S Madheswaran v. The Presiding Officer

IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on: 25.03.2024 Delivered on: 30.04.2024 CORAM: THE HONOURABLE MR.JUSTICE G. CHANDRASEKHARAN and W.M.P. No.39763 of 2004 W.P.Nos.32855 of 2004 and W.M.P. No.39763 of 2004 S. Madheswaran S/o. Sithan ... Petitioner Vs.

¶1The Presiding Officer, Labour Court, Salem.

¶2The Management, Ideal Spinning Mills Limited, Post Box No.437, 7/54, Junction Main Road, Salem – 4.

¶3The Management, Fenner India Limited, Kumarakottam, Pattukonampatti, Pappireddipatti, Dharmapuri District – 636 905. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records relating to the award dated 21.11.2002 in I.D. No.801 of 1998 on the file of the 1st respondent and quash the same in so far as it directs the 2nd and 3rd respondents to pay only a compensation of Rs.75,000/- and consequently direct the 3rd respondent to reinstate the petitioner in service with all backwages and all other attendant benefits. For Petitioner : Ms. R. Vaigai, Senior Counsel

for Mr. Anna Mathew

For Respondents : R1 – Court R2 – Dismissed vide Court order dated

16.10.2023. R3 – Mr.P.Raghunathan Mr.T.S. Gopalan W.P.No. 8143 of 2003 The Management, Fenner India Limited, Kumarakottam, Pattukonampatti, Pappireddipatti, Dharmapuri District – 636 905.

... Petitioner Vs.

¶1The Presiding Officer, Labour Court, Salem.

¶2S. Matheswaran

¶3M/s.Ideal Spinning Mills Limited, Ideal Garden Complex, R/54, Junction Main Road, Five Roads, Salem – 636 004.

.... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the records relating to the award dated 21.11.2002 in I.D. No.801 of 1998 on the file of the 1st respondent and quash the same. For Petitioner

: Mr. T.S. Gopalan

For Respondents

: R1 – Court R2 – No appearance. R3 – Not ready in notice. COMMON ORDER (Order of the Court was made by G. Chandrasekharan,J.) The Writ petition in W.P. No.32855 of 2004 is filed under Article 226 of Constitution of India seeking to issue Writ in the nature of Certiorarified Mandamus calling for the records relating to the Award dated

21.11.2002 in I.D. No.801 of 1998 and quash the same in so far as it directs the 2nd and 3rd respondents to pay only a compensation of Rs.75,000/- and consequently direct the 3rd respondent to reinstate the petitioner in service with all backwages and all other attendant benefits. The Writ petition in W.P. No.8143 of 2003 is filed under Article 226 of Constitution of India seeking to issue a Writ of Certiorari, calling for the records relating to the award dated 21.11.2002 in I.D. No.801 of 1998 on the file of the 1st respondent and quash the same.

¶2The petitioner in W.P. No.32855 of 2004 was working under the 2nd and 3rdrespondents namely The Management, Ideal Spinning Mills Limited and the Management, Fenner India Limited. He was working as Sider in the 2nd respondent Ideal Spinning Mills Limited since the inception of the 2nd respondent Mill in 1984. He had performed his duty to the best of his ability without any complaint. There were 600 employees under the 2nd respondent, out of which 200 were permanent employees. The CITU union was fighting for the legitimate cause of the workers in the 2nd respondent management. Petitioner was selected as a Secretary of CITU in 1992 and he was fighting for the rights of the employees of the 2nd respondent Management. Not liking this, the 2nd respondent management starting victimizing the petitioner.

¶3Petitioner had to take leave on medical ground. On 18.08.1994, the 2nd respondent issued charge sheet stating that the petitioner was absent for 97 days from August 1993. He submitted his explanation on

20.08.1994 and stated that he had obtained leave with permission and also submitted a Medical Certificate. The 2nd respondent management did not provide any safety measures and proper working arrangements, medical facilities etc., and that were the reasons for his illness. After recovering from his illness, he performed his duties to the satisfaction of the 2nd respondent management. He was subjected to medical examination on

31.10.1994 and on the basis of the medical report, he was relieved from service by a letter dated 09.11.1994 without any notice or enquiry.

¶4Petitioner sent a letter dated 22.11.1994 to the 2nd respondent to reconsider the order, but that was not considered in his favour. He sent another letter dated 30.11.1994, which was also not considered by the 2nd respondent management. Therefore, petitioner raised a dispute before the Labour Officer, Krishnagiri. Since no amicable settlement was reached, the Labour Officer, Krishnagiri submitted his report under Section 12(4) of the Industrial Disputes Act, 1947. During the pendency of the said dispute, the 2nd respondent had leased out its undertaking to the 3rd respondent. The act of the 2nd respondent in relieving the petitioner from his service is arbitrary and not legal. The 1st respondent instead of ordering reinstatement with all backwages and attendant benefits, ordered only compensation of Rs.75,000/- which is unjust and therefore, the Writ petition in W.P. No.32855 of 2004 is filed before this Court.

¶5Challenging the order of payment of compensation of Rs.75,000/- , the Ideal Spinning Mills Limited filed the Writ Petition in W.P. No.813 of 2003.

¶6The learned Senior counsel for the petitioner invited attention of this Court to the Award passed by the learned Presiding Officer,Labour Court, Salem. The learned Presiding Officer after finding that the petitioner was terminated from service against Section 25(f) of Industrial Disputes Act on the basis of medical report, set aside the order of termination. However, instead of ordering reinstatement with all monetary benefits, just ordered compensation alone. After recording a finding that no notice was given and no enquiry was conducted, prior to termination of the petitioner; and that without following the due procedures contemplated under Section 25 of Industrial Disputes Act, the termination ordered is not correct; the learned Presiding Officer should have ordered reinstatement with backwages instead of ordering compensation alone. The finding that "considering the condition of the petitioner, the petitioner cannot be ordered reinstatement or other alternative employment and therefore, compensation would be a proper relief", recorded by the learned Presiding Officer of the Labour Court is against the evidence and not in accordance with law. It is further submitted that the High Court can interfere with an Award or order passed by a Judicial Authority, if the order suffers from findings:- A) which are perverse B) shows non-application of mind C) which are based on surmises and assumptions and D) are mere ipse dixit.

¶7In support of this proposition, the learned counsel appearing for the petitioner relied upon judgment in Rajinder Kumar Kindra v. Delhi Administration reported in (1984) 4 SCC 635 and Kuldeep Singh v. Commissioner of Police reported in (1999) 2 SCC 10.

¶8It is further submitted that there is no evidence produced to show that the petitioner was unfit to work and he was in continuous ill-health. The report of the medical Board does not say that the petitioner / workman suffered from continuous ill health. No detailed tests other than general health check up were done, nor was he examined by a Neuro-Specialist Doctor. There is no evidence from MW1 Dr. R.T. Chandrasekar that the petitioner's medical condition was incurable and he was incapable of performing Sider's job.

¶9Continuing the submission and learned senior counsel submitted that after joining duty, the petitioner continuously worked and performed his functions without any complaint till the date of termination ie., on

09.11.1994. It is admitted by MW2 that there was no allegation against the petitioner that his productivity was insufficient in quantity or quality, due to his ill-health. The Labour Court failed to discuss about the evidence of the workman with regard to the fact that the petitioner was working till the date of his termination. Therefore, the termination of the petitioner on the ground that he had suffered continuous ill health is not based on evidence and is not correct. In the absence of proof of continuous ill health, the termination is unjustified. Absence of any evidence on "continued ill-health" or "unfitness to work" makes the termination illegal and unjust and violative of Section 25F of the Industrial Disputes Act. Hence the petitioner is entitled to be reinstated with continuity of service and full backwages. In support of this contention, the learned senior counsel appearing for the petitioner relied upon judgment in Madura Mills Co., Ltd., v. Meenakshi Amma reported in 1962 SCC Online Mad 404 and Bisra Stone Lime Company Ltd., v. Their Workmen reported in 1990 SCC Online Ori 87.

¶10The finding that the petitioner is "unfit to work" is a mere ipse dixit and a surmise and it is not permissible in law. In support of his contention, the learned senior counsel for the petitioner relied upon judgment in Secretary, M/s. Spencer & Co., Ltd., v. Additional Commissioner reported in 1981 SCC Online Mad 490.

¶11The learned Senior counsel further submitted that if the termination is not due to continuous ill health, then it falls within the definition of Section 2(oo) and is a clear case of 'retrenchment'. To be a valid retrenchment, the Act has imposed prior mandatory conditions of issuance of Notice and payment of compensation to the worker as per Section 25F of the Act. Since no such notice was given and no compensation has been given to the petitioner, the termination is illegal. The Hon'ble Supreme Court has held in series of cases that the workman is entitled to reinstatement with backwages if Section 25F of the Act is violated. In support of this proposition, the learned senior counsel for the petitioner has relied on the judgment in Santosh Gupta v. State Bank of Patiala reported in (1980) 3 SCC 340 and Jasmer Singh v. State of Haryana reported in (2015) 4 SCC 458.

¶12It is further submitted that the Writ petition was filed in 2004 and the petitioner had reached his age of super annuation and hence it is not possible for reinstatement and thus, she prayed for notional reinstatement with full backwages and all other attendant benefits.

¶13In reply to the submission made by the learned senior counsel for the petitioner, the learned counsel appearing for the respondent / management submitted that on 11.02.2003, the 3rd respondent addressed a letter to the petitioner stating that though it was aggrieved by the award of the Labour Court, in order to put an end to the litigation, the 3rd respondent was willing to consider payment of compensation to the petitioner to a sum of Rs.75,000/-. Petitioner sent a reply dated 18.02.2003 stating that he was also aggrieved by the award and he must be permitted to receive the said compensation of Rs.75,000/- without prejudice to his right to challenge the award. Therefore, the 3rd respondent deposited a sum of Rs.75,000/- with the 1st respondent. After more than 1 ½ years, petitioner filed this Writ petition.

¶14Petitioner was employer as a Sider. He had developed nervous disability and as a result, he stayed away from work for 97 days between August 1993 and July 1994. He was referred to the Medial Board of Mohankumaramangalam Government Hospital, Salem. He was examined by the Panel Doctos on 31.10.1994 and they opined that the petitioner was having tremor in his hands and he was not fit for continued employment. The report dated 31.10.1994 was sent and on the basis of the said report, petitioner was terminated on 09.11.1994, because of his continuous ill health. Since the termination was due to continuous ill health, it would not amount to retrenchment.

¶15He further submitted that the Labour Court considering the oral evidence and the documents produced, found that because of petitioner's ill health, he was not in a position to work and did not order reinstatement. Only because, no notice was given to the petitioner and no enquiry was conducted, it cannot be say that the termination is bad. If the petitioner was permitted to work, it would be dangerous to him as well as to Mill. There is a possibility of accident, in case the petitioner was permitted to work at the time of running of machines. It is not necessary to order compensation by the Presiding Officer, Labour Court when it is found that the petitioner is not fit to work. The learned Presiding Officer, Labour Court should have dismissed the claim made by the petitioner. Award of compensation is not right. Thus, he prayed for dismissal of the Writ petition filed by the workman and for allowing the writ petition filed by the management.

¶16In support of his submission, the learned counsel relied upon the following judgments:

(i) Kumaresan N vs. Presiding Officer, Labour Court and another reported in 2001(2) LLJ369 for the proposition that "termination on the ground of continued ill health is not retrenchment and no domestic enquiry is to be held".

(ii) Ceat Limited vs. S.D.Sawant and others reported in 1999 (2) LLJ 360 for the proposition that "Judicial scrutiny of continued ill health would be on the basis of date of taking action and not during the pendency of the litigation".

(iii) Management of Sundaram Industries Limited v. Presiding Officer, Labour Court and another reported in Vol. 103 FJR 233 for the proposition that "The Management would be entitled to question the correctness of the conclusion of the Labour Court while sustaining the direction of the Labour Court".

(iv) Assistant Engineer, Rajasthan Development Corporation and another reported in 2013(5) SCC 136 for the proposition that "Given in a case of violation of 25F of the Industrial Dispute Act compensation is sufficient".

(v) M/s. Bharat Iron Works v. Bhagubhai Balubhai Patel and others reported in 1976-LAB I.C.4 for the preposition that "victimization cannot be inferred".

¶17Heard both sides'. Considered the rival submissions and perused the materials available on record.

¶18From the facts the case on hand and the submissions of learned counsel appearing on either side, it is not in dispute that the petitioner in W.P. No.32855 of 2004 Mr. S. Madheswaran was a permanent employee under the respondents 2 and 3. It is also not in dispute that he was terminated from service due to continuous ill-health. It is also not in dispute that no Show Cause notice was given or any oral enquiry was conducted prior to termination of service of the petitioner. It is submitted by the learned counsel appearing for the respondent that it is not necessary to conduct domestic enquiry when termination is on the ground of continued ill health and in support of this preposition, he has relied upon judgment in Kumaresan N vs. Presiding Officer, Labour Court and another reported in 2001(2) LLJ369, in which it is observed in Para 7 as follows:- "7. The other question that remains to be considered is as to whether the order of termination passed by the 2nd respondent management is Exhibit M-39 was justified. It is too well settled that under Section 2(oo)(c) of the Industrial Disputes Act, which excludes from the definition of "retrenchment", the termination of the service of a workman on the ground of continued ill-health, and in a case where such a termination was based on continued ill-health of a workman, it is open for the management to establish the factum of the continued ill-health even before the Labour Court and that the absence of holding any domestic enquiry to establish the said fact, would not, ipso facto, vitiate the order of termination. That being the legal position what all to be seen was whether the second respondent-management satisfactorily established the continued ill-health of the petitioner-workman, which forced the second respondent-management to issue the order of termination under exhibit M-39". It is not in dispute that no notice or enquiry was conducted before terminating the petitioner on medical grounds and therefore, it is to be found out whether the respondents 2 and 3 have proved that the petitioner suffered continuous ill health and the termination of the petitioner was just and legal by producing evidence before the Labour Court.

¶19The learned counsel appearing for the petitioner relied upon the judgment in Madura Mills Co. Ltd., v. Meenakshi Amma reported in 1962 SCC Online Mad 404, wherein it is held in Para 9 as follows:-

¶9Learned counsel for the petitioner relies on the decision in Burrakur Coal Co. Ltd., v. Azimuddin Ashraff, [1960] 19 F.J.R 162, for the elucidation of the words "continued ill-health", occurring in Section 2(oo). At page 168, the learned Judges observe thus: "If the expression 'continued ill-health" is susceptible of a narrower interpretation and means continued illness due to some organic disease, and it retrenchment means nothing but discharge of a portion of labour force as surplusage, then a person not suffering from any disease, but wholly disabled for active duties due to physical infirmity or otherwise, will not come within the purview of this Act. The acceptance of the argument of the learned Government Advocate will, therefore, introduce in the Act an anomaly not obviously in the contemplation of the legislature. In my considered judgment, 'continued ill-health' includes any physical defect or infirmity incapacitating a workman for future work for an indefinite insufficient to establish that the respondent is in a state of continued ill-health. It is true that the health of an individual may break down, and doctors ma fail to diagnose the cause of the physical debilitation. While I agree that the continued ill-health is only a state of the physical condition of the person concerned, which need not necessarily be correlated to any organic disease in the system, it is certainly extravagant to contend that mere physical weakness at a particular moment of time would constitute "continued ill-health" within the meaning of the Act. If that were to be the law, any passing ailment, which may temporarily render an employee unable to do work, would result in the far-reaching consequence of discharge from service.

¶11The finding of the Court below that the respondent is not in a state of continued ill health is purely one of fact supported by the evidence on record". It can be gathered from the above judgment that 'continued ill-health' includes any physical defect or infirmity incapacitating a workman for future work for an indefinite period'. However, it is extravagant to contend that mere physical weakness at a particular moment of time would constitute "continued ill-health" within the meaning of the Act. If that were to be the law, any passing ailment, which may temporarily render an employee unable to do work, would result in the far-reaching consequence of discharge from service. Whether the petitioner suffered from physical defect or any infirmity incapacitating him to work in future for an indefinite period of time or he had an ailment temporarily rendering the petitioner unable to do work, is a moot point in this case.

¶20From the award passed by the learned Presiding Officer, Labour Court recorded his findings in Para 13 as below: "13. nkw;go jPu;g;g[fisa[k; ,t;tHf;fpy; N:H;epiyfisa[k; ghu;f;Fk; nghJ kDjhuiu gzpePf;fk; bra;jtw;F Kd;ghf mwptpg;g[ bfhLf;ftpy;iy vd;Wk;. tprhuiz elj;jtpy;iy vd;Wk; bjupfpwJ/ kUj;Jt fhuz';fSf;fhf gzp ePf;fk; bra;ag;gl;lhYk; mjw;F Kd;g[ bjh/e/r/ gpupt[ 25d; tpjpKiwfis gpd;gw;wpapUf;f ntz;Lk;/ vdnt kDjhuiu gzpePf;fk; bra;jJ rupay;y/ nkYk; kDjhuu; mof;fo cly;epiy rupapy;yhky; ,Ue;Js;shu; vd;W bjupfpwJ/ cly;epiy rupapy;yhjjhy; gzpf;F tu Koatpy;iy vd;W kDjhunu Fwpg;gpl;Ls;shu;/ kDjhuiu gupnrhjid bra;j kUj;JtUk; (v/rh/1) kDjhuuhy; me;j ntiyia bra;a KoahJ vd;Wk;. mtu; tpuy;fspy; eLf;fk; cs;sJ vd;Wk; Fwpg;gpl;Ls;shu;/ mjdhy; jhd; kDjhuUk; gzpf;F tuhky; ,Ue;Js;shu; vd;gJ bjupfpwJ/ kDjhuiu gupnrhjid bra;j k/rh/2. v/k/rh/M/1d; go kDjhuUf;F eLf;fk; tu tha;g;g[s;sjhf Fwpg;gpl;Ls;shu;/ vdnt kDjhuupd; cly;epiyia fUj;jpw; bfhz;L kDjhuUf;F kPz;Lk; mnj ntiyia tH';fnth my;yJ khw;Wg; gzp tH';fnth cj;jutpl KoahJ/ mjw;Fg; gjpyhf kDjhuUf;F el;l <L tH';fyhk; vd;W ,e;ePjpkd;wk; fUJfpwJ/ 14/ nkw;Twpa N:H;epiyapy; kDjhuiu kPz;Lk; gzpapy; mku;j;Jtjw;Fg; gjpyhf mtUf;F ,Hg;gPlhf U:/75.000-=I vjpu;kDjhuu; 3 khj';fSf;Fs; bfhLf;f ntz;Lk; vd;Wk;. jtwpdhy; 9 rjtPjk; tl;oa[ld; bfhLf;f ntz;Lk; vd;W ,e;ePjpkd;wk; Kot[ bra;fpwJ"

¶21From the above finding, it is seen that the learned Presiding Officer found that there was no notice or enquiry conducted before terminating the petitioner. Without following the procedure under Section 25 of the Act, terminating the petitioner is not correct.

¶22It was also found that the petitioner was not well and MW1 gave his evidence stating that he has given his medical opinion stating that petitioner was diagnosed with Cervical Myolopathy Demyelating disease and he had fine tremer on both hands (terminal portion) small muscle wasting on both palms and he was not fit to do hand work and he could not do fine work. Considering the health condition of the petitioner, it was held by the Labour Court that the petitioner cannot be reinstated or given alternate employment and ordered compensation of Rs.75,000/-.

¶23In previous paragraph, the learned Presiding Officer discussed about the evidence of Doctor with regard to the health condition of the petitioner. For the purpose of appreciating the findings reached by the learned Presiding Officer, Labour Court, this Court has to analyse the evidence. PW2 Dr. Mariappan stated that the petitioner's health was 100% perfect and he can work as Sider. Evidence of RW1 Dr. Chandrasekaran shows that during the medical examination, petitioner was found with difficulty in walking and tremor in his hands. Thus, he came to the conclusion that petitioner cannot do fine work and his muscle condition is incurable.

¶24It is seen from the Doctors evidence and the medical certificates produced, petitioner had some medical issues called Cervical Myolopathy demyelating disease and he was having fine tremor on both hands, small muscle wasting on both palms and he was not fit to do hand work and he could not do fine work. When it is stated that the petitioner is having medical issues associated with nerves, it is expected to consult an expert, a neuro physician. A neuro Physician is the right person to give a correct findings on the petitioner's medical condition. Curiously, petitioner was not examined by a neuro physician.

¶25It is also seen from the evidence of MW1 that demyelating disease may or may not be cured and it cannot be certainly stated that it cannot be cured. The other two members of the Board are Ophthalmologist and anaesthetist. From the above evidence, it cannot be concluded that the petitioner's disease would never be cured. One important factor that requires the consideration of this Court is that, it is not as though the petitioner was on leave when he was terminated from his service on medical grounds. After completion of medical examination, he joined duty and was working. There was no adverse remarks from the Supervisors or anybody else from the 2nd respondent management as to the performance of the petitioner during the course of his employment. No one reported that petitioner's performance was found not satisfactory due to his health condition.

¶26In this context, the learned senior counsel for the petitioner relied upon judgment in Bisra Stone Lime Company Ltd., v. Their Workmen reported in 1990 SCC Online Ori 87, wherein the Hon'ble Supreme Court has held in Paras 11 and 12 as follows:-

¶11On the aforesaid submission being made by Sri Ratho, Sri Das appearing for the worman took some time to receive instructions, and he informed us later when the case was taken up for further hearing that though the petitioner had some problem of health in 1977, since then, however, he has been keeping fit and has been earning his livelihood by pulling a rickshaw. The learned counsel further informed the Court that the workman would have no difficulty in undertaking the miner' work which, though arduous, is not more arduous, than that of a rickshaw-puller. The petitioner had appeared in the Court and we have found him quite hale and healthy. There is no material before us to show if after 1977 the petitioner had been keeping bad health because of which reinstatement should be denied to him. In view of all the above, we have not felt persuaded to accept the contention of Sri Ratho.

¶12There being no other infirmity in the impugned award relating to reinstatement, the petition is dismissed. Keeping, however, in view of the fact that the petitioner was self employed as a rickshaw-puller after the termination of his service, we shall order for payment of 2/3 of the arrear wages calculated from the date of the termination till the date of the award". The 2nd respondent management clearly admitted that the petitioner was working till the date of his termination and there was no charge against him that he did not meet production target in terms of quantity and quality. PW2 Dr. Mariappan has stated in his evidence that the petitioner's health condition is 100% good. When there are contradictory medical evidence, expert's opinion would be very relevant to take a conclusive decision. As already stated, petitioner was not examined by an expert i.e., a neuro physician to ascertain his health condition. It is no doubt that the management can prove before the Labour Court, in the absence of domestic enquiry about the continuous ill health of the petitioner. The evidence produced before the Labour Court by the management, with regard to the continuous ill health of the petitioner, in the considered view of the Court, is not a conclusive evidence to come to a definite conclusion that the petitioner suffered a health problem which is serious and incurable in nature and it prevented him from working. Petitioner was working at the time of his termination and there was no charge against him that he did not satisfy the production requirement in terms of quality and quantity. Therefore, the finding of the Labour Court that considering the health condition of the petitioner, he cannot be reinstated or provided alternative employment and he is only entitled for compensation, in the considered view of this Court, is not correct. Therefore, the award dated 21.11.2002 in I.D. No.801 of 1998 is liable to be set aside and accordingly set aside. Petitioner is entitled for the relief and notional reinstatement and other benefits.

¶27With regard to the backwages, there is no evidene produced on the side of the petitioner to show that he was not working anywhere during the non-employment period. Petitioner has reached the age of superannuation. In such circumstances, this Court is inclined to direct that the petitioner shall be notionally reinstated and paid 50% of the backwages from the date of his termination till the date of his reaching the age of superannuation with all the other attendant benefits.

¶28In fine W.P. No.32855 of 2004 is allowed in the above terms and W.P.No.8143 of 2003 is dismissed. Parties are directed to bear their own costs. Connected miscellaneous petition is closed.

30.04.2024 Internet : Yes Index:Yes/No mjs G. CHANDRASEKHARAN

, J.,

(mjs) To

¶1The Presiding Officer, Labour Court, Salem

¶2The Management, Ideal Spinning Mills Limited, Post Box No.437, 7/54, Junction Main Road, Salem – 4.

¶3The Management, Fenner India Limited, Kumarakottam, Pattukonampatti, Pappireddipatti, Dharmapuri District – 636 905. Pre-delivery judgment in

30.04.2024