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Constitution
of India, Art. 21 - Service
- Rationalisation of working
hours of nurses working in
Health Service Department -
Compelling the nursing staff
to be on duty continuously
for 14 hours a day for 6
days consequitively in a
week is illegal and
unconstitutional - Financial
stringency pleaded is no
good ground to avoid
implementation of the shift
duty system - Service.
Rationalisation of the
working hours so as to make
it humane and to bring it
within just and reasonable
limits is not only the need
of the nursing staff but
also the patients who are at
the receiving end. In a
broader sense it is the
concern of the society at
large. It can safely be
held that rationalisation of
working hours to make it
just, unreasonable and
humane is the constitutional
obligation of the State.
Right to have such
conditions of work is an
integral part of the right
to life under Art. 21 of the
Constitution. In the light
of the Constitutional
mandate under Art. 21 no
employer whether private,
Government or
quasi-Government has got the
unfettered freedom to
prescribe conditions of work
imposing duty hours
exceeding certain limits. A
glance through the various
labour regulations would
show that compelling the
worker to attend duty
continuously for 14 hours
for 6 days in a week
consecutively is a service
condition which stands in
isolation i n the field of
labour law and is
inconsistent with the scheme
of all those legislations.
It is the Constitutional
obligation of the State to
find out the required funds
to preserve such fundamental
rights, otherwise Government
will be reduced to a
machinery not worth its
name. Salt is worth its
name because of its savour.
Government cannot afford to
stand as a helpless
spectator witnessing injury
to public health and the
life of its workers and
citizens. Financial
stringency pleaded by the
State is no good ground to
avoid implementation of the
shift duty system in the
Government Hospitals.
Moreover the hours of
employment thrust on the
petitioner and similarly
situated persons is an
infringement of the
fundamental right to life
guaranteed under Art. 21 of
the Constitution.
Compelling the petitioner to
be on duty continuously for
14 hours a day for 6 days
consecutively in a week is
illegal and
unconstitutional. (paras. 9,
14, 16, 23 & 24)
(1997) 8 SCC 191; (1984) 3
SCC 161; (1992) 1 SCC 441;
(1995) 3 SCC 42; AIR 1997 SC
1225: (2001) 6 SCC 496;
AIR 1986 SC 847; AIR 1980 SC
1622; (1993) 3 SCC 584;
(1995) 4 SCC 507 & (2003) 6
SCC
1
Referred to
(1995) 5 SCC
482
Relied on
P. Ravindran & Anu Sivaraman
For Petitioner
@page-KLT789#
Government Pleader (K.I.
Abdul Rasheed)
For Respondents
JUDGMENT
K.K. Denesan, J.
Petitioner, a Head Nurse
working in the Taluk Head
Quarters Hospital,
Thirroorangadi in the Health
Services D epartment of the
State has approached this
Court with the grievance
that she is required to do
continuous duty for 14 hours
at a stretch for 6 days
consecutively.
2. A few facts may be
noticed. The strength of
the nursing staff in Govt.
Taluk Head Quarters
Hospital, Thirrorangadi is
44, out of which 36 Nurses
are Staff Nurses and 8 are
Head Nurses. 4 Staff Nurses
are working in other
hospitals on working
agreements. Similarly 2
Head Nurses are working in
other hospitals. The
strength of the Nursing
Staff in the above hospital
is thus reduced to 30.
Government have introduced
shift system in some of the
Government Hospitals. Since
shift system is not
introduced in the Govt.
Taluk Head Quarters
Hospital, Thirroorangadi,
members of the Nursing Staff
are compelled to work for 14
hours a day at a stretch.
Petitioner is working 14
hours a day and she is
allowed to avail only one
day off in a week. She has
averred in the O.P. that
‘the work of nursing,
especially in Government
Hospitals, is arduous in
nature’ and therefore long
hours of continuous duty is
too harsh and inhuman to
stand the test of law and
justice. She has prayed in
this O.P. for a direction
commanding the respondents
to introduce 3 shift duty
system in Government
Hospital, Thirroorangadi,
and for a declaration that
forcing the petitioner to be
on duty continuously for 14
hours a day for 6 days in a
week is illegal and
unconstitutional.
3. Nurses working in the
Government Hospitals of the
State have approached this
Court on prior occasions
also with the above
grievance. A Writ Petition
(O.P. No. 6842 of 1990) was
filed by four Nurses working
in the Women and Children
Hospital, Mattancherry, and
another Nurse working in the
Maharaja’s Hospital,
Palluruthy, for the
redressal of a similar
grievance. Having regard to
the importance of the issue
and the impact it may have
throughout the State of
Kerala in the Health
Services, K.T. Thomas, J.
(as His Lordship then was),
referred the question for
decision by a Division Bench
of this Court. Before the
Division Bench, it was
submitted on behalf of the
Government that the question
to limiting the duty time of
the Nursing Staff within 8
hours per day had been
engaging the attention of
the Government for some time
past and after considering
all the aspects Government
have introduced “3 shift
system” with the intention
to limit duty time of nurses
as 8 hours per day. A list
of hospitals where the 3
shift system was introduced
with effect from May 18,
1987 was also furnished by
the respondents in that
case. Those hospitals are:
1. Medical College
Hospital,
Thiruvananthapuram.
2. S.A.T. Hospital,
Thiruvananthapuram.
@page-KLT790#
3. Medical College
Hospital, Kozhikode.
4. Institute of Maternal
and Child Health, Kozhikode.
5. Beach Hospital,
Kozhikode.
6. W. & C. Hospital,
Kozhikode.
Three shift duty system was
thereafter introduced in the
Medical College Hospital,
Kottayam, as well as in the
Med ical College Hospital,
Alappuzha, with effect from
June 28, 1989. In that
background the Division
Bench disposed of O.P. No.
6842 of 1990 in the
following manner:
“In this view of the
situation, all that is left
for us is to appreciate the
approach of the State and
sincerely desire to order
God speed to this necessary
and noble function. When
the State Government has
already done much in 1987
and 1989, the lull
thereafter in the direction
has to be pushed up because
1994 is far away from 1989
with a period of five years
thereafter.
This petition is pending in
this Court from 1990 with
this counter having been
filed on July 27, 1992.
Normally the State
Government should have come
before us with an order of
compliance, be that as it
may in the above situation,
we allow this petition and
direct the respondents 1 to
3 to take all necessary and
required steps to implement
the three shift system
already made applicable to
the medical hospitals
referred to in paragraph 4
and other Medical College
Hospitals referred to in
paragraph 5, almost
forthwith without loss of
further time to the Women
and Children Hospital,
Mattancherry on or before
December 31, 1994. Needless
to state that other
similarly situated medical
hospitals would also be
looked after in the same
spirit by the present
respondents, not requiring
them to approach this Court
for this purpose any more.
In the circumstances there
shall be no order as to
costs”.
4. Disappointed by the fact
that no effective s teps
were taken thereafter to
introduce the shift system
in other hospitals also, an
association of Nurses,
called Kerala Government
Nurses’ Union, filed O.P.
No. 1 of 2000 for a
declaration that the working
condition requiring the
nursing staff ‘to do
continuous duty at night for
14 hours at a stretch for 6
days’ was unconstitutional
and for a direction
‘commanding the respondents
to ensure that there is
uniformity in the matter of
working hours of nursing
staff under them by
introducing three shift duty
system in all the Government
hospitals’. A learned
Single Judge of this Court
disposed of the said O.P. by
Ext. P1 judgment. In that
writ Petition the contention
of the Government was that
introduction of the 3 shift
duty system in all the
hospitals would incur huge
financial commitment and
therefore the shift system
can be implemented only in a
phased manner subject to
availability of the
finance. Taking due note of
the above submission made by
the Government, this Court
in Ext. P1 judgment opined
that the stand taken by the
Government cannot be said to
be unreasonable and that the
court cannot compel the
Government to introduce the
3 shift system by incurring
huge financial commitment.
However, considering the
fact that the Government
have implemented the 3 shift
@page-KLT791#
system in the Medical
College Hospitals and
District Hospitals as also
in some of the Taluk Head
Quarters Hospitals, the
system should be extended to
all the Taluk Head Quarters
Hospitals. For that purpose
a time limit was fixed in
Ext. P1, ie., 31.12.2000.
The operative part of the
judgment is as follows:
“Therefore, the Government
is directed to introduce the
system in all the Taluk
Headquarters Hospitals on or
before 31st December, 2000.
Thereafter within one year
the Government must take
steps to introduce the shift
system in all the other
Hospitals. Since the
Government is given
sufficient time, they must
also find out the sufficient
finance for the above
purpose within the above
stipulated time. Since the
Government have got a duty
to the people to extend the
medical facilities and
health care, they cannot
wriggle out from the above
responsibility by stating
that they have no finance to
implement the above system.
It is for the Government to
find out the ways and means
to see that the people in
the State are given proper
medical care and hospital
facilities”.
It is seen that Government
is not interested in
implementing the directions
in Ext. P1, consequently
Nurses including Head Nurses
like the petitioner are the
victims of the inaction.
5. Learned counsel, Smt.
Anu Shivaraman who argued
the case for the petitioner,
submitted that
rationalisation of the
working hours by laying down
just and reasonable time
schedule is the duty of
every employer in a
civilized society,
particularly of a model
employer like the Government
in a welfare State. The
duty of the State is as much
more than a private
employer. It has got the
constitutional obligation to
do away with unjust and
unfair conditions of service
and replace them with benign
conditions which are just,
fair and humane. Learned
counsel put emphasis on the
need for a declaration as
prayed for in this
petition. To drive home the
point, counsel brought to my
notice relevant Articles in
the Universal Declaration of
Human Rights, 1948,
decisions of the Supreme
Court explaining the meaning
and content of the
expression ‘Right to Life’
in the context of Art. 21 of
the Constitution, relevant
extracts from the text of
I.L.O. Conference (Nursing
Personnel Convention 1977)
and write-ups appeared in
Health Care Magazines.
6. Facts stated in the Writ
Petition, uncontroverted as
they are, go to show that
the work of a Nurse,
especially in the Government
Hospitals, is extremely
arduous in nature. The sum
and substance of the
submission of the learned
counsel is that attending
such duties continuously for
long hours is harmful to the
physical as well as mental
health of the Nurse, unsafe
to the patient and likely to
cause deleterious
consequences.
7. Nursing is a noble
profession; it is not merely
an occupation to earn a
living but a benevolent
service. The nursing of the
sick, said Florence
Nightingale, is a vocation
as well as a profession.
Nurses live in th e midst of
the distressing atmosphere
of the
@page-KLT792#
hospital. Naturally they
get tired due to the stress
and strain both mental and
physical. The submission
made by the petitioner’s
counsel that employees
actively engaged in the work
of nursing get totally
exhausted by attending duty
continuously and regularly
for a period of 10 to 14
hours a day, is no
exaggeration.
8. Qualified and efficient
employees committed to the
service of the sick, the
ailing and the injured is
essential for the proper
functioning of every
hospital. There is no place
for any sort of
indifference, lethargy or
lack of devotion to duty in
the field of medical care.
True it is that,
qualification, skill,
efficiency, devotion to duty
are essential for the doctor
as well as the nurse. But
those attributes will not be
of any use once the staff
members get tired and
exhausted and loose their
presence of mind. Burn out
has been identified as a
phenomenon that poses danger
to the physical and mental
health of those who do
overtime work regularly in
medical as well as other
profession. The above issue
is being seriously discussed
among physicians as it
affects not only their
ability at the work place
but also their private
life. It is a fact that the
sick and the injured need a
nurse who is pleasant and
alert; well behaving and
caring. The presence of a
nurse who has lost the
freshness, the patience to
attend the patient and has
also lost the very
equilibrium of the mind and
the body, will be felt as a
curse.
9. Rationalisation of the
working hours so as to make
it humane and to bring it
within just and reasonable
limits is not only the need
of the nursing staff but
also the patients who are at
the receiving end. In a
broader sense it is the
concern of the society at
large. Petitioner has
brought to the notice of the
respondents that because of
the inordinate delay in
introducing the shift system
nurses are compelled to work
14 hours a day; female
nurses find it extremely
difficult to manage their
home affairs and long hours
of continuous work denudes
the very essence and
fragrance of their life.
10. Hours of employment, is
a condition of service and
the power to prescribe the
same, subject to limitations
imposed by law, is the
prerogative of the
employer. The question that
at once arises is, whether
in the absence of statutory
provisions or executive
orders having the force of
law, has not the employer
got the unfettered power to
prescribe a schedule of
working hours regardless of
the problems of the
employees? What if any is
the remedy for the worker,
if the prescribed working
hours is so inhuman, unjust
and unconscionable as to
make his life miserable? If
solution to this problem
cannot be found on statutory
grounds, can the grievance
be redressed under the
provisions of the
Constitution? These are the
issues that arise for
consideration in this Writ
Petition.
11. Art. 39(e) of the
Constitution directs the
State that the health and
str ength of workers, men
and women are not abused and
that the citizens are not
forced by economic necessity
to enter avocations unsuited
to their age or strength.
Art. 42
@page-KLT793#
mandates that the State
shall secure just and humane
conditions of work and for
maternity relief. Art. 43
states that the State shall
endeavour to secure, by
suitable legislation or in
any other manner, conditions
of work ensuring a decent
standard of life and full
enjoyment of leisure and
social and cultural
opportunities.
12. India is a signatory to
Universal Declaration of
Human Rights, which was
passed by the United Nations
Assembly vide Resolution
217A (III) dated
10.12.1948. Art.23(1) of
the said Declaration says:
“Everyone has the right to
work, to free choice of
employment, to just and
favourable conditions of
work and to protection
against unemployment.”
Art. 24 also is worth
noting. It reads:
“Everyone has the right to
rest and leisure time,
including reasonable
limitation of working hours
and periodic holidays with
pay.”
The main thrust of the
argument of the petitioner’s
counsel was on Art.21 of the
Constitution which mandates
that no person shall be
deprived of his life or
personal liberty except
according to procedure
established by law. It is
no more res integra
that in interpreting the
scope and ambit of Art. 21
of the Constitution, the
Universal Declaration of
Human Rights and the
Directive Principles of
State Policy enshrined in
Part IV of the Constit ution
play a significant and
effective role. The Supreme
Court has time and again
pressed into service the
Human Rights Declaration and
the Constitutional
provisions in Part IV in
interpreting Art. 21.
13. In Samatha v. State
of A.P. & Ors. ((1997) 8
SCC 191) the Apex Court held
that Art. 21 of the
Constitution reinforces
“right to life” - a
fundamental right- which is
an inalienable human right
declared by the Universal
Declaration of Human Rights
and the sequential
conventions to which India
is signatory. In Bandhua
Mukti Morcha v. Union of
India (1984) 3 SCC 161)
it was held that right to
live with human dignity
enshrined in Art. 21 derives
its life breath from the
Directive Principles of
State Policy and that
opportunities and facilities
should be provided to the
children to develop in a
healthy manner and in
conditions of freedom and
dignity. It was also held:
“Adequate facilities, just
and humane conditions of
work etc. are the minimum
requirements which must
exist in order to enable a
person to live with human
dignity and the State has to
take every action”. In
C.E.S.C. Ltd. v. Subash
Chandra Bose ((1992) 1
SCC 441) the Apex Court held
that right to health of a
worker is a fundamental
right. Right to health and
social justice was held to
be fundamental right to
workers. In Consumer
Education and Research
Centre & Ors. v. Union of
India & Ors. ((1995) 3
SCC 42) it was unanimously
held by the Bench of three
Judges thus:
“The jurisprudence of
personhood or ph ilosophy of
the right to life envisaged
under Art. 21, enlarges its
sweep to encompass human
personality in its full
blossom with invigorated
health
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which is a wealth to the
workman to earn his
livelihood to sustain the
dignity of person and to
live a life with dignity and
equality.”
In the above decision
Supreme Court referred to
Art. 2(b) of the
International Convention of
Political, Social and
Cultural Rights and pointed
out that the said Article
protects the right of worker
to enjoy just and favourable
conditions of work ensuring
safe and healthy working
conditions. It is now well
settled that the expression
‘life’ assured in Art. 21 of
the Constitution does not
connote mere animal
existence or continued
drudgery through life. As
held in C.E.S.C. Ltd. v.
Subash Chandra Bose
(supra) it has a much wider
meaning which includes right
to livelihood, better
standard of life, hygienic
conditions in work place and
leisure. In paragraph 26 of
the said decision Supreme
Court said:
“The right to health to a
worker is an integral facet
of meaningful right to life
to have not only a
meaningful existence but
also robust health and
vigour without which worker
would lead life of misery.
Lack of health denudes his
livelihood”.
Supreme Court further held:
“Therefore, it must be held
that the right to health and
medical care is a
fundamental right under Art.
21 read with Arts. 39(e), 41
and 43 of the Constitution
and make the life of the
workman meaningf ul and
purposeful with dignity of
person. Right to life
includes protection of the
health and strength of the
worker is a minimum
requirement to enable a
person to live with human
dignity. The State, be it
Union or State Government or
an industry, public or
private, is enjoined to take
all such action which will
promote health, strength and
vigour of the workman during
the period of employment and
leisure and health even
after retirement as basic
essentials to live the life
with health and happiness.
The health and strength of
the worker is an integral
facet of right to life.
Denial thereof denudes the
workman the finer facets of
life violating Art. 21”.
Paragraph 26 concludes as
follows:
“Health of the worker
enables him to enjoy the
fruit of his labour, keeping
him physically fit and
mentally alert for leading a
successful life,
economically, socially and
culturally. .............”
Then the Supreme Court held
in paragraph 27 as follows :
“Therefore, we hold that
right to health, medical aid
to protect the health and
vigour of a worker while in
service or post retirement
is a fundamental right under
Art. 21, read with Arts.
39(e), 41, 43, 48A and all
related to Articles and
fundamental human rights to
make life of the workman
meaningful and purposeful
with dignity of person.”
In State of Punjab & Ors.
v. Mohinder Singh Chawla
(AIR 1997 SC 1225) Supreme
Court held:
@page-KLT795#
“It is now settled law that
right to health is an
integral to life. Go
vernment has constitutional
obligation to prove the
health facilities”.
In Hinch Lal Tiwari v.
Kamala Devi & Ors.
((20001) 6 SCC 496) Supreme
Court held that the right to
enjoy a quality life is the
essence of the guaranteed
right under Art. 21 of the
Constitution. In fact,
Supreme Court had already
brought the right to enjoy a
quality life within the
scope of Art. 21 much
earlier through its judgment
in State of H.P. v. Umed
Ram (AIR 1986 SC 847).
There it was said that the
right under Art. 21 embraces
not only physical existence
of life but the quality of
life as well.
14. Therefore it can safely
be held that rationalisation
of working hours to make it
just, unreasonable and
humane is the constitutional
obligation of the State.
Right to have such
conditions of work is an
integral part of the right
to life under Art. 21 of the
Constitution. In this
context I may gainfully
extract what the Supreme
Court said in paragraph 15
of the judgment in LIC of
India v. Consumer Education
& Research Centre & Ors.
((1995) 5 SCC 482):
“Art. 25 of the Universal
Declaration of Human Rights
envisages that everyone has
the right to standard of
living adequate for the
health and well-being of
himself and of his family
including food, clothing,
housing and medical care and
necessary social services
and the right to security in
the event of unemployment,
sickness, disability,
widowhood, old age or other
lack of livelihood in the
circumstances beyond his
control. Art. 7 of the
Inter national Covenant on
Economic and Social Rights
equally assures right to
everyone to the enjoyment of
just and favourable
conditions of work which
ensures not only adequate
remuneration and fair wages
but also decent living to
the workers for themselves
and their families in
accordance with the
provisions of the Covenant.
Covenant on Right to
Development enjoins the
State to provide facilities
and opportunities to make
rights a reality and truism,
so as to make these rights
meaningful”.
The scope and ambit of the
expression right to life was
once again explained by the
Supreme Court in paragraph
17 of the above decision.
15. In this connection it
is worth noticing that the
Indian Railways Act, 1890
was amended in the year
1930, based on the Geneva
and Washington Conventions
sponsored by International
Labour Organisation in order
to regulate hours of
employment, period of rest
and payment of overtime of
various categories of
Railway employees. The
employees were not satisfied
with the amended regulation
adopted in 1930. They
agitated for better
conditions of service and as
a result of which Justice
Rajadhayaksha adjudicated
the issue and gave his
award. This award was
accepted and the Indian
Railways Act, 1890 was again
amended in the year 1956.
The provisions thus made are
known as Hours of employment
Regulations. A cursory look
at these regulations shows
that for the purpose of
hours of work, the Railway
employees are classified as
‘intensive’, ‘continuous’,
essentially intermittent’
and ‘excluded’. A chart
showing categories,
description, statutory
limit, restored limit, shift
duty, weekly rest etc. is
@page-KLT796#
annexed to the said
Regulations. I am referring
to the above Regulations to
show that rationalisation of
the working hours was always
a matter of concern for the
labourers and that was taken
care of, at least to some
extent, even during the
colonial-pre-independence
period.
16. Rationalisation of
working hours has to be done
taking into account the
basic realities and other
relevant aspects prevailing
in each industry or
establishment and it will
not be proper to simply copy
down what has been done in a
particular industry or
establishment. However, in
the light of the
Constitutional mandate under
Art. 21 no employer whether
private, Government or
quasi-Government has got the
unfettered freedom to
prescribe conditions of work
imposing duty hours
exceeding certain limits. A
glance through the various
labour regulations would
show that compelling the
worker to attend duty
continuously for 14 hours
for 6 days in a week
consecutively is a service
condition which stands in
isolation in the field of
labour law and is
inconsistent with the scheme
of all those legislations.
The impugned working hours
is definitely on the higher
side. A reading of Ss. 51,
54, 55, 57 and 66(b) of the
Factories Act, Ss. 28 to 36
of the Mines Act, 1952, Ss.
19, 20, 21, 23 and 25 of the
Plantation Labour Act,
Notifications under S. 13 of
the Minimum Wages Act and
similar labour legislations
shows that the normal
working hours with a short
interval is 9 hours daily
and the total working hours
per week in the normal
course is 48 hours.
17. “Eight-Hour Day and the
48-Hour Weekly” has been
accepted as a standard
regulation in the Hours of
Work (Industry) Convention,
1919 of the International
Labour Organisation
Convention. The above
Convention applies to
persons employed in public
or private industrial
undertakings. It provides
that the working hours shall
not exceed eight in the day
and 48 in the week. The
Convention authorises
various exceptions also. It
excludes persons holding
positions of management, and
persons employed in a
confidential capacity. It
further says that when the
hours of work on one or more
days of the week are less
than eight, the limit may be
exceeded on the remaining
days, but not by more than
an hour. It is also
permissible to exceed the
eight-hour limit in the case
of shift work, but the
average number of hours over
a period of three weeks
should not exceed the
general standard of the
Convention. Exceptions are
also permitted in cases of
accident, actual or
threatened, of urgent work
to be done to machinery or
plant, or of force
majeure, but only so far
as may be necessary to avert
serious interference with
the ordinary working of the
undertaking. In exceptional
cases where the standard of
the eight-hour day and
48-hour week cannot be
applied, the daily limit of
work can be calculated over
a longer period, with the
agreement of the
occupational organisations
concerned. It is pertinent
to note that the Convention
also provides that employees
should notify workers of the
hours of work and rest
intervals and should keep a
record of additional hours
worked. It specifies that
it should be made an offence
against the law to employ a
person outside the hours
provided in the Convention.
The Hours of Work (Commerce
and Offices) Convention,
1930 also has made more
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or less similar provisions.
This Convention also
authorises, in exceptional
cases, the distribution of
hours of work over a period
longer than the week,
provided that the average
hours of work do not exceed
48 hours in the week and
that hours of work in any
day do not exceed ten
hours. The International
Labour Organisation has held
Special Conventions and has
taken resolutions with
respect to particular
industries. The
recommendation made by the
International Labour
Organisation Convention 1962
shows that workers all over
the world have been
consistently clamouring for
reduction of the working
hours. 19th Century has
witnessed many a battle
fought by the working class
against bonded labour,
drudgery and restless
labour. In the streets of
Chicago workers sacrificed
their life demanding 8 hours
work, 8 hours rest and 8
hours entertainment. “May
day” became a memorable day
for the workers all over the
world , following this
historical struggle.
18. In this co nnection
reference may be made to
some of the decisions taken
in the general conference of
the International Labour
Organisation - Nursing
Personnel Convention 1977.
Provisions contained in
Arts. 2, 6 & 7 of the
resolution passed in the
above convention are
extracted below:
“Art. 2 :
1. Each member which
ratifies this Convention
shall adopt and apply, in a
manner appropriate to
national conditions, a
policy concerning nursing
services and nursing
personnel designed, within
the framework of a general
health programme, where such
a programme exists and
within the resources
available for health care as
a whole, to provide the
quantity and quality of
nursing care necessary for
attaining the highest
possible level of health for
the population.
2. In particular, it
shall take the necessary
measures to provide nursing
personnel with-
a) education and
training appropriate to the
exercise of their functions;
and
b) employment and
working conditions,
including career prospects
and remuneration, which are
likely to attract persons to
the profession and retain
them in it.
3. The policy mentioned
in paragraph 1 of this
Article shall be formulated
in consultation with the
employers’ and workers’
organizations concerned,
where such organisations
exist.
4. This policy shall be
coordinated with policies
relating to other aspects of
health care and to other
workers in the field of
health, in consultation with
the employers’ and workers’
organisations concerned
Art. 6
Nursing personnel shall
enjoy conditions atleast
equivalent to those of other
workers in the country
concerned in the following
fields:
a) hours of work,
including regulation and
compensation of overtime,
inconvenient hours and shift
work;
@page-KLT798#
b) weekly rest;
c) paid annual holidays;
d) educational leave;
e) maternity leave;
f) sick leave;
g) social security
Art. 7
Each member shall, if
necessary endeavour to
improve existing laws and
regulations on occupational
health and safety by
adapting them to the special
nature of nursing work and
of the environment in which
it is carried out”.
19. Is it that the
Government of Kerala has not
made any rule or regulation
prescribing a work schedule
for the officers and the
employees working in the
various departments under
the Government? The answer
is not in the negative.
Classified broadly, there
are three sets of
regulations for the
officers/employees under the
Government. They are (1)
The Kerala Secretariat
Office Manual, (2) The
District Office Manual and
(3) the Manual of Office
Procedure. As the name
itself indicates, the Kerala
Secretarial Manual is meant
for the Officers and other
employees of the
Secretariat. The office
procedure in the Revenue
Officers of the State is
regulated by the District
Office Manual. The Manual
of Office Procedure deals
with the procedure in the
offices of the heads of
departments and other
subordinate offices. Police
personnel are g overned by
another Manual issued
separately for that
department. The information
relevant for the purpose of
this case is what does those
regulations say with regard
to ‘hours of work’. Art.
352 of the Kerala
Secretariat Manual which
governs those working in the
Secretariat reads:
“Hours of Attendance.-
All the members of the
Secretariat establishment
are expected to attend
office from 10 a.m. to 5
p.m. daily. Office hours
should on no account be
changed to suit the
convenience of individual
officers. Superintendents
must set an example to
others by themselves
attending office
punctually. An interval of
45 minutes from 1-15 p.m. to
2 p.m. will be allowed for
tiffin. Peons of the
Secretariat should however,
attend the office at 9.30
a.m. “Muslim Officers who
wish to offer Jumma Prayers
will be granted an interval
of two hours from 12.30 to
2.30 p.m. on Fridays,
provided the time so spent
is made up, if necessary,
outside office hours on the
same or other days of the
week”.
As an exception to the
office hours mentioned
above, Art. 354 says that on
certain special occasions
such as during days of
sittings of the Legislature,
or when certain particularly
urgent work has to be
transacted, the persons
concerned should attend
office even at earlier
hours, if necessary. Art.
358 says that employees as
may be ordered by superiors
will have to attend duty on
holidays. The relevant
provisions in the Manual of
Office Procedure are the
following:
@page-KLT799#
“157. Ho urs of attendance.-
All the members of the
establishment are expected
to attend office from 10
a.m. to 5 p.m. daily.
Office hours should on no
account be changed to suit
the convenience of
individual officers.
Superintendents must set an
example to others by
themselves attending office
punctually. An interval of
45 minutes from 1.15 p.m. to
2 p.m. will be allowed for
tiffin. Peons should,
however, attend the office
at 9.30 a.m. Muslim
officers who wish to offer
jumma prayers will be
granted an interval of 2
hours from 12.30 to 2.30
p.m. on Fridays, provided
the time so spent is made
up, if necessary, outside
office hours on the same or
other days of the week.
A member of the office
establishment shall not
leave the office premises
during working hours without
the previous permission of
the Superintendent of the
section.
158. Earlier hours on
certain special occasions.-
On certain special occasions
such as during days of
sittings of the Legislature,
or when certain particularly
urgent work has to be
transacted, the persons
concerned should attend
office even at earlier
hours, if necessary.
161. Urgent work during
holidays.-
Proper arrangements should
be made for the disposal of
work during holidays. The
Superintendents may make
their own arrangements in
regard to this, but care
should be taken to
distribute the work fairly
and if possible, no clerk
should be required to attend
office on more than one or
two days during the
holidays. On the last
working day prev ious to a
vacation or to two or more
consecutive holidays, no
clerk shall leave the office
without the permission of
the Superintendent of the
section concerned”.
The District Office Manual
also contains similar
provisions. Disparity in
the matter of working hours
between the category of
employees to which the
petitioner herein belongs
and the bulk of the State
Government employees
governed by the Kerala
Secretariat Manual, the
Manual of Office Procedure
and the District Office
Manual is so glaring that it
cannot escape notice. It is
not to say that there should
be absolute parity in the
matter of working hours
between different categories
and classes of employees,
but to point out that the
difference in the working
hours, (from 6 hours to 14
hours) is too wide a gap as
to cause agony and hardship
to one section of the
employees of the Government.
20. The nature and quality
of service with which we are
concerned here, is not one
to be performed mechanically
but with full application of
mind. It is a matter
concerning public health and
those in distress. Hence
such a service has to be
done with compassion and
confidence in
contradistinction to the
indifferent service rendered
by a person with tired and
irritated mind. Deficiency
in service in these kind of
work is tantamount to
disservice, because what is
dealt with is human life.
No person running a hospital
would be justified in
providing deficient service
and no responsible
Government can turn a
Nelson’s eye to the harm
caused to or injury suffered
by its own employees and its
own citizens. Hospitals run
by the Government are the
only asylum for the sick
hailing from lower middle
class families including
those coming under the below
poverty line. These
sections of our polity are
generally unhealthy
@page-KLT800#
owing to their economic
backwardness and are easily
prone to diseases. No
Government or private
entrepreneur has got the
right to meddle with the
life of these unfortunate
class of citizens by giving
only deficient service which
often slips down to the
level of disservice
depriving them of their very
life itself.
21. Respondent-State has
not pleaded in this case,
that the existing nursing
staff are asked to work
continuously for 14 hours
for six days consecutively
in a week, for want of
sufficient number of
qualified hands available
for recruitment. It must be
said, even if such a plea is
raised, it will not be true
to facts. This Court can
take judicial notice of the
fact that there is no dearth
for qualified nurses in this
State. Most of them are
going to other States and
abroad in search of job
opportunities. The number
of Writ Petitions filed
against orders of
termination by Staff Nurses
appointed temporarily under
R. 9(a) of K.S. & S.S.R.
from the list of candidates
furnished by the Employment
Exchange, illustrates the
availability of qualified
hands in the open market.
22. Petitioner and
similarly placed nursing
staff are increasingly
working ove rtime and their
overtime (mandatory or
voluntary) has been used as
a measure to reduce the
expenditure to be incurred
for public health
activities. The increasing
amount of overtime would
threaten nurses’ ability to
provide safe and
individualise the patients’
care. However, the question
that may arise or that the
court may address to itself
is: Can the judiciary
undertake the task of laying
down hours of work or other
conditions of service for
government servants? No
doubt the power is vested in
the Government and the
primary responsibility is
also that of the
Government. That apart
without a proper study of
the specific nature as well
as problems of the
particular service eliciting
relevant materials based on
which priorities can be
fixed on a rational basis,
there cannot be a blanket
order prescribing working
hours and for that reason
also, the task is that of
the legislature or the
executive or the employer
concerned. But here the
situation is slightly
different. From the
materials available in this
case it is seen that the
respondents have accepted in
principle (see the stand
taken by the Government in
the earlier Writ Petitions
also) three shift duty
system for nurses working in
Government Hospitals.
Hence, the only debatable
issue is, should this court
direct the respondents to
translate that principle
into reality? Firstly it
cannot be contended that the
Government has got the
discretion to postpone the
directions in Ext. P1
judgment ad infinitum.
Secondly, t he existing
hours of employment of
nurses in many hospitals
including the one where the
petitioner works infringe
the fundamental right under
Art. 21 of the
Constitution.
Implementation of 3 shift
duty system has thus become
an imperative and this Court
can exercise its power under
Art. 226 of the Constitution
when the Government fails to
do the constitutional duty.
23. As already stated,
shortage of funds rather
financial difficulty is the
only contention urged by the
respondent-State as a
defence against the
non-implementation of 3
shift duty system in the
Government Hospitals. I am
unable to accept the above
@page-KLT801#
contention as justifiable
reason to perpetuate the
illegality and infringement
of the fundamental and the
inalienable right guaranteed
under Art. 21 of the
Constitution. It is the
Constitutional obligation of
the State to find out the
required funds to preserve
such fundamental rights,
otherwise Government will be
reduced to a machinery not
worth its name. Salt is
worth its name because of
its savour. Government
cannot afford to stand as a
helpless spectator
witnessing injury to public
health and the life of its
workers and citizens. Let
me repeat what the learned
Judge (C.S. Rajan, J.) said
in Ext. P1 in this
connection:
“Since the Government is
given sufficient time, they
must also find out the
sufficient finance for the
above purpose within the
above stipulated time.
Since the Government have
got a duty to the people to
extend the medical
facilities and health care,
they cannot wriggle out from
the above responsibility by
stating that they have no
finance to implement the
above system. It is for the
Government to find out the
ways and means to see that
the people in the State are
given proper medical care
and hospital facilities”.
But the respondents pretend
ignorance of the above
directions, that is what the
petitioner says in this Writ
Petition.
24. Financial stringency
pleaded by the State is no
good ground to avoid
implementation of the shift
duty system in the
Government Hospitals. There
are authoritative
pronouncements of the
Supreme Court in support of
the view I have taken. In
Municipal Council, Ratlam
v. Vardhichand (AIR 1980
SC 1622), All India Imam
Organisation v. Union of
India ((1993) 3 SCC
584), State of H.P. v.
H.P. State Recognised &
Aided Schools Managing
Committees ((1995) 4 SCC
507) and Kapila Hingorani
v. State of Bihar
((2003) 6 SCC 1) = 2003 (3)
KLT (SC) (SN) 1) Supreme
Court has considered the
above question. In
Municipal Council, Ratlam
(supra) His Lordship Justice
V.R. Krishna Iyer said:
“A responsible Municipal
Council constituted for the
precise purpose of
preserving public health and
providing better finances
cannot run away from its
principal duty by pleading
financial inability.”
In State of H.P. v. H.P.
State Recognised & Aided
Schools Managing Committees
((1995) 4 SCC 507) the Apex
Court opined:
“The constitutional mandate
to the State, as upheld by
this Court in Unni
Krishnan case ((1993) 1
SCC 645) - to provide free
education to the children
upto the age of fourteen-
cannot be permitted to be
circumvented on the ground
of lack of economic capacity
or financial incapacity”.
Now in a very recent
decision of the Supreme
Court in Kapila Hingorani
(supra) the legal
proposition is reiterated in
the following manner:
@page-KLT802#
“Financial stringency may
not be a ground for not
issuing requisite directions
when a question of violation
of fundamental right
arises”.
In Kapila Hingorani
(supra) what was said by the
Supreme Court in All
India Imam Organization
(supra) has been extracted
thus:
“..... Much was argued on
behalf of the Union and the
Wakf
Boards that their financial
position was not such that
they can meet the
obligations of paying the
imams as they are being paid
in the State of Punjab. It
was also argued that the
number of mosques is so
large that it would entail
heavy expenditure which the
Boards of different States
would not be able to bear.
We do not find any
correlation between the
two. Financial
difficulties of the
institution cannot be above
fundamental right of a
citizen. If the Boards
have been entrusted with the
responsibility of
supervising and
administering the
wakf
then it is their duty to
harness resources to pay
those persons who perform
the most important duty,
namely, of leading community
prayer in a mosque the very
purpose for which it is
created. (emphasis
supplied).”
In t he light of the above
decisions it has to be held
tat the respondents are not
justified in delaying the
implementation of 3 shift
duty system, even ignoring
the observations made by the
Division Bench of this Court
as early as on 23.8.1994
(judgment in O.P. No. 6842
of 1990) and the specific
directions issued by a
learned Single Judge of this
Court in Ext. P1 judgment
dated 2.3.2000. Moreover
the hours of employment
thrust on the petitioner and
similarly situated persons
is an infringement of the
fundamental right to life
guaranteed under Art. 21 of
the Constitution.
Accordingly, I allow this
Original Petition granting
the following reliefs:
(i) There shall be a
declaration that compelling
the petitioner to be on duty
continuously for 14 hours a
day for 6 days consecutively
in a week is illegal and
unconstitutional.
(ii) The respondents are
directed to introduce 3
shift duty system in the
Government Hospital,
Thirroorangadi, immediately
and redress forthwith the
grievance of the petitioner.
(iii)
It is
made clear that in the light
of the declaration above
made to the effect that the
impugned action of the
respondents is illegal and
unconstitutional, the
prevailing system of
assigning duty for 14 hours
continuously to the
petitioner and other nursing
staff shall not be
continued. It follows that
the respondents shall take
expeditious steps to
introduce 3 shift duty
system for the nursing staff
in all the hospitals. |
