Case: Chairman, Canara Bank, Bangalore Vs. Shri M.S.Jasra

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 words 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 moralorium, then the scheme must contain a provision that the transferree 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 service 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 & Ors., (1971)2 SCR 28 , attempted to support the view taken by the High Court. In our opinion, that 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 of 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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.In our opinion, that 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.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 of 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.