V.V. Lewis vs Superintendent, Acworth Leprosy ...
2002 Latest Caselaw 150 Bom

JUDGMENT

Nishita Mhatre, J.

1. Through this writ petition, the petitioner has impugned the order of the Labour Court passed under section 33-C(2) of the Industrial Disputes Act disallowing her claim for Mess Allowance and Conveyance Allowance.

2. A few facts of the case in brief are as under :

The petitioner was appointed in the Acworth Leprosy Hospital as a Nurse in 1971. Her appointment letter stipulated that she would be paid a particular pay plus uniform allowance, special allowance, washing allowance, dearness allowance, dearness pay plus additional allowance for messing. The Acworth Leprosy Hospital (hereinafter referred to as 'the hospital'), which was an autonomous body, was taken over by the Bombay Municipal Corporation-respondent No. 2 herein, and the mess allowance which was being paid to the petitioner was discontinued w.e.f. 1-6-1987. The petitioner has informed that this allowance was discontinued since the nursing staff working in the dispensaries were not entitled to the allowance. Similarly, the uniform allowance and conveyance allowance payable to her was discontinued.

3. The petitioner, therefore, approached the Labour Court by filing an application under section 33-C(2) of the Industrial Disputes Act on 18-1-1985. She claimed an amount of Rs. 50,607.36 being the aggregate of the mess allowance, conveyance allowance and uniform allowance as well as interest payable on these counts. The respondent resisted the claim of the petitioner on the ground that the hospital was not a department of the Municipal Corporation of Greater Bombay and that since the petitioner was working in the operation theatre attached to the Out Patients Department (OPD) and not the hospital she not eligible for the messing allowance. It was contended that the messing allowance which was paid to her till 31-5-1987 was due to inadvertence and, therefore, no amount would be paid to her in future as she was attached to the dispensary and clinic and not to the hospital. The same reason was put forth for stopping conveyance allowance. The uniform allowance had already been paid to the petitioner and, therefore, the respondent-Corporation stated that the claim did not survive.

4. The evidence led before the Labour Court clearly demonstrates that the petitioner was appointed with the hospital and was working in the hospital. She deposed that all along she had been paid the allowance as she had to attend the operation theatre for plastic surgery which was performed on out-patients as well as in the OPD clinic. The witnesses for respondent No. 1 namely, the Administrative Officer of the hospital and the Deputy Chief Accountant of respondent No. 2 had merely stated that the petitioner was not entitled to the allowances as she was working in the clinic and not the hospital. The Labour Court has held that the reason given by the respondents is genuine and that the petitioner was not entitled to the allowances claimed by her as she was a Nurse working in the OPD clinic and not in the hospital.

5. The petitioner had filed a list of hospitals run by the Corporation which included the name of Acworth Leprosy Hospital. The name of this hospital does not figure in the list of Municipal general dispensaries which was also placed on record. These lists have not been disputed by the respondents. Obviously, therefore, respondent No. 2 has always treated Acworth Leprosy Hospital as a hospital and not a OPD clinic. The witnesses have categorically stated that the Board and Management of the hospital had agreed prior to the Corporation taking over the hospital to extend the same benefits to the hospital employees as were available to the Corporation employees. Accordingly the petitioner was being paid the mess allowance till 1981 when the Corporation took over the hospital. Further, the evidence of the witnesses of the respondents shows that in 1981, the Corporation took over the management and control of the hospital and that the same service conditions were continued as were prevalent prior to the take-over by the Corporation. Even after the Corporation took control of the hospital, the mess allowance and the conveyance allowance was paid to the petitioner. However, all of a sudden in 1987, the respondents decided, unilaterally, that this practice of paying the mess allowance should be withdrawn. The evidence shows that there is no separate identity for the OPD clinic of the hospital; that there are no accounts maintained nor was any notice issued by the OPD clinic itself.

6. Taking these circumstances into consideration, it is impossible to hold that the OPD clinic is not part of the hospital. The OPD clinic and operation theatre are integral parts of the hospital. The only reason given by the respondents for not paying the allowance to the petitioner is that she is a nurse, who is working in the dispensary or the OPD clinic and that she is not working in shifts, which are charged by rotation, but a general shift from 8.30 a.m. to 3.30 p.m. The outpatients department cannot be considered as a separate unit and, therefore, there is no question of treating the petitioner as an employee of that unit. The petitioner's appointment letter in unambiguous terms mentions that she is entitled to the mess allowance in the hospital and certain other allowances including the conveyance allowance. The respondents have no right to discontinue the payment of these allowances. The circular and the documents produced by the respondents before the Labour Court only show that the nursing staff of the dispensaries and clinics are not entitled to such allowances. The petitioner is employed in the hospital and therefore, must be paid these allowances.

7. As I have already held that the petitioner is an employee of the hospital itself, the question of discontinuing her allowances does not arise. Thus, the petitioner is entitled to the allowances claimed by her, namely, an amount of Rs. 17,415/- as mess allowance and Rs. 7,094/- as conveyance allowance. As the uniform allowance has already has already been paid to the petitioner, the question of its payment does not arise.

8. Rule, accordingly, made absolute in the aforestated terms.

Parties to act on an ordinary copy of this order duly authenticated by the Sheristedar of this Court.