1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.70 OF 2008 IN WRIT PETITION NO.7858 OF 2007 Nhava Sheva Port and General Workers Union ...... Appellant. V/s Konkan Railway Corporation Ltd and another ....... Respondents. ------ Mr. Jai Prakash Sawant for the appellant. ------ CORAM: SWATANTER KUMAR, C.J. AND V.M.KANADE, J. DATE : 2ND JUNE, 2008. P.C.: 1. We have heard the learned Counsel appearing on behalf of the appellant. 2. In the present appeal, the appellant challenges the correctness of the order passed by the learned Single Judge 2 dated 18/12/2007. The challenge primarily is based upon the contention that the finding recorded by the learned Single Judge is erroneous and is not based on evidence and, in fact, is contrary to the evidence on record. 3. We are unable to find any merit in this appeal. The pay- scale of the appellant was reduced from Rs 950-1500 to Rs 750-940 with effect from 01/07/1996. The Union raised an industrial dispute which was referred to the court of competent jurisdiction under section 10(1) of the Industrial Disputes Act, 1947. Vide its award dated 04/01/2007, the Central Government Industrial Tribunal declined the reference and the claim of the appellant was not accepted. This was challenged by the appellant by filing Civil Writ Petition No.7858 of 2007 before this Court where the learned Single Judge, after discussing the merits of the case in detail, noticed in para 4 as under:- "4. .....................................The Tribunal, therefore, accepted the said report as well as the unconditional acceptance of appointment in a lower scale. The Union for the first time raised an objection on 18/07/2001 i.e. almost after five years from the date of rehabilitation. The Tribunal noted that it was a case where the workman 3 himself had accepted voluntarily the lower post and he had no right to allege that the action of the employer as arbitrary or illegal. Had there been no acceptance in writing by the workman for the post of lower pay scale, the situation would have been otherwise and he would not have slept over for a long period of five years, if the action of the management was arbitrary or illegal. The Industrial Tribunal, therefore, found that the demand made by the Union was devoid of merits and there were no procedural infirmities in the rehabilitation of the workman when he was found to be medically unfit for the post of driver and while he was sought to be rehabilitated." 4. The correctness of the above finding is challenged before us on the ground that neither the medical report nor the notice of change was given to the appellant. There is no merit in this contention. A Medical Certificate was issued by the Medical Officer after examining the appellant on 27/6/1996, declaring the appellant unfit. According to the appellant, the Medical Officer erred in examining him for fitness for the post of Gangman and not Driver, the post on 4 which he was working. There is no evidence before us which could show that the appellant was fit for the post of Driver. This is primarily a matter of appreciation of evidence. The evidence has been appreciated by the Industrial Court as well as the learned Single Judge. We do not find that the findings so recorded are erroneous so as to be interfered by us in the present appeal. 5. Appeal is dismissed. 6. The learned Counsel for the appellant is at liberty to take such steps as may be permissible to him in accordance with law. CHIEF JUSTICE V.M. KANADE, J.