Kerala High Court
The Managing Partner vs C.V. Baby on 29 February, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 29TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945
WA NO. 1577 OF 2021
AGAINST THE JUDGMENT DATED 30/09/2021 IN WP(C) NO.34734 OF 2011
OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
THE MANAGING PARTNERS,
T.R.RAVI, G.E.M.HOSPITAL, BENNETT ROAD,
THRISSUR-680 020.
BY ADVS.
P.BENNY THOMAS
D.PREM KAMATH
RESPONDENTS/RESPONDENTS:
1 C.V. BABY,
PRESIDENT, KERALA PRIVATE PHARMACISTS ASSOCIATION,
CHALISSERY VEEDU, CHELAKKARA, THRISSUR-680 586.
2 T.J.CICILY,
W/O.VINCENT, C.D.THANIKKAL KAROKKARAN VEEDU, MANALUR,
PALAZHI, TRICHUR - 680 617.
3 INDUSTRIAL TRIBUNAL,
PALAKKAD-678 020.
BY ADVS.
T.M.RAMAN KARTHA
SYAMA MOHAN
THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON
29.02.2024, ALONG WITH WA.1578/2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Writ Appeal Nos.1577 & 1578 of 2021
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 29TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA,
1945
WA NO. 1578 OF 2021
AGAINST THE JUDGMENT DATED 30/09/2021 IN WP(C)NO.25348
OF 2011 OF HIGH COURT OF KERALA
APPELLANT/2ND RESPONDENT:
THE MANAGING PARTNERS, G.E.M.HOSPITAL,
BENNETT ROAD, THRISUSR-680 020.
BY ADVS.
P.BENNY THOMAS
D.PREM KAMATH
RESPONDENTS/PETITIONERS/RESPONDENTS:
1 C.V. BABY,
PRESIDENT, KERALA PRIVATE PHARMACISTS ASSOCIATION,
CHALISSERY VEEDU, CHELAKKARA, THRISSUR-680 586.
2 T.J.CICILY,
W/O.VINCENT, C.D.THANIKKAL KAROKKARAN VEEDU,
MANALUR, PALAZHI, TRICHUR-680 617.
3 INDUSTRIAL TRIBUNAL,
PALAKKAD-678 001.
THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON
29.02.2024, ALONG WITH WA.1577/2021, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
Writ Appeal Nos.1577 & 1578 of 2021
3
AMIT RAWAL & C.S.SUDHA, JJ.
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Writ Appeal Nos.1577 & 1578 of 2021
----------------------------------------------------
Dated this the 29th day of February 2024
JUDGMENT
Amit Rawal, J.
This order shall dispose of two intra court appeals preferred
against the common judgment rendered in two writ petitions W.P.
(C).Nos.25348 and 34734 of 2011, arising out of a common award
dated 06/07/2011. Respondent-workman was employed as a pharmacist
in the management/hospital of the appellant. After having rendered
eighteen years of unblemished service, was dismissed from the service
on 16/02/2009 on the allegation of misconduct in not submitting a
declaration of pharmacist to the Assistant Drug Controller regarding the
change of the working hours of the pharmacy situated in the premises
of the hospital. Enquiry in the aforementioned case was initiated by
issuing a notice dated 03/12/2008 and prior to that, two show-cause
notices dated 7/10/2008 and 22/10/2008 were issued. The crux of the
controversy involved for adjudication before the Industrial Tribunal
Writ Appeal Nos.1577 & 1578 of 2021
was that the hospital intended to change the working hours of the
pharmacist. The change in the working hours has to be communicated
to the Assistant Drug Controller by the Management duly endorsed by
the pharmacist for, it is the liability of the pharmacist in case of any
non-compliance. Before the timings could be fixed, there were
meetings and exchange of communications. Respondent-workman did
agree to discharge the duty from 9.00 a.m. to 5.30 p.m. but agreed for
8.00 a.m. to 5.30 p.m. Management, dissatisfied with the conduct,
initiated the enquiry, resulted into termination from the service.
2. Dispute was raised through the intervention of the
Government under Section 10 of the Industrial Disputes Act. The
Tribunal on analysis of the evidence brought on record, found that there
was misconduct on the part of the respondent/workman, but held that
nothing had been placed on record that the management at any point of
time made a request to the workman to submit a declaration in
conformity with the proposed change of the working hours for
completing legal formalities, to the Assistant Drug Controller. Noticing
all these factors, the Tribunal ordered for reinstatement without
backwages. It is in that background two writ petitions were filed.
Writ Appeal Nos.1577 & 1578 of 2021
Learned Single Bench of this Court vide order under challenge,
allowed the writ petition of the worker and dismissed the writ petition
of the management and ordered for reinstatement with full backwages.
The order of the learned Single Bench is under stay, however in an
application to under Section 17B, the worker has been paid last drawn
wages; till now, an amount of ₹5,38,000/- (Rupees five lakh thirty eight
thousand only) has already been paid.
3. Mr. Benny P. Thomas, learned counsel appearing on behalf
of the appellant/management submitted that the respondent-workman in
this year would be acquiring her date of superannuation and no useful
purpose would be served in retaining the employee by upholding the
order of the Tribunal. Non-adherence to the direction of the
management for change of the timings and non-submission of the
declaration form would entail into serious consequences and a
misconduct. Pharmacist has to discharge his/her duty and cannot seek
convenience qua working hours of the hospital coinciding with the
pharmacy and cannot be permitted to stand in the way. Workman had
not placed any material on record that during all the period she
remained out of the service or not gainfully employed. It is on that
Writ Appeal Nos.1577 & 1578 of 2021
account the backwages were rejected. Even before the learned Single
Bench also there was no such evidence. Therefore, there was no
compliance of the ratio rendered in the judgment of the Supreme Court
in Deepali Gundu Surwase v. Cranti Junior Adhyapak
Mahavidyalaya (D.ED) and Others, (2013) 10 SCC 324. Therefore,
the judgment of the learned Single Bench is liable to be set aside.
4. On the other hand, learned counsel appearing on behalf of
the workman supported the finding of the learned Single Bench and
submitted that an affidavit has been filed regarding gainful employment
and the management was unable to prove with any evidence that the
worker was gainfully employed. It is in that background this Court on
an analysis of the pleadings ordered for payment of backwages and
there has not been any change of circumstances. The management
expressed might which could not be allowed to be perpetrated the way
they wanted to, resulted into termination alleging to be not on account
of actual misconduct but actually for some other reasons.
5. We have heard learned counsel for the parties and appraised
the paper books and of the view that the findings of the learned Single
Bench ordering for reinstatement with full backwages do not suffer
Writ Appeal Nos.1577 & 1578 of 2021
from any illegality and the said findings are based upon the reasoning
assigned by the Tribunal in paragraph no.14 of the award, which reads
as under:
"14. I am of the view that when the worker herein was
served with the notices of change of working hours, fresh
declaration ought to have been given to the management. In my
view, the failure to give such declaration as required by the
management would definitely constitute a misconduct of
disobeyance of reasonable orders of the employer. However, it is
noticed that there is nothing on record to show that the
management made a request to the worker to submit a declaration
in conformity with the proposed change of working hours for
completing the legal formalities with the Asst. Drug Controller."
6. The aforementioned observations of the Tribunal had not
been able to be belied by any material either before us or before the
Single Bench. That was the crucial point for forming a different opinion
than the one arrived at by the Tribunal. We cannot remain unmindful of
the fact that the workman would be attaining the age of superannuation
this year, it wouldn't thus be proper for ordering reinstatement with full
backwages. We thus intend to modify the award by ordering
compensation towards the full and final settlement in terms of the ratio
decidendi culled out by the judgment of the Supreme Court in BSNL v.
Bhurumal (2014) 7 SCC 177.
Writ Appeal Nos.1577 & 1578 of 2021
7. Considering the fact that the respondent-workman had
rendered more than eighteen(18) years of service before termination
and remained out of service from 03/02/2009 and the fact that has
already been paid subsistence allowance to the tune of ₹5,38,000/-
(Rupees five lakhs thirty eight thousand only), we are of the view that a
sum of ₹8,00,000/- (Rupees eight lakhs only) would be just and
equitable compensation for the full and final settlement. Accordingly,
the judgment of the learned Single Bench is modified, the
appellant/management is directed to pay the aforesaid compensation to
the respondent-workman, against valid receipt, within a period of one
month from the date of receipt of the certified copy of the judgment.
SD/-
AMIT RAWAL
JUDGE
SD/-
C.S.SUDHA
JUDGE
ak
