Tripura High Court
Sri Aparesh Das vs Life Insurance Corporation Of India on 3 January, 2017
Author: S.C. Das
Bench: S.C. Das
THE HIGH COURT OF TRIPURA
AGARTALA
WP(C) 377 of 2016 [
Sri Aparesh Das,
S/o Sri Harendra Chandra Das,
Resident of Vill+PO-Lankamura,
P.S. West Agartala,
District-West Tripura, PIN-799009.
............ Petitioner
- Vs -
1. Life Insurance Corporation of India,
Central Office, "Yagakshema"
Building, J.B. Marg, Nariman Point,
Mumbai-400021, through its
Chairman.
2. The Executive Director (M-B&AC),
Life Insurance Corporation of India,
Marketing Bancassurance &
Alternate Channel Department,
Central Office, Yogakeshema
(West Wing), J.B. Marg, Nariman
Point, Mumbai-400021.
3. The Zonal Manager, Life Insurance
Corporation of India, Eastern Zonal
Office, Hindustan Building, CR
Avenue, Kolkata-700072.
4. The Senior Divisional Manager, Life
Insurance Corporation of India,
Divisional Office, Silchar Division,
Meherpur, PIN-788015.
5. The Manager (B&AC), Life
Insurance Corporation of India,
Silchar Divisional Office, Meherpur,
PIN-788015.
6. The Branch Manager, Life
Insurance Corporation of India,
Agartala, TRTC Building,
Krishnanagar, Agartala, PIN-
799001.
............ Respondents
WP(C) 377/2016 Page 1 of 11
WP(C) 378/2016
WP(C) 378 of 2016 [
Sri Abhijit Sutradhar,
S/o, Lt. Amrit Lal Sutradhar,
Resident of Vill-Geet Bharati Para,
West Bank of jagannath Deghee,
P.O. RK Pur, Gomati, Tripura,
Udaipur.
............ Petitioner
- Vs -
1. Life Insurance Corporation of India,
Central Office, "Yagakshema"
Building, J.B. Marg, Nariman Point,
Mumbai-400021, through its
Chairman.
2. The Executive Director (M-B&AC),
Life Insurance Corporation of India,
Marketing Bancassurance &
Alternate Channel Department,
Central Office, Yogakeshema
(West Wing), J.B. Marg, Nariman
Point, Mumbai-400021.
3. The Zonal Manager, Life Insurance
Corporation of India, Eastern Zonal
Office, Hindustan Building, CR
Avenue, Kolkata-700072.
4. The Senior Divisional Manager, Life
Insurance Corporation of India,
Divisional Office, Silchar Division,
Meherpur, PIN-788015.
5. The Manager (B&AC), Life
Insurance Corporation of India,
Silchar Divisional Office, Meherpur,
PIN-788015.
6. The Branch Manager, Life
Insurance Corporation of India,
Udaipur, B.O-575, P.O. R.K.Pur,
Gomati Tripura, PIN-799120.
............ Respondents
WP(C) 377/2016 Page 2 of 11
WP(C) 378/2016
BEFORE
THE HON'BLE MR. JUSTICE S.C. DAS
IN BOTH THE CASES
For the petitioners : Mr. P Roy Barman, Advocate
For the respondents : Mr. N Majumdar, Advocate
Date of delivery of
Judgment & order : 03.01.2017.
Whether fit for Reporting : Yes.
JUDGMENT & ORDER (ORAL)
Identical facts and questions of law are involved in both the writ petitions. So both the writ petitions were heard together on the prayer of learned counsel for the parties and this common judgment is passed which shall govern both the writ petitions.
2. Heard learned counsel, Mr. P Roy Barman for the petitioners and learned counsel, Mr. N Majumdar for the respondents in both the cases.
3. Respondent No.1 formulated a scheme, namely, "LIC of India (Financial Services Executive) Scheme 2007" and under that scheme time to time engaged Financial Service Executives under certain definite terms and conditions on contractual services. The petitioner of WP(C)377/2016 was engaged on 02.05.2008 and the petitioner of WP(C)378/2016 was engaged on 05.05.2008 after following a selection process in due course. After engagement they were also given necessary training as prescribed under the Scheme. WP(C) 377/2016 Page 3 of 11 WP(C) 378/2016
4. It is an admitted position that the engagement was made on contractual basis initially for three years and thereafter it was extended time to time.
5. It is also an undisputed position that the petitioners rendered their services as per the Scheme satisfactorily and they fulfilled the target fixed by the respondent - Corporation.
6. By a letter dated 30.06.2015 (Annexure-P/6 to the writ petition) the petitioner of WP(C)377/2016 was informed that the contractual services as a Financial Services Executive shall automatically cease on 31.05.2016. By writing a similar letter dated 30.06.2015 (Annexure-P/9 to the writ petition) the petitioner of WP(C)378/2016 was similarly informed that his services also will automatically cease on 31.05.2016. It was stipulated in the impugned letters dated 30.06.2015 that on completion of 8th year of contractual period of service as Financial Services Executive the petitioners will be no longer in the job and the contractual service will end on that date.
7. It is the case of the petitioners that the scheme is still in force and while the scheme is still in force and not abandoned or closed by the Corporation, the services of the petitioners cannot be discontinued. They have a right to render their services as Financial Services Executive so long the scheme is in force and continued by the respondent-Insurance Co.
8. Learned counsel, Mr. Roy Barman appearing for the petitioners has heavily relied on the decision of the Apex Court in the WP(C) 377/2016 Page 4 of 11 WP(C) 378/2016 case of Md. Abdul Kadir and Anr. V. Director General of Police, Assam and Ors., reported in (2009) 6 SCC 611 and submitted that so long the scheme is in force, the petitioners should be allowed to continue their services as Financial Services Executives since they fulfilled all the terms and conditions of their engagement and have given beneficial business to the Corporation as Financial Services Executives.
9. He has also relied on the decision of the Gauhati High Court in WP(C)597 of 2009 and WP(C)3867 of 2010 (judgment pronounced by Hon'ble Justice T. Vaiphei in the Single Bench) wherein the Gauhati High Court relying on the decision of the Apex Court in Md. Abdul Kadir (supra) has held that so long the scheme formulated by the respondent continued, the petitioners should be allowed to continue in the job unless otherwise found unsuitable.
10. The respondents have contended that the petitioners were engaged on contractual basis. The Scheme formulated by the Corporation prescribes temporary engagement on contractual basis for a specific period. The petitioners and other similarly engaged Financial Services Executives, under the Scheme, acquired no right to claim permanent absorption in the services of the LIC and after completion of the period of engagement they have no right to claim further continuance beyond eight years.
11. Learned counsel, Mr. Majumdar has submitted that various other writ petitions were also filed in different High Courts of India claiming regularization of services as Financial Services Executives but those were dismissed since a contractual employee cannot claim WP(C) 377/2016 Page 5 of 11 WP(C) 378/2016 permanent absorption in the job. He has also submitted copies of judgments of various High Courts on the same issue.
12. The petitioners also enclosed copies of orders passed by different High Courts on the issue.
13. It is an admitted position that the respondent No.1, hereinafter mentioned as 'Corporation', formulated a scheme, namely, "LIC of India (Financial Services Executive) Scheme 2007" and under that Scheme, Financial Services Executives were engaged to promote business of the Corporation. The Scheme prescribes eligibility criteria, mode of selection, training for the selected candidates (Practical training, Field training, etc.) and also fixed minimum business parameters. It is also an admitted position that both the petitioners were selected in due process and were engaged as Financial Services Executives. The petitioner of WP(C)377/2016 was attached with the Agartala Branch-II of the LICI and the petitioner of WP(C)378/2016 was attached with the Udaipur Branch of LICI.
14. It is also an undisputed, rather admitted position, that the petitioners rendered satisfactory services and fulfilled the target fixed by the Corporation and from the date of their engagement they continuously served the Corporation having their contractual engagement extended time to time. By the impugned letter dated 30.06.2015 the Corporation asked the petitioners that on their completion of 8th year, i.e. w.e.f. 31.05.2016 their contractual services will automatically cease.
WP(C) 377/2016 Page 6 of 11 WP(C) 378/2016
15. There is no quarrel that the engagement of the petitioners was contractual in nature and hence it is liable to be guided by the contract itself. The scheme formulated by the Corporation prescribes the engagement on contractual basis. By writing a letter dated 01.01.2015, the Executive Director of Corporation (respondent No.2) informed all the Zonal Managers, Regional Managers and Senior Managers of the LICI that the last and final extension of the contractual period shall be 8th year of the service of the Financial Services Executives. Copy of that letter has been annexed in both the writ petitions which reads as follows:
st "Ref:CO/MBAC/ZD/01/2015 1 January, 2015 All Zonal Managers;
All Regional Managers (B&AC), All Sr./Divisional Managers Re:INSTRUCTIONS FOR IMPLEMENTATION OF LIC of India (Financial Services Executives) Scheme, 2007 As amended on 05.09.2014 The Competent Authority has approved renewal of contract th for eligible FSEs for the 8 year subject to performance and suitability. Details regarding Remuneration, Minimum th Busniess Parameters, Incentive, etc. for the 8 year will be conveyed separately.
This is the last and final extension of Contractual Period to the FSEs. Please note that there will not be any further extension of contractual period to any of the FSEs, after th completion of the 8 Year.
Effective Date: These instructions come into force with immediate effect.
Please circulate the above instructions to concerned offices immediately.
Sd/- Illegible Executive Director (M-B&AC)"
16. Pursuant to the above letter, the Corporation issued the impugned letter dated 30.06.2015 to the petitioners informing them that WP(C) 377/2016 Page 7 of 11 WP(C) 378/2016 their contractual service will automatically cease on 31.05.2016. An interim order was passed when the writ petitions were filed and the petitioners are still in service of the Corporation as Financial Services Executives.
17. By filing the present writ petitions, the petitioners have contended that they do not want regularization of their contractual services. It is submitted by Mr. Roy Barman that the petitioners were engaged as a contractual employee and so they cannot claim regularization but so long the scheme is in force, according to Mr. Roy Barman, the petitioners' services shall have to be allowed to continue as otherwise they will suffer irreparable loss.
18. The Apex Court in the case of Md. Abdul Kadir (supra) in almost a similar nature of case in para 16, 17 and 18 observed:
"16. We may next consider the challenge to the procedure of annual termination and reappointment introduced by the circular dated 17.3.1995. The PIF Scheme and PIF Additional Scheme were introduced by Government of India. The scheme does not contemplate or require such periodical termination and re-appointment. Only ex- servicemen are eligible to be selected under the scheme and that too after undergoing regular selection process under the Scheme. They joined the scheme being under the impression that they will be continued as long as the PIF Additional Scheme was continued. The artificial annual breaks and reappointments were introduced by the state agency entrusted with the operation of the Scheme. This Court has always frowned upon artificial breaks in service.
17. When the ad-hoc appointment is under a scheme and is in accordance with the selection process prescribed by the scheme, there is no reason why those appointed under the scheme should not be continued as long as the scheme continues. Ad-hoc appointments under schemes are normally co-terminus with the scheme (subject of course to earlier termination either on medical or disciplinary grounds, or for unsatisfactory service or on attainment of normal age of retirement). Irrespective of the length of their ad hoc service or the scheme, they will not be entitled to regularization nor to the security of tenure and service benefits available to the regular employees. In this background, particularly in view of the continuing Scheme, the ex-serviceman employed after undergoing selection WP(C) 377/2016 Page 8 of 11 WP(C) 378/2016 process, need not be subjected to the agony, anxiety, humiliation and vicissitudes of annual termination and re- engagement, merely because their appointment is termed as ad hoc appointments.
18. We are therefore of the view that the learned Single Judge was justified in observing that the process of termination and re-appointment every year should be avoided and the appellants should be continued as long as the Scheme continues, but purely on ad hoc and temporary basis, co- terminus with the scheme. The circular dated 17.3.1995 directing artificial breaks by annual terminations followed by fresh appointment, being contrary to the PIF Additional Scheme and contrary to the principles of service jurisprudence, is liable to be is quashed."
19. The Single Bench of the Hon'ble Gauhati High Court following the ratio of the decision in Abdul Kadir (supra) in WP(C) 597 of 2009 and WP(C) 3867 of 2010 has decided that so long the scheme is in force the services of the contractual employee who has rendered satisfactory service cannot be discontinued.
20. Mr. Majumdar, learned counsel for the respondents has submitted that the Corporation has formulated some other schemes and the petitioners may opt for those schemes which have been indicated in the additional counter affidavit. It is submitted by Mr. Majumdar that the Scheme formulated in the year 2007, i.e. LIC of India (Financial Services Executive) Scheme has not been discontinued but there is no new engagement under the Scheme. The Corporation has formulated some other new schemes and the petitioners may opt for any of those alternative schemes.
21. This Court by order dated 25.11.2006 asked the respondents to specifically submit as to whether the scheme of 2007 was in force or not. In response to that, the respondents by filing affidavit have stated that the scheme is still in force. While that scheme is still in force and the petitioners rendered satisfactory services as per WP(C) 377/2016 Page 9 of 11 WP(C) 378/2016 the requirements of the Scheme and the business parameters fixed under the scheme has been fulfilled all along during the engagement of the petitioners, there is no reason to discontinue their services as Financial Services Executives. No reason assigned by the Corporation as to why the contractual engagement should be discontinued at the end of the 8th year. There must be some reason to discontinue the contractual engagement at the end of a particular term and it should not be at the whims of the employer so long the scheme is in force. If the scheme is withdrawn or abandoned by the Corporation or found to be not beneficial to the interest of the Corporation the question will be otherwise. While the Corporation has not abandoned or withdrawn the scheme and the scheme is in force, there is no logic at all to fix a term for the engaged Financial Services Executives to the detriment of their interest.
22. Considering the ratio of the decision of the Apex Court in the case of Abdul Kadir (supra) which has been followed by the Gauhati High Court also in the writ petitions as indicated hereinbefore, I am of the considered opinion that the engagement of the petitioners cannot be put to an end so long the scheme is alive. If the Corporation formulated any other scheme to which the Corporation likes to engage the petitioners or similarly situated other persons, proposal by the Corporation may be communicated to the petitioners and their option may be obtained as to whether they are willing to join in any other scheme or not. If they are willing to join in any other scheme that is well and good and they may be absorbed accordingly. Otherwise, so long WP(C) 377/2016 Page 10 of 11 WP(C) 378/2016 the scheme is in force and the petitioners are not found to be unfit for the job, their services cannot be put to an end.
23. Accordingly, both the writ petitions are allowed. The respondents are directed to allow the petitioners to continue in the contractual job as per the Scheme so long the Scheme is alive. In case the Corporation formulates any other Scheme and likes to absorb the petitioners in such a different scheme, proposal may be communicated to the petitioners and their option may be taken for such other scheme and if they opt for such scheme they may be absorbed accordingly. Otherwise, they should be allowed to continue in the Scheme in which they were engaged till the scheme is alive subject to rendering of satisfactory service as per the parameters fixed under the Scheme.
24. Both the writ petitions accordingly stand disposed of.
No order as to costs.
JUDGE lodh WP(C) 377/2016 Page 11 of 11 WP(C) 378/2016