IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.06.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.25309 of 2001 Somasundaram ... Petitioner Vs 1.The Labour Court, Coimbatore. 2.The Management of ABT Parcel Service, Coimbatore – 641 009. ...Respondents PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified mandamus, calling for the records pertaining to the award passed by the first respondent in I.D.No.22/98 dated 26.12.2000, quash the same and consequently, direct the respondents to reinstate the petitioner with backwages and continuity of service. For Petitioner : Mr.R.Krishnasamy for Mr.V.Ajay Khose For Respondents : Mr.S.Ravindran for M/s.T.S.Gopalan and Co. for R2 O R D E R The petitioner is a Workman. He has filed the present writ petition seeking to challenge the Award passed by the first respondent Labour Court, Coimbatore in I.D.No.22 of 1998 dated 26.12.2000. By the impugned Award, the Labour Court dismissed the Industrial Dispute raised by the petitioner and refused to grant any relief. 2. The writ petition was admitted on 21.12.2001. On notice from this Court, the second respondent Management has filed a counter affidavit dated 16.02.2006. 3. The brief facts leading to the passing of the impugned Award are as follows: The petitioner was employed as a Driver in the second respondent company since August 1990. The petitioner fell sick and took treatment as in-patient from 16.03.1995 to 01.05.1995 in the Department of Neuro Surgery at the Thanjavur Government https://hcservices.ecourts.gov.in/hcservices/ Medical College Hospital. This was done on the basis of a reference made by the ESI Hospital. After his discharge from the hospital, he was advised to take rest. During that period, he availed ESI leave. After the discharge, his case was recommended for doing light work for three months as found from the discharge summary given by the Doctor. When the petitioner produced those certificates, he was given shed duty to drive light vehicles with effect from 26.08.1995. The second respondent Management by a letter dated 01.12.1996 directed the petitioner to go to Coimbatore on 02.12.1996 for a medical checkup. He was asked to appear before a private doctor for medical examination on 03.12.1996. It was claimed that after his checkup by the Doctor, a report was to be sent to the Management. It was the further case of the petitioner that when he joined duty after his discharge from the Government Hospital with a fitness certificate, which was also accepted by the Management, there was no necessity to refer his case to a private doctor that too after a period of 1 ½ years. It was also claimed that he was not properly examined by the private Doctor and neither any X-ray nor a scan was taken. 4. However on 04.12.1996, a show cause notice was given to him by the Management stating that on medical examination by Dr.K.Shanmugasundaram he was found medically unfit to work as a Driver as he was experiencing frequent pain in his spinal cord and it was not safe to entrust the vehicles for driving. Thus a show cause notice was issued despite the fact that the petitioner was working from 26.08.1995. It was stated that after his discharge from his ailment, he did not complain about any pain either to the Management or to Dr.Shanmugaundaram. 5. The petitioner gave an explanation dated 16.12.1996 stating that he did not suffer from any physical disability so as to be discharged from service. The petitioner once again went before the Government Hospital where he took treatment and produced a fresh certificate dated 27.12.996 stating that he was fit enough to do the driving of heavy vehicles. 6. However, the second respondent by an order dated 03.01.1997 proposed to discharge the petitioner but that order was not served on him. In the meanwhile, the workman availed ESI leave from 19.01.1997 to 25.03.1997. He reported duty on 26.03.1997 with the fitness certificate issued by the ESI Doctor. The second respondent accepted the same. He was asked to drive a heavy vehicle on 27.03.1997 from Tiruchirapalli to Bangalore. On 28.03.1997 he returned from Bangalore and and reached Tiruchirappali on 28.03.1997, thus covering a total distance of 660 kms. This incident will prove that the petitioner was not suffering from any disability. However on 30.03.1997, the Management discharged him from service by serving the discharge order dated 03.01.1997 which was prepared earlier on the basis of the opinion of private Doctor. https://hcservices.ecourts.gov.in/hcservices/ 7. Thereafter, the petitioner raised a dispute against his discharge before the Government Labour Officer, Coimbatore. As the conciliation proceedings ended in failure, a report dated 25.09.1997 was given to him. The petitioner filed a claim statement before the Labour Court. The Labour Court took up the dispute as I.D.No.22 of 1998 and issued notice to the Management. The second respondent Management filed a counter statement dated 02.05.1998. 8. Before the Labour Court, the petitioner examined himself as W.W.1 and filed 8 documents which were marked as Exs.W1 to W8. On the side of the second respondent Management, three witnesses were examined as M.W1 to M.W.3 and they filed 15 documents which were marked as Exs.M1 to M15. 9. The labour Court on the basis of the materials placed before it held that the evidence of Doctor Shanmugasundaram (M.W.2) was acceptable and his report (Ex.M3) holding the petitioner medically unfit to continue in employment was also acceptable. The Labour Court also held that M.W.2 was having a medical Degree and he was competent to give a certificate and there was no prior enmity of the witnesses who gave deposition viz., M.W.1 to M.W.3. The Fitness certificate filed by the Workman (Ex.W6) was not proved to the satisfaction of the Court. He had not examined any other person to hold that he was fit enough to drive an heavy vehicle. The Labour Court also found that after his operation from March 1995 till March 1997, he was on leave for considerable number of days and after his discharge from the hospital, he was given light duty for some period. The Labour Court also recorded the evidence of M.W.1 who stated that the petitioner could not drive the heavy vehicle as there was considerable pain in the spinal cord and even in the Bangalore trip, he caused a delay of 15 hours. It is in that view of the matter, the Labour Court declined to grant relief to the workman. Even in his cross examination, the petitioner had admitted that during 1995 he had taken leave for 199 days, in 1996 he had taken leave on all the months, in January 1997, he had not worked for 13 days, in February 1997 and March 1997 he did not attend for duty. Though in his cross examination, he stated that he intended to examine the Doctor from the Thanjavur Medical Hospital who gave the certificate but did not examine the said Doctor before the Labour Court. Therefore, Ex.W6 issued by the Thanjavur Medical Hospital dated 15.09.2000 was not proved in the manner known to law. 10. Mr.R.Krishnasamy, learned counsel appearing for the petitioner contended that subsequent to the discharge from the Thanjavur Medical Hospital, the petitioner was given light work and even before that the petitioner was sent for medical examination by a private doctor. He was given the work of driving heavy vehicle. It was contended that the evidence of the private Doctor cannot be accepted as a final proof for his medical unfitness and that the opinion of the Medical Board marked as https://hcservices.ecourts.gov.in/hcservices/ Ex.W6 should be accepted. 11. The learned counsel placed reliance upon the judgment of the Delhi High Court in Lalit Mohan Puri v. Pure Drinks (New Delhi) Ltd., reported in 1992 (2) L.L.J. 439 to contend that in case of medical unfitness, the employer cannot act on the basis of presumption. However, the facts of the case turns out entirely different as found from Paragraphs 10, 11 and 12 of the judgment which is as follows:- "10. It will be seen from the facts narrated above that the charge, which was levelled against the petitioner by letter dated September 24, 1977 was not pursued. It was on account of continued ill-health of the petitioner that his services were terminated. There was no evidence either with the respondent or that even filed in the Labour Court that the petitioner was, in fact, suffering from ill-health and continued to be of ill-health till the order of termination. Narration above even would show that it was the petitioner himself who told the respondent that because of ill-treatment he had suffered a mental shock and was unable to drive heavy vehicle. This stand of the petitioner appears to have been accepted by the respondent. It was only at later stage that the respondent wanted the petitioner to have himself medically examined by a doctor. When the petitioner sent a medical certificate showing his fitness from illness it was not accepted by the respondent. He was still being asked to appear before a doctor. The Labour Court had merely raised a presumption because of refusal of the petitioner to appear before a ESI doctor. There was no other positive evidence on which the Labour Court could have acted. 11. We are not satisfied and in fact there is no submission why the petitioner did not appear before the ESI doctor when it was he, who himself had earlier asked the respondent to have him medically examined from ESI doctor. That, however, does not appear to us to be quite a serious matter to non-suit the petitioner. Can it be said that 16 years of service can be wiped out merely on the basis of presumption raised under Section 114 of the Evidence Act, 1872? In our view the respondents should have some direct evidence with it to show firstly that the petitioner was suffering from ill-health and secondly that he continued to be in ill-health till the time of termination of his services. 12. ....We find some substance in this submission, though we may not agree that his https://hcservices.ecourts.gov.in/hcservices/ refusal to get himself medically examined could be a ground for holding a separate inquiry on the charge of mis-conduct. Nevertheless, we are of the opinion that inquiry should have been held if the petitioner continued to be of ill-health and the matter should not be left merely to presumptions. For this purpose the respondent was free to hold a proper inquiry where the petitioner could have been examined and even could lead his evidence to show that he was not suffering from ill-health." In the present case, as seen from the narration of facts such a contingency never arose and the worker had submitted himself for medical examination by the company's doctor. 12. The learned thereafter placed reliance upon the decision of the Madhya Pradesh High Court in Harvilas Kushwah v. Sports Authority of India & Others reported in 1996 (1) L.L.J. 450. In that case, it was held that investigating an employee suffering from Diabetes cannot be labelled as continued ill health so as to take outside the purview of the term retrenchment as defined under Section 2(oo) of the Industrial Disputes Act. Therefore, on facts it was held that it was not a case coming within the exception found under Section 2(oo) of the I.D.Act and the employer's action terminating the service of the workman was clearly a retrenchment within the meaning of I.D.Act. 13. The learned counsel also placed reliance upon short summary of cases of the Bombay High Court in Union of India v. Subhash P.Dunagu reported in 2002-IV-L.L.J.(Suppl) NOC 22 found at page 1051, wherein the Bombay High Court has held that a person being medically unfit for permanent absorption will not ipso facto lead to the conclusion that he was liable for termination from the temporary employment on ground of continued ill health. It is not clear as to how these two decisions are of any assistance to the petitioner. 14. The learned counsel also placed reliance upon the division Bench Judgment of the Orissa High Court in Bisra Stone Lime Company Ltd. v. Their Workmen Mohender Dip and Others reported in 1992 1 L.L.J. 616. In that case, the Court held that for the purpose of bringing a person from the exception found under Section 2(oo) of the I.D.Act and to prove that there was a continued ill health, it must be established the sickness was of sufficiently long duration and continuous. If once the case of workman do not fall under the exception carved out under Section 2(oo) of the I.D.Act, then he will come under the main definition. Therefore, he is eligible for the protection under Section 25-F of the I.D.Act and in such cases, if the condition precedent under Section 25-F of the I.D.Act was not followed, the workman was eligible for relief of reinstatement. 15. In the present case, the parties have let in evidence before the Labour Court. The Doctor who examined the petitioner was also examined before the Labour Court and was subjected to https://hcservices.ecourts.gov.in/hcservices/ cross examination. As found from the cross examination of Dr.Shanmugasundaram (M.W.2), he had admitted that he had not examined the medical records relating to his operation on the spinal cord and also did not record in his certificate. He also never took any X-ray or scan and there was no external manifestation of the medical problem faced by the petitioner. He was not aware of the fact that the petitioner was in service for 1 ½ years after his operation. It is rather surprising that the Labour Court should accept this scanty evidence given by M.W.2 as final proof of the petitioner's continued ill health so as to warrant his discharge from service. No doubt it is true that the attendance of the petitioner for a period of three years was not satisfactory and that at the initial stage, he had requested for a light work. But every time when the petitioner had sought for leave, he was allowed to join only with a fitness certificate. Therefore, in order to hold the petitioner medically unfit, there must be a strong material evidence to hold him that he was not fit for duty which was entrusted to him. 16. Though the second respondent was empowered to refer the case to their own Doctor, but the medical opinion of the Doctor must be based upon medical records and not on his ipsi dixit. No doubt the Doctor had appeared before the Labour Court to prove his certificate but that evidence rendered was not enough to hold the workman was unfit to discharge his duty as a Driver. The Labour Court's finding that the evidence of M.W.2 was enough to hold the petitioner medically unfit cannot be accepted. On the other hand, on the basis of the initial medical records, the petitioner was allowed to continue in service from 1995-97. Not doubt it was true that Ex.W6 was not proved in the manner known to law. But Ex.W7 is a medical discharge summary sent by the Principal of the Thanjavur Medical College Hospital directly to the Court dated 19.10.2000. The evidentiary value of Ex.W7 was also not considered. Though the workman in his cross examination stated that he intend to examine the Doctor from the Thanjavur Medical Hospital for reasons best known to him he had not done so. 17. When a person who goes on sick leave and joins duty with a fitness certificate and if the employer accepts the said certificate and permits him to join duty, then the very same sickness/ailment cannot be held to be a ground to hold him medically unfit to discharge his duties. This Court vide its judgment in Mani Higher Secondary School V. Joint Director (Secondary) School Education, Madras and others reported in 1989 1 LLJ 34 has held that in such circumstances, the employer cannot dispose of the employee on the basis of medical unfitness. In the present case, the findings of the Labour Court are not supported by legal evidence. 18. As held by the Division Bench of the Delhi High Court in https://hcservices.ecourts.gov.in/hcservices/ Lalit Mohan Puri's case (cited supra) that in such cases the employer cannot take the defence of continued ill health and bring their action on the exception to Section 2(oo) of the I.D.Act. If the workman was absent for a long period can be a good ground for discharge but that cannot be on the basis of self serving medical opinion given by their own company Doctor. Even the evidence rendered by the Doctor was not satisfactory to hold the workman was continuously ill health and had become physically disabled to function as a Driver. Therefore, the discharge order issued by the second respondent Management as per Ex.M6 is not valid. Once it is held that the petitioner do not suffer from any medical unfitness to work as a Driver, then the discharge order passed is contrary to Section 25-F of the I.D.Act in as much as he had not been given the notice pay and compensation as required under law. 19. In the present case, the question of remanding the matter to the Labour Court was not necessary only to decide the question of relief. As the workman even at the time of trial, had reached the age of 50 years during the year 2000 and he would have reached the age of superannuation in 2008 itself. Therefore, the question of ordering reinstatement of the workman will not arise. However, it is a clear case of violation of Section 25-F of the I.D.Act. Therefore while setting aside the Award, this Court is of the view that compensation in lieu of reinstatement can be granted to the petitioner. Instead of driving the parties to further litigation, this Court is of the view that a lumpsum compensation should be fixed by this Court after taking note of all relevant factors. Under the circumstances, the compensation of a sum of Rs.5,00,000/- (Rupees Five Lakhs only) is directed to be paid by the second respondent to the petitioner. 20. The impugned Award is hereby set aside and it is declared that the petitioner is eligible to get Rs.5 lakhs as compensation in lieu of reinstatement and all other claims excluding terminal benefits, if any paid or payable to him. The second respondent is directed to implement this order within a period of eight weeks from the date of receipt of a copy of this order. 21. The writ petition stands partially allowed. No costs. svki Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To The Labour Court, Coimbatore. Copy to: The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr. T.S.Gopalan, Advocate SR No.40391 + 1 cc to Mr. V.Ajoy Khose, Advocate SR No.40251 AKR(CO) SR/15.6.2010 order in W.P.No.25309 of 2001 https://hcservices.ecourts.gov.in/hcservices/