MADAN MOHAN S TIWARI Vs. PRIYA LAKSHMI MILLS

JUDGEMENT

(1.) The petitioner was working as a Piler- permanent operative with the respondent-Mill and he was discharging his duties in the night shift as helper. On 17-8-84 while discharging the duties, the petitioner sustained electric shock and as a result thereof he sustained injury in both the eyes. He was examined by the Medical Board which assessed his disability as 0%. Against this decision of the Medical Board assessing his disability at 0%, the petitioner preferred an Appeal Under Sec. 54A of the Employees' State Insurance Act, 1948. The Medical Appeal Tribunal at Ahmedabad in Appeal (MAT) No. 366 of 1986 set aside the finding of the Medical Board, and while allowing the petitioner's Appeal, recommended disability to the extent of 50% vide its order dated 1-1-87, as has been given out by the learned counsel for the petitioner. It is further submitted on behalf of the petitioner that against this order passed by the Medical Appeal Tribunal, the Employees' State Insurance Corporation preferred a Second Appeal before the E.S.I. Court at Ahmedabad and this Second Appeal (ESI) No. 15 of 1987 was rejected by the E.S.I. Court vide its order dated 8-9-89. As a result of the disability of the petitioner assessed to the extent of 50%, the petitioner is being paid a sum of Rs. 480 P.M. by the E.S.I. Corporation since 28-12-84 as has been given out by the learned counsel for the petitioner.

(2.) It is the case of the petitioner that on 23-11-84 the Civil Surgeon of Jamnabai Hospital, Baroda issued a Certificate, which has been annexed with the Special civil Application as Annexure 'A", certifying that the petitioner had impaired his night vision and he should avoid night duty and should be given light duty. The petitioner's case is that he requested the respondent-Mill to give him light duty during day hours because he had incapacitated himself to discharge the duties in the night shift on account of the impaired night vision while discharging the duties with the respondent-Mill. However, the Mill refused to give work to the petitioner during day hours and, therefore, the petitioner gave an approach letter dated 28-2-85 to the respondent-Mill and, thereafter, preferred a Termination Application, which is for short known as 'T Application' as contemplated by Sec. 78 read with Sec. 79 of the Bombay Industrial Relations Act, 1946 (herein-after referred to as 'the Act'). This Application was registered by the Labour Court, Vadodara as. T. Application No. 24 of 1985 and the same was decided by the Labour Court, Vadodara on 18-12-87 in favour of the petitioner directing the respondent- Mill to assign the duties to the petitioner during day shift in accordance with the Doctor's Certificate and give him the light work i.e. reinstatement with all consequential benefits. It was also directed that no action shall be taken against the petitioner for the alleged absence and he will be treated to be in regular employment and a cost of Rs. 100/- was also awarded. The Labour Court while passing this order dated 18-12-87 decided the matter on the premises that the refusal to assign the work during day shift to the petitioner, despite his disability to work in the night shift and the insistence of the respondent-Mill that the petitioner should work in the night shift only, had the effect of his unlawful oral termination. The Labour Court held that it was undisputed that the petitioner was working in the respondent-Mill on regular basis for a period of 16 years and had met with the accident while discharging the duties resulting in the impairment of his vision. It has been recorded by the Labour Court that Bhogilal Shanabhai Patel, who had been examined by the respondent-Mill, had admitted that the petitioner was working as Kireman Helper on regular basis and had met with the accident and sustained the shock while putting off the electric motor. On the basis of the Certificate given by the Civil Surgeon, the Labour Court found that according to the expert medical opinion, the petitioner could not have worked in the night shift and he could only work in the day shift with light duties. The Labour Court also considered the allegation of the petitioner that one Keshavbhai, who was working in day shift, had retired and, therefore, the petitioner could be accommodated against the vacancy which had become available on account of the retirement of Keshavbhai. The Labour Court also considered that Bhogilal Shanabhai Patel had admitted in the cross-examination that Keshavbhai had met with an accident during the discharge of his duties and on the basis of the Medical Certificate he has been assigned light duties as a Watchman and he retired and, therefore, the petitioner could be accommodated against the vacancy which had become available on account of the retirement of Keshavbhai. According to Labour Court, it was a state of helplessness for the petitioner that he could not discharge the duties in the night shift on account of impairment of his night vision suffered because of the accident, as aforesaid. Against this order dated 18-12-87 passed by the Labour Court, Vadodara, the respondent-Mill preferred an Appeal under Sec. 84 of the Act before the Industrial Court. The order of the Labour Court was challenged by the respondent-Mill before the Industrial Court in Appeal on the ground that the respondent-Mill was prepared to keep the petitioner in the employment as helper during the night shift only because the duties, which he was discharging as helper, were already light duties, and, therefore, the case of the petitioner that he could be given light duties against the post, which had become available on account of retirement of Keshavbhai was irrelevant. Much stress was laid that the duties of helper by itself were light duties. The respondent-Mill also took the stand that the petitioner had no enforceable right to claim to discharge the duties during day shift only and he ought to have joined the night shift and discharged the light duties as a helper in the night shift. It was also contended that the Labour Court had committed an error of law in passing the order in favour of the petitioner because the Labour Court had no powers to enforce any new contract of service between the parties so as to direct the respondent-Mill that the petitioner must be given duties during the day shift. It was also contended before the Industrial Court by the respondent-Mill that the petitioner had become incapable of working and, therefore, there is no question of giving any work to him.

(3.) The Industrial Court after considering the cases of both the sides came to the conclusion that the petitioner had no right to claim light duties in accordance with law and the findings of the Labour Court could not be sustained in the eye of law. According to the Industrial Court, the Labour Court has been created under law and it was to discharge the functions in accordance with law. While dealing with the T Applications it cannot create new rights and duties and the Labour Court has not been entrusted with any such power or function and that the Labour Court had taken the view in favour of the petitioner just out of sympathy. It is the finding of the Industrial Court itself that according to the humane approach, if the workman had met an accident while discharging the duties, it was the moral duty of the employer to give him a light work, but such a situation could not be enforced against the respondent-Mill. If the respondent-Mill does not allow the petitioner to discharge the duties, which he was discharging earlier or if he had been removed from the services, the Labour Court could consider the matter, but he could not claim the light duties and could not say that he may be given duties during day shift in place of Keshavbhai. The Industrial Court, therefore, found that the order of the Labour Court could not be sustained and accordingly the order passed by the Labour Court was set aside by the Industrial Court vide its order dated 18-7-88.