CWP No. 8648 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 8648 of 2009 Date of decision: 29.05.2009 Groz-Beckert Asia Pvt.Ltd., 133-135, Industrial Area, Chandigarh through its Authorised Signatory Col. M.S.Dhaliwal .....PETITIONER VERSUS The Presiding Officer, Industrial Tribunal-cum-Labour Court, Union Territory, Chandigarh and another ..... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. P.K.Mutneja, Advocate, for the petitioner. *** AUGUSTINE GEORGE MASIH, J. In the present writ petition, the challenge is to the award dated 15.01.2009 (Annexure P-10), vide which the Labour Court has answered the reference in favour of the workman holding him entitled to reinstatement with continuity of service and 50% back wages from the date of termination on the ground that the order of termination passed against the workman by the petitioner-Management was in violation of Clause 19 (c) of the Certified Standing Orders as applicable to the workman. Counsel for the petitioner contends that the finding, as recorded by the Labour Court with regard to the violation of Certified CWP No. 8648 of 2009 2 Standing Orders Clause 19 (c) thereof, is perverse. He submits that the opinion of the Doctor was taken by the Management, which is dated 11.09.2000 (Annexure P-1), where it has been revealed that the workman is habitual smoker and drinker and is suffering from chronic bronchial asthma and if he continues with the said activities, he would be harming himself gravely and at that time, he was unfit for duty. He further submits that earlier also opinion of Doctor was obtained on 15.12.1999 (Annexure P-2), where also the workman was advised not to smoke/drink, which would adversely affect his health. He, on this basis, submits that the requirement of Clause 19 (c) of the Certified Standing Orders, as applicable to the workman, stood fully complied with and, therefore, the termination of the service of the workman was fully justified. He further submits that even Section 2 (oo) Clause (c) of the Industrial Disputes Act provides for termination of services of the workman on the ground of continued ill health and, therefore, the termination of the workman would not fall within the provisions of Section 2 (oo) and accordingly, the order of termination was justified. I have heard the counsel for the petitioner and have gone through the records of the case. The relevant Certified Standing Orders, as applicable to the petitioner as well as the workman, i.e. Clause 19 (c) reads as follows:- “Since the factory is engaged in precision work, the services of a workman are liable to be terminated if his eye-sight is found weak or he is otherwise medically unfit to carry out the duties which are assigned to him satisfactorily. The opinion of the Chief Medical Officer or the Certifying Surgeon shall be binding. The fee of doctor, if any, shall be borne by the company. A permanent workman discharged on this account CWP No. 8648 of 2009 3 shall receive notice or wages in lieu thereof in accordance with Standing Order 19 (a).” A perusal of the above would show that the Chief Medical Officer or the Certifying Surgeon would have to certify that the workman is medically unfit to carry out the duties, which are assigned to him, satisfactorily. Perusal of both the medical certificates relied upon by the counsel for the petitioner i.e. Annexure P-2 dated 15.12.1999 and Annexure P-1 dated 11.09.2000 do not state that the workman is medically unfit to carry out the duties, which are assigned to him, satisfactorily. The relevant medical certificate, reliance whereof was made by the Management for terminating the services of the workman, is Annexure P-1 dated 11.09.2000. The operative part of the said medical certificate reads as follows:- “ xxx xxx xxx xxx xxx I am afraid that if he carries on with his present attitude, he might harm himself gravely. This is for your information specifically. He is unfit for duty at present.” This certificate only states that he is unfit for duty at present but does not state that he is medically unfit to carry out the duties, which are assigned to him, satisfactorily. The finding, therefore, recorded by the Labour Court, is fully justified that the Certified Standing Orders, as applicable to the parties, have not been complied with. The reliance by the counsel for the petitioner upon Section 2 (oo) (c) of the Industrial Disputes Act for trying to justify the order of termination also cannot be accepted for the reason that the requirement of law for applicability of Section 2 (oo) (c) of the Industrial Disputes Act is 'where the condition of health of an employee is such that it consistently CWP No. 8648 of 2009 4 affects the functioning of duties of the post'. The continued ill health should be of such a nature, which would affect the due discharge of normal duties by the workman. Merely because the workman is gravely ill or is suffering from a chronic disease would not ipso-facto fall within the definition of 'continued ill-health', which could be used as a ground for termination of services of a workman unless the normal performance of duties of the workman is affected. Meaning thereby he is unable to discharge the duties satisfactorily, which are assigned to him. The expression 'continued ill-health' cannot be invoked by the Management to get rid of an employee, if the ability to perform the duties assigned to the workman is not affected. The ill health should be a continued one, which would over a period of time have an effect on due performance and discharge of duties assigned to the workman. There can be certain diseases, which are uncurable and can be termed as chronic, which may come within the term 'continued ill-health' but that would not fall within the ambit of the expression used under sub- clause (c) of Section 2 (oo) of the Industrial Disputes Act. The touchstone for applicability of Section 2 (oo) (c) is the affect of such continued ill-health in due discharge of normal duties assigned to the workman, therefore, it is not the disordered physical condition, which would pass the test of continued ill health, as contained in Section 2 (oo) (c) of the Industrial Disputes Act. In the present case, none of the certificates, which have been relied upon by the counsel for the petitioner, pass the test of requirement of Section 2 (oo) (c) of the Industrial Disputes Act. Reply filed by the Management before the Labour Court and the evidence led by the Management also does not support the contention of the counsel for the petitioner that the termination of the services of the workman would fall under Sub Clause (c) of Section 2 (oo) of the Industrial Disputes Act. It CWP No. 8648 of 2009 5 has nowhere been mentioned nor a ground taken by the Management that the continuous ill health, which has been attributed to the workman, is having any effect on the performance of the duties by the workman. Not a word to the effect that the performance of the workman has been affected due to ill-health to the assigned duties to the workman by the Management has been mentioned in the reply to the claim or in the oral or documentary evidence. Counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court in the case of Workman vs. Bagalore Woolen, Cotton and Silk Mills Co. Ltd., AIR 1962 SC 1363, in support of his contention that the workman, due to his ill health, remained absent for various periods since the year 1995. The details of his remaining absent are as follows:- Yearly No. of Days Factory worked No. of days you actually worked No. of days you availed E.L., C.L., & SL. No. of days absence & L.W.P. 1. 2. 3. 4. 5. 1995 303 215.5 30 62.5 1996 303 232.5 24.5 52 1997 304 265.5 30 8.5 1998 303 260.5 29 15.5. 1999 303 222 29 57 Upto 31/10/2000 252 182 23 55 On this basis, he submits that due to absence of the workman from duty, the work is suffering He, on this basis, submits that ill health of CWP No. 8648 of 2009 6 the workman is proved by his absence itself and the Management is suffering because of his remaining absent for such long time. He has contended that since the workman has been maintaining ill health continuously for a long period of time, it was obvious that he was not performing his duties up to the mark as he remained absent. This contention of the counsel for the petitioner also cannot be accepted for the reason that the requirement of Section 2 (oo) (c) of the Industrial Disputes Act is the effect of continuous ill health on the workman in performance of his discharge of duties satisfactorily. In the judgment relied upon by the counsel for the petitioner i.e. Workman vs. Bagalore Woolen, Cotton and Silk Mills Co. Ltd. (supra), the Hon'ble Supreme Court in para-8 has held as follows:- “8. But Mr. Jha says that we have to construe the award by itself. According to him, under the award, the Company is bound to pay gratuity according to the terms of the Ordinance, and, therefore, to all whose services were terminated by way of retrenchment within the definition of that word inserted in the principal Act by the Ordinance. We do not think that this contention either of Mr. Jha is tenable. The definition makes “retrenchment” a termination of service. It seems to us that a service cannot be said to be terminated unless it was capable of being continued. If it is not capable of being continued, that is to say, in the same manner in which it had been going on before, and it is, therefore, brought to an end, that is not a termination of the service. It is the contract of service which is terminated and that contract requires certain physical fitness in CWP No. 8648 of 2009 7 the workmen. Where therefore a workman is discharged on the ground of ill-health, it is because he was unfit to discharge the service which he had undertaken to render and therefore it had really come to an end itself. That this is the idea involved in the definition of the word “retrenchment” is also supported by Section 25-G of the Act which provides that where any workmen are retrenched, and the employer proposes to take in his employment any person he shall give an opportunity to the retrenched workmen to offer themselves for re- employment and the latter shall have preference over other persons in the matter of employment. Obviously, it was not contemplated that one whose services had been terminated on grounds of physical unfitness or ill-health would be offered re-employment; it was because his physical condition prevented him from carrying out the work which he had been given that he had to leave and no question of asking such a person to take up the work again arises. If he could not do the work, he could not be offered employment again. It would follow that such a person cannot be said to have been retrenched within the meaning of the Act as amended by the Ordinance.” This judgment also does not support the contention of the counsel for the petitioner. The Hon'ble Supreme Court was dealing with the case of an already terminated employee under Section 2 (oo) (c) who was alleging violation of the provisions of Section 25-G of the Industrial Disputes Act. So the said judgment is out of context as the same is distinguishable on facts and the provisions which fell for consideration before the Court. However, the observations made by the Hon'ble CWP No. 8648 of 2009 8 Supreme Court in the said judgment with reference to Section 2 (oo) (c) of the Industrial Disputes Act also is to the same effect as has been held above that the illness of the workman should be of such a nature, which would render him unfit to discharge the service, which he had undertaken to render to the Management. As has been stated above, the Management has totally failed to prove either by documentary or oral evidence that the workman was unable to discharge the duties assigned to him because of his ill health. Mere remaining on leave or remaining absent does not prove that he is incapable of performing his duties or that he is unfit to discharge the services, which he had undertaken to render. The requirement of law having not been complied with by the Management, the findings, as recorded by the Labour Court, are fully justified and does not call for any interference by this Court. Reference, at this stage, can be made to a judgment of the Division Bench of the Bombay High Court in the case of Ramaswamy Murugesh vs. S.G. Bhonsale, then Presiding Officer, Labour Court and another, 2006-1-LLJ 281, wherein the Hon'ble Court with reference to Section 2 (oo) (c) of the Industrial Disputes Act, 1947 observed that an illness over a period of time that affects the workman in the discharge of his duties would bring into operation sub-clause (c) . Para-11 of this judgment reads as follows:- “11. The expression 'continued ill-health' occurring in sub- clause (c) of Section 2 (oo) has to be given contextual meaning. In the context, obviously it should mean the condition of the health of an employee that consistently affects the functioning of the duties of the post. It is not the gravity of CWP No. 8648 of 2009 9 disease that would alone fall, within the meaning of expression 'continued ill-health' but its affection on the due discharge of the normal duties. Ill-health is something not in good health. It is disordered physical condition. To find out whether the person is in continued ill-health for the purposes of sub-clause (c) of Section 2 (oo) of the Industrial Disputes Act is what is to be seen is whether such person does not possess good health for a considerable long period and that has affected him from active duties. The disease in the body may result in ill-health if it continues over a period of time affecting normal discharge of duties and if that happens a person can be said to be suffering from continued ill-health. As the Supreme Court said in the case cited supra that one has to place a realistic and not a technical or pedantic meaning on the phrase 'continued ill- health'. An illness over a period of time that affects in discharge of duties would bring into operation sub clause (c) and the workman can be said to be suffering from continued ill- health. The phrase 'continued ill-health' also has to be given colour to cover the cases if on account of illness of the employee the product or service has been affected or likely to be affected.” The meaning to the expression 'continued ill-health' occurring in sub-clause (c) of Section 2 (oo) of the Industrial Disputes Act has thus to be given in the context in which it has been used in the Industrial Disputes Act. By invoking the provisions of Section 2 (oo) (c), a person is deprived of the livelihood, therefore, a strict meaning has to be assigned and has to be read in the context of the statute keeping in view the intention of the CWP No. 8648 of 2009 10 legislature. The Industrial Disputes Act deals with the conditions of employment and the relationship of the workmen and the Management as also their rights and duties thereunder. In this background, the expression 'continued ill-health' would mean that the disease affecting the body of the workman has such an effect that it results in continued ill-health over a period of time and which also affects the normal discharge of duties, then and only then, a workman can be said to be suffering from continued ill- health bringing his termination within the ambit of Section 2 (oo) (c) of the Industrial Disputes Act. In view of the above, there is no merit in the present writ petition and, therefore, the same stands dismissed. ( AUGUSTINE GEORGE MASIH ) JUDGE May 29, 2009 pj Whether referred to Reporters..................Yes/No.