# Ram Mohan Agarwal v. Secretrary/G.M., Cooperative Bank and others

- **Citation:** (2007) 2 ILRA 514
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-05-08
- **Case number:** Civil Misc. Writ Petition No. 25086 of 2002
- **Bench:** Anjani Kumar, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-mohan-agarwal-v-secretrary-g-m-cooperative-bank-and-others-40955
- **Pages:** 6

## Headnote

Sri Ajit Kumar Singh
Sri K.N. Mishra

U.P. Cooperative Societies Employees
Service Regulations 1975-Regulation 24Age of Retirement-employees working
prior to enforcement of Regulation shall
be governed by the contract-as the case
may be the age of superannuation would
be 60 years-otherwise-any appointment
after enforcement of Regulation-the age
retirement age shall be 58 years-in
absence of contract-can not be allowed
to work up to 60 years of age.

Held: Para 13

In view thereof this Court held that the
employees
appointed
prior
to
enforcement of 1975 Regulations and
those governed by the Settlement dated
22.2.1966 would be entitled to continue
till the age of 60 years and shall not be
retired on attaining the age of 58 years
in view of proviso to Regulation 24 of
1975
Regulations.
Ram
Swarup
Srivastava (supra) was also a case
arising from Allahabad Cooperative Bank
where existed a similar agreement as
involved in Lalji Srivastava (supra). It is
also worthy of notice that in Ram
Swarup Srivastava (supra) there was
another connected matter, i.e., Hari
Narain Ojha vs.Allahabad District Cooperative Bank Ltd. Allahabad (Special
Appeal No.66 of 2003) but in that case it
was
found
that
he
was
appointed
subsequently and was not governed by
the settlement dated 22.2.1966 but in
view of the Joshi Award was liable to
retire on attainment of 58 years and his
appeal was dismissed by the Division
Bench. Similarly, in Dhyan Chand Gupta
(supra) we find that there was a
settlement dated 6.5.1965 executed by
Meerut
District
Cooperative
Bank
Meerut, providing the age of retirement
as 60 years and pursuant thereto he was
held entitled to continue till the age of
60
years.
Therefore,
none
of
the
aforesaid judgments are applicable or
2 All] Ram Mohan Agarwal V. Secretrary/G.M., Cooperative Bank and others
515
lend any support to the petitioner for the
reason that in the case in hand there is
no
contract
executed
between
the
parties, providing any higher age of
retirement in order to attract proviso to
Regulation 24 of 1975 Regulations. We,
therefore, do not find any force in the
contention advanced on behalf of the
learned counsel for the petitioner that he
was entitled to continue till he attains 60
years of age.
Case law discussed:
1994 (3) UPLBEC-1701
2005 (2) ESC-1215
1980 UPLBEC-202

## Text

514 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
11.11.2002 passed by the Regional Food
Controller, Jhansi are quashed. It is
directed that the respondent no. 1, the
Commissioner/ Secretary, Food & Civil
Supplies Department, U.P. Government,
Jawahar Bhawan, Lucknow shall ensure
payment of the entire balance retiral dues
of the petitioner, which includes the
gratuity amount, commutation of pension
and security amount etc. within three
months from today alongwith 9% interest
from the date of his retirement, till the
date of actual payment.

8. Considering the fact that the
petitioner had been agitating his claim for
payment of pension for the last 12 years,
the petitioner would also be entitled to
payment of costs, which this Court
assesses at Rs.20,000/-. The said amount
of cost would also be paid to the
petitioner within the same period of three
months from today.

Accordingly, this writ petition stands
allowed with costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2007

BEFORE
THE HON'BLE ANJANI KUMAR, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 25086 of 2002

Ram Mohan Agarwal

...Petitioner
Versus
Secretary/General Manager, District
Cooperative
Bank,
Gorakhpur
and
others

 ...Respondents

Counsel for the Petitioner:
Sri H.R. Misra

Counsel for the Respondents:
Sri Ajit Kumar Singh
Sri K.N. Mishra

U.P. Cooperative Societies Employees
Service Regulations 1975-Regulation 24Age of Retirement-employees working
prior to enforcement of Regulation shall
be governed by the contract-as the case
may be the age of superannuation would
be 60 years-otherwise-any appointment
after enforcement of Regulation-the age
retirement age shall be 58 years-in
absence of contract-can not be allowed
to work up to 60 years of age.

Held: Para 13

In view thereof this Court held that the
employees
appointed
prior
to
enforcement of 1975 Regulations and
those governed by the Settlement dated
22.2.1966 would be entitled to continue
till the age of 60 years and shall not be
retired on attaining the age of 58 years
in view of proviso to Regulation 24 of
1975
Regulations.
Ram
Swarup
Srivastava (supra) was also a case
arising from Allahabad Cooperative Bank
where existed a similar agreement as
involved in Lalji Srivastava (supra). It is
also worthy of notice that in Ram
Swarup Srivastava (supra) there was
another connected matter, i.e., Hari
Narain Ojha vs.Allahabad District Cooperative Bank Ltd. Allahabad (Special
Appeal No.66 of 2003) but in that case it
was
found
that
he
was
appointed
subsequently and was not governed by
the settlement dated 22.2.1966 but in
view of the Joshi Award was liable to
retire on attainment of 58 years and his
appeal was dismissed by the Division
Bench. Similarly, in Dhyan Chand Gupta
(supra) we find that there was a
settlement dated 6.5.1965 executed by
Meerut
District
Cooperative
Bank
Meerut, providing the age of retirement
as 60 years and pursuant thereto he was
held entitled to continue till the age of
60
years.
Therefore,
none
of
the
aforesaid judgments are applicable or
2 All] Ram Mohan Agarwal V. Secretrary/G.M., Cooperative Bank and others
515
lend any support to the petitioner for the
reason that in the case in hand there is
no
contract
executed
between
the
parties, providing any higher age of
retirement in order to attract proviso to
Regulation 24 of 1975 Regulations. We,
therefore, do not find any force in the
contention advanced on behalf of the
learned counsel for the petitioner that he
was entitled to continue till he attains 60
years of age.
Case law discussed:
1994 (3) UPLBEC-1701
2005 (2) ESC-1215
1980 UPLBEC-202

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. The petitioner has sought a writ of
mandamus commanding the respondents
not to treat him as retired w.e.f. 1.7.2002
on completion of 58 years of age since he
is entitled to continue in service till
1.7.2004 i.e., till he attains the age of 60
years.

2. The facts in brief as stated in the
writ petition are that the petitioner was
appointed as Clerk in District Cooperative
Bank, Gorakhpur (hereinafter referred to
as "the Bank") on 2.5.1969 where he
joined on 3.5.1969. He was promoted to
the post of Junior Branch Manager on
25.9.1978 and thereafter as Senior Branch
Manager on 12.1.2002. The conditions of
service of the employees of Cooperative
Societies
are
governed
by
U.P.
Cooperative Societies Employees' Service
Regulations, 1975 (hereinafter referred to
as "1975 Regulations") but prior to
promulgation of the said Regulations, the
conditions of service of the employees
used to be governed by individual
contract and/or the Rules framed by the
respective Cooperative Societies. The
Bank entered into a contract according to
the Rules and Circulars issued by the
Registrar, Cooperative Societies, which
was adopted by the Bank, wherein the age
of superannuation of the employees of the
Bank was prescribed as 60 years. It is said
that a resolution was passed by the
General Body of the Bank on 27.7.1958
to the effect that a detailed report from the
Secretary/Managing Director of the Bank
be obtained in regard to the import and
effect of the conditions of service
mentioned in the Circular issued by the
Registrar, Cooperative Societies, U.P.,
Lucknow vis-a-vis the conditions of
service prevailing in the Bank. The
Secretary/ Managing Director of the Bank
in consultation with the Employees
Association
after
due
deliberation
submitted a report that the age of
retirement of the employees of the Bank
would be 60 years and with that
modification circular
issued
by the
Registrar,
Cooperative
Societies
be
adopted by the Bank. The report was
placed
before
the
committee
of
management of the Bank vide resolution
dated 12.10.1958 it adopted the circular of
the Registrar in the light of the report
submitted by the Managing Director of
the Bank. However, under Regulation 24
of 1975 Regulations the age of retirement
prescribed is 58 years but proviso thereto
states where before commencement of
1975 Regulations, the Society at the time
of appointment had entered into a contract
with the employees, whereby he is
entitled to be retained in service after the
date he attains the age of 58 years, the
provision of Regulation 24 of 1975
Regulations shall not apply and in case of
such
employees,
the
date
of
superannuation shall be determined in
accordance with the said contract. It is
contended that since the petitioner had
already executed a contract with the
Bank, providing age of retirement as 60
516 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
years, as is corroborated by the Bank's
resolution dated 12.10.1958, hence he
cannot be retired on attaining the age of
58 years and is entitled to continue till he
attains the age of 60 years.

3. Respondents no.1 and 2 have filed
counter affidavit stating that the date of
birth of the petitioner is 2.7.1944 and he
was
appointed
as
Cashier
on
30.4.1969/2.5.1969.
A
copy
of
the
appointment letter has been placed on
record as Annexure CA-1. The petitioner
after promotion to the post of Senior
Branch Manager on 12.1.2002 attained
the age of superannuation of 58 years on
1.7.2002 and as per Rules applicable to
the Bank was allowed to retire at the end
of the month, i.e., 31.7.2002 vide letter
dated 4.7.2002, a copy whereof has been
placed on record as Annexure CA-2. It is
denied that there was any contract
between the petitioner and the Bank
whereunder he was entitled to continue
beyond the age of 58 years and it is said
that the petitioner is governed by 1975
Regulations and, therefore, liable to retire
on attainment of the age of 58 years.

4. Sri H.R. Mishra, learned counsel
for the petitioner contended that in view
of the averments made in the writ petition
and Joshi Award, the petitioner was
entitled to continue till he attains the age
of 60 years. He also placed reliance on
Division Bench judgments in Allahabad
District Co-operative Bank Ltd. Vs.
Lalji Srivastava (1994) 3 UPLBEC
1701; Ram Swarup Srivastava Vs.
Allahabad District Co-oiperative Bank
Ltd., Allahabad and another 2005(2)
ESC 1215 and a Single Judge judgment
in writ petition no. 16365 of 2004, Sri
Dhyan
Chand
Gupta
vs.
District
Cooperative Bank Ltd. & another,
decided on 25.5.2005.

5. We have heard Sri H.R. Mishra,
learned counsel for the petitioner and Sri
K.N. Mishra appearing for respondents
no.1 and 2 and perused the record.

6. It is not disputed between the
parties that if there existed any contract
executed between the petitioner and the
respondent Bank prior to enforcement of
1975
Regulations,
whereunder
the
petitioner is entitled to continue beyond
58 years of age, he would be entitled to
avail the same and Regulation 24 of 1975
Regulations would not curtail his age of
superannuation. It is also not disputed
between the parties that in case the matter
is governed by Regulation 24 of 1975
Regulations, then the petitioner would not
be entitled to continue beyond 58 years.

7. The controversy, therefore, has
been narrowed down in this case as to
whether the case of the petitioner would
be governed by the proviso to Regulation
24 of the 1975 Regulations or by the main
provision or in other words, whether there
existed
any
contract
between
the
petitioner and the Bank entitling him to
continue for the period beyond 58 years.
Though the petitioner in an indirect way
has attempted to assert in the writ petition
that there existed a resolution passed by
the Bank in 1958 in consultation with the
employees prescribing age of retirement
as 60 years. However, the petitioner could
not show existence of any such contract
executed with the Bank providing age of
retirement more than 58 years which may
attract the proviso to Regulation 24 of
1975 Regulations and, therefore, he has
rightly been retired at the age of 58 years.
Learned counsel for the petitioner tried to
2 All] Ram Mohan Agarwal V. Secretrary/G.M., Cooperative Bank and others
517
construe the said averment as a contract
between the petitioner and Bank but no
such document, however, has been placed
on record to substantiate that at any point
of time, the Bank made any provision
prescribing the age of retirement beyond
58 years. On the contrary, the respondents
in the counter affidavit have specifically
said that there was no condition of service
available providing age of retirement as
60 years and no contract existed between
the Bank and the petitioner to this effect.
The averments made in paragraphs no. 9
and 10 of the counter affidavit are
reproduced as under:

"9. That the contents of paragraph
no. 6 of the writ petition, as stated, is
wholly misconceived and incorrect, hence
denied. It is wholly incorrect to say that
the petitioner is saved by Regulation 24-A
proviso. The U.P. Cooperative Societies
Employees' Service Regulations 1975 is
wholly
applicable
in
the
case
of
petitioner. Further more, there was no
condition as such, before the coming in
force of Regulations 1975 before the
petitioner and and answering respondents
that he will retire after the age of 60
years. Even the Bank Rules, 1958 provide
the age of retirement as 55 years, and the
Joshi Award subsequent to that which was
agreed between the Bank Employees'
Union and the management also provide
the age of retirement as 58 years.
Therefore, the contention of the petitioner
is totally misconceived and wrong.

10. That, the contents of paragraph
no.7 of the writ petition, as stated, are
incorrect and wrong, hence denied. There
are no such contract between the
petitioner and the answering respondents
regarding the retirement of the petitioner
at the age of 60 years."
8. It is also pleaded in paragraphs
3(j) and (o) of the counter affidavit that in
regard to age of retirement of employees
of various Cooperative Banks including
the Bank in question, an industrial dispute
was raised by U.P. Bank Employees
Union
which
was
referred
for
adjudication before the Industrial Tribunal
III at Allahabad in Adjudication Case
No.53 of 1963 wherein 50 Cooperative
Banks
were
parties.
The
Industrial
Tribunal vide its award dated 25.6.1971
adjudicated the matter and in para 21 the
issue pertaining to the age of retirement
was considered and it was held as under:

"In the Staff Service Rules of U.P.
Cooperative Bank, Lucknow, the age of
retirement is 58 years. It was argued for
the workmen that the uncertainty in this
respect should be set at rest as different
Banks had taken action on different lines
in such cases. Having regard to the entire
circumstances, I am of the view that the
age of retirement in the case of all the
Bank should be 58 years...."

9. It is evident from the said finding
of Joshi Award that the age of retirement
of employees of the Bank was held to be
58 years. However, it was also observed
that there would be no objection to the
Board of Directors re-employing an
employee provided the re-employment is
not for a period of more than one year at a
time and more than two years in all after
attaining the age of retirement. The said
award given on 25.6.1971 was published
by the State Government on 17.7.1971.

10. The respondents no.1 and 2 have
also filed a copy of the District
Cooperative Bank Limited Gorakhpur
Service Rules which came into force on
12.10.1958, as Annexure CA-10, which
518 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
contain conditions of service of the
employees of the Bank. Rule 17 thereof
provides that the maximum age beyond
which an employee may not continue in
the Bank, is 55 years which may be
extended by the Board of Directors, in
very special cases, by giving extension of
one year at a time but not more than 5
years in aggregate. The said Rules also
make it clear that age of retirement was
only 55 years in 1958 and no employee
had
right
to
continue
thereafter.
Subsequently, since the Rules have been
replaced by 1975 Regulations, which
provided age of retirement as 58 years,
therefore, the petitioner has been made to
retire on attaining the age of 58 years.
Moreover, in Joshi award also the age of
retirement was provided as 58 years.

11. 1975 Regulations came up for
consideration before the Apex Court in
Virendra Pal Singh & others vs. The
District Assistant Registrar, Cooperative
Societies,
Etah
and
another,
1980
UPLBEC 202 and with respect to the age
of retirement qua Regulation 24 of 1975
Regulations, the Apex Court observed
that if an employee before enforcement of
1975 Regulations had entered into any
contract with the Society whereunder he
is entitled to continue beyond 58 years,
the Regulation 24, providing the age of
retirement as 58 years shall not apply in
his case and in the matter of age of
retirement, he shall be governed by the
contract. In para 14 of the judgment, the
Apex Court held:

"14. Another question which was
raised was that though the age of
retirement of employees of some of the
Cooperative Societies was originally 60
years
under
the
U.P.
Cooperative
Societies Employees Service Regulations,
the age of retirement has now been made
58 years. We are unable to see any force
in this submission. Regulation 24(ii) itself
provides that if before the coming into
operation of the Regulations, the Society
had entered into any contract with an
employee on the date of his employment
whereby he was entitled to continue
beyond 58 years. The Rule of retirement
at the age of 58 years shall not apply and
the age of retirement shall be governed by
the contract. Therefore, if in any case
there is a contract between a Cooperative
Society and an employee entered into
before the Regulations came into force,
stipulating the age of retirement as 60
years the Regulation now stipulating the
age of retirement as 58 years will not
apply to him. We make it clear that this
principle does not apply to the members
of the Centralised service...."

12. Coming to the judgments relied
upon by learned counsel for the petitioner,
we find that the facts of those cases were
totally different and have no application
to the facts of the case in hand. In Lalji
Srivastava (supra) it was the admitted
position that there was a settlement dated
22.2.1966 reached between the Bank and
the Employees' Union which provided age
of retirement as 60 years. This is evident
from para 3 of the judgment:

"3. respondent was appointed on
18.5.1960 as a clerk in the Bank. On
22.2.1966 a settlement was reached
between the Bank and its employees union
of which the respondent was a member. In
this settlement age of retirement was fixed
at 60 years."

13. In view thereof this Court held
that the employees appointed prior to
enforcement of 1975 Regulations and
2 All] M.K. Shukla V. The Addl. Labour Commissioner and another
519
those governed by the Settlement dated
22.2.1966 would be entitled to continue
till the age of 60 years and shall not be
retired on attaining the age of 58 years in
view of proviso to Regulation 24 of 1975
Regulations. Ram Swarup Srivastava
(supra) was also a case arising from
Allahabad
Cooperative
Bank
where
existed a similar agreement as involved in
Lalji Srivastava (supra). It is also
worthy of notice that in Ram Swarup
Srivastava (supra) there was another
connected matter, i.e., Hari Narain Ojha
vs.Allahabad
District
Co-operative
Bank Ltd. Allahabad (Special Appeal
No.66 of 2003) but in that case it was
found that he was appointed subsequently
and was not governed by the settlement
dated 22.2.1966 but in view of the Joshi
Award was liable to retire on attainment
of 58 years and his appeal was dismissed
by the Division Bench. Similarly, in
Dhyan Chand Gupta (supra) we find
that there was a settlement dated 6.5.1965
executed by Meerut District Cooperative
Bank Meerut, providing the age of
retirement as 60 years and pursuant
thereto he was held entitled to continue
till the age of 60 years. Therefore, none of
the aforesaid judgments are applicable or
lend any support to the petitioner for the
reason that in the case in hand there is no
contract executed between the parties,
providing any higher age of retirement in
order to attract proviso to Regulation 24
of 1975 Regulations. We, therefore, do
not find any force in the contention
advanced on behalf of the learned counsel
for the petitioner that he was entitled to
continue till he attains 60 years of age.

14. The writ petition lacks merit and
is accordingly, dismissed. No order as to
costs.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.04.2007

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.11288 of 1984

M.K. Shukla

...Petitioner
Versus
The Additional Labour Commissioner,
Kanpur and another
...Respondents

Counsel for the Petitioner:
Sri K.P. Agrawal
Sri B.N. Singh
Sri N.C. Pandey
Sri Dinesh Chandra

Counsel for the Respondents:
Sri V.P. Varshney
S.C.

U.P. Industrial Dispute Act 1947-Section
6 (2)-Power of Review-order passed
under Section 2 H (2) regarding the
arrear of wages recall application on the
ground the workman gainfully worked
during these period-objection that the
labor Commissioner has no power of
review-held-misconceived-order passed
exercising Quasi judicial power-can be
reviewed.

Held: Para 12

The submission of the learned counsel
for the petitioner that the Additional
Commissioner had no power to review or
recall
its
own
order
is
patently
erroneous. The Additional Commissioner
is exercising quasi judicial powers under
Section 6-H(1) of the Act and therefore,
the authority has the power to review or
recall its order.
Case law discussed:
AIR 1965 SC-1488
1983 LIC-1738