Kerala High Court
V.A.Shaji vs Life
Insurance Corporation Of ... on 23 August, 1985
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
MONDAY, THE 10TH DAY OF NOVEMBER 2014/19TH KARTHIKA, 1936
WP(C).No. 29026 of 2005 (E)
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PETITIONER(S):
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V.A.SHAJI, FLAT NO.805,
GARDEN GATE APARTMENTS,
GANDHI NAGAR P.O., KOCHI-20.
BY ADV. SRI.S.RADHAKRISHNAN
RESPONDENT(S):
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1. LIFE INSURANCE CORPORATION OF INDIA,
CENTRAL OFFICE, MUMBAI, REP. BY ITS
EXECUTIVE DIRECTOR.
2. THE CHAIRMAN, LIFE INSURANCE
CORPORATION OF INDIA, CENTRAL OFFICE, MUMBAI.
3. DIVISIONAL MANAGER,
LIFE INSURANCE CORPORATION OF INDIA
DIVISIONAL OFFICE, KOCHI.
R1 TO R3 BY ADV. SRI.VARGHESE C.KURIAKOSE
R1 TO R3 BY ADV. SRI.P.J.ANTONY
R1 TO R3 BY ADV. SRI.PRAVEEN K. JOY
R1 TO R3 BY ADV. SRI.VARGHESE BABU
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10-11-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
bka/-
WP(C).No. 29026 of 2005 (E)
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APPENDIX
PETITIONER'(S) EXHIBITS:
EXT.P1 COPY OF THE APPOINTMENT ORDER DATED 23.08.1985.
EXT.P2 COPY OF THE LETTER DATED 27.07.1987 ISSUED TO THE
PETITIONER BY THE BRANCH MANAGER, LIC OF INDIA, BRANCH
OFFICE, ALWAYE.
EXT.P3 COPY OF THE NOTICE OF RESIGNATION DATED 07.04.2005 GIVEN
BY THE PETITIONER TO THE 2ND RESPONDENT.
EXT.P4 COPY OF THE LETTER DATED 02.05.2005 ISSUED TO THE
PETITIONER BY THE 2ND RESPONDENT.
EXT.P5 COPY OF THE PROCEEDINGS NO.08/PER DATED 31.05.2005 OF THE
BRANCH MANAGER, LIC OF INDIA, ALWAYE BRANCH.
EXT.P6 COPY OF THE CIRCULAR NO.3872/ASP/2005 DATED 08.09.2005
ISSUED BY THE 1ST RESPONDENT.
EXT.P7 COPY OF THE LETTER DATED 27.10.2005.
EXT.P8 COPY OF THE MEMORANDUM OF APPEAL DATED 10.11.2006.
EXT.P9 COPY OF THE LETTER ISSUED BY THE LIC DATED 22.01.2010
ISSUED BY THE RESPONDENTS.
RESPONDENT'(S) EXHIBITS: NIL
//TRUE COPY//
PA TO JUDGE
bka/-
A.V. RAMAKRISHNA PILLAI, J.
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W.P.(C) No. 29026 of 2005
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Dated this the 10th day of November, 2014
J U D G M E N T
The petitioner, a former Development Officer of the respondent corporation,
has approached this Court for a declaration that the first proviso to Clause
3(1) of the LIC of India Development Officers (Revision of Terms and Conditions
of Service) Instructions, 2005 (Ext.P6) insofar as it relates to denial of pay
revision benefits to Development Officers, who were in the full time salaried
service of the corporation during the equitable relief period from 01.08.2002
to 31.03.2005 and who resigned thereafter before the date of Ext.P6
notification, is arbitrary, unreasonable, discriminatory, fanciful, oppressive
and unconstitutional. There is a further prayer for a direction to the
respondents to sanction and disburse the pay revision benefits to the
petitioner forthwith as per Ext.P6 notification and for other consequential
benefits. 2. The petitioner entered into the service of the 1st respondent corporation as an Apprentice Development officer on 02.09.1985. His service as Development Officer was confirmed on 01.04.1987. On 07.04.2005, a notice of resignation was sent to the 2nd respondent for resigning from the respondent corporation. On 02.05.2005, Ext.P4 letter was issued by the 2nd respondent intimating the decision of the competent authority accepting the resignation of the petitioner with effect from 31.05.2005; and accordingly, he was relieved from duties on the aforesaid date on acceptance of the resignation by the competent authority. Ext.P6 notification envisages revision of pay for Development Officers, who were in service during the equitable relief period from 01.08.2002 to 31.03.2005. The grievance of the petitioner is that by virtue of Ext.P6, the benefit has been denied to the Development Officers, whose resignation have been accepted on or before Ext.P6 notification irrespective of whether they are relieved or not or whose services had W.P.(C) No. 29026 of 2005 ..3..
been terminated under LIC of India Development Officers (Revision of terms & conditions of service) Rules, 1989 or Rule 39 of Life Insurance Corporation of India (Staff) Rules, 1960, during the period between 01.08.2002 and 05.09.2005 (both days inclusive). The petitioner alleges that as he was working under the respondent corporation during the equitable relief period from 01.08.2002 to 31.03.2005 and he resigned from the post only on 31.05.2005, there is no justification for denying the pay revision benefits. It is with this background, the petitioner has come up before this Court.
3. In the counter affidavit filed by the respondent corporation, who resisted the writ petition, it is contended that the petitioner has voluntarily resigned with sanction from the competent authority and his terminal benefits were disbursed by the respondent corporation at the time of relieving from duties. From all these facts, it can be seen that the petitioner has severed all his connections and relations with the corporation; W.P.(C) No. 29026 of 2005 ..4..
and therefore, subsequent to 31.05.2005, he is no longer an officer of the 1st respondent. It was contended that the benefits conferred by Ext.P6 were intended for serving officers and also for those officers, who have rendered their services for the corporation and superannuated from the corporation. The intention that could be gathered from the instructions is that it was for the Development Officers, who were in the whole time salaried service in the permanent establishment of the corporation during the beneficiary period. It was by way of an equitable relief. The words, superannuation, voluntary retirement, compulsory retirement and resignation have clear and different connotations in the realm of service jurisprudence; and the apex court has clearly distinguished between the various modes of exit. The benefits conferred by Ext.P6 deals with equitable relief, which could be applicable only to the existing Development Officers. Therefore, it was contended that the corporation is perfectly justified in excluding officers, W.P.(C) No. 29026 of 2005 ..5..
whose resignation had been accepted on or before the date of notification irrespective of whether they are relieved or not or whose services had been terminated under the LIC of India Development Officers (Revision of Terms and Conditions of Service) Rules, 1989. Thus, they prayed for a dismissal of the writ petition.
4. I have heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent corporation quite in extenso.
5. Clause 2(f) of Ext.P6 defines "Period of Equitable Relief" as the period from 01.08.2002 to 31.03.2005 or the period within those dates during which an employee was a Development Officer. Clause 2(b) defines an "Existing Officer" as a whole time salaried officer in the permanent establishment of the corporation, who was in the service on the date of notification. The petitioner was not in service as he was relieved on 31.05.2005 from the post of Development Officer on acceptance of the resignation by the competent authority, W.P.(C) No. 29026 of 2005 ..6..
which is an admitted fact. The eligibility criteria is detailed in Clause 3. Clause 3 states that Ext.P6 shall apply to the Development Officers, who were in whole time salaried service in the permanent establishment of the corporation as on 01.08.2002 and those who have joined the whole time salaried service in the permanent establishment of the corporation after that date. Evidently, and admittedly too, the petitioner joined the whole time salaried service in the respondent corporation after 01.08.2002. Therefore, by virtue of the aforesaid clause, the petitioner comes within the zone of consideration for eligibility. However, the benefit is denied to the petitioner on account of the proviso attached to Clause 3(1), which reads as follows;
"Provided, however, that those Development officers
whose resignation had been accepted on or before the date of notification
irrespective of whether they are relieved or not or whose services had been
terminated under LIC of India Development Officers (Revision of terms &
conditions of service) Rules, 1989 or Rule 39 of Life Insurance Corporation of
India (Staff) Rules, 1960, during the period between 1.8.2002 and 5.9.2005
(both days inclusive) shall not be eligible for the arrears on account of this
revision."
6. The petitioner alleges that the pay revision benefit was granted to the Development Officers, who were in service from 01.08.2002 to 31.03.2005, in view of the service rendered by them during the said period. As the petitioner was working as Development Officer during the equitable period, though he has resigned from the post on 31.03.2005, there is no justification in denying the pay revision benefits to the petitioner; so submitted the learned counsel for the petitioner.
7. The learned Standing Counsel for the respondent corporation, per contra, justifies the stand of the corporation. According to the learned Standing Counsel, the intention of the corporation, which is gathered from the instructions, is that the same is intended for serving officers and also for those officers, who were in the whole time salaried service of the corporation during the eligibility period. It was further contended that the the petitioner would never satisfy the requirement of an existing officer. Relying on two W.P.(C) No. 29026 of 2005 ..8..
decisions of the apex court, the learned Standing Counsel for the respondent submitted that superannuation is virtually cessation of service on attainment of age of retirement and it is neither an act of employment nor an act of employer, whereas voluntary retirement and resignation are both voluntary acts on the part of the employee to leave the service. In support of the said argument, the learned Standing Counsel relied on the decision of the apex court in UCO Bank v. Sanwar Mal [2004 KHC 779]. On going through the said decision, it can be seen that the apex court considered an entirely different situation. The respondent in that case opted for the pension scheme introducing the terms of the settlement dated 29.10.1993 between the Indian Banks' Association and All India Banks Employees' Association, which categorically ruled out employees, who have resigned or dismissed or removed from the service. As the respondent in that case had resigned in 1988, the bank declined to accept his option for admitting him as a W.P.(C) No. 29026 of 2005 ..9..
member/beneficiary of the fund. He filed a suit for declaration that he is entitled to pension. The suit was decreed; and the first appeal filed against the judgment of the trial court as also the second appeal filed by the bank were dismissed. Thus, the bank took the matter in appeal before the apex court. The apex court observed that the reason for disqualifying a dismissed employee or employees, who have resigned from membership of the fund, was not far to seek. It was observed that in a self financing scheme, a separate fund is earmarked as the scheme is not based on budgetary support. Therefore, it is essentially based on adequate contributions from the members of the fund. Normally, retirement is allowed only on completion of qualifying service, which is not there in the case of resignation. When such a retirement is opted for self financing pension scheme, he brings in accumulated contribution earned by him after completing qualifying number of years of service under Provident Fund Rules, whereas a person, who resigns, may not have W.P.(C) No. 29026 of 2005 ..10..
adequate credit balance to his provident fund account. For this reason, and also on account of the reason that the scheme in that case was not a continuation of the earlier scheme, the apex court observed that the respondent was not entitled to the benefit and reversed the judgment of the High Court.
8. Here, in this case, the petitioner was in service for about 20 years up to 30.05.2005. The pay revision benefit is granted to the Development Officers, who were in service during the period from 01.08.2002 to 31.03.2005, in relation to the service rendered by them during the said period. Therefore, it is rendering of service during the relevant period that matters and not the date of the notification bringing into force Ext.P6 instructions for the purpose of enjoying the benefit of pay revision. Therefore, the proviso to Clause 3(1) of Ext.P6, which confines the benefit to the Development Officers existing on the date of the notification, i.e., 05.09.2005, and excluding the officers, who demitted their office on W.P.(C) No. 29026 of 2005 ..11..
account of resignation, is arbitrary and illegal. The respondent corporation has no case that the service of the petitioner was not satisfactory at any point of time during his service. The payment of monetary benefit, in this case, is not based on any contribution from the employees.
9. Yet another decision pointed out by the learned Standing Counsel for the respondent corporation is the decision of the apex court in Prabhakar M.R. & others v. Canara Bank & Others [2012 KHC 4559]. In that case, the apex court was dealing with a case of certain employees, who had submitted their resignations between 24.07.1986 and 03.06.1993 prior to the signing of the Statutory Settlement under the Industrial Disputes Act, 1947. There, the apex court observed that the appellants failed to show any pre-existing rights in their favour either in the Statutory Settlement/Joint Note or under the Regulations, 1995; and therefore, they were not covered by the pension scheme introduced by the W.P.(C) No. 29026 of 2005 ..12..
banks. Therefore, this decision also has no application to the situation here.
10. A scrutiny of Clause 3(1) would show that the benefit of pay revision is extended even to Development Officers, who retired from service or died on or after 01.08.2002 without rendering full time service during the whole period between 01.08.2002 to 31.03.2005. That being so, it is unjustifiable to deny the pay revision benefits to a sincere and dedicated Development Officer, against whom, the corporation has no complaints. It is crucial to note that in Ext.P5, which is a letter dated 31.05.2005 issued by the corporation to the petitioner, the corporation has commented the service of the petitioner as dedicated and sincere. It is an accepted proposition of the law that an employee, who has voluntarily retired from service is entitled to claim the benefit of pay revision effected for the periods in service even after the retirement. It is an enforceable right and the said right cannot be taken away or denied by W.P.(C) No. 29026 of 2005 ..13..
executive instructions issued in exercise of the rule making power. Like the case of voluntary retirement, resignation also is on the volition of the employee. The petitioner's resignation was accepted by the respondent corporation without any protest. Therefore, the petitioner can be treated at par with an employee, who sought voluntary retirement as he had the required qualifying service. It is also relevant to note that the petitioner left the service at a time when there was no voluntary retirement schemes.
11. The scales of pay of Development Officers have been revised by the LIC of India Development Officers (Revision of Terms and Conditions of Service) Amendment Rules, 2005. The 2nd respondent has framed Ext.P6 Instructions, 2005 in exercise of the power conferred on him under Rule 51 read with Rule 4 of the LIC of India (Staff) Rules, 1960, providing for the method of fixation in the new scales of pay and other matters connected therewith. In exercise of the said power, the W.P.(C) No. 29026 of 2005 ..14..
2nd respondent cannot incorporate a provision like the one added by the first proviso to Clause 3(1) of Ext.P6, thereby denying the benefits of pay revision to Development Officers, who were in the whole time salaried service of the corporation during the equitable relief period from 01.08.2002 to 31.03.2005 and who resigned thereafter before the date of Ext.P6 notification. As the relief is granted for the service rendered during the period of 01.08.2002 to 31.03.2005, the relief cannot be denied to employees based on the date of the notification effecting revision of pay. Therefore, the first proviso to Clause 3(1) of Ext.P6 is beyond the scope of the rule making power conferred on the 2nd respondent. The power has been exercised by the 2nd respondent improperly for an improper purpose, bringing out unjust and inequitable results. Therefore, this Court is of the view that the petitioner is entitled to succeed.
In the result, the writ petition is allowed. Clause 3(1) of Ext.P6 insofar as it denies pay revision W.P.(C) No. 29026 of 2005 ..15..
benefits to Development Officers, who were in the full time salaried service of the 1st respondent corporation during the equitable relief period from 01.08.2002 to 31.03.2005 and who resigned thereafter before the date of Ext.P6 notification, is quashed as it is arbitrary, unreasonable and discriminatory.
It is hereby declared that the petitioner is entitled to pay revision benefits, for which he is duly eligible for the service rendered by him during the equitable period from 01.08.2002 to 31.03.2005.
The respondent corporation is directed to sanction and disburse the pay revision benefits within a period of three months from today.
Sd/-
A.V. RAMAKRISHNA PILLAI, JUDGE bka/-
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