S.Mohan, CJ. - (1.) since writ appeal No. 1669/1991 arises out of an interlocutory order dated 18-6-1991 made in writ petition No. 13266/1991 directing the appellant to pay to the second respondent a sum of Rs. 25,000/- subject to reinstating the second respondent and paying him the current wages, we asked the learned counsel on both sides whether we could have the writ petition itself disposed of on merits. They agreed to this course. That is how the writ petition also has come up before us. Since the judgment in the writ petition will govern the writ appeal as well, we propose to deal with the writ petition first.
(2.) the second respondent-workman was appointed by the appellant-petitioner in February 1974 on a temporary basis as a helper. He was given intermittant work till September 1974. Thereafter his services were dispensed with. Again he was employed by the appellant from 25-2-1978 and he continued in the said employment till 20-8-1978. From 21-8-1978 he was appointed as a probationer. He was confirmed from 26-2-1979 after completion of probationary period. After confirmation, he became very irregular in his attendance. He used to remain absent unaulhoriscdly and without prior permission or even sanction of the appellant. The workman availed esi lcave on 1-4-1981 and 2-4-1981. Normally he should have resumed duty from 3-4-1981. However, he did not report for work. He remained absent without permission or intimation on and from 3-4-1981 till 15-4-1981. Consequently, the appellant informed the workman by its letter dated 15-4-1981 that having regard to clause 20 of the certified standing orders of the company he must be deemed to have left the services of the appellant-company without notice thereby terminating his contract of service. Evenafter receipt of this letter the workman did not offer any explanation. He went to the company only on 21-11-1981 and took the necessary forms for settling his provident fund claims. Thereafter on 23-11-1981 he wrote a letter to the appellant demanding reinstatement. This was followed by a legal notice dated 16-11-1982 wherein also he reiterated his demand for reinstatement. Since his demand was refused he raised an industrial dispute. That came up for conciliation before the deputy labour commissioner, Bangalore region No. 1 on 9-12-1982 and it ended in failure. Thereafter the stale government referred the dispute to the first respondent labour court for adjudication. That was registered as reference No. 86/1985. The first respondent passed an award on 24-12-1990 directing the appellant to reinstate the workman with continuity of service, full back wages and other consequential benefits for reasons stated in the award. In so doing, the first respondent held that striking off the name of the workman with effect from 3-4-1981 on the ground of abandonment of service was bad in law. Aggrieved by this award, the present writ petition had come to be filed.
(3.) Mr. Dolia, learned counsel for the petitioner-appellant, would submit as under: the interpretation of the labour court on Section 73 of the e.s.i. act is incorrect. The said Section categorically states: "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." where, therefore, the certificates produced before the first respondent (exhibits w-1 to w-5) clearly lay down that they are not intended to be used for claiming benefits or excusal of contributions, without even noting the same the first respondent gives the benefit of the said Section to the workman. Regulation 55 of the e.s.i. regulations also postulates that the certificates will have to state the disease from which the workman is suffering. These certificates are bald in nature. Forms 8,9 and 10 prescribed by these regulations also reiterate this viz. That by reason of a parlicular disease the workman is absent. That sickness is required to be stated. Nothing of that kind is stated here. The consequence of dismissing an employee in contravention of Section 73 of the e.s.i. act would attract prosecution under Section 85(d) of that act. Therefore, in the teeth of these Provisions, the first respondent was not justified on the basis of the evidence produced before it, to conclude that Section 73 of the e.s.i. act would be applicable to the workman. As a matter of fact, the certificates w-l to w-5 have nol even been properly proved by examining the doctors who issued those certificates. Therefore, they are inadmissible in evidence. Even assuming they are admissible in evidence, they are inherently defective. The workman docs not have a consistent case with regard to the sickness. In his evidence as ww-1 he would say that he was suffering from vibration as a result of loss of blood during the period 1-4-1981 to 30-4-1981. However, in the lawyer's notice (ex. M-8) it is slated that the workman was on esi leave as he was suffering from general diabetes. Where clause 20 of the standing orders applies there is no decision of the employer to terminate the service in a case of voluntary abandonment. As a matter of fact the taboo contained in Section 73 of the e.s.i. act is also only to that effect requiring the employer nol lo dismiss or terminate. If it is a case of voluntary abandonment, Section 73 will not apply; it is clause 20 of the standing orders that will apply. This vital distinction between an order emanating from the employer terminating or discharging the services of the workman as against the workman himself terminating his contract of service by operation of clause 20 of the standing orders, has mil been properly appreciated. In support of this submission, reliance is placed on buckingham and camattc company ltd. V venkatayya, 1963(2) LLJ 638 : AIR 1964 SC 1272. Reliance is also placed on binny ltd. V presiding officer, 1986(1) ll1 237, in which it has been slated that abandonment implies no retrenchment. The certificate, ex. W-l, is dated 7-4-1981. That is stated lo have been handed over on 2-4-1981. Therefore, it is inherently impossible lhat it was ever handed over. Yet another important point is that at no point of lime in any particular year the workman worked for 240 days. Under such circumstances, there is no scope for applying Section 25-f of the Industrial Disputes Act, 1947, at all. Therefore, Section 2(oo) of the i. D. Act relating to retrenchment cannot arise. Concerning this, the first respondent has not properly appreciated the evidence placed before it viz. Ex. M -6 the attendance register and the admission of the workman himself. On the contrary, the first respondent wrongly puts the burden on the appellant-management and has thoroughly misdirected itself. For these reasons, the award of the first respondent-labour court which suffers various infirmities, requires to be set aside.;