AI Structured Summary
Not yet generated for this judgment
Judgment
S.K. Kader, J.—Being aggrieved by an award Ex. P1 passed in I.D. No. 2/78 , Match Plywood Mazdoor Sabha, the petitioner herein, has come up before this Court praying for the issue of a writ of certiorari or other appropriate writ and quash Ext. P2. The two points urged in support of the petition before this Court are (1) whether partial disability of a worker or partial loss of earning capacity can be said to be continued ill-health as contemplated u/s 2(oo)(c) of the Industrial Disputes Act, 1947, for short the Act; and (2) whether the finding of the Labour Court that there was categorization of workers in the 1st respondent-factory is sustainable.
One Ahammed Kutty, on 29-7-1976, while he was working in cross cutting machine in the factory of the first respondent met with an accident thereby three of his fingers of the left hand were lost (index, middle and ring fingers). He was immediately taken to the hospital where he was treated till 29-11-1976. The Employees State Insurance Corporation assessed disability as per Ext. M1 and found that he has lost 15% of earning capacity and he was awarded compensation permissible in law. According to Ahmmedkutty, he was denied work when reported for work at the factory on 30-11-1976. Some correspondences passed between the factory and the Union in this regard. According to the Management, the worker was not in a position to discharge his duties as before and he cannot be entrusted with the work in the cross cutting machine. The dispute was finally referred for adjudication before the Labour Court, Kozhikode, the second respondent.
Before the Labour Court, the Union contended that there was no categorization of the workers in the factory; that Ahammedkutty can still work in the cross cutting section and that in any view he is entitled to get alternate work in the factory.
The management on the other hand, contended that Ahammedkutty was a worker engaged in cross cutting section; that it is not correct that he was a general worker; that there is categorization of workers in the factory; that in the present condition of Ahammedkutty, he would not be able to work in the cross cutting machine as before and that if he is engaged that will result in improper handling of the machine and also cause accident to himself and loss to the factory. There was no alternate work according to the management, in the factory to be offered to him.
On behalf of the Union WW.l, the worker himself, and WW.2, an ex-employee of the first respondent, were examined and Ext. Wl to W16 were marked; while on the side of the management, the foreman of the factory, and Mw.2, Managing Partner of the 1st respondent, were examined and Exx. Ml to M4 were marked.
The Labour Court on a consideration of the evidence, rejected the contention of the Union and held that denial of work to Ahammedkutty was justifiable that there was categorization of workers in the factory and that the case of Ahammedkutty would come u/s 2(oo)(c) of this Act. All the same, the Labour Court stating that this is a clear case of misfortune and therefore, on compassionate grounds held that the worker was entitled to be paid a sum equal to the compensation which he would have been entitled to in case of retrenchment besides the gratuity amount that he will be entitled to.
It was assailing this award Ex. P1, that the learned advocate urged the above two points. In support of his contention that section 2(oo)(c) of the Act has no application to the facts of this case, the counsel contended that this is not a case where the worker is not in a position to work, and that loss of three fingers cannot in any circumstance be treated as continued ill-health as contemplated u/s 2(oo)(c) of the Act. It is made clear in section 2(oo) of the Act that retrenchment does not include termination of the service of a workman on the ground of continued ill-health.
The important question for consideration in this case is what is the true and correct meaning of the expression "continued ill-health", whether a partial disability or loss of earning capacity can be brought under this expression. The expression "continued ill-health" has not been defined under the Act. A Division Bench of the Patna High Court had occasion to consider what is meant by continued ill-health u/s 2(oo)(c) of the Act. In Burra Kur Coal Co. v. Azimudd
in Burra Kur Coal Co. Ltd. Vs. Azimuddin Ashraff and Another, it was observed as follows:
Ill-health obviously means, disease, physical defect or infirmity or unsoundness. A person who is not free from infirmity or disease or in other words, is not possessing a sound health for active duties and if this state of health continues for a long period, he may be said to be suffering from continued ill-health ''continued ill-health'' includes any physical defect or infirmity incapacitating a workman for future work for an indefinite period.
The Workmen of the Bangalore Woollen, Cotton and Silk Mills Co. Ltd. Vs. The Management of the Bangalore, Woollen, Cotton and Silk Mills Co. Ltd., -was a case where ten workmen were discharged on the ground that they were not in a fit condition of health to continue in service at all and their physical condition prevented them from rendering the service for which they had been employed. The reason for their discharge was that they could not render the services required of them and which under the contracts of service they were bound to render. While considering the applicability of section 2(oo) of the Act to the facts of that case, the Supreme Court held:
Obviously, it was not contemplated the one whose services had been terminated on grounds of physical unfitness or ill-health would be offered re-employment; it was because his physical condition prevented him from carrying out the work which he had been given that he had to leave and no question of asking such a person to take up the work again arises. If he could not do the work, he could not be offered employment again. It would follow that such a person cannot be said to have been retrenched within the meaning of the Act as amended by the Ordinance.
The Supreme Court also observed that a service cannot be said to be terminated unless it was capable of being continued and if it is not capable of being continued in the same manner, in which it had been going on before and it is therefore brought to an end, that is not a termination of the service. It is therefore clear that the discharge of a workman on the ground that he could not render the services required of him and which under the contract of service he was bound to render, his service cannot be said to have been terminated on the ground that his services were not required.
In the instant case there is evidence both oral and documentary that as a result of the loss of three fingers, the workman in question had lost 30% of his earning capacity. This is not disputed also. Then the question is whether this would be sufficient to bring the case u/s 2(oo)(c) of the Act. In other words, the question is whether the workman with his 30% loss of earning capacity was in a position to discharge his duties as before. It is the contract of service which is terminated. A contract of service requires certain physical fitness in the workman. Therefore, if a workman is discharged on the ground of ill-health, it is because he was unfit to discharge the service which he had undertaken under the contract to render. According to the management, he was engaged in a particular section, namely, the cross cutting section, where he had to deal with cross cutting machine and due to the loss of fingers, the workman will not be able to do the same work in the same manner or as efficiently as before. There cannot be any dispute in this regard, as Union itself has admitted in its statement that "the quantum of cross cutting work that can be performed by the workman after the injuries will be comparatively less". The Union contended that he was only a general worker, who was engaged for all varieties or work and that if he is not in a position to work in the cross cutting section he is entitled to get alternate work. Whether he is a general worker on not is a question of fact depending purely on appreciation of evidence. The Labour Court on a consideration of the evidence found that he was not a general worker but was a worker engaged only in cross cutting and as such must be held to have contracted to do the work of cross cutting. It is not proper or correct that this Court should reappraise or reappreciate the evidence in a proceeding of this nature to interfere with a finding of fact. After hearing both sides and duly considering the materials available on record, in the light of the decision referred to above, it is difficult to hold that the findings of the Labour Court are illegal or in any way unreasonable or perverse. The counsel for the respondent stated that if the workman is fit to work in other sections and if a vacancy arises therein that will certainly be offered to the workman in question.
In the result this original petition fails and is hereby dismissed. No costs.