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Judgment
S.P. Davare, J.—Perused.
The present Writ Petition preferred by the petitioner (original opponent No. 1), challenging the order dated 28.12.1995 passed by the learned Judge, II Labour Court, Ahmednagar in Application (IDA) No. 597 of 1989. By the impugned order dated 28.12.1995, the respondents (original applicants) were awarded the amount of Rs. 38,880/-towards encashment of special extra ordinary leave in respect of Tuberculosis (TB) for the period from 7.11.1986 to 25.2.1989 by which the original applicant namely Shaikh Mohomad Iqbal Mehaboob expired.
The factual matrix, in brief, are that, Shaikh Mohomad Iqbal Mehaboob was serving as a conductor in State Transport Depot at Shrirampur in Ahmednagar district of the petitioner. Respondent Nos. 1 and 2 are the parents of the said conductor. Said Shaikh Mohamad Iqbal Mehaboob was suffering from TB, hence he submitted applications for leave from time to time. However, the authorities of the petitioner directed him to appear before the Chief Medical Officer of the Corporation at Bombay who is the Competent Authority to decide about the disease/consequential reliefs. Shaikh Mohamad Iqbal Mehaboob, however, did not report to the Chief Medical Officer at Bombay for medical examination and continued to remain absent from duty.
Ultimately on 16.4.1987 Shaikh Mohamad Iqbal Mehaboob was issued chargesheet for this conduct and absentism without leave under Clauses 10, 22 and 38 of Schedule ''A'' of the Disciplinary and Appeal Procedure of the Corporation and departmental inquiry was conducted, but said Shaikh Mohamad Iqbal Mehaboob did not remain present. Hence he was held guilty on the charges levelled against him and was dismissed from service by order dated 25.2.1989.
Respondents herein (original applicants) submitted application before the Labour Court, Ahmednagar bearing (IDA) No. 597 of 1989 u/s 33(C)(2) of the Industrial Disputes Act, 1947 against the petitioner herein and prayed for grant of amount of Rs. 38,880/-towards encashment of special extra ordinary leave in respect of TB for the period from 7.11.1986 to 25.2.1989 i.e. for 27 months and contended that he could not apply for leave due to sickness, but the authorities of the petitioner S.T.Corporation did not grant him special extra ordinary leave in respect of TB. The said application was contested by the petitioner herein. However, the learned II Labour Court, Ahmednagar by judgment and order dated 28.12.1995 allowed the said application and directed the petitioner Corporation to pay an amount of Rs. 38,880/-to the applicants towards encashment of special extra ordinary leave in respect of TB for the period from 7.11.1986 to 25.2.1989.
Being aggrieved and dissatisfied by the said judgment and order, the petitioner Corporation has preferred the present Writ Petition assailing the said impugned order dated 28.12.1985 under Articles 226 and 227 of the Constitution of India.
The main bone of contention of the petitioner is that the deceased Shaikh Mohamad Iqbal Mehaboob did not appear before the Chief Medical Officer, Bombay as per the directions give to him from time to time by the authorities and, therefore, it was not possible to grant special extra ordinary leave to him in respect of TB under the Rules and as such he was not entitled to special extra ordinary leave for TB. It was also contended that there is no provision under the Leave Orders of the Corporation for giving benefit of encashment in lieu of special extra ordinary leave in respect of TB and further submitted that special extra ordinary leave in respect of TB can be granted only up to three years including one year TB leave. Even special extra ordinary leave is to be granted as per the recommendation of the Competent Medical Officer.
To substantiate the said contention, the learned Counsel for the petitioner relief upon the provision for grant of TB leave as provided under Regulation 199 r/w Regulation 200-A of the Bombay S.T.E.S. Regulations. Rules 8.61 and 8.62 thereof is reproduced hereunder :
8,61. If the case of suspected tuberculosis is found to be an active one grant of leave to an employee should be regulated as follows:
(i) He shall be granted whatever leave on average pay is due to him first (Regulation 199(a)).
(ii) On expiry of the leave as above, he shall be granted T.B. Leave on average pay. The total T.B. Leave (on average pay) shall not exceed one year (Regulation 200-A).
(iii) On expiry of the leave as above he shall be granted leave on half average pay due.
(iv) On expiry of leave as above, he shall be granted extra ordinary leave recommended by the Medical Authority. (Regulation 200-A).
(v) The extra ordinary leave shall be subject to a maximum of two years (Regulation 190(a)) subject to the condition that all leave granted as mentioned in (i) to (iv) above, does not exceed three years (Regulation 200-A).
8.62. The above leave is admissible subject to the following conditions.
(i) The post from which the employee proceeds on leave is likely to last till his return to duty;
(ii) The extra ordinary leave shall be granted subject to the production of a certificate from the Medical Authority, specifying the period for which leave is recommended;
The Medical Authority shall not recommend the grant of leave in any case in which there appears to be no reasonable prospect that the employee concerned will ever be fit to resume duty. In successes, the opinion that the employee is permanently unfit for service in S.T. Shall be recorded in the Medical Certificate (Regulation 199(b))
Relying on the above said Regulations, the learned Counsel for the petitioner submitted that in spite of directions given to Shaikh Mohamad Iqbal Mehaboob to appear before the Chief Medical Officer, he did not submit himself before the Chief Medical Officer and, therefore, special extra ordinary leave in respect of TB disease could not be granted to him and consequently the respondents (original applicants) are not entitled for encashment amount of special extra ordinary leave and, therefore, submitted that the impugned judgment and order dated 28.12.1995 passed by the Judge, II Labour Court, Ahmednagar is required to be quashed and set aside.
On the face of the said position, the learned Judge, after recording the evidence in the matter observed that the impugned judgment that the death certificate shows that Shaikh Mohamad Iqbal Mehaboob died on 3.3.1989 and the card of Civil Hospital shows that Mohd. Iqbal was undergoing special TB treatment during the period from 6.7.1987 to 17.6.1988 and the copy of certificate issued by the Booth Hospital, Ahmednagar shows that Mohd. Iqbal was undergoing medical treatment for TB from 20.9.1984 till 30.5.1985 and from 5.6.1985 to 4.9.1985. Moreover, paper of Pune Ayurvedic Chikitsalaya discloses that Mohd. Iqbal took medical treatment for TB from 11.11.1986 onwards. Pertinently it is further observed in the impugned judgment that the copy of the letter dated 17.2.1989 discloses that deceased Mohd. Iqbal had informed the petitioner herein that he was sick and was not in a position to go out of station for taking medical treatment.
Besides the learned Counsel for the respondents invited my attention to the factual position that deceased Mohd. Iqbal was referred to the Chief Medical Officer, Booth Hospital, Ahmednagar by the Divisional Controller, S.T. Ahmednagar of the petitioner for the check up of TB vide letter dated 21.9.1984, wherein it is stated that admissible charges would be borne by the office of the petitioner, as afore said certificate issued by the Booth Hospital, Ahmednagar discloses that Mohd. Iqbal was under the medical treatment for TB in the said hospital from 20.9.1984 to 30.5.1985 and from 5.6.1985 to 4.9.1985. Moreover, as mentioned hereinabove, the case paper of Pune Ayurvedic Chikitsalaya reflected that Mohd. Iqbal was taking medical treatment for TB from 11.11.1986 onwards. Besides that, Mohd. Iqbal categorically informed the petitioner Corporation vide letter dated 17.2.1989 that he was sick and was not in a position to go out of station for taking medical treatment.
Under these circumstances, the view adopted by the learned Judge, II Labour Court, Ahmednagar that the respondents (petitioner herein) cannot deprive of the monetary benefits to the deceased in respect of TB leave only because the deceased employee had not followed the procedure for not submitting himself before the Chief Medical Officer because the deceased employee was not in a position to go out of station for medical treatment; and the deceased employee had pre-existing right to encashment of special extra ordinary leave in respect of TB leave cannot be faulted with. Accordingly, consequential grant of the amount of Rs. 38,880/-by the applicant towards the encashment of special extra ordinary leave in respect of TB for the period from 7.11.1986 to 25.2.1989 to the respondents herein also cannot be faulted with. Since the respondents are the legal heirs and they are entitled for the benefit in respect of the monetary benefits payable to deceased u/s 33(C)(2) of the Industrial Disputes Act, 1947.
In the circumstances, there is no substance in the proposition put forth by the learned Counsel for the petitioner and, therefore, same cannot be accepted and no interference in the judgment and order dated 28.12.1995 passed by the learned Judge, II Labour Court, Ahmednagar in Application (IDA) No. 597 of 1989 is warranted under Articles 226 and 227 of the Constitution of India.
Under these circumstances, the present Writ Petition bear no substance and same is devoid of any merits and hence same stands dismissed. Interim order stands vacated. Rule stands discharged. No costs.
It appears that the petitioner had deposited amount of Rs. 15,000/-in this Court at the time of interim relief and the same has been withdrawn by the respondents. The petitioner is directed to deposit the balance amount in this Court within a period of two months and thereafter the respondents are permitted to withdraw the same.