F.M. Ibrahim Kalifulla, J.
1. By these two writ petitions, the management and the workman seek to quash the award of the first respondent-Labour Court, dated April 23, 1993, passed in I.D. No. 433 of 1990.
2. The management is aggrieved against the said award of the Labour Court inasmuch as the first respondent having held that the termination order, exhibit M-39, issued by the management was justified it was not open for the first respondent to grant any relief in the form of payment of ex gratia amount of Rs. 25,000 to the workman. The workman is aggrieved against the said award inasmuch as the first respondent has held that the termination order issued under exhibit M-39, was justified and that the workman was only entitled for ex-gratia of Rs. 25,000. The workman is also aggrieved against the other finding of the first-respondent holding that the employee does not fall within the definition of “workman” as defined under Section 2(s) of the Industrial Disputes Act, 1947. W.P. No. 12374 of 1994 has been preferred by the employee, while the other writ petition, viz., W.P. No. 15898 of 1994, has been preferred by the management against the very same award.
3. Learned counsel for the petitioner-workman in W.P. No. 12374 of 1994 raised the following contentions, namely, that the order passed in the appeal preferred by the workman under the Tamil Nadu Shops and Establishments Act, 1947, against the order of termination, cannot stand in the way of the petitioner raising an industrial dispute, challenging the very same order of termination, even though the appeal preferred under the Tamil Nadu Shops and Establishments Act was rejected on the ground of delay in preferring the appeal. Secondly, learned counsel contended that the finding of the first respondent-Labour Court that the petitioner was not a “workman” under Section 2(s) of the Industrial Disputes Act was wholly illegal and was not based on proper acceptable evidence. Thirdly, learned counsel for the petitioner would submit that the allegation of continued ill-health, based on which the order of termination was issued, was wholly unjustified. Lastly, he contended that the petitioner’s involvement in certain business ventures carried on by his wife and mother, cannot be a ground for the first respondent to grant a lesser relief than what he was entitled to in the facts and circumstances of the case.
4. As far as the question of maintainability of the dispute is concerned, the said question is not seriously contested in these writ petitions. In fact, the first respondent-Labour Court itself has held that the rejection of the appeal filed under the Tamil Nadu Shops and Establishments Act on the ground of delay, cannot stand in the way of the first respondent adjudicating the dispute relating to the non-employment of the petitioner-workman on merits. It is also settled legal position that where both remedies are available to a workman and if the appeal preferred under the Tamil Nadu Shops and Establishments Act was rejected on the technical ground of delay the workman could still pursue his other larger remedy available to him under the provisions of the Industrial Disputes Act, 1947. In such circumstances, the dispute raised by the petitioner-workman cannot be thrown out on the ground of the rejection of the appeal filed under the Tamil Nadu Shops and Establishments Act, that too, on the ground of delay.
5. As far as the finding of the first respondent relating to the petitioners status as “workman”, as defined under Section 2(s) of the Industrial Disputes Act is concerned, on a perusal of the documentary evidence placed before the first respondent as well as the deposition of M. W. -1, it cannot be held that the finding of the Labour Court on that score is well-founded so as to exclude the petitioner from the category of workman. It is the bounden duty of the second respondent-management to establish beyond doubt that the petitioner-workman performed various duties which would establish that the same was supervisory in nature. Unfortunately, though M.W.-1 would state that the petitioner, while working as junior engineer, as part of his duties, allotted work to the workman working in the shift supervised the work performed by the workmen and various other duties; no material was placed before the first respondent to show that such supervisory nature of the duties were factually performed by the petitioner, so as to exclude the petitioner from the definition of “workman” and to call him “supervisor”. In such circumstances, in the absence of any acceptable legal evidence placed before the first respondent, I am unable to sustain the finding of the first respondent that the petitioner was not a “workman” falling under the definition of Section 2(s) of the Industrial Disputes Act.
6. Inasmuch as the first respondent has gone into the merits of the justification of the non-employment and since the petitioner-workman is aggrieved against the said part of the award, it has become necessary for this Court to find out as to whether that part of the award is justified. On this question, it is the case of the second respondent-management that, by order dated February 12, 1985 (exhibit M-39), the services of the petitioner-workman were terminated on the ground of his continued illness. According to the second respondent-management the petitioner-workman was initially granted medical leave continuously from April, 1983, that such illness continued even up to March 16, 1985, till which date, the petitioner himself wanted grant of leave on the ground of illness and in such circumstances, that even as per the version of the petitioner-workman himself, he was advised by a specialist/doctor in Madras to avoid chemical fumes and, therefore, while sympathising with his illness, the management was not in a position to wait for the return of the petitioner-workman for work for any indefinite period. As far as the said factum of illness of the petitioner is concerned, the first respondent-Labour Court has considered in detail the illness suffered by the petitioner during various spells from April 4, 1983, till the date of issuance of the order of termination dated February 12, 1985, under exhibit M-39. A perusal of paragraph 9 of the award of the first respondent-Labour Court discloses that, admittedly, the petitioner was suffering from various diseases during the relevant period apart from certain sporadic spell where he had to be away on leave to go to certain other stations outside his place of employment. The fact remains that major portion of the period of his absence was covered by sanctioned leave, the petitioner was prevented from reporting for work due to ill-health. In this context, it is also relevant to note that in December, 1984, when the management wanted the petitioner-workman to appear before the company’s medical officer to rule out the possibility that the illness of the petitioner may not be true, the petitioner-workman in his communication dated December 15, 1984, marked as exhibit M-37, took a categoric stand that the doctor who was attending on the petitioner, having got a superior qualification than that of the company’s medical officer, the medical certificate of the doctor attending on the petitioner should be accepted. Therefore, the question of illness suffered by the petitioner for a considerable length of time prior to the order of termination, being an indisputable factor, I am of the view that the finding of the first respondent-Labour Court relating to his illness, cannot be assailed.
7. The other question that remains to be considered is as to whether the order of termination passed by the second respondent-management in exhibit M-39 was justified. It is too well settled that under Section 2(oo)(c) of the Industrial Disputes Act, which excludes from the definition of “retrenchment” the termination of the service of a workman on the ground of continued ill-health, and in a case where such a termination was based on continued ill-health of a workman, it is open for the management to establish the factum of the continued ill-health even before the Labour Court and that the absence of holding any domestic enquiry to establish the said fact, would not, ipso facto, vitiate the order of termination. That being the legal position what all to be seen was whether the second respondent-management satisfactorily established the continued ill-health of the petitioner-workman, which forced the second respondent-management to issue the order of termination under exhibit M-39. It is in this context, I refer to paragraph 9 of the award of the first respondent-Labour Court, in which, the long spell of absence of the petitioner right from April, 1983, till February, 1985, was considered in detail, with particular reference to the exhibits filed by the second respondent-management under exhibits M-2 to M-39. As stated earlier, it is the stand of the petitioner himself that because of his continued ill-health and the advice of the doctor attending on him, that he should not expose himself to places of chemical fumes and by the inherent nature of the product manufactured by the second respondent-management, namely, manufacture of synthetic rayon viscose, which, by its very nature, created chemical reaction. Therefore, there was every possibility of the petitioner-workman’s health getting affected further if he were to join duty. In the circumstances, what was required to be seen was whether the petitioner was actually suffering from illness that prevented him from reporting for a duty over a continuous spell of period. The absence of the petitioner from April 1983, to February 1985, namely, till the date of issuance of the order of termination dated February 12, 1985, is not in dispute. It is also not in dispute that for certain periods, the absence was covered by sanctioned leave. It is also not in dispute that certain periods of absence were for reasons other than the illness of the petitioner. But, the fact remains that for major part of the period during the said spell, the petitioner was admittedly suffering from illness, due to which, continuously for either two months or three months at a time, the petitioner was obliged to seek for condoning his absence by way of the grant of leave. Added to that, he was also advised not to expose himself before any chemical fumes. We are not concerned with the question as to whether the absence of the petitioner was covered by sanctioned leave or not. The question is whether the petitioner was suffering from any illness, which was also continuous, which prevented him from performing his normal work with the employer. In finding out the truth for the said question, I am of the view, that the conclusion of the first respondent reached in paragraph 9 of the award by analysing various exhibits filed under exhibit M-2 to M-39 was convincing. In such circumstances, when the continued ill-health of the petitioner, having been established before the first respondent, the said conclusion of the first respondent- Labour Court cannot be interfered with in the these writ petitions.
8. The next question that remains to be considered is as to whether the first respondent was justified in granting tbe relief of payment of ex-gratia of Rs. 25,000 to the petitioner. It is too well settled that while exercising the power under Section 11-A of the Industrial Disputes Act, first and foremost, the first respondent should give a finding as to whether the non-employment was not justified so as to invoke the said power available under Section 11-A of the Industrial Disputes Act. When once the first respondent comes to a conclusion that the non-employment was justified, there is absolutely no scope for the first respondent to deal with the other question as to whether the punishment is disproportionate or not. In other words, in cases where the Labour Court comes to the conclusion that the non-employment was not justified, there is every scope for interfering with the punishment by invoking Section 11-A of the Industrial Disputes Act. But when once the first respondent came to the conclusion that the non-employment of the petitioner-workman was justified, there is no jurisdiction for the first respondent to move forward and consider the question about the adequacy of the punishment imposed. Such being the legal position, the award of the first respondent-Labour Court granting relief of a sum of Rs. 25,000 by way of ex-gratia is beyond its jurisdiction. Therefore, the said part of the award is liable to be set aside.
9. Learned counsel for the petitioner-workman relied on a judgment in Marmaswar Das v. Labour Court 1984 (2) LLN 156, at 5 pages 159 and 160, for the proposition that the termination on the ground of continued ill-health, as has been done in this case, cannot be sustained inasmuch as the disease or illness complained of could not be categorised as one) of continued ill-health. In the said judgment itself the learned judges were pleased to hold that a person can be said to suffer from continued ill-health when the disease is spread over for some period of time and that, in that case, there was no material placed before the Court to show as to since when, the petitioner was suffering from the ailment in question. It was further noticed by the learned judges that the termination order itself did not say that it was on such a ground that the services were dispensed with and that it merely spoke of] medical unfitness. Therefore, the continued ill-health of a person being a question of fact depending upon the facts and circumstances of each case, since, in the case on hand, based on voluminous documentary, evidence placed, before the first respondent apart from the indisputable position about the illness suffered by the petitioner for various spells during the relevant period, the ratio of the judgment, referred to above, cannot be made applicable to the facts of this case.
10. Learned counsel then referred to a judgment in Workmen represented by the General Secretary, India Cements Employees’ Union v. General Manager, India Cements-Ltd., 1999-II-LLJ-l (Mad-DB), for the proposition that the termination on the ground of continued ill-health as has been done by the second respondent-management in this case, cannot be upheld. In this judgment, a Division Bench of this Court was concerned with a case of non-confirmation of an employee on the ground that he was suffering from certain physical defect which made him unfit for work and disentitled him for absorption. On a perusal of the said judgment, I find that there were variations in the certificate given by the doctor attached to the company’s dispensary and the District Medical Officer and that the workman therein was not given proper opportunity to establish that the disease alleged to have been suffered by him was non-communicable and non-infectious one and which affected his right for absorption. It was, in those circumstances, the learned judges were of the view that the action of the management therein was vitiated. The facts involved in the said judgment is also not applicable to the facts of this case, where, the factum of illness is admitted and the petitioner’s inability to perform his duties due to the said illness is also established by his own admission.
11. Learned counsel also referred to a judgment in Lalit Mohan Puri v. Pure Drinks (New Delhi) Ltd. 1992-II-LLJ-439 (Del-DB). Here again, though the order of termination was based on continued ill-health, as held by the Division Bench, there was total lack of evidence much less a direct evidence to show that the workman was suffering from ill-health and that the said illness continued till the time of termination of his services. This judgment is also, therefore, not applicable to the facts of the case where continued ill-health was never in dispute.
12. Learned counsel also relied upon a judgment in Western India Match Company Ltd. v. Third Industrial Tribunal . That was a case, where the management invoked a clause in the contract which enabled the employer to determine the employment without any notice or payment in lieu of notice, when once the workman was incapacitated by a larger period than two calendar months from properly discharging his duties. First and foremost, the termination in the case on hand is not based on any such terms in the contract of employment between the petitioner-workman and the second respondent-management. Moreover, in the said case, the concerned workman who was on leave till November 4, 1963, was terminated from service on November 5, 1963, by invoking the abovesaid clause. Therefore, unlike the case on hand, where the illness, which was the basis for the issuance of exhibit M-39, namely, the order of termination, was continuous for a long spell and such illness was also not in dispute. Therefore, there is no scope for applying the ratio of the said judgment to the case on hand.
13. Learned counsel then relied upon a
Judgment in Om Prakash Goel v. H.P. Tourism
Development Corporation , for the
proposition that the relief granted by the
Labour Court by way of ex gratia was not in
consonance with the law. Inasmuch as I have
held that, that part of the award of the first
respondent was beyond the jurisdiction of the
first respondent, namely, that after having held
that non-employment was justified, it was not
open to the first respondent to delve into the
question about the adequacy of punishment, the said judgment cannot even be considered.
14. The other judgment relied upon by learned counsel in U. P. State Road Transport Corporation v. Mahesh Kumar Mishra, also does not apply to the facts of the case, inasmuch as there was overwhelming evidence available on record in support of the conclusion that the petitioner was suffering from continued ill-health to support the order of termination.
15. Learned counsel then relied upon a judgment in Colour-Chem Ltd. v. A.L. Alaspurkar, for the proposition that while dealing with a case falling under “welfare legislation” and where provisions are capable of two constructions, one which furthers the policy and object of the Act and which is more beneficial to the employees should be preferred. There is no scope for applying the said decision of the Supreme Court, inasmuch as in my view, the very relief granted by the first respondent by way of payment of ex gratia to the petitioner, was beyond its jurisdiction.
16. For all the above stated reasons, I hold that the award of the first respondent holding that the non-employment was justified, is fully supported by evidence available on record, both in the form of categoric admission of the petitioner himself as well as the documentary evidence by way of exhibits M-2 to M-39. There is, therefore no scope for interfering with the said part of the award of the first respondent holding that the non-employment was justified. However, I hold that the second part of the award of the first respondent-Labour Court directing payment of a sum of Rs. 25,000 by way of ex gratia is totally unjustified and is one which was made in excess of the jurisdiction vested with it. Therefore, that part of the award is liable to be set aside. I also hold that the finding of the first respondent holding that the petitioner is not a “workman” is not supported by legally acceptable evidence and, therefore, the same is liable to be set aside.
17. In the result, the writ petition preferred by the workman in W.P. No. 12374 of 1994 is dismissed except to the extent of vacating the finding relating to definition of “workman” and the writ petition preferred by the management in W.P. No. 15898 of 1994 is allowed. No costs. Consequently, W.M.P. Nos. 18712 and 24015 of 1994 are closed.
18. These petitions having been posted on this day being mentioned in pursuance of the order of this Court dated October 25, 2000, and made herein and in the presence of the aforesaid advocates the Court made the following order:
I dictated my judgment in the above writ petitions on October 25, 2000, in the open Court. The above matter has been listed today for being mentioned at the instance of learned counsel for the management to pass certain further orders about the amount deposited pursuant to certain interim orders passed during the pendency of the writ petitions.
2. In W.M.P. No. 24015 of 1994, it is represented that as per the order dated September 13, 1994, the petitioner in the Writ Petition No. 15898 of 1994 was directed to deposit a sum of Rs. 25,000 to the credit of I.D. No. 433 of 1990 within eight weeks from the date of the order and that as per the direction of this Court, the said sum of Rs. 25,000 had been deposited and is lying to the credit of I.D. No. 433 of 1990, inasmuch as the writ petition preferred by the management in W.P. No. 15898 of 1994 is allowed, the said sum of Rs. 25,000 lying in the Court deposit shall be refunded alongwith accrued interest to the management on production of a copy of this order, inasmuch as the award has been set aside, and the non-employment of the workman has been confirmed, there should be no impediment for the management in settling the terminal benefits of the workman concerned. The management shall settle the same within a period of three months from this date.