The petitioner, which is a hospital, has come up before this Court with this writ petition challenging Ext.P10 award, which declares that the retrenchment effected in the case of respondents 1 and 2 are illegal and directs the petitioner to reinstate them in service till their services are validly terminated in strict compliance of Sec.25-F of the Industrial Disputes Act (in short, “ID Act”).
2. The petitioner hospital started functioning in the year 1995. The petitioner alleges that, on request of the general public, they decided to take in a few persons to be trained as Nursing Assistants under specified terms and conditions of nursing training. Respondents 1 and 2 were engaged as Trainees Nursing Assistant initially for a period of 2 years and further extended for a short period on their request; and on expiry of the period, their services stood automatically terminated. It was further reported that every six months, their aptitude and progress were tested by the Nursing Superintendent; and to meet their out of pocket expenses, they were given a monthly stipend. The petitioner alleges that respondents 1 and 2 were taken in as trainees under the terms of Exts.P4 to P7. However, after the training period, their services stood terminated; and they are not entitled to any employment in the hospital while they were only entitled for certificate so as to procure an employment. However, respondents 1 and 2 made a complaint before the District Labour Officer that they have been denied employment; and the matter was referred to the 3rd respondent for adjudication. The 3rd respondent, by Ext.P10 award, found that the termination was illegal and ordered reinstatement with back wages and continuity of their services until they terminated in compliance with Sec.25-F of the ID Act. It is with this back ground, the petitioner has come up before this Court.
3. In the counter affidavit filed by respondents 1 and 2, they contended that the writ petition ought to have been filed within the statutory limit, i.e., before August 2005. They further contended that the petitioner has not reinstated them in service till date though they are qualified to be appointed as Nursing Assistants. In their appointment letter, it was stipulated that the maximum period of training would be two years and could be extended for one year and not further. Therefore, according to them, the time of training expired on 13.07.1998 and 31.06.1997 respectively. However, the Assistant Director of the petitioner hospital issued a letter dated 09.06.2000 to respondents 1 and 2 extending training up to 31.05.2001, which is contrary to the approved norms. They also relied on Ext.R1(a) certificate issued by the Nursing Superintendent, wherein it was stated that the 1st respondent has been working in the hospital as Nursing Assistant from 10.07.1997 to 31.05.2001; and the 2nd respondent has been working in the hospital as Nursing Assistant from 01.11.1997 to 31.05.2001. They would contend that they are entitled to full salary of Nursing Assistant as they had continuously worked for more than 240 days, which without any complaint or disciplinary proceedings during their service. According to them, the retrenchment is bad in law; and thus, they supported the impugned award.
4. In the reply affidavit filed by the petitioner hospital, all the contentions of respondents 1 and 2 were denied.
5. Arguments have been heard.
6. The learned counsel for the petitioner submitted the following arguments in support of the writ petition;
i. The Industrial Tribunal failed to understand that respondents 1 and 2 were engaged as trainees by the petitioner hospital; and their services were liable to be terminated without any notice to them. The Tribunal ought to have found that the engagement of respondents 1 and 2 were on the basis of written agreements evidenced from documents produced, which were relied on by respondents 1 and 2 themselves.
ii. The training period of respondents 1 and 2 is not an employment of service; and the petitioner is not liable to follow the conditions of Sec. 25-F; and the finding that the retrenchment was illegal and contrary to law, is unsustainable. Therefore, Ext.P10 award is liable to be set aside.
7. The learned counsel for respondents 1 and 2, per contra, would submit that there were sufficient documentary evidence to support the case of respondents 1 and 2 that they are engaged as Nursing Assistants and the same was relied on by the learned Tribunal in arriving at the conclusions in Ext.P10 award.
8. The Government referred the following issues for adjudication in the proceeding before the 3rd respondent;
(1) Whether the denial of employment to Smt.T.G.Sheena and K.J.Sini by the management of Don Bosco Hospital, Paravur is legal and justifiable?
(2) If not, what reliefs they are entitled to?
9. It is evident from the impugned order that most of the documents produced by respondents 1 and 2 were issued by the management themselves. It was observed by the learned Tribunal that both the persons were appointed as trainee Nursing Assistants for a period of six months initially; and the appointment as trainees was on the basis of the test and interview conducted by the petitioner hospital. They were qualified to be appointed to the post as borne out from the records produced before the Tribunal. The learned Tribunal was satisfied that after undergoing initial training, they have completed six months practical training also. Thereafter, a conduct certificate was given by the Nursing Superintendent of the petitioner hospital. It was marked as Ext.W2 before the learned Tribunal. The valid question raised by the learned Tribunal was as to why they were employed again in the hospital as Nursing Assistant Trainees even after the completion of the training and procurement of the certificate. For that reason, the learned Tribunal found that it cannot be contended that they were only trainees during the subsequent period. It was found by the learned Tribunal that after completion of initial training for six months and about four years of service as Nursing Assistants, the petitioner gave a communication stating that as per the policy then in existence, they won't be given further training. It is pertinent to note that the extension of training period was not on account of the deficit in performance of the respondents nor due to the fact that the training was not satisfactory. From the documents produced, the learned Tribunal found that in none of the extension orders, reasons were stated. The learned Tribunal, for valid reasons, was not inclined to accept the testimony of MW1, who was only a former Accountant in the office of the petitioner. He joined there after retirement from some other establishment and naturally, he supported the case of the petitioner that respondents 1 and 2 were only trainees.
10. On a consideration of the entire materials produced before the learned Tribunal, it was found that the theory advanced by the petitioner that respondents 1 and 2 were undergoing training for more than four years despite the initial prescription of the period of training as six months, was without any basis. Therefore, the learned Tribunal came to the conclusion that their services were terminated without complying with the mandatory conditions stipulated in Sec.25-F of the ID Act. Therefore, the impugned order was passed directing the petitioner to reinstate respondents 1 and 2 in service. I see no valid reason to interfere with the said finding.
Therefore, on a consideration of the entire materials now placed on record, this Court is of the definite view that the petitioner is not entitled to get the relief as prayed for.
Therefore, the writ petition is dismissed. No costs.
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A.V. RAMAKRISHNA PILLAI, JUDGE bka/-