Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 29TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945 WA NO. 1577 OF 2021 AGAINST THE JUDGMENT DATED 30/09/2021 IN WP(C) NO.34734 OF 2011 OF HIGH COURT OF KERALA APPELLANT/PETITIONER: THE MANAGING PARTNERS, T.R.RAVI, G.E.M.HOSPITAL, BENNETT ROAD, THRISSUR-680 020. BY ADVS. P.BENNY THOMAS D.PREM KAMATH RESPONDENTS/RESPONDENTS: 1 C.V. BABY, PRESIDENT, KERALA PRIVATE PHARMACISTS ASSOCIATION, CHALISSERY VEEDU, CHELAKKARA, THRISSUR-680 586. 2 T.J.CICILY, W/O.VINCENT, C.D.THANIKKAL KAROKKARAN VEEDU, MANALUR, PALAZHI, TRICHUR - 680 617. 3 INDUSTRIAL TRIBUNAL, PALAKKAD-678 020. BY ADVS. T.M.RAMAN KARTHA SYAMA MOHAN THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON 29.02.2024, ALONG WITH WA.1578/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 29TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA, WA NO. 1578 OF 2021 AGAINST THE JUDGMENT DATED 30/09/2021 IN WP(C)NO.25348 OF 2011 OF HIGH COURT OF KERALA APPELLANT/2ND RESPONDENT: THE MANAGING PARTNERS, G.E.M.HOSPITAL, BENNETT ROAD, THRISUSR-680 020. BY ADVS. P.BENNY THOMAS D.PREM KAMATH RESPONDENTS/PETITIONERS/RESPONDENTS: 1 C.V. BABY, PRESIDENT, KERALA PRIVATE PHARMACISTS ASSOCIATION, CHALISSERY VEEDU, CHELAKKARA, THRISSUR-680 586. 2 T.J.CICILY, W/O.VINCENT, C.D.THANIKKAL KAROKKARAN VEEDU, MANALUR, PALAZHI, TRICHUR-680 617. 3 INDUSTRIAL TRIBUNAL, PALAKKAD-678 001. THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON 29.02.2024, ALONG WITH WA.1577/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AMIT RAWAL & C.S.SUDHA, JJ. ------------------------------------------------------ ---------------------------------------------------- Dated this the 29th day of February 2024
JUDGMENT
Amit Rawal, J.
This order shall dispose of two intra court appeals preferred
against the common judgment rendered in two writ petitions W.P. (C).Nos.25348 and 34734 of 2011, arising out of a common award dated 06/07/2011. Respondent-workman was employed as a pharmacist in the management/hospital of the appellant. After having rendered eighteen years of unblemished service, was dismissed from the service on 16/02/2009 on the allegation of misconduct in not submitting a declaration of pharmacist to the Assistant Drug Controller regarding the change of the working hours of the pharmacy situated in the premises of the hospital. Enquiry in the aforementioned case was initiated by issuing a notice dated 03/12/2008 and prior to that, two show-cause notices dated 7/10/2008 and 22/10/2008 were issued. The crux of the controversy involved for adjudication before the Industrial Tribunal
was that the hospital intended to change the working hours of the pharmacist. The change in the working hours has to be communicated to the Assistant Drug Controller by the Management duly endorsed by the pharmacist for, it is the liability of the pharmacist in case of any non-compliance. Before the timings could be fixed, there were meetings and exchange of communications. Respondent-workman did agree to discharge the duty from 9.00 a.m. to 5.30 p.m. but agreed for 8.00 a.m. to 5.30 p.m. Management, dissatisfied with the conduct, initiated the enquiry, resulted into termination from the service.
2. Dispute was raised through the intervention of the
Government under Section 10 of the Industrial Disputes Act. The Tribunal on analysis of the evidence brought on record, found that there was misconduct on the part of the respondent/workman, but held that nothing had been placed on record that the management at any point of time made a request to the workman to submit a declaration in conformity with the proposed change of the working hours for completing legal formalities, to the Assistant Drug Controller. Noticing all these factors, the Tribunal ordered for reinstatement without backwages. It is in that background two writ petitions were filed.
Learned Single Bench of this Court vide order under challenge, allowed the writ petition of the worker and dismissed the writ petition of the management and ordered for reinstatement with full backwages. The order of the learned Single Bench is under stay, however in an application to under Section 17B, the worker has been paid last drawn wages; till now, an amount of ₹5,38,000/- (Rupees five lakh thirty eight thousand only) has already been paid.
3. Mr. Benny P. Thomas, learned counsel appearing on behalf
of the appellant/management submitted that the respondent-workman in this year would be acquiring her date of superannuation and no useful purpose would be served in retaining the employee by upholding the
order of the Tribunal. Non-adherence to the direction of the
management for change of the timings and non-submission of the declaration form would entail into serious consequences and a misconduct. Pharmacist has to discharge his/her duty and cannot seek convenience qua working hours of the hospital coinciding with the pharmacy and cannot be permitted to stand in the way. Workman had
not placed any material on record that during all the period she remained out of the service or not gainfully employed. It is on that account the backwages were rejected. Even before the learned Single Bench also there was no such evidence. Therefore, there was no compliance of the ratio rendered in the judgment of the Supreme Court in Deepali Gundu Surwase v. Cranti Junior Adhyapak Mahavidyalaya (D.ED) and Others, (2013) 10 SCC 324. Therefore, the judgment of the learned Single Bench is liable to be set aside.
4. On the other hand, learned counsel appearing on behalf of
the workman supported the finding of the learned Single Bench and submitted that an affidavit has been filed regarding gainful employment and the management was unable to prove with any evidence that the worker was gainfully employed. It is in that background this Court on an analysis of the pleadings ordered for payment of backwages and there has not been any change of circumstances. The management expressed might which could not be allowed to be perpetrated the way they wanted to, resulted into termination alleging to be not on account of actual misconduct but actually for some other reasons.
5. We have heard learned counsel for the parties and appraised the paper books and of the view that the findings of the learned Single Bench ordering for reinstatement with full backwages do not suffer from any illegality and the said findings are based upon the reasoning assigned by the Tribunal in paragraph no.14 of the award, which reads as under:
“14. I am of the view that when the worker herein was served with the notices of change of working hours, fresh declaration ought to have been given to the management. In my view, the failure to give such declaration as required by the management would definitely constitute a misconduct of disobeyance of reasonable orders of the employer. However, it is noticed that there is nothing on record to show that the management made a request to the worker to submit a declaration in conformity with the proposed change of working hours for completing the legal formalities with the Asst. Drug Controller.”
6. The aforementioned observations of the Tribunal had not
been able to be belied by any material either before us or before the Single Bench. That was the crucial point for forming a different opinion than the one arrived at by the Tribunal. We cannot remain unmindful of the fact that the workman would be attaining the age of superannuation this year, it wouldn't thus be proper for ordering reinstatement with full backwages. We thus intend to modify the award by ordering compensation towards the full and final settlement in terms of the ratio decidendi culled out by the judgment of the Supreme Court in BSNL v. Bhurumal (2014) 7 SCC 177.
7. Considering the fact that the respondent-workman had
rendered more than eighteen(18) years of service before termination and remained out of service from 03/02/2009 and the fact that has already been paid subsistence allowance to the tune of ₹5,38,000/- (Rupees five lakhs thirty eight thousand only), we are of the view that a sum of ₹8,00,000/- (Rupees eight lakhs only) would be just and equitable compensation for the full and final settlement. Accordingly, the judgment of the learned Single Bench is modified, the appellant/management is directed to pay the aforesaid compensation to the respondent-workman, against valid receipt, within a period of one month from the date of receipt of the certified copy of the judgment.
SD/- AMIT RAWAL JUDGE SD/- C.S.SUDHA JUDGE ak