R. M. LODHA, J.

( 1 ) THE issue that arises in this appeal is : is the termination of the petitioner from service vide order dated 3-10-1985 bad in law.

( 2 ) FIRST, we shall refer to the brief facts : the petitioner (for short 'the workman) was employed as a Fitter in the assembling Department of M/s. Consolidated Pneumatic Tools Co. India limited (for short 'the employer' ). During the period of employment and particularly in the year 1981 and thereafter, the workman used to remain absent frequently on large number of days on different grounds but most of the time his absence was on the ground of illness. On 5-9-2005 the workman sought to resume his duty after prolonged absence and produced the medical certificate. In view of the workman's continuous absence on the ground of illness, the workman was sent to the medical officer Dr. Dinsukhlal Sadavarti. He examined the workman and found him unfit to work. He, however, asked him to visit him again after 15 days. After 15 days the workman visited Dr. Dinsukhlal Sadavarti. On his medical examination by Dr. Dinsukhlal Sadavarti, the workman was found unfit for work. Dr. Dinsukhlal Sadavarti asked the workman to contact the assistant Manager Bhalerao and on that day i. e. 3-10-1985 the workman was served with the termination order on the ground of continued ill health.

( 3 ) THE workman raised industrial dispute concerning his termination. Inter alia the case of the workman before the Labour Court was that his termination from service amounted to retrenchment' and for want of compliance of mandatory provisions contained in section 25f, the termination order was bad in law. The employer contested the workman's claim and set up the case that the workman was very irregular in attendance and as a result thereof, the work of the department suffered on many occasions. The workman was asked to show improvement in attendance but there was no improvement and he continued to remain absent mostly on the ground of sickness. According to the employer, the medical officer of the company opined that the workman was not fit for continuation in the employment as he was suffering from chronic Obsteomyelitis with chronic non-healing ulcers with eczyma. The employer set up the case that the service of the workman was terminated due to continued ill-health and incapacity to work and that his termination was covered by the exception appended to section 2 (oo) of the Industrial Disputes Act, 1947 (for short 'the ID act') and there was no question of following the provisions of section 25-F of the industrial Disputes Act, 1947.

( 4 ) THE workman as well as the employer led evidence before the Labour court. After hearing the parties and upon consideration of the evidence on record, the 5th Labour Court rejected the reference by order dated 19-9-1992. The workman filed writ petition before the learned Single Judge of this Court challenging the order dated 19-9-1992 passed by the 5th Labour Court. The learned Single Judge of this Court found no justifiable ground to admit the writ petition and the same was dismissed in limine by brief speaking order on 1-3- 1993. This is how the matter is before us.

( 5 ) MR. A. D. Shetty, the learned counsel for the workman argued before us that there was no documentary evidence or the medical report/s to indicate that the workman was suffering from continued ill-health. That the oral evidence of dr. Dinsukhlal Sadavarti was not sufficient to hold that the workman was suffering from continued ill-health. While Dr. Dinsukhlal Sadavarti was only a general Practitioner, the learned counsel for the workman submitted, Dr. Aggashe was Orthopaedic Surgeon and Specialist examined by the workman and dr. Aggashe opined that the workman was fit to stand for considerable length of time and fit to work. The learned counsel would contend that the workman could be terminated on the ground of continued ill-health only when there was no possibility of his recovering in the future.