IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.08.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.8367 of 2009 and M.P.No.1 of 2009 The Management of M/s.Vijaya Hospital 180, NSK Salai, Chennai - 600 026. ...Petitioner Vs. 1.The Presiding Officer, Hon'ble Industrial Tribunal, Chennai. 2.Seyalalar, M/s.Vijaya Hospital Matrum Vijaya Health Care Centre Thozhil Sangam, Kovoor Vaidyanathan Theru, Chintadripet, Chennai -2. 3.Seyalalar, Vijaya Hospital Health Centre, Heart Foundation Thozhilalar Nala Sangam, 18, M.G.R. Nagar, 2nd Street, Thiruverkadu, Chennai -77. 4.Seyalalar, Vijaya Hospital Podhu Thozhilalargal Sangam, 35, Lake View Salai, Nesapakkam, K.K.Nagar, Chennai -78. 5.Seyalalar, Vijaya Hospital and Vijaya Health Centre, Vijaya Heart Foundation Employees Association, 122, Kannigapuram, K.K.Nagar, Chennai -78. ...Respondents Writ Petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorari, to call for the records connected with the Award dated 04.07.2008 made in I.D.No.5 of 2003 passed by the first respondent and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.S.Saiprasad for M/s.SaiRaaj Associates For Respondents : Mr.P.K.Gopal Raj for R2 and R5 O R D E R The petitioner is the Management of Vijaya Hospital at Chennai. They have come forward to challenge an Award passed by the first respondent Industrial Tribunal in I.D.No.5 of 2003 dated 04.07.2008. By the aforesaid Award, the Tribunal upheld the demand made by the Trade Unions for revising the shift timings of the employees in Vijaya Hospital, Vijaya Health Centre and Vijaya Heart Foundation. Aggrieved by the said Award, the writ petition came to be filed. 2. The writ petition was admitted on 29.04.2009. Pending the writ petition, this Court granted an interim stay. On notice from this Court, on behalf of respondents 2 and 5, the Trade Unions have entered appearance and represented through counsel P.K.Gopalraj, who was also the President of the 5th respondent Trade Union. 3. Heard the arguments of Mr.S.Saiprasad, learned counsel appearing for the petitioner Management and Mr.P.K.Gopal Raj, learned counsel appearing for respondents 2 and 5. 4. The facts leading to the adjudication by the Industrial Tribunal were as follows:- Two Trade Unions submitted charter of demands during July 1996 with reference to the service conditions of employees. In the charter of demands placed by the Vijaya Hospital and Health Centre Employees Union dated 10.07.1996, apart from other demands, with reference to the shift duties, Demand No.16 was raised, which is as follows:- "Demand No.16 Shift Duties to Nurses and Lab Staff - 8 Hours continuous work per day be implemented to all the nurses and Lab staff." 5. In the demands placed by the other Unions, namely, Vijaya Hospital Employees Union, in their charter of demands dated 12.07.1996, apart from other demands, with reference to the shift duty, Demand No.30 was raised, wherein, it was stated that for Staff Nurse, A.N.M, Para Medical, N.Aid, Ayahs, there must be three shift and it was as follows: "30 : Shift Duty: i) Morning Shift from 7.00 am to 1.00 pm ii)Day Shift from 1.00 pm to 8.00 pm iii)Night Shift from 8.00 pm to 7.00 am For the Incharge Nurse, the shift must be from Morning 8.00 am to 4.00 pm.. For the Lab Technician/E.C.G., the shift https://hcservices.ecourts.gov.in/hcservices/ should be as follows:- i)Morning shift from 8.00 am to 2.00 pm ii)Day Shift from 2.00 pm to 8.00 pm and iii)Night shift from 8.00 pm to next day morning 8.00 am." 6. As the respondents were not agreeable to the demands, the matter was taken before Labour Officer III, Chennai for conciliation and at his intervention, a settlement under Section 12 (3) of the Industrial Disputes Act, 1947 was signed on 23.12.1996. All the Trade Unions were party to the said settlement. The duty hours for the staff was agreed as follows: "XXIX The duty hours of Nurses will be as follows:- INCHARGE ... 8 AM to 4 PM (Continuous) STAFF NURSES... 8 AM to 4 PM and 1 PM to 8 PM ANM, Para Medical and Ayahs 8 AM to 4 PM and 1 PM to 8 PM Nursing Superintendent will make suitable adjustments to avoid additional hands, for carrying out these duties in the Wards." 7. After the expiry of the said settlement, fresh Charter of demands were placed and once again conciliation talks were held before the Deputy Commissioner of Labour I and a Settlement under Section 12(3) dated 01.12.1999 was arrived at between the parties. In that settlement, in Paragraph 24, it was stated as follows:- "24. The employees and their unions wanted a review of the shifts and working hours. Both parties have agreed to discuss, finalise and introduce changes wherever necessary within three months of date of signing this settlement." 8. After considering the demands of the Union, the petitioner Hospital gave a letter dated 12.02.2000, wherein, it was stated that considering the functional necessity and convenience of patients, the hours of work was suggested by them and they were also willing to discuss with the Union for an amicable settlement. In the Annexure to the letter dated 12.02.2000, they have set out the different demands made by various Unions and the proposal of the Management with reference to the Staff Nurse, Laboratory Technicians, X-Ray Attendants and Ayahs. A further letter dated 03.03.2000 was also given stating that the Management was agreeable for changes in the shift pattern of X-Ray attendants for the Vijaya Hospital and for other staff in the Vijya Health Care and Vijaya Heart Foundation. But a pre-condition was put that the change should not result in additional staff, over time and there should not be any dilution of patient care. 9. Thereafter, further communications dated 15.06.2000, 03.08.2000, 30.08.2000, 13.11.2000, and 17.01.2001 were sent by the Hospital Management to the Unions. As the Unions were not agreeable for the proposals given by the Management, the https://hcservices.ecourts.gov.in/hcservices/ Conciliation Officer recorded his failure and sent a failure report to the State Government. 10. The State Government vide order in G.O.(D)No.122 Labour and Employment Department, dated 23.01.2003 by the exercise of their power under Section 10(1)(d) of the Industrial Disputes Act, 1947 referred the following issue for adjudication by the first respondent Industrial Tribunal: "Whether the Demand of the Trade Unions for revision of shift timings of the employees in Vijaya Hospital, Vijaya Health Centre/Vijaya Heart Foundation is justified? If so, how the shift timings and working hours must be fixed?" 11. The said dispute was taken on file by the Industrial Tribunal as I.D.No.5 of 2003 and notices were issued to both sides. A claim statement was filed by respondents 2 and 5 dated 08.09.2003. The demands made by the two Unions were that there must be revision of shift timings/working hours and the workmen should be given six hours working hours for I shift, Seven Hours for the II shift and Twelve Hours for the night shift in respect of the categories relating to Staff Nurse, A.N.M., Ayahs, Paramedicals (Nurse Aid), V.H.Lab Typists, V.H.F. X-Ray Boys and Pharmacy Supervisors. 12. A counter statement was filed by the petitioner Hospital dated 29.03.2004. In the counter statement, it was stated that the nature of industry was as such that the patient care cannot be diluted and the working hours of various categories of employees were so designed to ensure proper care of patients without incurring financial burden to the hospital. The working hours was fixed and followed in accordance with the industrial practice and the working hours of most of the categories of employees had been accepted by the Management. 13. Before the Tribunal, on behalf of the workmen, two witnesses M/s.A.Kanniappan, Secretary of 5th respondent Union and B.Sakunthala, Staff Nurse were examined as W.W.1 and W.W.2 and no documents were filed on their side. On the side of the petitioner hospital, one Mrs.Subramanian, Personal Manager was examined as M.W.1. and on the side of the Management, 16 documents were filed and marked as Exs.M1 M16. 14. During the course of the trial, Mr.P.K.Gopalraj, counsel appearing for the Union and also the President of one of the Trade Union made the following endorsement in the Court bundle: "The Unions restrict their demand for the working hours of 8.00 A.M to 2.00 P.M. Instead of present 8.00 A.M. To 4.00 P.M. for Staff Nurses, A.N.M., Nurse Aid and Ayahs and with reference to others no timing is sought for" 15. The Tribunal observed that by virtue of the Memorandum of Settlement dated 01.12.1999, marked as Ex.M16, the hospital had https://hcservices.ecourts.gov.in/hcservices/ agreed to review the shift timings and working hours. As per the Management's shift timings, there is overlapping between the morning shift and day shift. The overlapping hours were between 2.00 pm and 4.00 pm during which period, no visitors will be allowed. As it was rest time for the patients, it had become necessary to readjust the shift timings. It further observed that even if the consulting doctors required the presence of the staff, necessary instructions would have been given on the previous day and therefore, there will not be any dislocation. The Tribunal held that the Unions have made out a case for changing the overlapping of the shift timings. The working hours of A.N.Ms and Ayahs for the first shift alone was changed to 8.00 am to 2.30 pm instead of 4.00 pm. However, the Management was given liberty to extract work from the Staff Nurses, ANM and Ayahs 48 hours per week. Challenging this Award dated 04.07.2008, the writ petition came to be filed. 16. Mr.P.K.Gopalraj, learned counsel appearing for the Union submitted that the Tribunal had agreed to go by the endorsement made by him on 30.06.2008 by restricting their demand for change of working hours for Staff Nurse, ANM, Nurse Aid and Ayahs from 8.00 am to 2.00 pm. But in the operative portion of the Award, the Tribunal had granted relief only to A.N.Ms. and Ayahs for the first shift alone. But in respect of others, no relief was granted even though a reference to that effect was made in his endorsement. Therefore, the Unions have filed an application for reviewing the Award or in essence to make a correction of the error in the Award and that application is still pending. In view of the pendency of this writ petition, the Tribunal had not taken up the said application. 17. Therefore, this Court proceeds on the assumption that the Tribunal as it had granted relief in terms of the endorsement dated 30.06.2008 made by the learned counsel for the Trade Union and in case the Award is upheld that they will get relief as per their endorsement. Hence, the parties were heard at length on the merits of the case. 18. Mr.S.Sai Prasad, learned counsel for the petitioner Hospital contended that the Tribunal ought not to have upset the existing working hours and shift timings. With reference to the nature of activities carried on by the petitioner Hospital, it was stated that the shift working hours is exclusively left to the discretion of the Management and it cannot be decided by the Tribunal. The Tribunal had also not given any satisfactory reason for altering the shift hours. 19. In support of his contention, the learned counsel referred to the judgment of the Supreme Court in Associated Cement Staff Union and another v. Associated Cement Company and others reported in AIR 1964 SC 914. In paragraph 3, it was observed as follows:- "3. ...It is not the function of industrial adjudication to fix the working hours with an eye to enabling the workmen to earn overtime wages. Hours https://hcservices.ecourts.gov.in/hcservices/ of work have to be fixed in consideration of many factors, including the question of fatigue on the health of the workmen, the effect on their efficiency, the physical discomfort that may result from long and continuous strain, the need of leisure in the workmen's lives, the hours of work prevailing for similar activities in the same region and also in similar concerns and other relevant factors. But once a conclusion about the normal working hours is reached after considering the optimum working hours on a consideration of all the relevant factors, industrial adjudication cannot hesitate to give effect to its conclusion merely because the workmen would have been entitled to more wages at overtime rates if the hours of work had been fixed at less. While it is true that in fixing the proper wage scale the question of work load and so the matter of working hours cannot be left wholly out of consideration, many other factors including the need of the workmen, the financial resources of the employer, the rates of wages prevailing in other industries in the region have all to be considered in deciding the wage scale.... 20. The learned counsel further submitted that if a settlement is holding the field, the question of the Tribunal adjudicating the said dispute will not arise. For this purpose, he relied on a judgment of a Division Bench of this court in The Management of Binny Ltd., (B & C Mills) v. The Government of Tamil Nadu and others reported in 1989 1 LLJ 180 and referred to the following passage found in paragraph 32, which is as follows:- "32. The bar to the reference of a dispute covered by a settlement is the direct result of the legal position that when a dispute between the workers and the employer is concluded by a settlement which binds them, no industrial dispute relating to any item covered by the settlement can come into existence or can be apprehended, which can be referred by the Government under Section 10 of the Act." 21. The learned counsel further contended that the Tribunal had erred in upholding the Reference especially when the matter was covered by the settlement between the parties. In the first settlement signed under Section 12(3) dated 23.12.1996, Unions had agreed for the shift timings and even in the second settlement dated 01.12.1999, the Management had only agreed to review the shift and working hours and that parties had only agreed to discuss the same and to finalise changes whenever necessary. In the absence of any necessity, the question of Tribunal fixing the working hours for the staff will not arise. He further submitted that all along the Management had contended that they had followed the industrial practice and for the petitioner hospital alone, the Tribunal should not interfere with the shift pattern. https://hcservices.ecourts.gov.in/hcservices/ 22. But in the present case, since by a settlement as the Management had agreed to discuss the issue, there was nothing wrong on the part of the workers to take up the dispute after the failure of negotiation before the Tribunal for adjudication. In respect of shift working, a dispute can be raised as per III Schedule of the I.D.Act, wherein Item No.3 refers to Hours of work and rest intervals. Item No.6 refers to Shift working. Similarly for Starting, alteration or discontinuance of shift working otherwise than in accordance with standing orders, Item No.6 of the IV Schedule prescribed under Section 9-A makes it as a condition of service for which notice will have to be given for change of such condition of service. Therefore, a reference made by the State Government per se is not illegal. The objection raised by the Management cannot be countenanced. 23. But at the same time, merely because a Reference was made, that does not give a jurisdiction to the Tribunal to alter the shift working on its ipse dixit. The Tribunal did not even look into the evidence placed by the parties and merely carried away by the endorsement made by the President of the Union, who was also appearing as counsel. The Tribunal even while incorporating the endorsement, it restricted the relief only to Ayahs and ANMs for which, even the Unions have grievance. But a perusal of the Exhibits produced by the Management shows that the petitioner Management had series of discussions with the Unions for working out the pattern of shift working and the Unions were not willing to agree for any reasonable solution. 24. In the evidence of M.W.1, the Personal Manager of the Hospital, had insisted that the Staff Nurses will have to be present in the Wards to feed the patients, to administer medicines, nurse their wounds and to change their dresses. The suggestion that cleaning of the places will be over in the morning itself was denied by her. She had also stated that even while she was an inpatient in the hospital, had to have the presence of the staff all the time. The present working hours was based upon the discussions held with the Unions at different dates. If the working hours placed by the Unions were accepted, then it will result in increase in the over time wages to be paid to the workers. Though the Unions had agreed in the settlement not to make the Management incur additional expenses, they had gone back of their statement. The present working hours for various categories were designed so as to ensure proper care of the patients without increasing the financial burden of the Management. 25. In the cross examination of W.W.1. Kaniappan, it was admitted that private consultants will come at any time to the hospital and there were no fixed hours for them. ANMs, Paramedicals and Ayahs never gave any representation to the Union for changing their shift timings. It was also stated that the various tests for the patients will take place both during day and night time. He could not say how the Surya Hospital can be comparable to the petitioner hospital. https://hcservices.ecourts.gov.in/hcservices/ 26. Similarly Staff Nurse W.W.2 B.Sakunthala in her cross examination had fairly admitted though a Trade Union Meeting was held, no resolution was passed seeking for demand of the shift working. She had also stated that if the shift timings were altered, it requires additional work force and for having the additional work force and reducing the work hours, they are not willing to accept reduction in their wages. 27. The Tribunal did not take into account the evidence let in by the parties, the admission made by the witnesses and also the evidence given by M.W.1. Merely acting on its own, the Tribunal held that between 2.00 and 4.00 pm, was a overlapping shift and therefore, the shift timings can be altered. With that view in mind, the Tribunal held that ANM and Ayahs can have a revised working hours. It is not clear as to how the Tribunal can reduce the working hours by altering the shift timings, but at the same time holding hat the overall working hours per week should be 48 hours. If this fact is accepted, then the morning shift will have only 6 ½ hours, the day and night shift will have 7 and 12 hours respectively, which will certainly not be in the interest of the workers who may have to come for other shifts. Secondly, even the admission of W.W.2 is that the shift timings will require additional work force, for which the workers have agreed not to make demands, as it will create additional financial commitment to the hospital. To that extent, the Tribunal was wrong in not relying upon the clause of the settlement, wherein the workers had agreed not to place any demand to increase the financial commitment. 28. The Supreme Court in the judgment in Associated Cement's case (cited supra) had warned the Tribunals from altering the shift working so that workers will get overtime wages. 29. Very recently, the Supreme Court had an occasion to deal with working hours fixed by the Mumbai Port Trust in respect of the future recruits having more hours to work than their counterparts who are already in service. Rejecting the demand of the Union, the Supreme Court vide its judgment in Transport and Dock Workers Union v. Mumbai Port Trust reported in (2011) 2 SCC 575, in paragraphs 31 and 33 to 37 held as follows:- "31. The policy decision of the Port cannot be said to cause any prejudice to the interest of the personnel recruited after 1-11-1996 because before their recruitment they were clearly given to understand as to what would be their working hours, in case they accept the appointment. In our opinion the introduction of the new policy was a bona fide decision of the Port, and the acceptance of the conditions with open eyes by the appellants and the recruits after 1-11-1996 means that they can now have no grievance. It is well settled that courts should not ordinarily interfere with policy decisions. https://hcservices.ecourts.gov.in/hcservices/ 33. In our opinion, Article 14 cannot be interpreted in a doctrinaire or dogmatic manner. Absolute and inflexible concepts are an anathema to progress and change. As observed by the great Justice Holmes of the US Supreme Court, the machinery of the Government would not work if it were not allowed some free play in its joints, vide Missouri, Kansas and Texas Railway Co. v. May12. 34. Excessive interference by the judiciary in the functions of the executive is not proper. In several decisions, we have held that there must be judicial restraint in such matters, vide Aravali Golf Club v. Chander Hass13. In Govt. of A.P. v. P. Laxmi Devi14 the doctrine of judicial review of statutes has been discussed in great detail, and it has been observed that the judiciary must show great restraint in this connection. 35. Those who entered service after 1-11-1996 knew that they have to work for seven-and-half hours excluding lunch break and with open eyes they accepted the employment. Hence there is no question of violation of Article 14 of the Constitution. In our opinion, fixing of hours of work, provided they do not violate any statutory provision or statutory rule, are really management functions and this Court must exercise restraint and not ordinarily interfere with such management functions. 36. Differential treatment in our opinion does not per se amount to violation of Article 14 of the Constitution. It violates Article 14 only when there is no conceivable reasonable basis for the differentiation. In the present case, as pointed out above, there is a reasonable basis and hence in our opinion there is no violation of Article 14 of the Constitution. 37. In our opinion it is not prudent or pragmatic for the Court to insist on absolute equality when there are diverse situations and contingencies, as in the present case. In view of the inherent complexities involved in modern society, some free play must be given to the executive authorities in this connection." In this case, the Supreme Court had even upheld the different working hours even for the same category of workers. https://hcservices.ecourts.gov.in/hcservices/ 30. If the warning handed down in Associated Cement's case and the subsequent pronouncement in Mumbai Port Trust case are kept in mind, the Tribunal would not have interfered with the timings fixed by the petitioner Hospital. As already noted, the Tribunal had not given any single reason to modify the shift hours except bringing its own concept of overlapping shift and lean hours during which patients will take rest. The Tribunal also did not look into the pleadings of the parties and the oral and documentary evidence let in by the petitioner Hospital. 31. Under the circumstances, the impugned Award is wholly erroneous and hence, it stands set aside. The writ petition stands allowed. However, there will be no order as to costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar svki To 1.The Presiding Officer, Industrial Tribunal, Chennai. 2 ccs To Mr.P.K.Gopalraj, Advocate, SR.48026 ORDER IN W.P.No.8367 of 2009 MG (CO) RH (19.8.11) https://hcservices.ecourts.gov.in/hcservices/