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2002 DIGILAW 183 (CAL)

UNITED BANK OF INDIA v. NALINI KANTA GHOSH

2002-03-15

A.K.MATHUR, SUBHRO KAMAL MUKHERJEE

body2002
S. K. MUKHERJEE, J. ( 1 ) IN this Letters Patent appeal the judgment and order dated September 8, 1995 passed by a learned single Judge of this Court is under challenged. ( 2 ) THE respondent No. 1 in this appeal, Nalini Kanta Ghosh, moved an application under Article 226 of the Constitution of India (hereinafter referred to as writ petition in short), inter alia, challenging the order of the bank directing him to retire from service on and from November 1, 1993 and to direct the bank to continue him in service till the attainment of 60 (sixty) years of age. ( 3 ) UNITED Bank of India Limited was a banking company. The writ petitioner was in employment of Government of West Bengal and he applied on June 4, 1969 for appointment as an Officer of the Bank. United Bank of India Limited offered him appointment in Officer Grade II contained in a letter dated July 15, 1969. Paragraph 14 of the said letter of offer ran as under : ?14. Please sign and return the duplicate (enclosed) of this letter of appointment, to indicate your acceptance of the offer herein made on the stated terms and conditions. ? ( 4 ) ACCORDINGLY, the writ petitioner on this said July 15, 1969 signed and returned the duplicate of the said letter indicating his acceptance of the offer made to him. Ultimately, the writ petitioner joined the appellant-bank on September 15, 1969 as he needed time to get released from his erstwhile employer, the Government of West Bengal. ( 5 ) IN the meantime, however, with the commencement of the Banking Companies (Acquisition and Transfer of Undertakings) Ordinance, 1969 (Ordinance No. 8 of 1969) on July 19, 1969, the undertaking of the said banking company transferred to and vested in the corresponding bank, namely, United Bank of India, the appellant herein. ( 6 ) UNDER the United Bank of India (Officers) Service Regulation, 1979 the ages of retirement of Officers have been prescribed as follows: ? (a) All Officer employees of the Bank recruited/promoted prior to 19. 7. 1969 shall retire on completion of 60 years of age. (b)all Officer employees 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. (a) All Officer employees of the Bank recruited/promoted prior to 19. 7. 1969 shall retire on completion of 60 years of age. (b)all Officer employees 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. (c)all Officer employees of the Bank recruited whether as an award staff or as an Officer employee on or after 19th July, 1969 shall retire on completion of 58 years of age?. ( 7 ) HOWEVER, the bank informed the writ petitioner that he would attain the superannuation on October 31, 1993 upon attaining the age of 58 years and his service would cease after the close of business on October 31, 1993. ( 8 ) THE contention of the writ petitioner was that as he was recruited prior to July 19, 1969, he should retire on completion of 60 years of age. ( 9 ) THE contention of the Bank, on the contrary, was that as the writ petitioner admittedly joined the service of the Bank on September 15, 1969, he should retire on completion of 58 years of age. ( 10 ) BY the impugned judgment and order dated September 8, 1995 the learned single judge allowed the writ petition and held and declared that the petitioner would superannuate on completion of 60 years of age as the offer of appointment by the predecessor of the bank was accepted by the writ petitioner on July 15, 1969. The petitioner would, therefore, be deemed to have been recruited on July 15, 1969 itself. It is, however, held by the learned single judge that the question of the writ petitioner becoming an employee of the respondent-bank with effect from July 15, 1969 does not arise inasmuch as for the purpose of seniority, pay and other matters, he would be deemed to have been appointed on September 15, 1969. ( 11 ) MR. Malay Kumar Basu, learned senior advocate, appearing on behalf of the appellant-bank, argued that the impugned judgment and order passed by the learned single Judge was erroneous and the petitioner was bound to retire on completion of 58 years of age as he joined the service of the bank on September 15, 1969. Mr. ( 11 ) MR. Malay Kumar Basu, learned senior advocate, appearing on behalf of the appellant-bank, argued that the impugned judgment and order passed by the learned single Judge was erroneous and the petitioner was bound to retire on completion of 58 years of age as he joined the service of the bank on September 15, 1969. Mr. Basu argued that the learned Judge himself observed that the writ petitioner became an employee of the bank with effect from September 15, 1969 only and as such the learned Judge ought not to have allowed the writ petition. Mr. Basu argued that the writ petitioner was born in the cadre only on September 15, 1969 on his joining and as such he was not entitled to any benefit with effect from July 15, 1969 because a letter of appointment was issued to him. Mr. Basu argued that the writ petitioner continued in the service with his erstwhile employer and only after his release, he joined the Bank on September 15, 1969 and for all purposes September 15, 1969 is the date of recruitment of the writ petitioner in the Bank. Mr. Basu cited the decision in the case of B. S. Yadav and Another v. Chief Manager, Central Bank of India and Others reported in (1987)3 SCC 120 . Mr. Basu drew our attention to the following observation of the Supreme Court of India : ?we are of the view that there was good reason to make a distinction between the employees who had entered service prior to nationalisation and those who joined thereafter. ? ( 12 ) MR. Basu submitted that the Supreme Court of India upheld the classification of the employees into two categories on the basis that there was good reason to make a distinction between the employees who had 'entered service' prior to nationalisation and those who 'joined' thereafter. Mr. Basu argued that since the writ petitioner admittedly joined the service of the Bank on September 15, 1969, he was bound to retire on completion of 58 years of age. ( 13 ) MR. Swapan Kumar Dutta, learned advocate, appearing in support of the writ petitioner/respondent No. 1 in this appeal, however, supported the impugned judgment before us. It was argued by Mr. ( 13 ) MR. Swapan Kumar Dutta, learned advocate, appearing in support of the writ petitioner/respondent No. 1 in this appeal, however, supported the impugned judgment before us. It was argued by Mr. Dutta that the learned single Judge was justified in holding that recruitment process was complete on July 15, 1969 and as such the petitioner should retire on completion of 60 years of age. It is argued that where in construing the service regulation two interpretations are possible, the interpretation beneficial to the employees should be accepted. Mr. Dutta cited the decision in the case of Prafulla Kumar Swain v. Prakash Chandra Misra and Others reported in 1993 (1) SLR 565 : 1993 Supp. (3) SCC 181 and argued on the basis thereof that the words 'recruitment' and 'appointment' are used in different contexts and thus cannot be equated. He, also, cited the decision in the case of K. Narayanan and Others v. State of Karnataka and Others reported in 1994 Supp. (1) SCC 44. Mr. Dutta finally argued that at the time of construction of the service regulation the Court should interpret them in such a manner, which is beneficial to the weaker section, that is, the employees and in support of such contention cited the decision in the case of Gauri Shankar Gaur and Others v. State of U. P. and Others reported in (1994) 1 SCC 92 . ( 14 ) IN our view, the word 'recruited' used in the service regulation has a special significance. The writ petitioner was offered an appointment in the United Bank of India Limited, the predecessor of the appellate-bank, on July 15, 1969. He was allowed to join the service as soon as possible, but in any event, not later than October 14, 1969. The writ petitioner was asked to sign and return the duplicate of the letter of appointment, to indicate his acceptance of the offer made therein on the stated terms and conditions, which he did on July 15, 1969 itself. ( 15 ) SIR William P. Anson in his Principles of the English Law of Contract said acceptance is to an offer what a lighted match is to a train of gunpowder. It produces something which cannot be re-called or undone. ( 15 ) SIR William P. Anson in his Principles of the English Law of Contract said acceptance is to an offer what a lighted match is to a train of gunpowder. It produces something which cannot be re-called or undone. ( 16 ) THEREFORE, with the offer an acceptance thereof there has been a concluded contract between the writ petitioner and the predecessor of the appellant-bank. The undertakings of the predecessor banking company was transferred to and vested in the corresponding bank, namely, United Bank of India with effect from July 19, 1969 and when the regulation of 1979 was framed it should be presumed that the makers of the said regulation consciously used the word recruited and not used the word entered into service. ( 17 ) THE Supreme Court of India in the case of B. S. Yadav (supra) was considering the legality and validity of the policies of the Life Insurance Corporation of India and various banks in prescribing different ages of retirement to different classes of employees. The Supreme Court in the aforesaid context observed that there was good reason to make a distinction between the employees, who had entered service prior to nationalisation and those who joined thereafter. The Supreme Court had no occasion to deal with the United Bank of India (Officers) Service Regulation, 1979 and had no occasion to interpret the word recruited used therein. ( 18 ) THE apex Court in the case of K. Narayanan (supra) held that recruitment according to the dictionary means enlist. It is a comprehensive term and includes any method provided for inducting a person in public service. Appointment, selection, promotion, deputation are all well-known methods of recruitment. Even appointment by transfer is not unknown. 19 The Supreme Court of India in the case of Prafulla Kumar Swain (supra) held that: ?28. At this stage, we will proceed to decide as to the meaning and effect of the words 'recruitment' and 'appointment'. The term 'recruitment' connotes and clearly signifies enlistment, acceptance, selection or approval for appointment. Certainly, this is not actual appointment or posting in service. In contradistinction the word 'appointment' means an actual act of posting a persons to a particular office. ?29. Recruitment is just an initial process. That may lead to eventual appointment in the service. But, that cannot tantamount to an appointment. ? 20. Certainly, this is not actual appointment or posting in service. In contradistinction the word 'appointment' means an actual act of posting a persons to a particular office. ?29. Recruitment is just an initial process. That may lead to eventual appointment in the service. But, that cannot tantamount to an appointment. ? 20. A Division Bench of the Punjab and Haryana High Court in the case of Basant Lal Malhotra v. State of Punjab and Others reported in AIR 1969 Punjab and Haryana 178 held : ?i am led to an irresistible conclusion that the terms 'recruitment' and 'appointment' are not synonymous and connote different meanings. The term 'recruitment' connotes and clearly signifies enlistment, acceptance, selection or approval for appointment and not actual appointment or posting in service while 'appointment' means an actual act of posting a person to a particular office. ? 21. The process of recruitment was complete with the acceptance of offer by the writ petitioner. The writ petitioner was enlisted for service. 22. Moreover, this case involves interpretation of a provision of the service regulatlion. The service regulation is meant for the protection of the employees. In case of any doubt about the meaning and interpretation of a provision, it should be resolved in favour of the employees as a beneficial provision is not to be interpreted in a restricted sense. 23. The apex Court in the case of Jivabhai Purshottam v. Chhagan Karson and Others reported in (1962)1 SCR 568 held : ?this view, which appears to us to be plain enough on the words of sub-section (2-A), is further enforced by another consideration, even if there is any doubt as to the meaning of sub-section (2-A ). That consideration is that the Amending Act is a piece of beneficent legislation meant for the protection of tenants. Therefore, if there is any doubt about the meaning of sub-section (2-A) that doubt should be resolved in favour of the tenant, for whose benefit the Amending Act was passed. ? 24. The learned judge in interpreting the service regulation resorted to a benevolent interpretation and when a benevolent interpretation is possible, in our view, the Courts are bound to resort to it in order to obviate inconvenient or unjust consequences against the employees. Accordingly, we do not find any error in the judgment and order impugned before us, which is therefore, affirmed. The appeal is, thus, dismissed. Accordingly, we do not find any error in the judgment and order impugned before us, which is therefore, affirmed. The appeal is, thus, dismissed. There will be no order as to costs. Let xerox certified copy of this order, if applied for, be supplied to the parties expeditiously. A. K. Mathur, CJ.- I agree. Appeal dismissed