“Nurses Have No Right To Strike”: Kerala High Court Questions Why Nursing Services Aren't Declared 'Essential Service'

The Kerala High Court on Friday (May 22) orally asked the State government to get instructions as to why services rendered by nurses are not declared as an "essential service", adding that if declared as an essential service, nurses would have no right to go on strike. Justice Bechu Kurian Thomas was hearing a plea by the Kerala State United Nurses Association alleging that certain private hospitals have taken in interns and unregistered nurses to work. At this stage, the Court orally asked as to why a nurse's service is not declared as an essential service. The petitioner's counsel said that only the government can make such a declaration. "Now the striking nurses don't want other persons to work as nurses…If they (nurses) don't work, the hospitals will be compelled to agree to your terms. That is blackmail," the Court orally remarked. The petitioner's counsel pointed to Section 32 Nursing and Midwives Act and that only duly qualified persons registered under Sections 32 and 33 can cater to the patients. But here, the counsel said, hospital management was recruiting medical college students who are not qualified and are not registered under the Act. The counsel further said that hospitals can only employ qualified nurses, not interns.The Court orally said, "If they recruit qualified nurses, your jobs will be at stake". However, the counsel responded that interns cannot cater to patients in ICU. When the Court asked if the petitioners were ready to work, the counsel said that the nurses were not being fairly compensated. The Court, however, said that there were other remedies that the petitioner could seek for fair compensation. But the counsel said that there is a statutory obligation on the part of respondents and if they appoint non-qualified persons, their (hospital's) registration has to be cancelled as per the Clinical Establishments Act. The Court, at this stage, orally said, "I would say that to tide over the situation that the present attempt on the part of the hospitals are justified in law. Otherwise, it will affect the patients...Government Pleader get instructions, if the nurses are on strike why have you not declared this as an essential service. If it is declared as an essential service, they have no right to strike".As the petitioner's counsel submitted that if advocates go on strike, then can Courts permit interns to come and argue, the Court remarked that it permits the parties to argue the matters in person. However, the petitioner's counsel said that in the present case patients cannot treat themselves, to which the Court said, "That's the whole issue".Emphasizing that this was a case of an "ego issue", the petitioner's counsel said that if hospitals can give wages to the students the same wages they give to nurses.At this stage, the Court said that it was not justifying the actions of the hospital or of the nurses. It further said, "Doctors, nurses, lawyers, cannot go on strike actually". The petitioner's counsel submitted that essential units are working and nurses were working in 1:3 ratio. The Court, however, said that the petitioners will have to take recourse to the statutory legal remedies available for enforcement of their right to get proper salary."You are in a position where you cannot go on strike and refuse to work, putting the patients in peril. Only when one of our family members get affected…," the Court remarked. However, the petitioner's counsel said that only the petitioner association is on strike while there were other nurses who are functioning; but that does not mean that hospitals can appoint interns. The Court then remarked that the number of working nurses may not be sufficient. The counsel informed that separate petitions are pending before the Court over the issue of nurses going on strike. Here, the counsel said, that hospital cannot appoint persons who are not nurses and are not registered with the Nurses Medical Council. It was submitted that even temporary unqualified persons hired by hospitals were being paid wages of Rs 1000 per day, and the same wage can be given to the nurses who will readily come and work; thus, the counsel said the entire case was an ego issue. Remarking that nurses have no right to strike, the Court orally said, "In the case of exceptional circumstances, nature of the situation warrants the hospitals to assist the patients, they will have to take in...It cannot be permitted. If they are not paying you the minimum wages, you can take recourse to, you cannot take law into your hands. That's a different issue....I may be in agreement with your cause. I'm not justifying the hospitals not paying you the wages. But that is not a reason for you to go on strike. Nurses have no right to strike. I suggest that you go on strike, after your period of hours of works. After your period of hours of works, you go on strike". Issuing notice to the parties, the Court listed the matter after 6 weeks. The petition is moved by Advocates Rajit and Sruthi ...

“Nurses Have No Right To Strike”: Kerala High Court Questions Why Nursing Services Aren't Declared 'Essential Service'

K. Salma Jennath

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K. Salma Jennath

“Nurses Have No Right To Strike”: Kerala High Court Questions Why Nursing Services Aren't Declared 'Essential Service'

K. Salma Jennath

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INR 1099+GST

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K. Salma Jennath

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