- (1.) The petitioner I. N, Saxena was employed by respondent No. 2 M/s. Gastetner Duplicators (Private) Ltd. as a mechanic at Lucknow. He was later on transferred to Kanpur when the office of the company was closed at Lucknow. Subsequently, the office of the Company was reopened in May, 1957 and the petitioner was brought back to Lucknow from Kanpur. On 31-3-1970 the petitioner was ordered to be transferred to Ahamdabad Branch of the Company and he was directed to take charge of his duties on 1-5-1970. The petitioner then made a representation on 15-4-1970 against the order of transfer. That representation was rejected by the company on 22-4-1970 and he was directed to join his duties at Ahmadabad Branch on 1-5-1970. It seems that on 28-4-1970 the petitioner made another representation requesting the company to allow him 21 days time to enable him to join at Ahmadabad. This request was conceded and he was directed to join at Ahmadabad on 19-5-1970. But he could not do so as he fell ill on 18-5-1970. He applied for two days leave on 18-5-1970 which was granted. Then he sought the extension of his sickness leave supported by medical certificate up to June, 1970. That was allowed. But in the meantime on 3-6-1970 the company asked the petitioner to get himself medically examined at the expense of the Company by a doctor selected by the Company. The petitioner protested against this procedure and asked the company as to why the medical certificate submitted by him was unacceptable. The Branch Manager at Lucknow then personally went to the house of the petitioner along with Dr. A. Prakash to have" the petitioner medically examined but the latter refused to submit himself to medical examination by that doctor. The company then asked the petitioner by letter dated 11-6-1970 that he should either join at Ahamdabad by 22-6- 1970 or intimate within 48 hours his willingness to get himself medically examined by the doctor selected by the Company and failure to do so would render him liable for disciplinary action. On 17-6-1970 the petitioner again applied for extension of his medical leave and he also wrote to the company that the medical certificate submitted by him should be accepted. The company informed the petitioner that it had a right to get the medical examination done by a doctor of its choice, but as a special case the medioal certificate submitted by him was accepted and he was granted leave on medical ground. He was, however, told that the order transferring him to Ahamdabad remained operative and he should join at Ahamdabad on 17-7-1970. The petitioner replied that the order of transfer should be cancelled. The Company did not accede to that request and insisted that the petitioner should join at Ahamdabad on 31-7-1970. The petitioner again wrote a letter on 28-7-1970 intimating that either the comparv should say that his medical certificate was incorrect or show him the rule under which it can compel him to be examined by a doctor of the Company. The Company replied on 19-8- 1970 by letter asking the petitioner to indicate the date on which he would join his duties at Ahmadabad Branch. It was also pointed out to the petitioner that if he failed to do so, the company would have no other option but to presume that he had become unfit to perform his duties on ground of continued ill-health and the company would take action accordingly. The petitioner immediately sent his reply dated 31-8-1970 refuting the suggestion that he was unfit to perform his duties on acccount of continued ill-health. He had applied for leave up to 8-9-1970 which was granted to him. Then he again applied for extension for six weeks from 9-9-1970 no order on this application was passed and the petitioner was discharged from service on 29- 9-1970.
(2.) The petitioner then raised an Industrial dispute which was referred for adjudication to Labour Court under section 10 (1) (c) of the Industrial Disputes Act, 1947. The petitioner as also respondent No. 2 filed under their written statements before the Labour Court and adduced evidence in support of their respective contentions. The petitioner had contended, inter alia, before the Labour Court that the order of transfer was mala fide, the order of discharge was also mala fide and that he was not liable to be discharged under S. 19(1) of the U. P. Dookan Aur Vanijya Adhisthan Adhiniyam 1962. The Labour Court found no merits in the plea of the petitioner that the order of transfer as also the order of discharge were mala fide. It also held that the illness of the petitioner for 135 days could very well be regarded as continued ill-health. It further found that in the said period of 135 days the petitioner was unable to perform his duties and he was unable to do so on account of continued ill-health. Therefore, section 19 (1) (b) of the Act was clearly aplicable and his services could be terminated. The order terminating the employment of the petitioner was, therefore, held to be justified and legal by the Labour Court and it was held that the petitioner was not entitled to any relief. The petitioner has impugned the said award of the Labour Court dated 7-6-1974 by this petition filed under Article 226 of the Constitution. The petition has been opposed by respondent No. 2 which has filed its counter-affidavit and a rejoinder affidavit in reply thereto has also been filed by the petitioner.
(3.) The learned counsel for the petitioner submitted that on the facts of the case, the provisions of S. 19 (1) of the aforesaid Act were not at all attracted "and the petitioner could not, therefore, be discharged from service. The submission was that the Labour Court did not consider as to what was the nature of sickness of the petitioner and as to whether his continued ill health had rendered him unfit for the job for which he was employed. The learned counsel for respondent No. 2 submitted that the Labour Court has found as a fact that the petitioner had remained ill for a long period of 135 days and this illness was regarded as continued ill health. It was also pointed by the learned counsel for respondent No. 2 that the Labour Court has further found as a fact that during the said period of 135 days, I. N. Saxena was incapable to perform his duties and as he was unable to do so on account of continued ill health, therefore, S. 19 (1) of the Act was clearly applicable. Further contention of respondent No. 2 was that the said findings recorded by the Labour Court are findings of fact; hence they cannot be interfered with. They have become conclusive. These findings of fact are neither perverse nor are such which can be said to be based on no evidence nor are these findings such which no reasonable person can arrive at nor are these findings illegal or were recorded by a Court having no jurisdiction to do so. Hence while exercising its jurisdiction under Article 226 of the Constitution, this court cannot interfere with those findings of fact. In support of his contention the learned counsel relied on Kaushalya Devi V/s. Bachittar Singh, 1960 AIR(SC) 1168) wherein it was held that a finding based on no evidence is an error of law apparent on the record but errors in appreciation of documentary evidence or errors in drawing inference can be corrected only by a Court sitting as a court of appeal and not under Article 226 of the Constitution. The submission was that as this Court is not sitting in appeal over the award made by the Labour Court, the findings aforesaid cannot be disturbed in a petition under Article 226 of the Constitution because they are based on evidence and this court cannot substitute its own findings on re-appreciation of the evidence.;