IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.06.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.6501 of 2009 and 6842 of 2010 and M.P.No.1 of 2009 and M.P.No.1 of 2010 The Management of CSI Rainy Multispeciality Hospital 45, G.A.Road, Chennai – 600 021. ... Petitioner in W.P.No.6501/2009 G.Doss ... Petitioner in W.P.No.6842/2010 Vs 1.G.Doss 2.The II Additional Labour Court, Chennai, High Court Buildings ...Respondents in W.P.No.6501/2009 1.The Management of CSI Rainy Multispeciality Hospital 45, G.A.Road,Chennai – 600 021. 2.The II Additional Labour Court, Chennai, High Court Buildings ...Respondents in W.P.No.6842/2010 W.P.No.6501/2009 PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorari, to call for the records from the second respondent relating to the I.D.No.794/2001 and the Award dated 25.08.2008 on the file of the II Additional Labour Court, Chennai the second respondent and quash the Award dated 25.08.2008 made in I.D.No.794/2001. W.P.No.6842/2010 PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified mandamus, to call for the records from the second respondent in respect of Award dated 25.08.2008 made in I.D.No.794/2001 by the second respondent in so far as it denying 50% of the backwages to the petitioner and direct the management to pay full backwages to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner W.P.No.6501/2009 : Mr.K.S.Sundar W.P.No.6842/2010 : Mr.S.Chandrabose For Respondent W.P.No.6501/2009 : Mr.S.Chandrabose W.P.No.6842/2010 : Mr.K.S.Sundar C O M M O N O R D E R Heard both sides. 2. In the first writ petition, the Management is the CSI Rainy Multispeciality Hospital, Chennai. They have filed the writ petition challenging the Award of the II Additional Labour Court, Chennai made in I.D.No.794/2001 dated 25.08.2008. By the impugned Award, the Labour Court granted relief of reinstatement with 50% of the backwages and other attendant benefits to the second respondent workman. 3. The writ petition was admitted on 16.04.2009. Pending the writ petition, this Court granted an interim stay. Subsequently, the Workman filed two applications being M.P.Nos.2/2009 and 3/2009 seeking to vacate the interim stay and for a direction to pay monthly wages of Rs.2,764/- in terms of Section 17-B of the Industrial Disputes Act, 1947. When these applications came up on 09.12.2009, this Court made the interim stay absolute on the condition that the Management must deposit a sum of Rs.1,00,000/- (Rupees One Lakh only) with the II Additional Labour Court,Chennai to the credit of the Industrial Dispute. On such deposit, the workman was permitted to withdraw Rs.50,000/- and the balance amount was directed to be deposited in a nationalised bank for a period of three months. It was to be renewed from time to time till the disposal of the writ petition. The Management was also directed to pay a sum of Rs.2,764/- as monthly wages from the date of the writ petition i.e., April 2009 and the arrears arising out of the payment under Section 17-B of the I.D.Act was to be paid within a period of four weeks. 4. However, the Management filed an application in M.P.No.1 of 2010 seeking for extension of time to comply with the order dated 09.12.2009. Since the Management had not complied with the interim order, the Workman had also filed a claim petition under Section 33-C(2) of the I.D.Act before the Labour Court for computing the benefits of the backwages payable as per the impugned Award. 5. Subsequently, the Workman also filed a writ petition being W.P.No.6842 of 2010 challenging that portion of the Award in denying 50% of the backwages and sought for payment of full wages. When that writ petition came up on 06.04.2010, this Court directed the earlier writ petition to be listed along with this https://hcservices.ecourts.gov.in/hcservices/ writ petition as it was also concerned the same Award. 6. Thus both the writ petitions arising out of the common Award were dealt together and a common order is passed. 7. For the sake of convenience, the parties are referred to as the Management and the Workman. 8. The Workman was employed as a Sweeper in the Management Hospital from 30.09.1982 to 24.11.2000. He had put in 18 years of service. It was the case of the Workman that he was denied employment with effect from 25.11.2000 on the ground he had reached the age of his superannuation and he was already 59 years. According to the Workman, he was only 44 years old and that he was willing to be examined by any medical practitioner to prove his age. The workman also alleged that the Management in order to employ new recruits at lower wages, had edged him out of service. 9. The Workman raised a dispute before the Government Labour Officer against his non-employment. As the conciliation officer could not bring about any mediation, he gave a failure report dated 30.05.2001. On the strength of the failure report, the Workman filed a claim statement dated 01.11.2001. The II Additional Labour Court took up the dispute as I.D.No.794 of 2001 and issued notice to the Management. The Management filed a counter statement dated 05.08.2002. In the counter statement, it was claimed that the Workman was appointed only from 27.04.1983 as a temporary employee and was confirmed in service with effect from 01.04.1985. He did not produce any document at the time of his engagement to show the proof of his age. Therefore, in accordance with the regulations framed by the hospital, his age was dealt with. According to the Rules, no request for alteration of age will be entertained two years before retirement. It was also claimed that since he did not produce any age proof, he was referred to a committee constituted by the Director. The Committee gave its opinion dated 30.10.1997 stating that his age was fixed as 59 years. 10. On the strength of the report, a show cause notice dated 15.12.1998 was issued to the Workman as to why his age should not be recorded as 59 as on 31.10.1997 as determined by the Medical Board. The Workman thereafter produced a birth certificate dated 20.01.1999 claiming to have been born on 26.12.1956. The said Birth Certificate was not accepted by the hospital and it was sent for verification. The Assistant Health Officer, Corporation of Chennai by his letter dated 20.06.2000 clarified that the birth of the Workman was not found recorded in the register. It is under these circumstances, the Management of the Hospital issued a letter dated 25.11.2000 superannuating the Workman with effect from 30.06.1998. The Workman was also informed that he was eligible to get his terminal benefits. It was also claimed that the medical examination was conducted by two hospitals and the date of birth produced by the Workman was not genuine. https://hcservices.ecourts.gov.in/hcservices/ 11. Before the Labour Court, the Workman had examined himself as W.W.1. He also examined one T.S.Swaminathan as W.W.2. On behalf of the Management, one Johnson Selvaraj was examined as M.W.1. The Workman filed two documents and they were marked as Exs.W1 and W2. On the side of the Management, 7 documents were filed an they were marked as Exs.M1 to M7. 12. It was found by the Labour Court that the opinion of the Medical Board was not proved and the Doctor who gave the certificate was not examined. Even during the pendency of the Industrial Dispute, I.A.No.285 of 2007 was filed seeking for a direction to the Labour Court to refer the case of the Workman to be examined by the Medical Board attached to the Government General Hospital. Accordingly, the Workman had appeared before the Medical Board on 04.05.2007. The Medical Board by its examination on 04.05.2007 found the Workman's age was 38. The Labour Court agreed with the opinion tendered by the Medical Board who examined the Workman pursuant to the order made in the interim application. Since the Management had not examined the Doctor attached to the Management Hospital to prove the fact that the Workman had crossed 59 years, the Labour Court did not accept the evidence tendered by the Management. It also found that at the time when the Workman joined duty on 27.04.1983, his age was recorded as 20 and if that was taken into account, the opinion tendered by the Medical Board attached to the Government General Hospital indicating that the Workman age at the time of examination viz., on 04.05.2007 was around 38 years was acceptable. Hence the stand of the Management that his age found to be 59 years which led to his termination as per Ex.M5 is not acceptable. It is in that view of the matter, the relief of reinstatement with 50% of backwages was given to the Workman. 13. Though the contention of the Management that as per their internal regulations in the absence of any age proof they can have the employee examined by their own doctor to ascertain the age cannot be disputed. But if that exercise was done and a report was obtained from their own Medical Board, then it is incumbent upon them to prove the said certification to the satisfaction of the Labour Court. On the contrary, since there was no acceptable legal evidence, the Labour Court was constrained to refer the case for the opinion of the Medical Board which is attached to the Government Hospital and found that the age certified by the Medical Board was more or less proximity to the age found in the application for employment given by the Workman, marked as Ex.M1 dated 27.04.1983. 14. It was rightly contended by the learned counsel for the Workman that when the Management examined him by their own Doctor, no proper test was conducted and by appearance no ascertainment of the age can be made. On the contrary, ascertaining the age of a person involves examination of several factors including a radiological examination. In the absence of any scientific test conducted on the Workman by the Management to https://hcservices.ecourts.gov.in/hcservices/ ascertain his age, reliance placed upon by the Management on their internal regulations cannot be accepted. 15. Therefore, there is no warrant to interfere with the finding of the fact recorded by the Labour Court based upon scientific material produced before it. Hence, the challenge made by the Management to the impugned Award cannot be countenanced. At the same time, the attack made by the Workman against the denial of 50% of the backwages also cannot be entertained. The Labour Court in the matter of grant of backwages enjoys wide discretion and such discretion must be made judiciously. All attempts must be made to strike a balance. This ratio was laid down by the Supreme Court vide its judgment in Laxmi Rattan Cotton Mills Ltd. v. State of U.P. reported in (2009) 1 SCC 695. Therefore, the Labour court did not commit any error in depriving 50% of the backwages. 16. In the light of the above, both the writ petitions deserve to be dismissed. Accordingly, they are dismissed. Consequently, connected miscellaneous petitions are closed. The Management of the Hospital is directed to implement the Award within a period of eight weeks from the date of receipt of a copy of this order. svki Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Management of CSI Rainy Multispeciality Hospital 45, G.A.Road,Chennai – 600 021. 2.The II Additional Labour Court, Chennai, High Court Buildings + 2 ccs to Mr. S. Chandrabose, Advocate SR No.41160, 41159 + 1 cc to Mr. K.S. Sundar, Advocate SR No.40678 RK(CO) SR/15.6.2010 order in W.P.No.6501 of 2009 and 6842 of 2010 https://hcservices.ecourts.gov.in/hcservices/