Bears Cave Estate (Formerly known as Karadipoona Estate)Kadukkamaram, Mines Post,Yercaud, Salem DistrictRep v. The Presiding Officer, Labour Court, Salem.2.Baby

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 22.09.2011CORAM:THE HON’BLE MR. JUSTICE K.CHANDRUW.P.No.802 of 2009Bears Cave Estate (Formerly known as Karadipoona Estate)Kadukkamaram, Mines Post,Yercaud, Salem DistrictRep. By its Proprietor O.Ulaganathan ... PetitionerVs.1.The Presiding Officer, Labour Court, Salem.2.Baby .. RespondentsPrayer :Petition under Article 226 of the Constitution of Indiapraying for a Writ of Certiorari, calling for the records of the1st respondent in connection with its order dated 21.04.2008 inI.D.No.187/2003 and quash the same.For Petitioner :: Mr.S.Ravindran for M/s.T.S.Gopalan and Co.,R1 :: Court For Respondent R2 :: Mr.R.Md.Nazrullah for M/s.K.V.Shanmuganathan for R2O R D E RThe petitioner is the management of Estate at Yercaud, Salem.They have come forward to challenge an award passed by the 1strespondent Labour Court, Salem in I.D.No.187 of 2003 dated21.4.2008. By the impugned award, the Labour Court directed thereinstatement of the 2nd respondent workman on the ground that hertermination on 2.9.2002 was illegal and against the principles ofnatural justice. Therefore, she was directed to be reinstated withfull backwages and continuity of service. https://hcservices.ecourts.gov.in/hcservices/

2.The Writ Petition was admitted on 20.1.2009. Pending theWrit Petition, this Court granted an interim stay. Subsequently,the interim stay was made absolute on the ground that the 2ndrespondent did not file any counter affidavit. On notice from thisCourt, the 2nd respondent appears through counsel.3.Heard the arguments of Mr.S.Ravindran, learned counselappearing for M/s.T.S.Gopalan & Co, learned counsel for thepetitioner 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 asfollows:(4.i) The 2nd respondent was employed as an Estate Workersince 1987 in the petitioner estate. However, with effect from2.9.2002, she was orally denied employment. It is also claimedthat her last drawn salary was Rs.1,380/-. Even though she had putin more than 15 years of service, she has been unauthorisedly sentout of service and no charge memo was given to her and nodepartmental enquiry was conducted and the 2nd respondent waswholly depending on the said employment. Since her representationto the management both in person as well as through communicationdid not yield any result, she raised an industrial dispute beforethe Government Labour Officer at Salem. As the conciliation wasnot fruitful, a failure report was given. On the strength of thefailure report, the 2nd respondent filed a claim statement beforethe 1st respondent Labour Court on 26.5.2003. The said dispute wastaken on file as I.D.No.187 of 2003. (4.ii) Notice was ordered to the petitioner management. Thepetitioner management filed a counter statement dated 23.12.2003.In the counter statement, it is stated that her period of servicewas disputed and it was claimed that she was paid only minimumwages as per the Minimum Wages Notification. The claim that shewas orally stopped from work on 2.9.2002, was sought to bediscredited by stating that she did not send any notice immediatelyafter her so called stoppage from work and the notice was sentafter five months. It is also stated that the 2nd respondent waspresent on 27.1.2001 and her presence was marked in the attendanceregister. The work on the day was allotted by one Murugesan, whowas Manager. the 2nd respondent had quarreled with and assaultedone co-employee Rani with her chappels. This resulted in stoppageof the work for half-an hour. The 2nd respondent was pacified bythe co-employee and she was sent off. It was the claim of themanagement that the co-employee would contend that she was mentallyill and no one was willing to work in the place where she was https://hcservices.ecourts.gov.in/hcservices/ present. Her father was also called and also given suitableadvice. He was also told that she should be treated by aPsychiatrist and she was told to come back after getting curedabout the allegedly medical illness. It is also stated that evenduring August 2002, she was only present for 3 days. She startedquarreling when she was not paid wages for the entire month. Shewas asked to come back with a medical fitness certificate about hermedical illness. There was no necessity to issue any charge memoor conduct any enquiry, as she was not punished for any misconduct.If a person, who was mentally ill, was not allowed to work, it willnot amount to any victimization. It is for the 2nd respondent toprove the same by producing any medical certificate. Non-employment cannot be held to be retrenched so as to qualify herselffor any reinstatement. (4.iii) Before the Labour Court, on the side of the 2ndrespondent, one M.Ramasamy was examined as P.W.1 and on her side 3documents were filed and marked as Ex.P.1 to Ex.P.3. On the sideof the management, one A.Murugesan was examined as R.W.1. Nodocument was filed on the side of the management.(4.iv) During the pendency of the dispute, the petitionermanagement filed an application in I.A.No.78 of 2006. Theapplication was for sending the 2nd respondent to be examined by aqualified Psychiatrist about her mental illness. The saidapplication was dismissed by the 1st respondent Labour Court byorder dated 19.6.2006. As against the said dismissal, thepetitioner management filed W.P.No.31417 of 2006 before this Courtchallenging the interim order passed by the Labour Court. ThisCourt, however, dismissed the said Writ Petition by stating asfollows:"4. The application taken out by the writ petitionermanagement is totally misconceived, as the workman whohad raised the dispute, cannot be sent to face a mentaltest to prove the case of the management. Such a pleacan never be countenanced by any court. In any event,the question whether a person is mentally ill or notcannot be decided by any doctor working in theGovernment Hospital. Such question can be decided onlyby the specialised body and by the competent authorityconstituted under the Mental Health Act, 1987."(4.v) On the basis of the evidence, the Labour Court (bothoral and documentary) came to the conclusionthat the 2nd https://hcservices.ecourts.gov.in/hcservices/ respondent's non-employment was illegal. The Labour Court framedtwo issues, namely, (i) whether the 2nd respondent workman wassuffering from any mental illness so as to be disqualified foremployment and (ii) whether the denial of employment with effectfrom 2.9.2002 was justified or legal or against the principles ofnatural justice and whether she was entitled for reinstatementwith service continuity and backwages. (4.vi) Both issues were tried together. The Labour Courtrendered a finding that the very fact, that the 2nd respondentherself raised a dispute not through any guardian shows that shewas not suffering from any mental illness. The Labour Court alsofound that on the day of the arguments, the worker was present inthe court and her physical appearance also showed that she wasperfectly all right and appears to be a normal person except thatshe was deaf and dumb. If the behaviour of the 2nd respondent wasabnormal, the management should have taken appropriate steps torefer her to a Psychiatrist attached to the estate if any and itwas also stated that in case of mental sickness, it is open to thecourt to ascertain the questioning capacity of the said person andonly when that person does not respond or unable to understand thequestion, the question of ascertaining the mental condition willarise. In the absence of any medical certificate, it is not forthe court to declare her status of mental illness. (4.vii) The Labour Court after referring to the two instancespointed out by the management in the counter statement held that ifher behavior was abnormal, then she should have been dealt withdepartmentally and there must be evidence to show that misconductswere committed. In the absence of any evidence, the court cannotdeclare any person as mentally ill. The Labour Court also foundthat she has been working in the estate from 1987 and living in theestate with her father. Therefore, the contention of thepetitioner management that non-employment of the 2nd respondentmade by the management was due to her mental illness cannot bebelieved and even before her discharge, the management should havetaken appropriate steps to get her examined.(4.viii) It is in that view of the matter, the Labour Courtheld that the 2nd respondent's non-employment was not justified andshe was entitled for the relief that was set out in the award dated21.4.2008. Challenging the said award, the Writ Petition has beenfiled. https://hcservices.ecourts.gov.in/hcservices/

5. the learned counsel for the petitioner managementcontended that the 1st respondent was erroneous in shifting theburden of proof on the management in holding that the 2ndrespondent as mentally ill. When the 2nd respondent had notproduced any evidence to prove about her disorderly behavior in thepremises, that itself will prove that she was suffering from mentalillness. Since under the provisions of the Mental Health Act, 1987,it has to be certified by a competent authority and the 2ndrespondent has not come forward for examining herself, it has to bepresumed that she was avoiding examination of her mental health.Therefore, it must be proceeded that she should be mentally ill.However, this Court do not accept any one of the contentions raisedby the management.6. It is the admitted case of both sides that the 2ndrespondent is employed in a Plantation covered by the PlantationLabour Act, 1951. Under Section 7 of the said Act, the StateGovernment may appoint qualified medical practitioners to becertifying surgeons for the purpose of the Act within such locallimits or for such plantation or class of plantations as it mayassign to them respectively. The Certifying Surgeon shall carryout such duties as may be prescribed in connection with theexamination and certification of workers. Under Rule 5 of theTamil Nadu Plantation Labour Rules, 1955, the Certifying Surgeonshall examine the worker on the request of the Chief Inspector andfor the purpose of examination, the plantation management will haveto provide an appropriate place for conducting the examination. Incase where the Plantation itself was having medical facilities inthe form of an hospital/doctor and any orders are passed by thesaid Hospital/Doctors, the Certifying Surgeon appointed by theState Government will be considered as an appellate authority.Therefore, the Act provides for hierarchy of officers to determinethe health of the workers. It is not the case that the managementhad taken steps either to examine the 2nd respondent by theirDoctors, who were supposed to be employed under the said Act/ or bythe Certifying Surgeon. 7. Disqualifying a worker on medical grounds came to beconsidered by a Division Bench of this Court in Anglo French Mills,Pondicherry vs. Muniammal reported in 1966 (1) LLJ 695. This Courtafter referring to the Labour Code of Puducherry, (evolved as perthe International Labour Organization (ILO) norms), held that ifthe worker is incapacitated due to illness, she was entitled tospecial medical leave for 6 months. Her employer can terminate theservice only after 6 months after giving an opportunity for cureand rehabilitation for the worker to be restored. The data https://hcservices.ecourts.gov.in/hcservices/ obtained by the management in the form of medical report should bea satisfactory report. If the report is unsatisfactory, it cannotbe accepted as forming a reasonable basis for the action taken.In case the doctors report do not give any reason, then the reliefcannot be accepted as the basis for the discharge of an employee.In such circumstances, the matter will have to be referred for anexpert opinion. In no case, the employer, in the absence ofmaterial, can resort to the extreme step of terminating the serviceof an employee. 8. The facts involved in the said judgment are more or lesssimilar to the facts of the present case. In that case it wasfound that there was a vulgar brawl between the two women workers.One of the worker was a permanent worker and in the course of thebrawl, the accused worker pronounced cannibalistic curse on heropponent. It was suspected that she was of unsound mind. Thematter was referred to two medical officers, who stated that shewas of an unsound mind and it was not desirable to keep her inemployment. On the basis of that report, she was terminated. Thematter was taken on appeal and it finally reached this Court. ThisCourt held that even assuming that a person was having ill healthor of an unsound mind, then the procedure for declaring her unfitfor employment must be followed. If the initial medical opinion isfound unsatisfactory, then the employer must send the case fordetailed elucidation upon this aspect before taking the extremestep of terminating the service of the workman. The Division Benchafter setting out the facts found the action taken by the employerwas wrong and dismissed the Writ Appeal filed by them.9. Hence, this is not impressed with the argument that ifperson is employed on contract or unspecified period, he can beterminated. Under the Standing Orders, there must be a good andsufficient reason for terminating an employee. Therefore, theargument made by the learned counsel for the petitioner that theburden of proof is on the worker and she had failed to dischargethe onus of proof, cannot be accepted. On the contrary, as held bythe ILO, in cases of medical unfitness, there must be creditworthymaterials in the hands of the management and only upon the saidmaterial, the question of any dispensing with the service of theworkman will arise.10. The Labour Court correctly found that after theenactment of the Mental Health Act,1987, the cases of mentalillness will have to be certified in terms of Section 21 of MentalHealth Act, 1987. The Labour Court also held that if she was really https://hcservices.ecourts.gov.in/hcservices/ facing unsound mind, then she would have to be regretful before thecourt by her guardian and no such application was ever taken out.11. This Court had an occasion to consider the effect ofcertifying a person for the mental unsound in terms of the MentalHealth Act, 1987 vide its judgment in Ramachandran, Chinna AnaicutVillage, Vellore District vs. Chinnaraj Chettiyar reported in(2006) 4 MLJ 77. In that case, it was held that the PrincipalDistrict Judge is the competent authority under Sections 52, 53 and54 of the Mental Health Act, 1997 for appointing a person as aguardian for a person, who is unsound mind and the Mental HealthAct is a special enactment and unless an order was passed by thePrincipal District Judge and the provisions of the Civil ProcedureCode provided under Order 32 Rule 15 will stand modified in termsof the Mental Health Act, 1987. 12. Yet in the present case, the finding of the Labour Courtwas to the effect that the 2nd respondent was present during thefinal argument and the Labour Court did not find anything abnormalin her behavior. No doubt, the Labour Court found that she was aphysically challenged person and she was deaf and dumb. But, thatphysical condition will not make a person of having mental illness.13. As per the Persons with Disabilities (EqualOpportunities, Protection of Rights and Full Participation) Act,1995, if a person acquires disability during her employment, thatcannot be a reason for dispensing with her service. Under Section47 of the Act, there is an embargo in terminating the service of aperson, who gets disabled during the service. As to whatconstitutes a disability is also defined under Section 2 of thesaid Act, and includes mental illness under Section 2(i) of theAct.14. This Court vide its decision in A.Tamilarasi vs. DistrictCollector, Tuticorin and others reported in (2007) 6 MLJ 425, whenfound an employee was terminated by the order of a DistrictCollector on the ground that she was of unsound without anymaterial and on the basis of mere hearsay and with the consent ofthe said employee got her examined by a team of experts inPsychiatry for the Government Rajaji Hospital. On an examination,the doctors certified that she did not suffer from any mentalillness. Therefore, this Court took exception to the authorities'action being callous and indifference to the established norms.After setting aside the order of termination, also imposed costs on https://hcservices.ecourts.gov.in/hcservices/ the District Collector, Tuticorin. In paragraph 26, this Courtobserved that even in cases of mental illness, if a Governmentservant develops disability during the service, it is too late forthe Government to label a person as insane on their own and declarethat persons for unfit for Government employment without anyfactual material and this attitude makes a sad commentary. It onlyshowed utter ignorance of the officials in understanding thespecial legislation occupying the field. Such cased requiregreater sensitivity on the part of the administration. Even in casea person was suffering from mental illness, under Section 47 ofthe Act such persons were directed to be given an alternateemployment, failing which the second proviso to Section 47 saysthat if it is not possible to adjust any employee against anypost, she may be kept in a supernumerary post until a suitable postis available or that person attains the age of superannuation,whichever is earlier. 15. Though it may be contended that the provisions of thesaid Act will not apply to a private establishment, such a standfinds its justification in the decision of the Supreme Court inDalco Engineering Private Limited vs. Satish Prahakar Padhyereported in (2010) 4 SCC 378. In paragraphs 24 to 26, 30 and 31, itwas observed as follows:"24. There is an indication in the definition of“establishment” itself, which clearly establishes thatall companies incorporated under the Companies Act arenot establishments. The enumeration of establishmentsin the definition of “establishment” specificallyincludes “a government company as defined in Section617 of the Companies Act, 1956”. This shows that thelegislature took pains to include in the definition of“establishment” only one category of companiesincorporated under the Companies Act, that is, the“government companies” as defined in Section 617 of theCompanies Act. If, as contended by the employee, allcompanies incorporated under the Companies Act are tobe considered as “establishments” for the purposes ofSection 2(k), the definition would have simply andclearly stated that “a company incorporated orregistered under the Companies Act, 1956” which wouldhave included a government company defined underSection 617 of the Companies Act, 1956. The inclusionof only a specific category of companies incorporatedunder the Companies Act, 1956 within the definition of“establishment” necessarily and impliedly excludes all https://hcservices.ecourts.gov.in/hcservices/ other types of companies registered under the CompaniesAct, 1956 from the definition of “establishment”.25. It is clear that the legislative intentwas to apply Section 47 of the Act only to suchestablishments as were specifically defined as“establishment” under Section 2(k) of the Act and notto other establishments. The legislative intent was todefine “establishment” so as to be synonymous with thedefinition of “State” under Article 12 of theConstitution of India. Private employers, whetherindividuals, partnerships, proprietary concerns orcompanies (other than government companies) are clearlyexcluded from the “establishments” to which Section 47of the Act will apply.26. There is yet another indication in Section 47that private employers are excluded. Thecaption/marginal note of Section 47 describes thepurport of the section as non-discrimination ingovernment employment. The word “government” is used inthe caption broadly to refer to “State” as defined inArticle 12 of the Constitution. If the intention of thelegislature was to prevent discrimination of personswith disabilities in any kind of employment, themarginal note would have simply described the provisionas “non-discrimination in employment” and sub-section(1) of Section 47 would have simply used the word “anyemployer” instead of using the word “establishment” andthen taking care to define the word “establishment”.The non-use of the words “any employer” and “anyemployment” and specific use of the words “governmentemployment” and “establishment” (as defined),demonstrates the clear legislative intent to apply theprovisions of Section 47 only to employment under theState and not to employment under others. While themarginal note may not control the meaning of the bodyof the section, it usually gives a safe indication ofthe purport of the section to the extent possible. Bethat as it may.30. The learned counsel next relied upon thefollowing observations in Kunal Singh v. Union ofIndia, where this Court, referring to the very sectionunder consideration, observed thus: (SCC pp. 529-30,para 9) https://hcservices.ecourts.gov.in/hcservices/ “9. … Section 47 contains a clear directivethat the employer shall not dispense with orreduce in rank an employee who acquires adisability during the service. In construing aprovision of a social beneficial enactment thattoo dealing with disabled persons intended togive them equal opportunities, protection ofrights and full participation, the view thatadvances the object of the Act and serves itspurpose must be preferred to the one whichobstructs the object and paralyses the purposeof the Act. The language of Section 47 is plainand certain casting statutory obligation on theemployer to protect an employee acquiringdisability during service.”31. We agree that the socio-economic legislationsshould be interpreted liberally. It is also true thatcourts should adopt different yardsticks and measuresfor interpreting socio-economic statutes, as comparedto penal statutes and taxing statutes. But a caveat.The courts cannot obviously expand the application of aprovision in a socio-economic legislation by judicialinterpretation, to levels unintended by thelegislature, or in a manner which militates against theprovisions of the statute itself or against anyconstitutional limitations. In this case, there is aclear indication in the statute that the benefit isintended to be restricted to a particular class ofemployees, that is employees of enumeratedestablishments (which fall within the scope of “State”under Article 12). Express limitations placed by thesocio-economic statute cannot be ignored, so as toinclude in its application, those who are clearlyexcluded by such statute itself."16. The principles behind suffering a person withdisabilities are that providing equal opportunities cannot be leftonly for the mercy by the Government in relation to its servantsalone. It is high time the principles behind the Disabilities Act,1955 must be extended in relation to private employments also andit must be made as part of Corporate Social responsibility of everyemployee. https://hcservices.ecourts.gov.in/hcservices/

17. However, in the present case, the application for suchprinciple did not come for consideration. This Court is satisfiedthat the impugned Award passed by the Labour Court does not sufferfrom any illegalities or infirmities. On the other hand, thespecific finding rendered by the Labour Court was that there was nomaterial before it to hold the 2nd respondent was a mentallyunsound person to be kept out of the employment in the petitioner'splantation. The learned counsel for the petitioner states thatthough an attempt was made to send her for medical opinion, suchattempts cannot be made after the order of the termination. Onthe other hand, as held by this Court in Anglo French case (citedsupra), such materials should be made available before and notafterwards. The provisions of the Plantation Labour Act takes noteof the health aspects of the workers to be determined by theCompany doctors and an appellate authority has also been providedin the form of a Certifying Surgeon. When the petitioner had notdischarged their obligation, they cannot blame the worker or theLabour Court in refusing to send for medical examination of the 2ndrespondent. 18. But, at the same time, in the present case, since themanagement do not want to employ the 2nd respondent and the 2ndrespondent also is not averse to receive a lumpsum compensation, inlieu of her illegal termination, this Court decides to modify theaward. Though the management had stated that the 2nd respondentwas only paid daily wages as minimum wages to the worker, even asper the minimum wages notification, she would be entitled to getdaily rated but monthly paid salary of Rs.1380/- per month as thelast drawn wages. Her non-employment was pending from 2.9.2002 andeven after the Writ Petition was admitted, the 2nd respondent wasnot paid her last drawn wages in terms of Section 17-B of theIndustrial Disputes Act.19. Under the said circumstances, this Court considers thatthe petitioner may be directed to pay Rupees One Lakh towards fulland final settlement of all claims of the 2nd respondent in lieu ofreinstatement and in replacement of the terms of the award. Thelegal contentions of the petitioner management though was rejected,but in respect of the relief given by the Labour Court found inparagraph 7 of the impugned award will stand modified. Thepetitioner management is directed to give Rs.1,00,000/- (Rupees OneLakh) within a period of four weeks from the date of receipt ofthe judgment. On such receipt, the 2nd respondent will have no https://hcservices.ecourts.gov.in/hcservices/ further claims in respect of her employment in the petitionerestate. The Writ Petition is disposed of accordingly. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.ajrToThe Presiding Officer,Labour Court, Salem.1 cc to M/s. T.S. Gopalan and Co, Advocate, Sr. 593711 cc to Mr.K.V. Shanmuganathan, Advocate, sr. 59286W.P.No.802 of 2009SV (CO)kk 3/10