Case No: Civil Appeal No. 68 of 1994
Judge: Mustafa Kamal ,
Court: Appellate Division ,,
Advocate: Dr. Rafiqur Rahman,Mr. Md. Asaduzzaman Asad,,
Citation: II ADC (2005) 569
Case Year: 1997
Appellant: M/S. Karim Jute Mills Ltd.
Respondent: Chairman, Labour Court
Subject: Labour Law, Words and Phrases,
Delivery Date: 1997-7-8
Mustafa Kamal J
Mohammad AbdurRouf J
Bimalendu Bikash Roy Choudhury J
M/S. Karim Jute Mills Ltd.
Chairman, Second Labour Court, Dhaka and another
July 8, 1997.
The period of illness and the recurrence of illness are not the only criteria for determining the health of a worker. It is the nature of the disease, its duration and its effect on the soundness of the health of the worker in performing his assigned job that determines his “continued ill health”. ….. (11)
Case Referred to-
Writ Petition N. 219 of 1985 (unreported)
Dr. Rafiqur Rahman, Senior Advocate instructed by Mvi. Md. Wahidullah, Advocate-on-Record - For the appellant.
Md. Asaduzzaman, Advocate instructed by Sharifuddin Chaklader, Advocate-on-Record - For Respondent No. 2.
Not represented - Respondent No.1.
Civil Appeal No. 68 of 1994
(From the Judgment and Order dated 11-3-93 passed by the High Court Division in Writ Petition No. 688 of 1987)
Mustafa Kamal J.
This appeal by leave by the writ petitioner M/S. Karim Jute Mills Ltd. is from the judgment and order dated 11-3.93 passed by a Division Bench of the High Court Division discharging the Rule Nisi in Writ Petition No. 688 of 1987.
2. Respondent No. 2, worker under the appellant, took leave upto 23-9-80 on 19-9-80. He fell ill and applied for leave from time to time. When he applied for leave for two months from 25-9-80 the appellant sent a reply on 30-9-80 stating that no further leave would be granted and asking him to appear before the Medical officer of the Mills by 6-10-80. But respondent No.2 asked the appellant to send a Medical Officer to his residence for his examination. The appellant by letter dated 9-10-80 again asked respondent No.2 to appear before the Medical Officer of the Mills by 14-10-80. Respondent No.2 did not respond. The appellant once again asked him to appear before the Medical Officer of the Mills or to join his duty by letter dated 26-10-80. Respondent No.2 did not do so. By another application dated 25-11-80 he applied for medical leave for one month from 26-11-80. By another application dated 25-12-80 he applied for one month's medical leave from 26-12-80. His last application for leave is dated 25-2-81 with which he appended a medical certificate. It became clear to the appellant that respondent No.2 was unable to resume his duty since 26-9-80 because of his continued ill-health. Consequently the appellant discharged him from service by a letter dated 6-3-81 under section 16 of the Employment of Labour (standing Orders) Act, 1965, shortly the Act, on the ground of his continued ill-health with all monetary benefits under the Act. Respondent No.2 filed Complaint Case No.40 of 1981 before the Second Labour Court, Dhaka challenging the order of discharge on several grounds and the said Labour Court allowed the case and ordered his re-instatement in service. The appellant's Writ Petition No.216 of 1985 challenging the order of the Labour Court was disposed of by the High Court Division by sending the case back to the Labour Court for re hearing on certain matters. The Labour Court after re-hearing reiterated the previous decision by judgment and order dated 22-10-87. Being aggrieved the appellant obtained a Rule Nisi in Writ Petition No.688 of 1987. As already observed the High Court Division discharged the Rule.
3. While repeatedly applying for medical leave, respondent No. 2 enclosed medical certificates in support of his plea of illness. These certificates described the respondent's illness as 'chronic peptic ulcer' with skin troubles with anaemia and cardiac weakness. The High Court Division did not refer to the medical certificates, but noticed section 16 of the Act which is as follows.
Provided that a worker having completed not less than one year of continuous service so discharged, shall be paid by the employer compensation at the rate of thirty days wages for every completed year of, service or for any part thereof in excess of six months, or gratuity, if any, whichever is higher.
Explanation.- For the purpose of calculation of wages under this section wages shall mean the average of the basic wages and dearness allowance if any, paid to the worker during the period of twelve months immediately preceding the date of discharge."
4. The High Court Division held that the words "continued ill-health’' should not be interpreted lexicographically but must be interpreted along with the conditions resulting from physical or mental incapacity. Physical or mental incapacity, the High Court Division holds, signifies those conditions which render the possibility of the workers recovery from such incapacity remote and uncertain. Similarly, the High Court Division holds, the condition "continued ill-health" does not signify a single and solitary instance of "illness" which may continue even for months, if such 'illness' is visibly a curable illness. The High Court Division then says-
5. Leave was granted to consider the appellant's submissions (1) that the High Court Division erred in law in importing a new idea and a criteria of curability and period of illness for determination of the condition of "continued ill-health". (2) that the High Court Division erred in holding that the words “such” other reasons not amounting to misconduct" occurring in section 16,of the Act indicate that "such other reasons" must be akin to and similar condition of health of the worker if not actually the same condition as physical or mental incapacity; and (3) that there is no indication or guideline in law for taking a view, which the High Court Division has taken, that "continued ill-health" means such condition of health of the worker as gives rise to a reasonable inference in the mind of the employer that the worker is not likely to recover from "such illness" and resume normal duties.
6. Dr. Rafiqur Rahman, learned Counsel for the appellant, submits that the high Court Division did not consider the medical certificate enclosed by respondent No.2 with his application and therefore failed to understand and appreciate the implications of his illness and state of health. According to the medical certificate, respondent No.2 was suffering from chronic peptic ulcer. "Peptic ulcer" has been defined in Taber's Cyclopedic Medical Dictionary as follows-
Dorland's Illustrated Medical Dictionary, Edition 28, defines "peptic ulcer" as follows:
7. Dr. Rafiqur Rahman submits that section 16 of the Act does not connect "continued ill-health" with physical or mental incapacity. It is a distinct from of disability apart from physical or mental incapacity. Discharge from service can also be made for such other reasons not amounting to misconduct which clearly indicates that such other reasons need not be inextricably connected with physical or mental incapacity.
8. Mr. Md. Asaduzzaman, learned Counsel for respondent No.2, has supported the impugned judgment and order of the High Court Division.
Before we consider the submissions of the parties, we would like to note that in the earlier Writ Petition N. 219 of 1985 (unreported) filed by the appellant, the High Court Division found that the expression "ill-health" has not been defined in the Act. It has also not been stated in the Act what period of illness would be regarded as "continued ill-health". It was held that in the absence of a legislative guideline the period of illness that would be considered to be "continued ill-health" would be left with the discretion of the employer, but the employer shall not exercise this discretion arbitrarily and capriciously. All the attendant facts and circumstances of each case have to be considered to determine whether a particular period of illness would be a legal period of "continued ill-health". That "was the view taken in the earlier decision by a different Division Bench.
9. It is our view that both in Writ Petition No. 216 of 1985 and in the instant writ petition the two separate Division Benches of the High Court Division were not wholly correct in interpreting section 16 of the Act.
10. Section 16 does not connect "continued ill-health" with "physical or mental incapacity". If the said two expressions were of the same import and consequence it was not necessary to use the second expression "continued ill-health". Physical or mental incapacity and continued ill-health are two distinct and separate states or conditions of physical and mental well being. The High Court Division was not well-founded in law in holding that "continued ill-health" must be interpreted along with the condition resulting from physical or mental incapacity of a worker. An incapacity and an ill-health are neither akin nor similar to one another. The former incapacitates, the latter gravely undermines the capacity of a worker to work. In case of physical or mental incapacity the disability of the worker is complete and in case of continued ill-health, the capacity is impaired, not totally eliminated.
11. In both the earlier and instant writ petitions "continued ill-health" has been mistakenly equated with "continued illness". A person may suffer from continued illness but it does not necessarily mean that he suffers from continued ill-health. According to Webster's New International Dictionary, "health" means, "state of being hale, sound, or whole in body, mind, or soul". In the same Dictionary, "hale" means "free 'from defect, disease, or infirmity, sound, healthy". Health" therefore does not mean the absence of organic disease. There will perhaps be not a single soul in earth who does not carry a disease or two in his or her person or who does not suffer from any illness whatsoever. The soundness of the health of a worker for purposes of the Act is related to the type of work that he is assigned to perform by his employer. With certain continued illnesses, which are a constant factor in a person's body, it may be perfectly possible to perform an assigned joy. But there may be other illnesses which may be of short duration but of such impairing or debilitating effect that it renders the worker unsound or unfit to perform his assigned job. Therefore the period of illness and the recurrence of illness are not the only criteria for determining the health of a worker. It is the nature of the disease, its duration and its effect on the soundness of the health of the worker in performing his assigned job that determines his "continued ill-health". The connotation of "continued ill-health" given by the learned Judges in the impugned judgment will put that expression into a straitjacket of an inflexible situation which, with due respect, was not the intention of the legislature. The interpretation of the words "continued ill-health" should be kept as flexible as possible so as to accommodate individual cases or classes of cases of ill-health within the scope of those words, depending upon the facts and circumstances of each case.
12. The High Court Division has totally ignored the facts of the case. Respondent No.2 was continually absent from 19-9-80. His last application for leave is dated 25-2.81. He applied for forty five days' medical leave from 25-2-81. In the said application he stated that he was improving, but the medical certificate appended thereto is silent about his recovery. It only states that he has been suffering from chronic peptic ulcer with skin troubles with anaemia and cardiac weakness and he was advised rest for 45 days from 25-2-81. The certificate shows that he was still not cured of his illness or that his condition improved from the date of his previous application for leave. Respondent No. 2 was performing the functions of Head Sarder in the Winding Department of the Mill. Given the definition of "peptic ulcer" and given the fact that respondent No. 2 failed to recover from the said illness during the course of 5 months, if the employer takes the view that respondent No.2 was suffering from "continued ill-health'" and would not be in a fit and sound condition of health to perform his assigned duties, can it be said under the circumstances that the appellant had taken a capricious, arbitrary and whimsical view"
13. We do not think so. The employer has rightly connected the nature of illness of the worker, the duration of the illness and the relationship of the illness with the nature of job performed by him and has rightly come to a conclusion as to his further usefulness in service bona fide on records. The use of power by the employer cannot be hedged with interpretative conditions which make the exercise of power impossible or much too difficult.
14. In that view of the matter we do not think that the High Court Division correctly interpreted the words "continued ill health" in the context of section 16 of the Act. The order of discharge from service was passed legally and lawfully and both the Labour Court and the High Court Division erred in law in interfering with the same.
15. In the facts and circumstances of the case it is not necessary to determine whether the words "such other reasons not amounting to misconduct" occurring in section 16 of the Act should be interpreted ejusdem generis with the words "physical or mental incapacity."
The appeal is allowed without any order as to costs.