ORDER
Subhash B. Adi, J.
1. An award dated 29th March, 2006 in Reference No. 122 of 1998 is called in question.
2. Seven workmen sought for reference of a dispute on the ground that, they were illegally dismissed from service. An enquiry was held against 7 workmen inter alia, on the charge that they had gone on illegal and unjustified strike on 16-10-1995 without giving any notice and had obstructed the loyal employees, patients and their at tenders to get into the hospital and had threatened the employees with dire consequence and because of the strike and threats, the work of the hospital suffered considerably and the patients were put to lot of hardship.
3. On the basis of the evidence led by parties, the Enquiry Officer submitted a detailed report, holding that the charges alleged against the 7 workmen are proved. The Disciplinary Authority considering the findings and also the explanation, passed an order of dismissal, against which a reference sought.
4. Before the Reference Court, the Union filed a memo, conceding the fairness of the enquiry. On the question of victimisation, unfair labour practice and perverse finding, no evidence was led. Before the Enquiry Officer, the Management had led the evidence and had also produced documents marked as Exs. M. 1 to M. 97 and the said evidence was considered by the Labour Court. The Labour Court found that the strike was illegal and unjustified. However, on the question of proportionality of the punishment, the Labour Court found that the strike has not caused any damage to the property or there was any violence and further found that the order of dismissal is too harsh on the workmen and modified the punishment by denying two annual increments and directed the petitioner-Management to reinstate the workmen without back wages.
5. Sri Somashekar, learned Counsel appearing for the petitioner-Management submitted that, the Union had not given notice of the proposed strike, all of a sudden, the members of the Union went on strike on 16th, 17th and 18th October, 1995, causing irreparable hardship to the hospital authorities. In this regard, he further submitted that, before the Enquiry Officer, the Management adduced the evidence and other workmen were also examined, who have admitted that, some of them were prevented from reporting to work and also have admitted that, there was threat by few of the workmen, who were leading the strike. Relying on the findings of the Enquiry Officer and also the findings of the Labour Court, he submitted that, when the strike is found to be illegal or unjustified and which has caused irreparable hardship to the hospital, where the ailing patients are treated, the Labour Court was not justified in modifying the punishment. He also submitted that the exercise of power under Section 11A of the Industrial Disputes Act, 1947 by the Labour Court in modifying the punishment is not justified.
6. In this regard, he relied on a judgment in the matter of Verma L.K. v. H.M.T. Limited and Anr. : (2006)ILLJ1074SC and referring to para 24 of the said judgment, he submitted that the Apex Court has accepted the view of the earlier judgment in the matter of Hombe Gowda Educational Trust and Anr. v. State of Karnataka and Ors. : (2006)ILLJ1004SC . He further submitted that, indiscipline in an educational institution should not be tolerated. Similarly, he submitted that, any indiscipline in the hospital also cannot be tolerated. In this regard, he submitted that the Apex Court taking into consideration the indiscipline by the workmen in the workplace particularly in the hospitals and educational institutions, has observed that:
29. This Court has come a long way from its earlier view points. The recent trend in the decisions of this Court seek to strike a balance between the earlier approach of the industrial relation wherein only the interest of the workmen was sought to be protected with the avowed object of fast industrial growth of the country. In several decisions of this Court it has been noticed that how discipline at the workplaces/industrial undertaking received a set back. In view of the change in economic policy of the country, it may not now be proper to allow the employees to break the discipline with impunity. Our country is governed by rule of law. All actions, therefore, must be taken in accordance with law. Law declared by this Court in terms of Article 141 of the Constitution of India, as noticed in the decisions noticed supra, categorically demonstrates that the Tribunal would not normally interfere with the quantum of punishment imposed by the employers unless an appropriate case is made out therefore. The Tribunal being inferior to that of this Court was bound to follow the decisions of this Court which are applicable to the fact of the present case in question. The Tribunal can neither ignore the ratio laid down by this Court nor refuse to follow the same.
This observation was made in the case of Hombe Gowda Educational Trust. He also relied on a judgment of the Bombay High Court in the matter of Breach Candy Hospital and Research Centre v. Babulal B. Pardeshi and Anr. 2001 LLR 1171 (Bom.) : 2002-IV-LLJ (Supp.) 1011 (Bom.) and submitted that, Hospitals are amongst those areas of human endeavour where there is a pressing need for the maintenance of discipline by the collective body of employees upon whose behaviour and conduct, the safety, health and welfare of the patients must depend. Hospitals are institutions to which persons in distress are required to visit often at the cost of grave hardship, cost and inconvenience. Consequently, acts of misconduct invoking institutions such as hospitals can legitimately be looked upon with a sense of strictness and disfavour. A case of assault or behaviour that is subversive of discipline in a hospital does not stand on the same footing as an occasional or isolated instance of a breach of discipline on the shop floor of a factory. Relying on this judgment, he submitted that the hospital stands on a different footing and they are class by themselves. He also submitted that the Delhi High Court in a judgment in the matter of Court on its Own Motion v. All India Institute of Medical Sciences 2002 LLR 705 (Del.), has held that, dharna, demonstration or gherao, ordinarily employees have the right to agitate their grievances by way of peaceful action. However, they should not be permitted in an institution like AIIMS in view of the special circumstances and particularly the sensitive nature of a hospital requiring uninterrupted and smooth functioning of its spheres and directed for observance of code of conduct enumerated in para 6 of the said judgment. In this regard, he relied on another judgment in the matter of Bharatiya Arogya Nidhi Sheth Kantilal C. Parikh General Hospital v. Bombay Labour Union and Anr. 2001 LLR 587 (Bom.) : 2001-II-LLJ-292 (Bom) and referring to the said judgment, he further submitted that, a strike in a hospital is to be treated entirely different from a strike in a factory, a strike in a public utility service such as public transport also to be treated differently as the hardship caused to the public at large is tremendous. The employees in the hospital as well as in any public utility services cannot resort to the weapons of strike lightly. There has to be a very serious cause for use of such extreme weapon of strike. A strike in any factory would cause loss of production which can be compensated but a strike in a hospital might cause loss of life of an innocent patient who might be an only bread winner in a family which would be left destitute and the children who would compensate for such a loss if it were to result from the irresponsible action of a strike legal and even justified. Relying on these judgments, learned Counsel submitted that, though Section 22 of the Industrial Disputes Act is not applicable to the hospitals, but the hospital cannot be treated on par with the industry or a factory. He further submitted that, going on strike in hospital would not only cause damage to the hospital, but it causes great threat to the life of innocent patients, who are required to be attended constantly.
7. Sri Anantharam, learned Counsel appearing for the Union submitted that, the Union went on strike on the ground that, two of the Office-bearers of the Union were suspended from service without any reason, the strike was peaceful and it had not hampered the functioning of the hospital. He submitted that the Labour Court had taken into consideration this aspect and found that the strike has neither resulted in damage to the properties nor has caused any inconvenience to the patients. He further submitted that the strike was on 16th, 17th and 18th October, 1995, 17th was the holiday and 18th was the working day and in all these three days, they were on strike, but it did not hamper the functioning of the hospital and there is no complaint either by the patients or by any one regarding the insufficiency of the facilities, insufficiency of the attendance by the hospital or insufficiency of the care in the hospital on account of strike. He submitted that the strike cannot be treated as illegal strike as it does not violate the provisions of Section 22 of the I.D. Act. He referred to Section 22 of the Act and submitted that, it is only in case of public utility service, if the strike is held without notice, the strike can be treated as illegal, but the hospitals are not covered under the provisions of Section 22 or Section 23 of the I.D. Act. Relying on those provisions, he submitted that, if the strike is not illegal and if the strike is justified for legitimate demands made on behalf of the workmen, the punishment of dismissal is totally disproportionate to the gravity of the charge alleged against the workmen. He further submitted that, according to the Management, there were about 70 persons in the strike and it has also come on record that, all the 70 members participated in the strike were issued with memo. However, only against 7 members, enquiry is initiated and they have been victimised. In this regard, he referred to the memo issued to the similarly placed workmen, against whom the enquiry is not initiated. He submitted that the nature of the charge alleged against the workmen participated in the strike is one and the same. As regards to the judgments referred to by the learned Counsel for the Management, Sri Anantharam submitted that, in the strike where there is violative activities by the members of the Union and has resulted in violence or disturbance, in such circumstances, the Courts have held that the punishment is not disproportionate. He relied on the findings of the Labour Court and submitted that, in this case there is no such finding as to the causing of disturbance to the functioning of the hospital or any damage to the property, the strike was peaceful and it was orderly. In such circumstances, taking into consideration these circumstances, the Labour Court has modified the punishment and has imposed the punishment, which is sufficient to the charge levelled against the workmen.
8. It is not in dispute that, there was a strike on 16th, 17th and 18th October, 1995 in the hospital and it is also not in dispute that the said strike was all of a sudden. It is alleged that the strike was due to the suspension of two of the office-bearers of the Union. It is also not in dispute that the enquiry is held as fair and proper and there is no additional evidence led by any of the parties before the Labour Court. The only evidence available on record is the evidence produced before the Enquiry Officer. Before the Enquiry Officer, several witnesses were examined, amongst those witnesses, one of the employees namely Gowramma. Gowramma in her evidence has stated that, there was BTS strike and she along with two employees came in an auto and when she was walking towards the hospital, the striking employees approached them and prevented them from reporting to duty by stating that, they are on strike and thereby they wanted them to take part in the strike. She also gives the names of the persons, who forced them to join the strike. In her evidence she also states that, though she had no intention to participate in the strike, yet she participated under compulsion. One Savithri Mahadevappa was also examined before the Enquiry Officer. She stated that, she came to punch the card at the security to report to work, she was informed by the security that, many employees, who work under her control, are absent as they are on strike along with other employees. It is stated that she could manage with the night shift employees. She also stated that, many of the employees came and reported to her, about the obstruction and prevention made to them and compelling them not to report to work, but to participate in their strike. Similarly one Raksha is also examined. She also states that she could not report to work in time. She has narrated the incident dated 16-10-1995 and stated that, when she was in her father-in-law's place at 9.30 p.m., she was threatened with dire consequence, if she attends to the duty. These witnesses were cross-examined by the Union and there are other witnesses, who have also spoken about the strike and the involvement.
9. No doubt, it has come in the evidence that, about 60 to 70 persons did participate in the strike and enquiry was held only against 7 persons. In this regard, the charge alleged against these workmen and the charge alleged against other workmen appears to be slightly different. The charge alleged against other workmen is, as regard to, not reporting to the duty and attending the strike whereas, insofar as 7 employees are concerned, the allegation against them is specific that, they obstructed the loyal employees, patients and their at tenders to go into the hospital and threatening other employees with dire consequence.
10. Strike in the hospital cannot be appreciated and will not be in the interest of the hospital or the interest of any person. Hospital is meant for treatment of ailing patients, who are required to be attended continuously and there would be some exceptions of very serious ailment where immediate attendance is required. Even the services of smallest workman in the hospital becomes essential, the ailing patient cannot be left ailing and unattended. The hospital beds are meant for proper care of the patients. Even whether there is a strike or not, the delay in attending the patient may result in loss of life. Hospitals are sensitive places, which require a special discipline to maintain. It is well-settled law that, strike or lock-out are the last resort in the hands of the employees or employers and it has to be used very sparingly that too, in emergency, not on every occasion. When there are other remedies for adjudication of the grievances of the employers of the employees, going on strike or declaring lock-out is not in the interest of industrial peace or industrial discipline. Though Section 22 does not refer to the hospital, nevertheless, strike in the hospital cannot be compared with any strike in the industry or factory. Desertion of the patients by striking employees may result in fatal and it may deepen the agony and injury of the patients. As such, any institutions like hospital or educational institutions or public utility services are concerned, they have to be looked into different angle and they cannot be compared with the strikes in the factories. Even any strike in the factories cannot be appreciated and they should be used only as a last resort. The industrial discipline or industrial peace is a paramount consideration for both the employer and employee. The Apex Court in the similar circumstances in the matter of Verma L.K. has reiterated the proposition of law laid down in Hombe Gowda Educational Trust's case. Indiscipline in the educational institutions should not be tolerated. When the indiscipline in the educational institutions cannot be tolerated, similarly, indiscipline in the hospitals also cannot be tolerated. In this case, no additional evidence or any further evidence is led by the Union before the Labour Court except the one before the Enquiry Officer. The Enquiry Officer has submitted a detailed report and before the Enquiry Officer, it is not only the Management led the evidence, but it also led the evidence of the employees, who were forced to join the strike. The employees referred above have stated that, they were intended to work, but they were prevented, they were compelled to join the strike. If the leaders, who are on strike, compelled other employees or prevent them from attending to duty, it is not only indiscipline, but it causes harm and also inconvenience to the hospital. Just because no untoward incident had taken place or is reported, is not a ground to hold that the strike is justified. The Labour Court has rightly held that the strike is not justified. Now the question is, whether the punishment is proportionate or not?
11. The strike is for a period of three days i.e., 16th, 17th and 18th October, 1995. Though the argument was advanced that, 17th October, 1995 was a holiday, as far as hospitals are concerned, there cannot be any holiday for the hospitals. The employees, however, were on strike in the hospital itself caused disturbance to the patients, most sensitive patients, who are under treatment, their health may get upset because of the disturbance. In this case, there is clear evidence that, these striking employees were shouting standing outside the hospital and all of the witnesses have consistently stated that they were all shouting. If there is no permission by the hospital authorities and all of a sudden, if the employees go on a strike, it cannot be tolerated, more so in the hospital, where they have no notice and suddenly the hospital authorities cannot arrange the things and there cannot be any anticipation of any pain, who would reach in emergency. In such circumstances, as observed by the Apex Court and Bombay High Court, the hospitals cannot be treated on par with the factories and indiscipline in the hospital cannot be equally tolerated.
12. The Labour Court having found that the strike is unjustified and having found that the charge is proved, while exercising power under Section 11-A of the I.D. Act, it should have considered the gravity of the charge. However, just because there was no such untoward incident happened in the hospital, the Labour Court has held that the dismissal is disproportionate. In my opinion, the exercise of discretionary power under Section 11-A of the Act is not justifiable.
Insofar as contention that, other employees were not suspended, the memo produced by the learned Counsel for the respondent clearly shows that they participated in the strike. No doubt, it clearly shows that they participated in the strike but the allegation against 7 workmen is, not only went on strike, but they induced other employees and forced them to join the strike and even they threatened the other employees. If that charge is proved against these 7 employees, they cannot be treated on par with the other employees. In such circumstances, I find that the award of the Labour Court in modifying the punishment is not justified.
13. Accordingly, the writ petition is allowed. The award dated 29th March, 2006 in Reference No. 122 of 1998 is quashed.