Bombay High Court
P.A.C. Rego Dias vs Madura Coats Ltd. And Ors. on 15 October, 1987
Equivalent citations: (1995)IIILLJ79BOM
JUDGMENT H.H. Kantharia, J.
1. The petitioners here filed complaints of unfair labour practice, being Complaint (ULP) No. 719 of 1984 and Complaint (ULP) No. 720 of 1984 in the Industrial Court, Maharashtra, Bombay, charging the first respondent-employer under item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the Act"). Their allegations against the employer were that there was a longstanding custom, usage and/or practice prevailing in the Company of not asking for medical certificate for one or two days sick leave and the said custom, usage and/or practice had crystallised into a term of service condition which was being violated by the first respondent and that is how they were guilty of an unfair labour practice covered by item 9 of Schedule IV of the Act. The defence of the first respondent was that there was no such long-standing practice prevailing in the Company of not asking for a medical certificate from their employees for one or two days sick leave but the Company was liberal in granting sick leave to their employees which liberal attitude of the employer was being abused by the employees and they went on indiscriminately taking sick leave without producing medical certificates as a matter of right. Thus, according to the first respondent, this unhealthy practice that started among the employees had to be curbed at some stage or the other and, therefore, when they doubted the genuiness of the sick leave asked for by some of their employees that they insisted upon medical certificates even for sick leave for a day or two which they were entitled to do under the Standing Orders governing the service conditions of their employees.
2. On appreciation of the evidence adduced before him, the second respondent, the learned Member of the Industrial Court, Maharashtra, Bombay, by his common order dated 31st March, 1986 dismissed both the complaints as in his opinion it was not proved that there was a long-standing practice, usage or custom prevailing in the Company of not insisting upon medical certificate for one or two days sick leave and as such it could not be said that the practice of granting one or two days sick leave to the employees without insisting upon a medical certificate crystallised into one of the terms of service conditions. It is the said order that has been impugned by the petitioners in these writ petitions under Article 226 of the Constitution.
3. With the assistance of the learned Counsel appearing on both sides I carefully went through the oral as well as documentary evidence adduced by the parties in the Industrial Court. And I find that the first respondent had in the written statement denied that any practice, custom or usage was prevailing in the Company of not asking for medical certificate for one or two days sick leave. It was further contended in the written statement that the Company was liberal in the past while entertaining applications for sick leave for one or two days and sanctioning such leave without insisting upon medical certificate; but lately it was noticed that the concession given by the Company to their employees was being misused and an attempt was made by quite a few of the employees to exhaust all the sick leave by taking one or two days sick leave without producing medical certificate. It may be noted here that the Company did not adduce oral evidence but relied upon documents and the cross-examination of the petitioner in writ petition No. 1092 of 1986 to show as to what they pleaded in the written statement was correct. On behalf of the complainants, the petitioner in writ petition No. 1092 of 1986 was examined. He stated in the examination-in-chief that there was a practice prevalent in the Company for a very long time that a medical certificate was not insisted upon for one or two days sick leave. However, his case was demolished in the cross-examination when he was not inclined to give evidence generally for all the workmen that there was such a practice for long time existing in the Company but confined himself as to the facts of his own case. He gave clear admission in the cross-examination that he could not say if other employees were required to claim sick leave by simply submitting forms in writing. He stated in clear terms that he knew about himself only and not with regard to other employees about such a practice prevalent in the Company. And what is worse for him is the fact that the Company produced in this Court a medical certificate dated 29th December, 1977 from Dr. K.A. Rao in respect of this very employee that he was not well on 26th and 27th December, 1977 and was fit to resume duty on 28th December, 1977. That this medical certificate concerns him was admitted by the employee in another communication with the Company. These documents totally demolish the case of the petitioners that there was unbroken longstanding practice, custom and/or usage prevalent in the Company for not insisting upon medical certificate for one or two days sick leave. Regard being had to such facts and circumstances, it is difficult to conclude that the petitioners proved their case of an unfair labour practice covered by item 9 of Schedule IV of the Act. Let it be noted here that if the petitioners were able to prove by satisfactory evidence that there was such a practice prevailing for a long time in the company then there was no difficulty in holding that such long-standing practice had crystallised into one of the terms of service conditions and a violation of the same would amount to unfair labour practice covered by item 9 of Schedule IV of the Act. But, as stated above, from the evidence on record, the irresistible and inevitable conclusion is that the petitioners did not or could not adduce satisfactory evidence to prove that such a practice was prevalent in the Company for a long time. It should be borne in mind that a charge of unfair labour practice, if proved, may entail penal consequences against the party charged of indulging in unfair labour practice. Therefore, the evidence has to be strictly construed whether such charge is proved or not. And at the cost of repetition let me say here that in my opinion there is no convincing evidence on record in this case to prove the charge of unfair labour practice complained against the employer.
In the facts and circumstances of the case, therefore, the learned Member of the Industrial Court was not wrong in dismissing the complaints of both the petitioners. It cannot be said that the impugned order is perverse or that it suffers from errors apparent on the face of the record.
4. I am very much conscious that it would cause great hardship to the workmen if an employer insists upon a medical certificate for one or two days sick leave. I expressed myself strongly against such a practice indulged in by any employer and I am glad to know from Mr Naphade, learned Counsel appearing on behalf of the first respondent-employer, that the Company had not insisted upon a medical certificate for one or two days sick leave and that it solemnly assures this Court that even in future the Company shall not do so. But when they honestly doubt the genuineness of the sickness of particular workman/workmen then they cannot be shut out from asking such workman/ workmen to produce medical certificate as the employer is legitimately entitled to do so under the Standing Orders. In this submission of Mr. Naphade, 1 see a very sound and reasonable approach on the part of the first respondent here that generally and as a matter of rule the first respondent shall not insist upon a medical certificate for one or two days sick leave which may be sanctioned to any workman but at the same time they cannot be prohibited from insisting upon medical certificate if the sickness of a particular workman is genuinely doubted. In my opinion, such an approach on the part of the first respondent would not only curb indiscipline, if any, on the part of any workman in misusing and/or abusing the concession granted to the workmen in this regard but shall also serve the purpose of the employees of taking sick leave for one or two days without producing medical certificate.
5. In this view of the matter, I find no substance in both the writ petitions. They fail and the same are dismissed. Rule in each of them is accordingly discharged but there shall not be any order as to costs.