1984 PLP 1069 (PLC(CS))

‑‑R. 2 (2) & (3)‑Rule governing superannuation age as 55 years Applicable to all categories of employees except those engaged permanently out of country (India) unless made applicable by particular Bank‑Head clerk in State Bank of India in Pakistan, held, not governed by rule of superannuation age of 55 years because said rule not made applicable‑Order of Labour Court setting aside retirement order on attaining age of 55 upheld by Appellate Tribunal and official, held, entitled to remain in service till reaching age of 60 years if found medically fit for duty. Muhammad Saleem Saghal for Appellant. Muhammad Zaman Qureshi for Respondent. Date of hearing : 24th November, 1982. This appeal arises from the decision, dated 10th June, 1980, passed by the learned Presiding Officer, Labour Court No. 1, Lahore, whereby the grievance petition of the respondent brought against the order of his retirement at the age of 55 years was accepted and the respondent was directed to be continued in service till he was declared medically unfit for performing his duties.

2. The respondent was working as Head Clerk in the State Bank of India. On attaining the age of 55 years on 31st December, 1979 he was to be relieved on account of retirement. A notice was issued to him before that date. He challenged it contending that he was entitled to remain in service till attaining the age of 60 years.

3. The learned counsel for the appellant has argued that the rule on the basis of which the petition was brought does not contain any provision that an employee will be retired on reaching the age of 60 years. He says that according to State Bank of India Rules the age of retirement is 55 years and thus the respondent is not entitled to remain in service any longer. Since admittedly he has attained the age of 55 years, the argu ment of the learned counsel has no force. The rules referred by him are not applicable to the respondent. Rule 2 (3) says that those rules shall not apply to any person engaged out of India. Admittedly the respondent is employed in Pakistan and not in India. No doubt proviso to sub rule (3) states that these rules may be made applicable to persons employed out of India, but there is no material in the shape of any rule or notifica tion that they, have in reality been made applicable outside India. Learned counsel for the respondent argues that these rules are meant for the Sub‑Accountants and Head Cashier as is apparent from the title which is "State Bank of India (Sub‑Accountants and Head Cashiers) Service Rules." Rule 2 (1) says that these roles shall apply to sub‑accountant and Head Cashier. His argument is devoid of force. Sub‑rule (2) says that they shall also apply to persons in the service of Bank in any other capacity to such extent and subject to such conditions as the Bank may from time to time decide. No copy of any decision of the Bank has been brought on the record by the appellant that these rules meant for sub accountants have been made applicable to other employees not in respect of the age of superannuation. Rule 2 (2) imperatively makes the rules applicable to other employees as well with the condition that the Bank may decide to what extent and subject to what condition they will apply word `may' has been used. So, it is not incumbent upon the Bank to Put restriction. If the Bank has not laid any restriction it would mean that they are applicable in all respects. For the application of rules word `shall' has been used and for putting restriction the word `may' has been used. By using the word `shall' for applicability imperative direction has been given but by using the word `may' discretion has been given to the Bank 19 to lay down conditions if it so likes. If there are no conditions and no limit they will apply in every respect without any restriction so the onus was on the Bank to show that with regard to the age of superannuation the rules have not been made applicable, I therefore hold that the rules apply to all kinds of Bank employees except those who are engaged permanently out of the country of India meaning that they are not' applicable to the respondent. The finding of the learned lower Court is correct to the extent that the age of superannuation is not 55 years but this direction is not maintainable that the respondent shall remain in service till he is medically fit. The case of the respondent is that he is entitled to remain in service till the age of 60 years. So, the remedy must be as prayed. I, therefore, partly accept the appeal and modify the order of the learned lower Court directing that till reaching the age of 60 years the respondent is entitled to remain in service if found medically fit for duty. A.E. Appeal partly accepted