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Spencer and Co. Ltd. Vs. Industrial Tribunal, Bangalore and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 1240 of 1962
Judge
Reported in(1965)IILLJ1Kant
ActsConstitution of India - Articles 226 and 227
AppellantSpencer and Co. Ltd.
Respondentindustrial Tribunal, Bangalore and anr.
Excerpt:
.....of permits earlier, cannot create a right in favour of appellants nor constitute an estoppel against revision-petitioner from enforcing their rights and questioning the renewals of permits. grant of renewal is a fresh grant, though it breathes life into previous grant, as per existing provisions of act. - the tribunal in one part of the award observes that the failure on the part of the company's doctor to prescribe medicines for the cure betrays that he was absolutely unmindful about the sufferings and ailments of muthu nair and about giving any medical relief but he was anxious to report that muthu nair was unfit for service. under these circumstances, unless he is prevented by any law, he had the right as well as liberty to carry on the work. 17. we are satisfied that the award..........in writing of his absence from work and of the probable duration of such absence. the necessary medical certificate must be sent within three days. an employee who has been absent for more than two weeks owing to sickness, will not be allowed to resume work after illness unless he produces a written declaration to the effect that he is fit for service from the company's doctor or, if the company's doctor is not available, from a registered medical practitioner rule 22. - 'it shall be deemed a condition of the contract of employment between the company and its employees that except as provided below the date of compulsory retirement of a company's employee in all grades of services shall be the date on which (a) he attains the age of 60 years, or (b) completes 30 years of service.....
Judgment:

Gopivallabha Ayyangar, J.

1. In this writ petition the petitioner prays for an order quashing the award dated 10 July, 1962, passed by the industrial tribunal in Mysore, Bangalore, in Industrial Dispute No. 42 of 1961, on a reference made by the Government of Mysore under their order No. PLM. 435 LLD. 61, dated 18 December, 1961. The reference related to the termination of the services of one Muthu Nair who was working as a head dhobi in the establishment of the petitioner.

2. The facts are follows : Muthu Nair was working as a head dhobi in the hotel of the petitioners. He was examined by one doctor, V. G. Ranganathan, the medical officer of the company, first on 20 April, 1961. The employee was found to be suffering from high blood pressure and there was also a murmur in his heart. The employee was advised to take rest for 23 days. Again, the employee was examined on 15 May, 1961. He was advised rest for 15 days. Again, on 5 June 1961, the employee was examined by the company's doctor and also by the cardiac specialist. On the basis of these examinations, the company's doctor gave a certificate of unfitness on 6 June, 1961. On the basis of this certificate, the services of Muthu Nair were terminated on 9 June, 1961. The employee disputed the correctness of the certificate issued by the company's doctor and challenged it as mala fide and actuated by malice. The petitioner examined his doctor and also the cardiac specialist who had confirmed the view of the medical officer. The employee examined one Dr. B. Venkatasubba Rao who had examined the employee in respect of his heart condition on 17 and 22 September, 1961. After considering the evidence adduced by the parties and the certificate issued by the several doctors, the tribunal came to the conclusion that the termination of the services of the employee was not justified and directed the reinstatement of the employee with backwages from the date of termination of his services. The petitioner-management has filed this writ petition challenging the award passed by the industrial tribunal.

3. Before Setting out the contentions of Sri T. Krishna Rao, the petitioner's counsel it is necessary to state that the conditions of service of the employee are governed by the standing orders of the company. The relevant rules are 12 and 22 and they are as follows :

Rule 12. - 'Unless 14 days' notice is given to head office or to a department manager in Madras, leave for more than three days at a time shall not be granted except in the case of sickness. Any employee who desires to obtain leave shall ordinarily apply to the manager at least three clear days previous to the day in the week fixed for the purpose of granting and refusing leave or in the cases of casual leave three days previous to the day on which such leave is to commence. Application may be made at any time if the leave applied for is of an urgent nature, that is to commence on the date of the application or within two days thereof. No leave of absence will be granted for less than halfday. An employee who, after proceeding on leave, desires an extension thereof shall make an application in writing for the purpose to the manager. A written reply either of the grant or refusal of extension of leave shall be sent to the employee if his address is supplied on the application and if such reply is likely to reach him before the expiry of the leave originally granted to him. In the case of sickness or in the case of special circumstances which cannot be foreseen when it is not possible to obtain the previous permission of the manager, the employee shall, as soon as practicable, inform the manager in writing of his absence from work and of the probable duration of such absence. The necessary medical certificate must be sent within three days. An employee who has been absent for more than two weeks owing to sickness, will not be allowed to resume work after illness unless he produces a written declaration to the effect that he is fit for service from the company's doctor or, if the company's doctor is not available, from a registered medical practitioner

Rule 22. - 'It shall be deemed a condition of the contract of employment between the company and its employees that except as provided below the date of compulsory retirement of a company's employee in all grades of services shall be the date on which

(a) he attains the age of 60 years, or

(b) completes 30 years of service with the company, or

(c) is declared medically unfit by the company's medical officer,

provided that the company may retain any person who, although he may come within any of the classifications (a) and (b) referred to above, in the opinion of the management, has received special training or acquired special knowledge, skill or aptitude such as to render the termination of his services undesirable to the company.'

4. The case of the management is that when the company's medical officer has declared the employee to be medically unfit, the termination of the services of the employee is valid, it being in accordance with the provisions of the standing orders. Unless it is established by the workman that the conduct of the petitioner is mala fide or amounts to victimization or unfair labour practice and that the order of termination was issued as a cloak of that purpose, the tribunal cannot question the action taken by the employer as provided under the standing orders. There being no mala fides on the part of the employer, the further question that arises in this case is as to whether the doctor who has issued the certificate of unfitness has acted bona fide or not. The decision of the tribunal on this question, which relates to the jurisdiction of the tribunal to adjudicate on the question of the employee's unfitness, is open for scrutiny both on facts and in law by the High Court. In writ Petition No. 827 of 1960, this Court has held that :

'Where however no exclusive jurisdiction to decide upon jurisdictional facts is conferred on a tribunal by the statute creating it, a correction by the High Court of an erroneous decision on collateral facts on the existence of which the jurisdiction of the inferior tribunal depends is undoubtedly necessary with a view to keep the tribunal within the bounds of its jurisdiction, because to deny such a power as included in Art. 226 or 227 would lead to empowering the inferior tribunals by an erroneous decision to confer upon themselves a jurisdiction which they do not possess without the High Court being able to prevent such a result.'

5. Learned counsel have addressed arguments on the basis that it is open to the High Court to examine the correctness of the decision of the tribunal in regard to the jurisdictional fact, both on facts, and in law.

6. Sri T. Krishna Rao, the learned counsel appearing for the petitioner, contends that the finding of the tribunal that the certificate of the medical officer is unacceptable and that there is support for the allegation that the doctor has maliciously acted in this case against the workmen are opposed to the evidence on record. It is further contended that there is no basis for the complaint that the management has not given any opportunity to the workman to substantiate his stand denying his unfitness and to disprove the stand taken by the management.

7. Sri G. Maheswarappa, the learned counsel for respondent 2, has taken us through the evidence of the witness examined by the parties. From the evidence of M.W. 2, Dr. Ranganathan, we find that the employee was examined by him first on 20 April 1961. Later, he was examined on 15 May, 1961. On both these occasions, the workman was advised leave and accordingly he went on sick leave. On 5 June, 1961, the employee was examined again by the company's doctor. The company's doctor realizing the serious consequences of a certificate of unfitness which he has to give, got confirmation of his opinion regarding the heart condition of the workman by getting the employee examined by a cardiac specialist. There is absolutely no material to indicate that the company's doctor was actuated by ulterior motives or that he was in a hurry to jump to the conclusion that the workman was unfit. The workman states that there was no ill-feeling between him and the company's doctor. He does not deny that he went on leave as mentioned by the doctor but he says he was compelled to go on leave by the doctor twice even though he was quite fit. No complaint in this regard was made at any time before he entered the witness-box. The motive alleged against the doctor for giving an untrue declaration of unfitness is that there was a petition by the employees to the management relating to the conduct of the doctor and that the doctor was under the impression that Muthu Nair had instigated the petition. The doctor, when questioned about this, denies any knowledge of such complaint. The employee did not protest against the conduct of the doctor immediately after his examination either in April, or May, or June, 1961. Therefore, we are unable to accept the allegation that the company's doctor had acted maliciously.

8. The tribunal has also chosen to discount the declaration of the doctor on grounds which appear to be extraneous. In para. 11 of the award, the tribunal observes :

'One should expect a doctor when he finds something wrong with a patient to prescribe to him certain remedies and to advise him as to what he should do and what he should not do. It is curious that M.W. 2 has done nothing of this sort and that he has at once jumped to the conclusion that Muthu Nair was unfit for service. It is difficult to understand why he was more anxious to make a report about his unfitness than to do something to give relief to the patient who was suffering from some ailment.'

9. It appears to us that this approach ignores the duty that the company's doctor was expected to discharge. In this evidence the doctor says :

'My duties towards the employees and the management are

(1) to examine the employees and certify if any rest is needed and should given leave;

(2) to certify if they are fit to rejoin duty;

(3) to certify if they are fit for being entertained into service; and

(4) if so required by the management, to go to the residence of the employees and examine them to find out if they feign sickness or if the sickness is real.

I have no more duty to perform towards them. It is not one of my duties to report which of the employees is fit to continue in service and which of them is unfit to continue.'

10. The last sentence is construed by the tribunal as an admission that it was not his duty to report about the unfitness of an employees. This view of the tribunal does not appear to be correct, in view of the categorical statement made by the doctor in respect of his duties. There is nothing on record to indicate that the duty of the doctor was to prescribe any medicines to the employees or that he was requested to do so. The tribunal in one part of the award observes that the failure on the part of the company's doctor to prescribe medicines for the cure betrays that he was absolutely unmindful about the sufferings and ailments of Muthu Nair and about giving any medical relief but he was anxious to report that Muthu Nair was unfit for service. In this context, we notice that the employee was first examined by the company's doctor on 20 April, 1961. The employee was on sick leave for 23 days. Under rule 12 of the standing orders quoted already, an employee who has been absent for more than two weeks owing to sickness will not be allowed to resume work after such illness unless he produces a written declaration to the effect that he is fit for service from the company's doctor or, if the company's doctor is not available, from a registered medical practitioner. It is presumably in accordance with this rule that Muthu Nair went for a certificate of fitness from the company's doctor on 15 May, when he was advised further rest for fifteen days. It is only in June 1961 that the doctor, after assuring himself about the correctness of his diagnosis by reference to the cardiac specialist, gave the report of unfitness. This appears to be a very normal conduct on the part of the doctor. He exhibits no anxiety to report that Muthu Nair was unfit for service as the tribunal suspects. Further, it is clear that the company's doctor realized the serious consequences of the report of unfitness that he may have to issue and, therefore, he gets his views confirmed. To support the contention that the report of unfitness issued by the company's doctor is false in fact, Sri G. Maheswarappa, the learned advocate for respondent 1, invites our attention to the certificate issued by Dr. B. Venkatasubba Rao, retired Director of Medical Services, regarding the heart condition of the employee. The view of Dr. Venkatasubba Rao, as observed by the tribunal, is no doubt entitled to great weight : but it must be seen that the certificate of Dr. Venkatasubba Rao is issued on the examination of the employee on two occasions, viz., 17 and 22 September, 1961. The certificate issued by Dr. Venkatasubba Rao relates to the condition or the employee on 17 and 22 September 1961, but the certificate of the company's doctor relates to the condition of the employee on 6 June 1961, which is the relevant date. It is significant that Dr. Venkatasubba Rao has not been asked by the party who had summoned him, as to what the condition of the employee would have been in June 1961, nor has he been asked as to what he has to say with regard to the certificate issued by Dr. S. Janardhan (the cardiac specialist) or the report made by the company's doctor. The finding of the company's doctor as regards the physical condition of Muthu Nair in May and June 1961, remains unaffected by the evidence evidence of Dr. Venkatasubba Rao. Therefore, it appears to us that the certificate of unfitness issued by the company's doctor is bona fide and the allegation of Muthu Nair that the company's doctor has acted maliciously against him is baseless.

11. As already pointed out, the company's doctor is in duty bound under rule 12 to issue a certificate to the employee when he wants to return to duty after being absent for over two weeks on sick leave. Under rule 22 of the standing orders, the employee is compulsorily retired on a declaration by the company's medical officer that the employee is medically unfit. The company's medical officer in this case has issued a certificate of unfitness which is beyond reproach. According to the standing orders, the management has terminated the services of the employee on the basis of such report.

12. The tribunal has taken the view that when Muthu Nair was not prepared to accept the correctness of the certificate of alleged unfitness, he ought to have been given a fair and proper opportunity to substantiate his stand or at least to disprove the stand taken by the management. Sri T. Krishna Rao submits that the action of the management being in accordance with the standing orders, there was no obligation on the part of the management to issue any notice to the employee or frame charges or hold any inquiry before taking action on the declaration of the medical officer that the employee was unfit for service. There is much force in argument. As long as the action of the management was bona fide in accordance with standing orders and not actuated by any victimization or unfair labour practice, the action of the management cannot be interfered with by the tribunal. In support of this contention, the petitioner's counsel relies on the observations of the Supreme Court in Burn & Co., Calcutta v. Their employees [1957 - I L.L.J. 226]. In that case, the services of one Ashimananda Banerjee, who was an employee of Burn & Co., had been terminated on the ground of continued absence and this termination was in accordance with the standing orders of the company, but without a charge being framed or an enquiry being held. The ground of discharge was the continued absence of the employee. The tribunal had set aside the termination and directed reinstatement. With reference to the contention that the employee ought to have been discharged after framing a charge or holding an enquiry, the Supreme Court observes as follows (p. 234) :

'... The Appellate Tribunal has accepted that claim on the ground that he had been discharged without the company framing a charge or holding an enquiry, and that the rules of natural justice had been violated. We are unable to agree with this decision. The ground discharge is the continued absence of the employee, and his inability to do the work, and it is difficult to see what purpose would be served by a formal charge being delivered to him and what conceivable answer he could give thereto ...'

13. The same view has been taken by the Supreme Court in the decision in Indian Iron and Steel Company, Ltd. v. Their workmen [1958 - I L.L.J. 260]. The services of seven workmen of Indian Iron and Steel Company had been terminated in accordance with the standing orders on the ground that they were absent without leave for fourteen consecutive days. The contention of the workmen that the management's action in terminating their services was wrong and that they ought to have been granted leave as applied for by them for the period when they were in custody had been accepted by the industrial tribunal. The Supreme Court, after referring to the decision in Burn & Co., Calcutta v. Their workmen [1957 - I L.L.J. - 226] (vide supra), and holding that the action of the management was neither colourable nor mala fide, observed as follows :

'... We are of the view that the two tribunals below have misdirected themselves as to the true scope and effect of the standing order in question, and their decision with regard to the seven workmen mentioned above cannot be supported.'

14. The Supreme Court has taken the same view in another decision in Chartered Bank, Bombay v. Chartered Bank Employees' Union [1960 - II L.L.J. 222]. Applying the principles of these decisions to the present case, there is no doubt that the award made by the tribunal cannot be sustained. We have already found that the action of the management is bona fide and it is not capricious, arbitrary or harsh. It does not smack of any victimization or unfair labour practice.

15. There is one other argument advanced by Sri G. Maheswarappa in support of the award and based on the observations of the tribunal in Para. 16 of the award which is as follows :

'The suggestion is that if he did perform his duties involving hard labour, it was likely to be risky to his life. Obviously there was no loss or risk involved to the management. Risk, if at all, was to Muthu Nair himself. Under these circumstances, unless he is prevented by any law, he had the right as well as liberty to carry on the work. Such ought to be the proper interpretation of the standing order 22(c).'

16. We are unable to agree with these observations. No person faced with the risk of his life can be expected to perform his duties in the normal manner. Therefore, he cannot be fit for the performance of his duties. The risk of life to the employee resulting from the condition of health normally renders such employee unfit for work and is not the concern solely of the employee himself. It is as much the concern of the employer, in the interests of the industry. The only relevant consideration is the fitness or unfitness of the employee as certified by the medical officer. The submission of Sri G. Maheswarappa that the employee would rather risk his life than be without employment has no basis in any principle which can be accepted. It would be unnatural to expect any employer to continue an employee who is declared unfit for service on medical grounds to permit him or compel him to discharge his duties.

17. We are satisfied that the award made by the industrial tribunal in this case is without jurisdiction and unsustainable. It is hereby quashed. Each party will bear his own costs.


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