DECISION ' This appeal has been filed against the order of the Labour Court ordering re-instatement of the respondent on an application made under section 25-A of 1. R.
0. The respondent was in the permanent employment of the appellant. His service was terminated on 15-1-1976 on the ground that he had become old and was not fit to perform his duties. He approached the Labour Court and the re-instatement was ordered by holding that the respondent was retired by way of victimization. The appellant filed an appeal against that order and it was dismissed by me. I had, however, ordered that it was open to the appellant to get the respondent medically examined in order to find out whether he was medically fit or unfit to perform his duties.
2. Although the appellant was reluctant to implement the order of re-instatement but ultimately the respondent was re-Instated but his dues were not paid. He made a demand of the dues and cheque for an amount which fell short of his dues was sent to him on 1-3-1977. The respondent, however, made a demand for full payment of his dues but he was not paid and instead on 17th March, 1977, he was stopped at the gate. The respondent was asked to appear before a Medical Officer named by the Management but the respondent did not comply and, therefore, he was charge-sheeted and dismissed from service. He, therefore, approached the Labour Court after the service of grievance notice.
3. The application was opposed and it was pleaded that since the respondent failed to appear before the Medical Officer in pursuance of the decision of this Tribunal, he was charge-sheeted and after due inquiry, he was dismissed from service.
4. Evidence was tendered by both the parties. On the assessment of the evidence, the learned Presiding Officer entertained the view that the appellant was not justified in directing the respondent to appear before Dr. Aftab Ahmad Qureshi as it was not proved that he was a certified Surgeon under the Factories Act but he ought to have been referred to the Civil Surgeon who was the doctor competent to issue such a type of certificate. On the basis of this conclusion, he set aside the order of dismissal and ordered re-instatement with full back benefits.
5. Aggrieved by this the present appeal had been filed. On perusal of the record and proceedings and hearing the arguments, I am unable to support the impugned order. In my fast order, whereby the previous appeal was dismissed, I had given an option to the appellant to get the respondent medically examined in order to find out whether on account of his age ho was rendered unfit to perform his duties. It was in pursuance of this decision that the respondent was directed to appear before Dr. Aftab Ahmad Qureshi but he never appeared. The view of the learned Presiding Officer that it was not proved that Dr. Aftab Ahmad was a certified Surgeon under the Factories Act was not established deserves no consideration as no such objection was raised by the respondent. He did not make any representation to the Management to get himself examined from the Civil Surgeon. The contention of the appellant that Dr. Aftab Ahmad was the certified surgeon under the Factories Act was never controverted and, in the absence of any proof to contrary, the learned Presiding Officer was not justified proceeding to hold that he was not a certified Surgeon under the Factorie: Act. The fault lay with the respondent and he deliberately failed t appear for medical examination without any ostensible reason or justification and, therefore, the presumption arises that he was unfit to perform duties and the nature of work he was required, to do. He, therefore, cannot take exception to the action taken by the Management.
6. The view of the learned Presiding Officer that the respondent was not paid full dues in compliance of the previous order could hardly be a ground for interference with the action taken by the Management. The respondent, at the most, could institute proper proceedings for the recovery of the balance of dues but he could not avoid to appear before the Medical Officer for the determination as to his fitness as ordered by the appellant in pursuance of the decision of this Tribunal.
7. Lastly, it was urged on behalf of the respondent that the refusal to appear before the Medical Officer did not amount to misconduct and, therefore, the respondent could not be dismissed but, at the most, be could be retired. That may be so but this does not mean that re-instatement is justified. The dismissal can be converted into retirement from service. I, therefore, order that instead of dismissal the termination of the service of the respondent be treated as retirement from service on account of physically unfitness.
9. In result, the appeal is allowed and the impugned order is set aside.