B.P.Banerjee, J. - (1.) This is an appeal against the order of the learned trial Judge dated 11th October, 1991 passed in CO. No. 12680-81 (W) of 1987. The questions involved in this appeal is whether the writ court can adjudicate as to what should be the age of retirement of the employees of a particular concern and whether a writ court can decide on what date an employee should retire on the basis of the date of birth claimed by the employee concerned which is contrary to the date of birth recorded in the records of the management. Further the question also to be decided in this appeal is whether after the parties have entered into a contract of employment judicial review could be available in a case where there is no sufficient statutory underpenning of the employment to inject an element of public law into the relationship.
(2.) The facts of this case may be shortly stated as follows. The petitioner who was an employee of a private mill viz. Sodepur Cotton Mills which was ultimately taken over under the provisions of Sick Textile Undertakings (Nationalisation) Act, 1974 by National Textile Corporation and that on 20th July, 1987 the said corporation served a notice of retirement intimating him that he would retire from service on 31st October, 1987. This notice was challenged by the writ petitioner respondent on the ground that according to him that date was not the date of his retirement and consequently took a stand that there was no age of retirement for the employees of that concern and accordingly the notice of retirement was illegal and should be recalled. Thereafter the matter was referred to the Assistant Labour Commissioner but the fate is not known. The writ application was filed by the writ petitioner respondent challenging the validity of the said notice of retirement alleging that according to him he was born in the year 1938 and not in 1926 and that there is no age of retirement under the standing orders of that concern and consequently he could not be made to retire under the circumstances. Further it was alleged that in the facts and circumstances of the case he should have been given a reasonable opportunity of being heard before he could be made to retire. The claim of the writ petitioner respondent was based on an alleged entry in the E.S.I. record and the identity card issued by the company. The writ application was initially disposed of by the learned trial Judge by an order dated 28th November, 1988 directing that the age of the writ petitioner respondent should be fixed by a Medical Board and thereupon to decide the age of the writ petitioner respondent. The Division Bench of this Court affirmed the said view of the learned trial Judge. The appellants thereafter took the matter before the Supreme Court and the Supreme Court by an order dated l6th July, 1990 set aside the order passed by the learned trial Judge and the Division Bench of this Court and directed the High Court to determine the question of age on the basis of available materials and with liberty to parties to produce further material, if any. The learned trial Judge by an order dated 11th October, 1991 allowed the writ application holding that the writ petitioner respondent was entitled to continue in service up to the age of 60 years was found by the learned trial Judge to be the age of retirement as claimed by the writ petitioner respondent on the basis of industry cum region approach.
(3.) Mr. Partha Sarathi Sengupta, learned Advocate appearing on behalf of the appellant submitted in the first place that the writ court cannot decide a disputed question of fact which can only be adjudicated after taking evidence and the too by the civil court. Writ proceedings are decided on the basis of admitted facts and that too on affidavits. It was further submitted that there was no question of law involved in the instant case inasmuch as what is the correct date of birth is a pure question of fact and not of law. Secondly, it was submitted by Mr. Sengupta that when the age of retirement of the employee is 58 years the writ court cannot decide that the age of retirement should be 60 years only on the ground of industry cum region basis. This was challenged by Mr. Sengupta on two grounds that such a question could only be decided in an industrial dispute proceeding by the Labour Court and not by the writ court and secondly the Supreme Court in the case of Guest, Keen Willams (Private) Ltd. v. Sterling (P.J.) & Ors. reported in 1959 (Il) LLJ 405 at page 415 held that "In fixing the age of superannuation industrial tribunals have to take into account several relevant factors. What is the nature of the work assigned to the employees in the course of their employment? What is the nature of the wage structure paid to them? What are the retirement benefits and other amenities available to them? What is the character of the climate where the employees work and what is the age of superannuation fixed in comparable industries in the same region? What is generally the practice prevailing in the industry in the past in the matter of retiring its employees?" These were the relevant factors which the Supreme Court directed should be taken into consideration by the industrial Court while adjudicating such an issue. Mr. Sengupta submitted that the learned trial Judge decided that the age of retirement should be 60 years merely by saying that the court cannot shut its eyes to such an approach. It was further submitted by Mr. Sengupta that the learned trial Judge even assuming first the writ court can decide such questions had not arrived at a finding after considering the relevant factors that the age of retirement of the employee should be 60 years. Further Mr. Sengupta submitted that the learned trial Judge has not made a clear finding that the date of birth recorded by the management was wrong on the basis of some unimpeachable piece of document for which the court may be inclined to make such correction. It was on the basis of an identity card and the E.S.I. records that this age has been found to be correct. Incidentally Mr. Sengupta pointed out that the object of recording the date of birth in the E.S.I. record was unmaterial and not germane for the purpose of retirement age or date and the date of birth recorded in the service record could only be challenged on the basis of some cogent and unimpeachable piece of evidence. Further Mr. Sengupta submitted that the writ court cannot make a finding of fact on the basis of assessment of evidence and that too on a disputed questions of fact. In this connection reference was also made on a decision of Prabir Kumar Majumdar, J in Matter No. 2171 of 1986 (Ashis Ghosh v. National Textile Corporation). In that case it was held that it could only be established in the writ application that the writ petitioner was entitled to be superannuated at the age of sixty years on the basis of any statutory rule or notification or an agreement arrived at between the employees' Union and the unit concerned before nationalisation or thereafter. It was also held that no case of discriminatory treatment could be made out and accordingly the learned Judge dismissed the writ application.;