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2008 (2) GCD 1450 (Guj)
Hon’ble Mr. Justice M.R. Shah
Muljibhai Patel Urological Hospital
Versus
Arunaben I. Desai
Special Civil Application No. 6828 of 1998—Decided on 09/05/2008
Reinstatement — Charge of negligence and carelessness — Absence of challenge to the legality or fairness of inquiry — Sustainability —Finding of.
Point in Issue :
Whether order of reinstatement with 50% back-wages by Labour Court justified and valid in the facts of the case.
Head Note :
Service & Employment — Reinstatement — Charge of negligence and carelessness — Absence of challenge to the legality or fairness of inquiry — Sustainability — Finding of — Petitioner having conducted inquiry against respondent for her negligence in her duty as nurse ordered termination of her service — It appears that Labour Court has misread the charge and not properly considered and dealt with the evidence — That apart respondent has not challenged to the legality or fairness of inquiry report — It was, therefore, not open to Labour Court to go into the findings recorded by the Inquiry Officer regarding misconduct committed by respondent while on duty — Court held that under the circumstances findings of Labour Court holding termination order illegal deserves to be quashed and set aside — During her one year and one month service tenure the respondent nurse was issued four notices for negligence in her duties, twice warning notices were issued for misbehaviour with Superior Officer twice she was suspended for misconduct and once she has tendered apology — In the facts respondent deserves no sympathy or lienency in matter of imposing punishment as well — Court as such set aside Labour Court judgment and upheld the dismissal of respondent from service.
Held :
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. [Para 8]
The Labour Court has not appreciated the fact that the respondent-nurse was serving as nurse in the Muljibhai Patel Urological hospital and any 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 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-hospital. [Para 10]
Law Laid Down :
In absence of challenge to the legality or fairness of the Inquiry report, Court should be reluctant to interfere in the finding of punishing authority.
M.R. Shah, J.—By way of this petition under Article 227 of the Constitution of India, the petitioner-hospital management has challenged the legality and validity 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-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; 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 alongwith 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.
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 Exhibit 13. The petitioner-hospital filed its written statement and denied all the statements, averments and allegations and it was further contended that the responde
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