Moolchand Khairati Ram Hospital & ... vs Vijender Singh & Ors.
2011 Latest Caselaw 747 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                WP(C) No.11851/05 & WP(C) No.11854/05


%                                Date of Reserve :       13th January, 2011
                                 Date of Pronouncement: 08th February,2011
1. WP(C) No.11851/05

MOOLCHAND KHAIRATI RAM HOSPITAL & AYURVEDIC RESEARCH
INSTITUTE                                    ...... Petitioner
                   Through:  Mr. M.Y.Khan, Advocate

                             VERSUS

VIJENDER SINGH & ORS.                                ...... Respondents
                     Through:            Mr. Atul T.N., Advocate


2. WP(C) No.11854/05

MOOLCHAND KHAIRATI RAM HOSPITAL & AYURVEDIC RESEARCH
INSTITUTE                                    ...... Petitioner
                   Through:  Mr. M.Y.Khan, Advocate

                             VERSUS

VIJENDER SINGH & ORS.                                ...... Respondents
                     Through:            Mr. Atul T.N., Advocate

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

         1. Whether the Reporters of local papers may be
            allowed to see the judgment?


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

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


VALMIKI J. MEHTA, J.

1. Two Writ Petitions between the same parties are being

disposed of by this common judgment. Writ Petition No.11851/2005 is

filed by the Management challenging the impugned order dated 1.12.2004

by which the complaint under Section 33A of the Industrial Disputes Act,

1947 (the Act) filed by the respondent no.1/workman was allowed holding

the termination of the workman to be illegal as the workman was found to

be a protected workman. By the Writ Petition No.11854/2005 challenge is

laid to the impugned order dated 24.2.2005 whereby the application of

the Management seeking approval of the action of the dismissal of the

workman under Section 33(2)(b) of the Act was dismissed. The impugned

order dated 1.12.2004 is the detailed order and the impugned order dated

24.2.2005 is a short order which only dismisses the application of the

Management on the ground that the workman's complaint under Section

33A of the Act was allowed.

2. The only real issue which is called for determination in the

present case is as to whether the workman becomes a protected workman

as per Section 33 read with Rule 61 of the Rules under the Act if within a

period of 15 days of intimation having been given by the Union there is no

response by the Management, and consequently, the workman

automatically gets the status of a protected workman. Putting it

differently, is the workman not a protected workman unless an order is

passed by an appropriate authority under Rule 61(4) although the

Management fails to respond to the notice issued to it under Rule 61(2).

3. So far as this Court is concerned, the issue is no longer res

integra and has been pronounced upon by two decisions of two learned

single Judges of this Court in the judgments reported as Sunder Lal Jain

Hospital Karamchari Union vs. UOI, 95(2002) DLT 640; 2002 LLR

17 and Batra Hospital & Medical Research Centre vs. Batra

Hospital Employees Union, 111 (2004) DLT 801. Both the decisions

in the cases of Sunder Lal Jain Hospital and Batra Hospital (supra)

hold that the workman becomes a protected workman if no response is

sent by the Management under Rule 61(2) within 15 days of the receipt of

the notice from the union. It has been held that by virtue of Rule 61(2)

onus is on the Management to respond within 15 days and the legal

provisions do not envisage a reversal of roles i.e. the Management

proposing and the Union disposing.

4. In the facts of the present case, it has been established on

record that the Union gave the notice to recognize the workman as a

protected workman by notice/list dated 21.2.2000. There cannot be any

cavil that there was no response by the Management to deny the

entitlement of the workman to be a protected workman and nor was any

other challenge laid to the notice/list dated 21.2.2000 on any other

ground of Section 33 read with Rule 61. Applying therefore the ratio of

the decisions in the cases of Sunder Lal Jain Hospital and Batra

Hospital (supra), the workman became a protected workman for the

relevant period and it cannot be disputed that with respect to a protected

workman, a subsequent approval cannot be sought for under Section

33(2)(b) and what was required was a prior permission under Section

33(3) of the Act. The Trial Court has also held accordingly relying upon

the decision in the case of Batra Hospital (supra) and also referring to

the provision of Section 33(3) of the Act. I therefore do not find any

violation of law or gross perversity in the impugned order dated 1.12.2004

to call for interference by this Court in exercise of its powers under

Articles 226 and 227 of Constitution of India. The petitioner is also not

correct in submitting that a detailed order ought to have been passed

dismissing an application under Section 33(2)(b) of the Act and the

application of the Management could not have been dismissed by the

short order dated 24.2.2005 which simply relied upon the factum of

allowing of the application of the workman under Section 33A of the Act.

5. Learned counsel for the petitioner sought to urge firstly that

the order of the Assistant Labour Commissioner dated 14.6.2000 declaring

the workman to be a protected workman is an order without jurisdiction

because as per Rule 61(4) such an order could only have been passed by

the Regional Labour Commissioner(Central) or the Assistant Labour

Commissioner(Central) whereas the order dated 14.6.2000 is passed by

the Assistant Labour Commissioner of the Government of National Capital

Territory of Delhi. This contention in my opinion is clearly misconceived

though it may appear on the first blush to be a valid argument because

the provision of Rule 61(4) refers only to the Regional Labour

Commissioner (Central) or the Assistant Labour Commissioner (Central)

and not to any of the State Authority, however, the officers/authorities

stated under Rule 61(4) are not the only authorities which can pass

necessary orders inasmuch as under Section 39 of the Act there can be

delegation of powers to the State Authorities. I note that before the

Assistant Labour Commissioner no such objection was raised by the

management questioning the jurisdiction of the Assistant Labour

Commissioner to pass the order dated 14.6.2000 declaring the workman

to be a protected workman and therefore, there was no opportunity to the

workman to rebut such stand and nor for the Assistant Labour

Commissioner to deal with it. In fact, it is very much possible that the

Central Government would have delegated its powers under Section 39 of

the Act to the State Authority/Officer and which therefore must have

passed the order dated 14.6.2000. I also note that this issue was also not

raised in response to the complaint filed by the workman under Section

33A of the Act. I therefore reject the contention that the order passed on

14.6.2000 by the Assistant Labour Commissioner is an order in violation of

Rule 61(4) and hence the workman could not be said to be a protected

workman. In any case, in view of the decisions in the cases of Sunder

Lal Jain Hospital and Batra Hospital (supra) it is the non-response to

the notice under Rule 61(2) by the Management within the statutory

period of 15 days which gives the deemed status of a protected workman

and the Management cannot argue that although it did not challenge the

notice/list sent by the Union seeking protected status to a workman, yet it

can claim that the workman was not a protected workman.

6. Learned counsel for the petitioner also sought to place

reliance upon various decisions including that of a Division Bench of the

Madras High Court in the case reported as N.Parathasarathy vs. Blue

Star Ltd. 2000 LAB IC 1081 in support of the proposition that there is

no automatic status to a protected workman merely because the

Management does not respond within 15 days. So far as this Court is

concerned, I am bound by the earlier decisions of this Court in the cases

of Sunder Lal Jain Hospital and Batra Hospital (supra) and therefore

the decision in the case of N.Parathasarathy will not be applicable.

Reliance is also placed upon certain points and judgments in the written

arguments however, none of these were relied upon during the course of

hearing and therefore I refuse to rely upon the same because the

workman's counsel had no opportunity to meet the same. In any case,

the additional point raised and the judgments cited would not have

bearing to the facts of the present case in view of the decisions in the

cases of Sunder Lal Jain Hospital and Batra Hospital (supra).

7. In view of the above, I do not find any merit in the petitions,

which are therefore dismissed, leaving the parties to bear their own costs.

February 08, 2011                               VALMIKI J. MEHTA, J.
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