JUDGMENT :- 1. The petitioner/employer being aggrieved and affected by the Judgment and Order dated 30th March, 2005 passed by the Presiding Officer, 2nd Labour Court, Mumbai, thereby the respondent workman’s reference has been allowed and the petitioner has been directed to reinstate the respondent workman to his original post with full back wages and continuity in service. Therefore, the present petition. 2. The petitioner is a Government Company within the meaning of Section 617 of the Companies Act, 1956 (for short, "the Companies Act"). The petitioner has a sports complex at its Township and to promote and encourage sports activities use to appoint Sportsman/ Trainee on consolidated remuneration. 3. On 01/04/1994, the petitioner appointed the respondent as a "Sportsman Trainee" (Football) on a consolidated remuneration of Rs.1,500/- per month with effect from 01/04/1994 initially for two years on probation. In the year 1994 itself, the respondent lost his right side eye vision as met with an accident while playing the game. The petitioner has full knowledge of the same. The respondent was playing the football for the petitioner even thereafter. The company team won the various games because of able and effective contribution given by the respondent as a player till 1998. The petitioner has continued and extended the appointment from time to time till the date of termination. 4. In the year 1999, the petitioner decided to regularize the Sportsman Trainee. A Committee was constituted for the assessment of the candidates. 5. On 01/06/1999, 5 Sportsmen Trainees including the respondent were assessed by the said committee. The said Committee after assessing the playing performance of the respondent had given findings that the respondent has the potential to perform for another five years and recommended to regularize the Respondent in the Company’s Grade-II scale based on his game and educational qualification. By this time the respondent has completed more than two years of probation and entitled to claim deemed permanancy. 6. On 17/07/2000, the respondent issued a letter of offer wherein offered employment w.e.f. 1st April, 2000, for the post of Sportsman (Football) on the Basic Pay of Rs. 2,311/- in the scale of Rs.2311-55-2806-60-3406 (Pre-revised). 7. In the said offer letter dated 17/07/2000 one of the condition in paragraph 3 was as follows:- "3. PHYSICAL FITNESS:- . 6. On 17/07/2000, the respondent issued a letter of offer wherein offered employment w.e.f. 1st April, 2000, for the post of Sportsman (Football) on the Basic Pay of Rs. 2,311/- in the scale of Rs.2311-55-2806-60-3406 (Pre-revised). 7. In the said offer letter dated 17/07/2000 one of the condition in paragraph 3 was as follows:- "3. PHYSICAL FITNESS:- . Your appointment is subject to your being found physically fit by our Chief Medical Officer, whose Office is at RCF Hospital which is situated in our Jawaharnagar Township near St. Sebastian School at Chembur. You will have to produce a Certificate of Physical Fitness from Chief Medical Officer (prescribed form attached) at the time of joining". As alleged the aforesaid condition is as per the Companies Recruitment Policy and the Government Guide-lines. There is no provision of employment in a permanent cadre, without medical fitness and same cannot be waived by the Petitioner. The respondent had accepted the offer under the terms and conditions mentioned in the said offer letter dated 17th July, 2000 affixing his signature on the same. 8. In accordance with clause 3 of the said offer, the respondent reported for medical examination before Chief Medical Officer at RCF Hospital. The Chief Medical Officer of the petitioner examined the respondent and gave a finding that "due to loss of right eye he is not a fit candidate to be employed as a foot ball player with the petitioner. The respondent was referred to Medical Board of evaluation and for fitness for employment. 9. On 13/09/2000, the Medical Board of the petitioner consisted of one Deputy General Manager and one Chief Medical Officer, a certifying Surgeon under Factories Act, five outside experts including Head of the Ophthalmologist, Medicine and Chest Medicine Departments of Sion Hospital. The Medical Board thoroughly examined the respondent and on the basis of different and varied test reports found that the respondent is unfit for the said appointment. On the basis of the report of the Medical Board, the Chief Medical Officer of the petitioners issued a Medical Certificate and certified as under:- . "I do consider this a disqualification for employment in the Rashtriya Chemicals & Fertilizers Ltd." 10. On 15/11/2000, in accordance with the Medical Certificate, the petitioner by its letter informed the respondent that the respondent could not be considered for employment as he was found medically unfit. 11. "I do consider this a disqualification for employment in the Rashtriya Chemicals & Fertilizers Ltd." 10. On 15/11/2000, in accordance with the Medical Certificate, the petitioner by its letter informed the respondent that the respondent could not be considered for employment as he was found medically unfit. 11. The respondent raised a dispute challenging the communication dated 15/11/2000 of the petitioners refusing to regularize the respondent in the services of the petitioner before the Deputy Labour Commissioner. 12. The Deputy Labour Commissioner issued notice to both the parties. After hearing the parties and after the report of the Conciliation Officer dated 12/04/2001, the Deputy Labour Commissioner referred the dispute for adjudication under Section 10(1)(c) read with Sub-Section (5) of Section 12 of the Industrial Disputes Act (for short, "I.D.Act"). 13. The Respondent filed a statement of claim before the Labour Court inter-alia pleading that after his initial appointment on 01/04/1994 as a sports trainee the respondent was deemed to be a permanent employee after expiry of the training period on 31/03/1996. The respondent pleaded that the petitioner’s decision discontinuing the respondent from the services was illegal. 14. In reply to the statement of claim of the respondent, the petitioners filed a written statement contending that the respondents claim was not maintainable. The petitioner stated the facts in detail pointing out that the respondent was not entitled for the relief of reinstatement. 15. On 30/03/2005, the learned Presiding Officer of the 2nd Labour Court, Mumbai by an Award, 2nd Labour Court, Mumbai allowed the reference and directed to reinstate the respondent to his original post with full back wages and continuity in service. 16. Being aggrieved by the Award dated 30/03/2005, in reference (IDA) No. 656 of 2001 passed by the learned Presiding Officer in reference (IDA) No. 656 of 2001 the petitioner has filed the present petition. 17. By the impugned award, the learned Presiding Officer of Labour Court, held that the second party workman proved that he was illegally terminated; the first party failed to prove that the decision is legal and proper. In the result, respondent party workman has been granted reinstatement with back wages and continuity in service and thereby reference has been allowed. 18. By the impugned award, the learned Presiding Officer of Labour Court, held that the second party workman proved that he was illegally terminated; the first party failed to prove that the decision is legal and proper. In the result, respondent party workman has been granted reinstatement with back wages and continuity in service and thereby reference has been allowed. 18. Admittedly, the respondent workman appointed by letter dated 19/04/1994 with condition that his performance will be reviewed from time to time and if he found effective in sports performance he may be considered for regularization after two years. The respondent was appointed as Sportsman Trainee (Football) on the consolidated remuneration of Rs.1,500/- per month. On 30/09/1998, the petitioner company issued another letter and extended the period up to 31/03/1999. On 01/06/1999 he was called for interview. As per the report of the Committee he was recommended for regularization. 19. As per letter dated 19/04/1994, it was specifically informed that the respondent workman might be considered for regularization after two years. It appears that the management of the petitioner company has created the posts of sportsman (Football) w.e.f. 01/04/2000 on an initial basic pay of Rs.2,311 plus usual allowances as admissible and sanctioned. The petitioner was accordingly interviewed. The condition was to produce a certificate of physical fitness from Chief Medical Officer at the time of joining. The Respondent workman accepted the condition of service and got examined by the Medical Board set up by the petitioner. By letter dated 15/11/2000, it was informed to the respondent workman that the physical fitness report is unfavourable with endorsement "Medically unfit" and expressed their inability to consider the respondent for the post of Sportsman Trainee (Football) stood discontinued with immediate effect. 20. Till the date of termination, the basic appointment was extended upto 31/03/1999 knowing fully that the respondent workman has lost his right eye sight. He had performed remarkably well even though he lost his right eye sight vision, even in the year 1994. Therefore, the merit of his game and his physical fitness was appreciated by every one as reported in daily newspapers, Mumbai. All the paper cuttings of the relevant news, appreciating the respondent’s game are produced on the record. He had performed remarkably well even though he lost his right eye sight vision, even in the year 1994. Therefore, the merit of his game and his physical fitness was appreciated by every one as reported in daily newspapers, Mumbai. All the paper cuttings of the relevant news, appreciating the respondent’s game are produced on the record. As recorded earlier, even the committee at the relevant time recommended the case of the respondent to continue for the posts, at least for the 5 years at the relevant time. The fact remains, therefore, that the petitioner company allowed the respondent because of his merit and fitness for the game though he lost his right eye sight in the year 1994, till 2000. Therefore, respondent’s disability is in no way affected his ability to play the football in any manner. The respondent was playing the football with this disability since 1994, and as reported, even better than other physically able players. 21. Admittedly, as per the first appointment letter dated 01/04/1994, the training period expired on 31/03/1996. There was no letter of extension issued by the management of the petitioner in the year 1996 or in the year 1997. By letter dated 30/09/1998, the period of respondent as a Sportsman Trainee was extended upto 31/03/1999. The result is, therefore, the respondent was continued in service since 1994. In absence of any bar he needs to be treated as a permanent and confirmed in employment as stipulated by the basic letter of appointment. 22. As per the standing order which is on records Section 10(b) define "Probationer" as under:- "Probationer":- A probationer is an employee who provisionally engaged against a permanent post and has not completed his probation period and confirmed. 23. Normally, in such cases were the Medical Board and or the Appellate Board declared that the candidate is unfit for the posts, the jurisdiction of the Tribunal or a Labour Court is very limited. There is no question to challenge and or overright the opinion of the Medical Board. The Medical certificate is necessary for appointment of public service. The Petitioner Company as per standing order needs to follow the Medical report and therefore, discontinued the service of the respondent. See (Indian Council of Agricultural Research and Anr. Vs. Smt. Shashi Gupta, 1994 (II) L.L.J. 737 (S.C.) 24). The Medical certificate is necessary for appointment of public service. The Petitioner Company as per standing order needs to follow the Medical report and therefore, discontinued the service of the respondent. See (Indian Council of Agricultural Research and Anr. Vs. Smt. Shashi Gupta, 1994 (II) L.L.J. 737 (S.C.) 24). However, in the facts and circumstances of the case, the learned Labour Court right in observing as under:- "His physical fitness and his play was appreciated by the daily newspapers of Mumbai in the year 1994-1999. All the clippings of that news are produced on record. The report of the coach is on record and actual playing for RCF for 5 years after the accident is sufficient to prove his physical fitness and it is not necessary to rely on the medical certificate. He pointed out that after completion of 2 years i.e. from 1996 he is deemed to be permanent. The first party not extended his training period. There was no any adverse remark against him. Therefore, he deems to be permanent in the service and in support of his argument he relied on the case of Dayaram Dayal Vs. State of M.P. & Ors. reported in 1997, II CLR, Page 687. The Hon’ble Apex Court held that:- "Maximum period probation- Rule 24 prescribes extension of probation by not more than 2 years after initial period of probation of two years- Appellant completed his initial period of Probation of two years and even more than two years thereafter-Later on his service was terminated as it was found that he was not fit for being confirmed- Supreme Court held that the provisions for a maximum period of probation is an indication of an intention not to treat the officer as being under probation, after the expiry of the maximum period of probation, that the officer must be deemed to have been confirmed on expiry of maximum period of probation and that as such the service of the appellant could not have terminated." 24. It is also clear from the record that till 2000, he was continued as a football trainer on probation. The right of regularisation cannot be taken away by subsequent policy decision of the petitioner based on 2000 letter of offer in question. The issue of such policy was not agitated earlier. 25. It is also clear from the record that till 2000, he was continued as a football trainer on probation. The right of regularisation cannot be taken away by subsequent policy decision of the petitioner based on 2000 letter of offer in question. The issue of such policy was not agitated earlier. 25. The respondent has laid evidence of Shri Bhaskar Maity, a coach of petitioner’s Football team to support that even after eye operation, the respondent played the Football efficiently. The petitioner had even been assigned the job by the respondent of a coach of Loreto students by letter dated 16th October, 2000. There are many international players who excelled in the field of sports with one eye like Ex-India Cricket captain Mr. Mansur Ali Khan Pataudi and Colin Milburn (Exhibits "C", "D" and "F" to the affidavit in reply dated 28th June, 2006). 26. In the facts and circumstances and as discussed above, the Labour Court, therefore, right in holding that by implication the respondent workman deems to be permanent employee of the first party. Therefore, the subsequent policy, the consent as given and the medical reports are insufficient to discard the case of the respondent. The respondent workman at the relevant time proved his capacity to play the game. The lost of one eye sight vision, in noway affected the game of Football of the respondent. This is not infirmity or disability to play Football in the present case at least. 27. In view of this, once it is held that the termination is illegal, the respondent is entitled for the relief as sought. Considering the facts and circumstance and as the respondent was getting very less lumpsum salary, I am not inclined to interfere in the order passed by the Presiding Officer, Labour Court even with regard to the payment of back wages during this period. 28. In view of this, the rival contentions based on the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the submissions are not dealt with, as not necessary and even otherwise those submissions were not raised earlier before the Labour Court. AIR 1972, S.C. 1626 (Avery India Ltd. Vs. 2nd Industrial Tribunal, West Bengal) and 1980 (2) S.C.C. 292 (Uttar Chand Vs. State of Maharashtra) 29. Taking all this into account, the present petition is dismissed with no order as to costs.