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Noni Gopal Ganguly Vs. Trustees for the Improvement of Calcutta - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1938Cal43
AppellantNoni Gopal Ganguly
RespondentTrustees for the Improvement of Calcutta
Cases ReferredBipin Behary Daw v. Sreedam Chunder Day
- .....until 15th november 1933, that he was on leave on 4th november, and that he was entitled to six months leave on full pay from the date on which he could be required to retire compulsorily. he has claimed : (a) six months' salary at rs. 300 a month; (b) six months' leave salary at rs. 300 a month; and (c) salary during one year's extension of service. at the conclusion of the evidence, his counsel stated that he would confine his claim to six months' salary less two months leave salary received. this reduced the claim to rs. 1,200 in all. the plaintiff's case is that he was born on 16th november 1878 and attained the age of 55 on 15th november 1933, that he was granted two months' leave on 3rd november 1933 and was on leave at the time when the defendants professed to compel him to.....

McNair, J.

1. This is a suit by an ex-employee of the Calcutta Improvement Trust to recover Rs. 7,200 for salary and alternatively for damages for wrongful dismissal and/or wrongful termination of service and for costs. The plaintiff was employed by the defendant as a clerk of works and was retired on 4th November 1933 on the ground that he had reached the age limit of 55 years, at which in the ordinary course the defendants were entitled to compel their employees to retire. The plaintiff contends that he was not 55 years of age until 15th November 1933, that he was on leave on 4th November, and that he was entitled to six months leave on full pay from the date on which he could be required to retire compulsorily. He has claimed : (a) six months' salary at Rs. 300 a month; (b) six months' leave salary at Rs. 300 a month; and (c) salary during one year's extension of service. At the conclusion of the evidence, his counsel stated that he would confine his claim to six months' salary less two months leave salary received. This reduced the claim to Rs. 1,200 in all. The plaintiff's case is that he was born on 16th November 1878 and attained the age of 55 on 15th November 1933, that he was granted two months' leave on 3rd November 1933 and was on leave at the time when the defendants professed to compel him to retire, and he contends that under the rules of the Trust he was entitled to six months' leave subsequent to retirement, or alternatively to six months' salary during service. The defendants contend that the plaintiff attained the age of 55 on 4th November, that he knew and had admitted that he was due to retire from their service on that date and that he was estopped from denying that 4th November 1933 was the correct date of his retirement. They further contend that he was not entitled to any further leave thereafter. The following issues were framed : (1) On what date was the plaintiff born and therefore due to retire from the defendants' service? Can the plaintiff set up 15th November 1933 as the correct date on which he could be retired? (2) Was the compulsory retirement of the plaintiff as and from 5th November 1933 wrongful? (3) What sum, if any, is the plaintiff entitled to recover? (4) Did the plaintiff make any representation to the defendants by reason of which their service register was altered? Was the plaintiff aware of such alteration?

2. The plaintiff in support of his case has sought to produce in evidence a horoscope. He states that this horoscope was made by his uncle who was a member of his joint family and a priest and who kept a 'tole' or school: that the horoscope was made some three years after the birth from a note supplied by his mother and that his uncle is now dead. He admits that his mother is alive. The defendants objected to the admission of the horoscope in evidence and relied upon the decision of this Court in Bipin Behary Daw v. Sreedam Chunder Day (1886) 13 Cal 42 and Satish Chandra Mukherjee v. Mohendra Lal (1890) 17 Cal 849 It is contended that the document is admissible under Section 32, Evidence Act. In the case in Bipin Behary Daw v. Sreedam Chunder Day (1886) 13 Cal 42, a statement by the defendant's deceased father as to the age of his son was held to be inadmissible on the ground that the rule which admits hearsay evidence in a pedigree case is confined to the proof of the pedigree and does not apply to the proof of the facts which constitute a pedigree such as birth, death and marriage when they have to be proved for other purposes; and reference was made to the English case in Haines v. Guthris (1885) 13 QBD 818. In Satish Chandra Mukherjee v. Mohendra Lal (1890) 17 Cal 849, the horoscope made by a deceased astrologer was rejected on the ground that it was not shown that the person who made the horoscope had any special means of knowledge, and that the question for decision (namely the minority of the plaintiff) was not one either of relationship, blood, marriage or adoption. A similar question arose for decision in the Straits Settlements where the Evidence Ordinance is in similar terms to the Indian Evidence Act. There it was sought to prove an entry in a book in which the deceased father of the applicant recorded the births, deaths and marriages of the members of his family. The lower Courts excluded such evidence, but the Privy Council held in Mahomed Sayedol Ariffin v. Yeohooi Gark AIR 1916 P C 242 that the rule in (1885) 13 Q B D 8183 limiting hearsay to question of pedigree had no foundation in the Colonial Ordinance and they quoted with approval from the judgment in a Madras case [25 Mad. 183] where the learned Judge says:

The time of one's birth relates to the commencement of one's relationship by blood and a statement therefore of one's age made by a deceased person having special means of knowledge relates to the existence of such relationship within the meaning of Section 32, Clause 5, Evidence Act.

3. In view of these decisions, it appears to me to be quite clear that a horoscope may be admissible in evidence under Section 32 and that view has been adopted by this Court in the case in Nirmalanalini Devi v. Kamalabala Dassi : AIR1933Cal51 . To that extent, one ground of decision in Bipin Behary Daw v. Sreedam Chunder Day (1886) 13 Cal 42 can no longer be considered good law, while the other ground remains, namely that it must be shown that the person who prepared the horoscope had special means of knowledge. From the evidence I am of opinion that the plaintiff's uncle had such special means of knowledge and I have decided that the horoscope is admissible. The plaintiff relies almost) entirely on this horoscope in support of his plea that he was born on 16th November, and if his statements regarding his uncle are true, that gentleman would have had special knowledge of domestic occurrences in the joint family. The evidence however is not the best evidence that could have been provided, for the plain-tiff's mother is alive and it has not been suggested that her testimony was not available. Further, her note on which the horoscope is based has not been produced. These considerations must lessen the value even if they do not affect the admissibility of the document. The plaintiff says that he produced the horoscope when he joined the Trust and that he made a declaration regarding his age, and the horoscope bears the signature 'D. Ghosal'. It is not denied that there was a clerk of that name in the service of the Trust in 1917, but there is no evidence that the signature produced is the signature of that clerk.

4. The declaration however bears the date 16th November 1878, and that is the date entered in the service register kept by the Trust. There is no other evidence how this entry came to be made, and I accept the plaintiff's story that it was taken from the date in his horoscope. The other evidence bearing on the date of birth is the certificate from the Sibpur Engineering College. The Trust have calculated the age from that document on the footing that the plaintiff was 20 years three months old on 4th February 1899 when he ceased to be a student of the college. It is contended that the age there mentioned may refer equally to the plaintiff's age on 21st February 1899, the date on which the certificate was granted, and there is some force in this contention; but that was not the interpretation put upon the document by the Trust and no such suggestion has ever been made before this trial. The evidence is that the Trust relied more upon the college certificate than on the horoscope for determining the age of their employees. No explanation has been given for not producing the evidence of the plaintiff's mother and the note on which the horoscope was based, and the plaintiff has not discharged the onus which lay upon him of proving the actual date of his birth.

5. Coming next to the question of estoppel. On 16th December 1932 the plaintiff realized that he was nearing the age of compulsory retirement and wrote the letter of that date stating that he was born on 5th November 1879 and was then 53 years one month old and asking for the office register to be corrected. There are two points to notice here: (1) that he gives the date of his birth as 5th November and (2) that be gives the year of his birth as 1879. 1879 is admittedly incorrect. The plaintiff for the first time suggests that the date of his birth should be 5th November and not the 15th. He says that he had an interview with Mr. Mukherjee, head clerk of the Improvement Trust, and that he wrote this letter at Mr. Mukherjee's dictation. This is denied by Mr. Mukherjee and I accept his story in preference to that of the plaintiff. The application was addressed to the Chairman through the Chief Engineer and the office stamp shows that it was received in the Engineer's Department on 16th December 1932, that is to say on the same date on which it was written. The inter-departmental notes show that an inquiry was started on this letter. The Chief Engineer Mr. Atkins on the same date puts up a note asking when the plaintiff reaches the age for retiring. Mr. Mukherjee, the chief clerk, asks the Engineering Department to verify the date of birth from the service register. The date of birth as given is 6th November 1878 and a note is made that he will complete the age of 55 on 15th November 1933. The head clerk then puts a note which has been the subject of considerable comment. He says:

As per service register the clerk of works is to retire after 15th November 1933 if no extension is granted (2) as per college certificate submitted by the clerk of works the retiring age will be November 1984, as college certificate is always granted as a proof of the real age.

6. That note is addressed to the Chief Engineer. All these entries are on 16th. On the following day, the Chief Engineer writes to the head clerk 'Please have the date in the service register corrected. How is it that a wrong date has been recorded?' Mr. Mukherjee notes 'Mr. Ganguly has been asked to correct, please keep pending'. That was on 21st December 1933. Mr. Mukherjee again addresses a note to the Chief Engineer on 4th January 1933:

I am sorry to trouble you again for which I regret. On recalculation and going through the service register of the clerk of works, Mr. Ganguly, I find that as per college certificate he will be of the 55 years of his age on 5th November 1983 and he is due to retire from the service after 5th November 1933 if no extension is granted. The entry in the service register is in order. The clerk of works Mr. Ganguly, is not correct as stated in his application of 16th December 1932. Put up below. No further action is needed at present. It may be filed.

7. There are no doubt considerable discrepancies in these notes of which no satisfactory explanation is forthcoming. The college certificate was evidently produced on 16th December by the plaintiff, but the head clerk through some mistake in his note of 16th December took the date of birth from the plaintiff's application and stated that the plaintiff's retiring age would be in November 1931. He stated in effect that the service register was wrong and that the college certificate on which reliance was always placed for proving the correct age of an employee showed the retiring age to be 1934 which would be in conformity with the plaintiff's statement in his application that he was born in 1879. From his note of 4th January 1933, it appears that Mr. Mukherjee had discovered that he had not taken the correct date from the college certificate for he now states that the retiring date is 1933. He was cross-examined at some length about this date and about the statement that the service register was in order. He states that the word 'not' had been omitted, and what he meant to write was that the 'service register was not in order'. He failed to explain why, if that was so, he wrote 'no further action is necessary'. However, I have no reason to doubt his statement that he had explained the matter to the plaintiff and that they had come to the conclusion between them that the date of retirement would be 5th November 1933. Two days later, on 6th January, the Chief Engineer wrote to the plaintiff stating that on reference to his personal file he was due to retire from the service of the Trust on 4th November 1933 and that it was unlikely that he would get an extension of service. On 10th August 1933 the plaintiff applied for an extension of service yet he never suggests that his service did not end on the date mentioned by the Chief Engineer in his letter of 6th January. The Chief Engineer's minute with regard to that letter is:

Clerk of works, Mr. Ganguly, is due to retire on 4th November 1933. I wrote him at the beginning of this year informing him that it is unlikely that he would be offered an extension. So far we can foresee we shall be able to carry on next year with the remaining five clerks of works.

8. The minute came before the Chairman who noted that the plaintiff must retire in November in accordance with Rule 25 (a). On 16th August it was brought to the notice of the Accounts Department that discrepancies existed with regard to the plaintiff's age which had to be reconciled. Mr. Mukherjee was asked to explain how in the service register the date of birth was 16th November, whereas in his note to Chief Engineer the date was mentioned as 5th November. Mr. Mukherjee again wont into the matter and made a note on the file which was afterwards pasted over by a subsequent note. This action has been severely criticized by counsel for the plaintiff, but in my view there is nothing irregular or disadvantageous to the plaintiff in Mr. Mukherjee's action. He has told us what the original note was, and his reasons for pasting it over and writing a further note appear to me to be quite satisfactory. He is once more consistent in relying on the college certificate as-being the proof required by the Trust for age. He however again makes an error, for he says that the plaintiff in his application of 16th December 1932 had stated that the date of his birth was 5th November 1878, though in fact the plaintiff has said 5th November 1879. Clearly what has happened is that in the first instance it was the year which was called in question, and Mr. Mukherjee has been careless with regard to the date of the month. On this occasion it is the date of the month which is being called in question and he is equally careless with regard to the year. The matter however was apparently settled in the office and the service register was altered on 31st August and 5th November 1878 was definitely taken as the date of the plaintiff's birth. I have already mentioned the letter of the Chief Engineer of 6th January pointing out to the plaintiff that the date of his retirement would be the 4th November, so that the plaintiff already had notice that that was the date which the Trust had calculated as the compulsory conclusion of his service from the date which they had in their office. On 29th August the plaintiff asked for leave for two months commencing from 1st September 1933 but that application was refused owing to the exigencies of the service. On 30th August the Chief Engineer wrote to the Chairman a memorandum in which he stated that the plaintiff was due for retirement on 4th November. That memorandum referred to a personal allowance for which the plaintiff had applied. For various reasons, which are stated, the Trust did not consider it desirable that the personal allowance should be granted and the notes bear an endorsement 'Please show to Mr. Ganguly [the plaintiff] when he comes to office'. On 12th October 1933 the plaintiff made a further application for extension of service in which he referred to his previous application 'I applied for an extension of my service for retirement which is on 4th November 1933 under Rule 25 (a)' So that once again he is accepting the date on which he is to retire as being the 4th November 1933 On 3rd November the plaintiff again applied for leave in the following terms:'

As my date of retirement from the service of the Trust is the fifth instant I beg to apply for leave on full pay for six months from this date as I was refused leave for the exigencies of service.

9. The Trust refused the application for six months' leave on the ground that the plaintiff had already been given the maximum leave admissible under the Rules. On 24th November the plaintiff again made an application which commenced:

In continuation of my application for granting six months' leave from 5th November 1933, the date of compulsory retirement...

10. It will be seen therefore that through-out all the negotiations and applications which the plaintiff was making he was continuing to make them on the basis that the correct date on which he was to retire from the trust was 4th November 1933, and I have little doubt that at that time he knew that that was the date which had been accepted by the Trust as the correct date, and that the plaintiff had also accepted it for that purpose. Again, in an application on 6th April 1934 the plaintiff states that he worked up to 4th November 1933, the date of forced retirement, and does not suggest that that date was incorrect. Finally, on 3rd July 1934, the plaintiff's solicitors wrote to the Board of Trustees giving the statutory notice that they proposed to take legal proceedings. In the particulars of their client's claim they state that:

Our client was entitled to at least six months' leave with full pay from 6th November 1933.

11. The plaintiff in his evidence was cross-examined with regard to his failure to point out to the Trust that he contended that they were retiring him at the wrong date. He states that he accepted the date as given by the Chief Engineer, and towards the end of his cross-examination he stated that even when his first attorneys' latter was written, he did not know what was the date of his birth. He also said:

If at that time I had said that such and such was the date of my birth, that would not have helped me in any way.

12. And again he says that it was only two or three months before the writing of the second notice by his solicitors that he knew the date of his birth as stated in hid plaint. Yet, before that, he says, 'I was all the time under the impression that my date of birth was 5th November.' And finally he told the Court that he deliberately allowed the defendants to be under a misapprehension because he wanted to attain his particular object, viz. either an extension of service or leave at the particular moment. It seems to me perfectly dear that the plaintiff had accepted the date which was in the Trust records after the matter had been gone into, viz. 5th November as the date of his birth, and 4th November as the date on which he was to be compulsorily retired, and he is estopped from denying that that was the date of his retirement.

13. Issue 2 must be answered in the negative. The first part of Issue 4 must be answered in the affirmative, and the second part also in the affirmative. There is ample evidence that the matter was discussed with the plaintiff, and that he was shown the notes which had been made by various members of the Board. The final question which arises is as to the interpretation of the rules. The plaintiff relied on Rule 16 of the Rules on page 33 of the 'Calcutta Improvement Trust Accounts Manual for 1933', and contends that any employee who happens to be on leave at the date of compulsory retirement, must automatically get six months' extension of service. His contention is that on 15th November, when he reached the age of 55 years, he was actually on leave, and therefore that he is entitled to six months leave from that date, In my view Rule 16 cannot bear any such interpretation, and if it does, it seems to me that it would conflict with Rule 42 (a) of the Rules made under Section 31 (b), Calcutta Improvement Act. Rule 25 (a) states that an employee shall ordinarily be required to retire on attaining the age of 55. Rule 42 (a) states that leave to the credit of an employee shall lapse on his attaining the age of 55 unless he has previously applied for leave and been refused on the ground of the exigencies of service, in which case he may be granted, after the date of retirement, the amount of leave so refused subject to a maximum of six months. The plaintiff here was granted the amount of leave which had been refused owing to the exigencies of service, viz. two months. The Trustees have a discretion as to the amount of leave, if any, which they will grant, and if Rule 16 on which the plaintiff relies can bear the interpretation that they are bound to continue an employee in their service for six months if he was on leave on the date on which his service concluded, that would be in conflict with the other Rules to which I have referred.

14. It has been pointed out that the rules in the Accounts Manual are on a different footing to Rule 42 (a), being made under Section 138, Calcutta Improvement Act, and are merely intended for the guidance of persons employed under the Act. They are only directions and, would not be operative if in conflict with the fundamental rules. Rule 16 cannot in my opinion bear the interpretation sought to be placed upon it. The plaintiff has failed to show that he was wrongfully dismissed or retired and his suit is dismissed with costs.

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