King Edward Memorial Hospital vs Suresh D. Gaikwad
2012 Latest Caselaw 478 Bom

                                                                    WP9360_12.sxw

           IN THE HIGH COURT OF JUDICATURE AT MUMBAI
                      CIVIL APPELLATE JURISDICTION




                                                                           
                          WRIT PETITION NO.9360 OF 2012




                                                   
     King Edward Memorial Hospital                 )
     489, Rasta Peth,                              )
     Sardar Moodliar Road, Pune 11.                )        ...        Petitioner
     Vs.




                                                  
     Suresh D. Gaikwad                             )
     R/at 47/12, Sunitanagar,                      )
     Near Sagar Park, Wadgaon-Sheri,               )
     Pune 411 014                                  )        ...        Respondent




                                      
     Mr. J. P. Cama, Senior Advocate a/w. Mr. Hemant Telkar, Mr. Neel
                          
     Helekar and Mr. Atman Mehta for the Petitioner.
     Ms Gayatri Singh for the Respondent.
                         
                                      CORAM : R. G. KETKAR, J.
                                      Reserved on: 4TH DECEMBER, 2012
                                      Pronounced on:12TH DECEMBER, 2012

     JUDGMENT :

Heard Mr. Cama, learned Senior Counsel for the petitioner and Ms Singh, learned Counsel for the respondent at length. Rule. The learned Counsel for the respondent waives service. By consent of the

parties, Rule is made returnable forthwith and the Petition is taken up for final hearing.

2. By this Petition, under Articles 226 and 227 of the Constitution of

India, the petitioners, hereinafter referred to as the employer have challenged the judgment and order dated 18.08.2012 passed by the learned Member, Industrial Court, Pune (for short 'Tribunal') in Complaint (ULP) No.230 of 2008. By that order, the Tribunal allowed the complaint instituted by the respondent, hereinafter referred to as the complainant and declared that the employer is engaged in unfair labour practice under Items 3, 5 and 9 of Schedule IV of the Maharashtra

WP9360_12.sxw

Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short 'Act') and directed them to desist from committing

unfair labour practice permanently. The Tribunal also directed the employer not to change the service conditions of the complainant and

provide him the work and wages of Driver.

3. It is the case of the complainant that he had served the Indian

Army for fifteen years as a Driver. After completion of tenure of service in Army, he had enrolled his name with Soldier Service Board (for short 'Board') for the post of Driver. The employer was in the need of

employing drivers in their establishment and accordingly called for the

suitable candidates from the Board. Accordingly, the Board conveyed the names of the candidates including the name of the complainant. The

employer interviewed the complainant and selected him for the post of Driver. He was issued appointment letter dated 04.05.1994. Subsequently, he was issued confirmation letter on 05.11.1994. It is the

case of the complainant that he had never agreed either expressly or

impliedly to work on the post other than Driver. He is continuously working with the employer as a Driver since last fourteen years in different departments and places of establishment of the employer as a

Driver. In July, 2002, the employer demoted him to the post of lift operator thereby resorting to unfair labour practice. The employer also threatened to terminate his services.

4. The complainant was working on deputation at Research Centre as a driver from August 2006 till November 2008. On 28.11.2008, the employer transferred him from Research Centre to K.E.M. Hospital. Without giving any prior notice, the employer changed his designation and duties by issuing letter dated 01.12.2008. The unilateral action of the employer affected his service conditions and also caused prejudice to him. Before effecting change in service conditions, no notice under

WP9360_12.sxw

Section 9-A of the Industrial Disputes Act, 1947 (for short 'I.D.Act') was issued to him. It is the case of the complainant that the work of a driver

is of a semi-skilled nature whereas the job of a lift-man is unskilled job.

5. The claim of the complainant was resisted by the employer by filing written statement Exhibit-C2. It was denied that the employer committed any unfair labour practice. Reliance was placed upon the

appointment letter dated 04.05.1994 to contend that the complainant has to perform any duty as directed by the employer. It is the prerogative of the employer to offer him the duties irrespective of his designation. It

was further asserted that on account of sale of vehicles and reduction in

field activities, the vehicle department was reorganized on 16.07.2002. Seniority list was prepared. At that time, the complainant was sent on

deputation to the Research Centre for project while Mr. Khan was kept on legal duties at the hospital. It is the case of the employer that with a view to protecting his employment, he was re-designated as lift-operator

with effect from 01.12.2008. The action of the employer is in

accordance with the terms and conditions of the service and the employer has not changed the terms and conditions of the services thereby necessitating issuance of notice under Section 9-A of the

I.D.Act.

6. The parties led evidence before the Tribunal and on the basis of the material on record, the Tribunal allowed the complaint and issued

directions. It is against this order, the employer has instituted the present Petition.

7. In support of this Petition, Mr. Cama invited my attention to:

(i) the appointment letter dated 04.05.1994 and in particular, clause 3 dealing with duties;

(ii) the letter dated 05.11.1994 confirming the complainant as a

WP9360_12.sxw

Driver and in particular clause 2 dealing with the duties;

(iii) the notice published in Sakal on 27.06.2002 for sale of six closed

Jeeps;

     (iv)    the transfer order dated 28.11.2008;




                                                    
     (v)     a communication dated 01.12.2008;
     (vi)    the assertions made in paragraphs 6 and 7 of the written
             statement filed by the employer;




                                                   

(vii) the interim order dated 06.01.2009 passed by the Industrial Tribunal below exhibit-U2 wherein it was observed that the complainant did not make out any prima facie case of unfair

labour practices and the balance of convenience was in favour of

the employer. The Tribunal also held that considering the comparative hardship, the complainant was not entitled to interim

relief;

(viii) this Court's (Coram: V. M. Kanade, J.) order dated 25.06.2009 in Writ Petition No.4029 of 2009 confirming the interim order of the

Tribunal dated 06.01.2009;

(ix) the order dated 18.05.2011 dismissing the complainant from service;

(x) affidavit of the complainant in lieu of examination in chief and in

particular paragraphs 4, 6 and 8 of the cross-examination; and

(xi) evidence of the employer.

8. Mr. Cama submitted that as per clause 3 of the appointment letter

dated 04.05.1994 and clause 2 of the confirmation letter dated 05.11.1994, the complainant was required to attend his duties as and when required at timings in any shift, which may be nominated by the employer consistent with the requirements of the organization and that it should not be presumed that the scope of his duties is circumscribed or limited by his designation and that it should be clearly understood that the employer reserves to itself the absolute right to allot him any type of

WP9360_12.sxw

duties whatsoever, consistent with the work requirements and nature of his employment. He further submitted that in view of these clauses, the

designation is immaterial. He further submitted that letter dated 01.12.2008 does not amount to a case of either demotion or promotion

but it is a lateral movement while the other terms and conditions of his services remained unchanged including the salary. Mr. Cama strenuously submitted that the employer had sold vehicles and in fact

one of the vehicles was purchased by the complainant himself. The complainant was, therefore, aware that the employer does not have vehicles on which the drivers can be employed. Excepting the

complainant, all the other drivers were employed as lift-operators and

they accepted the said appointment. The other drivers did not object to their appointment as lift-operators. He submitted that whereas the

complainant being a driver drives a vehicles, the lift-operator drives a lift, and therefore, it does not amount to change in the nature of employment. He, therefore, submitted that the employer has not

committed any unfair labour practice.

9. He also submitted that during the pendency of the complaint, the complainant took out the application, exhibit U-2 for stay to the effect

and operation of the communication dated 01.12.2008. By order dated 06.01.2009, the Tribunal rejected the application. It was observed that there is a contract of employment between the complainant and the employer in respect of performance of such duties at all times and

places, and consequently, the allotment of duties of lift-operator to the complainant was certainly within the rights of the employer.

10. He further submitted that the complainant instituted Writ Petition No.4029 of 2009 in this Court challenging the order dated 06.01.2009 passed by the Tribunal below exhibit-U2. The said Petition was rejected on 25.06.2009. In paragraph 6 of the cross-examination, the

WP9360_12.sxw

complainant admitted that the employer had sold jeep to him. In paragraph 8, he admitted that the job of a lift-operator does not suit to

his prestige. He admitted that presently all the drivers are working as lift-operators. Mr. Cama, therefore, submitted that instead of

terminating the services of the complainant, the employer accommodated him on the post of lift-operator and therefore, has not committed any unfair labour practice. He also submitted that the

evidence led by the employer was not considered by the Tribunal. Finally, he submitted that the appointment letter and the confirmation letter amount to bilateral agreement between the parties and in terms

thereof the complainant is bound to discharge the duties. The allocation

of work is the discretion and the prerogative of the employer and no unfair labour practice is committed by the employer while allocating the

work in accordance with the needs and requirements of the establishment. In support of this submission, he relied upon the judgment of the Supreme Court in the case of Electropneumatics &

Hydraulics (I) P. Ltd. Vs. Bharatiya K.K.M., 2008 II CLR 295.

11. On the other hand Ms Singh submitted that clause 3 of the appointment letter dated 04.05.1994 and clause 2 of the confirmation

letter dated 05.11.1994 do not permit the employer to change the designation. She submitted that proper reading of these Clauses would show that the employer cannot change the designation as also the

employer has right to allot the complainant any type of duties whatsoever consistent with the work requirements and nature of his employment. This however does not enable the employer to appoint him to the post of lift-operator. She submitted that as per Schedule of the hospital in the Minimum Wages Act, the post of driver lies in the semi-skilled class while the post of the lift-man or the lift-operator is not mentioned in the said Schedule. She further submitted that the

WP9360_12.sxw

employer is maintaining the seniority list and this fact is borne out from the written statement of the employer at Exh.U-20 which was filed in

Complaint (ULP) No.370 of 2002 by Shri Arun Ranpise. She also invited my attention to paragraph 14 of the cross-examination of the

employer's witness Mr. Shinde where he was confronted with the said written statement. In paragraph 16, the said witness admitted that the complainant was appointed on 06.05.1994 and the date of joining of Mr.

Khan was 03.05.1995. He further admitted that the seniority list was not followed when the designation of the complainant was changed on 01.12.2008.

12.

Ms Singh further submitted that the duties of the lift-man and driver are different. The working hours are also different. The grade of

the driver and lift-operator is also not same. She submitted that the employer unilaterally changed conditions of service without issuing notice under Section 9-A of the I.D.Act. In support of this submission

she relied upon the judgment of this Court in the case of Shakti Electro

Mechanical Vs. F. N. Lala dated 30.08.1972 as also the judgment of Andhra Pradesh High Court in the case of G. Maruthaiah Vs. A.P.S.E.B., 1986 LAB. I.C.1161.

13. I have considered the rival submissions made by the learned Counsel appearing for the parties. I have also perused the material on

record. Mr. Cama submitted that as per clause 3 of the appointment letter dated 04.05.1994 and clause 2 of the confirmation letter dated 05.11.1994, the complainant was required to attend his duties as and when required at timings in any shift, which may be nominated by the employer consistent with the requirements of the organization and that it should not be presumed that the scope of his duties is circumscribed or limited by his designation and that it should be clearly understood that

WP9360_12.sxw

the employer reserves to itself the absolute right to allot him any type of duties whatsoever, consistent with the work requirements and nature of

his employment. He further submitted that in view of these clauses, the designation is immaterial. He further submitted that letter dated

01.12.2008 does not amount to a case of either demotion or promotion but it is a lateral movement while the other terms and conditions of his services remained unchanged including the salary. Mr. Cama

strenuously submitted that the employer had sold vehicles and in fact one of the vehicles was purchased by the complainant himself. The complainant was, therefore, aware that the employer does not have

vehicles on which the drivers can be employed.

ig Excepting the complainant, all the other drivers were employed as lift-operators and they accepted the said appointment. The other drivers did not object to

their appointment as lift-operators. He submitted that whereas the complainant being a driver drives a vehicles, the lift-operator drives a lift, and therefore, it does not amount to change in the nature of

employment. He, therefore, submitted that the employer has not

committed any unfair labour practice.

14. In order to appreciate the submissions of Mr. Cama it would be

useful to reproduce clause 3 of the appointment letter dated 04.05.1994 and clause 2 of the confirmation letter dated 05.11.1994:

3. DUTIES: You will be required to attend your duties as and when required at timings in any shift which may be nominated by us

consistent with the requirements of the Organization. It should not be presumed that the scope of your duties is circumscribed or limited by your designation and it should be clearly understood that we reserve to ourselves the absolute right to allot you any type of duties whatsoever, consistent with the work requirements and nature of your employment.

2. DUTIES: You will perform all such duties at all such time and places as you may be called upon to do so by your superiors from time to time. This is very essential considering the nature of duties / work entrusted to you and the services rendered by this Organization. Please note that you may have to work in shifts and

WP9360_12.sxw

your weekly offs may be staggered. In the event of an emergency and in the interest of exigencies of services, if you are called upon to perform duties after normal working hours, you shall do so."

15. Perusal of the above clauses would show that in the first place,

the employer cannot change the designation itself. Secondly, the employer has the absolute right to allot complainant any type of duties whatsoever consistent with the work requirements and nature of the

complainant's employment. Thus, the employer under the guise of issuing letter dated 01.12.2008 cannot change the nature of duties of the complainant all together. In the present case, the complainant was

employed as a driver, and by letter dated 01.12.2008, the complainant

was appointed as a lift-operator. Merely because the other drivers did not object on being appointed as lift operators, it does not mean that the

employer was under no obligation to give notice of change under Section 9-A of the I.D. Act. In my opinion, the letter dated 01.12.2008 is in breach of Section 9-A read with Item 7 of the Fourth Schedule. I,

therefore, find substance in the submission of Ms Singh that proper

reading of these clauses would show that the employer cannot change the designation. Though the employer has right to allot the complainant any type of duties, it has to be consistent with the work requirements

and nature of his employment.

16. It is also material to note that as per Schedule of the hospital in

the Minimum Wages Act, the post of driver lies in the semi-skilled class while the post of the lift-man or the lift-operator is not mentioned in the said Schedule. From the material on record, it is also evident that the employer is maintaining the seniority list and the employer's witness admitted in paragraph 16 of the cross-examination that the complainant was appointed on 06.05.1994 and the date of joining of Mr. Khan was 03.05.1995. He further admitted that the seniority list was not followed when the designation of the complainant was changed on 01.12.2008. I,

WP9360_12.sxw

therefore, do not find any substance in the submissions of Mr. Cama.

17. Mr. Cama relied upon the judgment of this Court in the case of Electropneumatics & Hydraulics (I) P. Ltd. (supra) to contend that

clause 3 of the appointment letter and 2 of the confirmation letter amount to bilateral agreement between the parties and the allocation of work is discretion and prerogative of the employer. In that case, the

Industrial Court declined to grant interim relief and rejected the application on 14.01.2008. On the same day, however, the Industrial Court directed the employer therein to provide the same work to five

workmen. The Industrial Court came to the conclusion that there was

nothing on record to show that the appointment of the aforesaid workman was as a sweeper and since his appointment, he was

performing the job of cleaning toilets, bathrooms and the shop floor. In that context, this Court observed that the Industrial Court ignored the applicable clauses of a binding settlement and passed order in variance

with the earlier order dated 14.01.2008. In the present case, after a full-

fledged trial, the Tribunal has recorded a finding that the employer has committed unfair labour practice under Items 3 and 5 of Schedule IV of the Act. I am, therefore, of the opinion that the reliance placed by Mr.

Cama does not advance the employer's case.

18. Mr. Cama also relied upon the order dated 25.06.2009 rejecting

Writ Petition No.4029 of 2009 that was filed challenging the order dated 06.01.2009 passed by the Tribunal below Exhibit U-2. Mr. Cama fairly stated that the interim order will not bind the Tribunal while disposing of the complaint.

19. The Tribunal after appreciating the evidence on record has allowed the complaint instituted by the complainant. The employer has

WP9360_12.sxw

not shown that the findings recorded by the Tribunal are perverse being based on no evidence or that on the basis of evidence on record, no

reasonable person could have come to that conclusion. Merely because, another view is possible on the basis of evidence, this Court will not

exercise its jurisdiction under Articles 226 and 227 of the Constitution of India. In view thereof, I do not find that the Tribunal committed any error in passing the impugned order. No ground is made out for taking a

different view in the matter.

20. In the result, the Petition fails and the same is dismissed. Rule is

discharged. In the circumstances of the case, there shall be no order as

to costs.

21. At this stage, learned Counsel for the petitioner orally applies for stay of this order for the period of four weeks from today. Ms Singh does not seriously oppose this prayer. Hence, the operation of this order

shall remain stayed for the period of four weeks from today.

(R. G. KETKAR, J.)