The Buckingham and Carnatic Co. Ltd. Vs.
Venkatiah & ANR  INSC 160 (2 August 1963)
02/08/1963 GAJENDRAGADKAR, P.B.
GUPTA, K.C. DAS
CITATION: 1964 AIR 1272 1964 SCR (4) 265
R 1968 SC 33 (12) R 1979 SC 582 (6)
Orders-Termination of ServiceEnployee absent without leave-"Employer not
to dismiss or punish employee during period of sickness"-scope and effect
of-Employees State Insurance Act, 1948 (34 of 1948), s. 73, sub-ss. (1) and (2)
and s. 85(d)-Standing Orders No. 8 (ii) and 13(f)Regulations 53 to 86.
The respondent Venkatiah went on leave for
six days and did -not join duty on the expiry of the leave period but remained
absent without sending to the appellant any communication for extending his
leave. Later, he sent 2 letter to the appellant accompanied by a medical
certificate issued by a Civil Assistant Surgeon in respect of his illness for a
period of nearly two months. The Medical Officer of the appellant was unable to
confirm that he was ailing for a period of two months. Finding the explanation
for his absence unsatisfactory the appellant refused to take him back in its
employment. Meanwhile he had applied to the Regional Director of the Employees'
State Insurance Corporation and obtained cash sickness benefit for the period
covered by the Medical Certificate issued by the Civil Assistant Surgeon. On
the appellant's refusal to take him back in its employment, the respondent
union, referred his case for adjudication 18-2 S. C. India/64 266 to the Labour
Court and the management of the appellant was directed to reinstate him. The
appellant then moved a writ petition in the High Court and it was allowed by
the learned single Judge. The respondent then preferred a Letters Patent Appeal
before a Division Bench of the High' Court.
The appeal was allowed by the Division Bench
and the award passed by the Labour Court was restored. In his appeal against
the said decision the appellant's main contention in this Court was that the
case of Venkatiah fell squarely within the provisions of Standing Order 8(ii)
and the High Court was wrong in holding that the decision of the appellant in
refusing to condone the absence of Venkatiah was either unfair or improper, or
that it contravened the provisions of s. 73 of the Employees' State Insurance
Act, 1948. The respondent mainly contended that in the present case the
employee received sickness benefit, and so, for the said sickness, no penalty
could be imposed on him.
Held : (i) Standing Order 8(ii) was
applicable to the present case and the fact that the same conduct was dealt with
in two different standing orders, could not affect the applicability of
Standing Order 8(ii) to the present case.
(ii) Whether or not the appellant should have
accepted the certificate of the Civil Assistant Surgeon was primarily for the
appellant to consider; as there was no allegation about mala fides in this
case, it was not open to the High Court, in exercise of its writ jurisdiction,
to consider the propriety of the conclusion reached by the Labour Court on this
(iii) On a proper construction of s. 73(1)
read with sub-s. (2), it was impossible to invoke s. 73 against the appellant,
because the termination of Venkatiah's services had not taken place during the
period of his illness for which he received sickness benefit; the High Court
was not justified in taking the view that the termination of Venkatiah's
services under S.O. 8(ii) contravened the provisions of s. 73(1).
(iv) The view taken by the Regional Director
about the effect of the Civil Assistant Surgeon's certificate under the proviso
to regulation 53 could not be said to be binding on the appellant and in view
of the construction put on s. 73(1), there was no inconsistency between the
said section and Standing Order 8(ii).
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 874 of 1962.
Appeal from the judgment and order dated
January 15, 1962, of the Madras High Court in Writ Appeal No. 82 of 1959.
A. V. Viswanatha Sastri, G. B. Pai and B. N.
Ghosh, for the appellant.
267 B. R. Dolia, M. Rajagopalan and K. R.
Chaudhuri, for the respondents.
August 2, 1963. The Judgment of the Court was
delivered by GAJENDRAGADKAR, J.-The principal question which arises in this
appeal relates to the true scope and effect of the provisions contained in s.
73 of the Employees' State Insurance Act, 1948 (hereinafter called the Act).
The appellant, the Buckingham & Carnatic Co. Ltd., is a company registered
under the Indian Companies Act and its registered office is at Madras. It has a
Textile Mill in Madras City which employs 14,000 workmen. On January 10, 1957,
the respondent Venkatiah whose case is sponsored by the respondent Union, the
Madras Labour Union, had gone on leave for six days. Taking into account the
intervening holidays, the said leave expired on January18, 1957. He, however
did not join duty on the 19th January as he should have, but remained absent
without leave without sending to the appellant any communication for extending
his leave. On the 11th March 1957 he sent a letter to the appellant stating
that sometime after reaching his village near Kanigiri he suffered from fever
and dysentery and was treated by the Civil Assistant Surgeon, Kanigiri. This
letter was accompanied by a certificate issued by the said Civil Assistant
Surgeon. In this certificate it was stated that Venkatiah suffered from chronic
malaria and dysentery from January 15 to, March 7, 1957. When he appeared
before the Manager of the Company, he was asked to go to the Senior Medical
Officer of the appellant for examination. The said Officer examined him and was
unable to confirm that he had been ailing for a period of nearly two months.
Acting on that opinion' the appellant refused to take back Venkatiah and when
Venkatiah pressed to be taken back, the appellant informed him on March 23,
1957 that he could not be reinstated as his explanation for his absence was unsatisfactory.
The case of Venkatiah was treated by the appellant under Standing Order No.
8(ii) of the Standing Orders of the appellant.
Meanwhile, Venkatiah had applied to the
Employees State Insurance Corporation and on or about the 15th June 1957 he
obtained cash sickness benefit for the period covered by the medical
certificate issued. by the Civil Assistant Surgeon, Kanigiri. The Regional
Director to whom Venkatiah had applied for the said assistance accepted the
said certificate as alternative evidence and directed that payment may be made
to him to the extent permissible under the Act. Accordingly, Rs. 82-14-00 were
paid to him.
When the appellant refused to take back
Venkatiah in its employment, the respondent Union took up his case and it was
referred for adjudication to the Labour Court at Madras as an industrial
dispute (S.P.O. No. A-5411 of 1958). Before the Labour Court the appellant
urged that the reference made was invalid and it also contended that the
termination of Venkatiah's services was 'Justified. The Labour Court rejected
the appellants preliminary object-ion about the invalidity of the reference. It
held that if the matter had to be considered solely by reference to the
Standing Orders, the appellant was entitled to succeed, because it was
justified in acting upon the opinion given by its Medical Officer in regard to
the alleged illness of Venkatiah. When the said opinion was attacked before the
Labour Court, it observed that it was easy to make, such an attack and it held
that "he was not inclined to accept the correctness of the criticism in
the a absence of any strong evidence to show that the Medical Officer was
prejudiced against the worker and was motivated with the idea of victimisation".
The respondent, however, succeeded before the
Labour Court primarily on the ground that the decision of the appellant not to
take back Venkatiah was inconsistent with the provisions of s. 73 of the Act.
That is why the Labour Court directed the management of the appellant to
reinstate Venkatiah within two weeks after its award came into force without
liability to pay back-wages, but with continuity of service.
After this award was pronounced by, the
Labour Court, the appellant moved the Madras High Court by 2 writ petition and
prayed that the said award be quashed (W.P. No. 716 of 1958). This writ
petition was allowed by Mr. Justice Balkrishna Ayyar. The learned Judge held
that s. 73 of the Act was inapplicable to the present case and found that, in
substance, the labour court had made its award on grounds of sympathy for
Venkatiah rather than on the merits of the case.. In the result, the said 269
award was set aside by the learned judge. The respondent challenged the
correctness of this decision by a Letters Patent Appeal before a Division Bench
of the Madras High Court (No. LPA 82 of 1959). The respondent's appeal was
allowed by the Division Bench and in consequence, the award passed by the
Labour Court has been restored. The Division Bench has held that s. 73 applied
to the present case and that made the refusal of the appellant to take back
Venkatiah in its employment illegal. It has also observed that in refusing to
take back Venkatiah the appellant had not properly discharged its obligation of
examining Venkatiah's explanation reasonably and that introduced an infirmity
in its decision not to take him back. In ,other words, according to the
Division Bench, the action of the management amounted to contravention of the
provisions of s. 73 of the Act and was otherwise not fair. It is against this
decision that the appellant has come to this Court with a certificate issued by
the Madras High Court under Art.
133(1)(c) of the Constitution.
Mr. Sastri for the appellant contends that
the case of Venkatiah falls squarely within the provisions of Standing Order
8(ii) and the High Court was in error in holding that the decision of the
appellant in refusing to condone the absence of Venkatiah was either unfair or
improper, or that it contravened the provisions of s. 73 of the Act. Let us
first examine Standing Order No. 8(ii) before proceeding any further. The said
Standing Order reads thus:
"Absent without Leave: Any employee who
absents himself for eight consecutive working days without Leave shall be
deemed to have left the Company's service without notice thereby terminating
his contract of service.
If he gives an explanation to the
satisfaction of the management, the absence shall be converted into leave
without pay or dearness allowance.
Any employee leaving the Company's service in
this manner shall have no claim for reemployment in the Mills.
But if the absence is proved to the
satisfaction of the Management to be one due to sickness, then such absence
shall be converted into medical leave for such period as the employee is
eligible with the permissible allowances." 270 This Standing Order is a
part of the certified Standing Orders which had been revised by an arbitration
award between the parties in 1957. The relevant clause clearly means that if an
employee falls within the mischief of its first part, it follows that the
defaulting employee has terminated his contract of service. The first provision
in clause (ii) proceeds on the basis that absence for eight consecutive days
without leave will lead to the inference that the absentee workman intended to
terminate his contract of service. The certified Standing Orders represent the
relevant terms and conditions of service in a statutory form and they are
binding on the parties at least as much, if not more, as private contracts
embodying similar terms and conditions of service. It is true that under common
law an inference that an employee has abandoned or relinquished service is not
easily drawn unless from the length of absence and from other surrounding
circumstances an inference to that effect can be legitimately drawn and it can
be assumed that the employee intended to abandon service. Abandonment or
relinquishment of service is always a question of intention, and normally, such
an intention cannot be attributed to an employee without adequate evidence in
that behalf. But where parties agree upon the terms & conditions of service
and they are included in certified Standing Orders, the doctrines of common law
or considerations of equity would not be relevant. It is then a matter of
construing the relevant term itself. Therefore, the, first part of Standing
Order 8(ii) inevitably leads to the conclusion that if an employee is absent
for eight consecutive days without leave, he is deemed to have terminated his
contract of service and thus relinquished or abandoned his employment.
The latter part of this clause, however,
provides that the employee can offer an explanation as to his absence and if Ms
explanation is found to be satisfactory by the management, his absence will be
converted into leave without pay or dearness allowance. Now this clause is in
substance a proviso to its first part. Before effect is given to the inference
of relinquishment of service which arises from the first part of the clause, an
opportunity is given to the employee to offer an explanation and if the said
explanation is treated as satisfactory by the management, 271 the inference of
termination of contract of service is rebutted and the leave in question is
treated as leave without pay or dearness allowance. This latter clause
obviously postulates that if the explanation offered by the employee is not
found to be satisfactory by the management, the inference arising from the
first part prevails and the employee shall be deemed to have terminated his
contract of service with the result that the relationship of master and servant
between the parties would be held to have come to an end. With the remaining
part of the said Standing Order we are not concerned in this appeal.
It is true that absence without leave for
eight consecutive days is also treated as misconduct under cl. 13(f) of the
Standing Orders. The said clause refers to the said absence and habitual
absence without leave. In other words, the position under the Standing Orders
appears to be that absence without leave for more than eight consecutive days
can give rise to the termination of the contract of service either under
Standing Order 8(ii) or may lead to the penalties awardable for misconduct
after due enquiry is held as required by the relevant Standing Order. The fact
that the same conduct is dealt with in two different Standing Orders cannot
affect the applicability of S.O. 8(ii) to the present case. It is not as if the
appellant is bound to treat Venkatiah's absence as constituting misconduct
under S.O. 13(f) and proceed to hold an enquiry against him before terminating
his services. Dismissal for misconduct as defined under S.O. 13 may perhaps
have different and more serious consequences from the termination of service
resulting from S.O. 8(ii). However that may be, if S.O. 8(ii) is applicable, it
would be no answer to the appellant's case under S.O. 8(ii) to say that S.O.
13(f) is attracted. This position is not seriously in dispute.
The High Court appears to have taken the view
that the appellant did not act fairly in rejecting Venkatiah's case that he was
ill and in refusing to act upon the certificate produced by him in support of
his case. It is necessary, in the first instance, to examine the correctness of
this conclusion. As we have already indicated, the Civil Assistant Surgeon no
doubt certified on March 7, 1957 that Venkatiah had suffered from chronic
dysentery from January 15 to March 7, 1957, and he added that he was then
completely free from the ailments and was in a fit state of health to join duty
on the 9th March 1957. Incidentally, the certificate has been granted at the
end of the treatment and specifically avers that he was fit enough to join on
March 9, 1957. When Venkatiah was examined by the Medical Officer of the
appellant on the 22nd March 1957, the Medical Officer was unable to confirm
that he was ill for a period of nearly two months. The High Court has
criticised this certificate as being vague. In our opinion, by this certificate
the Medical Officer politely suggests that having regard to the opinion which
he formed on examining Venkatiah on March 22, he was unable to confirm the
certificate issued by the Civil Assistant Surgeon. What struck the High Court
as vague in the certificate is obviously the result of the desire of the
appellant's Medical Officer to observe professional courtesy in dealing with
the certificate on which Venkatiah relied. Apart from I this aspect, however,
we do not see how it was open to the High Court to consider the propriety of
the conclusion reached by the Labour Court on this point. We have already
noticed that the Labour Court has specifically repelled the criticism made by
the respondent against the conduct of the appellant's Medical Officer and has
held that if the matter had fallen to be considered only in the light of
Standing Order 8(ii), the appellant would have succeeded. That being so, it is
not easy to see how the respondent's grievance against the said finding of the
Labour Court could have been properly upheld by the High Court in exercising
its writ jurisdiction under Art. 226 of the Constitution. Whether or not the
appellant should have accepted the certificate of the Civil Assistant Surgeon
was primarily for the appellant to consider. It is significant that there is no
allegation about mala fides in this case, and so, we do not think that the High
Court was justified in making a finding against the appellant on the ground
that the appellant had not discharged its obligation under the Standing Orders
of properly considering the explanation of Venkatiah in regard to his absence.
The High Court was apparently aware of this position and so, it has stated in
the course of its judgment that it would rest its decision on what it regarded
to be the effect of 273 s. 73 "even assuming that the discharge of the
worker in the instant case was automatic by virtue of the operation of Standing
Order 8(ii), and so, it is to this part of the case that we must now turn.
Before doing so, however, we may refer to the
argument urged before us by Mr. Dolia for the respondent that it would be
anomalous if it is open to the appellant to reject Venkatiah's case that he was
ill during the relevant period when the said case had been accepted by the
Corporation-when it gave him relief under s. 73 and the regulations framed
under the Act. Mr. Dolia relies on the fact that Venkatiah satisfied the
relevant authorities administering the provisions of the Act that he was ill
during the relevant period, and had, in fact, been given assistance on that
basis, so that for the purposes of the Act he is held to be ill during that
period, and yet the appellant for the purpose of Standing Order 8(ii) holds
that Venkatiah was not ill. during the same period. It could not be the
intention of the legislature to allow such a glaring anomaly to prevail, says
Mr. Dolia, and so, he suggested that the appellant was bound to hold that
Venkatiah was ill during the relevant period, having regard to the fact that
his illness had been accepted by the relevant authorities under the Act. This
argument is no doubt, prima facie, attractive, but before accepting it, it
would be necessary to find out whether there is any specific provision in the
Act which compels the appellant to accept the view taken by the relevant
authority under the Act when it decided to give assistance to Venkatiah.
Section 73 of the Act reads as under :
"Employer not to dismiss or punish
employee during period of sickness, etc.(1)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, nor 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 274 of the pregnancy or confinement rendering the
employee unfit for work.
(2)No notice of dismissal or discharge or
reduction given to an employee during the period specified in sub-section (1)
shall be valid or operative." Mr. Dolia contends that since this Act has
been passed for conferring certain benefits on employees in case of sickness,
maternity and employment injury, it is necessary that the operative provisions
of the Act should receive a liberal and beneficent construction from the court.
It is a piece of social legislation intended to confer specified benefits on
workmen to whom it applies, and so, it would be inappropriate to attempt to
construe the relevant provisions in a technical or a narrow sense. This
position cannot be disputed. But in dealing with the plea raised by Mr. Dolia
that the section should be liberally construed, we cannot overlook the fact
that the liberal construction must ultimately flow from the words used in the
section. If the words used in the section are capable of two constructions one
of which is shown patently to assist the achievement of the object of the Act,
courts would be justified in preferring that construction to the other which
may not be able to further the object of the Act. But, on the other hand, if
the words used in the section are reasonably capable of only one construction
and are clearly intractable in regard to the construction for which Mr. Dolia
contends, the doctrine of liberal construction can be of no assistance.
Mr. Dolia's suggestion is that the general
policy of s. 73 is to prevent dismissal, discharge, reduction or other
punishment being imposed or,. an employee who is ill if it is shown that he has
received sickness benefit. There are other cases mentioned in this section to
which it is not necessary to refer for the purpose of dealing with Mr. Dolia's
argument. According to Mr. Dolia, the operation of s. 73 is confined to cases
of illness for instance, and it prohibits the imposition of any penalty
wherever it is shown that in respect of the illness in question, the employee
has received sickness benefit. In the present case, the employee has received
sickness benefit, and so, for the said sickness, no penalty can be imposed on
him. That, in brief, is the contention which Mr. Dolia has pressed 275 before
On the other hand, Mr. Sastri argues that the
words used in the section are capable of only one construction. The section
merely prohibits any punitive action being taken against the employee during
the period of his illness, and he urges that the prohibition is not confined to
punitive action in respect of illness alone but extends to punitive action in
respect of all kinds of misconduct whatever. What the section says is, during
the period that the employee is ill, no action can be taken against him
whatever may be the cause for the said action.
Mr. Sastri also contended that the clause
"during the period the employee is in receipt of sickness benefit"
can cover the period during which the sickness benefit is actually received by
him, and so, he suggests that since during the period of Venkatiah's illness
itself no sickness benefit had been received by him, s. 73(i) is wholly
inapplicable. We are not impressed by this argument. In our opinion, the clause
"during the period the employee is in receipt of sickness benefit"
refers to the period of his actual illness and requires that for the said
period of illness, sickness benefit should have been received by him. It is
quite clear that in a large majority of cases, sickness benefit would be
applied for and received by the employee after his sickness is over, and so, to
hold that the period there referred to is the period during which the employee
must be ill and must also receive sickness benefit, would make the section
wholly unworkable. That is why we do not think that the limitation which Mr.
Sastri seeks to introduce by suggesting that sickness benefit must be paid
during the course of illness itself, can be read into the section.
Even so, what is the effect of s. 73(1) ? In
considering this question, it would be useful to take into account the
provisions of -sub-s. (2). This sub-section provides that no notice given to an
employee during the period specified in sub-s. (i) shall be valid or operative.
Thus, it is clear that the giving of the notice during the specified period
makes it invalid, and it is remarkable that the notice is not in regard to
dismissal, discharge or reduction in respect of sickness alone, but it includes
all such notices issued, whatever may be the misconduct justifying them. Thus,
276 there can be no doubt that the punitive action which is prohibited by s.
73(1) is not confirmed to punitive action proceeding on the basis of absence
owing to sickness; it is punitive action proceeding on the basis of all kinds
of misconduct which justifies the imposition of the penalty in question. 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 211
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 Venkatiah's services
has not taken place during the period of his illness for which he received
There is another aspect of this question to
which it is necessary to refer. Section 73(1) prohibits the employer from
dismissing, discharging, reducing or otherwise punishing an employee. This
seems to suggest that what is prohibited is some positive act on the part of
the employer, such as an order passed by him either dismissing, discharging or
reducing or punishing the employee. Where termination of the employee's
services follows automatically either from a contract or from a Standing Order
by virtue of the employee's absence without leave for the specified period,
such termination is not the result of any positive act or order on the part of
the employer, and so to such a termination the prohibition contained in s.
73(1) would be inapplicable. Mr. Dolia no doubt contended that the word
'discharge' occurring in s. 73(1) should be liberally construed and he argued
that termination of service even under Standing Order 8(ii) should be held to
be a discharge under s. 73(1). We are not prepared to accept this argument. In
considering the question about the true denotation of the word
"discharge" in s. 73(1), it is relevant to bear in mind the
provisions of S. 85(d) of the Act.
277 Section 85(d) provides that if any person
in contravention of s. 73 or any regulation, dismisses, discharges, reduces or
otherwise punishes an employee, he shall be punishable with imprisonment which
may extend to three months or with fine which may extend to five hundred
rupees, or with both.
In other words, the contravention of s. 73(1)
is made penal bys. 85(d), and so, it Would not be reasonable to put the widest
possible denotation on the word "discharge" ins.
73(1). The word "discharge" in s.
73(1) must therefore, in the context, be taken to be a discharge which is the
result of a decision of the employer embodied in an order passed by him. It may
conceivably also include the case of a discharge where discharge is provided
for by a Standing.
Order. In such a case, it may be said that
the discharge flowing from the Standing Order is, in substance, discharge
brought about by the employer with the assistance of the Standing Order. Even
so, it cannot cover the case of abandonment of service by the employee which is
inferred under Standing, Order 8(ii). Therefore, we do not think the High Court
was justified in taking the view that the termination of Venkatiah's services
under S.O. 8(ii) to which the appellant has given effect by refusing to take
him back, contravenes the provisions of s. 73(1).
Mr. Dolia argued that on the appellant's
construction 73(1) would afford very unsatisfactory and poor protection to the
employees. If all that s. 73(1) does is to prevent any punitive action being
taken against the employee during the period that he is ill, there is not much
of protection given to him at all, says Mr. Dolia. There is no doubt some force
in this argument: but as we have already observed, the words used in s. 73(1)
read with subs. (2) cannot reasonably lead to the construction for which, Mr.
Dolia contends. It would, we think, be unreasonable, if not illegitimate, to
construe the relevant section merely on the hypothesis that the legislature
intended to provide a larger protection to the employees when the said
hypothesis cannot be worked out in the light of the words used by the statute.
By virtue of the power conferred on the State
Government by s. 96 to make rules, certain regulations had been framed under
the Act in 1950. Chapter III of these 278 Regulations deals with the benefit
claims. Regulations 53 to 86 in this Chapter are concerned with the
certification and claims for sickness and temporary disablement. Regulation 54
provides for the persons competent to issue medical certificate and Regulation
55 required that the Medical Certificate should be filled in the prescribed
form. Regulation 57 deals with the Medical Certificate on first examination and
Regulation 58 refers to the final Medical Certificate. Regulation 63 prescribes
the form of claim for sickness or temporary disablement. An insured person
intending to claim sickness benefit has to submit the said form to the
appropriate Local Office by post or otherwise.
Regulation 64 lays down that if such a
claimant fails to submit to the appropriate Local Office by post or otherwise
the first medical certificate or any subsequent medical certificate within the
period therein prescribed, he shall not be eligible for that benefit in respect
of the period indicated there under. It is in the light of these regulations
that Regulation 53 has to be considered. This regulation provides that every
insured person claiming sickness benefit shall furnish evidence of sickness in
respect of the days of his sickness by means of a medical certificate given by
an Insurance Medical Officer in accordance with the Regulations in the
There is, however, a proviso to Regulation 53
which says that the Corporation may accept any other evidence of sickness or
temporary disablement if in its opinion the circumstances of any particular
case so justify. In the present case, the Regional Director has accepted the
Civil Assistant Surge'on's certificate under the proviso to regulation 53 when
he directed that cash benefit may be paid to Venkatiah under s. 73(1). Having
regard to these Regulations, it is difficult to see how the view taken by the
Regional Directors about the effect of the certificate issued by the Civil
Assistant Surgeon can be said to be binding on the appellant. There is no
provision in the Act or the Regulations, to which S. 73(1) refers by which it
could be contended that once the illness of an insured employee is accepted by
the appropriate authority under the Act, it must automatically be accepted by
the employer in dealing with the said employee's case under the Standing
Orders. Therefore, the argument that inconsistent results may follow if two
views 279 are allowed to be taken about the illness of a given employee, does
not help the appellant. Besides, as we have already indicated, this argument
has hardly any relevance in view of the construction which we are inclined to
put on s. 73(1) of the Act. In view of our construction of the said section,
Mr. Dolia's argument that there is inconsistency between the said section and
Standing Order 8(ii) also has no validity.
Before parting with this case, we ought to
add that at the very outset, Mr. Sastri for the appellant made it clear to us
that the appellant was fighting this appeal not so much to resist the order of
reinstatement passed in favour of Venkatiah as to get a decision from this
Court about the true scope and effect of s. 73(1) of the Act. In other words,
he argued that this case was fought as a test case on the question of the
construction of the said section.
Therefore, when we suggested to Mr. Sastri
that the appellant who is a very big prosperous employer should not resist the
reinstatement of a single employee whose case has been brought to this Court, he
assured us that he would recommend to the employer to take Venkatiah back on
the terms prescribed by the Labour Court in the first instance in this case.
In the result, the appeal is allowed, the
order passed by the Division Bench of the Madras, High Court is set aside and
that of the Single Judge restored. There would be no order as to costs.