JUDGMENT : N.J. PANDYA, J. 1. As these petitions give rise to common questions of law and facts, they can conveniently be disposed of by this common judgment. 2. The respondent-workman, who has been working with the petitioner-company, has started remaining absent on and from April 17, 1988 for different length of time. The details are set out in the Synopsis of dates and events. In the years 1988 and 1989, he remained absent for a number of days and, thereafter, in February 1993, he was served with a show cause notice for his absence on the ground of illness during the years 1990, 1991 and 1992. Finally, by letter dated March 26, 1993 a charge-sheet came to be issued wherein it was shown that the respondent-workman was absent on the ground of ill-health, particularly in the 3rd shift on 51 occasions out of 63. 3. The workman was given personal, hearing and, thereafter, the finding of this enquiry was also communicated to the workman. However, looking to his length of service, a final warning letter was issued on June 8, 1994 setting out in that letter the stand of the petitioner-company that final opportunity is given to the workman to mend his ways. There was no change whatsoever in his regularity. 4. Again absence occurred in the years 1993 and 1994 and on or about August 2, 1994 the respondent-workman submitted a letter admitting that he had remained absent during the last five/six years because he was suffering from high blood pressure and bone problem in right heel. 5. In spite of the said final opportunity having been given thereby a chance to improve having been offered, then there was no change whatsoever, the petitioner-company issued termination order on September 22, 1994. In this background, a reference came to be made by the workman, being Reference (IDA) No. 830 of 1995. The learned Fourth Labour Court, Mumbai, dealt with the matter and passed the award on September 6, 1996 granting reinstatement to the workman without back wages, but with continuity of service. At page 103 para 6 issues were framed and the very first issue dealt with the question whether the termination of the workman with effect from September 22, 1994 was on the ground of continued ill-health. 6. At page 103 para 6 issues were framed and the very first issue dealt with the question whether the termination of the workman with effect from September 22, 1994 was on the ground of continued ill-health. 6. In the background of the aforesaid controversy and the issues framed, the learned Presiding Officer ought to have concentrated on the situation that was prevailing on and upto the date of the termination order. However, as can be seen from para 12 at page 116 (internal page 18), the learned Presiding Officer has gone by the fact that the company has proved its case of termination on the ground of continued ill-health, but both the parties, in the reference have failed to prove that "during the recent time or today" the workman is fit or unfit to perform his duties which he was performing. It is for this reason that he has answered the issue referred to above in favour of the workman. 7. When he refers to "during the recent time or today" it will necessarily mean that during the pendency of the reference and upto the date of the award, viz. September 6, 1996. The learned Presiding Officer has clearly introduced a new situation or a concept which, if properly understood, would mean that if the termination order of the nature involved in the present proceedings is to be sustained, the ill-health has to be established during the pendency of reference and upto the date of the award. This certainly is not the law. 8. As an employer, if the relationship is brought to an end and at the instance of the workman, this action of the employer is to be judicially scrutinised, obviously, it has to be on the basis of the material that was with the employer qua the workman as on the date of taking the action. So far as this aspect is concerned, the learned Presiding Officer has held in favour of the company and rightly so. 9. This would have led me to conclude this order, but for the fact that the workman has also filed another petition, being Writ Petition No. 1414 of 1997, being aggrieved by the fact that the Labour Court has not granted him back wages. 10. 9. This would have led me to conclude this order, but for the fact that the workman has also filed another petition, being Writ Petition No. 1414 of 1997, being aggrieved by the fact that the Labour Court has not granted him back wages. 10. If the action of the employer is held to be proper and the order of the Labour Court is found to be suffering from serious infirmity on account of invoking a non-existent concept, it is quite clear that the order itself would go, much less therefore, there can be case for grant of back wages. 11. It has been clearly established on record that he had been remaining continuously absent and a final opportunity was given on June 8, 1994, but the workman did not show any improvement. This position is accepted by the learned Presiding Officer and therefore, the termination is held to be good, as noted above. 12. Once the termination is held to be on the ground of continued ill-health, as laid down by the Apex Court in Bangalore Woollen Cotton and Silk Mills Co. Ltd. vs. Its Management, 1962 (1) LLJ 213 it is quite clear that it is covered by Section 2(oo) of the Industrial Disputes Act, 1947. Once it is held to be a termination on account of illness there is no question of grant of reinstatement. 13. In my opinion, therefore, the order of the trial Court cannot be sustained. The action of the petitioner-company in terminating the services of the respondent-workman on the ground of continued ill-health is upheld. The order of the trial Court granting reinstatement is set aside. In view of this, there is no question of grant of back wages at all. 14. Accordingly, in Writ Petition No. 39 of 1997, the rule is made absolute. In Writ Petition No. 1414 of 1997 the rule is discharged.