ORDER
R.J. Kochar, J.
1. The petitioner was in employment of the respondent No. 2, bank as a clerk for a total period of about 34 years. According to the petitioner his record was satisfactory and had rendered service without any blemish. The employee-employer relations between the bank and the employees are governed by the Certified Standing Orders framed under the Bombay Industrial Relations Act, 1946. Its Clause 22(7) determines the age of superannuation as 55 years. The bank had informed the petitioner by its letter dated 13th January 1990 that on reaching the age of 55 years on 27th April 1999, he would stand superannuated i.e. from 30-4-1990. According to the petitioner, he was having good health and has also produced a certificate from the Civil Surgeon to that effect with a request to grant him further extension in employment as provided under the said Standing Order No. 22(7). It is the case of the petitioner that the bank did not grant him extension and intimated by its letter dated 26th February 1990 that he would stand superannuated from 30-4-1990. The petitioner was aggrieved by the said order of the bank and therefore filed a complaint of Unfair Labour Practice after making his last approach by his letter dated 17th April 1990, under section 28 read with mainly Item No. 9 of Schedule IV of the M.R.T.U. and P.U.L.P. Act, 1971, which reads as under:-
'Failure to implement award settlement or agreement'.
2. According to the petitioner, the certified standing orders were in the form of an agreement between the employer and the employees and since the bank had not acted in accordance with Clause 22(7) of the Standing Orders by refusing to grant the petitioner extension after the age of 55 years, engaged in an Unfair Labour Practice under item 1(a) and 1(b) and 9 of the Act. The bank contested the complaint filed by the petitioner. The Industrial Court, however, had passed the following ad-interim order on 11th June 1990 which reads as follows:-
'The application is partly granted. The complainant shall continue in service for a period of six months from the date of this order or till the final disposal of the complaint whichever is earlier.'
3. The Industrial Court framed issues on the basis of the evidence, oral and documentary. It came to a positive conclusion that there was no Unfair Labour Practice within the meaning of Item No. 9 of Schedule IV of the Act. It also recorded a finding that the petitioner had no vested right to get any extension in service after attaining 55 years of age of superannuation in the respondent No. 2, bank. The Industrial Court on the basis of its discussion on the said issues finally dismissed the complaint.
4. It is the case of the respondent No. 2, bank that before the petitioner reached the age of superannuation i.e. 55 years, the process to consider his case for extension was started in the form of a D.O. letter dated 28th January 1990 addressed by the Manager to the Chief Officer of the Bank. In the said letter it was mentioned that the petitioner had some unproved allegations against him in the erstwhile bank i.e. Ratnagiri Urban Co-operative Bank, which was merged with the present respondent No. 2, bank. It is further vaguely stated by the Manager of the respondent No. 2 bank that the petitioner was of no 'special use' for development of the bank and that even during day to day work his performance was not satisfactory. It is further stated in the said letter that he committed one or the other mistake, which could be serious, in future. The Manager further summarises that on the whole he should not be given any extension in service. By the order dated 5th February 1990, it appears that the Chief Officer considered the D.O. letter of the Manager and refused to grant extension to the petitioner. The Chief Officer has merely reproduced the letter of the Manager and without any additional material and without his own application of mind, refused to grant extension to the petitioner.
4-A. According to me, the D.O. Letter of the Manager of the respondent No. 2, bank was classically vague and no particulars were given as to in what way the petitioner was of no use for the development of the bank and what mistakes were committed by him, specially what other mistakes, which would become serious in future, if he is allowed extension for another period of one year. It is pertinent to note that the petitioner had put in 34 years of service. It is further significant to note that his entire service record is not placed before the Industrial Court and was not even made available to me.
5. The question of giving extension to an employee who has attained 55 years of age has to be considered seriously and such decision will have to be taken after considering the entire past record and other material. To appreciate the powers of the respondent No. 2 bank in this respect, I reproduce the relevant Standing Order hereinbelow:---
Standing Order No. 22(7):---
'Every employee shall retire from the service on attaining the age of 55 years.Extension not exceeding one year at a time or 3 years in all may begiven at the discretion of the Manager.' .;
It is thus clear that an employee who has completed the superannuation age of 55 years has legitimate expectation under the above Standing Order to get extension initially for one year and for a maximum of 3 years, at the discretion of the Manager. Though, there is no vested right in such an employee given under the said Standing Order to get extension, there is definitely aright to legitimately expect that his case for extension should be considered on the basis of his past service and in the context of his present health and continued efficiency. This will not be an empty formality and this cannot be done mechanically by the Manager, who is vested with a discretion to consider all such cases on the basis of material before him, and he must give cogent reasons to refuse to grant such extension. He has to exercise his discretion soundly and judiciously. He must unequivocally state and record his reasons why such extension should not be given to the concerned employee. In the present case the Manager has merely written a letter to the Chief Officer vaguely giving some grounds without stating anything in particular against the petitioner. As I have already stated that the consideration for extension of service is a serious decision which the management has to take, as that is the right given under the Standing Order to the employees. No doubt it is not that the right to get extension is a vested right in the employee but it is the vested right in an employee to expect that his prayer or his request for extension would be objectively and seriously considered on the basis, of his service, past record, his reputation and his health and efficiency. All these factors must be found on record before such a decision is taken by the Manager. If he has considered all the aforesaid factors and has exercised his discretion then only it can be said that he has acted judiciously and not arbitrarily. In the present case apart from vague assertions, there is nothing on record to say that the petitioner had bad past record or was not efficient or had bad health to deny him the benefit of extension in service. Even in the written statement before the Industrial Court no such averments are made and no such record is produced. It is further very significant to note that the Manager himself or the Chief Officer who had finally passed the order did not step in the witness box to justify the order denying extension to the petitioner under the Standing Orders. Neither the oral nor the documentary evidence was produced before the Industrial Court to justify its decision of denying extension to the petitioner. The petitioner has submitted an application along with a medical certificate issued by the civil surgeon that he had a good health. The petitioner had also submitted that he was in a position to work in the bank. These assertions are enough for the petitioner to call upon the respondent bank to exercise its judicious discretion to consider his case objectively on the basis of the material on record. The respondent No. 2 bank ought to have justified its denial to extend the service of the petitioner under the Standing Orders beyond the age of superannuation on the basis of his service, rendered by him for 34 years and any other material available with it. The Manager did not even whisper in what way his services were without any utility for the development of the bank when he was found useful for 34 years. The Manager has not even produced an iota of evidence to show what mistakes or what serious mistakes the petitioner had committed to deny him the extension in service as requested by the petitioner. There was absolutely no material on record before the Industrial Court in that respect. It is expected at the stage of considering the request of the employee to extend his service after the superannuation age that his entire service record should be considered and his efficiency in work is to be assessed objectively. It is expected for the management that it must record the reasons why the employee had become a dead wood not to be continued any more in service. In the absence of any such assessment based on material on record mere ipse dixit of the Manager would not amount to exercise of sound discretion expected by the law, i.e. the certified Standing Orders which determine employer-employee relations under the Act. The Clause 22(7) of the certified Standing Order casts obligation on the Manager to exercise his discretion while taking any decision under this Standing Order. His discretion must be exercised bona fide, objectively and on the basis of material honestly and properly. It is his discretion and not his mercy. The respondent No. 2 bank has miserably failed to justify its decision even before the Industrial Court by placing sufficient material before it in support of its decision. I, therefore, quash and set aside the order of the Industrial Court dismissing the petitioner's complaint of unfair labour practice. I also quash and set aside the impugned order of the respondent No. 2-bank to not to grant his case for extension as contemplated under Standing Order No. 22(7).
6. The impugned order of refusing to grant extension is quashed and set aside and it is ordered that the petitioner shall be deemed to have continued in service for a period of 3 years from the date of his superannuation i.e. 30th April, 3990.
7. It is clarified that the petitioner shall be deemed to have been continued for a period of 3 years from the date of superannuation and he shall be entitled to wages for that period as he would have earned the same had he been continued in service. It is also therefore directed that the petitioner should be paid the total aggregate wages for the said period of 3 years. It appears that the petitioner was in service till 30th April, 1991 when the Industrial Court had vacated its interim order of extension in service during the pendency of the complaint. The said period will be deducted while computing the wages for the three years as per this order.
8. The petition is made absolute in terms aforesaid with no orders as to costs. The respondent No. 2 shall pay to the petitioner the wages after deducting the wages for the relevant one year's period within 8 weeks from today.
9. Issuance of certified copy expedited.
10. Parties to act on a copy of this order duly authenticated by Sheristedar.
11. Petition made absolute.