Karnataka High Court
Mahesh K @ Magesh Waran K vs The Union Government on 26 June, 2015
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
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
2
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:
ORDER
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 5 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 6 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 8 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 12 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 14 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 24 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