IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS 26TH DAY OF JUNE, 2015
BEFORE
THE HON’BLE MR JUSTICE L. NARAYANA SWAMY
WRIT PETITION NO.41849 OF 2011 (S-RES)
Between:
Mahesh K
@ Mageshwaran K S/o M. Kandaswamy
Aged about 57 years
r/at No.63, Michael Aalya, II Stage 1st Main, 1st Cross, new Tippasandra
Bangalore - 560 075 …petitioner
Party-in-person And:
1. The Union Government
Rep by The Secretary Ministry of Finance
Insurance Division New Delhi 110 001
2. The Chairman
Insurance Regulatory and Development Authority
3rd Floor, Parisrama Bhavan, Basheer Bagh Hyderabad, Andhra Pradesh 500004
3. The Chairman
Life Insurance Corporation of India Central Office, P.B. No.19953
‘Yogakshema’, Jeevan Bima Marg Mumbai 400021
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4. The Chairman Life Insurance Corporation of India
Central Office, P.B. No.19953 ‘Yogakshema’, Jeevan Bima Marg
Mumbai 400021
5. The Zonal Manager Life Insurance Corporation of India
South Central Zonal Office ‘Jeevan Bhagya’, Saifabad
Hyderabad, Andhra Pradesh 500 063
6. The Senior Divisional Manager Life Insurance Corporation of India
Divisional Office-II, Bangalore
Jeevan Jyothi Building, Indiranagar Bangalore -560 038
7. The Chief Manager
Life Insurance Corporation of India M.G. Road Branch Office
10/A, 3rd Floor, Chandrakiran Building Kasturba Road
Bangalore – 560 001 …Respondents
(by Shri Rajesh Shetty – Advocate for R2 to R7) Shri Kalyan S Basavaraj –CGSC for R-1)
This writ petition is filed under Articles 226 and 227 of the
Constitution of India praying to declare the Circular dated
2.6.1989 vide Annexure-A & Corporation negative reply dated 23.4.1993 as highly illegal, arbitrary, capricious, mala fide,
capricious, irregular, discriminatory and opposed to the principles of natural justice and fair play by issue of writof
certiorari etc.,
3
In this petition arguments being heard, judgment reserved
and coming on for pronouncement, this day, the Court made the following:
O R D E R
The petitioner is an ex-serviceman served in the Indian
Armed Forces for fifteen years and thereafter was re-employed
as Assistant in the third respondent-Life Insurance Corporation
of India (hereinafter referred to as ‘Corporation’ for short)
pursuant to the notification issued by the Corporation.
2. The petitioner appearing party-in-person submitted as
follows:
As per the regulations of the first respondent, the last
emolument drawn in the armed forces should have been
protected by the Corporation while fixing the salary of the
petitioner instead the Corporation fixed the salary of the
petitioner commensurate to the cadre of the Assistant on the
rolls of the Corporation. In this regard he made a representation
to the Corporation and also marked a copy to the first
respondent-Union of India seeking to protect the last pay he
drawn in the armed forces. It is submitted that he has
4
completed various Service Examinations conducted by the
Armed Forces Authority and he had been issued graduation
certificate from Indian Air Force as per the Government of India,
Ministry of Personnel Public Grievances and Pensions
(Department of Personnel and Training), Order dated 12th
February 1987. He submitted that since he had been issued with
Graduation Certificate, the same was required to be treated as
equivalent to the qualification which is required for the post of
Assistant Administrative Officer in the cadre of Class-I on the
rolls of Corporation and also seeking his categorization as Higher
Grade Assistant (Administration) or Higher Grade Assistant
(Programmer-II) in Class-III itself, by considering his experience
of fifteen years. For consideration of his experience of fifteen
years in the Armed Forces and also regarding possessing
qualification of Bachelor of Degree for the purpose of
appointment and eligibility to the post of Assistant
Administrative Officer on completion of five years of service as
Higher Grade Assistant in the Corporation, a representation was
addressed to the Corporation Authorities on 12th December 1990
and copies of the same were marked to the Divisional Office as
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per Annexure-E and F. Representation so made to the
Corporation was also marked to the Union of India, Ministry of
Defence.
3. The petitioner submitted that the Corporation
committed a manifest error in refixing the pay to the petitioner
as per Circular Annexure-A. The error alleged is that, the
allowances which were paid to the ex-serviceman on his re-
employment in the Corporation who is serving in Urban Branches
and in Rural Branches varies and that anomaly is sought to be
set right. It is submitted that whenever a person gets
appointment on the basis of ex-serviceman quota as per the
circular issued by the first respondent his last pay drawn is to be
protected and the same shall not be reduced and further the said
protection is extended irrespective whether the person serves in
urban or rural branches. Since the petitioner has been drafted
to serve in the rural branches, he is made to get lesser salary
than the person who got postings in the urban branches. By
doing the same the ex-serviceman who gets the pay-protection
of his earlier employment, will get one slab less and the same is
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illegal, arbitrary, discriminatory and contrary to the well-
established principles of law. The said representation came to
be endorsed as per its letter dated 29th August 1991 rejecting
the claim made by the petitioner on the ground that the fixation
of pay is a matter of policy decision of the Corporation. The
petitioner has been paid salary as per the emolument issued as
per Annexure-A. Hence, it is submitted that the said
endorsement is unconstitutional and contrary to the rules set
down by the first respondent to protect the salary of ex-
serviceman for which the Corporation has no jurisdiction or
authority.
4. For having not satisfied with the endorsement, he had
made a rejoinder to the Senior Divisional Manager at Madras,
which also came to be rejected. The petitioner has taken his
case further to the sixth respondent-Senior Divisional Manager,
Division Office-II, which has got the jurisdiction. Hence, the
petitioner submits that the endorsement issued is to be set
aside, since, it is arbitrary and violation of Articles 14 and 16(1)
of the Constitution of India.
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5. Nextly, he submitted that the sixth respondent has
notified for recruitment of Apprentice Development Officers for
appointment to the cadre of Development Officer (Class-II) for
Rural and Urban centres from amongst Class-III employees of
the Corporation as per Notification dated 5th June 1993 the
minimum qualification for the said post according to the
notification was Bachelor’s Degree in Arts, Science, Commerce,
Agriculture or Law of any approved Indian or Foreign University
or an equivalent qualification. The petitioner submitted the
application for appointment to the cadre of Development Officer,
and the petitioner was permitted to appear for examination and
he had been declared “qualified” in the written examination and
he was also eligible for the interview. In the meanwhile, the
process of selection was kept in abeyance by the sixth
respondent.
6. Petitioner also submitted that the employees of the
Corporation in the cadre of Class-III, who were graduates, are
eligible for additional two increment as graduation allowance and
as such the petitioner is also entitled for graduation allowance on
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the basis of the graduation certificate issued by the first
respondent. The said benefit has been denied to the petitioner
on the basis of non-possessing of bachelor’s degree qualification.
He has cited example of one Mr. Samarash Mukherjee an ex-
serviceman re-employed in Syndicate Bank, who had
approached the Industrial Tribunal and Labour Court under
Section 33-C (2) of Industrial Disputes Act challenging the denial
of graduation increment and the said petition was allowed by
CGIT(LC) directing the respondent-Bank to re-fix the pay of the
petitioner therein considering him as a graduate. The
Graduation certificate issued to the petitioner by the Indian Air
Force as per Annexure-C is the certificate for the purpose of pay-
parity paid to the cadre of Class-III employees on the rolls of
Corporation and denial of the same to the petitioner is arbitrary
one. The claim made by the petitioner has been rejected by
giving stereotype reasons and the said orders have not been
passed by the competent authority and are passed by non-
application of mind. Hence, the said orders are arbitrary and
violation of Article 14 of the Constitution of India and are also
contrary to the orders passed by the Union of India.
9
7. The petitioner further submitted yet another
discrimination committed by the sixth respondent for appointing
him in the cadre of Class-III. Initially, he was selected as Micro
Processor Operator (MPO) in October 1992 and since then he
worked in Data Processing Department of Corporation’s
Indiranagar Branch Office under direct supervision of the sixth
respondent and jurisdictional control of the fifth respondent. Due
to the exigency in the Corporation and since the employee
posted against established substantive post of Higher Grade
Assistant (Programmer-II) was absent without applying for leave
for over two years and a lady Micro Processor Operator on the
posted strength was on Maternity Leave and another lady Micro
Processor Operator was relieved from duty on transfer to
Chennai Division of the Corporation; and since the petitioner was
left as the only employee against the strength of one Higher
Grade Assistant (Programmer-II) and three Micro Processor
Operators and in the process, he has performed the duties of the
Data Processing Department (including the duties of Higher
Grade Assistant (Programmer-II) and two Micro Processor
Operators) all alone with staggered and long working hours with
10
due diligence and devotion for no extra monetary benefits. The
petitioner further submitted that he, single-handedly, has served
the Corporation even on the substantive cadre of Higher Grade
Assistant (Programmer-II).
8. He had appeared for aptitude test held on 12th August
1995, performed exceedingly well, but unfortunately has not
been selected. The non-selection is also discriminatory attitude
committed by respondents 5 and 6. It is submitted that since he
has served in the cadre in which he was appointed and also
served in the substantive post of Higher Grade Assistant for a
period of two years, the denial of his appointment to the post of
higher cadre is not on the basis of merits of the petitioner. In
this regard he has made several representations to the
respondents 5 and 6 and also to the Zonal Office, Central Zone
Office, Hyderabad, but all his efforts went in vain. The further
submission of the petitioner is that though he had the experience
of higher cadre in addition to the cadre to which he was
appointed, but has not been selected whereas the persons who
were not having any work experience were selected, itself
11
demonstrates the discriminatory attitude of the respondents
towards the petitioner.
9. The petitioner has been deprived of his promotion to
the higher cadre; and had he been considered for promotion, he
would have reached the position of Additional Divisional Manager
of the Corporation but contrary to it, the authorities of the
Corporation, in order to cover up the illegal things committed by
them and also to avoid embarrassment and obligation in
addressing the grievance of the petitioner; and also instead of
attempting to undo the wrongs committed, have coerced him to
take up the post of Development Officer since he was the only
person selected on merit and the results were announced after
two years which was kept in abeyance due to Justice Malhotra
Committee report. The coercive methods adopted by the
respondent-Corporation is only for the reason that the petitioner
should not question the injustice due to discrimination and bias
by denying promotion to the cadre of Higher Grade Assistant
(Programmer-II). He further submitted that due to coercive
method adopted by the Corporation, he has taken up the post of
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Development Officer by receiving the offer letter dated 3rd
September 1995 as per Annexure-Y, and copy of the order
Annexure-Z dated 9th October 1995 placing the petitioner on
Apprentice Development Officer; and copy of the letter
Annexure-AA dated 23rd July 1996 appointing the petitioner as
Probationary Development Officer. He made representations to
the sixth respondent as per Annexure-AC and the reminder
dated 11th December 1996 as per Annexure-AD and marked the
copy of the representation to the 5th respondent Zonal Manager
at Hyderabad vide letter Annexure-AE dated 11th February 1997
and the said representation also came to be rejected by the sixth
respondent on 18th February 1997 as per Annexure-AF. It is
submitted by the petitioner that he has been discriminated right
from the date of his initial appointment in the Corporation till the
promotion and even he has not been considered for pay-
protection as per the regulations of the first respondent and his
graduation certificate Annexure-C also has not been considered
for pay-parity. With regard to discrimination in pay protection to
the ex-servicemen who have served in Urban and Rural
Branches, the petitioner submitted that the same is arbitrary and
13
violation of Article 14 of the Constitution of India and hence to
hold the impugned orders of the third, fifth and sixth
respondents as arbitrary and to set aside the same.
10. It is his further submission that his appointment as
Development Officer was confirmed on 26th August 1997 under
the provisions of the Life Insurance Corporation of India (Staff)
Regulations, 1960 as amended from time to time and Life
Insurance Corporation of India, Development Officers (Revision
of certain Terms and Conditions of Service) Rules, 1989 dated
26th June 1989, which also govern the field. Further, it is
submitted that in the field of Insurance, number of changes have
taken place. The Insurance Regulatory and Development
Authority Act, 1989, amendment to Insurance Act, 1938 and Life
Insurance Corporation Act, 1956 got amended by inserting sub-
sections. These amendments made numerous changes as
regards to recruitment of Agents, fixing the minimum
educational qualification from SSLC to pass PUC and hundred
hours of class-room training and passing of examination, which
otherwise was not there till then. After unilateral changes in the
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agents’ recruitment conditions and allowing more than fifteen
private companies with Foreign Direct Investment and active
participation on a licence fee of Rs.200 crore to do Life Insurance
business, the 1989 Rules of the Corporation notified by the first
respondent had lost its object, purpose, significance and
intention. The petitioner’s appointment as Development Officer
has been governed by the Life Insurance Corporation of India
(Staff) Regulations. The IRD Act, 1999 and its continued
applications to measure the performance of the petitioner is
absurd, illegal, capricious and discriminatory and hence its
application, fails the vital test of principles of natural justice, fair
play by the Corporation and are wholly unsustainable in law or
facts.
11. It is also submitted that the third respondent has
made rules for promotion from the cadre of Development Officer
to the Assistant Branch Manager (Sales) as provided in
paragraph 18 of the 1989 Rules. The conditions of suitability
remained constant through the nine years period viz. (i) all the
Development Officers who have completed ten years of service
15
in their cadre as on 31st December of the previous year and who
have worked within the prescribed cost ratio during the last
appraisal year; OR (ii) all Development Officers who have
completed five years service in their cadre but less than ten
years on 31st December of previous year and who have worked
within the prescribed cost ratio during the last appraisal year
provided that they have brought in an average schedule first
year premium income of Rs.80,000/- and 200 policies in the last
three appraisal years and further provided their lapse ratio is
less than 15% determined as per Clause (F) below. The
Development Officer would not be considered suitable for
promotion, if he does not comply with the said requirement.
12. When things thus stood, the third respondent has
further raised the condition of suitability for eligibility for
promotion from the cadre of Development Officer to Assistant
Branch Manager (Sales) manifold, i.e. from ten years to fifteen
years; from Rs.80,000/- to Rs.8,00,000/- average schedule first
year premium; and from 200 policies to 450 policies at the time
when more than fifteen private insurance companies have been
16
licenced by the second respondent and those companies have
started operating as competitors in life insurance business. This
requirement made mandatory by the third respondent is
arbitrary because of the changes brought into IRDA Act and
licencing fifteen private insurance companies and inviting them
as competitors in the insurance sector. After the private
companies have been invited to the field; requirement of ten to
fifteen years; and increase of average schedule first year
premium from Rs.80,000/- to Rs.8,00,000/- should have been
reduced further. In this regard, the representation made to the
respondent for consideration of his case for promotion as
Assistant Branch Manager (Sales), came to be rejected.
13. In the representation the petitioner has also stated
that the requirement of transactions or business to the
respondent should not be the ground for denial of promotion and
suitability to the cadre. Putting up impracticable conditions in
achieving the target is also arbitrary and hence the requirement
made by the third respondent is sought to be set aside. Persons
appointed pursuant to 1966 Rules or 1989 Rules are not on the
17
basis of suitability to the cadre and are also not on the basis of
business background. Frequent changes in the business field
may not be addressable by these candidates who have no
background of business. Market fluctuation, downfall of Indian
Rupee value in the world market, increase in fuel prices which
reflected in the increase in maintenance of cars are also the
causes for bringing in low premium business. These aspects
have not been taken note of by the respondents. Hence, the
impugned action of the respondent in putting the business
criteria is arbitrary for the purpose of consideration of case of
the petitioner for promotion is arbitrary and unconstitutional is
the submission of the petitioner.
14. It is further submitted that the Corporation, without
assigning any reason has stopped the additional conveyance
allowance on the schedule first year premium at the rate of 4%
as secured by the Agents who are under the unit of the
Corporation from 2005 onwards, which caused more hindrance
for the petitioner to meet the incidental expenses like telephone
and mileage incurred in the course of official duty; and under the
18
circumstance, the Corporation concluded that the petitioner has
exceeded the cost ratio prescribed in 1989 Rules and the sixth
respondent has imposed disincentive of 60% cut in the
conveyance allowance and also mentioned not to release the
normal grade increment. The said disincentive order is produced
as Annexure-AR with the petition. The representation made in
this regard was also got turned down by the sixth respondent by
letter Annexure-AT dated 14th October 2006. Against the same,
he preferred rejoinder before the seventh respondent.
15. Petitioner further submitted that as the things stood
thus, he preferred an industrial dispute before the Central
Government and in the interregnum the Corporation finalized
the petitioner’s appraisal from 1st August 2008 to 31st July 2009
applying 1989 Rules by denying one earned normal grade
increment and also reduced one slab decrement with effect from
1s August 2009 and continued to pay conveyance allowance of
Rs.312/- which action is nothing but non-application of mind and
unconstitutional. It is also submitted that the petitioner was
informed by the Deputy Chief Labour Commissioner, Bangalore
19
to forward some more sets of the dispute papers and he
personally has handed over the same to the Deputy Chief Labour
Commissioner on 4th September 2009, the copy of
acknowledgement is produced as Annexure-AAS; and he was
informed to attend the discussion on 27th October 2009 and he
attended. It is also submitted that the Corporation has deputed
an officer in the rank of Divisional Manager to attend the
discussion before the Deputy Chief Labour Commissioner. Since
there was serious contentious claim and counter claim, he filed
counter-statement of objection on 13th November 2009 and it
was told that the decision would be intimated to him in due
course. When there was no intimation, he sent telegram to the
Assistant Labour Commissioner, Bangalore on 23rd February
2010 and subsequent to his telegram, it was intimated to him
that the Assistant Labour Commissioner (Labour), vide letter
dated 23rd February 2010 while referring the petitioner’s
Industrial Dispute and also the meeting he had with the
petitioner and the representative of the Corporation, has opined
that the petitioner’s grievances confine to the service related
issues and erroneously concluded service related issues do not
20
fall under Industrial Dispute Act, 1947 read with Section 2A of
the Act and also his effort made did not yield any result as the
management refused to entertain the same; and on the contrary
petitioner made request before the first respondent in the
industrial dispute to refer the unresolved dispute before the
National Tribunal under Chapter III Section 10 of the Act. He
was also advised to raise separate industrial dispute through
registered Trade Union of which petitioner is a member. There
was no response from the authorities and the said action is
nothing but gross violation of Administrative Law and also
violation of Article 14 of the Constitution.
16. The further submission of the petitioner is with regard
to the meal coupons provided to the employees of the
Corporation. The grievance of the petitioner is with regard to
the conditions imposed on the development officers for eligibility
of meal coupon, i.e. bringing of minimum 20 policies each month
during the first quarter and 25 policies each for the subsequent
quarters and the same is not being imposed on other class of
employees of the Corporation and hence the same is illegal,
21
arbitrary and capricious according to the petitioner. It is
submitted that as per the appointment order, the petitioner is
not to secure life insurance policies directly from the policy
holders and the petitioner only needs to prospect more through
prospective agents and recommend their appointment and bring
in life insurance policies through such agents, and hence
imposition of such a condition to bring in such number of policies
to become eligible for meal coupon is illegal and arbitrary. He
further submits that the said scheme has also attracted criticism
from the general public since the money that will be involved for
issuance of meal-coupon belongs to over 30 crore policy holders.
17. The next submission of the petitioner is that to obtain
certain documents that are relevant for defending before the
Labour Commissioner, he has approached the Corporation
authorities by making an application before the Central Public
Information Officer and since there was adverse communication,
he appealed before the first appellate authority and when failed
before him he filed writ petition No.17103 of 2009 which came to
be disposed of on 3rd February 2011 and the same order was
22
partially complied by the Central Public Information Officer and
the petitioner vide letter dated 24th March 2011 was intimated
that remaining part of the order will be complied by the sixth
respondent, whereas contrary to that respondents 3, 5, 6 and 7
started harassing and intimidating him with adverse
consequences by terminating him from service. It is further
submitted that on 18th April 2011 a show-cause notice was
issued invoking 1989 Rules of the Corporation alleging several
remarks against the petitioner in utter violations to the
provisions of 1960 Regulations. The said show-cause notice is
the second notice received by the petitioner. It is further
submitted that the show-cause notice was displayed in the notice
board of the Branch and also was placed before the cash counter
which caused humiliation to him. He submitted that when the
show-cause notice served on the petitioner is pending review
before the first respondent; and since there is no response from
the first respondent, issuance of one more show-cause notice is
untenable. When the matter stood thus, to his dismay the
petitioner received a Xerox copy of termination letter dated 25th
July 2011 signed by the Zonal Manager forwarded by a covering
23
letter dated 17th August 2011, signed by the sixth respondent.
This action of the sixth respondent, petitioner submitted, is with
the oblique motive of maligning him, which is wholly untenable
in law or on facts.
18. Petitioner further submits that he was not given an
opportunity to participate for promotion to the cadre of Assistant
Administrative Officer in Class-I which he was otherwise eligible
after confirmation as Development Officer. He also submitted
that the calculation formula for arriving at appraisal of the
petitioner by including Sundays, holidays, sick leave, privilege
leave availed by the petitioner is wholly untenable because even
a casual labour as per Labour Law is entitled for a weekly
holiday. It is his further submission that withdrawing of
additional conveyance allowance which was paid till the annual
appraisal of 2004-05, without assigning any reasons whatsoever
is also untenable since the same was sanctioned after due
process of evaluating the need, purpose and object and
reasonableness. He also submits that as a Development Officer
his duty was to recruit more and more agents and through them
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bring in the policies/business to the Corporation; and to
discharge that work, the allowances like mileage allowance, fixed
telephone allowances which are cost free and tax free was not
payable to the Development Officer but were given to Class-I
officers like Branch Managers, Assistant Branch Manager (Sales)
who were also enjoying the Corporation registered car and
denying such benefits to the Development Officers who bring in
business to the Organisation, is wholly unreasonable.
Submitting thus, the petitioner has sought for issuance of
various directions as prayed for in the petition.
19. On the other hand, the respondents 3 to 7 filed
statement of objections opposing the writ petition on the ground
that the petitioner has involved different causes of action spread
over a period of time and impleaded respondents who are not
connected with the disputes. Hence the writ petition is liable to
be dismissed on the ground of multifariousness for misjoinder of
respondents and causes of action. The petitioner’s services are
terminated as he failed to conform to the expenses limit in
accordance with the provisions of the Rules. An appeal against
25
an order passed under sub-rule (1) of Rule 8 shall lie with the
Managing Director and the provisions of Rule 41, 42, 43,44 and
45 of the Staff Rules shall so far as may, apply to such appeal.
The petitioner is not entitled to approach this court without
exhausting the said alternative remedy.
20. The disputes raised by the petitioner relate to service
matter. There is an appropriate forum available in the
Corporation for redressal of the grievances. The petitioner’s
services as Development Officer was terminated with effect from
25.7.2011 strictly as per provisions of LIC of India Development
Officers (Revision of Certain Terms & Conditions of Service)
Rules, 1989, after following due process of law and in
accordance with the principles of natural justice. The grievance
of the petitioner regarding salary fixation was examined by the
then Zonal Office, Chennai and found that salary fixation is
correct as per existing rules vide their letter dated 23.1.1992
and accordingly the petitioner was informed.
21. The petitioner at the time of his re-employment into
service of the Corporation was SSLC pass and not a graduate. If
26
petitioner to be considered for graduation certificate, he should
possess degree awarded by any recognized University as held by
this Court in W P No.29176 to 29183/94 DD 17.7.1997. The
said graduation certificate issued by the Indian Air Force is not
the same as the graduation certificate that would be issued by
any Indian Statutory University.
22. It is contended that the plea of the petitioner that he
was deprived of one slab increment and that there is loss of
monetary benefits are all imaginary and self-serving. It is stated
that Micro Process Operator is not a promotion. The office
reassigns jobs/tasks to meet the office exigency due to absence
of colleagues. This does not entitle him to any extra
remuneration as any employee has to undertake the job
assigned to him from time to time.
23. It is further stated that the petitioner was well aware
of nature of duties of Development Officer and prospects of
earning incentive based on performance. The request of the
petitioner for sanction of advance for new two wheeler was
turned down by the Zonal Office as the petitioner was already in
27
possession of two wheeler provided by the Corporation. As the
advance was still outstanding the petitioner was told that he
cannot dispose of the vehicle.
24. It is stated that there is no provision to consider the
petitioner’s military service for promotion to the cadre of
Assistant Branch Manager (Sales). The Corporation is selecting
persons for the marketing duty from administrative side based
on the suitability of the person for the job. Further the cars are
allotted to the marketing officials as per their nature of job and
there is no discrimination in the matter as alleged by the
petitioner.
25. It is stated that scheme for providing meal coupons
the conditions for eligibility were not imposed on other class of
employees is denied as false. The Corporation has initiated
action against the petitioner in terms of provisions of LIC of India
Development Officers (Revision of Certain Terms and Conditions
of Service) Rules 1989 and the same is in accordance with law.
There is no discrimination and bias as alleged by the petitioner
as he was holding and using the vehicle taken by him from
28
vehicle advance granted by the Corporation. The action of
termination passed against the petitioner is in accordance with
law and Rules of the Corporation and thus prayed for dismissal
of the writ petition.
26. Heard the petitioner party-in-person and the learned
counsel for the respondents and perused the entire records.
27. Though the petitioner has taken several grounds and
made several prayers, I felt it proper to confine the case of the
petitioner only relating to dismissal from service.
28. It has been referred in the charge sheet that the
petitioner has crossed cost effect ratio as per Sub Rule 8 Rule 7
r/w Section 8 of LIC Development Officers (Revision of Certain
Terms and Conditions of Service), Rules, 1989. As per this
provision, the charge sheet has been framed as per Annexure
AAAQ dated 28.3.2011 to the effect that the petitioner has
crossed cost effect ratio and on the basis of the charges framed
against him, the Enquiry Officer was appointed to proceed with
the matter. The cost effect ratio has been referred by virtue of
29
Sub Rule 8 Rule 7 r/w Section 8 of LIC Development Officers
(Revision of Certain Terms and Conditions of Service), Rules.
Against the said charge, the petitioner had made a
representation and brought to the notice about the loss
economic and other changes taken place between the date of
regulation, promotion and from the date of the impugned order.
As it is in his reply during the year 1992, the Government of
India made amendment to the Insurance Act permitting the
private insurance companies to come up. Accordingly, many
insurance companies have come into existence in India. There
was huge competition between LIC and private such insurance
companies. The petitioner was not provided with the new
vehicle and other requirements despite his request. To meet the
ends of justice without considering the said right and request,
the charges have been framed and enquiry has been held to be
proved. The said charge resulted in dismissal of the petitioner
from service. Hence the initiation of charge itself is arbitrary one
and violative of Articles 14 and 16(1) of the Constitution of India
and the provisions referred to above which relates to cost effect
ratio is ultra vires the provisions of Constitution of India.
30
29. The impugned action of initiating enquiry and also
dismissing the petitioner from service also attracts the principle
of Proportional justice or doctrine of proportionality. The
doctrine of proportionality, which is the part of Administrative
Law had been adopted in various areas of reviewing the
administrative orders. The punishment initiated is
disproportionate to the gravity of the charges . Hence the same
is held to be arbitrary and unconstitutional and violative of
Articles 14 and 311 of the Constitution of India. The cost effect
ratio which was made on that day, would go along with
economic changes namely standard of living, value of money,
cost of living and various other factors. Considering the same,
dismissing the petitioner by referring the said provision for the
purpose of holding liability on him with regard to cost effect
ratio is arbitrary one. This Court is aware that the employer
would decide the suitability of a person and normally it is not for
this Court to assess the suitability of a person. However, the
decision of the employer in holding an enquiry by framing the
charges and dismissal of the petitioner having held that the
charges have been proved, is arbitrary.
31
30. The Hon’ble Supreme Court in the case of M.P.
GANGADHARAIAH AND ANOR Vs STATE OF KERALA AND
OTHERS, (2006) 6 SCC 162 has held that “……But in a case of
this nature, the doctrine of proportionality must also be applied
having regard to the purport and object for which the Act was
enacted.” Hence the applicability of proportionality has to be
decided in the given case. It is held in the said judgment that
the purport and object is guiding factor for applicability of the
said principle.
31. In yet in another case in the case of the OM KUMAR
AND OTHERS vs UNION OF INDIA, (2001) 2 SCC 386 in para 34
the Supreme Court held that “ In USA in City of BOERNE V
FLORES the principle of proportionality has been applied to
legislation by stating that “ there must be congruence and
proportionality between the injury to be prevented or remedied
and the means adopted to that end.” In another case in the case
of S.R. TEWARI VS R.K. SINGH AND ANOTHER, (2013) 6 SCC
602 in para 24 the Hon’ble Supreme Court has held that “The
question of interference on the quantum of punishment has been
32
considered by this Court in a catena of judgments and it was
held that if the punishment awarded is disproportionate to the
gravity of the misconduct, it would be arbitrary, and thus, would
violate the mandate of Article 14of the Constitution.” Yet in
another case in the case of CHAIRMAN, ALL INDIA RAILWAY
RECRUITMENT BOARD AND ANTOHER VS K. SHYAM KUMAR AND
OTHERS, (2010) 6 SCC 614, in paras 28 and 31 it has been held
as follows:
“28. The position in English Administrative Law is that both the tests, that in Wednesbury and proportionality continue to coexist and the
proportionality test is more and more applied, when there is violation of human rights and
fundamental freedoms and the Wednesbury principle finds its presence more on the domestic
law when there is violation of citizens’ ordinary rights. Proportionality principle has not so far
replaced the Wednesbury principle and the time
has not been reached to say goodbye to Wednesbury much less its burial. “
“31. S.B. Sinha J as His lordship then was, speaking for the Bench in State of UP vs SHEO SHANKER LAL SRIVASTAVA after referring to the
judgment of Court of Appeal in Huang vs Secy of State for the Home Deptt R (Daly) V Secy of State
for the Home Deptt opined that Wednesbury principle may not now be held to be applicable in
view of the development in constitutional law and
33
held as follows: (Sheo Shanker case SCC p 285
paras 24 , 25)
“24. While saying so, we are not oblivious of the fact that the doctrine of unreasonableness is
giving way to the doctrine of proportionality.
“25. It is interesting to note that the
Wednesbury principles may not now be held to be applicable in view of the development in
constitutional law in this behalf. See for example Huang v Secy of State for the Home Deptt
wherein referring to R (Daly) v Secy of State for the Home Deptt it was held that in certain cases,
the adjudicator may require to conduct a judicial exercise which is not merely more intrusive than
Wednesbury but involves a full-blown merit judgment which is yet more than R(Daly),
requires on a judicial review where the Court has to decide a proportionality issue”
32. The Supreme Court in the case of LIFE INSURANCE
CORPORTION OF INDIA VS R. SURESH, (2008) 11 SCC 319 in
para 32 has held as follows:-
“32. Indisputably again, the jurisdiction must be exercised having regard to all relevant factors in mind.
In exercising such jurisdiction., the nature of the misconducts alleged, the conduct of the parties, the
manner in which the enquiry proceeding had been conducted may be held to be relevant factors. A
misconduct committed with an intention deserves the maximum punishment. Each case must be decided on
its own facts. In given cases, even the doctrine of proportionality may be invoked.”
34
33. When the petitioner is punished by referring cost of
effect ratio there should have been application of mind on the
part of the employer- respondent. They should have appointed
the expert to ascertain the cost effect ratio as on the particular
date of decision. At the time when the regulations were made,
there was manipulative approach in favour of LIC. But in course
of time by virtue of amendment by the regulation to LIC Act, the
area of insurance company has been changed by inviting private
foreign companies into India, which were regulated at the time
of monopolistic period and the same was not available when the
petitioner was punished. The cost effect ratio as on the date of
regulation was grown more than 10 times when the petitioner
was punished. The respondent has not kept in mind about the
petitioner as Ex-servicemen who defended this country by
risking his life. The approach of the respondent as if egoistic,
and the impugned order passed is nothing but by non-
application of mind. Hence it is arbitrary one. Hence the decision
of dismissing the petitioner from service is perverse.
35
34. In this regard, it is appropriate to refer the judgment
of the Hon’ble Supreme Court in the case of S.R. TEWARI VS
UOI reported in (2013) 6 SCC 602 in para 19 it is held as
follows:-
“19. In CIT v Mahindra & Mahindra Ltd, this Court held that various parameters of the Court’s power
of judicial review of administrative or executive
action on which the court can interfere had been well settled and it would be redundant to
recapitulate the whole catena of decisions. The Court further held (SCC p 402 para 1)
“11. ….. it is a settled position that if the action or decision is perverse or is such that no reasonable body of persons, properly informed could come to
or has been arrived at by the authority misdirecting itself by adopting a wrong approach or
has been influenced by irrelevant or extraneous
matters the Court would be justified in interfering with the same. “
35. Article 14 of the Constitution of India which relates to
equality before law, equality in protection of law. The regulation
framed by the respondent – Corporation for the purpose of
applicability of the same would apply before there being any
thought on it. Equal application of law always it is to be
understood as that law which is applicable and it should not be
arbitrary and perverse. Under these circumstances, the
36
impugned action of the respondent is non-application of mind
resulting in perversity and also arbitrary and violation of Article
14 and 16(1) and Article 311 of the Constitution of India.
Hence I pass the following
ORDER
Writ Petition is partly allowed.
The impugned order of dismissal from service is hereby
quashed. The petitioner is entitled to be reinstated and paid all
consequential monetary benefits. The other prayers made by
the petitioner in this writ petition are kept open reserving liberty
to the petitioner to challenge the same at appropriate time, if he
is so advised, after the order passed by the respondent for
formal reinstatement and payment of monetary benefits, since
the petitioner is already superannuated.
Sd/- JUDGE
nm
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