"Continued ill health" defined

This definition of “continued ill health” has been enunciated after a ten-year long legal battle fought by Bhavana S Shah, a clerk with the Kapol Co-operative Bank Limited. Shah was appointed in 1983, but her attendance record deteriorated following two miscarriages. She took leave for ten months in 1986 and then again for three months in 1988. She was discharged from service in March 1988. The bank management claimed that Shah’s frequentabsence, disrupted office work.

Thereupon Shah moved the Second Labour Court stating that she was discharged from service without any notice or departmental inquiry. She claimed that termination of her services was illegal since she had produced medical certificates to authenticate the reason for her absence. She said that she was not only medically fit, but was also working satisfactorily on the day she was asked to leave. The Labour court upheld her plea and ordered her reinstatement.

The Kapol bank management appealed against the labour court’s order in the Industrial Court (IC). The IC upheld the labour court order, declaring that Shah was medically fit to rejoin duty, especially since the medical certificates, which were not challenged by the employer, stated that she would be able to function normally. Despite this categorical order, the litigation did not end here. The bank management appealed again in the high court.

Justice F I Rebello of the high court heard the appeal. He held that the lowercourts had correctly determined that Shah’s sickness was not of such serious nature as to disable her from performing her duties. The leave sought by her had been sanctioned and was within permissible limits. In such circumstances, her discharge amounted to retrenchment by the management, which was not permitted under the Industrial Disputes Act. The judge ruled that Shah should be inducted with full back wages.

Justice Rebello cited a Supreme Court order which dealt with the issue of “continued ill health” of a driver who had had developed defective eyesight. The Supreme Court held that termination of the driver’s services would not amount to retrenchment because drivers must necessarily possess the required level of vision. But, in Shah’s case, her illness was limited to the miscarriages and had not continued permanently, he ruled.

Subsequently, Justice Rebello’s order too was challenged by the management before a division bench of the High Court. However, the appeal was dismissed.