IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 WP(C).No. 1852 of 2007(U) ------------------------- PETITIONER(S): --------------- SMT.V.R.MINI, W/O.ANIL KUMAR, KOZHIPARAMBIL HOUSE, P.O.MANALOOR, PUTHANGADI, THRISSUR DISTRICT. BY ADV. SRI.SHAJI P.CHALY RESPONDENT(S): --------------- 1. THE PRESIDENT, MANALOOR SAHAKARANA HOSPITAL, P.O.MANALOOR, PUTHANANGADI, THRISSUR DISTRICT. 2. THE INDUSTRIAL TRIBUNAL, PALAKKAD. ADV. SRI.M.B.PRAJITH FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 1852/07. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE AWARD. P2. COPY OF THE CLAIM STATEMENT. P3. COPY OF THE COUNTER STATEMENT. P4. COPY OF THE REJOINDER FILED BY THE PETITIONER. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.1852 of 2007 ================== Dated this the 21st day of May, 2009 J U D G M E N T The workman in I.D.No.23/2004 before the Industrial Tribunal, Palakkad, is the petitioner herein. She is challenging Ext.P1 award of the Tribunal in that I.D., to the extent it denies her reinstatement with backwages by awarding only compensation to the tune of Rs.10,000/- after finding that denial of employment to the petitioner by the 1st respondent-management is not justifiable. 2. The issue referred for adjudication was: “Whether the alleged denial of employment to Smt.V.R.Mini by the management of Manaloor Co-operative Hospital, No.R330 is justifiable?. If not what are the benefits she is entitled to get?” 3. After considering the evidence adduced by both sides, the Tribunal came to the conclusion that the termination of service of the worker was without complying with the legal formalities and, therefore, the termination is not justifiable. But, relying on an argument by the counsel for the management, which was not supported by any pleadings, the Tribunal held that since the workman was not appointed following statutory recruitment procedure, it will not be proper to direct to reinstate her in service. Therefore, instead of reinstatement, relief was restricted to direction for payment of Rs.10,000/- as compensation. 4. According to the petitioner, after having found that the denial of employment is not justifiable, the Tribunal erred in not w.p.c.1852/07 2 ordering reinstatement with backwages. The petitioner would point out that the reason for restricting the relief to compensation itself is not sustainable. The reason mentioned is that the appointment of the worker was not following the statutory recruitment procedure. The petitioner points out that as stated by the Tribunal itself, such a pleading was absent in the written statement of the management. The Tribunal also does not refer to any evidence to the effect that appointment of the worker is against the statutory recruitment procedure. The petitioner would therefore submit that the finding itself is totally perverse. Petitioner, therefore, submits that the Tribunal ought to have directed reinstatement of the petitioner with full backwages. 5. On the other hand, the counsel for the management would strenuously contend that the contention of the management in the written statement was that the appointment of the workman was temporary in nature and that her services were dispensed with because of serious lapses on her part in her duties. It is further submitted that in the written statement before the Tribunal, which is produced as Ext.P3, it is specifically stated that the petitioner is employed in another establishment owned by one Majeed. The counsel for the management would, therefore, support the award. 6. I have considered the rival contentions in detail. 7. As far as the finding that the denial of employment of the w.p.c.1852/07 3 worker is not justifiable, the same has become final, in so far as the management has not chosen to challenge the same. Therefore, the only question I am called upon to decide is whether the Tribunal was right in restricting the relief to the petitioner to Rs.10,000/- as compensation for illegal denial of employment. It is settled law that ordinarily once denial of employment is found in favour of the workman, the normal course is to direct the management to reinstate the workman with backwages. If the relief has to be restricted to compensation, cogent reasons have to be stated by the Tribunal. In this case, the only reason stated by the Tribunal for restricting relief to compensation is that the petitioner was not appointed following the statutory recruitment procedure. But in Ext.P1 award itself the Tribunal states that such a contention was not raised by the management in their pleadings. That was only an argument raised by the counsel for the management at the time of final hearing. The Tribunal also does not refer to any evidence whatsoever in support such a finding. In the absence of any pleadings or evidence, the finding of the Tribunal that the appointment was not following statutory procedure is certainly perverse. 8. The contention of the management that the appointment of the petitioner was temporary was also negatived by the Tribunal itself in paragraphs 8 and 9 of Ext.P1 award, which read thus: “8. The contention of the management that the worker was a w.p.c.1852/07 4 temporary employee and hence it was not necessary to comply with the legal formalities as applicable to the permanent employees is also found to be untenable. As per Ext.M11 letter dt.1.1.999 from the worker, she had joined the hospital on that day on contract basis. On the reverse of Ext.M1, certain terms and conditions have been written. Nobody has endorsed these terms and conditions. It is also not known who has written these terms and conditions. The handwriting of the letter on the first page and these terms and conditions on its reverse are in entirely different handwriting. The worker has disputed the terms and conditions written in Ext.M1. According to her, she had not accepted these conditions and all along she had been working as a permanent employee. 9. The foregoing discussion would lead to the conclusion that there were no specific terms and conditions for the appointment of the worker. In the absence of any such terms and conditions, it cannot be held that the worker was appointed on contract basis. The evidence available before this Tribunal would clearly show that she had worked under the management continuously for the period from 1.1.99 to 10.5.2003. Therefore, it was mandatory to comply with certain legal formalities if the management wanted to terminate her services. The management failed to comply with those formalities.” 9. The workman had worked under the management continuously for the period from 1.1.1999 to 10.5.2003. That being so, it is idle for the management to contend that the petitioner's appointment was temporary in nature. In the above circumstances, the reasoning given by the Tribunal for restricting the relief to the petitioner compensation to the tune of Rs.10,000/- is clearly unsustainable. Accordingly, Ext.P1 award to the extent it restricts the relief to the petitioner to Rs.10,000/- as compensation is set aside. 10. The learned counsel for the management would submit that if this Court is inclined to interfere with the award, the matter should be remanded to the Tribunal for fresh consideration regarding the proper relief to be given to the workmen. The workman was denied employment from 11.5.2003 onwards. More than six years have w.p.c.1852/07 5 elapsed. It would be cruel to direct the petitioner to undergo travails of further litigation before the Tribunal. Therefore, I am not inclined to remand the matter to the Tribunal for fresh consideration and am inclined to decide the matter here itself. 11. The next question is as to what is the proper relief to be granted to the petitioner. The petitioner was working with the management as a Nurse. Her monthly wages were Rs.2050/-, which has been accepted by the Tribunal. I am of opinion that in such circumstances in so far as the petitioner was a Nurse in a hospital and because of the strained relationship between the management and the workman, it would not be in the interest of the patients who come to the hospital to direct reinstatement as such, in view of the fact that the management should have some confidence in the workman for the sake of patients. Being a qualified nurse, there is every chance of the petitioner serving alternate employment, since nurses are very much in demand. In the above circumstances, I am inclined to direct the management to pay compensation for the illegal denial of employment to the petitioner. But that cannot certainly be Rs.10,000/- which is a paltry sum. Taking into account the fact that the petitioner's monthly salary was Rs.2050/- and she was aged 34 in 2003, I fix the compensation payable as Rs.1 lakh. The said amount shall be paid within one month from the date of receipt of a certified copy of this judgment. If the same is not so paid, it would carry interest at the rate w.p.c.1852/07 6 of 10 per cent from 11.5.2003 till payment. If the amount of Rs.10,000/- has been paid to the petitioner and she had accepted it, the same shall be adjusted against the amount of Rs.1 lakh. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge