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Vidyasagar Institute of Mental Health v Hospital Employees Union (2006) ILLJ 781 (Del

Delhi High Court has held that the employees of the hospital, through
its union, have no right to cause incovenience, harassment or obstruct
the patients and visitors and as such they are restrained from such
activities including staging of dharna, demonstrations and blocking the
ingress or egress within the distance of 200 metres from the outer
radius of the hospital. It was further observed that the Trade Uinon, as
representing the employees, has no right to cause obstruction to
ingress or egress or staging demonstration since for redressal of
grievances, they have to recourse to the forum as provided under the
law instead of indulging in such activities.
Following Principles were culled out
2.Immunity given to the Unions under Section 18 of the Trade Unions
Act, 1926, does not extend to conduct those acts which may amount to
offence.
3.Peaceful demonstration is a fundamental right of the
Unions/employees.
Kameshwar Prasad v State of Bihar AIR 1962 SC 1166
In this case the question came before the supreme court regarding constitutional validity
of Rule 4A of the Bihar Government Servants Conduct Rules, 1956 which prohibits any
form of demonstration and resort to strike. The court held that a demonstration is a visible
manifestation of the feelings or sentiments of an individual, or a group. It is thus a
communication of ones ideas to others to whom it is intended to be conveyed. It is in
effect a for of speeh or of expression because speech need not be vocal since signs made
by a dumb person would also be a from of speech. There are forms of demonstration
which would fall within the freedoms guaranteed under these clauses. So a peaceful
demonstration is considered as a fundamental right which is nothing but a by product of
Article 19(1)(a) and 19(1)(b) of the constitution. The Supreme Court therefore allowed
the appeal in part and granted appelants a declaration the Rule 4 A in the form in which it
stood prohibiting any form of demonstration was violative of the appellants right under
Artice 19(1)(a) and (b) and should therefore be struck down. It is only necessary to add
that the rule, isofar as it prohibits a strike cannot be struck down since there is no
fundamental right to resort to strike.
D. C. Dewan Mohideen Sahib And Sons vs The Industrial
Tribunal, Madras on 6 April, 1964
Issue: whether reduction of annas two in the wages of workers
employed under the agents of the appellants was justified and to what
relief the workers were entitled.
Facts: On a reference of industrial disputes between the appellants,
the proprietors of bidi concerns, and their workmen, the appellants

contended before the Industrial Tribunal that the workers in question


were not their workmen, but were the workmen
of
independent
contractors. The Tribunal found on the basis of evidence led, that the
modus operandi was
that contractors took leaves and tobacco from
the appellant
and' employed workmen for manufacturing bidis.
After bidis were manufactured, the contractors took them back from
the work- men and delivered them to the appellants. The workmen
took the leaves home and cut them there; however the process
of actual rolling by filling the leaves with tobacco took place in what
was called contractors' factories. The
contractors kept
no
attendance register for the workmen, there was no condition for their
coming and going at fixed:
hours,
nor were they bound to
come for work every day; sometimes they informed the contractors if
they wanted to be
absent
and some times they did not.
The contractors said that
they could take no action if the workmen
absented themselves even without leave.The payment was made to
the workmen at piece rates after the bidis were delivered to the
appellants. The system
was that the appellant paid a certain
sum for
the manufactured bidis, after deduct-ing therefrom the
cost of tobacco and the leaves already fixed, to the contractors who in
their turn paid to the workmen, who rolled bidis,
their wages.
Whatever remained after paying the workmen would
be
contractors' commission for the work done, The Tribunal held that
there was no sale either of the raw materials or of the finished
products, for, according to the agreement, if
the bidis were not
rolled, raw materials had to, he returned to the appellants and
the
contractors were forbidden from selling the
raw
materials to
anyone
else. Further
the manufactured bidis could only be
delivered to the appellants who supplied the raw materials. Further
price of
raw materials and
finished products fixed
by
the
appellants alwaysremained the same and never fluctuated according
to market rate. The Tribunal concluded that the bidi workers were
the employees of the appellants and not of the
socalled
contractors who were themselves nothing more
then
employees or branch managers of the appellants.
Thereupon, the
appellants filed writ petitions in the High Court, which held that
neither the bidi roller nor the intermediary
was an employee of
the appellants and
allowed the
writ petitions. On
appeal
by the
workmen the appeal court allowed the
appeal and restored the order and conclusion of the Tribunal. On
appeal by certi-ficate: Held:
On the facts found the appeal court
'was right in holding that the conclusion reached by the Tribunal that
the intermediaries were merely branch managers appointed' by the
647 management and the relationship of employers and employees
subsisted between the appellants and the bidi rollers
was
correct.

Reasoning:
The correct approach therefore was to consider whether, having regard
to the nature of the work there was due control and supervision by the
employer. It was further held that the question whether the relation
between the parties was one as between an employer and employee
or master and servant was a pure question of fact, depending upon the
circumstances of each case.
so-called independent contractors were indigent persons who were in
all respects under the control of the appellants. There is in our opinion
little doubt that this system has been evolved to avoid regulations
under the Factories Act. Further there is also no doubt from whatever
terms of agreement are available on the record that the so-called
independent contractors have really no independence at all.
The contract is practically one sided in that the proprietor can at his
choice supply the raw materials or refuse to do so, the so-called
contractor having no right to insist upon the supply of raw materials to
him.
Heavy Engineering Corporation v Presiding Officer, Labour Court (1996
Facts
The appellant had appointed respondent No.2 as Doctor in theGeneral Duty Medical
Officer Grade-II on 17th May, 1978. Theappointment was on ad hoc basis for a period of
six months with effect from 18th May, 1978.
Along with respondent No.2 three other doctors were similarly appointed. All the four
doctors were posted at the First Aid Posts which are being maintained by the appellant
corporation for providing emergency medical services in case of accidents etc. during all
the shifts.
This ad hoc appointment to the temporary post was first extended for a period of three
months by order dated 30th November, 1978. Second extension was granted for a period
of two months by order dated 7th March, 1979.
The aforesaid temporary appointment of respondent No. 2, along with three other doctors
who were appointed with him, thus continued for a period of eleven months. By office
order dated 17th April, 1979 these doctors were informed that on the completion of their
term of appointment on ad hoc basis they would be relieved of their duties Respondent
No.2 made representation dated 20th April, 1979 on the receipt of the aforesaid order
dated 17th April, 1979. It was contended therein that he had worked for a period of more
than 240 days and that his services were terminated without assigning any reason. It
appears form the record that in order to fill the said vacancies on regular basis
advertisements were issued and interviews were held first in the year 1979 and thereafter
in the year 1981. Respondent No. 2 had applied but was not found suitable for selection.

Issue
"Whether the termination of services of Dr. Chandrahas Prasad by the management from
17.04.1979 is justified ? If not, whether he is entitled to reinstatement/or any other relief ?
The main contention which was raised by respondent No.2 before the Labour Court was
that he had completed 240 days of service and was entitled to a notice of one month as
provided by Section 25-F of the Act and as this has not been given, therefore, his
termination was bad in law. It was also submitted that retrenchment compensation under
the said section had not been given and he was also entitled to the benefit of Section 25-F
of the Act were in any way attracted. It was also contended that respondent No. 2 after he
had been relieved, had applied for fresh selection against open advertisement and,
therefore, it must be regarded as if he had waived his right to challenge his termination of
service.
Reasoning
The aforesaid facts, in our opinion, clearly go to show that respondents No.2 could not be
regarded as a workman under Section 2 (s) of the Act as he was working in a supervisory
capacity. While it is no doubt true that respondent No.2 , along with the other doctors,
used to work in shifts nevertheless during the time when he was in the shift he was the
sole person in-charge of the first aid post. He had, under him male nurse, nursing
attendant, sweeper and ambulance driver who would naturally be taking directions and
orders from the in-charge of the first aid post. These persons obviously could not act on
their own and had to function in the manner as directed by respondent No.2, whenever he
was no duty. They were, in other words, under the control and supervision of the
respondent. When a doctor, like the respondent, discharges his duties of attending to the
patients and, in addition thereto supervises the work of the persons subordinate to him,
the only possible conclusion which can be arrived at is that the respondent cannot be held
to be regarded as workman under Section 2(s) of the Act.
For the aforesaid reasons while allowing this appeal the judgment of the High Court,
under appeal, and the decision of the Tribunal, are set aside. The effect of this will be that
the termination of the services of the respondents was valid. The respondents will refund
to the appellant the sum of Rs.81,838/- received by him from the appellant pursuant to
the interim orders passed in this case. The appellant will also be entitled to the refund of
Rs.29,540/- from the Income-tax Authorities being the income tax which was deducted
and was liable to be deposited with the Income-tax department. There will, however, be
no order as to costs.