Mahabir Singh And Bhup Singh vs Air India Ltd. And Anr.
2000 Latest Caselaw 795 Del

ORDER

Madan Lokur, J.

1. Rule. The petitioner was engaged as a contract labourer to perform the work of Security Guard Sometime in July, 1996 and he has been working with the Respondents ever since then. Pursuant to the judgment of the Supreme Court in the case of Air India Statutory Corporation v. United Labour Union and Ors., the respondents decided to screen the contract labour for the purposes of regularising them.

The case of the petitioner was also screened and it was found that he did not meet the medical standards inasmuch as he was short by 3 cm. Accordingly, it was decided to terminate his services. This led to the petitioner filing the present writ petition.

It is contended by learned counsel for the petitioner that in view of the decision of the Supreme Court, the respondents are under an obligation to regularise the services of the

petitioner irrespective of whether the Petitioner meets the medical standards or not. I am afraid it is not possible for me to agree with this contention. The petitioner must meet all the requirements of the respondents before he can be regularised. This will be in consonance with the rules and regulations of the respondents. If the rules and regulations are not applied then it will amount to discrimination because the rules cannot be waived insofar as the petitioner alone is concerned.

2. ft is then contended that under the Standing Orders of the respondents, the Managing Director of respondent No. 1 can waive the medical requirements. This is strongly refuted by learned counsel for the respondents who submits that the Managing Director cannot waive the requirements except for exceptional reasons. Paragraph 33 of the Standing Orders on which reliance is placed by learned counsel for the Petitioner reads as follows:

"33. Medical Examination: The appointment of every person in a permanent vacancy shall be subject to his being certified medically fit by the Corporation's Medical Officer or any other registered medical practitioner approved in this behalf by the Managing Director, provided that the Managing Director may, for reasons to be recorded in writing, approve of an appointment notwithstanding the medical opinion expressed, if he is satisfied that the disability reported is not likely to affect the occupational suitability of the workman."

3. It appears to me that, as stated by the Respondents in their counter affidavit dated October 14, 1999, paragraph 33 of the Standing Order is, really speaking, a pre-employment medical examination. It therefore, operates only at the stage of recruitment. What happens in a case where a person is already employed or deemed to have been employed or is actually physically working with the Respondents would not be covered by paragraph 33 of the Standing Order.

In the case of the petitioner, he is actually physically working for the Respondents, though through a contractor. His case will, therefore, have to be treated on a different footing. To my mind, in a situation such as the present, which is different to what has been postulated in Paragraph 33 of the Standing Order, a meaningful interpretation will have to be given with regard to the medical examination, but it cannot be radically different from the essence of Paragraph 33 of the Standing Order.

I am of the view that in the case of the Petitioner, the Managing Director will have to satisfy himself that the disability in the case of the petitioner is such that it is likely to affect the occupational suitability of the workman. If the Managing Director is satisfied that the disability of the petitioner will affect his occupational suitability, he is at liberty to refuse to regularise him but if he is satisfied that it will not affect his occupational suitability, the Managing Director should give him the benefit of regularisation considering the fact that he has been working with the Respondents since 1996.

4. Merely relying upon the medical opinion, as has earlier been done, to my mind, is not sufficient. All of us know what the medical opinion is. The question is despite the medical opinion, can the petitioner's services be regularised? For deciding this question, the Managing Director has to apply his mind to the nature of duties that are being performed by the Petitioner and in view of that whether his disability is likely to affect his occupational suitability. Accordingly, a direction is issued to the Managing Director of respondent No. 1 to consider afresh the question of regularisation of the petitioner keeping in view his disability and to take a decision on the question whether his disability is such that it is likely to affect the occupational suitability of the petitioner. The decision be taken by the Managing Director of respondent No. 1 within a period of two months from today.

5. With these observations, the writ petition is disposed of.