IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :24.09.2010 CORAM: THE HON'BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No. 1942 of 2003 Rex Higher Secondary School, rep. by its Correspondent, Rev. Fr.Thomas Marriangat, Ootacamund ... Petitioner Vs. 1.Roseline Rozario, rep. by General Secretary Nilgiris Industrial and General Worker's Union, (AITUC) 85, Jawaharpet, Coonoor – 643 102, Nilgiris. 2.The Presiding Officer, Labour Court, Coimbatore. ...Respondents Prayer : This writ petition is filed under Article 226 of the Constitution of India to issue a writ of Certiorari to call for the records in I.D.No.39 of 2000 dated 18.07.2002 on the file of the second respondent and quash the same. For Petitioner : Mr.S.K.Raghunathan For Respondents: Mr.N.G.R.Prasad for M/s.Row & Reddy for R1 ORDER The prayer in the writ petition is for issuance of writ of Certiorari to quash the award passed by the Labour Court, Coimbatore, the second respondent herein, in I.D.No.39 of 2000, dated 18.07.2002. 2. The petitioner is the management of Rex Higher Secondary School and for convenience (hereinafter referred to as the "Management"). The first respondent hereinafter referred as the employee raised the Industrial Dispute in I.D.No.39 of 2000 and the management has filed this writ petition, challenging the award of reinstatement of the employee with continuity of service and backwages. https://hcservices.ecourts.gov.in/hcservices/ 3. The facts which are necessary for the disposal of the writ petition are that the management is a school having day scholars and boarders and there is a small infirmary in the school to cater to the need of the sick children and to give them medical treatment. The employee joined the services of the school on 23.01.1985 and according to the management, she joined as an ayah (helper) and her duties were to look after the sick children; that she was not a qualified nurse and she was not a employed as a nurse in the school. It is further stated that since the number of boarders got reduced the management closed the infirmary and directed the employee to look after the dormitory work along with another co-worker Stella. It is stated that though the employee reported for duty from 02.09.1999 to 04.09.1999, she refused to attend any work and therefore, the management issued a show cause notice on 06.09.1999 for disobeying the direction issued by the management. The employee submitted her reply on 07.09.1999 stating that she was a nurse and she is not bound to work in any other capacity. The management appears to have sent a rejoinder to reply on 14.09.1999. Subsequently since, the employee did not report for duty, a charge was framed against her on 14.09.1999 and the employee also submitted her reply on 18.09.1999. At that stage of the matter, the employee raised an Industrial Dispute before the second respondent in I.D.No.39 of 2000, alleging that she was terminated from service with effect from 02.09.1999, without issuing notice and sought for reinstatement with continuity of service and backwages. The claim was contested by the management stating that the employee was only an ayah and not a nurse and she willfully absented herself and failed to report for duty from 06.09.1999 and she was not terminated on 02.09.1999 as alleged. Thereupon the Labour Court adjudicated the matter and held that the employee was not a nurse, but was a nursing assistant and passed an award directing reinstatement with continuity of service and backwages. Challenging the said award, the management has filed the above writ petition. 4. The learned counsel appearing for the petitioner made elaborate submissions on merits and contended that when it was the specific case of the management that there was no termination, the Labour Court erred in directing reinstatement with backwages and continuity of service. The Labour Court having held that the employee was not a nurse ought to have dismissed the claim in its entirety; that the findings regarding the nature of work and other matters, which were raised by the employee having been rejected by the Labour Court, the Industrial Dispute ought to have been dismissed. Further, it is contended that the claim of the employee that she was a trained female nursing assistant, having obtained training between 07.02.1987 to 13.01.1988 as per Exhibit W-1, cannot in any manner advance the case of the employee, since during the relevant time, she was a full time employee of the management. Therefore, no credence should have been given to the said document. https://hcservices.ecourts.gov.in/hcservices/ Further, it is contended that the Labour Court having held that the management did not deny employment and that it is the employee, who did not report for work and that there was no termination with effect from 02.09.1999, committed serious error in directing reinstatement with backwages and continuity of service. The employee set up the false case before the Labour Court stating that she is a nurse and the Labour Court having held that such claim of the employee is untenable should have dismissed the Industrial Dispute. The learned counsel would further submit that inspite of the interim direction granted by this Court on 14.11.2003 in W.P.M.P.No.2411 of 2003, the employee did not report for duty and consequently, she was not entitled to payment of any wages under Section 17B of the Industrial Dispute Act. Further, the condition imposed while granting stay to deposit the backwages was set aside by the Hon'ble Division Bench in W.A.No.1369 of 2003, dated 17.08.2006. Thus, this Court while considering the interim application was prima facie satisfied that the employee was not entitled for wages under Section 17B and the management need not deposit the backwages. Therefore, the learned counsel contended that the impugned award sufferer from error apparent on the face of the record, the Labour Court misdirected itself in giving relief to the employee and the award of reinstatement with backwages is perverse as the Labour found that there was no termination or denial of employment and the employee herself failed to report for work. On the grounds, the learned counsel prayed for setting aside the award. 5. The learned counsel appearing for the employee would contend that this Court should not re-appreciate the factual finding and come to a different conclusion than arrived at by the Labour Court, which was done after appreciating the oral and documentary evidence and the award of the Labour Court having been rendered giving reasons deserves to be sustained. The learned counsel would further submit that when there is a direction to report for duty, the management is required to offer the same post, in which the employee was working and she cannot be compelled to do a different work and if, she refuses to do the other work, it cannot be stated, she disobeyed the directions. In support of the said contention, the learned counsel placed reliance on the decision of the Hon'ble Division Bench of this Court in Lakshmi Mills Ltd., Coimbatore Vs. Labour Court and another 1997 3 LLN 354. Further, the learned counsel would submit that the employee being a permanent employee of the management, her services cannot be dispensed with without following the provisions of Section 25F of the Industrial Disputes Act and therefore, the termination of service is bad in law. In support of the said contention, the learned counsel relied on the decision of the Hon'ble Supreme Court in Deep Chandra Vs. State of Uttar Pradsh and another, 2001 3 LLN 820. Further, the learned counsel would submit that this Court has a duty to interpret statues with social welfare benefits in such a way as to achieve the goal of the statue and not to frustrate it and the Court has to take a sympathetic view towards the plight of the https://hcservices.ecourts.gov.in/hcservices/ employees and in support of the said proposition, the learned counsel relied on the decision of the Hon'ble Supreme Court in Harjinder Singh Vs. Punjab State Warehousing Corporation, 2010 3 SCC 192. Further, the learned counsel made elaborate submissions on facts by referring to the counter filed by the management before the Labour Court. The learned counsel would submit that even the management has stated in the counter that the employees duties were like that of an ayah and with such vague averments, the management cannot sustain their action. Further, the Labour Court having found that the employee was a nursing assistant, the management is bound to reinstate her in the said position and she cannot be compelled to do any other work, other than that of nursing assistant. Further, by relying upon the reply given by the management dated 02.12.2003, it is submitted that the management themselves admitted that because of the fall in strength of the students, the question of creating a sick room does not arise and therefore, she was directed to do the other work along with the co-employee Stella and this itself establishes and she was working as nursing assistant. Sofar as the certificate produced by the employee, Exhibit W-1, it is submitted that the management is advancing a new case, which was not pleaded before the Labour Court and in the absence of any cross examination, regarding the certificate such new plea cannot be allowed to be raised. On the above grounds, the learned counsel sought for prayed for dismissal of the writ petition. 6. I have considered the submissions on either side and perused the materials available on record including the records of the Labour Court, the deposition recorded before the Labour Court and the documents, which were marked. 7. Before proceeding to decide the factual aspects in the matter, it would be necessary to examine the scope of interference by this Court on the impugned award. The Hon'ble Supreme Court in Seema Ghosh Vs. Tata Iron & Steel Co (2006) 7 SCC 722 examined the scope of this Court exercising jurisdiction under Article 226 of the Constitution and held as follows:- "30. The above judgment is not only distinguishable on facts as well as on law. We have elaborately dealt with the events which led to the constitution of the Medical Board for determining the age of the workman. The workman did not challenge the opinion of the Medical Board constituted by the management for determining the age of the workman and the management permitted the workman to work till his attaining the age of retirement. Therefore, the workman in the present case is estopped from challenging the correctness of the opinion of the Medical Board after his retirement. This apart, the school-leaving certificate which was produced by the workman was forwarded to the DEO, Dacca for verification who informed the management that the certificate is not genuine. The workman was to superannuate in the year 1986 but on the https://hcservices.ecourts.gov.in/hcservices/ basis of the assessment of age made by the Apex Medical Board, he was allowed to continue till 13-9-1987. At that stage, the workman did not challenge the decision of the Medical Board. It is only after enjoying the benefits given to the workman and after availing the benefits, the workman raised a dispute after his retirement in pursuance of which the Labour Court has passed the award. The High Court has not given any undue credence to the evidence of the management or wrongly relied upon the one- sided testimony of the management as alleged by the appellant. We have already noticed that the findings arrived at by the Labour Court are nothing but perverse against the facts and it passed the award in favour of the workman on totally misplaced sympathy. In our opinion, both the learned Single Judge and the Division Bench are right and within their jurisdiction in reassessing and revaluing the weight of the evidence in the case recorded by the Labour Court by which the High Court came to the conclusion that the workman was not entitled to any relief. When the judgment of the Labour Court is perverse and against the facts and records, the High Court is entitled to exercise its jurisdiction under Article 226 and to interfere with the perverse finding and set aside the same." Bearing the above legal principle in mind, the facts of the case are taken up for consideration on merits. 8. The employee raised the dispute before the Labour Court stating that she was working as a nurse with the petitioner management from 23.01.1985 and that she was a permanent employee and was aged about 35 years and would be entitled to work for another 25 years and her last drawn salary was Rs.890 per month and the management without any notice or reason, terminated her services from 02.09.1999 and inspite of that she waited for the whole day requesting for employment and as she was denied employment, she raised the dispute. Further in the claim petition, it is stated that there has been violation of Section 25F of the Industrial Disputes Act and therefore, the termination of her services without notices is bad in law. With the above facts, the employee sought for an award to set aside the termination and direct reinstatement with backwages, continuity of service and other attendant benefits. Thus, it is to be noted that the claim of the petitioner was, she was working as nurse with the petitioner management. Along with her claim petition, the petitioner filed the conduct certificate issued by the management dated 29.06.1990 and a certificate issued by a Doctor dated 12.04.1988, stating that the employee was trained as female nursing assistant from 07.02.1987 to 13.01.1988. With the above factual background and documents, the employee had approached the Labour Court. https://hcservices.ecourts.gov.in/hcservices/ 9. The claim was resisted by the management by contending that the contention that the employee joined as a nurse is utterly false, she was employed to look after the children in the boarding section of the school and her duties were like that of an ayah and she was neither qualified as a nurse nor she was employed as a nurse. That on 01.09.1999 the employee was directed that from 02.09.1999, she should look after the dormitory along with the co-worker Stella and as the employee disobeyed the direction issued by the management, a show cause notice was issued to which the employee submitted reply and rejoinder was also sent by the management. Further, the management took a categorical stand that of no time neither on 02.09.1999 nor on any subsequent date the management terminated the employee from service. Further in the counter affidavit, it has been stated that on 19.09.1999 at about 8.20 a.m. when the Correspondent was not in the premises, the employee took one boy master Sakthikumar of class IX to a room and took photographs as if she was taking care of the boy, who was sick. This incident led to filing of a Police complaint before the Inspector of Police, Town West Station, Ooty and the F.I.R was registered and subsequently, a charge sheet was filed in STR.No.274 of 2000, on the file Judicial Magistrate Court, Ooty and the summons could not be served on the employee, since she was in Kerala. Further, it has been stated that the employee could not have a undergone the nursing training course, when she was employed as an ayah in the school during the said period and the certificate is a self-serving document and when, the employee has claimed in the industrial dispute that she was a nurse and joined duty on 23.01.1985, the question of her obtaining a certificate subsequently, as nursing assistant does not arise and that the claim statement has been filed only to harass the institution. 10. With the above factual background, the Labour Court adjudicated the matter. The employee marked 16 documents and examined herself as WW-1 and the management marked 12 documents and examined 2 witnesses including the supervisor as MW-2. The Labour Court framed three questions for consideration, whether the employee was working as a nurse, whether the management terminated her service from 02.09.1999 and to what relief the employee is entitled to. After analyzing the oral and documentary evidence, the Labour Court came to a conclusion that the employee was not a nurse but, only a nursing assistant. Thus, it is seen that the case as projected by the employee was disbelieved by the Labour Court and the Labour Court rendered a factual finding that the employee is not a nurse. However the Labour Court came to a conclusion that the employee was working as a nursing assistant. Therefore, even if, this finding would be partially in favour of the employee, it remains to be seen that the original plea as regards the nature of employment raised by the employee was rejected. Thus as rightly pointed out by the learned counsel appearing for the petitioner question No.1 was answered by in favour of the management. While deciding the question No.2 the Labour https://hcservices.ecourts.gov.in/hcservices/ Court came to a categorical finding that the management did not deny employment to the employee, but on the contrary it is the employee, who did not report for work and therefore, it cannot be held that the employee was terminated from 02.09.1999. Thus, question No.2 also was answered in favour of the management. Insofar as question No.3, regarding the relief to be granted, the discussion/ finding of the Labour Court is in paragraph 13 of the award. The Labour Court held that the employee is working for 15 years and since, there was some dispute between herself and management, she did not report for work and the management has taken a stand that the management before the conciliation officer agreeing to give work and therefore, directed the management to reinstate her as nursing assistant with backwages and continuity of service. 11. Apart from the above reasoning, there is no other reason assigned by the Labour Court for directing reinstatement with backwages and continuity of service. As already seen, the Labour Court rendered a categorical finding that there was no termination of service as alleged. The Labour Court also held that the employee on her own volition did not report for do work, presumedly due to some dispute with the management. However, the findings of the Labour Court on issue Nos.1 & 2 fully supports the case of the management, in such circumstances, I am of the view that the Labour Court committed an error in directing the employee to be reinstated with backwages and continuity of service. If the employee failed to report for duty on her own volition, the management cannot be held to be at fault and therefore, the question of reinstatement with granting backwages and continuity of service does not arise. An award of backwages and continuity of service is passed, when the non- employment is held to be unjustified or when a termination is held to be illegal. Even in such circumstances, when an award of reinstatement is passed, the Hon'ble Supreme Court in several decisions has held that grant of backwages is not automatic. Therefore, the impugned award directing payment of backwages and continuity of service cannot be sustained. 12. Then, coming to the next aspect, as regards the award directing reinstatement as a nursing assistant, it is to be seen that the contention of the petitioner itself was that she was working as a nurse and when, she was directed to take care of the dormitory along with the co-worker, she refused to do the same because, it was not her duty and responsibility which, she was discharging. This contention of the employee was disbelieved and rejected by the Labour Court. Therefore, I do not propose to re-appreciate the evidence on record to come to a different factual conclusion. In such circumstances, it has been seen as to whether, the Labour Court could have directed reinstatement of the employee as nursing assistant. Firstly, it is to be noted that when, the Labour Court has held there is no termination, the question of directing reinstatement does not arise. If that be the factual situation, it has to be held that the https://hcservices.ecourts.gov.in/hcservices/ Labour Court exceeded its jurisdiction by directing the management to reinstate employee as a nursing assistant, which was never the plea of the employee. Therefore, the Labour Court having come to a conclusion that the employee was not a nurse ought to have held that she is entitled to discharge the duties assigned by the management without doing so, the Labour Court rendered a finding that she is a nursing assistant and reinstatement should be done in the said post, when that was not the case of the employee herself. 13. Reference has been made to Exhibit W-1, a certificate issued by a Doctor, stating that the employee was a trained as nursing assistant. Admittedly, the certificate is dated 12.04.1988 and period of training is from 07.02.1987 to 13.01.1988, and during the said period, the employee was working full time with the management and it defies logic as to how, she could have undergone training simultaneously, when she was a full time employee. 14. Be that as it may, Exhibit W-1 itself contradicts the case of the employee, since it was her claim that she was a nurse. Therefore, in my view, the Labour Court ought to have rejected the claim made by the employee in its entirety except for recording the offer made by the management before the conciliation officer that the management is always ready to provide her employment. 15. Thus, in view of the conclusion arrived at based on facts and on appreciation of the documents available on record, decision relied on by the learned counsel appearing for the respondent passed by the Hon'ble Supreme Court in the case of Harjinder Singh, referred supra cannot rendered much assistants to the facts of the present case. 16. In the result, the writ petition is allowed and the impugned award is set aside. However, the petitioner management shall abide by the stand taken by them in their letter dated 02.12.2003, stating that the employee is at liberty to join the work assigned by the management as pointed out in the said letter. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar pbn https://hcservices.ecourts.gov.in/hcservices/ To The Presiding Officer, Labour Court, Coimbatore. 1 cc To M/s.Row and Reddy, Advocate, SR.71106. 1 cc To Mr.S.K.Rakhunathan, Advocate, SR.70675. W.P.No. 1942 of 2003 TRM(CO) RVL 12.10.2010 https://hcservices.ecourts.gov.in/hcservices/