Govt. Of Nct Of Delhi vs Rita Luthra & Ors
2010 Latest Caselaw 1815 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P.(C) 191/1998

%                                                Date of decision: 7th April, 2010

GOVT. OF NCT OF DELHI                              ..... Petitioner
                   Through: Ms. Latika Chaudhary, Advocate


                                      Versus

RITA LUTHRA & ORS.                                        ..... Respondents
                             Through: Mr. Anuj Aggarwal & Ms. Swarnima
                                      Aggarwal, Advocates

CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.      Whether reporters of Local papers may
        be allowed to see the judgment? Yes

2.      To be referred to the reporter or not?     Yes

3.      Whether the judgment should be reported
        in the Digest? Yes

RAJIV SAHAI ENDLAW, J.

1. The petitioner Government of NCT of Delhi in this writ petition impugns

the order dated 19th December, 1996 of the Labour Court on an application by the

respondents 1 to 38 and three others under Section 33 C (2) of the I.D. Act. The

respondents at the time of filing the application under Section 33 C (2) were

working as Auxiliary Nurse or Mid Wives with the dispensaries / hospitals of the

petitioner. It was their case that they were entitled to recover from the petitioner

employer nursing allowance, uniform allowance and washing allowance as per the

orders of the Government of India from time to time applicable to them. The

petitioner contested the said application pleading that the respondents were not

entitled to uniform allowance and washing allowance on the ground that they were

not wearing any specified uniform and the said allowance were not admissible to

them. As regard the nursing allowance, the plea of the petitioner was that the said

allowance was permissible to certain categories of employees and not to all

workmen. The Labour Court however held that it was admitted in the reply of the

petitioner that the three other applicants besides the 38 respondents herein were

entitled to the nursing allowances.

2. The Labour Court disposed of the application under Section 33C(2) on the

basis of admissions of both the parties. It was held that the uniform allowance and

washing allowance was applicable only to those nursing personnel who were

required to wear uniform in accordance with the standing orders or instructions of

the government; the respondents failed to show any standing order or instruction

vide which they were required to wear uniform. It was thus held that they were

not entitled to uniform or washing allowances. It was further held that it was an

admitted fact that the respondents work as nursing personnel and as per

government instructions of 11th February, 1987, with effect from 1st October,

1986 the respondents were entitled to nursing allowances at Rs.150/- per month.

The Labour Court accordingly computed the entitlement of each of the 38

respondents herein and the other three applicants to the nursing allowances.

3. Aggrieved therefrom the present writ petition was preferred. This Court

vide ex parte order dated 14th January, 1998 stayed the implementation of the

order. However, subsequently, the petitioner was directed to deposit a sum of

Rs.3,00,000/- in this Court and which was ordered to be distributed to the

respondents. On enquiry, the counsel for the petitioner states that in terms of the

order impugned in this petition a sum of over Rs.5,00,000/- was due to the

respondents and this Court as a condition for stay of the order had directed

disbursement of Rs.3,00,000/- only to the respondents. The balance amount

remains to be paid. It is also informed that the order in this petition will also have

a bearing on the payment of nursing allowance to the respondents for subsequent

period.

4. It appears that even though before the Labour Court, the entitlement of the

other three applicants besides the 38 respondents herein was not disputed but

taking advantage of the said order in these proceedings payment was not made to

them also. They applied to this Court and the petitioner agreed to make payments

to them. The counsel for the petitioner today states that the payments have been

duly made to the other three applicants before the Labour court and who are not

respondents herein.

5. The claim of the respondents to the nursing allowance is on the basis of the

order dated 11th February, 1987 of the Ministry of Health & Family Welfare and

the relevant portion whereof is as under:-

"Sub: GRANT OF NURSING ALLOWANCE TO THE NURSING PERSONNEL.

Sir,

The question of giving an appropriate allowance to the nursing staff in view of their multifarious duties and responsibilities has been engaging the attention of the Government for some time. After careful consideration the President is pleased to sanction a Nursing Allowance @ Rs.150/- per month to the nursing personnel of all categories at all levels, working in Central Government Hospitals / Institutions /

Hospitals run by the Delhi Administration including Municipal Corporation of Delhi and New Delhi Municipal Committee and centrally funded autonomous bodies like, All India Institute of Medical Sciences, New Delhi, Post Graduate Institute of Medical Education & Research, Chandigarh etc.

2. These orders will take effect from 1st October, 1986".

6. The contention of the counsel for the petitioner is that in a proceeding

under Section 33C(2) of the Act, upon the entitlement of the respondents to the

nursing allowance being disputed by the petitioner, the Labour Court had no

jurisdiction to adjudicate the entitlement of the respondents and thereafter grant

the relief to the respondents. Reliance is placed on D. Krishnan Vs. Special

Officer, Vellore Cooperative Sugar Mill (2008) 7 SCC 22 laying down that

proceedings under Section 33C(2) are in the nature of execution proceedings and

presuppose existence of an adjudication of determination of right which has to be

enforced; where there has been no adjudication of a right, such right cannot be

adjudicated in a proceeding under Section 33C(2) and if the Labour Court does so

it is clearly beyond its jurisdiction. Reliance is also placed on Municipal

Corporation of Delhi Vs. Ajudhiya WP(C) No.1588/1999 decided by a Single

Judge of this Court on 11th October, 2006 to the same effect. Post hearing, a

synopsis of submissions is filed wherein reference is also made to Union of India

Vs. Babu Lal 1997 (41) DRJ 106 and Union of India Vs. O.P. Singh 39 (1989)

DLT 538.

7. Per contra, the counsel for the respondents relies on a Constitution Bench

judgment in The Central Bank of India Ltd. Vs. P.S. Rajagopalan AIR 1964 SC

743. It was held therein that on a fair and reasonable consideration of

Section 33C(2), it is clear that if a workman's right to receive the benefit is

disputed, that may have to be determined by the Labour Court. It was further held

that before proceeding to compute the benefit in terms of money the Labour Court

inevitably has to deal with the question as to whether the workman has a right to

receive that benefit; if the said right is disputed, the Labour Court must deal with

that question and decide whether the workman has the right to receive the benefit

or not. It was further held that notwithstanding Section 36A in the I.D. Act

providing for reference to the Labour Court for interpretation of an award or a

settlement agreement, the Labour Court under Section 33C(2) also can interpret

the settlement agreement / award. Reference is also made to Jeet Lal Sharma v.

Presiding Officer, Labour Court 84 (2000) DLT 706 where a Single Judge of

this Court held that the Labour Court in exercise of jurisdiction under Section

33C(2) has the jurisdiction to determine the question, whether the right exists or

not and if the existence of right is established, to then proceed to compute the

benefit flowing therefrom. The counsel for the petitioner in the synopsis of

submissions has contended that the Supreme Court in The Central Bank of India

Ltd. (supra) ultimately remanded the matter for decision after recording evidence.

That is however immaterial; all that it indicates is that in a Section 33C(2)

proceeding, if necessary to determine entitlement, evidence can be taken.

8. Perusal of the order impugned in this petition would show that the Labour

Court has proceeded on the admissions of the petitioner of the right of the

respondents to the nursing allowance. I have enquired from the counsel for the

petitioner whether it is the case of the petitioner in the memorandum of petition

that it had not made any such admission. The answer is in the negative. The

counsel fairly states that the challenge to the order is solely on the premise of the

Labour Court having no right to determine the right of the respondents to nursing

allowance, once disputed by the petitioner.

9. The order dated 11th February, 1987 of the Government of India qua

nursing allowance is in the nature of a settlement agreement or an award. It

records that the question of grant of such allowances had been engaging the

attention of the government for some time. The same normally happens when a

demand is made by the workmen and considered by the employer. In the present

case the petitioner employer in issuance of the order dated 11th February, 1987

appears to have acceded to the demand for nursing allowance. De-hors the

admission recorded in the impugned order, I find that even if the said order was to

be interpreted by the Labour Court, the same was permissible under Section

33C(2) of the Act. Though in view of the Constitution Bench Judgment (supra)

need is not felt to deal with the judgments cited by the counsel for the petitioner

but I may notice that the facts in both the said judgments are such as not calling

for interpretation of any government order or settlement agreement or award but

requiring adjudication of disputed factual claims. In D. Krishnan (supra), the

claim was on the basis of equal pay for equal work. In Ajudhiya (supra) the claim

was of the daily rated workers for pay scales as the regular workers. It was in such

facts that the courts held that the adjudication of such claims could not be done

under Section 33C(2). However, the present case is entirely different. The

respondents claiming to be the beneficiaries under the order dated 11th February,

1987 sought computation of the nursing allowance to which they had become

entitled there under. Even if it was to be held that it was the case of the petitioner

that the said order did not apply to the respondents, the Labour Court in exercise

of jurisdiction under Section 33C(2) was fully entitled to interpret the said order

and determine whether the same applied to the respondents or not.

10. To satisfy the judicial conscience, the counsel for the petitioner was

permitted to argue and show as to how the respondents are not entitled to the

allowance under the said order.

11. The counsel for the petitioner has urged that the order grants nursing

allowance only to the nursing personnel working in the Central Government

hospitals, institutions etc. It is contended that the respondents work in dispensaries

though as Mid Wives / nurses and are thus not covered by the said order. It is

further urged that the work of nurses/mid wives in dispensaries is entirely different

from work of nurses in the hospital; the nurses in the dispensaries are required to

only administer injection etc. and are not required to care for the patient as in the

hospital.

12. I am unable to accept the aforesaid contention. The subject of the order is

"grant of nursing allowance to the nursing personnel". It does not make any

distinction between nursing personnel in the hospital and in the dispensaries.

Similarly the body of the order talks of the nursing staff in general and not of

nursing staff working in hospitals only. Again reference is made to the "nursing

personnel of all categories at all levels." The contention of the counsel for the

petitioner that the reference is to nursing personnel of all levels working in

hospitals only is not acceptable. The reference is not only to hospitals but also to

institutions. Hospital is defined in Shorter Oxford English Dictionary as an

institution or establishment providing medical or surgical treatment for the ill or

wounded or sick or aged or infirm persons. This definition will cover even the

dispensaries in which the respondents are employed. It appears that while issuing

the aforesaid order there was no decision to restrict the benefit thereof to nursing

personnel in hospitals where patients may spend the night also or that there was

any intent to exclude dispensaries where patients generally do not spend the night.

Moreover, there is no hard and fast rule. Several dispensaries also have facilities

for admitting a few patients overnight. In fact a visit to the official website of the

Ministry of Health & Family Welfare dealing with Central Government Health

Scheme shows that dispensaries are described as including domiciliary care. The

very fact that nursing personnel are employed in the dispensaries also shows the

need for nursing care therein also. I thus find that even otherwise no error has

been committed in allowing the said allowance to the respondents also.

13. The work of a nurse especially in government hospitals/dispensaries is

extremely arduous in nature. Nursing is a noble profession. It is not merely an

occupation to earn a living but a benevolent service. The nursing of the sick, said

Florence Nightingale is a vocation as well as a profession. Nurses live in the

midst of distressing atmosphere and the Tribunals / Courts cannot shut their minds

to the said reality while dealing with the issues relating to the nursing profession.

14. I therefore do not feel the need for any further enquiry into the differences

between the nurses in hospitals and nurses in dispensaries. Neither any pleadings

have been made in this behalf nor any material placed before this Court. The bare

statement that the order dated 11th February, 1987 (supra) applies to nurses in

hospitals only and not to nurses in dispensaries is found to be without any merit

and fallacious.

15. There is another aspect of the matter. The petitioner has already been made

to pay a substantial amount. While allowing such payment there was no direction

that the said amounts shall have to be refunded by the respondents. Considering

the strata of the social and economic ladder occupied by the respondents, it would

be unjust to direct them to refund the said amounts. A large number of respondents

may have already retired from their jobs by now. For this reason also, the present

is not a fit case for exercise of discretionary jurisdiction.

16. The petition therefore fails and is dismissed with the direction to the

petitioner to, within six weeks hereof, pay the balance amount due in terms of the

order of the Labour Court to the respondents. No order as to costs.

RAJIV SAHAI ENDLAW, J

APRIL 07, 2010 gsr