Full Judgment Text
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CASE NO.:
Appeal (civil) 5786 of 2000
PETITIONER:
Central Bank of India & Ors
RESPONDENT:
Madan Chandra Brahma & Anr
DATE OF JUDGMENT: 22/08/2007
BENCH:
K.G. BALAKRISHNAN & P.K. BALASUBRAMANYAN
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO.5786 OF 2000
P.K. BALASUBRAMANYAN, J.
1. On 9.6.1969, Respondent No. 1 was appointed
temporarily as an Assistant in Gauhati Bank. On
19.7.1969, the Central Bank (hereinafter referred to as "the
appellant Bank") along with other banks was nationalized.
As per the relevant Regulation, the age of superannuation
was fixed as 58 years in all Nationalized Banks including
the appellant Bank. On 1.8.1975, the Gauhati Bank was
merged with the Purbanchal Bank. The Scheme of
Amalgamation between the Gauhati Bank and the
Purbanchal Bank was not brought on record. Suffice it to
say, that the age of superannuation in the Purbanchal
Bank was also 58 years. Respondent No. 1, who had
meanwhile been confirmed in the Gauhati Bank, had been
promoted on 1.7.1975 as an officer in that Bank. On
amalgamation, respondent No. 1 thus became an officer of
the Purbanchal Bank with effect from 1.8.1975, the age of
superannuation being 58 years.
2. On 29.8.1990, the Purbanchal Bank merged
with the appellant Bank under a Scheme of Amalgamation
under the Banking Regulation Act, 1949. The Appellant
Bank was to frame Regulations with a view to bring the
employees of Purbanchal Bank on a par with those of the
Appellant Bank. On 6.5.1991, the appellant Bank, in
terms of clause 11 of the Scheme of Amalgamation, fixed
the pay and other service conditions of officers and
employees of the erstwhile Purbanchal Bank and made the
Central Bank of India Service Regulations 1991 applicable
to them with effect from 1.4.1991. Respondent No. 1,
whose date of birth had been recorded as 1.8.1934, was to
attain the age of 58 years by 31.7.1992. On 17.7.1992, the
appellant Bank informed respondent No. 1 that he would
be reaching the age of superannuation on 1.8.1992.
Respondent No. 1 by his reply dated 23.7.1992, sought to
dispute his date of birth. That apart, he also claimed that
he would retire not on attaining the age of 58 years but
only on the attaining the age of 60 years, as per Regulation
19 of the Service Regulations 1979 on the basis that his
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original appointment in the Gauhati Bank was on 9.6.1969
and hence he was entitled to continue in service of the
appellant Bank, till he attained the age of 60 years. The
appellant Bank did not accept this stand of respondent No.
1 and retired him on his attaining the age of 58 years.
3. Respondent No. 1 approached the High Court
challenging his being retired on attaining the age of 58
years and, of course, also raising an issue about his date of
birth. The learned single judge held that there was no
merit in the challenge to the date of birth recorded in the
records of the Bank. He further held that respondent No. 1
was entitled to continue in service only till he attained the
age of 58 years in the face of the Regulations. The learned
single judge, hence, dismissed the Writ Petition.
Respondent No. 1 filed an appeal. The Division Bench of
the High Court held that even though the age of
superannuation in the entry Bank, the Gauhati Bank, was
58 years and continued to be so until its amalgamation
with the Purbanchal Bank and the age of retirement in the
Purbanchal Bank was also 58 years, since Respondent No.
1 must be deemed to be an employee of the Central Bank
right from the inception, he was entitled to continue in
service until he attained the age of 60 years. It was
reasoned that respondent No. 1 must be taken to be an
officer recruited in the appellant Bank prior to 19.7.1969
but promoted as an officer on or after 19.7.1969 in terms of
the Regulations of the appellant Bank and entitled to
continue till he attained the age of 60 years. Thus, setting
aside the decision of the learned Single Judge, the Division
Bench of the High Court allowed the Writ Petition and
taking note of the fact that respondent No. 1 had attained
the age of 60 years as on the date of the judgment, directed
the appellant Bank to pay within the time fixed by that
court, all the arrears of salary and other allowances as
admissible to respondent No. 1, if he were allowed to
continue in service up to the age of 60 years.
4. Feeling aggrieved by this decision, the appellant
Bank along with its officers has filed this appeal. The
Union of India has been impleaded as Respondent No. 2.
5. Regulation 19 of the Central Bank of India
(Officers) Service Regulations, 1979 to the extent it is
relevant reads:
"(1) Rules for age of retirement \026
The age of retirement of an officer in the Bank
on or after the appointed date be determined as
under-
1.1 An officer employee of the Bank
recruited/promoted prior to 19th July,
1969 shall retire on completion of 60 years
of age.
1.2 An Officer employee of the Bank recruited
prior to 19th July, 1969 but promoted as
an officer on or after 19th July, 1969 shall
retire on completion of 60 years of age.
1.3 An officer employee of the Bank recruited
whether as an Award Staff or as an officer
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employee on or after 19th July, 1969 shall
retire on completion of 58 years of age\005"
Whereas the case of the appellant Bank is that clause
1.3 of Regulation 19 is attracted since respondent No. 1
became an employee of the Bank only after 19.7.1969 and
must be taken to be an employee recruited after 19.7.1969,
the claim of respondent No.1 is that, since he was recruited
to the Gauhati Bank prior to 19.7.1969 and promoted as
an officer after 19.7.1969 in the Gauhati Bank, he must be
taken to have been recruited to the appellant Bank prior to
19.7.1969 and was entitled to continue in service till he
attained the age of 60 years in terms of clause 1.2 of the
Regulation. While the learned single judge held that clause
1.3 would apply, the Division Bench has taken the view
that clause 1.2 of the Regulation 19 would apply.
6. On a plain understanding of the factual
situation, it appears to us that respondent No. 1 could be
taken to have become an officer of the appellant Bank only
on the amalgamation of the Purbanchal Bank with the
appellant Bank. Admittedly, that was on 29.8.1990, well
after 19.7.1969. Strictly speaking, respondent No. 1 was
not recruited in the appellant Bank, if we literally construe
the expression ’recruited’ occurring in the Regulation. But
obviously the expression includes those who have become
officers of the appellant Bank by way of amalgamation or
merger. Here, the merger took place only on 29.8.1990,
long after 19.7.1969. In this situation, it is clear that
respondent No. 1 could be deemed to have been recruited
to the service of the appellant Bank only after 19.7.1969. If
so, it would be clause 1.3 of Regulation 19 that would
apply and not clause 1.2 of that Regulation. We may also
notice that there is nothing inequitable or unjust in the
result thus reached, since the age of superannuation
insofar as respondent No. 1 and those similarly situated
were concerned, was 58 years both in Gauhati Bank, the
entry Bank and the Purbanchal Bank with which the
Gauhati Bank merged on 1.8.1975.
7. Chairman, Canara Bank, Bangalore Vs. M.S.
Jasra & Ors., 1992 (2) SCR 68) relied on was a case where
an employee of Lakshmi Commercial Bank, which came to
be amalgamated with Canara Bank, claimed that he was
entitled to continue in service of the Canara Bank until he
attained the age of 60 years, since that was the age of
superannuation in the Lakshmi Commercial Bank of which
he was the employee, prior to its amalgamation. His claim
was rejected by the Canara Bank and he challenged that
decision in a writ petition in the High Court. The High
Court allowed the Writ Petition and held that the employee
was entitled to continue until he attained the age of 60
years. It was contended on behalf of the Canara Bank that
on the basis of Section 45 of the Banking Regulation Act,
1949 and the consequent amalgamation of Lakshmi
Commercial Bank with Canara Bank, the service conditions
under Lakshmi Commercial Bank would not be available to
the employee; and that the terms and conditions of service
applicable to employees of corresponding rank and status
in Canara Bank would only apply. This Court upheld the
contention of the Canara Bank and held that the employee
became an employee of Canara Bank and was, therefore,
entitled only to the right given by proviso (ii) to clause (i) of
sub-section (5) of Section 45 of the Banking Regulation Act,
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1949 which entitled him to the same terms and conditions
of service as employees of the corresponding rank or status
in Canara Bank. Age of superannuation of the employees
in Canara Bank being 58 years only, the employee could
not claim to retire at the age of 60 years. In the case on
hand, the age of superannuation both in the Gauhati Bank
and the Purbanchal Bank, which subsequently got
amalgamated with the appellant Bank, was only 58 years.
The notification sanctioning the amalgamation under
Section 45(7) of the Banking Regulation Act is dated
29.8.1990. Clause 10 provides that employees like the
respondent are deemed to have been appointed by the
appellant Bank on the same terms and conditions of
service as were applicable to them before the close of
business on 14.7.1990. They were to be granted the same
pay as employees of the appellant Bank, were to hold office
on the same terms and conditions of service that are
applicable to the employees of the appellant Bank. The
communication from the central office dated 6.5.1991
relating to pay and other conditions of service of such
officers, by paragraph 6, has elaborately provided for the
reckoning of their prior services in the Purbanchal Bank
on matters specified herein. It does not contemplate the
treating of the employee as having joined the appellant
Bank on the day the employee joined the Purbanchal Bank.
Thus, the scheme adopted, worked and accepted by all,
does not provide for treating such an employee as having
entered the service of the appellant Bank even prior to the
amalgamation, except for the purposes specified. If at all,
the Pay and other service conditions of officers of the
erstwhile Purbanchal Bank Limited dated 6.5.91 gives an
indication, it is that the original date of appointment has
relevance only for purposes such as provident fund,
gratuity, for sanction of loans, etc. It has to be noticed that
in the matter of placement in the appellant bank, the
service of one and a half years in the Purbanchal Bank has
to be treated as service for one year only in the appellant
bank. That resolution heavily relied on by the Division
Bench of the High Court only provides that officers like
Respondent No.1 would be governed by the Central Bank of
India (Officers) Service Regulations, 1979 with effect from
1.4.1999. The fact that the regulation had been made
applicable, would not mean that such officers must be
taken to have been recruited from the date of their entry in
the Purbanchal Bank. The applicability of the Regulations
with effect from 1.4.1991 is subject to exceptions provided
thereunder. It is in that context that the non-reckoning of
service for one year in Purbanchal Bank as equivalent to
service of one year in the appellant bank assumes
significance. In this situation, while applying Regulation
19, it is not possible to uphold the plea that the respondent
should be taken to have been recruited to the appellant
bank prior to 19.7.1969 so as to attract paragraph 1.2
thereof. The right to be treated on a par with the
employees of the appellant Bank is one thing, but the right
to insist that the employee must be deemed to have become
an employee of the appellant Bank even before the
amalgamation is another. It may be noted that clause (i) of
sub-section (5) of Section 45 of the Banking Regulation Act,
1949 has only provided that an employee, such as the
respondent, had the right to get the same remuneration
and to have the same terms and conditions of service which
they were getting or by which they were being governed
immediately before the date of the order of moratorium.
The right to be treated on a par with the employees of the
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appellant Bank cannot extend to a right to be treated as
having entered the service of the appellant Bank even
before the very amalgamation. The decision referred to
above also shows that it is the age of superannuation in the
transferee Bank that would govern and the age of
superannuation in the transferee Bank subsequent to
19.7.1969, is only 58 years.
8. As we have noticed earlier, the age of
superannuation, when respondent No. 1 joined service in
the Gauhati Bank was 58 years and when that Bank
merged with the Purbanchal Bank, it continued to be 58
years. As far as we can see, there is nothing in the
Regulations or the Resolution which would enable
respondent No. 1 to claim that he was entitled to continue
until the age of 60 years when the age of superannuation of
even an officer originally recruited to the appellant Bank
after 19.7.1969 was only 58 years. Even though,
respondent No. 1 may carry his date of appointment in
Gauhati Bank for the purpose of service benefits to the
extent specified, the same does not extend to supporting a
claim that he must be deemed to have been recruited in the
Central Bank prior to 19.7.1969. We are, therefore, of the
view that the High Court was in error in holding that
respondent No. 1 was entitled to continue in service in the
appellant Bank till he attained the age of 60 years and was
entitled to monetary benefits on that basis. On a plain
reading of Regulation 19 in the context of the materials
available, we are satisfied that respondent No. 1 was bound
to retire on attaining the age of 58 years. The learned
single judge was, therefore, justified in dismissing the Writ
Petition. The Division Bench was not justified in allowing
it.
9. We may notice here that in B.S. Yadav and
another vs. Chief Manager, Central Bank of India and
others (1987 (3) SCC 120) this Court upheld the rule
providing for different retirement ages for the employees
recruited by the Central Bank before its nationalization and
for those recruited to the Bank after its nationalization.
The age of superannuation of the former was 60 years and
of the latter only 58 years. When this is the position and
the date of retirement is 58 years after nationalization of
the bank we find no reason to hold that those who came to
the bank after nationalization by way of amalgamation
should stand on a better footing than the employees
recruited to the Central Bank itself after nationalization.
10. Having held on law that the respondent is not
entitled to the relief claimed by him, we feel that some
compensation should be directed to be paid to him, in the
circumstances, in exercise of our jurisdiction under Article
142 of the Constitution of India. The respondent, we
notice, was fighting on a question of interpretation of the
Regulation of the appellant bank and has remained in
court for a considerable time. Taking note of the
divergence in the views of the High Court, our conclusion
and the circumstances of the case, we feel that it would be
appropriate to direct the appellant to pay a sum of Rs.1
lakh to the respondent ex gratia. We clarify that the
direction is not intended to be a precedent in any manner.
11. We, therefore, allow this appeal and setting aside
the decision of the High Court dismiss the Writ Petition
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filed by respondent No. 1 in the High Court. We direct the
appellant to pay a sum of Rs.1 lakh to Respondent No.1 ex
gratia within three months from today. In the
circumstances, we direct the parties to suffer their costs
here and in the High Court.