The Management Of Advance ... vs The Presiding Officer, Labour ...
2006 Latest Caselaw 2197 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition, the petitioner has challenged the validity of award dated 15th October, 1997 passed by the Labour Court No. II, whereby the respondent workman was directed to be reinstated with full back wages.

2. The relevant facts in brief are that the respondent was working with the petitioner as fitter since 9th June, 1981. In February, 1985, he requested the management to give him one month's leave as he wanted to visit his native place in Uttar Pradesh. He made an application for this purpose. His application was partly allowed and he was given only 13 days' leave effective from 1st March, 1985 to 13.3.1985. The respondent went to his native place from where he sent an application that he had fallen ill and his leave be extended for another 17 days. The management, however, did not extend his leave and wrote him to report for duty immediately. He reported for duty on 2nd April, 1985 with a medical as well as fitness certificate from a doctor of his native place. He was not allowed to join the duty by the petitioner. He kept on visiting petitioner's office for about three days and when he was not allowed to join duty, he sent a demand notice and sought to raise an industrial dispute. The industrial dispute was referred by the appropriate Government to the Labour Court for adjudication in following terms:

Whether the termination of services of Shri Chhotey Lal is legal and justified and if not, to what relief is he entitled and what directions are necessary in this respect.

3. Before the Labour Court, the management filed written statement, taking several preliminary objections. The main contention of the management was that the management had not refused duty but the management had wanted the respondent to produce a medical and fitness certificate of ESI since the respondent was covered under ESI. The management was justified in asking the respondent to join only after he has produced medical and fitness certificate from ESI. The other plea was that the management had not terminated the services of the respondent and even before the Conciliation Officer, the management had asked the respondent to join and even in the written statement, the management had taken the plea that the respondent may join.

4. The learned Labour Court, after considering the preliminary objections and the other pleas, observed that the arguments of the management that the workman was covered under the ESI and, therefore, he could be taken on duty only after he produces a medical and fitness certificate from the ESI, was baseless. The Labour Court observed that the provisions of Section 47, 48 of ESI Act, relied upon by the management, pertain to medical benefits payable under the Act. There was nothing in these provisions which show that these Sections deal with leave on medical grounds. Neither the ESI Act provides that the workman can be denied leave if he does not produce the medical and fitness certificate from ESI Hospital. The Labour Court also observed that Section 73 of the ESI Act was not relevant since this Section deals with the report of Medical Board regarding disabled persons.

5. One of the grounds taken by the petitioner in the preliminary objections as well as during arguments was that the medical certificate produced by the respondent from Dr. S.S. Yadav was bogus certificate because the certificate was not signed by the respondent at the place where it has to be counter signed and it was attested by the doctor. This issue was also raised before the Labour Court and the Labour Court found that the medical certificate as well as the fitness certificate issued by Dr. S.S. Yadav, were produced by the workman and the fitness certificate was having signatures of the workman. If the workman had committed omission of not putting signatures on the medical certificate, the management should still have taken into account the fitness certificate issued by same doctor having signatures of the workman. There was no reason for the management to deny the genuineness of the fitness certificate since the management had not doubted the genuineness of Medical Certificate on any other ground except that the medical certificate was not having signatures of the workman. The Labour Court observed that this defect of the medical certificate stood cured by production of fitness certificate by the workman along with the medical certificate and refusal of duty to the workman amounted to termination.

6. The Labour Court concluded that the services of the workman were terminated contrary to the provisions of Section 25F of the Industrial Disputes Act and the respondent was entitled for reinstatement with full back wages.

7. During arguments, the learned Counsel for the petitioner drew my attention to the medical certificate issued by Dr. S.S. Yadav which was not bearing signatures of the respondent/workman and argued that since this medical certificate was bogus, the petitioner was justified in asking the respondent to bring medical and fitness certificate from the ESI Hospital.

8. I consider that this argument must fail. The respondent had come to join on 2nd April, 1985 and the petitioner was bound to allow the respondent to join. If the petitioner doubted the genuineness of the medical certificate, at the most, it could have treated the respondent's absence from 14.3.1985 to 1.4.1985 as unauthorized absence and could have taken action against the respondent for this unauthorized absence from duty as per the rules. There is no law which prohibits a person from taking medical help from any private doctor, if he is a member of ESI. The membership of ESI is to provide medical facilities to the workmen at nominal rates. This is a beneficial piece of legislation and cannot be construed in a manner to militate against the workman. If the workman had sought to claim medical benefits for the period of leave from 14.3.1985 till 1.4.1985, the same would have been claimed from ESI. The ESI would have taken care of the facts and seen if the workman was entitled for any benefit from ESI or not. The management, on the ground that the workman had not obtained a medical certificate from ESI Hospital, could not have refused to allow the workman to join duty. ESI Act does not put fatter on the freedom of a workman on taking treatment from a private doctors.

9. The other plea of the petitioner has been that the petitioner has always been willing to allow the respondent to join and it was the respondent who did not join. This plea is belied from the testimony of the petitioner witness who testified in his cross examination on 17.5.1996 that the workman came to join duty for two days after 2.4.1985 also but he was not allowed to join duty since he did not submit the medical certificate(from the ESI). This witness again submitted that even during conciliation proceedings, he had agreed for the joining of duty by the workman provided he submitted a medical certificate(from ESI) and this plea was also submitted by him in writing before the conciliation officer. I consider that the testimony of the management witness shows that the management in fact had no intention to allow the workman to join the duty but the management seems to be having a grudge since only 13 days' leave was sanctioned but the workman availed one month's leave for which he had prayed and applied. How could the workman continue on leave for further period when it was not sanctioned, but the management took the excuse that unless the workman produced a medical certificate from ESI, he would not be allowed to join. I consider that the stand of the management that it was ready to allow the workman to join, is belied from the facts and circumstances as well as from the testimony. The insistence of the management on producing medical certificate from ESI as a pre-condition of joining the duty was nothing but an excuse to keep the workman out of service. Legally also, the management was not on the right side. The management was at liberty to treat the period from 14.3.1985 to 1.4.1985 as per the rules or Standing Orders, considering that it was unauthorized absence but the management had no reason to deny the duty to the respondent. I, therefore, consider that the Labour Court rightly came to the conclusion that the petitioner illegally terminated the services of the workman/respondent.

10. The Labour Court has allowed the relief of reinstatement with full back wages. During the pendency of the writ petition before this Court, the management had offered that the workman may join the duty. The respondent went and reported for duty but he was not taken on duty nor he was assigned any work. A report was lodged by the petitioner with the police that some unauthorized person had entered the factory and police was called but later on it was stated that the intruder was none else but the respondent who, by mistake, was considered as an intruder. At the time of payment of salary, the respondent was sought to be paid salary of a helper which the respondent refused to receive because the respondent's claim was that he was a fitter and should be paid salary of a fitter. A report of Labour Inspector is on record to this effect. The petitioner also claimed that the respondent was self-employed. He was doing the work of a fitter and placed on record some photographs showing that the workman was working elsewhere. It was also submitted that he was having a two wheeler scooter bearing No. DLS3SF1199 and he was also having telephone and used to undertake carpenter's work on contract basis. A copy of payment of Rs. 14,000/- received by the respondent was placed on record and photographs showing that he was doing the work of a carpenter was also placed on record.

11. It is settled law that even if termination is held illegal in a case, the reinstatement with full back wages is not the natural consequence. The Court can mould the relief. Full back wages is not an automatic consequence or a normal rule. A perusal of recent judgments of the Supreme Court would show that grant of full back wages was exceptional and wages up to 50% were granted. In appropriate cases, the Supreme Court has considered the award of compensation as an appropriate relief. The respondent was working on last drawn wages of Rs. 640/- per month. He was terminated long back, about 21 years ago. The documents placed on record would show that he was engaged in an independent work. Under these circumstances, I consider it would be unjust even to the respondent that he is asked to work as a helper or fitter in a hostile atmosphere. It would be appropriate that he may be awarded lump sum compensation. I, therefore, consider that compensation of Rs. 1 lac would be appropriate relief to be granted to the respondent.

12. In view of my foregoing discussion, the writ petition is allowed to the extent that instead of reinstatement and full back wages, the respondent be given a compensation of Rs. 1 lac. The compensation be paid within a period of 60 days by way of bank draft. If not paid within 60 days, it shall attract simple interest @ 8% per annum from the date of this order.