JUDGMENT
D.Y. Chandrachud, J.
1. The petition is directed against an award of the Industrial Tribunal rendered on 18th October, 1996 in a reference to adjudication under Section 10 of the industrial Disputes Act, 1947. The petitioner was employed on 2nd July, 1966 as a Truck Tyre Builder and was receiving a salary of Rs. 2,100/- per month in Grade I on the date on which the accident, which forms the bone of contention in these proceedings, took place. Between 2nd February, 1932 and 9th May, 1982, the petitioner was on leave without wages. During this period, he had been treated medically for arthritis and for rheumatic pain of the body joints. On 11th May, 1982, the petitioner was deployed in the night shift commencing from 10.30 p.m. A Notice of Accident which came to be prepared and filed by the employer on 12th May, 1982 sets out that in the early hours of 12th May, 1982 at 3.45 a.m., the petitioner while operating a ‘turn down’ tool sustained a fall causing him pain in the back and in the left hip. The petitioner was thereupon referred to the hospital of the Municipal Corporation of Greater Bombay at Rajawadi and the report of the hospital is annexed at Exh.A-1 to the petition.
2. The Notice of Accident has three sections which are respectively to be filled in by the First Aid Attendant, by the Department concerned and by the Industrial Relations Department. The noting by the First Aid Attendant was to the effect that the petitioner was suffering from pain in the back (lower middle side), and in the left hip and that he would be unfit for work for more than 48 hours. The second section of the Notice of Accident which was required to be filled in by the department referred to the place of accident as “truck m/c No. 18” and the cause of injury as a fall. The circumstances in which the accident took place have also been referred to in the Notice and have already been reproduced hereinabove.
3. Apart from the Notice of Accident, the first respondent also lodged a Report of accident in Form 24 prescribed by the rules framed under the factories Act, 1948. The Report of accident which is required to be lodged by the Manager of the factory, specified that the accident had taken place at 03.40 hrs. on 12th May, 1982 after the petitioner had commenced work at 22.30 hrs. on llth May, 1982. The Report specified that while operating the turn down tool, the petitioner fell down causing pain in the back and the hip. The Rajawadi Hospital of the Municipal Corporation has issued a certificate dated 8th June, 1982 to the effect that the petitioner was treated in the Out Patient Department between 22nd May, 1982 until the date of the certificate. On 12th June, 1982, the first respondent furnished to the Chief Inspector of Factories, a list of employees who had sustained accidents containing the dates on which the accidents took place and the dates on which the workers had resumed duty. The name of the petitioner was set out at Sr. No. 77 and the date of the accident was referred to therein as 11th May, 1982. The notice specified that the petitioner had still not rejoined duties. On 24th June, 1982, a certificate was issued by the Municipal hospital setting out that the petitioner had been treated in the Out Patient Department, that he had been suffering from a backache and was now fit to resume duties. The petitioner was, however, advised to carry out duties of a light nature not involving bending or lifting heavy weights.
4. On 9th September, 1982, the petitioner wrote a letter to the Vice-President (Manufacturing) of the first respondent recording the circumstances in which he had met with an accident on 11th May, 1982 and requesting the employer to allot to him work of a “light nature” in any other department. The petitioner recorded that he was at that point of time in service of the company for 16 years as a Tyre Builder. The petitioner, was thereupon referred by the employer to Dr. S.S. Vengsarkar, an Orthopaedic Surgeon for medical examination. Dr. Vengsarkar examined the petitioner and submitted his report dated 16th October, 1982. The report of the surgeon insofar as is material was as follows :
“Acute Lumber disc lesion since January 1982. Then had repeated adequate consecutive treatment with relapse in respective levels.”
“As I study the case from history and findings there is a strong evidence that patient had sustained initially the disc strain in May 1982 and had not recovered fully yet.”
The surgeon then prescribed the line of treatment which he was advising the petitioner to undertake.
5. By his letter dated 25th October, 1982, the petitioner requested the Factory Manager of the first respondent to grant to him accident benefits for the period after May 1982 as he had been unable to report for work. By a letter dated 11th February, 1983, the first respondent informed the petitioner that “as a very special case” the petitioner “being a sick case” was being offered a job of repairer/finisher in Category III in the Finishing Department or a job of Recovery Helper in Category V in the Bias Cutting Department. The petitioner responded on 15th March, 1983 stating that it was not correct that he was seeking a change of job as a ‘sick’ case. The petitioner reiterated that he had suffered an injury from an accident in the course of employment and that his incapacity to do the work of a truck tyre builder was a result of that accident. The petitioner, therefore, stated that keeping in view the understanding and practice, he should be transferred to a lighter job without affecting his present wage scale and benefits. The petitioner, however, stated that without prejudice to the aforesaid claim he was willing to take over the job of a recovery helper. On 19th March, 1983, the petitioner wrote to the Vice-President (Manufacturing) of the first respondent recording his protest against a reduction of his wages and other existing benefits. A little prior thereto, on 17th March, 1983, the petitioner had been furnished with an intimation to the effect that in pursuance of his request for being assigned light work, he was transferred to the Bias Cutting Department as a Recovery Helper on certain terms and conditions. These conditions inter alia provided that the basic wage of the petitioner will be reduced to Rs. 10.20 per day and that as a Recovery Helper he would not be entitled to the personal pay which was applicable to the post of Truck Tyre Builder. On 30th March, 1983, while responding to the petitioner’s letter dated 19th March, 1983, the employer stated that Dr. Vengsarkar, the orthopaedic surgeon, to whom the petitioner had been referred had not stated as to whether the incapacity of the petitioner was only due to the alleged accident and in the absence of such a confirmation, the request made by the petitioner could not be accepted.
6. The award of the Industrial Tribunal arose on a reference made by the appropriate government to adjudication of the demand that the petitioner should continue to get the salary in the category of Grade I as Truck Tyre Builder which he was drawing prior to being assigned the alternative work as Recovery Helper on 17th March, 1983. In the statement of claim which was lodged on behalf of the petitioner before the Industrial Court, the petitioner made a grievance to the effect that his basic pay had been reduced from Rs. 2,100/- per month which he was drawing in Grade I as a Truck Tyre Builder to Rs. 1,650/- per month after 17th March, 1983. The case of the petitioner was that the incapacity on his part to do the work of a Tyre Builder was on account of the accident which had been suffered by him in the course of his employment on 11th May, 1982. In paragraph 6 of his statement of claim, the petitioner adverted to the case of 9 workmen, whose salaries had not been reduced despite a transfer to an alternative posting on account of an employment injury. Details of their original Departments and those to which they were transferred were furnished.
7. In the written statement of the first respondent before the Industrial Tribunal, the Company sought to advance the contention that the petitioner had been suffering from arthritis and rheumatic pain since 1982. The Company stated
that it had made payment to the petitioner from 12th to 17th May, 1982 under the belief that he had actually met with an accident whilst on duty, but when the records relating to the petitioner were scrutinized, the Company had come to the conclusion that the workman was not completely cured of his ailment and that he had falsely alleged that he had met with an accident while on duty on the second day after resumption of work after a long period of illness. According to the Company, the petitioner would not have been allowed to go home on the same day by the Municipal Hospital if he had in fact suffered an accident. While dealing with the averments in paragraph 6 of the statement of claim, it was contended on behalf of the first respondent that while it was true that the nine workmen to whom alternative assignments had been given by the Company on account of their having sustained an employment injury were not placed on reduced wages, these nine workmen had in fact met with genuine accidents. On the other hand the Company relied upon four instances where workmen who had been given work of a lighter nature on their own request had been placed on a reduced salary.
8. Evidence was adduced in support of the claim by the petitioner and on behalf of the employer by the Senior Personnel Officer. The Industrial Court by its award dated 18th October, 1997 rejected the reference. The Industrial Court concluded that the petitioner was suffering from an ailment prior to the date of the accident and when there was a serious dispute in regard to the alleged accident, the petitioner ought to have proved the incident. The Industrial Court has concluded that merely on the ba’sis of the version of the petitioner, it could not be held that the accident really occurred on 11th May, 1982. The Industrial Court has then held that there was no medical evidence to show that the workman was suffering from any ailment on account of the accident. The Industrial Court has finally held that no evidence has been brought on record to show that the salary of an employee who is granted an alternative posting is duly protected.
9. The first and primary finding which has been arrived at by the Industrial Court in the present case is that the accident had not taken place at all and it is on that basis that the Court has come to the conclusion that the claim of the workman was liable to be disbelieved. The Industrial Court has drawn an inference against the petitioner for not having examined Mr. Jagdale, who was one of the witnesses named in the Notice of Accident. Now it is common ground that there are three documents in which the employer has expressly referred to the accident which took place on 11th May, 1982. These three documents are : (i) the Notice of Accident dated 11th/12th May, 1982, (ii) the Report submitted by the Manager of the factory in Form 24 of the rules framed under the Factories Act, 1948 and (iii) the letter dated June 12, 1982 written by the employer to the Chief Inspector of Factories. All these three documents which originated in the first respondent clearly advert to the accident which had taken place. The Notice of Accident in fact has three sections, the second being required to be filled in by the department concerned, where the accident has taken place under the signature of the shift foreman. But, apart from this documentary evidence on the record of the case, the Industrial Court completely overlooked the evidence in the course of its judgment. It would be necessary to advert to the evidence tendered on behalf of the employer by the Senior Personnel Officer of the first respondent, Mr. B. B,
Naik. During the course of his deposition, the Senior Personnel Officer stated thus :
“On 11-5-1982 he reported for duty in 3rd shift, On 11th May, 1982 said employee met with an accident and he reported to his superior. He was then sent to first aid treatment.”
Having said this, the witness has deposed that in cases such as the present an employee who complains of pain or of not being fit is sent to the hospital and that in the present case the petitioner was sent to the Rajawadi Hospital by the first Aid Attendant. Since the petitioner had not reported for duty for two days, the first respondent informed the statutory authorities in the prescribed form in regard to the accident. The witness has, however, thereafter stated that no personal verification had earlier been done and when the records relating to the petitioner were verified, it was found that he was suffering from backache and arthritis and he was “not hospitalized for this alleged accident”. In the circumstances, it has been stated that the first respondent deleted the name of the petitioner from the report to be submitted to the Competent Authority in the month of August, 1982.
10. A perusal of the evidence of the witness on behalf of the first respondent would amply demonstrate that the witness has expressly admitted that an accident in which the petitioner was involved did take place on 11th May, 1982. The witness has then adverted to his opinion in paragraph 2 of the evidence that upon a scrutiny of the records relating to the petitioner, the employer found that “he was not hospitalized for the alleged accident”. The fact of the matter, therefore, is that the accident which took place on 11th May, 1982 and of which there is ample documentary evidence on the record of the case, cannot be disputed. If the case of the employer was that no accident had taken place at all on 11th May, 1982, the evidence of the Senior Personnel Officer clearly did not advance the case, for he admitted that he had no personal knowledge of the incident of 11th May, 1982. No evidence for instance of the shift foreman who was to fill in the Notice of Accident was produced. The Industrial Court has, despite the material on the record and the admission of the witness for the employer, entered a finding that the workman had failed to prove the alleged accident. The finding is ex facie unsustainable and discloses an error apparent on the face of the record. The Industrial Court has failed to take into account the admitted material and evidence, both oral and documentary on the record of the case. The petitioner was referred to the Rajawadi Hospital by the first respondent on 12th May, 1982. The certificate of the Hospital has already been adverted to earlier to the effect that he was under treatment thereafter until June. 1982, But what is of significance is the fact that the petitioner was, in October 1982, referred by the first respondent for examination to Dr. S.S. Vengsarkar, an Orthopaedic surgeon. The Orthopaedic surgeon referred to the existence of an acute lumber disc lesion since January 1982 and to the fact that the petitioner had sustained initial disc strain in May 1982. The plea of the petitioner for the protection of wages was rejected by the first respondent on the specious plea that the surgeon had not opined that the incapacity was the result only of the alleged accident. Taking the case of the employer at its highest, the defence of the employer in a case such as the present was to the effect that the petitioner had a
pre-existing ailment for which he came to be treated even prior to the accident. Indeed, the ipse dixit of the employer in paragraph 4 of the written statement was that the petitioner was not completely cured of his ailment by the time he reported on duty on 10th May, 1982. The admitted documentary material on record shows that the petitioner had sustained an accident on 11th May, 1982 and that the surgeon to whom the first respondent had referred the petitioner had opined that the petitioner had sustained a lumber disc lesion in January 1982 and a disc strain in May, 1982. That being the position, if the case of the employer was that the incapacity on the part of the petitioner was not due to the accident which he had suffered, but was entirely as a result of a pre-existing ailment dating back prior to the date of the accident, then some medical evidence ought to have been forthcoming on the part of the employer to that effect. Having established the factum of the accident as well as the nature of the injury at least a part of which was opined by Dr. Vengsarkar to relate to the period around which the accident took place which is May 1982, it was in my view, entirely for the employer to establish by positive evidence that the incapacity to work was not due to the injury sustained in the accident, but to a prior ailment. This has evidently not been shown. In fact, the sole witness on behalf of the employer has stated that he has no personal knowledge about the incident which took place on 11th May, 1982.
11. The Senior Personnel Manager, who deposed on behalf of the employer, has accepted in the course of his evidence that it is correct that if on account of an accident lighter work ‘is given to the employee, his wages are protected. The Labour Court has completely ignored this admission of the witness for the employer and arrived at a finding that there was no understanding and practice to protect the salary of such an employee. In paragraph 6 of the statement of claim, the petitioner had adverted to the case of nine employees to whom a protection of existing wages was granted upon the assignment of lighter work due to an injury sustained in the course of employment. The averment in paragraph 6 of the statement of claim has been expressly admitted in paragraph 13 of the written statement, though it has been sought to be explained on the ground that these were cases of genuine accidents.
12. Apart from the fact that the Industrial Tribunal has ignored the material aspects of the documentary and oral evidence, the Court has failed to consider the impact of the provisions of Section 9-A of the Industrial Disputes Act, 1947. The petitioner had approached the employer with a request that he may be assigned lighter work. The employer while accepting this request made it subject to the condition that the basic wage to which the petitioner was entitled would stand reduced and that he would not be entitled to a certain component of personal pay. The workman had not consented to the wage reduction and had in fact immediately protested against the action. The employer was within his rights to refuse the request of the petitioner for the assignment, of work of a comparatively less onerous nature, if he had reason to believe that the workman was feigning an employment injury. The petitioner had no vested right to demand nor was the employer under an obligation to accede to the request for lighter work. But if the employer chose to do so, the existing wages of the petitioner could not have been unilaterally reduced, save and except by mutual agreement or in accordance with
the provisions of the Industrial Disputes Act. In the present case, the wages of the petitioner have been altered without complying with the provisions of Section 9A of the Act. The learned counsel appearing on behalf of the first respondent submitted that Section 9A would not be attracted since it was a custom or usage to the effect that an employee who was allotted alternative or lighter work on his own request would be paid lower wages corresponding to the category in which he was employed. Reliance has been placed on the averment contained in paragraph 13 of the written statement. The petitioner was also cross-examined with reference to the aforesaid averment and the petitioner fairly admitted that two of the employees who had requested for lighter work were given such work at the wages applicable to the department to which they were transferred. In the present case, it is equally a matter of record that an employee who had sustained an employment injury and who has been assigned lighter work is granted a protection of his wages. The difficulty in sustaining the action of the employer in the present case lies in the fact that the workman was seeking the allocation of lighter work on the ground that he had suffered an employment injury. If the wprkman was correct in stating that his incapacity was due to an employment injury, than the admitted practice was to protect the existing wages in the alternative job which the employer assigned. But even if the employer was justified in not accepting the plea of the workman that he had met with an accident during the course of employment, the workman could not have been compelled to work on a reduced wage on an alternative posting. The option to the employer was either to decline an alternate posting on the ground that there was in fact no accident or to grant an alternate job subject to the consent of the workman to receive the emoluments attracted thereto.
13. A unilateral reduction of wages would clearly be contrary to the provisions of Section 9A. In Workmen of the Food Corporation of India v. Food Corporation of India, (1981) II LLJ 4 (SC), the F.C.I, which has godown and storage facilities to discharge its functions had initially adopted a contract system and the handling labourers were paid through the contractor. Thereafter, the contract system was abolished and the F.C.I, agreed to a direct system of payment to the labourers. The system of direct payment which was introduced in 1973 continued till 1975 when F.C.I, reintroduced the contract system. The Supreme Court held that once the corporation had introduced the direct system of payment and wished thereafter to abolish it, the provisions of Section 9A were attracted, in that item 1 of the Fourth Schedule to the Industrial Disputes Act, 1947 provides for “wages, including the period and mode of payment”. The change, being illegal was wholly ineffective. The learned Counsel for the petitioner has also relied upon the principle that the rules of natural justice require that a prior opportunity of a hearing be given before action adverse to an employee is taken and relied for that purpose on the decision of the Supreme Court in Shrawan Kumar Jha v. State of Bihar, and of the Patna High Court in (1993) I All India Services Law Journal 63. These principles of law are indeed well settled. The judgment of the Supreme Court in the F.C.I, case would establish the proposition that a unilateral attempt by the employer to alter wages, including the period and mode of payment without a notice of change under Section 9A is impermissible.
14. In these circumstances, this is a fit and proper case where the award of the Industrial Court is liable to be quashed and set aside. The Industrial Court has failed to apply its mind to the material evidence on the record of the case and entered a finding which is ex facie not sustainable with reference to the material on record. This Court would be justified in correcting the error apparent on the face of the record in the exercise of its jurisdiction under Article 226 of the Constitution.
15. Insofar as the question as regards the relief which should be granted to the petitioner is concerned, I am of the view that it would not be appropriate or for that matter equitable to grant to the petitioner the full extent of the relief which has been claimed, first and foremost, regard must be had to the fact that the petitioner had been suffering from an arthritic ailment much prior to the date of the accident and had in fact been on leave without wages from February until May, 1982. In the course of the cross-examination, the witness had initially denied that he was ailing because of arthritis. When the witness was confronted with the medical certificates, he stated that he does not remember whether he was taking treatment for arthritis. The conduct of the petitioner therefore left much to be desired. Secondly, the Learned Counsel for the employer has also adverted to the fact that on 28th December, 1981 prior to the accident which forms the bone of contention here, the workman had claimed to have been injured in an accident. An endorsement was made on the Notice of Accident that the workman was “accident prone” and this was his seventh accident that year. A decision was taken not to grant the workman accident leave since it was suspected that the workman was feigning accidents. Thirdly, regard must also be had to the fact that in pursuance of the request made by the employee, the first respondent had allotted to him an alternative job within the establishment and had granted all the service benefits to which a workman in the alternative posting was entitled. The employer could well have adopted the expedient of terminating the services of the workman in a case such as the present, on grounds of continued ill health in which case it would not have amounted to retrenchment in view of the provisions of Clause (c) of Section 2(oo) of the Industrial Disputes Act, 1947. The workman had a history of an arthritic ailment which he has sought to suppress. Even, at present, it is stated that the workman has not attended duties for several months due to the ailment.
16. This is a case which, therefore, lies between two extremes. On one side of the spectrum lies a case where a workman is incapacitated on account of an injury sustained in the course of employment. At the other end of the spectrum is a case where the incapacity is caused not due to an injury sustained in the course of employment but due to an ailment unconnected with employment. Between these two lies a case such as the present where, though the workman had a preexisting ailment, nevertheless at least a part of the reason for incapacity is an accident sustained in the course of employment. A broad common sense approach must be adopted while determining the extent of relief to be allowed. The evidence in the present case is to the effect that where an employee has been rendered unfit for a certain type of work due to an employment injury, the employer would assign alternate work but protect the existing wages drawn prior to the accident. There were nine such cases referred to in para 6 of the statement
of claim. On the other hand, where the employee had made a voluntary request for assignment of alternate work, there being no reason relating to an employment injury, the employee on an alternate assignment was granted the service conditions applicable to the new posting. This has been established as noted earlier, during the course of the evidence. The present case fits a description that lies between the two types of cases noted earlier. The petitioner had a pre-existing bodily ailment. Yet, he had suffered an accident in the course of employment which contributed to the unfitness of the employee. Having regard, therefore, to the totality of the facts and circumstances, I am of the view that the ends of justice would be met by directing the employer to pay 50% of the total differential benefits to which the petitioner would have been entitled had he been allowed the salary of the post of tyre builder Grade I, which he was holding prior to 17th March, 1983. The award of the Industrial Court is accordingly set aside and the Petition is accordingly disposed of in the aforesaid terms. No costs. Parties to act on a copy of this order duly authenticated by the Associate of this Court on the payment of usual copying charges.