SCA/6828/1998 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6828 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge? ========================================================= MULJIBHAI PATEL UROLIGICAL HOSPITAL - Petitioner(s) Versus ARUNABEN I DESAI - Respondent(s) ========================================================= Appearance : MR DG CHAUHAN for Petitioner(s) : 1, MR MUKESH H RATHOD for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 09/05/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioner – hospital management has challenged the legality and validity SCA/6828/1998 2/15 JUDGMENT of the judgment and award dated 19.11.1997 passed by the Labour Court, Nadiad in Reference (LCA) No.831 of 1986 directing the petitioner to reinstate the respondent with 50% back-wages with continuity of service. 2. Petitioner is one of the best Urological hospital in Gujarat i.e. 'Muljibhai Patel Urological Hospital' at Nadiad and the respondent was serving as nurse in the said hospital. The petitioner – hospital is a charitable hospital and research institution for kidney diseases registered under the Bombay Public Trust Act. It appears that the main object of the Trust is to provide social and medical services to the public and it seems that it is a non- profitable institution. 3. The respondent was appointed as staff nurse by order dated 06.02.1984 initially on probation for a period of six months. It is the case on behalf of the petitioner – hospital that one Shri Abbas Ali was suffering from kidney diseases, admitted as indoor patient in the petitioner – hospital and was operated for urine by pass surgery. The respondent – SCA/6828/1998 3/15 JUDGMENT nurse was on duty on 19.03.1985 as staff nurse in night shift and was in-charge of the said patient. Suddenly, at midnight on 19.03.1985 the patient had started stomach pain and there was leakage of urine through the hole made in abdomen which was closed. Therefore, the patient had sent one Shri Bhikhabhai to call the nurse so as to call the concerned Doctor immediately. But she did not turn up. After some time again, she was being called by the relatives of the patient but the respondent did not responded for an hour. After sometime, the respondent responded and said that she cannot call the Doctor at this time and she will call in the morning. Thus the respondent – nurse did not attend the patient. The patient made complaint to the Director of the petitioner- hospital as the respondent – nurse failed to discharge her duties honestly and diligently and committed serious misconduct of negligence. Looking to the gravity and seriousness of the misconduct, departmental inquiry came to be initiated against the respondent – nurse and she was served with show cause notice dated 25.03.1985 for her acts of subversive of discipline. After holding legal and proper departmental inquiry; SCA/6828/1998 4/15 JUDGMENT after giving fullest opportunity to defend her case and after both parties led their evidence before the inquiry officer and after considering evidence on record, the Inquiry Officer recorded his evidence and found respondent – nurse guilty for the charges levelled against her i.e. negligence and carelessness of duty as nurse. Inquiry Officer submitted his report dated 02.02.1986. The respondent – nurse was served with second show cause notice dated 03.01.1986 along with inquiry report and she was called upon to show cause as to why her services should not be terminated looking to the gravity and seriousness of the proved misconduct and past record. At this stage it is required to be noted that in the last one year, the respondent – nurse was served with four notices for her negligence in her duties; two warnings for misbehaviour with the superior officers; twice she was suspended for other misconduct and once she tendered apology. That after considering explanation tendered by the respondent, the petitioner – hospital management by order dated 16.01.1986 terminated the services of the respondent – nurse. SCA/6828/1998 5/15 JUDGMENT 4. Against the order of termination dated 16.01.1986, the respondent – nurse raised industrial dispute being Reference (LCA) No.836 of 1986 before the Labour Court, Nadiad claiming reinstatement with full back-wages. Respondent filed her statement of claim and also laid oral evidence in support of her case which was recorded at Exh.13. The petitioner – hospital filed its written statement and denied all the statements, averments and allegations and it was further contended that the respondent had committed grave and serious misconduct of negligence in discharging her duties as staff nurse. It was contended that after legal and proper inquiry into the charges levelled against the respondent, she was found to be guilty for the charges levelled against her and with regard to gravity and seriousness of the charges, her services has been terminated. It appears that the petitioner produced all the inquiry proceedings before the Labour Court in support of their case. The respondent – nurse did not challenge the legality and validity of the inquiry proceeding before the Labour Court. However, she challenged the findings recorded by the Inquiry Officer but did not SCA/6828/1998 6/15 JUDGMENT lay any evidence against the findings recorded by the Inquiry Officer. It was also submitted on behalf of the respondent – nurse that looking to the gravity and misconduct and the misconduct proved i.e. negligence and punishment of termination is too harsh. The Labour Court re-appreciated the evidence laid before the Inquiry Officer and held that the order of termination is illegal and unreasonable. However, considering pursis at Exh.15, passed an order of reinstatement with 50% back-wages with continuity of services. Being aggrieved and dissatisfied with the impugned judgment and award passed by the Labour Court, Nadiad in directing the petitioner to reinstate the respondent with 50% back- wages, the petitioner – hospital management has preferred the present Special Civil Application under Article 227 of the Constitution of India. 5. Mr.D.G.Chauhan, learned Advocate appearing on behalf of the petitioner has submitted that once the respondent did not challenge the legality and validity and enforceable findings of the Inquiry proceedings and had challenged only conclusions SCA/6828/1998 7/15 JUDGMENT reached by the Inquiry Officer and quantum of punishment only, the Labour Court was not justified in examining the findings of the Inquiry Officer and hold that the charges are not proved. He has heavily relied upon the decision of the Hon'ble Supreme Court in the case of U.P.State Road Transport Corporation v/s. Vinod Kumar reported in (2008) 1 SCC 115. He has further submitted that even otherwise findings of the Labour Court holding termination order illegal are based on no evidence as the respondent nurse had not laid any evidence against the findings recorded by the Inquiry Officer. It is submitted that the approach of the Labour Court is absolutely misconceived when the Labour Court has held that the respondent – nurse was not responsible for the operation and was not negligent in discharging her duties. It is submitted that the said conclusion of the Labour Court is erroneous and contrary to the evidence on record. It is submitted that the Labour Court ignored and overlooked the findings recorded by the Inquiry Officer at Exh.11 and the evidence of the witnesses laid by the petitioner – hospital wherein the respondent was found guilty for the charges SCA/6828/1998 8/15 JUDGMENT levelled against her. It is submitted that looking to the grave and serious misconduct of negligence by the respondent – nurse in discharging her duties as nurse and considering past record of respondent – nurse, when the respondent – nurse was terminated by the petitioner – hospital, same was not required to be interfered with by the Labour Court. The Labour Court ought to have appreciated that looking to the duties of the respondent as staff nurse, she should have been more careful and her negligence in the hospital cannot be tolerated as sometimes it might be fatal to the patient. It is also submitted that the Labour Court has erred and failed to appreciate that the respondent nurse was gainfully employed with C.M.Shah General Hospital, Vaso on and from 11.02.1993 and earning more than what she was getting from the petitioner – hospital. Under the circumstances, the Labour Court ought not to have granted reinstatement with 50% back-wages. Making above submissions, it is requested to allow the present Special Civil Application by quashing and setting aside the impugned judgment and award. SCA/6828/1998 9/15 JUDGMENT 6. The petition is opposed by Mr.Mukesh H.Rathod, learned Advocate for the respondent. It is submitted that on appreciation of evidence when the Labour Court has held termination illegal by holding that the respondent nurse cannot be held responsible for operation and that she was not assigned duty, same is not required to be interfered with in a petition under Article 227 of the Constitution of India. It is submitted by Mr.Rathod that at the most charges proved against the respondent – nurse can be that of negligence and therefore, punishment of termination is too harsh. It is also submitted that the Labour Court has specifically found and held that findings of the Inquiry Officer is perverse. It is submitted that aforesaid findings of Labour Court is on appreciation of evidence of Doctor who was examined on behalf of the petitioner – hospital. By making above submissions, it is requested to dismiss the present Special Civil Application. 7. Heard the learned Advocates appearing on behalf of the respective parties. 8. It is not in dispute that the respondent – SCA/6828/1998 10/15 JUDGMENT nurse was appointed as staff nurse in the petitioner – hospital on 06.02.1984. It is also not in dispute that the petitioner is charitable hospital and is one of the best Urological hospital in the State of Gujarat. It is not in dispute that the most of the patients treated in the said hospital are the patients sufferings from kidney diseases. Within a period of one year and one month, the respondent – nurse was issued four notices for negligence in her duties; two warning notices for misbehaviour with her superior officers; twice the respondent was suspended for other misconducts and for other misconduct once the respondent tendered apology. One Shri Abbas Ali who was suffering from kidney diseases and was operated for the same. Suddenly, the patient had started stomach pain and there was leakage of urine through the hole made in abdomen which was closed. Therefore, the patient had sent relatives to call the nurse so as to call the concerned Doctor immediately. But she did not turn up. It was further alleged against the respondent nurse that after some time again, she was being called by the relatives of the patient but the respondent did not responded for SCA/6828/1998 11/15 JUDGMENT an hour. Thereafter, after sometime, the respondent responded and said that she cannot call the Doctor at this time and she will call in the morning. The patient made complaint to the Director of the petitioner- hospital against the respondent – nurse. Departmental inquiry came to be initiated against the respondent – nurse. After giving fullest opportunity and recording evidence of the patient, Doctor, nurse etc., charge of negligence and carelessness came to be proved against the respondent – nurse. Looking the seriousness of the charges and misconduct and negligence proved against the respondent; considering her past record and misconduct, her services came to be terminated. It is also required to be noted that before the Labour Court, the respondent – nurse did not challenge the legality and validity of inquiry, however, challenged only findings and quantum of punishment. The respondent did not lead any evidence against the findings of Inquiry Officer before the Labour Court. In the recent decision in the case of Vinod Kumar (supra), the Hon'ble Supreme Court has held that in absence of challenge to the legality or fairness of the inquiry report, the Courts should be SCA/6828/1998 12/15 JUDGMENT reluctant to either interfere with the finding recorded by the punishing authority or the quantum. In para – 10 of the said decision, the Hon'ble Supreme Court has held that since the respondent had not challenged the correctness, legality and validity of the inquiry conduced, it was not open to the Labour Court to go into the findings recorded by the enquiry officer regarding the misconduct committed by the respondent. Considering above, the Labour Court has committed an error in interfering with the findings recorded by the Inquiry Officer when legality and validity of inquiry was not challenged by the respondent – nurse and more particularly, when no evidence was laid by the respondent – nurse before the Labour Court against the findings of the Inquiry Officer. 9. Even otherwise, the findings of the Labour Court in holding order of termination illegal and unreasonable are perverse and based on no evidence. It appears that the Labour Court has misread the charge and not properly considered and dealt with the evidence of the Doctor who was examined before the SCA/6828/1998 13/15 JUDGMENT Inquiry Officer and who has performed operation. The Labour Court has observed that the respondent – nurse cannot be held responsible for operation as the operation was performed by the Doctor. Charge against the respondent – nurse which has been proved is that though the patient had sent one relative to call the nurse so as to call the concerned Doctor immediately; first of all she did not turn up. After sometime, when the respondent responded after an hour, she told patient that she will call the Doctor in the morning. Thus the findings of the Labour Court is absolutely perverse and had misread the evidence recorded before the Inquiry Officer. As stated hereinabove, the respondent – nurse had not laid any evidence before the Labour Court challenging the findings of the Inquiry Officer. Under the circumstances, findings of the Labour Court holding termination order illegal deserves to be quashed and set aside. 10. The Labour Court has not appreciated the fact that the respondent – nurse was serving as nurse in the Muljibhai Patel Urological hospital and any SCA/6828/1998 14/15 JUDGMENT negligence and/or even slightest negligence and carelessness on the part of the nurse may sometimes be fatal to the patient and therefore, any negligence and/or carelessness on the part of the nurse in the hospital cannot be tolerated. The Labour Court has missed to consider above aspect. The Labour Court has also not considered past service record and misconduct of the respondent – nurse. The Labour Court ought to have appreciated that during her one year and one month service tenure the respondent – nurse was issued four notices for negligence in her duties; twice warnings notices were issued for misbehaviour with superior officers; twice she was suspended for other misconduct and once she has tendered apology. As held by the Hon'ble Supreme Court in catena of decisions, the Courts should be reluctant to interfere with the punishment imposed by the employer when charges of grave and serious misconduct are proved against the employee. In the facts and circumstances of the case narrated herein above, the Labour Court has committed an error in interfering with the order of punishment of termination / dismissal imposed by the petitioner – SCA/6828/1998 15/15 JUDGMENT hospital. It is also required to be noted that the respondent – nurse was serving in another hospital since 1993 and has retired on attaining the age of superannuation from C.M.Shah General Hospital from 31.03.1999. 11. For the reasons stated above, the impugned judgment and award passed by the Labour Court directing the petitioner - hospital to reinstate the respondent – nurse with 50% back-wages with continuity of services cannot be sustained in view of misconduct and negligence in the hospital proved against the respondent – nurse. Hence, same deserves to be quashed and set aside. Accordingly, impugned judgment and award dated 19.11.1997 passed by the Labour Court, Nadiad in Reference (LCA) No.831 of 1986 is hereby quashed and set aside. Rule is made absolute accordingly. However, there shall be no order as to costs. [M.R.Shah,J.] satish