Delhi High Court
Joby P Varghese And Anr vs Union Of India And Ors on 1 May, 2014
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 1st May, 2014
+ WP(C) No. 3376/2013
JOBY P VARGHESE AND ANR ..... Petitioners
Through: Mr. Joby P Varghese and Mr. Arpit
Bhargava, petitioners-in-person.
Versus
UNION OF INDIA AND ORS ..... Defendants
Through: Mr. Himanshu Bajaj, Adv for R-1&2.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This petition, by way of a Public Interest Litigation, was filed in the
wake of the strike by the respondent No.3 Resident Doctors Association of
the respondent No.2 Safdarjung Hospital on 9 th May, 2013, claiming the
following reliefs -
"A. Issue a writ of mandamus or any other appropriate writ thereby
directing respondent No.1 and respondent No.2 to take
appropriate steps to ensure that hospital services and medical
treatments are not disrupted and patients turned back due to
strike called out by the hospital staffs;
WP(C) No.3376/2013 Page 1 of 6
B. Pass appropriate orders/directions/guidelines in the nature of
code of conduct for hospital staffs like doctors nurses, para-
medicals etc of respondent No.2 Hospital for agitating their
grievance without causing any disruption or prejudice to the
smooth functioning of the respondent no.2 Hospital;
C. Pass any other or further order which this Hon'ble Court
deems fit in the interest of justice."
2. Notice of the petition was issued and accepted by the counsel for the
respondents No. 1 and 2 appearing on advance notice. Inspite of four
opportunities, the respondent No.3 Resident Doctors Association remains
unserved.
3. The respondents No. 1 and 2 have filed a counter affidavit, stating -
i. that the Resident Doctors Association of the respondent No.2
Safdarjung Hospital had vide their letter dated 2nd May, 2013
conveyed certain demands and vide another letter dated 7 th May,
2009 stated that they would proceed on mass leave with effect
from 9th May, 2013 (0900 hrs) till consideration of their
demands; however the members of the respondent No.3
WP(C) No.3376/2013 Page 2 of 6
Association went on a flash strike/mass leave with effect from 8 th
May, 2013 (1800 hrs) and temporarily called off their strike on
9th May, 2013, till 14th May, 2013;
ii. that in the interregnum several meetings and discussions were
held on all levels to resolve the issues and an action plan for
smooth functioning of the hospital without any disruption to
patient care activated; leaves of all faculty members were
immediately cancelled and they were deputed on duties as per
roster; further assistance was sought and received from senior
doctors and which ensured a smooth running of emergency
services; immediate action was also initiated on demands of the
members of the respondent No.3 Association.
iii. that though certain routine services of the respondent no.2
Hospital like OPD were affected, however the emergency was
functioning as normal and there was no report of any suffering to
anyone;
iv. that the respondent No.3 Association is not under the direct
control of the respondents No. 1 and 2.
WP(C) No.3376/2013 Page 3 of 6
4. The petitioner has not filed any rejoinder inspite of opportunities.
5. Finding the petitioner to have not suggested as to what
order/direction/guidelines can be passed, as sought in prayer paragraph No.
B supra of the writ petition, we have inquired from the petitioner appearing
in person.
6. The petitioner states that direction for automatic invocation of the
Essential Services Maintenance Act, 1968 (ESMA) and of declaring such
strike as illegal be issued. Reliance is placed on Devinder Negi Vs. State of
H.P. MANU/HP/0327/2009 where directions were issued to the State
authorities to, as far as possible, take effective steps to prevent the interns or
men in medical profession from resorting to strikes, without making it a
contentious issue and for immediate acceptance of their genuine demands
and for formation of well thought dispute redressal mechanism and for
taking stern action against the erring persons etc.
7. However a perusal of the directions issued by the Division Bench of
the High Court of Himachal Pradesh shows the same to be general in nature.
8. We are of the opinion that no standing direction for automatic
invocation of ESMA or of declaration of the strike as illegal can be issued
WP(C) No.3376/2013 Page 4 of 6
without it even being known whether the conditions for invocation of ESMA
would exist and whether the strike would be illegal, on a future occasion.
Not only so, ESMA, 1968 to which reference is made in the judgment cited,
ceased to have effect on expiry of three years from coming into force thereof
and ESMA, 1981 ceased to have effect on expiry of four years from
commencement thereof and the ESM Ordinance, 1941 was replaced by the
ESM Ordinance Repeal Act, 2001. We are therefore unable to accede to the
suggestions made today by the petitioner. Moreover, there is nothing to
show that the respondents No. 1 and 2 were found lacking in any manner
whatsoever. The question of issuing a writ of mandamus would arise only if
the authorities concerned are found to be at fault or lacking in any more
whatsoever and which is also not found to be so in the present case.
Reference in this regard can be made to State of Jharkhand Vs. Ashok
Kumar Dangi (2011) 13 SCC 383.
9. We are also disturbed by the failure of the petitioners in serving the
respondent No.3. Not only so, the petitioners, though have sought a
direction qua of the hospitals staff and which comprises not only of Resident
Doctors but all other doctors/teaching faculty/nurses/para-medical staff etc
but none of the other staff members other than the resident doctors have
WP(C) No.3376/2013 Page 5 of 6
been impleaded as a party. In their absence, no such direction regulating
their conduct can be issued.
10. Thus, while dismissing this petition, we grant liberty to the petitioners
to approach the Court again on the same aspect if so desire by impleading all
parties concerned.
CHIEF JUSTICE
RAJIV SAHAI ENDLAW, J.
MAY 01, 2014
M
