[Cites 4, Cited by 0]
Bombay High Court
Shri. Suresh Vishram Sawant vs M/S. Ceat Ltd, Through Chief Managar ... on 6 March, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:10951
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
ATUL WRIT PETITION NO.10839 OF 2012
GANESH
KULKARNI WITH
Digitally signed
by ATUL
CIVIL APPLICATION NO.3 OF 2021
GANESH
KULKARNI
Date: 2026.03.06
11:47:04 +0530
Suresh Vishram Sawant,
Age 63 years, Occupation __
R/at A-202, Nagdevata Apartment,
Gupte Road, Gaodevi Society,
Dombivali (West), Dist. Thane. ... Petitioner
Vs.
Ceat Limited,
Bhandup (West), Mumbai 400 078
through it's Chief Manager (E.R.) Respondent
Ms. Reshmarani Nathani for the petitioner/applicant.
Mr. Anand Pai with Mr. Netaji Gawade i/by M/s. Sanjay
Udeshi & Co., for the respondent.
CORAM : AMIT BORKAR, J.
RESERVED ON : FEBRUARY 27, 2026.
PRONOUNCED ON : MARCH 6, 2026
JUDGMENT:
1. By the present writ petition, the petitioner challenges the
Judgment and Order dated 4 April 2012 passed by the Industrial
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Court, Mumbai in Revision Application (ULP) No. 54 of 2009,
whereby the revision preferred by the respondent company was
allowed, and the order dated 3 February 2009 passed by the
Labour Court, Thane in Complaint (ULP) No. 289 of 2002 came to
be set aside.
2. The facts giving rise to the present writ petition, in brief, are
as follows. The petitioner joined the services of the respondent
company as a badli employee on 9 June 1971. He was thereafter
appointed as a trainee designated as "Bagger Debagger" on 1
October 1971 and subsequently continued as a temporary
employee. The petitioner was placed on probation with effect from
1 April 1972 and was thereafter confirmed as a permanent
employee on 1 July 1972 in the post of Curing Operator.
3. In the year 1996, the petitioner was granted two increments
and was promoted and transferred from the Mackanal Section to
the Curing Department and thereafter to the BOM Section as BOM
Operator-A. According to the petitioner, until the period 1996 to
1997, he had not suffered from ailments such as asthma or
bronchitis arising out of the working conditions in the respondent
company. On 10 July 2001, the respondent company issued a show
cause notice alleging that the petitioner had remained absent for
67 days during the year 2000 and for 25 days during the year
2001 on medical grounds. The petitioner submitted his reply on 14
July 2001. Thereafter, by letter dated 1 December 2001, the
respondent company granted what was described as a last and
final opportunity to improve his health, indicating that in the event
of continued ill health, termination of service would follow.
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4. On 18 March 2002, the respondent company introduced a
Voluntary Retirement Scheme and invited eligible employees to opt
for the same. The petitioner submitted an application under the
said scheme on 22 March 2002. The last date prescribed for
submission of applications under the scheme was 31 May 2002.
5. On 6 June 2002, another show cause notice was issued to
the petitioner in respect of leave availed for 74 days during the
period from 1 June 2001 to 31 May 2002. The petitioner
submitted his reply on 22 June 2002. Thereafter, on 23 July 2002,
the respondent company terminated the services of the petitioner
with immediate effect, citing continuous ill health, without
conducting any domestic enquiry. The petitioner contends that
such termination was effected in undue haste and in violation of
the principles of natural justice. Along with the termination letter,
the petitioner was handed over cheque dated 19 July 2002 bearing
No. 617178 for an amount of Rs. 13,520.59. The petitioner
accepted the termination letter and the cheque on 24 July 2002
without prejudice to his rights and contentions.
6. On 26 July 2002, the petitioner addressed a communication
to the respondent company stating that he had already submitted
an application under the Voluntary Retirement Scheme on 18
March 2002 and requested that the same be considered. He further
asserted that the polluted atmosphere prevailing in the Curing
Department had adversely affected his health and had resulted in
ailments such as asthma.
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7. On 18 October 2002, the petitioner instituted Complaint
(ULP) No. 289 of 2002 before the Labour Court, Thane under
Section 28 read with Item No. 1(a), (b), (d), (f) and (g) of
Schedule IV of the MRTU and PULP Act, 1971 alleging unfair
labour practices on the part of the respondent company.
8. By letter dated 4 May 2004 addressed to the Regional
Provident Fund Commissioner for final settlement and withdrawal
of provident fund dues, the respondent company stated that the
petitioner had resigned from service. By another communication of
the same date concerning settlement of monthly family pension,
the respondent company informed that the petitioner had opted
for voluntary retirement on reduced pension.
9. The Labour Court, Thane, by order dated 3 February 2009,
allowed the complaint filed by the petitioner and held that the
respondent company had engaged in unfair labour practices falling
under Item No. 1(a), (b), (d), (f) and (g) of Schedule IV of the
MRTU and PULP Act, 1971.
10. Aggrieved thereby, the respondent company preferred
Revision Application (ULP) No. 54 of 2009 before the Industrial
Court. By Judgment and Order dated 4 April 2012, the Industrial
Court allowed the revision application and set aside the order
passed by the Labour Court. It is against the said judgment that the
present writ petition has been filed.
11. Ms. Nathani, learned counsel appearing for the petitioner,
submitted that the petitioner was employed as BOM Operator in
the Curing Department of the respondent company, where heavy
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tyre manufacturing work relating to trucks and tractors was
carried out. The work involved operation of tyre curing presses
and working near hot plates, resulting in exposure to steam, heat,
and strong chemical odours causing suffocation and breathing
difficulty among employees. It was contended that the working
environment in the Curing Department was unhealthy and that the
petitioner was not provided with protective equipment such as
masks while performing his duties. Learned counsel further
submitted that the petitioner did not suffer from ailments such as
asthma or bronchitis prior to 1996 to 1997 and that his health
deteriorated due to prolonged exposure to heat, rubber, and
chemical substances in the workplace. It was argued that the leave
availed by the petitioner was supported by medical certificates,
which were accepted by the respondent company without
objection. Consequently, the absence of the petitioner could not be
treated as unauthorized. On these grounds, it was submitted that
the writ petition deserves to be allowed.
12. Per contra, Mr. Pai, learned counsel appearing for the
respondent company, submitted that the petitioner's services were
terminated on account of his continuous inability to attend work
due to ill health. Reliance was placed on the decision in Ceat
Limited v. S.D. Sawant and Others, 1999 (3) L.L.N. 1182 , to
contend that termination on the ground of prolonged absence
owing to ill health is legally permissible, particularly where
warnings have been issued and no improvement is observed. It
was further submitted that the petitioner had remained absent for
substantial periods, as noted by the Labour Court itself, and that
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the total leave availed by the petitioner between 1994 and June
2002 amounted to 671 days on various grounds. On this basis,
dismissal of the writ petition was sought.
RASONS AND ANALYSIS:
13. The first aspect which needs to be examined is the real
nature of the termination. It must be seen whether the termination
was truly on the ground of continued ill health. The material
placed on record shows that the employer had issued show cause
notices referring to the petitioner remaining absent for long
periods on medical grounds. The last communication before the
termination also refers to the petitioner's health condition and the
difficulty faced by the employer due to repeated absence from
work. The termination letter itself clearly records that the services
were brought to an end because of continued ill health. These
documents show that throughout the correspondence the employer
treated the matter as one relating to the petitioner's medical
condition and his inability to regularly attend work. At no point
was the matter treated as misconduct. No charge of unauthorized
absence was framed against the petitioner. There was also no
allegation that the petitioner had acted in wilful disobedience or
that he had committed any act of indiscipline. If termination is
imposed as punishment for misconduct, then it normally falls
within the concept of retrenchment unless proper disciplinary
procedure is followed. In the present case, however, the
foundation of the employer's action appears to be the petitioner's
inability to continue work because of his health condition.
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14. The petitioner has strongly contended that no domestic
inquiry was conducted and, therefore, the termination should be
held illegal. This submission also requires careful consideration. An
inquiry becomes necessary when the employer terminates the
service of an employee by way of punishment or where the
termination carries a stigma. In such cases, principles of natural
justice require that the employee should be given an opportunity
to defend himself. However, termination on the ground of
continued ill health stands on a different footing altogether. Clause
(c) of Section 2(oo) of the Industrial Disputes Act specifically
recognizes that where a workman is unable to continue in service
due to persistent medical incapacity, the employer may terminate
the employment on that ground. In such a situation the action is
not based on fault or misconduct but on the employee's inability to
discharge duties. For that reason the Act does not insist on holding
a disciplinary inquiry. What the Court has to see is whether the
employer acted honestly and whether there was material showing
that the employee was suffering from continued ill health. In the
present case the record shows repeated medical leave taken by the
petitioner. This position has not been seriously disputed even by
the petitioner. These circumstances form the basis on which the
employer formed an opinion about the petitioner's inability to
continue service.
15. The petitioner has also submitted that the illness itself
developed because of the working conditions in the Curing
Department. According to him, the department involved work near
hot plates, steam and chemicals and protective equipment like
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masks was not provided. This submission certainly has some
relevance from the point of view of industrial safety and the
responsibility of the employer to maintain proper working
conditions. However, even if it is assumed that the working
atmosphere contributed to the petitioner's health problems, the
legal question before this Court is limited. The Court has to see the
nature of the termination within the meaning of Section 2(oo) of
the Industrial Disputes Act. Clause (c) of the provision excludes
termination on the ground of continued ill health from the
definition of retrenchment. The clause does not draw any
distinction between illness arising from personal reasons and
illness which may have developed due to working conditions. Once
the employer terminates the service on the ground of continued ill
health, the case would fall within the statutory exclusion unless it
is shown that the ground was falsely created or used merely as a
cover to remove the employee. In the present case no such
material is placed on record. On the contrary, the petitioner
himself relies upon medical certificates and asserts that his health
had in fact deteriorated.
16. The petitioner has further relied upon the application
submitted by him under the Voluntary Retirement Scheme. The
record shows that such an application was indeed submitted
before the last date prescribed under the scheme. However, merely
submitting an application under a voluntary retirement scheme
does not automatically give a right to the employee to claim that
he must be retired under that scheme. Acceptance of such
application depends upon the terms of the scheme and the
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approval of the employer. Unless the application is accepted, the
employee cannot claim that he has retired voluntarily. Therefore,
the fact that the petitioner had applied under the scheme does not
by itself change the nature of the termination. It is true that in
some later correspondence addressed by the respondent to the
provident fund authorities there are references to resignation or
voluntary retirement. These communications do appear somewhat
inconsistent with the stand taken in the termination order.
However, these letters were written after the termination and
appear to be part of communication for settlement of provident
fund or pension benefits. Such later correspondence cannot alter
the character of the termination which had already been effected
by the order dated 23 July 2002.
17. The Labour Court proceeded on the reasoning that since no
inquiry was held and the termination was effected in the manner
shown in the record, the action amounted to unfair labour
practice. On that basis the complaint filed by the petitioner came
to be allowed. The Industrial Court, while exercising revisional
jurisdiction, examined the matter from the standpoint of the
statutory definition of retrenchment. The Industrial Court came to
the conclusion that termination on account of continued ill health
is specifically excluded from the definition of retrenchment under
Section 2(oo). Therefore, according to the Industrial Court, the
complaint could not succeed on the footing adopted by the Labour
Court. When the statutory provision is carefully read, the
reasoning of the Industrial Court appears to be consistent with the
legislative scheme. The definition of retrenchment is undoubtedly
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wide. At the same time the legislature has clearly carved out
certain situations where termination will not amount to
retrenchment. Clause (c) is one such clear exception. Courts
cannot ignore or dilute this exception by adding requirements
which the statute itself does not provide.
18. The overall record of the case also deserves consideration. It
shows that over the years the petitioner had taken substantial
leave on medical grounds. The employer had issued show cause
notices and had also cautioned the petitioner regarding his
attendance. Ultimately the employer formed an opinion that the
petitioner's health condition made it difficult for him to continue
his duties. The termination order was passed on that basis. The
termination was not imposed as punishment. It was not a case
where the contract of employment expired. It was also not a case
of retirement on reaching the age of superannuation. Nor was it a
case where voluntary retirement had been accepted. The reason
recorded in the termination order is continued ill health. This
situation clearly falls within the exception contained in clause (c)
of Section 2(oo). Once the case falls within that exception, the
termination cannot be treated as retrenchment in law.
19. In view of these circumstances, the termination of the
petitioner cannot be treated as retrenchment within the meaning
of Section 2(oo) of the Industrial Disputes Act, 1947. The case is
clearly covered by the exclusion provided in clause (c) relating to
termination on account of continued ill health. The Industrial
Court was therefore justified in setting aside the order passed by
the Labour Court. The writ petition does not disclose any ground
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warranting interference with the judgment of the Industrial Court.
20. The writ petition therefore stands dismissed.
21. No order as to costs.
22. All pending interlocutary applications stand disposed of
accordingly.
(AMIT BORKAR, J.)
