ORDER

1. These are appeals against the award dated 5-2-1993 made by the Third Industrial Tribunal, Calcutta, West Bengal. Two questions arose for consideration before the Tribunal, viz., (1) whether the change effected by the appellant employer was in contravention of Section 9-A of the Industrial Disputes Act, 1947 (the Act); and (2) whether the employer was entitled to withdraw the medical benefits which were already given by it to the employees prior to the coming into force of the Employees State Insurance Act, 1948 (the ESI Act).

2. On both questions, the Tribunal held against the appellant employer and hence the present appeals. To withdraw the said benefits, the employer served as many as four notices dated 30-3-1964, 19-6-1968, 13-11-1975 and 10-8-1976. It is not disputed that none of the notices in question was in Form E prescribed under Rule 34 of the Industrial Disputes (Central) Rules, 1957. Nor is it disputed that none of them was served either on the respondent Union of workers as required by Rule 34 and Form E or on the authorities mentioned in Form E. In fact, it was the case of the employer that there was no change in the service conditions prejudicial to the workers and hence no notice under Section 9-A of the Act was necessary. The Tribunal held that the withdrawal of the medical benefits was prejudicial to the workers and therefore, the notice was necessary and since no such notice was given, the withdrawal of the benefits, was illegal. We are in agreement with the said finding for the reasons given below. That takes us to the main controversy, viz., whether after coming into force of the ESI Act, the employer was justified in withdrawing the said benefits.

3. Dr Shankar Ghosh, learned counsel appearing for the appellant employer contended that the benefits available under the ESI Act are more generous and comprehensive compared to the benefits extended by the employer. After coming into operation of the ESI Act, the employer is required to make contribution under that Act. In view of the said contribution, the continuation of the medical benefits by the employer at its own cost had become both burdensome and redundant. The employer was, therefore, not only justified but also entitled to withdraw the benefits. It is for this reason that notice under Section 9-A of the Act was not necessary since the withdrawal of the said benefits in the context of the availability of the more generous benefits was not prejudicial to the interests of the employees.

4. There is no doubt that both the said questions in a sense, are interlinked. If it is held that the benefits available under the ESI Act are more generous, it may be possible to argue that the notice under Section 9-A was not necessary. Hence the examination of the two schemes of benefits is necessary.

5. The medical benefits available to the employees under the employer have been enumerated in an annexure to the appeal-memo. It is not necessary to discuss each of the said benefits. It suffices to point out that one of the major benefits available to the employees is hospitalisation in a private nursing home in case of illness and reimbursement of the medical expenses incurred for such hospitalisation. There is no such benefit available under the ESI Act. A reference of the patient to a private nursing home is possible only if no facility for the treatment of the ailment is available at the hospitals run by the ESI Corporation and the Medical Officer concerned certifies to that effect. We have taken this instance only to point out that Dr Ghoshs contention that the benefits under the ESI Act are more generous or beneficial, is not borne out by facts.

6. This is apart from the question whether the availability of medical benefits as a part of the service conditions of the employees, is liable to be withdrawn unilaterally by the employer merely because the employees in question are also covered by the ESI Act. That question has to be answered in the negative for variou