C.V.RANE - (1.) The plaintiff-appellant was appointed as an Accountant by deceased defendant No. 1 Chhotabhai Patel on a monthly salary of Rs. 150/on 17th July 1959. Deceased Chhotabhai was the manager of three other firms who were impleaded as defendants Nos. 2 3 and 4 in Civil Suit No. 41 of 1965 filed by the plaintiff-appellant in the City Civil Court ahmedabad. He was also appointed as an Accountant in defendants Nos. 2 3 and 4 firms each of whom paid salary separately to the plaintiff. The second defendant was paying him a salary of Rs. 100/per month. Each of defendants Nos. 3 and 4 was paying him Rs. 75/per month. According to the plaintiff the first defendant who was also managing the affairs of the remaining three defendants terminated his services on 7th August 1964 without assigning any reasons or holding any inquiry. The above order of the defendants was in contravention of the provisions of sec. 66 of the Bombay Shops and Establishments Act 1948 (hereinafter referred to as the Act) and hence the order terminating his services was null and void. He therefore filed the above suit to obtain a declaration that the order in question was illegal null and void and that he continued to be in service of the defendants.
(2.) The defendants contested the above suit. It appears from the purshis given by the learned advocate for the defendants in the trial court that the contention that the Civil Court had no jurisdiction to hear the suit was given up at the trial. The learned trial Judge framed the follow ing issues as preliminary issues: (1) Is the suit for a mere declaration without a prayer for a consequential relief not maintainable ? (2) Is the suit bad for mis-joinder of parties and cause of action ? (3) If issue No. 4 is answered in favour of the plaintiff does the plaintiff prove that he is entitled to the declaration sought ? His finding on the issue No. 1 was that the suit was maintainable. His findings on each of issue Nos. 2 and 3 was in the negative. In pursuance of the finding on issue No. 3 he dismissed the suit and being aggrieved by his decision the plaintiff has come in appeal.
(3.) It is not disputed that the services of the plaintiff were terminated without giving him any notice or wages in lieu of notice or holding any inquiry. In the trial court the above order of the defendants was challenged only on the ground that it was in contravention of the provisions of sec. 66 of the Act. The provisions of the above section which are relevant for the purpose of this appeal are:- No employer shall dispense with the services of an employee who has been in his continuous employment (a) for not less than a year without giving such person at least thirty days notice in writing or wages in lieu of such notice; (b) for less than a year but more than three months without giving such person at least fourteen days notice in writing or wages in lieu of such notice:- Provided that such notice shall not be necessary where the services of such employee are dispensed with for misconduct. The first question therefore to be decided in this appeal is whether the above order is illegal null and void as contended by the appellant. The learned trial Judge has taken the view that the above order is not void. While coming to the above conclusion he has inter alia observed in his judgment:- What is provided by sec. 66 is merely what would be a reasonable notice that a master is supposed to give to an employee whose services he desires to terminate. That being so I am of the opinion that sec. 66 of the Act is not mandatory or obligatory but is directory. It has been specifically provided in sec. 66 of the Act the language of which is unambiguous and plain that no employer shall dispense with the services of any employee who has been in his continuous employment for more than three months without giving him notice of specified duration or wages in lieu of such notice as indicated in clauses (a) and (b) of that section. The use of the word shall in the above section and the manner in which the section is worded clearly show that the provisions thereof are mandatory. This shows that according to the provisions of sec. 66 of the Act the services of an employee who has been in continuous service for not less than a year cannot be terminated without giving him atleast thirty days notice in writing or wages in lieu of such notice. Similarly the services of an employee who has been in continuous employment for less than a year but more than three months cannot be terminated without giving him atleast fourteen days notice in writing or wages in lieu of such notice. According to the proviso to sec. 66 the only exception to the above restriction on the employers right to dispense with the services of an employee is that no such notice as provided in clauses (a) and (b) of sec. 66 would be necessary where the services of an employee are dispensed with for misconduct. In the present case it is common ground that the services of the appellant were dispensed with not on account of any misconduct on his part. It is thus proved that the order in question is in contravention of the provisions of sec. 66 of the Act and that position is not disputed by the learned Advocate for the respondents. It is however argued by him that merely because the order in question has been passed in contravention of the provisions of sec. 66 of the Act it cannot be said that it is null and void. According to him the order can be said to be illegal in view of the above provisions of the Act but it cannot be said to be null and void. It appears that the provision as regards giving of notice has been incorporated in the above section in order to give the employee whose services are sought to be terminated a reasonable time to find out some other employment before the expiry of the period of notice. Similarly the object of the provisions in the above section as to payment of wages in lieu of notice seems to mitigate the hardship on an employee by ensuring the immediate payment of wages in lieu of notice in case his services are dispensed with without giving him any notice. It appears that it is in order to achieve the above object of sec. 66 of the Act that the provisions thereof have been made mandatory. This shows that if the provisions of the above section are not complied with strictly the very object of that section would be frustrated. Thus looking to the plain language as well as the object of sec. 66 it should be held that the order in question is not only illegal but also void. In this connection I may however hasten to add that as the language of sec. 66 is plain and unambiguous the interpretation of that section even independently of the object thereof leads to the same conclusion. 4 The above view is supported by the decision of the Supreme Court in the case of Sr. Supdt. R.M.S. Cochin v. K. V. Gopinath (A.I.R. 1972 S.C. 1487). In the above case the services of the respondent were terminated on the basis of the provisions of Rule 5 of the Central Civil Services (Temporary Service) Rules 1965 which runs as under:- 5 Termination of temporary service (1)(a) The services of a temporary Government servant who is not in quasipermanent service shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant; (b) the period of such notice shall be one month:- Provided that the services of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services or as the case may be for the period by which such notice falls short of one month. It was admitted that payment of the salary and allowances was not made to the respondent on the date on which the above order was passed. The order was quashed by the learned Single Judge of the Kerala High Court and his decision was upheld by the Division Bench in appeal. While dismissing the appeal their Lordships of the Supreme Court observed:- Apart from the authorities which were cited at the Bar it appears to us that the rule is capable of the only interpretation that the order of termination can be upheld if the requisite amount in terms of the rule was paid into the hands of the employee or made available to him at the same time as he was served with the order. Rule 5 gives the Government as well as the employee a right to put an end to the service by a notice in writing. Under rule 1(b) the period prescribed for such notice is one month. The proviso to sub-rule (b) however gives the Government an additional right in that it gives an option to the Government not to retain the service of the employee till the expiry of the period of the notice; if it so chooses to terminate the service at any time it can do so forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rate at which he was drawing them immediately before the termination of his services or as the case may be for the period by which such notice falls short of one month. At the risk of repetition we may note that the operative words of the proviso are the services of any such Government servant may be terminated forthwith by payment. To put the matter in a nutshell to be effective the termination of service has to be simultaneous with the payment to the employee of whatever is due to him. We need not pause to consider the question as to what would be the effect if there was a bona fide mistake as to the amount which is to be paid. The rule does not lend itself to the interpretation that the termination of service becomes effective as soon as the order is served on the Government servant irrespective of the question as to when the payment due to him is to be made. If that was the intention of the framers of the rule the proviso would have been differently worded. As has often been said that if the precise words used are plain and umambiguous. we are bound to construe them in their ordinary sense and not to limit plain words in an Act of Parliament by considerations of policy if it be policy as to which minds may differ and as to which decisions may vary see Craies on Statute Law 6 Edition pages 86 and 92. For the reasons already mentioned and in view of the above decision of the Supreme Court the finding to the contrary of the learned trial Judge cannot be sustained.;