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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 3363/1995
Ramchandra Sitaram Kale
(Deceased)
1. Smt. Lata wd/o Ramchandra Kale,
aged 52 years, Occ. Service.
2. Sharaddha d/o Ramchandra Kale,
Aged 13 years, through her mother
natural guardina.
Both r/o Flat No. 302, Ratna Deep
Complex, Nalsaheb Chowk,
Hansapur, Nagpur.
.....PETITIONERS
...V E R S U S...
The Maharashtra State Road
Transport Corporation through
its Works Manager, Central Workshop,
MIDC, Hingana Road, Nagpur.
.....RESPONDENT
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Mr. A. H. Jamal, Advocate for the petitioners.
Mr. V. G. Wankhede, Advocate for the respondent.
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CORAM:- A. B. CHAUDHARI, J.
Date of Reserving the Judgment :- 22nd OCTOBER, 2008
Date of Pronouncing the Judgment:- 10th NOVEMBER, 2008
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JUDGMENT
1. By the present petition, there is a challenge to the
judgment and order made by the Industrial Court on 22.08.1995 in
Revision ULP No. 6/1992 confirming the judgment and order made by
the Labour Court, Nagpur in Complaint ULP No. 761/1988 decided on
18.12.1991 refusing the award of backwages to the petitioner.
2. Mr. Jamal, learned counsel for the petitioner, made the
following submissions. The petitioner was sanctioned special leave
with pay from 12.06.1986 to 01.10.1986 by the respondent-employer
and he also received the sickness benefits for the period of illness as is
clear from an order made by Works Manager, S. T. Central Workshop,
Nagpur on 18.10.1986 (Annexure ‘M’ with this petition). The
chargesheet was given to him on 13.03.1986 and thereafter a show
cause notice was given to him on 22.06.1986. Finally, the respondent-
employer issued dismissal order pursuance to the said show cause
notice on 09.03.1987. According to the learned counsel for the
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petitioner, since the petitioner was on duly sanctioned leave and had
received the sickness benefits for the said illness in accordance with
the provisions of section 73(1) and (2) of the Employees’ State
Insurance Act, 1948 neither any chargesheet could have been issued to
him nor any show cause notice nor dismissal order could have been
issued as provisions of Section 73 of the Employees’ State Insurance
Act, have been held to be mandatory and the chargesheet, notice and
dismissal order become void.
3. Continuing his arguments, Mr. Jamal argued that since
the dismissal order of the petitioner itself is rendered void, the
petitioner could not have been deprived of the backwages for the
period from 09.03.1987 till 15.03.1990 as has been done by the
Labour Court as well as the Industrial Court. The learned counsel
places reliance on the decision of the Hon’ble Supreme Court in
M/s. Hindustan Tin Works Pvt. Ltd. ..vs.. The Employees of M/s.
Hindustan Tin Works Pvt. Ltd. and others; 1978 LAB. I. C. 1667 for
claiming full back wages and another decision of the Supreme Court in
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the case of Buckingham & Carnatic Co. ..vs.. Venkatayya; 1963 (2)
Labour Law Journal (S.C.) 638.
4. Per contra, Mr. Wankhede, learned counsel for the
respondent-employer, vehemently opposed the writ petition and
argued that the Labour Court had framed a preliminary issue as to
whether the enquiry held against the petitioner-employee was fair,
proper and legal and by order dated 16.12.1989 that preliminary issue
was answered against the respondent-employer only on the ground
that the show cause notice dated 22.06.1986 (document no. 6) was
issued during the period of special leave already granted i.e. from
12.06.1986 till 18.01.1986 and therefore the Labour Court found it to
be in violation of Section 73 (2) of the Employees’ State Insurance Act,
1948. He, however, contended that the said order dated 16.12.1989
itself allowed the respondent employer to prove the misconduct by
adducing evidence in the Court. Mr. Wankhede, then continuing
his argument, submitted that accordingly the respondent-
employer adduced evidence before the Labour Court and proved
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misconduct of the petitioner-employee even for the period prior to
12.06.1986 regarding continuous habitual absence of the petitioner
from duty unauthorisedly and also for no good reason and the
misconduct committed by the petitioner even during the period prior
to his special leave was duly proved as has been found concurrently by
both the Courts below and that being so, it cannot be said that the
action taken by the respondent was illegal. He then pointed out that
since the punishment was found to be disproportionate, the Courts
below found that the denial of backwages would be enough
punishment rather than dismissing the petitioner from service and this
has been accepted by respondent-MSRTC and accordingly, the
petitioner was reinstated in service. He, therefore, prayed that the
petition deserves to be dismissed with costs.
5. I have heard learned counsel for the rival parties at
length and also gone through the entire record as well as the
impugned judgments and orders. It will be appropriate to reproduce
the provisions of Section 73 of the Employees’ State Insurance Act,
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1948 which is as under:-
“73. Employer not to dismiss or punish
employee during the period of sickness, etc.- (1) Noemployer shall dismiss, discharge, or reduce or
otherwise punish an employee during the period theemployee is in receipt of sickness benefit or maternity
benefit, nor shall he, except as provided under the
regulations, dismiss, discharge or reduce or otherwisepunish an employee during the period he is in receipt of
disablement benefit for temporary disablement or is
under medical treatment for sickness or is absent fromwork as a result of illness duly certified in accordance
with the regulations to arise out of the pregnancy or
confinement rendering the employee unfit for work.
(2) No notice of dismissal or discharge or reduction
given to an employee during the period specified inSub-sec. (1) shall be valid or operative.”
While interpreting section 73(1) and (2) of the
Employees State Insurance Act, in the case of Buckingham & Carnatic
Co. cited supra, the Hon’ble Supreme Court of India observed as
under:-
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“Even so, what is the effect of S.73 (1)? In considering
this question, it would be useful to take into account the
provisions of Sub-sec. (2). This sub-section provides thatno notice given to an employee during the period specified
in Sub-sec. (1) shall be valid or operative. Thus, it isclear that the giving of the notice during the specified
period makes it invalid, and it is remarkable that the
notice is not in regard to dismissal, discharge orreduction in respect of sickness alone, but it includes all
such notices issued, whatever may be the misconduct
justifying them. Thus, there can be no doubt that thepunitive action which is prohibited by S. 73(1) is not
confined to punitive action proceeding on the basis of
absence owing to sickness; it is punitive action proceedingon the basis of all kinds of misconduct which justifies the
imposition of the penalty in question. What S. 73(1)
prohibits is such punitive action and it limits the extent ofthe said prohibition to the period during which the
employee is ill….”
Reading of the above interpretation by the Hon’ble
Supreme Court clearly shows that the punitive action proceedings on
the basis of absence owing to only sickness is not prohibited by Section
73 (1) of the Act but in respect of all kinds of misconduct, such
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8action is prohibited during the entire period of illness. Now, coming
to the analysis of Section 73, it would be advantageous to quote the
following extract from the very same judgment.
“We are free to confess that the clause is not very happily
worded, but it seems to us that the plain object of theclause is to put a sort of a moratorium against all
punitive section during the pendency of employee’s illness.
If the employee is ill and if it appears that he has received
sickness benefit for such illness, during that period of
illness no punitive action can be taken against him. Thatappears to us to be the effect of that part of S. 73(1) with
which we are concerned in the present appeal. It that be
so, it is difficult to invoke S. 73 against the appellant,because the termination of Venkatayya’s services has not
taken place during the period of his illness for which he
received sickness benefit.”
6. Reading of Section 73 (2), to my mind, shows that even if a
notice of dismissal or discharge or reduction is given to an employee
during the period of illness specified in sub section (1), the same shall
not be valid or operative. According to me, in a case where such
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9notice is given during the said period of illness, the same shall remain
in abeyance because the same is not valid nor the same can be made
operative during that period. It does not mean that such a notice
cannot become operative or valid after the period of illness, as
specified in sub section (1), is over. In the instant case, the sanctioned
period of illness contemplated by sub Section (1) of Section 73 is from
12.06.1986 till 01.10.1986 and the show cause notice came to be
issued on 22.06.1986 i.e. during the said period of illness. The show
cause notice therefore, could not become operative nor could be said
to be valid during the period from 12.06.1986 till 01.10.1986. But
then it is noteworthy that in case of petitioner, this show cause notice
was neither made operative nor valid during the said period of illness
specified by sub Section (1) and the action to terminate services of the
petitioner by dismissal order took place as late as on 19.03.1987 i.e.
after the specified period. The submission made by the learned counsel
for the petitioner that since the show cause notice was issued during
the period of illness, the entire chargesheet as well as enquiry and the
dismissal order must fall to the ground, does not impress me and in
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10view of the above factual situation, I am inclined to reject the said
submission. It is nobody’s case that said show cause notice dated
22.06.1986 was made valid and operative during the said period of
illness i.e. from 12.06.1986 to 01.10.1986. In that view of the matter,
it is not possible to agree with the submission made by Mr. Jamal,
learned counsel for the petitioner. Consequently, I hold that dismissal
order of the petitioner dated 19.03.1987 cannot be said to be void.
7. It is an admitted fact that the misconduct was duly proved
before the Labour Court pursuant to the liberty granted by the Labour
Court to do so and the respondent-employer examined his witness to
prove the misconduct. The Labour Court as well as the Industrial
Court, both have recorded a concurrent findings of facts that the
respondent-employer has proved the misconduct before the Labour
Court, upon evidence against the petitioner and that the petitioner is
guilty of the said acts of misconduct. I have gone through those
findings of facts and I find that they are in consonance with the
evidence on record and there is no need to interfere with those
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findings of facts. I therefore, confirm the above findings of facts of
Labour Court and Industrial Court. That apart, the respondent-
employer filed and proved a statement of absence and attendance of
the petitioner at Annexure “B” of the petition. Perusal of the same
clearly shows that the petitioner remained absent on 114 days out of
365 days in a year. I have seen the reasons for his absence and I am
fully convinced that the petitioner indulged in habitual absence and
the reasons furnished by him on many occasions appear to be bogus.
If the petitioner could remain on leave/unauthoried absence of 114
days out of 365 days in a year, one can understand what kind of duty
he must have performed. The petitioner, for all the above reasons
therefore, is not entitled to any relief muchless claim for backwages
made before me. There is no substance in this writ petition. The same
will have to be dismissed and hence the writ petition is dismissed. No
order as to costs.
JUDGE
kahale
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