ORDER
R. Gururajan, J.
1. M/s. Falcon Tyres Limited is before me challenging the order dated 31st day of March, 2003, Annexure-A passed by the Appellate Authority in Standing Order Application No. 1 of 2002 insofar as it relates to modification of the Standing Order 19(d).
2. Petitioner-management filed an application seeking for modification before the Certifying Officer. Petitioner-management wanted inclusion of Standing Order 19(d) in the matter of medical discharge. After hearing, the Certifying Officer certified the Standing Order as sought for by the management. On appeal, the Appellate Authority has chosen to modify Clause 19(d) in his order. This modification by the Appellate Authority is challenged in this petition.
3. Heard Sri S.N. Murthy, learned Senior Counsel for the management and Sri Narayanaswamy, learned Counsel for the petitioner and perused the material placed on record.
4. Sri S.N. Murthy, learned Senior Counsel for the management would say that the modification in terms of the orders requires my interference. He says that the management cannot be compelled to provide alternative suitable jobs in terms of the amendment. He finds fault with the order of the Appellate Authority.
5. Per contra Sri Narayana Swamy would defend the same and further would say that sympathy requires retention of such employees in the matter.
6. After hearing, I have carefully perused the material placed on record.
7. Original Clause 19(d) as submitted by the management reads as under:
“All employees are required to undergo medical examination at the time of recruitment and shall be referred to the District Medical Board by the Company from time to time to determine the medical fitness of the workman to carry out the job for which he is required. If the employee is found medically unfit by the District Medical Board he shall be liable to be discharged from the company’s services. If an employee is covered under ESI, his discharge will be in accordance with Regulation 98 of the ESI (General) Regulations”.
8. The same was certified by the certifying officer. In appeal, the Appellate Authority has chosen to modify reading as under:
“All employees are required to undergo medical examination at the time of recruitment and shall be referred to the Medical Board by the company from time to time to determine the medical fitness of the workman to carry out the job for which he is recruited. If an employee is found medically unfit by the Medical Board, to carry out the job for which he is recruited, then he shall be given an alternative suitable job protecting his last drawn salary”.
The Appellate Authority thereby has virtually directed the management to provide an alternative suitable job protecting his last drawn salary even in the event of the employee being found medically unfit by the Medical Board.
9. After hearing the learned Counsel, I am of the view that the modification suggested by the Appellate Authority would virtually be an amendment directing the management to create an alternative suitable job in terms of the amendment. Such a modification cannot be termed as fair or reasonable in terms of the Industrial Employment (Standing Orders) Act, 1946. It cannot be said that the management should not have any concern for medically terminated employees but to compel an employer to create a post stands on a different footing rather than suggesting to the management to consider a case sympathetically in such cases. In the circumstances, I deem it is proper to set aside the order insofar as Clause 19(d) in terms of the Appellate Authority’s order. However, I deem it is proper to include the following after Clause 19(d) in terms of the certifying officer’s order:
“Management in its discretion may consider providing alternative suitable job if available”.
This in my view would meet the ends of justice.
10. However, Sri Narayanaswamy relies on several judgments:
Consumer Education and Research Centre and Ors. v. Union of India and Ors., which is under Article 21 of the Constitution of India.
Kunal Singh v. Union of India and Anr., again a judgment granting a relief.
Narendra Kumar Chandla v. State of Haryana and Ors., is again a judgment providing a suitable post.
Anand Bihari and Ors. v. Rajasthan State Road Transport Corporation, Jaipur and Anr., is again a case arising out of retrenchment by the management.
None of these judgments arose on the industrial disputes orders. They are rendered under totally different circumstances. These judgments cannot be pressed into service for the purpose of a right of an alternative job despite medical unfitness in terms of the Standing Order. In the given circumstances, I accept the argument of Sri S.N. Murthy, learned Senior Counsel.
In the result, the following order is passed:
The writ petition is allowed. The order of the Appellate Authority insofar as Clause 19(d) is concerned is set aside. Instead in addition to the existing certified Clause 19(d), the following para is to be added:
“Management in its discretion may consider providing alternative suitable job if available”.
Ordered accordingly. No costs.