A.B. Chaudhari, J.@mdashBy the present petition, there is a challenge to the judgment and order made by the Industrial Court on 22.08.1995 in Revision ULP No. 6/1992 confirming the judgment and order made by the Labour Court, Nagpur in Complaint ULP No. 761/1988 decided on 18.12.1991 refusing the award of backwages to the petitioner.
2. Mr. Jamal, learned Counsel for the petitioner, made the following submissions. The petitioner was sanctioned special leave with pay from 12.06.1986 to 01.10.1986 by the respondent-employer and he also received the sickness benefits for the period of illness as is clear from an order made by Works Manager, S. T. Central Workshop, Nagpur on 18.10.1986 (Annexure ''M'' with this petition). The chargesheet was given to him on 13.03.1986 and thereafter a show cause notice was given to him on 22.06.1986. Finally, the respondentemployer issued dismissal order pursuance to the said show cause notice on 09.03.1987. According to the learned Counsel for the petitioner, since the petitioner was on duly sanctioned leave and had received the sickness benefits for the said illness in accordance with the provisions of Section 73(1) and (2) of the Employees'' State Insurance Act, 1948 neither any chargesheet could have been issued to him nor any show cause notice nor dismissal order could have been issued as provisions of Section 73 of the Employees'' State Insurance Act, have been held to be mandatory and the chargesheet, notice and dismissal order become void.
3. Continuing his arguments, Mr. Jamal argued that since the dismissal order of the petitioner itself is rendered void, the petitioner could not have been deprived of the backwages for the period from 09.03.1987 till 15.03.1990 as has been done by the Labour Court as well as the Industrial Court. The learned Counsel places reliance on the decision of the Hon''ble Supreme Court in Hindustan Tin Works Pvt. Ltd. v. The Employees of Hindustan Tin Works Pvt. Ltd. and Ors. 1978 LAB. I. C. 1667 for claiming full back wages and another decision of the Supreme Court in the case of
4. Per contra, Mr. Wankhede, learned Counsel for the respondent-employer, vehemently opposed the writ petition and argued that the Labour Court had framed a preliminary issue as to whether the enquiry held against the petitioner-employee was fair, proper and legal and by order dated 16.12.1989 that preliminary issue was answered against the respondent-employer only on the ground that the show cause notice dated 22.06.1986 (document no. 6) was issued during the period of special leave already granted i.e. from 12.06.1986 till 18.01.1986 and therefore the Labour Court found it to be in violation of Section 73(2) of the Employees'' State Insurance Act, 1948. He, however, contended that the said order dated 16.12.1989 itself allowed the respondent employer to prove the misconduct by adducing evidence in the Court. Mr. Wankhede, then continuing his argument, submitted that accordingly the respondentemployer adduced evidence before the Labour Court and proved misconduct of the petitioner-employee even for the period prior to 12.06.1986 regarding continuous habitual absence of the petitioner from duty unauthorisedly and also for no good reason and the misconduct committed by the petitioner even during the period prior to his special leave was duly proved as has been found concurrently by both the Courts below and that being so, it cannot be said that the action taken by the respondent was illegal. He then pointed out that since the punishment was found to be disproportionate, the Courts below found that the denial of backwages would be enough punishment rather than dismissing the petitioner from service and this has been accepted by respondent-MSRTC and accordingly, the petitioner was reinstated in service. He, therefore, prayed that the petition deserves to be dismissed with costs.
5. I have heard learned Counsel for the rival parties at length and also gone through the entire record as well as the impugned judgments and orders. It will be appropriate to reproduce the provisions of Section 73 of the Employees'' State Insurance Act, 1948 which is as under:
73. Employer not to dismiss or punish employee during the 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 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-sec. (1) shall be valid or operative.?
While interpreting Section 73(1) and (2) of the Employees State Insurance Act, in the case of Buckingham & Carnatic Co. cited supra, the Hon''ble Supreme Court of India observed as under:
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-sec. (2). This sub-section provides that no notice given to an employee during the period specified in Sub-sec. (1) 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, there can be no doubt that the punitive action which is prohibited by S. 73(1) is not confined 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....
Reading of the above interpretation by the Hon''ble Supreme Court clearly shows that the punitive action proceedings on the basis of absence owing to only sickness is not prohibited by Section 73(1) of the Act but in respect of all kinds of misconduct, such action is prohibited during the entire period of illness. Now, coming to the analysis of Section 73, it would be advantageous to quote the following extract from the very same judgment.
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 all punitive section during the pendency of 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. It that be so, it is difficult to invoke S. 73 against the appellant, because the termination of Venkatayya''s services has not taken place during the period of his illness for which he received sickness benefit.
6. Reading of Section 73(2), to my mind, shows that even if a notice of dismissal or discharge or reduction is given to an employee during the period of illness specified in Sub-section (1), the same shall not be valid or operative. According to me, in a case where such notice is given during the said period of illness, the same shall remain in abeyance because the same is not valid nor the same can be made operative during that period. It does not mean that such a notice cannot become operative or valid after the period of illness, as specified in Sub-section (1), is over. In the instant case, the sanctioned period of illness contemplated by sub Section (1) of Section 73 is from 12.06.1986 till 01.10.1986 and the show cause notice came to be issued on 22.06.1986 i.e. during the said period of illness. The show cause notice therefore, could not become operative nor could be said to be valid during the period from 12.06.1986 till 01.10.1986. But then it is noteworthy that in case of petitioner, this show cause notice was neither made operative nor valid during the said period of illness specified by sub Section (1) and the action to terminate services of the petitioner by dismissal order took place as late as on 19.03.1987 i.e. after the specified period. The submission made by the learned Counsel for the petitioner that since the show cause notice was issued during the period of illness, the entire chargesheet as well as enquiry and the dismissal order must fall to the ground, does not impress me and in view of the above factual situation, I am inclined to reject the said submission. It is nobody''s case that said show cause notice dated 22.06.1986 was made valid and operative during the said period of illness i.e. from 12.06.1986 to 01.10.1986. In that view of the matter, it is not possible to agree with the submission made by Mr. Jamal, learned Counsel for the petitioner. Consequently, I hold that dismissal order of the petitioner dated 19.03.1987 cannot be said to be void.
7. It is an admitted fact that the misconduct was duly proved before the Labour Court pursuant to the liberty granted by the Labour Court to do so and the respondent-employer examined his witness to prove the misconduct. The Labour Court as well as the Industrial Court, both have recorded a concurrent findings of facts that the respondent-employer has proved the misconduct before the Labour Court, upon evidence against the petitioner and that the petitioner is guilty of the said acts of misconduct. I have gone through those findings of facts and I find that they are in consonance with the evidence on record and there is no need to interfere with those findings of facts. I therefore, confirm the above findings of facts of Labour Court and Industrial Court. That apart, the respondentemployer filed and proved a statement of absence and attendance of the petitioner at Annexure ?B? of the petition. Perusal of the same clearly shows that the petitioner remained absent on 114 days out of 365 days in a year. I have seen the reasons for his absence and I am fully convinced that the petitioner indulged in habitual absence and the reasons furnished by him on many occasions appear to be bogus. If the petitioner could remain on leave/unauthoried absence of 114 days out of 365 days in a year, one can understand what kind of duty he must have performed. The petitioner, for all the above reasons therefore, is not entitled to any relief muchless claim for backwages made before me. There is no substance in this writ petition. The same will have to be dismissed and hence the writ petition is dismissed. No order as to costs.
