JUDGMENT A.S. Bopanna, J.— The appellant Employees' Union is in this intra-Court appeal assailing the order dated 05.07.2011 passed in W.P. No. 9267/2011 (L-RES). By the said order, the learned Single Judge has allowed the petition and quashed the orders of the Deputy Labour Commissioner and the Additional Industrial Tribunal, Bangalore. The proceedings has thereafter been remitted to consider the representation seeking amendment in the Certified Standing Orders (for short 'the CSO') and the materials to be placed by the parties. 2. Heard Sri. T.S. Anantharam, learned counsel for the appellant and Sri. S.N. Murthy, learned senior counsel for the respondents and perused the appeal papers. 3. The brief facts are that the employees of the respondent herein are governed by the CSO in force. Clause 18 of the CSO relates to the age of retirement, which reads as hereunder: Clause 18: Workmen shall be retired from the services of the Farm on completion of 58 years of age. The Management may at its discretion reemploy such terms and conditions as may be acceptable to both the parties provided the workmen, in the opinion of the Management is medically fit and capable of efficiently discharging his duties. 4. The appellant/Union made an application dated 21.01.2009 (Annexure-C) to the Deputy Labour Commissioner seeking for amendment to the said clause as follows: Clause 18: Workmen shall be retired from the services of the Farm on completion of 60 years of age. The Management may re-employ such an employee on such terms and conditions as may be acceptable to both the parties provided the workmen, in the opinion of the Management is medically fit and capable of efficiently discharging his duties. 5. The change sought therein is to increase the age of retirement from 58 years to 60 years. The said change was sought keeping in view the general increase in the age of retirement, report of ILO and also keeping in view the fact that the State Government had enhanced the age of retirement to 60 years and since the employees of the respondent are also governed by all other conditions relatable to the Government servants. On being notified by the Deputy Labour Commissioner, the respondents herein objected to the change in age of retirement as they maintained that the age of 58 years is the appropriate age in view of several settlements and considering the nature of work. On being notified by the Deputy Labour Commissioner, the respondents herein objected to the change in age of retirement as they maintained that the age of 58 years is the appropriate age in view of several settlements and considering the nature of work. The Deputy Labour Commissioner after detailed consideration, by his order dated 30.06.2009 (Annexure-E) has ordered for modification of the CSO as proposed by the appellant Union which is extracted above. The respondent claiming to be aggrieved by the same, filed an appeal as contemplated under Section 6(1) of the Industrial Employment (Standing Orders) Act, 1943 which was registered in Appeal No. 8/2009. The Industrial Tribunal by its order dated 26.11.2009 (Annexure-G) allowed the appeal in part and modified Clause 18 of the CSO to read as follows: Workmen shall be retired from the services of the form on completion of 60 years of age. 6. Though the subsequent: part relating to the discretion of the management to re-employ an employee after the age of retirement was deleted, the Tribunal in effect upheld the claim of the appellant/Union for increasing the age of retirement to 60 years. Hence, the respondent/employer being aggrieved by the same had tiled the writ petition assailing the orders of the Deputy Labour Commissioner and that of the Industrial Tribunal. 7. On the legal aspect relating to the enhancement of the age of retirement, learned counsel for the appellant relied on the decision of the Hon'ble Supreme Court in the case of Hindustan Antibiotics Ltd. Vs. Their Workmen 1967 (II) LLJ 114, wherein the age of retirement at 55 years and being extendable to 60 years at the discretion of the management, if the workmen are considered suitable and if they are medically fit and mentally alert arose for consideration. In that situation, the Tribunal had raised the age from 55 years to 58 years, but gave the discretion to the company to continue an employee after that age till 60 years. In that context, the Hon'ble Supreme Court was of the view that it would not be proper to give a discretion to the company to raise the age of retirement or not to do so, by vesting such uncontrolled discretion in the employer since it might lead to manipulation and victimisation. In that context, the Hon'ble Supreme Court was of the view that it would not be proper to give a discretion to the company to raise the age of retirement or not to do so, by vesting such uncontrolled discretion in the employer since it might lead to manipulation and victimisation. Hence, it was ordered that the retirement age should be raised to SO years, keeping in view the general trend in that regard. Having noticed the same, it is also necessary for us to keep in view that the said opinion was expressed taking note of the normal retirement age for clerical and sub-ordinate staff in the region. The learned counsel for Appellant has also placed reliance on the decision of the Division Bench of the High Court of Kerala in the case of Devaki M. Vs. B.P.L. Group of Companies, (2010) 4 LLJ 508 Ker wherein the age of retirement was enhanced from 55 years to 58 years and it was held that the decision of the Certifying Officer based on the relevant material will not call for interference. The Division Bench decision of the High Court of Delhi, in the case of Indian Oil Corporation Ltd. Vs. Joint Chief Labour Commissioner and Appellate Authority and Others, ILR (1990) Delhi 270 wherein the jurisdiction of the authority to modify the standing order to increase the age of retirement was upheld, was also relied upon. 8. In the above context, there can be no doubt that the power of the authority to consider the same is a well established legal position. However, with regard to the circumstances which require to be noticed by the competent authorities before accepting the request for modification of the CSO it is spelt out by the Hon'ble Supreme Court in the case of Guest, Keen, Williams Private Ltd. Vs. P.J. Sterling and Others, AIR 1959 SC 1279 relied on by the learned senior counsel for the respondents. In fact the order of the learned Single Judge dated 05.07.2011 impugned in the instant appeal whereby the matter has been remitted to the Original Authority for reconsideration rests solely on the said decision since according to the learned Single Judge, the relevant material is to be placed by the parties for consideration by the Authority. In fact the order of the learned Single Judge dated 05.07.2011 impugned in the instant appeal whereby the matter has been remitted to the Original Authority for reconsideration rests solely on the said decision since according to the learned Single Judge, the relevant material is to be placed by the parties for consideration by the Authority. In that view, it is necessary to notice the relevant observations of the Hon'ble Supreme Court in Guest Keen Williams case which reads as hereunder: 24) We would, however, like to add that this conclusion should not be taken as a decision on the general question of fixing the age of superannuation in the case of industrial employees. In fixing the age of superannuation industrial tribunals have to take into account, several relevant factors. What is the nature of the work assigned to the employees in the course of their employment? What is the nature of the wage structure paid to them? What are the retirement benefits and other amenities available to them? What is the character of the climate where the employees work and what is the age of superannuation fixed in comparable industries in the same region? What is generally the practice prevailing in the industry in the past in the matter of retiring its employees? These and other relevant facts have to be weighed by the tribunal in every case when it is called upon to fix an age of superannuation in an industrial dispute. In the present case, as we have already observed, the age of 55 has been fixed by both the tribunals for future entrants; and this is substantially based on the standing order which we have already considered. In regard to the prior employees it is not seriously disputed that the retirement age can and may be fixed at 60. It is under these circumstances that we have come to the conclusion that the age of superannuation for prior employees should be fixed at 60. 9. In regard to the prior employees it is not seriously disputed that the retirement age can and may be fixed at 60. It is under these circumstances that we have come to the conclusion that the age of superannuation for prior employees should be fixed at 60. 9. Having noticed the above, the issue for our consideration is as to whether the parameters laid down by the Hon'ble Supreme Court could be determined on the reconsideration of the matter by the Deputy Labour Commissioner in the presents facts involved in the case or as to whether in the instant circumstance where the contention of the rival parties which lies in a narrow compass have already been urged before the Original Authority and the Industrial Tribunal, the decision could be arrived in the instant proceedings itself keeping in view the legal position. 10. In order to appreciate these aspects, it is seen that the case of the appellant herein is to the effect that when the age of retirement has been enhanced in all sectors including Government employees, the benefit should be extended to the employees of the respondent herein as well. In the existing clause 18 of the CSO (extracted above), it is clear that the age of retirement is 58 years. Though there is discretion for the management to continue an employee beyond the said age, it is subject to the conditions indicated therein which according to the appellant would provide uncontrolled discretion leading to manipulation and victimization as held by the Hon'ble Supreme Court in the case of Hindustan Antibiotics Ltd., (supra). It is therefore their case that it should be made absolute by enhancing the same to 60 years. To repel the claim of the appellant/Union, the contention of the respondent is that the nature of the job requires physical fitness on the part of the employee to control and look after the race horses which are sturdy and active. It is their case that the employees therefore should be both medically and physically fit to discharge their duties, which is not possible after 58 years. It is their case that the employees therefore should be both medically and physically fit to discharge their duties, which is not possible after 58 years. The employer, to justify their stand before the Original Authority and the Industrial Tribunal had relied on the applications filed by several employees who had sought for retirement at a much earlier age than what is provided at 58 years since they were unable to perform their work on grounds of health and physical fitness. It is therefore contended by them that the nature of work in the respondent's establishment is not comparable to the nature of work in other industries and in a case where there are instances of 36 employees seeking premature retirement and requesting for accommodating their family members, the said aspect required detailed consideration. In that view, it is also contended that the remand of the matter for reconsideration is justified. The said contention in our view would indicate that in the instant facto the only exception that is taken by the employer to oppose the increase of the age of retirement is relating to the physical and medical disability of an employee to perform the job keeping in view the nature of the work which is one of the aspects indicated by the Hon'ble Supreme Court. On other aspects, the respondents in any event have not placed any other materials or raised such contentions. 11. In the above background, we are of the opinion that the reconsideration of the matter by the Original Authority though in any event would establish as a general principle the fact that the job to be performed is of arduous nature which would require physical and medical fitness, the same would in any event not establish as a general principle that every employee would not be physically or medically fit immediately on attaining the age of 58 years as the said condition may vary from person to person. Hence, at this stage, there can be no evidence or material either to establish that every employee in such industry on attaining the age of 58 years would be fit or vice versa. This can only be ascertained at an appropriate stage on case to case basis based on evidence or material relating to each individual. Hence, the reconsideration by the Original Authority would not find a solution at this stage on this aspect. This can only be ascertained at an appropriate stage on case to case basis based on evidence or material relating to each individual. Hence, the reconsideration by the Original Authority would not find a solution at this stage on this aspect. That being the position, though it may be open for the employer to contend that this could be achieved by the existing Clause, the same does not give any right: whatsoever for the employee to have it enforced since it is in the nature of re-employment at the sole discretion of the employer. Therefore, it is this aspect of the matter which requires attention so as to protect the interest of the respondent/employer and also to ensure that the employee concerned is not exposed to manipulation or victimization by the uncontrolled discretion resting with the employer, which was sought to be protected as held by the Hon'ble Supreme Court in the case of Hindustan Antibiotics Ltd. 12. While taking note of the above aspects, it is also necessary for us to keep in view the contention of the respondent/employer about the situation of certain employees not being physically and medically fit even prior to the presently available age of retirement. That in any case is being dealt with by providing opportunity to such of those employees to retire prematurely and by providing alternate employment to other family members. The same in any way has not affected the interest of the employer as well as employees. But the position for consideration is that of those employees who are physically and medically fit and are also able as well as willing to work beyond the age of 58 years. Hence, in cur view, rather than upholding the order of remand or affirming the order of Original Authority and the Tribunal, it would be appropriate to resolve the matter by modifying Clause 18 of the CSO which would meet the ends of justice keeping in view the decision of the Hon'ble Supreme Court in the case of Hindustan Antibiotics Ltd., as well as the case of Guest Keen Williams. 13. In that view, Clause 18 of the CSO of the respondent should read as hereunder and therefore, shall stand modified as follows: Workmen shall he retired from services of the farm on completion of 60 years of age. 13. In that view, Clause 18 of the CSO of the respondent should read as hereunder and therefore, shall stand modified as follows: Workmen shall he retired from services of the farm on completion of 60 years of age. However, in individual cases, if an employee is found either physically or medically unfit on completion of 58 years of age, the employer may for reasons to be recorded in writing seek to retire such employee at 58 years of age subject to the following; (a) The employer shall refer such employee to the Medical Board for ratification of the same. (b) If the Medical Board on examination endorses the decision of the employer, it would thereafter be open for the employer to retire such employee at 58 years of age. (c) For the above purpose, the Medical Board shall consist of three doctors, one among whom shall be a nominee from the District. Government Hospital. (d) The Medical Board while considering the case of the referred employee shall keep in view the Medical records, the reasons recorded by the employer, the result of the examination conducted by it and the nature of the job required to be performed by the employee. 14. The above clause would ensure that only such of those employees, who are physically and medically fit would retire at the age of 60 years and the discretion of the employer to retire an employee at the age of 58 years for not being physically and medically fit keeping in view the nature of job would still be available but would be well circumscribed and would not lead to manipulation and victimization. The said procedure would also ensure judicial review based on available materials in the event of any employee being aggrieved by the decision of the employer. 15. In terms of the above conclusion, we pass the following: Order i) The appeal is allowed in part and the order dated 05.07.2011 passed in W.P. No. 9267/2010 (L-RES) is set aside. ii) The order dated 30.06.2009 (Annexure-E) of the Deputy Labour Commissioner and the order dated 26.11.2009 (Annexure-G) of Industrial Tribunal shall stand modified. 15. In terms of the above conclusion, we pass the following: Order i) The appeal is allowed in part and the order dated 05.07.2011 passed in W.P. No. 9267/2010 (L-RES) is set aside. ii) The order dated 30.06.2009 (Annexure-E) of the Deputy Labour Commissioner and the order dated 26.11.2009 (Annexure-G) of Industrial Tribunal shall stand modified. iii) Consequent thereto, the Deputy Labour Commissioner and Certifying Authority under Standing Orders Act is directed to certify the modified Clause 18 of the Standing Orders of United Racing and Blood Stock Breeders Ltd., Kunigal Stud Farm in terms of para 13 of this order. iv) Parties to bear their own costs.