WRIT PETITION NO.41849 OF 2011 (S-RES)judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/64269/1/WP... · Life Insurance Corporation of India Central Office, ... Bangalore Jeevan

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.,

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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