- (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.;