Court No. - 2
Case :- WRIT - C No. - 5448 of 2018 Petitioner :- M/S Connaught Plaza Restaurants Private Limited Respondent :- State Of Up And Others Counsel for Petitioner :- Ram Kishun Misra,Kirti Kar Tripathi,Shrikant Tripathi Counsel for Respondent :- C.S.C.,Bhupendra Nath Singh
Hon'ble Ram Surat Ram (Maurya),J.
Heard Sri Ram Kishun Misra for the petitioner and Sri B.N. Singh, Senior Counsel for the respondents.
The writ petition has been filed against the award of the Labour Court dated 28.7.2017 as published on 21.9.2017.
On the application of Siraj Ahmad (respondent-3) an industrial dispute has been referred for adjudication to Labour Court by letter dated 26.3.2014 "As to whether termination of service of Siraj Ahmad w.e.f. 20.9.2013 by the employer was proper and legal?" If no, what relief /compensation the employee is entitled ?
On the notice being issued the petitioner filed written statement in which it has been stated that workman voluntarily left the service on 28.7.2013. In this respect a letter has been written on 31.7.2013 to the workman for joining the service. Thereafter the workman gave reply on 17.8.2013 that he was suffering from illness without mentioning the decease from which he was suffering nor any certificate relating to illness or application for grant of leave has been given. Thereafter reminder dated 16.8.2013 and 4.9.2013 were given to workman but he did not turn up for joining the service, therefore, his service was terminated w.e.f. 20.9.2013.
The workman has also filed written statement in which he has stated that he was appointed on 1.1.2009 on the post of Crew Trainer on permanent basis. Since then he was continuously discharging his duty upto 27.7.2013 His work and conduct was very good for which an appreciation letter has been issued to him also. From 28.7.2013 he was not permitted to discharge his duty although he was always attending office for discharging his duty. On 5.8.2013 he was referred for his treatment to the Employees State Insurance Hospital where he remained under treatment upto 29.8.2013. On 29.8.2013 he along with medical certificate and fitness certificate as well as application for joining duty appeared before the employer but he was not permitted to discharge the duty w.e.f. 29.8.2013 and was not permitted to sign the attendance register. Both employee as well as employer adduced their respective evidence. On behalf of employee Siraj Ahmad examined himself as PW-1 and on behalf of employer Manoj Kumar was examined as EW-1.
Labour Court after hearing the parties by the impugned order found that employee was ill and therefore, he got himself treated and obtained fitness certificate from ESI Hospital. Thereafter he submitted with the employer along with joining report. In spite of medical certificate and fitness certificate dated 29.8.2017 with application for joining, he was not permitted to discharge his duty from 20.9.2013. He was not voluntarily absent from the duty. Thus without following the procedure provided under law service of the employee has been terminated by order dated 20.9.2018. On this finding Labour Court held the termination order illegal and directed for reinstatement of workman in service with 50% back wages from 20.9.2013. Hence this writ petition has been filed.
The counsel for the petitioner submits that petitioner has taken a definite case that workman voluntarily left service on 17.8.2013. The employer has given notice to the workman on 31.7.2013 and thereafter reminders dated 16.8.2013 and 4.9.2013. Although these notices were received by the workman but he did not turn up for service, therefore, it is a case where workman voluntarily left the service as such the procedure as provided under Section 6-N of U.P. Industrial Disputes Act, 1947 was not required to be followed. The Labour Court has illegally disbelieved the evidence oral and documentary filed by the petitioner and under conjecture and surmises passed the award which is liable to be set aside.
I have considered the arguments of the counsel for the parties and examined the record.
The workman has filed medical and fitness certificates dated 29.8.2013 showing that he was under treatment in ESI Hospital upto 29.8.2013. Thus, absence from the duty was not voluntary but due to illness of the workman.
The counsel for the workman relied upon Section 73 of ESI Act, 1948 in which it has been mentioned that during sickness employee cannot be terminated by the employer otherwise also the petitioner was a permanent workman as such without adopting any disciplinary proceeding due to absence from service his services were wrongly terminated.
So far as notices issued by the petitioner are concerned employee has given his joining report on 31.8.2017 along with medical certificate and fitness certificate. At the most the petitioner could deduct salary of the employee for period of absence as there was no reason to disbelieve the medical certificate and fitness certificate of the employee from ESI Hospital. In such circumstances termination of the workman was illegal and finding of fact recorded by the Labour Court does not suffer from any illegality.
The writ petition has no merit and it is dismissed.
Order Date :- 26.2.2018 mt