JUDGMENT
1. Messrs. Spencer & Co. Ltd., is the petitioner. Second respondent filed an appeal under S. 41(2) of the Tamil Nadu Shops and Establishments Act, challenging the order dated 9-4-1976 terminating his services on medical grounds from 10-4-1976.
2. Second respondent underwent an eye operation for cataract in the year 1974. After three months of rest, he reported for duty and was working in Reserve Stock Godown for nearly one year as a clerk. In 1976, he was sent to Bakery Department and was preparing bills, maintaining stock register, etc. On 25-3-1976, the second respondent was directed to report to the company’s Medical Officer for examination. Exhibit R. 1 is the letter. The company’s Medical Officer in turn gave Ext. R. 2 addressed to Dr. Gupta an opthalmologist, and he examined the second respondent on 30th March, 1976 and gave a certificate stating that “he will have great difficulty in doing normal clerical work”. Thereafter the order of termination was passed after securing the report from the company’s doctor.
3. On behalf of the petitioner, it was claimed that as the eye sight of second respondent, hereinafter referred to as employee, became poor and as he was not able to perform his duties diligently, he was sent to the company’s Medical Officer who referred him to an ophthalmologist, who had given an opinion that he cannot carry out his clerical duties. Based on the medical opinion, he was discharged from service and it being a reasonable cause as contemplated under S. 41 of the Tamil Nadu Shops and Establishments Act, hereinafter called the Act, he was paid one month’s salary in lieu of notice and, therefore, there was no justification for moving the first respondent for relief.
4. Mr. Ramasubramanian, learned counsel for the petitioner contends that when an expert Opthalmologist had certified that the employee will have great difficulty in doing normal clerical work, the discharge of the employee in accordance with the provisions of the Act being based on a reasonable ground, the first respondent was in error in holding that the opinion of the doctors cannot form the basis for discharge of the employee. He pleads that if any other factor pertaining to the nature of work discharged by the employee is also relied upon it would only result in disciplinary proceedings being taken which would neither benefit the employee nor the management. If such is the only course by which discharge could be achieved and not on the reasonable cause of inability to discharge the normal duties, it would nullify the intendment behind S. 41(2) of the Act.
5. Mr. Somayaji learned counsel appearing for the employee opposes this claim by stating that reasonable cause cannot be inferred in a case of this nature and the onus is on the establishment to establish as to what was the cause for the discharge of the employee all of a sudden with one month’s salary.
6. It is significant to note that three is a total absence of any allegations of mala fide or motive or even imputations made either by the management or by the employee. This is very simple matter were both had approached the issue, involved with a restraint, which is not usually found. In respect of what had happened to the employee he has not even resorted to maligning the management. He has narrated before the first respondent as to what had happened to him and how far he was able to survive the effects of cataract due to advance of age and of what was done by the management by sending him to the Ophthalmologist.
7. He states that after wearing spectacles, he was able to discharge his duties as was done earlier. After wearing spectacles, he was serving in the company for one and half years. Even now, he can read small letters and he is anxious to report to duty. He adds that after the examination by Ophthalmologist, the result of which, he was not made aware of he approached another Ophthalmologist by name Dr. V. Anandaraman attached to Government Stanely Hospital in Stanely Medical College Hospital on 30-4-1976 and obtained a certificate to the effect that he is fit to carry our his clerical work with glasses. Therefore, within 30 days of the report of the Ophthalmologist, who gave the opinion to the company, s doctor, this medical opinion has been secured, but not made available to the management till the matter came before the first respondent. Hence more reliance on the opinion of the doctor who had stated that “he will have great difficulty in doing normal clerical work” would not suffice for discharging him from service. On his part, he may suffer more difficulties, but what is required or necessary for the Management to consider is to what extent, after cataract operation he was not able to do the work which was expected to be done by him. It is not uncommon to find persons discharging their duties with great difficulties, but invariably they do with greater responsibilities care and caution. The opinion secured, had not said that he cannot do clerical work or that his eye sight has failed to the extent that he cannot decipher letters or read communications. The difficulty, if any, experienced by an employee is not the concern of the management. The aspect to be looked at is whether the difficulties experienced by him had resulted in the employee failing to discharge his normal and expected duties. It is this aspect which has not been spelt out by the management by adducing necessary oral or documentary evidence. If any witness had been examined and erroneous statements prepared by the employee had been filed in the case to show that he was not even able to prepare bills and maintain ledgers and bill books and that he commits errors, it would have been held that there is a reasonable cause for discharging him. Since the petitioner Management has failed to adduce such evidence the approach made by the first respondent that the opinion of the doctor cannot form the basis for a reasonable cause, has to be sustained. It was also stated therein that the opinion of the doctors do not conclusively declare that the employee was unfit to perform his duties.
8. Mr. Ramasubramanian, learned counsel for the petitioner at this juncture would state that in cases of this nature, if the management is to adduce any evidence it would result in a finding being given that the management is pleading inefficiency as against the employee and hence disciplinary proceeding alone could be taken and it becomes a cumbersome and unending process which would not be necessary in a case where physical disability exists.
9. It is not as if a finding on inefficiency would be arrived at when the notice of discharge is issued based on consequential effects suffered by the management due to the physical disability of an employee. If the employee is able-bodied and is capable to do work, and in spite of it, if he is negligent or inefficiently carries out his duties, then alone the aspect of disciplinary proceedings would arise. It all depends on what forms the basis for the taking action. Therefore, in a matter of this nature, if only the management had come forward to adduce evidence that after operation for cataract he was not able to carry on his clerical duties as expected of him no finding would have been rendered that the company was pleading inefficiency as against the employee.
10. The next point taken by Mr. Ramasubramanian is that in fact in the impugned order the first respondent has approached the matter as if the management will have to establish inefficiency even while pleading for discharge. In the order, it is stated that it would not be open to the management to act on the medical opinion without establishing the inefficiency on the part of the employee and in the absence of any evidence to support the case of inefficient performance of his duties, the medical opinion by itself could not be sufficient. What is actually meant is that in the absence of evidence that the employee was not able to perform his normal duties due to his physical disability the discharge was unsubstainable. When physical ailment or drawback or infirmity sets in, the word carried out or discharged may assume different characteristics. It need not always lead to inefficiency. A person may do the work slowly but carefully and precisely Even if he is to commit any error, he may re-do the work and see to it that for the salary earned by him, he does not commit faults in the duties assigned to him, he does not commit faults in thee duties assigned to him. Instead of checking once he may do it twice. He may take perhaps longer time to do the work than what he was doing earlier. He may suffer physical agony but may not avoid doing his part of the work. Hence it cannot be said that inefficiency would be the resultant effect of the physical drawbacks which start setting in, in stages as a person advances in age. In the instant matter he has undergone cataract operations in both the eyes and specs had been prescribed for him. As against the opinion of Dr. Gupta, an Ophthalmologist, attached to Stanley Medical College hospital and who is a Professor in Stanley Medical College has opined within thirty days thereafter under Ext. A. 2 that the employee can carry on his clerical work with glasses. Therefore the opinion which has formed the basis for discharge, has turned out to be less dependable. In fact as was stated earlier, the said opinion, has only referred to the difficulties that my be experienced by the employee and had not even said as to how far the out-come of the work would be affected. Therefore, when the petitioner has thus failed in not adducing any evidence of what was the resultant effect of the cataract operations it cannot be said that the order passed by the first respondent was based on any error apparent on the face of the order.
11. The petitioner is now obliged to make payment without realising the services of the employee who has been anxious to report to duty and do his best to a company where he had devoted all his life and energy. In matters of this nature, it would be of immense benefit to both the management and the employee if only in spite of pendency of such proceedings, a method is evolved to get the work done, by giving different assignments so that, there may not be payment made without work being done.
12. For the reasons above, stated, the writ petition is dismissed. No costs.