Manohar Singh vs New Friends Club
2008 Latest Caselaw 1034 Del

*                HIGH COURT OF DELHI AT NEW DELHI

+                         LPA No.114/2007



       MANOHAR SINGH                         ..... Appellant
                   Through: Mr.Sanjeev Joshi, Advocate

                         Versus

       NEW FRIENDS CLUB                 ..... Respondent
                    Through Mr.Rajan Sabharwal with
                    Ms.Seema Bhaduriya, Advocates

       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE DR. JUSTICE S.MURALIDHAR

     1. Whether reporters of the local papers be allowed to see
        the judgment ?
     2. To be referred to the Reporter or not ?
     3. Whether the judgment should be reported in the Digest ?


                             JUDGMENT

% 15.07.2008

1. This appeal takes an exception to the order of the learned

single Judge dated 4th October, 2006 whereby the writ petition

filed by the appellant challenging validity of the award was

dismissed.

2. The appellant was working as a Life Guard/Coach on the

swimming pool maintained by the respondent. The appellant

met with an accident and was on ESI leave for 3 months and 20

days. He reported for work on 28th August, 1998 with the

fitness certificate issued by the ESI. The appellant was

permitted to resume his duty. Thereafter the management

found that the appellant was not able to walk straight much

less being able to perform the duties of Life Guard for which

purpose he was appointed. Since the respondent could not risk

the life of its members and their families, the appellant was

asked to appear before the Head of Orthopedics Department in

the ESI Hospital, who was requested to re-examine the

appellant in view of the peculiar nature of the job of the

appellant. The appellant, instead of appearing before the

specialist for medical examination, approached the Conciliation

Officer. The contention of the appellant was that on 8th

September, 1998 he was prevented from entering the club

premises when he came to attend his duty and on inquiry he

came to know that his name had been removed from the

attendance register. A reference was finally came to be made

to the Labour Court with the following terms:

"Whether the services of Shri Manohar Singh have been terminated illegally and/or unjustifiably by the management, and if so, to what relief is he entitled and what directions are necessary in this respect ?"

3. The Labour Court noted that the workman in his cross

examination admitted that his services were never terminated.

The management witness also deposed that the services of the

workman were never terminated. He deposed that the

appellant was directed to appear before the HOD Orthopaedics,

ESI Hosapital for re-examination but he did not report for

medical examination till the end of 2003. The workman in his

cross examination also admitted that after 1998 he did not go

to ESI Hospital, Basai Darapur, Delhi and he had gone there

only in end of 2003. Under these circumstances the learned

Labour Court came to the conclusion that the services of the

respondent-workman was never terminated and he absented

himself from the duty.

4. The award of the Labour Court was under challenge

before the learned single Judge, who dismissed the writ

petition by the impugned order. The learned single Judge in

paragraph-7 of his order observed as under:

"7. The petitioner was employed by the club as life guard and swimming coach in the swimming pool of the respondent. Children and other persons, who did not know swimming, also used to come to learn swimming. The importance of the work of the petitioner was enormous. Since the petitioner was not in a position to walk properly and swim properly he could not have been able to save the lives of others. He was employed as life guard at the swimming pool. The risk was that some life may be lost in the pool due to his incapacity. For this reason, the management wanted that the petitioner should obtain certificate of fitness about the job which the petitioner was to perform. Recovering from injuries of an accident is one thing, and performing a job of a life guard is another thing. A life guard/coach is required to act swiftly and needs strong body and ability to swim and dive so that in the need of any emergency, he can save life of a drowning person. If he cannot walk properly and cannot swim properly, he cannot work as a life guard. The management could (not) be expected to put the lives of learners in danger by engaging the petitioner as a life guard. The demand made by the management that the petitioner should obtain a certificate of fitness from Head of Orthopedic Department, was not illegal, keeping in view the nature of his job. The petitioner's refusal to go to Orthopedic Department

and refusal to furnish a certificate of fitness showed his intention of abandoning the job. The petitioner, in fact, should have shown eagerness to obtain such a certificate instead of raising objections against the certificate. The cases cited by the petitioner are of no help to him. The management if had asked the petitioner not to come unless he obtained certificate of his fitness, it was within its rights to do so and that does not amount to termination or retrenchment. It could not be expected of the management to put the lives of others in danger."

5. We are in agreement with the findings recorded by the

learned single Judge. There is no infirmity in the order of the

learned Single Judge. The appeal has no merit and is

accordingly dismissed.

                                              CHIEF JUSTICE



                                              S.MURALIDHAR
JULY 15, 2008                                    (JUDGE)
'v'