Rajan Babu T.B.Hospital Patients ... vs Savitri Devi
2009 Latest Caselaw 2312 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+            LPA No.699 OF 2008 & C.M. NO.16024 OF 2008

        RAJAN BABU T.B.HOSPITAL PATIENTS WELFARE SOCIETY REGD.
                                                   ..... Appellant
                        Through: Mr. Mukesh Gupta, Advocate.

                               Versus

        SAVITRI DEVI                                       ..... Respondent
                               Through: Mr. Rajiv Agarwal, Advocate.

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL

                                ORDER

% 28.05.2009

1. This appeal arises from the order of the learned single

judge passed in Writ Petition (Civil) No.3698 of 1993 on 10.9.2008.

2. The appellant is a voluntary organization, being a society

registered under the Societies Registration Act. The appellant Society

has been established with an objective to help and rehabilitate the

children of TB patients. It appears that prior to the formation of the

appellant Society there was no institution which would protect the

children of TB patients from the infection of the disease. Normally, in

case a TB patient was admitted to the hospital for treatment, their

children used to remain with them as most of them belonged to poor

families or the children were to beg for their meals. The object of

forming the Society was to support a crèche round the clock in which

the children of TB patients of the age group between one year to

twelve years are kept. The MCD provided space within the hospital

premises and the Rotary Club donated funds for constructing the

building. The appellant is running a crèche in this building since

1975. According to the appellant, it is purely a voluntary

organization and is run with the help of the grants in aid. The

appellant used to engage female attendants/helpers to look after

children and ordinarily a poor TB patients or ex-female TB patients

were employed as helpers.

3. The respondent was wife of a TB patient and was

engaged as a helper. The case of the appellant is that the respondent

was living in a hutment near Kingsway Camp and when the same

was demolished, she also left without giving any address to the

Society. The Society tried to trace her but she could not be contacted

and the Society was forced to have an alternative arrangement as it

cannot leave the children unattended for such a long absence of an

attendant.

4. It appears that the respondent raised an industrial

dispute and a notice was issued to the appellant Society to appear

before a Conciliation Officer to which the appellant filed a reply

stating that the services of the respondent were never terminated and

she had left the institution of her own accord. It was also stated that

the respondent was not a regular employee and was only working as

a helper in the crèche and the vacancy caused by the respondent had

to be filled in immediately. As Conciliation Officer submitted a failure

report, dispute was referred to the Labour Court under Industrial

Disputes Act in I.D. No.367 of 1986. It is the case of the appellant

that they never received any summons or notice from the Labour

Court. They came to know about the passing of the ex-parte award

by the Labour Court only when they received a notice from the

Assistant Collector for implementation of the Award dated

16.10.1987. The appellant moved an application dated 2.3.1988 for

setting aside the ex-parte award but the Labour Court rejected the

application on the ground that after making the award, the court has

become functus officio.

5. Aggrieved by the order of the Labour Court, the appellant

then preferred a writ petition under Article 226 of the Constitution of

India for setting aside the ex-parte award. By the order under

appeal, the writ petition was dismissed by the learned single judge.

6. We have heard learned counsel appearing for both the

parties. Learned senior counsel Mr. Sandeep Sethi contended that

the Industrial Disputes Act does not apply to an organization like the

appellant which is purely voluntary and where there is no organized

activity, it cannot be termed as an industry. Mr. Sethi argued that

the appellant is a voluntary organization running mainly on the

donation and the grants and as a result of the ex-parte award, if they

are made to pay the full back wages, as ordered by the Labour Court,

they will be required to shut down the crèche. He also made an offer

to the respondent counsel to pay reasonable lumpsum amount for

settlement. Learned counsel for the respondent, however, flatly

refused the offer for settlement.

7. Having regard to the facts and circumstances of the case,

we are of the opinion that the ex-parte award passed in the present

case by the Labour Court cannot be sustained. The award of the

Labour Court as well as the order of the learned single judge are set

aside. The matter be remitted back to the Labour Court to decide the

I.D. No.367 of 1986 in accordance with law. Labour Court is directed

to decide the application expeditiously and in any case on or before

31.12.2009.

8. The petition stands disposed of.

CHIEF JUSTICE

NEERAJ KISHAN KAUL, J.

MAY 28, 2009 'AA'