IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 18TH FEBRUARY 2008 / 29TH MAGHA 1929 OP.No. 8739 of 1995(M) --------------------------------- PETITIONER: ------------------- DR. K. BHARATHAN, PROPRIETOR, VIJAYAKUMARA MENON HOSPITAL, TRIPUNITHURA - 682 301. BY ADV. SRI.P.R.RAMACHANDRA MENON, SRI.PAUL JACOB, SRI.SAJI VARGHESE. RESPONDENTS: ------------------------ 1. SMT. MAGGIE SIMON, C/O. LNGTON KOREAH, UNDANCHANPARAMBIL, PACHALAM, S.R.M. ROAD, COCHIN -12. 2. THE GENERAL SECRETARY, KERALA PRIVATE NURSING HOME & MEDICAL SHOP EMPLOYEE'S UNION, T.U. HOUSE, C.S. ROAD, COCHIN -11. 3. INDUSTRIAL TRIBUNAL, ALAPPUZHA. BY SR. GOVERNMENT PLEADER SRI. T.T. MUHAMOOD. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 8739/1995-M: ORDER ON C.M.P. NO. 15039/1995 IN O.P. NO. 8739/1995-M CLOSED 18/02/2008. SD/- S.SIRI JAGAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE ENQUIRY REPORT. EXT.P.2: COPY OF THE CLAIM STATEMENT OF THE WORKER/UNION. EXT.P.3: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER/ MANAGEMENT. EXT.P.4: COPY OF THE RE-JOINDER FILED BY THE WORKER. EXT.P.5: COPY OF THE PRELIMINARY ORDER DTD. 02/04/92 PASSED BY THE R.3. IN I.D. 37/90. EXT.P.6: COPY OF THE AWARD PASSED BY THE R.3. IN ID. 37/90. EXT.P.7: COPY OF THE ORDER DTD. 08/05/86 ISSUED BY THE MANAGEMENT WARNING THE R.1/WORKER. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. S.SIRI JAGAN, J. ================== O.P..No.8739 of 1995 ================== Dated this the 18th day of February, 2008 J U D G M E N T The management in I.D.No.37/1990 before the Industrial Tribunal, Alappuzha, is the petitioner herein. He is challenging Ext.P6 award of the Tribunal in that I.D. 2. The issue referred for adjudication was the validity of the dismissal of a hospital Nurse Smt.Maggy Simon, from the services of the Vijayakumara Menon Hospital and relief to which she is entitled to. 3. The dismissal of the workman was after conducting a domestic enquiry. Therefore, the Tribunal first considered the validity of the enquiry as a preliminary point. By the preliminary order, which is extracted in Ext.P6 award itself, it was found that the enquiry was not valid and proper and therefore, the same was set aside. Thereafter, the Tribunal granted opportunity to the petitioner-management to adduce evidence. The management adduced evidence and based on the said evidence, the Tribunal came to the conclusion that the charges levelled o.p.8739/95 2 against the workman were proved. However, the Tribunal took the view that the charges were not very serious, but taking into account the fact that the management had lost trust in the workman completely, instead of directing reinstatement, the workman was directed to be paid compensation of Rs.10,000/- and in addition to the same, the management was directed to pay to the workman 50 per cent of the backwages. The petitioner management is challenging that part of Ext.P6 award by which compensation and 50 per cent backwages were awarded to the workman in question. 4. The contention of the petitioner is that the charges involved negligence in the matter of attending to a snake bitten child patient and also unauthorised absence from duty without leave. According to the petitioner, the Tribunal himself at the time of passing the preliminary order, came to the conclusion that charges were serious in nature and any defence against the charges cannot be in a casual manner. Thereafter, after finding the workman guilty of the misconducts alleged, the Tribunal held that the misconducts alleged to have been proved were not at all very serious to warrant the punishment of dismissal from service. o.p.8739/95 3 The petitioner also points out that earlier also the workman was found guilty of misconduct of negligence for which she was seriously warned and therefore, the workman was not eligible for any relief in the I.D. 5. Although notice was served by affixure through the District Court, Ernakulam, there is no appearance on behalf of respondents 1 and 2. 6. I have considered the arguments of the learned counsel for the petitioner. 7. The charges levelled against the workman, as available in Ext.P1 enquiry report, were as follows; “1) That on 26.10.86 a Snake Bite Patient was admitted to the Hospital. The Doctor left instructions with the employee herein after referred to as the Delinquent Employee or in short D.E. to administer drip to the patient who was in a high stage of anxiety. The D.E. gave drip, this was around 9.30 p.m. D.E. was no duty in first floor duty room. After some time the bystander of the above patient found that the drip was leaking and informed the nurse, that is the D.E., who was in the duty room. There was no Electricity at that time. D.E. went and checked the drip, D.E. found the sheet wet on the portion in which the palm into which the drip was being administered. Thus she took it for the sweating of the patient and left the place saying that. [sic] After about 1 hour the patients by-stander noting the profused leaking went to the duty room but did not find D.E. who was no duty in the first floor there, and so he went downstairs to get the aid and the Nurse who was on duty in the ground floor came to the first floor looked for D.E. and then called her out from the I.C.C.Unit where somebody else was already on duty and where D.E. had gone for relaxing. Then they both went and set right the drip, which has leaking. Had not the nurse from the ground floor gone and called D.E. o.p.8739/95 4 the patient would have died. 2) That from 7.11.86 to 11.11.86 the D.E. was absent unauthorisedly.” 8. The Tribunal had found the workman guilty of the above charges. It is also mentioned in the award that the petitioner had produced material to the effect that the workman was earlier warned for similar misconduct of negligence. Ext.P7 is the communication issued to the workman by the management in this regard. I am of opinion that the charges levelled against the workman were very serious in fact. The matter related to attending to a snake bitten child patient. The workman ought to have been very careful in attending to the same since life of the child was in grave danger. The slightest of negligence would have led to very serious consequences. When such negligence is proved, there cannot be any room for holding that such charges are not serious enough to warrant the punishment of dismissal. Therefore, I am satisfied that the Tribunal went wrong in invoking Section 11A of the Industrial Disputes Act to interfere with the punishment of dismissal imposed by the management. It is settled law that the Tribunal can interfere with the punishment o.p.8739/95 5 imposed by the management only if the punishment is shockingly disproportionate to the gravity of the misconduct. I have no reason to hold that the punishment of dismissal for the above misconducts is shockingly disproportionate to the gravity of the misconduct. Therefore, I am of opinion that the Tribunal went wrong in awarding either compensation or backwages to the workman. Accordingly, Ext.P6 award to the extent it awards compensation and 50 per cent back wages to the workman is set aside and it is held that the workman is not entitled to any relief in the industrial dispute. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.8739/95 6 S.SIRI JAGAN, J. ================ O.P..No.8739 of 1995-M ================ J U D G M E N T 18th February, 2008