Decided on September 03,2003



- (1.) PETITIONER, a Head Nurse working in the Taluk Head quarters Hospital, Thirroorangadi in the Health Services Department 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. 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. 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 Medical 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". Disappointed by the fact that no effective steps 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 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.
(3.) 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. 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.;

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