(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue the Writ of Certiorari, to call for the records of the 1st respondent in I.D.No.581 of 2008 and quash its award dated 31.01.2017.)
The award dated 31.01.2017 passed in I.D.No.581 of 2008 is under challenge in the present writ petition.
2. The learned senior counsel appearing on behalf of the writ petitioner/management contended that the petitioner/Estate deploys males and females, who all are provided with the quarters near the Estate. Husband of the second respondent was also employed in the petitioner’s company. The second respondent absented herself from attending work with effect from 18.10.2004, citing her ill health. It is contended that the second respondent made an attempt to leave the service of the writ petitioner/company by claiming the monetary benefits and under those circumstances, the writ petitioner referred the second respondent to undergo the medical examination before the competent medical board of the Government Hospital. On 08.01.2007, the Medical Board of Coimbatore, Medical College & Hospital opined that the second respondent was fit for work. However, in the said medical opinion, the competent medical board had stated that on sympathetical ground, the second respondent may be provided with light work. Relying on the recommendations of the Government Medical Board, the second respondent insisted the petitioner/Management that she should be permitted to work and must be provided with light work by letter dated 13.08.2007. The petitioner informed the second respondent that there was no scope for light work in the Estate and she should report for work immediately. The second respondent failed to report for work and instead, raised an industrial dispute alleging that her service was terminated by the writ petitioner/Management on 18.10.2004 and again from 09.01.2007.
3. The above dispute was adjudicated before the first respondent in I.D.No.581 of 2008 and by award dated 31.07.2017, the first respondent has held that the dismissal of the second respondent was not justified and that the petitioner should pay her compensation of Rs.2,00,000/- (Rupees Two Lakhs only). Thus, the writ petitioner was constrained to file the present writ petition.
4. The learned counsel for the second respondent states that even during the relevant point of time, the second respondent was aged about 50 years and she was ill and was not in a position to perform work in the Tea Estate. Under these circumstances, as per the direction of the writ petitioner/Management, she attended the Medical Board and the Medical Board also recommended that the case of the second respondent is to be considered for providing light work in the writ petitioner – Company. The writ petitioner – Company did not accede to the recommendation and contrarily not allowed the second respondent to attend duty and no such light work was provided.
5. Under these circumstances, it is to be construed that the service of the second respondent was terminated by the writ petitioner/management and therefore, there is no infirmity as such in the award passed by the Labour Court. Accordingly, the writ petition is liable to be rejected.
6. The learned senior counsel appearing on behalf of the writ petitioner sustained the contentions and cited the judgment of the Hon’ble Single Judge of this Court in the case of “Mercury Manufacturing Co. Ltd. Vs. Joint Commissioner of Labour, Chennai and others” reported in 2001-I-LLJ 1214” in paragraph No.6 of the judgment which reads as follows :-
6. Having perused the materials and after hearing the learned counsel for either side, I am of the view that the plea of the petitioner, deserves acceptance for more than one reason. Under Section 2-A of the Act, an individual workman is entitled to raise an industrial dispute in the event of the employee’s dismissal, retrenchment or otherwise terminating the services of the individual workman. A close reading of the opening words of the said provision would show that for an individual workman to raise an industrial dispute under Section 2-A of the Act, there should be a termination of the services of the concerned workman. In the case on hand, as admitted by the petitioner and as disclosed in the reply filed before the first respondent as well as in the affidavit filed in support of this writ petition, it has been tacitly made clear that the services of none of the respondents 2 to 85 have been terminated. Further even as per version of twelve of the respondents as stated in their anticipatory bail application filed before this Court they are not attending to their jobs as they are on strike. It is claimed that hundred of the workmen are placed in a similar situation. All the above stated undisputed facts show that there was no termination of service of any of the respondents 2 to 85. Further fact that 22 out of 84 workmen having reported for duty as on this date strengthens the stand of the petitioner that there was no termination of service of any of the respondents 2 to 85.”
7. Relying on the observations made in the judgment cited supra, the learned senior counsel appearing for the petitioner contended that the dispute itself is not maintainable, in view of the fact that the second respondent was not dismissed or discharged or removed or retrenched from the service. The dispute raised under Section 2-A of the Industrial Disputes Act, 1947 is not maintainable and the Labour Court had erroneously entertained the dispute in violation of the principles stipulated in Section 2-A of the Industrial Disputes Act. Thus, the writ petition is to be considered even on this issue, apart from the preliminary objection regarding the maintainability of the dispute.
8. The learned senior counsel appearing for the petitioner is of an opinion that at no point of time, the second respondent was terminated or removed from service. Contrarily, the management sent letters to the second respondent to report for duty and she had not reported at her own volition and therefore, the writ petitioner/Management cannot be held responsible or liable for any such non-reporting of duty by the second respondent. Further, he made a submission that the doctors, who examined the writ petitioner by constituting a Medical Board exceeded their jurisdiction by offering a recommendation. Medical opinion must be in clear terms and the doctors found that the workwoman is fit for her work. However, they further proceeded by stating that on sympathetic ground, she may be considered for light work. The learned senior counsel is of an opinion that the doctors would have stalked their offering an opinion that the particular person is fit for her work and the next sentence is a recommendation, which is unnecessary.
9. This Court, is of the considered opinion that such an observation may be unnecessary. It is to be seen in the perspective that the observations should have been made by way of general observation and by considering the general weakness of the workman or otherwise. However, such circumstances now, at this length of time cannot be considered by this Court. The fact remains that the workman already attained the age of superannuation and the workman being a women and during the relevant point of time, she had crossed 50 years of age and the general weakness of the woman employee would have prompted the doctors to give an observation that on sympathetic grounds, she may be considered for light work. This apart, the opinion provided, says that “the management may consider”. Under these circumstances, the management is also expected to consider such circumstances of a woman employee more specifically, after crossing the age of 50 years. A pragmatic approach in these circumstances are required on the part of the management also. It is not as if the straight formula can be adopted in such circumstances during the course of examination. Thus, the report of the Medical Board cannot be said to be perverse. Even the opinion is to be considered positively by the management so as to provide relief to a women employee, who crossed 50 years of age in a Tea Estate more specifically, working in tea estate in the hilly area.
10. This Court, is of the considered opinion that undoubtedly Section 2-A of the I.D Act unambiguously stipulates that “Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.”
11. It is an admitted fact that there is no order of termination marked as a document nor any such oral termination was pleaded. It is not in dispute that the second respondent/workman had joined duty. The fact remains that she was ill during the relevant point of time and she was referred before the Medical Board for medical examination and the Medical Board also found that she is fit to report duty, however, recommended for providing light work.
12. In this context, this Court, has to consider the case of the second respondent with reference to Section 2-A of the Industrial Disputes Act, 1947.
13. In a case where a workman remain unauthorizedly absent for several days or months or if any misconduct is committed and if there is no termination or removal order then it is to be construed that there is no dispute and in such circumstances, the Labour Court cannot entertain a dispute under Section 2-A of the Industrial Disputes Act. However, in the present case, the second respondent/workman was referred to the Medical Board and the Medical Board opined that the Management should provide light work to the second respondent/workman. Instead of providing light work, the management had sent letter to report for duty. Such a conduct is to be construed as non-providing of employment to the second respondent/workman. In other words, the situation is to be considered and a factual inference is to be drawn that an implied discharge was imposed by not providing light work to the second respondent/workman in consonance with the recommendations made by the Medical Board in its report. Thus, by not considering the case of the second respondent by providing a light work and by sending a letter to the second respondent/workman to report for duty, the management had failed to consider the recommendation of the Medical Board, which resulted absence of the second respondent/workman.
14. Thus, it is to be construed that the writ petitioner/Management is responsible for an implied discharge imposed, as far as the services of the second respondent/workman is concerned. In respect of the provisions of the Industrial Disputes Act, 1947 being a welfare legislation, a liberal interpretation is required. Under these circumstances, a strict interpretation may not meet out the purpose and object of the Act itself. Thus, a liberal interpretation is required so as to provide relief in a pragmatic manner in respect of the workman, who all are in distress.
15. Under those circumstances, liberal interpretation of the Act in order to adopt balancing approach, is certainly imminent. The facts in the lis on hand reveals that the second respondent/workman was not provided with light duty as per the recommendations of the Competent Medical Board. Though, the learned senior counsel appearing for the petitioner states that the recommendation of the Medical Board is unnecessary, one cannot brush aside certain recommendations, as the same is made only after ascertaining the physical fitness of the workman concerned. The Doctors had found that the second respondent is fit to perform her duties and thought fit to recommend to provide light duty, as the second respondent had crossed 50 y
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ears of age and being a woman, it would be difficult for her to perform the heavy duty. Even otherwise, the Medical Board would have found that she may not be suitable for her works. Such an interference is required in order to provide substantial justice to the workman, who is in distress. Thus, the denial of employment, more specifically by providing the light duty, resulted in discharge from duties by the Management and accordingly, there is no infirmity in respect of the award passed by the Labour Court. 16. In view of the fact that the second respondent/workman reached the age of superannuation, the Labour Court considered grant of compensation of Rs.2,00,000/-, in view of the reinstatement. This being the factum, this Court, is not inclined to interfere with the findings of the labour Court as the same is candid and convincing. 17. Accordingly, the present writ petition fails and stands dismissed. The writ petitioner/Management is directed to settle the said compensation amount of Rs.2,00,000/- (Rupees Two Lakhs only) along with interest at the rate of 9% per annum with effect from the date of award till the date of settlement. The entire amount is directed to be settled within a period of four weeks from the date of receipt of a copy of this order. No costs. Connected miscellaneous petition is closed.