1. In this writ application that is challenged is the order of the President of the Industrial Tribunal passed in Appeal (I.C.) No. 18 of 1975, wherein it was held that the order of termination of the respondent's services was a penal one and contrary to the provisions of S. 73 of the Employees' State Insurance Act, 1948 (hereinafter referred to as the Act) and it was ordered his reinstatement in service with full back wages and emoluments available to the post that he was entitled to hold. The petitioner is a public limited company engaged in the business of manufacturing textiles at Ahmedabad. The respondent was working as a junior clerk in the Weaving Department of the petitioner-company. On October 26, 1970, the respondent had requested the salesman of the company for leave on October 27, 28, and 29, 1970. The leave was refused by the sales man on the ground of pressure of work in the department as the mill was to remain closed form October 30, 1970 for 3 days on account of Divali holidays. The respondent did not report on duty on October 27, 1970. On October 27, 1970 he did not send any intimation of his sickness and on October 28, 1970, he send a certificate of Dr. R. C. Shah through clerk Mr. Shukla. There was no written application for leave accompanying the certificate of sickness. On December 2, 1970 a show cause notice was issued to the respondent for showing cause as to why he should not be dismissed form service on the ground of remaining absent without leave, on October, 27, 28, and 29, 1970. It was also stated in his notice that the respondent was in habit of remaining absent without leave. A departmental inquiry was held and the Manager passed a speaking order stating that respondent failed to apply for leave as per standing order and in past also on a number of occasions had remained absent without getting leave sanctioned and so it was not in the interest of the company to continue him as clerk in the employment and found him unfit to be retained in service and terminated his services by an order of discharge simpliciter under the clerks standing order No. 10. This order was passed on December 17, 1970. On December 18, 1970 an order was served upon the respondent stating that he had remained absent without leave on October 27, 1970 and was in habit of remaining absent without leave and, therefore, his services were terminated by a notice of 14 days from January 1, 1971. On December 31, 1970 an order was served on the respondent by the Manager stating that for the reasons given in the Notice, dated December 18, 1970, his services were terminated and he was relieved from the service from January 1, 1971. It appears that against this order of termination the respondent had written an approach letter to the company bringing to the notice of the company that he had not been given proper and legal notice of discharge. In reply to this letter the Manager of the company wrote a letter, dated January 1, 1971. It is stated therein that there was a mistake in giving 14 days' notice for termination of his services and, therefore, the order of termination, dated December 31, 1970 was cancelled and a fresh order of discharge as per the standing orders had been passed and the same was enclosed with that letter. This order of termination of the services of the respondent is dated, January 19, 1971 and it is stated therein that the services of the respondent were terminated by paying one month's salary in lieu of notice with immediate effect. The respondent made an application No. 211 of 1971 to the Labour Court, Ahmedabad under Ss. 78 and 79 of the Bombay Industrial Relations Act, challenging the order, dated January 19, 1971 by which his services were terminated and contending that the said order was penal and not an order of termination simpliciter. The Labour Court held that the impugned order was not punitive and was an order of discharge simpliciter. Being aggrieved by the order of the Labour Court the respondent filed Appeal (I.C.) No. 18 of 1975 in the Industrial Court presided by the President. The learned President came to the conclusion that the order of termination of the services of the respondent was penal and contrary to the provisions of S. 73 of the Act and, therefore, set aside the order of termination of the services of the reinstatement with back wages.
2. It is this order which is challenged by Mr. Nanavati, appearing for the petitioner, and, the contention of Mr. Nanavati is that the Industrial Court has erred in holding that the impugned order was contrary to the provisions of S. 73 of the Act. The contention of Mr. Nanavati is that the provisions of S. 73 of the Act have not been properly interpreted by the Tribunal and the attention of the Tribunal had not been drawn to the Supreme Court's decision in Buckingham and Carnatic Co. Ltd. v. Venkatayya and another, [1963-II L.L.J. 638]; A.I.R. 1964 S.C. 1972. He also contended that the order of termination of the services of the respondent was not a penal one but was order of discharge simpliciter.
3. We shall proceed on the assumption that the order of termination of the services of the respondent is penal. It was not contended before the Tribunal that the departmental inquiry suffered from any infirmity and, therefore, the only question that was agitated was whether the impugned order was passed by way of penalty or was an order of discharge simpliciter. Having come to the conclusion that the impugned order was passed by way of penalty, the Tribunal construed the provisions of S. 73 of the Act and the construction which the Tribunal has put is as follows :
'Section 73 puts restrictions on the power of the management to dismiss or discharge an employee during the period of sickness. It has been clearly borne out from the record of this case that the delinquent was sick for the relevant days and had obtained a certificate from the E.S.I.C. Panel Doctor and had certificate which was sought to be produced before the manager was deliberately not received by the management. In such case, it is difficult to see how the learned Judge found that S. 73 of the Act has no play in the matter. He appears to have been labouring under a misconception that the impugned order is not by way of punishment. I am unable to subscribe to his view.'
4. Now S. 73(1) of the Act, so far relevant provides that no employer shall dismiss, discharge, or reduce or otherwise punish an employee during the period the employee is in receipt of sickness benefit or maternity benefit, not shall he, except as provided under the regulations, dismiss, discharge or reduce or otherwise punish an employee during the period he is in receipt of disablement benefit for temporary disablement or is under medical treatment for sickness or is absent from work as a result of illness duly certified in accordance with the regulations to arise out of the pregnancy or confinement rendering the employee unfit for work. Sub-section (2) thereof provides that no notice of dismissal or discharge or reduction given to an employee during the period specified in sub-s. (1) shall be valid or operative. The important words in the section are 'during the period the employee is in receipt of sickness benefit or maternity benefit.' These words have been interpreted by the Supreme Court in Buckingham and Carnatic Co. Ltd., (supra) and this is what the Supreme Court has observed :
'What S. 73(1) prohibits is such punitive action and it limits the extent of the said prohibition to the period during which the employee is ill. We are free to confess that the clause is not very happily worded, but it seems to us that the plain object of the clause is to put a sort of a moratorium against all punitive actions during the pendency of the employee's illness. If the employee is ill and if it appears that he has received sickness benefit for such illness, during that period of illness no punitive action can be taken against him. That appears to us to be the effect of that part of S. 73(1) with which we are concerned in the present appeal. If that be so, it is difficult to invoke S. 73 against the appellant, because the termination of Venkatayya's services has not taken place during the period of his illness for which he received sickness benefit.'
5. Thus what is prescribed by S. 73 is that during the period when the employee is ill no punitive action shall be taken against him. The provisions of S. 73(1) provide that punitive action should be taken the sickness period is over. Thus the Tribunal was in error in construing S. 73 of the Act and the order of the Tribunal holding that the impugned order of termination of services of the respondent is illegal and bad being contrary to S. 73 of the Act cannot be sustained.
6. Now it was not the case of the respondent before the Tribunal that the departmental inquiry was defective in any way. The papers concerning the departmental inquiry were produced before the Tribunal. The Manager of the Mill came to the conclusion on the evidence on record that the respondent was in the habit of remaining absent without leave. This finding was based on the evidence on record and, therefore, the order passed by the Manager holding that the respondent was in the habit of remaining absent without leave could not be challenged before the Tribunal. As we have come to the conclusion that the Tribunal had not correctly interpreted the provisions of S. 73 of the Act, the conclusion of the Tribunal that the impugned order was bad and contrary to the said provisions cannot be sustained. The consequence is that the order of dismissal of the respondent on the ground that he was in the habit of remaining absent without leave is a valid and legal order and the order of the Tribunal holding that the said order was contrary to the provisions of S. 73 of the Act cannot be sustained. The result is that we quash the order passed by the Industrial Tribunal holding that the impugned order of discharge of the respondent was bad and illegal ordering re-instatement of the respondent in service with full back wages.
7. Before we part with this case, it is necessary to make certain observation. Mr. Ravani appears for the respondent in this case. This writ petition was on the board of this Court on November 24, 1975, but it was grouped together along with certain matters relating to the dismissal of the workers by the Ahmedabad Municipal Transport and on the request being made on behalf of Mr. Ravani the same was separated from the said group. This writ application reached hearing yesterday, that is, December, 19, 1975, and was adjourned as Mr. Ravani was not available to conduct the matter and the same was fixed peremptorily for hearing to day. Mr. Ajmera appears to day on behalf of Mr. Ravani and drew our attention that he has filed a sick-note. He further stated that the papers had been handed over by Mr. Ravani to a counsel and the matter should be adjourned till Monday, that is, December, 22, 1975. This request of Mr. Ajmera is rejected by us because the matter was peremptorily fixed for hearing to-day, and as per R. 15 of Chapter X of the High Court Appellate side Rules, sick-note is of no avail in special civil applications and matters specially fixed for hearing.
8. The result is that the rule issued on this petition is made absolute with no order as to costs.