Jose Velho Periera vs Canara Bank

J.A. Patil, J.—The petitioner was initially appointed on contract basis for a period of one year as a Field Officer in the respondent Bank on a consolidated pay of Rs. 400/- per month. Accordingly, the petitioner entered into a contract of service dated July 25, 1967, which remained in force for one year from July 25, 1967. The said contract of service was later on renewed twice, first on August 3, 1968 and thereafter on August 25, 1969. The said contracts provided that on expiry of one year the same would stand terminated. On July 19, 1968, the Government of India nationalised 14 major private sector banking institutions, including the respondent Bank. Thereafter, the respondent Bank was reconstituted into a Government of India undertaking. Subsequent to the nationalisation of the respondent Bank, the petitioner was appointed in permanent service as a probationary Accountant/Officer, Grade IV with effect from August 6, 1970. At that time, another contract of service was entered into between the parties. The conditions of the services of the petitioner are now governed by the Canara Bank (Officers'') Service Regulations, 1979, which were framed u/s 19 read with Section 12(2) of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. Regulation 19(1) of the said Regulations states that the age of retirement of an officer employed shall be determined by the Board in accordance with the guidelines issued by the Government from time-to-time. Regulation 3(c) defines "Board" as "Board of Directors of the Bank". Annexure 6 of the said Regulations contains guidelines regarding the age of retirement of the officers of the respondent Bank and they are to the following effect:-

"The following guidelines are issued by the Government in terms of proviso to Regulation 19(1) of the Canara Bank Officers'' Service Regulations, 1979:

The age of retirement of an officer in the Bank shall be determined in accordance with the following conditions:-

(1) An Officer employee of the Bank recruited/promoted prior to July 19, 1969 shall retire on completion of the 60 years of age.

(2) An Officer employee of the Bank recruited prior to July 19, 1969 but promoted as an officer on or after July 19, 1969 shall retire on completion of 60 years of age.

(3) An officer employee of the Bank recruited whether as an Award Staff or as an officer employee on or after July 19, 1969 shall retire on completion of 58 years of age."

It is the petitioner''s case that he was born on May 15, 1935 and that since he joined the service before July 19, 1969, the age of his retirement under the provisions of Annexure 6 would be 60 years. Accordingly, the due date of the petitioner''s retirement is May 31, 1995. The petitioner however, found that in the office record the date of his retirement was shown as May 31, 1993, which according to him, is not correct. The petitioner apprehending that, he would be retired on May 31, 1993 filed this petition on April 12, 1993 praying for a direction to the respondent Bank that he shall be retired on May 31, 1997 and not before that date. He further prayed for quashing the direction of the respondent bank as May 31, 1993 in the letter dated March 5, 1992.

On behalf of the respondent Bank, its Law Officer has filed affidavit stating that the petitioner was recruited as a Bank employee on August 6, 1970, and that as the petitioner was recruited after July 19, 1969 the age of retirement in his case would be 58 years.

Shri Noronha, learned advocate for the petitioner submitted before us that the special contracts of service entered into between the parties treat the petitioner''s service on contractual basis as employee. Hence, according to him, the petitioner''s appointment on contract amounts to regular recruitment. Shri Noronha therefore submitted that in that event, the petitioner will have to be treated as having been recruited prior to July 19, 1969, and as such, the age of retirement in his case would be 60 years. Shri Noronha drew our attention to a list of officers of the respondent Bank which, according to him, purported to be a seniority list and pointed out that in the said list the date of the petitioner''s appointment is mentioned as August 6, 1968. We, however, find that is only a list of Superintendents and Branch Managers and the petitioner himself has written in hand on it the caption, "Seniority of Officers Grade II". Shri Amonkar, learned advocate for the respondent Bank submitted that the services rendered by the petitioner on contractual basis cannot be taken into consideration for deciding the age of retirement. According to him the word, "recruitment", contemplated by the Annexure 6 of the Regulations has to be read as "appointment".

The letter dated June 28, 1967, shows the Board has accorded, its sanction to the petitioner''s appointment as Field Officer on contract basis for a period of one year. Accordingly, the first contract of service was entered into by the parties on July 25, 1967 (page 19). As pointed out above, the said contract was renewed twice, firstly on August 26, 1968 and secondly, on August 25, 1969. The Proceedings of the General Manager dated August 20, 1970 show that the last contract of service entered into by the petitioner expired on August 2, 1970 and that the petitioner had applied for permanent employment in the Bank. The application made by the petitioner was granted and he was appointed in the services of the Bank as a probationary Accountant/Officer Grade IV. Thereafter, there was another service contract entered into by the parties on August 6, 1970, wherein the Bank agreed to entertain and continue the petitioner in service upon the terms and conditions set out in the said agreement. One of such conditions states that the agreement shall commence/be deemed to have commenced and come into force from August 6, 1970. In para 8 of his petition the petitioner has averred that he joined the service of the respondent Bank on August 6, 1968. However, in view of the abovementioned agreement of service, this averment does not appear to be correct.

While submitting that the services rendered by the petitioner on contractual basis are required to be considered for the purpose of fixing the date of his recruitment as well as the date of his retirement, Shri Noronha placed reliance upon two unreported decisions of the Karnataka High Court. The first decision of the Karnataka High Court in which a similar point was involved was in Writ Petition No. 2966/1996, G. Padmanabha Shenoy v. Canara Bank, decided on March 11, 1996. In that case, the petitioner was initially appointed on contractual basis for a period of two years as per the order dated July 18, 1967. Nearly a month before the completion of the contractual period, the petitioner was informed that the Bank was prepared to consider his application for officers post Grade IV (Accountant). Accordingly, the petitioner made an application in the prescribed form and by an Order dated July 18, 1969, he was appointed as Probationary Officer Grade IV. The appointment order mentioned that the petitioner would be on probation for six months and that the same would commence from the date on which the contract of service was duly signed. A contract of service was executed between the parties commencing from July 27, 1969. The petitioner thereafter served the respondent bank for a number of years and in October 1995 he made a representation that his date of retirement had been wrongly fixed and that he was entitled to retire at the age of 60 years. The petitioner''s representation was however, rejected by the Bank upon which the petitioner filed a Writ Petition in the High Court. The learned single Judge referred to the guidelines issued in Annexure 6 of the Regulations and observed that the term, "recruitment" could not be given a narrow or restricted meaning. The learned Judge further held that if recruitment is permissible both on contract or regular basis, then there is no good reason as to why a recruitment which was initially contractual in nature should not be termed to be a recruitment for all purposes. It was also pointed out that the petitioner was appointed on July 18, 1969, i.e. a day before the crucial date fixed in the guidelines. In this view of the matter, the learned Judge proceeded to allow the Writ Petition filed by the petitioner.

The other decision relied upon by Shri Noronha is in Writ Petition No. 32714/1997, Shri M. Dayananda Prabhu v. Canara Bank, decided on February 17, 1998. In this case, the learned single Judge of the Karnataka High Court followed the earlier decision given in Writ Petition No. 2966/1996.

Shri Noronha drew our attention to the fact that the decision given by the Karnataka High Court in Writ Petition No. 2966/1996 was confirmed by the Supreme Court. The copy of the Order passed by the Supreme Court on October 9, 1996, shows that the Supreme Court maintained the finding of the High Court solely on the ground that the letter of appointment was issued on July 18, 1969, i.e. one day prior to the date fixed in the guidelines. The Supreme Court did not express any opinion on the larger question with regard to the interpretation of the rights.

On a careful perusal of both the decisions in the light of the facts in the present case, it will be clear that they can be easily distinguished on material aspects. In the first instance, it may be noted that the petitioner in the said case was appointed on July 18, 1969, i.e. one day before the specified date in the guidelines. However, in the instant case the date of the petitioner''s appointment is much later after the specified date. He was appointed on August 6, 1970. The second thing which is evident from the judgment delivered in that case is that the contract of service contains two significant promises, namely (i) the promise of absorption in regular service of the Bank as a Probationary Accountant on completion of the period of probation; and (ii) the promise upon completion of the period of probation to be conferred on the terms and conditions set out in the Order. It is material to note that in the instant case, the contracts of service entered into by the parties did not contain any such promises. On the contrary, the said contracts specifically stated that the officer shall work in the Bank for a period of one year from the commencement of the contract and the contract shall stand terminated at the end of the said period of one year. The first contract of service made by the petitioner commenced on July 25, 1967 and, as such, it expired on July 24, 1968. The second contract of service was to come into force from the date on which the petitioner joined duties. It is not clear as to when, after the expiry of the first contract, the petitioner again joined the service of the respondent Bank, but in any event, the second contract was also to be in force for a period of one year. The third contract which is at page 27, was also for a period of one year and it clearly recites that the petitioner has been working with the Bank on contract basis since August 3, 1968 and this contract expires on August 2, 1969. None of the three contracts contain any term whereby the petitioner was assured of continuity in service as well as absorption.

The third material thing which we have noticed is that the last contract of service entered into between the parties expired on August 2, 1969. The petitioner was thereafter appointed on probation as an Accountant. However, the fresh contract of service entered into by the petitioner with the respondent Bank (page 34) specifically states:

"This agreement shall commence/be deemed to have commenced and come into force from the sixth day of August, 1970."

It therefore follows that during the intervening period of three days between the expiry of the earlier contract on August 2, 1968 and the commencement of the fresh contract on August 6, 1970, the petitioner was not in service of the respondent Bank. Thus there was obviously a break of three days in. his earlier service on contractual basis and the subsequent service on regular basis. Consequently, it cannot be said that the petitioner was recruited or appointed prior to July 19, 1969 which is the crucial date specified in the Annexure 6 of the Regulations for the purpose of determining the age of retirement/ It is obvious that since the petitioner was appointed on August 6, 1970, his age of retirement is governed by Clause 3 of Annexure 6, which specifies the age of retirement as 58 years. Consequently, there is absolutely nothing wrong or illegal if the respondent Bank has fixed the date of retirement of the petitioner as on May 31, 1993.

Shri Noronha pointed out that the petitioner was given the benefit of his earlier contractual service for the purposes of pension, gratuity, earned leave and casual leave. Strictly speaking, the petitioner was not entitled to these benefits since he was appointed on regular basis with effect from August 6, 1970. It was however, an act of grace on the part of the respondent Bank to have allowed the petitioner to reap those benefits. However, it cannot be said by any stretch of imagination that on that count the petitioner could be deemed to have been appointed on August 6, 1968 as contended by Shri Noronha.

Our attention is drawn to the affidavit of Shri Anil Dattatray Dande, Senior Manager of the respondent Bank wherein he stated that the Bank had sought advice of the Indian Bank Association on the point whether the contract period will alter the date of regular appointment of an employee. A copy of the rely given by the Indian Bank Association is annexed with the said affidavit which clearly states that the contract period is computed for gratuity and pension and the benefit extended for the purpose of qualifying service will not, ipso facto alter the date of joining. This letter shows the policy of the Indian Bank Association, which is to be adopted by the Banks in such cases. Thus, it is clearly seen that the petitioner cannot get any benefit of his earlier service on contractual basis so far as the question of his date of joining the service is concerned. The same will be, as pointed above, August 6, 1970 and the same being clearly after the specified date in Annexure 6, the petitioner is liable to be retired at the age of 58 years. It may be pointed out that the present petition was filed about one and half months prior to the due date of retirement, i.e., May 31, 1993. Since no interim relief is granted to the petitioner, he has already retired on May 31, 1993, on attaining the age of superannuation of 58 years.

In the result, we find that there is absolutely no merit in the petitioner''s case and, as such, the petition deserves to be dismissed. Accordingly, we dismiss the same with no order as to costs. Rule is discharged.