1. These two petitions under Art. 227 are directed against the award dated 30th June, 1975, made by the Labour Court, Bangalore, in Reference No. 36 of 1973. The Labour Court has held that the management of M/s. Rallis India Limited was justified in discharging the service of Sri K. Natarajan, but it directed the management to re-employ the workman as a fresh candidate without back wages.
2. The facts in brief are these : Natarajan was appointed as a peon-cum-packer in the pharmaceutical depot of the Rallis India Limited. One fine day, the management found the workman not regular in his duties owing to weakness and poor health. So the workman was sent for medical examination by Dr. S. Janardhan. The said doctor, on the basis of clinical examination and X-ray report, opined that the workman was suffering from Chronic Bronchitis with advanced emphysema of lungs with very poor pulmonary function. He was also of the opinion that the workman was unfit manual work. Relying on this opinion, the management discharged to workman on 27th August, 1971, the discharge being 'discharge simpliciter'. The action of the management gave rise to an industrial dispute which was finally referred for adjudication to the Labour Court on the following points :
'Are the management of M/s. Rallis India Ltd., 320, Linghi Chetty Street, Madras-1, having their branch office at J.C. Road, Bangalore-2, justified in terminating the services of Sri K. Natarajan with effect from 27th August, 1971
If not, to what relief the said worker is entitled ?'
3. The parties filed respective statements before the Labour Court besides examining some witnesses. On behalf of the management, Dr. S. Janardhan and Sri V. S. K. Murthy have been examined as M.W. 1, and M.W. 2, respectively. The workman has examined himself as W.W. 2, besides his doctor N. Gopala Rao as W.W. 1. The Labour Court, on its own appraisal of these evidence, reached the conclusion that the management was justified in discharging the services of the workman from 27th August, 1971. It however, gave relief to the workman in the following terms :
'It is seen from the various medical certificate copies produced by the II party itself and other materials on record, that the I party workman was making repeated and persistent efforts with the management for his reinstatement, but was not successful. It is disclosed from the evidence of Dr. Gopal Rao that I party workman is now physically fit to do the work of packer and peon. In the circumstances, I feel that II party should be directed to appoint I party as a fresh Candidate. Although there is no legal obligation on the II party to re-appoint I party, but since I party was already in the service of the II party and his services had been terminated only on the ground that he was physically unfit to continue in service and since after his termination he has regained his health and doctors have certified that he is physically fit to do his former job, it is but fair and proper to direct the II party to reappoint I party as a fresh candidate. Since, however, there is nothing to find fault with the II party, the I party will not be entitled to get any back wages. Hence, the award.
The management of M/s. Rallis India Limited, 320, Linghi Chetty Street, Madras-1, having their branch office at J.C. Road Bangalore-2, was justified in discharging the service of I party workman, Sri K. Natarajan. But in the peculiar circumstances of the case, the II party management is directed to re-employ the I party workman, Sri K. Natarajan as a fresh Candidate without back wages. In the circumstances of the case, the parties are directed to bear their own costs.'
4. The management challenging the above relief granted to the workman has preferred Writ Petition No. 4866 of 1975 and the workman challenging the other part of the award has preferred Writ Petition No. 2279 of 1976.
5. I am not persuaded to disturb the finding of the Labour Court that the discharge of the workman was bona fide and justified. That finding was based on the report of an expert and highly qualified Doctor who has stated in his certificate that the workman was physically unfit to do any manual work and was suffering from disease which was almost incurable.
6. The question next for consideration is whether the Labour Court was justified in asking the management to re-employ the workman as a fresh Candidate.
7. The power of the Labour Court to give any relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal is located in S. 11A of the Industrial Disputes Act, 1947. That power is conferred on the Labour Court, Tribunal and National Tribunal to direct reinstatement in cases of wrongful discharge or dismissal or to subject the order of reinstatement to any terms and conditions which they may think fit on the facts and in the circumstances of a case. For instance, the adjudicating authorities may direct that the workman on reinstatement will be entitled to the payment of full wages or partial wages or no wages at all for the period from the date of his discharge or dismissal till the date of reinstatement. The adjudicating authorities may also vary the penalty by giving any other relief inclusive of a lesser one in lieu of the penalty of discharge or dismissal when, in their opinion, the penalty awarded is not commensurate with the act of misconduct alleged or proved against the workman. But any such relief could be granted only when the order of discharge or dismissal is found to be unjustified or illegal and not when they affirm the order of discharge or dismissal as justified.
8. That being the scope of S. 11A, it must be held that the Labour Court, in the instant case, was in error in directing the management to re-employ the workman as a fresh Candidate, when it observed that the discharge of the workman was justified. That appears to be the position under law.
9. On facts also, I find that relief granted to the workman is erroneous. The Labour Court has stated that the medical certificate produced by the workman and other materials on record showed that 'the workman is now physically fit to do the work of packer and peon.' My attention was invited to the entire evidence on record. I do not find any material to support the above statement. The only evidence which may lend support to the above statement is the certificate dated 10th January, 1972, given by Dr. Gopala Rao. That certificate reads :
'This is to certify that Sri K. Nataraj, packer and peon, Rallis India Ltd., Bangalore, who was under my treatment for bronchitis and anaemia for the past few weeks is discharged, cured and is in a fit condition for return to his duties.'
But, in his evidence before the Labour Court, Dr. Gopala Rao has practically given a go by to his certificate. He has stated that he did not take X-ray picture of the workman. He has also stated that he did not send his blood for examination. He has further stated that the workman did not tell him where all he took the treatment prior to his coming to him. In fact, he has admitted that he treated the workman only for the complaints mentioned in his certificate. The complaints mentioned therein related to bronchitis and anaemia. When his attention was invited to the fact that the workman was suffering from bronchitis coupled with advanced emphysema of lungs, he has to admit that it was a serious condition, which causes very poor pulmonary function. It is, therefore, clear that the certificate given by Dr. Gopala Rao stating that the workman was fit for work was on the premises that he was suffering from bronchitis and anaemia only, and not against the background that he was suffering from bronchitis coupled with advanced emphysema of lungs with very poor pulmonary function. The said certificate was based on the superficial observation of the workman and without any regard to his actual disease. There is no other evidence on record to prove that the workman has recovered from the said disease and regained his normal health to discharge his duties as packer-cum-peon when the Labour Court passed the award. In these circumstances, the finding of the Labour Court on the fitness of the workman was factually incorrect.
10. In the result, the rule issued in Writ Petition No. 4866 of 1975 is made absolute and the rule issued in Writ Petition No. 2279 of 1976 is discharged. Before parting with the case, I think that it is proper to record a generous submission made by Sri K. Kasturi on behalf of the management. He said that the management had offered to the workman six months salary and that offer still remains for the workman to accept notwithstanding the decision of this Court.
11. The submission is recorded. No costs.