Karnataka High Court
Shashidhar Ramachandra Eligar vs Chairman And Managing Director, Life ... on 3 February, 2023
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WP No. 111778 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
WRIT PETITION NO. 111778 OF 2014 (S-RES)
BETWEEN:
SHASHIDHAR RAMACHANDRA ELIGAR,
C/O.R G NARGUND,
"BHAGIRATI", L.S.TANK ROAD,
MANJUNATAHAPURA,
NEAR RAYARAMATH, MALAMADDI,
DHARWAD-580007
...PETITIONER
(SRI. SOURABH A. SONDUR, ADVOCATE FOR
SRI. K.L.PATIL, ADVOCATE FOR PETITIONER)
AND:
1. CHAIRMAN & MANAGING DIRECTOR, LIFE INSURANCE
CORPORATION OF INDIA,
JEEVAN MARG, CENTRAL OFFICE,
Digitally signed by
MUMBAI.
CHANDRASHEKAR
LAXMAN
KATTIMANI
CHANDRASHEKAR
LAXMAN
KATTIMANI
Location: HIGH
COURT OF
KARNATAKA
2. ZONAL MANAGER AND DISCIPLINARY AUTHORITY
DHARWAD
Date: 2023.02.13
13:24:58 +0530 LIFE INSURANCE CORPORATION OF
INDIA, SAIFABAD,
OPP: SECRETARIAT HYDERABAD
3. SENIOR DIVISIONAL MANAGER
LIFE INSURANCE CORPORATION OF
INDIA, DIVISIONAL OFFICE,
RODDHA ROAD, DHARWAD
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WP No. 111778 of 2014
...RESPONDENTS
(BY SRI. NARAYAN V. YAJI, ADVOCATE)
THIS WP IS FILED PRAYING TO DIRECT THE RESPONDENT
CORPORATION TO PAY THE PENSION EFFECTIVE FROM HIS DATE OF
REMOVED OF SERVICE ON 06.02.2006 WITH SIMPLE INTEREST AT
THE RATE AT WHICH THE CENTRAL GOVERNMENT HAS DECLARED
FOR LONG TERM DEPOSITS.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
In this writ petition, the petitioner has sought for the following reliefs:
"(A) Wherefore, the petitioner most respectfully prays this Hon'ble Court to issue a Writ in the nature of Mandamus and direct the respondent corporation to pay the pension effective from his date of removed of service on 06/02/2006 with simple interest at the rate at which the central Government has declared for long term deposits.
(A1) The Hon'ble Court may be pleased to quash Rule 23 of LIC Pension Rules 1995 which is discriminatory.
(B) Any other writ, relief, or direction this Court deems fit in favour of this petitioner."-3- WP No. 111778 of 2014
2. Heard Sri. Sourabh A. Sondur, learned counsel for the petitioner and Sri. Narayan V. Yaji, learned counsel for the respondents.
3. Sri. Sourabh A. Sondur, learned counsel appearing for the petitioner contended that, Rule 23 of the Life Insurance Corporation of India (Employees) Pension Rules, 1995 (hereinafter referred to as 'Insurance Rules') is contrary to the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as 'the Act').
4. It is the principal submission of Sri. Sourabh Sondur, learned counsel appearing for the petitioner that, the Act has been framed by the Central Legislation and the said Act came in to force on 04.03.1952 which provide for institution of the Provident Fund (Pension Fund) and deposit linked Insurance Fund for employees in the factories and other establishments and the same shall prevail over the provisions contained under the Insurance Rules. Accordingly, he submitted that, Rule 23 of the Rules -4- WP No. 111778 of 2014 requires to be read down and thereby, writ of mandamus be issued to the respondent-corporation to pay the pension effective from the date of removal from the service i.e. from 06.02.2006, with interest. In this regard, he referred to the Judgment of the Hon'ble Apex Court in the case of Kerala State Electricity Board and others Vs. Thomas Joseph alisas Thomas M.J. andothers, reported in AIR 2023 SC 126.
5. Per contra, Sri. Narayan V. Yaji, learned counsel appearing for the respondent contended that, the Rules of Life Insurance Corporation of India (Employees) Pension Rules came in to force on 01.11.1983 and the language employed in Rule 23 of the said Rules, provides that, in case, the corporation forfeit the post service, as the employee acted against the interest of the corporation and the same is confirmed in an enquiry ordered by the competent authority, under such circumstances the removal of such employee shall not qualify for pensionary benefits of her or his removal from service from the -5- WP No. 111778 of 2014 respondent-corporation. He further contended that, unless and until the power vested with the respondent-
corporation is declared by the competent Court of law as unconstitutional, and therefore, the arguments advanced by the learned counsel appearing for the petitioner to read down the said provision cannot be accepted. In this regard, he also submitted that the effect or consequence of the operation of Rule 23 of the Rules is only consequence of an order passed by an authority under Regulation 39 of the said Rules and therefore, sought for dismissal of the writ petition.
6. In the light of the submission made by the learned counsel appearing for the parties, it is relevant to extract the provisions contained under Section 17AA of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, which reads as under:
"17AA. Act to have effect notwithstanding anything contained in Act 31 of 1956.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith -6- WP No. 111778 of 2014 contained in the Life Insurance Corporation Act, 1956."
7. Rule 23 of the Insurance Rules reads as under:
"23. Forfeiture of service - Resignation or dismissal or removal or termination or compulsory retirement of an employee from the service of the Corporation shall entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefit."
8. Having taken note of the arguments advanced by Sri. Sourabh A. Sondur, learned counsel appearing for the petitioner, it is not in dispute that, the statement of objection and reasons of the Act provides that the said Act is promulgated to provide for the Institution of Provident Fund and such other benefits to the employees. The Act is a Central Legislation in exercise of the powers conferred by the proviso to Sub-Section 3 of Section 1 of the Act. The Central Government extends the provisions of the said Act to apply to the establishments employing ten or more persons and covered under the provisions of Jammu and Kashmir Employee' Provident Funds and Miscellaneous -7- WP No. 111778 of 2014 Provisions Act, 1961. Having taken note of the pith and substance of the Act, particularly with regard to Section 17AA of the Act and on careful examination of the provisions contained under the aforementioned Insurance Rules would indicate that, the said Rule has been framed by the respondent-Corporation by virtue of Section 48 of the Life Insurance Corporation Act, 1956. The Rule is delegated legislation. It is well settled principle in Administrative Law that the delegated legislation shall conform to the parent Act. That apart, by applying the same principles to the case on hand, as the Act is a Central Legislation and under Section 17AA of the Act, where an employee employed in an establishment to which this Act applies, the said provision would declare that, the provision of the said Act prevails over the provisions under the Life Insurance Act, 1956 and as the Insurance Rule is made under Section 48 of the Life Insurance Act, 1956 and therefore, the Employees Provident Fund Act, 1952 shall prevail over the provisions contained under the Life -8- WP No. 111778 of 2014 Insurance Corporation Act, 1956. That apart as the Employees' Provident Fund Act, 1952 itself is prevailing over the provisions of the Life Insurance Corporation Act, 1956 and therefore, any such Rules/delegated Legislation made under the Life Insurance Corporation Act, 1956 shall adhere to the Employees Provident Fund Act, 1952. In that view of the matter, I find force in the submission made by the learned counsel for the petitioner that, the Rule 23 of the Rules shall be read down that it should not exceed the object of Section 17AA of the Act. In this aspect, the scope and ambit of the delegated legislation was considered by the Apex Court in the case of Thomas Joseph (supra), paragraph 64, which reads as under:
"64. At this stage, it is apposite to state about the rule making powers of a delegating authority. If a rule goes beyond the rule making power conferred by the statute, the same has to be declared invalid. If a rule supplants any provision for which power has not been conferred, it becomes invalid. The basic test is to determine and consider the source of power, which is relatable to the rule. Similarly, a rule must -9- WP No. 111778 of 2014 be in accord with the parent statute, as it cannot travel beyond it."
9. Hon'ble Supreme Court in the case of Union of India and another Vs. Tulsiram Patel, reported in 1985 3 SCC 398 at paragraph 70, held as follows:
"The position which emerges from the above discussion is that the key-words of the second proviso govern each and every clause of that proviso and leave no scope for any kind of opportunity to be given to a government servant. The phrase "this clause shall not apply" is mandatory and not directory. It is in the nature of a Constitutional prohibitory injunction restraining the disciplinary authority from holding an inquiry under Article 311(2) or from giving any kind of opportunity to the concerned government servant. There is thus no scope for introducing into the second proviso some kind of inquiry or opportunity by a process of inference or implication. The maxim "expressum facit cessare tacitum" ("when there is express mention of certain things, then anything not mentioned is excluded") applies to the case. As pointed out by this Court in B. Shankara Rao Badam & Ors. v. State of Mysore & Anr., [1969] 3 S.C.R. 1, 12, this well-known maxim is a principle of logic and
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common sense and not merely a technical rule of construction. The second proviso expressly mentions that clause (2) shall not apply where one of the clauses of that proviso becomes applicable. This express mention excludes everything that clause (2) contains and there can be no scope for once again introducing the opportunities provided by clause (2) or any one of them into the second proviso. In Atkinson v. United States of America Government, L.R. [1971] A.C. 197, Lord Reid said (at page 232) :
"It is now well recognized that the court has power to expand procedure laid down by statute if that is necessary to prevent infringement of natural justice and is not plainly contrary to the intention of Parliament."
Here, however, the attempt is not merely to do something contrary to the intention of "Parliament", that is, in our case, the Constituent Assembly, but to do something contrary to an express prohibition contained in the Constitution. The conclusion which flows from the express language of the second proviso is inevitable and there is no escape from it. It may appear harsh but, as mentioned earlier, the second proviso has been inserted in the Constitution as a matter of public policy and in public interest and for public good just as the pleasure doctrine and the safeguards for a
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WP No. 111778 of 2014government servant provided in clause (1) and (2) of Article 311 have been. It is in public interest and for public good that government servant who has been convicted of a grave and serious offence or one rendering him unfit to continue in office should be summarily dismissed or removed from service instead of being allowed to continue in it at public expense and to public detriment. It is equally in public interest and for public good that where his offence is such that he should not be permitted to continue to hold the same rank, that he should be reduced in rank. Equally, where a public servant by himself or in concert with others has brought about a situation in which it is not reasonably practicable to hold an inquiry and his conduct is such as to justify his dismissal, removal or reduction in rank, both public interest and public good demand that such penalty should forthwith and summarily be imposed upon him; and similarly, where in the interest of the security of the State it is not expedient to hold an inquiry, it is in the public interest and for public good that where one of the three punishments of dismissal, removal or reduction in rank is called for, it should be summarily imposed upon the concerned government servant. It was argued that in a case falling under clause (b) or (c), a government servant ought to be place under suspension until the situation improves
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WP No. 111778 of 2014or the danger to the security of the State has passed, as the case may be, and it becomes possible to hold an inquiry. This argument overlooks the fact that suspension involves the payment at least of subsistence allowance and such allowance is paid at public expense, and that neither public interest would be benefited nor public good served by placing such government servant under suspension because it may take a considerable time for the situation to improve or the danger to be over. Much as this may seem harsh and oppressive to a government servant, this Court must not forget that the object underlying the second proviso is public policy, public interest and public good and the Court must, therefore, repel the temptation to be carried away by feelings of commiseration and sympathy for those government servants who have been dismissed, removed or reduced in rank by applying the second proviso. Sympathy and commiseration cannot be allowed to out weigh considerations of public policy, concern for public interest, regard for public good and the peremptory dictate of a Constitutional prohibition. The Court must bear in mind that the second proviso has been in the Constitution since it was originally enacted. It was not blindly or slavishly copied from section 240(3) of the Government of India Act, 1935. Article 311 was article 282-B of the draft Constitution of
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WP No. 111778 of 2014India and the draft Article 282-B was discussed and a considerable debate took place on it in the Constituent Assembly (see the Official Report of the Constituent Assembly Debates, vol.IX, page 1099 to 1116). The greater part of this debate centred upon the proviso to clause (2) of the draft article 282-B, which is now the second proviso to Article 311. Further, the Court should also bear in mind that clause (c) of the second proviso and clause (3) of Article 311 did not feature in section 240 of the Government of India Act, 1935, but were new provisions consciously introduced by the Constituent Assembly in Article 311. Those who formed the Constituent Assembly were not the advocates of a despotic or dictatorial form of government. They were the persons who enacted into our Constitution the Chapter on Fundamental Rights. The majority of them had fought for freedom and had suffered imprisonment in the cause of liberty and they, therefore, were not likely to introduce into our Constitution any provision from the earlier Government of India Acts which had been intended purely for the benefit of a foreign imperialistic power. After all, it is not as if a government applied to him. There are two remedies open to him, servant is without any remedy when the second proviso has been applied to him. There are two remedies open to him, namely, departmental appeal
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WP No. 111778 of 2014and judicial review. The scope and extent of these remedies will be considered later in the course of this judgment.
10. Taking into consideration the law declared by the Apex Court that the supporting Legislation shall conform to the parent Act and Employees' Provident Fund Act, 1952 is a Central Legislation and prevail over the Life Insurance Corporation Act, I am of the view that, the Insurance Rule i.e. Rule 23 shall be held read down to the provision of Employees' Provident Fund Act, 1952. Any such actions have been taken by the respondent-
corporation in derogation of the provisions of Employees' Provident Fund Act, 1952 is to be nullified. With these observations, I am of the view that, the writ petition requires to be allowed, holding that Rule 23 of the Life Insurance Corporation Pension Rules, 1995 is discriminatory in nature and contrary to the Employees Provident Funds and Miscellaneous Provisions Act, 1952.
11. Having held that, Rule 23 of the Insurance Rules is contrary to the Employees' Provident Funds and
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WP No. 111778 of 2014Miscellaneous Provisions Act, 1952, the respondent-
Corporation shall consider the case of the petitioner afresh by looking into the observations made above. With these observations, writ petition is disposed of.
Sd/-
JUDGE SVH List No.: 1 Sl No.: 21