IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.08.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.32334 of 2003 and WPMP.No.39205 of 2003 Bethesda Hospital Ambur,Vellore District, Rep. By its Acting Director ...Petitioner Vs. 1.The Presiding Officer, Labour Court, Vellore. 2.The Secretary and Convener, I.E.L.C., Tripathy, 325A, Lutheran Mission Compuond, Nagercoil - 629 001. 3.J.Pratab Jayadoss ...Respondent Writ Petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorari, calling for the records of the first respondent in C.P.No.286 of 2000 and quash the order dated 30.06.2003. For Petitioner : Mr.S.Ravindran for M/s.T.S.Gopalan and Co., For Respondent : Mr.C.P.Sivamohan for R3 O R D E R The petitioner Hospital has come forward to challenge an order passed by the first respondent Labour Court, Vellore in C.P.No.286 of 2000 dated 30.06.2003. By the impugned order, the Labour Court computed a sum of Rs.3,35,620/- as due and payable by the petitioner Hospital as well as the second respondent. 2. The writ petition was admitted on 13.11.2003. Pending the writ petition, this Court initially ordered notice in the application for interim stay. Subsequently, when the matter came up on 25.03.2004, this Court granted an interim stay. This was on the ground that in the I.D.No.361 of 1989, the present petitioner was not arrayed as party and the dispute was allowed as against the second respondent. But the present C.P. was ordered against the petitioner Hospital and hence, stay was granted. https://hcservices.ecourts.gov.in/hcservices/ 3. The petitioner also filed an additional typed set containing documents relating to ID and CP. 4. Heard the arguments of Mr.S.Ravindran of M/s.T.S.Gopalan and Co., counsel for the petitioner and Mr.C.P.Sivamohan, learned counsel appearing for the third respondent. 5. It is seen from the records that the third respondent raised a dispute with reference to his non-employment in the petitioner Hospital. Initially, the State Government by an order dated 16.04.1985 refused to refer the dispute. Thereafter, the third respondent filed a re-consideration petition on 08.09.1996. The Government on re-considering the earlier stand issued G.O.Ms.No.1414 Labour Department, dated 06.07.1987 and referred the dispute for adjudication. In the reference, it was stated that whether the non-employment of the third respondent was justified, if not, to what relief, he was entitled to. 6. The said reference was taken on file by the II Additional Labour Court as I.D.No.361 of 1989 and notice was issued to the parties. The third respondent had filed a claim statement dated 19.07.1990. In the claim statement, he had made the two respondents viz., The Bethesda Hospital, Ambur represented by its Director, I.E.L.C., Leprosy Project and secondly, the Secretary and Convener in Board for Healing Ministry, I.E.L.C., Tripthi. The second respondent herein, who was also the second respondent in the I.D. was set ex parte and an ex parte Award was passed on 24.08.1994. 7. Based on the said Award directing reinstatement with backwages and continuity of service given to the third respondent, he filed a claim petition under Section 33-C(2) of the Industrial Disputes Act, 1947 (for short I.D.Act) before the Labour Court, Vellore. The said claim petition was taken on file as C.P.No.286 of 2000 and notice was issued to the same respondents, who were respondents in the I.D. In the claim petition, the third respondent claimed a sum of Rs.3,45,320/- including Salary, Travelling Allowance, Therapy Allowance etc., 8. A counter statement was filed on behalf of Bethesda Hospital Society, who is the present petitioner. In the counter statement, it was specifically contended that the hospital was formed and registered and the New Bethesda Hospital was started by Dr.A.S.Fenn and Dr.J.K.Joel Nesaraj as Director and Medical Superintendent respectively. The earlier case filed by the third respondent in C.P.No.286 of 1996 was dismissed as against those two individuals. The present claim statement was not maintainable. The present Management of the Hospital was formed only in the year 1996 and the Bethesda Hospital I.E.L.C. Leprosy Project did not exist any more and it was closed during 1984. The present hospital was not bound by the Award. https://hcservices.ecourts.gov.in/hcservices/ 9. Before the Labour Court, the third respondent examined himself as P.W.1 and marked 7 documents as Exs.P.1 to P.7. On the side of the petitioner Hospital, Dr.J.K.Joel Nesaraj was examined as R.W.1 and on their side, 11 documents were filed and marked as Exs.R.1 to R.11. Ex.R.10 is the resolution passed by India Evangelical Lutheran Church handing over the premises of the defunct Bethesda Hospital in Ambur together with all the buildings, fixtures, staff quarters and all equipment, apparatus and machinery to the United Evangelical Lutheran Churches in India for a period of five years. After the expiry of the period of license, it has to be returned to the IELC. Thereafter, on 28.01.1986, an agreement was entered into between India IELC and United Evangelical Lutheran Church in India (UELCI) for handing over the property to that organisation. That document was marked as Ex.R.9 before the Labour Court. 10. Even though the resolution and the subsequent lease agreement were signed after the non-employment of the third respondent, but when a reference was made in the year 1987, the third respondent had filed a claim statement in the I.D against defunct Management and got an ex parte Award. It was only when he filed CP.No.286 of 2000, he attempted to link the present Management with the hospital and made a claim statement as against the present Management. 11. The third respondent in his cross examination had stated that he had worked in Leprosy Project in IELC as a part-time Medical Worker and after the project was over, he was stopped from work. He denied that he was aware of the transfer of Management from IELC Church to UELC Management. He also feigned ignorance about the Leprosy Project not continued from the year 1986. At the time of his termination, Dr.J.K.Joel Nesaraj was the Medical Superintendent and he had terminated the service of the third respondent. He also admitted his working in Women's Industrial School, Palamaneri as Office Manager since 2001 November. He also admitted that new Bethesda Hospital was started in the year 1995. 12. Dr.J.K.Joel Nesaraj, who was an acting Director was examined as R.W.1. He had categorically stated that after the New Society took over the hospital in the year 1995 neither the IELC nor individuals were running the hospital and there is no leprosy project in the hospital. In the old hospital, there were 200 employees and R.W.1 was also one of them. In the present Management, only 40 persons were employed. With reference to those 200 persons, compensation has been paid and after receiving the compensation, they had joined a new hospital. Before the closure, the hospital was only running the leprosy project. The new Management had not taken over the leprosy project. Leprosy Project was carried on with the aid received from German Agency and from out of the contribution, salary will be paid to the workmen. The entire building and structure were in the hands of IELC and they have paid compensation to all the workers. https://hcservices.ecourts.gov.in/hcservices/ 13. Notwithstanding the evidence let in by the parties, the Labour Court held that the agreement between the earlier IELC and UELCI was only for a period of five years and there was no documentary evidence to show that it was renewed thereafter. Since the petitioner is now running the hospital in the same building with other infrastructure, they cannot plead non-involvement. The hospital was run by UELCI and IELC and there was no proof forthcoming with reference to the closure of the Leprosy Project and the present institution is not a new institution and it was a continuation of old institution. 14. It is not clear as to how the Labour Court could render a finding especially when the third respondent in his cross examination himself admitted the closure of the Leprosy Project and the earlier hospital. The present petitioner has clearly proved that the present hospital has got nothing to do with the previous establishment. In the absence of the earlier Award linking the present Management, the Labour Court cannot render a finding that both establishment were one and the same and that the present petitioner will have to pay the amount due to the third respondent. Inasmuch as the third respondent had claimed relief in the ID only against the second respondent IELC, it ought to have proceeded only against IELC and not against the present Hospital. The third respondent has failed to prove that the present petitioner is the employer and that he is still entitled to have any claim against the present petitioner. In fact in his evidence, he had admitted that he was working part-time in Leprosy Project and it was also closed and currently, he is also employed in some other place as Office Manager. The Labour Court in a petition under Section 33-C (2) of the I.D.Act can compute amounts on the basis of a pre- existing right and it cannot claim a new right for the third respondent. The present petitioner was not even a party to the earlier ID. 15. In the light of the above, the claim made by the third respondent against the petitioner is misconceived. The writ petition stands allowed. The impugned order passed by the Labour Court stands set aside. However, there will be no order as to costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar svki https://hcservices.ecourts.gov.in/hcservices/ To 1.The Presiding Officer, Labour Court, Vellore. + 1 cc to M/s. T.S. Gopalan, Sr.48975 + 1 cc to Mr.C.P. Sivamohan, SR.49343 W.P.No.32334 of 2003 TAM(CO) Eu 30.8.11 https://hcservices.ecourts.gov.in/hcservices/