JUDGMENT : K.M. Thaker, J. The petitioner co-operative bank has taken out present petition against judgment and order dated 22.6.2005 passed by learned Industrial Court at Surat in Appeal No. 16 of 2003 whereby learned Industrial Court set aside the order dated 2.8.2003 passed by the learned Labour Court in T-application No. 16 of 1994. 1.1. Learned Labour Court, by said order dated 2.8.2003 rejected the T-application on the ground that the applicant would not come within purview of Section 3(13) of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as the "BIR Act") and therefore the application cannot be entertained. 1.2. Feeling aggrieved by the said order dated 2.8.2003 the applicant filed appeal before learned appellate Court. The appeal was registered as Appeal No. 16 of 2003. After hearing the parties the learned Industrial Court disagreed with the conclusion of the learned Labour Court and therefore the Industrial Court set aside the learned Labour Court's decision dated 2.8.2003. The Industrial Court allowed the appeal vide judgment dated 22.6.2005 and directed the bank to pay full salary and special benefits to the claimant from the date of termination until date on which the claimant attained age of superannuation i.e. from 30.3.1994 to 31.1.2003. Against the said decision by Industrial Court the bank had taken out this petition. 2. So far as factual background is concerned, it has emerged from the record and from the submissions by the learned advocates that at the relevant time the respondent herein (i.e. original applicant) was working as Accountant with the petitioner bank. 2.1. In March 1994 the bank relieved the claimant from service of the bank on the ground that the claimant suffered from vision deficiency and due to the said disability he was not able to normally perform his regular duties and functions. 2.2. Feeling aggrieved by said decision and action of the bank the claimant raised dispute and filed application before learned Labour Court under Section 78 read with Section 79 of BIR Act with the demand that the termination should be set-aside and he should be reinstated in service with all benefits because termination of his service is illegal and unjust. 2.3. The bank opposed the T-application and resisted the demand by the applicant. 2.3. The bank opposed the T-application and resisted the demand by the applicant. The bank claimed that the claimant was engaged in supervisory category and he was also working in supervisory capacity and at the relevant time his salary was Rs.3,590/- and that therefore, the claimant would not come within the purview of Section 3(13) of the Act and therefore, the application is not maintainable. Without prejudice to said objection, the bank also contended, on merits of the case and with reference to justification of its action, that the claimant suffered from physical disability viz. weak vision and that therefore, he is not able to perform his duties and function. It is also claimed that the claimant was asked to undergo medical test and treatment and the medical report opined that the claimant suffered from weak vision. According to the bank, the claimant was unable to read figures and letters (words) of normal/average font (size) and that therefore, it was not in the interest of the bank to continue him in service and therefore on the said medical ground his service is discontinued. According to the bank the termination of the claimant would not amount to retrenchment since he was relieved from service on account of "continued ill-health" and therefore said termination would fall within the exception prescribed under Section 2(oo) of the Act and that therefore, its action is legal and just and demand/application should be dismissed. 2.4. After the parties completed respective pleadings learned labour Court received oral and documentary evidence from both the sides. Upon conclusion of the evidence of both the sides learned Labour Court heard the submissions on the basis of material available on record and learned Labour Court reached to the conclusion that claimant would not come within the purview of Section 3(13) of the Act and that he was engaged in supervisory category and he performed duty in supervisory nature. Having reached such conclusion learned Labour Court rejected the application. 2.5. Feeling aggrieved by said decision, present petitioner bank filed appeal before Industrial Court. 2.6. In the appeal, the Industrial Court considered the decision by learned labour Court. Having reached such conclusion learned Labour Court rejected the application. 2.5. Feeling aggrieved by said decision, present petitioner bank filed appeal before Industrial Court. 2.6. In the appeal, the Industrial Court considered the decision by learned labour Court. On consideration of entire evidence, which obtained on record, learned Industrial Court reached contrary conclusion and disagreed with the conclusion by the learned labour Court that the claimant was employed in supervisory category and that he was not "employee" within the term of Section 3(13) of the Act. At that stage and with said conclusion, the Industrial Court proceeded further in the Appeal and instead of remanding the matter to learned Labour Court for examining case on merits the Industrial Court decided the case on merits. Learned Industrial Court reached to the finding that the action of discontinuing service of the claimant is not justified and that the termination is illegal. Having reached such conclusion learned Labour Court passed impugned judgment. 2.7. In view of the fact that the claimant had already attained age of superannuation, learned Industrial Court directed the bank to pay 100% backwages and all benefits from the date of termination till the date when the claimant attained age of superannuation. 3. Mr. Patel, learned advocate assailed the judgment and order passed by learned Industrial Court on diverse grounds. He submitted the learned Industrial Court erred in holding that the applicant was not engaged in supervisory category and that the applicant was "employee" within meaning of the term of Section 3(13) of the Act. According to learned advocate for the bank, the learned Industrial Court ignored relevant evidence and also misconstrued the evidence and the learned Industrial Court assumed several aspects which are not borne out from the evidence on record and that therefore the said finding is unjust, erroneous and arbitrary. Mr. Patel, learned advocate for the petitioner bank, submitted that without holding that the findings of fact recorded by the learned Labour Court with regard to nature of duties of the original claimant and his status are perverse, the learned Industrial Court could not have interfered with and could not have disturbed the findings recorded by the learned Labour Court and/or the final conclusion of and order passed by the learned Labour Court. He further submitted that when the fact and evidence that the clerks and subordinate officers worked under him and he supervised their work was not challenged before the learned Industrial Court, there was no base or justification for the learned Industrial Court to hold that the claimant did not work in supervisory cadre or that he would come within purview of Section 3(13) of the Act and that learned industrial Court ignored the evidence or purport of the evidence by witness Sarojben. Mr. Patel, learned advocate for the petitioner bank, further submitted that the learned Industrial Court committed error in disregarding the evidence that the claimant could not read except with the help of magnifying glass which greatly affected the working capacity of the concerned employee and that the said defect hampered the work of the bank and it was major obstacle in performance of duty by the claimant. Learned advocate for the petitioner bank also submitted that the learned Industrial Court failed to appreciate that the bank had not discontinued service of the claimant as penal action against him. He further submitted that the learned Industrial Court proceeded on the premise of inference and conjunctures with regard to the job description and nature of duty of the claimant, more particularly in view of the fact that it was not even the case of the respondent that he was not working as Accountant. Learned advocate for the petitioner bank also submitted that the learned Industrial Court erred in rejecting the contention that such termination would fall within exception prescribed under Section 2(oo) of the Act and it would not amount to retrenchment and in any case the termination cannot be termed arbitrary or unjust and illegal. He further submitted that the learned Industrial Court ignored that the claimant never reported for duty with fitness certificate and that therefore, order directing the bank to pay backwages to the claimant is unjustified. 4. Per contra, Mr. Clerk, learned advocate for the respondent - original claimant, opposed the petition and submissions by learned advocate for the petitioner bank. He submitted that the learned Industrial Court has not committed any error in the judgment. He submitted that the learned Industrial Court has taken into account deposition/report by Dr. 4. Per contra, Mr. Clerk, learned advocate for the respondent - original claimant, opposed the petition and submissions by learned advocate for the petitioner bank. He submitted that the learned Industrial Court has not committed any error in the judgment. He submitted that the learned Industrial Court has taken into account deposition/report by Dr. Hinaben Talsani who stated in her evidence that the claimant can read letters of size H-10P and N-6, which establishes that there was no disability for the claimant in discharging his duties. He also submitted that at any point of time, any superior officer had not instructed the claimant on the premise that the claimant was not performing his duties or that he was slow in discharging his duties or his performance was inadequate. Mr. Clerk, learned advocate for the respondent workman, submitted that the bank acted upon report of a doctor without supplying copy thereof to the petitioner. Mr. Clerk, learned advocate further submitted that checking account statements, books, ledgers and other statements would fall within purview of clerical work and it cannot be construed supervisory duty. Mr. Clerk, learned advocate for the respondent - original claimant further submitted that the Bank had not passed and not issued order granting Accountant's designation and that Industrial Court took note of said fact and did not accept Bank's contention. He relied on the decision in case of Lloyds Bank v. Panna Lal Gupta & Ors. [ 1961 (1) LLJ 18 ], The Punjab Co-operative Bank Ltd. v. R.S. Bhatia (Dead) Through L.Rs. [ (1975) 4 SCC 696 ], National Engineering Industrial Ltd., v. Shri Krishan Bhageria & Ors. [ AIR 1988 SC 329 ] and the decision in case of Bachahan Devi & Anr. v. Nagar Nigam, Gorakhpur & Anr. [ (2008) 12 SCC 372 ]. 5. I have considered rival submissions by contesting parties and I have also considered the material available on record as well as the judgment by learned Labour Court and by learned Industrial Court. 6. In view of the controversy involved in present case, it would be appropriate to first deal with rival contentions with reference to the decision as to the status of the claimant i.e. whether the claimant would fall within purview of Section 3(13) of the BIR Act, or not. 6.1. 6. In view of the controversy involved in present case, it would be appropriate to first deal with rival contentions with reference to the decision as to the status of the claimant i.e. whether the claimant would fall within purview of Section 3(13) of the BIR Act, or not. 6.1. The said aspect can be examined and decided in light of the nature of duties performed by the claimant. Therefore, it is relevant to take into account doctrine of "Dominant Duty" and the principle of "purpose of appointment". Hon'ble Apex Court has clarified that mere conferment of some supervisory duty or authority would not be sufficient to lead the Court to the conclusion that the concerned person is employed in supervisory category. Hon'ble Apex Court has explained that for determining said aspect, the Court should find out (a) object and purpose of appointment of concerned person and the substantial and major part of the duties and function of the concerned officer. If the supervisory functions or duties constitute major part of the work of the concerned person or major part of the purpose for which the concerned person is engaged or posted/deployed, then, he can be considered in category of supervisor, however, if the substantial part of a person's duties and function are of clerical or manual nature and minor/small part of his duties and functions are of supervisory nature, then, the person cannot be categorized as supervisor. 6.2. For addressing these aspects and for taking into account the said guidelines and for determining status of an employee in a given case adequate and cogent evidence, which could bring out and establish such distinction, should be available on record. The parties would be obliged to lead such evidence and place it before the learned Labour Court for consideration. Only if adequate evidence which would clearly bring out such distinction is available on record, then only, the Court can reach to just, correct and fair conclusion about the status of the claimant. 6.3. So far as the claimant is concerned, his own deposition and the deposition of Branch Manager at Vapi Branch is recorded. Whereas for the Bank, deposition of Mr. V.C. Parekh is recorded. 6.3. So far as the claimant is concerned, his own deposition and the deposition of Branch Manager at Vapi Branch is recorded. Whereas for the Bank, deposition of Mr. V.C. Parekh is recorded. From said evidence and from documents on record, it has emerged that at the relevant time, the claimant was posted at and worked at Vapi Branch and before he came to be transferred/posted at Vapi Branch, he was posted at and worked at head-office. 6.4. According to the claimant, the duties which he performed at head office (before he was transferred and posted at Vapi branch) comprised the duty to : (1) check branch voucher, salary registers and the registers maintained in compliance of Sections 18 to 24, (2) check all document, etc. of share department and to undertake correspondence on behalf of the bank with the shareholders in respect of share application, share capital and to check all supplementary, (3) do all work related to G.M. Desai Smarak Fund and Trust Foundation, (4) maintain stationary register and record the income and flow of stationary, to call quotation for stationary printing and to make all arrangement for printing of stationary and supply stationary to all branches as per the requirement received from branch, sanction bills for the stationary, complete all formalities for releasing payment to the suppliers, (5) prepare monthly pay register of all branches and do such other work which may be assigned by General Manager. 6.5. The said fact is admitted by the witness of the claimant i.e. Branch Manager Ms. Sarojben who admitted in her deposition that the claimant worked as "Accountant" at Vapi branch. 6.6. It is also not in dispute that the duty list or job description of "Accountant" is not available on record (was not available on record before either Labour Court or Industrial Court). 6.7. The claimant alleged that even after he was transferred to Vapi branch, there was no change in nature of duties and he continued to perform same duties. According to the claimant any additional or additional authority was not conferred to him as compared to the duties and functions or authority which he had while he was working at the head office. 6.8. Whereas the Bank's witness Mr. According to the claimant any additional or additional authority was not conferred to him as compared to the duties and functions or authority which he had while he was working at the head office. 6.8. Whereas the Bank's witness Mr. Parekh stated in his deposition that the claimant had initially joined as Clerk and that the claimant was transferred to Vapi branch as Accountant and he worked there as Accountant. The Bank's witness accepted that any formal order designating the claimant as Accountant was not issued. He also stated in his cross examination that at the time when he was working at head office, he was working as officer. 7. Below mentioned aspects have emerged from deposition by the claimant and claimant's witness, which are relevant and deserve to be kept in focus. [a] It is pertinent that the claimant did not describe nature of his duties and the functions which he performed regularly (i.e. on day today basis) as Accountant at Vapi branch. [b] It is pertinent that during his cross examination, the claimant admitted that :- (i) at the time when he was relieved from service, he was not member of staff/employees' union, (ii) the claimant also accepted that after he became officer, certain clerks worked under him and he used to check and supervise the works of the clerks who worked under him; and (iii) after he was made officer, he was responsible for the work of clerks who worked under him. [c] even the Branch Manager of Vapi branch (who was examined as claimant's witness) accepted that (i) the claimant was "Accountant" and he worked as "Accountant" at Vapi branch; and (ii) three officers and about five to six clerks worked under the claimant; and (iii) the claimant used to supervise work of the said three sub-offices and about five to six clerks. 8. On the other hand, the bank examined one Mr. V.C. Parekh. The witness of the Bank, said Mr. Parekh described the duties and functions of the claimant. 8. On the other hand, the bank examined one Mr. V.C. Parekh. The witness of the Bank, said Mr. Parekh described the duties and functions of the claimant. He deposed that:- (i) according to the administrative set-up of the bank, clerk and sub-officers work under supervision of Accountant; and (ii) three to four sub-officers and five to six clerks worked under him while he worked as Accountant; and (iii) as Accountant and superior officer, his duties and functions included supervision of work of said sub-officers and clerks who worked under him; and (iv) at the relevant time, basic salary of the claimant was Rs.3,390/- and gross salary of the claimant was Rs.10,000/-. 9. So far as the canvas of evidence is concerned, this is all that is available on record of present petition. 10. To support the contention about claimant's status, the learned counsel for the claimant would place reliance on Exh.27 (Duty List). Undisputedly, the said duty list reflects those duties which the claimant performed at the Head Office i.e. prior to his transfer as Accountant at Vapi branch and the said list does not contain and/or does not reflect claimant's duties as Accountant at Vapi branch. 11. In this background, the claimant contended that order promoting him as Accountant was not issued and that he performed same duties. Whereas, the Bank has claimed that the duties and functions as well as authority of the claimant substantially changed after he was transferred to and posted as Accountant at Vapi branch inasmuch as duties and functions and authority of Accountant are different from duties and functions which the claimant performed at Head Office. 11.1. So far as said contention is concerned, it is relevant to recall and note that the claimant's witness i.e. Branch Manager at Vapi branch admitted and accepted that claimant worked as "Accountant" and that about 3 or 4 sub-officers and 5 to 6 clerks worked under the claimant, however, she did not specifically narrate and describe exact duties and functions of the claimant. 12. 12. What emerges on overall consideration of the evidence is that on account of inadequate evidence, so far as the duties and functions actually performed by the claimant as Accountant at Vapi branch is concerned, there is lack of clarity about the duties and functions which the claimant was required to perform and which he actually performed as Accountant at Vapi branch, despite the fact that the Branch Manager at Vapi branch (i.e. claimant's witness) has accepted and admitted during her examination in chief that the claimant was posted as and he worked as Accountant at Vapi branch and also despite the fact that it is not in dispute that at head office, the claimant was not engaged and/or working as Accountant. 12.1. It is pertinent that neither the claimant himself nor the said witness of the claimant (i.e. Branch Manager) expressly described exact duties which the claimant was required to perform and which he actually performed as Accountant at Vapi branch and neither of them specifically stated and asserted that the nature of duties of the claimant remained the same after his transfer to Vapi branch or whether there was any minor or substantial change in the duties and functions performed by him at Vapi branch as compared to the duties and functions performed by him at head office. Such evidence is not available on the record. 13. In this backdrop and despite admission by his witness (by Branch Manager at Vapi Branch), the claimant claimed that any order conferring status and designation of Accountant or granting promotion to the post of Accountant was not issued and served to him. 14. However, in the same breath, the claimant himself has, during his examination in chief, accepted and stated that at the time when his service came to be terminated, he was working as Accountant and that at the time when his service came to be discontinued, he was not member of union and sub-officer and clerk worked under him and he used to check and supervise work of the clerk and his own witness admitted that the claimant was her Accountant and he worked as Accountant in her Branch. 15. 15. Thus, actually and in effect, the contention raised on the ground that the Bank had not issued order with the designation of accountant, would pale into insignificance in light of said admission by claimant and his witness and in light of the fact that staff of sub-officers and clerks worked under the claimant. According to hierarchy and practice in the Bank sub-officers and clerks, ordinarily, work under the control, supervision and guidance of Accountant. 16. However, what is relevant is the fact that the extent and degree of control and supervision which an "Accountant" in the petitioner bank would exercise is not established. Except the fact that couple of sub-officers and 5 to 6 clerks worked under claimant at Vapi branch, any other cogent evidence with regard to exact nature of duties and functions of the claimant and/or extent or degree of the authority which the claimant exercised at Vapi branch and whether his supervisory function was major/substantial part of claimant's duty or clerical function was major and principal part of his duties, is not shown by either side and such is not available on record. 17. To put it in nutshell, the claimant and his witness left the evidence half way or half baked and the evidence which is available on record is inadequate and it is neither sufficient nor satisfactory nor cogent to lead the Court to legally sustainable conclusion with regard to the extent of or degree of supervisory function (if any) vis-a-vis clerical function (if any) which the claimant actually performed as Accountant at Vapi branch and that therefore, it is difficult to ascertain as to whether extent of supervisory function was more or extent of clerical duty was higher. 18. Interestingly, on the basis of same evidence which was available on record, the learned trial Court and learned first appellate Court have reached to and arrived at diagonally and diametrically opposite conclusion. Actually, element of surmises and presumption is more in the decision by learned Industrial Court than substance of cogent, relevant and specific evidence. 18.1. In such circumstances, ordinarily, this Court would remand the proceedings to the learned Labour Court for inviting and recording fresh, sufficient and cogent evidence and to decide the issue afresh in light of such evidence. Actually, element of surmises and presumption is more in the decision by learned Industrial Court than substance of cogent, relevant and specific evidence. 18.1. In such circumstances, ordinarily, this Court would remand the proceedings to the learned Labour Court for inviting and recording fresh, sufficient and cogent evidence and to decide the issue afresh in light of such evidence. However, in present case, it is emphasized by both sides that the claimant has crossed 72 years or 73 years of age and more than 20 years have passed since the proceedings commenced and that therefore, proceedings may not be remanded. Under the circumstances, the alternative or option of remanding the proceedings does not appear feasible or justified. 19. Having regard to the observations by Hon'ble Apex Court in case of Lloyds Bank, Ltd. v. Panna Lal Gupta & ors. [[ 1961 (1) LLJ 18 ] and also having regard to the fact that the nature and duties which the claimant performed at the time when he worked at the head office undisputedly established that the claimant worked as workman at the head office; this Court would accept the conclusion reached and recorded by learned Industrial Court, more particularly because (1) on one hand the duties which claimant performed at head office puts the claimant in the purview of Section 3(13) and on the other hand (2) there is lack of sufficient and satisfactory evidence to establish that there was material change in the nature of duties of the claimant when he came to be posted as Accountant at Vapi branch; and (ii) the bank failed to place on record relevant and substantial evidence to establish that there was substantial or material change in duties and functions of the claimant which the claimant performed at Vapi branch as compared to and in contradistinction to his duties at the head office and (iii) there is also want of evidence to establish as to whether degree or extent of supervisory power was more or degree of clerical duties was more. In this view of the matter, the Court accepts the conclusion by learned Industrial Court. 20. In this view of the matter, the Court accepts the conclusion by learned Industrial Court. 20. Of course, better course of action, in ordinary course would have been to remand the proceedings to the learned trial Court, however, in present case, upon considering submissions by learned counsel for the bank and learned counsel for the claimant, the Court is persuaded to decide the case on the basis of available evidence, instead of remanding the matter to learned trial Court. Besides this, having regard to the fact that the claimant has reached advance age i.e. about 72 years, learned advocate for the petitioner bank fairly submitted that at this stage, the petitioner bank does not press the issue with regard to propriety of learned Industrial Court's decision of not remanding the case to learned Labour Court and deciding the case finally. 21. Under the circumstances, this Court has also accepted the submission by learned counsel for the claimant and the fair stipulation and declaration by learned advocate for the petitioner bank. It is, however, clarified that the course which ought to have been ordinarily followed is not followed at the request of learned counsel for the claimant and with consent of learned advocate for the petitioner bank and in view of peculiar and special facts and circumstances of the case. Another reason which has persuaded the Court to make exception and instead of remanding the case to decide the matter on the basis of available evidence is the fact that more than 20 years have passed by and the concerned Manager either at the head office or at Vapi branch would not be available now to appear before the learned trial Court and give evidence with regard to the nature of duties and functions which the claimant actually performed at the relevant time and substantial change must have occurred in performance of duties and functions by the clerks, supervisors and offices in the petitioner bank with passage of time and technical up gradation, actual purpose of remanding the case will not be served. 22. Therefore, the issue which is now required to be considered is as to whether petitioner's action of discontinuing service of the claimant was justified and whether the learned Industrial Court is right and justified in holding that the termination of service of the claimant was not necessary and termination was not effected in accordance with law. 22.1. 22. Therefore, the issue which is now required to be considered is as to whether petitioner's action of discontinuing service of the claimant was justified and whether the learned Industrial Court is right and justified in holding that the termination of service of the claimant was not necessary and termination was not effected in accordance with law. 22.1. On this count, it is pertinent to note that after having disbelieved and after having rejected the contention that the termination of the claimant's service would fall under exception prescribed under Section 2(oo) of Industrial Disputes Act, learned Industrial Court reached to the conclusion that the termination of claimant's service amounts to retrenchment. Having reached such conclusion, learned Industrial Court has observed that since the bank had undisputedly not complied the conditions prescribed by section 25F, the termination is illegal. Whereas according to the bank, the claimant's service was terminated on account of claimant's "continued ill-health" and that therefore, the case would fall under clause (c) of Section 2(oo) of Industrial Disputes Act. 22.2. The petitioner has challenged said conclusions. Therefore, it is necessary to determine whether the termination would fall within the purview of Section 2(oo) or it would be covered by exception prescribed under clauses (a) to (c) of Section 2(oo) of I.D. Act. 23. According to one of the exceptions under said Section 2(oo) if service of workman is terminated on the ground of "continued ill-health", then, such termination would not amount to "retrenchment". 23.1. Undisputedly, in present case, the petitioner bank has not complied conditions prescribed under Section 25-F of I.D. Act. However, the applicability of the said provision and breach of conditions would arise only if it is established that the termination of claimant's service amount to retrenchment. The said termination would amount to retrenchment if the reason for termination does not fall within the purview of clause (a) to (c) of Section 2(oo) more particularly clause (c) because bank relieved the claimant on the ground of "continued ill-health". 23.2. So as to determine as to whether the termination of service of the claimant would fall in the category of termination on account of "continued ill-health" or not, it is necessary to trace the background in light of which the service of the claimant came to be terminated. 23.3. 23.2. So as to determine as to whether the termination of service of the claimant would fall in the category of termination on account of "continued ill-health" or not, it is necessary to trace the background in light of which the service of the claimant came to be terminated. 23.3. It has come out from the evidence available on record that the claimant had undergone surgery for removal of cataract. It has also emerged from the record that after the claimant had undergone said surgery, he did not report for work for almost 3 months on the ground that the doctors had advised him to give rest to the eyes and to not take too much strain. According to the case of the bank when the claimant resumed duties after the surgery, he had difficulty in reading letters and figures in the ledger, other books of account, correspondence, etc. and that the claimant was not able to read without magnifying glass which affected his work. In this background, the claimant was asked to submit to medical check up. Thereafter, the claimant was examined by Dr. Pant. 23.4. On this count, it is relevant as well as interesting to note that Dr. Pant certified (certificate dated 17.2.1994) that the claimant suffered disability viz. "low vision" and he was not able to read letters/figures of less than N6 size. The claimant appears to have got his eyes examined by Dr. Pulok Mukherjee. It is claimed that Dr. Mukherjee's opinion and certificate deferred, to some extent, from Dr. Pradeep Pant's certificate. The claimant was also examined at civil/general hospital and a certificate dated 6.4.1994 was issued. The claimant has alleged that Dr. Pant had advised him to take treatment by Dr. Shroff. However, the claimant seems to have only got his eyes examined by Dr. Shroff but he does not appear to have undergone treatment as suggested and recommended by Dr. Pant. 23.5. Further interesting part which emerges from the evidence of said doctors is that Dr. Mukherjee has deposed that the claimant was fit to report for duty but said doctor also accepted that he was not informed either about the problem or the difficulty or the purpose for which he was asked to give the certificate. Another important feature which emerges from Dr. Mukherjee's deposition is that he clarified that with regard claimant's vision on 25.12.1993 he issued certificate on 13.2.1995. Another important feature which emerges from Dr. Mukherjee's deposition is that he clarified that with regard claimant's vision on 25.12.1993 he issued certificate on 13.2.1995. Meaning thereby, Dr. Mukherjee issued the certificate after about 26 months about the condition of claimant's vision before 26 months. Further, said certificate was issued after the termination order dated 29.3.1994. 23.6. On the other hand, Dr. Talsaniya also clarified in her deposition that the certificate issued by her merely clarify the condition of claimant's vision, however, certificate does not address the issue/does not certify whether the claimant would be able to perform his duties and functions as bank's employee or not and that said aspect can be decided only after considering the nature of the duties and function which the claimant is or may be obliged to perform as bank's employee and the said details were not available with her when she examined the claimant and issued the certificate. She also clarified that she did not issue the certificate after taking into account the duties and functions of the claimant and the degree of vision which would be necessary for performing the duties which the claimant is/may be required to perform. 23.7. From reading the evidence conjointly it becomes clear that on this count also there is absence of unanimous clear opinion about condition of claimant's vision and his fitness to perform his regular, routine and day-to-day duties and functions. From the said opinions/certificates and evidence, it does not come out clearly as to whether the claimant was fit to normally and comfortably perform his routine and day to day functions and duties, or not. 23.8. The certificate issued by Dr. Pant is placed on record of this petition and relevant part of the said certificate reads thus :- "I have examined Mr. J C Bhatt, dated 11/2/1994 his grion is 6/36 6/24P 6/36 with glasses Near grion is N/8 with Glasses (He cannot read N/6, N/8, N/10 which is routine near grion) on examination Both eyes should E. CCE (Cat operation) should thnde past caprsule LE respondent Retina should - Myopic Cresent Both eyes Degentrathne chanrges Floral Refler is dull (H/o. Myyopria - since childhood) Impression : In my opinion Mr. J C Bhatt is not able to read and write (Starting from Vn N/6 to N/12) which required to do this routine work." 23.9. J C Bhatt is not able to read and write (Starting from Vn N/6 to N/12) which required to do this routine work." 23.9. The certificate issued by the Doctor at Civil Hospital reads thus:- "CERTIFICATE This is to Certify that Shri Jyotindra C. Bhatt is examined by me today. He is having Pseudophakia BE this visual Activity with glasses is Rt. 6/18 P. N/10P learned Tribunal. 6/19, N/6 BHV/Certi/955/94 General Hospital Sd/- Valsad Superintendent Date: 6/4/1994. General Hospital, Valsad." 23.10. The said certificate brings out that the claimant had the disability of "low vision". 24. In this background, it is relevant to note that though the bank alleged in the notice and in the termination order that the claimant was not able to read without help of magnifying glass it did not place any material on record which would establish that the Bank had received report or complaint against the claimant about his performance. 24.1. Actually, the Branch Manager of Vapi branch (i.e. the claimant's immediate superior at the relevant time) has, in her deposition, said that she had not submitted any complaint or report against the claimant with regard to any deficiency in claimant's performance of duties or that the claimant was not able to normally discharge his functions or that he was very slow in performing his duties and that she had no grievance or dissatisfaction or complaint about performance of duties by the claimant. The Bank did not establish the case and the fact that the management had received report/s and/or complaint/s against the claimant's incapacity to perform duty or any deficiency. Any complaint or report is not placed on record. 24.2. Of course, an officer from head office (Bank's witness Mr. V.C. Parekh) stated that claimant used magnifying glass and pace of performance had reduced after cataract operation. However, it is pertinent that on one hand, his said statement is not supported by any written report/complaint whereas on the other hand, the Branch Manager at Vapi did not support Mr. Parekh's statement and her deposition is contrary. 25. In this background even if, for the sake of examining the Bank's case and the petitioner's challenge against the award, said statement by Mr. Parekh and the allegation in the notice are assumed to be justified then also a question would arise viz. Parekh's statement and her deposition is contrary. 25. In this background even if, for the sake of examining the Bank's case and the petitioner's challenge against the award, said statement by Mr. Parekh and the allegation in the notice are assumed to be justified then also a question would arise viz. whether the said handicap would amount to or can be construed as "continued ill-health" contemplated under clause (c) of Section 2(oo) of the Act. 25.1. Actually, any exhaustive and composite standard or precise definition about "continued ill-health" cannot be laid down. However, broadly stated the said expression means the state of health on account of which an employee is incapacitated from attending his work-place and/or performing his normal, routine duties or is rendered unable to perform day-to-day functions. The issue whether the employee suffers from continued ill-health or not is question of fact and final conclusion would, mostly, depend on nature of duty, type of establishment, position/status of the employee and degree or extent of the effect of the physical disability on the performance of duty. 25.2. So as to support and justify the claim that the employee is incapacitated and is unable to perform his duties there should be sufficient, credible and satisfactory evidence to establish that (a) physical or mental health of the employee is affected; (b) the ailment hit the employee after he joined the service; (c) the state of ill-health should have continued without improvement and should have kept the employee continuously incapacitated from attending and/or normally performing his duties for such period which would justify such conclusion; and (d) there should be likelihood, supported by proper medical expert's opinion, that the status-quo with reference to the state of ill-health is not likely to end or improve and present state of ill-health is likely to continue for long time; and that (e) there is co-relation between ill-health and performance (i.e. capacity and ability to perform normal and routine duties); and (f) the employee will not be in position to or will not be able to perform his duties in normal manner. 25.3. 25.3. Having regard to the object of Section 2(oo) and simultaneously having regard to the object of carving out exception from the ambit of retrenchment defined under Section 2(oo) of I.D. Act, the sub-clause (c) of clause (oo) of Section 2, more particularly the expression 'continued ill-health and the action or plea based on clause (c) of Section 2(oo) must be construed strictly and in narrow compass. Otherwise, the provision can be abused. It is pertinent that the said clause carves-out an exception from the purview of "retrenchment" under Section 2(oo) and from the conditions prescribed by Section 25F of the Industrial Disputes Act. The said Section 25F provides protection and some succour to the employee who is thrown into or is about to be thrown into abyss of unemployment. Since the said clause (c) of Section 2(oo) carves out an exception from such welfare provision, the said clause should be strictly construed so as to guard against misuse of that provision and so as to ensure that only genuine cases of ill-health would fall within purview of the expression "continued ill-health". Otherwise, unscrupulous employer may misuse the said provision and if an unwanted employee is unable to attend duty, on account of some illness, for few weeks or couple of months, then also the employer would grab such opportunity and invoke clause (c) and would terminate service of employee. 26. Reverting to the facts, it has emerged that the bank has not proved that the deficiency in vision had incapacitated the claimant from attending his duties and/or it had affected claimant's normal and routine functioning in such a way that he was not able to perform his regular day-to-day duties usually and normally manner. 26.1. 26. Reverting to the facts, it has emerged that the bank has not proved that the deficiency in vision had incapacitated the claimant from attending his duties and/or it had affected claimant's normal and routine functioning in such a way that he was not able to perform his regular day-to-day duties usually and normally manner. 26.1. Even if the allegation by the bank that the claimant required magnifying glass is to be believed, then also, merely because an employee needs help of magnifying glass in reading particular size of letters or figures, then also, the claimant's physical condition may be categorized as "low vision" where the employee may need some device to read and write but it is far fetched to place such physical condition into category of "continued ill-health" inasmuch there is no complaint or report or other cogent evidence to establish that due to such physical disability the claimant was incapacitated from attending the Bank and he was wholly unable and incapacitated from performing his routine and day-to-day duties. Of course, there is deposition by Mr. Parekh, however, that evidence is, to considerable extent, damaged or diluted by the deposition of Branch Manager at Vapi. 26.2. At the same time, one cannot ignore the fact that "low vision" is a recognised "disability". In this context, profitably reference can be had to the provisions under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 where the term 'disability' is defined under Section 2(i) in the following terms: "2(i) "Disability" means - (i) Blindness; (ii) Low vision; (iii) Leprosy-cured; (iv) Hearing impairment; (v) Loco motor disability; (vi) Mental retardation; (vii) Mental illness;" 26.3. In this context, it is also appropriate to draw analogy from Section 33 of said Act which provides that in every government establishment three percent reservation should be provided for persons suffering from "Blindness or low vision". 26.4. In this view of the matter, in present case, before terminating service of the claimant, the bank ought to have considered the option of allotting alternative duty or function to the claimant or could have explored some modification in respect of combination of his duties. 26.5. True it is that the Court can not and should not substitute its view or its own assessment of facts for that of the employer, with regard to such aspects viz. 26.5. True it is that the Court can not and should not substitute its view or its own assessment of facts for that of the employer, with regard to such aspects viz. whether employee is performing his duties normally or not and/or whether he is fit to perform his duties normally or he is incapacitated. However, the Court can certainly examine as to whether there was adequate, relevant and germane material and cogent evidence available before the employer which could have led the employer to such conclusion and which would justify the decision of terminating employee on the ground that he suffered 'continued ill-health'. 27. In present case, it has emerged from foregoing discussion that there was want of sufficient and satisfactory (quality and quantity) evidence and lack of clarity or unanimity about claimant's fitness to normally perform his day-to-day and routine duties and function and despite that situation the petitioner bank terminated service of the claimant. Important and relevant part of this matter is that the Bank failed to show any complaint or report stating that the claimant was incapacitated to attend and perform his duties and routine functions. 27.1. Therefore, this Court is convinced to hold that though the petitioner bank may be right in forming an opinion that the claimant suffered from low vision or some sort of defect or disability related to vision, the decision to terminate the employee on ground of "continued ill-health" i.e. invoking clause (c) of Section 2(oo) was not justified. The major defect so far as bank's decision is concerned is that its conclusion about claimant's inability to perform duties is not supported by its Branch Manager. Further, even the bank's witness i.e. Mr. V.C. Parekh, during his cross-examination, accepted and admitted that the bank had not received any written complaint from any employee or from superior officer. 27.2. Foregoing discussion brings out that the case of the claimant cannot be treated as case of "continued ill-health" and it would not fall within purview of sub-clause (c) of clause (oo) of Section 2 and therefore, the termination of claimant's service would tantamount to retrenchment. Consequently, the bank ought to have followed the procedure and complied the conditions prescribed under Section 25F read with Rule 81 of Industrial Disputes (Gujarat) Rules. 28. Consequently, the bank ought to have followed the procedure and complied the conditions prescribed under Section 25F read with Rule 81 of Industrial Disputes (Gujarat) Rules. 28. This is one part of entire matter, however, when the Court is examining the justification of bank's action, the other perspective should also be taken into account and it cannot be ignored. 28.1. On this count, it is relevant to note and necessary to keep in focus that on one hand, it cannot be denied that the claimant suffered from disability of "low vision" and on the other hand, the bank had, before passing the order terminating service of the claimant, asked the respondent to get himself examined by ophthalmologist. Since, differing opinions of doctors came before the bank, the bank had, after considering of such differing opinions, instructed the employee to proceed on leave for period of 30 days and to get proper treatment and to report for duty with fitness certificate. Differently put, the bank indeed granted opportunity to the claimant for establishing that he has undergone adequate treatment and he is fit to perform all duties in normal and comfortable manner. However, after proceeding on leave, pursuant to the suggestion/instruction by the bank, the claimant did not report for duty with fitness certificate. 28.2. The evidence on record also gives out that actually the claimant was asked to undergo appropriate treatment (Bank's letter dated 22.2.1994), however, the claimant does not seem to have taken any treatment. Now, it is not the case even of the claimant that before or after 22.2.1994 (more particularly after cataract operation i.e. when he developed the defect), he had undergone appropriate treatment. All that the claimant said in his evidence is that he got his eyes examined by Dr. Shroff. Any certificate of Dr. Shroff is not found on record. Even if facts are assumed in claimant's favour the fact remains, which cannot be ignored, that after 22.2.1994 the claimant did not report for duty with fitness certificate and did not resume his duties. The fact remains that after advising the claimant on 22.2.1994, the Bank seems to have waited till 28.3.1994 and since claimant did not report for duty his service came to be terminated on 29.3.1994. In this view of the matter, the claimant's conduct for not reporting duty cannot be considered justified or reasonable conduct on the part of the employee. 29. In this view of the matter, the claimant's conduct for not reporting duty cannot be considered justified or reasonable conduct on the part of the employee. 29. When overall view of above mentioned facts is taken, then, it comes out that blame or error in final decision and impugned action of the management cannot be placed solely on the shoulder of the bank or on the shoulder of the claimant. Fault in conduct and error decision lie at both ends. Therefore, as mentioned above, there is need for apportionment of error and consequence. 29.1. In this background and in such circumstances, entire burden of blame cannot be thrown on the shoulders of the petitioner bank. The claimant and his conduct are, if not equally, then also, to considerable extent responsible for or the reason for the Bank's action. Under the circumstances, there must be apportionment of the mistake and consequences and the decision by learned Industrial Court need to be partly set aside and modified. 29.2. On this count, it is relevant to recall and note that at the time when the learned Industrial Court decided the case, the claimant had attained age of superannuation and therefore, the question as to whether the bank should be directed to actually reinstate the claimant did not survive even before the learned Industrial Court. 29.3. Having regard to said aspect, learned Industrial Court directed the bank to pay full wages and other benefits from the date of termination until the date when the claimant attained age of superannuation. In light of foregoing discussion, it has emerged that for above discussed reasons, the said direction deserves to be partly set aside and modified. 30. This Court is of the view that if the petitioner bank is directed to pay 55% backwages and other benefits available to the claimant in accordance with bank's rules and regulations, then, it would meet with the ends of justice and said direction would balance equities. Therefore, following order is passed:- [a] Impugned judgment and order by learned Industrial Court is partly set aside and modified. Therefore, following order is passed:- [a] Impugned judgment and order by learned Industrial Court is partly set aside and modified. [b] The direction to pay 100% backwages from the date of termination until the date when the claimant attained age of superannuation is set aside and modified and reduced to 55% backwages with direction that the petitioner bank shall pay 55% backwages from the date of termination to the date of superannuation and the claimant's service for the said period shall be considered continuous. The said direction by learned Labour Court i.e. to consider claimant's service continuous for the said intervening period is not disturbed. It is clarified that only direction with regard to payment of backwages is modified to the aforesaid extent. With aforesaid clarification and direction, the impugned award is partly set aside and modified. Petition is partly allowed. Rule is made absolute to the aforesaid extent.