C. Shivappa, J.
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 11.8.1978, 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., 27.2.1982. The Management/ Respondent No. 1 herein, assailed the order in W.P. No. 8275 of 1985, dated 6.11.1995 before this Court. The learned single Judge allowed the writ petition and set aside the order of the Tribunal dated 6.11.1995. 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 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. M-1, dated 8.6.1978. 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 the 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 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.
4. The questions for consideration in this appeal are: (i) whether the disease alleged to have been suffered by the workman comes within the ambit of 'defect' as contemplated under the settlement, consequently making him unfit for work and disentitling him for absorption? (ii) whether the workman is entitled to produce certificates in order to show that the disease suffered by him is non-communicable and non-infectious, which does not affect his right for absorption? and (iii) whether the learned single Judge is justified in substituting his opinion to a finding of fact recorded by a 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 the documentary evidence relied upon by the workman?
5. For proper appreciation of the questions involved, it is appropriate to notice that as many as 395 similarly situated workers who were covered under the settlement had been absorbed and only 44 persons had been rejected absorption on the basis of the opinion of the Company's Medical Officer. The 44 aggrieved workmen appeared before the District Medical Officer and exercised their right provided under the settlement. Out of 44 persons, only 8 were found unfit and the rest of them were absorbed. Among them, S. Subramani was one who was employed for nine long years.
6. Under Clause 3 of the settlement, dated 8.7.1978 entered into under Section 18 (1) of the Industrial Disputes Act, the workman is entitled for absorption on the permanent rolls of India Cements Limited with effect from 1.4.1978 with continuity of service as per the entries in the seniority list, subject to their being found by the Company's Medical Officer to be suffering from the following defects: (a) physical infirmity; (b) cancer; (c) tuberculosis; (d) leprosy; and (e) heart ailment, and subject to further right of appeal to the District Medical Officer, Salem, by the concerned workman.
7. Under the said Clause (3) of the settlement, only when an employee is suffering from the defect, then alone he is not entitled for absorption. To appreciate this clause, it is necessary to advert to what constitutes 'defect'. In Tate v. Latham and Son (1897) 1 Q.B, 502 me meaning of the word 'defect' is explained as 'a lack or absence of something essential to completeness'. In Prem's Judicial Dictionary, Vol. I, at page 483, the word 'defect' is explained as 'a flaw or a fault or an imperfection'; but whether or not includes an omission must necessarily depend upon the context in which the word is used In Madras Medical Code, Vol-I (5th Edition 1959) at page Nos. 381 and 382, it is enumerated that if a Government servant shows signs or symptoms of leprosy, he should not for this reason alone be considered to be disqualified for public service and be invalided at once. He should be granted all the leave to his credit to enable him to undergo up-to-date treatment and should be invalided from service only if and after undergoing treatment for the full period of leave to his credit, if he is still certified, to be infective. Para 536 (2) of the Code reads thus:
A Government servant having neural lesions bacteriologically negative for M. Leprae may be permitted to continue to work provided that (a) he undergoes up-to-date treatment regularly by any Medical Practitioner registered under the Madras Medical Registration Act, 1914, or in a recognized Leprosy treatment centre for a period of not less than six months till he obtains a discharge certificate in accordance with sub-paragraph (4) (b) below: (b) he produces a certificate quarterly from any of the Medical Officers in charge of the clinics referred to below to the head of his office to the effect that his lesions are still non-infective and (c) he has no deformities or contracture which are likely to be a disability in service.
Therefore, in order to come to the conclusion that the defect had existed, it is necessary to prove with reference to material evidence worthy or competent of acceptance. When there is no evidence in the case that the ailment found is a defect of that nature which essentially makes the workman disabled to do his duty, then it cannot be a defect, in the sense rendering him completely disabled to do his duty. Only such state of affair which render the workman completely disabled to do his duty to be looked into.
8. The Medical certificates, in the instant case, produced by the Worker were issued after conducting all the requisite tests, that too, by competent Government Doctors. The certificates state that the patch found at one point of time was non-infectious. Since the worker did not suffer an infectious type of leprosy, there was no risk to the fellow worker or public, having regard to the nature of his work. The standard of good health for a Government servant who comes into contact with the public could in no way be different from the standard of good health required for a non-Government servant who also has to have dealings with the public. To all intents and purposes, the issuance of the certificate by Doctors specialised in the respective fields, who treated and certified that it was not a contagious or infectious disease and does not prevent him from doing his work, in such an event, to call it as a 'defect' and denying absorption really affects his right to livelihood. Leprosy, normally affects the nerves causing irregularly shaped fingers or legs, which is infective. But, in the instant case, no such deformities are found. The defect if at all to be construed as contemplated under the settlement, it has to be looked into in the context of the nature of work for which he was employed and whether or not because of that ailment, the worker is permanently disabled to do his work. In that sense, ''defect' means 'fall short' or 'become deficient' as explained in Shorter Oxford English Dictionary Vol.1 at page 469. Having regard to his age, in view of the Doctor's opinion that it may come even due to stress and strain and even be cured without medicine, that is, gradually it may disappear and that too, having regard to the place where it was found, viz., on the hip region, if looked at from this background and circumstances, it cannot be said that the patch found as alleged disentitles the workman to claim absorption. It is hot a defect in the true sense, i.e., the import attached to the word 'defect' medically.
9. We are of the view that the ailment suffered by the employee cannot be termed as 'defect' rendering him unfit for absorption under Clause 3 of the settlement dated 8.7.1978. The intention of the parties to the settlement has to be gathered by the words used by the parties to the settlement. In doing so, the parties must be presumed to have used the word in its strict and academical sense. Having regard to the context in which it was used, even if there is any ambiguity, it is the duty of the Court to look at all parts of the settlement to ascertain what was really intended by the parties. In this context, the word 'defect' in the settlement has to be construed not technically, but liberaly so as to advance the right to livelihood. When an employee was disabled by a disease to perform the duties of his post, the employer should make all attempts to see the final result and make allowances to get treatment since it promotes reasonableness in employment, otherwise, it amounts to taking away the employment construing in a technical sense in a manner not reasonable, fair and just.
10. The expression 'life' has a much wider meaning. If a strict meaning is given it is likely to adversely affect the livelihood of a person which makes life miserable.; In Olga Tellis and others. Bombay Municipal Corporation and others : AIR1986SC180 the Supreme Court has observed that
the sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right of livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means, of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaning-fulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the, right to life. Deprive a person of his right to livelihood and he shall have deprived him of his life.
11. In Narendra Kumar Chandla v. State of Haryana : [1994]1SCR657 the Apex Court has held that
Article 21 protects the right to livelihoodas an integral face of right of life. When an employee is afflicted with unfortunate disease due to which, when he is unable to perform the duties of the posts he was holding, the employer must make every endeayour to adjust him a post in which the employee would be suitable to discharge the duties....
In the instant case, the employee was found, suitable not having any communicable or infectious disease affecting the discharge of his duties. In such a situation, it is not proper to construe the alleged disease as a disability for absorption coming within the ambit of 'defect' as contemplated under the settlement.
12. Since the disqualification on medical ground is a ground, for non-absorption of the workman, it is appropriate to consider whether the workman was, found medically unfit to do the work. The settlement marked as Ex.M-1 contemplates a right of appeal against the Company's Doctors to the District Medical Officer, Salem by the concerned workman. Therefore, the certificate issued by the Company Doctor, M.W-1, even under the terms of the settlement is not final. The District Medical Officer, who issued certificate, Ex.M-5 has made it clear that he could not discover that the workman had, any communicable disease or, that he was constitutionally affected or had any bacilli infirmity. In this context, it is pertinent to point out that the Company's Doctor himself, in the certificate Ex., M-2. dated 27.114978, has made it clear that everything was normal with this workman, excepting the leprosy reflected in a small patch on his left buttock region. In Ex.W-14, dated 21.12.1978, which was issued a few days later to Ex.M-5 by the skin specialist of the Government headquarters Hospital, Salem, it is certified that the disease was non-infectious and the patient can do regular duties and he was fit for any type of work. WW.1, the District Leprosy Officer, who was the District Medical Officer at that relevant time had given a certificate Ex. W-1 stating that the concerned workman was not having any skin disease and he was fit for duty. Even the Assistant Civil Surgeon, Department of Dermatology and Leprosy, Government Stanley Hospital, Madras, who was competent to issue certificate, had issued certificate, viz., Ex.W-16, dated 5.7.1979 stating that it was a non-infective form of leprosy and the concerned workman was fit for duty. The District Medical Officer, who gave Ex.M-5 certificate, made it clear that the disease mentioned in Ex.M-5 depending upon the resistance power of the body of the patient and depending upon the age of the individual may get automatically cured and he could not find any contraction in the fingers or other limbs in the patient S. Subramani. W.W.1 who is an expert and competent to deal with skin diseases, supported the case of the workman. The workman examined himself as W.W.2 and made it clear that he got certificates from specialists and those certificates are Exs; W-14 and W-16. Ex.W-16 is dated 1.7.1979. This cannot be said to be very far off from the date of Ex.M-5, the certificate dated 27.11.1978. The certificate issued by the competent skin specialist confirmed that the workman was fit to rejoin duty. When the Doctor attached to the Company was not a skin specialist in the field of leprosy even according to his own evidence, the workman cannot be prevented from producing certificates by competent doctors in the field to establish that he did not suffer from any defect of the nature resulting in deficiency to prevent absorption. When it is a matter of survival of the workman, rejection of valuable certificates of fitness given by competent medical men who are specialists in that field; that too, when Exs.W-14 and W-16 which are in close proximity to Ex.M-5 given by a General Medical Practitioner, cannot be rejected on the ground that the workman is not entitled to produce the certificates. In fact, the management could have insisted that he should produce the certificate from a competent medical officer periodically once in three months and to undergo certain tests, that too, from competent specialists in charge of leprosy Department of the Government Hospital, holding the rank of a Civil Surgeon. These certificates are issued by the Doctors as contemplated under the Madras Medical Code, which has issued authoritative instructions to the Government Doctors for the issue of certificate after several tests of the patient suffering from leprosy to come to the conclusion whether the disease is non-infective of riot. The production of such certificates cannot be prevented or faulted. Prescribing physical disability under the heading 'defect' is obviously to prevent the worker who is not in good physical condition to discharge his work. The fitness to discharge the Work was also spoken by the doctor specifically stating that the ailment does not come in his way of doing his duty. The certificates since state the stage of ailment and about its non-infectiviry implies that the ailment has already been 'cured' and riot 'yet to cure' which is a further stage in the curative treatment of leprosy. The Madras Medical Code provides several guidance in such cases even where the employee is not a Government Servant. This is as it ought to be because the standard of good health for a Government servant who comes into contact with the public could in no way be different from the standard of good health required for a non-Government servant who also has to have dealings with the public. When the certificates are produced within a reasonable proximity of time, that too, by competent Government doctors, having conducted the tests as prescribed in the Medical Code, it cannot be that the workman is not entitled to produce the certificates in order to show that the disease suffered by hint is non-communicable or non-infectious and does not affect his right for absorption.
13. The learned Counsel for the appellant relied on a decision in Spencer & Co. Ltd. v. Industrial Tribunal : (1965)IILLJ1Kant in support of his contention. But that was a case where the findings of the Company Doctor as regards the physical condition of the concerned employee at the relevant time, remained unaffected by the evidence of the Doctor who subsequently examined the employee (after three months), who gave evidence before the Industrial Tribunal on behalf of the concerned employee. In that case, there was consistency by the competent Doctors about the ailment which remained the same, but it is not so in the instant case and has no application to the facts and circumstances of this case.
14. As held in B. C. Chaturvedi v. Union of India : (1996)ILLJ1231SC judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. In Bhagat Ram v. State of Himachal Pradesh : (1983)IILLJ1SC the Apex Court has held where a finding of the authority is utterly perverse, the High Court can interfere with the same and not otherwise, following the earlier same view of the Apex Court in Syed Yakoob v. K.S. Radhakrishnan : [1964]5SCR64 and Swam Singh v. State of Punjab : AIR1976SC232 .
15. The order of the Tribunal does not disclose any error apparent on the face of the proceeding inasmuch as reception of any inadmissible evidence or omission to consider relevant material. The learned single Judge has exercised the powers of an Appellate Court and set aside the order holding the decision of the Tribunal as erroneous. This obviously cannot be done. The position might have been different if the Tribunal had omitted to decide without taking into consideration the relevant material which it was bound to decide. In such cases, certiorari is available to quash the decision passed with jurisdiction by an inferior Tribunal on the ground that such decision is erroneous.
16. The learned single Judge, in the impugned order has observed that at the relevant time, admittedly, the concerned workman was unfit for the job. There is no reference as to the nature of admission, if so, by whom and when. It had been the contention of the appellant right through that the concerned workman was fit for work. In the impugned orders, there is no reference to Clause 3 of the settlement, dated 8.7.1978 to mean only leprosy of a kind that is communicable which will make the workman unfit for work and a 'defect' within the meaning of the settlement. The learned Judge in the impugned order has also not adverted to the settlement, Ex.M-1, providing for absorption. There is not finding by the learned Judge, how the finding of the Tribunal is perverse or suffers from error apparent on the face of the record and called for interference under Article 226 of the Constitution of India. When this is not the situation in our opinion, the judgment of the learned single Judge is plainly unsustainable.
17. Though this is a case of non-absorption, while making reference of the dispute for adjudication, in the reference made by the Government it was termed as 'termination' of service. This mistake was not of substance but of form, and would not affect the validity of the notification referring the Industrial Dispute for adjudication, So long the demand of the employee is indicated, the slight difference in the nature of claim worded in the actual reference made by the Government would not materially affect the validity of the reference. At the most, it was merely a technical or formal defect not affecting the competence or the jurisdiction of the Labour Court, as held in Bharat Textile Mills Ltd. v. State of Punjab 57 F.J.R. 281. The contention of the management that the Tribunal should have held that there was no scope for terminating the services of a person who do not become a workman or an employee of an industrial establishment, does not stand to reason.
18. Thus we answer all the questions affirmatively in favour of the workman, negativing the contentions urged on behalf of the Management as untenable in law or on facts.
19. Before parting with this case, having regard to the nature of the disease found on the worker, it is appropriate to mention that the doctor who issued Ex.M-5 certificate on 27.11.1978 was of the opinion that it may come even due to stress and strain. In the instant case, the worker is out of employment since almost 20 years. Having been deprived of his right of absorption unjustly, it might have caused tremendous strain and stress. In such a situation and even otherwise, normally, health being not static, at this passage of time we cannot visualise whether there is any recurrence of the same disease or otherwise about his health condition. What we have decided in this proceeding is whether the workman was disabled for absorption within the meaning of 'defect' as contemplated under the settlement as on the relevant period of non-absorption. But, having regard to the nature of the disease alleged, in view of the opinion of the District Medical Officer and keeping in view of the fact that the standard of good health required is also in the interest of the public and fellow workers, we feel not to prevent Respondent No. 1 to consider the present health condition of the worker Shri S. Subramani. Suppose if the workman suffers from recurrence of the disease in a severe degree, being infectious or contagious, not subjecting his health condition for further examination amounts to thrusting a worker on the management though as on the date of absorption he was suffering from the defect-medically unfit. But, we will make it clear, in view of our finding, that on the date when he was not absorbed, when he was medically fit, even subsequent disability may not disentitle him for the full monetary benefits till the point of disability, if any, subject to proof. That is a separate cause of action. However, we are of the view that subject to further examination by the competent skin specialist, if he is found fit, he shall be absorbed.
20. In the result, the following order is passed:
(a) The appeal succeeds and the judgment of the learned single Judge dated 6.11.1995 hi W.P. No. 8275 of 1985 is set aside; (b) The order of the Industrial Tribunal in I.D. No. 16 of 1982, dated 29.3.1985 is affirmed with a modification regarding back wages, limiting it to 50% (instead of full back Wages); while computing the amount of 50% towards back wages, the amount already been paid during the pendency of the proceedings to be taken into account; (c) having regard to the nature of the disease alleged, the management to consider the present health condition of the worker as to whether it amounts to 'defect' within the meaning of the settlement; and (d) In the circumstances of the case we think it appropriate to award a sum of Rs. 3,000 (Rupees Three Thousand only) as costs, payable by Respondent No. 1 to the appellant. Consequently, the connected C.M.Ps. are closed.