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(Annexure-13) passed by the Zonal Manager, Life Insurance Corporation of India (Appellate Authority) rejected the appeal of the petitioner thereby affirmed the order passed by the Disciplinary Authority and further prayer has been made for quashing the order dated 14.1.2009 (Annexure-21) thereby memorial filed by the petitioner has been rejected by the respondent no.1 Life Insurance Corporation of India.

3. In the present case, the only question is to be decided whether on account of non-refunding the amount of LTC or Patna High Court CWJC No.12086 of 2009 dt.09-03-2018 delayed refund of the amount of LTC will be a subject matter for a departmental proceeding and the management can have a jurisdiction to inflict the penalty in view of the fact that the said action or inaction on the part of the delinquent having not been mentioned in the list of misconduct mentioned in the Disciplinary Appeal Rules of the Life Insurance Corporation or conduct Rule dealing with service condition of employee. As learned counsel for the petitioner has submitted that any conduct which has not been mentioned in the list of misconduct minor or major cannot be ground for initiation of departmental proceeding against the employee and inflict the punishment. Management would have jurisdiction to punish with respect to those acts which has been mentioned in conduct rule mentioning do and don't do and if any employee violates those conditions will be liable for initiation of proceeding and also liable for the punishment but, as has been submitted by learned counsel for the petitioner that there is no such provision prohibition or anywhere it has been categorically mentioned that if an employee fails to exercise the option of LTC and does not refund the amount within 7 days would constitute a misconduct and liable for punishment.

Patna High Court CWJC No.12086 of 2009 dt.09-03-2018

6. In the present case, learned counsel for the petitioner submits that there is a provision under the LTC Rule that in failure to utilize the LTC, the employees are required to return the same within 7 days and if he fails to return the same, the liberty lies to LIC to realize the said amount along with interest and that too the petitioner in his explanation has specifically assigned the reason for not utilizing the LTC benefit which he has opted and for that that he could not have been proceeded in departmental proceeding and he has further submitted that mere non-utilization of the benefit of the LTC when itself there is a LTC Rule provides for realization of the amount, it is out of imagination that it will cause any prejudice to the Corporation or the said action can be said to be detrimental to the interest of the Corporation. When there is already the power has been conferred by LTC Regulation they can realize the said amount along with the interest and as such the entire exercise is completely illegal inasmuch as the said action has not been mentioned in any of the conduct rule in violation of the same would constitute the misconduct. In support of his submission he has placed reliance on the two judgments: A. L. Kalra Vs. Project and Equipment Corporation of India Ltd., reported in (1984) 3 SCC 316 and one judgment of this case Court in the case of Praful Chandra Jha v. The life Insurance Corporation of India Lrd., reported in 2013(1) PLJR 7 and the order dated 19.9.2012 passed in LPA No.1275 of Patna High Court CWJC No.12086 of 2009 dt.09-03-2018 2012 of which I am also a party and thereby the Division Bench has affirmed the judgment passed in the case of Praful Chandra Jha (supra) and the present case is entirely covered by the judgment of the learned Single Bench where similar question was raised and the Court has arrived to a conclusion that as because employee has failed to return the amount within 7 days or return the amount beyond that period will not constitute a misconduct whereas learned counsel for the LIC submits that it is not a singular instance when the petitioner had returned the amount beyond the seven days but, at least on four occasions in which the petitioner has opted for LTC and he had not utilized the LTC and returned the amount after a long delay and caused financial lost to the LIC as well as it is against the discipline of the Company that the employee would opt not utilized the LTC and return the amount after a long delay. He has also submitted that He was habitual violating LTC Rule and a singular instance may not constitute misconduct but if the employee repeats the same mistake, it would constitute a misconduct under Regulation 39 of the LIC Staff Regulation, 1960.

8. Having considered the rival contentions of the parties, it is an admitted fact that in span of three to four years the petitioner has opted for LTC. It is also a fact that he had not utilized the LTC but he had returned the amount after a delay along with the interest. In such view of the matter, there is no financial loss to the Corporation with regard to the amount which was given to the petitioner and also 39(i) of the LIC Regulation does not specifically mentions or stipulates that if an employee opts the LTC fails to return the same within 7 days would constitute an act of misconduct but Rule 39 of the LIC Regulation has been formulated in such a manner it comprehends wide activity of the employee gives a wide discretion to the management to treat an action to be misconduct and can initiate a proceeding and inflict the punishment. The same issue came for consideration of A.L. Kalra (supra) case as well as the same issue came for consideration in M/s Glaxo Laborataries (I) Ltd. v. Presiding Officer, Labour Court, Meerut and other, reported in AIR 1984 SC 505 where Hon'ble Supreme Court has said that if the conduct of the employee has not been specifically mentioned in the list of misconduct for that he cannot be proceeded departmentally and punishment cannot be inflicted. In the present also, the situation is the same and it is also a fact if a Patna High Court CWJC No.12086 of 2009 dt.09-03-2018 singular conduct will not constitute a misconduct repetition of the conduct how it will constitute a misconduct it does not stand to the reason of this Court. Learned counsel for the Corporation has also submitted that the order passed by the Disciplinary Authority, appellate authority and the authority who have exercised the power of memorial has discussed the entire fact in detail and there is nothing wrong in arriving to a conclusion that the petitioner has committed a misconduct violating the Staff Regulation of LIC but, on perusal of the order of the Disciplinary Authority as well as other authority who has affirmed the order of the Disciplinary Authority has not discussed and dealt with the issue that has been raised by the petitioner in the present case as well not taken into consideration the identical matter which has been dealt with in the case of 2013(1) PLJR 7 where the identical question was raise and has been replied and it has been recorded that such an act would not constitute a misconduct and pass the order in favour of the employee. This case is also completely covered by that judgment and that has been affirmed by the Division Bench and further no appeal has filed before the Hon'ble Supreme Court so it has arrived to a finality. This Court also finds that the order passed against the petitioner by Disciplinary Authority does not survive and, thus, the order passed by the Appellate Authority and order passed by the authority who has exercised the power under memorial Patna High Court CWJC No.12086 of 2009 dt.09-03-2018 (respondent no.1) against the petitioner are set aside and writ petition is allowed.