IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 OP.No. 2126 of 2002(C) ---------------------- PETITIONER: ------------ M/S. MOTHER HOSPIITAL (PVT) LTD., PULLAZHI P.O., OLIRKKARA, TRICHUR, REPRESENTED BY ITS MANAGING DIRECTOR, DR.P.A.ABDUL HAKKIM, RESIDING AT MOTHER HOSPITAL (PVT) LTD, AT PULLAZHI OLARIKKARA, TRICHUR. BY ADV. SRI.P.F.THOMAS (SR.) SRISHIJU VARGHEESE SRI.V.BIJU JOSEPH RESPONDENTS: ------------- 1. SMT. C.RATHIDEVI, CHANDOOR HOUSE, RESIDING AT BUILDING NO.XXIII/393, KOLLATHAPILLI LANE, POONKUNNAM P.O., TRICHUR-2. 2. INDUSTRIAL TRIBUNAL, PALAKKAD. BY ADV. SRI.P.RAMAKRISHNAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 16/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO.2126/2002/C ORDER ON CMP NO.3626/2002 IN OP NO.2126/2002 DISMISSED SD/- 16.1.2008. S.SIRI JAGAN, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT. P1: COPY OF THE ENQUIRY REPORT DT. 12.3.1996. EXT. P2: COPY OF THE REFERENCE ORDER NO.1780/99/LBR, DATED 8.6.99. EXT. P3: COPY OF THE COMPLAINT DATED 5.4.97. EXT. P4: COPY OF THE WRITTEN STATEMENT IN ID 91/99, DT. 17.1.2000. EXT. P5: COPY OF THE AWARD IN ID 91/99 DT. 18.6.01. /TRUE COPY/ P.A. TO JUDGE JP S.SIRI JAGAN, J. ======================= O.P. No. 2126 of 2002(C) and I.A. No.3023 of 2007 ======================= Dated this the 16th day of January, 2008 JUDGMENT The petitioner in this original petition is the management in ID No.91 of 1999 on the files of the Industrial Tribunal, Palakkad. The management is challenging Ext.P5 award passed by the Tribunal in that ID. The issue referred for adjudication was: "Whether the dismissal of Smt.C.Rethidevi, by the management of M/s.Mother Hospital (P) Ltd, is justifiable? If not, what relief she is entitled to get?" 2. Since the dismissal of the workman was after having been found guilty in a domestic enquiry conducted by the management for that purpose, the Tribunal considered the validity of the enquiry as a preliminary point. The Tribunal found that the enquiry was conducted in compliance with the principles of natural justice. However, after reappreciation of the evidence adduced in the enquiry, the Tribunal come to the finding that out of the two charges only one charge was proved and the second charge was not proved. Thereafter, despite finding the workman O.P. No. 2126/2002/C -2- guilty of the 1st charge, the Tribunal, in exercise its powers under Section 11 A of the ID Act interfered with the dismissal and directed the management to reinstate the workman in service without backwages but with continuity of service. The management is challenging the award to the extent it holds the workman not guilty of the second charge and interferes with the punishment imposed on the workman by the management. For the purpose of deciding the question as to whether interference under Section 11 A was justified, I will have to necessarily go into the charge in detail to find out whether the gravity of the misconduct justified such action. I shall refer to the allegations against the workman raised by the management which lead to the enquiry and the dismissal, as stated in the original petition the correctness of which is not in dispute. 3. Proceedings were initiated against the workman and the another sweeper by name Mary Jose on the basis of written complaint filed by one Smt.Khadeeja, the daughter of an inpatient admitted in the hospital by name Ameena Razak, who was under the treatment of Dr.Justine, a senior Doctor of the Hospital, which patient was due for surgery for back pain on 21.8.1995. The complaint was that on 19.8.1995, by about O.P. No. 2126/2002/C -3- noon these sweepers came to the room of the said patient for cleaning and after closing doors, windows told the daughter of the patient that cases of surgery attended by Dr.Justine are not successful and if any mishappening takes place he will simply express regret and leave it up that. The complainant also stated that the sweepers suggested to the daughter of the inpatient that since the patient can now walk comfortably, after operation she may not be able to attend even her normal avocation. They also told the daughter of the patient that the surgery on another patient by name was unsuccessful and they should without minding the expenses incurred get a discharge and consult Dr.Ramakrishnan. However, since the family of the patient knew Dr.Justine very well for about 16 years, they went through the operation and at the time of discharge on 7.9.1995 they submitted a complaint to the management regarding the conduct of the two workmen. According to the management, they were questioned on 9-9-1995, after serving copies of the complaint and both of them requested for pardon and admitted the guilt in writing. They also expressed the desire to leave the employment and on 10.9.1995 onwards they were not attending the hospital. Later on, they approached a union who raised a dispute regarding O.P. No. 2126/2002/C -4- denial of employment to the workers from 10.10.1995 on wards which resulted in a conciliation proceedings. During conciliation proceedings, the management informed the conciliation officer that they have not denied employment to the workmen and that they are proceeding against them for misconducts alleged against them. Thereafter an enquiry was conducted, the workmen were found guilty by the enquiry officer and they were dismissed from service. Later on the other workman left the service accepting the the punishment and the 1st respondent herein contested the matter raising the industrial dispute which resulted in the Ext.P5 award. 4. Two misconducts were alleged against the workman. First was that, the delinquent made to the complainant certain damaging remarks about the competency of Dr. Justine of the Hospital which would create hatred and dislike in the minds of those who hear such things against the doctor and the hospital. The second was that, after they left their jobs on their own they falsely complained of having denied employment from 10.10.95. In so far as the first charge is concerned the same having been found proved by the Tribunal also which finding has not been challenged by the first respondent workman, I need not go into O.P. No. 2126/2002/C -5- the question of validity of the finding on that charge now. The second charge was found to be not proved. The management would contend for the proposition that such finding is perverse. I am not very convinced about the same in view of the fact that there is confusion regarding the dates and the findings also. In the original petition itself the management would contend that they abandoned employment from 10.9.1995 onwards but in Ext.P1 report it is stated that the M11, which the counsel for the management asserts is the attendance register of the establishment the delinquent ceased to work only from 10.10.1995. Further the counsel for the workman would assert that although the union had sent a letter to the management complaining of denial of employment to the workman, the management never replied to the same at all. Therefore, I am not inclined to interfere with that finding since I do not find anything perverse in such finding. 5. Now that the workman has been found guilty of one charge which finding is not under challenge before me, the only other question I have to consider is whether the Tribunal was justified in interfering with the punishment imposed on workman by the management, by invoking powers under Section 11 A of O.P. No. 2126/2002/C -6- the Industrial Disputes Act. What has been found against the workman is that the workman told the bystander of a patient of the hospital, who was due for surgery shortly that the Doctor was incompetent and after the surgery the patient is likely to be rendered further incapacitated. I am of the opinion that in the context of the nature of the industry which is a hospital this is a very serious charge that would not only affect the reputation of the doctor and the hospital, it would have very serious rippercussions on the confidence of the patient and her relatives, especially when the patient was due for surgery shortly thereafter. I am of the opinion that in such circumstances, the contention of the management that they have lost confidence in the workman cannot be lightly brushed aside. In fact, I find that the Tribunal also was of the same opinion from the following sentence in paragraph 8 of the Ext.P5 award. "Of course, the action of the worker in spreading canards about a doctor of the management hospital will tarnish its reputation and such an action can not be tolerated and the worker is liable for some punishment." 6. Formerly the tribunals and courts used to lean heavily in favour of workmen, in industrial adjudications, but of late the O.P. No. 2126/2002/C -7- Supreme Court itself had changed this approach, as is clear from the following observations from the decision of Supreme Court in HOMBE GOWDA EDUCATIONAL TRUST AND ANOTHER V. STATE OF KARNATAKA AND OTHERS (2006 (1) SCC 430) "This Court has come a long way from its earlier view points. The recent trend in the decisions of this Court seek to strike a balance between the earlier approach to the industrial relation wherein only the interest of the workmen was sought to be protected with the avowed object of fast industrial growth of the country. In several decisions of this Court it has been noticed how discipline at the workplace/industrial undertakings received a setback. In view of the change in economic policy of the country, it may not now be proper to allow the employees to break the discipline with impunity. Our country is governed by rule of law. All actions, therefore, must be taken in accordance with law. Law declared by this Court in terms of Article 141 of the Constitution, as noticed in the decisions noticed supra, categorically demonstrates that the Tribunal would not normally interfere with the quantum of punishment imposed by the employers unless an appropriate case is made out therefor. The Tribunal being inferior to this Court was bound to follow the decisions of this Court which are applicable to the facts of the present case in question. The Tribunal can neither ignore the ratio laid down by this Court nor refuse to follow the same." 7. As is clear from the decisions of RAMANA V. A.P.SRTC AND OTHERS (2005 (7) SCC 338) AND J.K.SYNTHETICS LTD. V. K.P.AGRAWAL AND ANOTHER (2007 (2) SCC 433) while exercising powers under Section 11 A what the Tribunal has to look into is as to whether the O.P. No. 2126/2002/C -8- punishment imposed by the management is shockingly disproportionate to the gravity of the misconduct or would shock the conscience of the court which alone would justify interference with the punishment imposed by the management on the workman. In view of the above findings regarding the gravity of the misconduct committed by the workman in this case, I cannot hold that the punishment of dismissal would qualify as shockingly disproportionate to the gravity of the misconduct committed by the workman. As such, I am of the opinion that the Tribunal was not justified in interfering with the punishment imposed by the management on the workman. Accordingly, Ext.P5 award to the extent it interferes with the punishment imposed by the management on the 1st respondent workman is set aside and it is declared that the workman is not entitled to any reliefs in the industrial dispute. 8. However, in this original petition, the petitioner had filed an application for payment of wages under Section 17B of the Industrial Disputes Act, on 26.2.2007. The OP was filed on 15.1.2002. The workman produces the notice received by her from this court which shows that the date of appearance was 8.8.2006. The Supreme Court has laid down that when a petition O.P. No. 2126/2002/C -9- under Section 17 B is filed, the original petition shall be heard only after the 17 B petition is disposed of. In this case the petitioner in her affidavit stated that she is not gainfully employed elsewhere and that her last drawn wages is Rs.780/- which could not be disproved by the petitioner in the writ petition. Therefore, I feel that the 1st respondent workman is eligible for payment of wages under Section 17 B at the rate of Rs.780/- per month from 26.2.2007 till today. Subject to payment of wages under Section 17 B shall be paid within one month from today. The original petition and I.A. are disposed of as above. S.SIRI JAGAN, JUDGE jp