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.
W.P.(C) No. 29026 of 2005 ..2..
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."
W.P.(C) No. 29026 of 2005 ..7..
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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