WORKMAN Vs. GENERAL MANAGER INDIA CEMENTS LIMITED

JUDGEMENT

(1.) THE appellant Union, represented by its General Secretary, raised a dispute in I. D. No. 16 of 1982, before the Industrial Tribunal, Tamil Nadu, Madras questioning the action of the Management of M/s. India Cements Limited, touching the non-absorption of the services of Shri S. Subramani, T. No. 135, Earth Loader of their Karumparathanur Lime Stone Quarry with effect from August 11, 1978, contending that non-absorption is wholly unjust and illegal. The terms of reference contain the word "termination" though it relates to non-absorption. The Central Government Industrial Tribunal set aside the order of the management and ordered reinstatement with full back wages from the date of reference, viz. , February 27, 1982. The Management/ Respondent No. 1 herein, assailed the order in W. P. No. 8275 of 1985, dated November 6, 1995 before this Court. The learned Single Judge allowed the writ petition and set aside the order of the Tribunal dated November 6, 1995. That order of the learned Single Judge is under challenge in this writ appeal.

(2.) THE learned counsel for the appellant contended that the disease Workman, represented by the General Secretary, India Cements Employees' Union vs. Ge. . . Page 3 of 13 presented by the General Secretary, India Cements Employees' Union vs. Ge. . . Page 3 of 13 alleged to have been suffered by the workman does not come within the ambit of "defect" as contemplated under the settlement, consequently, making him unfit for the work and disentitling him for absorption. He also further contended that since the doctor attached to the Company and the District Medical Officer at the relevant point of time who gave the certificate, are not specialists in skin disease, the workman is entitled to produce certificate in order to show that the disease suffered by him is non-communicable and non-infectious, which does not affect his right for absorption. He lastly contended that the learned single Judge is not justified in substituting his opinion to the finding of fact recorded by the fact finding authority, viz. , The Tribunal, in the absence of a finding that the order impugned in the writ petition suffers from perversity or non-consideration of material evidence without adverting to the admissions or documentary evidence relied upon by the workman.

(3.) THE learned counsel for respondent No. 1 assailed the reasoning of the Tribunal, inter alia contending that the award is vitiated by material errors of law apparent on the face of the records and the Tribunal should have realised that the action of the management in not absorbing the concerned workman in regular employment is in conformity with the terms of settlement, Ex. M1, dated June 8, 1978. Instead, the Tribunal has referred to extraneous and irrelevant matters and failed to notice that there is no scope for getting successive or repeated certificates. It also contended that on proper reading of their terms of settlement, if the Company's Medical Officer as well as the District Medical Officer found a particular workman unfit for absorption, there is no further review or appeal either to any other medical officer or to any Tribunal itself. Consequently, the Tribunal should have held that the matter is concluded by the terms of the settlement to which the respondent No. 2 Union itself was a party. It was also contended that the parties should be held bound by Ex. M-1 and there is no scope for referring to any other certificate or the Standing Orders. It is the case of respondent No. 1 that a contract employee should become eligible for absorption only if the terms of settlement are satisfied and not otherwise. In that view of the matter, the appellant is not entitled for absorption and reinstatement. While defending the order of the learned single Judge, he further contended that the finding of the learned single Judge in the impugned order that at the relevant time admittedly the concerned workman was unfit for job, need not be Workman, represented by the General Secretary, India Cements Employees' Union vs. Ge. . . Page 4 of 13 presented by the General Secretary, India Cements Employees' Union vs. Ge. . . Page 4 of 13 interfered with. Lastly he urged that the Tribunal should have held that there was no scope for terminating the services of a person who was not an employee of an industrial unit in view of the terms of reference.