TMI Blog1963 (8) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... March 1957 he sent a letter to the appellant stating that sometime after reaching his village near Kanigiri he suffered from fever and dysentery and was treated by the Civil Assistant Surgeon, Kanigiri. This letter was accompanied by a certificate issued by the said Civil Assistant Surgeon. In this certificate it was stated that Venkatiah suffered from chronic malaria and dysentery from January 15 to March 7, 1957. When he appeared before the Manager of the Company, he was asked to go to the Senior Medical Officer of the appellant for examination. The said Officer examined him and was unable to confirm that he had been ailing for a period of nearly two months. Acting on that opinion, the appellant refused to take back Venkatiah and when Venkatiah pressed to be taken back, the appellant informed him on March 23, 1957 that he could not be reinstated as his explanation for his absence was unsatisfactory. The case of Venkatiah was treated by the appellant under Standing Order No. 8(ii) of the Standing Orders of the appellant. 2. Meanwhile, Venkatiah had applied to the Employees' State Insurance Corporation and on or about the 15th June 1957 he obtained cash sickness benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ward was set aside by the learned Judge. The respondent challenged the correctness of this decision by a Letters Patent Appeal before a Division Bench of the Madras High Court (No. LPA 82 of 1959). The respondent's appeal was allowed by the Division Bench and in consequence, the award passed by the Labour Court has been restored. The Division Bench has held that s. 73 applied to the present case and that made the refusal of the appellant to take back Venkatiah in its employment illegal. It has also observed that in refusing to take back Venkatiah the appellant had not properly discharged its obligation of examining Venkatiah's explanation reasonably and that introduced an infirmity in its decision not to take him back. In other words, according to the Division Bench, the action of the management amounted to contravention of the provisions of s. 73 of the Act and was otherwise not fair. It is against this decision that the appellant has come to this Court with a certificate issued by the Madras High Court under Art. 133(1)(c) of the Constitution. 5. Mr. Sastri for the appellant contends that the case of Venkatiah falls squarely within the provisions of Standing Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But where parties agree upon the terms conditions of service and they are included in certified Standing Orders, the doctrines of common law or consideration of equity would not be relevant. It is then a matter of construing the relevant term itself. Therefore, the first part of Standing Order 8(ii) inevitably leads to the conclusion that if an employee is absent for eight consecutive days without leave, he is deemed to have terminated his contract of service and thus relinquished or abandoned his employment. 7. The latter part of this clause, however, provides that the employee can offer an explanation as to his absence and if his explanation is found to be satisfactory by the management, his absence will be converted into leave without pay or dearness allowance. Now this clause is in substance a proviso to its first part. Before effect is given to the inference of relinquishment of service which arises from the first part of the clause, an opportunity is given to the employee to offer an explanation and if the said explanation is treated as satisfactory by the management, the inference of termination of contract of service is rebutted and the leave in question is treat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty on the 9th March 1957. Incidentally, the certificate has been granted at the end of the treatment and specifically avers that he was fit enough to join on March 9, 1957. When Venkatiah was examined by the Medical Officer of the appellant on the 22nd March 1957, the Medical Officer was unable to confirm that he was ill for a period of nearly two months. The High Court has criticised this certificate as being vague. In our opinion, by this certificate the Medical Officer politely suggests that having regard to the opinion which he formed on examining Venkatiah on March 22, he was unable to confirm the certificate issued by the Civil Assistant Surgeon. What struck the High Court as vague in the certificate is obviously the result of the desire of the appellant's Medical Officer to observe professional courtesy in dealing with the certificate on which Venkatiah relied. Apart from this aspect, however, we do not see how it was open to the High Court to consider the propriety of the conclusion reached by the Labour Court on this point. We have already noticed that the Labour Court has specifically repelled the criticism made by the respondent against the conduct of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is no doubt, prima facie, attractive, but before accepting it, it would be necessary to find out whether there is any specific provision in the Act which compels the appellant to accept the view taken by the relevant authority under the Act when it decided to give assistance to Venkatiah. 11. Section 73 of the Act reads as under : Employer not to dismiss or punish employee during period of sickness, etc. - (1) No employer shall dismiss, discharge, or reduce or otherwise punish an employee during the period the employee is in receipt of sickness benefit or maternity benefit, nor shall he, except as provided under the regulations, dismiss, discharge or reduce or otherwise punish an employee during the period he is in receipt of disablement benefit for temporary disablement or is under medical treatment for sickness or is absent from work as a result of illness duly certified in accordance with the regulations to arise out of the pregnancy or confinement rendering the employee unfit for work. (2) No notice of dismissal or discharge or reduction given to an employee during the period specified in sub-section (1) shall be valid or operative. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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