SYED SHAH MOHD. QUADRI, J.

( 1 ) THE unsuccessful writ petitioner is the appellant. He was a Cashier in Bata India Limited, 3rd respondent, from May, 1969. After setting out the year wise details for three years of his absence from duty, his services were terminated on November 23, 1977 with effect from November 30, 1977 duly paying wages in lieu of a month s notice but without paying any gratuity. The appellant challenged the said order of termination before the second respondent, the appellate authority under Section 41 of the Andhra pradesh Shops and Establishments Act, 1966 (for short the Act ). The second respondent allowed the appeal holding that there was no reasonable cause and even if there was a reasonable cause, the termination of service was viclative of Section 40 of the Act as the gratuity was not paid at the time of termination and directed reinstatement of the appellant with full back wages on September 15, 1978. The third respondent carried the matter in Appeal, Second Appeal No. 37 of 1978, before the first respondent who allowed the appeal holding that there was reasonable cause and termination of service was in accordance with Section 40 of the Act. The validity of the order of the first respondent was challenged by the appellant in the writ petition. The learned single Judge approved the findings of the first respondent and dismissed the writ petition on April 10, 1980. The appellant questions the correctness of this order of the learned single Judge in this writ appeal.

( 2 ) SRI Suryaprakash Rao, the learned counsel for the appellant, submits that the third respondent having granted leave without pay for the absence of the petitioner, noted in the termination order, in fact condoned the appellant s absence as such the same cannot form a reasonable cause for the termination of his service ; the gratuity was not paid along with the month s pay in lieu of notice at the time of termination of services, therefore for any one of the above reasons the order of termination is violativc of Section 40 of the Act. Shri K. Srinivasa Murthy, the learned counsel for the third respondent, submits that expots facto granting of leave without pay was for avoiding break in the service of the appellant and that the third respondent was within its power in terminating the services of the appellant for his frequent absence. He further submits that payment of gratuity is not a precondition for termination of service of an employee for reasonable cause.

( 3 ) FREEDOM of contract in the realm of the contracts of employment and the right of the employer to hire and fire have been subjected to statutory restrictions to bring them in harmony with the concept of social justice. Where employment relates to any establishment within the meaning of the Act, the power of the employer is controlled by Section 40 of the act.

( 4 ) WE may now read Section 40 in so far as it is relevant for our purpose ;"sec. 40 Conditions for terminating the services of an employee and payment of gratuity : (1) No employer shall without a reasonable cause and except for misconduct, terminate the service of an employee who has been in his employment continuously for a period of not less than six months without giving such employee, at least one month s notice in writing or wages in lieu thereof and in respect of an employee who has been in his employment continuously for a period not less than 5 years gratuity amounting to fifteen days average wages for each year of continuous employment. Explanation :- For the purpose this sub-section, (a) xx xx xx (b) xx xx xx (c) xx xx xx (d) xx xx xx (2) Where a gratuity is payable under sub-section (1) to an employee, he shall be entitled to receive his wages from the date of termination of his service until the date on which the gratuity so payable is actually paid subject to a maximum of wages for two months. (3) An employee, who has completed the age of sixty years or who is physically or mentally until having been s

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