The Chairman, Canara Bank, Bangalore Vs. M.S. Jasra and Others - Court Judgment

Excerpt:
banking - superannuation - sections 36b and 45 of banking regulation act, 1949 and industrial disputes act, 1947 - reserve bank prepared scheme for amalgamation of x bank with that of y bank under section 45 (4) approved by central government - services of employees of x bank continued on amalgamation in y bank - respondent no. 1 fitted in post of divisional manager in y bank - respondent no. 1 claimed age of superannuation as 60 years in x bank instead of 58 which was in y bank - when services were continued on amalgamation of x bank with that of y bank - respondent no. 1 became employee of y bank and entitled to right given by section 45 which entitled him to same terms and conditions of service as employees of corresponding rank or status of y bank - respondent no. 1 could not claim to retire at 60 years after amalgamation - appeal allowed. - [a.d. koshal,; d.a. desai,; p.n. shinghal,; p.s. kailasam and; v.r. krishna iye, jj.] rule 15(1)(c) of order xxi of the supreme court rules, 1966 envisages that the petition of appeal under sub-clause (a) or sub-clause (b) of clause (1) of art. 134 of the constitution or under the supreme court (enlargement of criminal appellate jurisdiction) act, 1970 or under s. 379 of the code of criminal procedure 1973, on being registered shall be put up for hearing ex-parte before the court which may either dismiss it summarily or direct issue of notice to all necessary parties or make such orders, as the circumstances of the case may require. the appellants in the appeal who were acquitted by the sessions court had been convicted and sentenced by the high court and awarded life imprisonment under s. 302 read with s. 149 ipc. when their appeal under the supreme court (enlargement of criminal appellate jurisdiction) act, 1970 was listed for preliminary hearing under rule 15(1)(c) of order xxi of the supreme court rules, 1966 it was contended (1) that the said provision empowering the court to dismiss the appeal summarily was ultra vires the enlargement act, 1970, (2) the power of the supreme court to frame rules under art. 145 of the constitution can not be extended to annul the rights conferred under an act of parliament and (3) that an appeal under the enlargement act, 1970 cannot be dismissed summarily without calling for the records, ordering notice to the state and without giving reasons. held: (per krishna iyer, shinghal & desai, jj.) article 134(1)(c) spells a measure of seriousness because the high court which has heard the case certifies that it involves questions of such moment that the supreme court itself must resolve them. to dispose of such a matter by a preliminary healing is to cast a reflection on the high court's capacity to understand the seriousness of a certification. [1095 d-e] article 136 vests a plenary discretion in the supreme court to deign or decline to grant leave to appeal against any conviction or sentence. before deciding to grant or reject such leave the court accords an oral hearing after perusing all the papers produced. once leave is granted, the appeal is heard, after notice to the state, in full panoply. after leave, the appeal is born. then it ripens into fullness and is disposed of when both sides are present. no appeal after leave, is dismissed summarily or ex-parte. if art. 136 gives a discretionary power to grant leave to appeal or to dismiss in limine, after an ex-parte hearing (or after issue of notice if the court so chooses), art. 134 which gives a constitutional right to appeal as it were, must stand on a higher footing lest the constitution makers be held to have essayed in supererogation. [1095g-1096a] there is much more 'hearing' content in an absolute appellate right than in a precarious 'special leave' motion. jurisprudentially, a right is large than a permission. art 134 puts the momentous class of cases covered by it beyond the discretionary compass of art. 136 and within the compulsory area of full hearing such as would follow upon leave being granted under art. 136(1). a full hearing may not obligate dragging the opposite side to court involving expense and delay. fullness of hearing of the proponent is not incompatible with non-hearing of the opponent when after appreciating all that could be urged in support of the cause there is no need felt to call upon the other side, as where the proposition is groundless, frivolous or not prima facie statable. [1096b-d] article 134(2) empowers parliament to expand the jurisdiction of the supreme court to entertain criminal appeals. in exercise of this power, parliament enacted the supreme court (enlargement of criminal appellate jurisdiction) act, 1970 in its grave concern for long incarceration being subject to great scrutiny at the highest level if first inflicted, by the high court. a right of appeal to the supreme court was granted when the high court has, for the first time sentenced an accused to life imprisonment or to a term of or above ten years of rigorous imprisonment and equated it with that granted under art. 134(1)(a) and (b). [1097g-1098d] the nature of the appeal process cannot be cast in a rigid mould as it varies with jurisdiction and systems of jurisprudence. whatever the protean forms the appellate process may take, the goal is justice so that a disgruntled litigant cannot convert his right of appeal into breaking down the court system by sufferance of interminable submission after several tribunals have screened his case and found it fruitless. the signification of the right of appeal under art. 134 is a part of the procedure established by law for the protection of life and personal liberty. nothing which will render this right illusory or its fortune chancy can square with the mandate of art. 21.  when the high court trying a case sentences a man to death a higher court must examine the merits to satisfy that human life shall not be haltered without an appellate review. a single right of appeal is more or less a universal requirement of the guarantee of life and liberty rooted in the conception that men are fallible, that judges are men and that making assurance doubly sure before irrevocable deprivation of life or liberty comes to pass, full-scale re-examination of the facts and the law is made an integral part of fundamental! fairness or procedure. [1105c, e] the life of the law is not perfection of theory but realisation of justice in the concrete situation of a given system. it is common knowledge that a jail appeal or an appeal filed through an advocate does not contain an exhaustive accompaniment of all the evidentiary material or record of proceedings laying bare legal errors in the judicial steps. it is not unusual that a fatal flaw has been discovered by the appellate judges leading to a total acquittal. such a high jurisdiction as is vested by art. 134 calls for an active examination by the judges and such a process will be an ineffectual essay in the absence of the whole record. a preliminary hearing is hardly of any use bearing in mind that what is being dealt with is an affirmation of death sentence for the first time. section 366 of the code requires the court of session which passes a sentence of death to submit the proceedings to the high court and rulings insist on an independent appellate consideration of the matter and an examination of all relevant material evidence. the supreme court's position is analogous, and independent examination of materials is impossible without the entire records being available. so it is reasonable that before hearing the appeal under rule 15(1 ) (c) of order xxi, ordinarily the records are sent for and are available. counsel's assistance apart, the court it self must apply its mind, the stakes being grave enough. [1105f- 1106b] the recording of reasons is usually regarded as a necessary requirement of fair decision. the obligation to give reasons for decision when consequence of wrong judgment is forfeiture of life or personal liberty for long periods needs no emphasis, especially when it is a first appeal following upon a heavy sentence imposed for the first time. the constraint to record reasons secures in black and white what the judge has in mind and gives satisfaction to him who is condemned that what he has had to say has not only been 'heard' but considered and recorded. art. 21 is a binding mandate against blind justice. in the narrow categories of cases covered by art. 134(1)(a) and (b) and s. 2(a) of the enlargement act, the subject matter is of sufficient gravity as to justify the recording of reasons in the ultimate order. [1160f-g, 1106h-1107a] protection at the third deck by calling for the records or launching on long ratiocination is a waste of judicial time. our rules of criminal procedure provide for dismissal at the third level without assigning written reasons, not because there are no reasons, but because the tardy need to document them hampers the hearing of the many cases in the queue that press upon the time of the court at that level. [1107f] order xxi, rule 15(1)(c) of the rules in an enabling provision not a compulsive one. harmonious construction of art. 134 and art. 145 'leads to the conclusion that the contemplated rules are mere machinery provisions. the sequence is simple. the formalities for entertaining certain types of appeal ale covered by art. 145(1)(d) the manner of hearing and disposal is governed by art. 145(1)(b) and the substantive sweep of the appeal as a method of redressal is found in art. 134. [1107g-h, 1108d, 1109a]. it is daily experience to see judges on the high bench differ, and a fortiori so in the field of sentence, this reality is projected in the context of full freedom for the first appellate decider of facts to reach his own finding on offence and sentence, only to highlight how momentous it is-for the appellant to have his case considered by the highest court when the constitution and parliament have conferred a full right of appeal summary dismissal, save in glaring cases, may spell grave jeopardy to life-giving justice that is why order xxi rule 15(1)(c) while it survives to weed out worthless appeals, shall remain sheathed in extra- ordinary cases where facts on guilt or the wider range of considerations on sentence are involved. [1109g-1110b] rule 15(1)(c) of order xxi is general and covers all conceivable cases under art. 134(1). it operates in certain situations, not in every appeal. it merely removes an apprehended disability of the court in summarily dismissing a glaring case where its compulsive continuance, dragging the opposite party, calling up prolix records and expanding on the reasons for the decision, will stall the work of the court (which is an institutional injury to social justice) with no gain to anyone, including the appellant to keep whom in agonising suspense for long is itself an injustice. [1111c-d] if every appeal under art. 134(1) (a) and (b) or s. 2(a) of the enlargement act, where questions of law or fact are raised, is set down for preliminary hearing and summary disposal, the meaningful difference between art. 134 and art. 136 may be judicially eroded and parliament stultified. the minimum processual price of deprivation of precious life or prolonged loss of liberty is a single comprehensive appeal. to be peevel by this need is to offend against the fair play of the constitution. [1111h-1112b] upholding the vires of order xxi rule 15(1)(c) of the supreme court rules and also s. 384 of the criminal procedure code the majority however held that in their application both the provisions shall be restricted by the criteria set out hereunder ns a permissible exercise in constitutionalisation of the provisions. [1112h] order xxi rules 15(1)(c) in action does not mean that all appeals falling within its fold shall be routinely disposed of. such a course obliterates the difference between articles 134 and 136, between right and leave. the rule in cases of appeals under art. 134(1)(a) and (b) and s. 2(a) is notice, records and reasons, but the exception is preliminary hearing on all such materials as may be placed by the appellant and brief grounds for dismissal. this exceptional category is where, in all conscience, there is no point at all. in cases of real doubt the benefit of doubt goes to the appellant and notice goes to the adversary even if the chances of allowance of the appeal be not bright. [113a-c] [with a view to invest clarity and avoid ambiguity, order xxi rule 15(1)(c) may be suitably modified.] maneka gandhi v. union of india, [1978] 1 scc 248; presidential ref. no. 1 of 1978 [1979] 2 scr 476; wiseman v. barneman, [1971] ac 297; russel v. duke of norfolk, 11949] 1 all. er 109, ponnamma v. arumogam, [1905] ac at p. 390; colonial sugar refining co. v. irving, [1905] ac 369; newman v. klausner, [1922] 1 kb 228; referred to. black's law dictionary 4th edn. p. 1368, stroud's judicial dictionary, 3rd edn. vol. 1, pp. 160-161; current legal problems 1958 vol. 11 p. 194, law quarterly review vol. 71, 1955 p. 410-11. the judicial process by henry j. abraham, 1962 pp. 159-160; referred to. per kailasam & koshal, jj. (dissenting) article 145 of the constitution empowers the supreme court subject to the provisions of any law made by parliament with the approval of the president to make rules from time to time for regulating generally the practice and procedure of the court. [1116b] article 134 confers appellate jurisdiction on the supreme court in regard to criminal matters, and while an unrestricted right of appeal is provided to the supreme court under clauses (a) and (b) an appeal under such clause (c) is provided only when the case is certified by the high court as a fit one for appeal. further, an appeal under sub- clause (c) shall lie subject to such provisions as may be made in that behalf under clause (1) of art. 145 and to such conditions as the high court may establish or require [1116d-1117b] the supreme court (enlargement of criminal appellate jurisdiction) . act, 1970 has conferred on the supreme court further power to entertain and hear appeals than conferred on it under art. 134(1)(a) and (b) as provided for in art. 134(2) of the constitution. [1117c] article 145(1)(b) enables the supreme court to frame rules as to procedure for hearing appeals. rule 15 of under xxi provides for the procedure for hearing appeals and is valid so far as to the procedure of hearing appeals. [1117d- e, 1118c] while s. 374 confers a right of appeal, s. 375 and s. 376 restrict such a right. section 384 prescribes the procedure for hearing appeals enabling the court to dismiss certain appeals summarily and to deal with others under s. 385 if they are not summarily dismissed. the right of appeal conferred can be curtailed by procedure as envisaged in s. 384 cr. p.c. or rule 15 order xxi of the supreme court rules. [1120d] an appeal to the supreme court under s. 374 cr. p.c. is restricted by the provisions of s. 375 and s. 376 and could be dealt with summarily under s. 384 cr. p.c. an appeal to the supreme court is subject to the several provisions of the cr. p.c. including the provisions relating to summary disposal of the appeals. [1120e-f, g] the powers and the jurisdiction of the appellate court as prescribed by the criminal procedure code and the rule cannot be said to deny a right of hearing to the appellant. the right to be heard in an appeal is regulated be statute. after a full trial the judgment is rendered by a high judicial officer such as a sessions judge or a high court judge. the appellate court has before it the judgment of the lower court and the petition for appeal. at the preliminary hearing the appellant or his pleader is heard before the court decides to dismiss the appeal summarily. the power to summarily dismiss an appeal is conferred under the criminal procedure code when the court is satisfied that there are no sufficient grounds for interfering with the judgment appealed against. this decision is taken by the appellate court being the chief judicial magistrate, court of sessions, the high court or the supreme court. in the case of the chief judicial magistrate and court of sessions, reasons should be recorded for summarily dismissal. the high court and the supreme court need not record reasons for summarily dismissing the appeal. it is necessary that the supreme court or the high court should be satisfied that there are not sufficient ground for interfering. the conclusion is arrived at after hear-ing the appellant, examining the judgment and the petition for appeal. the appellate court is discharging an onerous duty in dismissing a case summarily. the code provides for calling for the records before dismissing an appeal. in cases where an appellant is sentenced to death, imprisonment for life or long term of imprisonment, it is the bounden duty of the appellate court to hear the appellant, examine the petition of appeal and copy of the judgment appealed against. if it feels necessary to call for the records of the case, it is duty to call for the records and examine them, before coming to the conclusion that there are not sufficient grounds for interfering. it is the responsibility of the appellate authority to order notice and hear the other side if it is not satisfied that there be no sufficient grounds for interfering. equally it is the duty of the appellate court to dismiss the appeal summarily if it i.e satisfied that there are no sufficient grounds for interfering is duty is imposed for regulating the work of the courts for otherwise judicial time would be unnecessarily spent. taking into account the fact that the duty to decide the question where there are no sufficient grounds for interfering is placed on highly placed judicial officers after affording a due hearing, it cannot be stated that the very right of appeal bas been taken away. [1122e-f, 1122h-1123f] the procedure contemplated in rules 13, 14 and 15 of the supreme court rules are almost similar to the provisions of the code of criminal procedure relating to appeal. in an appeal sent by the appellant from jail he is entitled to send any written arguments which he may desire to advance in support of his appeal. the court in proper cases in which it considers it desirable would engage an advocate to present the case of the appellant in jail. the mere fact that the appellant in jail is not being heard in person or through an advocate would not mean that the appeal is not being heard. the court peruses the judgment, petition of appeal and the written arguments, if any, before proceeding to take action under rule 15. this court being the highest court is not required to give reasons but is expected to bestow the greatest care in exercising the power of summary dismissal under rule 15. [1124g-1125a] p.k. mittra v. state of west bengal, [1959] suppl. i scr 63; shankar kerba yadhav v. state of maharashtra, [1970] 2 scr 227; minakshi v. subramanya, 14 ia 168; govinda kadtuji kadam v. state of maharashtra, [1970] 1 scc 469; referred to. maneka gandhi v. union of india, [1978] 2 scr 621; distinguished. - jasra were rejected by the canara bank as well as by the reserve bank. bhat, learned counsel for the appellant, canara bank, is that the relevant provisions contained in section 45 of the banking regulation act, 1949 read with the materials portions of the scheme for amalgamation framed by the reserve bank show that the employees of the lakshmi commercial bank who are continued in the service of the canara bank, on amalgamation of the lakshmi commercial bank with the canara bank are entitled, on their integration in the service of the canara bank, to the same remuneration and the same terms and conditions of service which are applicable to the other employees of corresponding rank or status in the canara bank and not to any higher or larger benefits irrespective of the fact whether the remuneration and terms and conditions of service of the concerned employee were better or worse prior to amalgamation in the lakshmi commercial bank. -(1) notwithstanding anything contained in the foregoing provisions of this part or in any other law or any agreement or other instrument, for the time being in force, where it appears to the reserve bank that there is good reason so to do, the reserve bank may apply to the central government for an order or moratorium in respect of a banking company. (3) .(4) during the period of moratorium, if the reserve bank is satisfied that- (a) in the public interest; the mandate of section 45(5)(i) is that the scheme which is formulated may contain provisions with regard to employees of the banking companies and such a scheme should protect the remuneration and other terms and conditions of an employee, the second proviso to section 45(5)(i) of the act as well as clause 12 of the scheme have to be read harmoniously with section 45(5)(i) and clause 10 of the scheme. the second proviso was not meant to take away or dilute the rights which are conferred by clause (i). keeping this in view clause 10 of the scheme was formulated which specifically provides that the terms and conditions of the employees like the petitioner shall be those as were applicable to them immediately before the close of business on 27th april, 1985 clause 12 of the scheme or the second proviso to section 45(5)(i) cannot be so read as to take away the vested rights of the transferred employees which rights were that their remuneration as well as the terms and conditions of service were not to be adversely affected. ..in the present case, on the other hand, there is a statutory assurance contained in section 45(5)(i). the assurance contained in this provision coupled with clause 10 of the scheme gives a right to an employee like the petitioner to continue to remain in service till the age of 60 years. sub-section (1) enables the reserve bank to apply to the central government for an order of moratorium in respect of a banking company if there is good reason so to do. sub-section (4) then provides for preparation of a scheme by the reserve bank for the reconstruction of the banking company for its amalgamation with any other banking institution if the reserve bank is satisfied that it is necessary so to do in the public interest; 1 placing strong reliance on state bank of travancore v.orderverma, j.1. respondent no. 1, m.s. jasra, joined the service of the reserve bank of india in 1957, was promoted as a staff officer in 1970 and then as a banking officer in 1977. m.s. jasra applied in response to an advertisement issued by the lakshmi commercial bank and was selected in 1983 for the post of assistant general manager which he joined in march, 1983.2. the central government, after considering the application made by the reserve bank under sub-section (1) of section 45 of the banking regulation act, 1949 made an order of moratorium under sub-section (2) thereof in respect of lakshmi commercial bank of april 27, 1985. thereafter, the reserve bank prepared a scheme for amalgamation of the lakshmi commercial bank with the canara bank on august 23, 1985 under sub-section (4) of section 45 which was approved by the central government on august 24, 1985. as a consequence thereof, the services of the employees of lakshmi commercial bank were continued on amalgamation in the canara bank and respondent no. 1, m.s. jasra was fitted in the post of divisional manager in the canara bank.3. m.s. jasra, respondent no. 1 was aggrieved by his continuance in the canara bank as divisional manager since he claimed to be fitted against a higher post by virtue of the office of assistant general manager held by him in the lakshmi commercial bank; and he also asserted that he was entitled to continue in the service of canara bank till he attained the age of 60 years which was the age of superannuation for him in the lakshmi commercial bank instead of 58 years, the age of superannuation in the canara bank. these representations made by m.s. jasra were rejected by the canara bank as well as by the reserve bank. respondent no. 1, m.s. jasra then filed writ petition no. 2199 of 1991 in the delhi high court for grant of the relief that he was entitled to continue in service in the canara bank till he attained the age of 60 years instead of 58 years. by the impugned judgment dated 20th september, 1991 the high court has allowed the writ petition quashing the reserve bank's letter dated 18th may, 1991 wherein it was stated that the age of superannuation of respondent no. 1, m.s. jasra was 58 years and not 60 years as claimed by him, and declared that the respondent no. 1 is entitled to continue in service of canara bank till he attains the age of 60 years. hence, this petition for grant of special leave to appeal against the high court's judgment has been filed. the only question for decision herein is that of the age of superannuation.4. leave is granted.5. the contention of shri k.n. bhat, learned counsel for the appellant, canara bank, is that the relevant provisions contained in section 45 of the banking regulation act, 1949 read with the materials portions of the scheme for amalgamation framed by the reserve bank show that the employees of the lakshmi commercial bank who are continued in the service of the canara bank, on amalgamation of the lakshmi commercial bank with the canara bank are entitled, on their integration in the service of the canara bank, to the same remuneration and the same terms and conditions of service which are applicable to the other employees of corresponding rank or status in the canara bank and not to any higher or larger benefits irrespective of the fact whether the remuneration and terms and conditions of service of the concerned employee were better or worse prior to amalgamation in the lakshmi commercial bank. shri harish n. salve, learned counsel for the respondent reserve bank of india has supported the contention of shri bhat. on the other hand, shri s.c. gupta, learned counsel for respondent no. 1, m.s. jasra has attempted to support the high court's conclusion including the reasons therefor.6. it would be appropriate at this stage to quote the relevant portion of section 45 of the banking regulation act, 1949 and scheme for amalgamation framed by the reserve bank under section 45(4) of the act:45. power of reserve bank to apply to central government for suspension of business by a banking company and to prepare scheme of reconstitution or amalgamation.-(1) notwithstanding anything contained in the foregoing provisions of this part or in any other law or any agreement or other instrument, for the time being in force, where it appears to the reserve bank that there is good reason so to do, the reserve bank may apply to the central government for an order or moratorium in respect of a banking company.(2) the central government, after considering the application made by the reserve bank under sub-section (1), may make an order of moratorium staying the commencement or continuance of all actions and proceedings against the company for a fixed period of time on such terms and conditions as it thinks fit and proper and may from time to time extend the period so however that the total period of moratorium shall not exceed six months.(3) ....(4) during the period of moratorium, if the reserve bank is satisfied that-(a) in the public interest; or(b) in the interest of the depositors; or(c) in order to secure the proper management of the banking company; or(d) in the interests of the banking system of the country as a whole,-it is necessary so to do, the reserve bank may prepare a scheme-(i) for the reconstruction of the banking company, or(ii) for the amalgamation of the banking company with any other banking institution (in this section referred to as 'the transferee bank')(5) the scheme aforesaid may contain provisions for all or any of the following matters, namely:xxx xxx xxx(i) the continuance of the services of all the employees of the banking company (excepting such of them as not being workmen within the meaning of the industrial disputes act, 1947 are specifically mentioned in the scheme) in the banking company itself on its reconstruction or, as the case may be, in the transferee bank at the same remuneration and on the same terms and conditions of service, which they were getting or as the case may be, by which they were being governed, immediately before the date of the order of moratorium:provided that the scheme shall contain a provision that-(i) the banking company shall pay or grant not later than the expiry of the period of three years from the date on which the scheme is sanctioned by the central government, to the said employees the same remuneration and the same terms and condition of service as are, at the time of such payment or grant, applicable to employees of corresponding rank or status of a comparable banking company to be determined for this purpose by the reserve bank (whose determination in this respect shall be final); (ii) the transferee bank shall pay or grant not later than the expiry of the aforesaid period of three years, to the said employees the same remuneration and the same terms and conditions of service as are, at the time of such payment or grant, applicable to the other employees of corresponding rank or status of the transferee bank subject to the qualifications and experience of the said employees being the same as or equivalent to those of such other employees of the transferee bank:provided further that if in any case under clause (ii) of the first proviso any doubt or difference arises as to whether the qualification and experience of any of the said employees are the same as or equivalent to the qualifications and experience of the other employees of corresponding rank or status of the transferee bank the doubt of difference shall be referred, before the expiry of a period of three years from the date of payment or grant mentioned in that clause to the reserve bank whose decision thereon shall be final; xxx xxx xxx(8) on and from the date of the coming into operation of the scheme or any provision thereof, the scheme, or such proviso shall be binding on the banking company or, as the case may be, on the transferee bank and any other banking company concerned in the amalgamation and also on all the member, depositors and other creditors and employees of each of those companies or the transferee bank and on any other person having any right or liability in relation to any of those companies or the transferee bank including the trustee or other persons managing, or connected in any other manner with, any provident fund or other fund maintained by any of those companies or the transferee bank. xxx xxx xxx(14) the provisions of this section and of any scheme made under it shall have effect notwithstanding anything to the contrary contained in any other provisions of this act or in any other law or any agreement, award or other instrument for the time being in force.(15) in this section, 'banking institution' means any banking company and includes the state bank of india or a subsidiary bank or a corresponding new bank.explanation-references in this section to the terms and conditions of service as applicable to an employee shall not be construed as extending to the rank and status of such employee.7. the relevant clauses of the amalgamation scheme are:(10) all the employees of the transferor bank other than those specified in the schedule referred to in the succeeding paragraph shall continue in service and be deemed to have been appointed by the transferee bank at the same remuneration and on the same terms and conditions of service as were applicable to such employees immediately before the close of business on 27th april, 1985.provided that the employees of the transferor bank who have, by notice in writing given to the transferor or the transferee bank at any time before the expiry of one month next following the date on which this scheme has been sanctioned by the central government, intimated their intention of not becoming employees of the transferee bank, shall be entitled to the payment of such compensation, if any, under the provisions of the industrial disputes act, 1947 and such pension, gratuity provident fund and other retirement benefits as may be ordinarily admissible under the rules of authorisations of the transferor bank immediately before the close of the business on 27th april, 1985.provided further that the transferee bank shall in respect of the employees of the transferor bank who are deemed to have been appointed as employees of the transferee bank be deemed also to have been taken over the liability for the payment of retrenchment compensation in the event of their being retrenched while in the service of the transferee bank on the basis that their service continues and has not been interrupted by their transfer to the transferee bank. xxx xxx xxx(12) the transferee bank shall on the expiry of period not longer than three years from the date on which this scheme is sanctioned, pay or grant to the employees of the transferor bank the same remuneration and the same terms and conditions of service as are applicable to the employees of corresponding rank or status of the transferee bank subject to the qualifications and experience on the said employees of the transferor bank being the same as or equivalent to those of such other employees of the transferee bank.provided that if any doubt or difference arises as to whether the qualifications or experience of any of the said employees are the same as or equivalent to the qualification and experience of the other employees of corresponding rank or status of the transferee bank or as to the procedure of principles to be adopted for the fixation of the pay of the employees in the scales of pay of the employees in the scales of pay of the transferee bank, the doubt or difference shall be referred to the reserve bank of india whose decision thereon shall be final.8. the high court has taken the view that clause (i) of sub-section (5) of section 45 read with clause 10 of the amalgamation scheme confers a vested right on the transferred employees of the lakshmi commercial bank in respect of their terms and conditions of service which could not be adversely affected as a result of the amalgamation with the canara bank and proviso (ii) in section 45(5)(i) and clause 12 of the scheme could not take away or dilute the vested right so conferred by section 45(5)(i). the material portion of the high court's judgment is as under:the mandate of section 45(5)(i) is that the scheme which is formulated may contain provisions with regard to employees of the banking companies and such a scheme should protect the remuneration and other terms and conditions of an employee, the second proviso to section 45(5)(i) of the act as well as clause 12 of the scheme have to be read harmoniously with section 45(5)(i) and clause 10 of the scheme. the second proviso was not meant to take away or dilute the rights which are conferred by clause (i). keeping this in view clause 10 of the scheme was formulated which specifically provides that the terms and conditions of the employees like the petitioner shall be those as were applicable to them immediately before the close of business on 27th april, 1985clause 12 of the scheme or the second proviso to section 45(5)(i) cannot be so read as to take away the vested rights of the transferred employees which rights were that their remuneration as well as the terms and conditions of service were not to be adversely affected...in the present case, on the other hand, there is a statutory assurance contained in section 45(5)(i). the assurance contained in this provision coupled with clause 10 of the scheme gives a right to an employee like the petitioner to continue to remain in service till the age of 60 years. 9. the question is whether the construction so made by the high court of the relevant provisions in section 45 of the act and clauses 10 and 12 of the amalgamation scheme is correct.10. the further question is whether on that basis, the claim of respondent no. 1 as a former employee of the lakshmi commercial bank to retire at the age of 60 years instead of 58 years is a vested right, as held by the high court, which cannot be taken away on amalgamation of the lakshmi commercial bank with the canara bank in this manner.11. the banking regulation act, 1949 is an act to consolidate and amend the law relating to banking. part iii of the act contains sections 36b to section 45 under the heading 'suspension of business and winding up of banking companies'. section 45 in part iii provides for the power of reserve bank to apply to the central government for suspension of business of a banking company and to prepare scheme of reconstitution or amalgamation. sub-section (1) enables the reserve bank to apply to the central government for an order of moratorium in respect of a banking company if there is good reason so to do. sub-section (2) empowers the central government, on such an application of the reserve bank to make an order of moratorium staying the commencement or continuance of all actions and proceedings against the banking company for a fixed period of time on such terms and conditions as it thinks fit and proper and permits extension of the period of moratorium so as not to exceed six months. sub-section (4) then provides for preparation of a scheme by the reserve bank for the reconstruction of the banking company for its amalgamation with any other banking institution if the reserve bank is satisfied that it is necessary so to do in the public interest; or in the interest of the depositors; or to secure the proper management of the basking company; or in the interests of the banking system of the country as a whole.12. sub-section (5) then specifies the provisions which may be made in such a scheme. it is clause (i) and the provisos thereunder of sub-section (5) with which we are concerned. the opening words in sub-section (5) are : 'the scheme aforesaid may contain provisions for all or any of the following matters. ...' it is clear that the scheme so framed under sub-section (4) may contain provisions for all or any of the matter specified in sub-section (5) so that it enables all or any of the specified matter to be provided in the scheme prepared under sub-section (4) and the matters specified in the several clauses in sub-section (5) do not automatically get incorporated in such scheme unless the scheme specifically includes any such matter. it means that the matter specified in clause (i) of sub-section (5) is not an invariable term to be read in such a scheme framed under sub-section (4) for amalgamation of the banking company unless it is incorporated specifically in the scheme so prepared. thus, such a scheme may or may not contain provision for the continuance of the services of all the employees of the banking company in the transferee bank as is specified in clause (i). however, if the scheme does provide for this matter, then the continuance of the services of the employees of the banking company in the transferee bank as provided in clause (i) is subject to the requirements of the proviso thereunder. in other words, it is not necessary that every scheme of amalgamation framed under sub-section (4) must provide for continuance of services of all the employees of the banking company in the transferee bank; but where such a provision is made, it must contain a provision as required by the provisos in clause (i). this is clear from the use of the word 'may' in the opening word of sub-section (5) and the word 'shall' in the proviso. in effect it means that where the scheme provides for continuance of the services of all the employees of the banking company in the transferee bank at the same remuneration and on the same terms and conditions of service which they were getting or, as the case may be, by which they were being governed immediately before the date of the order of moratorium, then the scheme must contain a provision that the transferee bank shall pay or grant not later than the expiry of the period of three years from the date on which the scheme is sanctioned by the central government to the said employees the same remuneration and the same terms and conditions of service as are applicable to the other employees of corresponding rank or status of the transferee bank subject to the qualifications and experience of the said employees being the same as or equivalent to those of such other employees of the transferee bank.13. clause (i) read with the proviso in sub-section (5) results in enabling the making of a provision in the scheme of amalgamation for the continuance of services of the employees of the banking company in the transferee bank on the same terms and conditions by which they were governed before the date of the order of moratorium but when such a provision is made, the scheme has also to provide that the transferee bank shall grant not later than the period of three years the same terms and conditions of service to the employees who are continued, the terms and conditions of service in the transferee bank in the corresponding rank or status, subject to the requisite qualifications and experience. the right of the employees of the banking company in the transferee bank on continuance of the service by virtue of such a provision in the scheme as provided in clause (i) of sub-section (5) is merely that which is contained in the proviso thereunder, that is, that the transferee bank would treat them at par with its own employees of corresponding rank or status subject to the qualifications and experience irrespective of the earlier terms and conditions of service. in other words, if the scheme provides for continuance of the services of the employees in the transferee bank, then beyond a period of three years from the date on which the scheme is sanctioned by the central government, the transferee bank cannot discriminate between such employees and its other employees of corresponding rank or status. the only right of such an employee whose services is so continued is, therefore, to claim parity with the employees of the transferee bank itself of corresponding rank or status subject to equivalent qualifications and experience and no more. the right of such an employee is provided in the proviso to clause (i) and not in the earlier enacting part of clause (i) of sub-section (5) as claimed by respondent no. 1 and upheld by the high court.14. clauses 10 and 12 of the scheme as quoted above merely incorporate the matter specified in clause (i) and the proviso thereunder with which we are concerned and so read and understood, there is no ambiguity or conflict in those clauses of the scheme either inter se or with clause (i) and the proviso thereunder in sub-section (5) of section 45.15. shri s.c. gupta, learned counsel for respondent no. 1 placing strong reliance on state bank of travancore v. elias elias and ors. : (1970)iillj424sc , attempted to support the view taken by the high court. in our opinion, the decision which led to the addition of the explanation in section 45 by act. no. 1 of 1984 to the effect that in this section the 'terms and conditions of service' shall not be construed as extending to the rank and status of such employees, is of no assistance in the present case. with respect, if that decision is read to construe clause (i) with its proviso in sub-section (5) of section 45 as suggested on behalf of respondent no. 1, then we are unable to subscribe to that view since the proper construction of these provisions, according to us, is as indicated above.16. it follows, that respondent no. 1 could not, therefore, claim to be governed by the age of superannuation of 60 years in the lakshmi commercial bank. when his services were continued on amalgamation of the lakshmi commercial bank with the canara bank he became an employee of the canara bank and was, therefore, entitled only to the right given by proviso (ii) to clause (i) of sub-section (5) of section 45 which entitled him to the same terms and conditions of service as employees of the corresponding rank or status of the canara bank. age of superannuation of the employees in canara bank being 58 years only, respondent no. 1 could not claim to retire at 60 years. the high court misconstrued clause (i) and proviso (ii) thereunder of sub-section (5) of section 45 of the act and clauses 10 and 12 of the amalgamation scheme to take the contrary view. the impugned judgment of the high court has, therefore to be set aside resulting in dismissal of the writ petition of respondent no. 1 filed in the high court. consequently the appeal is allowed. no costs.

Judgment:
ORDER

Verma, j.

1. Respondent No. 1, M.S. Jasra, joined the service of the Reserve Bank of India in 1957, was promoted as a Staff Officer in 1970 and then as a Banking Officer in 1977. M.S. Jasra applied in response to an advertisement issued by the Lakshmi Commercial Bank and was selected in 1983 for the post of Assistant General Manager which he joined in March, 1983.

2. The Central Government, after considering the application made by the Reserve Bank under Sub-section (1) of Section 45 of the Banking Regulation Act, 1949 made an order of moratorium under Sub-section (2) thereof in respect of Lakshmi Commercial Bank of April 27, 1985. Thereafter, the Reserve Bank prepared a scheme for amalgamation of the Lakshmi Commercial bank with the Canara Bank on August 23, 1985 under Sub-section (4) of Section 45 which was approved by the Central Government on August 24, 1985. As a consequence thereof, the services of the employees of Lakshmi Commercial Bank were continued on amalgamation in the Canara Bank and respondent No. 1, M.S. Jasra was fitted in the post of Divisional Manager in the Canara Bank.

3. M.S. Jasra, respondent No. 1 was aggrieved by his continuance in the Canara Bank as Divisional Manager since he claimed to be fitted against a higher post by virtue of the office of Assistant General Manager held by him in the Lakshmi Commercial Bank; and he also asserted that he was entitled to continue in the service of Canara Bank till he attained the age of 60 years which was the age of superannuation for him in the Lakshmi Commercial Bank instead of 58 years, the age of superannuation in the Canara Bank. These representations made by M.S. Jasra were rejected by the Canara Bank as well as by the Reserve Bank. Respondent No. 1, M.S. Jasra then filed Writ Petition No. 2199 of 1991 in the Delhi High Court for grant of the relief that he was entitled to continue in service in the Canara Bank till he attained the age of 60 years instead of 58 yeaRs. By the impugned Judgment dated 20th September, 1991 the High Court has allowed the Writ Petition quashing the Reserve Bank's letter dated 18th May, 1991 wherein it was stated that the age of superannuation of respondent No. 1, M.S. Jasra was 58 years and not 60 years as claimed by him, and declared that the respondent No. 1 is entitled to continue in service of Canara Bank till he attains the age of 60 yeaRs. Hence, this petition for grant of special leave to appeal against the High Court's Judgment has been filed. The only question for decision herein is that of the age of superannuation.

4. Leave is granted.

5. The contention of Shri K.N. Bhat, learned Counsel for the appellant, Canara Bank, is that the relevant provisions contained in Section 45 of the Banking Regulation Act, 1949 read with the materials portions of the scheme for amalgamation framed by the Reserve Bank show that the employees of the Lakshmi Commercial Bank who are continued in the service of the Canara Bank, on amalgamation of the Lakshmi Commercial Bank with the Canara Bank are entitled, on their integration in the service of the Canara Bank, to the same remuneration and the same terms and conditions of service which are applicable to the other employees of corresponding rank or status in the Canara Bank and not to any higher or larger benefits irrespective of the fact whether the remuneration and terms and conditions of service of the concerned employee were better or worse prior to amalgamation in the Lakshmi Commercial Bank. Shri Harish N. Salve, learned Counsel for the respondent Reserve Bank of India has supported the contention of Shri Bhat. On the other hand, Shri S.C. Gupta, learned Counsel for respondent No. 1, M.S. Jasra has attempted to support the High Court's conclusion including the reasons therefor.

6. It would be appropriate at this stage to quote the relevant portion of Section 45 of the Banking Regulation Act, 1949 and Scheme for Amalgamation framed by the Reserve Bank under Section 45(4) of the Act:

45. Power of Reserve Bank to apply to Central Government for suspension of business by a banking company and to prepare scheme of reconstitution or amalgamation.-(1) Notwithstanding anything contained in the foregoing provisions of this Part or in any other law or any agreement or other instrument, for the time being in force, where it appears to the Reserve Bank that there is good reason so to do, the Reserve Bank may apply to the Central Government for an order or moratorium in respect of a banking company.

(2) The Central Government, after considering the application made by the Reserve Bank under Sub-section (1), may make an order of moratorium staying the commencement or continuance of all actions and proceedings against the company for a fixed period of time on such terms and conditions as it thinks fit and proper and may from time to time extend the period so however that the total period of moratorium shall not exceed six months.

(3) ....

(4) During the period of moratorium, if the Reserve Bank is satisfied that-

(a) in the public interest; or

(b) in the interest of the depositors; or

(c) in order to secure the proper management of the banking company; or

(d) in the interests of the banking system of the country as a whole,-it is necessary so to do, the Reserve Bank may prepare a scheme-

(i) for the reconstruction of the banking company, or

(ii) for the amalgamation of the banking company with any other banking institution (in this section referred to as 'the transferee bank')

(5) The scheme aforesaid may contain provisions for all or any of the following matters, namely:

xxx xxx xxx(i) the continuance of the services of all the employees of the banking company (excepting such of them as not being workmen within the meaning of the Industrial Disputes Act, 1947 are specifically mentioned in the Scheme) in the banking company itself on its reconstruction or, as the case may be, in the transferee bank at the same remuneration and on the same terms and conditions of service, which they were getting or as the case may be, by which they were being governed, immediately before the date of the order of moratorium:

Provided that the scheme shall contain a provision that-

(i) the banking company shall pay or grant not later than the expiry of the period of three years from the date on which the scheme is sanctioned by the Central Government, to the said employees the same remuneration and the same terms and condition of service as are, at the time of such payment or grant, applicable to employees of corresponding rank or status of a comparable banking company to be determined for this purpose by the Reserve Bank (whose determination in this respect shall be final);

(ii) the transferee bank shall pay or grant not later than the expiry of the aforesaid period of three years, to the said employees the same remuneration and the same terms and conditions of service as are, at the time of such payment or grant, applicable to the other employees of corresponding rank or status of the transferee bank subject to the qualifications and experience of the said employees being the same as or equivalent to those of such other employees of the transferee bank:

Provided further that if in any case under Clause (ii) of the first proviso any doubt or difference arises as to whether the qualification and experience of any of the said employees are the same as or equivalent to the qualifications and experience of the other employees of corresponding rank or status of the transferee bank the doubt of difference shall be referred, before the expiry of a period of three years from the date of payment or grant mentioned in that clause to the Reserve Bank whose decision thereon shall be final;

xxx xxx xxx(8) On and from the date of the coming into operation of the scheme or any provision thereof, the scheme, or such proviso shall be binding on the banking company or, as the case may be, on the transferee bank and any other banking company concerned in the amalgamation and also on all the member, depositors and other creditors and employees of each of those companies or the transferee bank and on any other person having any right or liability in relation to any of those companies or the transferee bank including the trustee or other persons managing, or connected in any other manner with, any provident fund or other fund maintained by any of those companies or the transferee bank.

xxx xxx xxx(14) The provisions of this section and of any scheme made under it shall have effect notwithstanding anything to the contrary contained in any other provisions of this Act or in any other law or any agreement, award or other instrument for the time being in force.

(15) In this section, 'banking institution' means any banking company and includes the State Bank of India or a subsidiary bank or a corresponding new bank.

Explanation-References in this section to the terms and conditions of service as applicable to an employee shall not be construed as extending to the rank and status of such employee.

7. The relevant clauses of the Amalgamation Scheme are:

(10) All the employees of the transferor bank other than those specified in the schedule referred to in the succeeding paragraph shall continue in service and be deemed to have been appointed by the transferee bank at the same remuneration and on the same terms and conditions of service as were applicable to such employees immediately before the close of business on 27th April, 1985.

Provided that the employees of the transferor bank who have, by notice in writing given to the transferor or the transferee bank at any time before the expiry of one month next following the date on which this scheme has been sanctioned by the Central Government, intimated their intention of not becoming employees of the transferee bank, shall be entitled to the payment of such compensation, if any, under the provisions of the Industrial Disputes Act, 1947 and such pension, gratuity provident fund and other retirement benefits as may be ordinarily admissible under the rules of authorisations of the transferor bank immediately before the close of the business on 27th April, 1985.

Provided further that the transferee bank shall in respect of the employees of the transferor bank who are deemed to have been appointed as employees of the transferee bank be deemed also to have been taken over the liability for the payment of retrenchment compensation in the event of their being retrenched while in the service of the transferee bank on the basis that their service continues and has not been interrupted by their transfer to the transferee bank.

xxx xxx xxx(12) The transferee bank shall on the expiry of period not longer than three years from the date on which this scheme is sanctioned, pay or grant to the employees of the transferor bank the same remuneration and the same terms and conditions of service as are applicable to the employees of corresponding rank or status of the transferee bank subject to the qualifications and experience on the said employees of the transferor bank being the same as or equivalent to those of such other employees of the transferee bank.

Provided that if any doubt or difference arises as to whether the qualifications or experience of any of the said employees are the same as or equivalent to the qualification and experience of the other employees of corresponding rank or status of the transferee bank or as to the procedure of principles to be adopted for the fixation of the pay of the employees in the scales of pay of the employees in the scales of pay of the transferee bank, the doubt or difference shall be referred to the Reserve Bank of India whose decision thereon shall be final.

8. The High Court has taken the view that Clause (i) of Sub-section (5) of Section 45 read with Clause 10 of the amalgamation scheme confers a vested right on the transferred employees of the Lakshmi Commercial Bank in respect of their terms and conditions of service which could not be adversely affected as a result of the amalgamation with the Canara Bank and Proviso (ii) in Section 45(5)(i) and Clause 12 of the Scheme could not take away or dilute the vested right so conferred by Section 45(5)(i). The material portion of the High Court's Judgment is as under:

The mandate of Section 45(5)(i) is that the scheme which is formulated may contain provisions with regard to employees of the banking companies and such a scheme should protect the remuneration and other terms and conditions of an employee, The second proviso to Section 45(5)(i) of the Act as well as Clause 12 of the scheme have to be read harmoniously with Section 45(5)(i) and Clause 10 of the scheme. The second proviso was not meant to take away or dilute the rights which are conferred by Clause (i). Keeping this in view Clause 10 of the scheme was formulated which specifically provides that the terms and conditions of the employees like the petitioner shall be those as were applicable to them immediately before the close of business on 27th April, 1985

Clause 12 of the scheme or the second proviso to Section 45(5)(i) cannot be so read as to take away the vested rights of the transferred employees which rights were that their remuneration as well as the terms and conditions of service were not to be adversely affected...in the present case, on the other hand, there is a statutory assurance contained in Section 45(5)(i). The assurance contained in this provision coupled with Clause 10 of the scheme gives a right to an employee like the petitioner to continue to remain in service till the age of 60 yeaRs.

9. The question is whether the construction so made by the High Court of the relevant provisions in Section 45 of the Act and Clauses 10 and 12 of the amalgamation scheme is correct.

10. The further question is whether on that basis, the claim of respondent No. 1 as a former employee of the Lakshmi Commercial Bank to retire at the age of 60 years instead of 58 years is a vested right, as held by the High Court, which cannot be taken away on amalgamation of the Lakshmi Commercial Bank with the Canara bank in this manner.

11. The Banking Regulation Act, 1949 is an Act to consolidate and amend the law relating to banking. Part III of the Act contains Sections 36B to Section 45 under the heading 'suspension of business and winding up of banking companies'. Section 45 in Part III provides for the power of Reserve Bank to apply to the Central Government for suspension of business of a banking company and to prepare scheme of reconstitution or amalgamation. Sub-section (1) enables the Reserve Bank to apply to the Central Government for an order of moratorium in respect of a banking company if there is good reason so to do. Sub-section (2) empowers the Central Government, on such an application of the Reserve Bank to make an order of moratorium staying the commencement or continuance of all actions and proceedings against the banking company for a fixed period of time on such terms and conditions as it thinks fit and proper and permits extension of the period of moratorium so as not to exceed six months. Sub-section (4) then provides for preparation of a scheme by the Reserve Bank for the reconstruction of the banking company for its amalgamation with any other banking institution if the Reserve Bank is satisfied that it is necessary so to do in the public interest; or in the interest of the depositors; or to secure the proper management of the basking company; or in the interests of the banking system of the country as a whole.

12. Sub-section (5) then specifies the provisions which may be made in such a scheme. It is Clause (i) and the provisos thereunder of Sub-section (5) with which we are concerned. The opening words in Sub-section (5) are : 'The scheme aforesaid may contain provisions for all or any of the following matteRs. ...' It is clear that the scheme so framed under Sub-section (4) may contain provisions for all or any of the matter specified in Sub-section (5) so that it enables all or any of the specified matter to be provided in the scheme prepared under Sub-section (4) and the matters specified in the several clauses in Sub-section (5) do not automatically get incorporated in such scheme unless the scheme specifically includes any such matter. It means that the matter specified in Clause (i) of Sub-section (5) is not an invariable term to be read in such a scheme framed under Sub-section (4) for amalgamation of the banking company unless it is incorporated specifically in the scheme so prepared. Thus, such a scheme may or may not contain provision for the continuance of the services of all the employees of the banking company in the transferee bank as is specified in Clause (i). However, if the scheme does provide for this matter, then the continuance of the services of the employees of the banking company in the transferee bank as provided in Clause (i) is subject to the requirements of the proviso thereunder. In other words, it is not necessary that every scheme of amalgamation framed under Sub-section (4) must provide for continuance of services of all the employees of the banking company in the transferee bank; but where such a provision is made, it must contain a provision as required by the provisos in Clause (i). This is clear from the use of the word 'may' in the opening word of Sub-section (5) and the word 'shall' in the proviso. In effect it means that where the scheme provides for continuance of the services of all the employees of the banking company in the transferee bank at the same remuneration and on the same terms and conditions of service which they were getting or, as the case may be, by which they were being governed immediately before the date of the order of moratorium, then the scheme must contain a provision that the transferee bank shall pay or grant not later than the expiry of the period of three years from the date on which the scheme is sanctioned by the Central Government to the said employees the same remuneration and the same terms and conditions of service as are applicable to the other employees of corresponding rank or status of the transferee bank subject to the qualifications and experience of the said employees being the same as or equivalent to those of such other employees of the transferee bank.

13. Clause (i) read with the proviso in Sub-section (5) results in enabling the making of a provision in the scheme of amalgamation for the continuance of services of the employees of the banking company in the transferee bank on the same terms and conditions by which they were governed before the date of the order of moratorium but when such a provision is made, the scheme has also to provide that the transferee bank shall grant not later than the period of three years the same terms and conditions of service to the employees Who are continued, the terms and conditions of service in the transferee bank in the corresponding rank or status, subject to the requisite qualifications and experience. The right of the employees of the banking company in the transferee bank on continuance of the service by virtue of such a provision in the scheme as provided in Clause (i) of Sub-section (5) is merely that which is contained in the proviso thereunder, that is, that the transferee bank would treat them at par with its own employees of corresponding rank or status subject to the qualifications and experience irrespective of the earlier terms and conditions of service. In other words, if the scheme provides for continuance of the services of the employees in the transferee bank, then beyond a period of three years from the date on which the scheme is sanctioned by the Central Government, the transferee bank cannot discriminate between such employees and its other employees of corresponding rank or status. The only right of such an employee whose services is so continued is, therefore, to claim parity with the employees of the transferee bank itself of corresponding rank or status subject to equivalent qualifications and experience and no more. The right of such an employee is provided in the proviso to Clause (i) and not in the earlier enacting part of Clause (i) of Sub-section (5) as claimed by respondent No. 1 and upheld by the High Court.

14. Clauses 10 and 12 of the scheme as quoted above merely incorporate the matter specified in Clause (i) and the proviso thereunder with which we are concerned and so read and understood, there is no ambiguity or conflict in those clauses of the scheme either inter se or with Clause (i) and the proviso thereunder in Sub-section (5) of Section 45.

15. Shri S.C. Gupta, learned Counsel for respondent No. 1 placing strong reliance on State Bank of Travancore v. Elias Elias and Ors. : (1970)IILLJ424SC , attempted to support the view taken by the High Court. In our opinion, the decision which led to the addition of the explanation in Section 45 by Act. No. 1 of 1984 to the effect that in this Section the 'terms and conditions of service' shall not be construed as extending to the rank and status of such employees, is of no assistance in the present case. With respect, if that decision is read to construe Clause (i) with its proviso in Sub-section (5) of Section 45 as suggested on behalf of respondent No. 1, then we are unable to subscribe to that view since the proper construction of these provisions, according to us, is as indicated above.

16. It follows, that respondent No. 1 could not, therefore, claim to be governed by the age of superannuation of 60 years in the Lakshmi Commercial Bank. When his services were continued on amalgamation of the Lakshmi Commercial Bank with the Canara Bank he became an employee of the Canara Bank and was, therefore, entitled only to the right given by proviso (ii) to Clause (i) of Sub-section (5) of Section 45 which entitled him to the same terms and conditions of service as employees of the corresponding rank or status of the Canara Bank. Age of superannuation of the employees in Canara Bank being 58 years only, respondent No. 1 could not claim to retire at 60 yeaRs. The High Court misconstrued Clause (i) and proviso (ii) thereunder of Sub-section (5) of Section 45 of the Act and Clauses 10 and 12 of the amalgamation scheme to take the contrary view. The impugned Judgment of the High Court has, therefore to be set aside resulting in dismissal of the Writ Petition of respondent No. 1 filed in the High Court. Consequently the Appeal is allowed. No costs.