Muneshwar Mani Tripathi vs District Co-operative Bank Ltd. and Another

Sudhir Narain, J.—The Petitioner seeks writ of certiorari quashing the notice dated 10.11.1994 communicating the Petitioner that he shall retire with effect from 31.5.1995 on attaining the age of 58 years.

The facts, in brief, are that the Petitioner was appointed as a Clerk on 1st July, 1954 in District Co-operative Bank Limited, Deoria in pursuance of the resolution passed by the committee of management (hereinafter referred to as the Bank). The resolution indicated that the age of the retirement of the Petitioner shall be 60 years. Disciplinary proceedings were taken against the Petitioner. He was suspended on 16.4.1965 by the Chairman of the Bank. The Petitioner was dismissed from service. He filed an appeal and the appeal was dismissed. The Petitioner raised industrial dispute and the State Government referred the dispute to the Labour Court. It was registered as Case No. 24 of 1965.

During the pendency of the case before the Labour Court, the Petitioner and the management of the Bank entered into a compromise. A compromise application was filed before the Labour Court on 4th June, 1969 that the Petitioner shall be given fresh appointment. The Labour Court gave an award on 10th June, 1969 based on the aforesaid compromise. in pursuance of the compromise, the Petitioner was given a fresh appointment order appointing him as a Clerk. The compromise application has been annexed as Annexure-3 to the writ petition.

The services of the Petitioner were again terminated on 18.11.1969 on the ground that the Petitioner was on probation for one year and his services were terminated. This order was challenged and the Labour Court, on a reference made by the State Government, held that the order of termination dated 18.11.1969 was invalid and the Petitioner was directed to be instated in service. The Petitioner thereafter continued in service. On 10.11.1994, a notice was given to the Petitioner that he would retire on attaining the age of 58 years. This order has been challenged in the present writ petition.

I have heard Sri R. N. Ojha, learned Counsel for the Petitioner and Sri S.K. Singh, learned Counsel for the Respondent.

Learned Counsel for the Petitioner urged that the service conditions of the Petitioner are governed by U.P. Co-operative Societies Employees Service Regulations, 1975. Regulation 24 provides for the date of retirement. The Service Regulations, 1975 came into force on 6.1.1975. It provided the age of retirement of an employee as 58 years. Subsequently, Regulation 24 was amended by Government Order No. 432/XII-6-2-85-77 dated 7.5.83. The amended Regulation provides that where before commencement of U.P. Co-operative Societies Employees Service Regulations, 1975, the Society had entered, with an employee, at the time of his appointment, into a contract whereby he is entitled to be retained in service after the date on which he attains the age of 58 years, the date of superannuation of such employee shall be determined in accordance with the terms of the said contract.

Learned Counsel for the Petitioner contended that there was an agreement at the time of appointment of the Petitioner that the age of retirement of the Petitioner shall be 60 years and in view of the proviso to Regulation 24, he is entitled to work till the age of 60 years.

The Petitioner has not filed any copy of the agreement regarding terms and conditions of service. He has annexed a copy of the resolution of the committee of management dated 1st July, 1954 and the resolution Indicates that the Petitioner shall retire at the age of 60 years.

Learned Counsel for the Respondent contended that there was no contract relating to the terms and conditions of service. in the resolution, the age of retirement was Indicated as at that time the age of retirement was 60 years but after the enforcement of the Regulation, It will be 58 years unless there is a contract to the contrary.

It is not necessary to decide this controversy as to whether the resolution itself amounts to a contract or the Respondents shall be estopped from contending that the age of retirement is 58 years when it itself passed the resolution for retirement of the Petitioner at the age of 60 years.

The real controversy is as to whether the Petitioner shall be entitled to the terms and conditions which were Indicated in the resolution dated 1st July, 1954 even after the Petitioner was dismissed from service and he was given a fresh appointment. The Petitioner has not denied that he had entered into a compromise with the Respondents on 4th June, 1969 and the compromise application was filed before the Labour Court. The compromise application states that the Petitioner shall be re-employed in service with effect from 10th June, 1969 and will remain on probation for a period of one year. Para 3 of the compromise application indicates that the appointment will be treated as reappointment and the Petitioner shall not be entitled to any back wages, allowance, etc.

This compromise was made part of the award by the Labour Court and in pursuance of this compromise, the Petitioner was issued a fresh appointment letter on 10th June, 1969 and he accepted this appointment and submitted for joining. It is clear from Annexure-4A to the counter-affidavit. The Petitioner, after this fresh appointment, cannot rely upon the resolution passed by the committee of management on 1st July, 1954. The age of retirement as given in Regulation is 58 years unless there is a contract providing for different age of superannuation. The terms and conditions mentioned in the resolution dated 1st July, 1954 came to an end when the Petitioner took fresh appointment.

Learned Counsel for the Petitioner has placed reliance upon S.P. Dube v. M.P. State Road Transport Corporation 1990 SC Lj 981; Virendra Pal Singh and Ors. v. District Registrar Co-operative Societies, Etah and Ors. 1980 UPLBEC 202 and Allahabad District Co-operative Bank Limited v. Layi Srivastava (1994) 3 UPLBEC 170, wherein it was held that if before coming into operation of Regulation 1975 the society had entered into any contract with an employee on the date of his appointment whereby he was entitled to continue beyond 58 years, the rule of retirement at the age of 58 years shall not apply.

In the present case, the Petitioner having accepted fresh appointment and there being no such terms and conditions regarding the age of retirement in it, he cannot rely upon the resolution dated 1st July, 1954.

Learned Counsel for the Petitioner has further placed reliance upon Upendra Nath Bose v. Vindeshwari AIR 1916 Cal 843, wherein it was held that a compromise is an agreement to put an end to the dispute and to terminate or avoid litigation and in such a case, the consideration which each party receives is the settlement of dispute. The real consideration is not the sacrifice of a right, but the abondonment of a claim.

The services of the Petitioner were terminated by the samiti. The matter was referred to the Labour Court. The Petitioner entered into compromise and in pursuance of the said compromise, another appointment letter was issued to the Petitioner with new terms and conditions. He cannot rely upon the terms and conditions of old contract on the principle laid down u/s 62 of the Contract Act which provides that if the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed.

In view of the above, there is no merit in the writ petition and it is accordingly dismissed.