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Karnataka High Court
J.BENJAMIN - Appellant
Versus
MANAGEMENT OF BHARAT EARTH MOVERS limited, KOLAR GOLD FIELD - Respondent
Decided On : 08-05-05
W.P. : 4945 of 2001
EMPLOYEES STATE INSURANCE (GENERAL) REGULATIONS, 1950
Regulation 98 -Application -Conditions required for.
[N. Kumar, J]: (1) Condition of service governing an employee should allow termination of an employee on the ground of continuous ill-health of an employee. (2) The medical board on examination of the injured workman should opine his condition to fall within clause (i), (ii) and (iii), and; (3) Notice of the intention to terminate the services on those grounds should be given to the employee.
Termination
LABOUR AND SERVICES -Termination -Employee terminated as medically unfit as per declaration of Medical Board -Pre-conditions for -Firstly, employee should heard by issuing notice -Secondly, service conditions of employee should provide for the same -Employee terminated in the absence of - Order illegal and vitiated. See, Employees State Insurance (General) Regulations, 1950 -Regulation 98.
Obligation of employer
EMPLOYEES STATE INSURANCE (GENERAL) REGULATIONS, 1950
Regulation 98 -Obligation of employer -Employee met with an accident during course of employment -Employee to be allotted with lighter work in view of disablement -Terminated illegally and superannuated later- Disablement benefit paid for life -Held, employee is entitled to all consequential benefits.
[N. Kumar, J]: Once the order of termination is held to be illegal, in law the petitioner is entitled to all consequential benefits, such as reinstatement, continuity of service and full back wages. However, the petitioner has been paid benefit under the ESI Act. Though initially it was Rs. 28.00 per day it is submitted as present he is paid about Rs. 78.00 per day. It would be just to give reduction to the aforesaid payment which has been paid to the petitioner out of the wages. Though an order of reinstatement was made, he was not reinstated and in the meanwhile he was superannuated. Therefore no reinstatement is possible. However, he should be paid full backwages less the amount paid by way of benefit under the Act. The respondent is a Public Corporation, a Government of India undertaking. They should be more sensitive to these human sufferings and a model employer. It is also a social responsibility. Under these circumstances, petitioner is entitled to continuity of service as well as full back wages less the amount of benefit paid to him.
Termination
EMPLOYEES STATE INSURANCE (GENERAL) REGULATIONS, 1950
Regulation 98 -Termination -Employee terminated as medically unfit as per declaration of Medical Board -Pre-conditions for -Firstly, employee should heard by issuing notice -Secondly, service conditions of employee should provide for the same -Employee terminated in the absence of -Order illegal and vitiated.
[N. Kumar, J]: If the service conditions of an employee do not stipulate the conditions mentioned in sub-clause (i), (ii) and (iii) as a ground for termination, the question of invoking Regulation-98 would not arise. Even if service conditions provide for such termination and if medical board constituted under the Act issues a certificate to that effect, then an obligation is cast upon the employer to issue notice to the employee bringing to his notice the medical opinion and the stipulation in the service conditions and then he should be given an opportunity to say why his service should not be terminated. Principles of natural justice requires that such an injured workman should be heard before he is terminated. A reading of the order of termination clearly demonstrates that termination is made solely on the ground of a declaration of medical unfitness by the medical board. There is no whisper in the entire termination order that the conditions of service of the petitioner do provide for such a ground. No such condition of service was pointed out before the Labour Court or this Court. Secondly before termination no notice of termination has been issued. Straight away order of termination is passed purporting to be under Regulation-98. In that view of the matter, as the order of termination do not satisfy the statutory requirements contained in Regulation-98 it cannot be sustained.
LABOUR AND SERVICES - Termination - Termination -Employee terminated as medically unfit as per declaration of Medical Board -Pre-conditions for -Firstly, employee should heard by issuing notice -Secondly, service conditions of employee should provide for the same -Employee terminated in the absence of - Order illegal and vitiated. See, Employees State Insurance (General) Regulations, 1950 -Regulation 98.
EMPLOYEES STATE INSURANCE (GENERAL) REGULATIONS 1950 - Application - Regulation 98 -Application -Conditions required for. [N. Kumar, J]: (1) Condition of service governing an employee should allow termination of an employee on the ground of continuous ill-health of an employee. (2) The medical board on examination of the injured workman should opine his condition to fall within clause (i), (ii) and (iii), and; (3) Notice of the intention to terminate the services on those grounds should be given to the employee.
PERSONS WITH DISABILITIES (EQUAL OPPORTUNITIES, PROTECTION OF RIGHTS AND FULL PARTICIPATION) ACT, 1995 - Preamble - Object of Act - Object of Act -Stated. [N. Kumar, J]: For any loss of service on account of the injury one has to fall back on common law. That is how the Courts have awarded compensation having regard to the facts of that particular case whenever an injury has resulted in loss of employment. Probably it is because of this, as the area as not covered by any legislation, the parliament though it fit to pass the aforesaid Act 1/1996. As the preamble to the said Act discloses to give effect to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region, when the meeting to launch the Asian and Pacific Decade of Disabled Persons 1993-2002 convened by the Economic and Social Commission for Asian and Pacific held at Beijing on 1st to 5th December, 1992, adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region and India being a signatory to the said proclamation the aforesaid enactment was passed. Thus, statutory recognition was given to the common law which held the field till such time. It is in this background one has to see on account of an employment injury whether a workman is to be provided a lighter suitable employment and if that is not possible how he has to be compensated in terms of money.
PERSONS WITH DISABILITIES (EQUAL OPPORTUNITIES, PROTECTION OF RIGHTS AND FULL PARTICIPATION) ACT, 1995 - Section 47 - Applicability of Act - Section 47 -Applicability of Act -Act came into force in 1996 -accident taken place in 1986 -Act is not applicable as it is prospective in operation. [N. Kumar, J]: The parliament has passed the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 to meet a contingency of the nature of this case. Section 47 provides that, no establishment shall dispense with, or reduce in rank, of an employee who acquires a disability during his service. However, the said enactment which came into force from 15th of January 1996 is prospective in operation. In this case the accident arose on 19-4-1986. As such, the Act has no application.
NATURAL JUSTICE - Termination - Termination -Employee who had met with an accident terminated as medically unfit as per declaration of Medical Board -Notice not issued, as a result, employee was not heard -Hence, order of termination is vitiated as violative of principles natural justice. [N. Kumar, J]: Even if service conditions provide for such termination and if medical board constituted under the Act issues a certificate to that effect, then an obligation is cast upon the employer to issue notice to the employee bringing to his notice the medical opinion and the stipulation in the service conditions and then he should be given an opportunity to say why his service should not be terminated. Principles of natural justice requires that such an injured workman should be heard before he is terminated. A reading of the order of termination clearly demonstrates that termination is made solely on the ground of a declaration of medical unfitness by the medical board. There is no whisper in the entire termination order that the conditions of service of the petitioner do provide for such a ground. No such condition of service was pointed out before the Labour Court or this Court. Secondly before termination no notice of termination has been issued. Straight away order of termination is passed purporting to be under Regulation-98. In that view of the matter, as the order of termination do not satisfy the statutory requirements contained in Regulation-98 it cannot be sustained.
Termination
NATURAL JUSTICE - Termination -Employee who had met with an accident terminated as medically unfit as per declaration of Medical Board -Notice not issued, as a result, employee was not heard -Hence, order of termination is vitiated as violative of principles natural justice.
[N. Kumar, J]: Even if service conditions provide for such termination and if medical board constituted under the Act issues a certificate to that effect, then an obligation is cast upon the employer to issue notice to the employee bringing to his notice the medical opinion and the stipulation in the service conditions and then he should be given an opportunity to say why his service should not be terminated. Principles of natural justice requires that such an injured workman should be heard before he is terminated. A reading of the order of termination clearly demonstrates that termination is made solely on the ground of a declaration of medical unfitness by the medical board. There is no whisper in the entire termination order that the conditions of service of the petitioner do provide for such a ground. No such condition of service was pointed out before the Labour Court or this Court. Secondly before termination no notice of termination has been issued. Straight away order of termination is passed purporting to be under Regulation-98. In that view of the matter, as the order of termination do not satisfy the statutory requirements contained in Regulation-98 it cannot be sustained.
Object of Act
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - Object of Act -Stated.
[N. Kumar, J]: For any loss of service of account of the injury one has to fall back on common law. That is how the Courts have awarded compensation having regard to the facts of that particular case whenever an injury has resulted in loss of employment. Probably it is because of this, as the area as not covered by any legislation, the Parliament though it fit to pass the aforesaid Act 1/1996. As the preamble to the said Act discloses to give effect to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region, when the meeting to launch the Asian and Pacific Decade of Disabled Persons 1993-2002 convened by the Economic and Social Commission for Asian and Pacific held at Beijing on 1st to 5th December, 1992, adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region and India being a signatory to the said proclamation the aforesaid enactment was passed. Thus, statutory recognition was given to the common law which held the field till such time. It is in this background one has to see on account of an employment injury whether a workman is to be provided a lighter suitable employment and if that is not possible how he has to be compensated in terms of money.
Applicability of Act
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - Section 47 -Applicability of Act -Act came into force in 1996 -accident taken place in 1986 -Act is not applicable as it is prospective in operation.
[N. Kumar, J]: The Parliament has passed the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 to meet a contingency of the nature of this case. Section 47 provides that, no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. However, the said enactment which came into force from 15th of January 1996 is prospective in operation. In this case the accident arose on 19-4-1986. As such, the Act has no application.
( 2 ) THE petitioner was appointed as mechanic helper B on 25-11-1969 in the respondent-establishment. On 19-4-1986, while examining the vehicle, accidentally he fell down from the top of the vehicle as a result of which he sustained multiple injuries and fractures. Immediately, he was taken to the hospital for medical treatment. The petitioner was a member of ESI Scheme and he was treated for a period of eleven months in the ESI hospital. He also took medical treatment as an outpatient at nimhans for a period of six months. On 15-5-1989, the petitioner reported for duty along with fitness certificate issued by a Competent doctor on 4-5-1989. He was refused employment. The petitioner was served with an order dated 3-6-1989 informing him that the Medical board which examined the petitioner on 12-3-1987 has declared him as permanently disabled at 100% and they have recommended for award of permanent disability benefit. Therefore, as per Regulation 98 of the employees' State Insurance (General) Regulations, 1950 (for short, hereinafter referred to as the 'regulations'), a declaration has been made holding that the petitioner is unfit and he is deemed to have been discharged from the company. Aggrieved by the aforesaid order of termination, the petitioner raised an industrial dispute. Conciliation having failed, the appropriate Government referred the industrial dispute for adjudication to the Second Additional Labour Court, bangalore on 30-11-1992. Reference was numbered as Ref. No. 188 of 1992.
( 3 ) THE points of dispute that were referred to the Labour Court for adjudication are:1. Whether the management of BEML, KGF is justified in refusing work to Sri Benjamin, Mechanic, with effect from 15-5-1989? 2. If not, to what relief the workman is entitled?
( 4 ) THE petitioner contended in the claim statement that the injury sustained was in the course of his employment. After he was fully recovered, as is clear from the medical certificate, he approached the respondent for employment. He was not even allowed inside the factory premises. The respondents have not followed the procedure prescribed under Section 98 of the Act, before terminating his services. Therefore, the impugned order of termination is illegal and is liable to be set aside. He submitted that he was paid Rs. 28-00 per day from the ESI corporation from the date of his discharge from employment. He is not gainfully employed anywhere. Therefore, he sought for reinstatement, back wages and continuity of service.
( 5 ) THE respondent filed counter contesting the said claim. The appointment of the petitioner, the injury which he sustained in the accident, the treatment which he has taken in different hospitals were not disputed. They contended that the petitioner filed an application under Section 15 (2) of the Payment of Wages Act, 1936, before the jurisdictional Magistrate in CMC No. 45 of 1990 in which the respondents were directed to pay wages from 19-4-1986 to 3-6-1989. Therefore, the reference is bad as barred by principle of res judicata. As the petitioner was covered under the Act and he has been given benefit under the Act, he is not entitled to other benefits under any other enactments and accordingly he is not even eligible for wages. When once the Medical Board declared that petitioner is 100% disabled and has also determined the disablement benefit at the rate of Rs. 28. 00 per day and when the petitioner is availing the said benefit, the respondents were fully justified in invoking Regulation 98 and discharging the petitioner from service. As the petitioner has not challenged the decision of the Medical Board, it has become final. The petition
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