Betty Thomas v. The Presiding Officer, Labour Court

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 14-12-2009 CORAMTHE HONOURABLE MR.JUSTICE V.DHANAPALANWRIT PETITION No.10379 OF 2000Betty Thomas...Petitioner-vs-1.The Presiding Officer, Labour Court, Coimbatore.2.The Management of Bombay Burmah Trading Corporation Limited, Mudis Post, Coimbatore....RespondentsPetition under Article 226 of the Constitution of India, prayingfor issuance of a writ of certiorarified mandamus, to call for therecords of the first respondent in I.D.No.208 of 1998, dated04.01.2000, quash the same and consequently direct the secondrespondent to pay backwages and retirement benefits till thepetitioner attains superannuation.For petitioner : Mr.B.Dinesh KumarFor respondent 2 : Mr.John, for M/s.T.S.Gopalan & Co.O R D E RThe award of the first respondent Labour Court inI.D.No.208 of 1998, dated 04.01.2000, confirming the punishment ofdismissal imposed against the petitioner by the second respondent, isunder challenge in this Writ Petition.2. Petitioner joined the service of the second respondentas a Staff Nurse in the year 1992. On 12.10.1997, at about 05.30p.m., when she was on duty, one Angudoss, estate worker, was broughtin a very critical condition to the hospital. The petitioner, withthe help of other staff, made the patient to lie on the cot in a maleward and gave oxygen and administered 'Coramine' injection. But, thepatient died within ten minutes. The management issued a Memo, https://hcservices.ecourts.gov.in/hcservices/ alleging that the worker died due to the petitioner not giving lifesaving injection to the worker and it was a misconduct under theStanding Orders, for which the petitioner sent a reply, denying thecharge. Thereafter, a charge sheet was served on the petitioner andan inquiry conducted. Based on the findings of the Enquiry Officer,the petitioner was dismissed from service by the second respondent. 3. The stand of the second respondent was that thepetitioner was a senior staff nurse and she did not take stock of thecritical condition of the patient by administering the life savingdrug, namely, 'adrenaline' or 'decadron', which she was aware, tosave the patient; the petitioner also failed to raise the foot end ofthe cot; she was careless and negligent in discharging her duties asa senior nurse; there were number of incidents where the petitionercommitted serious mistakes in her work; she ought not to haveadmitted the patent in the male ward rather than in Intensive CareUnit, taking into consideration the condition of the patient; shebrought disrepute to the hospital and the workmen lost confidence onthe services provided by the hospital; the respondent had lostconfidence to continue her in the service of the company and,therefore, the respondent was fully justified in imposing thepunishment of dismissal, which was based on the findings of theenquiry officer upon evidence.4. Aggrieved over the said dismissal, the petitioner raisedan industrial dispute before the first respondent, which confirmedthe order of dismissal passed by the second respondent. Hence, thisWrit Petition.5. The contention of the learned counsel for the petitionerbefore this Court is that on coming to know the worst condition ofthe patient, the petitioner immediately gave the patient first aid,put him in oxygen and also gave a life saving injection of'Coramine'; the petitioner had taken all precautions and she was withthe patient throughout, but within minutes of admission of thepatient to the hospital, the patient died, for which, the petitionerwas charged with negligence of duty; the petitioner was not servedwith enquiry proceedings to defend the case and, therefore, the orderpassed by the first respondent, confirming the punishment ofdismissal imposed by the second respondent, is liable to be setaside. In support of his contention, the learned counsel has reliedupon a decision of the Supreme Court in Ramanuj Pandey v. Sate ofMadhya Pradesh and Others, 2009 (7) SCC 248, wherein it has been heldas under :"9.Admittedly, it is for the disciplinaryauthority or the administrative authority todecide the quantum of punishment in a case ofmisconduct and the role of the court is onlysecondary. But in view of the gravity of the https://hcservices.ecourts.gov.in/hcservices/ misconduct, namely, the appellant havingapprehended Laxmi Narain and registering himunder Section 13 of the Lunacy Act, where thedisciplinary authority held the appellant guiltyfor detaining a public servant in police postwithout any reason and removed him fromgovernment service, the interference with theimposition of punishment is necessary.10. In the present matter, the appellant,while discharging his duties apprehended LaxmiNarain and registered him under the Lunacy Actwithout any sufficient reasons. This act of hishad indisputably caused harassment to LaxmiNarain and was detrimental to the image of thePolice Department, but the same was also notgrave enough to punish him with removal fromservices. The appellant as a Head Constable wasbestowed with official duties and whiledischarging them he went outside its purview,which definitely warrants that his services mustbe terminated, but as a warning to others and notas a vengeance.11. While considering the power to interferewith the order of punishment, this Court inRangaswami v. State of T.N., 1989 Supp (1) SCC686, held that this Court, while exercising thejurisdiction under Article 136 of theConstitution, is empowered to alter or interferewith the penalty. Accordingly, the punishment ofthe appellant of dismissal from services asimposed by the disciplinary authority issubstituted to one of compulsory retirement fromthe date of his dismissal from service i.e.7-5-1992."6. On the other hand, learned counsel for the secondrespondent would contend that the petitioner, being the senior mostnurse, ought to have followed the standing instructions and becauseof the failure of the petitioner in administering life savinginjection to the patient, there was a loss of life, which resulted indisrepute to the institution; the petitioner was also warned forsuch negligent acts earlier and this is not the first incident to lether off and, as such, the award of the first respondent does notsuffer from any perversity.7. I have heard the learned counsel for the petitioner andalso gone through the records. https://hcservices.ecourts.gov.in/hcservices/

8. On 12.10.1997, when a permanent worker by name Angudassof Thay Mudi Estate, complaining of chest pain and giddiness inaddition to miocardial infraction, was brought to the secondrespondent hospital, referred by Dr.Munisamy of Valparai, fortreatment, the patient was made to be admitted to male ward by thepetitioner instead of Intensive Care Unit. The foot end of the cotwas not raised and the patient was administered only coramineinjection instead of adrenalane or decadron, which are life savinginjections. The petitioner, being the seniormost nurse of thehospital, failed to follow the standing instructions. Because of thenegligence of the petitioner, the patient died within ten minutes ofadmission. 9. Therefore, on 15.10.1997, a show cause notice was issuedto the petitioner, for which the petitioner gave her explanation,dated 17.10.1997. Not satisfied with the said explanation, thesecond respondent issued a charge sheet to the petitioner, chargingher with misconduct of negligence, breach of standing orders and actssubversive of discipline. The said charges read as follows :"1.Standing order 21 (2) :Negligence orcarelessness in work – In that, it is allegedthat on 12.10.1997, a worker by name ThiruAngudass, No.2837 was brought to the hospital ina critical condition and you were negligent andcaress in handling the case in a professionalmanner and the details of which have alreadybeen communicated to you in the complaint dated13.10.97 preferred by the Chief Medical Officer.Hence this charge.2. Standing Order 21 (3) read with 21(15) : Breach of any standing instructions andneglect of work – In that, it is alleged thatyou have deliberately failed to follow thestanding instructions that critical cases shouldbe treated in the Intensive Care Unit and thatyou have failed to give supportive life savinginjections and failed to stand by the side ofthe patient, attending on the patient.3. Standing Order 21 (30) – Acts subversiveof discipline – In that, if the allegationsabove are true, the sum total of your conductand behaviour will attract this charge."The petitioner was asked to appear for an enquiry. In the enquiry,Chief Medical Officer of the hospital, Wardboy and Staff Nurse wereexamined in support of the charges. The petitioner did not examineany witness. The Enquiry officer gave his report, holding that the https://hcservices.ecourts.gov.in/hcservices/ charges against the petitioner were proved. On 08.11.1997, a copy ofthe report of the Enquiry Officer was furnished to the petitioner andshe was also informed of the proposed punishment, for which her replywas sought. On 14.11.1997, the petitioner gave a reply. Afterconsidering the reply, on 21.11.1997, the petitioner was awarded thepunishment of dismissal with effect from 24.11.1997.The petitionerraised an industrial dispute challenging the order of dismissal. Shetook the dispute for conciliation and, on failure of conciliation,the dispute was taken to the first respondent where the dispute wasnumbered as I.D.No.208 of 1998.10. Before the first respondent, the petitioner examinedherself and one Jaganathan and her documents were marked as Exs.W1 toW9. On the side of the second respondent, Dr.Atmaram andTmt.Elizabeth George were examined and its documents were marked asExs.M1 to M29. On 28.09.1999, the first respondent passed apreliminary order holding that the domestic enquiry held into thecharges levelled against the petitioner was fair and proper.Thereafter, the first respondent took up for consideration thequestion whether the findings were justified and the punishment wasproper.11. On analysing the entire material available on record,the first respondent, on 04.01.2000, passed the final award, holdingthat the petitioner had not admitted the patient, who came in a verycritical condition, to ICU; she had not administered life savingmedicines such as "adrenaline" and "decadron"; she had not raisedthe foot end of the cot and not remained by the side of the patientand wasted time in contacting the Chief Medical Officer and that theacts of the petitioner constituted serious misconduct, which, inturn, resulted in loss of life, thereby bringing in disrepute to thesecond respondent hospital.12. When a patient complained of cardiac arrest and foundto be in critical condition is brought to the hospital, the generalpresumption is that he should be taken to ICU and, on seeing thecondition, he should be given life saving drugs like "adrenaline" or"decadron", which are available in the hospital. The petitioner wasfully aware that those medicines were to be administered. As a StaffNurse, with considerable experience, the petitioner ought to haveadministered one of those medicines. It was also the duty of thestaff nurse to see that the foot end of the cot was put in a raisedposition. The petitioner cannot abdicate her responsibility bysaying that her job was to give only first aid and it was the job ofthe doctor to give life saving drugs like "adrenalane" or "decadron".All these instructions were not followed by the petitioner and,therefore, it cannot be said that there was no violation ofinstructions on her part. https://hcservices.ecourts.gov.in/hcservices/

13. The patient was taken to the second respondent hospitalonly for the reason that the said hospital was well equipped to treatthe patients in critical condition, which fact was not denied by thepetitioner either in her explanation or before the enquiry officer.The patient, on his arrival, was found to be in the most criticalcondition and he was diagnosed to have miocardial infraction, whichwas recorded in Ex.M.4 Case Sheet, and the same was also admitted bythe petitioner. It is in the evidence of Chief Medical Officer andM.W.3 Sister Vadivu that life saving medicine to be administered tosuch critically ill patient was either adrenalane or decadron. Suchbeing the position, what was administered by the petitioner wascoramine, which was not a life saving injection. There was also noexplanation offered on the part of the petitioner as to why thepatient was not shifted to ICU. Exs.M5 and M7 are the confidentialreports of the petitioner for the years 1994-1995 and 1996-1997respectively. While Ex.M5 would show that the performance of thepetitioner was not satisfactory and the remark given was that she wasnot dependable, Ex.M7 would indicate that on an earlier occasion on04.09.1997, the petitioner had wrongly copied the prescription givento the patient and on 20.08.1997, she allowed one patient to stay inthe used bed without changing the bed sheets and there were a fewother occasions, wherein the petitioner was given severe warnings toimprove her performance. In the month of October,1994, one patienthad absconded from the hospital and it was not brought to the noticeof the duty Medical Officer by the petitioner and the same wastreated as a major misconduct. Explanation was called for from thepetitioner and she, having admitted her mistake, gave an assurancenot to repeat the same in future. By a letter dated 08.10.1994, thepetitioner was severely warned that any lapse on her part in herduties in future would be viewed very seriously. 14. In the given situation, the petitioner, particularly inthe absence of Chief Medical Officer, should have acted in a morediligent manner in her attempt to save the patient who was broughtcritically ill. The failure on her part to follow the standinginstructions resulted in the loss of a life, which, in turn, causedloss of reputation to the hospital, under which circumstances, themanagement cannot be expected to take a lenient view. The management,having lost confidence in the workman, namely, petitioner, cannotalso be compelled to continue the workman in service. 15. Negligence on the part of the petitioner had not onlyresulted in the death of a workman, but also created a flutter in thehospital. Such conduct on the part of the petitioner could not becountenanced by any standard of dispute. Were the petitioner retainedin employment, workmen would have continued the agitation, resultingin chaos. https://hcservices.ecourts.gov.in/hcservices/

16. In spite of being given reasonable opportunity toimprove her performance, the petitioner had failed to do so and oftenbeen found guilty of certain lapses which were serious in nature andprejudicial to the interest of the employer. Under the circumstances,the second respondent had no other option, but to impose thepunishment of dismissal on the petitioner, for the proved charges,which did not also warrant any interference by the first respondent.17. Therefore, the punishment of dismissal imposed on thepetitioner, in my considered opinion, cannot be said to be harsh anddisproportionate to the charges established. As such, the firstrespondent was justified in coming to the conclusion that thepunishment of dismissal awarded to the petitioner by the secondrespondent was proper.18. As far as non-supply of a copy of the enquiry report isconcerned, as could be seen from the show cause notice dated,15.10.1997, the same was furnished along with the show cause notice.Hence, the contention of the learned counsel for the petitioner, inthis regard, cannot be sustained.19. Standing Order 22 deals with penalties in respect ofacts of misconduct. Though this Standing Order provides for dismissalof the employee who is found guilty of any act of misconduct underStanding Order 21, the proviso clause to Standing Order 22contemplates that in case of first commission of any of themisconduct coming under sub-clauses 1 to 4 of Standing Order 21, thepunishment or dismissal or discharge will not be awarded.20. To adopt the proviso clause to the case on hand, it isto be stated that firstly, this is not a case of first commission ofmisconduct by the petitioner. There were other previous commissionsof misconduct, for which the petitioner was warned by the management.In addition, the second charge in question against the petitionerwas under Standing Order 21 (3) read with 21 (15). Sub-clause (15) toStanding Order 21 is with regard to negligence or neglect of workinvolving loss to the employer or habitual negligence or neglect ofwork. The proviso clause applies only to the misconduct coming undersub-clauses 1 to 4, that too in case of first commission. Therefore,the proviso clause cannot be cashed in on by the petitioner.21. For all the foregoing reasons, this Writ Petition isdismissed. No costs. Sd/-Asst.Registrar/True Copy/Sub.Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ dixitToThe Presiding Officer,Labour Court,Coimbatore.+ 1 cc to Mr.B.Dinakaran,Advocate,SR.69012+ 1 cc to M/s.T.S.Gopalan & Co., Advocate,SR.68225W.P.No.10379 OF 2000BK(CO)EM/21.12.09