Ahmednagar v. Dattatraya Raghunath Kobarne, Age

By way of present petition, the petitioners have challenged the order dated 2nd May 2009, passed by the learned Member of the Industrial Court, Ahmednagar, below Exhibit U-2 in Complaint (ULP) No. 98/2008, thereby allowing the application filed by the respondent employee seeking interim relief.

The respondent employee was working as a Driver with the petitioners. It appears that he has suffered a paralytic attack. On account of said ailment, the petitioner was required to be hospitalized and, as such, could not be continued as a Driver. Thereafter, applications were made by him for giving him alternate employment. The said applications were not considered and, therefore, complaint came to be filed, thereby alleging unfair labour practice under Section 28(1) read with Items 5, 9 and 10 of Scheduled IV of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971. Along with the said complaint, an application below Exhibit U-2, for interim relief, was also filed. The said application is rejected. Hence, the present petition. (3)

Mr. M.K. Goyanka, learned Counsel appearing for the petitioner Corporation, submits that the learned Member of the Industrial Court, by allowing the application for interim relief, has almost allowed the complaint in entirety. It is submitted that such a relief cannot be granted at interim stage. On merits, it is submitted that the respondent was not examined by the Medical Board and under Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation Act, 1995, and the Rules framed thereunder. It is submitted that if a person is examined by the Medical Board and found to be physically unfit, he cannot be granted an alternate employment. He, therefore, submits that the impugned order is liable to be set aside.

Mr. P.V. Barde, learned Counsel appearing for the respondent employee, on the contrary, submits that the employee has in fact been examined by the Medical Board consisting of three Senior Doctors of Sassoon Hospital, Pune. He has produced a photostat copy the certificate of the Medical Board for persons with disabilities, issued by the Sassoon General Hospital, Pune, in favour of the respondent employee. The same is taken on record and marked as "X" for identification. It is, therefore, submitted that no interference is warranted in the present case.

Perusal of the impugned order would reveal that the respondent employee was referred to the Civil Surgeon, Ahmednagar, for examination. However, the Civil Surgeon, Ahmednagar, found that (4) taking into consideration the condition of the employee, it was necessary that he should be referred to Sassoon Hospital, Pune. On such reference, the Medical Board of the Sassoon Hospital, Pune, has examined him and granted him a certificate certifying that he is physically disabled on temporary basis due to his ailment. It is thus clear that the Medical Certificate has in fact been issued by the Medical Board certifying the disability of the respondent employee.

Mr. M.K. Goyanka, learned Counsel appearing for the petitioners, submits that since the certificate itself shows that the employee is temporarily disabled, he should give an undertaking that he would work as Driver after his health improves.

It could thus be seen that the Industrial Court, on the basis of the material placed before it, has found that the respondent employee has made out a prima facie case for grant of alternate employment. I do not find any perversity with the approach adopted by the learned Member of the Industrial Court. In so far as the alternate submission made on behalf of the petitioners is concerned, I find that if a person suffered with paralytic attack is allowed to work, on an undertaking that he would work as Driver after his health improves, it would be dangerous to the interest of the persons traveling in the vehicle.

In that view of the matter, no interference is warranted. (5)

At this stage, the learned Counsel appearing for the petitioners makes a statement that an alternate employment would be provided to the respondent employee within a period of four weeks from today.