Dismissed

Tulsiram K. Gothad v. the Superintendent, Mahatma Gandhi Memorial Hospital, and Anr.

Bombay HC3 Oct 2007APP/829/2001

Case brief

AI extract

What is this about?

This appeal challenges the dismissal of a complaint regarding premature retirement at age 58. The Court overruled a prior Single Judge judgment that interpreted Model Standing Order No. 27 to permit retirement ages above 60 years. It held that the literal text of the Standing Order requires retirement to be 60 years unless the contract specifies otherwise, and a lower age is valid.

What did the court decide?

The appeal fails and is disposed of, upholding the Industrial Court's decision and dismissing the complaint.

Tulsiram K. Gothad Vs the Superintendent… — Pension and Retirement Benefits | Bombay HC (2007)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL NO.829 OF 2001

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WRIT PETITION NO.2461 OF 1999

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Shri.Tulsiram K.Gothad.

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...Appellant

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vs.

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1.The Superintendent
Mahatma Gandhi Memorial Hospital
and another....Respondents.

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Mr.S.N.Deshpande, for Appellant.

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Mr.M.M.Varma with Mr.Rajesh Gehani, for
Respondent no.1.

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CORAM: D.K.DESHMUKH &

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 J.H. BHATIA, JJ.

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DATED: 3^rd October,2007.

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P.C.:-

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1.By this appeal, the appellant challenges

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the order dated 23.2.2001 passed by the learned
Single Judge of this Court in Writ Petition
no.2461 of 1999. That writ petition was filed by

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the present appellant challenging the order dated
31.3.1999 passed by the Industrial Court, Bombay
in complaint (ULP) no.1209 of 1997. That
complaint was also filed by the present appellant
and by the order dated 31.3.1999 that complaint
was dismissed. The facts that are necessary and
relevant for deciding this petition are that the
respondent no.1 runs a hospital. The board of
management has framed service regulation called

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“Mahatma Gandhi Memorial Hospital Service

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Regulations”. The appellant submitted an
application for employment under the respondent
no.1 on 7.6.1962. By the appointment order dated

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25.6.1962 he was appointed as plumber at the
hospital of the respondent no.1. Clause (4) of
the appointment order reads thus:-

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“4.His conditions of service under
the Board of Management will be
governed by the rules framed and to
be framed hereafter by the Board.”

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A letter dated 31.10.1997 was issued by the

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respondent no.1 to the appellant that he will
retire from the services of the respondent no.1
on completion of age of 58 years on 31.1.1998.
After receiving this letter dated 31.10.1997, the

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appellant filed complaint before the Industrial
Court under the Maharashtra Recognition of Trade
Unions and Prevention of Unfair Labour Practices

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Act,1971 claiming that the conduct of the
respondent no.1 of issuing retirement notice
dated 31.10.1997 amounts to unfair labour
practice under item nos.5, 9 and 10 of Schedule

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IV of the Act. It was the case of the

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complainant that the model standing orders are
applicable to the establishment of the hospital
of the respondent no.1 and according to the model
standing orders, the age of retirement of the
employees is 60 years, and therefore, the
respondent no.1 cannot retire the appellant
before he completes the age of 60 years. The
complaint was resisted by the respondent no.1.
According to the respondent no.1, so far as the
age of retirement of the appellant is concerned,
it is governed by the service regulations framed
by the respondent no.1. According to the service
regulations, the age of retirement of class III
employees is 58 years. The appellant is a class
III employee and therefore, his age of retirement

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is 58 years. It was claimed that the age of
retirement of the appellant will not be governed
by the model standing order because the terms
contained in the appointment order that the
conditions of the services of the appellant would
be governed by the Service Regulations, is an

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agreement and the Service Regulations provides 58
years as the age of retirement. It appears that

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the parties led documentary as well as oral
evidence. The complaint was decided, as referred
to above, by the Industrial Court by order dated
31.3.1999. The Industrial Court dismissed the
complaint. That order was challenged in Writ
Petition no.2461 of 1999. The learned Single
Judge has dismissed that petition by order dated
23.2.2001. This appeal is therefore, directed
against both those orders.

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2.The learned Counsel appearing for

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petitioner relying on the judgment of the learned
Single Judge of this Court in the case
“Engineering Workers' Association Vs. J.D.Jamdar,
Member Industrial Court & others, 2004 III CLR

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315” submits that as the agreement between the
employer and the employee does not provide for

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higher age of retirement than the age which is
prescribed by the Model Standing Order no.27 the

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age of retirement provided by Model standing
order no.27 will be applicable, and therefore,
the appellant could not have been retired at the
age of 58 years. He also relies on the judgment
of another learned Single Judge of this Court in
the case “The Indian Tobacco Company Ltd. Vs. The
Industrial Court & ors., 1990 ICLR 88”. The
learned Counsel further submits that even if it
is assumed that by the appointment order a
contract of employment was brought about between
the appellant and the respondent no.1 about the
age of retirement, that contract is void because
it is opposed to public policy. He relies on the
judgment of the Supreme Court in the case of
“Central Inland Water Transport Corporation Ltd.
& Anr. Vs. Brojo Nath Ganguli & Anr., 1986 II CLR
322. On behalf of the respondent no.1 on the
other hand it is submitted that it is clear from
perusal of the model standing order no.27 that
the age of retirement of the appellant may be 60
year, but that age of retirement can be 60 years

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only if there is no contract to the contrary
between the parties. Relying on the judgment of
the Division Bench of this Court in the Case of
“Pune Minicipal Corporation & Ors. Vs. Dhananjay
Prabhakar Gokhale, 2006 II CLR 105”, it is

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submitted that in view of what is contained in
clause 32 of the Model Standing Orders the terms
in the contract between the parties will prevail
over the provisions of the Model Standing Orders
like Model standing order no.27.

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3.There is no dispute between the parties

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that because of the condition no.4 of the

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appointment order quoted above, the conditions of
the service of the appellant were governed by the
Service Regulations framed by the respondent
no.1. There is also no dispute that according to

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those Service Regulations so far as class III
employees like appellant are concerned, the age
of retirement is 58 years. The appellant,
however, relies on Model standing order no.27

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which reads as under:-

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“The ageforretirementor
superannuation of the workman may be
sixty years or such other age as may
be agreed upon between the employer
and the workman by any agreement,
settlement or award which may be
binding on the employer and the
workman under any law for the time
being in force.”

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Perusal of the above Model standing order itself
shows that it prescribes 60 years as age of
retirement if some other age of retirement is not
agreed upon between the employer and the workmen
by any agreement or settlement or award which may
be binding on both the parties. Thus, the age of
retirement is prescribed by the Model Standing
Order no.27 as 60 years only if there is no
contrary provision to be found in an agreement
between the parties. It is thus clear that the
moment it is shown that there is an agreement

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between the parties which is binding on both the
parties prescribing different age of retirement

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then the Model Standing Order no.27 will not
operate because of the language in which the
Model standing order has been couched. Though
the position on reading of model standing order
no.27 is absolutely clear, the complication is
created by the judgment of the learned Single
Judge of this Court in the case of “Engineering
Workers' Association Vs. J.D.Jamdar, Member

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Industrial Court & others, 2004 III CLR 315”
referred to above. In that judgment the learned
Single Judge has considered two clause of model
standing orders i.e. Clause 27 and clause 32 and
has made the following observations in paragraphs
11 and 12:-

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“11.Beforeembarkingonthe
submissions made by the learned

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Counsel for the parties, it would be
advantageous to set out the
provisions of the Model Standing
orders. Model Standing order 27 as
applicable to the manual and

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supervisory staff reads as under:-

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27. The age of retirement or
superannuation of the workmen may be
sixty years or such other age as may
be agreed upon between the employer
and the workmen by any agreement,
settlement or award which may be
binding on the employer and the
workmen under any law for the time
being in force.

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Standing order no.32 reads as
follows:-

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32.Nothing contained in these
Standing Orders shall operate in
derogation of any law for the time
being in force or to the prejudice
of any right under a contract of
service, custom or usage or an
agreement, settlement or award
applicable to the establishment.

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12.Similar standing orders are
applicable to the workmen employer
for clerical or supervisory work.
The Standing Order 27, therefore,
stipulatesthattheageof
retirement should be 60 years or
such other age as may be agreed upon

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between the employer and the workmen
by any agreement, settlement or
award. If the submission of
Mr.Talsania is correct that any age
could have been the retirement age,
there was no need for the
Legislature to stipulate the age of
60 years in the Standing Order 27.
This has obviously been done in
order to ensure that the retirement
age of the workman is at least 60
years. Any settlement or agreement
or award stipulating any age of
retirement which is above the age of
60 years is permissible under the
Standing Orders. Standing order 32
makes it amply clear that the
Standing Orders cannot operate in
derogation of any law for the time
being in force or to the prejudice
of any right under the contract of
service, custom or procedure or
agreement, settlement or award.
Therefore, if the contract of
serviceunderanagreement,
settlement or award stipulates that
the age of retirement should be
something other than 60 years, the

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agreement is saved by this Standing
order which when read with Standing
Order 27 lends credence to the
submission of Ms.Buch. If the
retirement age was not to be at
least 60 years, there was no need
for the legislature to mention this
figure in Standing Order 27 and the
Standing Order could have read as
“theageofretirementor
superannuation of the workmen may be
such age as may be agreed upon
between the employer and the workmen
by any agreement, settlement or
award”. By stipulating the age as
60 years in the Standing Order,
obviously the Legislature meant that
the minimum age of retirement would
be 60 years.”

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Perusal of the above paragraphs from the judgment
of the learned Single Judge shows that according
to the learned Single Judge the age of retirement
fixed by an agreement between the parties will
prevail over the age of 60 years which is

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prescribed by the Model Standing Order no.27 only

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if the age of retirement fixed by the agreement
is higher. Plain reading of the judgment of the
learned Single Judge shows that the construction
placed by the learned Single Judge on Model
Standing order no.27 results in addition words to
the Model Standing order no.27. The settled
principle of law is that the interpretation of a
provision which results in addition of words can
be resorted to only on recording of a finding
that reading the provision literally results in
absurdity or to an extremely unjust situation.
In the judgment in the case of “Engineering
Workers' Association Vs. J.D.Jamdar, Member
Industrial Court & others” we do not find any
finding being recorded by the learned Single
Judge that reading the provision of Model
Standing order no.27 literally leads to any
absurd situation or leads to manifest injustice.
The Model standing order no.27 in clear terms
lays down that age of retirement of workmen may
be 60 years or it can be such other age as may be

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agreed between the parties by an agreement. It is
thus clear that age of retirement can be 60 years

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only if there is no contract which is to the
contrary between the parties. By the construction
placed by the learned Single Judge on Model
Standing order no.27, the learned Single Judge
has added words to the provisions of Model
Standing order no.27 that the age of retirement
specified in the agreement between the parties
will prevail over the age specified in the Model

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Standing order no.27 only if the age of
retirement specified in the agreement is more
than 60 years. The settled law is that it is
contrary to all rules of construction to read
words into an enactment unless it is absolutely
necessary to do so. Therefore, before placing a
construction on a provision which results in
addition of words, the Court will have to say why
it is absolutely necessary to construe the
provision in that manner. The Supreme Court has
considered as to what should be the approach of

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the Court in interpreting the provisions of any
statute in its judgment in the case of “Unique
Butyle Tube Industries (P) Ltd. Vs. U.P.Financial
Corporation and others, (2003)2 Supreme Court
Cases 455”. Paragraphs 11 to 14 of that
judgment, in our opinion, are relevant, they read
as under:-

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“11.It is a well settled principle
in law that the court cannot read
anything into a statutory provision
which is plain and unambiguous. A
statute is an edict of the
legislature. The language employed
in a statute is the determinative
factor of legislative intent. The
firstandprimaryruleof
construction is that the intention
of the legislation must be found in
the words used by the legislature
itself. The question is not what
may be supposed and has been
intended but what has been said,
“Statues should be construed, not as
theorems of Euclid”, Judge Learned

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16

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Hand said, “but words must be
construed with some imagination of
the purposes which lie behind them”
(See Lenigh Valley Coal Co. V.
Yensavage.) This view was reiterated
in Union of India V. Filip Tiago De
Gama of Vedem Vasco De Gama (SCC
p.284 para 16).

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12.In D.R.Venkatachalam V.

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Dy.Transport Commr. It was observed
that courts must avoid the danger of
a priori determination of the
meaning of a provision based on
their own preconceived notions of
ideological structure or scheme into
whichtheprovisiontobe
interpreted in somewhat fitted. They
arenotentitledtousurp
legislative function under the
disguise of interpretation.

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13.While interpreting a provision
the court only interprets the law
and cannot legislate it. If a
provision of law is misused and
subjected to the abuse of process of
law, it is for the legislature to

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amend, modify or repeal it, if
deemed necessary. (See Rishabh Agro
Industries Ltd. V. P.N.B.Capital
Services Ltd.) The legislative casus
omissus cannot be supplied by
judicial interpretative process.
Language of Section 6(1) is plain
and unambiguous. There is no scope
for reading something into it, as
was done in N.Narasimhaiah V. State
of Karnataka. In State of Karnataka
V. D.C.Nanjudaiah the period was
further stretched to have the time
period run from the date of service
of the High Court's order. Such a
view cannot be reconciled with the
language of Section 6(1). If the
view is accepted it would mean that
a case can be covered by not only
clauses (i) and/or (ii) of the
proviso to Section 6(1), but also by
a non-prescribed period. The same
can never be the legislative intent.

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14.Two principles of construction –
one relating to casus omissus and
the other in regard to reading the
statute as a whole – appear to be

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well settled. Under the first
principle a casus omissus cannot be
supplied by the court except in the
case of clear necessity and when the
reason for it is found in the four
corners of the statute itself but at
the same time a casus omissus should
not be readily inferred and for that
purpose all the parts of a statute
or section must be construed
together and every clause of a
section should be construed with
reference to the context and other
clauses thereof so that the
construction to be put on a
particularprovisionmakesa
consistent enactment of the whole
statue. This would be more so if
literal construction of a particular
clause leads to manifestly absurd or
anomalous results which could not
havebeenintendedbythe
legislature. “An intention to

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produce an unreasonable result”,
said Danckwerts, L.J., in Artemiou
V. Procopiou (All ER p.544-I) “is
not to be imputed to a statute if
there is some other construction

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available”. Where to apply words
literally would “defeat the obvious
intention of the legislation and
produce a wholly unreasonable
result” we must “do some violence to
the words” and so achieve that
obvious intention and produce a
rational construction. [Per Lord
Reid in Luke V. IRC where at AC
p.577 he also observed: (All ER
p.664 I) “This is not a new problem,
though our standard of drafting is
such that it rarely emerges.”]
Therefore,theHighCourt's
conclusionsholdingproceedings
under the U.P.Act to be in order are
indefensible.”

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In our opinion, therefore, it is clear that the
learned Single Judge in her judgment in the case
of “Engineering Workers' Association Vs.
J.D.Jamdar, Member Industrial Court & others” was
not right in placing construction on Model
Standing Order no.27 which results in addition of
words to that provision. In our opinion,

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therefore, that judgment does not lay down law

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which can be called good law. We hereby

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therefore, overruled that judgment.

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4.So far as the Model standing order no.32

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is concerned, it is not necessary for us to

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consider that provision, because in view of the
provisions of Model standing order no.27 the
position is clear that the age of retirement
mentioned in that provision will apply only if
there is no other age of retirement mentioned in
the agreement between the parties. Perusal of the

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judgment of the learned Single Judge in the case
“Engineering Workers' Association Vs. J.D.Jamdar,
Member Industrial Court & others” shows that the
learned Single Judge has, in support of the view
that she has taken, relied on the judgment of the
learned Single Judge in the case “The Indian
Tobacco Company Ltd. Vs. The Industrial Court &
others”. Perusal of that judgment shows that the
learned Single Judge in that case was considering

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the provisions of Model Standing Order no.4-A and
not Model standing order no.27. In our opinion,
this case turns on the language employed in the
Model Standing Order no.27, and therefore, the
judgment of the learned Single Judge in the case
“The Indian Tobacco Company Ltd. Vs. The

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Industrial Court & others” as also the judgment
of the Supreme Court in the case between “Western
India Match Company Ltd. And Workmen, 1973 II
L.L.J. 59” are not relevant. We may mention here
that in so far as the Model Standing order no.32
is concerned, our attention was invited by the
learned Counsel appearing for respondent no.1 to
the judgment of the Division Bench in the case
“Pune Municipal Corporation & others vs.
Dhananjay Prabhakar Gokhale, 2006 II CLR 105”

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referred to above, where construction different
from the one placed by the learned Single Judge
in the case “The Indian Tobacco Company Ltd. Vs.
The Industrial Court & others” on Model Standing
order no.32 has been accepted by the Division

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Bench. However, as observed above, in view of

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the clear language employed by the Model Standing
order no.27, it is not necessary for us to
consider Model Standing order no.32.

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5.It was contended, as observed above, on
behalf of the appellant that the contract of
employment between the appellant and the
respondent no.1 which prescribed the age of
retirement as 58 years for class III employees
is void because it is contrary to the provisions
of Section 23 of the India Contract Act and
reliance is placed on the judgment “Central
Inland Water Transport Corporation Ltd. & Anr.
Vs. Brojo Nath Ganguli & Anr., 1986 II CLR 322.”.
In our opinion, the submission is devoid of any
merit. Prescribing age of retirement as 58 years
for a class of employees can by no stretch of
imagination be said to be opposed to any public
policy. In any case, the Model standing order
no.27 which according to the appellant is law the

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on the point itself allows a different age of

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retirement being agreed upon between the parties.

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In our opinion, therefore, the submission has no
substance.

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6.We find that the view that has been taken

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by the Industrial Court as also the learned
Single Judge is the correct view of the
provisions of the Model Standing order no.27 and
therefore, it does not call for any interference
at our hands. Appeal, therefore, fails and is
disposed of. The appellant shall pay cost of this
petition.

Tulsiram K. Gothad v. the Superintendent, Mahatma Gandhi Memorial Hospital, and Anr.

Case brief

What is this about?

What did the court decide?

Tulsiram K. Gothad v. the Superintendent, Mahatma Gandhi Memorial Hospital, and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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Parties & counsel

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