S.B. Wad, J.
(1) -THIS is an appeal against the order of the Employees State Insurance Court Delhi dated 18.9.1984. The said Court had directed the respondent Employees' State Insurance Corporation to pay sickness benefit and/or extended sickness benefit for the period between 20.10.1983 to 25.7.1984 at the prescribed rates. The respondent Faquir Chand is working as a machine man in the weaving section of Ayudhiya Textile Mills Limited, Azadpur, Delhi. The Court below had found that the respondent is required to work on four weaving machines and that his job was quite arduous, and had to be performed in conditions of humidity and cotton dust.
(2) The respondent developed T.B. and was found to be spitting blood on II.3.1983. He was treated in the E.S.I, hospital of the Corporation in Basaidarapur. On 19.9.1983 he went to the Government T.B. hospital, Kingsway Camp which is a specialized hospital for T.B. treatment. He was admitted in the hospital and treated. As a person insured with the Employees' State Insurance Corporation and paying employees' contribution regularly, be asked for the sickness benefit payable according to the rates prescribed in the Schedule I of the Act., On 24.9.1983 the doctors in the E.S.I. hospital found that he was partly cured and held that he was fit to join duty. According to the respondent this was recorded only on the hospital record but no certificate was issued to him by the E.S.I, doctors. The respondent went to the Government T.B. hospital on 26.10.83 again and was continuously under the treatment of Dr. Basu of the said hospital. Dr. Basu issued three certificates for nine months absence from duty from 26 10.1983 to 24 7.1984.
(3) The petitioner moved the Employees' State Insurance Court as the E.S.I, doctors were not issuing any certificates to him for his sickness and absence from duty. This would have naturally meant that he was not entitled to any sickness benefit or extended sickness benefit under the Act.
(4) In the E.S.I, hospital the respondent was under the treatment of Dr. H.B. Dingley and Dr. Bhupinder Kumar. The said doctors are running the chest clinic of the E.S.I. hospital. Dr. Dingley stated that as on 3.8.1984 the disease in upper and mid sone right and upper sone left was apparently healed but he advised treatment for six months more. He also stated that he had no recommended any rest to the respondent as according to him the patient had no symptoms left and his disease was such which could be treated while resuming his normal assigned duty. Dr. Bhupinder Kumar in his evidence stated that his last x-ray was taken on 24.9.1983. He was .given treatment but was found to be fit to join duties. He further stated that be was given continuous treatment after 31st December 1983 and has also noted that he was getting treatment up to May 1984. He had brought the medical record of the E.S.I, hospital. The record showed spur tom of patient was never got examined. Similarly, the temperature of the patient was never taken. According to the doctor it was not found necessary. The doctor further stated that the patient was employed in the weaving section but the dust from the machine does not affect him. As far the treatment in the Government T.B hospital, the said doctor stated that the workman covered by the Employees' State Insurance Scheme cannot go to the T.B. hospital without reference from the E.S.I, hospital Dr. B.K. Basu of the Government R.B.T.B. hospital, Delhi had treated the respondent from 9.9.1983 to 24.7 84. He deposed that considering the acute condition of the Pulmonary Tubeculosis, he was given permission to avail of medical leave and rest for 9 months continuing from 19.9.1983. In his cross-examination he has stated that although the respondent had improved, he was still suffering from T.B. He had denied the suggestion that the respondent was not suffering from P.T. and he was simply suffering from BronchIT is The lower court preferred evidence of Dr. Basu of the Govt. T.B. hospital to that of the doctors of the E.S.I. hospital. The Court also noted the duties performed by the respondent. The Court found from the written statement of the Medical Superintendent that only in an exceptional case the E.S.J. hospital directs hospitalization and medical rest and it was very difficult for an average T.B. patient to get recommendation of medical rest from medical authorities of the Corporation. After considering all the relevant aspects of the case the Court came to the conclusion that the E.S.I, hospital was wrongfully refusing the Medical Certificate for hospitalization and rest to the respondent. The Court thereforee held that it would be deemed as if such a certificate was issued by the E.S.I, hospital. The Court then directed that sickness benefit and/or extended sickness benefit should be given to the respondent.
(5) The counsel for the appellant-corporation has submitted that the respondent was not entitled to a sickness or extended sickness benefit under Regulation 53 of the Act because it is only when the medical certificate is issued by the Insurance Medical Officer that a person gets the benefit of the Scheme. He submits the that a certificate from any outside agency cannot be recognized when the arrangements for medical benefit under the Employees' State Insurance Act are available. In the present case such arrangements are available and thereforee the certificate of the Government T.B. hospital cannot be recognised for the purposes of the said benefits. He submits that these provisions have been made to check the abuse of claiming benefits on the strength of private medical certificates. He admits that the Legislation is a piece of social legislation enacted by the Parliament in the very early period after independence (1948). On the other hand, the counsel for the respondent submits that Regulation 53 does not debar consideration of a certificate from other agencies for the purposes of such benefit. He relies on the proviso which inter alias states that if in its opinion the circumstances of a particular case so justify the Corporation can admit a certificate from any agency including other medical institution. The counsel submits that admittedly the respondent was suffering from T.B. Not only that he was hospitalized but had been receiving continuous treatment for T.B. even now. According to him as late as April 1985 he has received the treatment in the Government T.B. hospital and even in future be would requires such treatment. He further submits that if the E.S.I, hospital was not ready to give any such certificate for hospitalization or rest his absence from duty is on the record of the mill 'absence without leave.' He also submits that unless such a certificate of absence is given either by the E.S.I, hospital or by the Govt. T.B, hospital, respondent would not be able to join his duty and in fact the mill is refusing to take him in job in the absence of such a certificate. He has relied upon the instruction of the Corporation contained in Memorandum No. 6-1/91/71 (M) Col. Ii dated 26.7.1978 addressed to the Secretary of the Govt. It has been decided that the said medical certificate may be issued to insured persons who get treatment during the extended period under the contingencies stated in the said notice. Counsel submits that in terms of these instructions, the T.B. hospital or the E.S.I. hospital can be directed to issue such a certificate.
(6) The Employees' State Insurance Act 1948 is one of the earliest social legislations for providing benefits to employees in case of sickness, maternity and employment, injury. We are concerned here with sickness benefit. and extended sickness benefit. Section 2(20) defines sickness : 'Sickness' means a condition which requires medical treatment and attendance and necessitates ostentation from work on medical grounds.' Section 46(1)(a) provides that subject to the provisions of the Act the insured persons their dependants or the persons mentioned in the Act as the case may be shall be entitled to the following benefits, namely : (a) periodical payment to any insured person in case of his sickness certified by a duly appointed medical practitioner (or by any person possessing such qualifications and experience as the Corporation may, by regulations, specify in this behalf. The rates of benefit are provided by the First Schedule of the Act (Section 49). A provision for enhancement of such benefits is made by Section 99 of the Act. The Section reads: 'At any time when its funds so permit, the Corporation may enhance the scale of any benefit admissible under this Act and the period for which such benefit may be given, and provide or contribute towards the cost of medical care for the families of insured persons'. The Corporation has framed regulations under Section 97 for the further administration of the Act. Every person who makes the claim for any benefit shall in addition to the medical certificate and other forms specifically required under these regulations, furnish such other information and evidence for the purpose of determining the claim as may be required by the appropriate office, and, if reasonably so required, shall for that purpose attend at such officer or place as the appropriate office may direct. In case of sickness and temporary disablement, a medical certificate is required to be produced. Regulation 53 lays down the requirements in regard to a medical certificate. Regulation 53 may be noted : 'Every insured person claiming sickness benefit or disablement benefit for temporary disablement, shall furnish evidence of sickness or temporary disablement in respect of the days of his sickness or temporary disablement by means of a medical certificate given by an Insurance Medical Officer in accordance with these regulations in the form appropriate to the circumstances of the case : Provided that in areas where arrangements for medical benefit under the Employees' State Insurance Act have not been made or otherwise if in its opinion the circumstances of a particular case so justify, the Corporation may accept any other evidence of sickness of temporary disablement in the form of a certificate issued by the medical officer of the State Government, local body or other medical institution, or a certificate issued by any registered medical practitioner containing such particulars and attested in such manner as may be specified by the Director-General in this behalf.
(7) By virtue of powers vested in the Corporation under Section 99, the Corporation passed a Resolution on 22nd March 1969 The Corporation recognised additional benefits described in the Resolution as extended sickness benefit. The Resolution laid down that for Tuberculosis, Leprosy, mental diseases and such other sickness mentioned in the said resolution, the extended sickness benefit is payable for 309 days It may be noted that the normal period for sickness benefit is 91 days. The resolution also defines as to what is meant by a spell of sickness. 'Spell of sickness' for this purpose shall mean a period of certified incapacity commending with the first certificate and ending with a final certificate issued in terms of the Employees' State Insurance (General) Regulations 1950.
(8) The respondent an employee in the present case was suffering from acute Tuberculosis. Although the E S.I. doctors have found that be was partly cured and could attend his duty they did not issue him any certificate of incapacity or fitness. In fact he was still suffering from Tuberculosis and thereforee went to Government T.B. hospital and was receiving the treatment. He could not claim the sickness benefit because no certificate was issued to him by the E S.I doctors. In his application to the Employees' State Insurance Court he prayed for a direction to the E SI. hospital to issue him an appropriate certificate so that he would be able to claim the sickness benefit, Dr.Basu of the Govt. T.B. hospital bad given him three certificates for absence because of the treatment he was undergoing. That period ended by 24.7.1984. Before that period expired, the evidence was recorded before the lower court.
(9) Counsel for the Appellant-Corporation has submitted that the E S.I. doctors-Dr. Dingley and Lr. Bhupinder Kumar had found him fit to do his duties and as the respondent had not secured the medical certificate from the Corporation doctors as required by Regulation 53, the respondent was not entitled to sickness benefit or to the extended sickness benefit. The counsel further submitted that the certificate of the Govt. TB. hospital cannot be considered as an evidence for sickness because the arrangements for medical benefits namely the E.SI. doctors were available in Delhi. Regulation 53 recognizes a medical certificate from any other medical officer only if the Corporation's arrangements for medical benefit are not available in a given area. The counsel for the respondents joins issue on this question. According to him it is the discretion of the Corporation if it is otherwise of the opinion that the circumstances of a particular case so justify, to accept the certificate from other medical officers stated in the proviso to Regulation The counsel further submits that the evidence of the medical officers of the Corporation shows that they had neither done the proper examination of the respondent nor given him proper treatment. His further grievance is that not even a certificate was issued by the medical officers of the Corporation.
(10) Plain reading of Regulation 53 shows that the evidence of sickness must be furnished in the form of medical certificate issued by the medical officer of the Corporation but a certificate from other medical officers is acceptable in certain circumstances. The first is where arrangements of medical benefits of the Corporation are not forthcoming. But Regulation 53, has advisedly entrusted the Corporation with wide discretion where the circumstances of a particular case so justify. thereforee, the real question is not the absence of a power or competence in the Corporation to accept the medical certificate from the agency other than the Corporation. The real question is whether the Corporation has properly exercised its discretion is not considering the medical certificates issued by the Govt. T.B. hospital. If the circumstances of a particular case so justify, the Regulation provides, that a certificate from the medical officer of a State Government or of a local body or other medical institution or even of any private medical practitioner can be accepted as evidence of sickness. Regulation 53 has thus conferred a wide discretion on the Corporation in matters of evidence of sickness. The reason for conferring such a wide discretion is that the benefits under the Act should not be denied to deserving sick persons on a technical requirement of a certificate from the medical officer of the Corporation. In V.M. Lakshmana Murthy v. Employees' State Insurance Corporation : (1974)ILLJ304SC , the Supreme Court has laid down that the Employees' State Insurance Act is a beneficial piece of social legislation in the interest of the labour in factories and other establishments. thereforee, the provisions of the Act will have to be construed with that end in view to promote the scheme and avoid the mischief. I have gone through the evidence of the two doctors of the Corporation. Dr. Bhupinder Kumar is said to have a diploma in the chest disease but he admitted in his evidence that the E S I. hospital never got spur tom of the respondent examined. He also admitted that his temperature was never recorded as it was not found necessary. It does not need much of medical expertise to appreciate that the medical examination conducted in the Corporation hospital was most unsatisfactory. The most primary test in case of T.B. is to examine spur tom. That was not done by the Corporation doctors. Even in ordinary case of sickness, the doctors record temperature of a patient In case of Tuberculosis a patient almost regularly runs temperature above normal. The said doctors are working in the chest clinic of the E S.I. hospital. The Corporation hospital does not justify its existence if in this callous manner serious patients like T.B. are not to be examined and treated. I have no hesitation in disregarding the evidence of Dr. Bhupinder Kumar and Dr. H.B. Dingley. Further if the Govt. T.B. hospital was giving continuous treatment to the respondent and was advising rest for nine months after the E.S.I, hospital declared respondent fit, the certification of unfitness lacks all probity. The working of the E.S.I, hospital is adversely commented upon by the Court below because it found from the statement of the medical officer of the Corporation that the benefit is rendered to 5 people out of about 200 sick persons considered by the Corporation doctors. The Government T.B hospital is a special zed hospital for Tuberculosis. Tuberculosis is fast increasing in the crowded urban and industrial areas of the country It is not a fatal disease as it was once believed. With the modern advances in medical science. Tuberculosis can be cured by proper medical treatment and rest. The Govt. T.B. hospital is set up with a view to halt and eradicate Tuberculosis as much as possible. Dr. Basu of the Govt. T.B. hospital had carried on proper examination of the respondent from time to time over a period of one year and even now. Dr Basu had not found that the respondent was cured. He continued the treatment and advised medical rest to the respondent up to 25.7.1984 for which he had issued the certificate The Corporation failed to consider the unsatisfactory way the respondent was treated in the E.S.I, hospital. It also failed to appreciate that the special medical centres set up for T.B., Leprosy, mental diseases etc. provide a higher degree of professional competence, equipment and facilities. Even from the mere medical point of view the certificates from such specialised bodies are of greater value. 'To deny the medical certificates of the Govt. T.B. hospital on the ground that the E.S I. doctors had not referred the respondent to the said hospital, is most untenable. Firstly, the E S.I hospital did not demonstrate any professional approach in the examination and treatment of the respondent. They also failed to refer the respondent to the specialised hospital which, was their professional duty. The respondent went on his own to the Govt. T.B. hospital. That cannot be held against him particularly when the Govt. hospital found respondent suffering from acute Tuberculosis requiring continuous rest for over one year. The circumstances of the case certainly required that the certificates of the Govt. T.B. hospital should have been accepted by the Corporation as valid evidence of sickness. The Corporation is an instrumentality of the State. It cannot act mindlessly or in whims or arbitrarily. The aspect of social security for sick persons, for achieving which the enactment was passed by Parliament, has been completely overlooked by the Corporation. The decision of the Corporation not to accept the certificate from the Govt. T.B. hospital is thereforee not justified and is set aside. Under Regulation 53, I hold that the medical certificates given by Dr Basu fulfill the requirements of that Regulation and the Corporation and the employer of the respondent should accept them a proper evidence of the respondent's sickness. The respondent is entitled to the sickness and extended sickness benefit under the Act and Regulation. The Employees State Insurance Corporation should make the payment of the sickness benefit and extended sickness benefit within one month from the date of this order.
(11) The respondent is still receiving treatment form the Govt. T.B. hospital after 24.7.1984. As there is no fitness certificate issued to him, he is unable to join his duty. I direct the Medical Officer of the Govt. T.B. Hospital, Kingsway Camp to issue a certificate to the respondent for a period further to 24.7.1984. The respondent shall present himself before the Medical Officer of the Govt. T.B. hospital within 15 days from today. The Medical Officer shall arrange a thorough examination of the respondent and to certify whether he is fit to join the duty or not. The Corporation has issued a Memorandum on 26.7. 1978 for entitlement to absence where spells of sickness continued. The Circular reads; 'I am directed to refer to this office litter of even number dated the 3rd January 1978 on the subject cited above under which the decision of the Corporation was conveyed that the injured persons will now be entitled continuance of treatment once scared till the spell of sickness ends or in case of long term ailment as long as the patient requires active treatment even if during the treatment the insured person becomes disentitled for medical aid. The question now arose whether under the above contingencies, the insured person can be issued medical certificates of ostentation from work. After due consideration it has been decided that the medical certificates may be issued to such insured persons who get treatment during extended period under the contingencies referred to above.' It may thus be seen that the sick persons are entitled to a medical certificate for their absence from work if the treatment continues for a period longer than for which he is entitled to medical aid. The respondent Mill should accept the certificate from Govt. TB. Hospital and take the respondent on duty if he is certified to be fit. His period of absence from 24.7.1984 till be is taken on duty will be treated as one spent on duty. If he is entitled to the sickness benefit or extended sickness benefit (which together comes to 400 days) the additional benefit should be extended to the respondent. A copy of this order should be sent to the Medical Officer R.BT.B. hospital, Kingsway Camp Colony, Delhi.
(12) For the reasons stated above, but with the directions given to the E S.I. Corporation, Govt. T.B. hospital and Ayudhiya Textile Mills Ltd. the appeal is dismissed. The appellant shall pay the cost of the respondent throughout.