The burden of proof regarding mental illness and the need for credible medical evidence before terminating an employee on medical grounds.

1. The petitioner is the management of Estate at Yercaud, Salem. They have come forward to challenge an award passed by the 1st respondent Labour Court, Salem in I.D.No.187 of 2003 dated 21.4.2008. By the impugned award, the Labour Court directed the reinstatement of the 2nd respondent workman on the ground that her termination on 2.9.2002 was illegal and against the principles of natural justice. Therefore, she was directed to be reinstated with full backwages and continuity of service.

2. The Writ Petition was admitted on 20.1.2009. Pending the Writ Petition, this Court granted an interim stay. Subsequently, the interim stay was made absolute on the ground that the 2nd respondent did not file any counter affidavit. On notice from this Court, the 2nd respondent appears through counsel.

3. Heard the arguments of Mr.S.Ravindran, learned counsel appearing for M/s.T.S.Gopalan & Co, learned counsel for the petitioner and Mr.R.Mohammed Nazrullah for Mr.K.V.Shanmuganathan, learned counsel for the 2nd respondent.

4. The facts leading to the filing of the case are as follows:

(4.i) The 2nd respondent was employed as an Estate Worker since 1987 in the petitioner estate. However, with effect from 2.9.2002, she was orally denied employment. It is also claimed that her last drawn salary was Rs.1,380/-. Even though she had put in more than 15 years of service, she has been unauthorisedly sent out of service and no charge memo was given to her and no departmental enquiry was conducted and the 2nd respondent was wholly depending on the said employment. Since her representation to the management both in person as well as through communication did not yield any result, she raised an industrial dispute before the Government Labour Officer at Salem. As the conciliation was not fruitful, a failure report was given. On the strength of the failure report, the 2nd respondent filed a claim statement before the 1st respondent Labour Court on 26.5.2003. The said dispute was taken on file as I.D.No.187 of 2003.

(4.ii) Notice was ordered to the petitioner management. The petitioner management filed a counter statement dated 23.12.2003. In the counter statement, it is stated that her period of service was disputed and it was claimed that she was paid only minimum wages as per the Minimum Wages Notification. The claim that she was orally stopped from work on 2.9.2002, was sought to be discredited by stating that she did not send any notice immediately after her so called stoppage from work and the notice was sent after five months. It is also stated that the 2nd respondent was present on 27.1.2001 and her presence was marked in the attendance register. The work on the day was allotted by one Murugesan, who was Manager. the 2nd respondent had quarreled with and assaulted one co-employee Rani with her chappels. This resulted in stoppage of the work for half-an hour. The 2nd respondent was pacified by the co-employee and she was sent off. It was the claim of the management that the co-employee would contend that she was mentally ill and no one was willing to work in the place where she was present. Her father was also called and also given suitable advice. He was also told that she should be treated by a Psychiatrist and she was told to come back after getting cured about the allegedly medical illness. It is also stated that even during August 2002, she was only present for 3 days. She started quarreling when she was not paid wages for the entire month. She was asked to come back with a medical fitness certificate about her medical illness. There was no necessity to issue any charge memo or conduct any enquiry, as she was not punished for any misconduct. If a person, who was mentally ill, was not allowed to work, it will not amount to any victimization. It is for the 2nd respondent to prove the same by producing any medical certificate. Non-employment cannot be held to be retrenched so as to qualify herself for any reinstatement.

(4.iii) Before the La