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Rama Prasad Ghildyal Pahari Vs. Hindi Sahitya Sammelan and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Judge
Reported in(1970)ILLJ399All
AppellantRama Prasad Ghildyal Pahari
RespondentHindi Sahitya Sammelan and ors.
Excerpt:
.....the management is of opinion that they are fit to perform their duties..........(parampara) of the sammelan, the appellant would be performing his functions till the age of 60 years the examination secretary was, therefore, only informing the appellant of what the former thought to be the convention obtaining in the sammelan, and it is not possible to spell out; from the latter a term of service relating to the age of superannuation. at any rate, the contents of the letter give no indication that it was issued by the examination secretary by virtue of any authority given to him by the executive committee. the question as to the binding nature and effect of the letter could not also, in those circumstances, be properly determined in a writ proceeding.7. sri s.c. khare next contended that the letter of the examination secretary relied upon by the appellant; at.....
Judgment:

Gangeshwar Prasad, J.

1. This Special appeal is directed against the judgment of a learned single Judge dated 16 April 1968, by which he dismissed a writ petition filed by the appellant.

2. The appellant was the Examination Registrar (Pareeksha Yojak) of Hindi Sahitya Sammelan (hereinafter called the sammelan), an institution having for its object propagation of Hindi in the country. Previously, the sammelan was a society registered under the Societies Registration Act. In 1961 the Parliament enacted the Hindi Sahitya Sammelan Act (hereinafter referred to as the Act), whereby the sammelan was declared an institution of national importance and incorporated, and provisions were made for its administration. The appellant was appointed as Registrar by means of a resolution dated 23 September 1951, of the executive committee of the sammelan. The resolution stated that the appointment was to remain temporary till 31 December 1951, and would be made permanent thereafter if the work of the appellant was found satisfactory. It is not in dispute that the appellant held his office on a permanent basis at the relevant time. On 10 April 1867, the secretary of the governing body of the sammelan sent to the appellant a letter informing him that as he had reached the age of 55 years on 28 January 1967, his term of office had come to an end and that the governing body of the sammelan was of opinion that it was not necessary to extend it. It was also stated in the letter that the service of the appellant would terminate with effect from 15 May 1967, and that he could avail of his earned leave, if he so wished, during the interval. The appellant filed the writ petition which has given rise to this appeal on 9 May 1967 and prayed that the ' order ' of the secretary of the governing body be quashed and a direction be issued to the sammelan, its governing body and the secretary, all of whom were impleaded as parties,

not to interfere with the petitioner functioning as the Registrar of the sammelan on the basis of the aforesaid decision of the governing body communicated to the petitioner by the letter dated 17 April 1967.

3. The reliefs claimed by the appellant in his petition were sought on the ground that the age of superannuation was 60 years and the sammelan was, therefore, not entitled to terminate his service earlier. Admittedly, there was no rule fixing the age of superannuation for persons in the service of the sammelan, and the case of the appellant rested on the allegation that in reply to a letter dated 26 September 1951, addressed by him to the then examination secretary of the sammelan the latter wrote to him on 30 September 1951, that

the superannuation of the petitioner in the service of the sammelan would be at the age of 60 years with a further chance for a period of two years if the petitioner is mentally and physically fit.

Relying on Section 5(d) of the Act, the appellant stated in the petition that even after the enforcement of the Act the tenure and the terms of the petitioner's service continued to be the same as before it and the order retiring him from service before he reached the age of 60 years was totally without jurisdiction and in contravention of the aforesaid provision.

4. In support of his petition the appellant produced the letter dated 30 September 1951, alleged to have been written to him by the then examination secretary of the sammelan and also a copy of his own letter dated 26 September 1951, in response to which the former letter was written. The genuineness of both these documents was denied in the counter affidavit filed on behalf of the respondents and it was stated that they were fake and had been prepared subsequently for an ulterior purpose. It was also stated that the examination secretary, by whom the letter dated 30 September 1951, purports to have been written, had no light or authority to issue it and thus it was wholly ineffective. The learned Judge who heard the writ petition found that on the materials on record it could not be said that the aforesaid letter was valid and binding. As to the question relating to the genuineness of the letter, he observed that it would require oral evidence and an enquiry into it was not feasible in a proceeding under Article 228 of the Constitution. Accordingly, the learned Judge found himself unable to hold that it had been established that the age of superannuation in the case of the appellant was 60 years and dismissed the petition.

5. Before us the first contention of Sri S.C. Khare, learned Counsel for the appellant, was that Paras. 9 and 10 of the writ petition which contained averments regarding the two letters mentioned above and were supported by affidavit ware not really and effectively controverted in the counteraffidavit of the respondents and the learned single Judge should not have regarded their genuineness in dispute. The fault that the learned Counsel found with the counter-affdavit in regard to the above matter was that Paras. 8 and 9 thereof, which contain replies to Paras. 9 and 10 of the petition, were sworn not on the basis of personal knowledge but on the basis of an examination of records. We find no merit in this criticism. The termination secretary with whom the correspondence is said to have been exchanged was not a party to the writ petition and presumably he is no longer in the service of the sammelan, The respondents could certainly repudiate the appellant's allegations in Paras. 9 and 10 of the petition in they found that the records of the sammelan did not indicate that the correspondences had really taken place, and they did so. The question in dispute was not merely whether the letter dated 30 September 1951 said to have been written by the examination secretary was in his handwriting but also whether he actually wrote it at the time it purports to have been written. Undoubtedly, therefore, the genuineness or otherwise of the two letters was a fact in serious controversy and we agree with the learned single Judge that it could not be properly investigated in a proceeding under Article 226 of the Constitution.

6. It seems also clear that no positive finding as to the competence of the then examination secretary to issue the letter dated 30 September 1951, can be given on the basis of the materials on record. The authority which appointed the appellant was the executive committee of the sammelan and the terms of appointment could, therefore, have been fixed or settled only by the committee. The letter dated 26 September 1951, which the appellant claims to have sent to the examination secretary, contains an enquiry as to what the age of retirement would be and if is, therefore, obviously that the age of retirement was not a matter include in the terms of appointment. There is nothing to show that the examination secretary was empowered, either generally or specially in the case of the appellant to fix the age of superannuation, and it is, indeed extremely unlikely that the power to make appointment and the power to fix the age of superanuation should have been exercisable by different authorities. The letter dated 30 September 1951, which is said to have been received by the appellant from the examination secretary, does not say that the latter had b*en authorized by the executive committee to communicate to the appellant that the age of his retirement would be 60 years. On the other hand, it expressly says that, according to the convention (parampara) of the sammelan, the appellant would be performing his functions till the age of 60 years The examination secretary was, therefore, only informing the appellant of what the former thought to be the convention obtaining in the sammelan, and it is not possible to spell out; from the latter a term of service relating to the age of superannuation. At any rate, the contents of the letter give no indication that it was issued by the examination secretary by virtue of any authority given to him by the executive committee. The question as to the binding nature and effect of the letter could not also, in those circumstances, be properly determined in a writ proceeding.

7. Sri S.C. Khare next contended that the letter of the examination secretary relied upon by the appellant; at least showed the existence of a convention relating to the age of superannuation and that convention must be regarded as an implied term of services. There are some obvious difficulties in the acceptance of this argument. Firstly, this argument proceeds on the assumption that the letter is a genuine document,but as we have stated above, its genuiness is seriously contraverted. seriously controverted. Secondly, no claim based on a convention or on any implied term as to the age of superannuation, was put forward by the appellant in his petition, and it was only in his rejoinder affidavit that he stated that persons in the service of the sammelan were retired much after their reaching the age of 60 years. The respondents had, therefore, no opportunity of meeting a claim of the above kind. Thirdly, as the learned single Judge had pointed out, even the instances given by appellant in support of his claim do not show any uniformity in the age of retirement. For the reasons stated above this contention too is unsustainable.

8. It was then urged that in the absence of any fixed age of retirement; from service, the appellant's employment, which was admittedly a permanent one, would tea deemed to have been an employment for life, subject to termination only on the ground of physical or mental unfitness. For this proposition, reliance was placed on Salt v. Power Plant Company. Ltd. (1936) 3 All E. R 322. The facts of that case were that the plaintiff was employed by the defendant-company upon the terms of a letter, dated 24 December 1925, which provided that the engagement would be for a minimum period of three years subject to the defendant's right to cancel the agreement in case of willful default. The letter also provided that

the company shall have the right to terminate the agreement after the explanation of the abovementioned period by giving six months' notice in writing prior to the ensuing 31 December and in the absence of such notice the engagement to remain in force as a permanent one.

The defendant gave the plaintiff six months' notice to expire on 31 December 1936, and the plaintiff brought an action for wrongful dismissal. One of the questions that arose for consideration before the Court of Appeal was as to the proper meaning of the term of employment quoted above, having regard to the word 'permanent' used therein. It was held that it meant, quite clearly, that in the absence of notice to determine the employment, at the end of three years ending 31 December 1928, the plaintiff's engagement was to be for life, and there had been a breach of the agreement. An examination of the decision would show that it turned not on any general proposition as to the duration of an employment described as ' permanent' but on the construction of the terms of employment as contained in the letter. What meaning the description of an employment as permanent in the offer or acceptance relating to it carries was made clear by the House of Lords in McClelland v. Northern Ireland General Health Services Board (1957) 2 All E.R. 129. It would be sufficient to quote two passages from that case. Lord Goddard observed:

That an advertisement offers permanent employment does not, in my opinion, mean thereby that employment for life is offered.

In more emphatic terms Lord Tucker said:

It is in my view impossible to hold that these words (permanent and pensionable) conferred on her a contractual right to a freehold tenure or the post of senior clerk or did anything more than indicate that the post available would have the degree of security of tenure which attaches to the regular as distinct from the purely temporary staff.

It will be noticed that in the above case Lord Keith of Avonholm referred to Salt v. power Plant Company, Ltd. (1936) 3 All E.R. 322 (vide supra) and after quoting the term of employment in that case observed:

The language used and the contrast between the two periods of service were there so strong as to render inevitable the conclusion that a lifetime service was intended.

The position emerging from these two English decisions has been stated in Hals-bury's Laws of England (Simonds Edn), Vol. 25, p. 490, as follows:

It seems that the fact that the employment offered to and accepted by an employee is described as permanent employment does not in itself normally create a promise of life employment or disentitles the employer from terminating the employee's contract of service on reasonable notice. A contract for permanent employment will, however, be considered as a contract for employment for life if the terms of the contract are such as to render inevitable the conclusion that a lifetime employment was intended.

Far from rendering inevitable the conclusion that the appellant was intended to be employed for life, the term of employment in his case does not even suggest that conclusion and, apart from anything else, such a construction of the term of his employment is totally inconsistent with and runs counter to the case set up by the appellant himself.

9. Coming to the decisions of our country, we find that the fact that an employment has been described as permanent has not been consider as signifying that it is an employment for life. In Bimilacharan Batabyal v. trustees for the Indian Museum : AIR1930Cal404 , Costello, J., dealing with the facts of that case, held;

I think that the words 'substantive and permanent;' an used in the service book import so more into the relationship between the plaintiff and the trustees of the museum than that his employment is of a permanent as opposed to a purely temporary character, and that he is the incumbent of his appointment and not merely 'acting' and was entitled to emoluments of it in such. a way that, in the ordinary course, if his employment had continued, he would be entitled to and subject to all the rights and liabilities incidental to the service in accordance with the Civil Service Regulations. In other words, the phrase ' substantive and permanent' is more descriptive of the nature and character of the appointment than indicative of the duration of that appointment.

This case was followed by a Division Bench of the Patna High Court in Gidugu Vemkata Sitapati v. Sri Sri Krishna Chandra Gajpati Narayan Deo A.I.R. 1942 Pat. 176.

10. The meaning to be attached to the word ' permanent' in relation to an employment, particularly an employment in an educational institution in our country, came up for examination by a Division Bench of the Madras High Court in Chilakamarri Lakshminarasimhacharyvlu v. McLaurin High School, Cocanada A.I.R. 1949 Mad. 788] and it was observed:

Though the contract merely says ' permanent; and though the word ' permanent' may to a proper case be taken to mean for life, nevertheless in the matter of appointment; of teachers in schools, it is the genaral usage, so to say, for the educational institutions not to continue to employ teachers who have passed the age of 60 years the ordinary age of superannuation being 56, those who are over 55 being kept on bill 60 in case the management is of opinion that they are fit to perform their duties efficiently. This usage prevailing in the educational world must be deemed to be past of the contract and it is in impossible, in our opinion, to record the contract as being one for life, having regard to the conditions and usages known to both the parties at the time of the contract. It is not necessary to elaborate this aspect of the case because the plaintiff himself has net made the claim that the contract gives him an appointment for life.

11. Attention may be drawn to the fact that in this Madras case too, Salt v. Power Plant Company, Ltd. (1936) 3 All E.R. 322 (vide supra) was referred to and distinguished on the ground of the special nature of the terms of employment in that case.

12. Agreeing with the view expressed in the oases just mentioned, we are of opinion that the use of the word ' permanent' in relation to an employment only signifies its stability and security in contract to the instability and insecurity of a temporary employment and it is indicative not so much of its duration as of its nature in contrast to the nature of a temporary employment. In any case the description of an employment as permanent does not imply that the employment is one for life of the employee. The argument of Sri S.C. Khare, even if the stand taken by the appellant permits the raising of that argument, has to be rejected.

13. Learned counsel also referred to the decision of the Supreme Court in British Paints (India), Ltd. v. its workmen 1966-I L.L.J. 407, where, in an appeal against the award of an industrial tribunal fixing the age of retirement for clerical and subordinate staff at 58 years and for workmen in the factory at 55 years, their lordships fixed the age for all workmen-clerical, subordinate and factory workmen-at 60. That decision has, however, no application to the instant case. The dispute is not in the realm of industrial law, the sammelan is not an industrial concern and the appellant is not a workman. The age of superannuation is not required to be fixed and what is to be seen is whether the order retiring the appellant has to be quashed.

14. On a consideration of the arguments advanced in support of the petition we do not find it possible to hold in this proceeding that the termination of the appellant's service was in branch of the terms of his employment. If we had found that such, a branch had been committed, we would have been called upon to decide whether, in view of Section 5(d) of the Act, the breach also amounted to a breach of a statutory duty or obligation. But as we are unable to record a finding that there was any breach of the terms of employment, it is wholly unnecessary for us to enter into that question.

15. The appeal falls and it is hereby dismissed with costs.


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