAGAN
COMPARATIVE CITATIONS
2007 (1) KLT 783
CASES REFERRED TO
Management of Messrs Sonepat Cooperative Sugar Mills Limited v Ajit Singh 2005 Indlaw SC 107
ACTS REFERRED
Industrial Disputes Act, 1947[s. 2(s), s. 2(2), s. 33(c)(2)]
Air Force Act, 1950
Army Act, 1950
Navy Act, 1957
Constitution Of India, 1950[art. 226]
CASE NO
Crl M C No 7450 of 2003
KEYWORDS
Labour & Industrial Law, Corporate, Petition dismissed, Industrial, Constitution Of India, 1950, Kerala, SERVICE, Industrial Disputes Act, 1947, Quasi-Judicial, CONSTITUTION, WATER, DEFENCE & SECURITY FORCES, Doctor, Industrial Dispute, Labour Court, Enquiry Officer, Co-Operative, Educational Institution, Industrial Disputes, Reserve Bank, AIR LAW, Labour, Army Act, 1950, Air Force Act, 1950, Navy Act, 1957, Interlocutory Applications
LAWYERS
S. Sreekumar, Paulson C. Varghese, Surarshan
.JUDGMENT TEXT
The Judgment was delivered by : S. SIRI JAGAN
An hospital against which a consultant physician employed by them filed a C.P. before the Labour Court, Ernakulam as C.P.No.47/1991 under S.33(C)(2) of the Industrial Disputes Act, 1947 claiming certain benefits due to him including Sunday and holiday wages is challenging the order in that C.P. in this Original Petition. The petitioner raised a preliminary point on the question as to whether the consultant physician, the 1st respondent herein, is a workman or not. That question was considered as a preliminary point and by Ext.Pl preliminary order, relying on the Supreme Court decision in the Burma Shell Oil Storage and Distribution Company of India Ltd. v. Burma Shell Management Staff Association & Ors. 1970 (3) LLJ 590 the Labour Court held that the 1st respondent Consultant Physician is a workman coming within the definition of S.2(s) of the Industrial Disputes Act, 1947 and therefore the claim petition under S.33C(2) is maintainable. Although the petitioner challenged that preliminary order in O.P.No.6216/1994, this court dismissed the same without prejudice to the right of the petitioner to challenge that preliminary order also while the final order to be passed in the claim petition is challenged. Ext.P3 is the final order passed in the claim petition whereby the Labour Court held that the 1st respondent is entitled to realise from the petitioner an amount of Rs.66, 000/- as holiday and Sunday wages. Exts.Pl and P3 orders are under challenge in this Original Petition.
2. Two contentions are raised before me. First is that the 1st respondent consultant physician is not a workman since he is performing a job of creativity which would take him out of the purview of the definition of S.2(s). The second contention is that the finding in Ext.P3 order is perverse since the labour court has not correctly appreciated the contention of the petitioner to the effect that the 1st respondent had manipulated the attendance register and signed the same to make it appear that he had worked on Sundays and holidays also.
3. The learned counsel for the 1st respondent would submit that the 1st respondent-Doctor is only performing the duties of technical nature which is expressly included in the definition of workman under S.2(s) and therefore, a doctor cannot be taken out of the purview of the definition. Hence, the finding that the 1st respondent-Doctor is workman is perfectly valid and correct. Regarding the second contention, he would submit that no acceptable evidence has been adduced by the management to the effect that the 1st respondent had in fact manipulated the attendance register to mark attendance on Sundays and holidays also without actually working.
4. I have considered the rival contentions in detail.
5. S.2(s) of the Industrial Disputes Act, 1947 defines the "workman" as follows:-
(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
(i) who is subject to the Air Force Act, 1950(45 of 1950) or the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service 'or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercise, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
I am of opinion that the Doctor would certainly be performing duties of a technical nature which is expressly included in the definition. Of course, the petitioner relies on a decision of the Supreme Court in Sonepat Co-operative Sugar Mills Ltd. v. Ajith Singh reported in 2005 Indlaw SC 107, in which the Supreme Court held that legal assistant would not come within the purview of the definition of the workman. Relevant portion is paragraph 17, which reads thus:
17. In A.Sundarmbal v. Government of Goa, Daman and Diu teachers serving in an educational institution being not found to be performing any duty within the aforementioned category have been held not to be workmen. Similarly, an advertising manager, a chemist employed in a sugar mill, gate sergeant in charge of watch and ward staff in a tannery, a welfare officer in a commercial educational institution have also not been held to be workmen. The respondent had not been performing any stereotype job. His job involved creativity. He not only used to render legal opinions on a subject but also used to draft pleadings on behalf of the appellant as also represent it before various courts/authorities. He would also discharge quasi-judicial functions as an enquiry officer in departmental enquiries against the workmen. Such a job, in our considered opinion, would not make him a workman."
The petitioner would specifically stress the words, "stereotype job" and "job involving creativity". He would submit that the job of a doctor is not a stereotyped job, but involves creativity just like that of a legal assistant and therefore, a doctor would not be a workman as defined in the Industrial Disputes Act, 1947. Going through the above decision, relevant portion of which has been quoted above, I am not satisfied that the Supreme Court had held that the legal assistant is not a workman simply on the ground that his job involved creativity. The Supreme Court specifically noted that the legal assistant not only used to render legal opinions on a subject but also used to draft pleadings on behalf of the appellant as also represent before various courts/authorities. It was found that by acting as a enquiry officer in the departmental enquiries he was discharging the quasi-judicial functions also. It is taking into account all these duties performed by a legal assistant that the Supreme Court has come to the conclusion that a legal assistant is not a workman under the Industrial Disputes Act, 1947. In the decision in S.K.Maini v. M/s.Carona Sahu Company Limited & Ors. reported in 1994 (3) SCC 510 in paragraph 9 the Supreme Court has detailed the determinative factors for deciding the question as to whether an employee is a workman under the Industrial Disputes Act, 1947, in the following words:
"9. After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that whether or not an employee is a workman under S.2(s) of the Industrial Disputes Act, 1947 is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any strait-jacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition of workman under S.2(s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organizations quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it. In this connection, reference may be made to the decision of this Court in Burmah Shell Oil Storage and Distribution Co. of India Ltd. v. Burmah Shell Management Staff Association. In All India Reserve Bank Employees' Association v. Reserve Bank of India it has been held by this Court that the word 'supervise' and its derivatives are not words of precise import and must often be construed in the light of context, for unless controlled, they cover an easily simple oversight and direction as manual work coupled with the power of inspection and superintendence of the manual work of others. It has been rightly contended by both the learned counsel that the designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the employee concerned and not some works incidentally done. In other words, what is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also due, by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of 'workman' as defined in S.2(2) of the Industrial Disputes Act, 1947."
Therefore, the determinative factor is main duties and functions of the employee concerned. Of course, the question as to whether the first respondent is exercising any supervisory duties is not an issue here. But from the above decision, it is clear that for determining the question as to whether a particular person is a workman as defined in the Industrial Disputes Act, 1947, what is relevant is the functions and duties performed by him and the designation given to an employee is not of much importance. In this case, the petitioner terms the 1st respondent as "consultant physician". But it is not disputed before me that he is a full time employee of the petitioner hospital. The only duties he perform in the hospital is of examining the patients, diagnosing their diseases and prescribing medicines for them. This would certainly come within the ambit of the words "skilled and technical". Unlike in the case of a legal assistant, the 1st respondent herein is not expected to exercise any other duties involving creativity as mentioned in the Ajith Singh's case (supra). I am of opinion that a doctor who performs the duties of examining patient, diagnosing diseases and prescribing medicines, whatever designation by which he is called would certainly be doing work of a skilled and technical nature and therefore would be a 'workman' as defined in S.2(s) of the Industrial Disputes Act, 1947. In the above circumstances, I do not find any merit in the contention of the petitioner that the 1st respondent is not a workman as defined in S.2(s) of the Industrial Disputes Act, 1947. That being so, I do not find any infirmity in Ext.P1 preliminary order of the Labour Court that the 1st respondent herein is a workman under the 1st respondent and entitled to file a claim petition under S.33C(2) of the Industrial Disputes Act, 1947.
6. As far as the question of findings of merit is concerned, I am unable to accept the contention of the petitioner that the findings of the Labour Court are perverse. Admittedly the 2nd respondent had signed in the attendance register for 96 Sundays.
The allegation of the petitioner is that the 1st respondent put his signature on Sundays subsequent to the regular signing of the document without the concurrence of the opposite party. This cannot be accepted as correct for a moment since the 1st respondent continued to sign the attendance register on Sundays for 96 days. One cannot expect an employer to miss this for a continuous period of almost two years. They have no case that the petitioner took objection to the 1st respondent signing the register on Sundays without working. In the said circumstances, I am unable to find any perversity in the finding that the 1st respondent had in fact worked on Sundays and holidays. The jurisdiction of this Court under Art.226 of the Constitution Of India, 1950 in such cases is very limited, only to the extent of finding whether there is any perversity in the findings of the Labour Court. Since I am unable to find any such perversity, I do not find any merit in the contention of the petitioner on merits also. In the above circumstances, there is no merit in the Original Petition and accordingly, the same is dismissed.
Interlocutory Applications stand closed.
From India, Bahadurgarh
MADRAS HIGH COURT]
Christian Medical College Vellore Association, Vellore
v
Government of Tamil Nadu and Others
PRABHA SRIDEVAN
26 Jul 2000
BENCH
PRABHA SRIDEVAN & S JAGADEESAN
COMPARATIVE CITATIONS
2001 (1) CLR 266
CASES REFERRED TO
General Manager, Telecom v S. Srinivasan Rao and Others 1997 Indlaw SC 516
Christian Medical College Hospital Employees' Union and Anotherv. Christian Medical College Vellore Association and Others,. (Civil Appeal No. 8818 of 1983) State of Tamil Nadu v Christian Medical College and Others(Special Leave Petition (Civil) Nos. 5523-25 of 1986) 1987 Indlaw SC 28443
Andhra University Etc v Regional Provident Fund Commissioner of Andhra Prafesh and A 1985 Indlaw SC 243
Dr. P. S. S. Sundar Rao (General Superintendent) Christian Medical College and Hospital, Vellore (Now Professor and Head of The Department of Biostatistic of The Christian Medical College) v Inspector of Factories Vellore 1984 Indlaw MAD 50
Christian Medical College Vellore Association (By Secretary) v Government of India (By Secretary, Ministry of Law, Delhi) and Others 1982 Indlaw MAD 188
Corporation of City of Nagpur v Its Employees and Others 1960 Indlaw SC 90
ACTS REFERRED
Minimum Wages Act, 1948[s. 2(g), s. 27]
Societies Registration Act, 1860
Industrial Disputes Act, 1947
Criminal Procedure Code, 1963[s. 482]
Factories Act, 1948
Employees' Provident Funds Act, 1952
CASE NO
Writ Application No. 672 of 1999 and C.M.P. No. 6690 of 1999, decided on July 26, 2000.
KEYWORDS
Labour & Industrial Law
LAWYERS
Sanjay Mohan, Ramasubramaniam, V. Rangaraju
.JUDGMENT TEXT
The Judgment was delivered by PRABHA SRIDEVAN, J. :
Per Prabha Sridevan, J. :-
The question that arises for consideration in this writ appeal is whether the Christian Medical College Hospital attached to The Christian Medical College at Vellore is a "hospital" for the purpose of application of the provisions of Minimum Wages Act, 1948, or is it an "Educational Institution".
The appellant is an Association registered under the Societies Registration Act to establish, maintain and develop the Christian Medical College and Hospital in India, where students shall receive education of the higher quality, in the discipline of medicine. The history of the Medical College and Hospital is the history of what started as a one bed clinic in 1900 by a woman with a vision of Dr. Ida Scudder which grew into a forty bed hospital in two years. Since the founder of this Institution wished to train women doctors in 1906, a nurses training course was started and in 1980, a medical school for women was born. Forty two years after the birth of the one bed clinic came the beginning of the medical college for women. The realisation soon came that since doctors trained in a system of excellence were desperately needed by the whole country, men should be admitted for the first time. Thereafter, the Saga of the one bed clinic has grown and today it is an institution of excellence acknowledged the world over which stakes its claim to be a pioneering institution of our country in the development of certain higher specialities.
In 1989, the State of Tamil Nadu issued G.O. Ms. No. 206, Labour and Employment, dated January 19, 1989 whereby it was notified that,
"Government of Tamil Nadu hereby revises the minimum rates of wages, as specified in column (2) of the Schedule below as payable in respect of each class or classes of employees/workers in respect of the employment in hospitals and nursing homes (other than Government and Employees' State Insurance Hospitals and Dispensaries) in the State of Tamil Nadu specified in the corresponding entries in column (2) thereof, the same having been previously published as required by clause (b) of sub-sec. (1) of Sec. 5 of the said Act."*
This Notification also set out in the Schedule, the minimum rates of wages per month payable to the various classes of employees. Explanation III to the Notification define the word "Hospital". "Hospital" means :
"a building where in-patients are received and treated, but does not include a "Dispensary" which gives medical or surgical aid not treating patients as in-patients and medical dispensation is made for money."*
Pursuant to this Notification, a letter was sent by the Labour Department, Deputy Inspector of Labour to the Director of the Christian Medical College Hospital at Vellore stating that as per the Act, an employer had to maintain registers and forms as prescribed and a visit to the appellant hospital revealed that such registers are not maintained. Therefore, a request was made to the hospital to maintain the register and form and keep it available for inspection. Since inspite of this letter, the registers were not maintained, a letter was issued on August 20, 1989 that if the provisions of Minimum Wages Act are not followed by the hospital action would be taken. To this, the General Superintendent of the Hospital sent a reply on August 21, 1989 bringing to the Respondent's notice that the establishment is a Medical College run by the Christian minority community and the hospital is only attached to the College as part of the said institution. The judgment of the Supreme Court in support of their case is that the Hospital is only a Christian Minority Educational Institution also attached to the Medical College. Therefore, according to the communication sent on behalf of the hospital, the application of Minimum Wages Act did not arise. To this, another letter was sent by the Respondent on September 23, 1989 repeating their stand that action would be taken for non-compliance with the provisions of Minimum Wages Act. A reply was again sent on September 26, 1989 reiterating their claim to be an educational institution. There were further exchanges of letters resulting in a show cause notice to which the hospital requested the Respondents to grant fifteen days time to give their reply. This communication is dated October 6, 1989. On October 13, 1989, W.P. No. 14276 of 1989 was filed by the appellant praying for a writ of certiorari to quash the order dated July 27, 1989 referred to Board, which called upon the hospital to maintain the registers according to the Act and make them available for inspection. The Petitioner sought to establish that the Minimum Wages Act had no application to the appellant, on the basis of a judgment rendered by a Division Bench of this Court in Christian Medical College, Vellore Association by Secretary v. Government of India by Secretary, Ministry of Labour, Delhi, 1982 Indlaw MAD 188 (Mad. DB) a writ that arose out of an industrial dispute in respect of non-employment of three employees. The Division Bench after a detailed discussion held that the Christian Medical College Hospital
"which is attached to the Christian Medical College is an educational institution"*
and then allowed the writ appeal on the ground that the Industrial Disputes Act would not apply to this institution. Against this, an S.L.P. was preferred. The judgment of the Supreme Court reported in Christian Medical College Hospital Employees' Union and Anr. v. Christian Medical College, Vellore Association 1987 Indlaw SC 592 : 1987 Indlaw SC 592 : 1987 Indlaw SC 592, set aside the order of this Court and held that the educational institution was subject to the provisions of the Industrial Disputes Act. However, the Supreme Court did not disturb the finding of this Court that the hospital was an educational institution. This was the basis on which the case of the appellant rests.The Learned Single Judge dismissed the Writ Petition holding that even though the hospital is attached to the college, it does not cease to be hospital and when the inclusion of hospital and nursing homes in the schedule as per section 27 of the Act remains unchallenged, the application of the provisions of Minimum Wages Act cannot be resisted. The Learned Single Judge also held that socially beneficial legislation have to be interpreted liberally and thus dismissed the Writ Petition. Aggrieved by this, the writ appeal.
The Learned Counsel, Mr. Sanjay Mohan, appearing for the appellant took us at great length through the judgment of the Division Bench of this Court in Christian Medical College, Vellore Association by Secretary v. Government of India, (supra). According to him, the College and Hospital are one educational institution. The University Regulations require that a Medical College and College of Nursing should have a hospital attached to them because practical training is an essential requirement for every medical student and a nursing student. Therefore, according to the Learned Counsel, many of the doctors or surgeons who are in the hospital are actually part-time lecturers in the college. Therefore, though the Christian Medical College Hospital at Vellore is a hospital, it is actually an educational institution and hence the provisions of Minimum Wages Act will not apply. He referred to the following paragraph of the same judgment :
"It may be there are other employees like sweepers, cooks, stenographers, clerks, cashiers, technicians, accountants, ward attenders, electricians, etc. who may be termed as lay assistants but since it is the co-ordinative effort of all concerned that makes the institution as a teaching hospital, the employment of such persons would not in any way affect the institution being an educational institution ...For the foregoing reasons we are of the view that the Christian Medical College Hospital which is attached to the Christian Medical College is an educational institution."*
The judgment of the Supreme Court which, reversed the decision of this Court regards the applicability of the provisions of the Industrial Disputes Act, however left the finding as regards the function of the hospital being an educational institution untouched. For this, he referred to the decision of the Supreme Court in Christian Medical College Hospital Employees Union v. Christian Medical College, Vellore Association (Supra), where the Supreme Court held that the provisions of the Industrial Disputes Act are applicable to College and Hospital at Vellore. Therefore, according to the Learned Counsel for the appellant, the hospital is only an educational institution and does not fall within the terms hospital and nursing home as specified in the Schedule as per Section 27 of the Act.
The Learned Counsel said such piecemeal application of the various industrial legislations to such institution would adversely affect the institution, and if the laundry, the canteen, the department which manufactures prosthetic limbs were to be separated and treated as distinct units they would be subject to the provisions of different Acts resulting not only in chaos but also extreme difficulty in the administration of the institution as a whole.
He also submitted that the test in such cases would be the predominant functions of the institution. If the predominant function of the institution is to impart medical education, then the activity that is carried on in the hospital and nursing home is only subject to the predominant activity and in this case imparting education is the predominant activity and therefore, it cannot be treated as a hospital alone for the purpose of the Act. He referred to a decision in the Corporation of the City of Nagpur v. Its Employees 1960 Indlaw SC 90 = 1960 Indlaw SC 90 to support his case regarding the predominant function of the department.He also referred to the decision reported in General Manager, Telecom v. Srinivasa Rao 1997 Indlaw SC 516 : 1997 Indlaw SC 516, where the Supreme Court again considered the dominant nature test.
He then referred to a judgment in Dr. P. S. S. Sundar Rao v. Inspector of Factories, Vellore 1984 Indlaw MAD 50 (Mad.) rendered by a Learned Single Judge of this Court in a petition under Section 482 of Criminal Procedure Code arising under the Factories Act. In that case also the Petitioner was Christian Medical College and Hospital at Vellore and the question arose whether the laundry attached to the Medical College and Hospital can be separated from the main institution, viz., the hospital to attract the provisions of the Factories Act. The Learned Single Judge said 'No'. He held that the paramount or the primary character of the main institution alone has to be taken into consideration.
The Learned Counsel for the appellant therefore contended that the issue regarding the appellant being an educational institution has already been settled and the finding of this Court has been confirmed by the Supreme Court and therefore, now the Respondents could not invoke the provisions of Minimum Wages Act against the hospital treating it as just a hospital when in fact it was an educational institution.
The learned Government Advocate appearing on behalf of the Respondents 1 to 3 submitted that the Act clearly stipulated that it applies to employment in hospitals and nursing homes other than Government and E.S.I. Hospitals and Dispensaries. If the State had intended that hospitals which are attached to Colleges had to be exempted on the ground that they would not come under the purview of the said Act, then necessary exclusion would have been made. When the Act only excludes two categories of hospitals, the appellant cannot be heard to say that the Act shall not apply to it.The Learned Government Advocate also stated that when the Government had power to apply the provisions of the Act to any classes of employee then unless this power is challenged the appellant cannot say that the Act cannot apply to the Christian Medical College Hospital.
We have heard the rival contentions made on behalf of both the parties. The Christian Medical College Hospital has acquired an excellent reputation amongst the general public for the treatment of various illness and problems including terminal diseases. No doubt practical training in a hospital stipulated as an essential requirement of training of students by the Indian Medical Council and Indian Nursing Council. The issue is whether the Christian Medical College Hospital is only an educational institution and not a hospital. The judgment relied on by the Learned Counsel for the appellant in support of his case in fact categorically holds that the Christian Medical College Hospital is a teaching hospital.
A reading of the Minimum Wages Act shows that the Act provides for fixing minimum rate of wages in certain employment. What are those employments can be seen from a reading of the schedule appended to the Act. Section 2(g) of the Act defines employment which means employment specified in the Schedule or any process or branch of work forming part thereof. Section 27 of the Act gives power to the State Government to add to the schedule, by Notification any employment in respect of which, it is of the opinion, that minimum rate of wages should be fixed under the Act. The Act also provides for exemption and exception by the appropriate Government so if in its opinion, the provisions of the Act shall not apply to all or any class of employees employed in any schedule employment or any locality, where there is carried on a schedule employment, the same shall be exempted. Employment in hospital and nursing home was included in the schedule by G.O. Ms. No. 1561 dated December 8, 1978. The G.O., referred to above by the counsel for the appellant only revised the minimum rate of wages which was payable to the class or classes of employees and workers in respect of employment in hospitals and nursing homes (other than Government and Employees' State Insurance Hospitals and Dispensaries). The explanation referred to earlier also defines hospital only to mean a building where in-patients are received and treated and nursing home as an establishment where persons suffering from illness, injury or infirmity, whether of body or mind are usually received and accommodated for the purposes of nursing and treatment. Therefore, if the Christian Medical College Hospital and Nursing Home are buildings or establishments where the aforesaid activities are carried on they would be hospitals and nursing homes for the purpose of the Act. The Learned Counsel for the appellant Mr. Sanjay Mohan said that in actual fact the Christian Medical Hospital pays wages at rate much higher than the minimum wages. Therefore, he was challenging the impugned order only because the Act requires the maintenance of registers and certain other forms and the failure to do so would result in penalties being imposed on the employer. The fact that the hospital is paying wages at a much higher rate than the minimum wages cannot be taken into consideration for deciding this issue because Explanation V of G.O. Ms. No. 206, dated January 19, 1989 states that wherever the existing wages are higher than the minimum wages fixed herein, the same shall be continued to be paid.If the appellant wanted to be excluded from the provisions of the Minimum Wages Act, they ought to have challenged the exclusion of only the Government and Employees' State Insurance Hospitals and Dispensaries and sought for exclusion of teaching hospitals also on the ground that when hospitals are established to provide the practical training to the students in the Medical College those hospitals should be treated only as educational institutions and not as mere hospitals. The appellant have not challenged the inclusion of hospital and nursing home in the Schedule, to the Minimum Wages Act. The Learned Single Judge has rightly held that :
"the schedule of employment including the hospital has not made exception to teaching hospital attached to Medical College or any hospital attached to any educational institution, so long as the scheduled employment in relation to hospitals is not challenged. The challenge in the impugned letter in the Writ Petition cannot be sustained."*
Therefore the finding of the Division Bench of this Court that the hospital is an educational institution cannot be called in aid to support the appellants' case here. The judgment of the Learned Single Judge quashing the proceedings under Section 482 of the Act is also not applicable to this case. There the laundry alone was singled out for applying the provisions of Factories Act. The laundry was an adjunct of the hospital where the linen and the other materials to be used in the hospital are to be washed. The laundry did not serve the general public. The activity of the laundry was subject to the main activity which is that of the hospital. The decision is not applicable to this case. The dominant activity test which was sought to be applied by the Learned Counsel for the appellant also cannot be applied to this case because while it cannot be denied that the students of the Christian Medical College do acquire practical training at the hospital, the hospital is also open to the public. Thousands of public from all over the country come to Vellore to the Christian Medical College Hospital because it provides medical service of a high quality of excellence. Therefore, it is truly a teaching hospital and the dominant activity is not imparting education alone.The Learned Counsel for the appellant referred to a tabular column giving the classes of employees employed in the hospital with a comparative table of the Minimum Wages payable as per Government order and the Minimum Wages paid by the appellant. It is apparent that the appellant pays its employees in the service of Christian Medical College and Hospital who are exclusively employee of the hospitals. The Learned Counsel for the appellant said that some of the surgeons in the hospital are part-time lecturers and the gardeners and sweepers may quite often interchange between the hospitals and colleges, therefore to treat the hospital as distinct from the college would not be proper. But most of the employees listed in this statement furnished by the appellant show that they cannot be transferred to the college as claimed by the Learned Counsel for the appellant. For instance, the staff nurses, the physiotherapist, the nursing superintendent, the dietician, the nursing orderly, the radiographer etc. are all employees who are clearly hospital employees. The fact that some of the surgeons or the doctors are part-time lecturers, cannot sustain the claim of the Learned Counsel for the appellant that the employees are freely interchangeable. The Learned Single Judge in his judgment referred to the decision of the Supreme Court in 1985 Indlaw SC 243, to hold that when an establishment which is a factory engaged in an industry specified in Schedule I of the Employees' Provident Funds and Miscellaneous Provisions Act will be liable for coverage under the Act and it was not possible to exclude merely because it is part of a larger organisation carrying on some activity which may not fall within the scope of the Act. The Supreme Court stressed in the decision that while interpreting social welfare legislation the Courts cannot adopt a narrow interpretation to defeat the purposes of the Act.The reasoning of the Learned Single Judge, in our opinion is quite correct. As already stated, the fact that the University Regulations stipulate the inclusion of practical training as part of the educational requirement of medical students does not in any way make the Christian Medical College Hospital any less a Hospital. The employment in hospitals and nursing homes is a scheduled employment regardless of whether the are run by individuals or charitable institutions or minority institutions or created for imparting practical training to medical students. The inclusion of hospitals and nursing homes in the schedule has not been challenged yet and therefore it is not for this Court to hold that a teaching hospital is not a hospital for the purpose of Minimum Wages Act. The Learned Single Judge has considered all these factors in detail and has rightly dismissed the Writ Petition.
The Judgment of the Learned Single Judge does not warrant any interference in the writ appeal and therefore the writ appeal is dismissed. No order as to costs. Consequently, the connected C.M.P. is closed.
From India, Bahadurgarh
Christian Medical College Vellore Association, Vellore
v
Government of Tamil Nadu and Others
PRABHA SRIDEVAN
26 Jul 2000
BENCH
PRABHA SRIDEVAN & S JAGADEESAN
COMPARATIVE CITATIONS
2001 (1) CLR 266
CASES REFERRED TO
General Manager, Telecom v S. Srinivasan Rao and Others 1997 Indlaw SC 516
Christian Medical College Hospital Employees' Union and Anotherv. Christian Medical College Vellore Association and Others,. (Civil Appeal No. 8818 of 1983) State of Tamil Nadu v Christian Medical College and Others(Special Leave Petition (Civil) Nos. 5523-25 of 1986) 1987 Indlaw SC 28443
Andhra University Etc v Regional Provident Fund Commissioner of Andhra Prafesh and A 1985 Indlaw SC 243
Dr. P. S. S. Sundar Rao (General Superintendent) Christian Medical College and Hospital, Vellore (Now Professor and Head of The Department of Biostatistic of The Christian Medical College) v Inspector of Factories Vellore 1984 Indlaw MAD 50
Christian Medical College Vellore Association (By Secretary) v Government of India (By Secretary, Ministry of Law, Delhi) and Others 1982 Indlaw MAD 188
Corporation of City of Nagpur v Its Employees and Others 1960 Indlaw SC 90
ACTS REFERRED
Minimum Wages Act, 1948[s. 2(g), s. 27]
Societies Registration Act, 1860
Industrial Disputes Act, 1947
Criminal Procedure Code, 1963[s. 482]
Factories Act, 1948
Employees' Provident Funds Act, 1952
CASE NO
Writ Application No. 672 of 1999 and C.M.P. No. 6690 of 1999, decided on July 26, 2000.
KEYWORDS
Labour & Industrial Law
LAWYERS
Sanjay Mohan, Ramasubramaniam, V. Rangaraju
.JUDGMENT TEXT
The Judgment was delivered by PRABHA SRIDEVAN, J. :
Per Prabha Sridevan, J. :-
The question that arises for consideration in this writ appeal is whether the Christian Medical College Hospital attached to The Christian Medical College at Vellore is a "hospital" for the purpose of application of the provisions of Minimum Wages Act, 1948, or is it an "Educational Institution".
The appellant is an Association registered under the Societies Registration Act to establish, maintain and develop the Christian Medical College and Hospital in India, where students shall receive education of the higher quality, in the discipline of medicine. The history of the Medical College and Hospital is the history of what started as a one bed clinic in 1900 by a woman with a vision of Dr. Ida Scudder which grew into a forty bed hospital in two years. Since the founder of this Institution wished to train women doctors in 1906, a nurses training course was started and in 1980, a medical school for women was born. Forty two years after the birth of the one bed clinic came the beginning of the medical college for women. The realisation soon came that since doctors trained in a system of excellence were desperately needed by the whole country, men should be admitted for the first time. Thereafter, the Saga of the one bed clinic has grown and today it is an institution of excellence acknowledged the world over which stakes its claim to be a pioneering institution of our country in the development of certain higher specialities.
In 1989, the State of Tamil Nadu issued G.O. Ms. No. 206, Labour and Employment, dated January 19, 1989 whereby it was notified that,
"Government of Tamil Nadu hereby revises the minimum rates of wages, as specified in column (2) of the Schedule below as payable in respect of each class or classes of employees/workers in respect of the employment in hospitals and nursing homes (other than Government and Employees' State Insurance Hospitals and Dispensaries) in the State of Tamil Nadu specified in the corresponding entries in column (2) thereof, the same having been previously published as required by clause (b) of sub-sec. (1) of Sec. 5 of the said Act."*
This Notification also set out in the Schedule, the minimum rates of wages per month payable to the various classes of employees. Explanation III to the Notification define the word "Hospital". "Hospital" means :
"a building where in-patients are received and treated, but does not include a "Dispensary" which gives medical or surgical aid not treating patients as in-patients and medical dispensation is made for money."*
Pursuant to this Notification, a letter was sent by the Labour Department, Deputy Inspector of Labour to the Director of the Christian Medical College Hospital at Vellore stating that as per the Act, an employer had to maintain registers and forms as prescribed and a visit to the appellant hospital revealed that such registers are not maintained. Therefore, a request was made to the hospital to maintain the register and form and keep it available for inspection. Since inspite of this letter, the registers were not maintained, a letter was issued on August 20, 1989 that if the provisions of Minimum Wages Act are not followed by the hospital action would be taken. To this, the General Superintendent of the Hospital sent a reply on August 21, 1989 bringing to the Respondent's notice that the establishment is a Medical College run by the Christian minority community and the hospital is only attached to the College as part of the said institution. The judgment of the Supreme Court in support of their case is that the Hospital is only a Christian Minority Educational Institution also attached to the Medical College. Therefore, according to the communication sent on behalf of the hospital, the application of Minimum Wages Act did not arise. To this, another letter was sent by the Respondent on September 23, 1989 repeating their stand that action would be taken for non-compliance with the provisions of Minimum Wages Act. A reply was again sent on September 26, 1989 reiterating their claim to be an educational institution. There were further exchanges of letters resulting in a show cause notice to which the hospital requested the Respondents to grant fifteen days time to give their reply. This communication is dated October 6, 1989. On October 13, 1989, W.P. No. 14276 of 1989 was filed by the appellant praying for a writ of certiorari to quash the order dated July 27, 1989 referred to Board, which called upon the hospital to maintain the registers according to the Act and make them available for inspection. The Petitioner sought to establish that the Minimum Wages Act had no application to the appellant, on the basis of a judgment rendered by a Division Bench of this Court in Christian Medical College, Vellore Association by Secretary v. Government of India by Secretary, Ministry of Labour, Delhi, 1982 Indlaw MAD 188 (Mad. DB) a writ that arose out of an industrial dispute in respect of non-employment of three employees. The Division Bench after a detailed discussion held that the Christian Medical College Hospital
"which is attached to the Christian Medical College is an educational institution"*
and then allowed the writ appeal on the ground that the Industrial Disputes Act would not apply to this institution. Against this, an S.L.P. was preferred. The judgment of the Supreme Court reported in Christian Medical College Hospital Employees' Union and Anr. v. Christian Medical College, Vellore Association 1987 Indlaw SC 592 : 1987 Indlaw SC 592 : 1987 Indlaw SC 592, set aside the order of this Court and held that the educational institution was subject to the provisions of the Industrial Disputes Act. However, the Supreme Court did not disturb the finding of this Court that the hospital was an educational institution. This was the basis on which the case of the appellant rests.The Learned Single Judge dismissed the Writ Petition holding that even though the hospital is attached to the college, it does not cease to be hospital and when the inclusion of hospital and nursing homes in the schedule as per section 27 of the Act remains unchallenged, the application of the provisions of Minimum Wages Act cannot be resisted. The Learned Single Judge also held that socially beneficial legislation have to be interpreted liberally and thus dismissed the Writ Petition. Aggrieved by this, the writ appeal.
The Learned Counsel, Mr. Sanjay Mohan, appearing for the appellant took us at great length through the judgment of the Division Bench of this Court in Christian Medical College, Vellore Association by Secretary v. Government of India, (supra). According to him, the College and Hospital are one educational institution. The University Regulations require that a Medical College and College of Nursing should have a hospital attached to them because practical training is an essential requirement for every medical student and a nursing student. Therefore, according to the Learned Counsel, many of the doctors or surgeons who are in the hospital are actually part-time lecturers in the college. Therefore, though the Christian Medical College Hospital at Vellore is a hospital, it is actually an educational institution and hence the provisions of Minimum Wages Act will not apply. He referred to the following paragraph of the same judgment :
"It may be there are other employees like sweepers, cooks, stenographers, clerks, cashiers, technicians, accountants, ward attenders, electricians, etc. who may be termed as lay assistants but since it is the co-ordinative effort of all concerned that makes the institution as a teaching hospital, the employment of such persons would not in any way affect the institution being an educational institution ...For the foregoing reasons we are of the view that the Christian Medical College Hospital which is attached to the Christian Medical College is an educational institution."*
The judgment of the Supreme Court which, reversed the decision of this Court regards the applicability of the provisions of the Industrial Disputes Act, however left the finding as regards the function of the hospital being an educational institution untouched. For this, he referred to the decision of the Supreme Court in Christian Medical College Hospital Employees Union v. Christian Medical College, Vellore Association (Supra), where the Supreme Court held that the provisions of the Industrial Disputes Act are applicable to College and Hospital at Vellore. Therefore, according to the Learned Counsel for the appellant, the hospital is only an educational institution and does not fall within the terms hospital and nursing home as specified in the Schedule as per Section 27 of the Act.
The Learned Counsel said such piecemeal application of the various industrial legislations to such institution would adversely affect the institution, and if the laundry, the canteen, the department which manufactures prosthetic limbs were to be separated and treated as distinct units they would be subject to the provisions of different Acts resulting not only in chaos but also extreme difficulty in the administration of the institution as a whole.
He also submitted that the test in such cases would be the predominant functions of the institution. If the predominant function of the institution is to impart medical education, then the activity that is carried on in the hospital and nursing home is only subject to the predominant activity and in this case imparting education is the predominant activity and therefore, it cannot be treated as a hospital alone for the purpose of the Act. He referred to a decision in the Corporation of the City of Nagpur v. Its Employees 1960 Indlaw SC 90 = 1960 Indlaw SC 90 to support his case regarding the predominant function of the department.He also referred to the decision reported in General Manager, Telecom v. Srinivasa Rao 1997 Indlaw SC 516 : 1997 Indlaw SC 516, where the Supreme Court again considered the dominant nature test.
He then referred to a judgment in Dr. P. S. S. Sundar Rao v. Inspector of Factories, Vellore 1984 Indlaw MAD 50 (Mad.) rendered by a Learned Single Judge of this Court in a petition under Section 482 of Criminal Procedure Code arising under the Factories Act. In that case also the Petitioner was Christian Medical College and Hospital at Vellore and the question arose whether the laundry attached to the Medical College and Hospital can be separated from the main institution, viz., the hospital to attract the provisions of the Factories Act. The Learned Single Judge said 'No'. He held that the paramount or the primary character of the main institution alone has to be taken into consideration.
The Learned Counsel for the appellant therefore contended that the issue regarding the appellant being an educational institution has already been settled and the finding of this Court has been confirmed by the Supreme Court and therefore, now the Respondents could not invoke the provisions of Minimum Wages Act against the hospital treating it as just a hospital when in fact it was an educational institution.
The learned Government Advocate appearing on behalf of the Respondents 1 to 3 submitted that the Act clearly stipulated that it applies to employment in hospitals and nursing homes other than Government and E.S.I. Hospitals and Dispensaries. If the State had intended that hospitals which are attached to Colleges had to be exempted on the ground that they would not come under the purview of the said Act, then necessary exclusion would have been made. When the Act only excludes two categories of hospitals, the appellant cannot be heard to say that the Act shall not apply to it.The Learned Government Advocate also stated that when the Government had power to apply the provisions of the Act to any classes of employee then unless this power is challenged the appellant cannot say that the Act cannot apply to the Christian Medical College Hospital.
We have heard the rival contentions made on behalf of both the parties. The Christian Medical College Hospital has acquired an excellent reputation amongst the general public for the treatment of various illness and problems including terminal diseases. No doubt practical training in a hospital stipulated as an essential requirement of training of students by the Indian Medical Council and Indian Nursing Council. The issue is whether the Christian Medical College Hospital is only an educational institution and not a hospital. The judgment relied on by the Learned Counsel for the appellant in support of his case in fact categorically holds that the Christian Medical College Hospital is a teaching hospital.
A reading of the Minimum Wages Act shows that the Act provides for fixing minimum rate of wages in certain employment. What are those employments can be seen from a reading of the schedule appended to the Act. Section 2(g) of the Act defines employment which means employment specified in the Schedule or any process or branch of work forming part thereof. Section 27 of the Act gives power to the State Government to add to the schedule, by Notification any employment in respect of which, it is of the opinion, that minimum rate of wages should be fixed under the Act. The Act also provides for exemption and exception by the appropriate Government so if in its opinion, the provisions of the Act shall not apply to all or any class of employees employed in any schedule employment or any locality, where there is carried on a schedule employment, the same shall be exempted. Employment in hospital and nursing home was included in the schedule by G.O. Ms. No. 1561 dated December 8, 1978. The G.O., referred to above by the counsel for the appellant only revised the minimum rate of wages which was payable to the class or classes of employees and workers in respect of employment in hospitals and nursing homes (other than Government and Employees' State Insurance Hospitals and Dispensaries). The explanation referred to earlier also defines hospital only to mean a building where in-patients are received and treated and nursing home as an establishment where persons suffering from illness, injury or infirmity, whether of body or mind are usually received and accommodated for the purposes of nursing and treatment. Therefore, if the Christian Medical College Hospital and Nursing Home are buildings or establishments where the aforesaid activities are carried on they would be hospitals and nursing homes for the purpose of the Act. The Learned Counsel for the appellant Mr. Sanjay Mohan said that in actual fact the Christian Medical Hospital pays wages at rate much higher than the minimum wages. Therefore, he was challenging the impugned order only because the Act requires the maintenance of registers and certain other forms and the failure to do so would result in penalties being imposed on the employer. The fact that the hospital is paying wages at a much higher rate than the minimum wages cannot be taken into consideration for deciding this issue because Explanation V of G.O. Ms. No. 206, dated January 19, 1989 states that wherever the existing wages are higher than the minimum wages fixed herein, the same shall be continued to be paid.If the appellant wanted to be excluded from the provisions of the Minimum Wages Act, they ought to have challenged the exclusion of only the Government and Employees' State Insurance Hospitals and Dispensaries and sought for exclusion of teaching hospitals also on the ground that when hospitals are established to provide the practical training to the students in the Medical College those hospitals should be treated only as educational institutions and not as mere hospitals. The appellant have not challenged the inclusion of hospital and nursing home in the Schedule, to the Minimum Wages Act. The Learned Single Judge has rightly held that :
"the schedule of employment including the hospital has not made exception to teaching hospital attached to Medical College or any hospital attached to any educational institution, so long as the scheduled employment in relation to hospitals is not challenged. The challenge in the impugned letter in the Writ Petition cannot be sustained."*
Therefore the finding of the Division Bench of this Court that the hospital is an educational institution cannot be called in aid to support the appellants' case here. The judgment of the Learned Single Judge quashing the proceedings under Section 482 of the Act is also not applicable to this case. There the laundry alone was singled out for applying the provisions of Factories Act. The laundry was an adjunct of the hospital where the linen and the other materials to be used in the hospital are to be washed. The laundry did not serve the general public. The activity of the laundry was subject to the main activity which is that of the hospital. The decision is not applicable to this case. The dominant activity test which was sought to be applied by the Learned Counsel for the appellant also cannot be applied to this case because while it cannot be denied that the students of the Christian Medical College do acquire practical training at the hospital, the hospital is also open to the public. Thousands of public from all over the country come to Vellore to the Christian Medical College Hospital because it provides medical service of a high quality of excellence. Therefore, it is truly a teaching hospital and the dominant activity is not imparting education alone.The Learned Counsel for the appellant referred to a tabular column giving the classes of employees employed in the hospital with a comparative table of the Minimum Wages payable as per Government order and the Minimum Wages paid by the appellant. It is apparent that the appellant pays its employees in the service of Christian Medical College and Hospital who are exclusively employee of the hospitals. The Learned Counsel for the appellant said that some of the surgeons in the hospital are part-time lecturers and the gardeners and sweepers may quite often interchange between the hospitals and colleges, therefore to treat the hospital as distinct from the college would not be proper. But most of the employees listed in this statement furnished by the appellant show that they cannot be transferred to the college as claimed by the Learned Counsel for the appellant. For instance, the staff nurses, the physiotherapist, the nursing superintendent, the dietician, the nursing orderly, the radiographer etc. are all employees who are clearly hospital employees. The fact that some of the surgeons or the doctors are part-time lecturers, cannot sustain the claim of the Learned Counsel for the appellant that the employees are freely interchangeable. The Learned Single Judge in his judgment referred to the decision of the Supreme Court in 1985 Indlaw SC 243, to hold that when an establishment which is a factory engaged in an industry specified in Schedule I of the Employees' Provident Funds and Miscellaneous Provisions Act will be liable for coverage under the Act and it was not possible to exclude merely because it is part of a larger organisation carrying on some activity which may not fall within the scope of the Act. The Supreme Court stressed in the decision that while interpreting social welfare legislation the Courts cannot adopt a narrow interpretation to defeat the purposes of the Act.The reasoning of the Learned Single Judge, in our opinion is quite correct. As already stated, the fact that the University Regulations stipulate the inclusion of practical training as part of the educational requirement of medical students does not in any way make the Christian Medical College Hospital any less a Hospital. The employment in hospitals and nursing homes is a scheduled employment regardless of whether the are run by individuals or charitable institutions or minority institutions or created for imparting practical training to medical students. The inclusion of hospitals and nursing homes in the schedule has not been challenged yet and therefore it is not for this Court to hold that a teaching hospital is not a hospital for the purpose of Minimum Wages Act. The Learned Single Judge has considered all these factors in detail and has rightly dismissed the Writ Petition.
The Judgment of the Learned Single Judge does not warrant any interference in the writ appeal and therefore the writ appeal is dismissed. No order as to costs. Consequently, the connected C.M.P. is closed.
From India, Bahadurgarh
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Industrial Disputes Amendment Act 2010.doc
Industrial Disputes Act 1947.pdf