JUDGMENT Anjani Kumar, J.
1. The employer-petitioners aggrieved by the award of the Central Government Industrial Tribunal-cum-Labour Court, Kanpur dated 17th July, 1997 passed in Industrial Dispute No. 97 of 1993, Annexure '4' to the writ petition, has approached this Court by means of this writ petition questioning the legality of the award, referred to above.
2. The following dispute was referred to the respondent No. I/Industrial Tribunal-cum-Labour Court for adjudication :
"Whether the action of the management in declaring Shri Subhjivan Lal S/o Sri Kishori Lal, Fireman Grade 'B', as permanently unfit as Fireman but fit in a one and below with glasses on 12.6.1984, is legal and justified? If not what relief the workman is entitled to ?"
3. From the perusal of the aforesaid reference, it appears that there appears to be typing mistake. So far as reference states whether the action of the management in declaring Shri Subhjivan Lal S/o Sri Kishori Lal, Fireman Grade (B' as permanently unfit as Fireman but fit in a one and (in my opinion should be in one Grade below with glasses) (Italics is mine)
4. The Labour Court after receipt of the aforesaid reference issued notice to the parties concerned who exchanged their pleadings and adduced evidence. The case set up by the employer before the respondent No. 1 is that the concerned workman became sick on 8th March, 1984 and went under treatment of Assistant Divisional Medical Officer, Northern Railway, Rosa where he was directed to contact Divisional Medical Office, Moradabad. At Moradabad, he was declared fit in Category A-I but was advised not to do strenuous work. This certificate was given on 12th June, 1984. On the basis of this report, the concerned workman was de-categorised and was given a job of Coaching Clerk which was of lower grade. Thereafter, the concerned workman obtained fitness certificate from Safdar Jung Hospital and AIIMS. On the basis of this fitness certificate he made a request for fresh fitment. By letter dated 6th January, 1985 the concerned workman was directed for fresh medical examination before the Medical Superintendent, Moradabad, who in turn asked the concerned workman to meet Dr. R.N. Gupta, Central Hospital, New Delhi. After examination Dr. Gupta told the concerned workman that there was no disability with him and gave him a scaled envelop. The-same was directed to be handed over at Moradabad. At Moradabad the workman handed over the envelop, the concerned workman was directed to meet Dr. Raj Kumar of Lucknow Hospital. Dr. Raj Kumar also examined him and orally informed him that he was fit. He also gave him a sealed cover on 29th January, 1986, which was to be handed over to the Medical Superintendent, Moradabad which the workman has done. Since then no decision has been in the matter with regard to the concerned workman nor he was allowed to join duties. Workman claimed that in view of the fact that he was declared medically fit by the Doctors at Delhi and Lucknow but employer did not allow to the duties, thus, the dispute was raised that the order of the opposite party in declaring the concerned workman medically unfit for Fireman Grade 'B' as permanent unfit is bad in law. The employer have also taken up a case that this dispute has become stale. The concerned workman was actually found unfit for assistance to the Driver. Further,. the opinion of the Doctor cannot be questioned. It has not been disputed that the concerned workman was sent for fresh medical fitness but nothing has been said as to what happened to the subsequent medical test.
5. The Labour Court respondent No. 1 has considered the case of the employer as well as the concerned workman. The respondent No, 1 has recorded a finding that the concerned workman was examined in presence of the authorised representative but he has not been cross-examined on behalf of the employer-management. This shows that the statement of concerned workman that he was sent for fresh medical examination and that he was found medically fit is correct. The opposite party has not adduced any evidence in rebuttal. The concerned workman has also filed certificate of AIIMS dated 9th October, 1985 which shows that the concerned workman did .next suffer from any heart disease which was the reason for declaring the workman concerned medically unfit. There is also a letter dated 6th January, 1986 issued by the opposite party in which a mention has been made about submission of medical certificate by Safdar Jung Hospital and AIIMS. On the basis of the aforesaid material on record and particularly with the finding that there is no evidence in rebuttal and further there is no explanation or evidence as to when the concerned workman actually appeared for medical examination, what was the report. All these papers must be with the opposite party-employer but they have failed to file the same and also have not furnished any explanation. Therefore, an adverse inference has to be drawn against the employer. Accordingly, the Labour Court has recorded a finding that the evidence relied upon by the concerned workman has to be believed and thus, held that the concerned workman is held to be fit after re-examination when he was asked to appear for medical re-examination. The Labour Court, therefore, answered the reference in favour of the concerned workman.
6.I do not find any infirmity in the award of the Labour Court nor anything could be pointed out which may warrant interference by this Court in exercise of power under Article 226 of the Constitution of India. This Court cannot sit in appeal over the finding recorded by the Labour Court/respondent No. 1 in exercise of power under Article 226 of the Constitution of India. Further the argument advanced on behalf of the petitioner-employer that the dispute has become stale but the same has not been substantiated in view of the law declared by the Apex Court, reported in 2001 (90) FLR 754, Sapan Kumar Pandit v. U.P. State Electricity Board and Ors. Therefore, it cannot be said that the Labour Court has committed any error in answering the reference. So far as the case on merit is concerned as has already been held the finding recorded by the Labour Court do not warrant any interference in exercise of power under Article 226 of the Constitution of India.
7. For the reasons stated above, this petition deserves to be dismissed and is hereby dismissed. The interim order, if any, stands vacated. There will be no order as to costs.