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PETITIONER: ALEMBIC GLASS INDUSTRIES LTD. BARODA & OTHERS

       Vs.

RESPONDENT: THE WORKMEN & OTHERS

DATE OF JUDGMENT30/07/1976

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. CHANDRACHUD, Y.V. GOSWAMI, P.K.

CITATION:  1976 AIR 2091            1977 SCR  (1)  80  1976 SCC  (3) 522

ACT:             Employees’  State Insurance Act,  1948--S. 61--If  debars         grant  of  sick. leave--If the Act deals with all aspects of         sickness.

HEADNOTE:             The  workmen’s  demand for grant of sick leave  and  its         accumulation upto a period was rejected by the employers  on         the  ground  that the Employees’ State Insurance  Act,  1948         provided more than adequate sickness benefits, and that  any         additional  benefits would place a financial burden  on  the         industry and would adversely affect other industries in  the         region.   The Tribunal, to which the dispute  was  referred,         partly granted the workmen’s demand.             On  appeal to this Court it was contended that s. 61  of         the  Employees’ State Insurance Act debarred a person  enti-         tled  to any of the benefits under that Act  from  receiving         similar benefit under the provisions of any other Act and as         such  the workmen were not entitled to the benefit  of  sick         leave.         Dismissing the appeals,             HELD:  (1) The Employees’ State Insurance Act, does  not         deal  with  the question of sick leave.  The scheme  of  the         benefits  admissible under the Act does not cover the  work-         men’s  demand  for sick leave to the extent allowed  by  the         Tribunal.  Section 61 is not applicable because the benefits         granted by the Tribunal are not similar to those  admissible         under the Act.  [84 C]             The  Hindustan  Times Ltd., New Delhi v.  Their  Workmen         [1964] 1 SCR 234 and Technological Institute of Textiles  v.         Its Workmen and others [1965] 2 L.L.J. 149 applied.             (2) Sickness benefit under the Act cannot be said to  be         adequate,  for, it works out to about half the average  wage         of  a workman which benefit is not admissible for the  first         two days of sickness except under the conditions provided in         the  Act.   A workman is prevented from earning  the  normal         daily wages during the period of his illness and there is no         justification  for the argument that the rate of benefit  at         about  half  his wage, under the Act, should  be  considered         sufficient  so  as  to deny him the benefit  of  sick  leave         on full emoluments for a period of 7 days when he is  certi-

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       fied by a competent medical officer to be ill for that or  a         longer period.  Sickness is a serious misfortune to a  work-         man  for  it not only prevents him from earning  his  normal         wages,  but is a drain on his meagre financial resources  by         way of additional expenditure on food, nursing and visits to         the medical centre etc. [84 E-F]             (3)  The  Tribunal could not be said to  have  erred  in         restoring the benefit which the workmen were receiving under         an earlier award.  The benefit of sick leave to the  employ-         ees in the region was lost when the Act was made  applicable         to  the region from December 14, 1969.  This  was  obviously         under  a  mistaken impression.  The Act does not  deal  with         all aspects of sickness benefit and does not provide for the         grant  of  leave on full emoluments during the period  of  a         workman’s  physical  incapacity  to earn  his  normal  wages         because of his sickness. [85 B-C]             (4) There is no force in the argument that the  Tribunal         had granted additional privilege leave for 7 days under  the         garb  of  sick leave because by its very nature  sick  leave         would  be  admissible only in the case  of  actual  sickness         certified by a registered medical practitioner. [86 B]             (5)  There is no evidence to show that the  benefit  had         not  been  allowed by other companies in  the  region.   The         Tribunal had examined the financial         81         capacity of the companies and had given adequate reasons for         holding that they were in good financial position  and could         bear the additional  burden. [85 H]             (6) It has not been shown that the awards are illegal or         unjust, or would adversely affect the economy or the  indus-         trial  peace,  or  lead to imbalance in  the  conditions  of         service in other industrial establishments.  [86 C]

JUDGMENT:         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1951 of 1975.             Appeal by Special Leave from the Award of the Industrial         Tribunal,  Gujarat  in Reference (II) No. 30 of  1974,  pub-         lished in  the Gujarat Govt. Gazette dated 23-10-1975 and         Civil Appeal No. 631 of 1976             Appeal by Special leave from the Award of the Industrial         Tribunal, Gujarat in Ref. (II) No. 158 of 1974 published  in         the Gujarat Govt. Gazette Part I-L dated 15-4-76.             V.B. Patel, 1. N. Shroff and H.S. Parihar for the appel-         lants (In CA 1951/75).             S.T.  Desai,  A.  P. Hathi, Mrs. S.  Bhandare,   M.   S.         Narasimhan  K.C. Sharma, A. K. Sharma and A. K.  Mathur  for         the appellants in C.A. 631/76.             V.M.  Tarkunde,  K.L. Hathi and P.C. Kapur for  the  Re-         spondent in C.A. 1951/75 and Res. 1(1) C.A. 631/76.             S.S.  Khanduja, S.K. Jain and Mrs. Laxmi Arvid  for  Re-         spondent Nos. 1(2) In C.A. 631/76.         The Judgment of the Court was delivered by             SHINGHAL,  J.--These  two are   companion   appeals   by         special  leave.   They have been heard together at  the  in-         stance. of the learned counsel for the parties, and will  be         disposed by a common judgment.             Appeal  No. 1951 of 1975 is directed against the   award         of  the  Industrial Tribunal Gujarat,  dated  September  24,         1975,  in the dispute between the Alembic  Glass  Industries         Ltd., Baroda, and its workmen, while appeal No. 631 of  1976         arises  out of the Tribunal’s award in the  dispute  between         Jyoti  Limited, Baroda, and its workmen.  Speaking  broadly,         the  dispute in both cases related to the  workmen’s  demand

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       for 10 days sick leave, with retrospective effect, and  ,its         accumulation over a period of three years i.e. upto 30 days.         The workmen particularly felt aggrieved because by virtue of         the  first  proviso to section 49 of  the  Employees’  State         Insurance  Act,  1948, hereinafter referred to as  the  Act,         they were not entitled to the sickness benefit for the first         two  days  of  sickness except in the case of  a,  spell  of         sickness following, at an interval of not more than 15 days,         the  spell of sickness for which sickness benefit  was  last         paid.  It  was also a grievance that the benefit  under  the         scheme of the Act was much less than the normal earnings  of         an employee and was not beneficial to the workmen.             The demand was resisted by the Companies in both  cases.         In  the  case of the Alembic Glass Industries Ltd.,  it  was         contended that the Act provided more than adequate  sickness         benefits, and any additional         82         benefit  would  place unproductive financial burden  on  the         industry and would have an all round adverse effect on other         industries.   It was also urged that section 99 of  the  Act         gave wide powers to the Employees’ State Insurance  Corpora-         tion to enhance the benefit and it was therefore the  proper         authority to examine the demand.  The Company also contended         that there was no practice of giving any such sick leave  in         the industries in Baroda or in the State of Gujarat. In  the         case of Jyoti Ltd. an objection was taken that the reference         was  incompetent  and the Tribunal had  no  jurisdiction  to         entertain  it. It was also pointed out that the  benefit  of         sick.leave  of  7 days per year was initially given  to  the         workmen under an award dated August 29, 1958 which contained         a specific direction that it would be automatically  discon-         tinued  when the benefits of the Employees’ State  Insurance         scheme would become available to the workmen, and also  that         the  reasonableness  of the demand could not be examined  by         the Tribunal.  An objection was also taken that the  workmen         had  benefited a lot under the entire scheme of the Act  and         it  would not be reasonable and proper to confer  any  addi-         tional benefit as the demands would place a heavy  financial         burden on the Company which it Could not bear.  The  demand,         according  to the Company, would create an  absurd  position         inasmuch  as a worker would receive more wages by  remaining         absent  than  on duty.  The Company also  pleaded  that  the         demand  for sickness leave could not be  granted  retrospec-         tively or allowed to accumulate.             While  the reference in the case of Jyoti Ltd.,  Baroda,         was still pending, the Tribunal gave its award dated Septem-         ber  24,  1975 in the case of the Alembic  Glass  Industries         Ltd.  The  Tribunal, inter alia, awarded 7 days  sick  leave         with full pay and dearness allowance to the workmen of  that         Company in a year, with the facility of accumulation upto 21         days.   It was stated before the Tribunal, on behalf of  the         workmen  of Jyoti Ltd., that the arguments advanced and  the         contentions made in the case of the Alembic Glass industries         may  be  considered as those made in their case  also.   The         reference  in the case of Jyoti Ltd.  proceeded  accordingly         and  resulted  in  the award dated March 9,  1976  to  which         reference  has been made above.  The award was on the  lines         of the earlier award in the case of the Alembic Glass Indus-         tries case, except .that the direction regarding 7 days sick         leave  was given retrospective effect from January 1,  1975.         The Company applied for and obtained special leave to appeal         as aforesaid, with the further direction that the appeal may         be  heard  along with the identical matter (in  the  Alembic         Glass  Industries case).  This is why these two have  become         companion appeals and are being disposed of together.

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           The  controversy in these cases is whether the  benefits         admissible under the Act in the matter of the grant of  sick         leave are such as to justify the rejection of the  workmen’s         demand  and  the setting aside of the Tribunal’s  awards  in         that respect.             It has been argued by the learned counsel for the appel-         lants that as the benefits of sections 47 and 49 of the  Act         are already admissible to workmen in Baroda with effect from         December 14, 1969, and they are quite adequate, the Tribunal         committed an error         83         of law in granting the additional benefits mentioned  above.         Reference in this connection has been made to section 61  of         the Act which provides that when a person is entitled to any         of  the benefits provided by the Act, he shall not be  enti-         tled  to  receive  any similar benefit admissible under  the         provisions  of  any  other  enactment.   The  argument   was         raised  in  the  Tribunal,  but  was rejected.             A  similar  question  arose for  consideration  in   The         Hindustan Times Ltd., New Delhi v. Their Workmen(1) and  was         answered as follows by this Court,--                        "Mr. Pathak has tried to convince us that  in                  view  of  the provisions of  the  Employees’  State                  Insurance    Act, 1948, no provision need  be  made                  about  sickness  leave at all.  That this  Act  has                  been  applied, to the Company and that the  workmen                  of  the Company get the benefit of this Act is  not                  disputed.   It is difficult to see however how  the                  benefit  that the workmen will get under  this  Act                  can  affect  the question of sickness  leave  being                  provided  for the workmen.  This Act it has  to  be                  noticed  does  not  provide for any  leave  to  the                  workmen  on the ground of sickness. It provides  in                  s. 46(1)(a) for periodical treatment of any insured                  person  in case of his sickness if certified  by  a                  duly appointed medical practitioner.  It is  unnec-                  essary  to mention here the several  provisions  in                  the  Act; viz., Sections 47, 48 and 49  which  deal                  ’with    the    eligibility    of    workmen    for                  sickness  .benefit  and the extent of  the  benefit                  that  may be granted.  Section 56 of the  Act  pro-                  vides  for medical benefits to the insured  workmen                  or  in  certain cases to the members of his family.                  It appears  to  us clear however that in  providing                  for  periodical  payments to an insured  worker  in                  case of sickness (sickness benefit) or for  medical                  treatment  or attendance to him or the  members  of                  his  family,  the  legislature did  not  intend  to                  substitute any of these benefits for the  workmen’s                  right  to  get leave on full pay on the  ground  of                  sickness."                  The matter came up again for consideration by  this                  Court in Technological Institute of Textiles v. Its                  Workmen  and others(2) and it was held  as  follows                  with  specific reference to the first  proviso   to                  section 49 of the Act according to which a   person                  qualified   to claim sickness benefit is not  enti-                  tled to it for the  initial  waiting period of  two                  days  except in the case of continuous  illness  of                  the nature mentioned therein,--                        "With  regard to sick leave, the argument  on                  behalf  of  the appellant was  that  benefits  were                  granted  by  the Employees’  State  Insurance  Act,                  but .that is not a bar to the demand of the workmen                  for  sick  leave.  The reason  is  that  the  first

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                proviso to s. 49 of the  Employees’  State                  (1) [1964] 1 S.C.R. 234.             (2) [1965] 2 L                  L.3,149.                  84                  Insurance  Act  states that a person  qualified  to                  claim sickness benefit shall not be entitled to the                  benefit  for an initial waiting period of two  days                  except in the case of a spell of sickness following                  at  an interval of not more than fifteen days,  the                  spell of sickness for which benefit  was last paid.                  It is apparent that the Employees’ State  Insurance                  Scheme does not cover all contingencies of sickness                  and in any event the first two waiting days are not                  covered.  In our opinion, the tribunal was,  there-                  fore,  justified in its view that the  workmen  are                  entitled  to 7 days’ sick leave with wages on  pro-                  duction of a medical certificate."         It  would  thus  appear that the  Scheme  of  the   benefits         admissible  under the Act cannot be said to cover the  work-         men’s  demand  for sick leave to the extent allowed  by  the         Tribunal.   Section 61 of the Act cannot thus be said to  be         applicable  for the simple reason that the benefits  granted         by  the Tribunal are not similar to those  admissible  under         the Act.  The Act does not in fact deal with the question of         sickness leave.             The  other question regarding the adequacy of the  sick-         ness benefit under the provisions of the Act has been  exam-         ined  by the Tribunal with reference to the reports  of  the         National Commission of Labour, 1969, the Labour Laws  Review         Committee and the Norms Committee of Gujarat State, which go         to show that the benefit cannot b.e said to be adequate for,         it  works out to about half the average wage of  a  workman,         and  even  that amount is not admissible for the  first  two         days  of sickness except in the case of a spell of  sickness         following,  at  an interval of not more than  15  days,  the         spell  of sickness for which the sickness benefit  was  last         paid.  It has to be appreciated that a workman is  prevented         from earning the normal daily wages during the period of his         illness and there is no justification for the argument  that         the  rate of benefit at about half his wage, under the  Act,         should be considered sufficient so as to deny him the  bene-         fit of sick leave on full emoluments for a period of 7  days         when  he is certified by a competent medical officer  to  be         ill  for  that or a longer period.  Sickness  is  a  serious         misfortune  to a workman for it not only prevents  him  from         earning  his  normal  wages, but is a drain  on  his  meagre         financial  resources  by way of  additional  expenditure  on         food, nursing and visits to the medical centre etc.             It   has   not  been  disputed  before   us   that   the         "region-cure-industry"  basis is suitable in cases like  the         present  for examining any controversy regarding  the  work-         man’s demand for additional benefits, but it has been argued         by the learned counsel for the appellants that the award  of         the  benefit of sick leave to the workers of the two  Compa-         nies could not be justified on that basis.  We find that the         Tribunal  has examined this aspect of the controversy  also,         and we have no reason to disagree with the view which it has         taken.   As has been stated, the Act came into force in  the         region  concerned on December 14, 1969, and it has not  been         disputed before us that till then it was the practice in the         glass industries to grant sick leave with wages for  periods         varying from 6 to 10 days.  In fact in the         85         case  of  the Alembic Glass Industries  Ltd.,  Baroda,   the         Tribunal made an award for 7 days sick leave on full pay and

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       dearness  allowance in 1958, subject to the  condition  that         the  benefit would cease to apply when the benefits  of  the         Act  became available to the workmen.  The benefit  of  sick         leave was therefore lost when the Act was made applicable to         the region from December 14, 1969.  That was obviously under         a mistaken impression of the sickness benefit which the  Act         allowed  for, as has been shown, it does not deal  with  all         aspects of the demand for sickness benefit and does not,  at         any rate, provide for the grant of leave on full  emoluments         during  the period of the workman’s physical  incapacity  to         earn  his  normal wages because of his sickness.  It  there-         fore  appears  that the Tribunal could not be said  to  have         erred  in restoring the benefit which the workmen  were  re-         ceiving under the award of 1958, for it was taken away under         the mistaken impression that it had been adequately replaced         by the new provisions on the coming into force of the Act.             The appellants have filed a statement (Ex. 7) containing         information regarding the companies which have provided  the         benefit  of  sick leave to its workmen in  the  region.   It         shows that even though the Act was applicable to the workers         of  the  Precision Bearings India  Ltd.,  Baroda,  Hindustan         Brown  Bovari Ltd., Baroda, the Associated Cement  Companies         Ltd.,  and  M.S. University Press,  Baroda, the  benefit  of         sick  leave  has   been allowed to  the  workmen  of.  those         companies.   It  is  therefore  .futile  to   contend   that         the  benefit should not be admissible on the ground that  it         had  not been allowed by other companies in the region.   We         also  find that such a benefit has been allowed in the  case         of  glass  industries by Shree Vallabha  Glass  Works  Ltd.,         Vallabh   Vidyanagar,  Ogale Glass Works Ltd., Oglewadi  and         Vijay Glass Works, Bombay. Even the Alembic Glass Industries         Ltd. has allowed 6 days sick leave in a year to its  employ-         ees in Bangalore and it is permissible to accumulate it upto         12  days  in addition to the current year’s leave,  under  a         settlement  dated  July 17, 1969, which is  being  continued         even after the coming into force of the Act.  Learned  coun-         sel  for  the appellants have invited our attention  to  the         case between the Textile Labour Association and the  Ahmeda-         bad Millowner’s Association where the demand for sick  leave         was refused but, as the Tribunal has pointed out, the demand         there  was for a month’s leave every year in addition to  15         days  casual leave and pay in lieu of privilege leave.   The         Full Bench of the Industrial Court in that case   considered         the  paying  capacity of the mills also, and held  that  the         additional leave demanded by the workmen would be very  much         beyond  the  paying capacity of the  industry.   As  against         this,  the Tribunal has examined the financial  capacity  of         the  two companies in question, and has given adequate  rea-         sons  for holding that they are in good  financial  position         and  can bear the additional burden of sick leave.   Learned         counsel  for  the appellants have in fact not  advanced  any         argument to the contrary.             Mr.  S.T. Desai has raised the argument, in the case  of         Jyoti  Ltd.,  Baroda,  that the Tribunal  laboured  under  a         misconception that         86         the sickness benefit would be lost for the first two days of         sickness  under the first proviso to s. 49 of the Act,  that         the  Tribunal  should not, in any view of the  matter,  have         given the benefit of 7 days sick leave, and that the workmen         did  not deserve  anything  more than sickness  benefit  for         the  first two days also.  According to him, what  has  been         awarded by the Tribunal is additional privilege leave for  7         days  in  the garb of sick leave.  The argument  is  however         futile  because, as has been stated, the Tribunal  has  cor-

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       rectly  examined the controversy and given adequate  reasons         for allowing the benefit of 7 days sick leave in the  manner         set out in the award. Such a leave could not be  categorised         as  privilege  leave  as, by its very nature,  it  would  be         admissible only in the case of actual sickness certified  by         a registered medical practitioner.             It  would thus appear that the appellants have not  been         able  to  show that the awards in question  are  illegal  or         unjust;  or would adversely affect the economy or the indus-         trial  peace,  or  lead to imbalance in  the  conditions  of         service  in  other industrial  establishments.  It  appears,         however, that it was not necessary, in the circumstances  of         the case, to award the benefit of the sick leave with retro-         spective  effect from January 1, 1975, in the case of  Jyoti         Ltd. Baroda.             The  appeals  therefore fail and  are  dismissed  except         that   the award in the case of Jyoti Ltd., Baroda, is  made         effective from the date of its commencement.  The  appellant         companies  shall  pay  to the workmen’ the  costs  of  these         appeals; one set  of  counsel’s fees.         P.B.R.                                               Appeals         dismissed.         87