(1.) THE first respondent herein was appointed as the Jewel appraiser in the jalakandapuram Branch of the Petitioner Bank in 1960. On September 30, 1966 the petitioner herein sent a communication to the first respondent herein which stated that the first respondent herein was completing sixty years of age on 15th purattasi, Parabhava, equivalent to October 1, 1966, and as per the Articles of the association, he shall retire from the service of the Bank and will be relieved completely at the close of business on Saturday, the 1st October, 1966, On receipt of this communication, the first respondent herein purported to file an appeal to the second respondent herein under Section 41 (2) of the Madras Shops and establishments Act, 1947 (hereinafter referred to as the Act ). In the appeal filed by the first respondent, he contended that on October 1, 1966, his services were terminated alleging that he had completed sixty years of age and the horoscope and the medical certificate furnished by the first respondent proved that the age of the first respondent was only fifty four, and hence the termination of the first respondent's service was wrongful and against the provisions of the Act. The petitioner herein filed a counter statement before the second respondent herein contending that the second respondent had no jurisdiction to deal with the matter, since discharge on retirement was not contemplated in Section 41 (1) of the Act the further case of the petitioner was that the first respondent was asked on June 15. 1966 to produce an educational certificate to prove his age and he took time till September 20, 1966, that the first respondent was not asked to produce a medical certificate or any horoscope, that they have been produced of his own accord, that the horoscope produced by the first respondent could not be the original horoscope and was a recent one fabricated and written for the purpose and its authenticity and antiquity were both denied. The further case of the petitioner was that the horoscope and the medical certificate were not admissible forms of proof of age and the petitioner would not be bound to accept the same. The second respondent herein considered the case of the parties and passed an order on November 30. 1967 in M. S. E. Case No. 42 of 1967. The second respondent overruled the contention of the petitioner that Section 41 of the Act has no application to the retirement, and on merits, came to the conclusion that the first respondent's services had not been terminated in the manner contemplated by Section 41 of the Act The second respondent recorded; "as already observed, the respondent (petitioner herein) was not able to explain for having accepted horoscope and medical certificates as proof of age In respect of certain other employees and not having accepted them as satisfactory proof of age in the case of the appellant (first respondent herein ). Further, no notice as required under Section 41 (1)of the Madras Shops and Establishments Act has been given to the appellant before giving effect to Exhibit A-J, (the memorandum dated september 30. 1966 referred to already ). I therefore hold that the termination of the appellant's services by retirement as per the order of the respondent dated 30-9-1966 (Exhibit A-1) would not be for a reasonable cause as the appellant had been retired from service without resolving the dispute regarding his age on that date. Inasmuch as there was no reasonable cause for the termination of the appellant's services by retirement and since the statutory notice was also absent, the termination of the appellant's services by retirement as per Exhibit A-1 dated 30-9-1966 is illegal. I therefore, set aside the order of termination by retirement dated 30-9-1966. " it is to quash this order of the second respondent, the present Writ Petition under article 226 of the Constitution of India has been filed.
(2.) THE learned counsel for the petitioner put forward two contentions in support of the Writ Petition. The first is that the appeal preferred by the first respondent to the second respondent was not maintainable since the retirement of an employee by an employer on the employee reaching the age of superannuation does not come within the scope of Section 41 of the Act. The second is that in coming to the conclusion that the first respondent's services had not been terminated lawfully, the second respondent had failed to consider very important circumstances and facts that were placed before him and that were available to him, I shall now consider these contentions in that order.
(3.) AS far as the first contention is concerned it is necessary to refer to the language of Section 41 (1) of the Act. Section 41 (1) states:-" no employer shall dispense with the services of a person employed continuously for a period of not less than six months, except for a reasonable cause and without giving such person at least one month's notice or wages in lieu of such notice, provided, however, that such notice shall not be necessary where the services of such person are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an inquiry held for the purpose. " thus, it will be seen that this section falls under two limbs, though the second limb is framed in the form of a proviso to the first limb. The first limb is that the services of the employee who had been continuously employed for a period of not less than six months cannot be dispensed with except for a reasonable cause and without giving such person at least one month's notice or wages in lieu of such notice. For the purpose of complying with the requirements of the first limb, both the conditions must be simultaneously satisfied, namely, that the dispensing with the services must be for a reasonable cause, and the employee should be given at least one month's notice or wages in lieu of such notice. As far as the second limb is concerned, it contemplates the dispensing with the services of an employee on a charge of misconduct. In such an event, the requirement of the giving of one month's notice or wages in lieu thereof, is not insisted upon. On the other hand, the statute insists that the services of such a person cannot be dispensed with on a charge of misconduct, unless an enquiry has been held and satisfactory evidence supporting the charge of misconduct had been recorded at the enquiry. Now looking at the language of the section and the provisions contained in the two limbs, can it be said that the retirement of an employee on reaching the age of superannuation, according to the rules applicable to the employment, would come within the scope of the section? I am of the opinion that such retirement cannot come within the scope of the section. From the very nature of the language employed in Section 41 (1), only a premature termination of the services of an employee can be brought within the scope of the section. When I say premature termination, I mean a termination of the services prior to the period fixed in a contract of service, if there is one, or a termination of service prior to the period fixed for retirement on reaching the age of superannuation prescribed either in a contract of service, if there is one, or in the rules or regulations governing such service. Consequently, if there is a contract of service, and the contract of service itself prescribes the period of service, the termination of the services of the employee pursuant to the expiry of such period of employment, cannot fall within the scope of Section 41 (1 ). Equally, if there are terms in the contract of service or provisions in the rules applicable to the service providing for the retirement of the employee on reaching the age of superannuation, such a case also cannot fall within the scope of Section 41 (1 ). The dispensing with the services for a reasonable cause or the dispensing with the services on a charge of misconduct, both of them, contemplate a termination of the services anterior and prior to the date on which the services would come to an end automatically, either as a result of the terms in the contract of service or as a result of a rule applicable to the service in question. Consequently, where in employer relieves an employee from bis duties for the reason that he had reached the age of superannuation and the period of service had come to an end, such a case cannot fall within the scope of Section 41 (1) of the Act. On the other hand, the second respondent appears to have proceeded on the basis that reaching the age of superannuation will be a reasonable cause as contemplated in the first limb of Section 41 (1 ). I am of the view that this is an erroneous one. The reasonable cause that is contemplated in Section 41 (1) is with reference to a premature termination of service. Can it be contended that the retirement of a particular employee constitutes termination of his services, for a reasonable cause, and therefore; even in such an event, the employee is entitled to at least one month's notice or wages in lieu thereof? in the case of retirement on reaching the age of superannuation, the employer and the employee know when the employee will cease to be in service, and therefore, the question of giving one month's notice or wages in lieu of such notice cannot possibly arise. The giving of one month's notice or wages in lieu thereof is generally intended to help the employee concerned during the interval before he obtains another employment. But in the case of retirement on reaching the age of superannuation, the basis for such a requirement is not present and therefore, there is no scope for any such contention, and the relieving of an employee from his duties on the basis that he retired from, service on reaching the age of superannuation cannot by any stretch of imagination be said to be dispensing with the services of an employee for a reasonable cause. Hence, I am of the opinion that the conclusion of the second respondent in this behalf is erroneous, and as a matter of fact, the appeal preferred by the first respondent to the second respondent was really incompetent. I may also mention one other feature. It may happen in a particular case; the retirement was used by the employer as a cloak for dispensing with the services of an employee where the motive for dispensing with the services is something different. In that event, a different position may possibly result, because no person will be allowed to evade the obligation imposed on him by law by having recourse to a cloak or guise under which he can take refuge in order to escape from such an obligation. The present case is not one such and while dealing with the second of the contentions, I shall refer to the facts of this case which support this conclusion of mine. Consequently. I am of the opinion that the appeal preferred by the first respondent to the second respondent under Section 41 (2) of the Act is incompetent and the second respondent had no jurisdiction whatever to pass the order in question. Normally speaking, this conclusion of mine would be sufficient to dispose of the writ petition. However, the learned counsel on both the sides argued on the merits also and invited me to give my conclusions on the second of the contentions put forward by the learned counsel for the petitioner. For the purpose of understanding and appreciating the contentions in this behalf, it is necessary to refer to one or two admitted facts. The first respondent herein sought employment under the petitioner by a letter dated February 10, 1960 which has been marked as Exhibit A-1 before the second respondent. In that letter, the first respondent has stated that he learnt that in the Trichy branch of the petitioner-bank there was a vacancy for the post of appraiser and he had been a shroff in a shroff's shop for a period of ten or twelve years and he had experience in that post, and hence he wanted the appointment and undertook to conduct himself according to the rules and regulations of the bank. In that letter, he had stated that his age would be 52 or 53 and he had studied upto VII Standard. On the same day, there was a written application given by the first respondent for the post in question. That application is also dated February 10, 1960, and has been marked as Exhibit R-2. Against the column "date of birth and proof of age", it was stated "parabava. Purattasi 16th: age 52 horoscope. " It is on the basis of Exhibits R-l and R-2. the petitioner came to the conclusion that the first respondent was born on October 1, 1906, and therefore he reached the age of sixty years on September 30, 1966. However, even in March, 1966 Itself, the petitioner sent out a circular marked as exhibit R-7, to all its employees calling upon them to produce their Secondary school Leaving Certificate or Transfer Certificate issued by the Headmaster of the school as a proof of the date of birth of the employee concerned. This circular itself expressly stated that such particulars were required to make the file up-to date in respect of the staff of the petitioner bank. Such a communication was sent to the first respondent also, and the first respondent after a number of reminders on August 22, 1966 wrote a letter asking one month's time to produce the necessary records to prove the age, as he had to go to the village to gather the records. Subsequently, the first respondent sent to the petitioner herein, a certificate dated September 16, 1966, granted by a Civil Surgeon, Erskine hospital, Madurai, which has been marked as Exhibit R-3 before the second respondent, and a horoscope which has been marked as Exhibit R-4. On the basis of these two documents, the case of the first respondent was that he was born only in 1912 and therefore he had not attained the age of superannuation on october 1, 1966, as contended by the petitioner herein. The second respondent took the view that since the petitioner accepted horoscopes and medical certificates as proof of age in respect of certain other employees, it should have accepted the horoscope as well as the medical certificate in proof of the age of the first respondent also, and in not having done so, the petitioner illegally terminated the services of the first respondent. It is in this context the learned counsel for the petitioner contends that the second respondent has completely ignored Exhibits R-l and R-2 wherein the first respondent had given his age as 52 or 53 in 1960, and also the evidence of the first respondent before the second respondent wherein he has stated that he was aged 25 or 26 at the time of his marriage, and he was married on the 10th Avani, sukla Year. I am of the opinion that the contention of the petitioner in this behalf is well-founded. As I pointed out already. Exhibit R-l was written by the first respondent himself where he had given his age as 52 or 53 on February 10, 1960. The first respondent in his evidence before the second respondent had admitted that exhibit R-l was written by him in his own handwriting, and he had given his age as 52 or 53. With regard to Exhibit R-2, the first respondent stated that his signature was obtained in a blank form and the particulars in the application were filled upon by the Secretary of the bank. On the face of it, this contention of the first respondent cannot be correct, though I am not deciding that question. Ex. R-2 contains a number of particulars in addition to the Tamil year, month and the date of birth of the first respondent, such as his father's name, religion, caste and sect, qualifications including educational he possessed, whether he was married and if so, how many children he had, the properties he possessed, whether he inherited the same or acquired the same, the value of the properties and the encumbrance on such properties. The case of the first respondent was that all those particulars were filled up by the Secretary to the bank without any reference whatever to the first respondent and the first respondent was not aware of any of these entries. On the face of it, such a case is palpably false. The Secretary of the bank could not have drawn out of his fertile imagination all the particulars with regard to father's name of the first respondent, how many children he had, what was the property the first respondent possessed, whether it was inherited by him or acquired by him and whether there was any encumbrance subsisting on the property. In any event, that is a matter which the second respondent should have considered before coming to the Conclusion that the petitioner's services were illegally terminated. I have already referred to the fact that in the evidence before the second respondent, the first respondent stated that he was married when he was 25 or 26 years and that his marriage took place on 10th Avani in the year Sukla. This statement will be more consistent with the first respondent having been born in purattasi Parabhava than in Purattasi Parithapi, as has been shown in the horoscpoe produced by the first respondent before the second respondent. AH I pointed out already, the case of the petitioner was that the first respondent was superannuated on October 1, 1966 only on the basis of his own declaration made in Exhibits R-l and R-2 and this fact was not all considered by the second respondent. The further case of the petitioner was that Exhibit R-3, the doctor's certificate would not be real proof of age of the first respondent and Exhibit R-4 was really a fabricated one. Here again, I am of the view that the second respondent had not considered these questions and merely proceeded on the basis that since the petitioner had accepted horoscope and medical certificates as proof of age of some of the employees of the petitioner, the petitioner was bound to accept the same as proof of age of the first respondent as well. In this case, it is admitted that in the case of night watchmen of the petitioner, the petitioner accepted horoscope and medical certificates as proof of age of those night watchmen on the basis that they were illiterate and therefore there was no occasion for them to produce their Secondary School Leaving Certificate or transfer Certificate as proof of the correct date of birth, and the said consideration will not apply to a person like the first respondent who was appointed as a jewel appraiser in the petitioner bank. Over and above this, the petitioner's contention is that Exhibit R-3 which is the doctor's certificate would not really constitute evidence of proof of age of the first respondent since the doctor had not stated that he arrived at the age of the first respondent as 54 years as a result of any examination conducted by him. Here again, I am of the opinion that the contention of the petitioner is well founded. The said certificate b as follows:-"this is to certify that Sri L. S. Pattabi Chettiar has declared before me that he is aged 64 years. On the basis of his appearance and health. I am prepared to accept his declaration and state that he appears to be 54 years. " to say the least, this certificate couched in such cautious language could never be the proof of age of the first respondent. There are a number of significant features with regard to this certificate. The first thing is that the doctor who gave the certificate, though of the rank of a Civil Surgeon was merely a Reader in Paediatric surgery, in the Madurai Medical College and Paediatric Surgeon, Erskine Hospital, madurai. Secondly, the doctor in his certificate does not say that he examined the first respondent and as a result of such examination, come to the conclusion that the age of the first respondent was 54 years. On the other hand, the doctor clearly and categorically states that the first respondent declared before him that he was 54 years of age and that on the basis of his appearance and health, he was prepared to accept his declaration and state that he appeared to be 54 years of age. It is hardly necessary to state that such a certificate cannot really be proof of age of the first respondent. Over and above this, I have already pointed out more than once that the second respondent had never paid any attention whatever to the fact that in Exhibit R-l written in the hand of the first respondent, he stated that as on February 10. 1960, he was aged 52 or 53 years and that Exhibit R-2 also gave the date of birth of the first respondent as 16th Purattasi, Parabhava which would be consistent with the admitted statement of the first respondent in Ex. R-l and that the evidence of the first respondent before the second respondent was that he was married when he was 25 or 26 years of age and the marriage took place on the 10th of Avani, Sukla. For these reasons. I am of the opinion that the conclusion of the second respondent even on merits cannot stand because he has not considered the real point put forward by the petitioner and proceeded on an erroneous assumption that the petitioner having accepted horoscopes and medical certificates as proof of age in respect of some other employees, should have accepted Exhibits R-3 and R-4 also as proof of age of the first respondent, and in not having done so, it had wrongfully terminated the services of the first respondent;