JUDGMENT : 1. This writ petition is under Article 226 of the Constitution of India wherein award dated 20.01.2015 passed in reference No.53 of 2004 has been answered in favour of the respondent-workman directing the management to take him into job after observing all formalities within a month after publishing the award in the Gazette failing which action may be initiated. 2. The said award has been assailed by the management on the following grounds :- (i) the award is perverse since the contention raised by the management in the written statement has not been considered. (ii) the employee in whose place the workman is seeking appointment on the ground of said medical unfitness, was terminated from service way back on 12.07.1990 and on attaining the normal age of superannuation, he retired on 30.09.2001, this aspect has specifically been pleaded in the written statement but no such consideration has been made in the award, therefore, the findings is perverse, hence not sustainable. 3. Learned counsel for the workman has submitted that there is no infirmity in the award rather the Tribunal after taking into consideration the entire material facts has answered the reference which suffers from no illegality. 4. It has been submitted that the management has not filed any document nor adduced any evidence to prove the maintainability of the reference which has been answered by taking into consideration the fact that the workman fell ill and declared unfit and was asked to make nomination in favour of the dependent but after due application made in this regard, same has been refused. 4. Having heard the learned counsel for the parties and on appreciation of the rival submission, before going to the legality and propriety of the findings of the Industrial Tribunal it would be relevant to refer to the terms of the reference which speaks as follows: “Whether the action of the management of Lodna Coke Plant in not providing employment to Shri Raj Kumar Paswan, in place of his father Shri Sarjoo, who was medically declared unfit is justified? If not to what relief the said dependant of the workman entitled?” 5. If not to what relief the said dependant of the workman entitled?” 5. The said reference has been made when the respondent workman has raised an issue before the management to provide an appointment in place of his father who has been declared to be medically unfit, the same having been referred before the conciliator in view of the provisions of Section 12 of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act, 1947), conciliation having failed, the failure report has been submitted in view of the provisions of Section 12 (4) of the Act, 1947 and the appropriate Government after considering the failure report has referred it before the Industrial Tribunal by making the aforesaid reference for its answer. 6. The Tribunal has issued notice upon the management, in pursuance thereto, the management has appeared and filed written statement wherein stand has been taken that the father of the respondent workman namely Sarjoo No.1 was an employee of Lodna Coke Plant as wagon loader and as per his service, his date of birth was 30.09.1941 as per which he was to retire from his service on 30.09.2001 but was declared medically unfit and due to unfitness, he was terminated from service vide order dated 12.07.1990. 7. It has been submitted therein that the National Coal Wage Agreement IV being a tripartite agreement provides a provision for submission of application for employment of one eligible dependent if the employee has been found to be medically unfit, the said application was submitted by the respondent workman after lapse of 3 years along with a medical certificate showing therein that the workman was ill from 15.11.1990 to 05.02.1993. On scrutiny he was directed to submit an affidavit of his wife giving her consent in favour of Sri Raj Kumar Paswan, his dependent son but he has not responded to above direction and thereafter, the management has received a letter in the month of October, 1995 from Smt Kunti Devi W/o Sarjoo No.1 wherein it was stated that someone is trying to get employment in place of her husband since she has only two sons namely Vijay Kumar Paswan and Sanjit Kumar Paswan and thereafter the wife has never appeared before the management personally. Hence in absence of any genuine document in order to prove that Sri Raj Kumar Paswan is the genuine candidate to provide appointment on that ground. 8. Hence in absence of any genuine document in order to prove that Sri Raj Kumar Paswan is the genuine candidate to provide appointment on that ground. 8. The management has raised the issue first pertaining to the medical unfitness of Sarjoo No.1 and on that ground he was terminated on 12.07.1990 but the question herein is that when the said order of termination on 12.07.1990 has not been questioned by the workman during his lifetime, no terms and conditions of National Coal Wage Agreement cannot be said to be applicable basis upon which the dispute has been raised to provide appointment. 9. Although the reference has been made to answer the medical unfitness of the workman but when the issue of termination of the said workman has been raised by the Tribunal, the same ought to have been taken into consideration by Tribunal before answering the reference which is particularly for the reason that if a workman has been terminated from service he cannot be provided with an appointment to be given in favour of his dependent. Since after termination or dismissal, no right is accrued to the dismissed or terminated employee to get any advantage of the service benefit. This aspect have not been considered by the Tribunal therefore, contention which has been raised by the management that the finding of the Tribunal is perverse cannot be said to have with no basis. 10. Although it is the settled position of law that the High Court sitting under Article 226 of the Constitution of India is not supposed to sit as an Appellate Court above the finding given by the Tribunal while answering the reference but the same can be exercised in some exceptions i.e. if the award is perverse that is without taking into consideration the material brought before it or the award is without jurisdiction, reference in this regard be made to the judgment rendered in the case of Syed Yakoob Vrs.K.S. Radhakrishnan and Ors., reported in AIR 1964 SC 477 , Swaran Singh and Anr. Vs. State of Punjab and Ors., reported in (1976)2 SCC 868 , Heinz India Private Limited and Ors. Vs. State of Uttar Pradesh and Ors., reported in (2012) 5 SCC 443 and M/s. Pepsico India Holding Pvt. Ltd. Vs. Krishna Kant Pandey, reported in (2015) 4 SCC 270 . 11. Vs. State of Punjab and Ors., reported in (1976)2 SCC 868 , Heinz India Private Limited and Ors. Vs. State of Uttar Pradesh and Ors., reported in (2012) 5 SCC 443 and M/s. Pepsico India Holding Pvt. Ltd. Vs. Krishna Kant Pandey, reported in (2015) 4 SCC 270 . 11. This Court after going across the settled position of law as indicated hereinabove and considering the fact that on the face of the finding of the Tribunal if compared with the written statement which has been brought on record by way of Annexure-2 to the writ petition, there is no doubt in coming to the finding that the point which has been raised by the management has not been taken into consideration, therefore, the findings of the Tribunal is perverse and if the award or any order has been passed without considering the material brought before it, the findings cannot be said to be perfect in the eye of law. 12. In view thereof, this award since is coming under the fold of the exception as laid down in the judgment aforesaid, therefore in exercise of power conferred under Article 226 of the Constitution of India, this writ petition deserves to be allowed by making interference therein in the award, hence the award is held to be not proper and sustainable, accordingly, the same is quashed. 13. This Court has also considered for remitting the matter before the Tribunal for afresh adjudication but the same is not being done for the reasons that the order of termination passed way back on 12.07.1990 has not been assailed by the employee and as such in course of termination no order can be passed providing appointment on the ground of medical unfitness of the employee therefore the matter if remitted before the Tribunal will come out with no result. 14. The writ petition stands allowed.